Asheville Steel Co.

146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Asheville Steel Company and Robert R. Blackburn. Case 1I-CA-4845 DECISION STATEMENT OF THE CASE March 5, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On October 20, 1972, Administrative Law Judge Lowell Goerlich issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief, and has decided to affirm the Administrative Law Judge's rulings, findings,' and conclusions2 and to adopt his recommended Order. ORDER 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 Administrative Law Judge and hereby orders that the Respondent, Asheville Steel Company, Asheville, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's Order. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings 2 We do not adopt two conclusions made by the Administrative Law Judge in his Decision First, the Administrative Law Judge concluded that there was no credible proof that any employee had ever been discharged for committing the same offense as Blackburn was charged with Contrary to the Administrative Law Judge, it appears that two employees were previously discharged for the same offense Blackburn was charged with However, this fact, when considered in the light of the Respondent's past exemption of Blackburn from overtime and weekend work because of his domestic problems, and the concurrent union membership drive do not persuade us that he was discharged for cause Accordingly, we agree with the Administrative Law Judge in his further conclusion that the discharge was based on a pretext to conceal a motive to discourage membership in the Union Second, the Administrative Law Judge concluded that Blackburn's transfer was for the purpose of isolating him from association with other employees Our review of the record leads us to a contrary conclusion There is credible record evidence that Blackburn had performed other similar work outside of the plant prior to the advent of the organizational drive LOWELL GOERLICH, Administrative Law Judge: The charge filed by Robert R. Blackburn, an individual, on March 8, 1972, was served on the Asheville Steel Company, the Respondent herein, on the same date. A complaint and notice of hearing was issued on May 3, 1972. The complaint charged that the Respondent had discharged Robert R. Blackburn on March 6, 1972, in violation of Section 8(a)(3) of the National Labor Rela- tions Act, as amended, herein referred to as the Act. In addition it was charged that the Respondent had violated Section 8(a)(1) of the Act by interrogating its employees as to their union sympathies, by threatening employees with loss of their positions if the Union came in, by creating an impression of surveillance of employees' union activities, by threatening employees that they would lose all benefits if they selected the Union to represent them, by instructing employees to think over their union activity, and by offering to help get employees out of the Union. The Respondent filed a timely answer denying that it had engaged in or was engaging in any of the unfair labor practices alleged. The case came on for trial on June 29 and 30, 1972, at Asheville, North Carolina. Each party was afforded a full opportunity to be heard, to call, examine, cross-examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered. FINDINGS OF FACTS,' CONCLUSIONS, AND REASONS THEREFOR 1. THE BUSINESS OF THE RESPONDENT The Respondent is now, and has been at all times material herein, a North Carolina corporation with its principal place of business in Asheville, North Carolina, where it is engaged in the steel fabrication business. Respondent, during the past 12 months, which period is representative of all times material herein, received directly from points outside the State of North Carolina raw materials valued in excess of $50,000. During the same period, Respondent shipped directly to points and places outside the State of North Carolina finished products valued in excess of $50,000. The Respondent is now and has been at all times material herein an employer engaged to commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, hereafter referred to as the Union, is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. The facts found herein are based on the record as a whole and the observation of the witnesses 202 NLRB No. 10 ASHEVILLE STEEL COMPANY 147 III. THE UNFAIR LABOR PRACTICES2 A. The Supervisory Status of Willie A. Bridges, Dutch Collins, and Clarence E. Hensley Gilbert L. Marlowe is the Respondent's president, Charles F. Sawyer is the Respondent's vice president in sales, Frederick R. Stagg is the Respondent's vice president in production, Jack R. Gosnell is the Respondent's plant superintendent, and Eugene R. Gregory is the Respon- dent's erection superintendent. The Respondent admits that these employees of the Employer are supervisors within the meaning of Section 2(11) of the Act. Issue is drawn as to whether or not Willie A. Bridges, Dutch Collins, and Clarence E. Hensley are supervisors within the meaning of the Act, as alleged in the General Counsel's complaint. Each of these individuals testified. Bridges referred to himself as a yard foreman, Collins referred to himself as a shop foreman, and Hensley referred to himself as "foreman of part of the shop crew."3 Each of these three employees wore different attire than that of the employees who worked under them and generally did not engage in any physical labor. Budges supervised a crew of six or seven employees. He decided what work they were to perform, excused them from work for short periods of time without prior consent of his supervisors, recommended raises which were approved by the Respondent, and instigated discharges.4 In administering these functions Bridges exercised inde- pendent judgment. In addressing an employee, Plant Superintendent Gosnell referred to Bridges as the employ- ee's boss and said to the employee, "[Y]ou do what he tells you." Dutch Collins supervised about 16 to 18 employees.5 He assigned work to these employees and transferred them from job to job. In making assignments he evaluated the employee's ability and exercised his independent judg- ment.6 Collins granted employees time off for short periods and recommended raises. If employees performed their work in an unsatisfactory manner, he reprimanded them "strongly." Hensley supervised between 12 and 20 employees. He assigned work to those employees and transferred them 2 The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits, with due regard for the natural logic of probability, the demeanor of the witnesses, and the teachings of N L R B v Walton Manufacturing Company & Loganville Pants Co, 369 U S 404, 408 As to those witnesses testifying in contradiction to the findings herein, their testimony has been discredited, either as having been in conflict with the testimony of credible witnesses or because it is in and of itself incredulous and unworthy of belief 3 At the time of the hearing, Hensley no longer occupied such position, he had been an estimator for about 2 months 4 Bridges instigated the discharge of employee Ayward C Clonts when he refused to work overtime Bridges brought the matter to the attention of Stagg and Gosnell Clonts was discharged in the presence of Bridges 5 According to Gregory, sometimes the number of employees under Collins reached as high as 30 6 Collins testified that he used his "independent judgment in deciding what job a particular man will get," and opined, "You've got to have enough sense to know whether a man can make a horseshoe or not or whether he can make a handrail or something " 7 Hensley testified that he exercised "independent judgment in deciding which work should be given certain employees " 8 Hensley told employee Jerry Patton that he was pleased with the work that he was doing and that he had talked to Stagg and Gosnell about it and from job to job. In this function he exercised independent judgment.7 Hensley excused employees for several hours without consulting his superiors, recommended pay in- creases,8 "chewed out" employees who performed unsatis- factonly, and excused employees from working overtime. When employees were assigned to Hensley or Collins they were told by Gregory or Gosnell "get with them and they'll tell you what to do." 9 The foregoing indicia of supervisory status bring the duties and responsibilities of Hensley, Bridges, and Collins within the definition of supervisor as set forth in Section 2(11) of the Act.10 The exercise of supervisory authority by these employees was "not of a merely routine or clerical nature." These employees "responsibly"" directed other employees, exercised independent judgment in the assign- ment of their jobs, recommended and administered discipline, and recommended wage increases. Moreover, they were held out to be the Respondent's bosses and so represented themselves. They were the only supervisors to whom the employees working under them reported for work assignments and direction. Accordingly, Hensley, Bridges, and Collins were supervisors within the meaning of the Act. B. The Alleged Violations of Section 8(a)(1) of the Act First: The union organizational campaign commenced around February 1, 1972, with the request by employee Robert R. Blackburn, the alleged discriminatee herein, that Union Representative Franklin visit his home. Af such visit Franklin and Blackburn discussed union organization and Blackburn was given union authorization cards which he later distributed on the Respondent's premises. Blackburn distributed about 15 cards; , other employees likewise distributed some union authorization cards. At this time the Employer had about 75 to 80 employees working at its plant.12 Blackburn, as well as others, discussed the Union at the plant and attended union meetings. Blackburn, among the employees, was the acknowledged leader of the union movement, and the prime spokesman at union told them that he thought Patton deserved more money On the next Friday, when Gosnell passed out the paychecks. he told Patton that he would receive a raise, which he did 9 In respect to the duties and responsibilities of Hensley and Collins, Erection Superintendent Gregory testified Q Hensley and Collins, they had absolute control over that crew, they were the only bosses of their respective crews, right9 A Yes Q They were the immediate bosses, right9 A Yes 10 Section 2(11) provides The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend. lay off, recall. promote. discharge. assign , reward , or discipline other employees. or responsibly to direct them , or to adjust their grievances, or effectively to recommend such action. if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature. but requires the use of independent judgment ii "To be responsible is to be answerable for the discharge of a duty or obligation Responsibility includes judgment , skill, ability, capacity, and integrity, and is implied by power" Ohio Power Co v N LR B, 176 F 2d 385, 387 (C A 6) i2 This is the estimate of Vice President Frederick R Stagg 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meetings. Supervisors in the plant heard rumors of the union activity.13 Rumors of this activity were reported to Gosnell and Stagg by Supervisor Bridges, who testified that he had heard "faintly" rumors that Blackburn was pushing for the Union. Around March 5, 1972, Sawyer was informed by Stagg at a morning meeting that Blackburn was one of the "pushers" for the Union. Collins had also heard rumors that Blackburn had been giving out cards as early as 2 weeks before February 25, 1972. On February 9, 1972, President Gilbert Marlowe approached employee Ayward C. Clonts and said, "I can't believe what I heard about you about this union deal." Clonts said, "What do you mean?" Marlowe responded, "You went to a union meeting last night." Clonts then said, "Mr. Marlowe, how could I be at two places at one time? I was making music last night." Clonts had been to the union meeting on February 8, 1972. Blackburn was at the same meeting.14 Again on February 9, toward quitting time, Marlowe approached Clonts and said, "Your name is still coming up about these union cards." Clonts responded, "I don't know what you're talking about. I haven't been giving out any union cards in the parking lot." Marlowe responded, "I will not have this on these premises." 15 On the same day, February 9, Clonts approached Yard Foreman Bridges and said, "Bill, I can't figure out Gilbert Marlowe is hot on me today." Bridges answered, "I believe I can tell you one thing; you're in this umon, ain't you." Bridges continued, "You went to a union meeting last night, didn't you." Clonts replied, "How can I be at two places at the same time." Thereupon Bridges said, "You're trying to push the union in here, ain't you?" Clonts answered, "No, sir," adding, "Another thing, after 4:30 after I punch the clock, it's my business what I do." 16 In the same conversation Bridges also commented, "We don't want the union in here; we don't think a union would be good." On February 25, 1972, Blackburn, accompanied by Collins, went to the Biltmore Estate for the purpose of surveying a rotted cable which was to be replaced across a river. As Collins and Blackburn were returning in an automobile, Collins said to Blackburn, "Bob, what's this I hear about you getting union cards signed?" Blackburn told him that "that was right." Thereupon Collins asked him why he was soliciting cards. He answered, "Well, we're not making any money down here, Dutch; the money they're paying us is so far out of line with the cost of living, it's not even funny; it's ridculous." Collins responded, "I can't blame you for that." Later Blackburn commented, "I guess they'll fire me when I get back to the shop." Collins 13 Bridges testified that rumors of union activities were "all over the plant " Bridges also testified, "Well, you could hear it [talk about union activities ] about anywhere you was at as long as youjust heard somebody passing by " i4 Marlowe denied the conversation as related by Clonts, however, he admitted that he had a conversation with Clonts in which the statement that Clonts had "made music" was used His denial is not credited is Marlowe claimed that he had not heard about union activities until Sunday, March 4, 1972, when he had returned from a vacation extending from February 18 to March 4, 1972 Marlowe's denials are not credited ie Bridges denied the content of the conversation with Clonts, however, he admitted Clonts came to him one morning and said that "he had been accused of being at union meetings, and he wasn't " According to Bridges, said, "No, they don't know about it." Blackburn answered, "Well they will when we get back over there-when you get back over there." Collins said, "No, I won't tell them." 17 Sometime prior to March I, 1972, a petition was circulated among the employees for those who were against the Union. On March 1, Erection Superintendent Gregory asked employee Robert L. Hensley whether he had signed the petition. He responded that he had not. Gregory replied "that [he] should go ahead and sign it, that it would look so much better on [his] part to the Company if the Company did see [his] name on the list." Hensley said that he would not "sign it either way." Thereupon Gregory explained that if the employees "did get the union in that [they] would be working more or less for the union, having to pay them for something [they] wasn't getting, and [they] also would lose some of the Company benefits that they were giving [them ]." 