Formed Tubes Southern, Inc.

12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Formed Tubes Southern , Inc., and International Un- ion, United Automobile, Aerospace & Agricultural Implement Workers of America, UAF. Case 10- CA-7660 January 25, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On June 29, 1970, Trial Examiner George L. Powell issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was en- gaging in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Re- spondent did not engage in certain other unfair labor practices and recommended that these allegations of the complaint be dismissed. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel and the Charging Party filed briefs in support of the Trial Examiner's Decision. 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 preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent they are consistent with the following. We do not agree with the Trial Examiner's finding that Respondent discharged employee John C. Dick- inson for discriminatory reasons because, unlike the Trial Examiner, we do not believe that the requisite unlawful motive can be properly inferred from the circumstances surrounding Dickinson's discharge. As detailed in the Trial Examiner's Decision, the record shows that employee Dickinson was an expe- rienced combination welder who prior to his dis- charge on October 23 1 had been in Respondent's employ for a period of over 3 years. Dickinson also was one of the Union's most active supporters, and for several months prior to his discharge, Dickinson had been openly engaged in union organizational ac- tivities in Respondent's plant. Respondent admittedly was aware of Dickinson's union activities.' 1 Unless otherwise indicated , all dates occurred in 1968 Although Respondent's discharge of Dickinson was with full knowledge of his union activities, there is no direct evidence which would establish that Respondent's action was motivated by unlawful con- siderations. However, in evaluating the circumstances which gave rise to Dickinson's discharge, the Trial Examiner concluded that the reason offered by Re- spondent to support the discharge was pretextual, and, accordingly, he inferred that Dickinson's dis- charge must have been for discriminatory reasons. In our judgment, there is nothing implausible in the explanation offered by Respondent for Dickinson's discharge. Under Respondent's disciplinary proce- dures, any improper conduct by an employee would result initially in a verbal warning being given, and if a similar offense was repeated the employee would be given a formal written warning advising him of the fact that any repetition of this conduct would result in discharge. Concerning the application of this rule to Dickinson, the record shows that at some time prior to June 5, Dickinson, together with several other em- ployees, was verbally warned to stop the practice of banging or hammering on the "I.D. spout" during the course of assembling the exhaust system tubes. When Dickinson repeated the offense on June 5, he was given a written warning which described the offense as, "Excessive abuse of the tubes (hammering on I.D. spout)." So far as the record indicates, Dickinson re- ceived no further warnings, either oral or written, un- til October 23, the date of his discharge. On the morning of October 23, Dickinson' s first assignment was to complete a job order which had been started on the previous shift and involved the preparation of automobile tailpipes by fitting with metal flanges and brackets. After welding brackets on some 45-48 tail- pipes, Dickinson realized that the metal flanges which he had threaded onto the pipes had been placed on backwards and that, as a result, the welded brackets would have to be removed before the flanges could be put on correctly. Upon learning of the defective work, Superintendent Morrow summoned Dickinson to his office and questioned him about the matter. During the conversation, Dickinson admitted that he had done the faulty work, but in way of explanation,Dick- inson told Morrow that he had not been given any instructions concerning the preparation of the order. When Morrow asked Dickinson how he could do so much work without checking, Dickinson replied "that he was not thinking and his memory was bad." Mor- row then instructed Foreman Ebel to prepare a warn- ing slip for Dickinson "to sharpen his memory." When Dickinson was handed the warning slip, he asked Morrow, "Does this mean that I've been warned about the flanges before?" Morrow replied, 2 Apparently, Respondent first learned of Dickinson's union activities in April 1968, some 6 months before the discharge 188 NLRB No. 3 FORMED TUBES SOUTHERN, INC. "No, but we got one in the office that will take care of that," (the reference being to the earlier written warning Dickinson had received for hammering on the I.D. Spout). Dickinson signed the warning slip, as required, and returned to work.3 Following this inci- dent, Respondent determined that the most expedient way to correct the defective work would be to use a vice to rip off the brackets and weld new brackets in their place. Although tearing off the existing brackets would leave a hole in the pipe, L. D. Barnett, the setup man, determined that the work could be salvaged if the new brackets were welded on both sides of the pipe. After receiving permission from Foreman Ebel to perform the work in this manner, Barnett removed the brackets from the defective pieces and instructed Dickinson as to the manner in which the job was to be redone. Barnett showed Dickinson one of the pipes he (Barnett) had rewelded, and according to the cred- ited testimony, Barnett told Dickinson, "that it was all right to weld on both sides."4 Dickinson then proceed- ed to redo the faulty work. However in carrying out the assignment, he welded most of the brackets on only one side. After Dickinson had welded about 45 pieces, he was told by Foreman Ebel that the pipes he had done were showing leaks and would not pass inspection. Shortly thereafter, Foreman Ebel in- formed Superintendent Morrow that Dickinson had failed to carry out specific instructions to weld the new brackets on both sides of the pipe and as a result, the pipes were leaking. Acting on this information, Superintendent Morrow summoned Dickinson to his office. When Dickinson arrived, he was handed his final paychecks and was told that he had been fired. Dickinson then asked the reason for his discharge and he was told by Morrow that the discharge was for not welding the pipes on both sides. Dickinson made no reply to Morrow other than to say "Okay" and leave the plant. We believe that the foregoing establishes that Su- perintendent Morrow's decision to discharge Dickin- son was based upon his (Morrow's) good-faith belief that Dickinson had failed to follow specific instruc- tions as to the manner in which the rewelding was to be performed and, as a result, the completed work was found to be defective. When Dickinson asked why he was being discharged, Morrow, in effect, told him it was because he had failed to perform the job as in- structed, and, significantly enough, Dickinson did not dispute this statement. Dickinson's failure to follow 3 Superintendent Morrow testified that under a strict interpretation of Respondent's rules, Dickinson should have been discharged at this time because the defective work involving the metal flanges followed the earlier written warning for hammering on the I.D. spout According to Morrow, however, he decided to give Dickinson a written warning rather than dis- charge him because a time interval of 4 months separated the two incidents. 