Reliance Steel Products Co.

730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD America, Local No . 328, International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain from any and all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8(a)(3) of the Act. WE WILL offer to Phillip L. Peterson, Evan Larson, Joseph Tripp, Michael Bergagnini, Robert L. Valerio, and Joseph Selle reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges , and we will make them whole for any loss of pay suffered as a result of their discharge or layoff. All our employees are free to become or remain or to refrain from becoming or remaining members of Teamsters , Chauffeurs, Warehousemen & Helpers of America, Local No . 328, International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, or any other labor organization. E. S. KINGSFORD, DOING BUSINESS AS KINGSFORD MOTOR CAR COMPANY, 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. Reliance Steel Products Company and District 50, United Mine Workers of America and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Metal Trades Division, Local Union 372, Interested Party Reliance Steel Products Company and District 50, United Mine Workers of America, Petitioner. Cases Nos. 10-CA-/660 and 10-RC-4889. January 31, 1962 DECISION AND ORDER On August 10, 1961, Trial Examiner Robert E. Mullin issued his Intermediate Report in Case No. 10-CA-4660, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto.' The Trial Examiner also found that the Respondent did not engage in certain unfair labor practices and 'The Respondent contends that the amended charges were solicited , or at least sug- gested , by a Board agent and that the Board cannot thus enlarge its own jurisdiction In agreement with the Trial Examiner we find that the amended charges were merely proper particularizations of the violations alleged in the original charge and thus do not constitute an enlargement of the Board's "Jurisdiction " Moreover, the Respondent made no allega- tion, and offered no evidence , of any specific Impropriety by any Board agent , and there was thus no "good cause" shown for the production of the NLRB Manual or the testimony of the Board agent. Hickman v Taylor, 329 U S. 495, 50,5-512 ; Goldman v. United States, 316 Ti S 129 , 132; N.L RD. v. Que8t-Shon Hark Brassiere Co., 185 F 2d 285, 289, 290 ( CA 2), cert denied , 342 U.S 812 . This case is therefore clearly distinguish- able from NLRB v Capitol Fish Company, 294 F. 2d 868 (CA. 5), reversing and remanding 126 NLRB 980. 135 NLRB No. 75. RELIANCE S`L'EEL PRODUCTS COMPANY 731 recommended that the complaint be dismissed with respect thereto. Thereafter, the Respondent filed exceptions to the Intermediate Re- port and a supporting brief. The General Counsel filed a brief in support of the Intermediate Report. Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on February 3, 1961, in Case No. 10-RC-4889. Of approximately 46 eligible voters, 21 cast valid ballots for the Petitioner, the Charging Party in the unfair labor practice case, herein referred to as District 50, and 22 cast ballots for the Intervenor, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Metal Trades Division, Local Union 372, herein referred to as Local 372. Three cast challenged ballots. On Febru- ary 14, 1961, the Petitioner filed objections to the election which were rejected because untimely made. On the same day the Petitioner filed unfair labor practice charges alleging violations of Section 8(a) (1), (2), and (3) which led to the present unfair labor practice proceed- ings. On May 17, 1961, the Board overruled two of the challenges. The two challenged ballots were cast for Local 372. As the alleged unfair labor practices affect employees in the re- quested bargaining unit sought in the petition, and in view of the consequent relationship of the issues in the unfair labor practice and representation proceedings, the Board hereby consolidates the two pro- ceedings for purposes of decision and remedy. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Mem- bers Rodgers and Leedom]. With respect to the unfair labor practices, the Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. With respect to the disposition of the representation case which has been consolidated with the instant unfair labor practice proceedings, it is clear that the unlawful assistance rendered Local 372 prevented the holding of a free and fair election among the employees. We shall therefore order the election set aside and direct the Regional Director for the Tenth Region to direct an election in the unit found appropri- ate when he is satisfied that the effects of the unlawful assistance, re- straint, and coercion have been dissipated and determines that a free and untrammeled election can be held 2 2 The Board will not, of course , presently certify Local 372 since it is an illegally assisted unjon . Paul M. O'Neill International Detective Agency, Inc , 124 NLRB 107, 170. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in Case No. 10-CA-4660, and pursuant to Section 10(c) of the Act, as amended, the National Labor Relations Board hereby orders that Reliance Steel Products Company, Cotton- dale, Alabama, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in District 50, United Mine Work- ers of America, or any other labor organization of its employees, by discharging or laying off any of its employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (b) Threatening employees with economic reprisals because of their union affiliations and activities. (c) Threatening employees with loss of employment or other re- prisals because of membership in or assistance to the union named above, or any other labor organization. (d) Threatening to discharge its employees for engaging in organi- zational activities and to close its plant if an organizational attempt succeeds. (e) Recognizing United Association of Journeymen and Appren- tices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Metal Trades Division, Local Union 372, as the representative of its employees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless the said labor organization shall have been duly certified by the National Labor Relations Board as the exclusive representative of such employees. (f) Giving effect to any agreement with the above-named labor organization respecting the employees at its Cottondale, Alabama, plant unless and until the said organization shall have been duly certified by the National Labor Relations Board as the exclusive rep- resentative of such employees. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist District 50, United Mine Workers of America, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for mutual aid or protection and to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from United Associa- tion of Journeymen and Apprentices of the Plumbing and Pipe RELIANCE STEEL PRODUCTS COMPANY 733 Fitting Industry of the United States and Canada, AFL-CIO, Metal Trades Division, Local Union 372, as the representative of its em- ployees at its Cottondale, Alabama, plant for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said labor organization shall have been duly certified by the National Labor Relations Board as the exclusive representative of such employees. (b) Make whole Kenneth M. Smith, Royal S. Tidmore, Jr., Ray- burn Collins, Melvin Burroughs, James Collins, Johnnie M. Johnson, Fred Harrell, and Roy Strickland, in the manner set forth in the section of the Intermediate Report entitled "The Remedy," for any loss of pay they may have suffered by reason of the Respondent's discrimination. (c) 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 all other records necessary to analyze the amounts of backpay due. (d) Post at its plant in Cottondale, Alabama, copies of the notice attached hereto marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent, be posted by the Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Tenth Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that paragraphs 8, 9, and 10 of the complaint be dismissed for failure of proof, insofar as they allege that on about January 16, 1961, Plant Manager George Aufman threatened the em- ployees that the Respondent would close the plant or would discharge them if District 50 were successful in its organizational campaign, or threatened that if that union won its campaign, there would be a strike because the Respondent would be unwilling to accept it as bar- gaining agent for the employees. IT IS FURTHER ORDERED that the election of February 3, 1961, in Case No. 10-RC-4889, be, and it hereby is, set aside, and that the rep- resentation proceedings be, and they hereby are, remanded to the Regional Director for the Tenth Region for the purpose of conducting 3In 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." 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a new election at such time as he deems the circumstances permit the free choice of a bargaining representative. 