Schill Steel Products, Inc.

350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Schill Steel Products, Inc. and United Steelworkers of America, AFL-CIO. Case 23-CA-2404 June 30,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On February 2, 1967, Trial Examiner John M. Dyer issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the at- tached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Ex- aminer's Decision and a supporting brief. Pursuant to Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel. 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 Trial Examiner's Decision, the exceptions, the brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, Schill Steel Products, Inc., Houston, Texas, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order, as herein modified: 1. Delete paragraph 1(e) of the Recommended Order and substitute therefor the following: "(e) In any other manner interfering with, restraining, or coercing its employees in the exer- cise of their right to self-organization, to form, join, or assist United Steelworkers of America, AFL-CIO, or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities." 2. Add the following as the last indented para- graph to the notice attached to the Trial Examiner's Decision: 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 , join , or assist United Steelworkers of America, AFL-CIO, or any other labor or- ganization , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection , and to refrain from any or all such activities. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN M. DYER, Trial Examiner : This case was heard in Houston , Texas, October 10 and 11, 1966 ,' on an Au- gust 19 complaint issued by the General Counsel , which, based on charges by United Steelworkers of America, AFL-CIO (herein the Union), alleged in substance that Schill Steel Products , Inc. (herein variously termed Respondent , Schill , or the Company), had discharged two employees and interrogated and coerced employees in violation of the Act. In its answer Respondent admitted the requisite commerce allegations and that its warehouse superintendent and night foreman were supervisors within the meaning of the Act,2 but denied violating the Act. All parties were represented by counsel and given full opportunity to examine and cross -examine witnesses and briefs received from the General Counsel and Respond- ent have been considered. In reaching a decision I have considered the entire record in this case and the prior labor relations ' history to which my attention was directed by the parties. My evaluation of the reliability of the witnesses is based on the testimony considered individually and collectively, my observation of witness demeanor and that a portion of General Counsel's evidence is unexplainedly undenied and stands uncontradicted . On all these factors, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Schill Steel Products, Inc., is a Texas corporation en- gaged in the distribution of steel and metal products with an office and warehouse in Houston with which this case is concerned. Annually Respondent sells and ships products valued in excess of $50,000 from its Texas facilities directly to points outside the State of Texas, and annually receives at its Texas facilities goods and materi- als which originated from points outside the State of Texas and are valued in excess of $50,000. Respondent admits and I find that Respondent is engaged in com- All dates herein occurred in 1966 unless otherwise stated z During the hearing Respondent amended its answer to withdraw its denial of Joe Brooks' status as a supervisor and agent for Respondent stat- ing that he exercised substantially the same authority and duties as that of "bay leaderman," which position the Board previously held to be super- visory, and agreed that Brooks could be called a night-shift leaderman. 166 NLRB No. 68 SCHILL STEEL PRODUCTS, INC. 351 merce within the meaning of Section 2(6) and (7) of the Act. Respondent admits and I find that United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Issues In its November 14, 1966, Decision and Order in Schill Steel Products, Inc., 161 NLRB 939, the Board referred to Respondent's labor relations history noting that the Union began organizing Schill's employees in May 1962, and in August 1962 was certified as the col- lective-bargaining agent. The Board, in two separate cases issued on February 8 and August 20, 1963, found Respondent had committed violations of Section 8(a)(1) and (3) and in the latter case, that it had refused to bargain with the Union. These Decisions were enforced by the Fifth Circuit Court of Appeals on February 2, 1965. In its latest Decision, the Board found Respondent had again violated Section 8(a)(5) and (1) of the Act. Part of both the affirmative and defense evidence in the instant or fourth case, stems from actions which occurred during the trial of the third case. The present case concerns the discharge of employees Robert Jones and Lionel Jackson on May 3, 1965, and al- legations that employees were told they would receive no further pay raises and would be harassed by their super- visors because of their union membership, and were questioned about their union membership or proclivities and told it would be better for them not to join the Union. The basic questions in this case are whether Respond- ent's reason for the discharge of Jones and Jackson is a pretext to mask discharges illegal under the Act and whether Respondent committed the 8(a)(1) violations al- leged. B. The 8(a)(1) Violations 1. Alleged 8(a)(3) Robert Jones, and his brother, Paul, started with the Company in March 1963. Robert Jones testified he first joined the Union sometime between July and November 1964, and remained active helping to sign up other employees including alleged 8(a)(3) Lionel Jackson. In July or August 1965, Jones was transferred to the night shift and testified that in response to a question of why he was being transferred, his brother-in- law, Night-Shift Leaderman Joseph Brooks, said he had been transferred so they could find some fault and fire him, because Warehouse Superintendent Griffin knew he was in the Union. This undenied testimony antedates the Section 10(b) period and was offered and received as background evidence. 