18 Prior to March 1, Shop Foreman Hensley conversed with employee William David Hensley, at which time Shop Foreman Hensley said to employee Hensley that "he didn't think the union will help the employees any and that you could lose your position if we was to get the union." Shop Foreman Hensley added that it wouldn't do any good for employee Hensley "to say anything about it because there wouldn't be anybody there but [employee Hensley and Shop Foreman Hensley] and [Shop Foreman Hensley] would deny it." 19 Several days prior to March 2, 1972, Vice President Charles F. Sawyer was informed by Vice President Frederick R. Stagg that there were "rumors flying of union activities." He received substantially the same information from Shop Superintendent Gosnell, Erection Foreman Gregory, and Shop Foreman Collins. Collins was quoted as saying, "There is huddling and rumors going on. and I understand there is union talk going."20 In response to these rumors, Sawyer prepared a speech which he delivered to the employees on March 2, 1972. President Marlowe was absent. Sawyer "felt in Mr. Marlowe's absence in the best interest of the Company that this is what he would have done. And acting as Executive Vice President [he] made the speech before [Marlowe] came back." Among other things Sawyer read to the employees, "The Company does not want a union here. We sincerely believe that the introduction of a union into this Company is not necessary or beneficial to your welfare and growth with the Company. The Company will resist this Union's efforts to make dues payers out of you with every proper and legal means. We would like to make it clear that it is not necessary for anyone to belong to any he told Clonts, "As far as we was concerned they [Union I was all bad, we didn't care who knew it and we didn't want one, we wasn't for one, and we didn't care who knew it " Clonts' testimony is credited 'r Collins admitted that such a conversation took place, but he claimed that Blackburn said to him, "I suppose now you've heard that I am giving out union cards," to which Collins replied, "I've heard rumors of that " The version of the conversation as related by Blackburn is credited is Gregory did not specifically deny that he had suggested to Hensley that he sign the petition against the Union 19 Shop Foreman Hensley denied the conversation His denial is not credited 20 Collins was quoted by Sawyer as also saying, "I guess you've heard of this s- flying around " ASHEVILLE STEEL COMPANY 149 union in order to work here . . . getting involved with the Iron Workers Union is a serious thing. Each one of you should be certain that you have the true facts about this union and unionization generally. Any supervisor will be happy to answer any questions you have." The speech commenced with the statement, "It comes as no surprise to us that the notorious Iron Workers Union is trying to make union payers out of you . . . . Most of you know that the Iron Workers Union is no stranger to violence. We do not believe this is the type group any of you would want to get involved with." 21 On March 6, 1972, employee Robert R. Blackburn was discharged. Several days before Blackburn was fired, Shop Foreman Clarence Hensley approached employee Joel Henderson and said to him, "What do you think about all this talk about the union?" Henderson replied, "What do you mean about all this talk?" Hensley said, "Are you for this union or not?" Henderson answered that he was for the Union. During the conversation, Hensley said, "Well, I'll tell you if a union comes in the Company will take away your benefits such as your profitsharing, your Christmas bonus, and you know, stuff like loaning you money." 22 During the first week in March, Shop Foreman Clarence Hensley asked employee Jerry Patton whether he had heard talk about the Union. Patton answered in the affirmative. Hensley said that "the union would not be any benefit" to the employees. On March 8, 1972, the day after a union meeting, Shop Foreman Hensley again spoke to employee Patton. Hensley said that he was surprised that Patton had gone to the union meeting. On March 8, 1972, employee Patton was engaged in conversation with Gregory. Gregory told him that he had seen him coming out of the labor temple the night before and asked him how many men were at the meeting. Patton replied 25 or 30. Gregory said that the Company had been good to Patton and that if the Union were voted in the employees would lose their benefits and insurance. About 1 o'clock on the same day, Gregory said to Patton that he didn't really see him coming out of the labor temple but that he had "told on" himself. On March 8, 1972, employee Patton went to Vice President Stagg's office where he talked to Gosnell and Stagg. Some of the employees who were assigned to go to New York to do some erection work had told Patton that if they got into trouble in New York, they would take it out of his hide. Patton told Gosnell "that the guys that were 21 The General Counsel claims that Sawyer deviated from his speech and added that if the Union came in to Asheville Steel the employees would lose all their benefits While several employees testified that Sawyer made such statement Sawyer's testimony that he did not deviate from written text is credited It is believed that the employees were giving their interpretation of Sawyer's remarks rather than a verbatim recollection 22 Hensley denied the conversation with Henderson but admitted that Henderson had told him that he had signed a union card Hensley's denials are not credited 23 Gosnell admitted that the conversation took place, that reference was made to the employees going to New York, and that, if there was any trouble , they would beat Patton up or whip him However, he denied any reference to getting Patton out of his involvement with the Union Gosnell testified , "Jerry, if this pressure is not off of you where you'll be able to do your job in a correct way, think it over if you want to, and tell me who's putting the pressure so maybe I can do something about it, think it over, going up there evidently thought that [he] was the one that was pushing this union and the one that was giving out the cards because he came to [him] and told [him ] that if there was any trouble up there that he was going to come back and take it out of [his] hide." Gosnell responded that he did not think that the men who were going to New York would have any trouble; "that he hadn't heard a thing about it." When Patton told Gosnell that "the boys thought that [he] was the one who was giving out cards, getting the cards signed," Gosnell commented, "[I]f you are involved in this