Schill Steel Products, Inc.

1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD permission ; and on one occasion, a watchman-janitor, without consult- ing his supervisor, barred an employee of the Employer from entering company premises after hours without a pass. As the watchmen- janitors herein are responsible for enforcing the Employer's rules for the protection of the Employer's property, we find that they are guards within the meaning of the Act and we shall , accordingly, ex- clude them from the unit.13 [The Board clarified the Regional Director's Determination of Rep- resentatives by excluding from the unit "watchmen-janitors and all other guards as defined in the Act," and further amended the aforesaid Determination and all formal papers by substituting the name "West Virginia Pulp and Paper Company (Hinde and Dauch Division, Detroit Plant)" in place and stead of the name "Hinde & Dauch Paper Company," and by substituting the name "United Papermakers and Paperworkers, AFL-CIO and its Local No. 998" in place and stead of the name "United Paperworkers of America, CIO," wherever they appear therein.] 13 Threads -Incorporated, 121 NLRB 1507 , 1510 ; Inteinat,onal Furniture Company, 119 NLRB 1402 The fact that the watchmen-janitors are not armed , deputed , or uni- formed, and that they spend an unstated portion of their time in performing janitorial duties, does not require a contrary finding Armstrong Cork Company , South Gate Plant, 117 NLRB 262 ; Walterboro Manufacturing Corporation, 106 NLRB 1383 . Our recent decision in The Centor Company, 136 NLRB 1506, is not to the contrary . There the Board found that certain "landing men," who had been instructed to keep "trespassers" away from the Employer's barges, were not guards However, as the Board pointed out in Centor, those "trespassers" were almost invariably children playing in the area. Further, unlike the instant case , the "landing men" in Centor were not instructed to request strangers to identify themselves and they were not given specific instructions as to what action , if any, to take in the event of emergency. Schill Steel Products , Inc. and United Steelworkers of America, AFL-CIO. Case No. 23-CA-14!5. February 8, 1963 DECISION AND ORDER On November 28, 1962, Trial Examiner Phil Saunders issued his Intermediate 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 Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate 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 [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made 140 NLRB No. 106. SCHILL STEEL PRODUCTS, INC. 1165 at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER The Board adopts as its Order the Recommendations of the Trial Examiner.2 1 The Trial Examiner's recommendation that the backpay obligation of Respondent in- clude the payment of ti percent inteiest per annum is adopted. However, for the reasons given in his dissent in Isis Plumbing & Heating Co., 138 NLRB 716, Member Rodgers would not grant any interest in this case 'The notice is hereby amended by inserting the following paragraph immediately below the signature: NOTE -We will notify the above-named employee if presently serving In the Armed Forces of the United States of his right to full reinstatement upon applica- tion in accordance with the Selective Service Act after discharge from the Armed Forces. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before Trial Examiner Phil Saunders in Houston, Texas, on complaint of the General Counsel, and answer of Schill Steel Products, Inc., herein called the Respondent or the Company.' The issues litigated were whether or not the Respondent violated Section 8(a)(1) and (3) of the Act. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. Both parties presented helpful briefs which have been duly considered herein. Reserved rulings are disposed of in accordance with the following findings of fact and con- clusions of law. Upon the entire record, and from my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is a Texas corporation and engaged as a distributor in steel and metal products. During the past 12 months the Respondent sold and shipped steel and metal products valued in excess of $50,000 from points within the State of Texas directly to points outside the State of Texas. During the same period, the Re- spondent purchased steel and metal products valued in excess of $50,000, which products were shipped to its warehouses within the State of Texas directly from points outside the State of Texas. It is admitted, and I find that the Respondent is cngaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED United Steelworkers of America. AFL-CIO. herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act, and it is so found. III. THE UNFAIR LABOR PRACTICES The primary issues in this case are as follows: 1 Were Leroy Alsobrooks, Karl Lovett, and T 0 Brownschidel supervisors of Respondent within the meaning of Section 2(11) of the Act at any time material to this matter? 2. Did the Respondent violate Section 8(a)(1) of the Act by interfering with, re- straining, and coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act? 'Charges were filed on June 18, 1962 The complaint issued on Aurmist 1, 1962, and an amendment to the complaint was made on August 30, 1962 1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Did the Respondent discharge employee Columbus Caldwell because of his union activities, membership , or affiliation and thus violate Section 8 (a)(3) of the Act? The background testimony in this proceeding establishes that on May 2, 1962,2 two of the Respondents employees , including Columbus Caldwell, the alleged dis- criminatee, contacted staff representatives of the Union and informed them that the employees at Respondent's Houston plant were interested in unionization. Pur- suant to these requests , the first organizational meeting of employees was held on May 11. Thereafter, on May 21, 1962 , the Union filed a petition (Case No. 23-RC- 1917 ) (not published in NLRB volumes ) seeking certification as the bargaining representative of the production and maintenance employees of Respondent 's Hous- ton plant. On the following day, Respondent received a copy of