General Steel Industries, Inc.

ST. LOUIS CAR, A DIV. OF GENERAL STEEL INDUSTRIES 547 St. Louis Car, a division of General Steel Industries, Inc. and Ralph Johnson . Case No. 14-CA-2794. January 9, 1963 DECISION AND ORDER On October 23, 1962, Trial Examiner Jerry B. Stone issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent 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 attached Intermedi- ate Report. Thereafter, the Respondent filed exceptions to the In- termediate Report and a supporting brief.' 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 Leedom, Fanning, and Brown]. 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 Inter- mediate Report and the entire record in the case, including the excep- tions and brief, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner.2 1 The Respondent has requested oral argument. This request is hereby denied, because the record, the exceptions, and the brief adequately present the issues and the positions of the parties ' Backpay shall include the payment of interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing ct Fleeting Co., 138 NLRB 716. For the reasons stated in his dissent in that case, member Leedom would not award interest on backpay, and does not approve the award here. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon .the charges filed on June 4 and 12, 1962, by Ralph Johnson, an individual, the General Counsel of the National Labor Relations Board (herein called the Board), by the Regional Director for the Fourteenth Region (St. Louis, Missouri), issued his complaint dated July 13, 1962 , against St. Louis Car, a division of General Steel Industries, Inc. (herein called the Respondent). In substance the complaint alleged that the Respondent had discharged Ralph Johnson on May 29, 1962, be- cause he had complained to the Union about his terms and conditions of employment, that such discharge violated Section 8(a)(1) and (3) of the National Labor Rela- tions Act (herein called the Act), and that such conduct affected and was affecting commerce as set forth in Section 2(6) and (7) of the Act. Respondent's answer admits many of the facts pleaded in the complaint but denies the commission of any unfair labor practice. Pursuant to appropriate notice, a hearing was held before Trial Examiner Jerry B. Stone at St. Louis, Missouri, on August 20, 1962. All parties were represented at and participated in the hearing and were afforded the right to present evidence, to 140 NLRB No. 53. 681-492-63-vol. 140-36 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD examine and cross-examine witnesses, to offer oral arguments , and to file briefs. A brief filed by Respondent's counsel has been received and considered. Upon the entire record in this case and from my observation of the witnesses, the following findings of fact, conclusions of law, and recommendations are made. FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER As established by the pleadings and proof, I find that Respondent maintains a manufacturing facility and principal office at St. Louis, Missouri, where it is engaged in the manufacture and sale of transportation equipment. Respondent, in the course and conduct of its business operations at its St. Loius, Missouri, plant, ships goods and products valued in excess of $50,000 annually from said plant directly to States of the United States other than the State of Missouri. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATIONS INVOLVED The pleadings establish and I so find that United Steelworkers of America, AFL- CIO, and its Local 1055, are labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICE Introduction Ralph Johnson, the alleged discriminatee , was hired by Respondent sometime dur- ing the first part of May 1961 as a fitter-tacker Respondent's new employees are considered probationary employees for the first 25 days. Before the end of John- son's probationary period he was discharged on May 29, 1962. The events sur- rounding his discharge give rise to the instant case. Several days prior to May 28, 1962, the "water test" job had been placed under Foreman George Sexauer. This job involves the application of water to cars by the Respondent , and the inspection of the car for leaks. Work on the water test is normally assigned to employees with low seniority. The employees' pay for work on the water test is computed on straight time. Employees working on fitter-tacker work are paid on an incentive basis. On May 28, Alvin Sibille , Respondent's general foreman, told Sexauer that he would let him have two men, Johnson and Bishop, for work on the water test . These two men were currently assigned to work on the "roof jig." At 11 :30 a.m. Sibille told Ralph Johnson that he was being sent to water test.' The "Water Test" Assignment Sexauer, around noontime, sent Ralph Johnson to water test. Johnson asked Sexauer if the water test were daywork and Sexauer told him that it was. Johnson then told Sexauer that he could not "make it." The difference between "incentive basis" pay and daywork (straight time) involved a loss in weekly pay to Johnson.2 At the end of the workday, around 4:20 p.m., as Johnson and Fred Ray left the water test job, they saw Union Steward Robert Westmoreland and Ray asked if he were supposed to be on the job. Westmoreland replied that he did not know but would find out. Westmoreland, Ray, and Johnson then sought and found Foreman