4 If the pipe had not been damaged , the normal practice would be to weld the bracket on only one side of the pipe. 13 instructions is also the reason advanced by Respon- dent as the cause of the discharge.5 Although the Trial Examiner accepted the possibil- ity that Respondent could have had a reasonable ba- sis for concluding that Dickinson had disobeyed orders, he found that Dickinson did not in fact inten- tionally disobey orders and that his alleged miscon- duct would not have resulted in discharge except for the fact that he was an active union adherent. In our opinion, these conclusions are not supported by the record evidence. First, in assessing Dickinson's work performance, we are immediately faced with the un- disputed fact that on three separate occasions his work was unsatisfactory. Concerning the first such incident in early June, there is no explanation why, after being verbally warned about hammering on the I.D. spout, Dickinson continued the practice. Certain- ly, as to this incident, there can be no doubt that Dickinson acted contrary to specific instructions and that in view of this improper conduct, Respondent had a legitimate right to issue a final warning notice to Dickinson. Likewise, we see no justifiable reason why Dickinson would not be held accountable for his performance on October 23. With respect to the first such incident that day, the Trial Examiner apparently believed that Dickinson's error in putting the metal flanges on backwards was at least in part explained by the fact that Dickinson was not instructed as to man- ner in which the job was to be performed. Yet, we cannot ignore the fact that Dickinson was an expe- rienced welder who had performed similar, if not identical, work on numerous occasions.' Because Dickinson was an experienced employee, Respondent could reasonably expect that Dickinson would exer- cise at least the minimum amount of diligence re- quired to obtain a clarification of any doubts he may have had as to the manner in which the job was to be performed. As a practical matter, Dickinson could have resolved this difficulty simply by examining the finished work at his station' or by asking his foreman or leadman for instructions. The same considerations are present with respect to the final incident which served to trigger Dickinson's discharge. Unlike the Trial Examiner, we find it impossible to believe that Dickinson could have reasonably thought that he had 5 Although Superintendent Morrow testified that in his opinion , Dickinson deliberately failed to follow instructions, we can perceive no basis for con- cluding that Dickinson's discharge rested upon a determination as to whether or not his actions were deliberate . On the contrary, Respondent made no effort to determine whether Dickinson was acting deliberately and in explain- ing the reason for the discharge to Dickinson , it relied merely on Dickinson's failure to follow instructions 6 Dickinson could not recall whether or not he had previously worked on this precise type of job order, although admittedly he had worked on similar oders 7 It seems apparent that the reason Dickinson was not given specific in- structions as to the assignment was because the job order had been started on the prior shift and Dickinson had only to inspect the finished work in order to determine how the job was to be performed 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the discretion to perform the salvage work in the man- ner he found appropriate. While, under other circum- stances, Barnett's instruction to Dickinson, "that it was all right to weld on both sides" might be consid- ered an ambiguous enough remark to permit an inter- pretation that Dickinson was free to use his discretion, no such inference would be legitimate in these circumstances. This very assignment was made necessary by reason of Dickinson's earlier error which resulted in a substantial amount of defective work. If the Respondent had intended that Dickinson should use his own judgment in correcting this error, there would have been no necessity for referring the prob- lem to Barnett, the setup man, and having him secure authorization from Foreman Ebel before proceeding with the salvage work. When Barnett showed Dickin- son a piece he had repaired and told him, "that it was all right to weld on both sides," the only logical con- clusion anyone could have drawn in such circum- stances was that Barnett was indicating that the defect was to be corrected in that particular way; namely, by welding on both sides of the bracket. While, as our findings indicate, we believe that a legitimate basis for Dickinson's discharge existed, we have yet to consider the Trial Examiner's finding that Dickinson's discharge was a departure from Respon- dent's normal procedures indicating that Dickinson received disparate treatment. According to the Trial Examiner's findings, Respondent did not follow its established disciplinary procedures in discharging Dickinson. Specifically, the Trial Examiner points to the fact that no verbal warning preceded the issuance of the written warning on the morning of October 23, and with respect to the incident later that day which actually triggered the discharge, neither a verbal nor written warning preceded the discharge. While we agree with the Trial Examiner that Respondent's dis- ciplinary procedures call for both a verbal and a writ- ten warning before discharge action is taken, we think that in certain other respects he has given too narrow a construction to these procedures. Thus, under the Trial Examiner's interpretation separate warnings would be required unless the offenses were identical in content. By applying this interpretation to the facts in this case, the Trial Examiner concluded that the three offenses chargeable to Dickinson were separate and distinct because the first involved excessive abuse of the tubes; the second, putting the metal flanges on backwards; and the third, failure to weld on both sides of the pipes. We see no evidence in the record which would warrant the placing of such a narrow interpretation upon the Respondent's disciplinary procedures, and, accordingly, our determination in such circumstances must be confined to a considera- tion of the reasonableness of Respondent's interpreta- tion of its own rules. If, as the evidence indicates, the immediate reason for Dickinson's discharge was his failure to follow instructions, then this is the very same offense that Dickinson was charged with in ear- ly June, and which resulted in his receiving both a verbal and a written warning, the latter stating that any repetition would result in