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 Labor Management Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in District 50, United Mine Workers of America, or in any other labor organization of our employees, by discharging or laying off any of our employees or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment. WE WILL make whole Kenneth M. Smith, Royal S. Tidmore, Jr., Rayburn Collins, Melvin Burroughs, James Collins, Johnnie M. Johnson, Fred Harrell, and Roy Strickland for any loss of pay suffered as a result of the discrimination against them. WE WILL NOT threaten employees with economic reprisals or loss of employment because of their union affiliations and activities or assistance to the union named above. WE WILL NOT threaten to discharge our employees for engaging in organizational activities and to close the plant if an organiza- tional attempt succeeds. WE WILL withdraw and withhold all recognition from United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL- CIO, Metal Trades Division, Local Union 372, as the collective- bargaining representative of our employees and will not recognize said labor organization as such representative, unless and until the said labor organization shall have been duly certified by the National Labor Relations Board as the exclusive representative of such employees. WE WILL NOT give effect to any agreement with the labor or- ganization named in the paragraph above, unless and until it shall have been certified in the manner stated above. 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 labor organizations, to join or assist District 50, United Mine Workers of America, or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for RELIANCE STEEL PRODUCTS COMPANY 735 the purposes of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities. RELIANCE STEEL PRODUCTS COMPANY, 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. Employees may communicate directly with the Board's Regional Office, 528 Peachtree-Seventh Building, 50 Seventh St: NE., Atlanta 23, Georgia; Telephone Number Trinity 6-3311, Extension 5357, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the Labor Management Relations Act of 1947, as amended, 61 Stat. 136, 73 Stat. 519, herein called the Act, was heard in Tuscaloosa, Alabama, on April 18 to 20, 1961, pursuant to due notice to all parties. The complaint, issued by the General Counsel of the National Labor Relations Board, and based on charges duly filed and served, alleged that the Respondent had engaged in unfair labor practices proscribed by Section 8(a)(1), (2), and (3 ) of the Act. In its answer, duly filed, the Respondent conceded that it was engaged in commerce within the meaning of the Act, but it denied the commission of any unfair labor practices. At the hearing all parties were afforded full opportunity to be heard , to examine and cross-examine witnesses , to introduce relevant evidence, and to argue orally. Oral argument was waived. A motion to dismiss for failure of proof, made by the Re- spondent at the close of the hearing , is disposed of as appears hereinafter in this report. Subsequent to the hearing, able and comprehensive briefs were submitted by the General Counsel and by the Respondent. These have been fully considered.' Respondent's Motion To Dismiss for Lack of Jurisdiction At the outset of the hearing the Respondent moved to dismiss the complaint on the ground that it set forth new matter unrelated to, and inconsistent with , the original charge, and that the amended charge on which the complaint was based had been solicited by the Regional Office . This motion, originally denied by the Trial Ex- aminer, was renewed by the Respondent at the close of the hearing. It is now denied for the reasons set forth below. The original charge, filed on February 14, 1961, alleged that the Respondent vio- lated Section 8(1), (2), and (3) of the Act by closing the plant on February 1, 1961, and directing the employees to attend a meeting of Local 372, as well as by "other acts and deeds of employers agents . " An amended charge, filed on March 8, 1961, alleged violations of the same sections of the Act, specified that alleged domi- nation of Local 372 had begun on or about November 28, 1960 , that 23 named employees had been discriminated against on and after dates that appeared in the charge beside their names, and that, further "by these and other acts and conduct the Employer interfered with, restrained and'coerced its employees in the exercise of their rights as guaranteed in Section 7 of the Act ." A second amended charge , filed on March 13, 1961 , contained substantially the same language as appeared in the first amended charge but listed only nine named individuals as having been discriminated against in regard to hire and tenure of employment . The complaint, dated March 21, i On July 5 , 1961 , the Trial Examiner entered an order , served on all parties , correct- ing certain errors in the transcript and allowing all parties 10 days to file objections and to move for the correction of any other stenographic errors contained in the record. None of the parties submitted any such motion . The aforesaid order has been marked as "Trial Examiner's Exhibit No . 1" and is hereby made part of the record. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1961, alleged that the Respondent violated Section 8(a)(1), (2), and (3) by various acts and conduct extending from November 1960 to February 1961. Whereas the original charge contained few particulars, it is clear that all of the violations alleged in the complaint "are of the same class of violations as those set up in the charge. ." National Licorice Company v. N.L.R.B., 309 U.S. 350, 369.2 The original charge with its allegations that the Respondent had violated Section 8(a)(1), (2), and (3) is neither inconsistent with, unrelated to, or at variance with, the allegations set forth in the complaint Insofar as the complaint alleges particulars not described in the charge, the Respondent's objection is answered by the Supreme Court in N.L.R.B. v. Fant Milling Company, 360 U.S. 301, wherein it said (at 307- 308): A charge filed with the Labor Board is not to be measured by the standards applicable to a pleading in a private lawsuit. Its purpose is merely to set in motion the machinery of an inquiry. N.L.R.B. v. I. & M. Electric Co., 318 U.S. 9, 18 The responsibility of making that inquiry, and of framing the issues in the case is one that Congress has imposed upon the Board, not the charging party To confine the Board in its inquiry and in framing the complaint to the specific matters alleged in the charge would reduce the statutory machinery to a vehicle for the vindication of private rights. This would be alien to the basic purpose of the Act. The Board was created not to adjudicate private contro- versies but to advance the public interest in eliminating obstructions to interstate commerce, as this Court has recognized from the beginning. N.L.R.B. v. Jones & Laughlin, 301 U.S. 1. In support of its contention that the amended charges had been solicited or sug- gested to the Charging Party by the General Counsel's agents, the Respondent served a subpoena duces tecum on H. Carlton Bryan, field examiner for the Tenth Region and Resident Officer in Birmingham, Alabama, to compel his presence as a witness and to require that he bring to the hearing all parts of the NLRB manual relating to ob- taining, soliciting, or accepting amendments to charges. Pursuant to Section 102.118 of Board Rules and Regulatioins, the Respondent requested written consent from the General Counsel that would permit Mr. Bryan to testify and to produce the sections of the Board manual in question. The General Counsel denied this request. At the hearing, a motion by counsel for the General Counsel to quash the subpoena duces tecum was granted by the Trial Examiner, in accordance with the provisions of Sec- tions 102.117(b) and 102.118 of the Rules and Regulations. In its brief, the Respondent renews the contention that it was prejudiced in not having the opportunity to cross-examine Bryan and to examine the NLRB manual. In this connection, it should be noted that at the hearing the Respondent made no effort to call any witnesses other than Bryan. Two field representatives of the Charging Party, A. Preston Hight and Edward L. Perry, entered appearances at the outset of the hearing and were present throughout most of the proceeding. The Re- spondent made no effort to call as witnesses either of these gentlemen nor, for that matter, any other representative of the Charging Party. Had the Respondent done so, and in so doing secured testimony in support of its contention, it could have renewed its request that Bryan be permitted to testify. Since the Respondent made no effort to call these representatives of District 50 to the stand, both of whom were so obviously available, it cannot now be heard to complain that it was denied an op- portunity to establish the invalidity of the charge. An examination of the charges filed in this case, as they are outlined above, dis- closes that those of later date differ from the original charge only in that they are more particularized as to alleged violations of the same sections of the Act . For this reason, it is my conclusion that, contrary to the Respondent's contention, the Company here did not make out a prima facie case of improper solicitation which the General Coun- sel was compelled to rebut. Peterson Construction Corp., et al., 128 NLRB 969. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent herein is a Pennsylvania corporation authorized to do business in the State of Alabama. It has an office and plant in Cottondale, Alabama, where it is engaged in the manufacture of metal gratings and steel fabrications. During the 12- month period preceding the hearing, the Respondent sold and shipped finished prod- ucts valued in excess of $50,000 from its Cottondale plant to customers located out- 2 See also N L R.B v Kohler Company, 220 F. 2d 3, 5-8 (C.A. 7). RELIANCE STEEL PRODUCTS COMPANY 737 side the State of Alabama. Upon the foregoing facts the Respondent concedes, and I find, that the Reliance Steel Products Company is engaged in commerce within the meaning of the Act. U. THE LABOR ORGANIZATIONS INVOLVED District 50, United Mine Workers of America , herein called District 50, or Union, and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Metal Trades Division, Local Union 372, herein called Local 372, are labor organizations within the mean- ing of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction and sequence of events The Respondent opened its Cottondale plant, the only operation involved in the present proceeding, in the fall of 1959. Actual production did not begin until January 1960. The number of employees was increased gradually during the course of the year and in the latter part of 1960 it had approximately 40 employees at work. In mid-December 1959 and at a time when it had only seven or eight employees the Respondent signed a contract with Local 372. The business agent for the latter organization was R. H. McConnell. Eleven months later, in November 1960, District 50 began an organizational campaign among the employees. On Novem- ber 28, the Respondent discharged three employees and laid off a number of others. Within from 1 to 3 days thereafter all of the employees who had been dismissed or laid off were recalled. On February 3, 1961, pursuant to a stipulation for certification upon consent election, a Board-conducted election was held at the Respondent's plant. This re- sulted in a vote of 21 for District 50, 22 for Local 372, and 3 challenged ballots. On May 17, 1961, the Board overruled two of these challenges. (Case No. 10-RC- 4889.) In their brief, counsel for the General Counsel state that the revised tally of ballots shows the vote to be 21 for District 50, 24 for Local 372, and 1 challenged ballot. It is undisputed that District 50 did not file timely objections to the conduct of the election. B. The evidence as to the alleged violations of Section 8(a) (3) of the Act; findings and conclusions with respect thereto About mid-November 1960, District 50 began an organizational campaign among the Respondent's employees. The first employee to become interested in this effort was Kenneth M. Smith, who until that time was the shop steward for Local 372. About November 23, Edward L. Perry, an organizer for District 50, held a meeting at his home which was attended by several of the Respondent's employees. Among this group, in addition to Smith, were Royal S. Tidmore, Jr., Rayburn S. Collins, Johnnie M. Johnson, and Melvin Burroughs. All of the foregoing signed authoriza- tion cards for the latter union at this meeting. November 24 was a Thursday. On that day and the next, Smith and Tidmore secured several signed authorization cards from their fellow employees. On Monday morning, November 28, the Respondent dismissed Smith, Tidmore, and Collins. Smith testified that when he reported for work that morning, Plant Superintendent Billy Joe West told him that the Respondent did not need him any further and thereupon handed him a check that paid him off in full. According to Rayburn Collins, that same morning West called him to the plant office, gave him a check, and told him, "You're fired. Get off the company's property." Tidmore testified that West discharged him that morning in the same peremptory manner. According to this employee, when he asked the reason for his dismissal West told him only that his work had been unsatisfactory. That same day Superintendent West told six other employees that they were being laid off immediately for lack of work. These were Melvin Burroughs, James Collins, Fred Harrell, Johnnie M. Johnson, Roy Strickland, and James Gladden. Strickland and Gladden were recalled to work the next day. The General Counsel alleged that the layoff of all except Gladden was discriminatory? The others were not reemployed until December 1. 3 The complaint originally included Gladden among the alleged discriminatees After the hearing opened, however, the General Counsel moved to delete Gladden from this list This motion was granted. 634449-62-vol. 135-4 8 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the evening of November 30, R. H. McConnell, business agent for Local 372, held a meeting for all the employees at the plant. The meeting was held at the union hall, but it was undisputed that all employees on duty at the plant that eve- ning were permitted to attend the meeting on company time and were paid for the hours that they spent there. Respondent's management actively urged the em- ployees to attend. Plant Manager George Aufman so advised several of the em- ployees.4 Superintendent West testified that he told the employees that the meet- ing was being held by their union and that they should attend "if they wished to." Bill Odom, leaderman for the night shift at the time, attended, along with the em- ployees.5 McConnell presided at the meeting. According to the credible and undenied testimony of many of the employees, the business agent for Local 372 told those present that all those laid off and dis- charged could go back to work provided the employees signed a petition which he then presented for their signature. This document read as follows: We the undersigned employees of Reliance Steel Corp. (Cottondale, Alabama) do hereby agree to accept and abide by the contract now in existence between Reliance Steel Corp. and Local Union #372 Tuscaloosa, Alabama, provided said contract is lived up to by employer and employees. According to Clarence Criss, McConnell "told us he had a slip of paper to sign, .. . because he talked to the guys and they was going to pick up and move out if we didn't get together." Melvin Burroughs testified that the business agent told them "that if we would go along with the way it was set up before we had any disturbance at all, . . . if we did we would go back to work Thursday morning. . . Ralph Hagood testified that McConnell told the men "those that were laid off could go back to work, provided we would sign this contract, this piece of paper agree- ing that we would go along with the present contract that we had." According to Kenneth Smith, the business agent told the men that "we could sign it [the petition] and go back to work, or we could not sign it and they would close the plant down. . . So we signed it, and he told us that the ones that had been fired and the ones that had been laid off could go back to work the next morning at the usual time." McConnell did not testify at the hearing in the instant cases Nor did any witness for the Respondent deny or contradict the testimony of the witnesses set out before. Criss, Burroughs, Hagood, and Smith were frank and straightforward throughout their examination and cross-examination on the subject of this meet- ing. Since their testimony was both credible and undenied, I find ,that the events at the meeting occurred substantially as they testified. On December 1, the morning after the meeting, all of the employees who had been discharged or laid off on November 28 returned, to work.? Other than Mc- Connell's announcement at the union meeting, the employees received no other notice that they could return to work. Nevertheless, the supervisory staff made no comments to these returning employees on this occasion and all of the latter resumed their usual duties immediately upon reporting for work that day. Prior to the hearing Superintendent Billy Joe West left the Respondent's employ. He appeared at the hearing as one of the principal witnesses for the General Counsels West testified that sometime between November 23 and 28 he learned of organizational activity on behalf of District 50. He described this knowledge as hav- ing come to him via what he referred to as the "grapevine." According to West, on November 25, Bill Odom, his brother, Burk Odom, and an employee named Davis appeared at his office. West testified that Bill Odom "asked me if I knew what was going on . he told me that this District 50 was planning to come in the shop, that there had been a representative in the shop soliciting possible member- * This finding is based on the credible, undenled testimony of Newton S. Martin and Jackie Butts, two witnesses still in the Respondent's employ. 