Sexauer, who was with General Foreman Alvin Sibille. Westmoreland asked Sibille if Fred (Ray) was supposed to be there. Sibille told Westmoreland that Ray's being there was a mistake. Sexauer stated that he had just become a foreman and had i Based on the credited, uncontradicted testimony of General Foreman Alvin Sibille Sibille additionally during his testimony said, "And about 11 30 in the morning I told Johnson I was going to send him down on water test, lie was the youngest man I had and he'd get the daywork." Sibille during his testimony appeared confused and his testimony, to a great extent, constituted a characterization of what occurred, and his reasons there- for. Thus, he stated he told Sexauer at 11 •30 to send Hines and Johnson, that Sexauer got mixed up and sent Ray and Johnson down, and that he saw Ray at 9 30 clown there From the record as a whole, my observation of Sibille as lie was testifying and Johnson's credited testimony that he asked Sexauer whether the work was daywork, I am convinced that Sibille did not inform Johnson that the work was daywork but rather that he was characterizing his undisclosed reason for sending Johnson to the water test. All credibility findings are made herein, in part, on the demeanor of the witnesses involved. 2 Based on the credited uncontradicted testimony of Ralph Johnson ST. LOUIS CAR, A DIV. OF GENERAL STEEL INDUSTRIES 549 made a mistake of identity. Westmoreland asked about Johnson and the water test. Sibille said in effect that Ralph Johnson was the youngest man he had and would be sent to water test. Johnson then asked if he would have to be on water test permanently. Sibille told Johnson that he would because he was the youngest man. He explained by saying, "I will put it this way, I have cars coming up for water test about once a week, the way it is running now, and unless it runs out of work, you will go down there." 3 Johnson's Complaint The group broke up, and Westmoreland stopped Johnson and asked if he was only complaining about working at "water test." Johnson then asked if water test was a fitters' job, and Westmoreland replied that the would find out. Johnson indicated that if he had to work at day rate of pay he would have to quit and find another job in order to pay his bills 4 Miscellaneous Conversations on May 28 Concerning Johnson's Complaint After Johnson had left, Westmoreland stopped Sibille, who was walking by, and told him of the foregoing conversation.5 Sibille remarked in effect, "What does he expect me to do, send the older men up there and have him on piece work? I don't like his attitude." Sibille stated in effect that he was pretty well "set" to let him (Johnson) go .6 After the conversation with Westmoreland, Sibille went to where Ralph Johnson's brother, Andrew Johnson, was working. Andrew Johnson's credited testimony as to what occurred is revealed by his answers to the following questions: Q Did you have any further conversation with Mr. Sibille? A. Well, regarding the brother you mean? Q. Regarding the brother. A. One day I was working on the scaffold and Mr. Sibille called me down off the scaffold. Q. When was this? A. It was around the 29th, I believe. Q. Of what month? A. May. [Continuing] He called me down off the scaffold and he told me, "I thought you said this boy was going to make me a good man?" I said, "Al, where he worked before, the people were pleased and thought he did all right." Al said the work was working out all right, but his mouth was too big, is all, he had been there 15 days and went griping to the union, and if he did that after 15' days, what would he do after the full probation. He said he hadn't made up his mind what to do. I said that was between him and you and that's about all there was to it. Q. You said this took place about May 29? 7 A. Yes. Andrew Johnson testified that Sibille had told him at an earlier date that Ralph Johnson was doing fairly well and proving out all right. According to the credited testimony of Westmoreland, Johnson met him later on that same day in the locker room and asked if he had found out anything as to the job classification, or if he (Johnson) had to do the day-rate work. Westmoreland 3 Based upon a composite of the credited testimony of Ralph Johnson , Westmoreland, and Sibille I accept Sibille's version as to his answer to Johnson and Westmoreland as to Johnson's work on the water test as being more complete and accurate 4 Based on the uncontradicted credited testimony of Robert Westmoreland c Supra, footnote 4. 9 Based on Sibille's uncontradicted credited testimony I do not credit Sibille's further testimony to the effect that Westmoreland had told him that Johnson was "threatening him" and that Johnson acted like a "nut." Ralph Johnson's uncontradicted credited testimony reveals that he in fact did not make threats against Sibille, and Westmoreland credibly testified that he did not tell Sibille that Johnson had been threatening him (Sibille ) and that he had not referred to Johnson as a "nut " As the question of whether Sibille believed he was threatened appears to be the prime factual issue , a discussion thereof is set out in detail in the section in this report designated as "Miscellaneous Credibility Findings." 7 Although Andrew Johnson testified that the conversation occurred around May 29, it is clear from the sequence of events that it occurred on May 28 . Sibille credibly testified that it happened on May 28 and I so find. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD replied that he had not found out, that they would have to see Union Committeeman Curt Sanders . Johnson and Westmoreland went to see Sanders and asked about Johnson's problem . Sanders stated that he would find out. Sanders, with Westmoreland following, headed toward the timecard rack and met General Foreman Sibille. According to Sanders' credited testimony he asked Sibille if water test were in the fitters classification, and was told by Sibille that it was, that they had "been doing it all the time over here." Sibille then asked who wanted to know and if it were Ralph Johnson . When Sanders described Johnson, Sibille said, "That's him." According to Sanders, Sibille appeared upset during the con- versation.' Sanders and Westmoreland then left. The Events on May 29 Shortly before 8 a.m. on May 29, Foreman Gary asked General Foreman Sibille for one man to finish the job on water test . Sibille told Gary to take Ralph Johnson. Gary then informed Johnson of his assignment . Johnson went to the locker room 9 Johnson saw Union Steward Westmoreland and told hun to drop the matter about the day rate inquiry because he was still in his probationary period , needed the job, and might lose his job if further action were taken . Westmoreland told Johnson that it was too late because Sanders had already seen Sibille, that Sibille was sore about it, and that Sibille was thinking of letting Johnson go anyway. The 8 a.m. whistle blew and Johnson went to work on the water test.i9 According to the un- contradicted credited testimony of Sibille , Westmoreland then came to him and said that Johnson was still "kicking up a fuss." ii Sibille told Westmoreland, "I have just about had it, I was really thinking seriously about letting him go." Johnson credibly testified that around 2 p.m. he needed an airhose and was told by Inspector Gary to get one. Johnson went to the tool crib and an employee stated that an airhose was not available but to see Sibille. Johnson then contacted Sibille,12 and told him that he was a hard man to keep up with, that he had been looking for him for a good hour, that an airhose had broken , that he had been told to get one at the tool crib, and that when he went to the tool crib , he had been told that they did not have one . Sibille told Johnson that he had been on the job, that Johnson was using an excuse to roam around , that there was another airhose, but it was being used. Sibille also told Johnson to use a garden hose, as it would work , and that he would get an airhose for him in the morning .13 Sibille shortly thereafter instructed Foreman Sexauer and Foreman Wells to fire Ralph Johnson.i4 Sibille told Sexauer that he was letting Johnson go because of his spouting off about assignments. 8 Westmoreland testified that "Al said lie was fed up with his complaints , he thought lie was going to get rid of him . I think Al said he had checked on him and lie had only been there 15 days and he was going to let him go , he didn't think he had been too good an employee, complaining as much as he had He was going to let him go before he got his time in and on the seniority list." Sanders testified additionally that Sibille said, "I have checked on him and he has been here 15 days and I am full up to there [ indicat- ing] with him ," or "I am getting rid of him," or "firing him tomorrow ." Sanders was not sure which statement was made I do not find that these statements attributed to Sibille were made It is clear, however , that Sibille was in an upset condition while talking to Sanders about Johnson. 9 Based on the credited uncontradicted testimony of Sibille 10A composite of the credited testimony of Ralph Johnson , Sanders , and Westmoreland. Sibille testified in effect that the foregoing occurred after the 8 a in. whistle I credit Johnson and Westmoreland to the effect that the last whistle blew during their conversa- tion Sibille apparently confused the 5-minutes-to-8 whistle with the 8 a in. whistle 11 The General Counsel did not elicit a denial of this from Westmoreland Sibille later testified as to the May 31 conversation that lie made reference to Westmoreland 's alleged statement of May 29 Sibille testified that Westmoreland denied having made the alleged May 29 statement in the May 31 conversation . Westmoreland's testimony concerning his statements on May 31 constituted a denial of the time of the water fountain conversation, but not a denial of his telling Sibille later that Johnson was still kicking up a fuss. 12 Sibille fixed the time as around 10 or 10.15 in the morning . In view of the timing of Sibille's instructions to Sexauer and Wells, and Sexauer's and Gary's conversation to Johnson as to his discharge, I find that Johnson's reference to time is more credible. 13 Based on a composite of the credited testimony of Ralph Johnson and Alvin Sibille. 