U.S. Tubular, Inc.

710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Benmit Division, U.S. Tubular, Inc. and United Steelworkers of America, AFL-CIO, CLC. Case 8-CA-17956 24 June 1986 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 22 November 1985 Administrative Law Judge Richard H. Beddow Jr . issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, I and conclusions and to adopt the recommended Order as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Benmit Division, U.S. Tubular, Inc., Dalton, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(c). "(c) Reinstate, to the extent not already done, the working conditions relative to vending ma- chines, telephones, shift starting and ending times, and overtime to those that existed prior to 12 Sep- tember 1984." 2. Substitute the attached notice for that of the administrative law judge. i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT threaten our employees with ter- mination of their employment, demotion, replace- ment, or plant closure because of our employees' union membership, activities, or sympathies. WE WILL NOT threaten to remove telephone or vending machines from our facility, to change the starting time of each shift, or to reduce overtime because of our employees' union membership, ac- tivities, or sympathies. WE WILL NOT interrogate our employees regard- ing their union membership , activities, and sympa- thies. WE WILL NOT interfere with our employees' rights by informing them that it would be futile for them to select a labor organization as their collec- tive-bargaining representative and WE WILL NOT tell our employees that we could gain access to union authorization cards signed by our employees. WE WILL NOT order any employee to punch out and to remove union leaflets from our facility, or tell any employee that he or she is not permitted to have the leaflets inside our facility. WE WILL NOT change the starting time of any shift to be 1 hour after the preceding shift has ended or remove telephone or vending machines from our facility in reprisal for our employees' union activities. WE WILL NOT discharge or demote employees for engaging in activities on behalf of United Steel- workers of America, AFL-CIO, CLC, or any other labor organization, or in reprisal for their en- gaging in other concerted activity for their mutual aid or protection. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL reinstate, to the extent not already done, shift starting times and overtime, and arrange for reinstallation of telephones and vending ma- chines as those conditions of work existed prior to 12 September 1984. WE WILL offer John Beal and Jeffrey E. Davis immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantial- ly equivalent positions, without prejudice to their 280 NLRB No. 83 U.S. TUBULAR, INC seniority or any other rights or privileges previous- ly enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL remove from our files any reference to the demotion imposed on Jeffrey E. Davis or the discharge of John Beal and WE WILL notify them, in writing, that this has been done and that evi- dence of their unlawful discipline will not be used as the basis for any future personnel actions against them. BENMIT DIVISION , U.S. TUBULAR, INC. Frank D. Motil, Esq., for the General Counsel. John N. Childs, Esq., of Akron, Ohio, for the Respond- ent. Jack Baker, Esq., of Canton, Ohio, for the Charging Party. DECISION STATEMENT OF THE CASE RICHARD H. BEDDOW JR., Administrative Law Judge. This matter was heard in Canton, Ohio, on 29 and 30 May 1985. The proceeding is based on a charge filed on 17 December 1984' by United Steelworkers of America, AFL-CIO, CLC. The Regional Director' s complaint dated 30 January 1985 alleges that Respondent Benmit Division, U.S. Tubular, Inc. of Dalton, Ohio, violated Section 8(a)(1) and (3) of the National Labor Relations Act by interrogating and threatening employees and oth- erwise making statements which interfered with employ- ee rights concerning their union activities and sympa- thies, by changing working conditions, and by terminat- ing employee John Beal and demoting employee Jeffrey Davis because of their respective activities on behalf of the Charging Party. Subsequent to the hearing, briefs were filed by the General Counsel and Respondent. On a review of the entire record in this case and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a Delaware corporation, is engaged in the manufacturing of oil industry tubular goods at its Dalton facility. During the past 12 months it has provided serv- ices valued in excess of $50,000 within Ohio for five other companies each of which meets the Board's discre- tionary jurisdictional standards on other than an indirect inflow or outflow basis and it admits that all times mate- rial it has been an employer engaged in operations affect- ing commerce within the meaning of Section 2(2), (6), and (7) of the Act. It also admits that the International ' All following dates are in 1984 unless otherwise indicated 711 Union and Local 469 are labor organizations within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Respondent employs over 100 workers at its Dalton plant. The employees are not represented by a union and it has no history of prior attempts to unionize its employ- ees. Worker job descriptions include those of yard labor- er, upsetter, threader, and threader-leadman. Respond- ent's answer to the complaint acknowledges that Dean Spangler is Respondent's president and that Jeff Cun- ningham is its vice president. At the hearing it admitted that Richard Casper (Rick) serves as foreman of the threading department, and I find that he is a statutory su- pervisor.2 Jack Baker, an International organizer for the Union, testified that in early August he was contacted by em- ployee Mark Johnson about the possibility of organizing