Louisiana Cement Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Louisiana Cement Company, a Division of OKC Corp. and United Steelworkers of America, AFL-CIO- C(1,. Case 15 CA 6657 March 28. 1979 DECISION AND ORDER BY MliMBEIRS JENKINS. MURPHY, AND TRUESDALE On December 20. 1978, Administrative Law Judge Robert M. Schwarzbart issued the attached Decision in this proceeding. Thereafter, both the Respondent and the General Counsel filed exceptions and sup- porting briefs, and the General Counsel filed a brief in support of the Administrative Law Judge's Deci- sion in all other respects. 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,2 and conclusions' of the Administrative Law Judge, as modified herein, and to adopt his recommended Or- der. The Administrative Law Judge concluded, inter alia, that Respondent violated Section 8(a)(l) of the Act by creating the impression that it was keeping the union sentiments and activities of employee Patrick under surveillance. In support of this conclusion, the Administrative Law Judge found that, according to Patrick's testimony. Assistant Plant Manager Stea- gall4 remarked to Patrick that when Patrick got to be a union steward, he (Patrick) would no longer have to I Respondent excepts to several of the Administrative Law Judge's proce- dural rulings, including the Administrative Law Judge's denial of Respon- dent's motion for postponement of the hearing pending the availability of attorney lHolard S. inzy. As indicated, we affirm the Administrative Law Judge's rulings, and. in affirming his denial of the motion for postponement. we n:* particularly that, at Respondent's request, the Administrative Law Judge adjourned the hearing at noon on the opening day thereof. to recon- vene the tbllowing morning, on the basis of' Respondent's assurances to the Administrative I.aw Judge that. if the proceedings were so postponed. it so,uld thereafter be prepared to proceed and would forgo further motions for postponement based on its initially claimed unpreparedness to proceed. Re- spondent's subsequent contention that it was "coerced" by the Administra- tive L.aw Judge into gising such assurances is totally unsupported by the record before us I he first paragraph of sec III, D. of the Administrative Law Judge's Decision states that employees Thomas and Walker identified employee Bounds to Assistant Plant Manager Steagall as "principal union activists [sic": this is incorrect. tbr, as the Administrative Law Judge himself found earlier in his Decision, and as the record clearly establishes, Bounds identi- fied 7ho,,nrs and Walker to Steagall as principal union activists. I Respondent contends that the Administrative Law Judge's rulings, inter- prelation of the evidence, findings, and conclusions show bias and prejudice against Respondent on the part of the Administrative Law Judge. We have carefully reviewed the record and the attached Decision, and based on that examination we are completely satisfied that the contentions of the Respon- dent in this regard are totally without merit. 'Steagall did not testify at the hearing. work on the railroad tracks on Respondent's prem- ises. It is evident, however, that the Administrative Law Judge has inadvertently misread Patrick's testi- mony about this incident. Specifically, as reflected in the transcript, Patrick testified that he remarked to Steagall (and not vice versa) that when Steagall (and not Patrick) got to be a union steward, he (Patrick) would no longer have to work on Respondent's rail- road tracks. Accordingly, we find that the Adminis- trative Law Judge's factual findings were erroneously derived from an inadvertent misreading of the record, and we conclude, based on the correct reading of the record, that Respondent did not violate Section 8(a)(1) in this particular respect.5 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 Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Louisiana Cement Company, a division of OKC Corporation, New Or- leans, Louisiana, its officers, agents, successors, and assigns, shall take the action set forth in the said rec- ommended Order. 5 We note, however. that the Administrative Law Judge's summary of Patrick's testimony is in all other respects entirely accurate, as are his sum- maries of the testimony of all other witnesses. DECISION STATEMENT OF THE CASE ROBERT M. SCHWARZBART, Administrative Law Judge: This case was heard in New Orleans, Louisiana, on April 17, 18, and 19, 1978, pursuant to a charge filed on October 6, 1977.1 by United Steelworkers of America, AFL-CIO- CLC, herein the Union, and a complaint which issued De- cember 1. The complaint alleges that Louisiana Cement Company, a division of OKC Corp., herein the Respondent, committed certain acts in violation of Section 8(a)(1) and (3) of the Act. The Respondent's answer denied commission of the alleged unfair labor practices. Issues I. Whether the Respondent violated Section 8(a)(l) of the Act by coercively interrogating various employees about their union sympathies and activities and those of other employees: by surveying and creating among its em- ployees the impression that their union activities were un- der surveillance by management: and by threatening dis- charge of its employees and closure and relocation of its plant if the employees selected the Union as their bargain- ing agent. All dates hereinafter refer to 1977 unless otherwise noted. 