Florida Steel Corp.

FLORIDA STEEL CORP 587 Florida Steel Corporation and United Steelworkers of America, AFL-CIO Cases 12-CA-6883 and 12- CA-6958 June 10, 1976 DECISION AND ORDER By MEMBERS FANNING, PENELLO, AND WALTHER On February 23, 1976, Administrative Law Judge Thomas D Johnston issued the attached Decision in this proceeding Thereafter, 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 Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Florida Steel Corpora- tion, Tampa, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Ad- ministrative Law Judge's recommended Order i Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board s established policy not to over- rule 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 are incorrect Standard Dry Wall Products Inc 91 NLRB 544 (1950), enfd 188 F 2d 362 (CA 3, 1951) We have carefully examined the record and find no basis for reversing his findings Although Respondent also excepted to the Administrative Law Judge's finding that a tape recording made by Superintendent Malinowski during an investigative interview with employee William Tackett, was not clearly audible enough to make findings based thereon, and therefore he excluded it we find that the admission of tape recordings is within the sound discretion of the Adminis- trative Law Judge and that there has been no showing that he abused such discretion United Steelworkers of America, AFL-CIO (herein re- ferred to as the Union), in Case 12-CA-6883 on August 14 and in Case 12-CA-6958 on October 8, and a complaint issued on November 7 and an amendment to the complaint issued on November 20 The amended complaint, which was further amended at the hearing, alleged that Florida Steel Corporation (herein referred to as the Respondent) violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (here- in referred to as the Act), by interrogating an employee concerning his union membership and desires, threatening an employee with more onerous working conditions if the Union were successful in organizing Respondent's opera- tions, polled employees concerning whether they support- ed the Union and requested them to show their allegiance to Respondent by having their pictures taken with signs opposing the Union, discriminatorily assigning Miguel Hernandez to the more arduous and dangerous task of painting a crane, discriminatorily refusing to promote Mi- guel Hernandez to the position of mobile equipment me- chanic because of his union or concerted activities, and by discriminatorily discharging and refusing to reinstate Wil- liam Tackett because of his union or concerted activities Respondent in its answer to the amended complaint 2 which was filed on November 28 and was further amended at the hearing denied having violated the Act It admitted Tackett was discharged on or about July 30, and that Her- nandez was not promoted to the position of mobile equip- ment operator The issues are whether Respondent violated Section 8(a)(1) and (3) of the Act by unlawfully interrogating, threatening, or polling its employees with respect to their union activities, whether Respondent discriminatorily as- signed Hernandez the task of painting the crane and re- fused to promote him because of his union or concerted activities, and whether Respondent discriminatorily dis- charged Tackett and denied him reinstatement because of his union or concerted activities The parties at the hearing were afforded full opportunity to introduce relevant evidence, to examine and cross-exam- ine witnesses, to argue orally on the record, and to submit brief s Upon the entire record 3 in this case and from my obser- vation of the witnesses, and after due consideration of the briefs filed by the Respondent and the Charging Party and the oral argument of the General Counsel,' I hereby make the following FINDINGS OF FACT DECISION STATEMENT OF THE CASE THOMAS D JOHNSTON, Administrative Law Judge These consolidated cases were heard at Tampa, Florida, on De- cember 11 and 12, 1975,1 pursuant to charges filed by the i All dates referred to are in 1975 unless otherwise stated I THE BUSINESS OF THE RESPONDENT Respondent, a Florida corporation, with its principal of- fice and place of business including plants located at Tam- pa, Florida, is engaged in the business of manufacturing and fabricating steel products During the 12-month period 2 Respondent s original answer was filed on November 17 3 The General Counsel s unopposed motion dated January 12 1976 to correct the record is hereby granted 4 The General Counsel did not file a brief 224 NLRB No 78 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD preceding November 7, a representative period, Respon- dent in the course of its operations purchased and received goods, supplies, and materials valued in excess of $50,000, at its Florida facilities, directly from points located outside the State of Florida Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that the United Steel- workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES A Background Respondent operates certain plants located at Tampa, Florida, which are the only facilities involved in this pro- ceeding, where it is engaged in the business of manufactur- ing and fabricating steel products Included among Respondent's supervisory personnel are Andrian Youngblood, who is superintendent of the miscel- laneous plant, Donald Welch, who is superintendent of culvert plant, Daniel Malinowski, who is the area traffic superintendent, Manuel Bondi, who is a supervisor in the miscellaneous plant, William Wyatt, who is a supervisor in the miscellaneous plant, Thomas Marsden, who is a super- visor in the traffic division, Donald Dupree, who is a su- pervisor in the traffic garage, William Ridgeway, who is a supervisor in the traffic garage, and James Weidman 5 The Union is engaged in an organizing campaign among Respondent's employees at its Tampa, Florida, plants and the unfair labor practices herein discussed arose out of those proceedings B Interrogations, Threats, and Polling of Employees Donald Brans, an employee in the melt shop, testified that about the latter part of May or June his supervisor, James Weidman, asked him how he felt about the Union Upon replying he was for it, Weidman asked whether he had ever attended any union meetings whereupon he in- formed him he had not Weidman 6 did not testify and I credit the undemed testimony of Brans and find that Su- pervisor Weidman coercively interrogated him concerning how he felt about the Union and whether he had attended union meetings David Hobley, Jr, employed as a vat tender under Su- perintendent Welch, testified that in July the furnace for the vat had gone out and unable to do his regular work, he was assigned cleanup work Hobley stated Superintendent Welch, after remarking to him the vat was out and he 5 Respondent admits and I find that Superintendent Youngblood Su permtendent Welch Superintendent Mahnowski Supervisor Dupree Su pervisor Bondi, Supervisor Wyatt, Supervisor Marsden, Supervisor Ridge- wa6y and James Weidman are supervisors within the meaning of the Act Brans