2. In February 1966, Night Foreman Wade Crouch talked to Robert Jones about the rates on union jobs say- ing he did not believe a man should get double time for work on Sunday and asked how Jones felt. Jones told Crouch he thought they should get double time and should not have to work on Sunday. Crouch said Jones was worth more than he was paid and was going to see if he could get him a raise. A day or so later, Jones asked Crouch about the raise and Crouch responded that Grif- fin said he could not give Jones a raise because the Union would not pull for a man that would not give him what he deserved. He said that the Union was not any good and as soon as he got things straightened out, he was going to get Jones a white shirt and make him a leaderman.3 This undenied testimony establishes that Jones was told by his supervisor that he could not get a raise because the employees' elected bargaining agent would not allow it. Part of Respondent's defense, treated below, would establish that Respondent and the Union had agreed in the fall of 1965 that unit employees could receive up to six merit raises a year. Since Jones had not received anywhere near this amount, it follows that the reason given Jones is a deliberate untruth and is calcu- lated to undermine the Union's status as bargaining agent and foster in employees' minds that they are being penal- ized for electing the Union as their bargaining agent. I conclude and find that this statement constitutes a threat by Respondent that employees will not receive raises because of their bargaining agent and is a violation of Sec- tion 8(a)(1). 3. Robert Jones testified that in April he and employee Middlebrooks asked Griffin about a raise and Griffin said he could not give the boys a raise because the Union would not consent to it, but he would see what he could do for them. After hearing nothing Jones again approached Griffin and asked about it. Griffin replied that Jones knew better than to ask for a raise, that he could not give him a raise, that giving raises was out of his hands, and Jones had to see somebody who had more authority than Griffin. He then said, referring to the Union, "you boys all wanted it and now you got it." Earl Griffin testified that he told employees he un- derstood that three to five raises a year were all that was allowed and he could only recommend raises for them to Personnel Manager John Miller. Griffin did not specifi- cally deny Robert Jones' testimony and, as shown further below, Griffin's testimony is not credible since it was often self-contradictory and contradictory of other wit- nesses, including Respondent's witnesses, apparently because he was either careless in testifying or testified as he thought best suited the question at the time. I credit Robert Jones' testimony of this incident. I conclude and find that Respondent by Griffin's statements violated Section 8(a)(1) by falsely blaming the Union as the reason why Respondent would not give raises and thereby at- tempted to undermine the Union's bargaining agent status by fostering the belief that the employees were being penalized for having a bargaining agent. There is no specific complaint allegation covering this violation but it was litigated. Even if Griffin had specifi- cally denied this event I would believe Robert Jones' testimony, finding him the more credible of the two wit- nesses. 4. Sometime in March or April, Night Leaderman Joe Brooks took an employee from bay 2 where Robert Jones worked. When Jones complained to Brooks that the em- ployee was needed in bay 2 to work the orders, they got into an argument as to what was needed, and Brooks I From other testimony it appears that rank-and-file employees' work clothes include a gray shirt or jacket, and a leaderman is distinguished by a white shirt, which denotes his capacity and authority. 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD brought the matter to a head stating that he had the power to fire Jones and needed only to pull his card and he would be gone. Jones asked why Griffin was riding him all the time. Brooks said that Griffin knew Jones belonged to the Union and was going to make it hard on him; that when a man signed a card Griffin found out about it and began riding him; that he tried to make a man quit or find something to fire him about; and that was a reason why he was put on the night shift. He then asked why Jones didn't stand alone. When Jones asked what he meant, Brooks said he should leave the union alone, that it was because of his union membership that he hadn't received any more raises. I credit Jones' undenied testimony as to this conversa- tion with Brooks. Respondent did not produce or in any way attempt to explain the nonproduction of Joe Brooks as a witness and I conclude that Brooks' testimony would not have been adverse to that of General Counsel's wit- nesses. On the basis that Brooks has the authority and du- ties of a bay leaderman, which position the Board has found to be supervisory, I conclude and find that Brooks is a supervisor within the meaning of the Act and an agent of Respondent. I cannot accept Respondent's argument that because Jones and Brooks are brothers-in-law and the remarks oc- curred in a more or less friendly conversation, they should not be held violative. On the contrary, I feel that this relationship would probably induce confidence in the truth of the remarks. It seems to me an employee would place more reliance on what a brother-in-law said, know- ing him to be a supervisor who was or should be in a posi- tion to know the facts. Therefore, I conclude and find that Respondent by its supervisor and agent, Joe Brooks, vio- lated Section 8(a)(1) by - ( 1) warning Jones that he had been and would be harrassed by supervisors, and in particular by Warehouse Superintendent Earl Griffin, because he was a union member ; (2) warning Jones that he had not received and would not get further raises because of his union membership ; and (3) questioning Jones as to why he was and remained a union member. 