5 The supervisory status of the leadermen , an issue in this case, is discussed below 9 During the bearing the Trial Examiner denied a motion by the Respondent to strike all testimony with respect to what McConnell said or did at the meeting on November 30. In its brief, the Respondent renewed this motion. The motion is hereby denied C Fred Harrell had not attended the meeting and did not come to the plant until December 2, when he returned to get what he presumed was his last paycheck. Super- intendent West informed him then that he could return at the beginning of the next workday, December 5. 8 There was no suggestion at the hearing by any witness for the Respondent that West's departure from the Company's employ was not on friendly terms. Throughout his appear- ance on the stand he testified in a fair and forthright manner and at no time displayed the slightest bias or rancor toward his former employer. RELIANCE STEEL PRODUCTS COMPANY 739 ship and so forth to hold an election, and he told me, I believe it was on the follow- ing Monday, that they intended to have this election." West further testified that Bill Odom named Royal Tidmore, Kenneth Smith, and Rayburn Collins as "leaders, or in other words, promoting this thing," that Smith and Tidmore had passed out cards and that Collins had "done some talking to some of the other employees in the plant." This concluded the discussion for the time being and the three in- dividuals left the superintendent's office. Shortly thereafter, and while West was conferring with Aufman about the information which Bill Odom had relayed to him, the latter returned. Then, according to West, "Bill Odom said . . . that he wanted to fire the ring leaders, including all he could find of them, maybe a half dozen men; and, so, I said then perhaps just the ring leaders themselves, if anyone was to be fired we could just fire the ring leaders, which these men had been named as Kenneth Smith, Royal Tidmore and Rayburn Collins." These conversations occurred on Friday. Plant Manager Aufman testified that on the following day he conferred by telephone with Leon Nagin, vice president of the Respondent, at the Company's headquarters in McKeesport, Pennsylvania. According to West, on Sunday, November 27, Aufman and Odom visited his home "and there Mr Aufman said the decision had been made that these three men would be fired, the men that had been named as the ring leaders, that they would be fired, and that we would lay off as many men as possible in reduction of force due to the fact that our work was slack at the shop at that time. We had some jobs held up . and the work at that time was slack in the shop, so that was the appropriate time maybe to lay these men off." West testified that on November 28 he dismissed Tidmore, Smith, and Rayburn Collins and, in doing so, told them that their work was "unsatisfactory." According to West ". . . that was the only reason I could give them . .. that was the reason I was told to fire them." At the hearing, West made no attempt to spell out any unsat- isfactory work performance on the part of these men. Instead he described Kenneth Smith as a "good worker in general," Royal Tidmore as a "steady man," and Rayburn Collins as a "good worker." Both Aufman and Odom testified at length as to the events which preceded the dis- charges. Neither contradicted West as to any of his testimony about the joint con- ferences which they had had. The did, however, testify that the real reason for the discharges was an excessive amount of talking on the job in which these three had engaged and that because of this conduct too much production was being lost in the plant. Aufman testified that on Sunday he concluded that ". . . in order to stop the men from congregating in different places in the shop and to get them to work again there was only one thing to do and that was to let these three men out. They were causing all the ,trouble." Aufman conceded that in his telephone conversation with Nagin he had probably told the Respondent's vice president that these three men "were trying to organize another union on the company's time." Immediately after the discharges and layoffs, Nagin arrived in Tuscaloosa, and spoke to the employees then on duty at the plant. Aufman testified at Nagin arrived on the evening of November 28 and, insofar as he could recall, talked to the men the following day. According to West, Nagin told the employees that the Company wanted good relations with the employees and that "if this good (relation did not exist and continue to exist that perhaps the Company would move the plant back to McKeesport or elsewhere, that ti ey would not operate under these [circum- stances]." West further testified that Nagin also mentioned the fact that the Re- spondent had a contract with Local 372, "that they did intend to honor this contract, and, in other words, they didn't feel that they were obligated to any other Union." West also testified that subsequent to the speech by Vice President Nagin, both he and Aufman made remarks similar to those used by Nagin in their discussions with some of the men in the shop on the subject of the company official's talk.9 6 Nagin did not testify. West's account of the speech and his testimony as to the substance of Nagin' s remarks was corroborated by Orville Boseman, Clarence Criss, William C. Moody, and Ralph Hagood. Aufman's recollection of the speech was, in most respects, corroborative of West. Aufman denied that Nagin had threatened the men or that he had mentioned any union other than Local 372 On the other hand, Aufman never denied West's testimony that Nagin had discussed the likelihood that the Cottondale plant would be moved. Bill Odom testified that he could not recall any such statement by Nagin. West was a credible witness throughout his appearance on the stand In view of the corroboration of his testimony by the employees mentioned above, all of whom were still in the employ of the Respondent at the time of the hearing, it is my conclusion that West's testimony is the more credible insofar as it conflicts with that of Aufman or Odom. Georgia Rug Mill, 131 NLRB 1304, 1305, footnote 2. 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On November 29 or 30 Nagin and Aufman met with McConnell to discuss the recall of those who had been discharged and laid off. According to Aufman, at some time on November 30, McConnell told him that he had arranged a meeting for the employees at which time he planned to "tell them that he had me convinced to put them to work, that I had agreed to put them back to work" and that he would "attempt to get peace and have these guys satisfied to work again by telling them that he came in there and got me to put them back to work." Aufman further testified that McConnell suggested that he be permitted to notify the men at the meeting of their recall "to give some force to his talking to the men.. . ." Accord- ing to Aufman, as a result of this request, McConnell "carried the message for me, really, to tell them [the men] to come back to work." 10 West testified that on that same day Aufman told him that the Respondent had agreed with McConnell "that they would put these men ,that were fired, also the men that were laid off, bring them back on their jobs in order to restore the faith and so forth of the Union and also of the Company, that they felt by doing this it would give the men more faith if they had some backing in the Union that they had and perhaps this other deal that they would have to get away from this, the other Union." Concluding Findings The General Counsel alleged that the discharges of Smith, Tidmore, and Rayburn Collins and the layoffs of Strickland, Burroughs, Harrell, Johnson, and James Collins were discriminatory. This was denied by the Respondent. From the findings set forth above it is clear that shortly after District 50 began its organizational campaign the Respondent's supervisory staff learned of this activity. Superintendent West acknowledged that soon after November 23 he acquired this information via the "grapevine." On November 25, Bill Odom brought him more concrete evidence that Smith, Tidmore, and Rayburn Collins were, as he put it, the "ring leaders" of the District 50 movement. This led to numerous conferences among the plant management that weekend and their contact by telephone with Vice Presi- dent Nagin at the home office in Pennsylanvia. As a result of these conferences, the Respondent's officials decided to discharge Smith, Tidmore, and Collins for "unsat- isfactory work" and to lay off several others for lack of work. Although Aufman and Odom endeavored to establish that these three had provoked a serious production problem by conversing with fellow employees on the job, their testimony in this con- nection was most