this petition and a letter from the Union informing it that a majority of Respondent 's employees had designated the Union as their bargaining representative . The Union sought recog- nition and requested a meeting with Respondent for the purpose of negotiating a collective-bargaining agreement. An election was held by the Board on August 23. The violation as alleged in the complaint as amended ran from May 1 to August 27. Further background testimony established that the Respondent's warehouse, the site of operations especially involved in this case , consists of one building divided into four interconnecting bays. Different materials and types of steel are stocked in each bay ; customer orders are compiled in appropriate bays, and different equip- ment is utilized for various operations . Located in the warehouse is a dressing room, an office used by Supervisor Sanders and the shipping clerk, a loading dock in the bay, and a truck driveway that extends all the way through the warehouse. There is a desk or worktable in each bay , and a portion of bay 3 and 4 is set aside for the shear department. Supervisor Sanders testified that he is in charge of all ware- house operations and employees in all bays and departments , except out-of-town truckdrivers . He classified Carl Murphy as "immediate supervisor " of the shear department. Sanders further testified that there is a night shift of eight men whose primary and specific function is to load onto trucks orders which have been pre- pared and compiled by the day crews . This night shift is now headed by O. C. Miller, an admitted supervisor . The day crews are responsible for compiling and assembling orders. In describing these functions , Sanders testified that after an order is forwarded to the appropriate bay or department, one employee may select the required steel; a second employee may cut it , a third may burn it ; a fourth may transport the steel by hand crane during processing ; and a fifth employee may carry the completed order by overhead crane to the loading dock. A Supervisory status of Brownschidel , Lovett, and Alsobrooks The Company maintains that the individuals in question here are "mere leader- men" in the various bays at the warehouse, and do not have a supervisory status. Warehouse Foreman Sanders testified that the leadermen only help other em- ployees, and work along with them . He admitted, however, that leadermen may request employees to fill an order ahead of others , that on some occasions leadermen instruct employees in some of their work and change men at times to a different job; that they are definitely more experienced , capable, and skillful than ordinary workers; that leadermen are paid more than employees ; and that on occasions they will check orders before they are loaded on the trucks . Warehouse Foreman Sanders states that the bay leadermen do not have authority to hire, fire , grant pay raises, promote , transfer , or layoff employees , and further testified that they have no au- thority to effectively recommend such actions 1. As to Brownschidel Brownschidel testified that until about 5 weeks before the instant hearing, he had been "leadman" on bay 4 on the day shift for 2 years . He states that prior to that time, he was "leadman" of the night crew, the same job presently held by Foreman O. C Miller, an admitted supervisor, who replaced Brownschidel when the latter was transferred to the day shift, Brownschidel admitted that his authority on the night shift was the same as that presently possessed by Supervisor Miller: he further admitted , as did Sanders that at the time of his transfer to the day shift, he was never told that there would be any change in the authority which he then possessed While leaderman in bay 4, Brownschidel did not deny testimony of witnesses that he spent most of his day issuing work orders , assigning job tasks , and checking and 2 All dates are in 1962 unless specifically stated otherwise SCHILL STEEL PRODUCTS, INC. 1167 correcting employees' work.3 Witnesses for the General Counsel also credibly testified that Brownschidel let it be known that he was going to discharge an em- ployee named Ike Fuller. Brownschidel stated that Fuller was not devoting his full time to his duties in the warehouse, and that he had discussed the same with Sanders and Hayes, and that he was told by Hayes to "let him go" after Fuller had again been absent from his job at the plant. Fuller himself credibly testified that he had been fired by Brownschidel. It appeared that Fuller had not reported for work on a Saturday, and on Monday Brownschidel then inquired about it and stated to Fuller that if he did not show up when he was supposed to he would be dis- charged, and in the middle of that week Fuller was terminated. Witnesses for the General Counsel also ob,erved and heard Brownschidel reprimand employee Eddie Nisby for failing to properly shovel snow or ice off a warehouse truck. An argument followed, and Eddie Armstrong testified that Brownschidel then told Nisby to get his timecard and that Nisby thereafter no longer worked in the warehouse. Brownschidel testified that Nisby only removed some of the ice and snow on the truck, and after some discussion between them Nisby informed Brownschidel that he was quitting. Sanders stated that Nisby quit voluntarily and without good cause Eddie Armstrong credibly testified that N"hen he applied for a job at the company plant, he was hired and given his job assignment by Brownschidel. Warehouse Foreman Sanders stated that he hired Armstrong. 