Kline Iron & Steel Co.

KLINE IRON & STEEL COMPANY Kline Iron & Steel Company and Shopmen's Local Union No. 812 of the International Association of Bridge Structural and Ornamental Iron Workers, AFL-CIO. Case 11-CA-3702 September 17, 1969 DECISION AND ORDER By CHAIRMAN MCCL LLOCH AND MEMBERS FANNING AND JENKINS On May 2, 1969. Trial Examiner Myron S. Waks issued his Decision in the above-entitled matter, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that such allegations be dismissed. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National 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 Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, only to the extent consistent with the Decision herein. We find, in agreement with the Trial Examiner, that Respondent violated Section 8(a)(1) of the Act by interrogating its employees concerning their union activities, threatening employees with reprisals for supporting the Union. threatening to challenge the vote of each employee in any Board-conducted election in order to determine how he voted, and threatening to abolish overtime if the Union was certified as the bargaining representative of the employees. We find no merit, however, in the General Counsel's exceptions to the Trial Examiner's failure to find 8(a)( 1) violations based upon (1) Superintendent Claude Corley's statement to a group of employees that he did not [see] how the Union would benefit employee Bishop Russell because he would not be back in Respondent's employ "unless he might get some back pay," and (2) Corley's statement to employee David Ludlum that it had been learned that Russell was riding around with a union organizer. We consider Corley's latter statement, however, as evidence 465 tending to shed light on Respondent's motivation in subsequently discharging Russell, and both statements as additional evidence of its knowledge of Russell's support of the Union. For the reasons stated below, we find merit in the General Counsel's exception to the Trial Examiner's failure to find that Bishop Russell's union activities were a significant factor in Respondent's decision to discharge him on July 23, 1968, and that Respondent therefore discriminated against him in violation of Section 8(a)(3) and (1) of the Act. Russell first was employed by Respondent in 1936. With two interruptions he worked a total of 20 years. His last continuous period of employment was 10 years. There is no contention that he was not an efficient worker. On Saturday. February 18, 1968, Russell suffered a shotgun wound at his home, as a result of which he was hospitalized for 55 days and spent the following 3 months cony alescing. During the last 6 weeks of this period he joined the Union and rode around with Rutherford, the Union organizer, signing up employees at their homes. Russell's union activities shortly came to Respondent's attention. As the Trial Examiner found, about the middle of June, Plant Superintendent Corley stated to a group of employees that it had been found out that Russell was `"riding around with the union man." About the same time, Corley made known Respondent's unequivocal hostility to the Union by stating to employee Robert Hartley that Bernard Kline, Respondent's president, would fire him if he had anything to do with the Union, accused Eugene Hartley of "visiting with the Union man;" and told employee Tony Whittle that he had heard that he was trying to sign up employees, warning him that he, Corley, had laid off men in the past and could lay off others and that if he laid off Whittle he would not get another job in Columbia. On July 3, Russell returned to the plant to get his vacation money and spoke to Plant Manager Hendrix about returning to work. Since the plant was closed for inventory until July 15, Hendrix told him to come back at that time. When Russell came back on July 15, Hendrix expressed a belief that Russell might still be too weak to resume his former work, but told Russell to return later. Russell did so on July 17 or 18, and on this occasion Hendrix told him that if he obtained a statement from his doctor certifying as to his physical fitness, he would be reinstated. Russell procured from his doctor a certificate, dated July 22, stating that he had completely recovered from surgery and was fit to resume work. When he reported to the plant the following day, dressed for work, he found that Hendrix had died suddenly on July 20. Russell presented the doctor's certificate to Corley, who, upon Hendrix's death, became Respondent's principal production supervisor, and asked to be put to work. Corley made no response other than to tell him that Respondent would call him at a later time. 178 NLRBNo.73 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent has never done so and made it clear at the hearing that it had no intention of doing so. At the hearing. Respondent took the position that Russell's self-inflicted gunshot wound was, as the police report stated, an attempt at suicide. Corley testified that Hendrix had told him shortly before his death that he had decided not to take Russell hack because he might be a "hindrance" to himself and other employees.' He did not, however, advance an independent reason of his own for not reinstating Russell. So. too, President Kline failed to advance any reason for refusing to rehire Russell, other than to say that Hendrix had told him before the plant closed for inventory on July 2, and possibly as far back as the previous May or June. that he believed he would not take Russell back because "we don't want anyone like that in the plant, anyone who would do a thing like that," and that he, Kline, had agreed. In short, both Superintendent Corley and President Kline, purporting to quote the dead Hendrix, laid the responsibility on him for the discharge of Russell, thus avoiding it for themselves. Corley. in effect, took the position that what Hendrix had bound Corley could not loose. The Trial Examiner, when discussing the several threats made by Corley to discharge employees who solicited for the Union, as well as numerous other acts of coercive conduct in which he found Corley engaged, consistently resolved conflicts of testimony against him, finding him "less than candid in his testimony which bears directly on the issues of this case." and "in some instances so improbable ... as to demonstrate his lack of candor generally." lie did credit, however, Corley's testimony that Hendrix told him that he was not going to reinstate Russell. since he considered the testimony of President Kline and William Albert tended to support Corley in this respect. He credited Kline's testimony as to Hendrix's statement concerning Russell. adverted to above. though he found Kline's testimony to he vague and uncertain as to other details of the Russell incident, such as to how it first came to his attention and whether either Hendrix or Corley had investigated the circumstances surrounding it and reported them to him. Albert, who at the time of the hearing was Respondent's Assistant Manager of Operations, testified that Ilendrix told him while having dinner at his home about a week or two before he died that "it was not desirable to hire Mr. Russell back because he would probably be a menace to himself and also probably to his fellow employees because of his condition." Albert was not in Respondent's employ at the time he stated this conversation occurred.2 'Although Corley was vague and uncertain in his testimony on direct examination as to the date when he said Hendrix first advised him of his "decision" not to take Russell back , on cross-examination he definitely fixed the date as not long before Hendrix died and some time after Russell had visited the plant on July 15 following the vacation period 'Albert had left Respondents employ on April 3. 1968, and did not return until July 29, 1968 The testimony of Corley, Kline, and Albert is at odds with that' of Russell, credited by the Trial Examiner, that Hendrix informed him on July 17 or 18 that he would be put back on his job upon presentation of a doctor.'s certificate that he was able to work. We find it difficult to believe that if a firm and final company decision had earlier been made by Hendrix and approved by Kline not to reinstate Russell for the reason now assigned, Hendrix would have made this commitment to Russell. Russell's testimony, of course, must be carefully scrutinized because he is reporting the statements of a dead man. But in the circumstances so must that of Corley, Kline, and Albert. Significantly, Russell's testimony alone finds corroboration in independent evidence of unquestionable reliability. Thus, in response to a questionnaire relating to Russell. sent Respondent by the Diamond State Life Insurance Co.. dated July 16, and concededly filled out by Hendrix and signed by him in his own handwriting. Hendrix in answer to a question as to whether Russell would resume work with Respondent, wrote "presumably yes." In our opinion, the Trial Examiner in resolving the credibility issues gave insufficient weight to this documentary evidence which is not only consistent with the credited testimony of Russell, but serves to refute that of Respondent's witnesses.' However, even if we thought credible the testimony of Kline and Albert that Hendrix made the statements they attributed to him, the only way this testimony can be reconciled with Russell's credited testimony that Ilendrix promised to return him to work if he obtained a doctor's certificate would be on this hypothesis: that Hendrix. although he had theretofore been disposed not to restore Russell to his job, had by July 16 changed his mind. But such a hypothesis does not also allow credence of Corley's testimony that Hendrix told him he had decided not to reinstate Russell because of the gunshot incident. As noted above, Corley testified that he was so told, and for the first time, sometime alter July' 15. Corley's testimony cannot reasonably be squared with f lend fix's substantially contemporaneous statement to the opposite effect on the insurance form, let alone with Hendrix's credited statement to Russell at about the same time that he would be returned to work if certified by a doctor as physically fit. For these reasons, and in light of Corlcy's