Rollyson Aluminum Products, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rollyson Aluminum Products, Inc. and Roger D. Ruth Rollyson Aluminum Products, Inc. and Shopmen's Local Union No. 819, of the International Associa- tion of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, Petitioner. Cases 9-CA- 10470 and 9-RC-11604 August 15, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On March 29, 1977, Administrative Law Judge Robert E. Mullin issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions. 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 has decided to affirm the rulings, findings,' and conclu- sions 2 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Rollyson Alumi- num Products, Inc., South Point, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that Case 9-RC-11604 be, and it hereby is, remanded to the Regional Director for Region 9 for the purpose of opening and counting the ballots of Roger D. Ruth, Dale Palmer, Cletus Randles, Ronald Lynd, and Howard Moore. There- after, the Regional Director will issue a revised tally of ballots and take whatever other action is indicated by the results of that tally. If the revised tally of ballots indicates that the remaining challenged ballots are sufficient in number to affect the results of the election, the Regional Director for Region 9 shall conduct an investigation of the challenged ballots of Shirley Caines, Lloyd Daniel, Claude Howard, Joanna Jenkins, John Jones, Kenneth Lawson, Eugene Lykins, and Clyde Pennington and issue a supplemental report containing findings of fact and recommendations to the Board as to the disposition of the challenges. 231 NLRB No. 71 The parties to this proceeding may file exceptions to the Regional Director's supplemental report pursuant to Section 102.69 of the Board's Rules and Regulations, as amended. 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 are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In the absence of exceptions thereto, we adopt pro formn the Administrative Law Judge's dismissal of the 8(aXI) allegation that the Respondent's president, Rollyson, solicited employee grievances in an effort to persuade employees to abandon the Union. DECISION STATEMENT OF THE CASE ROBERT E. MULLIN, Administrative Law Judge: This is a consolidated proceeding involving allegations that the above-named Employer engaged in unfair labor practices in violation of Section 8(aX)(1) and (3) and also involving challenges to the eligibility of certain voters in an election held pursuant to a petition filed by the above-named Union in Case 9-RC-11604. The unfair labor practice allegations are set forth in a complaint issued in Case 9-CA-10470 on August 26, 1976.1 By order dated August 26, 1976, the Regional Director for Region 9 consolidated the complaint case with Case 9-RC-11604, the above-numbered representation matter, and directed a hearing. In its answer, duly filed, the Respondent conceded certain facts with respect to its business operations, but it denied all allegations that it had committed any unfair labor practices. The hearing of these consolidated cases was held on November 8, 1976, in Ironton, Ohio. At the hearing all parties were represented. All were given full opportunity to examine and cross-examine witnesses, and to file briefs. Oral argument was waived. On December 8, 1976, the General Counsel and the Respondent submitted briefs. Upon the entire record herein, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, an Ohio corporation, is engaged in the manufacture of windows and patio doors at a plant in Sheridan, Ohio.2 During the 12 months preceding the issuance of the complaint, a representative period, the Respondent had a direct outflow of goods in interstate commerce valued in excess of $50,000 which it sold and shipped from the aforesaid plant in Sheridan to points outside the State of Ohio. Upon the foregoing facts, the The charge was filed on July 16, 1976. 2 The complaint referred to the location of the Respondent's plant as Sheridan, Ohio, whereas a Board Decision and Direction of Election described the same facility as being at South Point. There is no explanation in the record for this apparent discrepancy. In any event, it appears that the Respondent has only one plant in the State of Ohio and hereinafter it will be assumed that this installation is located at Sheridan. 422 ROLLYSON ALUMINUM PRODUCIS, INC. Respondent concedes, and it is now found, that Rollyson Aluminum Products, Inc., is an employer as defined in Section 2(2) of the Act and is engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent concedes, and it is now found, that the Union (also known herein as Ironworkers), is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Case 9-CA- 10470 The Respondent's plant has approximately 130 employ- ees. In May 1976,3 the Union began an organizational campaign among those workers. On June 30, employee Roger D. Ruth was terminated. His discharge is an issue in this case. On July 19, the Union filed a representation petition in Case 9-RC-11604, which ultimately resulted in the holding of a secret-ballot election on September 30. The General Counsel alleges that the Respondent violated Section 8(a)(3) by its termination of Ruth and Section 8(a)(1) by various other acts and conduct. All of these allegations are denied by the Respondent in their entirety. B. The Respondent's Supervisory Staff The Respondent acknowledged only James Rollyson, the Respondent's president, and Elwood Wilson, the plant superintendent, as having supervisory status. Wilson testified that the plant generally had from 120 to 130 employees, with about 75, or more, on the day shift (6:30 a.m. to 2:30 p.m.), about 35 on the second shift (2:30 to 11:30 p.m.), and the balance on the night shift (11:30 p.m. to 