2. As to Lovett Warehouse Foreman Sanders stated that Lovett was a shearman and leaderman in the warehouse shear department. Sanders stated that Lovett is more experienced and guides the work in this department, but that he performs the same tasks as other employees. Sanders also stated that Lovett has no authority to effect changes in operation and personnel or to effectively recommend the same Shear department employee Predo Braden credibly stated that Lovett assigns and directs employees in their work, reassigns employees to different job tasks, grants employees' requests for time off, schedules changes in work hours, initials timecards of employees who in- advertently fail to punch the clock, checks employees' work, and directs the taking of inventory in the shear department. Braden also testified that Lovett hired employee Joe Davis and that he discharged Eddie Ward Joe Davis testified that on three or four occasions he applied for work at Respondent's plant and that his contact was with Lovett. Thereafter, Lovett told Braden to bring Davis to the plant On tune 6, 1962, Davis again talked with Lovett and asked him for a job. Lovett said "O.K.," and gave Davis an application form and a notice directed to a doctor. Following his physical examination, Davis returned to the warehouse and gave his forms to Lovett, who immediately assigned Davis to his duties Warehouse Fore- man Sanders testified that Braden had brought Davis out to the plant three or four times and that he had talked to Lovett about employment. Sanders stated that he then discussed the same with Lovett, and that Lovett asked for an application blank, but that the final decision to hire Davis was made by him (Sanders). 3. As to Alsobrooks Alsobrooks worked for the Company from February 1960 to July 1962. Also- brooks first worked as a crane operator in the warehouse and was then transferred to the night shift and also worked for a time in bay 4. Thereafter, Sanders transferred him to bay 3, and informed Alsobrooks that he was to be trained as a foreman. The record shows that Alsobrooks worked on the burner for 2 or 3 weeks, and that he was then moved to the desk in bay 3 and was told that he was in charge of that particular department. Employees Brown, Wilson, and Clyde Miller credibly testified that on subsequent occasions, Warehouse Foreman Sanders informed them that Alsobrooks was their foreman and that they were to follow his instructions. Alsobrooks testified that he was responsible for assigning work orders and job tasks to employees, instructing crewmen in their work, selecting employees for overtime work, and assigning employees to temporary duty in their departments. Witnesses Brown, Wilson, and Miller corroborated Alsobrooks' testimony as to his duties and responsibilities. Employee Brown, who was subsequently discharged by Respondent, testified that Sanders told him that he was going to discharge Brown because he had "cursed a foreman [Alsobrooks] the Thursday before." It was fur- ther established that Alsobrooks, as in the case of Brownschidel and Lovett, 3 Warehouse Foreman Sanders stated that Brownschidel ceased being a supervisor when he was transferred to bay 4 as a leaderman. 1 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spent most of his time assigning , directing, and checking work of other employees, rather than performing actual physical tasks? 4. Final conclusions in respect to Brownschidel, Lovett, and Alsobrooks It is well-settled law that the mere title of foreman or leaderman applied to certain positions does not in itself establish supervisory status under the Act. Rather, it is the functions, duties, and authority of the individual which must be determinative And the power or authority bestowed must not be routine, nor may the discretion accompanying the duties be so circumscribed by limitations as to negate the use of independent judgment. On the other hand, the real existence within an individual's regular assigned duties may make a man a supervisor even though the necessity for the exercise of such power is infrequent. In the case at hand the record shows that at pertinent times relative to this proceed- ing, all three of the individuals considered here were "leadermen," or acting in this capacity, in their respective departments of the Respondent's warehouse opera- tions. The Company contends, however, that bay leadermen have no authority to change or effect a change in the status of employees, or to effectively recommend such action, and that this is a prerogative of only Warehouse Foreman Sanders and Plant Superintendent Hayes, and occasionally Respondent's President John Schill. I do not agree with the Respondent's contention, and I find otherwise. In the first instance I have considered, as aforestated, the varied, numerous, and complex operations performed in the different departments, the large employee complement, and the vast dimensions of the warehouse. Sanders admitted in his testimony that he constantly circulated throughout the warehouse because he could not possibly oversee all the warehouse operations at one time. From these circum- stances, and the very nature of the Respondent's warehouse functions, it appears highly unlikely to me that such operations could be successfully conducted without the service of foreman in the different departments, and who in turn must use their discretion and independent judgment as the various situations demand. It is further noted that a document, dated June 1, 1962,5 was submitted to the Board's Regional Office over the signature of Company President John Schill in con- nection with the petition filed by the Union in the representation case, as afore- stated, and in which President Schill classified Brownschidel, Lovett, and Also- brooks as a "foreman." In connection with the incident involving the discharge of Ike Fuller, the testimony clearly shows that at least Brownschidel recommended the firing of Fuller, and that this recommendation was subsequently given effect. Brownschidel admitted that he discussed the matter with his superiors, and the only reasonable implication is that he then recommended that the discharge. There is no evidence of any independent investigation of Brownschidel's complaint against Fuller by his superiors. The Eddie Nisby incident, as aforestated, further shows that while Brownschidel was exercising his authority and independent judgment to direct employees' work, he clearly precipitated Nisby's departure from the warehouse Eddie Armstrong testified that he was hired by Brownschidel, while on the other hand Sanders stated that he hired Armstrong It is noted, however, that Sanders' recollection of this particular incident was so vague and uncertain as to render it highly questionable, and I do not credit Sanders' version nor his testimony on the same. The credited testimony with respect to Lovett reveals that