stated Weidman no longer worked for the Respondent could shut the department down and send him home, told him he was not going to do that and it ought to teach him how to vote when voting day came Superintendent Welch denied making the remarks attri- buted to him by Hobley His version was, after instructing Hobley and another employee, Herbert Hicks, to clean up the vat area, Hobley's response was he had cleaned the place up yesterday After informing Hobley he did not care what he had done yesterday and wanted him to clean it up because the vat was down, Hobley again mentioned he had cleaned it up yesterday whereupon he told Hobley if he did not clean it up he would shut the vat down and he could punch the clock and go home I credit the testimony of Hobley rather than Superinten- dent Welch and find that Superintendent Welch threat- ened Hobley with loss of work should he vote for the Union Apart from my observations of the witnesses in crediting Hobley, Welch's threat is consistent with other unlawful conduct engaged in by him discussed infra Hobley further testified prior to an election scheduled in August he attended a meeting of employees and their com- mittee held in the company trailer which started about 11 30 a in I During the meeting Hobley stated Superinten- dent Welch came to the door and told everybody to come out because they were going to make some pictures As the employees came out, Welch handed them "vote no" signs and told them to hold them up and go down and take pictures According to Hobley, most of the employees in- cluding himself did what Welch told them and had their pictures taken Hobley denied he was ever asked whether he wanted to be in the picture or had any prior knowledge pictures would be taken Superintendent Welch, who is over the culvert plant which employs approximately 25 employees, acknowl- edged he had arranged to have the pictures taken and for the photographer who did other work for the Respondent and was sure the Respondent had paid him He also pre- pared the "vote no" signs which he gave to employees Welch stated while the employees were having a meeting which he did not attend he told them the photographer was there and for everybody who wanted to get their pictures taken to come out He admitted he did not explain to them what was going to be done with the pictures According to him some of the employees took the "vote no" signs from him while others did not and some did not have their pic- tures taken Both Welch and the plant foreman appeared in the picture with the employees Welch's explanation for having the pictures taken was because about July four or five employees 8 had asked him if they could sign a petition and wanted a picture taken like the employees of the Jacksonville, Florida, plant had sent to Tampa He informed them they could if they wanted to on their own time I credit Hobley's version of what was said to the employ- ees by Superintendent Welch rather than Welch's version Johnny Oliver, an employee in the miscellaneous plant, testified that about 10 45 a m one morning, while having lunch in the company trailer, Charlie Moore, another em- 7 The employees lunch period began at 12 noon 8 These employees were not identified FLORIDA STEEL CORP 589 ployee, entered the trailer and asked them whether they had guts enough to take their pictures and come down and vote no against the Union, whereupon most of the employ- ees present threw up their hands There were no supervi- sors present Oliver stated that, shortly after the 2 p in break ended that same day and the employees had re- turned to their work areas, he heard the foreman tell the employees to go and take some pictures, whereupon the employees and all the supervisors went to the trailer area where he observed a photographer, who had previously taken pictures for the Company, take their pictures with their thumbs down Oliver stated he remained on his as- signed job while the pictures were being taken Oliver identified Supervisor Bondi 9 as one of the super- visors he heard make this statement to the employees He stated Bondi was about 30 to 40 feet from his office on the east side of the shop and coming up the aisle about 10 or 15 feet away from him Oliver further contended that, al- though he did not hear what Supervisor Wyatt said, he could tell by reading Wyatt's lips that Wyatt had told the guys to come on Superintendent Youngblood's version was that while in his office during the lunch period between 11 30 a in and 12 noon,10 along with Supervisors Wyatt, Bondi, and Ron- nie Niehaus, he noticed employees in the plant stirring around and looking toward the culvert plant From his of- fice window he observed that employees at the culvert plant were lining up to have their pictures taken holding "vote no" placards by the photographer who took pictures for the Company He stated he then observed some of his employees heading towards the lunch trailer when some of them knocked on the office door and window giving them a "let's go sign," whereupon he and the other supervisors present took their suggestion and they walked in a group to the lunch trailer where they had their pictures taken with the employees Youngblood denied giving any instructions to the employees or making any motions towards them and stated he did not observe any of the other supervisors mo- tioning to the employees He acknowledged they returned to work about 10 minutes after the lunch period had end- ed Youngblood estimated between 50 and 60 employees appeared in the picture along with Supervisors Wyatt, Bon- di, Niehaus, and himself Youngblood denied having any knowledge why the photographer was going to be there or of picture taking Supervisors Wyatt and Bondi corroborated Superinten- dent Youngblood's testimony concerning the incident and denied having said anything to or motioning to the em- ployees about having their pictures made I credit the testimonies of Superintendent Youngblood, Supervisor Wyatt, and Supervisor Bondi rather than John- ny Oliver whom I discredit Besides, from my observation of the witnesses Oliver contradicted his own testimony The parties at the hearing stipulated that a handbill con- taining pictures, including those taken at the culvert plant and the miscellaneous plant, was used by the Respondent in its campaign during August and was distributed to the 9 Oliver first stated he did not hear what Supervisor Bondi had said 10 Superintendent Youngblood placed this incident as having occurred in October employees This handbill, captioned "Tampa Employees React To Union Pitch With Thumbs Down," contained pictures of three groups of employees including those at the culvert plant and the miscellaneous plant and con- tained in part the following statement When these pictures were taken on August 5, 1975, these Florida Steel employees had just been given cop- ies of a Two-YEAR-OLD picture of Charlotte employees in happier days (when some of them thought the union might deliver on some glowing promises) Tampa em- ployees thought this was an insult to their intelligence and wanted their pictures taken to show