7:30 a.m.). The Respondent has another plant in Florida. President Rollyson testified that he is now living in the latter State, that he comes to the plant in Sheridan only about once a month and customarily returns to Florida after no more than a brief visit at the facility in Ohio. As a result, it is evident that for most of each month Plant Superintendent Wilson is the only acknowledged supervi- sor on the premises. Obviously, a plant with over 120 employees and operating on a three-shift-a-day basis has need for substantial supervision by more than a single representative of management. Yankee Department Stores, Inc., a Subsidiary of Hartfield-Zodys, Inc., d/b/a Zodys, Elkhart, Indiana, 211 NLRB 306, 309 (1974); Rochester Cadet Cleaners, Inc., 205 NLRB 773, 781 (1973); McKinnon Services, Inc., 174 NLRB 1141, 1143 (1969); Swan Super Cleaners, Inc., 152 NLRB 163, 168 (1965). Thomas E. Smith testified that he acts as the assistant to Plant Superintendent Wilson. He acknowledged that he might be called the "assistant plant superintendent." Smith testified that he grants employees time off, transfers them from one department to another, and has effectively :3 All dates hereinafter are for the year 1976 unless specifically noted otherwise. recommended the hiring and discharge of employees. It is now found that Smith is a supervisor within the meaning of the Act. The employment status of Charlotte McQuaid, Charlotte Pierce, Victor Sharp, and James H. Vaughn is also in question. At the hearing, the Respondent characterized these individuals as only "crew leaders." Each of them was in charge of a department at the plant. McQuaid was in charge of the "single hung department," Pierce the insulated glass department, Sharp the slider department, and Vaughn the load-out, shipping, and receiving depart- ment. The title "crew leader" does not appear in the employee handbook which the Respondent issued to its personnel. The handbook does, however, contain numer- ous references to "Department Supervisors," Thus, the employee manual specifies when an individual is to report absences and tardiness to his "Department Supervisor" and the occasions when the employee must have "your Supervisor . . . initial your time card." The handbook further provides that "Department Supervisors will ap- prove all vacation schedules for their departments with the concurrence of the Plant Superintendent." Assistant Superintendent Smith testified that the term "Department Supervisor," as used in the handbook, was synonymous, with "crew leader." All of the crew leaders are paid a salary, whereas the employees under them receive an hourly wage. Employee Sandra Lee Perry credibly testified that Crew Leader McQuaid has 10 to 12 employees in the single hung department, that McQuaid approves requests for leave, grants time off, initials the employees' timecards, and gives her and all the other employees in the department the orders with which they must comply during the work shift. Crew Leader Pierce testified that she had eight employees in her insulated glass department. She further testified that she has written up employees for infractions of the plant rules and that she has recommended the discharge of an employee. Crew Leader Sharp testified that he had 17 employees under him in the slider department. He further testified that he recommends employees for promotion. Employees Roger D. Ruth, Glenna Crum, and Janet McClasky, all of whom worked in the slider department, testified that it was from Sharp that they received their orders during the working day, and that he initialed their timecards and gave them permission to be absent. Assistant Plant Superintendent Smith also testified that Sharp was authorized to write up employees for disciplin- ary infractions. James Vaughn testified that as crew leader of the load-out, receiving, and shipping department he had authority to recommend the discharge of employees, that he has done so with respect to three or four individuals and that most of those involved were subsequently terminated. He further testified that he has written up employees and authorized overtime. According to Superintendent Wilson, Vaughn is on the evening shift with about 35 employees and, after the departure of Assistant Superintendent Smith at or about 6 p.m., Vaughn is the next ranking representa- tive of management at the plant. On the basis of the foregoing findings it is now found that McQuaid, Pierce, 423 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Vaughn are supervisors within the meaning of Section 2(1 1) of the Act. Smith further testified that, in addition to the four above- named crew leaders, Claude Howard, Kenneth Lawson, Shirley Caines, Lloyd Daniel, and Clyde Pennington also acted in that same capacity at the Respondent's plant. No testimony was offered as to the specific duties or functions of the last named. However, on the basis of the testimony already offered as to the work of crew leaders generally it is now found that all of them were departmental supervisors as described in the employees' handbook and that, as such, they had supervisory status. C. The Alleged Violations of Section 8(a)(l); Findings and Conclusions With Respect Thereto Early in May employee Roger D. Ruth circulated a petition to secure the names of coworkers who were interested in getting a union. In the process of soliciting signatures he talked with almost all of the employees in the plant. After he had secured about 60 names on his petition Ruth contacted an organizer for the Ironworkers. A short while later, Carl Richison, a union representative, met with about five of the employees, including Ruth, at the home of the latter and all of them signed union cards. A short while thereafter, Ruth began circulating authorization cards among his coworkers