5. Lionel Jackson testified that when he was hired in September 1965, Griffin asked if he had previously worked on a union job. He said he hadn't. Griffin said that some of the fellows in the plant were trying to or- ganize a union and he would be better off if he did not fool around with them. This testimony antedates the 10(b) period. After his 60-day probationary period he signed a union card for Robert Jones. Around the last of March, Supervisors Brooks and Crouch told him that they had re- ports he was not doing his work, and that employees Bonner and Robert Jones were complaining about him. After talking to Bonner and Jones about the matter, he asked Jones and Bonner about the report in front of Brooks and Crouch and they denied saying he was not doing his work. Brooks and Crouch made no comment and walked away. 6. Around April 1, while helping Supervisor Joe Brooks, Jackson asked why Warehouse Superintendent Griffin was apparently riding him. Brooks said Griffin knew Jackson had signed a union card and while he was working there, they would be doing something to make him quit or find something for which to fire him. I credit the undenied testimony of Lionel Jackson, not- ing again the unexplained nonproduction of Joe Brooks as a witness. I conclude and find that Respondent by Super- visor Joe Brooks violated Section 8(a)(1) by warning em- ployee Jackson that because of Jackson' s union member- ship he had been and would continue to be harrassed to the point of losing his job by his supervisors and in par- ticular by Warehouse Superintendent Griffin. 7. Jackson testified that in April, he asked Griffin about a raise, and Griffin replied it was out of his hands, that Jackson would have to see the union man about giv- ing him a raise, that he could not do anything. On the fol- lowing day Jackson talked to Personnel Manager Miller, who said that if Crouch or Griffin approved a raise, he would see Jackson got it. Jackson testified that after receiving this explanation he thought it was useless to again ask Griffin for a raise. I credit Jackson, noting that his relating of John Wil- son's contradiction of Griffin adds credence to his testimony and concluding that Griffin's statements were an attempt to undermine the Union's status as bargaining agent by fostering the idea that the Union prevented em- ployees from receiving a raise. Such action by Respond- ent's warehouse superintendent is violative of Section 8(a)(1) of the Act. This occurrence was not alleged in the complaint and according to General Counsel was offered to show Respondent's union antipathy and knowledge of union activity. Counsel for the Union maintained the statement was 8(a)(1). General Counsel declined to amend the complaint. Since similar violations are found herein, the Recommended Order and notice would not be altered, and nothing is lost by the absence of a finding of violation as to this act. 8. Paul Jones, Robert's brother, testified that on the Saturday after Robert was discharged, while he and Su- pervisor Joe Brooks, his brother-in-law, were together on personal business, he asked if Brooks thought that Robert Jones and Jackson were fired for cutting the beam wrong. Brooks answered that they were fired because they had signed union cards and were participating in union ac- tivites. I credit this undenied testimony and find that this state- ment by the immediate supervisor of the alleged 8(a)(3)'s clearly indicated to employee Paul Jones that the reason for the discharges was discriminatory and violative of the Act and as such violated Paul Jones' rights as an em- ployee and was violative of Section 8(a)(1). Although there was no allegation in the complaint concerning this invasion of Section 8(a)(1), it was litigated by direct ex- amination and cross-examination and Respondent did not seek to contest it further since Joe Brooks was not produced. I therefore conclude and find that by this state- ment Respondent violated Section 8(a)(1) in that Respond- ent threatened its employees that their jobs were in jeopardy if they joined and supported the Union. I would treat any defense that it was a friendly conversation between brothers-in-law in the same manner as 5 above. 9. In December 1965, Wade Crouch told employee Bonner that Robert Jones was a hothead and his union proclivities had a lot to do with the way he acted. He told Bonner that the Union was no good and it would be best for him not to mess with it. I credit Bonner's undenied testimony and find and con- clude that Respondent by Crouch violated Section 8(a)(1) by warning Bonner that the Union was no good and it would be better for him not to join it. 10. Paul Jones testified that in June, following the discharge of his brother, he asked Warehouse Superinten- dent Griffin for a raise and Griffin said he would check into it and see if he could get one for him. Not hearing SCHILL STEEL PRODUCTS, INC. 353 from Griffin, Jones asked him about the raise and Griffin, after denying knowledge of the request, said he could not give him a raise, that the Union would not allow it, that the Union did not give but two to three raises a year. Jones asked what that had to do with him. Griffin said, "You know what I am talking about." When Jones said no, Griffin said, "You signed one of those cards." When Jones said he did not know what cards, Griffin said, "One of the union cards," that he knew Jones and Wilson had signed them, that "they asked for it so let the Union give them a raise," that he had seen their names on a card. Jones testified he did not argue with Griffin since he had signed a union card. Griffin admitted the first conversation and at first de- nied the second, saying Jones received a raise 2 to 3 weeks later. Later in his testimony Griffin, in essence, ad- mitted a second conversation recalling he had told Jones that he knew two people who had signed union cards. Later during cross-examination, Griffin said he had no knowledge of mentioning the