Florida Steel Corp.

1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be delegated to them by the Union . Job Stewards and alternates have no authority to take strike action or any other action interrupting the Employer's business in violation of disagreement or any action in violation of law except as authorized by official action of the Union . The Employer recognizes this limitation upon the authority of Job Stewards and their alternates. . . In Local 560, International Brotherhood of Teamsters, etc. (Riss and Co.), 127 NLRB 1327, the Board, reversing this Trial Examiner, held that this exact clause ,had so limited the shop stewards' authority that any statement he made would be inadmissible against his union . Being bound by Board law , this Trial Examiner must, therefore , hold that this limitation upon the authority of Shop Steward Hunter .absolves Respondent in the Goetzman & Newman incident even though Hunter be assumed not to have been relaying orders from Cottit. Thus the Trial Examiner must hold that the Respondent did not violate the Act in the Goetzman & Newman incident and will , therefore, recommend that this part of the complaint be dismissed. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, the Trial Examiner makes the following: CONCLUSIONS OF LAW - 1. Local 317, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 2. Iroquois Door Company is engaged in commerce within the meaning of Section 2(7) of the Act. 3. Respondent Union has not engaged in any unfair labor practices within the meaning of the Act. The Trial Examiner recommends that the complaint in the instant matter be dis- missed in its entirety. Florida Steel Corporation (Florida Steel Products Division) and Herbert H. Metcalfe and Jack M. Dipolito . Cases Nos. 12-CA-1553-1 and 12-CA-1553-2. August 18, 1961 DECISION AND ORDER On January 16, 1961, Trial Examiner Sidney Sherman issued his Intermediate Report in the above-entitled proceeding, finding that the. Respondent had engaged in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain af- firmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed ex- ceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Leedom, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following modification : We agree with the Trial Examiner that the layoff .of Jack Dipolito on July 29, 1960, was discriminatorily motivated and was therefore 132 NLRB No. 90. FLORIDA STEEL CORP. (FLORIDA STEEL PRODUCTS DIV.) 1111 violative of Section 8 (a) (1) and (3) of the Act. But we find, con- trary to the Trial Examiner, that Respondent made a bona fide recall offer to Dipolito on September 20, 1960. Dipolito had obtained other work in the meanwhile, and testified that he did not reply to Re- spondent's recall telegram because he was not interested in the offer. He also testified that other factors influenced his action : the recall was for the undesirable third shift, and was for work as a welder in- stead of for a higher paying job of checker. The facts are, however, that Dipolito had worked the third shift at other times, including a period almost immediately before his layoff ; and he was neither work- ing as a checker at the time of his layoff nor had he been promised re- call as a checker. Another reason given by Dipolito for not respond- ing to the recall telegram was because he would have been required to take a physical examination, a requirement which indicated to him that he would be treated as a new employee. The evidence, however, establishes that it was company policy for laid-off employees to under- go a physical examination if they had obtained work elsewhere or had been away for 3 months or more. Accordingly, we find that Dipolito's layoff was discriminatory but that the recall offer which Respondent made was for a job substantially corresponding to the one from which he was laid off. For this reason we accept such portions of the Trial Examiner's recommendation as are consistent with our finding, but we shall not order Dipolito to be reinstated and we limit payment of backpay to the period of time ending with Respondent 's offer of recall. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Florida Steel Corporation (Florida Steel Products Division), shall: 1. Cease and desist from : (a) Discouraging membership in the United Steelworkers of America, AFL-CIO, or in any other labor organization of its em- ployees by laying off or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above named or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in any other concerted activities for the purpose of mutual aid or protection or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a 1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD condition of employment, as authorized in Section, 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Make Jack Dipolito whole for any loss of pay suffered as a re- sult of the discrimination against him, by payment of a sum of money equal to the amounts he would have earned from his layoff on July 29 to September 20, 1960, when he was offered reinstatement, less net earnings during the period. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary for the determination of the amount of backpay due under this Order. (c) Post at its plant at Tampa, Florida, copies of the notice at- tached hereto marked "Appendix." 