241 NLRB No. 83 536 LOUISIANA CEMENT COMPANY 2. Whether the Respondent violated Section 8(a)(3) and (I) of the Act by discharging Loyde Thomas and William Walker, its employees, because they were active in the Union's organizational campaign. All parties were given full opportunity to participate. to introduce relevant evidence. to examine and cross-examine witnesses, and to file briefs. Briefs, filed by the General Counsel and the Respondent, have been carefully consid- ered. Upon the entire record of the case and my observation of the witnesses and their demeanor. I make the following: FINDIN<GS OF lA(I 1. FIlE BUSINESS )1 IE RFISP(NI) NI At all times material herein. the Respondent. a Delaware corporation. has maintained offices and facilities in New Orleans, Louisiana. where it is engaged in the cement and masonry business. During the 12 months preceding the issu- ance of the complaint. a representative period, the Respon- dent in the course and conduct of its business operations sold goods valued in excess of $50.000 to employers, each of whom, in turn, sold and shipped goods valued in excess of $50,000 directly to customers located outside the State of Louisiana. The complaint alleges. the answer admits. and I find that the Respondent is now, and has been at all times material herein. an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2 In mid-afternoon of the third day of the hearing. the Respondent's coun- sel, arguing that the Respondent had been denied adequate legal representa- tion. rested abruptly after denial of his motion for a second continuance, in effect, until the following day for additional time to prepare the testimony of his witnesses. An attorney of the same firm, who originally represented the Respondent, had received notice 5 days before the start of the heanng to appear in a conflicting court proceeding and, therefore, was unavailable for this heanng. In its brief, the Respondent has renewed the above contention. In refusing to further extend the hearing to provide additional time for wit- ness preparation. it was noted that. on the Respondent's motion, the start of testimony already had been delayed for I day for this purpose on counsel's representation that he would thereafter be read) to proceed: that the law firm representing the Respondent had sufficient notice and resources to be able to go forward on schedule; and that the Respondent's trial preparation had been facilitated in that the General Counsel, complying with a U.S. District Court Order which predated the Supreme Court's decision in N.L R B v. Robbins Tire and Rubber Conpan. 434 U.S. 1061 (1978). on the eve of the hearing had turned over to the Respondent's counsel copies of all pretrial affidavits of prospective witnesses, Finally, it was noted that the Respondent, in any eent, would not have been permitted to call on its own behalf certain company officials and super- visors named as principally engaged in the unlawful conduct herein. This was because the Respondent, having persistently refused to comply with subpenas requiring the testimony of these persons during the General Coun- sel's case, had been precluded from thereafter using them as its own wit- nesses. See N.L. R.B. v. C H. Sprague & Son Co.. 428 F.2d 938, 942 list Cir. 1970). NL.R.B. v. American Art Industries, Inc., 415 F.2d 1223. 1229-1230 (5th Cir. 1969): Bannon Mills, Inc, 146 N.RB 611. 613, fn. 4. 633 634 (1964). Contrary to the Respondent. the General Counsel's refusal to pro- duce for inspection the written authorizations for these subpenas did not serse to oid the subpenas, as the authorizations. provided for in Section 102.31 of the NLRB Rules and Regulations and Statements of Procedure. Series 8, as amended. are merely ministerial and give rise to no substantive nghts. See Free-Fio,, Pckaging Corporation, 219 NLRB 925, 926 (1975). II. HE LABOR ORGANIZATION INVOLVED The Union is. and has been at all times material herein, a labor organization within the meaning of Section 2( 5) of the Act. 111. 11He UNFAIR LABOR PRACTICES A. Background The Respondent, engaged in the production of cement at its New Orleans. Louisiana, plant, operates 7 days a week with three daily work shifts. During the times relevant herein, Jim Johnston and Al Steagall were respectively. plant manager and assistant plant manager, A. C. (Red) Dillon was the production supervisor, Van Stockstill the control supervisor, Lowell Juckmon the maintenance super- visor, and Earl Allen the repair supervisor. In accordance with the agreement of the parties, I find all of the foregoing to be supervisors within the meaning of Section 2(1 1) of the Act. As a result of the efforts of Loyde Thomas and William Walker, who, on about September 23, while employed by the Respondent, began to solicit employee signatures on union authorization cards. the Union. on February 21, 1978. filed the petition for a representation election in Case 15-RC-6252, and a stipulated election was pending at the time of the hearing.' B. Alleged Acts of Coercion, Restraint, and Interference Employee Michael Allen' testified that in mid-Septem- ber, production supervisor Red Dillon approached him in the Respondent's yard and asked if he knew anything about union cards being passed out. When Allen replied that he did not, Dillon nodded his head and walked on. Robert Patrick' testified that in late September, while he was near the railroad tracks on the Respondent's premises, Assistant Plant Manager Al Steagall came by and joked about working on the railroad. He then remarked, also in a jocular manner, that when Patrick got to be a union stew- ard he would not have to work on the railroad. Steagall then asked how long it would be before Patrick and the others finished repairing the tracks, because the Company had to put its boxcars on them as soon as possible. Patrick interjected that he needed a union card. Steagall, in turn, asked if Patrick knew who was passing the cards out; maybe Patrick could get him one. Patrick replied that he 3 The agreed unit referred to in the election stipulation was as follows: All production and maintenance employees, including janitors and truckdrivers. employed by the Respondent at its New Orleans. Louisi- ana, plant, excluding office clerical employees. professional employees. guards and supervisors. as defined in the Act. Allen was employed by the Respondent from mid-February until his discharge at the end of October At Walker's request, Allen had signed a union card in September. Patrick, a long-time friend of dischargee Walker, was employed by the Respondent as a welder-repairman no. I at the time of the hearing. He earlier had been given the more junior position of w elder-repairman no 2 at the same time as Walker 537 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not know who was passing the cards out, and Steagall left. Jimmie Estes, testified that before Thomas and Walker were discharged, Control Supervisor Van Stockstill beck- oned to him and asked, "How about giving me one of those union cards?" When Estes asked what kind of cards, Stock- still replied. "You know. union cards. I hear they are going around." Estes told Stockstill that he did not know what he was talking about. Employee James W. Bounds, Jr.,7 described several con- versations he had had with Steagall concerning the Union. In September Steagall. in their first such conversation, asked if Bounds had heard anything about the Union. Bounds replied that he had heard only rumors. Steagall. 