Dibert, Bancroft & Ross Co., Ltd.

DIBERT, BANCROFT & ROSS CO., LTD. 553 Dibert, Bancroft & Ross Co., Ltd., and its wholly owned subsidiary, Ross Steel Works, Inc. and Shopmen's Local Union 619, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. Cases 15-CA-3885 and 15-CA-3885-2 October 6, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On April 19, 1971, Trial Examiner Ramey Donovan issued his Decision in the above-entitled proceeding, finding that Respondent had engaged 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. He also found that Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of such allegations. Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. 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 proceeding 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 the proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.1 ORDER TRIAL EXAMINER'S DECISION RAMEY DONOVAN, Trial Examiner : On August 5, 1970, Shopmen's Local Union 619, International Association of Bridge, Structural, and Ornamental Iron Workers, AFL, herein the Union or Iron Workers, filed a charge against Respondent, Dibert, Bancroft & Ross Co., Ltd., alleging the discriminatory discharge of Spencer Foster. Another charge involving the Union and Respondent was filed on August 28, 1970, alleging the discriminatory discharge of Joseph Wilson. A consolidated complaint issued under date of October 26, 1970. Set forth in the complaint as violations of Section 8(a)(1) and (3) of the Act were various alleged acts of interference, restraint, and coercion and the suspension and discharge of Wilson and the discharge of Foster. Respondent denied the commission of the alleged violations. The case was tried in Amite, Louisiana, on January 27 and 28, 1971. 1. JURISDICTION Dibert, Bancroft & Ross Co., Ltd., and its wholly owned subsidiary, Ross Steel Works, Inc., Respondent, are Louisiana corporations and jointly operate a manufactur- ing foundry and rolling mill at Amite, Louisiana, where each of them maintains its principal office and place of business. During a representative 12-month period, each of the foregoing companies sold and shipped manufactured goods valued in excess of $50,000 directly to points outside Louisiana. Respondent is an employer engaged in commerce within the meaning of the Act. The Union is a labor organization within the meaning of the Act. H. THE ALLEGED UNFAIR LABOR PRACTICES One of the elements in this case is the contested supervisory status of certain individuals. On this aspect we have not only extensive evidence in the instant case but we have also before us, as part of the record, a hearing in Case 15-RC-4450 held on September 16, 1970, and a decision thereon, dated October 7, 1970, by the Board's Regional Director, acting pursuant to authority delegated by the Board. i Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that Respondent, Dibert, Bancroft & Ross Co., Ltd., and its wholly owned subsidiary, Ross Steel Works, Inc., Amite, Louisiana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. i In the absence of exception, we adopt pro forma the Trial Examiner's recommended dismissal of the Section 8(a)(3) and (1) allegations as to employee Foster We find it unnecessary to pass on the Trial Examiner's finding that Supervisor Lofton's interrogation of employee Warren was not a violation of Section 8(a)(1), because even a contrary finding would not affect our Order herein , which already contains a prohibition against coercive interrogation Sequence of Events The General Counsel introduced in evidence a telegram addressed to "J. A. Ross; Dibert, Bancroft and Ross Co., Ltd." Other than the photostat copy of the telegram that is an exhibit, the record is virtually barren of any evidence regarding the telegram. It was received in evidence pursuant to a brief colloquy of agreement by counsel for the parties.2 At the top of the telegram is printed or typed, i In the RC case, the petitioner was the International Molders and Allied Workers Union, AFL-CIO. The instant Union, the Iron Workers, was an intervenor in the RC case. 2 Hopkins (G C) " . . General Counsel's 2, a telegram which related to July 12, 1970, from Iron Workers to Employer, Respondent herein I believe Mr. McFall agrees that we might introduce this by agreement as (Continued) 193 NLRB No. 93 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidently by the telegraph company, "Telegram Received by Telephone." The telegram, as well as we can determine, was sent by union representatives on Sunday, July 12, 1970, at 6:59 p.m., possibly from Amite, Louisiana, the town which is also the site of Respondent's plant.; Since July 13, 1970, 8 am, is stamped on the document, we assume that this is the date of delivery, evidently by telephone.4 There is no reference to a J A. Ross in the instant record but in the Board's RC case decision there is mention of John Ross, president of the Company. Assuming that Respondent received the telegram on Monday, July 13, we do not know what internal communication occurred within the Employer's organiza- tion or when it took place. Dautsch, manager of Respondent's rolling mill (Ross Steel), testified that the first time he learned of the union advent "was late in that week of the 14th . about Wednesday or Thursday or maybe later . . I would say Thursday or Friday" when Waits, executive vice president, showed him the telegram. Hendry, the foundry superintendent, testified that on July 16 when employee Dan Hawkins was called to the foundry office for questioning about a union card mcident,5 Hawkins asked him if he had received the telegram or did he know anything about it. According to Hendry, "I [Hendry] didn't know anything about it, the telegram" and Hawkins then told him that he, Hawkins, was a union committeeman. Regarding the same aspect, Hawkins testified that when he was in the office he said to Hendry, ". . there should be a telegram stating that the committeemen, in the front office, it should have been there Monday. I said, isn't that right, Raymond [Hendry]. He said yes, I reckon. Q. He said what? A He said yes, I reckon."6 Since we have mentioned one aspect of events on July 16, 1970, it is appropriate that the entire July 13-16 period now be described. Higgenbotham was an employee in Respondent's foundry from June 12, 1969, until his discharge on September 9, 1970. The foundry had two shifts, the night shift from 3:30 p.m. to 12 and the day shift starting at 7 a.m. The foundry is engaged in the making of molds. Hendry is the foundry supertntendent7 and he has two leadmen, Wallace on days, and Chavers at night.8 On the day shift the foundry has 74 employees, including 6 journeymen molders and 6 apprentice molders. At night, there are 15, sometimes 19, employees. Chavers is the sole journeyman molder and leadman on the night shift. Hendry is at the plant during the day shift.9 General Counsel's 2 Mr McFall (Respondent) yes " The exhibit was then received in evidence 1 The only other geographical location that appears in the document is "Arabi, La;" the address of Rigby, apparently one of the senders The telegram stated that employees D Hawkins, J Wilson, R Wallace, L G Anthony, and M Ford were the organizing committeemen of the Union and cautioned that discrimination against these employees or others would be a violation of the Act + There may also have been a confirming mail delivery The limited evidence before us on all these aspects accounts for the frequent use of "assume," "evidently," "probably," and "may " The incident will be described in detail at a later point This is not very clear Evidently the testimony is that Hawkins said there should be a telegram about the committeemen in the Company's front office and it should have been there Monday (it was sent Sunday, July 12, at 6 55 p in ) Hawkins asked Hendry if that was not right and the latter said, "yes, I reckon " The testimony of Higgenbotham was that Chavers was his "boss" on the night shift, When Higgenbotham first started he assisted on the molds but then Chavers told him to operate the Bobcat.to Thereafter, the employee worked on the Bobcat and Chavers would tell him what task he wanted the Bobcat to perform at any particular time. At times when the Bobcat broke down, Chavers would assign Higgenbotham to some other task, such as helping out on the molding work. On Tuesday night, July 14, employee Hawkins, one of the committeemen named in the Union's telegram of July 12 to Respondent, gave Higgenbotham a few union authoriza- tion cards. After placing the cards in his lunch bag, Higgenbotham carried the bag and cards home with him at the end of his midnight shift that night. He signed and dated one of the cards the next day, July 15. When Higgenbotham got ready to go to work the next day, Wednesday, July 15, he placed the cards in his lunch bag and went to the plant for the 3:30 p.m. shift. As was his custom and that of other employees, Higgenbotham, as he entered the plant on his way to punch the timeclock, placed his lunch bag on a table that was near or around the corner from the timeclock. He punched in and went to work. During the course of the shift, according to Chavers, one of the men working with Chavers, otherwise not identified by the witness, was walking by and knocked a bag off a bench or table. Chavers states that he, Chavers, saw some union cards fall out of the bag and he saw Higgenbotham's signature on one of the cards. On the basis of the foregoing, Chavers spoke to Higgenbotham later that evening during the shift. Higgenbotham states that, as Higgenbotham was placing oil in the Bobcat, Chavers came over and asked him who gave him the union cards. When the employee remained silent, Chavers repeated the question. Higgenbotham said that a guy down by the furnace had given him the cards. Chavers asked, "was it a little chunky guy and was he a Foster." Higgenbotham said, yes. Chavers testified that he asked Higgenbotham where he got the union cards and, when Higgenbotham feigned ignorance, Chavers asked him if he had signed a card. Chavers states that he also asked, "did somebody in the ingot section give you a union card." Chavers denies mention of a short chunky guy or reference to "a Foster." The Trial Examiner believes that the following findings are fully warranted at this point. Chavers saw some union cards, including one signed by Higgenbotham, fall out of a 7 Schmitt, the works manager, is