unconvincing. Significantly, it was not corroborated by Superin- tendent West who conceded that he had no complaints against these three employees and described all three as "good" or "steady" workers. Very shortly after the dis- missals and layoffs on November 28, Vice President Nagin spoke before the ramaining employees to urge that they put forth their best efforts for the Company, to state that the management did not feel obligated to any union other than Local 372, and to predict that if good relations did not exist between the employees and the Company, the plant might be moved "back to McKeesport or elsewhere." The following day Plant Manager Aufman authorized Business Agent McConnell to notify the men that all those discharged and laid off could return to work the following day. In view of the activities of Smith, Tidmore, and Collins on behalf of District 50, the knowledge of these activities by the plant management, their identification by West and Odom as "the ring leaders" of the organizational campaign, the unconvincing character of the explanation for their discharge offered by Odom and Aufman, the conflict between the present management's explanation and the testimony of Super- intendent West, and the concession by West that Smith, Tidmore, and Collins were, in fact, good workers, it is my conclusion, and I find, that these three employees were dismissed on November 28, 1960, for their activities on behalf of Distract 50. In so doing, the Respondent violated Section 8(a)(3) of the Act. We turn now to the alleged discriminatory layoffs, effected at the same time as the discriminatory discharges discussed above. Strickland, it will be recalled, although laid off on November 28, was allowed to come back to his job on November 29. This employee lived a considerable distance from the plant and relied on a fellow em- ployee for transportation. Consequently, after West told him on the morning of November 28 that he was being laid off for lack of work, Strickland remained at the plant the Test of the day, awaiting a ride back to his home with one of the other employees who was still on the job. According to Strickland, about noon that day he approached West and told him, "I believed I knew why . I was laid off, because I signed a District 50 card. " Strickland testified 'that West did not reply but "just grinned and walked off and in about 15 or 20 minutes he told me to come back to work the next day." West did not deny or contradict Strickland's testimony 10 Aufman stated that the Respondent relied entirely on McConnell 's notifying the men of this decision and that it took no steps thereafter to get the word to them in another way. RELIANCE STEEL PRODUCTS COMPANY 741 as to this incident. West did testify as to this conversation with the employee, how- ever, and it is most revealing. Thus, according to Superintendent West, when Strick- land asked if he had been paid off for his activity in District 50 "I didn't give him any answer, because I wasn't at any liberty to tell him otherwise from what I had already told him, that he was being laid off because of reduction-in-force and ,the work." [Em- phasis supplied.] Odom testified that Strickland was recalled because a few orders had come in the shop that day. This testimony, however, was contradicted by West who gave no such explanation for the recall of Strickland and who stated that even when the other employees were recalled on December 1, production had not increased. On the morning of November 28 the Respondent had 42 employees, but the dis- charge or layoff of 9 men that day brought the number on the payroll down to 33. Plant Manager Aufman testified that on Sunday, November 27, he decided that there was not enough work for all the men, that seven or eight should be laid off, and that the selection of those to be laid off should be left to Superintendent West. As noted earlier, Aufman testified that on that same day he concluded that Smith, Tidmore, and Rayburn Collins should be discharged immediately for disrupting pro- duction. According to Aufman he decided that the only way that he would "break that hold up and get the production moving again was to fire these three men." Aufman's purported concern about a "hold up" in production, attributable to Smith, Tidmore, and Collins, seems inconsistent with an alleged lack of work that would dictate the simultaneous layoff of six other employees. It is true that there is evi- dence in the record that at this time the Respondent was delayed in its work on two substantial orders because the customers involved were undecided about certain changes in the engineering specifications for those contracts. On the other hand, Aufman testified that production on these two jobs was not resumed until long after all of the employees discharged and laid off were recalled on December 1.11 As noted earlier, West testified that on the latter date there had been no increase in production. The recall of the men, therefore, was unrelated to any new and sud- denly expanded need for additional personnel. In fact, as found above, Aufman agreed with McConnell that not just a few but all would be recalled and that the business agent for Local 372 would so notify the employees. At the union meeting where this was done, McConnell conditioned the return to work of all these em- ployees upon their signing a petition in which they agreed to abide by the contract which Local 372 had with the Respondent. Earlier that day Aufman had told West that he had agreed with McConnell on this course of action "in order to restore the faith and so forth of the Union and also of the Company, that they felt by doing this it would give the men more faith if they had some backing in the union and that they had and perhaps this other deal that they would have to get away from this . other union." [Emphasis supplied.] All of the laid-off employees had signed cards in District 50. It is not clear from the record, however, that West realized this when he selected them for termination. Regardless of this, however, it is apparent that their layoff was decided upon by the Respondent as part of the discriminatory maneuver that included the discharge of Smith, Tidmore, and Rayburn Collins. It is plain from the above findings, made upon undisputed testimony, that the recall of the men was effectuated without any regard to any lack of work, notwithstanding the claim that only 3 days earlier a lack of work had necessitated their layoff. It is my conclusion, and I find, in view of the above, that the recall of Strickland, Burroughs, Harrell, Johnson, and James Collins was arranged by the Respondent "to restore the faith" of its employees in Local 372 and without reference to any lack of orders or the resumption of produc- tion. Likewise, it is my conclusion that the layoff of these men, 3 days earlier, in the context set out above, was not because of a lack of work, as alleged by the Respondent, but because of a design to discredit District 50 and to discourage the employees,from joining that organization. Accordingly, I find, on the basis of these facts, that the layoff of Strickland, Burroughs, Harrell, Johnson, and James Collins was discriminatory and that by this action the Respondent further violated Section 8(a)(3) and (1) of the Act. C. The alleged violations of Section 8(a) (2) and (1); findings and conclusions with respect thereto 1. The supervisory personnel at the Respondent's plant It was undisputed that George Aufman and Leon Nagin, plant manager and vice president, respectively, of the Respondent, were supervisors within the meaning of n Thus, Aufman testified : "One job was finally released about four weeks after that [the date of the layoffs ] and the other one maybe six weeks after that . . The one job was released so long after that that part of it is still up at the galvanizer now." [Emphasis supplied.] 