14 Based on the uncontradicted credited testimony of Alvin Sibille. ST. LOUIS CAR, A DIV. OF GENERAL STEEL INDUSTRIES 551 The Discharge of Johnson Foreman Gary at 3:30 p m. instructed Johnson to get his tools and take them back to the steel plant and to see George Sexauer at 4 o'clock. At 4 o'clock Sexauer told Johnson that he had bad news for him. Johnson answered that he thought he knew what it was, that he was being fired. Sexauer then stated that it was none of his doing, that he was well pleased with Johnson. He said that Sibille had said to let Johnson go but that he had tried to talk Sibille out of firing him. Sexauer stated that Sibille had said that Johnson was done and that was it. Sexauer instructed Johnson how to check out and Johnson commenced checking out.is Union Steward Westmoreland saw Johnson at 4:25, and was told by Johnson of his discharge. Johnson asked Westmoreland whether he had seen Sibille. West- moreland said no and the two left by separate ways.16 Later Westmoreland walked up to Sibille and Foreman Highley who were in the shop aisle and told Sibille that Johnson was looking for him. Sibille stated that he did not care why he was looking for him, that he was on the floor and he did not worry why Johnson was looking for him. Westmoreland then stated that Johnson did not seem like anybody to monkey with, that he was nobody's fool.17 Around 4:30 p.m., Johnson contacted Luther E. Thorpe, chairman of the local union, and told him that he had been discharged. They discussed Johnson's status, and Thorpe told Johnson that he understood that he was a probationary employee. Johnson asked Thorpe to see if he could get the Respondent to take him back and the latter replied that he would try. Thorpe told Johnson to come in on May 31 (May 30 was a holiday) and he would see what could be done. Thorpe then contacted Personnel Manager Foelsch and asked if he knew that Ralph Johnson was terminated, had failed in probation. Foelsch said he knew nothing about it. Thorpe asked Foelsch to let him know if he heard anything on May 31. The Events of May 31 Johnson returned to the plant on May 31, and found his timecard still in the rack. He informed Thorpe of this. Thorpe asked if Johnson had received a total clearance (of things checked out). Johnson told him that he had not. Thorpe then told Johnson that evidently the Respondent did not intend to discharge him He told Johnson to punch in. Johnson punched in and went back to the water test job. Foreman Gary saw Johnson and asked him why he was there. Johnson told Gary that he came to work and saw his timecard in the rack. Gary stated that he had already been assigned two men to the job Johnson had been on and told Johnson to see Sexauer. Johnson went to Sexauer and asked if there were a chance of going to work. Sexauer told him no, that Sibille had seen him come in and had said not to let Johnson go to work. Johnson then went to see Union Chairman Thorpe. Thorpe told Johnson to wait in the locker room and that he and Westmoreland would see what they could do to straighten the matter out. Thorpe and Westmoreland sought Foreman Sexauer. Thorpe asked Sexauer whether Johnson had been a good worker, and Sexauer replied that as far as he was concerned Johnson was a very good worker. Thorpe and Westmoreland then went to the locker room and got Johnson and the three went to see Personnel Manager Foelsch. Thorpe asked Foelsch if he had heard anything about Ralph Johnson's termination. Foelsch told Thorpe that he had not and then said, "Let's find out." Thorpe, Foelsch, Johnson, and Westmore- land went to see General Foreman Sibille. Foelsch and Thorpe asked Sibille why he was letting Johnson go. Sibille told them that he did not think Johnson would make a good employee, that Johnson had threatened to quit and that he was let- ting him go. Sibille reminded Westmoreland of his conversation on Tuesday morn- ing to the effect that Ralph was still kicking up a storm. Westmoreland said that he had not said that, that he was not even there at the time. Sibille told West- moreland that he was there, that he had not left until 9:30. Westmoreland replied that Johnson had not threatened to quit, that Johnson had said that if he was going to stay on straight time he would have to look for something else due to his financial situation. Sibille then said, "Well, I seen him in front of the water cooler talking to you at 10 minutes after 8." Westmoreland then stated that he did not believe Sibille had seen him at that time because he was on the job at 8:05 and had injured his ankle about that time, had to go to the nurse, and had gone home. 15 Based on the uncontradicted credited testimony of Ralph Johnson 16 Based on the uncontradicted credited testimony of Robert Westmoreland. 11 Based on the credited testimony of Robert Westmoreland 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Westmoreland testified that he went to the nurse approximately at 8:30 and left for home at 9 or 9:15 am. During the conversation Thorpe requested that Sibille take Johnson back. Thorpe stated that he did not think it was quite fair, under the circumstances, to let Johnson go for talking to the shop steward, committee- man, and Sibille. Sibille stated, "No, I am"-and he made an indication toward his neck-"up to my neck with the man." Thorpe again stated that he could not see why Sibille should let a man go because he was talking something over with the shop steward and committeeman. During the conversation Sibille told Foelsch that Johnson had failed probation, that he was always griping about any job as- signment that did not have the incentive system attached to it. Thorpe asked Sibille if he were firing Johnson Sibille stated that he was letting him go and that was it. Thorpe then pointed out that Johnson would not be able to get unemployment insurance, and might not obtain work right away. Sibille stated that he was just letting