7 to 10 days later, again asked if Bounds had heard anything more about the Union, if he had seen any union cards, and if he had any in his possession. Bounds asked Steagall what it was worth to him. Steagall replied that Bounds had two written warnings in his file, which Steagall would take and destroy. Steagall told Bounds that he would not have to say anything; all he had to do was shake his head if Steagall was correct. Steagall then named Walker and Thomas. Bounds testified that he had nodded his head affirmatively. Steagall then left.8 During the next day, when Steagall and Bounds were again alone, Steagall declared that something was going to happen in the near future that a lot of people were going to like and lot of people were going to dislike. Bounds testified that a few days after this conversation Thomas and Walker were discharged. In October, after Walker and Thomas were terminated, Steagall in another private conversation with Bounds told him that anything to do with the Union would be "damn serious." there were going to be a lot of changes made and possibly a lot of heads would roll as a result. He told Bounds that he had suggested to the Company that they cut up the plant and ship it to Alabama, where the Respondent had a quarry. In February 1978, Steagall informed Bounds that the Union had petitioned the National Labor Relations Board for a representation election, and during the following month, in a general conversation. Steagall asked Bounds if he knew that the lawyer representing the National Labor Relations Board was black. Bounds replied that he had not known this. Steagall continued that if his opinion was asked, he would tell "those people" that he did not want to say anything whatsoever against the Company. that he would tell those people that he was against the Union, and that he would speak so that everyone would know where he 6 Estes entered the Respondent's employ as a laborer in January and be- came a welder-repairman no. 2 in October. In September Estes signed a union card given to him by Thomas. At the time of the hearing. he was employed by the Respondent. 7Bounds, employed by the Respondent for about 8-1/2 years at the time of the hearing. worked as a dock crane operator. In September Bounds signed a union card at Walker's request. He was in the Respondent's employ at the time of the hearing. s he Respondent pursues a policy of progressive discipline under which employees received increasing periods of layoff for their first two offenses and were terminated automatically after the third infraction. Bounds related that as he already had two warnings. he had cooperated with Steagall out of concern for keeping his job. He never learned whether these warnings, in fact, had been removed from his files. stood. Bounds replied that he would rather not, because he had friends who were for the Union, and that he would rather keep quiet. Steagall replied that that was one way of doing it.9 Richard Ladner '° testified that, with other employees, he attended a series of meetings called by the Respondent dur- ing working hours where the Union was discussed. The first such meeting was conducted by Plant Manager Jim John- ston and Assistant Plant Manager Steagall on about March 14, 1978, and was attended by 60 to 70 percent of the Re- spondent's employees. At that meeting Johnston, reading a prepared statement, told the assembled staff that the Company had just reached an agreement with the National Labor Relations Board for a union election and that the Company did not want the Union in the plant. If the Union wanted a fight, that was what he was there for: to give them a fight. The second such meeting attended by Ladner was held in the lunchroom on March 23 and was presided over by Stea- gall and Dale Heineck, vice president of the Respondent's parent OKC Corporation. Steagall announced that he was going to read a statement but that if anyone had questions they should feel free to interrupt. Ladner testified that he interrupted Steagall's reading to ask if anything was going to happen to those employees who went to union meetings and were known to be for the Union. Steagall replied that the law provided that the Company could not discriminate against anyone for their union activities. Ladner persisted, telling Steagall that what he essentially was saying was that anyone who was known to be a union pusher or active in the Union could be fired. Steagall answered that after the election was over there was a good chance that anyone known to be for the Union or a union pusher would no longer be with the Company. Steagall then continued to read aloud the statement and the other matters raised there- after in that session related to employees' complaints. The Respondent contends that Ladner's testimony as to Steagall's responses at the March 23 meeting should not be credited, as employee Jimmie Estes, originally a witness for the General Counsel, testified when recalled by the Respon- dent as its only witness that although he, too, had been present at that meeting and had heard Ladner's questions, he could not remember Steagall's responses. Noting that Ladner, like Bounds, contrary to his own interest, had testi- fied against his employer, and that Estes' testimony does not actually contradict Ladner's account of the March 23 meeting, I find Ladner's testimony to be credible. 9 The Respondent argues that as Bounds did not tell the General Counsel about the subject matter of his testimony until a few weeks before the start of the hearing, well after the issuance of the complaint, his testimony is inher- ently unreliable, had not been relied on by the General Counsel in deciding to issue the complaint therein, and, presented as an afterthought, was not worthy of credence. Bounds' testimony, however, stands uncontradicted, and the Respondent's argument is essentially an invitation to speculate as to how the General Counsel might otherwise have attempted to prove her case, Noting that Bounds. still employed by the Respondent at the time of the hearing, did not further his own interest by his testimony, I find the explana- tion for his original reluctance to come forward because of a sense of gtilt at having contributed to the discharges of Walker and Thomas and his subse- quent decision to cooperate with the General Counsel out of contrition to be credible. '° Ladner, employed by the Respondent as a maintenance electrician. be- gan to work for the Respondent in August 1966 and was with the Respon- dent at the time of the hearing. 