how THEY felt about union promises The handbill also depicted at the bottom a vote no square marked with an "X " Based upon the admissions by Superintendent Welch, the stipulation of the parties concerning the handbill, and the credited testimony of Hobley, I am persuaded and find that about August 5 Respondent was responsible for hav- ing its employees pose for antiunion pictures for the Respondent's use, the effect of which was to poll the em- ployees concerning whether they supported the Company or the Union C William Tackett's Discharge William Tackett was employed by the Respondent from January 1974 until his discharge on July 30 He worked as an auto truck mechanic under the supervision of Supervi- sor Ridgeway Tackett testified he participated in a union organizing campaign in the shop including wearing a union button and insignia and, as a result of reprimands which he had received from the Respondent, unfair labor practice charges were filed on his behalf by the Union Superinten- dent Malinowski acknowledged he was aware of Tackett's union activities, having observed him wearing a union but- ton, and of the charges filed in his behalf Tackett stated on July 29 he brought a piece of key- stock," which he had purchased from Ace Hardware for about $1, to work with him During his lunch hour and last break period he punched 24 holes in the keystock with a center punch, drilled them with a variable drill, and tapped them out with a tap Except for the tap which he obtained from the parts room, the company tools he used were al- ready there The keystock was used to make a buzz bar for his fuse box James Graham, another auto truck mechanic, corroborated Tackett's testimony by stating he had ob- served Tackett doing this work during his lunch period and last break According to Tackett, after leaving the plant the next morning when he got off work, he remembered leaving the keystock along with his pliers in the cafeteria, whereupon he telephoned Supervisor Marsden and requested him to give them to another employee for him Supervisor Mars- den acknowledged Tackett had requested him to pick up some tools he had left in the cafeteria and give them to another employee 11 This was a piece of soft steel about 12 inches in length by a half inch 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tackett stated upon returning to the plant later that day that Supervisor Marsden informed him he could not have the keystock and said he was going to keep it so they could take a look at it, and he would have to pick it up from Supervisor Ridgeway He informed Marsden it was his piece of keystock and, if he did not get it back, somebody was going to pay for it When Marsden asked whether he had a receipt, he told him he did 12 Supervisor Marsden's version was he told Tackett he was going to keep the keystock, told him he was curious, and asked where he got it When Tackett replied he had bought it he asked him whether he had a receipt, whereupon Tack- ett replied he did but did not have it on him Marsden stated he told Tackett to bring the receipt in that afternoon and Supervisor Ridgeway would give him his keystock 13 Tackett informed him the keystock belonged to him and he intended to have it back Supervisor Marsden stated that after Tackett left he showed the keystock to Superintendent Malinowski and told him it looked a lot like the stuff they had in stock and took a long time to drill those holes Malinowski instructed him to draw up a statement and sign it which he did and gave to Mahnowski Marsden admitted he could not identify the keystock as company supplies, had no idea of its cost, it could have been purchased at any number of places, and it was the same as any other company's keystock Superintendent Malinowski, who obtained the keystock from Marsden, confirmed his report and stated he in- formed Supervisor Ridgeway of the incident and told him since more than one supervisor was involved he would in- vestigate the case himself and instructed him to send Tack- ett to his office Tackett testified that, upon reporting to Superintendent Malinowski's office, Malinowski asked him in the presence of Supervisor Ridgeway 14 about the keystock, whereupon he told Malmowski it was his After informing Malinowski pursuant to his inquiry he did not have a receipt, Malinow- ski said he heard he was supposed to bring a receipt His response was he did not know anything about it Malinow- ski accused him of getting the piece of keystock out of the parts room and said he had a sworn statement from the parts man he had gotten it there Tackett stated he in- formed Malinowski that was not the same piece of key- stock he had gotten from the parts room 15 During the con- versation Malmowski asked him when he had worked on the keystock Upon replying during his lunch break and last break, Malinowski said there was no way possible he could do that much work in that short of a time Malinow- ski then informed him he would get back in touch with him Superintendent Malmowski's version of the conversation was, after telling Tackett he had a piece of keystock which 12 According to Tackett the receipt was a cash register receipt which had been thrown away in the bag 13 Tackett did not remember whether Supervisor Marsden had told him to bring the receipt to Supervisor Ridgeway 14 Supervisor Ridgeway did not testify 16 According to Tackett the previous day he had obtained a five six- teenth piece of keystock from the parts room which he had used to make a tool for use in prying seals This tool was identified at the hearing he understood belonged to him and he had told Marsden he had a receipt for it, he asked whether it was true Tack- ett replied it was However, when asked whether he had the receipt with him, Tackett replied he did not Malinowski testified he asked Tackett where he got it, whereupon Tackett told him he had found it in the shop 16 After telling Tackett it was difficult to believe he had found it in the shop, Tackett said there were all kinds of it lying around out there He told Tackett he had a statement from the parts keeper that Tackett had requested a piece of keystock out of the parts room the night before, whereupon Tackett informed him that was not the piece which he had made a tool out of and had it in his tool box 17 Upon asking Tack- ett if he just went around picking up the company property and making things for his personal use, Tackett said he had overheard Mr McLindon telling someone else if they saw anything lying around why buy it when they could just pick it up and help themselves 18 He told Tackett he had found that hard to believe and asked whether he had made it on company time or during working hours, whereupon Tackett informed him he had made it during his lunch break and a 10-minute break Upon asking whether he had drilled and tapped the holes and made the center punches in 40 minutes, Tackett informed him he had and had used a variable high speed drill bit -Pursuant to his inquiries Tackett told him he had used company tools which he had gotten from the parts room without the permission or knowledge of his