Calumet & Hecla, Inc.

WOLVERINE TUBE DIVISION 27 Wolverine Tube Division, Calumet & Hecla, Inc. and International Brotherhood of Boilermakers, Iron Shipbuilders , Blacksmiths, Forgers and Help- ers, AFL-CIO. Case 10-CA-6910 June 21, 1968 DECISION AND ORDER BY MEMBERS BROWN, ZAGORIA, AND JENKINS On November 13, 1967, Trial Examiner Harry R. Hinkes issued his Decision in the above -entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended , and recommending that it cease and desist therefrom and take certain affirm- ative action, as set forth in the attached Trial Ex- aminer's Decision . Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection 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 Exainer's Decision and the entire record in this case, including the exceptions and brief, and hereby adopts the findings , conclusions, and recom- mendations of the Trial Examiner only to the extent consistent herewith. We agree with the Trial Examiner that Respon- dent violated Section 8(a)(1) of the Act by the in- terrogation and statements made by supervisors. However, we do not agree with the Trial Ex- aminer's finding that employee Callaway was discharged because of his union activities in viola- tion of Section 8(a)(3) of the Act. On March 22, 1967, Callaway became involved in a fight with a former police officer, in the course of which he broke the officer's nose and knocked loose several of his teeth. Later, about 3:30 p.m., he reported for work. Callaway related this en- counter to his foreman but was told to go to work on his crane. About 4:15 p.m., an employee re- ported to a supervisor of Respondent that Callaway appeared to be under the influence of liquor. As Respondent prepared to take action on the basis of this report, police arrived at the plant about 5 p.m. with a warrant for Callaway's arrest on assault and battery charges.' Callaway was called to the gatehouse where the arrest was made. He asked Respondent's operations superintendent if he could return to work after posting bond but was told not to return that day but to report to the office on the next morning. Callaway then asked the police if he could post bond and was told that he could but that, before being released, he would, under exist- ing procedure, have to spend 5 hours in jail because he was intoxicated. Testimony of the arresting po- lice describes Callaway as having bloodshot eyes and an alcoholic breath, slurred speech, and being wobbly and "very intoxicated." Callaway denied that he had been drinking, and at the hearing claimed that he had consumed only a can of beer around noon that day. On the next day, Callaway reported as directed. He was informed that he was suspended while Respondent investigated events of the day before. On March 29, Callaway was discharged. He was told that he was being discharged for being on the job under the influence of liquor and because he lost time from work on account of his arrest. Also, he was reminded of a reprimand in 1957 for being under the influence of liquor while at work and a warning at the time that he would be discharged if that happened again. And, Respondent recalled an occasion in 1963 when it warned Callaway that if he was again involved in a violation of law which affected his work he would be discharged. As noted above, the Trial Examiner found that Callaway was discharged because of his union ac- tivities. In so concluding, he reasoned that "just cause" for the discharge did not exist and that, in any event, if such cause existed it served only as a pretext for the discharge of a union adherent. We have already indicated that we do not share this view of the record. If Respondent had reason to believe that Cal- laway was under the influence of liquor on March 22, when he was arrested by police and taken away from his work, it had ample cause to discharge him. Significantly, the arresting police officers were of the opinion that Callaway was intoxicated as Respondent claims he was. The testimony given by three policemen establishes Callaway's intoxicated condition to our satisfaction. The Trial Examiner did not regard their testimony as being "very probative" for reasons such as that Callaway was not charged with intoxication and the police refused him a sobriety test, even at his own ex- pense. However, the police explained that under local law and practice they could not bring drun- kenness charges against Callaway when they were arresting him on private property for another of- ' Callaway was later convicted on these charges. 172 NLRB No. 5 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fense, and they do not give sobriety tests. We find their testimony as to Callaway's condition about 5 p.m. on March 22 more persuasive than those con- siderations which influenced the Trial Examiner to accept Callaway's claim of sobriety. By March 22, Callaway had been engaged in union activity for a considerable period of time without reprisal from Respondent, and the Union had just lost an election by a vote of 561 to 125. But even more significant in our thinking on the remaining issue of Respondent 's motivation for the discharge is the fact that, long before the advent of the Union, at a time when Respondent's demon- strated concern and actions could not have been in- spired by union considerations, it had warned Cal- laway of discharge if he was again on the job under the influence of liquor or was involved in a viola- tion of law which affected his work, as we find he was on March 22. Considering all the circum- stances of this case , we believe that it was the events of March 22 which motivated Respondent to discharge Callaway. The Respondent's 8(a)(1) con- duct may be some cause for suspicion but we do not believe on the facts here, that it is sufficient to establish that Respondent's motive was unlawful. We therefore find that Callaway was discharged for cause and we shall dismiss the complaint insofar as it alleges otherwise. 