1 (d) Notify the Regional Director for the Twelfth Region, in writ- ing, within 10 days from the date of this Decision and Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that Herbert H. Metcalfe was discrimina- torily discharged. IIn the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in United Steelworkers of America, AFL-CIO, or any other labor organization by dis- criminating in regard to the hire or tenure of employment or any term or condition of employment of any of our employees. i WE WILL NOT in any other manner interfere with, restrain, or coerce ' our employees in the exercise of their right to • self- organization, to form- a labor organization, to join the aforesaid labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any and all such activities. FLORIDA STEEL CORP. (FLORIDA STEEL PRODUCTS DIV.) 1113 WE WILL make Jack M. Dipolito whole for any loss of pay suf- fered as a result of the discrimination against him. All our employees are free to become, remain, or refrain from be- coming or remaining members of any labor organization. FLORIDA STEEL CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative ) . (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT This proceeding was heard at Tampa, Florida, on November 15 and 16 , 1960, upon the complaint of the General Counsel and answer of Florida Steel Corporation, here- inafter called the Respondent. The issues litigated were whether the Respondent vio- lated Section 8(a)(3) and ( 1) of the Act. The General Counsel and Respondent filed briefs after the close of the hearing. Upon the entire record and my observation of the witnesses , I hereby adopt the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Florida corporation , has its principal office and place of business at Tampa, Florida, where it is engaged in the fabrication and sale of iron and steel products . During the year ending September 16, 1960,1 more than $50,000 worth of goods and materials were shipped to Respondent 's Tampa plant from points outside Florida. Accordingly, I find that the Respondent was at all times here material en- gaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. H. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, hereinafter called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Chronology The complaint alleges that the Respondent discharged Herbert Metcalfe on July 26 and Jack Dipolito on July 29, that their discharges and the subsequent refusal to reinstate them were due to their activity on behalf of the Union, and therefore violated Section 8(a)(3) and (1) of the Act. The answer denies these allegations of the complaint. The Union in July 1959 launched a campaign to organize Respondent's employees (1) at the Florida Steel Products Division, located on Orient Road, sometimes referred to in the record as the "bar shop" or "rebar shop," and (2) at Respondent's- Electric Steel Mill Division, also located on Orient Road. Metcalfe, who was employed at the "bar shop," joined in this campaign about March 1, and as will appear in more detail later, soon became the outstanding proponent of the Union. About the same date, Dipolito, also employed at the "bar shop," signed a union card, and about March 15 Dipolito began to assist Metcalfe in his organizational activities. On May 4 Metcalfe, together with 40 other male employees of the bar shop, was laid off for economic reasons. Before his layoff, he had been employed as a checker, directing other employees in the loading and unloading of shipments. of steel products? Dipolito, who was similarly employed, was not laid off but was transferred to welding. On June 1 Metcalfe was rehired as a laborer at 45 cents an hour less than his pay as a checker. At about that time Metcalfe began to wear a union button in the plant. 1 This was the date of issuance of the complaint herein. Unless otherwise indicated, all dates refer to 1960. 2 Respondent at the hearing disclaimed any contention that its checkers are supervisors. 1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On July 5 Metcalfe was reinstated to his former job and rate of pay as a checker. In the morning of July 26 Metcalfe, disregarding a "no admittance" sign, entered the maintenance shop (which was adjacent to the bar shop) and used the restroom facilities there. At 2 o'clock, that afternoon, he finished work and during the next 2 hours he distributed union literature at the main entrance to Respondent's Orient Road operations, in connection with the Board election to be held the following day on the Union's petition to represent the employees at the Electric Steel Mill Division. About 4 o'clock that same afternoon Respondent sent Metcalfe a telegram notifying him of his discharge for rule violations in connection with his use of the maintenance shop restroom that morning. Early in July Dipolito began to wear a union button in the plant. On July 29 he was laid off, allegedly for economic reasons. On the same day the Board directed an election to be held on August 19 among the employees in the bar shop.3 On Sep- tember 20 Respondent sent Dipolito a wire offering him reemployment. He did not reply. B. Metcalfe As already related, between March 1 and the date of his discharge on