supervisor 19 He told Tackett he was going to look into the matter further and would let him know his decision Superintendent Malmowski admittedly did not know the value of the keystock which he estimated was valued about $2 and acknowledged it was a common product which could be purchased outside the plant Malinowski testified, upon reviewing Tackett's file, he decided to terminate him for the reason of misuse and pos- session of company property without authorization and be- cause he had two previous suspensions in his file Accord- ing to him, because of the two prior suspensions which were not further identified, he either had a choice of termi- nating or suspending Tackett, but since the two previous suspensions had done no good he felt termination was in order Malinowski stated, after making his decision, he dis- cussed it with his supervisor, Division Manager McLendon, who agreed 20 Tackett testified that that afternoon he had another con- versation with Superintendent Malinowski in his office with Supervisor Ridgeway present Malinowski again asked him if that was his keystock After replying it was, Malinowski asked him whether he wanted to change his story, whereupon he informed him he did not Following some further discussion which he could not recall Mali- nowski told him he was going to have to terminate him for 16 Tackett denied ever telling Superintendent Malinowski he had gotten the keystock from the scrap pile 17 Malmowski identified the keystock Tackett gave him which he had made the tool from 18 Tackett denied having made such statements, although he believed Mc- Lindon's name was mentioned during one of the conversations 19 Under cross-examination Tackett believed he was asked if he had got- ten permission from Ridgeway to use the drill and he told him no 20 Division Manager McLsndon did not testify FLORIDA STEEL CORP 591 unauthorized use of company equipment and material and informed him he would give him 10 minutes to get off the company property Superintendent Malmowski's version was he told Tack- ett in the presence of Supervisor Ridgeway he had reached the decision and asked him whether he had any other com- ments regarding the keystock, whereupon his response was he did not He told Tackett he had reviewed his record which already had two suspensions and he was terminating him for misuse and possession of company property He also acknowledged telling Tackett to clean out his toolbox, turn in his gear, and he would like for him to get off the property in 10 minutes if possible I credit Tackett's ver- sions of his conversations with Superintendent Mahnow- ski Apart from my observations of the witnesses, Supervi- sor Ridgeway, who was present at both conversations, was not called to corroborate Malmowski's testimony nor was any explanation offered for the failure to call him as a witness Since his termination Tackett has not been reinstated The company rules 21 Tackett was alleged to have violat- ed leading to his dismissal provided as follows 25 Removal of Company property of any kind without a property pass from an authorized Company representative 34 Unauthorized use or possession of Company property, equipment or materials The General Counsel presented several witnesses who testified during their own time including break periods they had worked on their own property using company tools and equipment Tackett testified he had previously done such work and had observed other employees doing it on their break peri- ods About 8 months ago he cleaned a set of car heads in the engine room using a company valve grinder and valve spring compressor during his break period and at the end of the shift, which both Supervisor Ridgeway and Supervi- sor Marsden had observed without saying anything to him On another occasion he and another employee Bob Blair worked on a motorcycle head using a company grinder and valve seater after quitting time and Supervisor Ridgeway participated by trying to show them how to do it He also saw another employee nicknamed "Woody" use a compa- ny lathe to make a piece for skindiving equipment and when Supervisor Ridgeway asked Woody what he was doing Woody told him Tackett stated another employee John Paris made an anchor for his boat during lunch hour using a torch while the foreman, who was sitting in his office, could see him Tackett testified about twice a week he observed employees on their own time working on their own property such as grinding lawnmower blades on the company grinder James Graham stated about May he fixed a flat tire for his vehicle using company tools and at the time informed Supervisor Ridgeway what he was doing He also testified about February or March after the shift ended he used a 21 Superintendent Malinowski testified and several employees, including Tackett, Graham, and Norton, acknowledged the Company had written rules posted company bench grinder and ark welder to repair a cracked manifold for a friend and Ridgeway saw him Graham also stated he observed other employees on their own time us- ing company equipment working on such things for their personal use as sharpening gardening tools, lawnmower blades, and aiming headlights Graham stated about March or April he observed Tackett and Bob Blair using company tools to fabricate a trailer hitch and about 6 weeks prior to the hearing in December he saw John Paris replacing a set of valves using a valve grinding machine Graham denied ever asking his supervisor' s permission and although his supervisor saw him performing such work he stated he was never given any warnings According to Gra- ham, Supervisor Ridgeway characterized such work as gov- ernment jobs Theodore Arden testified he had worked on his own equipment during his own time on about two or three occa- sions within the last year and had observed other employ- ees working on carburetors or generators using company fluid to clean the carburetors About 1 to 2 years ago he also used company tools and cleaning solvent to overhaul a carburetor and generator Howard Norton, an employee of the melt shop, testified that about 3 weeks before the hearing, in December, he made a lamp and stand using company materials, includ- ing a three-eighth pipe and small piece of stock and a com- pany welder and torch, while his supervisor, Paul Young, watched him without saying anything Norton denied hav- ing asked permission Norton stated that within the 6-week period prior to the hearing in December, he had also weld- ed a trailer towbar on his break using a company grinder and welder, without asking permission, and Supervisor Young also saw him Norton further stated Young worked on his own things using the same equipment and within the last few weeks prior to the hearing he had observed other employees on about a dozen occasions working on their own property using company tools Superintendent Malinowski claimed he had no knowl- edge whether employees worked on their own products during breaktimes in the shop and the other supervisors whom these employees stated had observed them, namely, Supervisors Ridgeway, Marsden, and Young, did not deny