Union to Jones, and although he might have had a second conversation with Jones, he did not recall mentioning the Union. Still later Griffin said he did have a second conversation with Jones in which Jones asked what he had done about the raise and he replied that he had not been able to do anything yet but would do something as soon as he could. Elsewhere in this Decision, I have noted Griffin's many contradictions and I place little credence in his testimony. Griffin seemed to follow a pattern of im- mediately denying on direct examination that he had done the thing in question and then admitting part of it on cross- examination but trying to cut a line between free speech and 8(a)(1). I do not believe his denial of this testimony and find and conclude that Respondent by Griffin violated Section 8(a)(1) by trying to undermine the Union's position as bargaining agent by threatening em- ployees that they would get no raises because of their union membership. C. Respondent's Additional Defenses to the 8(a)(1) Violations Respondent, in regard to the 8(a)(1) violations by Crouch and Brooks, urges that no such findings be made because they are minor supervisors who have been in- structed not to have anything to do with the Union, "to neither promote it or demote it." Griffin testified generally that leadermen and foremen have been in- structed not to say a word for or against the Union, that the Union was none of their business. Whether such instructions were given and the sincerity of them can be judged by what the instructions are, when and how given, whether employees know of the instruc- tions, and whether they are policed. Here we are given no details whatever about such in- structions and, in addition, Respondent witness, Leaderman Johnson, testified that he had never received such instructions. Further, neither Crouch nor Brooks was called to testify about such instructions or to explain their statement to employees. I must conclude that Crouch and Brooks would not have supported Respond- ent but rather would corroborate General Counsel's wit- ness and, in this instance, would have corroborated John- son's testimony concerning the absence of instructions. Further, the law is clear that coercive acts of a supervisor are attributable to the employer. To the 8(a) (1) violations concerning raises (2, 3, 4, and 10, above)-Respondent offered an ingenious defense. Part of the affirmative order in the first and second cases, en- forced by the Fifth Circuit, required Respondent to con- sult with the Union before granting its employees raises. During contract negotiations, which is part of the third case, Respondent and the Union reached agreement on a wage clause providing for one general 5-cent wage in- crease and up to six wage increments of 5 cents each to be granted within a year at Respondent's discretion based on seniority and ability. The wage clause also provided for notification to the Union of the amount, date, and name of employees granted raises. On September 7, 1965, Respondent by letter offered to make the contract provisions regarding wages effective with a 1-month retroactive wage increase, The Union, by letter on September 10, 1965, confirmed a prior telephone conversation and agreed to Respondent putting the wages tentatively agreed upon in effect and asked the Company to iron out inequities in the wage structure and notify the Union of the new individual rates. Respondent claims that the agreement and effectuation of this clause constitutes compliance with the affirmative provisions of the first and second cases regarding consultation on wage increases referred to above, and that it was bound by this clause in giving raises. Respondent admits it has not ef- fectuated the entire wage-contract clause since it has never given the Union any information on the amount, date, or names of employees granted increases since Sep- tember 7,1965. I am not called upon to decide whether Respondent's actions constitute compliance with the affirmative or negative provisions of the first and second cases and will not do so. This defense of considering itself bound by this wage provision has nothing to do with the violations found in 2, 3, 4, and 10, above. The deliberate untruths told employees in Griffin, Crouch, and Brooks' state- ments clearly were calculated to create ill will and bring discredit on the Union. Here Respondent sought to deceive the employees as to what the contract terms pro- vided and in order to conceal Griffin's refusal to grant raises, attempted to blame the Union for prohibiting the raises the Union had agreed employees were entitled to receive. The contract provision was misused by Respond- ent and its terms grossly distorted and it may not serve as a shield to the violations found. D. The 8(a)(3) Violations Respondent maintains an inventory of various types of steel for construction and other purposes which it cuts and ships on instructions from its customers. Some types of steel are not kept in stock but are "bought out"; i.e., bought from other suppliers. On April 29, order 55966 was taken for one 96-inch piece of 12 by 12,72-pound, wide flange steel beam, to be shipped to the R. N. Adams Construction Company at Kauffman, Texas. A second order 55967 was placed for four 96-inch pieces of the same type steel beam to be shipped to the same company at Junction, Texas, After the orders are typed, they are sent to the warehouse office where they are broken down according to the bay that handles the type of steel ordered. In this case bay 2 handles construction steel. When the type of steel needed is not in stock, the order is placed on a "hold board" while the steel is "bought out." According to the testimony, "hold" orders are usually placed on top of the other orders on the "hold board" for the bay and 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gradually move down on the "board" as new orders are placed on top. One bay leaderman testified that he checks with the warehouse foreman if the ordered material is not received within a week of its placement on the "hold board." The bay 2 day-shift