and secured about 45 signed cards from them. Assistant Superintendent Smith acknowledged that the Respondent had no rules on soliciting in effect. Neverthe- less, after the initiation of the organizational campaign, several of the Respondent's supervisors told the employees that they could not discuss the subject of unionization while on duty. Employee Glenna Crum testified that, early in May, Assistant Superintendent Smith came up to a table where she and several coworkers were conversing and told them "You shouldn't be talking about the Union on company time" that usually when unions came they caused trouble and he "didn't want to see anybody get hurt." Employee Kenna Jean Kelly testified that near the end of May, Smith told her and several other employees that 'if a union came in . . . there was trouble and somebody got hurt or there was property damage." Employee Janet McClasky testified that on another occasion, early in June, Smith told her and several of her colleagues that he "didn't want us talking about the union on company time." Employee Sandra Lee Perry testified that on or about July i, Supervisor McQuaid told her and the other employees in the single hung department that Smith had "sent word for us not to talk about the Union" and that if anyone was heard discussing the Union the employee would be required "to punch [her] time card and go home."4 Smith conceded that he discussed the Union with the employees and made some statements on the subject. He did not deny the version of the foregoing conversations related by the employees. Crum, Kelly, McClasky, and Perry were credible in the testimony that is set forth above and it is now found that the conversations in question occurred substantially as they described them. 4 McQuaid was never called as a witness. 5 Several years earlier the Union had made an unsuccessful attempt to organize the Respondent's Sheridan plant. Employee Ruth testified that in mid-May, and after he started soliciting signatures on his petition for a union, he heard Berky Bradshaw, a coworker, tell Supervisor Sharp, who was then his foreman, that Ruth was the one who started the union campaign. Soon thereafter, Sharp asked Ruth "What's this about a Union?" Ruth at first feigned lack of knowledge as to the subject and then Sharp added "don't give me that . . . everybody knows what you're doing, so be careful." Ruth's testimony was credible and it was not denied by either Sharp or Bradshaw. Sharp testified that about a month later and in mid-June, Assistant Superintendent Smith asked that he speak to Ruth about soliciting authorizations and that he did so. According to Sharp, "I asked him if he was passing cards on company time and he said no." Sharp testified, "I told him 'you could be fired for that.' " On June 18, President Rollyson spoke to all of the employees at a meeting held at the plant during working hours. Rollyson testified that he held such meetings with the employees only rarely and that the one in question was the first in at least 2 years. Rollyson and several of the employees present testified as to the contents of his talk at this time. Rollyson told the employees that he did not feel that a union would do them any good because he was unable to pay any higher wages than they were then receiving, that the Company was in difficult financial straits and that if any of them cared to examine the Respondent's financial records he would gladly let them inspect the books. Rollyson testified that he told them that "if they had anything that they wanted to discuss with me . . I would be glad to discuss it." According to Ruth, the Respondent's president told them that "if anyone had any problems let them come to the office after the meeting." Rollyson testified that subsequent to the meeting, Ruth was the only employee that came to see him at his office. According to Ruth, when he went to Rollyson's office he opened the conversation by stating that he was one of those who was trying to start a union and that the rejoinder of the company president was "Well, we can't fire you for that." Rollyson acknowledged that Ruth told him of his involvement with the Union and that he was interested in securing a better job. Rollyson testified that he assured Ruth that as soon as an opening materialized he would have Superintendent Wilson, or his assistant Smith, let Ruth have the opportunity. Late in the month of June, Ruth received a promotion and was transferred to a job on the night shift where he was under the supervision of Supervisor James H. Vaughn. Ruth testified that on the third night that he was on his new assignment, Supervisor Vaughn initiated a conversation concerning the Union and told Ruth that he would "hate to see you ruin yourself. . . Ed [Plant Manager Wilson] wants to run a company and the Union is forcing him to close." According to Ruth, Vaughn told him "if this time the Union did come in,5 Jim Rollyson would close down." Vaughn acknowledged having had a conversation with Ruth at the time and place in question and that he had told the employee that he did not think highly of unions. However, he denied having suggested to any employee that 424 ROLLYSON ALUMINUM PRODUCTS, INC. Rollyson would close the plant if the Union was successful in organizing a majority of the employees. Vaughn's denial was unpersuasive. It is now found that Ruth was the more credible witness as to this conversation and that the supervisor made the comments which the employee attributed to Vaughn. Employee James L. Cremeans testified that on June 30, Supervisor Vaughn asked him whether Ruth (who was discharged that night) "had tried to force me to sign a union card." According to Cremeans, he told the supervi- sor that Ruth had not forced him to sign a card, but that he had, in fact, signed an authorization