Johnson go and that he would be able to draw unemployment insurance. Johnson then asked Sibille about the same matter and was told that he could check the records. Johnson left and finished checking out from the Respondent. Miscellaneous Credibility Findings Although Sibille's testimony in general does not contradict the foregoing. I do not credit certain additional testimony of his 18 The additional noncredited testi- mony of Sibille may be summarized as his statements alluding to (1) alleged state- ments by Westmoreland on May 28 to the effect that Johnson had threatened Sibille and that Johnson acted like a "nut"; (2) alleged statements by Westmoreland on May 29 (after Johnson's discharge) to the effect that Johnson was looking for him to beat him up; (3) alleged statements by Sibille to Sexauer to the effect that Johnson was being fired for spouting off and for threatening Sibille; (4) alleged statements by Sibille to Sanders, time undisclosed, to the effect that Johnson had been fired because Sibille "didn't like to have a man going to quit whenever I as- signed him something he didn't like, I didn't like to be threatened"; and (5) his alleged reasons for firing Johnson including his belief that Johnson had threatened him. As to the foregoing, Ralph Johnson's uncontradicted credited testimony reveals that in fact he did not threaten Sibille. Westmoreland credibly testified that he did not tell Sibille that Johnson had threatened him, and did not say that Johnson acted like a "nut." Westmoreland credibly testified that on the evening of May 29 (which was after Johnson had been discharged) he told Sibille that Johnson was looking for him and that Sibille had said that he did not care why he was looking for him, that he was on the floor and he did not worry why he was looking for him. West- moreland testified that he told Sibille that "the guy didn't seem like anybody to monkey with, he is nobody's fool." Sibille testified that Westmoreland said, "Did Ralph find you? He was looking for you," and that he (Sibille) said, "I have been here all day." Sibille further testified that Westmoreland said, "He's looking for you to beat the heck out of you," and that he (Sibille) said, "I'm right here on the floor. I never did see him." Foreman Highley testified to the same conversation as follows: I came in direct contact when Bob Westmoreland was telling Al that John- son had threatened him, something in effect, that he had threatened him, he was going to beat him up-something of that nature. Anyway, I took it he was going to beat him up, and he asked me if I had seen him, and that is where I got it. I was standing there as Al Sibille and Bob made the remarks and after saying that he said, "He's crazy enough to do it," that is where I came in, and that's about the extent of the thing, so far as hearing Bob's statement. On cross-examination Highley testified as follows: I was there working on this machine and Al had walked up and Bob, and I don't remember who else was there, but I remember Bob making this state- ment in Al's presence and my presence. He asked Al if Ralph had seen him and Al had said no. I don't know his exact words. I do know for sure he said Ralph had been looking for Al and he had threatened to beat him up, and he was crazy enough to do it. That is what he said. He used the word "Threatened." I believe he said something to the effect, if I recall correctly he said he'd made up his mind to let him go, he was thinking of letting him go, something of hurting him. I can't say exactly. 18 Based in part on my observation of Sibille and the other witnesses' demeanor ST. LOUIS CAR , A DIV. OF GENERAL STEEL INDUSTRIES 553 Significantly the credited evidence does not reveal that Sibille mentioned "threats" as a basis for Johnson 's discharge on the morning of May 31, when confronted by Johnson, Westmoreland , Thorpe, Sanders , and Personnel Manager Foelsch. Sibille, in conection with his testimony of the events on Tuesday , testified "and later, Curt Sanders asked me about it, and I said, `Well. I didn't like to have a man that's going to quit whenever I assigned him something he didn't like. And I didn't like to be threatened, either. That disturbed me quite a bit: " In connection with the question of alleged threats the Trial Examiner asked Sibille what were the words used by Westmoreland as to the alleged threats. Sibille testified as follows, "He told me, `You want to watch out for the guy. I don't want to see you get hurt .' I said, `Don't worry about me getting hurt ....' " The Trial Exam- iner then asked if Westmoreland had said anything else. Sibille testified , "Not at that time," and in answer to a further question as to what Westmoreland had said Johnson would do, Sibille testified, "Not outside of his threatening me." 19 In summary , Personnel Manager Foelsch and the other witnesses, including Sibille, all testify to versions of the May 31 conversation as to Johnson 's discharge which do not mention threats as one of the bases for the discharge , Highley's testimony is un- sure as to exactly what was said, and I am convinced that Westmoreland 's version as to all the conversations pertaining to alleged threats is more reliable . I so credit Westmoreland , and discredit Sibille's and Highley's version as to alleged threats I am convinced that all of Sibille 's testimony as to threats is based on an afterthought rationalization possibly