leaderman was certain that these two orders were together on the "hold board." A 40-foot steel beam "bought out," was delivered to the plant and placed in the driveway on May 2. Jones testified that he checked it in and got order 55967 for the four 8-feet pieces. Jones testified that Jackson, who was regularly assigned to help him in bay 2, had been called to the front to assist unloading a truck and that while he was working on this beam, Jackson came back. By that time Jones had measured and cut one 96-inch portion using an acetylene torch. He states, and Jackson corroborates, that Jackson asked if he wanted him to mark it off. Jones told him to mark off another 96-inch portion. Jackson testified that he misunderstood Jones and thought he said 9-feet 6 inches and consequently marked off a 144-inch portion, which Jones, attired in goggles, cut. Jackson proceeded to mark off two more 114-inch portions which Jones cut. After finishing the cuts, Jones took off his gog- gles, looked at what he had cut, and remeasured it finding three pieces were each 18 inches too long. The three pieces were remeasured and Jones cut 18-inch sections off each, leaving four 96-inch beams, three pieces 18 inches long, and one piece 42 inches long. They got the four 96-inch pieces together, marked and put shipping tags on the bundle, and got crane operator Gannon to hoist them to the spot where they would be loaded on a truck. Jones testified they then moved the four remaining small pieces to the "scrap barrel. `4 Jackson gave more details saying that they used chains from the hoist which he had to undo when the scrap was placed in the scrap barrel. Crane operator Gannon testified that he used a self-locking clamp to pick up the scrap pieces separately and placed the three 18-inch pieces in the "scrap barrel" and for the 42-inch piece, took a hand signal which he interpreted to mean that it should be placed on the "random pile" at the rear of the plant. Gannon could not state whether Jones or Jackson gave him the signal. He placed the 42-inch piece on top of the random pile and no one directed him where to put it. I think Jackson testified as to what is generally done in picking up pieces of steel and believe that Gannon's testimony is more nearly accurate as to what was done with the scrap, and his use of a pressure clamp to move the scrap. I conclude and find that Gannon at Jones' and Jackson's instructions moved the three 18-inch pieces separately to the "scrap barrel" and when Gannon picked up the 42-inch piece and was given the signal to take it away, misinterpreted the signal to mean he should place the piece on the "random pile," and as he started his crane, Jones and Jackson went toward the office to check the "hold board," and did not see Gannon place the 42- inch piece on the "random pile." Jones testified that he did not see order 55966 for the one 96-inch beam, and when Jackson asked what they should do with the "drop" (remainder of the cut) Jones said that there were no orders for it, but to double check, they both went by the office and found no order for the ,'drop.,, Bay Leaderman Johnson testified that about 7 a.m.- on the following day, after checking his order, he saw that the four 96-inch beams had been cut and figured that there was one 96-inch piece left. He gave his men order 55966 for the one 96-inch piece, and told them to find the "drop" from the 40-foot beam and fill the order. He testified he found this order on the top of the "hold board" orders, which means it was not in a normal posi- tion, since with additional orders it would have sifted toward the bottom of the "hold" pile in 4 days. It seems apparent that this order was removed from the "hold board" by someone and later placed back on top of the pile. Bay leaderman Johnson stated that his men did not find the 8-foot piece, and after a quick look, he asked Warehouse Superintendent Griffin about the possibility that the beam was short and an 8-foot section might not be left. After Griffin said it was a 40-foot beam, and that possibly the cuts were made wrong, he checked the four pieces in the driveway and found they were the right length and after looking further found three 18-inch pieces in the scrap barrel. Realizing they would not ac- count for all the beam, he 'reported his findings to Griffin who told him that the balance of the beam had to be somewhere. Johnson got Alex Ross to help him look and finally found a 42-inch piece on top of the random pile near the rear of the plant. About that time Griffin came by and he gave Griffin the order for the one 8-foot piece. Griffin said he would get another beam because the order was supposed to go out that night. Johnson took the 42- inch piece from the "random pile" with a crane and put it in the "scrap barrel." Griffin testified somewhat differently from Johnson, and in places contradicted himself. At one point he testified he personally saw the orders together on the clip- board every day from April 29 through May 2. Later he testified that he could not swear that he saw the orders on the "board" each and every day. Still later in his testimony, Griffin said he did see them on the "hold board" every day. Griffin said Johnson came to him and asked where the rest of the order was, that they had found the four beams but couldn't find the one 8-foot piece. Contrary to Johnson, Griffin states he helped Johnson look for the missing pieces and that they measured the four 96-inch pieces which were stacked and ready to ship, and looked further and found the 18-inch pieces of beam in the "scrap barrel" and kept looking because it did not check out. He testified that after measuring the three 18- inch pieces (after originally testifying there were four 18- inch and one 34-inch pieces) he told Johnson that "the balance of this beam has to be here, some place. Go look in the random pile; evidently- I hate to say this- but evidently they have hid the other piece. Since they made this mistake and we found this one it just leads to nothing else but they hid it." Griffin said Johnson and Alex Ross went to the back and found the 