activity, think it over the weekend, and I'll get you out of it." 23 Around March 8, 1972, Gosnell approached employee William David Hensley and said to him that the Company had been good to him had it not. Hensley answered, "Yes, sir." Gosnell said, "We heard you was for the union." Hensley answered, "No, sir"; the answer was untruthful. About a week after Blackburn was fired Erection Superintendent Gregory approached employee Joel Hen- derson and said, "I hear you've been pushing this union." Henderson answered that he had not been pushing for the Union, but that he had been discussing the Union "just like everybody else at Asheville Steel." Whereupon Gregory asked, "Tell me how much did the insurance pay on your last baby?" Henderson responded, "Three hundred dol- lars." Gregory said, "I guess you know if the union comes in you would have had to pay that yourself." Second: As set out above Supervisors Bridges, Collins, Gregory, and Hensley and Plant Superintendent Gosnell interrogated employees in respect to their union activities. These interrogations occurred in the context of other unfair labor practices; they were for the clear purpose of eliciting information in aid of the Respondent's antiunion campaign. Their purpose was not communicated to the employees nor was any assurance against reprisals given to the employees.24 Moreover, the Respondent did not prove that such questioning was pursuant to the Employer's legitimate business interests . The effect of the questioning was to inhibit union activity,25 and instill in the minds of employees fear of discrimination on the basis of the information obtained.26 Accordingly, it is found that by the following interrogations the Respondent violated Section 8(a)(1) of the Act: 27 (a) Supervisor Bridges' interrogations of employee Clonts on February 9, 1972, to wit: "You went to a union meeting last night, didn't you?" and "You're trying to push the union in here, ain't you?" (b) Supervisor Collins' interrogation of employee Black- please come back in Monday, and let's talk this thing out " Where Gosnell's testimony conflicts with Patton's testimony, Patton's testimony is credited 24 The Board has said, "Questioning selected employees about their union sympathies without any assurance against reprisal , by its very nature tends to inhibit employees in the exercise of their right to organize Engineered Steel Products, Inc, 188 NLRB No 52 25 "It is well settled that such interrogation violates Section 8(a)(l) when its probable effect is to inhibit union activity " N L R B v Southern Electronics Co, 430 F 2d 1391 26 "Interrogation as to union sympathy and affiliation has been held to violate the Act because of its natural tendency to instill in the minds of employees fear of discrimination on the basis of the information the employer has obtained " N L R B v West Coast Casket Company, Inc, 205 F 2d 902, 904 (CA 9) 27 See N L R B v Super Toys, Inc, Hendel Manufacturing Company, Incorporated, 197 NLRB No 179 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD burn on February 25, 1972, to wit: "Bob, what's this I hear about you getting cards signed?" (c) Supervisor Gregory's interrogation of employee Robert L. Hensley on March 1, 1972, as to whether he had signed the petition against the Union.28 (d) Supervisor Hensley's interrogations of employee Henderson shortly prior to March 6, 1972, to wit: "What do you think about this talk about the union?" and "Are you for the union or not?" (e) Supervisor Hensley's interrogation of employee Patton during the first week in March as to whether he had heard talk about the Union. (f) Plant Superintendent Gosnell's interrogation ad- dressed to employee William David Hensley around March 8, 1972, to wit: "We heard you was for the union." 29 Third. In addition to the coercive interrogations men- tioned above, the Respondent violated Section 8(a)(1) of the Act by supervisors' threats that certain benefits would be taken away if the Union succeeded in organizing the plant. (See GTE Automatic Electric, Inc., 196 NLRB No. 134.) The following remarks by supervisors were threats of reprisal and were unlawful: (a) Supervisor Gregory's threat to employee Robert L. Hensley on March 1, 1972, to wit: If the employees "did get a union in . . . [they] also would lose some of the company benefits that they was giving us." (b) Supervisor Hensley's remarks to employee William David Hensley sometime prior to March 1, 1972, that "he didn't think the union would help us [the employees] any," and that, "you could lose your position if we was to get the union." 30 (c) Supervisor Hensley's threat to employee Henderson sometime prior to March 6, 1972, to wit: "Well, I'll tell you if the union comes in the company will take away your benefits such as your profitsharing, your Christmas bonus, and you know, stuff like loaning you money." (d) Supervisor Gregory's threat made to employee Patton on March 8, 1972, that, "[i If they voted the union in that we would lose all our benefits and insurance." (e) Supervisor Gregory's remark to employee Henderson about a week after March 6, 1972, that, "[i]f the Union comes in you would have had to pay that [certain insurance benefits ] yourself." Fourth The Respondent also violated Section 8(a)(1) of the Act by causing the employees to believe that the Respondent was spying upon their union activities.31 The following conduct of the Respondent's supervisors created unlawful impressions of surveillance: (a) President Marlowe's remarks to employee Clonts on February 9, 1972, to wit: "You went to a union meeting 28 Gregory's suggestion to employee Hensley that he should "go ahead and sign" the petition against the Union , that it would look better to the Company, was also a violation of Section 8(a)(1) "Section 8(a)(1) makes it unlawful for an employer to induce employees to sign any form of union-repudiating document " N L R B v Birmingham Publishing Company, 262 F 2d 2, 7 (C A 5) 29 While Gosnell's remark was not framed in the form of a question the employee treated it as such and answered , "No, sir " 30 The Board has said, "We regard a threat of job loss to be a serious deterrant to organizational activity " Comet Rice Mills Division, Early California Industries, Inc, 195 NLRB No 117 last night." and "Your name is still coming up about these union cards." (b) Supervisor Hensley's remark to employee Henderson on March 8, 1972, that he was surprised that Henderson had gone to a union meeting. (c) Supervisor Gregory's remark to employee Patton on March 8, 1972, that he had seen him coming out of the labor temple on March 7, 1972. (d) Supervisor Gregory's remark to employee Henderson about a week after March 6, 1972, to wit: "I hear you've been pushing this union." Fifth: Finally, the Respondent violated Section 8(a)(1) of the Act by Plant Superintendent Gosnell's remark to employee Patton on March 8, 1972, that if he were involved in union activity, "think it over the weekend and [he would] try to get [him] out of it." C. The Discharge of Robert R. Blackburn First: Robert R. Blackburn was hired on October 23, 1967. On his application for employment appeared the statement in reference to his wife , Clara Blackburn, "disabled last 3-1/2 yrs." At the time he was hired, Blackburn told Stagg and Gosnell that his wife had rheumatoid arthritis, that she could not walk and was in a wheelchair, and that she could not use