general unreliability as a witness, we cannot accept his testimony that Hendrix told him he had decided not to reinstate Russell. Nor is there anything in the record to indicate that Corley was 'Unlike the Trial Examiner, we do not find the force of Hendrix's response in the insurance questionnaire to be minimized by the inclusion of the qualifying word. "presumably " This response in our view must be considered in conjunction with Hendrix' s statement to Russell on the following day or the day after, that Respondent would return him to work on presentation of a doctor's certificate when these statements are construed together, it appears that the condition of Russell's rehiring was simply his furnishing such a certificate , a usual, even essential prcri quisite after a long illness KLINE IRON & STEEL COMPANY 467 apprised of such a decision from any other source. No such decision was entered in Russell's personnel file or other company record. Nor does it appear that Kline ever communicated such a decision to Corley. either before or after Hendrix's death. For the reasons indicated above, we are convinced that the credible evidence does not support the Trial Examiner's implicit finding that Hendrix prior to his death had already made a final decision not to reinstate Russell, and that Corley in effect acted merely in a ministerial role when, on July 23, he refused, without any reason given, to allow Russell to return to work. Obviously, if. as we believe, the record establishes that prior to Russell's July 23 visit to the plant, no conclusive decision had yet been made, someone besides the deceased Hendrix must have been responsible for the refusal to reinstate Russell on July 23 and thereafter. In the absence of evidence to the contrary-and Respondent adduced none - it can only be inferred that the responsibility lay with Corley, on whom Russell called, and who, following Hendrix's death, was in charge of plant operation'. There can be little question that, as Hendrix's successor, Corley, on July 23, had authority to reinstate Russell without reference to any earlier decision, tentative or final, by Hendrix ' It is understandable that Corley, as Hendrix's successor. might reach a different conclusion from Hendrix on a matter of company policy. But if his difference with Hendrix had a legitimate basis, there was no reason for Corley not to disclose it or assume responsibility for it. We regard it as significant, therefore, that Corley refused to give Russell, any reason for denying him the reinstatement Hendrix had promised. Similarly, Corley at the hearing advanced no reason of his own for the action he took, even to the extent of stating that he acted for the reason he attributed to Hendrix. By way of explanation he did no more than advert to the alleged earlier conversation which he stated he had with Hendrix. But his testimony in that regard, as we have found above, does not withstand the test of close scrutiny and cannot be credited. In these circumstances, we, unlike the Trial Examiner, are unable to view the evidence adduced by Respondent in support of its defense as of sufficient probative force to overcome the strong prima facie case made out by the General Counsel. The Trial Examiner's findings reflect that Coriey had a deep aversion to union organisation. He was the principal actor on behalf of Respondent in the campaign to defeat the union, engaging in numerous 'Although the Trial Examiner refused to find that , after Hendrix s death, "responsibility for Russell ' s case devolved upon Curley' we find he was in error in that respect . The reason given by the frial Examiner was that "there is no evidence that , following the death of Hendrix. Corley was given expanded duties at the plant and , if so that they included the dc,cisions as to Russell " The, Trial Examiner, however, overlooked Corlev s own testimony on cross-examination when asked what his authority was upon the death of Hendrix, Corley's reply was that it was over all departments "The whole plane I run the whole place " acts of coercive conduct, which included, inter alia, threats of discharge to employees who, like Russell, were active in organizing for the Union. He knew that Russell had been engaged in riding around with the union organizer soliciting union membership, and had mentioned this to other employees, and on one occasion had stated that he didn't see how the union would do Russell any good as Russell would not be back "unless he got back pay." Bearing particularly in mind that Hendrix had agreed to restore Russell to his job upon presentation of a doctor's certificate, that Corley gave no reason at all to Russell for not doing so, and that at the hearing he also refrained from giving his own reason for the action, though he was responsible for it, but instead attributed to the deceased Hendrix a final discharge decision he had not made, we can only infer that Corley was motivated at least partly by his antagonism to Russell's union activities in rejecting, on July 23, 1968, and thereafter, Russell's request to return to work, thereby in effect discharging him. Accordingly we conclude, and find, that by refusing to reinstate Russell to his lob on and after July 23, 1968. Respondent discriminated against him in violation of Section 8(a)(3) and (l) of the Act. THE REMEDY In accordance with above finding, we shall order that Respondent offer Bishop Russell immediate and lull reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, by payment to him of a sum equal to that which he normally would have earned from July 23, 1968. the date of his discharge, to the date of the Respondent's offer of reinstatement, less his net earnings during such period. The backpay provided herein shall be computed on the basis of calendar quarters, in accordance with the method prescribed in F W woolxorth Company. 90 NLRB 289 Interest at the rate of 6 percent per annum shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating C'o , 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act. as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and orders that Respondent, Kline Iron & Steel Company its officers, agents, successors, and assigns. shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Change subparagraph (f) of paragraph 1 of the Trial Examiner's Recommended Order to 468 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD subparagraph (g) and insert as subparagraph (f) the following language. "(f) Discharging or otherwise discriminating against Bishop Russell , or any other employee, because of his interest or sympathies in, or activities on behalf of, Shopmen 's Local Union No. 812, of the International Association of Bridge, Structural and Ornamental Iron Workers , AFL-CIO, or any other labor organization." 2. Change subparagraph ', (a) and (b) of paragraph 2 of the Trial Examiner's Recommended Order to subparagraphs (c) and (d), respectively, and insert as subparagraphs (a) and (b) the following language. "(a) Offer to Bishop Russell immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges previously enjoyed , and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him in the manner set forth in the Remedy provision of this Decision and Order. "(b) Notify Bishop Russell 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 Training and Service Act, as amended, after his discharge from the Armed Forces." 3. Insert as the third and fourth indented paragraphs in the Appendix attached to the Trial Examiner's Recommended Order the following two indented paragraphs: WE WILL NOT discharge or otherwise discriminate against Bishop Russell or any other employee, because of his interests or sympathies in. or activities on behalf of. Shopmen 's Local Union No. 812, of the International Association of Bridge Structural and Ornamental Iron Workers, AFL-CIO, or any other labor organization. WE WILL offer Bishop J2ussel1 immediate and full reinstatement to his former or substantially equivalent job, without prejudice to his seniority or other rights and privileges he previously enjoyed , and WEwILLmake Bishop Russell whole for the discrimination against him by payment to him of any loss of earnings he may have suffered, with interest thereon at 6 percent per annum. WE WILL notify the above-named employee if presently serving in the Armed Forces of the United States , of his right to full reinstatement upon application in accordance with the Selective Service Act and the Univer sal Military Training and Service Act, as amended, after his discharge from the Armed Forces. TRIAL EXAMINER'S DECISION STATE64I.NT OF THE CASE MYRON S. WAKS, Trial Examiner- This case, tried at Columbia, South Carolina, on September 19 and 20,' and November 13 and 14, pursuant to a charge filed on August 9, and a complaint issued August 30. presents the question whether Respondent by various acts violated Section 8(a)(1) of the National Labor Relations Act, as amended, and whether Respondent's refusal to employ Bishop L. Russell following an absence due to illness resulting from a gunshot wound was because of Russell's union activities and therefore in violation of Section 8(a)(I) and (3) of the Act. Respondent's motions, renewed before the close of the hearing and upon which I reserved ruling, to dismiss the case in its entirety and/or to dismiss the allegation of the complaint in paragraph 7(a) and (c) as pertains to Bernard Kline and Paul Byers, as well as paragraph 7(a) as it pertains to alleged unlawful conduct of Claude Metz on May 4, are disposed of in accordance with the findings and conclusions set forth in the decision. Upon the entire record in the case including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and the Respondent, I make the following. FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The pleadings establish and I find that the Respondent, which is engaged in the manufacture of structural steel products at its plant in Columbia, South Carolina, during the 12 months preceding the issuance of complaint received at its Columbia plant raw materials valued in excess of $50,000 from places outside the State of South Carolina, and during the same period shipped from its Columbia plant finished products valued in excess of S50,000 to places outside the State of South