Hendry's immediate superior s For convenience we refer to Chavers, Jr , as Chavers 9 Respondent's position was that Chavers was not a supervisor and Chavers was one of its witnesses Chavers at one point in testifying about the pouring of metal stated that the pouring is usually completed by 5 p m , "when Raymond [Hendry I gets ready to go home " Later in his testimony, Chavers stated that Hendry stayed until 5 30 and sometimes 6 p in , but that Hendry and Schmitt would return at night three or four times a week and might stay I or 2 hours At the RC hearing, Waits, Respondent's executive vice president, called by Respondent on the matter of the status and duties of all disputed job status categories, including that of Chavers, testified that in the foundry there was a supervisor on the day shift only. He said that on the night shift there was only the leadman although "the superintendent, will occasionally pass by, you know " At the instant hearing, Chavers was asked who ran the night shift if no supervisor was present He replied "Nobody I am just a leadman " 10 A frontend loader used to move material and to clear the area DIBERT, BANCROFT & ROSS CO., LTD. lunch bag in the plant, when the owner of the bag was not immediately present. Chavers asked Higgenbotham who gave him the cards and whether he had signed a card. There is no evidence that the cards were passed during working time. Chavers had no knowledge that the cards had been passed or signed during working time and, in fact, he asked no questions directed to this aspect.' i His primary interest, as soon as he became aware of the cards, evidently, was to find out the source of the cards. He had already ascertained that Higgenbotham had signed a card. After the foregoing conversation between Chavers and Higgenbotham, the latter, at quitting time, punched out and picked up his lunch bag (which contained the union cards) on the way out. Both Higgenbotham and Chavers agree that the latter was in the vicinity of the timeclock and the lunch bag and saw Higgenbotham pick up his lunch bag and go out. Chavers testified credibly that he, customarily, was the last man to leave the plant at night and would see to it that the foundry fires and such matters were in proper stance. It would also be our opinion that Chavers would normally seek to insure that all the men on the night shift were out of the plant by the time he left. And of course he knew what was in the lunch bag since it had come to his interested attention earlier that evening. Higgenbotham evidently walked through the plant parking lot to his car that was parked on the public street on which the parking lot immediately abutted. Higgenbotham then remembered that he was to give the cards to Hawkins, his fellow employee on the night shift. Higgenbotham was standing under a street light and stood behind his own car which was not far from the guard shack at the parking lot driveway. He motioned or waved to Hawkins to come over Either at or about that time or when Hawkins left his own car in the parking lot and came over to Higgenbotham, the latter saw Chavers in, or get in, his, Chavers' car, look at Higgenbotham, and drive to the parking lot exit.12 As Chavers came to the road which ran past the lot, and before he entered the road and turned to the right thereon, he looked in both directions, left and right. To the left, parked on the road, was Higgenbotham's car, with Higgenbotham and Hawkins standing right behind it under the street light. Chavers admittedly saw Higgenbotham hand the lunch bag or the cards to Hawkins. Chavers turned right on the road and drove off. The General Counsel alleges illegal surveillance by Respondent on a public road. The Trial Examiner is of the opinion that in the above incident the surveillance theory is too finely spun to warrant a conclusion of illegal surveillance Assuming, arguendo, that Chavers is a supervisor or agent of Respondent, his presence on, and emergence from, the plant parking lot at the time and under the circumstances described was normal and unexceptional. As far as appears, the incident occurred when no one but Chavers, Higgen- botham, and Hawkins was on or in the vicinity of the parking lot. Chavers was the last to leave the plant. All three men were legitimately where they were. It would have 11 Respondent had a rule forbidding solicitation on working time i2 Higgenbotham describes Chavers' car as having been parked in the lot but only one or two car lengths from Higgenbotham's car on the street 11 If the evidence was that Higgenbotham and Hawkins were sitting in a car and Chavers came over to peer in, or drove up beside the other car to peer in, or if the two men were standing and Chavers parked near them 555 been difficult for them not to have seen each other. And they did see each other. Chavers was under no obligation to close his eyes or to drive straightway into the road from the lot without looking. Higgenbotham and Hawkins had elected to stand under a street light, immediately proximate to and directly in front of the lot where Chavers' car was parked and proximate and to the left of the exit from the lot. Admittedly Chavers saw what passed between the two men and he was probably interested to see the transaction. But, in our opinion, it was a tableau presented before his eyes and almost commanding his attention, absent inability to see persons and objects.13 We find no illegal surveillance as alleged. According to Chavers, the next day, July 16, when he came to work, he reported the events of the night before to Hendry. He told Hendry that he, Chavers, "had seen some union cards [and one?] with Truman's [Truman Higgenbotham] name on it and I had seen Truman have it in his bag and gave it to Dan [Hawkins ]." Hendry then told Chavers that he, Hendry, wanted to talk to Higgenbotham when the latter reported for work.14 Accordingly, Chavers told Higgenbotham to come to the office, stating, according to Chavers, that "I wanted to talk to him." Present in the office with Higgenbotham were Schmitt, Hendry, and Chavers. When the employee had thus appeared before the panel of three, Chavers states that he then asked Higgenbotham "Where he got the union cards." The reply was that Dan Hawkins gave the cards to him. Hendry and Chavers testified that Chavers also asked Higgenbotham why he had signed a card and the employee said that he did not know or did not know what he was doing. Chavers asked the employee if he was "satisfied with his job" and if Chavers had not given him "a better break than anyone else." 15 Hendry states that he, Hendry, then "at this point" told Higgenbotham "that the Company did not want a union" and that he could not work for the Union on company time. Higgenbotham denies that anything was said about working time or about a company rule against solicitation on such time but that Hendry mentioned how some union men had been on strike for 6 or 8 months and that the Union did not guarantee a man anything. The session ended when Higgenbotham was told to go to work and to tell Hawkins to report to the office. Upon receiving this intelligence from Higgenbotham, Hawkins reported to the office shortly after Higgenbotham had left that locus. He too was confronted by the tribunal of Chavers, Hendry, and Schmitt. Chavers once again initiated the proceeding and said that he had heard that Hawkins was for the Union and that he had given some cards to another employee. Hawkins said that he did not deny the accusation and that there was a telegram from the Union to the Company in which he was named as one of the union committeemen. Chavers said that he saw Hawkins passing cards. Hawkins replied that "you saw me receiving the cards" and that it was outside and remained for a clearly perceptible period, a different conclusion might be warranted 14 Hendry confirms this and also mentions that Chavers had told him that he had spoken to Higgenbotham later the preceding night "concerning him [Higgenbotham ] signing the cards " i5 The reference was to work assignment by Chavers 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the plant on the public road in front of the plant. Chavers acknowledged this to be the fact 16 but said, "well, we got a sign outside [on the guard shack] for [regarding] soliciting." Hendry told Hawkins that the Company had been good to Hawkins by giving him a job and a paycheck every week and asked Hawkins "why don't you quit, if you just don't like the way the Company is run." 17 Hawkins said, "Hell, no." Then there was a period of silence in the office, punctuated only by Hendry's tapping of his pencil on the desk.18 According to Hendry, Schmitt asked Hawkins "why he did not cease his union activities." It is the Trial Examiner's opinion that, with respect to the interrogation of Higgenbotham and Hawkins by Chavers, Hendry, and Schmitt on the afternoon of July 16, it is unnecessary to find whether or not Chavers was a supervisor within the meaning of the Act. The issue is whether what occurred on the aforementioned occasions constituted interference, restraint, and coercion in violation of Section 8(a)(1) of the Act by Respondent. We believe that the answer is yes, and we so find. Respondent's information and the crux of its concern in interrogating the two employees was clearly revealed as the fact that Higgenbotham had signed a union card and had union cards in his lunch bag. Respondent, because, as it stated, the Company did not want a union, sought out and discovered the source of the Higgenbotham cards. This is what Chavers' interrogation of Higgenbotham on July 15 was all about. Indeed, aside from awareness of cards and Higgenbotham's signature on one of them, and the single overt action of the passing of the cards on a public road outside the plant, there was no other foundation for the convening of an impressive management tribunal on the following day. The focus and thrust of the interrogatory proceedings was interference with, and discouragement of, the right of employees to sign union cards and to affiliate with a union. Any mention of a plant antisolicitation rule was peripheral and secondary. Chavers' affirmatively executed role as interrogator, sua sponte, on the night of July 15, when unquestionably, in our opinion, he was the sole person in charge of the night shift and its personnel, identifies him with management. Chavers spoke to Higgenbotham as the "boss" of the night shift demanding