her hands or stand alone. He also indicated that he had had to feed her for about 2 years because she was unable to get her hands up to her mouth.32 During the interview, Blackburn was told that he would have to work overtime, out of town, nights, and away from home. Blackburn said that he could not work weekends or away from home because of his invalid wife, stating that he had to be there "every evening and take care of her on weekends"; that he had no one to take care of her. Nevertheless, the Respondent hired Blackburn and said, "They could work around it." Blackburn was hired as an electric welder in which classification he possessed 10 years' experience. Shortly after Blackburn was hired, he was asked by Gosnell to work 12-hour shifts. He said that he could not, whereupon he reported to Stagg that he had been scheduled to work 12-hour shifts which he could not do because he had to be home every evening with his wife. Stagg said, "You dust forget about it; we'll overlook it, and we'll send somebody else." On another occasion, Black- burn had refused to perform Saturday work, indicating that he had to stay with his wife on weekends. Gosnell sent another employee to fill in for him. During his tenure of employment the Respondent took a "decent" attitude toward the problem of his wife's illness as it affected his working overtime and on weekends.33 31 "[Tlhe law reasons that when the employer either engages in surveillance or takes steps leading his employees to think it is going on, they are under the threat of economic coercion, retaliation , etc " Hendrix Manufacturing Company, Inc v N L R B, 321 F 2d 100, 104, fn 7 (C A 5) See also N L R B v Ralph Printing and Lithographing Company, 379 F 2d 687, 691 (C A 8) 32 While Blackburn was working for the Respondent , Mrs. Blackburn had undergone 13 or 14 operations which were processed through the Respondent's insurance program 33 Stagg testified, "After he had worked for us a while this came to light that his wife was pretty sick, and he had to stay with her, or he told us this ASHEVILLE STEEL COMPANY Stagg said that when Blackburn was requested to work overtime he "would bring up this old excuse about I've got to get off at 4:30; my babysitter leaves, and I have to be with my wife all the time." Stagg's attitude was, "Well, you can't be hard-hearted in business all the time." Neverthe- less, according to Stagg, the policy in regard to Blackburn changed in the forepart of February as the result of rumors which came to Stagg that employees were dissatisfied with the privileges afforded Blackburn. According to Stagg, "It was disrupting our organization." However, the new policy was never communicated to Blackburn, nor was it ever mentioned to him that he was abusing the privileges which the employer allowed him.34 Blackburn had been a palmary employee. Of Blackburn, Gregory said, "Mr. Blackburn is a good mechanic. He does his job." Collins was more complimentary. He testified, "In my opinion he was a good employee, a good welder; one of the best I've ever seen." Blackburn was assigned to a job at the Asphalt Paving Company on February 28, 1972. The paving company is located at Black Mountain, North Carolina, a distance of around 10 miles from the Respondent's premises. Another employee, Joel Henderson, was assigned to the same project. Gregory was in charge of the project. At the time, the Asphalt Paving Company was out of production because of the work being performed. The company resumed operations in about 2-1/2 weeks; however, the work was not completed on the job until some time after that. On Friday, March 3, Gregory appeared about 11 o'clock on the job and stated that the Asphalt Paving Company wanted the job finished and that Blackburn and Hender- son would have to work weekends.35 Blackburn told him that he couldn't work weekends because he had to take care of his wife. Whereupon Gregory responded, "The men that work on my crew work anytime I need them," to which Blackburn replied, "I haven't been working on your crew." Nevertheless, Gregory scheduled Blackburn and Henderson to work on Saturday and Sunday. Henderson worked on Saturday but did not show on Sunday, having called in, indicating that his baby was sick. Henderson was excused. When Henderson and Blackburn returned to the plant on Friday afternoon, Gosnell said to them, "We're looking for you boys in here Saturday and Sunday." Blackburn replied, "I can't work this weekend; you know it." Gosnell instructed Blackburn to see Stagg. Gosnell went to Stagg's office with Blackburn, where Blackburn told Stagg that he could not work that weekend. Blackburn was told that he must work Saturday and Sunday, that they could not put anyone else on the job. So after all we're not cannibals, so we worked with him and tried to be as decent as possible " 34 Gosnell said that when employees complained about Blackburn's privileges he would say to them, "[G ]entlemen, he says he has a sick wife, and ya'll ought to have a big enough heart in you to fill in for him every once in a while, and we've got thisjob to do, and I'm not necessarily asking you to do it for Robert Blackburn, I am asking you to do it for Jack Gosnell, trying to get this work out " 35 No one worked weekends on this job after the first weekend 36 Stagg described what occurred as follows "it was around 5 00, 5 or 10 minutes after 5 00 And he said, '[W ]e've had Bob lined up on this Job for Asheville [Asphalt] Paving Company, and now he says he can't work 151 Stagg said that the Respondent might lose the contract. Blackburn reiterated the fact that he could not work Saturday and Sunday and pointed out that he had told them before that he could not work weekends. He said, "I have too much to do, working on weekends; I have to take care of my wife and do all the chores." Stagg responded, "We can't send nobody else out there; you're the one that has to go." As Blackburn commenced to leave, Gosnell said that "they were looking for [him] in there, and wanted [him] in there in the morning." Blackburn said that he could not make it as he went out the door. Gosnell agreed that Blackburn said that he could not make it because his wife was sick. Stagg did not threaten Blackburn with disciplinary action if he failed to report on Saturday36 nor direct him to call in if he was unable to work on Saturday. On Saturday morning, March 4, when Blackburn had not called in by about 7:15, Collins phoned Gosnell and reported this fact. Collins was told to notify Julian Jarrell to come to work, which he did. Henderson heard Collins make two telephone calls, one to Jarrell and the other one to Robert Joyner. Henderson and Blackburn were to have left the Employer's Asheville plant for the paving job at 7:30. Jarrell arrived about 8 p.m. and Joyner arrived about 8:30. The three employees started to the asphalt paving job some time between 8:30 and 9: 00 a.m. Henderson and Blackburn were equally qualified to do the work. Hender- son took over for Blackburn. Jarrell continued working on the job until it was completed. President Marlowe returned from his vacation on Sunday, March 5, 1972, between 4 and 5 p.m. First Marlowe testified that he "didn't know anything about the union" at that time and did not learn about Blackburn's discharge until Monday morning, March 6, 1972. Later in his testimony he related that Stagg had called him on Sunday afternoon but had "only told [him] there was some union activities." (Emphasis supplied.) Later, Marlowe expanded on this testimony. He testified that Stagg "only said that Blackburn did not show up for work and that I said, `Well, Fred, it's strictly up to you.' " (Emphasis supplied.) Finally, Marlowe testified, "[H]e [Stagg] told me there was some union activities, and he also said that Blackburn didn't show up for work." Marlowe testified further that he "wouldn't deny" that he had asked Stagg who was pushing the cards and the union. Nevertheless, Marlowe claimed that he knew nothing of Blackburn's union activities until Monday, March 6, 1972. Marlowe knew, however, that Blackburn's wife had undergone a number of operations and that they were paid through the Company's insurance program. He also knew that Black- burn had been excused from working overtime because his sick wife required his presence at home. tomorrow' And he had known of it, I think , since Thursday And I said, 'Well, Bob, you're sure you can't make an effort this time and get a babysitter or do something so that you can work this particular time ' I said, '[T ]his is something special ' I said, 'Asheville Paving is a special customer of ours because I've worked with them for the last 25 years, and they're expecting us back there , they've got a deadline on this equipment to get it in ' And I said. '[W le've got to work this weekend, that 's all there is to it' I said, 'You know this is a job with no blueprints , all of this information was communicated to you by word of mouth 'And it was a field job where just not anyone can take over And I said, '[J just make a little effort this time' I said, 'I'm sure something can be worked out' He said, 'Well, I'll see,' and turned around and walked out " 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On Monday morning, Blackburn was informed that Stagg wanted to see him in the office. Stagg said to him, "You didn't come in Saturday; you didn't come in Sunday; and you didn't call in. I can't put up with it. I'm going to have to let you go." Stagg testified that had Blackburn called in and indicated that he was unable to find anyone to take care of his wife, it would have been the policy of the Company to have excused him.37 At the time Blackburn was dis- charged, Stagg did not ask him the reason for his failure to call in or appear for work on Saturday and Sunday. According to Gregory, if a man was supposed to work and did not show up or did not call in, ordinarily he was given a warning rather than a discharge. Collins knew of no occurrence where an employee had been discharged for refusing to work on Saturday or for failure to call in. Henderson testified that he had been absent on several occasions and had not called in and that no disciplinary action had been taken against him. The Respondent produced two separation notices in which it was stated that the employees had failed to show up for work or call in. In each of the cases, the details were not given. The last day of employment recorded for one employee, Edward Banks, was May 9, 1969. He was not discharged until May 15, 1969. The last day worked by the other employee, Joe Metcalf, was October 24, 1967; he was not discharged until November 17, 1967. There were no other employees who had been discharged for these causes in the period of the last 5 years. Second: ". . . an employer may hire and discharge at will, so long as his action is not based on opposition to union activities." N.L.R.B. v. South Rambler Company, 324 F.2d 447, 449 (C.A. 8). However, the "mere existence of valid grounds for a discharge is not defense to a charge that the discharge was unlawful, unless the discharge was predicated solely on those grounds, and not by a desire to discourage union activity." NL.R.B. v. Symons Manufac- turing Co, 328 F.2d 835, 837 (C.A. 7)38 "A justifiable ground for dismissal is no defense if it is a pretext and not the moving cause." N.L.R.B. v. Solo Cup Co., 237 F.2d 521, 525 (C.A. 8) ". . . the `real motive' of the Employer in an alleged 8(a)(3) violation is decisive." N L.R.B. v. Brown Food Store, 380U.S. 278, 287. "It is the `true purpose' or 37 Blackburn testified without contradiction that he had never called in before 38 The principle was well stated by the Court of Appeals for the Second Circuit in N L R B v Great Eastern Color Lithographic Corp, 309 F 2d 352, 355, enfg 133 N LRB 911 The issue before us is not, of course, whether or not there existed grounds for discharge of these employees apart from their union activities The fact that the employer had ample reason for discharging them is of no moment It was free to discharge them for any reason good or bad, so long as it did not discharge them for their union activity And even though the discharges may have been based upon other reasons as well, if the employer was partly motivated by union activity, the discharges were violative of the Act 19 "Discrimination consists of treating like cases differently " Frosty Morn Meats, Inc v N L R B, 296 F 2d 617, 621 10 While there is sufficient credible direct proof of the Respondent's knowledge of Blackburn's union affections and activities the "small shop theory," imputing knowledge to the Respondent is also applicable See Quest-Shon Mark Brassiere Co, 80 NLRB 1149, 1150, enfd 185 F 2d 285 (C A 2), cert denied 342 U S 812 4i " every equivocal act that was done may be properly viewed in the light of respondent's animus toward the effort to organize its men " `real motive' in hiring or firing that constitutes the test." Loca1357, International Brotherhood of Teamsters [Los Ange- les- Seattle Motor Express] v. N.L.R.B., 365 U.S. 667, 675. "Section 8(a)(3) prohibits discrimination in regard to tenure or other conditions of employment to discourage union membership. . . . It has long been established that a finding of violation under this section will normally turn on the employer's motivation." American Ship Building Co. v. N.L.R.B., 380 U.S. 300, 311. Thus the "real motive" of the Respondent in discharging Blackburn is the relevant consideration in determining whether the Respondent discriminatorily39 discharged Blackburn to "discourage membership in any labor organization." (Section 8(a)(3) of the Act). In this respect it must be considered that the credible record reveals that the Respondent knew40 that Blackburn was a pusher for the Union and that the Respondent strenuously opposed the union organization of its employees.41 The Respondent's opposition to the Union was not of a passive or latent character but manifested itself in the commission of unfair labor practices. More- over, its anxiety at the advent of the Union was of such intensity that it hurriedly assembled its employees in a captive audience to listen to its antiunion position even though its president was on vacation. Under these circumstances, the discharge of a leading union advocate, even though it was for seemingly nondiscriminatory reasons, is a substantial contribution to the objectives of an employer who has been utilizing unfair labor practices as a tactic to chill its employees' union affections. "Obviously the discharge of a leading union advocate is a most effective method of undermining a union organizational effort." N. L. R. B. v. Longhorn Transfer Service, 346 F.2d 1003 (C.A. 5). Thus, if the purpose of the respondent was to thwart the Union's advent by unfair labor tactics, the discharge