discharge. Even the intervening incident which occurred on the morning of October 23 is similar in many respects to the other two incidents. There, although Dickinson was not giv- en specific instructions at that time, he was familiar with the requirements of such a job order, and should have been aware that he had only to examine the completed work at his station to resolve any doubts as to the manner in which the job was to be per- formed. Significantly enough, Dickinson's explana- tion for this faulty work was "that he was not thinking" and "his memory was bad," thereby admit- ting that the faulty work was caused by his failure to exercise due diligence. In such circumstances, it is not surprising that Respondent would consider the inci- dent on the morning of October 23 to be related in character to the other incidents where Dickinson failed to follow specific orders. Therefore, in these circumstances, we find nothing unreasonable in Respondent's interpretation of its disciplinary proce- dures or in their application to Dickinson.' Accord- ingly, no finding that Dickinson received disparate treatment can be predicated on this evidence. Finally, we find no evidentiary support for the Trial Examiner's conclusion that Respondent did not nor- mally consider faulty work to be a matter requiring disciplinary action. This conclusion is based to a large extent upon the finding that Respondent experiences a high percentage of defective work and therefore under a nondiscriminatory application of Respondent's rules, there should be widespread evi- dence of employees other than Dickinson receiving disciplinary warnings. We find no record support for the finding that Respondent experiences a high per- centage of defective work.9 On the contrary, Superin- tendent Morrow testified without contradiction that less than 1 percent of the goods shipped to customers are returned as rejects. Nor can we agree with the Trial Examiner's apparent conclusion that all faulty work irrespective of the degree of employee respon- sibility should, under a nondiscriminatory application s The only clear deviation from established procedures was Superintendent Morrow's failure to discharge Dickinson on the basis of the incident which occurred on the morning of October 23, but that is explained by Morrow's desire to give Dickinson another chance Obviously, such a deviation can in no way support the Trial Examiner' s finding that Respondent subjected Dickinson to disparate treatment 9 The Trial Examiner's reliance upon G. C Exhs. 2-5 to establish the degree of defective work is misplaced. These exhibits, admitted into evidence over Respondent's objection , are ambiguous on their face, and they may be reflecting the total number of pieces in an order rather than a specific number of defective pieces As this ambiguity is neither resolved nor clarified in the record, we are unable to attach any evidentiary value to these exhibits. FORMED TUBES SOUTHERN, INC. 15 of Respondent's rule, warrant a disciplinary warning. Dickinson was discharged not merely because he produced defective work, but rather because the de- fective work was a direct result of his failure to follow specific instructions.10 When considered in this con- text, Respondent's discharge of Dickinson is certainly not unique for the record shows that over a period covering the last 2 years, Respondent discharged eight other welders and of that number three were dis- charged for failing to follow instructions or unsatis- factory work. Accordingly, in view of the foregoing we find that the General Counsel has failed to sustain his burden of proving that Respondent's discharge of employee Dickinson was motivated by discriminatory reasons, rather than for just cause." Therefore, as Respondent's discharge of Dickinson was the only unfair practice found by the Trial Examiner, we shall order that the complaint be dismissed in its entirety. ORDER The complaint alleged that Respondent had violated Sec- tion 8(a)(3) and (1) of the Act by discriminatorily dis- charging employee John C. Dickinson on October 23, 1968; and it further alleged that Respondent had independently violated Section 8(a) (1) of the Act by threatening employ- ees with discharge if they engaged in union activities, by soliciting employees to spy on union meetings, and by threatening to prevent an employee from voting in a Board- conducted election. On the entire record of evidence, my observation of the witnesses as they testified,' and due consideration of the briefs, I find, for the reasons hereinafter set forth, that the General Counsel has established by a preponderance of the evidence that Respondent violated Section 8(a) (3) and (1) of the Act in discharging John C. Dickinson. On the other hand, I find that General Counsel has not carried his bur- den of proof relating to the alleged independent violations of Section 8(a)(1) of the Act. I will recommend that the violation of the Act found will be remedied by ordering Respondent to cease and desist from illegal conduct, to reinstate Dickinson and make him whole for any loss in pay he may have suffered because of the illegal discrimination, and to post notices to this effect in its plant. I will recom- mend that the complaint be dismissed as to the said alleged independent 8(a)(1) violations. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 10 Even though Dickinson's faulty work may have resulted in only a mini- mal cost or expense to Respondent, it is not our function to determine whether the cost was sufficient to justify Respondent 's action 11 In view of our findings herein , we consider it unnecessary to pass upon the Trial Examiner's discussion of the nature of rumors contained in In. 8 of his Decision. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE L. POWELL, Trial Examiner: Upon charges filed on February 12, 1969, by the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, herein called Charging Party or Union, against Formed Tubes Southern, Inc.,' herein called Re- spondent, the Regional Director for Region 10 of the Na- tional Labor Relations Board, herein called the Board, issued a complaint on behalf of the General Counsel of the Board on November 4, 1969, alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. In its duly filed answer, Respondent, while admitting cer- tain allegations of the complaint, denied the commission of any unfair labor practices. Pursuant to notice a trial was held before me in Haley- ville, Alabama, where the parties were present, represented by counsel, and afforded full opportunity to be -heard by examination and cross-examination of witnesses, present oral argument, and file briefs. Briefs were filed by Respon- dent and counsel for the General Counsel on January 29, 1970. 