answers from a subordinate. No rank-and-file employee would have assumed such a role and neither Higgenbotham nor any other employee would have felt obliged to respond to such authoriative interrogation by a fellow rank-and-file employee. Additionally, however, pursuant to his identification as a management agent and not as some officious employee, Chavers duly reported the Higgenbotham and Hawkins incident to Superintendent Hendry the first thing on the following day. Full and plenary adoption and ratification of the previous night's interrogation by Chavers was promptly forthcoming from Hendry. Indeed, the adoption and ratification was so complete that a program for 16 The incident of the night before has been described above it Chavers testified that among the statements made to Hawkins by Hendry, was, "didn't you know the Company didn't want a union " ie When asked about this particular aspect, Chavers stated that Hendry "was writing something down-1 don't remember if he tapped it " 19 Warren is not alleged to have been discriminatorily discharged 20 Respondent asserts that since Lofton voted in Board elections at the continuation of Chavers' interrogation was arranged forthwith albeit with a more impressive and inquisitorial setting. Higgenbotham and Hawkins were individually brought to the locus of all foundry authority, the superintendent's office, and were confronted by a tribunal of the works manager, the superintendent, and Chavers. The latter, in our view, was present as a management agent and not in the role of an employee who had simply witnessed some serious injury to plant personnel, property, or discipline. The evidence reveals Chavers as occupying and fully discharging the role of management interrogator and protagonist, with the full approbation, support, and assistance of the works manager and the superintendent. Beginning with Chavers' interrogation of Higgenbotham on the evening of July 15 and continuing with the interroga- tion of Higgenbotham and Hawkins in the superintendent's office by Chavers, Hendry, and Schmitt, we find a course of interference, restraint, and coercion in violation of Section 8(a)(1) of the Act. The complaint allegations include interrogation of an employee about his union sympathies by Supervisor Troy Lofton. Laray Warren testified that he was discharged the night after he was asked about his union sentiments by Troy Lofton. Since Warren's discharge slip is dated August 27, 1970, the conversation apparently took place on August 26. According to Warren, Lofton asked him, what do you think about this Union. Warren replied that he thought it would be a good idea for the Union to come in. Lofton asked what reasons Warren had for this conclusion. Warren said, "the way things is now, I don't know who is my foreman; anyone who walks through with a white helmet, tell me what to do [and] if I don't they would fire me, you don't have any special jobs. He [Lofton] looked at me and shook his head and walked off." The following night on the job, Lofton asked Warren and some other employees about mixing some sand. Warren said the sand had been mixed. Lofton said, if you do not mix the sand, you know where the timeclock is. At quitting time, Lofton took Warren and three other fellow employees to the personnel office with their timecards. Warren's termination slip states: "Terminated. Insubordination. Would not do as foreman told him." 19 In the Trial Examiner's opinion, the above incident, the night before Warren's discharge, in which Lofton asked him what he thought about the Union and why, was not a violation of Section 8(a)(1) of the Act. In context, including Warren's candid reply, we do not regard Lofton's inquiry as coercive interrogation. The fact that Lofton shook his head at the reply may have indicated Lofton's incomprehension that any employee would not know who his foreman was or that an employee would favor a union for such a reason; or perhaps Lofton was simply indicating his own lack of agreement with Warren regarding a union.20 the plant his remarks to an employee could not be regarded as coercive in any event However, the Board decision of October 1970 in the RC case held that the melters were supervisors and Lofton was a melter Respondent at the instant hearing admitted the allegation in the complaint that Lofton was a supervisor. At the time Lofton voted he was the melter's first helper according to Wilson, an employee and personal friend of Lofton The termination slip that Warren received refers to Lofton as a DIBERT, BANCROFT & ROSS CO, LTD. 557 The Discharge of Spencer Foster Foster was employed by Respondent from February 1968 to Tuesday, July 14, 1970, when he was discharged. Respondent contends that Foster was a leadman and therefore a supervisor at the time of his discharge. Foster testified in the instant hearing that shortly after the advent of the new rolling mill manager, Dautsch, in March 1970, Terrell, a supervisor and metallurgist, changed Foster'sjob In the foundry from that of leadman to ladleman and that he was a ladleman at the time of his discharge. As is apparent, the question of whether certain persons were or were not supervisors has arisen in the instant case, e.g., Chavers, supra, and now Foster. Not only do we have a plenitude of testimony in the instant case itself on such issues but we also have before us, as part of the record, the testimony and Board decision in the RC case that dealt with the question of who was or was not a supervisor. The RC matters antedated the instant case since that hearing and decision were in September and October 1970, respectively. Insofar as it concerns us, the parties at all proceedings are agreed, and the RC case decision finds, that the following are supervisors: Wailes, executive vice president; Schmitt, works manager; Hendry, foundry superintendent; Dautsch, rolling mill manager. Although not involved in the instant case, it also appears that our foregoing comment is applicable to such supervisors as the core room foreman; the machine shop manager; machine shop superintendent; cleaning room foreman and so forth. The basic issue in the RC case was the composition of the appropriate unit. Simply stated, the unit was a production and maintenance employee unit, excluding supervisors. The employer took the position that its leadmen had no supervisory authority and should be included in the unit. The Unions would exclude as supervisors four leadmen: Saucier-machine shop; Chavers, Jr., and Wallace-foundry; Williams-rolling mill. The Board decision found that the four leadmen aforementioned were not supervisors and should be included in the unit. The Employer had other leadmen but, other than these four, their inclusion in the unit had not been disputed. Another category that was disputed in the RC proceeding was that of three melters. The Board decision stated: Intervenor [Iron Workers], contrary to Employer, takes the position that Employer's three melters, Alex Rodriguez, Hugh Rymes and Troy Loften, are supervi- sors within the meaning of the Act. Petitioner takes no position on the supervisory status of any of these three individuals. It was held in the decision that the melters were supervisors and therefore they were excluded from the unit. At the instant hearing, Respondent has taken the position foreman and stated that the discharge was for failure to obey the foreman It also is fairly clear that it was Lofton who terminated Warren and others 21 As to Chavers , a leadman, Respondent contends in the instant hearing, that he is not a supervisor 22 Foster was called as a witness at that hearing by the Intervenor, Iron Workers His testimony was directed to the jobs and authority of the three melters, abovementioned . In the course of his testimony he described his own functions and it is on this aspect that Respondent now relies for its contention that Foster was a leadman and a supervisor As we have that Spencer Foster, an alleged discriminatee, was a leadman and a supervisor.21 In addition to evidence adduced at the instant hearing, Respondent's position is based on testimony given by Foster at the RC hearing.22 The first issue before us regarding Foster is whether he was a ladleman at the time of his discharge, as he contends, or whether he was still a leadman with the additional limited duties of a ladleman as Dautsch and Terrell testified.23 At the RC hearing, Foster testified that his Job was that of leadman. He makes no mention of, and does not describe, his job as that of ladleman. Dautsch testified in the instant case that, when he came with the Company in March 1970, the leadman was pouring the steel and the ladleman was setting the rod on which the steel was poured. Dautsch states that "in the Industry, the man that pours the steel always sets his own rod." The witness testified that if the rod is not set properly, it is dangerous, particularly to the pourer and thus the practice for the pourer to set his own rod. Also, it was believed that the work of a ladleman alone was not a full-time task for an employee. Accordingly, in April, Dautsch instructed Terrell to have the leadmen also perform the work of a ladleman, i.e., setting the rods for the steel that the leadman was pouring. Terrell corroborates this. There was no other change in the position of the leadman. Foster, at the RC hearing, in describing his physical task as leadman, testified that, after the steel was melted, it would be poured into large pots or ladles; the crane would carry the ladle to Foster and he poured the steel; after he poured, the men working with him would pull the steel out of the mold and stack it. In testifying at the instant hearing regarding his job of ladleman, Foster stated that he would check the ladle and set the rod and the steel is poured; then he checks on the condition of the task "and I tell the crane driver to pick it up . . . and I go follow the ladle . . . and after he poured the steel in it, it was my Job to pour the steel into the mold." The Trial Examiner believes that, at the time of his discharge, Foster was a leadman who, as part of his job, also performed what had previously been the work of a ladleman, i.e., setting the rod. It may be that the added task left him less time on some of the things that were done after the steel was in the mold but, in our opinion, he was still basically a leadman. Insofar as concerns us, there are two sets of leadmen in the foundry. First, there is a mold making operation that works two shifts, one days and one night. Schmitt is the highest supervisor over this grouping, and under Schmitt is Superintendent Hendry. Hendry is a supervisor who has Wallace as a leadman on the day shift and Chavers as leadman on the night shift. On the day shift there are over 70 employees and on the night shift 15 to 19. Schmitt, mentioned, at the RC hearing no party had contended that all leadmen were supervisors although the Unions had contended contrary to the Employer that four named leadmen were supervisors The Employer asserted that no leadmen were supervisors. Foster, at the time he testified in September 1970, at the RC hearing, was a discharged employee as of July 1970, on whose behalf a charge had been filed in August. 