Carolina. Upon these admitted facts, I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. IL THE LABOR ORGANIZATION INVOLVED The pleadings further establish and I find that Shopmen's Local Union No. 812 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, the Charging Party herein , is a labor organization within the meanmg of Section 2(5) of the Act. iii. TILE UNFAIR LABOR PRACTICLS A. Interference. Restraint, and Coercion 1. The facts Beginning in April the Union embarked on an organizational campaign among the employees of Respondent. This became known to the Company at least as early as the first of May. Immediately thereafter, according to the allegations of the complaint, the Company engaged in unlawful conduct aimed at discouraging the employees' union organizational activity by threats of discharge, interrogation. creating the impression of surveillance, threats to challenge every voter in any Board election to determine hove' the employees voted, and threats to abolish overtime if the employees selected the Union as their collective-bargaining agent. These allegations were denied by the Company and the 'Unless otherwise indicated all dates herein occurred in [968 KLINE IRON & STEEL COMPANY resolution of the issues presented turns substantially on the credibility to be afforded those witnesses offered by the General Counsel in support of these allegations as against those witnesses offered by the Company in support of its denial. The alleged unlawful conduct testified to by witnesses for the General Counsel concerns substantially the activities of Claude Corley, superintendent of the new plant, and Claude Metz and Wyman Shealy, who are foremen in the fabricating department at the new plant.' a. The alleged unlawful conduct of Claude Corley' The employees who testified concerning the unlawful conduct of Superintendent Corley are employed at the new plant and work under his general supervision. David Ludlam is employed by the Company as a multiple bean punch operator. Ludlam testified that on May 3, Superintendent Corley took him off the job to speak with him, and that the following discussion ensued. Corley stated to Ludlam that "he understood that [Ludlam] was in favor of the union." When Ludlam asked Corley whether Corley thought a union would help him, Corley replied that if the Union came in and it was 100 percent then it would be good for the Company, but if not, it would not be good. Corley then told Ludlam that `he heard that several different people had stated that they had heard [Ludlam] was in favor of the union " Corley mentioned the names of Frank Linder and one of the Hartlevs and said he had seen Ludlam talking to them and "he knew how they were. And how they felt about the union." On the same date, May 3, according to employee Robert Hartley, who works in the fabricating department, Corley stated to hint that Bernard Kline (the Company's president) "will fire you if you have anything to do with the union," and that Foreman Carl Metz who was present had agreed with Corley's statement. According to Robert Hartley's testimony, Eugene Hartley and Tony Whittle, also employees at the new plant, were present at the time of this conversation.' Further acts of Corley were testified to by employee Linder who works as a layout man under the supervision 'Counsel for the General Counsel sought to establish the allegations in the complaint in par 7(a) and (c) as pertains to Bernard Kline and Paul Byers, as well as par 7 (a) as it pertains to alleged unlawful conduct of Claude Metz on May 4 through the testimony of employee Clarence Larrimore Larrimore, who in a pretrial affidavit had attested to various acts of unlawful conduct by Kline and Byers . as well as a threat of discharge by Claude Metz on May 4 , substantially repudiated the faun set forth in his affidavit. While in one instance Larrimore testified he "believed" Byers told him on May 4 and thereafter that if he liked his job he had better not associate with the Union , he later indicated that by his use of the word "believe ," he meant that he thought it was a fact but he could not be "definite"; Byers unequivocally denied making any such statement I note too that Lattimore s testimony was contradictory, evasive. and at times ambiguous . According to Larrimore he had received telephone calls from unknown persons during which he and his family were threatened with harm if he did not cooperate with the Union These calls occurred prior to the date on which he gave his affidavit to the Board agent and Larrimore testified that he had lied to the Board agent and could not be sure that what he told the Board agent was true Larrimore also testified that prior to testifying he had received an anonymous telephone call threatening him with the loss of his job and the repossession of all his things that could be repossessed It was obvious that Larrimore was under great strain when he testified . In view of the foregoing I cannot regard as credible any of the facts attested to by Larrimore. In the circumstances I conclude that General Counsel has failed to adduce credible evidence to support any of these allegations of the complaint 'Eugene Hartley testified as to the threat of discharge made by Metz on May 3; Whittle while called as a witness did not testify as to this incident 469 of Foreman Metz Linder testified that on May 15, he was called to the plant office. Linder further testified that when he arrived at the office, which was located in a trailer outside of the plant, John Hendrix, plant manager, and Superintendent Corley were there, and that the following conversation occurred. Hendrix inquired, "Frank, what do you know about the union?" Linder replied. "I don't know a thing in the world about the union." They continued to talk and Corley said, "Frank, 1 heard that you have been running around getting union cards signed." According to Linder he replied, "I don't know who told you that." Hendrix and Corley had then inquired of Linder "what would (he] accomplish by the union," and Linder replied, "I don't know a thing about no union, and 1 have never belonged to a union in my life." They then asked what Linder thought the crowd out in the shop felt about the Union. Linder replied that he did not know, that from what he had heard on some days it seemed about 90 percent were for the Union and other days only 30 percent. On May 22, according to employee Tony Whittle, who also works in the fabricating department under Foreman Metz, he was called to the office by Metz; when he arrived at the office both Metz and Superintendent Corley were present Whittle testified that thereafter the following occurred As Whittle entered the office Corley started to question him about his union activities, and Metz got up and left. Corley asked Whittle "what do you think about the union" and Whittle replied that he "hadn't thought too much about it around here." Corley then stated "I heard that you had been trying to get employees to sign union cards." Whittle replied, "1 have not. Have not ever asked anyone to sign union cards. I have asked them what they thought about the union, but that is all." According to Whittle, Corley then stated, "I have laid some men off in the past, and I can lay some more off, and ... if I was to lay you off, you would not get another job in Columbia, couldn't get another job in Columbia." According to Whittle he then stated to Corley that "I have been wanting to ask [you] about a raise" but since Corley had questioned him about his (Whittle' s) union activities Whittle stated to Corley "1 don' t guess I will get one." Corley replied, "as long as the union was going on no one was going to get an increase in pay." On May 24, according to employee Eugene Hartley, who during the time relevant to this proceeding worked as a welder in the fabricating department under Foreman Metz, he spoke to Superintendent Corley about time off to attend a funeral. Eugene Hartley further testified that he generally worked from 7 a.m. to 5:30 p.m.; that on May 24 he left the plant at 3 p.m. to attend the funeral and returned therelrom between 5.30 and 6 p.m . that in the evening he met Rutherford, the union organizer, and went to Saint Matthews to see about getting some union cards signed. The next day, according to Hartley. Superintendent Corley asked him if he had gone to the funeral, and, when he replied that he had, Corley stated that Hartley had not gone to the funeral but that Hartley had been "visiting with the union man." Hartley further testified that Corley then stated that "he didn't mind letting people off, but he didn't want people telling him lies about getting off. And going to St. Matthews with a union man."' 'Tony Whittle testified that he had overheard part of a conversation between Eugene Hartley and Corley similar to that described by Eugene Hartley, Whittle placed the date as July 25 According to Whittle, Corley stated to Eugene Hartley "I don't mind letting a man get off, but I don't like him telling me a lie.`' 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the middle of June, according to employee James W Hall, Jr., who is a welder in the tower department under the supervision of Wade Higgins, he overheard a conversation in which Superintendent Corley made reference to Bishop Russell, the alleged discriminatee in this case. According to Hall when he was leaving the plant at the close of work one day he overheard a conversation near the timecloek in which Corley stated that he (Corley) "did not see where the union would do Bishop any good because he wouldn't be back unless he might get some back pay." According to Hall there were 15 to 20 other employees present who were walking quietly towards the timecloek when he overheard Corley who was 6 or 8 feet from the timecloek. Also early One morning in mid-June, according to employee David Ludlam, he approached a drink machine where a group of people were talking, and, when Ludlam inquired what they were discussing. Superintendent Corley, who was present in the group, replied that "they had found out that Bishop was riding around with the union man " Further interrogation by Corley occurred around the first week of August according to employee Walter Glover, who also works in the fabricating department under 1-oreman Metz Thus Glover testified that during that period Corley stopped him near his work station one day and told Glover that he wanted to speak to him sometime before he left for home According to Glover he wondered what Corley wanted, and shortly thereafter went up to Corley and asked him Corley then stated to Glover "I heard you was for the union " When Glover asked him how he heard that, Corley answered "that is what I heard, you are for the union." According to Glover he did not tell Corley he was for the Union although he had already signed the union card. b C'orley's dental of unlawful conduct Corley was not examined with regard to the alleged May 3 conversation regarding the Union attested to by David Ludlam.