July 26, Met- calfe became the leader of the union movement. His hat was festooned with union buttons, his car was bedecked with campaign slogans, he was chairman of an employee committee formed to aid the Union's organizational efforts, he distributed union liter- ature at plant entrances on at least 8 occasions, and, of the approximately 95 em- ployees in the bar shop, he personally induced 70 to sign union cards. The notice of discharge was sent to Metcalfe even while he was engaged in distributing union literature at a plant entrance the day before a Board election. The literature con- sisted of two sheets, one of which purported to contain facsimiles of the signatures of all the members of the employee committee, referred to above, and at the top of this sheet appeared Metcalfe's name with the designation of "Chairman." Certain alleged misrepresentations in this literature were the subject of objections filed by the Respondent with respect to the July 27 election.4 Dipolito testified without contradiction, and I find, that the day following the May 4 layoff, Brazelton, superintendent of the bar shop, asked Dipolito if Metcalfe had "put [him] on the dotted line." 5 It is evident from the context that this was in effect an inquiry whether Metcalfe had obtained Dipolito's signature on a union card. Metcalfe also testified, without contradiction, and I find, that about a week before his discharge, he met Brazelton near the scene of a union meeting, and the latter stated that he liked Metcalfe but did not know why they "were on opposite sides of the fence " 6 The conclusion is inescapable from the foregoing that for several months prior to his discharge the Respondent was well aware of Metcalfe's prominence in the union campaign and was not overly pleased therewith. In sum, if the Respondent were disposed to discriminate against any of its employees for union activity, Met- calfe was the logical target. That Respondent was so disposed is amply attested in my opinion by its treatment of Dipolito, which is discussed in more detail below? Nevertheless, I am constrained by the considerations set forth below to hold that the evidence does not preponderate in favor of a finding that Metcalfe's discharge was be- cause of his union activity. I do not find any disparate treatment of Metcalfe before his discharge. Metcalfe's layoff on May 4 and his subsequent recall as a laborer at reduced pay are not alleged 8 Case No. 12-RC-971. 4 Case No. 12-RC-918. The election was won by the Union On November 21 the Board issued supplemental decisions in both of the foregoing representation cases, certify- ing the Union. These decisions are not reported. 5 When asked at the hearing whether he had made this remark, Brazelton said, "I don't believe I did. I might have I don't remember if I did " 6The General Counsel also adduced uncontradicted evidence, which I credit, that within a few weeks before Metcalfe's discharge, officials of Respondent had occasion to notice Metcalfe's automobile parked near the plant and covered with union campaign slogans. On one of these occasions he was asked to move his car to a place where it would be less visible to the other employees. 7In view of this finding as to Respondent's union animus, it is not necessary to con- sider other evidence of such animus proffered by the General Counsel, specifically the Intermediate Report issued by another Trial Examiner on September 22, 1960, in Case No. 12-CA-1231, finding violations of Section 8(a) (3) and (1) by the Instant Respondent. In any event, as exceptions have been filed to this report, which are still pending, I have no alternative at this time but to reject the General Counsel's request that I take official notice of, and give evidentiary weight to, the findings in this report FLORIDA STEEL CORP. (FLORIDA STEEL PRODUCTS DIV.) 1115 by the General Counsel as violations of the Act.8 Metcalfe testified that when he was recalled as a laborer he was assigned to a machine which was located beneath a spot where the roof leaked during an ensuing rain . However, there was no evidence that the Respondent had any prior knowledge that there was a hole in the roof at this point, Metcalfe himself admitting that the hole was not visible to him. More- over, Metcalfe conceded that the Respondent made some effort, albeit ineffective, to keep the rain from dripping on his machine. It is undisputed that, after his 5-week stint as a laborer, Metcalfe was reinstated on July 5 to his former position and pay as a checker. Turning to the events which immediately preceded Metcalfe's discharge, it has already been related that early in the morning of July 26 Metcalfe used the restroom in the maintenance shop which was adjacent to the bar shop in which he was em- ployed and that the same afternoon he received a wire discharging him. The wire assigned as the reason for his discharge his violation of rules 2 and 5n. On July 5, the Respondent had posted throughout its operations a set of work rules, which contained the following: 2. No employee shall leave his work at any time without permission from his foreman or supervisor. 