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, Wol- verine Tube Division, Calumet & Hecla , Inc., 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 in their entirety paragraphs 1(c) and 2(a), (b), (c), and (d) and reletter the other para- graphs accordingly. 2. Delete the third, fifth, sixth, and seventh in- dented paragraphs of the Appendix attached to the Trial Examiner's Decision. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges that Charles Callawy was discharged in violation of the Act. MEMBER JENKINS dissenting: My colleagues have devoted most of their atten- tion to a graphic description of employee Cal- ' Callaway had passed out union authorization cards, handbilled the plant, served as an observer at the Board -conducted election , and served on the organizing committee laway's alleged inebriated condition. The issue, however, is not whether he was intoxicated or to what extent, although the Trial Examiner noted several facts which made the matter rather less cer- tain than the majority seems to think. Instead, the issue is whether Callaway was discharged for reasons wholly or partly relating to his union activi- ty. On this issue, the Trial Examiner noted and credited Callaway's testimony that in December 1966 or January 1967, Foreman Woodward asked Callaway how he would like to lose his job and work at a Decatur shipbuilding firm where they had a Boilermakers union; that Foreman Woodward stated he had been asked by "higher ups" how long Callaway had been driving for the Roadway Ex- press Company adding "is that where you get your union stuff?"; that Woodward further stated that "the Company has been awful good to you, you know that we do not need a union in here." Employee Coffey's credited testimony was that several weeks after Callaway had been discharged he inquired of Foreman Clem the reason for his discharge and Clem replied "you knew that they did not want a union out here ... [Callaway] kept on antagonizing them until he gave them a good ex- cuse and they let him go." As the Trial Examiner noted "After considering all of the testimony and observing the demeanor of the witnesses quite closely," I am persuaded to credit the testimony of Callaway and Coffey "rather than that of Wood- ward and Clem." Thus the evidence, credited on the basis of demeanor, plainly establishes an admission by the Employer that Callaway was discharged for his union activity and that the asserted reason was a pretext. I therefore see no alternative to finding a violation of Section 8(a)(3) and must dissent from the dismissal of the complaint. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HARRY R. HINKES , Trial Examiner: The com- plaint herein was issued on June 7, 1967, pursuant to a charge by International Brotherhood of Boiler- makers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, herein called the Union, filed and served upon Wolverine Tube Division, Calumet & Hecla, Inc., herein called the Respon- dent or Company, on April 5, 1967. The Respon- dent is alleged to have engaged in unfair labor prac- tices by interrogating and threatening its employees in violation of Section 8(a)( I) of the Act as well as by the discharge of one of its employees, Callaway, because of his union or concerted activities in violation of Section 8(a)(1) and (3) of the Act. By WOLVERINE TUBE DIVISION 29 answer duly filed Respondent admitted the jurisdic- tional allegations of the complaint , the supervisory status of the individuals alleged in the complaint to be agents and supervisors of the Respondent, and the discharge of employee Callaway but denied the commission of any unfair labor practices. A hearing was held before me at Decatur, Alabama, on July 26 and 27, 1967, at which all parties were represented and were afforded full op- portunity to participate , examine witnesses , and ad- duce relevant evidence . All counsel waived oral ar- gument at the conclusion of the hearing , expressing a preference to submit written briefs . Only counsel for the General Counsel , however, has submitted a brief which has been given careful consideration by me. Upon the entire record in this case I make the following: FINDINGS OF FACT 1. JURISDICTION The complaint, as amended, alleges that the Respondent is and has been at all times material herein a Michigan corporation with an office and place of business located at Decatur , Alabama, where it is engaged in the manufacture and sale of copper tubing . During the past calendar year, which period is representative of all times material herein, Respondent sold and shipped finished products valued in excess of $50,000 directly to customers located outside the State of Alabama. The complaint alleges, Respondent's answer ad- mits, and I find that Respondent is and has been at all times material herein an employer engaged in commerce in the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent's answer ad- mits, and I find that the Union is now