at Ruth's request. Vaughn acknowledged that he questioned Cremeans as to whether Ruth had solicited his signature on a union card. He further testified that he discussed the subject with Cremeans, who was one of the younger employees and the son of a personal friend, because he was "interested in his [Cremeans'] welfare." According to Vaughn, he was concerned, because he feared that if Cremeans signed a card "his welfare would have been harmed" and "if he became an agitator in the Union, he could have become hurt." Concluding Findings On the basis of the foregoing facts, it is now found that the Respondent engaged in violations of Section 8(a)(1) of the Act by the following actions and comments of its officials and supervisors: (I) Assistant Superintendent Thomas E. Smith's statements to employee Crum early in May to the effect that she and her coworkers should not be talking about the Union on company time because "he didn't want to see anybody get hurt." (2) Smith's comments to employee McClasky and her colleagues early in June to the effect that he "didn't want [the employees] talking about the Union on company time." (3) Smith's statement to employee Kelly that "if a union came in ... there was trouble and somebody got hurt or there was property damage." (4) Supervisor McQuaid's statement to employee Perry and others in her department on July I that Assistant Superintendent Smith had sent word that the employees were not to talk about the Union and that if anyone was heard discussing the subject the employee would be ordered "to punch [her] time card [and] go home." (5) Supervisor Victor Sharp's interrogation of employee Ruth early in May about the employee's activities which was followed by his warning that the employees would have to "be careful." (6) Sharp's interrogation of Ruth about a month later as to whether the latter was soliciting authorization cards on "company time" and the threat he thereupon voiced to the employee "you could be fired for that." 6 (7) Supervisor James H. Vaughn's comment to employee Ruth, late in June and during a conversation about the union campaign, wherein Vaughn told Ruth that 6 Prior to the onset of the Union's campaign there was no rule in effect that barred solicitation at the Respondent's plant. Employee discussion of the campaign clearly constituted protected concerted activity, provided it did not interfere with production. Hambre Hombre Enterprises, Inc.. d/b/a Panchito's, 228 NLRB 136 (1977). Moreover, in the situation here involved. the strictures of Smith, McQuaid, and Sharp as to the employees' use of "company time" did not distinguish between working time and breaktime, and obviously applied throughout the entire shift while an employee was "clocked in" and on the plant premises. In holding such a rule invalid the he would "hate to see you ruin yourself' and that "if this time the Union did come in, Jim Rollyson would close down." And (8) Supervisor Vaughn's interrogation of employee Cremeans on June 30 as to whether Ruth "had tried to force [Cremeans] to sign a union card." The complaint also alleged that in his speech to the employees on June 18, President Rollyson offered to adjust employee grievances in an effort to encourage them to abandon the Union. This point was not argued in the General Counsel's brief and appears to have been aban- doned. In any event, it is now found that Rollyson's comments to the employees are not subject to the construction which would support the aforesaid allegation. Cf. F.C.F. Papers, Inc., a Division of The Mead Corporation, 211 NLRB 657 (1974). D. The Termination of Roger D. Ruth and the Respondent's Alleged Violation of Section 8(a)(3); Findings and Conclusions With Respect Thereto Ruth was initially employed in August 1975 as a laborer in the slider department. He remained there under the supervision of Victor Sharp until a week before his termination when he was given a 25-cent-an-hour raise and transferred to the night shift in the paint shop under Supervisor James H. Vaughn. Plant Superintendent Wilson acknowledged that Super- visor Sharp never complained about Ruth's work record in the slider department. Supervisor Vaughn, who had Ruth under his jurisdiction on the evening shift for the last few days of his employment, testified that he thought it was to the Company's advantage "to keep the good employees- and [Ruth ] was a pretty good one." As found earlier herein, Ruth was the prime organizer of the Union's campaign at the Respondent's plant, and during the course of May and June he secured approxi- mately 45 signed authorization cards from his coworkers. There was no dispute as to company knowledge of Ruth's union activities. Superintendent Wilson testified that "everybody knew [about] that." On June 18, under circumstances described earlier, Ruth himself told Presi- dent Rollyson that he was trying to get a union in the plant. At the hearing, the Respondent stipulated that it had known of Ruth's union sympathies from approximately the middle of May. As found above, Ruth's organizational efforts did not pass without comment by his superiors. In mid-May, Supervisor Sharp, in discussing Ruth's activities, admon- ished the employee that he "could be fired" for "passing cards on company time." Late in June Supervisor James Vaughn, his new foreman, after injecting the subject of the union campaign into a conversation, cautioned Ruth that he would "hate to see you ruin yourself' and told Ruth that Board has stated "'company time,' like 'working hours' is unduly ambiguous and tends to connote all paid time from the beginning to the end of the work shift, and can easily be interpreted as a restriction on solicitation during breaktime or other periods when employees are compensated although not actively at work." Florida Steel Corporation, 215 NLRB 97, 98- 99 (1974), enfd. as to this point, 529 F.2d 1225, 1230-31 (C.A. 5, 1976). See also Essex International, Inc., 211 NLRB 749, 750 (1974); Stewart-Warner Corporation, 215 NLRB 219, 225 (1974): The Ohio Masonic Hone, 205 NLRB 357 (1973). 