5. . . . Cause for discharge includes, but is not limited to the following: n. Leaving job without authorization, talking to or in any other way inter- fering with other employees which may prevent them from performing their work properly. This set of rules represented a collection of work rules which had previously been in force to varying extent throughout Respondent 's operations. Metcalfe admitted that he was aware of these rules and that he had violated rules 2 and 5n, as literally construed, by leaving his work area in the morning of July 26 to use the restroom in the maintenance shop, without his foreman's permission . He also admitted that as he entered the maintenance shop he saw a large sign reading "Garage Employees Only-No Admittance." 9 However, in extenuation of this conduct, the General Counsel offered the following testimony of Metcalfe as corroborated in part by that of Dipolito: (a) It had been the practice of Metcalfe and some other white employees in the bar shop to use the restroom in the maintenance shop . While there was a wash- room in the bar shop, itself, this was used by the colored bar shop employees,10 and the white employees resorted to it only on occasions which did not require use of the toilet stools. Where such use was involved, Metcalfe and other white employees availed themselves of the maintenance shop facilities . Although there was a restroom in the office building adjacent to the bar shop, Metcalfe never used that room because he thought it was reserved for the use of the office force.ii (b) As no one had ever reprimanded him for his foregoing excursions to the maintenance shop, Metcalfe felt, when he saw the "no admittance" sign on July 26, that it did not apply to him. As none of the foregoing testimony by Metcalfe and Dipolito was directly contra- dicted, I credit it.12 However, the crucial questions to be determined here are not B A charge filed by Metcalfe on account of his May 4 layoff was dismissed by the Regional Director. It is true that Dipolito was retained on May 4, although he was junior to Metcalfe However, Dipolito , unlike Metcalfe , had formerly been employed by Respondent as a welder, and he was restored on May 5 to welding. At any rate the General Counsel does not claim that the retention of Dipolito constituted discrimination against Metcalfe While Metcalfe was among the last to be recalled , I find that the order of recall was based on seniority. 9 There was considerable conflicting evidence as to whether this particular sign was first posted on July 26 , as Metcalfe testified , or a few days earlier, as Respondent contended Since Metcalfe admitted that he saw the sign before he entered the maintenance shop on July 26, I see no need to resolve this conflict. 10 Of the approximately 95 employees in the bar shop , only 8 or 9 were white 11 The reason for this belief was not explained by Metcalfe . Metcalfe admitted that he did not know whether the office restroom was customarily used by any of the production employees in the bar shop. 12 While Respondent adduced evidence that at a hearing before the State Unemployment Compensation Commission , Metcalfe testified that he had on a remote occasion used the 1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether Metcalfe thought his conduct was justified but rather (1) did the Respond- ent honestly believe that Metcalfe had violated its rules by entering the maintenance shop on July 26, and (2) if so, was that the reason for his discharge? As to (1), Respondent concedes that the literal requirement in its rules that em- ployees obtain permission of their foreman before leaving their work station did not apply to visits to the restroom. However, there is no evidence that Lewis or Brazelton (who, as found below, were responsible for Metcalfe's discharge) knew, before Metcalfe's discharge, of the reason for his visit to the maintenance shop. Moreover, even if it be assumed that they knew or suspected the reason therefor before the discharge, I find that they would still have been justified in believing that he was violating the rtiles quoted above. Respondent's witnesses testified, without contradiction, and I find, that the office restroom was available to all the white employees in the bar shop. In view of this fact, the Respondent was justified in believing, as it, in effect, contended at the hearing, that any implied authority Metcalfe may have had to leave work to visit a restroom did not extend to any restroom other than those in the bar shop, proper, and the adjacent office building,13 and, in any event, did not extend to the restroom in the maintenance shop after the posting of the "no admittance" sign on July 26. In view of the foregoing, I cannot conscientiously find that the evidence pre- ponderates in favor of a finding that the Respondent did not honestly believe that Metcalfe had violated one of its work rules by his visit to the maintenance shop or its restroom. It thus becomes necessary to consider next whether there is a preponderance of evidence that the Respondent discharged Metcalfe because of his union activity rather than because of its belief that he had violated a work rule. The Respondent's witnesses testified, and Metcalfe admitted, that when he was recalled as a laborer on June 1, he was warned by his immediate supervisor to stay by his machine. He admitted also that, when he was restored to his job as checker on July 5, he was