and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background At the outset of the hearing it was stipulated between counsel that the plant involved in this matter has not heretofore been "involved in any violations of the Act and has had no complaints prior to the immediate complaint involved herein that have ever been issued against this plant." It was further stipulated that "the Charging Union commenced an organizational campaign of the Respondent 's Decatur , Alabama, plant in mid- 1965, and that pursuant to a stipulation or consent election an election was held on March 10, 1966. The results of such election were as follows: 561 ballots against, 125 ballots for, 2 void ballots and 1 challenged ballot. On April 23, 1966, Charles Graves, International Representative of the Charg- ing Union, sent a letter to the Respondent's plant manager, R. L. McGregor, advising Respondent that the Charging Union had a continuing campaign at the Respondent's Decatur, Alabama, plant." B. The Alleged 8(a)(1) Charles Callaway testified that in December 1966, or January 1967, Respondent's Foreman Woodward asked Callaway how he would like to lose his job and work at a Decatur shipbuilding firm where they had a Boilermakers union . Around the same time Woodward told Callaway he had been asked by "higher ups" how long Callaway had been driving for the Roadway Express Company adding "is that where you get your union stuff?" Callaway replied that he couldn't join their union if he wanted to and that what he did on his own time was not the concern of Woodward. Woodward added, however, that "the Company has been awful good to you, you know that we do not need a union in here." On another occasion in January 1967, while Cal- laway was handing out union literature at the edge of railroad tracks outside the Wolverine property, Woodward told him, "I guess you are trying to get the Union in again." To this Callaway replied, "Yes, I was back with them and I had not left them." Woodward then reminded him how good the Company had been to him and told him that ,.we did not need the Union ." He added that the Union "caused brothers to turn against brothers and so forth." Employee James Coffey, who is still employed by the Respondent, testified that in November 1966, he and Callaway were riding together to work. Foreman Woodward told him , "I see you are riding with Callaway again . What are you trying to do, put the Union back on the railroad track?" Coffey also told of a conversation he had with Respondent's Foreman Clem to whom Coffey is related. Callaway had been discharged in March 1967, and several weeks later Coffey came to Clem and asked him why Callaway had been discharged. According to Coffey, Clem said, "you knew that they did not want a union out here ... [Callaway] kept on an- tagonizing them until he gave them a good excuse and they let him go." When Coffey observed that he did not have any "mark" against him , adding that "if they ever get rid of me they will have a fight on their hands," Clem told him "be careful." Cof- fey also had a conversation with Woodward in January . Woodward walked up to him and said, ,.you don't think that we really need a union in here do you?" adding, "you know that we have had brothers getting mad at brothers and a lot of good friends falling out and it even gets down to a loss of jobs." Foremen Woodward and Clem testifying on be- half of the Respondent, contradicted the testimony 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Callaway and Coffey. Specifically, Clem denied saying that they did not want a union or that Cal- laway had antagonized the Company until they found an excuse to get rid of him and Woodward denied telling Callaway about losing his job and working at the Decatur shipbuilding company. He also denied telling Coffey that he saw Coffey and Callaway riding together again or asking them if they were going to put the Union back on the rail- road tracks. He also denied the alleged remark about brothers falling out with brothers. The witnesses on behalf of counsel for the General Counsel were quite positive in their testimony. Equally positive were the denials of the witnesses called on the behalf of the Respondent. After considering all of the testimony and observing the demeanor of the witnesses quite closely I am persuaded to credit the testimony of Callaway and Coffey rather than that of Woodward and Clem. Although some of the remarks made by the foremen would appear to be superficially harmelss and innocent or, at most, a permitted expression of opinion, the same cannot be said of Woodward's asking Callaway how he would like to lose his job at the Respondent and work for another company, and the threat to both Callaway and Coffey that the Union caused brothers to turn against brothers and even a loss of jobs. Equally lacking in innocence is Clem's statement to Coffey that Callaway had been discharged for antagonizing the Company by his union activities. In the absence of the safeguards required in employer interrogation (Johnnie's Poultry Company, 146 NLRB 770), the remarks and questioning engaged in by Foremen Woodward and Clem must be deemed coercive and threaten- ing to the exercise of the rights of employees guaranteed in Section 7 of the Act, in violation of Section 8 (a)( I ). C. The Alleged 8(a)(3) Charles E. Callaway was hired by the Respondent in September 1951. He continued in the Respon- dent's employ until March 29, 1967, when he was terminated. His