such instances had occurred Therefore, I credit the undis- puted testimonies of Tackett, Theodore Arden, James Gra- ham, and Howard Norton and find that the employees during their break periods worked on their own property using company tools and equipment without the permis- sion of the supervisors and, although the supervisors had knowledge of such incidents, they had permitted such prac- tices notwithstanding any company rules to the contrary D The Failure To Promote Miguel Hernandez Miguel Hernandez was employed by the Respondent as an auto truck mechanic and worked under the supervision of Supervisor Dupree He was active in the Union and Superintendent Mali- nowski acknowledged he had observed him wear a union button and believed he was for the Union On September 28, Joe Pugliese and Fred Hutchinson were promoted from their positions as auto truck mechan- 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ics to the next highest position which was that of mobile equipment mechanic Pugliese was hired as an auto truck mechanic on July 11, 1972, and Hutchinson, who was hired on September 22, 1969, was promoted to auto truck me- chanic on July 11, 1972 Hernandez who had applied for and was considered along with Pugliese and Hutchinson for promotion to mobile equipment mechanic was hired on June 5, 1967, and promoted to auto truck mechanic on July 14, 1973 Thus, while Hernandez had more seniority than both Pugliese and Hutchinson, they had more job seniority as auto truck mechanics than Hernandez Superintendent Malinowski testified that Pugliese, Hutchinson, and Hernandez were each considered for pro- motion to the two available positions of mobile equipment mechanic His selection of Pugliese and Hutchinson for promotion rather than Hernandez was based on the recom- mendations of the two line supervisors, Supervisor Dupree and Supervisor Ridgeway, and he testified they were pro- moted on the basis of job seniority since he felt that all three of them were qualified According to Malinowski, under company policy, promotions are considered in de- scending order on the basis of qualification, job seniority, and then company seniority Superintendent Malmowski stated about a week before the promotions he discussed the matter with Supervisor Dupree in the presence of Eric Johansen,22 and, upon ask- ing Dupree for his recommendation concerning which two of the three employees being considered should be promot- ed, Dupree selected Hutchinson as his first choice because he thought he was the best qualified, and for a second choice Dupree informed him he did not have much knowl- edge about Pugliese and would have to select Hernandez who he felt was qualified and could be moved up Dupree informed him he would have to ask Supervisor Ridgeway about Pugliese Supervisor Dupree, who stated both Hutchinson and Hernandez worked under his supervision while Pugliese worked on another shift under Supervisor Ridgeway, cor- roborated Malinowski's testimony According to Dupree he had recommended Hutchinson because of his perfor- mance and capabilities and being able to get the job done Supervisor Dupree impressed me as a credible witness and I credit his testimony concerning his recommendations Superintendent Malinowski testified that that same day, in the presence of Johansen, he asked Supervisor Ridge- way 23 for his recommendations between the three employ- ees being considered, whereupon Ridgeway recommended Hutchinson who he had worked with and Pugliese because he knew of his qualifications According to Superintendent Malmowski, upon making his decision the following day, he informed Supervisor Du- pree that all three men were qualified for promotion but, based on seniority in their job classification, he was pro- moting Hutchinson and Pugliese on their respective shifts Supervisor Dupree corroborated Malmowski's testimony concerning the reasons given him Hernandez testified that about a week after the promo- tions Supervisor Dupree called him in the office and first 22 Eric Johansen who worked in personnel did not testify 23 Supervisor Ridgeway, as noted supra did not testify informed him that Hutchinson and Pughese were promot- ed because they were better qualified, however, after talk- ing to someone on the telephone, Dupree grabbed a piece of paper and told him according to the records they had more job seniority than he did Upon asking Dupree who was next in line, Dupree informed him he did not know but would check Supervisor Dupree's version was he informed Hernandez the reason was they felt the employees who had been in the job classification the longest were better qualified and it was more fair to give it to them, whereupon Hernandez' response was he was not expecting a promotion Dupree stated he informed Hernandez pursuant to his request he would find out how he stood in line for a promotion After picking up the telephone and calling Malinowski, who was not in, he hung up and informed Hernandez he could not get an answer but would give him an answer later Supervisor Dupree testified that after checking he subse- quently informed Hernandez he was next in line for pro- motion to mobile equipment mechanic with job seniority in that classification Hernandez acknowledged Dupree in- formed him a few days later he was next in line for promo- tion Under the Company's training program for promotions employees are assigned to work with employees in higher job classifications to obtain knowledge This includes as- signing auto truck mechanics to work with mobile equip- ment mechanics as well as with heavy mobile equipment mechanics, which is the next highest job classification The latter classification of employees perform work on all heavy mobile equipment including overhead cranes, diesel and electric cranes, and track mobiles Insofar as the skills required for mobile equipment mechanics are concerned, Malinowski stated it requires a background in hydraulics and the ability to work on any type mobile equipment such as tow motors and minor problems on cranes Both Her- nandez and Ajimiro Valdez, who was a heavy mobile equipment mechanic, agreed skills in hydraulics were re- quired Hernandez testified that for about the last 2 years, up until 2 or 3 months prior to the hearing held in December, he had worked with Cephas Wilson,24 who was a heavy mobile equipment mechanic, during which period he ob- tained experience concerning mobile equipment and heavy mobile equipment repair work, which included repairing tracks, bulldozers, cranes, mobile cranes, locomotive cranes, and tow motors Except for the cranes and bulldoz- ers, which he classified as heavy mobile equipment, the other equipment was classified as mobile equipment Ac- cording to him he spent approximately 75 percent of his time performing work on mobile equipment and heavy mo- bile equipment 25 and the remainder cleaning trucks and cars in the auto truck mechanic classification 26 Hernandez testified that Hutchinson first started work on heavy mobile equipment about 6 months ago and he 24 According to Hernandez, he then continued to perform the same kind of