admonished by Brazelton not to talk to other employees. Brazelton explained credibly 14 that the reason for this admonition was that it had been reported to him that Metcalfe had on past occasions spent an undue amount of time in conversations with employees outside the bar shop. Metcalfe was observed by Bernard, the maintenance superintendent, near the maintenance shop restroom early in July.15 Bernard testified credibly that, even before the posting of the "no admittance" sign on or about July 26, any visits to the maintenance shop by outsiders except on official business were forbidden,16 office restroom , I find that such evidence was based on a misinterpretation of Metcalfe's testimony at such hearing, and I credit Metcalfe's denial that he so testified. At the hearing Respondent offered in evidence as Respondent's Exhibit No 2 a copy of the decision of an appeals referee of the State Industrial Commission , relating to Metcalfe's claim for unemployment compensation , and finding that his discharge on July 26 was for misconduct . I rejected this offer at the hearing on the ground that the referee's decision was at that time still on appeal to the Industrial Commission , but indicated that any final ruling by the Commission might be submitted to me after the hearing and before issuance of my Intermediate Report. After the hearing the Respondent submitted a document purporting to be a copy of a decision of December 12 by the State Industrial Commission denying Metcalfe's application for leave to appeal from the referee's decision. As the General Counsel has filed no objection to the authenticity of this document, I have deter- mined to admit it into evidence as "Trial Examiner's Exhibit No. 1," and also to admit into evidence the previously rejected decision of the referee, which has now become final. However, I have not found it necessary to rely to any extent on these exhibits in disposing of Metcalfe's case. 13 The record shows that the office building restroom was about the same distance from Metcalfe's work area as the maintenance shop restroom. 141 have given no weight to Brazelton's testimony except where, as here, it is un- contradicted , or where it is corroborated by other credible witnesses . Brazelton was occasionally vague and evasive and testified , contrary to Bernard , that be had discussed with Bernard his July 26 memorandum . Bernard impressed me as a candid witness and I credit his denial of any such discussion with Brazelton. ss Bernard gave the date of this incident as July 14 Metcalfe fixed the date as July 6 or 7. It is unnecessary to resolve this conflict. 16 Bernard testified that before the "no admittance " sign referred to in the text was posted, be had placed smaller pasteboard signs at various points in the maintenance shop, but that these signs deteriorated under adverse weather conditions Although Dipolito denied seeing such signs during the period that he worked in the maintenance shop, he was unable to identify this period , other than that it occurred after the completion of the FLORIDA STEEL CORP . ( FLORIDA STEEL PRODUCTS DIV.) 1117 and that he had reprimanded employees for violating this rule. However, Bernard took no action against Metcalfe on the occasion of his visit to the maintenance shop early in July. Accordingly, up to this point Bernard's attitude toward Metcalfe appears to have been, if anything, more tolerant than toward other intruders. As already indicated, a few weeks after this incident, Respondent posted at the entrance to the maintenance shop the large "no admittance" sign observed by Metcalfe on July 26. Respondent's witnesses testified credibly that this sign was posted because of the disappearance of tools from the maintenance shop. Upon observing Metcalfe's visit on July 26, Bernard promptly sent a memo- randum to Brazelton, superintendent of the bar shop, advising him, in effect, that Metcalfe had spent about 15 minutes in the maintenance shop that morning on personal business. A copy of the memorandum was sent to Lewis, Respondent's vice president in charge of industrial relations,'' and was received by him shortly before 2 p.m. on July 26. Lewis promptly called Brazelton and asked him to investi- gate. After checking with the foremen in the bar shop, Brazelton reported to Lewis that Metcalfe had not been authorized to leave his work area. Lewis and Brazelton thereupon jointly arrived at the decision to discharge Metcalfe, and a wire to that effect was sent to him about 4 p.m. of the same day.18 At the hearing, Brazelton produced personnel records of the Respondent which showed, and I find, that other employees had been discharged during the past 2 years for leaving their work area without permission, the most recent such discharge occur- ring less than 2 months before Metcalfe's termination, and that such discharges had been effected, as in Metcalfe's case, on the same day as the violation.19 It appears from the foregoing that the Respondent has established that: (1) Lewis and Brazelton decided to discharge Metcalfe as soon as they had ascertained that he had twice, within a space of 3 weeks, left his work area without permission, despite at least one prior oral admonition against leaving his work station, despite the exist- ence of a posted rule