connected with his misunderstanding of what was said by Westmoreland on the evening of May 29 after Johnson had been discharged. Conclusion I am convinced from the foregoing evidence that the General Counsel has more than adequately established that the motivating reason for the discharge of Ralph Johnson was Sibille's dislike of Johnson 's utilization of the Union in ascertaining whether his job assignment was proper or not. Sibille 's direct testimony as to the events surrounding Johnson's discharge alluded to the meeting among Ralph Johnson, Ray, Westmoreland , and Sexauer on May 28, wherein the job assignment was dis- cussed , and to his conversations with Westmoreland and Sanders on the evening of May 28, to his conversation with Andrew Johnson on May 28, and his conversation with Westmoreland on the morning of May 29. Thus, Sibille 's own testimony reveals that the crucial events concerned themselves with statements made to him by union agents about the utilization of the Union by Ralph Johnson, or by Ralph Johnson when accompanied by an union agent I am convinced furthermore that, similarly to some of Sibille's discredited testimony, the additional reasons set forth by him at the May 31 discussion with Personnel Manager Foelsch , Johnson, and union agents, constituted afterthought rationalization. Even there no reference was made as to threats , or as to the "air hose" incident . Respondent does not contend that Johnson was not a satisfactory worker but basically that he would not make a good employee because of his griping . Respondent contended that Johnson was discharged because of "belief" of threats . I have found that threats were not made, and the evidence does not reveal anything similar to a statement of threats having been made prior to his discharge . I am convinced as to all of Respondent's alleged reasons to the effect that Johnson was not discharged for complaining to the Union, that they constitute afterthought pretexts . Sibille's statements to Andrew Johnson on May 28 revealed his antagonism to Ralph Johnson's utilization of the Union when he alluded to Ralph Johnson 's mouth being too big , that he had been there only 15 days and already was talking to the Union , and when he asked what would Ralph Johnson do after probation . The subsequent statements by Sibille referring to Johnson's "kicking up a storm" and griping about work assignments (in con- nection with the various meetings that Sibille had with union agents over Johnson's problem ) thus clearly reveal that Sibille caused Ralph Johnson's discharge because he was angered at Johnson's utilization of the Union , the collective -bargaining agent. The Respondent contends that its motivation should not be found discriminatory because of its admitted good relationship with the Union . Nevertheless, in the instant case it has been found that its agent 's motivating reason for discharging Johnson was his anger at Johnson 's utilization of the Union . In making the findings in this case, I am cognizant that Sibille probably set forth to the superior officials at Respondent the reasons which I have found to be pretext . Sibille's failure to so 19 The Respondent contends that these remarks were the ones made at the time of Highley's presence Thus, Sibille's two versions are contradictory to each other and the latter's contradictory to Highley's testimony. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inform his superiors of the real motivating reason for Johnson's discharge does not alter that the real reasons were discriminatory. It thus appears obvious that Johnson was fired for engaging in activities protected by the Act.20 It is found, therefore, that Respondent's discharge of Ralph Johnson was an unfair labor practice in violation of Section 8(a)(1) and (3) 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 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 burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(3) and (1) of the Act by the discharge of Ralph Johnson, it is recommended that Respondent offer him im- mediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of such discrimina- tion by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of said offer of rein- statement, less his net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289, 291-294, and with interest thereon as prescribed by the Board in Isis Plumbing & Heating Co, 138 NLRB 716. CONCLUSIONS OF LAW 1. United Steelworkers of America , AFL-CIO, and its Local 1055 , are labor organizations within the meaning of the Act. 2. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3 By discriminating with regard to the hire and tenure of Ralph Johnson , thereby discouraging the exercise by employees of full freedom of association for the pur- pose of negotiating and adjusting the terms and conditions of their employment or other mutual aid or protection , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(1) and (3) of the Act. 4 The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER 21 Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, it is recommended 22 that Respondent, St. Louis Car, a division of General Steel Industries, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging concerted activity having for its purpose the submission, pre- sentation, and processing of grievances, complaints, and related matters, by dis- charging or otherwise discriminating against any of its employees