23 Terrell is a metallurgist and a professional employee He is also a supervisor immediately under Dautsch, the rolling mill manager 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hendry, and Wallace are present throughout the day shift from 7 a in. to 3 p.m. While Hendry or Schmitt may on occasion return to the plant at night for limited periods after working from 7 a.m. to 5 or 5.30 p.m., it is our opinion that Chavers, the night leadman and the only molder on the 3:30 to 12 shift, is basically the only person of authority who is predominantly present and in charge at night. As previously mentioned, we have found it unnecessary to make a finding whether Chavers is a supervisor, since, in the episode described earlier, he was, in our opinion, clearly a management agent. This does not mean that he would not have found that Leadman Chavers was a supervisor if resolution of that issue was essential to our decision.24 Nor does it mean that we would have reached the same conclusion regarding Wallace as in the case of Chavers. In short, there are leadmen and leadmen and a decision regarding one is not necessarily controlling as to others. No leadman, for instance, has exercised and demonstrated the management identification displayed by Chavers in the Higgenbotham, Hawkins, Hendry, and Schmitt incident, above described. The other set of foundry leadmen works in the melt shop and ingot section. This operation works three shifts on a swing shift basis. Supervisors consists of Manager Dautsch, with the next immediate supervisor being Terrell, the metallurgist. Under Dautsch and Terrell there are three shifts and on each of these shifts there is a melter. The three melters are Rodriguez, Rhymes, and Lofton, all of whom were found to be supervisors in the Board RC decision of October 1970. On each shift, there is also a leadman who is subordinate to the melter on the shift. The three leadmen were Foster, Henderson, and Gordon There is no dispute in the instant record that the melter has superior authority over the leadman and other employees and that the melter has overall responsibility on his shift and in turn is responsible to Terrell. In the Trial Examiner's opinion, there are substantial differences between the status of a leadman like Chavers and a leadman like Foster. Chavers works on a nonswing night shift with 15 to 19 men Normally and predominantly he is the only person in authority throughout that shift. He is paid $4 24 per hour and is the highest paid man on the shift. If Chavers directs a man to work overtime on his shift, Chavers initials the timecard and this will enable the man to be paid for the overtime. The other group of leadmen, e g., Foster, works on a swing shift and Foster was paid $2.70 per hour on days and $2.75 on nights. There is a supervisor known as a melter on any shift on which Foster works as leadman and with the exception of such times as Foster might be on the night shift, there are also present two more higher supervisors, Dautsch and Terrell. The melter is the supervisor immediately in charge of the shift and, while a leadman like Foster has five to seven men working with him and subject to his direction, the melter is the supervisor on the shift.25 An illustration of the situation is to be found in the event where one of Foster's men might have forgotten 24 Southern Airways Company, 124 NLRB 749, Leonard Niederriter Company, Inc, 130NLRB 113, 115 25 There is also a man with the title of melter's first helper and this is a position of importance but not described in detail in the record Lofton, for instance, was first helper before being made a melter 28 He testified that the other employees "were in the plant" at the time to punch his timecard. At the RC hearing Foster was asked what he would do if the man came to him and told him that he had forgotten to punch his card. Foster replied that it was a common occurrence and, to enable the employee to be credited for his time and to be paid, Foster said, "We would go get the fellow's timecard and bring it to the melter and he would mark [initial ] the card " It is the Trial Examiner's experience that in industry the terms leadman, gang pusher, or group leader are used to describe employees who do direct and "supervise," in the sense of overseeing, the work of others. The word "supervise" means to oversee. And, obviously, subordinates are expected to follow and not to defy the directions of a leadman or group leader. But supervision in the semantic sense does not thereby equate with being a supervisor as defined in the Act. It is the Trial Examiner's opinion that Foster was not a supervisor as defined in the Act. We come now to the events that occurred immediately prior to Foster's discharge. There is considerable conflict in the testimony of Foster, on the one hand, and Terrell, Dautsch, Rhymes, and Kent on the other. Although the events involve a meeting of a half dozen or more employees with Terrell and Dautsch, all Respondent's witnesses deny that Foster participated and no employee or other witness of the General Counsel was called to corroborate Foster's assertion that he was present and participated. We have considered the evidence and have concluded that the following is what occurred. A group of employees, including Foster, had discussed among themselves on July 10 some grievances or requests that they planned to take up with Terrell. On Monday, July 13, Foster, alone, went to Terrell's office.26 Foster said to Terrell that he and some of the other men would like to talk to Terrell. Terrell said that he did not want to talk to a committee and he left his office. He repeated his refusal as Foster spoke to him outside the office.27 Shortly after this, a group of employees went to Terrell's office. Terrell was not present. Talk went back and forth between individuals about going out in the plant, finding Terrell, and demanding that he hear their complaints. Foster, in substance, counseled against rash action. As the matter progressed, according to Foster, "the men became angry" and were going to find Terrell. Then "when they all went out of the office, this thing got out of hand now," according to Foster. Contrary to Foster, we believe that Foster, although in basic sympathy with the group, withdrew from further association with the group around this point. He went out in the plant in the vicinity of his work area and, in our opinion, did not thereafter participate in the subsequent meetings between the group and Terrell or between the group and Dautsch. In fact, when the group was outside the office waiting for Terrell shortly thereafter, Foster, who was but that he went to the office 27 Terrell makes no reference to any initial conversations such as are described by Foster and neither affirms or denies this part of Foster's testimony Terrell refers only to two meetings with a group of employees, one in May and one in July He states that Foster was present at neither meeting DIBERT, BANCROFT & ROSS CO., LTD 559 not then physically with the group, told Rhymes, the melter, that he had nothing to do with the affair.211 After a brief period, a group composed of P. McGee, A. McGee, Beekman , Davis, and some others, all employees, told Terrell in his office that they wanted a raise He told them, in substance, that he could not give them a raise and directed them to return to work. Although denied by Terrell, we believe that the men may have also raised the matter of better jobs for black employees. In any event, at or about the time the session with Terrell was ending, Dautsch came into the office for the first time in the series of events. Dautsch states that he told the employees to go back to work or to punch out and leave. Dautsch states that Foster was not among those present 29 That afternoon, July 13, at 3 p.m., at the end of his shift, Foster signed a union card in the parking lot Present at the time were Ford, Hawkins, and a man called Chuck Wagon. Ford and Hawkins were employee union committeemen named as such in the Union's telegram of July 12 (Sunday) to Respondent. As far as appears the signing of the card was Foster's first identification with the Union. After signing his own card, Foster secured some cards from Ford and Hawkins and distributed them to employees in the parking lot shortly after 3 p m and, at 3.30 p m., Foster was in the parking lot about 50 feet from the guard shack. There is no direct or indirect evidence that he was observed by any supervisor The openness of the activity, however, may warrant an inference that he could have been or was observed, particularly in view of what we have earlier seen of Respondent's alertness with respect to Higgenbotham's single signed union card. The following day, Tuesday, July 14, Foster reported on his 7 a.m shift but he was 6 minutes late Terrell saw him when he punched in Foster told him that he had a flat tire on his way to work and Terrell told him, all right, go to work. The next event is that Terrell went to Dautsch and told him that Foster had been late in punching in. Dautsch told Terrell to bring Foster to the office as soon as he finished pouring the steel. Terrell did so around 10 a.m According to Foster, Dautsch told him that he would have to discharge him for missing too many days; Foster denied missing too many days but said that if you want to let me go, I am ready to go, Foster said that he had left his jacket in the plant and would like to get it; Dautsch told Terrell to go with Foster for the jacket and escort him to the gate, after being escorted to the gate, Foster went to the personnel office to inform Kent, the personnel man, that he had