he too exercises discretion and independent judgment in the operations of the shear department Not only does he direct the employees in their daily tasks, but there is also reliable evidence that at least on one occasion he hired an employee. Warehouse Foreman Sanders admitted in his testimony that Davis had talked to Lovett about employment, and that Lovett asked Sanders for an application form. Sanders further admitted that Lovett had previously discussed the matter with him. While there is conflicting testimony on whether Sanders or Lovett did the actual hiring of Davis, this record clearly establishes that Davis was hired solely on the recommendation of Lovett and without any independent investigation having been made by Sanders. It is also noted here that the testimony of the General Counsel' s witnesses relating to Lovett was not commented upon except by Sanders, because Lovett was not called as a witness and did not testify This record further shows that Alsobrooks was held out to be a leaderman in bay 3 of the warehouse. The credited testimony by several witnesses for the General Counsel, as aforestated, shows that Sanders specifically informed certain employees ' Sanders testified that Alsobrooks was never recognized as the leaderman to bay 3. but was assigned there as a trainee hoping to make him one 6 General Counsel's Exhibit No. 9. SCHILL STEEL PRODUCTS, INC. 1169 that Alsobrooks was the foreman, and that they were to obey his instructions. Certainly under these circumstances Alsobrooks had ostensible supervisory author- ity, and this complied with his actual duties to assign jobs in the department, to transfer employees, and to instruct and check their work, requires the conclusion that Alsobrooks was a supervisor within the meaning of the Act. Certainly he possessed the attributes of a representative of management for whose conduct the Respondent was responsible. In view of the fact that the authority exercised by the leadermen in their respective departments is not of merely routine or clerical nature, but requires the use of independent judgment, complied with the authority to make effective recommenda- tions in hiring and firing-which was amply demonstrated-I find that Brownschidel, Lovett, and Alsobrooks are supervisors within the meaning of Section 2(11) of the Act. B. Interference, restraint, and coercion; findings and conclusions Former Supervisor Alsobrooks credibly testified that he became aware of union activity at the company plant in May, stated that Foreman Sanders informed supervisors at a meeting that the Umon was trying to "move in"; and that Sanders later instructed supervisors that if they observed employees talking together to ascertain if they were discussing the Union and then to report it.s Alsobrooks admitted that he discussed union activities with several employees, and that in May he inquired of employee Brown if he was the leader, how Brown felt about the Union, and what progress they were making. Brown, in his testimony, corroborated these inquiries by Foreman Alsobrooks. The record shows that 3 weeks before the union election of August 23, a meeting was arranged by Foreman Lovett in the Respondent's conference room with three employees.? Company President John Schill testified that the meeting was held so that questions could be asked. Schill stated that at the meeting management cited cases in the area where the Union had contracts, and that when the contract "came up" the companies involved cut out the pensions, bonuses, or profit-sharing plans Employee Henry Johnson testified that Schill informed them that he could not promise anything, but told them to do the right thing and to vote the Union out, and that if the Union came in the employees and management would be fighting. Employee Braden testified that Schill informed them at the meeting that the Company did not need union bosses. Henry Wilson testified that on the occasion in question Vice President Richard Schill stated that if the Umon came in the Christmas bonus and the trust fund would be cut off or stopped, and that Schill also told them to vote against the Union at the election. Henry Johnson also testified that he had conversations about the Union with Foreman Lovett. Johnson stated that initially Lovett was for the Union, but that subsequently his attitude changed. Johnson further testified that after the meeting in the conference room, Lovett informed him that if the Union was successful the Christmas bonus and the profit-sharing plan would be cut out, that pay raises for employees would take longer to get, suggested to Johnson that the employees accept a company union, and not to vote for the Union as it had nothing to offer Em- ployee Predo Braden testified that Foreman Lovett discussed the Union with em- ployees on many occasions, and on one of those occasions Lovett told Braden that if certain employees (O'Dell, Wilson, and Doyle) voted for the Union, and Vice President Richard Schill found out about it, Schill would fire them Joe Davis corroborated this testimony by Braden Wilburn Brown testified that in May, Foreman Lovett informed him that Schill was trying to find out who the union leaders were and that the Company was going to discharge them. Henry Wilson testified that Foreman Lovett told them that the Company had more to offer than the Union, and that Lovett later on informed Wilson to the effect that the Respond- ent had worked out a plan so that employees who voted against the Union would get at least $1.62 an hour. Johnnie Hobbs stated that Foreman Lovett informed him that the Company would give employees a better "deal" than the Union Columbus Caldwell, the alleged discriminatee herein, testified that in the latter part of May, Foreman Brownschidel asked him if he was for a union.8 Brownschidel not only denies the conversation with Caldwell, but he states categorically that ° Sanders denied that he ever made such statements, and stated that he never had any such meetings wherein union activities were discussed ' Johnson, Braden, and Wilson. 