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act. It was similarly undisputed that Billy Joe West was superintendent from the date of his employment in the summer of 1960 until he left the Respondent's employment on January 3, 1961. West's successor was Bill Odom and the Re- spondent concedes that on January 4, 1961, and thereafter, Odom had supervisory status. At issue herein is the status of Odom prior to that date and also the super- visory aspects of the position of leaderman. At all times material the Respondent operated two shifts. The first, or day shift, consisted of two groups or departments, each of which was headed by a leaderman. The second, or night shift, was likewise headed by a leaderman. James Gladden and Burk Odom were the day-shift leadermen throughout the period in question. In November 1960, Bill Odom was the night-shift leaderman. Later, Wiley Weaver had this job. According to Weaver, he replaced Odom about December 25. The collective-bargaining agreement between the Respondent and Local 372 de- scribes leadermen as "foremen." Each works with a crew of from 13 to 18 em- ployees. Although the leaderman punches a timeclock, each day he reports a certain amount of his job time as chargeable to "supervision." Weaver testified that he reports an average of 2 hours a day in this category. The leaderman works along with the men on the crew, but he also assigns individual jobs to specific employees, helps lay out the job, and explains the job requirements. The leadermen have no discretion in changing plans or specifications and any differences between an em- ployee and his leaderman are resolved by the plant superintendent or plant manager, at least one of whom, during the day shift, is available at all times. It is undisputed that the leadermen have no power to hire, discharge, transfer, promote, or effec- tively recommend such action. Neither do they have power to allocate overtime, or discipline employees. They do not keep the time or payroll records of their crews. Each job carries a job ticket and each employee, including the leaderman, working on that particular job, charges his time to it. Leadermen are paid an hourly rate 10 cents higher than the highest rated employee in their crew. They are also paid overtime. However, other employees in the plant, such as machinists and maintenance men, may have the same or a higher rate. All of the foregoing evidence applies equally to the leadermen on both the day and night shifts. One other consideration, however, distinguishes the case of the night leaderman from that of the leaderman on the day shift. This is the fact that during a substantial portion of the time that he is on duty there is no higher man- agement representative present at the plant. The record discloses that, customarily, neither the superintendent nor the manager are at the plant after 7 p.m. It is true that they occasionally come to the plant at various hours during the night, but nor- mally the night leaderman is alone with his crew after the early hours of the eve- ning. This gives the latter a status somewhat different from the leadermen on the day shift, for although the night leaderman does not have the power to hire or discharge employees, or to effectively recommend such action, employees working in his crew consider him as their foreman.12 Weaver himself testified that when he was appointed night leaderman, Superintendent West introduced him to the em- ployees on that shift as the "new bossman." Since the night leaderman is responsible for his crew during a substantial portion of his shift when no other supervisory personnel are present in the plant, it is my conclusion, and I find, that while leadermen on the night shift, Wiley Weaver and Bill Odom held supervisory positions within the meaning of the Act. Southern Industries Company, et al., 92 NLRB 998, 1001; Phalo Plastics Corporation, 127 NLRB 1511, 1513. As this characteristic does not obtain as to the day-shift leader- men, it is my further conclusion that in the exercise of their duties they do not have the degree of independent judgment or discretion that would make them supervisors within the meaning of the Act. For this reason, I find that neither James Gladden nor Burk Odom were supervisors at any material time here involved. Odom was the first employee hired by the Respondent when it opened the plant in Cottondale. This was in October 1959. For several months the Company had only a few other employees and all of them were at work preparing the plant for production. Odom testified that he was "more or less the leader" of this group and the first shop foreman. After the plant went into operation in January 1960, Odom became acting superintendent, a post he held until about July 1, 1960. For a period of some 2 weeks thereafter a man named Turner was the plant superintendent, whereupon Odom again resumed the post of acting superintendent until early in August when West was appointed superintendent.13 Odom then became the night- shift leaderman and remained in that post until Weaver took over those duties in the 12 This, for example, was the testimony of Clarence N. Criss and Fred Harrell 13 These findings are based on the testimony of Plant Manager Aufman as well as that of Bill Odom. RELIANCE STEEL PRODUCTS COMPANY 743 latter weeks of December 1960. Thereafter, fora period of 2 weeks or less and until he replaced West early in January, Bill Odom was assigned maintenance work. These latter duties, however, did not constitute a demotion, for, Aufman testified, Odom continued to receive the leaderman's pay rate and "didn't lose anything." West resigned as the superintendent on January 3. The Respondent contends that Odom did not become superintendent in West's stead until January 4 and that until this latter date the Company cannot be held responsible for any of his utterances on the matter of labor-management relations. Odom himself, however, testified that for a day or two after West left and before anyone was actually appointed to the post of superintendent he (Odom) was the "acting" superintendent. Odom's testimony to this effect appears to reflect his true status in the Respondent's supervisory hier- archy at that time. Earlier, I have found that as night-shift leaderman, Odom held a supervisory position. In view of the above record of this man, most significantly the number of responsible supervisory posts he had held from the earliest period of his employment with the Company, the fact that he continued to receive a leader- man's pay after Weaver became night-shift leaderman on December 25, and the testimony of Odom himself that on January 3 he was the "acting" superintendent, it is my conclusion and I find that throughout the period from the latter part of December and until he was officially appointed superintendent, Odom was plainly identified with management in such a way that because of this apparent authority to speak for the Company the latter "may fairly be said to be responsible for his con- duct." N.L.R.B. v. Mississippi Products, Inc., 213 F. 2d 670, 673 (C.A. 5) (citing International Association of Machinists etc. (Serrick Corp.) v. N.L.R.B., 311 U.S. 72, 80); N.L.R.B. v. Solo Cup Company, 237 F. 2d 521, 523-524 (C.A. 8).14 2. Findings and conclusions as to the alleged violations of Section 8(a)(1) Several employees testified that in the month prior to the Board election held on February 3, 1961, Bill Odom made numerous threats and other comments against District 50 and in favor of Local 372. Fred Harrell testified that on January 3, Odom told him and several fellow employees "if a bunch of us didn't watch out about trying to get that new Union in a bunch of .us would be looking for another job. . Kenneth Smith testified that about 3 weeks before the election, Odom asked him if he thought District 50 would come into the plant and when he (Smith) answered in the affirmative, Odom declared, "Well it had. better not come in... . We are going to close the plant down if it does... .. According to Dorsey Palmer, about this same time, Odom told him that "if the Union went in, District 50 . . . the plant was liable to close down, that they couldn't afford that, that they would have to close." Roy Strickland testified that about 2 weeks before the election Odom told him that if District 50 came in the plant would probably move. According to Newton S. Martin and Ralph Hagood, shortly before the election Odom stated that if District 50 came in the plant would be shut down. Melvin Burroughs testified that a few days before the election he asked Odom if he really believed that the plant would be moved if District 50 won. According to Burroughs, the plant superintendent replied, ". yes, sir, they would move the plant and if it went on like it was going that he would go with the plant, that he wasn't worried .. . ." Carl Kent testified that during this same period he was present when Bill Odom told another employee that he would lay off the men if they voted for District 50. District 50 held a meeting for the employees a few days before the election. Several of them testified that Odom interrogated them as to their knowledge of the meeting and the identity of those present. Roy Strickland testified that on the day of the meeting Odom told him and Melvin Feltman that they should attend the meet- ing and report to him the next morning as to what occurred. Feltman, when on the stand, corroborated this testimony. According to Strickland, the following morning Odom asked him who had attended the meeting, and when Strickland named several of those present, Odom mentioned the names of several others who had been there. Arthur Hathcock testified that the day after the meeting Odom questioned him as to the names of those present. Hathcock mentioned several employees and Odom then inquired as to specific other individuals. According to Hathcock, when he told Odom that he could not recall whether the latter were present, the superintendent com- mented, "Well, it doesn't matter. I know anyway." Orville Boseman was another 14 In their brief, counsel for the General Counsel urged that it must also be held that if Gladden and Burk Odom were not supervisors they were at least agents of the Respond- ent. I disagree. Neither one had held any position with supervisory authority and neither one had ever been closely identified with the management in a manner that even remotely resembled the case as to Bill Odom. 