` Corley did address himself to the testimony of Robert Hartley, he denied that lie had conversations with Robert Hartley regarding the Union and further denied that he had told Robert Hartley that he would be fired if lie had anything to do with the Lnion, or that he had ever said that to anybody Similarly, with regard to the alleged May 15 conversation attested to by Frank Linder, Corley denied that he and Linder had ever had any conversation in which the Union was mentioned. As to employee Whittle, Corley stated that he mentioned the Union to Whittle on just one occasion, that this occurred sometime in "June or back about that time." According to Corley. Whittle was down at the paint shop which is out of the department where Whittle was supposed to work, and that employees in the paint department complained to Corley that Whittle was "worrying them so that they could not get their work done Ming to get them to sign union cards." Corley testified that he told Whittle "you haven't got a bit of business down there." and further that if he caught him down there "worrying those people so that they can't work and stopping production . I am firing you as of that date." Corley testified that Whittle had no reason at 'At one point during cross -examination , however, when Corley was questioned with regard to interrogating employees about having cards signed, or with regard to getting employees to join the Union, he stated generally that he did not question the employees about the Union any time to be in the paint shop, and that the matter was brought to his attention by the employees in the paint shop Corley had denied that he was aware of any employees soliciting other employees for the Union or that he had interrogated the employees about soliciting for the Union or about the Union generally. When examined specifically as to Whittle. Corley denied that he knew that Whittle was passing out union cards, explaining that, while the employees complained to him about Whittle, he did not know Whittle was in [act soliciting cards. According to Corley, notwithstanding the alleged paint shop complaints and his admission that he "may" have heard that Russell was passing out union cards, when Plant Manager Hendrix "sometimes" questioned him as to whether he had heard anything about the Union, Corley testified that he told Hendrix that he had not heard anything. Corley did not testify with regard to the alleged conversation between himself and Eugene Hartley concerning Hartley's absence to attend a funeral and the statement allegedly made by him that he knew that Hartley was out with the "union man " Respondent did, however, introduce evidence to show that the funeral had not occurred on May 24. as testified to by Eugene Hartley, or July 24, as testified to by Tony Whittle, but that the funeral had occurred on June 24 With regard to the testimony of Hall and Ludlam concerning Corley's statements in mid-.Tune about Russell- s e., that Russell would not he hack and that Russell was running around with the union,man-.Corley denied that he had ever discussed Russell With Hall or Ludlam or in their presence According to Corley his discussions with Plant Manager Hendrix concerning Bishop Russell occurred in the trailer office which was located 40 feet from the plant Finally with regard to the testimony of Glover concerning Corley's conversation with him about the Union in early August, Corley denied that he had ever spoken to Glover about the Union c Findings regarding Corley'.s alleged unlawful conduct Based on my observation of the witnesses and a review of the record, I find Hall, Ludlam. and Linder, as well as Robert Hartley and Tonv Whittle, to be credible witnesses. Each testified without hesitation and with as much certainty as is reasonable to expect of an honest witness. Eugene Hartley, who appeared under subpena, was obviously tense when testifying and this was reflected in his difficulty to recall the name of his doctor and his deceased neighbor, the date of his neighbor's funeral, and his prior address However, I find that Eugene Hartley was an honest witness and testified to the best of his ability Furthermore. I note that Eugene Hartley's testimony as regards the conversation with Corley, which is in issue, was undenied and was corroborated in part by Whittle 1-urthermore, in view of the other acts of interrogation by Corley which I Lind occurred, as well as my observation of Glover as a witness, I credit Glover's testimony regarding the August incident which involved Corley. Based on my observation of Corley and a review of the record, I have resolved conflicts in testimony against Corley Corley impressed me as less than candid in his testimony which bears directly on the issues of this case. His testimony was generally responsive to questions put to him by company counsel, however, on cross-examination when being questioned more specifically with regard to KLINE IRON & STEEL COMPANY 471 matters relating to the allegations of the complaint, Corley's answers were frequently evasive, and in some instances so improbable in the circumstances as to demonstrate his lack of candor generally. Accordingly, consistent with the foregoing, I find that on May 3, as Ludlam testified, Corley created the impression of surveillance by his comments with regard to Ludlam's union sympathies and what he purported to have heard, and by his pointed reference. to Ludlam's observed conversations with Linder and the Hartlcys whose prounion sentiments Corley indicated were known to him Based on Robert Hartley's credited testimony I further find that on that same date, May 3, Corley warned Robert Hartley that President Kline would tire him if he had anything to do with the Union I further find, based on Linder's credited testimony, that on May 15 Linder was called into the Company's plant office and there was interrogated by Superintendent Corley and Plant Manager Hendrix concerning Linder's union activities, what Linder thought the Union would accomplish, and what the employees in the shop felt about the Union. Similarly, based on Whittle's credited testimony, I find that on May 22 Whittle was called into the office and was thereafter questioned by Corley concerning his union sentiment and activites. and was threatened with layoff and being blacklisted so far as other fobs in the area are concerned.' Based on Eugene Hartley's testimony I find that he asked for and received permission to attend the funeral of his neighbor, that the next day Superintendent Corley accused him of not taking the time off for the funeral, that Hartley had lied to him and had gone "visiting with the union man."' 'As indicated, in so finding I have resolved the direct conflict in testimony between Robert Hartley and Superintendent Corley in favor of Robert Hartley In addition to the reasons set forth supra it is noted that Robert Hartley was supported in general outline-i e , that a discharge threat was made-by the testimony of Eugene Hartley Albeit Eugene Hartley's recollection of the circumstances relating to this incident varied from Robert Hartley 's, it is significant that the testimony of both witnesses tied Forcman Metz to the threat of discharge Since I regard Robert Hartley's recollection as more accurate than that of Eugene Hartley, I find that Corley, too, was involved in the discharge threat made that day 'As noted . Curley did not deny that he had threatened Whittle with discharge but asserted that this was provoked by complaints from paint shop employees that Whittle was "worrying" them about signing union cards, further that he had let Whittle know the reason for the reprimand and that the warning was for Whittle to stay out of the paint shop and stop "worrying" the employees Whittle in turn denied that he had ever solicited anybody's union membership Based on my evaluation of Corley generally, as set forth supra, I do not credit his account of the events which allegedly led up to the threat to Whittle I note that Corley 's testimony relative to this incident is generally incredible I cannot believe that if this incident occurred Corley would not have told Hendrix about this matter, yet Corley testified that , when Hendrix "sometimes" inquired whether he had "heard " anything about the Union, Corley had told him he had not Furthermore, in view of his interrogation of other employees concerning union activites I cannot believe that , 11 Corley had received such complaints, he would net have questioned Whittle regarding the complaints or his purpose in visiting the paint shop Yet Corley insisted that he did not question any employees about soliciting for the Union or about the Union generally In these circumstances and noting that no employee from the paint shop testified regarding this incident, I do not find that such complaints had in fact been received Furthermore, assuming that Whittle had been in the paint shop and away from his work station and this had been made known to Corley. I find that his warning was not directed to Whittle because he left his work station or was interfering with production but was a warning directed to his continued support of the Union generally 'As noted supra while Hartley had some difficulty recalling sonic of the events in relation to this incident , Whittle's testimony corroborated the tact Based on the credited testimony of Hall and Ludlam, 1 find that in mid-June Corley stated as overheard by Hall that he "did not see where the union would do Bishop any good because he wouldn't be back unless he might get some back pay." and further