8 Caldwell testified that he then informed Brownschidel that he was for a union, and also told Brownschidel that he had signed a card for the Union 1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he never had any conversations or discussions pertaining to the Union with anyone at the plant at anytime, and that his only knowledge or conduct with respect to the Union at anytime was limited to looking at antiunion posters on the company bulletin board.9 Brownschidel further states that his first knowledge of any union activities was acquired when the Board agent investigating the instant charge interviewed him at his (Brownschidel's) home. As noted herein, Foreman Alsobrooks admitted in his testimony that he made certain inquiries of employees as to their status of activities and that of the Union. In the other instances outlined, based on my observations of the witnesses, their demeanor, and for the reasons given herein, I credit the testimony of the witnesses for the General Counsel. In the meeting with management, as aforestated, President John Schill admitted that management had cited cases where unions had contracts, and pension and profit-sharing plans had been withdrawn. It is well settled by the Board and the courts that in determining whether an employer's conduct amounts to interference, restraint, or coercion within the meaning of Section 8(a) (1), the test is not the employer's intent or motive, but whether the conduct is reasonably calculated, or tends, to interfere with the free exercise of the rights guaranteed by the Act. If the setting, the conditions, the methods, or other probative context can be appraised, in reasonable probability, as having the effect of restraining or coercing the employees in the exercise of such rights, then this activity on the part of the employer is violative of this section of the Act It should be further noted that the specific threats attributed by General Counsel's witness Henry Wilson to the Respondent's Vice President Richard Schill stand undenied by him as he did not testify in this proceeding. Likewise, the various antiumon threats and promises attributed to Foreman Lovett also stand undenied as he did not testify. Foreman Brownschidel stated that he never had any union conversations with any employee, and denied any knowledge whatsoever of union activities. Under the circumstances here, and the events established by this record, I do not believe his testimony. The foregoing instances are not permissible of objective inquiry as to the propriety of recognizing a labor organization, nor are they casual, friendly, or isolated instances Neither do they amount to the mere exercise of free speech under the first amendment to the Constitution nor to protected expression of views under Section 8(c). N.L.R B. v. Minnesota Mining & Manufacturing Company, 179 F. 2d 323 (C.A. 8); National Shirt Shops of Delaware, inc , et al, 123 NLRB 1213 Rather they include an attempt to inquire into loyalties, attitudes, specific instructions that employees should vote against the Union, interrogations as to union sympathies, threatening discharge of employees who could be identified with the union activities. promising economic and pecuniary benefits to those who opposed the Union, and the definite implication that the employees would be better off without the Union; they therefore constitute violations of Section 8(a)(1). Raymond Pearson, Inc., 115 NLRB 190, enfd. 243 F. 2d 456 (C.A. 5); Shell Oil Company (Successor to Shell Oil Company, incorporated), 95 NLRB 102, enfd. 196 F. 2d 637 (C.A. 5).10 C. The alleged discriminatee Columbus Caldwell; findings and conclusions This record leaves no doubt in my opinion but that the Respondent had full knowl- edge of Caldwell's union activities prior to his discharge on June 13, and I so find. There is credited testimony by Caldwell that in the latter part of May, Foreman Brownschidel asked Caldwell if he would be for the Union, and Caldwell then informed Brownschidel that he had signed a card for the Union. As aforestated, Caldwell was one of the two employees who initially contacted the Union on May 2, and subsequently had several other employees sign union authorization cards. It is also noted that after the organizational campaign started, the Union designated an employee in each of the warehouse bays for their contacts, and these employees then composed the Union's committee, and several meetings were held with them in addition to meetings with the other employees. Caldwell was one of the employees on the organizational committee." The Company's union animus and knowledge is 9 See General Counsel's Exhibits Nos 4, 5, and 6 is The complaint, as amended, did not allege that the Respondent threatened employees with loss of benefits if the Union won the election. At the conclusion of the General Counsel's case an additional amendment to this effect was offered, and on the basis of timeliness I denied it. While this particular issue seems to have been fully litigated, as aforestated, a finding on that basis might he made. However, in the final analysis it would only be cumulative to the remedy herein, and for these reasons I have made no specific finding on the same. 11 Other employees on the Union's committee were Braden, Miller, Ward, Armstrong, and Aguilar SCHILL STEEL PRODUCTS, INC. 1171 illustrated lucidly by the aforementioned 8(a) (1) conduct, and also the Respondent further shows its animus and knowledge of union activities by the posters distributed in the plant, as aforementioned. It is further noted that the Company received the Union's petition through the mail during the last week of May Caldwell started working for the Company in 1959, and was working in bay 4 under Foreman Brownschidel at the time of his discharge on June 13. Brownschidel stated that he had a "busy crew" that never gave him any trouble. Respondent's witnesses could cite only one instance wherein Caldwell's work was criticized, and this happened some 6 months ago and was a trivial incident of no consequence to the proceedings here. The Respondent contends that the facts involved in the discharge of Caldwell actually commenced early in May, and prior to the advent of any known organiza- tional activities of its employees. President John Schill testified that during the week of May 9, he attended an annual conference of the Steel Service Center