425 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "if this time the Union did come in, Jim Rollyson would close down." Late in the month of June, Superintendent Wilson offered to transfer Ruth to a job on the evening shift in what was known as the paint shop. The latter asked Wilson for a raise, but the superintendent told him that the job was not one for which a raise was authorized. However, Wilson promised to discuss the matter with President Rollyson. Shortly thereafter the superintendent told Ruth that he would be granted a 25-cent-an-hour increase and that he would begin work on the evening shift on or about June 24. Ruth's new duties required that he handle and cut glass panes under the immediate direction of Charlotte Pierce and the general supervision of James H. Vaughn. In this responsibility he was to be assisted by another young man, James Cremeans, who was assigned to work with Ruth. It was undenied that early in the period that Ruth was on the new job he was complimented by Pierce who told him that she liked the way he was performing his job. Employee Cremeans testified that, on the third night that he and Ruth were on duty, Supervisor Pierce complimented both of them on the results of their work. Supervisor Vaughn acknowledged that shortly after Ruth's arrival in his department he was very favorably impressed with Ruth's performance which he described as "excellent." According to Vaughn, he voiced his admiration for the new employee by telling Supervisor Pierce, "Charlotte ... I think we've got us a good one." Vaughn added that he was particularly impressed with Ruth because on the evening shift he had had "a few [employees] that hadn't been too good." Nevertheless, on the following Wednesday, June 30, Plant Superintendent Wilson terminated Ruth. The facts in connection with this action are set forth below. At or about 10:30 on the evening of June 30, Wilson summoned Ruth to his office where the employee was confronted by Wilson, the latter's assistant, Smith, and Supervisors Vaughn and Pierce. According to Ruth's credible testimony, Wilson opened the discussion with the statement "we've had some complaints about you back in the plant." Ruth then asked "You mean about the union?" and Wilson answered in the affirmative. The superinten- dent then asked Ruth whether he was satisfied with his job and the employee answered that he was not, that he did not like either the hours or the work. Wilson thereupon charged that Ruth had been dissatisfied since the first day he had come to work for the Company. This comment was contradicted by Ruth who asserted that he had been satisfied when he was working in the slider department where he had been for many months before his assignment to the night shift. Wilson then asked the employee what he thought should be done and Ruth replied "Either transfer me or fire me." Wilson's response was "That's what we're going to do." At this point, Wilson brought up several alleged complaints about the employee's job performance. Thus, Wilson asserted that Ruth had not reported for work on the preceding Friday evening until 11 p.m. This was correct and when Ruth came to the plant on that occasion Supervisor Vaughn questioned him about his tardy arrival. However, Ruth's response at the time, and in his testimony at the hearing, was that Smith, the assistant superintendent, had given him permission to come in late. Vaughn testified that he did nothing about the matter on the Friday night in question because Smith had just begun his vacation at that particular time and it was impossible to confirm Ruth's account of his conversation with the assistant superinten- dent. At the hearing, Smith acknowledged that when Ruth first requested permission to be off he had given his permission but qualified it with the comment that he (Smith) would first have to talk with Supervisor Pierce about the matter. According to Smith, Pierce at first agreed that she would not need Ruth during the first part of the shift, but later changed her mind and concluded that Ruth would be needed. Smith conceded, however, that thereafter he failed to relay this message to Ruth and left the matter with Pierce. At the hearing, Superintendent Wilson acknowledged that at the conference on June 25, and after Smith, Ruth, Pierce, and Vaughn had described their recollection of the event, "They all agreed . . . that [the problem about Ruth's late arrival] was a misunderstand- ing." 7 During the conference which Wilson conducted on the last night of Ruth's employment he also read statements from Pierce and Vaughn about breakage of glass while Ruth was on duty. Ruth testified that these complaints had never been brought to his attention. Vaughn acknowledged that he had never informed Ruth that he had registered a written complaint against him. Cremeans, who was his assistant, testified that all the work was current while Ruth was there and that on the third of the 5 nights that Ruth was in the department Supervisor Pierce complimented both of them with the statement that they "had the [glass] racks looking nice again." At the hearing, Pierce testified that on one particular evening she asked Ruth why all the glass had not been cut and that Ruth told her that it was because Cremeans had become ill during the shift and that he [Ruth] had had to take his assistant home. Later, in her testimony, Pierce acknowledged that, notwithstanding her purported con- cern about Ruth's whereabouts, she had never checked on the matter with Cremeans. As found above, at the outset of his conference