'Respondent's name appears as corrected at the trial FINDINGS OF FACT AND CONCLUSIONS OF LAW I THE EMPLOYER AND THE LABOR ORGANIZATION I find as true the admitted allegations of paragraphs 2 and 3 of the complaint respecting the nature and volume of business carried on by Respondent, an Alabama corpora- tion engaged in the fabrication, sale, and distribution of steel tubing at its principal office and place of business at Haleyville, Alabama, and conclude therefrom that Respon- dent is an employer engaged in commerce within the meaning of Section 2(6) of the Act. I also find as true the admitted allegations that the Union is a labor organization within the meaning of Section 2(5) of the Act. II UNFAIR LABOR PRACTICES John C. Dickinson had been hired by Respondent on February 14, 1965. He was fired by his foreman, Ebel, 3-2/3 years later on October 23, 1968.3 During his period of em- ployment he had operated a drill press, a grinder, had done gas welding, and at the time of discharge was a combination welder earning $2.25 per hour, the highest pay of an employ- ee short of a leadman. His leadman, Wallace, characterized him as a good welder. On October 23 he began his day welding brackets on automobile tall pipes, a job order that had been started on the preceding shift. He threaded on the flanges from the small end of the pipes and welded on some 45-48 brackets in "about an hour" before he realized he had the flanges on backwards.° As it was necessary that these flanges be prop- erly installed, they had to be removed and rethreaded. But the welded brackets were between them and the small end of the pipe and had to be removed first. While Dickinson 2 Cf Bishop and Malco Inc, 159 NLRB 1159, 1161. 3 All dates are in 1968 unless otherwise noted ° There is a conflict in evidence as to whether the flanges were on back- wards or had been left off entirely As in either event the brackets would have to be removed in order to correct the error and as the General Counsel conceded that the flanges were on backwards for purposes of argument, I make the finding they were on backwards 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was removing the faulty pipes from the "buggy" (which went to the shipping room) and putting them in the "basket" (where unfinished work or work to be redone is kept) his leadman, Wallace, came up to him and asked him if he had done the faulty work. He admitted that he had done so and was going to tell Wallace about it. Wallace took two of the pipes and attempted to remove the brackets by burning them off or cutting them off and grinding down the leftover metal. While Wallace was so engaged, Foreman Ebel, who had also noticed the defective work and had reported it to Morrow, the plant superintendent , came, at Morrow's in- structions, to Dickinson's work position and without any discussion of the faulty work took him to Morrow's office. There, Morrow determined that Dickinson had performed the faulty work and determined by questioning Dickinson and Ebel that neither Ebel nor leadman Wallace had in- structed Dickinson that morning as to how to put on the flanges . He also asked Dickinson how he could do so many wrong without checking. Dickinson replied that he was not thinking and his memory was bad. Morrow had Ebel pre- pare a warning slip for Dickinson to "sharpen his memory, who, when tendered the slip, asked, "Does this mean that I've been warned about the flanges before?" Morrow re- plied, "No, but we got one in the office that will take care of that." (Morrow was referring to a written warning given 4 months earlier about hitting the pipe with a hammer in order to get it into the fig.5 After the conversation, Dickin- son signed the warning slip and went back to work. (Failure to sign the warning slip would result in automatic dismissal.) Tfie Respondent determined that it would be quicker and cheaper to put the defective pipes in a vice and wring off or break off the bracket than it would be to cut off the bracket and grind down the excess metal, even though a small hole somewhere in size between a dime and a quarter would be made in the pipe by breaking off the bracket. The setup man, L. J. Barnett, testified that he twisted off 38 brackets, gave the job back to Dickinson with new brackets and showed him how to weld the new brackets telling him "it would be all right to weld them like this" showing him one welded on both sides. The brackets had to be welded in such a manner that there would be no leaks. As Morrow (who made the final decision to fire Dickinson) testified that Dickinson was fired for "deliberately failing to follow in- structions," it is well to determine just what instructions were given Dickinson, because Dickinson did not weld all the pipes on both sides and the majority leaked when tested under water. Morrow testified that Foreman Ebel told him that Bar- nett, after first getting Ebel's approval as to how to weld on a new bracket, " . . . went back over there to . . . (Dickinson's) ... station and specifically instructed and showed him, actually doing one of them himself, welding this tube and told him (Dickinson)-instructed him to weld the tube all the way around this bracket in order for it not to leak, and he failed to do so." This is what Morrow said was told him. Barnett's testimony was not so precise. He testified for the Respondent on direct examination as follows: Q. After you took ... (the brackets) off, what did you do? A. I sent the job back then to John Dickinson and drawed brackets and showed him how to weld them. 5 Morrow denied telling Dickinson that the written warning about ham- mering on the pipes, which they had in the office, would take care of a prior warning about flanges, but I credit Dickinson in this particular As developed later, the Respondent had a rule about giving an oral warning before a written warning on the same offense. Q. Before you showed him how to weld them what did you, yourself do? Did you weld any? A. Yes, sir, I welded one. I welded one on both sides and ... I took it to Jay Ebel and asked him if it would be all right to weld them on both sides and he said it would be all right to go ahead and weld them on both sides; and when I took the pipe back and showed John, I said it would be all right to weld them like this, and I left then. Q. Did you tell him how he was supposed to weld it? A. Yes, sir, on both sides, like I had welded. Q. So you told him to weld it on both sides? A. Yes. Q. Mr. Dickinson has said that you told him on some he could do on one side and on some he could do both sides, to use his discretion. A. No, I didn't say that. Q. Your instructions had been to weld it on both sides? A. Yes, Jay told me to have him weld them on both sides. Q. And you did tell him that? A. Yes. Q. Did you leave the job then? A. Yes, I left the job. Q. Later on did Mr. Ebel come back to you to check about this? A. Later on that evening (before Dickinson's dis- charge) he asked me if I had told him to weld them on both sides. Q. He asked you whether you had told John Dickin- son to weld them on both sides? A. Yes. Q. And what did you tell Mr. Ebel? A. I told him I had. On cross-examination, Barnett testified as follows: Q. You told Mr. Dickinson, if I can quote your testi- mony correctly, that "It is all right to weld both sides?" A. Yes, after I went to Jay Ebel and asked him, went to the foreman. Q. Isn't it a fact that you didn't say to Mr. Dickinson anything about welding on one side? A. No, not after I set one up and welded both sides myself. I went