Institute, and that at this conference there was a good deal of emphasis on improving sales programs and more efficient operations with a view in cutting costs. Schill stated that the Company had been "going down" since September 1961, so that when he returned from the conference he called in his keymen at the plant and started laying the groundwork for the institution of a cost-cutting program in the Respondent's operations. President Schill testified that he then made an inspection of the Com- pany's competitors in Dallas and Houston to survey their operations, and discovered that competitors were handling more production and with less personnel. Upon returning from this inspection trip about June 1, Schill then asked for the Company's quarterly financial statement from the comptroller,i2 and Ls soon as he looked at it he knew something had to be done very "drastically," so he decided to put in an "austerity program." In implementing this program Schill called in Warehouse Fo:ernan Sanders and informed him that the earnings of the Company were going down, and Sanders was then instructed to check everything in the warehouse, and Schill also informed Sanders that he might be able to get rid of some of his unde- sirable and inefficient help.13 Sanders testified that he irnpiemented these instruc- tions from Schill by changing the hours of work, attempting to cut down overtime, transferring some personnel, and discharging a few employees who were not doing a good job The record reveals that many of the employees arrived at the warehouse early on most every morning and assembled in the employees' locker room, changing clothes and awaiting their time to go to work.14 The record also shows that on numerous occasions employees were called in to help out on a pay status before the beginning of their regular shifts, and as a result established the practice of getting to the warehouse early Caldwell testified that on the morning of June 8 he was supposed to report for his regular duties at 8 o'clock, but arrived at the plant around 6:45 am It was established that somewhere between 6:45 and 7 on June 8, Sanders came into the locker room and told the employees that he needed some men out in the warehouse to work, and at least a few of the employees then reported for work. Several minutes later, after observing that many of the other employees had not reported, Sanders became irritated and returned to the locker room, and then issued on ultimatum to the remaining employees that if all were not out of the locker room in 2 minutes they need not punch the clock until 8 o'clock on this or any other morning, and Sandeis further told the employees that he did not want any more cardplaying on the premises. Thereupon, all the employees came out of the locker room and went to work with the exception of three, and one of the three who did not report to work until 8 o'clock was Caldwell. The Respondent contends that it was at this time that Sanders decided to discharge Caldwell, but that his actual discharge was on June 13 because bay 4 was shorthanded as Brownschidel was on vacation. Sanders testified that when he came into the locker room on the second occasion and told the men to punch the clocks within 2 or 3 minutes, as aforestated, Caldwell then informed him, "Well, I will just wait until 8 o'clock," and that Caldwell's tone of voice was "sarcastic." Sanders stated that he decided to discharge Caldwell the moment he "popped off." The record reveals that in about 30 minutes after this incident in question, Sanders had Clarence Jackson, one of the three men who 12 Respondent's Exhibit No 6 See also Respondent's Exhibit No. 5 "Also Respondent's Exhibit No 10-a letter to all personnel signed by Schill suggest- ing ways to cut down expenses and dated June 18 '4 Several weeks before the incident in question here, Caldwell's hours had been changed from 7 to 8 o'clock. 681-492-63-vol. 140-75 1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stayed in the locker room until 8 o'clock along with Caldwell, come to this office, and then made inquiries of Jackson as to why he did not report to work when asked to do so. Sanders at the time did not mention Caldwell or Miller-the third employee who stayed in the locker room. All the witnesses for the General Counsel testified that none of the employees said anything to Sanders when he asked them to go to work on either occasion, but when Sanders mentioned that there would be no cardplaymg on the premises, Wilburn Brown then told Sanders that he could see no harm in playing cards on the employees' own time.it Caldwell also testified that when Sanders first asked the men to go to work he did not do anything because there were so many people in the room he could not get to his locker to change his clothes, and that he did not think the request pertained to bay 4 employees. Caldwell further stated that when Sanders made his second appearance, stating that the men were to be out in 2 minutes, he was still changing clothes and using the toilet facilities, so he could not make it and took Sanders at his word, and tnen waited in the locker room until 8 o'clock. In making my final conclusions from this testimony, it is difficult initially to ascer- tain in what respect the Respondent's contention as to its "austerity program" plays in the discharge of Caldwell. Respondent stated at one phase in the hearing that the defense to the discharge was a sarcastic remark made by Caldwell to Sanders at the time of the locker room incident. When Foreman Sanders was asked whether or not the fact that Schili had instructed him to cut costs and get rid of inefficient people had any bearing in Caldwell's discharge, Sanders replied, "No, it did not." Upon restating the question, Sanders then replied, "Of course, I naturally considered him as one of the undesirables and that is the kind of men laid off in this economical layoff and discharge, that's right." However, in support of its economic defense to the discharge the Company introduced financial exhibits, as aforestated, and over which there was considerable argument between the parties as to their probative value, methods of computations, and the true or exact financial conditions reflected by the same. In view of the initial admission by Foreman Sanders that the Respond- ent's cut-cost program had nothing to do with Caldwell's discharge-I do not deem it necessary to make a detailed discussion of the financial statements and their various ramifications as outlined by opposing counsel. I think it sufficient to say that this contention by the Company is at the most background material, or, as stated in the Respondent's brief, "it was amidst this background of events that Columbus Caldwell was discharged." 