with Ruth, Superintendent Wilson stated that he had had complaints about Ruth in the plant and when Ruth inquired as to whether the complaints were about his union activities Wilson answered in the affirmative. Supervisor Pierce testified that earlier that particular evening, two other employees, Steve Abrams and Mark Culbertson, complained to her about Ruth having accompanied them into the plant restroom and solicited their signatures on authorization cards. According to Pierce, she reported the incident to Superintendent Wilson, who was still at the plant, and suggested that he speak to Ruth about the matter. This, of course, was before the conference which Wilson summoned later that evening. At the hearing, Wilson denied that he had talked with Abrams and Culbertson until after Ruth's discharge. Wilson's denial, however, was not credible and it was contradicted not only I The quotation is from Wilson's testimony. 426 ROLLYSON ALUMINUM PRODUCTS, INC. by the testimony of Supervisor Pierce but also by his own pretrial affidavit wherein he averred that Abrams and Culbertson were called to his office immediately before he held the conference at which Ruth was discharged. At the hearing, the Respondent contended that Ruth quit his employment when he answered Superintendent Wil- son's question as to what should be done with him by commenting "either transfer me or fire me." Ruth, however, credibly testified that thereafter and on the assumption that he was being terminated, he asked Wilson the reason for his discharge so that he would have an explanation for the unemployment office. It was undenied that Wilson answered Ruth by telling him that he was not required to give a reason and that his response to that question would be made only to the unemployment bureau when it initiated the customary official inquiry. Ruth's testimony as to the closing moments of the meeting is supported by the testimony of Supervisor Pierce. Accord- ing to her, Assistant Superintendent Smith concluded the conference by telling Ruth "you better seek other employ- ment." It is now found that, contrary to the Respondent's assertion, the evidence is clear that Ruth was involuntarily terminated by Superintendent Wilson on the evening of June 30. It was undenied that on the morning of July I, several employees on the day shift asked Supervisor Victor Sharp, for whom Ruth had once worked, why the latter had been discharged. Employee Glenna Crum credibly testified that when she asked Sharp this question he told her that Ruth had been dismissed for "handing out union cards on company time." Employee Janet McClasky credibly testified that when Sharp was asked this question his reply was that Ruth had been discharged for "trying to give two company men union cards." Sharp did not deny or contradict any of the foregoing testimony and acknowl- edged that he had responded to the employee questions about Ruth's discharge by stating that the action had resulted "Probably because of his union activities." Employee Sandra Lee Perry testified that about the same time, Catherine McQuaid, her supervisor, told her and the other employees in the single hung department that "She [McQuaid] felt sure that [Ruth's discharge] had more to do with the Union than anything else." Perry's testimony was credible and it was never denied or contradicted. 8 McQuaid was never called to testify. See sec. I I of the handbook which reads, in relevant part, as follows: I. All promotions or transfers to a different classification or department are made on probation for a period up to sixty (60) days. 2. During this probationary period, the company may return the employee to his former job with no loss ofseniority. (Emphasis supplied.) Concluding Findings The General Counsel alleges, and the Respondent denies, that Ruth's termination was discriminatory. On the facts set forth above it is now found that the General Counsel has established by a preponderance of the evidence that his allegation as to Ruth is well founded. Ruth had had a good work record throughout his employment with the Respondent and, immediately after his transfer to the paint shop and for the first few days, both Vaughn and Pierce were fulsome in their praise of his work there. Suddenly, and without warning to the employ- ee that his job was in jeopardy, the plant superintendent held a conference with Ruth at which the employee was informed, in the presence of the assistant superintendent and Ruth's two supervisors, that Wilson had been hearing protests in the shop about Ruth's union activities. From the credible testimony of Ruth, as well as that of Supervisor Pierce and the comments of Supervisor Sharp the next morning, it is evident that Wilson was referring to the complaints of Abrams and Culbertson. Notwithstanding Wilson's denial at the hearing, it is clear that he met with the two last named employees immediately before the discharge interview with Ruth. And the following morning, Sharp was telling the employees on his shift that Ruth was dismissed for "trying to give two company men union cards." The Respondent's own employees' handbook provides that after an employee is promoted or transferred he may be returned to his old job at any time within 60 days.9 Superintendent Wilson offered Ruth no such option. Notwithstanding the fact that Ruth had been a good employee and had been given a pay increase only 4 days earlier, Wilson summarily dismissed him without any prior warning, immediately after having met with Abrams and Culbertson, the latter being employees that Sharp charac- terized as "two company men" who protested when Ruth followed them into the men's room at the plant to urge that they sign union authorization cards. In view of the Respondent's antiunion background, as manifested by the numerous violations of Section 8(aX)(), set forth earlier herein, Ruth's prominence in the organiza- tional campaign, the Respondent's admitted knowledge of Ruth's union activities, his good work record, and the lack of any warning that his work had suddenly become unsatisfactory, it is now found that the primary reason for Ruth's precipitate discharge was his prominence in the drive to organize the Respondent's employees.' 