42-inch piece which should have been put in the "scrap barrel." After giving the above testimony, Griffin testified that he did not im- mediately conclude that Jones and Jackson had attempted to conceal their mistake, but that he had all day to think it over and finally concluded that an attempt to conceal the mistake had been made by hiding the 42-inch piece and- this justified discharge for both men. He stated that ' The "barrel" is actually a blocked off area surrounded by a steel wall several feet tall, wherein pieces under 4 feet are placed The "random pile" for pieces over 4 feet is located near the back of the plant SCHILL STEEL PRODUCTS, INC. he did not decide to fire them until he talked to the two and "if they had reported it that night, they would be working there today." Griffin, at another point in the hearing, testified that Jones and Jackson continually blamed each other for the mistake and he had no way of knowing who was telling the truth. "Well, I had no alter- native, I had to dismiss them both to get the right one that was at fault." Queried that it was because they made the mistake that he dismissed them, Griffin said, "Well, it was because they made the mistake and then hid the piece, trying to conceal the mistake. If they had told me `We are just sorry, we cut the beam up wrong,' I would have not even considered firing them. But they kept blam- ing it on the other one and there was no other alterna- tive." Griffin also stated that during the discharge conver- sation he got no answer to his question as to why they did not put all the pieces in the scrap barrel. Jones testified that when he came to work on the after- noon of May 3, his timecard was not in the rack and Joe Brooks told him Griffin wanted to see him in the office. In response to Griffin's question of what happened to the beam, he told Griffin he had properly measured and cut the first piece and when Jackson came back to help him, Jackson misunderstood his instruction and instead of marking a 96-inch cut, marked the beam at 9 feet 6 inches and he cut the mismarked sections. Griffin said he would get Jackson in and did so. With Jones sitting there, Griffin asked Jackson what happened and Jackson verified Jones' statement saying he had understood Jones to say 9 feet 6.5 Griffin told Jones and Jackson they had cost the Company two or three hundred dollars and to bring in their uniforms and get their checks the next day. Jackson corroborated Jones stating that on May 3 he had worked a few minutes when Griffin called him into the office. With Jones present, Griffin asked if he knew anything about the beam cut. He told Griffin he had un- derstood Jones to say 9 feet 6 inches and after the cut found it was supposed to be 96 inches. Jackson testified Griffin said they had cost the Company $300 and got him chewed out and he had no alternative but to discharge them, that they were to come back the next day and bring their uniforms and get their checks. Both Jones and Jackson testified that nothing was said about hiding a piece of the beam and denied that they were accused of trying to hide a mistake. Respondent placed much stress on the two orders being together when they came from the office and being together on the "hold board," intimating that Jones and/or Jackson should have seen both. But as noted above Jones and Jackson did not find the order for the one piece and that order was found on top of the "board" on the following day indicating it had been removed and later replaced by someone. I am not willing to assume that Jones and Jackson saw this order. Their actions in putting the scrap in the "scrap barrel" is consistent with their testimony that they did not see or know of the order for the one piece. In essence, not knowing of the order, their mistake consisted of miscutting the beam and wind- ing up with four pieces in the "scrap barrel" instead of one 8-foot piece on the "random pile." But Warehouse Superintendent Griffin said he did not discharge them for a mistake in cutting the beam, so that this admitted 355 mistake was not Respondent's reason for discharging them. We come then to whether the reason for discharge was because Jackson and Jones blamed each other, didn't confess their mistake and say they were sorry, or because they tried to hide their mistake, all of which Griffin stated at various times. I have credited Jones and Jackson in that they agreed and told Griffin that Jackson had misunderstood Jones' directions for marking the beam. Griffin's testimony doesn't really dispute this point because Griffin testified to his conclusions that they blamed each other and not as to what was said. As seen above Jones and Jackson didn't have any reason to seek out a supervisor and confess a mistake, but did admit it when asked about it. Respondent intimates they should have sought out Night Leaderman Joe Brooks and brought it to Brooks' attention. But when Griffin discharged them, Griffin did not know whether they had told Brooks about the error or not, since Griffin stated he had not talked to Brooks about it. The fact that three 18-inch pieces were in plain view in the "scrap barrel" proves there was no attempt to hide a mistake. With four 8-foot sections cut from a 40-foot beam, there could only be 8 feet left. If only one 18-inch section of beam were in the "barrel" it would be obvious to anyone seeing it that a mistake in cutting the beam had been made. When Leadermen Johnson and Alex Ross found the three 18-inch sections, they knew not only that a mistake had been made but also that 42 inches of the beam was missing, but no matter where it was, the mistake in cutting the beam was self-evident and could not be hidden. Since no attempt was made to hide a mistake and Jones and Jackson did admit the mistake when questioned about it, I can only conclude they were treated differently than employee Bonner in a nearly identical situation. Jimmy Lee Bonner testified that on one occasion he was supposed to cut two 16-foot sections from a 40-foot, 10 by 10, 54-pound, wide flange beam, but made a mistake and cut one 16-foot and one 12-foot