stated to Ludlam that "they had found out that Bishop was riding around with the union man "' Finally. I find that Corley. in early August, stated to employee Glover. as testified by him. that he had "heard" that Glover was "for the union " d The alleged unlawful conduct of Foremen Claude Metz and Wyman Shealy As indicated supra, Eugene Hartley testified that on May 3, he, Robert Hartley, and other employees were standing by Metz' desk. According to Eugene Hartley, Metz asked if they had anything to do with the Union and told them that if they did they would probably be laid off. Hartley told Metz that he had nothing to do with the Union and believed that the others said the same. Eugene Hartley further testified he did not stay there very long and walked off so he did not hear Metz say anything else. Employee D. C. Higgins is a welder in the new plant, and during the time relevant to this case worked under the supervision of Foreman Metz Higgins testified that on or about June 10 Claude Metz approached him while he was working, that Metz said "D., what do you think about the union " According to Higgins, when he replied, "well, Claude, I think it is all right, what do you think`'", Metz turned around and walked off. On July 31, according to Eugene Hartley, he was working at his job in the fabricating department when he, too, was approached by Foreman Metz Eugene Hartley testified that Metz stated "I want to talk to you about the union," that Metz went on to say he knew how many employees had signed cards on Foreman Shealy's side and how many had signed cards on his side of the fabricating department Employee David Ludlam testified as to further acts of Foreman Metz According to Ludlam on May 6 or 7 a that Corley had spoken to him about this matter and Corley did not deny the substance of the conversation attested to by Eugene Hartley I find, however, that Hartley and Whittle were mistaken in their recollection as to when the event occurred , the funeral for Kyzer did not occur on May 24 as remembered by Hartley or July 24 as remembered by Whittle, but in fact occurred on June 24 as demonstrated by Resp Exh 6, the death certificate of Kvzer 'With regard to the credibility resolution as to the statement overheard by Hall it was also noted , contrary to the Respondent's argument in its briel that a decision not to reemploy Russell was made well into July, that President Kline testified he approved a decision not to take Russell back before the plant vacation on July 3, and that it could have been as early as May or June Corley's testimony regarding his knowledge of such a decision was contradictory and in some aspects incredible Thus Corley testified on the one hand that he learned of Hendrix's decision not to reemploy Russell for the first time about the first week in July He later testified, however, that he spoke with Russell at the plant on two occasions and that one was after the plant vacation which ended on July 15 and that he was "satisfied that [Hendrix ] had not told me yet the decision " Finally, Corley testified that lie had not disclosed that Ilendrix had communicated the decision to him prior to his testimony at the hearing, this notwithstanding meetings with counsel to prepare a defense to these charges I find that, whether or not a final decision had been made, Corley. who discussed the Russell case with Hendrix, was privy to the thinking of the Company and that his comment which Hall overheard was a reflection of that thinking As regards Corley's statement to Ludlam reflecting a knowledge of Russell's union activity, Corley 's admission that he "may" have heard that Russell was soliciting union cards is noted 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD group of employees while eating their dinner were discussing what would happen if there was a union election. Claude Metz was present and, according to Ludlam, Metz told the employees that if they had an election "it wouldn't do any good, because he said the company would challenge every vote, and they would write the name out on the ballot and then they would know how every man voted." According to Ludlam he told Metz that he had not been there for the other elections but that that did not sound right. Ludlam further testified that later that same day Claude Metz and Wyman Shealy were talking and they said the first thing that the Company would do if the Union was voted in at Kline would be to cut back to 40 hours Robert Hartley also testified that, on or about May 6, Metz had a conversation with him while he (Hartley) was working. According to Hartley, Metz stated to him that "if the Union would come in there that we would get a 10-cent raise, and they would cut us from 55 hours back to 40 hours, therefore, we would not benefit by joining the union." e. Denial of unlawful conduct by Foremen Metz and Shealy Metz did not testify directly with regard to the threat of discharge allegedly made to employees Eugene Hartley, Robert Hartley, and other employees present. According to Metz he did have one conversation with Eugene Hartley in which the Union was mentioned: this occurred about the "middle of the year " The circumstances surrounding the conversation and the conversation itself related by Metz were as follows. One day when he was taking Hartley back to show him where to get some material to work on, Hartley had said to him that Gator (the maintenance man) had better keep his big mouth shut. According to Metz he looked over at Hartley who he said appeared "kind of warm" and asked what Gator had done and Hartley answered that Gator had said that he (Hartley) was having union meetings at his house. Later that day when Metz went to the toolroom he related the incident to Gator. and Gator stated. "well, 1 will talk to that gentleman" Still later in the day when he was checking Eugene Hartle_'s work, Hartley stated do you know what Gator said, and Metz replied that he did not. Hartley then stated that Gator said he could name everybody that signed union cards to which Metz replied he probably could and just kept on checking Hartley's work. Metz initially testified that there were no other conversations with Eugene Hartley. On cross-examination, however, he admitted that there were other conversations with Eugene Hartley concerning the Union. According to Metz these conversations were initiated by Hartley and included an exchange in which Hartley stated to him that he supposed he would he discharged after the union campaign ended, to which Metz replied, "not necessarily." With regard to the alleged interrogation of Higgins in June 1968, Metz denied that he ever had any conversation with Higgins between March and July 1968 in which the Union was mentioned by either of them. Regarding Ludlam, Metz testified that he had only one conversation with Ludlam concerning the Union. Metz could not recall the month in which this conversation occurred but testified initially that it was "in the early part of the year"; a period which he later stated was sometime between spring and summer - i e.. between March and June. Metz gave the following account of his conversation with Ludlam. One day during lunch Ludlam said to him, "Claude, I know you been in some union elections when they voted . . . how did they work." Metz replied, "the way that they done the time I was there ... they had a union man and they had it man from the company and as you would go through the line well they would check us off." He then told Ludlam that Claude Corley was right ahead of him and they made him put his vote in an envelope. According to Metz there was nothing else said in that conversation about that previous election. Metz denied that he told Ludlam that in a future election the Company would challenge every vote and make the employees put their vote in an envelope. Metz also denied that he had during this conversation mentioned hours of work to Ludlam. Metz further denied that he had any conversations with Robert Hartley in which the Union was mentioned. Metz testified that at one time when he and other employees were looking at a notice tacked up on the toolroom door he said "1 hope that they don't come in here because one time when, it went into Owens they cut to forty hours and give them a ten cent raise." Metz was certain that Ludlam was not present at that time and does not know whether Robert Hartley was there Metz denied generally that he ever told any person that if the Union came in to Kline Iron and Steel that wages would go up 10 cents and the hours would be cut from 55 hours back to 40 hours a week. According to Metz he could not have made such a statement because he did not know that this would happen. Foreman Shealy denied that he had any conversations with Ludlam in which the Union was mentioned. According to Shealy there was only one conversation with Ludlam in which a change in weekly hours was discussed. Shealy testified that some 3 months earlier (which would be in August) Ludlam was complaining to him about long hours and overtime. According to Shealy he told Ludlam that, "it was always going on like that That they always had run it like that and there wasn't any use in changing it now " According to Shealy, Ludlam replied that it might be and that he knew what Ludlam was talking about Shealy then asked him if he could live on a 40-hour-a-week check and walked off Shealy admitted that he had discussed the Union with other foremen and that he talked with Corley at his break and had discussed overtime; however, Shealy denied that Corley and he had discussed at any time the possibility that the Company might cut overtime. f. Findings regarding the alleged unlawful conduct of Foremen Metz and Shealy, As indicated supra I have found Robert Hartley and David Ludlam to be reliable witnesses whose testimony I credit. I also credit the testimony of D. C. Higgins who impressed me as a truthful witness Regarding Eugene Hartley I have noted that his testimony about a May 3 threat ascribed to Metz was supported by Robert Hartley. Moreover. I find that his testimony when weighed against that of Metz was more reliable. Based on my observation of Metz and a review of his testimony, I find that Metz like Corley was less than candid as a witness in this proceeding1" and note further his inability to recall events with certainty such as was demonstrated regarding when his purported conversations with Ludlam and Hartley occurred. 