538 LOUISIANA CEMENT COMPANY From the foregoing. I conclude that the Respondent in- dependently violated Section 8(a)(l) of the Act by each of the following incidents: (I) By the mid-September interrogation of Michael Allen by production supervisor Dillon as to whether Allen knew anything about union cards being handed out. (2) The interrogation of Robert Patrick by Steagall in late September. when Steagall asked Patrick if he knew who was passing out union cards and if he, per- haps, could get one. (3) Steagall's opening remark to Patrick at the start of the above-referred mid-September conversation, to the effect that when Patrick became a union steward he would not have to work on the railroad tracks. Al- though this was expressed in a easy manner, the state- ment was violative in that it tended to create in Patrick an impression that the Respondent, in the course of its strong antiunion campaign, was keeping his union sen- timents and activities under surveillance and that the Respondent considered him to be a union supporter. (4) The interrogation of Jimmie Estes by control su- pervisor Van Stockstill, when the latter called Estes to him and asked Estes to give him 'one of those union cards.' (5) Steagall's inquiry to Bounds in September as to whether Bounds had heard anything about the Union constituted unlawful interrogation. (6) Steagall's inquiry of Bounds approximately I week later as to whether Bounds had heard anything more about the Union was similarly violative of the Act. (7) Steagall's questioning of Bounds during the con- versation referred to above, as to which employees were actively organizing for the Union, was unlawful interrogation. (8) Steagall's offer to remove and destroy the two warning slips in Bounds' file if Bounds would confirm the identities of the employees principally active in or- ganizing on behalf of the Union represented an offer of benefit for assisting the Respondent in its unlawful sur- veillance of the union activities of its employees and, accordingly, also was an act of surveillance. (9) Steagall's statement to Bounds in October that anything to do with the Union would be "damn seri- ous," there were going to be a lot of changes made, possibly a lot of heads were going to roll as a result of this and Steagall's later remark that he had suggested to the Respondent that they cut up the plant and ship it to Alabama constituted, respectively, threats of dis- charge and of plant closure or relocation because of the union activities of the Respondent's employees. (10) Steagall further unlawfully threatened employ- ees with discharge for their union activities during a staff meeting called on March 23, 1978, when, in re- sponse to questions put to him by Ladner., he stated that there was a good chance that when the (represen- tation) election was over employees who were known to be union pushers or active for the Union would no longer be with the Company." C. The Discharge of William Walker Facts and Conclusions Walker was employed by the Respondent as a welder- repairman no. 2 when discharged on October 5. He and Robert Patrick had obtained this classification without ex- amination in February 1976, through job bidding." On about September 22, Walker and Loyde Thomas went to the Union's hall, where they spoke to union repre- sentatives about certain conditions in the Respondent's plant which they deemed undesirable and received a quan- tity of authorization cards. Walker signed a card himself, and, starting the next day, he solicited employees' signa- tures on these cards at various places on the Respondent's premises, including the lunchroom, yard, and parking lot. Walker testified that before being terminated he had dis- tributed about 50 cards in this manner. Walker testified that on Sunday, September 25, soon af- ter finishing work for the day, he stopped at a tavern in the vicinity of the Respondent's plant. There, he was joined by Control Supervisor Van Stockstill, who had a beer with him. During their conversation, Stockstill asked Walker who was passing out union cards. Walker asked, "What union cards?" Stockstill laughed and told Walker that he knew what he was talking about. Walker replied that if he found out who was passing out union cards, he would get and sign one. During their talk, Stockstill told Walker that he was better off as a welder-repairman no. 2 than in the higher paying job of welder-repairman no. I, which posi- tion maintenance supervisor Lowell Juckmon earlier had told him he would never have because he did not have any education." Walker would be spared the additional respon- sibility. Walker testified that on about September 25, production supervisor Red Dillon approached him at the no. I cooler where Walker then was working and told him, "Walker, when you get the Union in, you won't have to do this kind of work, will you?" When Walker asked, "What union?" Dillon laughed and walked off. When Walker reported for work on October 5, at about 8 a.m., he informed repair supervisor Earl Allen that he was supposed to return to the doctor for further eye care that morning.' Allen told Walker that before he went Lowell " Although Steagall's threats of discharge and plant closure or removal made to Bounds and the threat of discharge in response to Ladner's ques- tions at the March 23. 1978. meeting, described above, were not specifically alleged in the complaint,. such conduct is related to matters actually alleged and was litigated at the hearing to the extent that the Respondent, in any event, could have proceeded under the preclusionary rulings noted above, which would have served to prevent the Respondent from calling Steagall as a witness. This was because the Respondent had refused to produce Steagall and certain other supervisor) personnel pursuant to subpenas requiring their testimony dunng the General Counsel's case. See fn. 2. above. 