in regard to their hire or tenure of employment, or any term or condition of their employment because of their concerted activities. (b) In any like or related manner interfering with, restraining, or coercing our employees in the exercise of their rights guaranteed to them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in 20 Bowman Transportation, Inc, 134 NLRB 1419 The fact that Johnson was a pro- bationary employee does not remove the protection given employees under the Act. n In the event that this Recommended Order be adopted by the Board, the word "Order" shall be deemed substituted for the words "Recommended Order " 21 In the event that this Recommended Order be adopted by the Board, the word "ordered" shall be deemed substituted for the words "recommended " ST. LOUIS CAR , A DIV. OF GENERAL STEEL INDUSTRIES 555 Section 8 (a)(3) of the National Labor Relations Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Ralph Johnson immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges. (b) Make whole Ralph Johnson for any loss of pay he may have suffered by reason of the discrimination against him , by payment to him of a sum of money equal to the amount he normally would have earned as wages from the date of his discharge to the date of the Respondent's offer of reinstatement in the manner set forth in the section entitled "The Remedy." (c) Preserve and , upon request, make available to the Board and its agents, for examination and copying, all payroll records , social security payment records, time- cards, personnel records and reports, and all other records relevant or necessary to the determination of the amounts of backpay due and to the reinstatement and related rights provided under the terms of this Recommended Order. (d) Post at its premises in St. Louis, Missouri, copies of the attached notice marked "Appendix." 23 Copies of said notice , to be furnished by the Regional Director for the Fourteenth Region, shall , after being signed by Respondent 's repre- sentative , be posted by Respondent immediately upon receipt thereof and 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 Respondent to insure that said notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director for the Fourteenth Region, in writing, within 20 days from the date of this Recommended Order, what steps the Respondent has taken to comply herewith.24 23 In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "A Recommended Order of a Trial Examiner" in the notice. In the further event that the Board 's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order " u In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read. "Notify said Regional Director , in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage our employees from engaging in concerted activities, having for its purpose the submission , presentation , and processing of grievances, complaints, and related matters, by discharging or otherwise discriminating against any of our employees in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any like or related manner interfere with, restrain , or coerce our employees in the exercise of their rights guaranteed to them in Section 7 of the Act, except to the extent that such right may be affected by any agree- ment requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a)(3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer to Ralph Johnson immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges and make him whole for any loss of pay he may have suffered by reason of the discrimination against him. All of our employees are free to become, remain, or refrain from becoming or remaining members of any labor organization , except to the extent that this 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 National Labor 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. ST. Louis CAR, A DIVISION OF GENERAL STEEL INDUSTRIES, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) NOTE.-We will notify any of the above -named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, 4459 Federal Building, 1520 Market Street , St. Louis 3 , Missouri, Telephone No. Main 1-8100, Extension 2142, if they have any question concerning this notice or com- pliance with its provisions. Pottsville Community Hotel Co., Inc . (Necho-Allen Hotel) and Local 391, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO. Case No. 4-CA-2544. Janu- ary 9, 1963 DECISION AND ORDER On October 1, 1962, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. There- after, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Leedom and Brown]. 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 entire record in this case, including the Intermediate Report and the General Counsel's exceptions and brief, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner, with the follow- ing exceptions and additions. 1. We adopt the recommendation of the Trial Examiner that the complaint be dismissed insofar as it alleges that the Respondent dis- criminated against Francis H. Spotts and Anne M. Kehoe.' 2. At the time of the events herein, Cerullo had been employed as a banquet waiter for more than 5 years, had apparently always done I We find that the Trial Examiner's credibility resolutions as to Spotts and Kehoe are not clearly erroneous. We do not, however, adopt his conclusion that Spotts' discharge would not have constituted a violation if Spotts had not quit. 140 NLRB No. 54.