work with another heavy mobile equipment mechanic 25 Supervisor Dupree acknowledged Hernandez had spent more time working on heavy mobile equipment than Hutchinson 26 Hernandez stated he had also taken a master mechanics course of which the Respondent had knowledge FLORIDA STEEL CORP 593 had to show him what he knew including how to adjust swing bands on a crane He denied ever working with Pug- liese The General Counsel presented two other witnesses con- cerning Hernandez' qualifications for promotion Ajimiro Valdez, who acknowledged he had never worked with Pugliese, testified that he had worked with both Hutchinson and Hernandez, who, in his opinion, was more experienced According to Valdez, about a year ago he worked with Hutchinson overhauling a crane Although he stated Hutchinson was a good welder he testified Hutchinson could not adjust bands which Hernandez could and did not know about certain things in the electri- cal field like changing wires, which Hernandez did, and he also had to explain to Hutchinson how to assemble the gears However, Valdez admitted he did not know whether Hutchinson had worked on a crane before that occasion although Hutchinson had worked with him on mobile equipment many times Theodore Arden, a heavy equipment mechanic, testified Howard Lamb who had been replaced by Supervisor Du- pree had informed him the Company felt they wanted a younger man to work on heavy equipment and asked him if it was all right with him he would like for Hernandez to go out on the job with Wilson to train 27 Arden stated he had worked with both Hernandez and Hutchinson on mobile equipment and heavy mobile equip- ment 28 and believed Hernandez had more experience working on cranes and was better qualified because he got to the problem and had more experience However, under cross-examination Arden admitted he had only observed Hutchinson a couple of times working on the crane since October and had only observed Pughese on one occasion, which was 2 or 3 weeks before Thanksgiving, and that both the work of Hutchinson and Pugliese on those occasions was satisfactory E Hernandez' Assignment To Paint The Crane Hernandez testified a couple of months prior to the hear- ing held in December that Supervisor Dupree told him and Jimmy Valdez,29 a heavy mobile equipment mechanic with whom he had been working overhauling a crane, that they would have to paint the crane 30 After he and Valdez went over to the crane and Valdez informed him he was not going to paint it, Hernandez stated he asked Supervisor Dupree why Rick Quiroz could not paint it When Dupree asked if he was refusing, Hernandez stated he returned and painted the crane which took 2 to 3 days According to Hernandez, there was no scaffolding and the job was dan- gerous 31 Supervisor Dupree testified, after preparing the work order, that he gave it to Valdez in the presence of the shift including Hernandez, and instructed Valdez he want- ed the bottom part of the crane painted and for Hernandez to assist him Dupree denied Hernandez questioned him about why the regular painters did not paint the crane The work order was dated October 1 Dupree stated his reasons for assigning them to paint was because they had been doing repair work on the crane and they were overloaded with painting work while mechanical work was slow Hernandez who stated he had never painted before or used a spray gun testified when he started to paint Ricki Quiroz showed him how and told him if he needed any help to let him know Hernandez further testified Quiroz told him he was not too busy Quiroz, who normally paint- ed cranes, testified that at Hernandez' request he showed him how to prepare the paint and use the spray gun How- ever, he denied having any conversations with Hernandez concerning how busy he was and stated this occurred while he was putting a camper on a pickup truck and doing body work on the bed and the only other paint and bodyman, Jimmy Simmons, was painting a truck Quiroz corroborat- ed Supervisor Dupree's testimony they were behind in their work in the body shop I credit both Supervisor Dupree and Quiroz who I find were credited witnesses rather than Hernandez Apart from my observations in not crediting Hernandez on occasions, he contradicted his own testi- mony Both Supervisor Dupree and Quiroz testified that Quiroz was subsequently assigned to paint the boom on the same crane 32 According to Dupree they were caught up in the body shop and Hernandez was put on another job Although Hernandez did not remember seeing mechan- ics painting cranes before, he admitted he did not know who painted them and had never seen a crane that size painted in the shop Theodore Arden, a heavy equipment mechanic, testified that, while in the last 4 or 5 years he had never seen mechanics painting cranes, he acknowl- edged about 6 or 7 years ago he had painted some trailers Arden also claimed heavy equipment had only been paint- ed in the shop on a few occasions when they overhauled cranes Supervisor Dupree, while acknowledging that painting was not normally part of a mechanic's duties, testified it was not unusual to assign them such work if required and he had previously assigned auto truck mechanics and heavy mobile equipment mechanics to paint vehicles, and had done it himself when he worked in those job classifica- tions Included among examples given by Dupree were as- signments made in April for Arnold Gordon, an auto truck mechanic, to perform painting work on a crane which was being overhauled and painted and for Cephas Wilson, a heavy mobile equipment mechanic, to perform painting on a crane Respondent's records corroborated Dupree's testi- mony concerning the painting assignments of both Gordon and Wilson Further Quiroz also testified he had observed Arnold Gordon and Don Brown, who he also believed was a mechanic at the time, painting a crane in July 27 The date of this conversation was not established 28 Arden testified he had also worked with Pugliese but not too much 29 Supervisor Dupree stated Jimmy Valdez' first name is Avery 3s Hernandez subsequently stated he was not sure whether Valdez was present when the assignment was made 3i Since Hernandez did not paint the boom of the crane , as discussed infra, and a spray gun was used to paint, the evidence failed to establish how the work involved was dangerous F Analysis and Conclusions General Counsel contends, while Respondent denies, that Respondent violated Section 8(a)(1) and (3) of the Act 32 The work order was dated November 3 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by unlawfully interrogating, threatening, and polling its employees with respect to their union activities and dis- criminatorily refused to promote Hernandez and assigned him the task of painting a crane and discriminatorily dis- charged and refused to reinstate Tackett because of their union or concerted activities Upon the requests of the General Counsel and the Union at the hearing I have taken official notice of prior Board decisions involving the Respondent's Tampa, Flori- da, facilities, namely, Florida Steel Corporation, 220 