been discharged Dautsch went to work for Respondent in March 1970 and 2$ The following day I oster said substantially the same thing to Kent, the personnel man 29 In describing the meetings with Terrell and Dautsch in which he states that he was a participant, contrary to what we believe is the fact, we note Foster's use of the word "they " Thus, he testified, "they asked for a black crane driver, they asked for sonic black in the furnace We asked for more money or rather"I they asked for more money ' , "Q Do you recall anything being said about money" A Well, we asked for more money Oh, yes, they asked for more money and Mr Bill [Dautsch I told them, say he wasn't going to give them no more money He said if they didn't like it the way it was, they could quit" Although not disposmve, the use of "they" appears to be indicative of Foster's role as a spectator or nonparticipant who knew or learned what the nature of the groups' demands had been S0 It was our impression that Terrell as an individual was primarily a was terminated in December 1970. He was not employed at the time of the hearing. Dautsch testified that, when he came to work for Respondent, the rolling mill (the Ross Steel part of Respondent) had an inefficient operation and that he was hired to improve the operation. It was Dautsch's experience with other companies that a general factor in inefficient operations was poor attendance by employees. Dautsch and Terrell testified and the record shows that Dautsch instituted, shortly after his advent, a system of posting weekly "Absenteeism Reports" on the employee bulletin board in his part of the mill. These reports showed the name of employees absent or tardy for the week, e.g., Lee "absent one day" or Butler "tardy one day." On his own copies of the posted weekly reports, which, in our opinion, are authentic and not challenged as such by the General Counsel, Dautsch had written comments next to various names appearing on the reports. These comments, inter aka, are indicative of the fact that Dautsch took the matter of absence and tardiness seriously and that he, personally, was concerned with the attendance situation. Dautsch reviewed with Terrell each week the list of tardy and absent employees and the record of the employees regarding tardiness and absence. Dautsch would instruct Terrell to talk to and warn employees with developing bad records. The push was coming from Dautsch to Terrell to convey pressure to employees about attendance.30 Typical comments appended by Dautsch on his copies of the attendance reports as to various named employees were. "verbal warning"; "told unacceptable"; "bad"; "very poor"; "getting bad"; on report for week of June 22-26, appears, for instance, "Last warning," as to two men, absent I day; and as to Foster, tardy I day, "Last warning"; also, another name, tardy I day, Fired"; 31 on the June 15-19 report appear, next to individual employee names, such comments as "Terrible"; "Bad"; "Getting Bad"; "Tardy a lot."32 Regarding Foster's record, the General Counsel in his brief acknowledges what he describes as "Foster's horren- dous tardiness record." He states that Foster was late on 40 occasions between January and July 14, 1970, including 28 times after Dautsch's system was started and that absences and tardiness amounted to 43, including 31 after Dautsch began his system The General Counsel argues therefore that Foster's attendance habits were condoned by Respon- dent until he became active in the Union. The record contains the absenteeism reports that were posted beginning with that of the week March 2 through 6, 1970. Foster's name first appears on the March 16 to 20 report, as absent 2 days; he next appears on the following professional , a metallurgist , and although he was also the next highest supervisor under Dautsch, he was not basically a line production driver type As far as we know, he discharged his supervisory duties adequately but on this matter of attendance discipline the thrust was coming primarily from Dautsch 11 One of the names on the report is T Lofton, absent I day, "Last warning" Lofton was one of the three melters who next to Terrell and Dautsch were the highest supervisors in the section Lofton was no longer employed by Respondent at the time of the instant hearing 92 Adjectives such as "bad," "last warning," and so forth, while they appear on a particular weekly report next to a named employee who was tardy or absent once that week , are a reflection of the employee's record to date In other words, Dautsch did not write "bad" or "last warning" if a man was late I day and had no prior lateness or absence record 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reports; March 30 to April 2, tardy I day, April 20 to 24, tardy I day; April 27 to May 1, tardy I day, absent I day. Dautsch's first written note regarding Foster, on Dautsch's copy of the reports, appears on the April 27-May 1, report, to wit, "2 wks," which apparently means that for 2 consecutive weeks Foster's name was on the report, 33 May 11 to 15, tardy 3 days, with Dautsch's comment "Getting Bad": May 25 to 29, tardy I day, "Bad!"; June I to 5, tardy 1 day, "Bad"; June 8 to 12, tardy I day, "Bad""; June 15 to 19, tardy I day, absent I day, "Terrible", 34 June 22 to 26, tardy I day, "Last Warning."35 Foster's name does not appear on the June 29 to July 3 and July 6 to 10, reports, which were the last two before the week of July 13 in which he was discharged.36 Foster was asked by the General Counsel: Q. Now, have you ever been warned, by warned, I mean, have you ever been told that if you miss a day, if you are late a day, you will be discharged? A No, I have never been told that, no. Foster stated that once, in February 1970, Terrell told him, "you know we are working shorthanded, you have got to get here" but that in that February period Terrell displayed sympathy with Foster's problem relating to the operating condition of Foster's car. Other than this, Foster denies being talked to or warned about his attendance since February. In view of what has been said, above, about Dautsch's instituting the weekly attendance reports, his personal concern with, and attention to, the subject, including orders to Terrell, the reports themselves with their notations, and Foster's "horrendous" record (to use the General Counsel's adjective), we find Foster's testimony unconvincing Dautsch testified credibly that Foster "had one of the worst tardiness records, I would say it is the worst of the Company, and he had been talked with, practically pleaded with. He was given a final warning." Dautsch testified with respect to the individual weekly reports that we have previously described. When he wrote a comment on a report he spoke to Terrell about it and told the latter what to tell the employee. Specific instances were given with respect to the various times that Foster appeared on the reports, e.g., Dautsch told Terrell to tell Foster how important his job was and give him a stiff warning; another, speak to Foster again and see if he cannot improve, finally a "last warning" regarding the report of June 22 to 26, tell Foster we just cannot go along anymore and give him a 33 Those others on the report, who have the same notation, also were, like Foster, on the preceding week's report 34 On this report, Dautsch also made the following tabulation with an arrow to Foster's name A [absent]-Ill, T [tardy]-11111 [sic] III II [sic ] I 35 On this report two other employees, tardy I day, have the notation "Fired " Three employees, including Foster, have the "Last Warning" notation 36 Resp Exh 10 is a compilation of Foster's record made by personnel man Kent Resp Exhs 11-I Is and 3, 4, 5, are Foster's timecards that Kent stated were used in making Exh 10 Exh 10 indicates Foster as late on July 9 and 14 There are two July timecards in Exh 1 I to I Is, July 14 and July 7 We believe that, in error, Kent showed a lateness for Foster on July 9 instead of July 7 We also believe that the reason Foster's name does not appear on the July 6 to 10 weekly report was because his July 7 timecard shows that he punched in at 7 01 instead of 7 One minute might well be attributed to waiting briefly at 6 59 or 7 behind another employee and then punching the clock and having it register 7 01 Indeed a timecard might be final warning that, if he is absent or tardy again without an acceptable excuse, he will be terminated. Terrell states that pursuant to Dautsch's directions he spoke to Foster in April, May, and June, e.g., your tardiness record has not improved and we cannot run this place with such attendance; you will have to improve or we will have to take some action, finally, toward the end of June, you cannot be treated differently than other employees and if you are absent or tardy again we are going to have to terminate you. It is also relevant and material to state that the record is clear, and Dautsch and Foster testified, that Foster was the only man on his shift qualified to pour the steel, a vital and critical part of the operation. There was a man on each of the three shifts who could pour the steel, one of whom was Foster. When Foster was not present at the start of his shift, the Respondent was obliged to have the leadman, the pourer of steel, from the preceding shift, stay over at overtime rate and not infrequently depending on the unknown factor of Foster's amount of tardiness, have the leadman from the succeeding shift come in early to work more than his usual shift This is unquestionably why Dautsch and Terrell endeavored to impress on Foster the importance of his being on time and resorted eventually to a final warning around the end of June as the only solution. This was, of course, all before any union activity on Foster's part or, as far as appears, on any other person's part. Considering the testimony of Foster, Dautsch, Terrell, and Kent as to the Foster discharge circumstances, we find that Dautsch told Foster that he was being discharged for excessive tardiness and absence. Dautsch may have used the general term "absenteeism" since Respondent placed both absence and tardiness in the category of absenteeism, e.g., the weekly "Absenteeism Report" listed both tardiness and absence, and tardiness, in our opinion, can be regarded as a form of absenteeism, partial absence. In any event, we believe that Terrell then went with Foster while the latter went back for his jacket and