to Jay Ebel and brought them back and told him to weld on both sides. Q. Right, you didn't say anything about welding on one side. A. No, I didn't. Q. All you said to him is, " It is all right to weld on both sides? A. Yes. Further cross-examination of Barnett brought out the fact that the setup men and the foremen give instructions to welders as how to do a job and even then the welders ... "would mess up sometimes ." He knew of no one other than Dickinson who was fired because of not following instruc- tions, yet he knew of some who were talked to and warned and some who were given warning slips but could not .. call off no particular names or nothing like that." On redirect examination Barnett again was asked what he had told Dickinson. His testimony follows: Q. (By Mr. Hoover [for Respondent])I am not quite sure of what Mr. Rolnick [General Counsel ] said, and I just want to get it straight here. What was the exact FORMED TUBES SOUTHERN, INC. thing that you said to John Dickinson when you took the pipe back there? A. You mean after I went to Jay? Q. After you went to Jayy. A. Well, after I went to Jay I brought the pipe back which I had welded up on both sides and I told him that it was all right to weld them on both sides. Q. Did you go further with that and tell him- MR LINK- I object. (By Mr. Hoover) Well, I will ask you to read your statement. You gave a statement to the Labor Board earlier? A. Yes. Q. Read your statement. MR LINK- Your honor- TRIAL ExAMINER. He has testified to two things now. I was going to ask this anyway; they are similar idea, but they are not mutually exclusive. MR HOOVER After all we are here to get the truth. Let's get it out at this time. Q. (By Mr. Hoover) Read what you put in your statement. A. "I then went back to Dickinson and told him to put the flanges on the right way and to weld back all the brackets the same way as Idid. I had welded the bracket back on both sides of the bracket and I told Dickinson to weld the bracket on both sides." Q. Did you specifically tell him to weld them on both sides? A. Yes, sir. Q. In other words you had checked with Jay Ebel and it was all right to weld it on both sides, but you told him to weld the thing on both sides? A. Yes. Q. Did you at anytime tell him to use his discretion as to welding it on one side, welding it on the other, or to weld it both ways, whatever in his discretion he thought was right? A. No, I did not say that. Q. You deny making such a statement, that he could use his discretion as to how he welded one side or both sides? A. Yes. MR HOOVER Nothing further. At this point it is well to consider Dickinson's testimony relating to Barnett's instructions. His testimony on direct follows: Q. When Barnett brought the pipes back to you, did he instruct you how to weld them? A. Yes, sir. Q. What were his instructions? A. To weld the pipe, one on one side and another one-on both sides-I mean say you've got a flange there, you weld one on one side and then another part-you weld it on both sides (indicator ); both sides. Q. Is that called a flange or a bracket. A. A bracket; that is what I mean. I don't know what I said, but that is what I mean. Q. If the hole that is on the bracket is under the bracket in any way, do you weld one side or do you weld both sides? A. If the hole goes up under the bracket where I can't weld it, I weld both sides. Q. If the hole is not under the bracket in any way, do you weld both sides or one side? A. One side. Q. Why? 17 A. Because that is the way they are supposed to be welded. Q. Have you ever had to weld brackets where there has been a hole in the pipe before this? A. No, sir; I can't recall. Q. What type of job is it to weld the hole? Will you explain that? A. Well, it is according to how big a hole it is. Q. How big were these holes? A. From an inch to half an inch. If you've got a hole half an inch, you have to have a gas welding rod to weld them with, and the wire welding is so much hotter than the gas-the gas rod that when you start burning the rod it just splatters-I mean it looks like a good weld, but you dust can't tell whether it is a good weld. Q. And is that the method you were using? A. Yes. Q. Could you have used gas welding on it? A. Yes, sir. Q. You could have? A. I could have. Q. Would you have had to get instructions to use gas weldin ? A. Yes, sir. Q. Or permission? A. Yes, sir. Q. Did you get permission? A. No, sir. Q. Instead how did you do it? A. Wire weld it. Q. Did you work on the pipes that had been brought back to you by L. J. Barnett that had holes in them? A. Yes, sir; I welded them up as best I could. Q. You did them as well as you could? A. I did them as best I could. Q. What happened later on that day in regard to those pipes? A. Well, when I finished those 45 they checked one of them and Jay came around there-Jay Ebel, my boss, came around there where they were checking them, the inspectors were checking them and he checked one of them in water and it leaked and he said then I am pulling your check; so I didn't know what he meant. He didn't say you are fired or nothing, so Elmer Wallace come around there and I asked him-I said, "Am I fired or what?" He said, "I don't know, but I will find out." He went and he come back. He went up there and found out for me and he come back around there laughing. He said, "They want you in the office." So I went up there, and I stood there a while and Don come out and gave me my checks-he gave them to Jay and Jay gave them to me. I said, "Am I fired," and he said, "Yeah." s THE WITNESS Don give my checks to Jay Ebel and Jay Ebel gave them to me. Q. (By Mr. Rolnick) Go ahead. A. And I asked him, I said, "What for?" And he said, "For not welding them pipes." I said, "Well, what do you mean?" Well, I asked them-that's it-I mean. Q. What did he say to you? Did he tell you why or what was wrong with the pipes? A. For not welding them on both sides. Q. Did he tell you how many of the pipes had leaked? A. No, sir. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Did you tell you had tried to follow Barnett's instructions? A. No, sir. Q. Why did you not tell him? A. Well, I was done fired and I didn't see the point in trying to tell him anything. I mean they had done made up their minds, so I said, "Okay," and I left. Conclusions as to Barnett's Instructions It is interesting to note that each time Barnett first an- swers what he told Dickinson he testifies that he told Dick- inson that it was all right to weld on both sides. Then when led by Respondent's counsel he testified that he specifically told Dickinson to weld on both sides. Dickinson himself testified he was told to weld on both sides and then ampli- fied his answer to mean that when the bracket was over the hole he had to weld on both sides to stop leaks, but other- wise a weld on one side was sufficient. Apparently the prac- tice in welding brackets on the pipes (when there were no holes) was to weld them at one spot only. This is borne out by the fact that Barnett got "permission' from the foreman to weld on two sides and the fact that only one hole ap- peared when the brackets were "wrung" off the pipes. Bar- nett