12 Walker was initially hired b the Respondent in November 1968 as a sandblasting painter, which job he held for about 6 years, when he became an oiler. After 6 months the oiler job was eliminated. and he returned to painting. the position he held when he successfully bid on the welder-repair- man no. 2 position. it Walker could not read nor write. a While at work on October 1, Walker had gotten matenal in his eyes, for which he had been receiving medical care 539 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Juckmon, the maintenance supervisor, wanted to see him. Accordingly. Walker waited until about 8:30 a.m., when Allen finished sending his men to the job, at which time Allen accompanied him to Juckmon's office. As recounted in Walker's testimony, refreshed by his pre- trial affidavit, Juckmon told Walker that the Company was going to have to let him go because he had not upheld his contract to go to trade school after becoming a no. 2 repair- man. Walker replied that he had attended classes but could not get enough time off to go to school. When Juckmon told him that Rudy Delaney, a supervisor, and Robert Patrick, then still also a no. 2 repairman, had completed the school, Walker corrected him by pointing out that neither of these men had done so, as they had not been able to get sufficient time off, either."5 Juckmon reminded Walker that he could neither read nor write, to which Walker replied that his inability to do so had been on his job application at the time he had been hired by the Respondent and that during his 9 years with the Company its officials had known about this.' Juckmon also reminded Walker that he had told him that he would never become a no. I repairman because of lack of education. When Walker, however, stated that he could live on his pay as a no. 2 repairman, Juckmon re- peated that the Company was going to have to let him go. Walker was supposed to finish trade school and the C'om- pany had rules to go by. Walker asked that Juckmon give him a test for no. 2 repairman. iterating that he could pass it and, most likely, could also pass the test for no. I repair- man, as well."7 Juckmon, however, refused to let Walker take a test, repeating that the Company had certain rules and had to go by them. Walker had not held up his end of the bargain concerning trade school.l8 Walker proposed that Juckmon demote him to laborer, allow him to finish the trade school course and, if he then passed the test for no. 2 repairman, he could return to that job. Juckmon refused, repeating that they would have to let Walker go. Juckmon remained adamant although Walker reminded him that during the past 3 months he had worked as the only repairman on his shift, making all necessary repairs. Walker then stated that he realized that he was fighting a losing battle. Juckmon gave Walker his termina- tion slip, which. apparently in Juckmon's handwriting. noted the following as the cause of discharge: I The Respondent followed a policy of requiring that its employees, in- cluding welder-repairmen, work many hours of mandatory overtime. 1' Walker's job application. which had been prepared by his wife, did not, in fact, reflect Walker's inability to read and write. However, as he was not able to personally complete this document or verify its content, and as the Company most certainly in 9 ears had had ample opportunity to become aware of his illiteracy and its impact on his job performance, I do not find the foregoing omission from Walker's job application grounds for discredit- ing him. 17 Although, as noted, the Respondent did not require Walker and Patrick to take tests to qualify for their repairman no. 2 designations, tests were required for welder-repairman no. 1, and when Patrick later became a no. I repairman he passed the test for that classification. However, while still a no. 2 repairman Patrick was not required to pass a test in order to keep that job. As requirements were subject to change, welder-repairmen no. 2 appointed after Walker's discharge were required to pass a test, 1B Although Walker's pretrial affidavit contained references by Juckmon dunng this terminal interview to an alleged understanding with the Respon- dent that Walker was to have completed trade school to keep his no. 2 repairman's job, Walker consistently denied the existence of any such accord and had so informed Juckmon on October 5. W. Walker Dated 10 5 77 Did not comply with the agreement with Company to complete welding school. This was the reason he was made W/R-2 in the first place from a painter. Termi- nation due to noncompliance in holding up his end of the bargain. Walker. as noted, during most of his 9 years with the Respondent had worked as a painter. Before going to work for the Respondent, he had had minimal welding experi- ence, performing low-skilled welding in a shipyard for a 3- month period. During the 1-1/2 years that Walker and Pat- rick were welder-repairmen no. 2, neither had been re- quired to pass a test to get or retain that position. Also, as noted, Delaney was able to become and remain a supervi- sor, Patrick was able to advance to welder-repairman no. 1, and Jimmie Estes became a welder-repairman no. 2, all without completing welding trade school. From February 1976 until July 1977, Walker and Patrick were known as "belt men"" and principally were concerned with fixing belts on the Respondent's machines but also were expected to repair pumps, compressors, and all else that might require servicing. In this period, however, they did very little welding, although Walker had protested un- successfully to Steagall concerning his lack of opportunity to gain welding experience. This situation changed in July, when Walker was as- signed to work as the sole repairman on his rotating shift, after which he also did whatever welding was required dur- ing his shift. Walker was aware of no complaints concern- ing his job performance after July.2 0 From the record herein. I find that Walker was dis- charged for his activities on behalf of the Union. He was terminated within weeks after becoming the employee most active in organizing the Respondent's other employees for the Union and had been separately interrogated as to his union activities by supervisors Dillon and Stockstill. Both he and Thomas had been let go within a few days after Bounds, responding to Steagall's unlawful pressures, had specifically identified them to Steagall as the principal union activists. Walker's discharge also took place shortly after Steagall's statement to Bounds, in connection with the Union, that heads were going to roll and contravened the Respondent's policy of progressive discipline leading to dis- charge. The termination occurred while the Respondent was engaged in other acts of coercive interrogation, threat, surveillance of the union activities of its employees, and creating the impression of same, found unlawful above. '9 The Respondent's welder-repairmen nos. I and 2 were assigned to per- form specialized duties. 