piece. After discovering his mistake, he cut another piece 4 feet long to make up the length that was ordered and told Leaderman Joe Brooks about his mistake. The next day Griffin talked to him about the mistake and told him to be more careful. Warehouse Superintendent Griffin testified that a salesman called and told him of the mistake the fol- lowing day and he reprimanded Bonner when he came to work and asked him to be more careful. He stated he did not talk to Leaderman Brooks before talking to Bonner, and did not learn of the mistake from Brooks. The only apparent reason for the different treatment is that Griffin knew Jones and Jackson were active union members, who were told that Respondent was looking for an excuse to rid itself of them. (See 1, 4, 6, 8, and 9, above.) But Warehouse Superintendent Griffin, despite the statements made by Brooks and Crouch, testified he did not know Robert Jones and Lionel Jackson were union members when he discharged them. Union Representative C. T. Ray testified that while present for the third case in this series, he had in his pos- session signed union authorization cards for Jones and Jackson and some 27 other employees. These cards were 5 Griffin originally testified that after questioning Jones about the mistake, he questioned Jackson in private in the office and then brought the two of them together and they kept blaming one another 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD handed to Respondent's counsel, who, with Respondent Personnel Manager John Miller, perused them to count and see that they were signed. Ray testified that Griffin looked at the cards with Miller. Griffin stated he was not with Miller but was separately seated during the third hearing. Griffin further testified he only knew that two employees, Predo Braden and Joe Davis, were in the Union. Later in his testimony, Griffin testified that during the third hearing he was shown union authorization cards for Henry Wilson and Charles Grayson and authenticated their signatures. He then testified that as far as knowing who was in the Union, Wilson and Grayson were the only t,vo he could swear to. In view of this and his other numerous contradictory statements and the fact that Griffin testified to his conclu- sions and did not attempt to recall what occurred but rather testified either carelessly or as he thought best at the moment, I do not believe Griffin's statement that he did not look at the union cards when he had the opportu- nity. I note further that Griffin later told Paul Jones that he knew Paul Jones had signed a union card and he had seen the card. I credit Ray that he saw Griffin looking at the cards, and conclude and find that Griffin knew Jones and Jackson were union members when he discharged them. I conclude and find that Respondent violated section 8(a)(3) and (1) by the discharges of Robert Jones and Lionel Jackson. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, and therein found to constitute unfair labor prac- tices in violation of Section 8(a)(3) and (1) of the Act, oc- curring in connection with Respondent's business opera- tions as set forth in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent engaged in the unfair labor practices set forth above, it is recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act as fol- lows: Respondent having discharged and thereafter having refused to reinstate Robert Jones and Lionel Jackson because of their union activities, it is recommended that Respondent offer to them immediate and full reinstate- ment to their former positions, or if those are unavailable through change in Respondent's operations, to a substan- tially equivalent position, without prejudice to the senior- ity or other rights and privileges they may have, and that Respondent make them whole for any loss of pay they may have suffered by reason of Respondent's discrimina- tion against them, by payment to them of a sum equal to that which they would have normally received as wages from May 3, 1966, the date of their discriminatory discharges, until the day Respondent reinstates them, less any net earnings for the interim. Backpay is to be com- puted on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent to be computed in the manner set forth in Isis Plumbing & Heating Co., Inc., 138 NLRB 716. It is further recommended that Respond- ent make available to the Board, upon request, payroll and other records in order to facilitate the checking of the amount of backpay due and the rights of reinstatement of Robert Jones and Lionel Jackson. Respondent as part of its defense has stated it con- siders itself bound by the wage clause referred to above (C. Respondent's Additional Defenses to the 8(a)(1) Violations) but in denying raises to its employees has untruthfully blamed the Union therefore and distorted the terms of the clause. It is therefore recommended that Respondent truthfully inform its employees of the terms of this clause by distributing a copy of such clause to each of its employees. If, in the interim, Respondent and the Union reach a new or different agreement as to wages, then Respondent shall notify its employees of such agree- ment and provide copies of such wage provisions for each of its employees. Having found that Respondent has discriminated against Jones and Jackson because they exercised their rights under the Act, and that Respondent has interfered with the rights of its other employees by its discrimination against Jones and Jackson and by having otherwise in- vaded its employees' rights under the Act, and noting further Respondent's history of violations by which it has tampered with its employees' rights, I am convinced that there is a danger Respondent may commit additional and other unfair labor practices unless effectively restrained from so doing. Because a part of the purpose of this Act is to prevent the commission of further unfair labor prac- tices, I hereby recommend that Respondent be placed under a broad order to cease and desist from in any manner infringing upon the rights guaranteed its em- ployees by the Act. On the