denied telling Dickinson he had discretion although Dickinson testified that he had been told he had discretion. After carefully watching these men as they testified, and bearing in mind that Barnett was going about his business of getting the work set up as quickly as possible and had no advance knowledge or warning that his precise instructions would ever be important in an unfair labor practice trial, I find that he actually told Dickinson only that it was all right to weld on both sides. This then meant that Dickinson was not bound by the practice of only welding on one side which gave rise to Dickinson's belief that he had been told he had discretion when in fact he had not been so told. Dickinson then exercised his discretion, albeit unwisely, but he appears to have been obeying orders that he could weld on both sides. Although I find that Dickinson was not disobeying orders and obviously that he was not deliberately disobeying or- ders, it is possible that Morrow could have fairly believed he was deliberately disobeying orders. Evidence of Pretext For the General Counsel to establish a "pretext" dis- charge he must show by a preponderance of the evidence 1) that the one discharged was active in the Union, 2) that the employer knew of his activities, and 3) that the reason given for the discharge does not stand up under careful analysis. Evidence of union animus, if any, adds color and dimension to the case. Dickinson's Union Activities and Employer Knowledge Dickinson credibly testified that he set up the meetings for employees and helped get cards signed. He arranged the first meeting in April with Sewell, the union organizer, but not enough employees attended. Sewell told him to tel- ephone when he could get more employees interested in the Union, Dickinson did telephone Sewell in September, and a union meeting was set up for Tuesday, October 1. Dickin- workers' union meeting Tue at 4:30 P.M. at the union hall in town. (Exact copy of exhibit.) He passed out "about a hundred" of these slips at the clock as the employees were "clocking in to work and clocking out." No effort was made to hide the fact that he was passing out these slips and Morrow admitted seeing him do it. Also related to the element of employer knowledge is an alleged conversation between Personnel Mana er King and Morrow but this is treated hereafter under 8(a)(1) allega- tions. Morrow also admitted to knowledge of Dickinson's union activities as early as April when he tried to set up the first meeting. At that time Dickinson had been warned "about soliciting and stopping other employees for the pur- pose of conversation while on the job" but nothing was said in the warning as to what Dickinson was soliciting for. Dickinson then played a part in the next union meeting held on October 19. He got the notices of this meeting from Sewell on October 16 and again passed them out to employ- ees on the 17th and 18th as they clocked in and out of work. He attended the union meeting on the 19th and, like other employees, signed a union card. He was selected chairman at the meeting and as such received signed cards from em- ployees and delivered them to Sewell. Some employees, such as leadman Wallace, were against the Union. Wallace, at some point in time between the union meeting on Octo- ber 19 and Dickinson's discharge on October 23, told Dickinson " . . . he was going to fight me (Dickinson) every way he knowed how, to keep it out." When asked what was meant by that statement, Dickinson replied, 'I don't know unless it was the Union. That is the only thing we was talking about." I find that Dickinson was the employee most active in union activities and that Respondent had knowledge of his union activities at least from late September, when Dickin- son, in front of the clock, first openly passed out the slips of paper about the October 1 union meeting. Analysis of Reasons Given for Discharge Respondent's reason for discharge, as noted earlier, was that Dickinson was fired for "deliberately failing to follow instructions." I have already found from the discussion above that he was not failing to follow instructions. It is time now to consider the question of whether there was any disparate treatment as to warning slips in Dickinson's case and the question of why so much attention was given to Dickinson's work on October 23 when the damages were so small and repair work was normal.6 Dickinsonbegan work on October 23 at 7 a.m., and about an hour later noticed he had been doing something wrong and set about removing the faulty work from the "buggy The job was then noticed by his leadman, and later by his foreman. He had done about 48 items. If we say he had worked just 60 minutes he was doing an item in 1-1/4 min- utes or 75 seconds. In this time, he had to pick up an auto- mobile tail pipe 4 or 5 feet long, thread a flange on it, put the pipe into a jig, put on a bracket, weld it, and deposit the pipe in the "buggy." He had to do this and maintain a steady repetitive pace. I make no value judgments as to the efficiency of this pace but as Dickinson was characterized as a good welder I can assume the production was as ad- equate as his welding skill. The record shows a not unrea- sonable employer with leadmen and foremen showing son alerted the employees about the meeting by passing out small slips of paper on which he and his wile's sister's hus- 6 Damages can be computed at less than $10 If it took Dickinson 2 hours band had handwritten: (which is more than testimony stated it to be) to repair the 1-hour fault at If you aren't scared of your job come to a united auto $2 25 each hour there would be ample ($3 25) for parts and weld FORMED TUBES SOUTHERN. INC. 19 employees how to do their job when necessary. But no one showed Dickinson how to do this new job and this attests to the respect and confidence his foreman and leadman had in him. The record also showed through exhibits that hun- dreds of leaking weld joints were returned for reworking in August, September, October, and November? The Company also had a system of verbally warning an employee about his work, and thereafter if the same offense continued to give a written warning that a further similar offense would result in discharge. Dickinson received a warning slip on June 5, 1968, for "Excessive abuse of the tubes (hammering on ID spout)" and one on October 23, 1968, for "Incorrect assembling of tubes (did not put flange correctly on before welding bracket)." Except for defining the particular offense, these warning slips were identical and they stated: YOU HAVE RECEIVED MORE THAN ONE VER- BAL REPRIMAND ON OFFENSE COMMITTED. (The offense was spelled out here) THIS IS YOUR FINAL WARNING, AND ANY REPETITION OF THIS OFFENSE WILL RESULT IN DISCHARGE. FOREMAN EMPLOYEE REFUSAL BY EMPLOYEE TO SIGN THIS NO- TICE WILL RESULT IN AUTOMATIC DISMIS- SAL. Morrow admitted that he had warned Dickinson verbally about hammering on the pipes before giving him the warn- ing on June 5 and also admitted that no prior verbal warn- ing had been given on the offense of putting the flanges on backwards or on the offense, in the afternoon, of