20 Walker testified that he possibly had received one written warning from a supervisor. Richard Cantrell. who 6 months to a )ear before his discharge had accused him of not returning a come-along, a device used to pull and hold together separated belt segments. Walker earlier had borrowed this item from Cantrell's section to make emergency repairs but was slow in returning it. Cantrell's efforts to fire Walker for this incident were overruled by Mau- rice Buoy, then the maintenance superintendent, who noted that Walker had worked on the necessary repairs conscientiously even through his lunch pe- nod and that the delay in returning the item had been justified. Buoy later told Walker that he had thrown Cantrell's subsequently filed written warning into the garbage. 540 LOUISIANA CEMENT COMPANY There is no merit to the Respondent's contention that Walker was fired for his failure to complete welder trade school or even for his inability to ultimately qualify as a welder-repairman no. I because of lack of education. The record contains no credible evidence that Walker's position as repairman no. 2 was contingent upon completion of trade school. Rather, the experience of DelaneN. Patrick. and Estes, as well as Walker, shows that the Respondent's policy of requiring extensive mandatory overtime work from its employees made completion of the school course most difficult, if not impossible.? As noted, the failure by those other individuals to complete trade school did not affect their careers with the Respondent in positions of equal and greater responsibility than that held b Walker. The Respondent's argument that Walker's lack of educa- tion affected his employability, made after 9 years on the job, also does not hold true. Significantly, the Respondent does not contend that Walker had not been perfoirming his duties satisfiactorilN. For the above reasons, I conclude that Walker was fired principally because of his activities and support for the Union. in violation of Section 8(a)(3) and (1) of the Act. I). The Di.scharge of Lovte Thomas Thomas' accompanied Walker to the union hall on Sep- tember 22 and. like Walker, took away with him a quantity of authorization cards for other employees to sign. Thomas began to distribute these cards among coworkers on about September 26. giving out 10 to 15 cards while going to and from work. As noted, he and Walker identified Bounds to Steagall as principal union activists shortly before their dis- charges on October 4 and 5. respectively. Thomas related that on October 4, at about 9:30 p.m., he was working at the claywash and had just filled his tank and changed from his work shoes to boots preparatory to cleaning that area when Steagall approached. Thomas greeted Steagall and asked if he was planning to give him a hand. Steagall, in turn, asked Thomas what he was doing. When Thomas replied that he was getting ready to wash the work area, Steagall asked how come the basement had not been cleaned. Thomas replied, in effect, that Red Dillon had ordered a stationary pump for permanent use and theN were waiting for its arrival." Steagall responded that he did not care about that and asked what was wrong with the big pump in the front area. When Thomas replied that Can- " Walker's workweeks extended up to 60 hours and sometimes longer. "Thomas, originally hired by the Respondent in August 1968, had been assigned as claywash operator for 7 years. At first Thomas washed clay on a part-time basis. but during his last 2 years with the Respondent he per- formed this work full lime. The claywash operators. one of each of the Respondent' three shifts, also were expected to clean the clays ash area and basement and facilitale drainage in the shell tunnels h) shoelehng out shells that had fallen from conveyor belts. Thomas. at the time of his termination. was assigned to work the 4 p.m.-to-midnight shift. a: Thomas' reference to the new pump had been based on a conversation that he and "Slim" [tans. a claswasher from another shift. had had with production supervisor Dillon a tew da)s before Thomas' discharge. At that time Dillon had told the two men that he as going io rder a new station- arx pump to be placed in their work area Such a pump could not he taken awas from Esans and Thomas and the) could do their work After some discussion. the men agreed on the best tipe oi pump for their needs trell. his supervisor, did not have enough men to help him get the big pump in place, Steagall informed Thomas that he earlier had told him to carry the water out with a bucket and if he could not do what he had been told to do, Thomas should shut down and go home. Steagall told Thomas that he was terminated and left the area. Thomas turned off his equipment, checked in his gear, and departed from the Company's premises. On the next morning, at around 9:30. Thomas returned to the plant and asked to speak to the Respondent's district manager, who, in turn, referred him to Jim Johnston, the plant manager. In the latter's office. Thomas told Johnston that he did not understand why he had been terminated and wanted to speak to him for a few minutes to find out what had gone wrong. Thomas stated that he had worked hard at his job for 12 hours a day for the past 3 months with no time off. had worked hard to keep his job, liked his job, and did not understand what had happened. Johnston replied that the Company had to keep the plant clean and it was