16 It has been well established by the Board and the courts that although the dis- charge of an inefficient or insubordinate union member or organizer is lawful, it may become discriminatory if other circumstances reasonably indicate that the union activity weighed more heavily in the decision to fire him than did the dissatisfica- tion with his performance. From this record it appears clear to me that the union activities of Caldwell played the substantial or motivating reasons for the discharge in question here. The credited testimony reveals that on June 13, Caldwell was advised by Brown- schidel that he was being fired because he failed to report as directed on the morning of the locker room incident. It is noted that this was the first time the incident had been discussed or mentioned to him. Foreman Sanders in his testimony, re- peatedly made assurances that employees' work outside of their regular shifts was "voluntary," and yet Sanders maintains, on the other hand, that he decided to fire Caldwell because he failed to volunteer. is The record shows that the employees played cards in the locker room before going to work, and that Sanders had observed them playing on many occasions and before the incident in question had never criticized them for it 36 Even assuming, arguendo, some basis for the discharge of Caldwell on the economic defense by the Company, there are still several circumstances which tend to repudiate this contention It is admitted by Sanders that he could not discharge Caldwell on June 8 because bay 4 was shorthanded Therefore, at this time the Respondent's services and products were in sufficient demand to require all of the employees then working The Company also argues and admits that the night before the locker room incident, an unusually large number of trucks were loaded out which left a backload of work to be performed on June 8. So again, at the critical time in question, the Respondent had an urgent need for all of its employees , and appeared to be operating in a demanding market The Company further admits that at least three part-time college students, or relatives of management, were also employed during the summer months, and admits that em- ployee Lee Armstrog was put back to work when he returned from the service. It also appears that the "undesirable employees ," as mentioned to Sanders by President Schill, had been discharged before the incident in question here. SCHILL STEEL PRODUCTS, INC. 1173 In the final analysis here, as I view this proceeding, the critical issue for final de- termination is mainly one of credibility. Sanders stated that Caldwell "popped off" when he informed the men to get on the job in 2 minutes and that he then decided to fire him. All the witnesses for the General Counsel testified that nothing was said at this time. Counsel for the Respondent argues that the employees were cover- ing up for Caldwell and that it would be incredulous to believe that these witnesses were telling the truth. I reject the Respondent's argument and upon my observa- tions and demeanor of the witnesses, and for the reasons stated here, I have credited the testimony given by the witnesses for the General Counsel. Foreman Sanders strikes me as a man who readily speaks his mind in all situations demanding his clarifications, and had Caldwell replied to Sanders in a "sarcastic" manner, as con- tended, there is no doubt in my mind but that Sanders there and then would have directly confronted his opponent As it turned out the only employee Sanders im- mediately spoke to about the incident was Jackson, and then mainly inquired of Jackson as to why he did not report to work when he was asked to do so, and there was no reference by Sanders at this time to any remarks supposedly made by Caldwell. These circumstances further show that the locker room incident was a trivial epi- sode, and to find a legitimate discharge would require me to believe that these minor circumstances so reflected on Caldwell's competency as to call for his dismissal.17 In consideration of the Respondent's shifting and vacillating defense exhibited throughout this record, and upon the other reasons, circumstances, and factors here- tofore, it is accordingly found that the Respondent terminated the employment of Columbus Caldwell on June 13, 1962, in violation of Section 8(a)(3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in con- nection with its business operations described in section I, above, have a close, inti- mate, 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 It having been found that the Respondent engaged in unfair labor practices in violation of Section 8 (a) (1) and (3) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that the Respondent offer employee Columbus Caldwell 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 earnings he may have suffered by reason of the discrimination against him, by payment of a sum of money equal to that which he would have earned as wages from the date of the discrimination against him to the date of offer of reinstatement, and in a manner consistent with Board policy set out in F. W. Woolworth Company, 90 NLRB 289, and Crossett Lumber Company, 8 NLRB 440. Interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 It will also be recommended that the Respondent preserve and, upon request, make available to the Board, payroll and other records to facilitate the computation of the backpay due. It will be further recommended, in view of the nature of the unfair labor prac- tices the Respondent has engaged in, that it cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of ,the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 17 The General Counsel introduced a prior statement given to the Texas Employment Commission by Sanders in connection with Caldwell's unemployment benefits. This state- ment by Sanders was to the effect that the locker room incident had nothing to do with Caldwell's discharge, but that the discharge was the result of a reduction in force. Sanders then testified that he did not recall mentioning the locker room incident to the Texas Employment Commission. It should be further noted at this time that the Re- spondent also introduced affidavits for the purposes of showing prior inconsistent state- ments of witnesses for the General Counsel. While making my findings herein, I have carefully reviewed all such affidavits and statements. 