improper welding in covering the holes so there was no leak. Accord- ingly, he deviated from his practice and from the warning slip itself when he gave the October 23 warning, and he gave no warning whatsoever, verbal or written, about the faulty welding in the afternoon of October 23 which lead to Dickinson's discharge. In conclusion then the reason given for discharge does not stand up under scrutiny. Dickinson was not disobeying orders, but was being singled out for warning and discharge over an item considered insignificant (as it happened all the time with no comment) and in a manner in breach of Respondent's own rules as to warnings and discharges. As Dickinson was the most active union adherent and Respon- dent knew it, I infer that his union activities of passing out the notices of union meetings triggered a more careful scru- tiny of his work than was accorded others, leading toward his being treated differently than others and being discrim- inatorily discharged in order to discourage union activities. I am convinced that but for Dickinson's union activities he would not have been discharged. By doing this the Respon- dent violated Section 8(a)(3) and (1) of the Act.8 i No pcs Amount August 300 $ 52 97 500 127 94 250 37 71 September 100 6 69 257 46 96 October 500 118 43 300 7044 250 114 88 November 1,000 109 07 250 66 87 Totals 3,707 $75196 Alleged 8(a)(1) Violations General Counsel alleged independent 8(a)(1) violations, in paragraph 7 of the complaint, committed by Personnel Director King on September 30,9 and by Shipping Foreman Knight on January 23, 1969. Testimony to the King allegation was given by former employee Raymond Taylor; it had to do with a purported brief conversation he heard between Morrow and King rela- ting to Dickinson's passing out union meeting slips on Sep- tember 30. Based on express denials of Morrow and King, the demeanor of the witnesses, and the fact that Taylor in an earlier affidavit had identified the one talking to King as Wallace rather than Morrow, the plant superintendent, I do not credit Taylor. Accordingly I will recommend this allega- tion of the complaint be dismissed. Former employee William Gravitt testified for the Gener- al Counsel as to the Knight incident of January 23, 1969. Gravitt " ... was a union man-I mean he was strictly for organizing the union," according to Knight.10 Gravitt testi- fied that about 3 weeks before the election of February 12, 1969, he was walking down the aisle with Knight when Knight said, "Well, I'll just tell you one thing. There will be some people leave here after this is over." Gravitt believed Knight to be talking about the Union, although there was no mention of this, and said in reply, "I guess it will be me." Knight then said, "No, it won't be you." On the other hand, Knight expressly denied any such threat of discharge be- cause of employees' union activities, and Knight is credited s Evidence adduced by Respondent that Dickinson had told an employee he was deliberately going to be discharged in order to get Respondent to pay for his house and car is totally discredited Those so testifying are not cred- ited against Dickinson's and his wife's denials First, there is no evidence that Dickinson had the necessary sophistication and knowledge about backpay and Board remedies to even speak about them, secondly it would be com- pletely out of character for him to have so spoken, and thirdly those so testifying exhibited such a hostile attitude toward Dickinson as to render their testimony worthless The record reflects this to a large extent in the evasiveness of many answers Respondent also adduced evidence that there were rumors in the plant that this was what Dickinson planned to do General Counsel produced credible witnesses that there were no such rumors . But findings of fact will never be based on rumors, Dr Clyde Morris, ("The Utility of Rumor," Department of Communications, Michigan State University) a professor of communica- tions at Michigan State University, who has studied the sociology of rumors, states that for a rumor to flourish there has to be a predisposition to believe it. His theory is that a rumor will not travel unless it is simple and is in a population in which the rumor is highly significant His example is that a rumor about hatchet-sex murders on campus traveled like wild fire in the women's dorms where it had relevance but did not travel at all in the men's dorms Tamotsu Shibutani, ("Improvised News-A Sociological Study of Ru- mor," Bobbs Merrill 1966) a sociology professor at U C. Santa Barbara, whose book on rumors is said to be considered the definitive work on the subject, suggests that the tension of the period tends to make people more suggestible And finally, Ralph Turner, ("Collective Behavior," Handbook of Modem Sociology-Robert E L. Fams, Editor, Rand-McNally 1964) a U C L.A sociologist whose speciality is crowd behavior and social move- ments, believes that when people are angered or indignant they stop worrying about the specific truth or falsity of what they are saying so long as it is on the "right" side . Accordingly, if there were such rumors in the plant, a finding which I do not make, it is understandable that antiunion believers would prefer to believe it over union followers In any event, based on his position in the Respondent and what I saw of him, I cannot believe that Morrow would decide that Dickinson was deliberately trying to be fired because of a rumor to that effect. Respondent was permitted to file Exh 10 after the close of the hearing reflecting other discharges A study of this exhibit adds nothing to Respondent's position, as no one listed had worked for more than a few months or the reason for discharge was dissimilar 9 This date is corrected from October 17, 1969, as it is in the complaint 10 Gravitt testified that his stand on the Union "was an open thing to (Knight) " and he (Gravitt) used to carry keys on a UAW key chain indicating he was for the UAW 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD over Gravitt. Gravitt appeared to have a deep seated grudge against Respondent and his testimony did not ring true. I will recommend this allegation of the complaint be dis- missed. Paragraph 9 of the complaint again involves a conflict of evidence between Gravitt and Knight, and I credit Knight again over Gravitt and recommend this allegation in the complaint be dismissed. Paragraph 8 of the complaint alleges that Assistant Plant Manager Toby Yarbrough, on or about October 17, 1968,11 solicited its employees to attend union meetings and report what occurred. Gravitt was the only witness as to this allegation. His version is that Yarbrough joined him in his car in front of the plant, told him he hoped he was not for the Union, but if he would go to the union meeting and then report back so the Union could be stopped, he (Yarbrough) " ... would make it worth (Gravitt's) while, and ... would meet me (Gravitt) any place I wanted to or he would come to my house." The union meeting was on Saturday, October 19, and, according to Gravitt, Yarbrough came to his house on Sunday the 20th. Gravitt's testimony