paying employees good money to keep it cleaner that it was. Johnston then continued that he would tell Thomas what he would do. If Thomas would "play ball" with him. then he would "play ball" with Thomas. He would put Thomas on I month's suspension and, if all worked out all right, he would put Thomas back on the payroll. Thomas protested that he did not understand what Johnston meant by "playing ball." Johnston answered that a lot of people thought he was a fool. but he knew what was going on in the plant more than other people thought he knew. Thomas repeated that he did not understand what Johnston meant by playing ball. Johnston told Thomas that he was not being fair with him. The matter of playing ball was dis- cussed for a lew more minutes, after which Thomas stood up and asked whether he was going to work or was going home. Johnston repeated that if all worked out. Thomas should come back to see him in 30 days and Johnston would talk to him then. Thomas picked up his paycheck and termination slip and left. Thomas' termination slip noted as the reason for discharge that he had ignored orders given to him b the assistant plant manager." Thomas traced Steagall's reference to emptying the base- ment with a bucket to a meeting he and Slim Evans, the claywash operator from another shift, had had with Stea- gall and Mike McQueen. a yard foreman, in the foreman's office about 6 days before Thomas' discharge. On that occa- sion Steagall asked if they had cleaned out the basement. When Thomas and Evans replied that they had not, Stea- gall stated that it looked like "those boys" were going to have to carry it out with a bucket." It was approximately 2 days after the meeting with Stea- gall that Dillon told Thomas and Evans that he was going to order a stationary pump for their area and invited their comments on the type of pump that should be obtained. In addition to Thomas, the Respondent also employed two other claywashers. one for each shift. Claywashers cus- tomarily were expected to clean the basement once a 24 Although invited to see Johnston after 30 days. Thomas did not do so. explaining that he did not think hat it would do ans good. 2' The basement area that the cly3washers also were responsible for clean- ing was approximately 28 eet wide bb 38 feet long. On the night of Thomas' discharge, the water there was about 17 inches deep and had never before been removed b bucket. 541 DECISIONS OF NATIONAL LABOR RELATIONS BOARD month, but this was also necessary after heavy rains, when mechanics worked on the pumps, or when there was a big hole in the side of the claywash. The basement was usually cleaned by use of a motorized pump, fueled by gasoline, which was carried to the basement by two men when needed for that purpose. Thomas testified that no one previ- ously had been required to clean the basement with a bucket and that it would have taken 2 months to do the job in that way.2 It is concluded that Thomas' discharge, like Walker's, was unlawful and that the Respondent's stated reason, Thomas' refusal of an order, was pretextual. Steagall's di- rective to Thomas was both unprecedented and uneconomi- cal. As the water had been in the basement through Thomas' 3-week vacation period, it would appear that he alone of the three claywash operators had been singled out for discipline for the condition of the basement. In addition, Thomas apparently had been a satisfactory employee who during his 9 years with the Respondent had received no written warnings and whose work had been praised several times by Yard Foreman Mike McQueen." Noting Thomas' active role in organizing for the Union and the timing of his and Walker's discharges shortly after Steagall had learned from Bounds of their prounion activi- ties, in conjunction with Steagall's remark to Bounds that heads were going to roll over this, Johnston's invitation to Thomas when he tried to get his job back "to play ball" with him,2" and the numerous other unlawful acts of inter- rogation, surveillance, and threat involved in the Respon- dent's pervasive antiunion campaign, as found above, it is concluded that Thomas' discharge was also in violation of Section 8(a)(3) and (1) of the Act. E. Additional Acts of Coercion, Restraint, and Interference -Concluding Findings It is found that the Respondent further independently violated Section 8(a)(I) of the Act by the following conduct in connection with Walker and Thomas: I. Stockstill's coercive interrogation of Walker on Sep- tember 25 in asking him who was passing out the union cards. 2. Dillon's statement to Walker on September 26 that when Walker got the Union in the plant he would not have to do this kind of work, unlawfully created the impression that Walker's union activities and sentiments were under the Respondent's surveillance. 26 At the time of his discharge Thomas had been meaningfully engaged, as claywashing cannot continue when the tank in that area is filled, which, that night, occurred about 20 minutes before Thomas was discharged. At that time there was about 3 hours' worth of claywash cleanup work for Thomas to do when Steagall fired him for not cleaning the basement with a bucket. 27 As Thomas had received no earlier written warnings, his discharge was inconsistent with the Respondent's policy of progressive discipline. I do not find Johnston's offer to possibly reinstate Thomas after 30 days "if all this works out" to be tantamount to a suspension for that period rather than a discharge, as Johnston's apparently contingent offer, under the circumstances herein, was not made in good faith, Although Johnston did not directly name the Union, his remarks to Thomas, a known union activist, in the factual pattern of this case, about playing ball with him and John- ston's professed knowledge of what was going on in the plant could only have been references to the Union's campaign. Johnston's remarks were cal- culated to induce Thomas to abandon his support for the Union if he wished to ultimately regain his job. 3. Johnston's invitation to Thomas to "play ball" with him when Thomas was trying to get his job back, in the context of their conversation, constituted an unlawful in- ducement to Thomas to abandon his support for and activi- ties on behalf of the Union as a condition of regaining his