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee who testified that the morning after the meeting Odom sought him out to inquire as to the identity of the employees who had attended. Odom denied generally that he had interrogated the employees as to the union membership, activities, and desires, either of themselves or of other employees. He also denied telling the employees that they should attend the District 50 meeting and then report back to him. He could not recall having discussed the matter with sev- eral of the above employees. As to the conversations on the subject with Hathcock and Strickland, Odom testified that it was those employees, and not he, who opened up the subject of attendance at the District 50 meeting. At the time of the hearing most of the employees who testified as to the foregoing incidents were still in the Respondent's employ. They were subjected to a vigorous and intensive cross- examination by able counsel for the Respondent. Notwithstanding this, they were unshaken as to their testimony as to Odom's remarks and his interrogation. Most persuasive in this connection were Hagood, Harrell, Strickland, Burroughs, Martin, Palmer, Hathcock, and Kent. On the other hand, Odom's denials that he had made the remarks atributed to him did not have a similar air of conviction. For this reason, it is my conclusion that the testimony of the employees as to this period is the more credible and I so find. Accordingly, I find that as set out above, during January 1960 Bill Odom threatened the employees with discharge if they supported District 50 and if they voted for it in the election, threatened that the plant would be closed, or moved, if District 50 won the election, solicited the employees to engage in surveillance of a District 50 meeting and report to him as to what occurred, and interrogated several of these employees as to the names of those employees in attend- ance at a meeting of the latter union. By the conduct of Odom, as set forth above, I find that the Respondent violated Section 8 (a) (1) of the Act. The General Counsel also alleged that on about January 16, Plant Manager Auf- man threatened the employees with discharge or removal of the plant if District 50 won the election and further threatened that if that union was successful in its organizational campaign there would be a strike because the Respondent would not bargain with it. It was undisputed that on January 16, Aufman and Kenneth Smith had had a conversation at the plant. During his direct examination Smith gave testimony which supported the General Counsel's allegation. Aufman, on the other hand, denied that he had made any such alleged threats. According to the plant manager, the conversation in question arose one night after it had been reported to him that Smith, who was then on the day shift, was contacting the employees at work that evening on the night shift. Aufman testified that he went out to the plant and called Smith to his office where he told Smith that he had no business at the plant during his off-duty hours and threatened him with discharge if he found him there again under similar circumstances . From the testimony of both Smith and Aufman it appears that at this point the conversation developed into a discussion of the objectives of District 50 and what its campaign claims had been. On cross- examination, Smith was asked a number of questions about this phase of the con- versation. His testimony during this portion of his appearance on the stand did not differ materially from that of the plant manager. In summing up the substance of this conversation, counsel for the Respondent asked him the following question and received the answer which appears below: Q. Didn't Mr. Aufman say that if District 50 came in there and made a lot of wild demands that in his opinion the plant wouldn 't stay there long, or words to that effect? . . . isn't that what he said? A. I believe so. From the above it will be seen that Smith's testimony on cross-examination did not fully support his own direct examination as to this incident . For this reason, and in view of Aufman's denials that he had made any of the alleged threats, it is my conclusion that the General Counsel has failed to prove by a preponderance of the evidence that on or about January,16, 1961, Plant Manager Aufman threatened the employees that the Respondent would close the plant or would discharge them if District 50 were successful in its organizational campaign, or threatened that if that union won its campaign, there would be a strike because the Respondent would be unwilling to accept it as bargaining agent for the employees.15 15 At the hearing the General Counsel elicited considerable testimony about a "sample" election which was allegedly conducted during working hours a few days prior to the Board election on February 3 Counsel for the General Counsel did not discuss this issue in their brief, so that it would appear that they have abandoned it. Insofar as the evidence on this matter is concerned , suffice to say that although it is clear that one Smith (not Kenneth Smith), then the steward for Local 372, about a week or two before RELIANCE STEEL PRODUCTS COMPANY 745 3. Findings and conclusions as to the alleged violations of Section 8(a) (2) The General Counsel alleged that the Respondent rendered unlawful aid and sup- port to Local 372. This was denied by the Respondent. Earlier herein, I have found that on November 30, the Respondent permitted its employees to attend a meeting of Local 372 during work hours, that supervisory personnel such as Aufman , West, and Odom urged and directed its employees to attend, and that the Respondent paid its employees for the time spent at this meeting. I have further found that Plant Manager Aufman agreed with Business Agent McConnell that at this meeting the latter would notify the employees who had been discharged and laid off for their activities on behalf of District 50 that they could return to work the following morning. With this authorization from the Respondent, McConnell subsequently informed the employees at the meeting that he had a peti- tion pledging adherence to Local 372 and its contract with the Respondent which the men "could sign ... and go back to work, or . . . not sign . . . and they would close the plant down." After securing their signatures to this petition, McConnell informed the employees who had been discriminatorily discharged or laid off that they could return to work the following morning. Aufman conceded that the Company relied entirely on McConnell's notifying the men of their recall and that it took no steps to get the word to them in any other way. It is true that if the agreement as to this matter had been reached by Aufman and McConnell as the result of bona fide bargaining, Local 372 could, unquestionably and without taint of illegality, carry the message as to their recall to the men. Here, however, the Respondent gave this authority to McConnell and then permitted him to make the recall of these men , who had been discriminated against for their activities on behalf of District 50, dependent upon their pledging adherence to Local 372 and its contract with the Company. By authorizing McConnell to exercise this function, the Respondent permitted him to arrogate to Local 372 the power to grant or deny recall to employees who had already been discriminated against for their activities on behalf of a rival labor organization. This was more than an effort "to restore the faith" of the men in Local 372, as Aufman told West. It constituted trenchant and unlawful assistance to the latter union . It is my conclusion, and I find, that the Respondent violated Section 8(a)(2) and ( 1), as alleged, by this conduct, as well as by permitting its employees to attend the meeting of November 30, 1960, during working hours, by paying its employees for time spent in attendance, by having Aufman, West, and Odom urge the employees to attend, and by the dis- criminatory treatment accorded the employees discharged or laid off on November 28 in order to discourage the organizational campaign of District 50. One further incident must be considered. On about February 1, 1961, and on the eve of the Board election, Local 372 held another meeting. Many of the employees testified that the management representatives again urged them to attend. Thus, Roy Strickland testified, credibly and without contradiction, that Plant Man- ager Aufman urged him to go to the meeting. Arthur Hathcock, Orville Boseman, and Clarence Criss testified that Superintendent Bill Odom asked them if they knew about the meeting and urged them to attend.16 Melvin Burroughs testified that it was Wiley Weaver, his night-shift leaderman, who notified him of the meeting. Weaver, a supervisor, actually attended the meeting. The Respondent did not