last classification was that of an overhead crane operator, which job involved the operation of a 5-ton crane transferring stock and loading trucks. On March 22, 1967, Callaway met a person with whom he had had previous difficulties. Words were exchanged and Callaway struck him. Later that af- ternoon Callaway reported to work about 3:30 p.m. There he mentioned his fight to Lentz, one of the employees, as well as to Vince Kantola, his depart- ment foreman. Callaway asked Kantola if he should check out so that he could post bond on an assault and battery charge which he expected to be lodged against him and then return to work. Kantola ad- vised him that in all probability nothing would hap- pen and that he should go up on the crane to work, which he did. Kantola left the plant some time between 4 and 4:30 p.m. at which time the foreman of the next shift, David Taylor, took over. About 5:15 p.m. Taylor instructed Callaway to come down and go to the gatehouse where he was wanted. Cal- laway estimated the distance from the crane to the gatehouse to be several hundred yards. Respon- dent's Labor Relations Supervisor John Bates esti- mated that distance to be about one-third of a mile. Billy Chapman, Respondent's Supervisor of Opera- tions on the second shift, estimated that distance to be about one-fourth of a mile. Callaway got on a bicycle and rode to the gatehouse. There he found three Decatur policemen with a warrant for his ar- rest. Supervisors Bates and Chapman were also present. Callaway asked Chapman if he could make bond and return to work but Chapman replied "no" and instructed him to come back the next morning at 9 a.m. Callaway then inquired of the po- lice whether he could put up bond but was in- formed that they would detain him for 5 hours because he had been drinking. Callaway denied drinking except for a 12-oz. can of beer which he had consumed around noon of that day and asked to be given a sobriety test. When the police refused, he then offered to pay for a sobriety test but the po- lice again refused. Callaway was detained by the police for 5 hours after which he was allowed to make bond for the assault and battery charge and released. He was not charged with intoxication or for being under the in- fluence of liquor. Callaway reported to work the next morning at 9 a.m. and was told by Bates and Chapman that they had received a report from another employee to the effect that Callaway had been drinking on the job the previous day. When Callaway denied drinking except for the can of beer, they told him they would investigate the incident but that he would have to leave the premises until they recalled him. About a week later Bates called Callaway and told him to report to the plant on March 29, 1967. On that day Bates informed him that it was manage- ment's decision to discharge him. Callaway was re- minded that he had been reprimanded 10 years earlier, in 1957, for drinking on the job and warned that a repetition could result in his discharge. He was also reminded that 4 years earlier, in 1963, he had used his vacation to serve a jail sentence and had been told that if he committed a violation of law which affected his work he would be discharged. He was then told that his discharge on March 29, 1967, was the result of his being on the job under the influence of liquor and being absent by reason of his arrest on a charge of assault and battery, both offenses after the final warnings of 1957 and 1963.' Witnesses called on behalf of the Respondent testified to more of the details surrounding Cal- ' The foregoing recitation of events concerning Callaway 's discharge is based largely upon the testimony given by Callaway. There is. however, no serious dispute on the events as related above WOLVERINE TUBE DIVISION 31 ]away's discharge. As respects the drinking offense, Respondent 's Employee Relations Manager Orr testified that on February 8, 1957 , he had given Callaway a warning for coming to work under the influence of alcohol on December 21, 1956, and that he was further warned that if this should recur in the future it would then become necessary to discharge him. Supervisor Bates testified that he received a report from an employee , Spears, on March 22, 1967 , around 4 : 15 p.m. that Callaway was at the plant under the influence of liquor. Spears told Bates that Callaway was under the in- fluence of liquor because of his loud talk , his ap- pearance, and because Callaway's tongue was green as if he had been using "Clorets." Spears, however, was not presented as a witness in this proceeding. Bates then called Orr and told him that Callaway was under the influence of alcohol . Bates was in- structed to come to Orr's office . Bates then " locked up ... [his ] desk and left everything in order" and walked to Orr's office , 1/10 of a mile away. Orr also called Operations Manager Blackwell and Su- perintendent Chapman . When all four were present, Callaway's alleged condition was con- sidered and "plans were formulated as to what should be done and Mr . Orr outlined on paper in pencil the steps that should be followed." It was de- cided that Chapman would call Callaway's super- visor and instruct him to send Callaway to the em- ployment office where Chapman would meet him and ascertain his condition . If Chapman found Cal- laway intoxicated or under the influence of alcohol, he was to go through "four steps": (1) direct Callaway to clock out; (2) as his superior , order Callaway to clock out; (3) suspend Callaway and order him to leave; (4) seek assistance of the plant protection officer to escort Callaway off Company pro- perty. By this time it was about 5 p.m. and the company officials knew Callaway had been working on the crane since 4 p .m., allegedly under the influence of liquor. Before Chapman could call Taylor, how- ever, a telephone call was received from the gatehouse informing them that the police had ar- rived with a warrant for Callaway 's arrest. Chap- man then called Taylor to send Callaway to the gatehouse . Chapman and Bates then proceeded to the gatehouse where they met the police and told them that the police had saved them "a lot of trouble" because the Company was in the process of sending Callaway home . When Callaway arrived at the gatehouse , Chapman told him not to return until 9 a .m. the following day and , when Callaway expressed some concern about leaving his car at the plant, arrangements were made for Callaway to be able to pick up his car later. Bates testified that the next morning Callaway was put on suspension while an investigation was to be made. This investigation consisted of a search of court records for other violations of law committed by Callaway. The investigation , however, did not include consultation with Foreman Kantola or Foreman Taylor, the only supervisors who saw Cal- laway at work and spoke with him . Moreover, Bates, who did not see Callaway at work , admitted that he took employee Spears' judgment regarding Callaway's alleged intoxication and, in turn, re- ported to Orr that Callaway was under the in- fluence of alcohol . Bates did testify that when he saw Callaway at the gatehouse , he concluded that Callaway's alleged intoxication and, in turn, re- flushed appearance and redness of his eyes. Chap- man also concluded that Callaway was under the influence of liquor when he saw him at the gatehouse . He based this conclusion upon the fact that Callaway was unsteady as he dismounted from the bike and had some difficulty leaning the bike against a concrete column . Chapman admitted, however, that he did not smell alcohol on Callaway even when he stood a mere 1-1 /2 feet away from him. Moreover, he admitted that Callaway had told him he had been welding which would have caused Callaway's eyes to be red normally. Perhaps the strongest support for the argument that Callaway was discharged for being under the influence of liquor at work is the testimony of the three policemen who arrested Callaway that day. They testified that Callaway's eyes were bloodshot, that he was wobbling, and that he had an alcoholic breath . Despite their apparent disinterest in this case, I do not regard their testimony as very proba- tive. It is significant to me that although these po- licemen thought Callaway was under the influence of liquor and, as one put it, "very intoxicated," no charge was lodged by them against Callaway on that ground . Moreover, their refusal of a sobriety test to Callaway even at Callaway 's own expense discredits their conclusion that he was intoxicated. I also note with interest their testimony that even one drink of beer renders a man under the influence of alcohol. As one of them testified , " anytime we smell any alcoholic beverages on a person, we do detain them," even if he is not intoxicated. This same officer stated that he could smell the odor of alcohol on Callaway's breath when he was "2 or 3 inches away" from him . He also testified that he ex- amined Callaway closely after Bates or Chapman told him Callaway had been drinking and wanted to know "if there was something we could hold him for." After considering all the testimony touching upon the issue of whether Callaway was under the influence of liquor I have come to the conclusion that the Company's explanation for his discharge was pretextuous and not the real reason for the discharge . It is undisputed that Callaway was quite active in union matters . He passed out union authorization cards , handbilled the plant , served as an observer at the Board -conducted election and served on the organizing committee . Moreover, Su- pervisor Bates knew that Callaway was perhaps the 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD most active employee in this respect. Indeed, Em- ployee Relations Manager Orr admitted discussing Callaway's union attitude with the Respondent's lawyer. The fact, however, that Respondent knew of Cal- laway's union activity and was guilty of interfering with the exercise of its employees' rights by the in- terrogation and statements of its supervisors referred to earlier would not protect Callaway from a discharge if just cause existed and motivated the discharge. I find, however, that just cause did not exist. I base this conclusion not only upon Cal- laway's testimony that he was not under the in- fluence of liquor on March 22, 1967, nor only upon the testimony of his fellow employee Lentz who corroborated Callaway's testimony, but upon the events themselves. I find it incredible that Respond' dent's Foremen Kantola and Taylor who saw Cal- laway and spoke with him would permit him to go up on the crane, a potentially lethal instrument, if they had the slightest suspicion of Callaway's intox- ication. I find it incredible to believe that Callaway would be able to ride a bicycle for as much as one- third of a mile without mishap if he were under the influence of liquor. I find it incredible to