10MetE' testimony as to significant matters was contradictory; in some instances when pressed on cross-examination he changed his testimony substantially Thus Metz who generally denied many of the statements KLINE IRON & STEEL COMPANY 473 Based on my observation of Shealy and a review of the record I have resolved the conflict in testimony between Shealy and Ludlam against Shealy. Thus I do not credit Shealy's denial of any conversations relating to a cutback in hours other than that with Ludlam in August or his denial that he ever discussed a cutback in hours with Foreman Metz. Shealy admitted he spent time at his break with Metz, that they discussed the Union and had discussed overtime; however, according to Shealy, in these discussions about overtime they never discussed the possibility that the Company might cut overtime. Metz admitted that he was so concerned about a cut in overtime if the Union came in that he voiced this concern about what had happened at Owens to the employees. In view of this the denial that Metz and Shealy, who while they admittedly had discussions concerning the Union and the subject of overtime, did not discuss the possible cut in overtime if the Union came in is not credible particularly when weighed against the direct testimony of Ludlam whom I regard as a credible witness. Accordingly, consistent with the foregoing, I lind that on May 3, as testified to by Eugene Hartley, Foreman Metz questioned the employees then present about the Union and threatened them with layoff if they had anything to do with the Union. I further find that on July 10 Foreman Metz questioned Higgins as to his union sympathies. Furthermore, based on Eugene Hartley's credited testimony. I find that Metz took Eugene Hartley aside to inform him that he knew the number of employees who had signed cards in each of his and Shealy's groups. Based on Ludlam's credited testimony, I find that on May 6 or 7 Metz threatened that, if the employees had an election, the Company would challenge each voter and thereby learn how every man voted. And later that same day Metz and Shealy while talking stated in Ludlam's presence that if the Union were voted in the Company would cut back to 40 hours. I further find in this regard. based on Robert Hartlev's credited testimony, that on or about May 6 Metz engaged Robert Hartley in conversation at Hartley's work station and warned that if the Union came in the employees would not benefit thereby since there would be a 10-cent raise but the hours would be cut from 55 hours back to 40 hours. attributed to him by General Counsel's witnesses did not specifically deny the May 3 threat of layoff attributed to him by Robert and Eugene Hartley Metz generally denied any conversations with Robert Hartley and initially testified that there was only one incident regarding which he had conversations with Eugene Hartley-this was the Gator incident which allegedly occurred sometime in "the middle of the year ." Assumedly the inference sought to be established , since this purportedly was the only conversation , was that others did not occur, thereby denying. although not directly, the threat of discharge for union activity which was attributed to him by Eugene Hartley. However, when pressed on cross-examination, Metz admitted that he had conversations with Eugene Hartley other than those involving Gator in which the Union was mentioned albeit conversations, which, according to Metz, Eugene Hartley had initiated Similarly, while Metz admitted conversations with other supervisors concerning the Union, initially he testified he was "sure" these conversations did not concern the number of people who had signed cards, who was for the Union, what the Union would get if it came in, how he thought an election would go, the possibility of discharging employees because of the Union , or where union meetings were being held When pressed further on cross-examination Metz testified he "did not know" what these conversations were about and finally conceded that the conversations "could have been " about those matters which he had been "sure" had not been discussed. 2. Conclusions as to the alleged violation of Section 8(a)(1) I find, based on the credited testimony set forth above, that Respondent violated Section 8(a)(1) by 1. Interrogating its employees concerning the employees' union sympathies and activities as follows: Superintendent Corley''s" interrogation of employee Linder on May 15, employee Whittle on May 22, and employee Glover during the first week in August; Foreman Metz' interrogation of Eugene Hartley and other employees then present on May 3 and employee Higgins on or about June 10. 2. Threatening employees by creating the impression of surveillance of employees' union activities as follows. Superintendent Corley's statements to Ludlam on May 3, to Linder on May 15, to Whittle on May 22, to Eugene Hartley on July 25: Metz' statements to Eugene Hartley on July 31. 3 Threatening to discharge or lay off employees because of their support of the Union as follows: Superintendent Corley's threat made to employee Robert Hartley on May 3 and to employee Whittle on May 22; Foreman Metz' threat made to Eugene Hartley, Robert Hartley, and other employees present on May 3. 4 Coercmg its employees in the exercise of their rights under the Act to have a Board-conducted election through the statement made by Foreman Metz on May 6 or 7 that it would do no good to have an election since Respondent would challenge every voter and thereby learn how each man had voted 5. Threatening to reduce hours and do away with overtime work by the statements of Foreman Corley and Metz on May 6 or 7 in the presence of employee Ludlam and by Foreman Metz' statement to Robert Hartley on or about May 6 I do not find that Respondent violated Section 8(a)(1) by Corley's statements in mid-June-i.e that he "did not see where the union would do Bishop any good because he wouldn't be back unless he might get some back pay," and on another occasion that -they had found out that Bishop was riding around with the union man."" The first statement appears only to evidence the Company's determination not to take Russell back, and the reference to the Union appears to be either that it would not bring about a change of attitude by the Company or that it would not be able to represent Russell as an employee of the Company in the future since he would not be employed While the term "backpay" is frequently used in remedying a discriminatory discharge it is also part of the jargon of the shop and it is equally inferrable that its use here was to the compensation Russell was seeking to recover under the insurance coverage for the period of absence due to the gunshot wound, which is more fully discussed infra. In the circumstances I find that the General Counsel failed to establish that this statement constituted a threat that Russell would not be back because of his union activities Regarding the latter "Superintendent Corley, Foreman Metz, and Foreman Shealy are admitted to be supervisors within the meaning of Sec 2(11) of the Act, and as such, absent special circumstances not present here, the Company is responsible for their conduct J S Abercrombie Co . 83 NLRB 524 "in his brief General Counsel did not set forth the basis in the record for each of the 8( a)(I) violations alleged in the complaint but based on the dates set forth in the complaint I have considered that the former statement was relied on as a threat of discharge and that the latter statement as an incident of the Company's creating the impression of surveillance 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statement , the credited testimony is that when Corley made the statement it was prompted by Ludlam's observation of a discussion by a group of employees and Ludlam's question as to what the discussion was about; in these circumstances it is equally inferrable that "they" as used by Corley referred to the group of employees who were then discussing the matter and does not establish that Corley by this statement was seeking to create the impression of surveillance. B The Alleged Discriminatory Discharge of Russell 1. The refusal to return Russell to work Bishop Russell began as an employee for Kline Iron & Steel Company in 1936 and continued in his employment there until 1943; thereafter he quit, worked 2 more years for the Company, quit again , and returned to work in 1958. He has been continuously employed by the Company since 1958. On Saturday, February 18, Russell suffered a gunshot wound in his home and thereafter was hospitalized for 55 days. Following this Russell spent a period of about 3 months at home convalescing and during about one and a half months of this period he rode with Union Organvcr Rutherford, visiting the home of about 15 or 20 employees to discuss the Union with them. Russell himself had signed a union card On July 1, Russell was released by his doctor and on the same day visited the plant and talked with Superintendent Corley. On that date Plant Manager Hendrix was in the hospital and Corley told Russell that he could not do anything because Hendrix took care of the insurance and he could not tell Russell "whether the insurance would take Russell back." On July 3, Russell visited the plant to get his vacation money, which he received, and talked with Hendrix, Hendrix told him to cone in on July 15 since the plant would be closed for the employees' vacation from July 3 to July 15. Russell reported on July 15, prepared to go to work; however, when he talked to Hendrix he was told that he had better get a part-time job, that it was too hot in the shop and that he, Russell, was weak When Russell pointed to other disabled employees in the plant who were then working, Hendrix merely smiled and said nothing. Russell returned to the plant on the 17th or 18th of July and was told by Hendrix to get a checkup by his doctor and if the doctor okayed Russell he could return to work Russell then obtained a written statement from his doctor, stating that Russell was able to return to work; the statement was signed July 22 and on July 23 Russell reported to