NLRB 225 (1975), and Florida Steel Corporation, 215 NLRB 97 (1974) 33 Section 8(a)(1) of the Act prohibits an employer from interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act Section 8(a)(3) of the Act provides in pertinent part "It shall be an unfair labor practice for an employer by discrimination in regard to hire or tenure of employ- ment or any term or condition of employment to encour- age or discourage membership in any labor organization 19 Based on my findings set forth supra, Supervisor Weid- man coercively interrogated Donald Brans concerning how he felt about the Umon and whether he had attended union meetings, Superintendent Welch threatened David Hobley, Jr, with loss of work should he vote for the Union, and Respondent was responsible for having its em- ployees pose for antiunion pictures for Respondent's use, the effect of which was to poll the employees concerning whether they supported the Company or the Union The test applied in determining whether a violation of Section 8(a)(1) of the Act has occurred is "whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act " Electrical Fittings Corporation, A Subsidiary of I-T-E Imperial Corporation, 216 NLRB 1076 (1975) Ap- plying that test, I find that the Respondent by interrogat- ing, threatening and polling its employees as enumerated supra, has interfered with, restrained, and coerced its em- ployees in the exercise of their rights guaranteed in Section 7 of the Act and has thereby violated Section 8(a)(1) of the Act The next issue is whether Tackett was discriminatorily discharged and denied reinstatement because of his union or concerted activities Under the law, if an employee's discharge is motivated by antiunion design, such discharge is violative of the Act even though the employee has performed misdeeds which would warrant his dismissal Frosty Morn Meats, Inc v N L R B, 296 F 2d 617, 620 (C A 5, 1961) Direct evidence of discriminatory motivation is not necessary to support a finding of discrimination and such intent may be inferred from the record as a whole Heath International Inc, 196 NLRB 318 (1972) Respondent's asserted reasons for discharging Tackett, whose union activities were admittedly known to the Re- 33 Although the Union further requested that I take official notice of prior Board decisions involving Respondent's other locations inasmuch as no evi- dence was proffered to show the relationship of such facilities to the Tampa Florida, facilities, no notice has been taken of such decisions spondent, was for misuse and possession of company prop- erty without authorization and because of two previous suspensions in his file However, these suspensions were not offered in evidence or further identified and the undis- puted evidence established that the company rules Tackett allegedly violated resulting in his discharge had not been enforced previously, notwithstanding Respondent's super- visors were aware that employees on their own time and without permission had worked on their own personal property using company tools and equipment Moreover the accusation levied against Tackett that he had used a piece of keystock obtained by him from the partsman to drill the holes in was refuted by both the credited testimo- ny of Tackett and the production of a tool which he had made from that particular piece of keystock Further, since the rules relating to the alleged reason for his discharge had never been enforced, no logical explanation was proffered to explain why the investigation had been initiated or con- ducted against Tackett over the keystock Admittedly, Re- spondent could not identify the keystock which could have been purchased elsewhere as being company property and there was no evidence Tackett had worked on it during his worktime Besides, had Tackett been engaged in conduct prohibited by the Respondent, it appears unlikely he would have called it to the attention of Supervisor Marsden as he did in the instant case Rather, upon consideration of all the evidence and the circumstances surrounding Tackett's discharge including Respondent's union animus established through the unlaw- ful conduct herein found supra, as well as prior Board deci- sions, Tackett's union activities of which the Respondent had knowledge, and having rejected the Respondent's rea- sons for discharging him, I am persuaded and find that Respondent discharged and refused to reinstate Tackett because of his union activities thereby violating Section 8(a)(3) and (1) of the Act, and the reasons asserted by Re- spondent were mere pretexts to conceal its discriminatory motive The remaining issues relate to the failure to promote Hernandez and assigning him to paint the crane Insofar as the failure to promote Hernandez to the posi- tion of mobile equipment mechanic is alleged to have been discriminatorily motivated because of his union or concert- ed activities the General Counsel contends he was better qualified than Hutchinson and Pugliese However, the General Counsel proffered no evidence prior to the promo- tions concerning the qualifications of Pugliese and only limited evidence, consisting of the testimonies of Valdez, Arden, and Hernandez himself, concerning those qualifica- tions of Hutchinson as compared to Hernandez However, their testimonies in making these comparisons related to only a few instances where they had observed their work with Valdez admitting he did not know whether Hutchin- son had previously worked on a crane and Arden under cross-examination admitting that work he has observed being performed by both Hutchinson and Pugliese since the promotions had been satisfactory Moreover, I have previously credited the testimony of Supervisor Dupree that he had recommended Hutchinson over Hernandez be- cause he thought Hutchinson was the best qualified The General Counsel having failed to prove Hernandez was FLORIDA STEEL CORP 595 more qualified for a promotion than Hutchinson and Pug- liese and absent any evidence as here to disprove that un- der the Respondent's promotion practices job seniority, as in the instant case, was the next basis utilized in selecting employees for promotion, I find that the General Counsel has failed to prove by a preponderance of the evidence as is his burden that the reason Hernandez was not promoted to the position of mobile equipment mechanic was because of his union or concerted activities In so finding I have taken into consideration Respondent's admitted knowl- edge of Hernandez' union activities, its union animus, and the fact Superintendent Mahnowski, who made the deci- sion, was also involved in the unlawful discharge of Tack- ett discussed supra With respect to whether Hernandez was subsequently assigned to paint the crane because of his union or concert- ed activities, the General Counsel presented two witnesses, Hernandez and Arden, who both stated they had not ob- served mechanics perform painting work except for Arden's admission that 6 or 7 years ago he had painted some trailers However, both Supervisor Dupree and Qui- roz, the regular painter, testified, and those testimonies were