believe that Callaway would have the presence of mind to arrange for the disposition and future pickup of his car if he were under the influence of liquor. I find it incredible that Callaway would be able to discuss the availability of a sobriety test and the terms of payment therefor if he were under the influence of liquor. In short, I find Callaway was not under the influence of liquor the afternoon of March 22, 1967. This conclusion is strengthened by the fact that the Respondent reached its conclusion that Callaway was under the influence of liquor without bothering to investigate Callaway's condition with the only two supervisors who had had personal con- tact with Callaway at work. It is further strengthened by the fact that when word was al- legedly received that Callaway was under the in- fluence of liquor Respondent's supervisors proceeded to close desks, walk distances, discuss leisurely plans of handling the situation and engage in other matters which consumed at least 45 minutes during which time they would appear to have permitted Callaway to continue operating a crane under the influence of liquor. It seems much more reasonable for me to believe that if the Respondent's supervisors were really concerned about Callaway's alleged intoxication, they would have immediately got in touch with Callaway's su- pervisor to call him down from the crane so as to avoid any dangerous condition. It appears to me that the Respondent seized upon a convenient excuse and resurrected a 10-year-old offense to create ostensible grounds for discharge. In so doing it merely masked the real reason for Callaway's discharge which was, as Foreman Clem told Coffey, to rid itself of a union activist who kept on "antagonizing them until he gave them a good excuse." As respects the second reason advanced by the Respondent's witnesses for the discharge of Cal- laway, his absence from work following his arrest on March 22, Employee Relations Manager Orr testified that in 1963, Callaway had been convicted on a criminal charge and was sentenced to serve time in jail. Callaway took his vacation and served his jail sentence while on vacation. Orr admitted, of course, that Callaway's supervisor had approved the leave of absence requested by Callaway, that the leave of absence had been earned by Callaway, and that Supervisor Bates had also approved it. Su- pervisor Bates testified that when he approved Cal- laway's leave of absence, he was not aware that Callaway was to serve a jail sentence during his va- cation. He admitted, however, that the leave of absence had been approved by Callaway's super- visor. Callaway testified that Supervisor Kantola ap- proved Callaway's request for a leave of absence after Callaway told him that he intended to spend his vacation serving time in jail . Callaway's testimony stands uncontradicted and I credit it. Even Respondent's witnesses appear to agree with the way in which the leave of absence was handled. Their only criticism was directed against the higher company officials who did not take the trouble to ascertain the purpose of Callaway's leave of absence. As Supervisor Orr testified, the Company made an error when it allowed Callaway to take a vacation., Nevertheless, Callaway was told in 1963 that he would be fired if he was away from work thereafter because of a violation of law. It appears to be the Respondent's position that Callaway was absent from work on and after March 22, 1967, because of his arrest on a charge of as- sault and battery and that, accordingly, his discharge was fully warranted. I do not agree. I note that one of the Decatur policemen testified that Bates or Chapman wanted to know if there was something the police could hold Callaway for. Moreover, when Callaway asked if he could make bond and return to work that evening, Chapman told him to report the next morning instead. It seems clear to me that the Respondent's super- visors were intent upon preventing Callaway from working that evening. His absence that evening cannot, therefore, be attributed to any violation of law but must be attributed to the direct instructions of the supervisors. This is also true of Callaway's absence between March 23 and 29, during which time he was involuntarily suspended by Respon- dent's supervisors. Indeed, Respondent's super- visors admitted that Callaway's absence after March 22 was due entirely to their instructions to him to stay away from work. Accordingly, I can- not conclude that his absence was due to any vio- lation of law about which he had received a final warning several years ago. Even were I to assume that Callaway's absence on and after March 22 was the result of a violation of law, I am not convinced that such absence was the real reason for his discharge. Orr testified that WOLVERINE TUBE DIVISION another employee , Turner, was permitted to serve a jail sentence on weekends with the approval of company officials. Orr further testified that from the standpoint of company policy there was no dif- ference between an employee in jail on his vacation or on weekends, both periods being regarded as be- longing to the employee. Nevertheless, Callaway's vacation in jail in 1963 is the alleged reason for the final warnin* given him at that time and forms the basis for his dismissal in 1967, when he was detained for several hours by the police upon the assault and battery charge. This disparity of treat- ment accorded Callaway vis-a-vis employee Turner