the Company at 7 a in in his work clothes prepared to go to work. Since Hendrix had died very suddenly on July 20, Russell reported to Corley and gave him the doctor's statement, releasing him for work Corley after reading the statement said that he would call Russell Corley did not call Russell, and, when Russell called him sometime later, Corley told him he could not return to work at that time but that maybe he could at a later date " The Company at the hearing made it clear that it would not return Russell to work." "The foregoing facts are based on the credited testimony of Russell which was substantially uncontradicted "Russell is presently employed as a burner for another steel company and is working 56 hours a week 2 The Respondent's position The Company denied that its refusal to return Russell to work following his illness was in any way related to Russell' s union activity and sympathies. It is the Company's position that it had good reason to believe that the gunshot accident which occurred in Russell's home on February 18 was in fact self-inflicted and an attempt at suicide; the Company further contended that it refused to return Russell to work because the Company felt Russell would represent a danger to himself and to others if he was permitted to return to his job. According to the Company the decision to refuse to take Russell back was made by Hendrix prior to his death and was adhered to by the Company. William Albert, as the assistant manager of operations. takes care of employees' hospitalization insurance. According to Albert's testimony, which I credit, he saw the police report of the gunshot accident 3 days after it was written. Albert had requested the report from the hospitalization insurance carrier for information concerning the benefits to which Russell was entitled 15 The police report indicated that the gunshot wound that Russell received on February 18 was self-inflicted and the insurance company had declared him ineligible for benefits for this reason. According to Albert he had discussed the police report with Hendrix, who, as the general manager of the Williams Street plant, made all decisions with regard to hiring and firing at the new plant; he had then filed the report in Russell' s personnel file. According to President Kline whose testimony 1 credit, he received an oral report about a week or ten days after the event that Russell had made an unsuccessful attempt at suicide." Kline did not make the initial decision to discharge Russell but had participated in the decision. On a date prior to July 3, the beginning of the plant vacation, a date which may have been as early as May or June, Kline received a call from Plant Manager Hendrix. Hendrix discussed Russell 's situation and told Kline that he believed he would not take Russell back stating "we don't want anyone like that in the plant. anyone that would do a thing like this." Kline approved Hendrix's decision. stating to him, that "that is very good thinking, John, I'll buy it and we won't take him back . . . be dangerous to him and dangerous to us." With regard to Hendrix's decision not to reemploy Russell, Albert testified that he. too, had discussions with Hendrix concerning Russell's return to work. Albert testified that, when he discussed Russell with Hendrix shortly after learning about the police report, there had been little talk of Russell's future employment since it was doubtful at that time that Russell would live. However, about a week or two before Hendrix's death, Hendrix had discussed Russell's return to work during a social evening at Albert's home " At that time Hendrix indicated that based upon the police report and his observation of Russell who had been to his office that it would not be desirable to hire him back because Russell would be a menace to himself and also probably to his fellow employees because of his condition According to Albert, at no time during his discussions of Russell with Hendrix was the Union ever mentioned. Superintendent Corley also testified that he had discussed the employment of Russell with Hendrix, and "Russell's request was prompted by an inquiry from Russell's wife "Kline had not seen the police report before the hearing "Albert had lelt the employment of Kline Iron & Steel on April 3. 1968, and did not return to its employ until July 29, 1968 KLINE IRON & STEEL COMPANY 475 about 2 or 3 weeks before his death Hendrix had told Corley that he (Hendrix) had made the decision not to rehire Russell because he might be dangerous to himself and other employees. Corley disclaimed any role with regard to Russell's employment status. According to Corley, when Russell had returned to the plant he had sent hint straight to Hendrix because where insurance was involved Hendrix took care of the matter. Corley testified that he was not present during the conversations between Russell and Hendrix With regard to Hendrix's knowledge of union activites. Corley testified that Hendrix might have asked him some times if he had heard anything and he would tell Hendrix that he had not.78 3. Additional findings, analysis, and conclusions As indicated supra, the credited evidence establishes that the Respondent engaged in numerous acts of unlawful conduct in an effort to defeat the Union's organizational campaign, including threats to discharge employees if they continued to support the Union The evidence also establishes that Russell was active in assisting the union organizer in soliciting cards and that this was known to the Company Moreover the initial refusal to return Russell to work occurred shortly after Russell' s union activity Thus the record establishes a prima facie case that Russell's discharge was for union considerations and violative of Section 8(a)(3). However, I also find that the Company's stated reason for discharge has substantial basis in this record. I find that the Company had a good-laith belief that Russell's gunshot wound of February 18 was self-inflicted and an attempt at suicide.'° There is no question that a company, insol'ar as Section 8(a)(3) of the Act is concerned, may discharge employees for any reason, whether or not the cause be viewed as reasonable in the circumstances, provided only that a cause for the discharge is not union considerations Moreover. while in circumstances where there is a prima facie case for finding unlawful motivation, an employer's stated reason for discharge, if inherently implausible, may lend some support to a finding of violation, here the Company's stated reason for discharge was not inherently implausible. Russell's job in the fabricating department involved the use of, and placed him in close proximity to, equipment which was inherently dangerous and required a high degree of care on the part of an employee Thus, the question is whether the Company, believing that Russell had attempted suicide, discharge Russell for this reason, or whether the Company relied on this as a pretext for unlawfully denying Russell 17is job; simply stated, in the circumstances present would the Company have discharged Russell if it had not been for his known union activity I find for the reasons set forth below that the evidence does not preponderate in favor of a finding that the Company's decision to discharge Russell was influenced by his known union activity. Plant Manager Hendrix made known his decision not to take Russell back first to President Kline as early as May or June and certainly before the plant vacation period starting on July 3. When Hendrix discussed with him the decision not to take Russell back because he might be a danger to himself and others, Kline approved it. While Plant Manager Hendrix had the power to hire or lire on his own, I do not regard it as unusual that he discussed his decision with Kline because of the difficulty of the situation- the return of a well-regarded employee with long service, but one who he believed had attempted suicide and whose job involved potentially dangerous equipment. Kline himself evidenced some uncertainty as to the decision, stating " . I believe and I am not sure about this, but if I had the decision to make, i would make it just the way that it is"; Kline in fact endorsed Hendrix's decision, apparently a difficult one for both men Notwithstanding Kline's approval in the matter. Hendrix did not relate this decision to Russell at any time prior to his death on July 20. While he did not put Russell back to work, Hendrix kept Russell returning to the plant. Thus on July 3 Hendrix advised Russell to return on July 15; on July 15 Hendrix told Russell he looked too weak to' work, and, when Russell again returned to work on July 17 or 18, Hendrix told Russell that if his doctor certified him as able to do so he would be returned to work. Furthermore on July 16 Hendrix signed an insurance questionaire in which he indicated that Russell presumably would return to work when able. In his brief General Counsel argues that, assuming that Hendrix had made the decision attested to by Kline and Albert ,21 the evidence would indicate at least that as of July 16. Hendrix had changed his mind about returning Russell to work General Counsel notes particularly Hendrix's response on July 16 to the insurance company's question regarding Russell's return to work.2' General Counsel further contends that it was Claude Corley who made the decision not to rehire Bishop Russell on July 23, that Corley knew of Russell's union activity, had told employees in June that Russell would not be hack. and that upon Hendrix's death Corley. who it is contended assumed full charge of the plant including the responsibility for deciding Russell's case, had terminated Russell for his union activities. On this record I cannot find as urged by the General Counsel that following the death of Hendrix, the full "As indicated supra , I do not regard Corley as a reliable witness. however, I credit his statement regarding Hendrix s report of his decision as to its substance noting that the testimony of Kline and Albert tend to support ibis I do not credit Corley as to when the report was made to him since his testimony was contradictory As noted earlier herein, Corley first testified it was made the first week in July, he later testified he was certain he had not yet