corroborated by company records, that during that year prior to Hernandez' assignment Arnold Gordon, an auto truck mechanic, and Cephas Wilson, a heavy mobile equipment mechanic, had both been assigned to paint cranes Having credited the testimony of Supervisor Du- pree concerning the reasons he assigned Hernandez along with Valdez to paint the crane and the fact other mechan- ics had previously been assigned such work contrary to the General Counsel's contentions, I do not find as the amend- ed complaint alleged that Hernandez was assigned to paint the crane because of his union or concerted activities IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, found to constitute unfair labor practices occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof guaranteed in Section 7 of the Act, and has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act 4 By discriminatorily discharging William Tackett on July 30, 1975, and refusing to reinstate him, the Respon- dent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act 5 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that the Respondent had engaged in cer- tain unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and to take certain affirmative action to effectuate the policies of the Act Accordingly, the Re- spondent shall be ordered to immediately reinstate William Tackett to his former job, or, if that job no longer exists, to a substantially equivalent job, without prejudice to his se- niority and other rights and privileges and to make him whole for any loss of earnings and compensation he may have suffered because of the illegal discrimination against him in his employment Backpay shall be computed in ac- cordance with the formula and method prescribed by the Board in F W Woolworth Company, 90 NLRB 289 (1950), and payment of 6-percent interest per annum shall be com- puted in the manner prescribed by the Board in Isis Plumb- ing & Heating Co, 138 NLRB 716 (1962) Based upon the Respondent's unfair labor practices herein found and in view of its past history of unfair labor practices as reflected in the prior Board decisions involving the Respondent cited supra, which establishes a proclivity to violate the Act, a broad order is appropriate See Broth- erhood of Teamsters & Auto Truckdrivers, Local No 70, In- ternational Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America (Sea-Land of California Inc), 197 NLRB 125 (1972), enfd 490 F 2d 87 (C A 9, 1973) Accordingly, Respondent will be further ordered to cease and desist from "in any manner" infringing upon the rights guaranteed to its employees under Section 7 of the Act 34 Upon 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 CONCLUSIONS OF LAW 1 Florida Steel Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 United Steel Workers of America, AFL-CIO, is a la- bor organization within the meaning of Section 2(5) of the Act 3 By coercively interrogating an employee concerning how he felt about the Union and whether he had attended union meetings, threatening an employee with loss of work should he vote for the Union, unlawfully polling the em- ployees concerning whether they supported the Company or the Union, Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights ORDER35 Respondent, Florida Steel Corporation, Tampa, Florida, its officers, agents, successors, and assigns, shall I Cease and desist from 34 Ha% ing ordered a broad order and absent evidence as here to show the relationships between all of the Respondents facilities I do not find a suffi- cient basis for adopting the proposed extraordinary companywide remedy urged by the Union in its brief 5 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board the findings conclusions and recommended Order herein shall as provided in Sec 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 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Coercively interrogating its employees concerning how they feel about the Union and whether they attend union meetings (b) Threatening its employees with loss of work should they vote for the Union (c) Unlawfully polling its employees concerning whether they support the Company or the Union (d) Discouraging membership in the United Steelwork- ers of America, AFL-CIO, or any other labor organiza- tion, by discharging, refusing to reinstate, or in any other manner discriminating against any employee in regard to hire, or tenure of employment or any term or condition of employment (e) In any manner interfering with, restraining, or coerc- ing its employees in the exercise of their rights under Sec- tion 7 of the Act 2 Take the following affirmative action necessary to ef- fectuate the policies of the Act (a) Offer immediate reinstatement to William Tackett to his former job, or, if that job no longer exists, then to a substantially equivalent job, without prejudice to his se- niority and other rights and privileges and make him whole for any loss of pay or other compensation he may have suffered by reason of the discrimination against him, in the manner set forth in that portion of this Decision entitled "The Remedy " (b) Preserve and, upon request, make available to the Board or its agents for examination and copying all payroll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary to analyze and determine the amount of backpay due un- der the terms of this Order (c) Post at its Tampa, Florida, facilities, copies of the attached notice marked "Appendix " 36 Copies of said no- tice, on forms furnished by the Regional Director for Re- gion 12, after being duly signed by the Respondent's au- thorized representative, shall be posted 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 Rea- 36 In the event that the Boards 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 sonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director for Region 12, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith IT IS FURTHER ORDERED that the amended complaint be, and it hereby is, dismissed insofar as it alleges unfair labor practices not specifically found herein APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate our employees concerning how they feel about the Union, or whether they attend union meetings WE WILL NOT threaten our employees with loss of work should they vote for the Union WE WILL NOT unlawfully poll our employees con- cerning whether they support the Company or the Union WE WILL NOT discourage membership in United Steelworkers of America, AFL-CIO, or any other la- bor organization by discharging, refusing to reinstate, or in any other manner discriminating against our em- ployees in regard to their hire or tenure of employ- ment or any terms or conditions of employment WE WILL offer to William Tackett his former job, or, if that job no longer exists, a substantially equivalent job with backpay and interest WE WILL NOT in any manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form, join, or assist any labor or- ganization, to bargain collectively through representa- tives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities FLORIDA STEEL CORPORATION