pay the employees for the time spent at this meeting. However, the employees were told that any who wished to make up the time lost in attendance at this meeting would be permitted to do so. Orville Boseman testified, credibly and without contradiction, that at the meeting McConnell told the employees present that if District 50 won in the forthcoming election the Respondent would move its plant. This comment was a reiteration of the view to which Superintendent Odom , as found above, had given considerable currency during the preceding weeks in discussing District 50 with the employees. The General Counsel alleges, and the Respondent denies, that the Company rendered further unlawful aid to Local 372 in the above instance. It is my con- clusion, and I find, that in view of the pattern of unlawful support accorded that union in November, as set out above, it was a further violation of Section 8(a) (2) of the Act for the Respondent's plant superintendent to notify its employees of this the Board election solicited the employees to cast a vote for Local 372 In a straw ballot that he was conducting, there is no evidence in the record that any supervisor was present while Smith was engaged in this activity or had any knowledge of this conduct ie Odom denied that he told any of these employees about the meeting For the reasons set forth earlier, I do not find Odom a credible witness as to this matter and do not credit his denial 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting and urge their attendance, and also for the Respondent to arrange that those employees who wished could make up any time lost for their attendance at a union meeting held during working hours.17 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondent, set forth in section III, above, occurring in connection 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 affecting commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminatorily discharged Kenneth M. Smith, Royal S. Tidmore, Jr., and Rayburn Collins on November 28, 1960, and discnmmatorily laid off Melvin Burroughs, James Collins, Johnnie M. Johnson, Fred Harrell, and Roy Strickland on that same day, I will recommend that the Respondent make them whole for any loss of earnings they may have suffered by payment to each of them of a sum of money equal to that which the employees would have earned from the date of the discrimina- tory discharge or layoff to the date of the Respondent's offer of reinstatement, 18 less net earnings during said period. The backpay provided for herein shall be computed in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. I will also recommend that the Respondent, upon reasonable request, make avail- able to the Board and its agents, all payroll and other records pertinent to an analysis of the amount due as backpay. Since I have found that the Respondent Company, in violation of Section 8(a) (2) of the Act, unlawfully assisted and contributed support to Local 372, the effects of this interference, as well as the Company's continued recognition of that union as the bargaining representative of its employees, constitute a continuing obstacle to the free exercise by its employees of their right to self-organization and to bargain col- lectively through representatives of their own choosing. I will, therefore, recommend that the Respondent withdraw recognition from Local 372 as the representative of its employees and that it cease giving effect to any agreements with that union unless and until the latter shall have been duly certified by the Board as the exclusive repre- sentative of such employees.19 17 One further point must be considered The Respondent contends that the Section 8(a) (2) allegation must be dismissed since District 50, having proceeded to an election and not having filed timely objections, cannot now, having lost the election, accomplish the invalidation of the results by resort to an unfair labor practice charge For this argument the Respondent relies on Louis Aiello, et al, d/b/a Aiello Dairy Farms, 110 NLRB 1365, and related cases . Melvin Rupp, d/b/a Rupp Equipment Company, 112 NLRB 1315, 1318; Armstrong Tire and Rubber Company, Tire Test Fleet Branch, 111 NLRB 708, 709-710, enfd 228 F. 2d 159 (C.A 5) ; Franahester Corporation, 110 NLRB 1391 The contention would be apposite if District 50 had alleged a violation of Sec- tion 8(a) (5). Under those circumstances Aiello would be authority for dismissal of such an allegation. That, however, is not the issue, for here It was a Section 8(a) (2) charge which the complaining union filed subsequent to the election. The argument that Aiello applies to the latter type of situation was recently considered by the Board and rejected St. Louis Independent Packing Company, 129 NLRB 622, enfd 291 F 2d 700 (CA. 7) On the basis of this latter decision , I must, therefore, reject the same contention now advanced by the Respondent here i8 As found earlier herein, Strickland was reinstated on November 29, 1960 On December 2, Harrell first received word from the Respondent, through Superintendent West, that he could return on December 5, the beginning of the next workday All the other discriminatees listed above returned to work on December 1 19 In its brief the Respondent contends that the election held on February 3, 1961, was valid and that Local 372, having secured a majority of the tally, must be certified with- out delay. In view of the above findings and the conclusion that the Respondent violated Section 8(a) (2) of the Act in the period prior to the election, well settled Board law re- quires that an unlawfully assisted union cannot be certified until the effects of the unfair labor practices have been dissipated and the requisite atmosphere for a free election has been provided. The Great Atlantic and Pacific Tea Company, 101 NLRB 1118, 1120- 1121, Franchester Corporation, 110 NLRB 1391, 1394; cf. N L R.B v. Model Mill Com- NEWBERRY EQUIPMENT COMPANY, INC. 747 Since I have found that the Respondent by various acts interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in the Act and particularly because of the discriminatory discharges and layoffs, I am persuaded that the unfair labor practices committed are related to other unfair labor practices pro- scribed and that the danger of their commission in the future is to be anticipated from the Respondent's conduct in the past. Accordingly, in order to make effective the interdependent guarantees of Section 7 and thus effectuate the policies of the Act, I will recommend that the Respondent cease and desist from in any manner infringing upon the rights of employees guaranteed by the Act. May Department Stores d/b/a Famous-Barr Company v. N.L.R.B., 326 U.S. 376, 386-392. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Unions here involved are labor organizations within the meaning of the Act. 2. By discriminating in regard to the hire and tenure of employment of Kenneth M. Smith, Royal S. Tidmore, Jr., Rayburn Collins, Melvin Burroughs, James Collins, Johnnie M. Johnson, Fred Harrell, and Roy Strickland, thereby discouraging mem- bership in District 50, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 3. By granting unlawful assistance and support to Local 372 the Respondent has violated Section 8(a)(2) of the Act. 4. By frustrating the Section 7 rights of its employees to sel&organization and collective bargaining, the Respondent has violated Section 8(a) (1) of the Act. 5. The General Counsel failed to prove that on or about January 16, 1961, Plant Manager George Aufman threatened the employees that the Respondent would close the plant or would discharge them if District 50 were successful in its organizational campaign, or threatened that if that Union won its campaign, there would be a strike because the Respondent would be unwilling to accept it as bargaining agent for the employees. [Recommendations omitted from publication.] pany, Inc, 210 F. 2d 829 (CA. 6) ; N L R.B. v Howell Chevrolet Company, 204 F 2d 79, 86 (CA. 9). Consequently, I must recommend that the standard remedial provision for a violation of Section 8(a)(2) be applied Since this requires that the Respondent not recognize the unlawfully assisted union unless and until that organization shall have been duly certified by the Board, I must point out that this further means certified after a valid election. Under the circumstances present here, and in view of the unlawful assistance rendered Local 372, the election of February 3, 1961, must be held invalid and the results set aside. Newberry Equipment Company, Inc. and International Brother- hood of Boilermakers , Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO. Case No. ?6-CA-1101. January 31, 1962 DECISION AND ORDER On November 1, 1961, Trial Examiner Thomas F. Maher issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent has engaged in and is engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief, and the General Counsel filed a motion and a request for permission to reply to Respondent's exceptions. 135 NLRB No. 81.