specifying that such conduct was cause for discharge, and, on the last occasion, in disregard of a newly posted "no admittance" sign in the area which he visited, and (2) other employees had been discharged for like cause. In view of Metcalfe's unique position in the Union's campaign and the nearness of the July 27 election, the Respondent may well have welcomed the opportunity afforded it by Metcalfe's conduct to discharge him for cause. However, this alone is not enough to establish a violation of the Act. It is incumbent upon the General Counsel to prove in addition that Metcalfe would have been retained despite the July 26 incident but for his union activity. Such proof might have been supplied by showing, for example, that the Respondent had not disciplined nonunion employees under like circumstances, or that Respondent's supervisors had indicated that Met- calfe's union activity rather than the July 26 incident was the true cause for his dis- charge.20 No such evidence was presented here, nor does the record afford any other basis for the inference that Respondent would have condoned Metcalfe's conduct on July 26 had he not been the leader of the Union's organizing campaign. It follows maintenance shop . According to Bernard, the shop was completed in February 1960. As Dipolito was by his own admission a checker in the bar shop at the time of the May 4 layoff, his stint in the maintenance shop must have terminated before then. Since Dipolito's testimony therefore necessarily related only to the early part of the period that the maintenance shop was in operation, I do not deem it inconsistent with Bernard's testimony. 11 This memorandum stated that this was the third time that Bernard had observed Metcalfe in the maintenance shop. Bernard admitted at the hearing that it was in fact only the second time and that the memorandum was erroneous in that respect. However; Lewis credibly testified that Bernard orally corrected this misstatement, when Lewis called him concerning the memorandum about 2 p.m. on July 26. '8 The findings in this paragraph of the text are based on the mutually corroborative testimony of Bernard, Brazelton, and Lewis, which I credit. 19 Brazelton admitted however, that he had in other cases of unauthorized leaving of work asked the employees involved for an explanation but he had not done so in Metcalfe's case. This is a suspicious circumstance, permitting an inference of discriminatory motiva- tion. However, it seems equally permissible to infer that Brazelton deemed any interroga- tion of Metcalfe to be superfluous,in view of the following: Brazelton had Bernard's written report indicating that Metcalfe had spent about 15 minutes in the maintenance shop for 'personal reasons. Metcalfe had just left the plant at 2 p.m. upon the completion of his shift, and would not be available for question- ing until the next day. The bar shop foremen had denied authorizing Metcalfe to leave his job and the maintenance shop was clearly marked as a forbidden area. 20 Compare the situation in the case of Dipolito , discussed below. 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the General Counsel has not shown by the preponderance, of the evidence that the Respondent discharged Metcalfe because of his union activity.21 The General Counsel sought to adduce evidence of Metcalfe's union activity dur- ing the month following his discharge, contending that such evidence tended to sup- port the allegation in the complaint of an unlawful refusal to reinstate Metcalfe. However, Metcalfe did not apply for reinstatement and there was no evidence that it was the Respondent's practice to recall employees discharged for cause, nor any other evidence that Respondent would have recalled Metcalfe but for such subse- quent union activity. Accordingly, I find no proof of an unlawful failure to rehire Metcalfe. C. The layoff of Dipolito Dipolito was hired by Respondent in October 1958, as a welder. In November 1959 he became a checker in the bar shop at a higher rate of pay. He survived the mass layoff of May 4, and was assigned to welding in the bar shop, but without any reduction in pay.22 He continued as a welder in the bar shop until his layoff on July 29. He had joined the Union in March and was active on its behalf, distribut- ing union literature and attending union meetings. Early in July, he began to wear a union button at the plant. Dipolito testified that on July 29 Brazelton told him that the Respondent was "putting pressure on" Brazelton; that Brazelton said, "it was between me and another guy, and I was the one wearing the button so I was chosen, that was the reason I was chosen for layoff"; and that Brazelton then told him to report to the personnel office, where he received his final check, and was informed by the personnel manager that there was no other work for him. On September 20, after the instant complaint had issued, Respondent sent Dipolito a wire offering him reemployment, but he did not respond 23 Brazelton denied that he had made the foregoing remarks attributed to him by Dipolito. He testified that Dipolito was laid off because of lack of work and that, Mann, the only other welder in the bar shop, was retained because he had over a year more seniority than Dipolito. Brazelton