of Blackburn, a leading union partisan, must have furthered that purpose. That this was the Respon- dent's "real purpose" is apparent from the testimony of President Marlowe. Marlowe was a disingenuous witness. His testimony was contradictory and vacillatory. A review of Marlowe's testimony printed in the margin42 confirms that Marlowe was less than candid in disclosing his full conversation with Stagg on Sunday and withheld important parts thereof N L R B v Houston and North Tesas' Motor Freight Lines, Inc, 193 F 2d 394, 398 (C A 5), cert denied 343 U S 934 42 The testimony is as follows Q Now, you didn't know anything about the union until after you came back from vacation, is that right9 A That's correct, sir s r r r r Q Well, sir, who told you about the union" A Well, when I got to work Monday, Mr Stagg told me about it s r r s r Q Did he tell you he had fired Robert Blackburn A This was later on, sir Q He didn't tell you the day that you got back" A It was later on in the morning I think r r r r r A He told me that Blackburn did not show up for work when he was supposed to [Q I What day of the week was this9 [A I This was on a Monday r s s A He said he had to let him go ASHEVILLE STEEL COMPANY 153 which would have reflected upon the Employer's real motive. Marlowe's handling of his testimony, as well as his demeanor while testifying, are persuasive of the fact that Blackburn's discharge was firmed on Sunday afternoon and that union considerations permeated Blackburn's discharge. The conclusion that union considerations permeated Blackburn's discharge is also supported by the following additional factors. (1) It was an "unreasonable and unnatural act"43 for the Respondent to discharge Blackburn, an excellent employee, whose caliber was such that the Respondent had continued him in employment even though his wife's illness caused him to refuse overtime and Saturday and Sunday work.44 (2) The fact that the Respondent did not preliminarily warn Blackburn that, if he did not report for work on Saturday or call in, he would be subject to discharge, indicates that on Friday the Respondent either did not view such offense as of a severe nature or that the Respondent, reasonably certain that Blackburn would not be available for work, purposely placed his job in jeopardy.45 (3) Prior to the advent of the Union, the Respondent's policy toward Blackburn had been one of understanding and humaneness; it abruptly changed without credible reason when Blackburn's union activities became known. (4) The credible record discloses that the Respondent's need was not urgent in that a replacement was readily available for him 46 (5) As the Respondent had been administering discipline there is no credible proof that an unambiguous rule provided for discharge for Blackburn's offense or that any employee had ever been discharged for a like offense. (6) In effecting Blackburn's discharge the Respondent, apparently having determined its action in advance, made no inquiry of Blackburn as to his reason for not calling in or appearing for work.47 (7) Blackburn had not been given a clear ultimatum that, if he did not call in or appear for work, he would be discharged. Hence the conclusion obtains that the claimed offense of Blackburn was seized on by the Respondent as a pretext to shroud the "real motive" for Blackburn's discharge and that the "real motive" was to discourage membership in a union. By such misconduct the Respondent violated Section 8(a)(3) of the Act. In addition the Respondent's discrimination against Blackburn did not originate with his discharge. The Respondent's indulgence in reprisals against Blackburn commenced with his transfer from the plant where he was usually assigned to the Asheville Paving Company jobsite, the plain purpose of which was to isolate Blackburn, the leading union advocate, from association with other employees; it manifested itself again in the sudden withdrawal of Blackburn's privilege of exemption from weekend work so that he might care for his invalid wife; 48 and finally it was consummated in the actual discharge of Blackburn. The chain of events supports the General Counsel's theory that the Respondent "set Blackburn up for discharge."49 In this respect it is also significant that even though the Respondent knew of Blackburn's wife's incapacitation and the likelihood of his inability to work for such reason, it sought a replacement for him neither [A ] I didn't know anything about it until I came in Monday • • rt # rt Q And Mr Stagg didn't call you up and tell you about it, that he was going to have to fire the number I union pusher9 A No sir, there -was no conversation about number I union pusher • rt # # rt Q He didn't tell you that Blackburn had anything to do with union9 A At that time he didn't know any thing, I didn't know anything about the union • # rt # rt [Q ] Now, between the time you came back on Sunday and a quarter of 8 00 on Monday, had any one contacted you, or had you learned of any union activity whatsoever9 [A ] I think I recall Mr Stagg called me, and that was about it Q But he called you about that on Sunday A He only told me there were some union activities • • # • • Q You weren't curious as to who was pushing n9 A No He didn't know He didn't say anything about it at the time He only said that Blackburn did not show up for work, and that-I said, "Well, Fred, its strictly up to you " rt • • # # A Well, he told me there was some union activities, and he also said that Blackburn didn't show up for work # # • • # Q You were curious, yet you didn't ask him who was pushing these cards, who was pushing this union A I don't recall asking him, no, sir Q Well, You wouldn't deny that you asked him that, will you9 A I can't answer that, I really don't know Q You wouldn't deny that you asked him that9 A I wouldn't deny that I did 43 Cf Magic Chef, Inc, 181 NLRB No 146 14 "The discharge of qualified workers who are also union activists ' is a circumstance of suspicion which may give rise to ajustified inference of violative discrimination' " Betts Baking Co v N L R B, 380 F 2d 199, 204 (C A 10) 45 It was said in E Anthony & Sony, Inc v N L R B, 163 F 2d 22, 26-27 (C A D C ), "If the employer had really been disturbed by the circumstances it assigned as reasons for [the] discharge[s], and had had no other circumstance in mind , some word of admonition, some caution that the offending lapse be not repeated, or some opportunity for correction of the objectionable practice, would be almost inevitable The summariness of the discharge[s] gives rise to a doubt as to the good faith of the assigned reasons " 46 This conclusion is further supported by the fact that thereafter weekend work was not performed on the Asphalt Paving job 47 As the court observed in United States Rubber Company v N L R B, 384 F 2d 660, 662-663 (CA 5). in affirming the Board's finding of discrimination, "Perhaps most damning is the fact that both [employees] were summarily discharged after reports of their misconduct without being given any opportunity to explain or give their versions of the incidents " 48 While the Respondent claimed that it had decided to withdraw Blackburn's exemption from weekend work because of its alleged belief that he had abused the privilege, such claim takes on the nature of an afterthought for certainly the Respondent, if it viewed the charges seriously, would have confronted Blackburn with them 49 The case, J P Stevens & Co v NLRB, 449 F 2d 595 (C A 4), cited and relied on by the Respondent. has been reviewed It may be distinguished in that (1) unlike the Stevens case, Blackburn did not "well" know that his employment included Saturday assignments , unlike the Stevens case, Blackburn had never been warned that his "extra engagement" on weekends "must not interfere with his Saturday obligations to the Company", unlike the Stevens case the withdrawal, on such short notice, of Blackburn's privilege of exemption from Saturday work to attend his invalid wife was not a legitimate management demand but was in reprisal for Blackburn's union affection 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before his assignment nor after he said he "couldn't make it," although employees Jarrell and Joyner were availa- ble.50 CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of the Act. 2. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it will effectuate the purposes of the Act for jurisdiction to be exercised herein. 3. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed them by Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By unlawfully discharging Robert R. Blackburn on March 6, 1972, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent unlawfully discharged Robert R. Blackburn and thereby violated Section 8(a)(3) and (1) of the Act, it is recommended that the Respondent remedy such unlawful conduct. It is recommended in accordance with Board policy51 that Respondent offer Robert R. Blackburn immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings that he may have suffered as a result of the discrimination against him by payment to him of a sum of money equal to the amount he would have earned from the date of his discriminatory discharge to the date of an offer of reinstatement, less net earnings during such period to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and including interest at the rate of 6 percent per annum in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 52 ORDER The Respondent, Asheville Steel Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging concerted activities of its employees or membership in International Association of Bridge , Struc- tural and Ornamental Iron Workers, AFL-CIO, or any other labor organization, by unlawfully discriminatorily discharging any of its employees or by unlawfully discriminating in any manner in respect to their hire or tenure of employment or any term or condition of employment in violation of Section 8(a)(3) of the Act. (b) Unlawfully interrogating its employees regarding their union activities. (c) Unlawfully threatening employees with the loss of their positions or the loss of benefits if the Union were to be selected to represent them. (d) Unlawfully creating an impression of a surveillance of its employees' union activities. (e) Unlawfully encouraging employees to sign petitions against the Union. (f) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing , and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act or to refrain from any and all such activities subject to the union-security requirements of Section 8(a)(3) of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer Robert R. Blackburn immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, discharging, if necessary, any employee hired to replace him, and make him whole for any loss of pay that he may have suffered by reason of the Respondent's discrinuna- tion against him in accordance with the recommendations set forth in the section of this Decision entitled "Remedy." (b) Notify immediately the above-named individual if presently serving in the Armed Forces of the United States, of the right to full reinstatement upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 50 This quotation from the General Counsel's brief is apropos It cannot be said that Respondent did not have compassion for the misfortune that befell Blackburn 's wife Time and again Blackburn declined to work week-ends and gave as his reason therefor the fact that he had to take care of his sick wife Time and time again this reason was accepted by Respondent without serious question in the words of obstensibly benevolent Vice President Stagg "So after all we're not cannibals, so we worked with him and tried to be as decent as possible " However, upon the arrival of the Union and the disclosure of Blackburn as its principal champion, the missionary spirit prevailing theretofore made a hasty departure and Blackburn was unceremoni- ously slated for the pot Si See The Rushion Company, 158 NLRB 1730. 1740 52 In the event no exceptions are filed as provided by Section 102 46 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 ASHEVILLE STEEL COMPANY (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at its Asheville, North Carolina, plant copies of the attached notice marked "Appendix." 53 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by the Respondent's representative, shall be posted by it 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 ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 11, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.54 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act other than those found in this Decision. 13 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 54 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 11, 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 The National Labor Relations Board, after a trial in which all parties were permitted to introduce evidence, found that we discharged Robert R. Blackburn unlawfully and that by his discharge we discouraged employees from becoming and remaining members of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. WE WILL offer Robert R. Blackburn his former job or, if his job no longer exists, a substantially equivalent position. WE WILL restore his seniority and pay him any backpay he lost because we discharged him. 155 WE WILL NOT discharge any employee for the same reasons for which the Board found that we discharged the above-named employee WE WILL NOT unlawfully discharge employees for lawfully engaging in union activities or protected concerted activity. WE WILL NOT unlawfully interrogate our employees with respect to their union activities. WE WILL NOT unlawfully threaten our employees with loss of their positions or with loss of benefits if the Union is selected to represent them WE WILL NOT unlawfully create the impression that we are spying on our employees' union activities WE WILL NOT encourage our employees to sign petitions against the Union. The laws of the United States give all employees these rights: To organize themselves To form, join, or help unions To bargain as a group through representatives they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any and all of these things subject to the union-security requirements of Section 8(a)(3) of the National Labor Relations Act, as amended. All of you are free to remain or refrain from becoming or remaining members of a labor organization. ASHEVILLE STEEL COMPANY (Employer) Dated By (Representative) (Title) We will notify immediately the above-named individual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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, 1624 Wachovia Building, 301 North Main Street, Winston- Salem, North Carolina 27101, Telephone 919-723-2300.