then saw him to the foundry entrance where Foster punched out and went to the personnel office for his check. Terrell was with Foster and at the personnel office Terrell informed Kent that Foster was terminated for excessive tardiness and absence. This was written on the termination slip by Kent.37 Regarding Foster's tardiness on July 14, it is pertinent to mention that Respondent's rule about absence or attend- placed in the clock or about to be so placed at 15 seconds past 7 and by the time the operation was completed the time stamped might be 7 01 In any event, Foster was not posted as tardy for the week of July 6 to 10 This appears to have been a normal and reasonable position for Respondent to have taken and forebearance to act on a 1-minute tardiness is not indicative of a permissive attitude toward, or condonation of, definitive tardiness, even when the employee has a poor record 17 Although there is evidence that some other discharged employees had not been accompanied by Terrell on their exit march, we regard this aspect as of no major significance When Foster was discharged by Dautsch, he said, inter alia, "I am ready to go but I left my jacket out in the plant let me go get my jacket" This tends to indicate that normally, after discharge, Foster would have gone out of the plant, punched out at the entrance, and gone to the personnel office for his check But instead of leaving immediately, he asked if he could go back or out into the plant for his jacket This was agreeable to Dautsch but he told Terrell who was standing there to go with Foster DIBERT, BANCROFT & ROSS CO., LTD 561 ance did contemplate that in certain instances there might be an acceptable excuse for an absence or tardiness. What was an acceptable excuse was a matter of Respondent's judgment and that judgment was made principally and initially by Terrell who prepared the weekly reports for Dautsch and for posting. The General Counsel argues that, on July 14 when Foster punched in late in Terrell's presence and Foster told him that he had had a flat tire, his excuse was accepted because Terrell told him to go to work. We do not agree. The fact that Terrell went to Dautsch and reported Foster's lateness to Dautsch that morning indicates, in our opinion, that the excuse was not acceptable. It is reasonable to believe that Terrell had told Foster to go to work because he was needed for the essential task of pouring the steel. This is confirmed by the fact that, even after Terrell reported to Dautsch, the latter told Terrell to bring Foster to the office only after Foster had finished pouring and this apparently did not occur until about 10 a.m.38 In our view it is fairly clear that neither Terrell nor Dautsch regarded a flat tire as an acceptable excuse from a man with Foster's record. It is fairly clear that in almost all instances employees will have or will offer an excuse for absence or tardiness . If public transportation is used, an employee may be tardy because the bus was late or because he missed his bus, if private car is used, there may be a dead battery, radiator overheated, flat tire and so forth. The employer may find some of these excuses acceptable once or twice from a man with an otherwise good record but from a chronic tardy or absentee employee, in our opinion, only some unusual event will usually be accepted as providing an acceptable excuse, e.g, the man's wife had twins an hour before he was to leave for work. We cannot regard Respondent's failure to excuse Foster's lateness on July 14 as a cause for suspicion.-19 Dautsch testified that he was unaware of any union activity at the time he discharged Foster and that he first learned of such activity late in the week, after July 14, when the Union's telegram of July 12 to Respondent was brought to his attention The question in our mind is why Respondent, which evidently received the telegram on July 13, did not bring or had not brought such a matter to the attention of one of its key line-management people, Dautsch, until after July 14. But in any event, consistent with our findings regarding the events and meetings on July 13, we believe that Terrell, and Dautsch through Terrell, was aware that Foster did have some initial connection with 3s Although there is no testimony on the point, it appears unlikely that Terrell did not mention to Dautsch the reason given by Foster for his tardiness or that Dautsch did not ask Dautsch did testify that he recalled that Foster told him something about a transportation problem •'y The weekly reports were dated according to a calendar week, Monday to Friday, e g, June 22-26 The timecards covered a pay period, which ended on Tuesdays, to wit, the payroll period was Wednesday to Tuesday, inclusive, and the pay period of Foster, ending Tuesday, June 30, showed that he worked June 24, 25, 26, 27, 29, and 30 He was I hour and 5 minutes late on the 25th and 18 minutes late on the 27th, a Saturday The weekly reports were prepared by Terrell on the Monday following the preceding week and discussed with Dautsch at that time The June 22-26 report was therefore prepared on June 29 and both Terrell and Dautsch would consequently have been aware at the time that Foster had been late on June 25 and 27 Dautsch's notation of "Last Warning" next to Foster's name on Dautsch 's copy of the report evidently arose out of the June 25 and 27 tardiness as well as prior incidents The weekly reports for the the activity of the group of employees who met with Terrell and Dautsch on July 13, although Foster was not present at the meetings themselves 40 With respect to Foster's distribution of union cards on July 13 at the change of shifts at 3 and 3:30 p.m., in the parking lot in front of plant, we believe it reasonable to infer that all or some of this activity was observed by one or more of Respondent's representatives. We note that the day after Foster's discharge Respondent was alert to detect that Higgenbotham had a signed union card in his lunch bag that accidently was knocked over while Higgenbotham was not present. Chavers testified that he asked Higgenbotham whether "a guy in the Ingot Section" had given him the cards. At the RC hearing, when Foster was asked where he worked, he said, "In the Ingot Department." He gave precisely the same answer in the instant heanng.41 We believe that Chavers in asking Higgenbotham whether "a guy in the ingot section" had given him the cards, was referring to Spencer Foster.42 Although this occurred a day after Foster's discharge, Foster engaged in no union or concerted activity after 3:30 p.m., on July 13, when he distributed union cards in the parking lot in front of the plant, the day before his discharge. It is our opinion, therefore, that Chavers' remarks to Higgenbotham, about Foster being the source of the cards, related to Chavers' and Respondent's awareness on July 13 and 14 of Foster's distribution of cards on July 13. Notwithstanding the fact that the Trial Examiner is of the opinion that Respondent was aware of Foster's association with the concerted activities of July 13 and was aware of his union card distribution later that afternoon, we do not believe that the burden of proof has been sustained with respect to the allegation that Foster was discriminatorily discharged. In one sense, the timing of the discharge appears suspicious since it occurred the day after Foster's aforementioned activities. But the timing is also explained by the fact that on July 14 Foster came in late, an event not caused by Respondent. In view of Foster's attendance record and Respondent's real and legitimate concern therewith and prior warning to Foster, we are unable to discern a cogent reason why the suspicion of illegal motivation should prevail over the existence and assertion of a valid and legitimate motive for the discharge. The General Counsel has the burden of proof. Respondent may have welcomed the fact that it was presented with a legitimate reason for the termination but, in our opinion, this is not to be equated with a pretext in view of Foster's calendar weeks of June 29-July 3 and July 6-10, which covered the period between the "Last Warning" to Foster, at the end of June, and July 14, do not list Foster This is apparently because Foster's only dereliction dunng the period was that he was 1 minute late on July 7 We have previously discussed this 1-minute lateness as probably excused by Respondent as inconsequential 40 The group activity on July 13 was concerted activity. There is no indication that it was union activity or that the Union was connected with it Foster, for instance, first engaged in union activity later in the day when he signed a union card and distributed cards 41 The ingot section or department was part of the foundry When asked if there was another Foster in the foundry, Foster said, no. Hendry testified that there was a Roosevelt Foster in the foundry who had been a union observer in a prior election. Hendry did not say that Roosevelt Foster worked in the ingot section or department of the foundry 42 Higgenbotham testified that Chavers had mentioned the name, Foster 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record and Respondent's warnings, as well as Respondent's termination of others for tardiness and absence. We cannot say that but for Foster's union activity he would not have been discharged on July 14. Suspicion there is but, in our opinion, the General Counsel has not sustained his burden of proof. We recommend dismissal of the 8(a)(3) and (1) allegations as to Foster. The Termination of Joseph Wilson Wilson was employed by Respondent from October 1967 to August 19, 1970.43 He was an operator of a 50-ton overhead crane in the foundry There were three such operators, one on each shift. Dautsch was Wilson's top supervisor, then Terrell, and finally the melter on the shift. Wilson evidently worked a swing shift since he states that his wage on nights was $3 per hour and $2.90 on days. Lofton, Rhymes, and Rodriguez were the three melters. Wilson lived in a rural area and his home, where he lived with his mother, was 23 miles from the plant. His home did not have a telephone while he worked for Respondent This fact was known by Respondent. Wilson's mother worked at the farm of a man named Sullivan, a distance of 4 miles from Wilson's home. She left home early in the morning for her employment. Sullivan did have a telephone. During his approximately 3 years