testified, further, without contradiction, that he did not hire a replacement for Dipolito until after he had first attempted to recall him, as related above. On the basis of the foregoing, I find that on July 29 there was in fact insufficient work in the bar shop for two welders, and that Mann, the welder retained, had more seniority than Dipolito. I find further, on the basis of the testimony of Respondent's Personnel Manager MacLauchlan, that it was the policy of Respondent's plant super- intendents to select employees for layoff on the basis of seniority where ability was equal. However, I credit Dipolito's testimony that Brazelton told him, in effect, on July 29 that he had been selected for layoff because of his union affiliation. Dipolito, unlike Brazelton,24 impressed me as a straightforward witness. Taking Brazelton's statement at face value, I infer therefrom that he regarded Dipolito as more com- petent than, although junior,to, Mann, and would have retained Dipolito but for pressure from higher management to select him,for layoff because of his union affili- ation. m The procedure followed by the Respondent in connection with Metcalfe's discharge appears to have been more circumspect than that followed in other cases Thus, Bernard admitted that his July 26 memorandum to Brazelton was the first one he had ever em- ployed to report a rule violation, Brazelton could not recall consulting Lewis about any of the other discharges for violating the rule against leaving a job without permission, Lewis could not recall having previously participated in a management decision to dis- charge, where, as here, only one employee was involved , and Respondent's witnesses were, unable to recall any other instance where an employee had been discharged by telegram However, such circumspection seems to be adequately explained by the unique circum- stances of Metcalfe's case. In view of his outstanding role in the union campaign, and in view of the fact that he had already filed an, unfair labor practice charge against the Respondent as a result of his layoff on May 4, it is understandable that Respondent would take the precaution to reduce to writing any steps taken by it that might involve disciplinary action against Metcalfe and to channel any such action through top management. 22 As related above, Brazelton asked Dipolito on May 5 whether he had signed a union card. Dipolito gave an evasive answer = He had in the meantime obtained other employment. 24 As to Brazelton's credibility, see footnotes 5 and 14 , supra. FLORIDA STEEL CORP. (FLORIDA STEEL PRODUCTS DIV.) 1119 In view of this direct evidence of discriminatory motivation for Dipolito's layoff, I do not deem it necessary to evaluate the evidence in the record as to whether there was disparate treatment of Dipolito in failing to recall him to work in mid-August. Suffice it to say that on August 11 Respondent upgraded four colored laborers in the bar shop to welding jobs in the nearby forge division, and that conflicting ex- planations were offered by Brazelton and Lewis for failing at that time to recall Dipolito, an admittedly competent welder, who had on occasion served as welding foreman, to fill one of those openings.25 Accordingly, I find that the Respondent selected Dipolito for layoff because of his union activity, thereby violating Section 8(a) (3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminated with regard to the hire and tenure of employment of Jack M. Dipolito on July 29, 1960, the Trial Examiner will recommend that the Respondent offer him immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights 26 and make him whole for any loss of pay suffered as a result of the dis- crimination against him, by payment of a sum of money equal to the amounts he would have earned from the date of the discrimination to the date of the offer of reinstatement, less net earnings to be computed on a quarterly basis in a manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Earnings in any one particular quarter shall have no effect upon the backpay liability for any other such period. It will also be recommended that the Respondent preserve and make available to the Board, upon request, payroll and other records to facilitate the computation of the backpay due. As the unfair labor practices committed by the Respondent are of a character striking at the root of employee rights safeguarded by the Act, it will be recom- mended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of the Act. 2. By discriminating in regard to the hire and tenure of employment of Jack M. Dipolito thereby discouraging membership in the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] zs As already stated, Dipolito was not offered reemployment until September 20, a few days after the instant complaint had issued. The job offered him was on the least de- sirable third shift. 2e I do not regard the Respondent's wire of September 20 as a valid offer of reinstate- ment. The job offered Dipolito was on the third shift (11 p.m. to 7:30 a.m.). At the time of his layoff, he was on the more desirable second shift (3 p.m. to 11 p.m ). Dipolito testified, and I find, that this change in shifts was one of the reasons for his failure to reply to the wire. Lykes Bro8, Inc., of Georgia, 128 NLRB 570.