received such report on the occasion when Russell visited the plant following the vacation which ended on July 15 Similarly I do not credit his statement that he told Hendrix nothing with regard to what he had heard about the Union Curley knew of Russell's activities by mid-June and I find that Corley who had discussed Russell with Hendrix had made this information known to Hendrix "Whether Russell in fact attempted suicide is not necessary to the dispositon of the issues of this case, it is enough that the Company in good faith believed that this was what had happened Nor do I believe in light of the police report covering this incident that the Company's failure to investigate this matter further derogates from finding a good-faith belief on its part that Russell had attempted to take his own life "And as to such a finding General Counsel notes in his brief that the evidence to support such statements is hearsay in that Hendrix, the declarant, is now deceased Counsel made no objection to the admission of such testimony at the hearing and, as indicated supra , relied on such testimony in presenting evidence through Russell , i e , conversations which occurred between Russell and Hendrix In any event the Board has repeatedly held that it "is not precluded from considering as evidence statements attributed to deceased persons or those too ill to testify [The Board] does, however, subject such testimony to the closest scrutiny before deciding what weight to give it " West Texas Utilities Co. Inc. 94 NLRB 1638, 1639, enld 195 F 2d 519 (C A 5) See also Sam Wallick, 95 NLRB 1262, enfd 198 F 2d 477 , 483 (C A 3), Hazen & Jaeger Funeral Home, 95 NLRB 1034, 1043, fn 9, enld 203 F 2d 807 (C A 9), Chun King Sales, Inc, 126 NLRB 851, 864-865, Pasadena Bowling Center . 150 NLRB 729, 733-734, Calandra Photo, Inc . 151 NLRB 660, 669 "It is noted that Hendrix 's response on the insurance questionnaire was not unequivocal but was qualified by the word "presumably " 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD responsibility for the new plant and particularly the disposition of Russell's case devolved on Corley. There is no evidence in this record that, following the death of Hendrix, Corley was given expanded duties at the new plant, and, if so, that they included the decision as to Russell The credible evidence establishes that Hendrix had Iclt called upon to clear his decision not to return Russell to work with President Kline and this decision as related to Kline was for reasons unrelated to his union activities. There is no evidence that Corley ever was authorized to depart from this decision or was permitted to act on his own and thereby given the opportunity to substitute his own reason for the action taken The question posed by Hendrix's conduct following his earlier discussion with Kline and also Albert remains. However, whether Hendrix was merely procrastinating in carrying out the difficult task of informing Russell that he was discharged, and more particularly that the reason therefor related to what the Respondent believed was his attempted suicide, or whether he had indeed changed his mind, I find is not determinative of the Company's motive in ultimately discharging Russell. For even if it is assumed that Hendrix had changed his mind about putting Russell back to work, there is no evidence that this had been communicated to any management official. More importantly, there is no evidence that Kline had been so informed, or was even aware of Russell's visits to the plant in July or what was transpiring between Hendrix and Russell. So far as the record discloses. Kline's only knowledge of a decision by Hendrix was that which was disclosed to him before July 3. The Company's position concerning Russell is that it adhered to Hendrix's decision, that decision I conclude was that which was communicated to Kline before July 3. Moreover that a decision had been made about the same time that company officials were aware of Russell's activities is evidenced by the remarks of Corley in mid-June; i.e., that Russell would not be back and, on another occasion, that they were aware he was riding with the union man. There is nothing in this record which would support a finding that there were any other union-connected activities or indeed a continuation of his earlier activities by Russell so as to support a further finding that the Company's reason for Russell's discharge would have changed from that which was discussed before July 3 with Kline and later with Albert.22 I conclude therefore that on the basis of this record and the credited evidence that it was Hendrix's decision not to put Russell back to work following his illness because of the good-faith belief that Russell had attempted suicide in February, the decision Hendrick cleared with Kline and the only one known to Kline, which was adhered to by the Company in its discharge of Russell Accordingly, I find that the General Counsel tailed to establish by a preponderance of the evidence that Russell was discharged in violation of Section 8(a)(3) and "Moreover, regarding the Company's motive for Russell's discharge, it is also noted that, while the Company had in fact threatened other employees with discharge it they engaged in union activities, these employees have continued in their employment , in some instances these employees were known to be active union adherents , were employees who were not as well regarded as Russell and who did not have a long employment relationship with the Company as did Russell Employee Whittle, one of the employees threatened with discharge, has not only continued in his employment but has received two raises, this notwithstanding Corley's statement to him at the time of the discharge threat that there would be no raises as long as the "union thing continued. recommend that this allegation of the complaint be dismissed. TV. THE EFFECT OF fiiE UNFAIR LABOR PRACTICI-S UPON COMMERCE The activities of the Company set forth in section III, above, occurring in connection with the Company's operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Company engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, it will be recommended that the Company cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. On the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CoNCr.USIONS OF LAW 1. The Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Company has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act, which unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. The Company has not engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, it is recommended that the Company , Kline Iron & Steel Company, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their union activities, sympathies, and membership. (b) Threatening employees with discharge because of their union activities, sympathies, and membership. (c) Threatening employees by creating the impression that their union activities are being kept under surveillance. (d) Coercing its employees by telling them that the Company will challenge every voter in any Board-conducted election in order to determine how they voted. (e) Threatening to abolish overtime if the Union is selected as the bargaining representative of the employees (f) In any other manner interfering with , restraining, or coercing its employees in the exercise of their rights to self-organization , to form labor organizations , to join or assist Shopman ' s Local Union No. 812 of the International Association of Bridge. Structural and Ornamental Iron Workers , AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activites for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any KLINE IRON & STEEL COMPANY 477 and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959 2 Take the following affirmative action which will effectuate the purposes of the Act: (a) Post at its plants in Columbia, South Carolina, copies of the attached notice marked "Appendix"" Copies of said notice, on forms provided by the Regional Director for Region II, after being duly signed by Respondent's authorized representative. shall be posted by 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 11, in writing. within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.2' IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges unfair labor practices not specifically found herein. "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" and in the first paragraph of the notice the words "a Trial Examiner of' shall be deleted . 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 Appeals 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 NOTICF TO ALL EMPLOYEFS Pursuant to the Recommended Order of a Trial Examiner of' the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: Following a trial in which the Company and the General Counsel of the National Labor Relations Board participated and offered their evidence, a Trial Examiner of The National Labor Relations Board has found that we violated the law and has ordered us to post this notice and to abide by what we say in this notice The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all of these things WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL NOT threaten employees with discharge because of their union membership, activities on behalf of the Union, or support of the Union. WE Witt NOT question employees concerning their union membership, activities on behalf of the Union, or support of the Union. WE WILL NOT threaten employees by creating the impression among our employees that their union activities are being kept under surveillance. WE WILL NOT coerce employees by telling them that the Company will challenge every voter in any Board-conducted election in order to determine how they voted. WE WILL NOT threaten to abolish overtime if the Union is selected as the bargaining agent of the employees. All our employees are free to become or remain, or refrain from becoming or remaining , members of any labor organization. KLINE IRON & STEFL COMPANY (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered. defaced, or covered by any other material If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 16th Floor, Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 919-723-9211, Extension 360.