with Respondent, there were about three occasions when Respondent had contacted Wilson at home in order to have him come in and work overtime. The contact was made by Respondent telephoning Sullivan. The latter would then, in Wilson's words, leave his own farm work, drive the 4 miles to Wilson's home, and give him the message On no occasion had Wilson telephoned Respondent to advise that he would be absent or tardy Wilson admitted that he was aware of Respondent's rule that a late or absent employee was expected to call in and inform Respondent that he would be late or absent. "Sometimes," according to Wilson, he told Terrell in advance that he would not be in but, frequently, he simply came in and went to work after being out and, "when I had the time," he would come down from his crane and tell Terrell why he had been absent. Terrell states that Wilson never told him in advance that he would be absent. It was the Trial Examiner's impression of Wilson that he was a mature adult man over 30 years of age. He was an individualistic type of man with strongly held personal norms and standards. Wilson's attendance record for 1970 shows the following: January-absent 1/20; February-absent 2/4 and 2/11; March-absent 3/2 to 3/6 inclusive, also 3/23, and tardy 3/26, April-absent 3/16 and 3/17; May-late 5/8, absent 5/26 and 5/27; June-late 6/25, July-not absent or late; August-absent 8/18 With respect to the weekly attendance reports, prepared by Terrell, that were posted on the bulletin board, with a copy to Dautsch,44 the following appears Report of week-T3 3/2-6 Wilson, absent 5 days; with no sritten annotation by way of comment by Dautsch. Since 5 consecutive days is 40 hours or an entire work week , it appears unlikely that Respondent would have tolerated such an absence without discharging Wilson unless there was a tolerable reason for the absence, such as sickness and so forth. 3/23-27 Wilson, absent I day, no comment by Dautsch 4/13-17 Wilson, absent 2 days, no comment by Dautsch. 5/25-29 Wilson, absent I day, "Bad," written annotation by Dautsch. 6/1-5 Wilson, tardy 1 day, "Bad," written annotation by Dautsch. 6/22-26 Wilson, tardy I day, "Bad." Three other employees, who were absent or tardy and who were listed on this week's report, had "Last Warning" written next to their names by Dautsch Wilson was not one of these. Since the June 22-26 report is the last weekly report on which Wilson appears, it is apparent that the total critical comments by Dautsch amounted to 3 "Bad "(s), one in May and two in June . While not a matter of precision , we believe that in a rough sort of scale of ascending critical comments, the weekly reports that Respondent introduced into evidence show the scale to be something in the nature of. "Getting Bad"; "Bad" (sometimes more than one "Bad" might precede the next type of comment); "Terrible"; "Last Warning." For instance , in the case of Foster, the scale went as follows: "Getting Bad"; "Bad"; "Bad"; "Bad"; "Terrible"; "Last Warning." It is apparent that by the latter part of June, the time of Wilson's last attendance dereliction , when he was tardy on I day, Dautsch's comments totaled 3 "Bads." While such a comment denotes definite disapproval and while "Bad" is not good, it is our opinion that Respondent's attitude and intention had not reached the point of no further toleration. The ultimata and the anathema of "Terrible" and "Last Warning" had not been reached. Neither Dautsch nor Terrell claim that either grave admonitions or warnings were given to Wilson .45 Indeed, Terrell , when asked if he "ever had occasion to speak with him [Wilson] about attendance," cited only one instance and that was in May 1970. According to Terrell , Wilson was absent 2 days. When Wilson came to work, Terrell asked him why he had been absent. Wilson said that he had to go to court in New Orleans and that he had no telephone . Terrell said, "Joe, you could have called me on the way to New Orleans." This was the extent of the entire incident . Wilson states that he had never received a warning from Terrell or Dautsch. He does say that Terrell had told him, "Joe, we got to have some way of making communications ," and Wilson would say that "I am still where I am at, always [have] been . . . I am three to four miles from the nearest phone... ." This occurred "a good while back" according to Wilson. There was no warning or anything beyond the foregoing. As mentioned , Wilson was neither late nor absent in July or August until August 18. But between the latter part of June and August 18 he became definitely identified with the 43 Since Respondent's plant had been in Amite only about 3-1/2 years, comments were on Dautsch's personal copies of the reports and were not Wilson's tenure had been relatively long on the copies posted in the plant 44 The system, including Dautsch's annotations on the reports, has been 45 The contrast with respect to Foster is clear described above in connection with the Foster matter As pointed out, the DIBERT, BANCROFT & ROSS CO., LTD. Union. In the union telegram of July 12 to Respondent, Wilson was named as one of the union committeemen. Thereafter, having received a supply of union cards, he visited employees at their homes in behalf of the Union. Wilson had known the two melters, Lofton and Rhymes, since he had commenced working for Respondent. They were good friends and drank beer together at the Aro Bar in the area. Wilson had also gone on hunting trips with Lof ton. Wilson, who, in our opinion, was a reliable witness, testified that, about a week after Wilson's appointment as a union committeeman had been declared, Rhymes spoke to him in the plant Rhymes said, Joe, I heard them talking in the office-if you are out I day or tardy, they are going to fire you because you are a committeeman. Wilson said he would ride a pregnant mare to work in order to make sure he had a ride to get to his job. A few days later, at the Aro Bar, Rhymes told Wilson that he, Rhymes, had been told to tighten up on the men and, if he caught anyone whom he suspected was for the Union, he was going to have to fire him Beginning in the latter part of July and in August, Wilson states that Rhymes became "very distant" toward him. About a week after Rhymes had spoken to Wilson, Lofton told Wilson that the last time he, Lofton, had voted against the Union but that he was for the Union this time. Not long after this, Lofton told Wilson substantially what Rhymes had told Wilson. Lofton said he heard that, because Wilson was a committeeman, they were going to fire him if he was late or missed a day. Wilson again cited his determination to ride a pregnant mare in order to insure his getting to work. Lofton did not testify. Rhymes states that as a friend he had advised Wilson not to be absent and to be on time because his attendance was pretty poor. Rhymes asserts that the Union was not mentioned and denies the remark about firing anyone if they were for the Union. The Trial Examiner credits Wilson who, as mentioned, impressed him as a credible and reliable witness.46 The last day on which Wilson worked was Monday, August 17, on the 7 a.m. to 3 p.m. shift. Monday night he became ill in the middle of the night and began vomiting. Tuesday morning, he states that he felt "pretty rough." His mother had left for work at the Sullivan farm before daylight. Wilson did not come to work on Tuesday and did not notify Respondent since he had no telephone. Wilson's job as the 50-ton crane operator on his shift was an important one and, in his absence, Respondent was obliged to have the crane operator from the preceding or the succeeding shift work overtime at the overtime rate. When Wilson came to work on Wednesday, August 19, thei e was a note on his timecard to see Terrell. In the office, when Wilson reported pursuant to the note, were Terrell and Dautsch. According to Wilson the following conversa- tion then took place. Dautsch said, "Joe, I have been looking over your attendance record and it is pretty bad." Wilson said that he guessed that was so. Terrell asked Wilson what the matter was and was told that Wilson had 46 The Rhymes and Lofton statements are relevant not only with respect to Wilson but were also considered in connection with Foster's discharge 563 had an upset stomach and had been vomiting and "as you know, I don't have a phone or I would have called in." Dautsch said, "I am going to have to send you home for a day . . . I am going to have to think about this" and "I might, he [Dautsch] might, we might go as far as terminating you." At this point, Wilson states that he, Wilson, took off his hard hat and work gloves and said, "no ... if you want to think about it, I am going to think about it for you, I am quitting." Wilson got up and Dautsch asked, "are you quitting?" and "I [Wilson] said, `yes, sir, definitely.' " As Wilson walked to the door he said that he knew "why I was picked, because I was on the union committee.. .." Dautsch again asked, are you quitting, and Wilson once again replied, "yes, sir, definitely." At the hearing, Wilson was asked with respect to the foregoing events on August 19, 1970: Q. Were you fired? A. I quit. The General Counsel contends that Respondent discrimi- natorily suspended Wilson on August 19 and, on the same date also constructively discharged him. The Trial Examiner is of the opinion that Respondent's statement to Wilson that he was suspended for a day was illegally motivated and constituted a violation of Section 8(a)(1) and (3) of the Act; but, we believe that the suspension was arrested almost as soon as it was announced, because, upon being told of the suspension, Wilson quit his job.47 In our opinion, Wilson was not contructively discharged and we recommend dismissal of that allegation. While Respondent had the undoubted right to suspend Wilson or any other employee for being absent and for not calling in, the issue before us is the motive in this particular instance. Wilson had a bad past record with respect to attendance. Respondent did not like that record and was not satisfied with it. However, under Dautsch's and Terrell's jointly operated system of attendance reports, which we have earlier described in detail, with the accompanying pressure on deficient individual employees by an increasing crescendo of warning talks and ultimate warnings, a definite pattern is revealed. In fact, this pattern, in our opinion, was the asserted and