1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Union is a labor organization within the meaning of the Act. 3. By discriminating in regard to the hire and tenure of employment of Columbus Caldwell, thereby discouraging membership in the Union, the Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By engaging in the conduct set forth in section III, B, supra, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, I recommend that the Respondent, Schill Steel Products , Inc., its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in United Steelworkers of America, AFL-CIO, or in any other labor organization , by discharging, refusing to reinstate , or in any other manner discriminating against employees in regard to their hire or tenure of employment or any term or condition of employment. (b) Interrogating employees concerning their loyalties, attitudes, interest in, and intentions with respect to joining the Union, or any other labor organization, in a manner constituting interference , restraint, or coercion violative of Section 8(a)(1) of the Act. (c) Threatening discharge of employees who are identified with union activities. (d) Promising economic and pecuniary benefits to employees who oppose the Union. (e) 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 the above-named Union or any other labor organization, to bargain col- lectively through representatives of their own choosing , to engage in concerted ac- tivities for the purpose of collective bargaining, or other mutual aid or protection, or to refrain from any and all such activities 2 Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer Columbus Caldwell immediate and full reinstatement to his former or a substantially equivalent position , without prejudice to seniority or other rights and privileges , and make him whole for any loss of earnings suffered by reason of the discrimination against him , in the manner set forth in the section above entitled "The Remedy." (b) Preserve and , upon request, make available to the Board or its agents, for examination and copying , all payroll records , social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and the right to reinstatement under the terms of the Recommended Order. (c) Post at its plant in Houston , Texas, copies to the attached notice marked "Appendix." i8 Copies of said notice , to be furnished by the Regional Director for the Twenty-third Region, shall, after being signed by a representative of the Re- spondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 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 notice is not altered, defaced, or covered by any other material (d) Notify the Regional Director for the Twenty-third Region, in writing, within 20 days from the date of the receipt of this Intermediate Report , as to the steps it has taken to comply herewit'h.ia 18 In the event that these Recommendations be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommendations of a Trial Ph ainmer' 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 tl,e United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order" 1D In the event that these Recommendations 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." HOISTING & PORTABLE ENGINEERS LOCAL 101, ETC. 1175 It is further recommended that unless within 20 days from the date of the receipt of this Intermediate Report, the Respondent notifies said Regional Director, in writ- ing, that it will comply with the foregoing recommendations, the Board issue an order requiring the Respondent to take the aforesaid action. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in United Steelworkers of America, AFL-CIO, or any other labor organization, by discharging or refusing to rein- state any of our employees, or in any manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT interrogate employees concerning their interests in, and in- tentions with respect to, joining the above-named or any other labor organiza- tion, in a manner constituting interference, restraint, or coercion violative of Section 8(a)(1) of the Act. WE WILL NOT threaten discharge of employees who are identified with the above-named Union, or any other labor organization. WE WILL NOT promise economic and pecuniary benefits to employees who oppose the Union. 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 the above-named or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities. WE WILL offer to Columbus Caldwell immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to seniority and other rights and privileges, and make him whole for any loss of pay suffered as a result of the discrimination against him. All our employees are free to become, remain, or refrain from becoming or re- maining members of United Steelworkers of America, AFL-CIO, or any other labor organization. SCHILL STEEL PRODUCTS, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 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, 6617 Federal Office Building, 515 Rusk Avenue, Houston 2, Texas, Telephone No. Capitol 8-0611, Extension 296, if they have any question concerning this notice or compliance with its provision. Hoisting and Portable Engineers Local Union 101 , affiliated with the International Union of Operating Engineers, AFL- CIO and Sherwood Construction Company , Inc. Cases Nos. 17-CC-123-1, 17-CC-123-2, and 17-CP-S. February 8, 1963 DECISION AND ORDER On May 1, 1961, Trial Examiner Robert E. Mullin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, 140 NLRB No. 123.