employment. IV. THE EFFECT OF TlHE UNFAIR I.ABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, found to constitute unfair labor practices occurring in connection with the operations of the Respondent de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employees concerning their sympathies and activities and those of other employ- ees on behalf of the Union; by threatening employees that those who supported the Union would be discharged after the representation election; by threatening employees that the plant would be closed and relocated if the Union came in; by surveying and creating the impression among the employees that their union activities and sentiments were under surveillance; and by offering to reduce or to cancel past disciplinary actions if employees would abandon their support for the Union and/or identify to management those workers who were active in the union organizational cam- paign or who supported the Union, the Respondent has engaged in unfair labor practices in violation of Section 8(a)(l ) of the Act. 4. By having discharged Loyde Thomas and William Walker on October 4 and 5, 1977, respectively, the Respon- dent discriminated against employees in violation of Sec tion 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. v. ItHE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that the Respon- dent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Having found that the Respondent discriminatorily dis- charged William Walker and Loyde Thomas in violation of Section 8(a)(3) and (I) of the Act, the Order will provide that the Respondent offer to each of them immediate and full reinstatement to their former jobs or, if such positions no longer exist, to substantially equivalent positions, with- out prejudice to their rights and privileges, and to make each of them whole for any loss of earnings they may have suffered as a result of the discrimination against them by 542 LOUISIANA CEMENT COMPANY payment to them of a sum equal to that which each nor- mally would have earned, absent the discrimination, from the dates of their respective discharges to the dates of the Respondent's offers of reinstatement, with backpay and in- terest computed in accordance with the Board's established standards set forth in F W. Woolworth Companvy 2 and Flor- ida Steel Corporation. As the Respondent's conduct found unlawful herein goes "to the very heart of the Act." a broad remedy is war- ranted." Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 2 The Respondent, Louisiana Cement Company, a Divi- sion of OKC Corporation, New Orleans, Louisiana, its offi- cers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Coercively interrogating employees concerning their union activities, sympathies, and desires, and those of other employees. (b) Surveying or creating among employees the impres- sion of surveillance of their union activities and sentiments. (c) Offering to reward employees by canceling or reduc- ing disciplinary actions to induce them to abandon their support for the Union and/or to identify to the Respondent those other employees who have been active on behalf of the Union. (d) Threatening employees with discharge if they sup- ported the Union. (e) Threatening employees that if the Union comes in the plant will be closed and relocated. (f) Discharging and refusing to reinstate its employees in order to discourage its employees from being or becoming union members, supporting the Union, or engaging in con- certed activities. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaran- teed them by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer Loyde Thomas and William Walker immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions of em- ployment, without prejudice to their seniority or other rights and privileges, and make each whole for any lost earnings, with interest thereon to be computed according to the formula described above in the section entitled "The Remedy." 990 NLRB 289 (1950). 3231 NLRB 651 (1977). See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 1l N.L.RB. v. Entwistle Manufacturing Company. 120 F.2d 532. 536 (4th Cir. 1941). 32 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (c) Post at its New Orleans, Louisiana, location copies of the attached notice marked "Appendix B."T Copies of the notice. on forms provided by the Regional Director for Re- gion 15, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director for Region 15, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. t In the event that this Order is enforced by ajudgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NoTICE To EMPLOYEES POSTED BY ORDER OF HE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which we were represented by our attor- ney and presented evidence, it has been found that we have violated the National Labor Relations Act in certain re- spects. To correct and remedy these violations, we have been directed to take certain actions and to post this notice. WE WI.L. NOT question you concerning your activi- ties, sympathies, and desires as to United Steelworkers of America, AFL-CIO-CLC, or of the union activities and sympathies of other employees. WE WII.L. NOT spy or say anything to cause you to believe that we are spying upon your union activities, sympathies, or desires. WE Wlt.L. NOT offer to cancel or reduce disciplinary action taken against you, or offer any other benefit, to get you to stop supporting the Union or to get you to tell management about any employees who are active on behalf of the Union. WE WIL.L NOT threaten you with discharge if you support, work for, or vote for the Union. WE WILL NOT threaten you that we will close and relocate our plant if the Union comes in as your bar- gaining representative. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your rights under Section 7 of the National Labor Relations Act. 543 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WIll offer William Walker and Loyde Thomas immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiv- alent jobs. without loss of seniority or other rights and privileges, and WE WILL make each of them whole, with interest, for any loss of earnings suffered by rea- son of our unlawful discrimination against them. LOUISIANA CEMENT COMPANY, A DIVISION OF OKC CORPORATION 544