0 Accord- 'o "The abruptness of a discharge and its timing are persuasive evidence as to motivation." N.LR.B. v. Montgomery Ward& Co., Inc., 242 F.2d 497, 502 (C.A. 2, 1957) cert. denied 355 U.S. 829 (1957). 427 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ingly, I conclude and find that by his termination the Respondent violated Section 8(a)(3) and (1) of the Act.' Case 9-RC-11604 E. The Challenged Ballots The election in Case 9-RC-11604 was conducted on September 30, 1976.12 Out of approximately 116 eligible voters, 45 cast valid votes for, and 50 cast valid votes against, the petitioning union. There were 18 challenged ballots and no void ballots. After a preliminary investiga- tion the Regional Director concluded that since the eligibility of a substantial number of the challenged voters depended on whether they possessed supervisory authority and, in the case of Roger D. Ruth on the issue of whether he had been discriminatorily terminated, the hearing on the aforesaid challenges should be consolidated with the hearing on the allegations of the complaint in Case 9-CA- 10470. An order consolidating the cases was issued on October 26, 1976. The findings as to the challenges, based on the testimony developed at the hearing, are set forth below. 1. The eligibility of Roger D. Ruth The ballot of Roger D. Ruth was challenged by the Board agent, pursuant to the instructions set forth in the Regional Director's Decision and Direction of Election. As found earlier herein, Ruth was discriminatorily terminated on June 30, 1976. But for the Respondent's unfair labor practices, presumptively, he would have been at work at the time of the election. Consequently, it is now found that he was eligible to vote on September 30, 1976, and that his ballot should be opened and counted. 2. The "crew leaders" The ballots of Thomas E. Smith, Catherine McQuaid, Charlotte Pierce, Victor Sharp, James Vaughn, Shirley Caines, Lloyd Daniel, Claude Howard, Joanna Jenkins, John Jones, Kenneth Lawson, Eugene Lykins, and Clyde Pennington were challenged by the Petitioner and/or the Board agent on the ground that they were supervisors. All were classed as "crew leaders" by the Respondent. As found earlier in this decision, Smith was the assistant superintendent with substantial supervisory responsibili- ties. It was also found that McQuaid, Pierce, Sharp, and Vaughn had, and exercised, supervisorial authority within the meaning of Section 2(11) of the Act. Furthermore, it " At the hearing, the Respondent proffered certain testimony by employee James Cremeans to the effect that at some point shortly before his discharge Ruth told Cremeans that he was hoping the Company would discharge him so that he could sue the Respondent and thereby bring in the Union. Ruth denied this testimony in its entirety. Ruth was a young man only 19 years of age. Supervisor Pierce testified that late in June she learned that he had become engaged to be married. At the time of his termination, he had just been promoted to a job where he could make more money than he had been earning. In view of those circumstances it would seem most unlikely at such a point in his affairs he would seek to provoke the Company into discharging him for the sake of initiating a lawsuit. In any event, Cremeans' testimony in this connection was most unpersuasive and Ruth's denial that he ever had such a conversation with Cremeans is found credible. The Respondent also offered in evidence a decision of the Ohio Bureau of was found that the "crew leaders" as a group are, in effect, departmental supervisors and that they have the status of supervisors within the meaning of the Act. Consequently, it is now found that none of the above named was eligible to vote. 3. Palmer, Randles, Lynd, and Moore The Petitioner challenged the ballots of Dale Palmer and Cletus Randles on the ground that they were supervisors. At the hearing, however, the Petitioner offered no evidence to establish that Palmer and Randles held such status. Consequently, it must be assumed that they are no more than employees. As such, they are members of the appropriate unit and their ballots should be opened and counted. The Petitioner also challenged the ballot of Ronald Lynd on the basis that he was a clerical employee and the ballot of Howard Moore on the ground that he worked outside the plant. At the hearing, the General Counsel's representa- tive stated that at the representation hearing Lynd had been classified as a repairman and Moore as a utility man. In the decision and direction of election the Regional Director specifically found that the repairmen' 3 and the utility man should be included in the unit. Although the Petitioner challenged the ballots of Lynd and Moore, at the hearing in the instant matter, the Petitioner offered no evidence on this issue. Accordingly, as found earlier in the decision and direction of election, it is now found that Lynd and Moore are members of the appropriate unit and that their ballots should be opened and counted. Having found that Roger D. Ruth, Dale Palmer, Cletus Randles, Ronald Lynd, and Howard Moore were eligible to vote in the election on September 30, 1976, it will be recommended that Case 9-RC-11604 be remanded to the Regional Director for Region 9, for the purpose of opening and counting the ballots of the aforesaid employees. Thereafter the Regional Director will issue a revised tally of the ballots and take whatever other action is indicated by the results of that tally. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization within the meaning of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged, and is Employment Services wherein a referee of that state agency found that Ruth was ineligible for unemployment benefits on the ground that he had been discharged for just cause. No transcript or record of that proceeding, however, was offered. The decision of the Administrative Law Judge in the present matter must be based upon an independent consideration and evaluation of the evidence received in the unfair labor practice proceeding. It is on the latter that the findings set forth above have been made. See: N. LR.B. v. Tennessee Packers, Inc., Frosty Morn Division, 339 F.2d 203, 204 (C.A. 6, 1964); N.LR.B. v. Pacific Intermountain Express Company, er al., 228 F.2d 170, 176 (C.A. 8, 1955); and Supreme Dyeing & Finishing Corp., 147 NLRB 1094, 1095, fn. 1(1964). 12 The petition was filed on July 19, 1976. i3 At the time of the representation hearing the Respondent employed two repairmen. 428 ROLLYSON ALUMINUM PRODUCMS, INC. engaging, in unfair labor practices within the meaning of Section 8(a)( ) of the Act. 3. By discriminatorily terminating Roger D. Ruth on June 30, 1976, the Respondent violated Section 8(a)(3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent has not engaged in violations of Section 8(a)(l) of the Act, or in any violations of the Act, other than as herein specifically found. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that the Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectu- ate the policies of the Act. Having found that the Respondent discriminatorily terminated Roger D. Ruth on June 30, 1976, 1 will recommend that the Respondent be ordered to offer Ruth immediate and full reinstatement to his former job without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered from the time of his termination to the date of the Respondent's offer of reinstatement. The backpay for the foregoing employee shall be computed in accordance with the formula approved in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest computed in the manner and amount prescribed in Isis Plumbing & Heating Co., 138 NLRB 716, 717-721 (1962). It will also be recommended that the Respondent be required to preserve and make available to the Board, or its agents, on request, payroll and other records to facilitate the computation of backpay due. Finally, the Respondent should be required to post the conventional notice. As the unfair labor practices committed by the Respon- dent are of a character striking at the root of employee rights safeguarded by the Act, it will be recommended that the said Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. N.L.R.B.v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). 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: ORDER 14 The Respondent, Rollyson Aluminum Products, Inc., Sheridan, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees, or otherwise discriminating in any manner with respect to their tenure of employment or any term or condition of employment, because of activity on behalf of, or membership in, Shopmen's Local Union No. 819 of the International Association of Bridge, Structual and Ornamental Iron Workers, AFL-CIO, or any other labor organization. (b) Interrogating any employee concerning that individu- al's union activity, in a manner constituting a violation of Section 8(aX 1) of the Act. (c) Threatening its employees with loss of jobs or closing its business if a majority become members of, or assist, a labor organization. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Roger D. Ruth immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole in the manner set forth in the section 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, personnel records and reports, and all other records necessary, or appropriate, to analyze the amount of backpay due. (c) Post at its plant in Sheridan, Ohio, copies of the attached notice marked "Appendix." 15 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by the Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that Case 9-RC-11604 be remanded to the Regional Director for Region 9 for the purpose of opening and counting the ballots of Roger D. Ruth, Dale Palmer, Cletus Randles, Ronald Lynd, and Howard Moore. Thereafter the Regional Director will issue a revised tally of the ballots and take whatever other action is indicated by the results of that tally. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges any unfair labor practices, other than as herein specifically found. 14 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. 's In the event the Board's Order is enforced by a Judgment of the 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." 429 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Shopmen's Local Union No. 819 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, or any other union, by discharging, laying off, or otherwise discriminating against our employees because of their union or concerted activities. WE WILL NOT interrogate any employee concerning that individual's union activity in a manner constituting a violation of Section 8(a)(1) of the Act. WE WILL NOT threaten our employees with the closing of our business if a majority become members of, or assist, a labor organization. WE WILL NOT in any other manner, interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and 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. WE WILL offer to Roger D. Ruth immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and we WILL make him whole for any loss he may have suffered because of our discrimination. ROLLYSON ALUMINUM PRODUCTS, INC. 430