on direct examination follows: Q. What did Mr. Yarbrough say to you when he came to your house? A. He just asked me how did the meeting go and what was our complaint. Q. What did you say? A. Well, it took me about two hours to tell him what the complaint was, what mine was and he got up and left. On cross-examination, Gravitt admitted that he only talked about his complaints and not about complaints of others. Yarbrough testified that it is his practice to visit employ- ees at their homes "all the time" and listen to their com- plaints. As to the conversation of October 17 and its after- math, he testified as follows: Q. Now do you recall a conversation with Mr. Grav- itt back sometime in October of 1968 out in front of the plant around quitting time in which something about the Union came up? A. Yes, sir, I do. Q. Will you tell me about that conversation? A. Well, the campaign was going on throughout the plant and the best f remember-I don't remember the date that it was, but I believe I was leaving the plant going home and I believe Junior, as we call him, Grav- itt had been to the doctor, I believe he cut his finger, his hand or something and he was sitting in his car out on the parking lot or on the road by me when I went out, and I went up to him and asked him how he was, did he make it okay at the doctor and so forth, and he said that he did. We were talking and I said this thing was really going or something , discussing the on and he said, "Yes, if you will come to my house I will tell you the reasons why we need a Union down here." I said, "Do you think you know?" He said, "Yes, I do." I said, "Well, all right." Q. He said that when you had the conversation with him out in front of the plant in the parking lot you said, "I hope you are against the Union, and if you will go to the meeting I will make it worth your while." A. No, sir, I did not say that. Q. And that after such conversation you told him to 11 This is the date as developed at the trial come to your house after the union meeting that was being held? A. No, sir, I did not say that. Q. Did you actually go by his house? A. I went by his house, yes, sir. Q. When did you go by his house in relation to this conversation in the parking lot? A. I believe it was the night-it might have been the next night or two after, but I believe it was that night. Q. So you did visit his house? A. Yes, sir. Q. What time did you go there? A. Oh 6:00 o'clock I would say, roughly. Q. He said you went to his house the night after the Union meeting; in other words, the Union meeting was held on a Saturday and you went to his house on a Sunday night. Did you go over after a Union meeting or do you ow? A. I don't remember; I am not sure about that. Q. But you did go by his house? A. Yes, 'I did. Q. Tell me about what was discussed at his house. A. I went into his house and we sat down and talked a while because we were both born and reared in the same community, and we talked about how much bet- ter things were now than they were several years ago, and kept talking around, the reasons for it and then lie said. "I can tell you a lot of things." So he let in to tell me. Most of them were his personal complaints of why we needed a Union down there. 11 A. Junior (Gravitt) said he didn't care; he was still going to be for it (the Union) and I said, "Junior, that is your right. You have known me all of my life and I have known you most of yours. We have grown up less than half a mile from each other. We can discuss this thing. You feel like you are for it and I will tell you why I am against it. This is your privilege." Q. He (Gravitt) said during the conversation you asked him how the meeting went, how the Union meet- ing went that they had had; did you ask him how the Union meeting had gone? A. No, I didn't ask him how the Union meeting had gone. He said he invited me out there to tell me the reasons why, and I asked him the reason why he want- ed a Union. Yarbrough testified on cross-examination of his lifelong friendship with Gravitt and of Gravitt's personality in that he " . . . was a funny boy. Out in the plant all the time everytime you would go by him, he would say something to you and it didn't make any difference what and he was all the time kidding me from the time he started to work down there. I would assume he was kidding me about going to get a union down there and he would kid me about my wife and his wife. We were very good friends and still are. I mean I don't have a thing in the world against him. As I say we were born and reared together." I credit Yarbrough and find that the General Counsel has not carried his burden of proving that Respondent "solic- ited its employees to attend union meetings and report what occurred at such meetings" and accordingly I will recom- mend that paragraph 8 of the complaint be dismissed. I find FORMED TUBES SOUTHERN, INC insufficient evidence, under these credited circumstances, to establish a finding of fact that Respondent interfered with, restrained, and coerced its employees within the meaning of Section 8(a)(1) of the Act. III THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with Respondent's operations de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of com- merce. IV THE REMEDY Having found that Respondent has engaged in unfair labor practices I shall recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. I{avm found that Respondent discriminatorily dis- char ed John C. Dickinson in violation of Section 8(a)(3) and (1) of the Act, I will recommend that Respondent offer him immediate and full reinstatement to his former or sub- stantially equivalent position, without prejudice to his sen- or other rights and privileges, and make him whole for ioritTo any ss of earnings or other benefits he may have suffered as a result of the illegal discrimination against him, said loss to be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and with interest thereon as prescribed- in Isis Plumbing & Heating Co., 138 NLRB 716. 21 In view of the nature of the unfair labor practice found herein to have been committed by Respondent, which indi- cates its determination to interfere with its employees' rights of self-organization, I shall recommend that the Respon- dent cease and desist, in any manner, from infringing on rights guaranteed its employees by Section 7 of the Act.12 On the foregoing findings of fact and the entire record in this case, I reach the following: CONCLUSIONS OF LAW 1. Formed Tubes Southern, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, is a labor organization within the meaning of Section 2(5) of the Act. 3. By dischargmg John C. Dickinson because he en- gaged in union activities, Respondent has discouraged un- ion activities in violation of Section 8(a)(3) of the Act, and has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in the Act in violation of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. The allegations of paragraphs 7, 8, and 9 of the com- plaint have not been established by the preponderance of evidence. [Recommended Order omitted from publication.] 12 N L R B. v Entwistle Mfg Co, 120 F.2d 532 (C.A 4).