basis of the foregoing findings and the entire record, I make the following: CONCLUSIONS OF LAW 1. Schill Steel Products, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By discriminatorily discharging Robert Jones and Lionel Jackson on May 3, 1966, and thereafter refusing to reinstate them because of their union membership, ac- tivities, and desires, Respondent engaged in and is engag- ing in unfair labor practices affecting commerce within the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act. 4. By interrogating employees concerning their union desires and membership and informing employees it would be best for them not to join the Union and that they would be harrassed by their supervisors because they had signed union cards and that because of union membership they would not receive wage increases, and that the Union would not allow them further wage increases, Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sec- tions 8(a)(1) and 2(6) and (7) of the Act. RECOMMENDED ORDER On the basis of the foregoing findings of fact and con- clusions of law, and upon the entire record in this case SCHILL STEEL PRODUCTS, INC. 357 considered as a whole, I hereby recommend that Schill Steel Products, Inc., Houston, Texas, it officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in and activities on be- half of United Steelworkers of America, AFL-CIO, or any other labor organization, by discriminatorily discouraging and not reemploying its employees or by discriminating against them in any other manner. (b) Threatening its employees that they would not receive wage raises because they belonged to the Union, or untruthfully informing employees that the Union would not allow further increases. (c) Threatening its employees that they would con- tinually be harassed by Respondent's supervisors because they were union members. (d) Interrogating employees concerning their union membership or desires and informing them that it would be best for them not to join the Union. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the United Steelworkers of America, AFL-CIO, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Robert Jones and Lionel Jackson im- mediate reinstatement in accordance with the recommen- dations set forth in the section of this Decision entitled "The Remedy." (b) Make Robert Jones and Lionel Jackson whole for any loss of pay they may have suffered by reason of Respondent's discrimination against them in accordance with the recommendations set forth in the section of this Decision entitled "The Remedy." (c) 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 or reports, and all records necessary to analyze the amount of backpay due and the rights of Robert Jones and Lionel Jackson under the terms of this Recommended Order. (d) Provide each of its employees with information on the provisions for wage raises in accordance with the recommendations set forth in the section of this Decision entitled "The Remedy." (e) Post at its Houston, Texas, plant, copies of the at- tached notice marked "Appendix. "6 Copies of such notice, to be furnished by the Regional Director for Re- gion 23, after being signed by Warehouse Superintendent Earl A. Griffin7 and any other responsible Respondent agent, shall be posted by Respondent immediately upon receipt thereof, and be maintained 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. (f) Notify the Regional Director for Region 23, in writing, within 20 days from the receipt of this Deci- sion, what steps Respondent has taken to comply herewith." 6 In the event that this Recommended Order is adopted by the Board, the words "A Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " Y It is recommended that Warehouse Superintendent Earl Griffin sign this notice , since, according to the testimony above and the resolutions I have made, he was the main respondent agent who violated the Act in this matter and it appears necessary to -me that he should inform the em- ployees that as Respondent 's representative , he will not engage in further violations Another responsible respondent agent should also sign the notice to attest to Respondent's affirmation that it will not permit any further violations. See General Truckdrivers, Warehousemen and Helpers ofAmerica Local #5, et al., 161 NLRB 493 8 In the event that this Recommended Order is 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 Re- spondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: Following a trial in which the Company, the Union, and the General Counsel of the NLRB participated and offered their evidence, a Trial Examiner of the NLRB has found that we violated the law and has or- dered us to post this notice and to abide by what we say in this notice. WE WILL NOT try to discourage you from becom- ing or being a member of United Steelworkers of America, AFL-CIO, by firing our employees. WE WILL NOT threaten that you will not receive raises or that we will ride or harass you or any of our employees because of union membership. WE WILL NOT discourage you from union activities or membership by questioning you about whether you are or would like to be a union member, WE WILL NOT untruthfully tell you that the Union will not permit you to have a raise. WE WILL give you a copy of the wage raise clause presently in effect. WE WILL NOT in any other way try to discourage you from becoming or being members of United Steelworkers of America , AFL-CIO. WE WILL offer Robert Jones and Lionel Jackson their former jobs with all of their rights and any backpay due. All our employees are free to become or remain union members. SCHILL STEEL PRODUCTS, INC. (Employer) Dated By Earl A. Griffin Warehouse Superintendent 308-926 0-70-24 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecutive or compliance with its provisions, they may communicate days from the date of posting and must not be altered , directly with the Board's Regional Office, 6617 Federal defaced, or covered by any other material. Office Building, 515 Rusk Avenue, Houston, Texas If employees have any question concerning this notice 77002, Telephone 228-0611.