fortifies my conclusion that Callaway was discharged, not for cause, but for his union activi- ties. Southwire Company, 159 NLRB 394; Shattuck Denn Mining Corporation v. N.L.R.B., 362 F.2d 466 (C.A. 9). Having regard for the fact that Cal- laway was quite active in union matters (of which Respondent's supervisors were admittedly aware) and considering the contemporaneous conduct of the Respondent aimed to discourage union activi- ties discussed previously, I conclude that Callaway was discharged for his union activities in violation of Section 8(a)(3) of the Act. N.L.R.B. v. Dan River Mills, Incorporated, Alabama Division, 274 F.2d 381, 384 (C.A. 5). CONCLUSIONS OF LAW 1. Respondent has committed unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act by the interrogation and statements of its su- pervisors , Woodward and Clem, in November and December 1966, and January and March 1967. 2. Respondent has committed unfair labor prac- tices within the meaning of Section 8(a)(3) of the Act by the suspension and dismissal of employee Callaway in March 1967, for his union activities. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that. the Respondent has engaged in certain unfair labor practices , it is recommended that it cease and desist therefrom and from in any like or related manner infringing on the rights of employees guaranteed by Section 7 of the Act. Since I have concluded that the suspension and dismissal of Callaway in March 1967 was motivated by the Respondent's antiunion animus, I shall recommend that it be ordered to make him whole for any loss of earnings suffered by reason of the discrimination against him by payment of a sum of money equal to that which he normally would have earned as wages from the date of his suspension to the date of Respondent's offer of reinstatement or the date of his return to duty, whichever is earlier, less any net earnings during said period (Corssett Lumber Company, 8 NLRB 440), and in the 33 manner prescribed in F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law , I recommend that the Respon- dent, Wolverine Tube Division, Calumet and Hecla, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating employees concern- ing their union activities and attitudes. (b) Threatening losses to the employees if the employees join the Union. (c) Discouraging membership in and activity on behalf of the International Brotherhood of Boiler- makers, Iron Shipbuilders , Blacksmiths, Forgers and Helpers, AFL-CIO, or any other labor or- ganization by dischargin* or refusing to reinstate employees or by discriminating against employees in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their right to self-organization, to form, join, or assist the Union or any other labor or- ganization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities. 2. Take the following affirmative action to effec- tuate the policies of the Act: (a) Offer Charles Callaway immediate and full reinstatement to the position held by him prior to March 22, 1967, or a substantially equivalent posi- tion, without prejudice to seniority or other rights and privileges. (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Ser- vice Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. (c) Make Charles Callaway whole for any loss of earnings suffered by reason of the discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (d) 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 relevant and necessary for a determination of compliance with paragraphs (a) and (c ) above. 354-126 O-LT - 73 - pt. 1 - 4 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Post at its plant in Decatur , Alabama, copies of the attached notice marked "Appendix. "2 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 10, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' ' 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." ' 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 Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate you unlawfully concerning your union activities or attitudes. WE WILL NOT threaten losses to you if you join the Union. WE WILL NOT discourage membership in and activity on behalf of the International Brother- hood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, or any other labor organization by discharging or refusing to reinstate employees or by dis- criminating against employees in any other manner in regard to their hire or tenure of em- ployment or any term or condition of employ- ment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your right to self-organization, to form , join, or assist the Union or any other labor organization , to bargain collectively through representatives of your own choosing or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. WE WILL offer Charles Callaway immediate and full reinstatement to the position held by him prior to March 22, 1967, or a substantially equivalent position without prejudice to his seniority or other rights and privileges. WE WILL notify Charles Callaway if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. WE WILL make Charles Callaway whole for any loss of earnings suffered by reason of the discrimination practiced against him. WOLVERINE TUBE, CALUMET AND HECLA, INC. (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced , or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board 's Regional Office, 730 Peachtree Street, NE., Room 701, At- lanta, Georgia 30308, Telephone 526-5760.