successful crux of Respondent's defense with respect to Foster. But, in Wilson's case, we have a bad attendance record which, over an extended period, never came into the pressurized focus on Wilson that indicated, let alone forewarned, that strong disciplinary action impended or was contemplated. Dautsch never spoke to Wilson and, unlike the Foster situation, Dautsch does not testify specifically that he directed Terrell to speak to Wilson at any point, and there is no evidence of orders to give Wilson "a stiff warning" or anything else of that nature. The one instance testified to by Terrell occurred in May and that, as described by Terrell, supra, was surely a mild, unpointed conversation about the longstanding lack of telephone communication by Wilson. Conceding Respondent's right to suspend an employee, it is undisputed that Wilson had never been suspended before or was possible suspension ever mentioned to him. No 41 Wilson was told that he was being suspended that day, at the start of his shift By quitting at that point he ceased to be an employee and therefore the suspension became moot 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other instance of suspension appears in the record regarding attendance derelictions by an employee. And the fact is that Wilson's poor attendance had crested and ceased by the end of June. From that time, until August 18, Wilson's attendance was without blemish.48 Not even Foster, who was subjected to an ascending scale of admonitions and warnings in Respondent's efforts to improve his attendance, had ever been suspended by way of disciplinary action. If Wilson's suspension is claimed to have been an effort to improve Wilson's attendance since it was short of discharge, there are several observations that are in order. The suspension, without precedent under Dautsch's system to improve attendance, was, in our view, decided on because Respondent, due to Wilson's status as a union committeeman, wished to have additional time to consider whether or not to discharge Wilson. The testimony of Wilson, Dautsch, and Terrell confirms this.49 In the light of what the evidence shows as to Dautsch's practice, a "stiff warning" and certainly a "last warning" to Wilson, on August 19, would have been normal and would have effectively aided Respondent's interest in good attendance if such was Respondent's sole motivation. This is particu- larly true since the record discloses that heretofore Wilson had never received anything in the nature of a real warning, let alone a last warning. It is in the foregoing context, therefore, that Dautsch's announcement to Wilson on August 19 that he was suspended must be evaluated. In our opinion, the most evident and reasonable explanation for the suspension, uncharacteristic as it was in the light of the aforedescnbed background, was that it was an implementation of what Rhymes and Lofton had previously told Wilson, namely, that Respondent would discriminate against him because he was a union committeeman, if he was late or tardy even once. August 18 was the first attendance dereliction by Wilson since he became a committeeman in the first part of June We believe that Dautsch certainly considered discharging Wilson on August 19 but, instead, suspended him, while Dautsch considered whether or not to discharge Wilson on the following day. Indeed, Dautsch, when asked, with respect to what he said and did on August 19, testified that, in addition to informing Wilson that he was suspended for a day, he told him that the following day "I would let him know what my decision was." 50 The witness, Dautsch, was asked: Q. Were you contemplating terminating him? A. I wanted to be very careful with that gentleman because I knew his name was on that telegram, I knew he was a union committeeman. While we are satisfied that the suspension of Wilson was +8 Unknown to Dautsch or Terrell, we believe a major factor in Wilson's self-impros ment was the pointed warning he had received from his friends Rhymee and Lofton after it had been made known to Respondent that Wilson was a union committeeman 49 Wilson's testimony on this has been set forth previously The testimony of Dautsch and Terrell on this aspect is described infra 50 Terrell, who was present, affirmed that Dautsch told Wilson "that he would let him know tomorrow" if he still had his job Si On August 5, the Union had filed a charge, with notice to Respondent, alleging that Foster's dischaige was discriminatory This fact, plus Wilson's known committeeman status, renders Dautsch's prudence quite understandable 52 About 2 years before, while in Respondent's employ, Respondent's discriminatorily motivated, we are equally persuaded that Respondent did not discharge Wilson, directly or construc- tively. We have credited Wilson's version of the August 19 conversation with Dautsch and Terrell and on that version, or, on Respondent's version, which differs only in minor respects, we are satisfied that Wilson quit. He quit because of the independent type of person he was; he believed that his suspension was unfair and discriminatory and rather than accept the suspension he quit. He made that choice. He may have also believed that he would be discharged on the following day. Perhaps he would have been. But nobody knows whether he would have been discharged or not. The Tnal Examiner does not know and, in our opinion, Wilson did not know. In fact, the evidence indicates that Dautsch did not know on August 19 and clearly had not discharged Wilson on the 19th. Dautsch, as he candidly testified as quoted above, was handling the Wilson matter with care because of Wilson's union position and beyond suspension Dautsch was not prepared to go on August 19.51 Wilson, however, as we have said, took the initiative and quit his job. The suspension ceased to be operative as soon as Wilson quit and Dautsch never had to make his decision as to what he would do on the following day. Nor, in our opinion, was Wilson's quit a constructive quit or a constructive discharge. The I-day suspension was not so onerous or intolerable, albeit, in our view, illegally motivated, that Wilson was, in effect, forced to quit. He was not being transferred to the furnace pit to shovel sand or being subjected to an otherwise unbearable situation. He would have had legal redress for an illegal suspension, and, if discharged on the morrow, he could assert his claims for redress. Perhaps he would not have been discharged. But Wilson chose to quit his job on August 19 when notified of his suspension for the day. Wilson testified that he quit and the evidence shows such to be the fact.52 CONCLUSIONS OF LAW 1. Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them by Section 7 of the Act by: (a) Coercively interrogating employees Higgenbotham and Hawkins on July 15 and 16, 1970. (b) Announcing to employee Joseph Wilson, on August 19, 1970, that he was suspended for I day on August 19 and that Respondent would advise him on August 20 whether or not he would be terminated. 2. The foregoing conduct set forth in 1(a), above, constituted a violation of Section 8(a)(1) of the Act 3. The foregoing conduct set forth in 1(b), above, constituted a violation of Section 8(a)(1) and (3) of the Act. supervisor had wanted Wilson to do something on the job, evidently in connection with operating the crane, and Wilson admittedly quit because he "didn't want to do" what Respondent told him to do See also Texas Industries, Inc, 188 NLRB No 124, where an employee truckdnver was accused of joyndding in a company truck The driver said he had missed a turn on the direct route The superintendent told him that, if he did not know his way any better than that, the superintendent did not think he needed to drive for the company The driver was told to meet with the superintendent and the personnel manager the next day The driver did not report the next day The Board held that "the specific direction to report to the personnel office the next morning hardly constitutes and indeed [is] inconsistent with, an expression of a decision to discharge Scott" It was concluded that the driver, Scott, had quit and had not been discharged DIBERT, BANCROFT & ROSS CO., LTD. 565 4. Respondent has not otherwise violated the Act as alleged in the complaint. THE REMEDY Having found that Respondent has violated the Act in certain respects, it will be recommended that it cease and desist from such conduct. No affirmative action will be recommended regarding Wilson's suspension since he quit his job when informed of his suspension. RECOMMENDED ORDER53 Respondent, Dibert, Bancroft & Ross Co., Ltd., and its wholly owned subsidiary, Ross Steel Works, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from- (a) Coercively interrogating employees regarding the signing of union cards or union activities. (b) Suspending or taking related disciplinary action against an employee because of union or concerted activity that is protected by the National Labor Relations Act. (c) By any like or related conduct, interfering with, restraining, or coercing employees in the exercise of the rights guaranteed to them by the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Post at its plant in Amite, Louisiana, copies of the attached notice marked "Appendix."54 Copies of said notice, on forms provided by the Regional Director for Region 15, after being signed by Respondent's representa- tive, 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 other material. (b) Notify the Regional Director for Region 15, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.55 53 In the event no exceptions are filed as provided by Section 10246 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 54 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 55 In the event that this Recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read. "Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively question employees about the signing of union cards or other lawful union activities. WE WILL NOT suspend or take other related disciplinary action against an employee because of lawful union or concerted activity. WE WILL NOT by any like or related conduct interfere with, restrain, or coerce employees in the exercise of nghts guaranteed to them by the National Labor Relations Act. DIBERT, BANCROFT & Ross Co., LTD., AND ITS WHOLLY OWNED SUBSIDIARY, Ross STEEL WORKS, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361.