Respondent's Dalton plant. A meeting was held at John- son's home on Sunday, 9 September, and attended by about six employees, including John Beal and Jeff Davis. Beal obtained union leaflets at the meeting and then per- sonally typed in the name and date of the next union meeting planned for Wednesday, 12 September. On Monday and Tuesday, Beal and employee Chris Tully handed out literature prior to their shifts and during breaks and they placed leaflets in the men's room and on the shop bulletin board. On Tuesday morning, Casper was told by employee Dennis Pachmayer that "some people" were trying to organize a union . Casper also saw one of the leaflets and heard other rumors of union activ- ity. Spangler, Respondent's president, also learned of the union activity on Tuesday morning. He immediately con- tacted Respondent's lawyer and that afternoon confirmed the rumors with Casper. On Wednesday morning, the lawyer suggested to Spangler that an employee meeting be held during the time between shifts. Subsequently, the lawyer dictated a speech for Spangler to deliver. It then was typed and reread to the lawyer and Spangler re- hearsed its presentation. Spangler further explained that he makes a lot of public speeches and essentially gives them word for word from a prepared format, while still making frequent eye contact with his listeners. That same Wednesday, Beal attended the union meet- ing held at 1:30 p.m. Then prior to reporting to his 4:30 p.m. second shift, Beal started handing out leaflets to day-shift employees near the exit gate. He approached some employees who appeared to avoid him , and then noticed that Spangler and some other "executives" were behind him. He clocked in, and was approached by Casper who told him of a company meeting regarding, "This union shit." Beal testified that Casper then asked 2 The record shows that Casper is regarded as a supervisor by employ- ees and he hires and fires workers, and receives an hourly rate of pay of $8 to $9, whereas threaders and threader-leadmen received between $5 50 and $6 75 an hour On brief, Respondent specifically refers to Casper as "threading supervisor" and argues that Casper was solely responsible for the decision to discharge alleged discrimmatee John Beal Accordingly, I conclude that the record fully supports the conclusion that Casper pos- sesses sufficient indicia of supervisory authority relative to Sec 2(11) of the Act to be considered a statutory supervisor in this proceeding 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD how the union meeting had gone if Beal had attended. Beal answered "fine" and affirmed that he had gone. Casper then asked what the Union was "offering." When Beal failed to answer, Casper repeated his question and explained that he would like to get in on it himself. Beal responded that he could not talk to Casper about it. Casper then allegedly said, "Well, Beal , you better take it easy with this Union or you'll lose your job because the company won't stand for no Union activity." Casper affirmed that he asked Beal how the meeting had gone and recalled that Beal asked why he wanted to know and that Casper explained that he was an hourly employee and he understood the Union is for all hourly employees. Casper explained that threader-leadman Danny Sims told him about the Wednesday union meet- ing. Sims also told him the names of the employees, spe- cifically Beal, Johnson, Chris Tully, Mark Hunt, and Steve Street who he heard were going to this meeting. Casper did not acknowledge making any comment to Beal about union activities but did state that nothing else happened after his inquiry about the union meeting. Threader Robert Zorger, who worked the day shift that Wednesday, had clocked out and was talking with Beal at the time Casper approached Beal. Zorger testi- fied that he heard Casper ask if Beal had gone to the afternoon union meeting, that Beal said he had gone and, in response to another question, that it went pretty good. Casper then said something else that Zorger did not catch and then said, "Well, you got to lay low with it because you are going to lose your job" as well as some- thing else that Zorger did not hear clearly. Spangler testified that when the company meeting started he gave the speech just as it was prepared. Re- spondent's copy of the prepared speech consists of three double-spaced pages . It begins with a statement that the Company is nonunion, intends to stay nonunion , and will oppose with all legal means any organizing effort. Some- what more than a page of the speech refers to authoriza- tion cards, the Union's assurance that they will not be seen, a statement not to believe the Union, and a remark that the cards may be anything but secret. The speech also states that the Union wanted their money as well as the possibility of a strike and the Company's right to per- manently replace strikers. Spangler also testified that he and his attorney met with a Board investigator in the fall of 1984 but did not make the investigator aware of the existence of any prepared copy of the speech. Spangler specifically testified that a discussion was held with the attorney and it was decided not to furnish the investiga- tor with a copy of the speech. Several employees testified concerning their recollec- tion of Spangler's actual remark at the company meeting. Davis testified that Spangler said, "There's not a union here. There will never be a union here," and that "We won't sit down and bargain with the Union." He also said, "That he's going to find out who signed authoriza- tion cards . . . because they have ways of finding out," and that "[ajil the Union wanted was our money." He observed that Spangler carried notes which he looked at every so often. Chris Tully recalled that Spangler made a statement discounting the Union's assurance that the Company would not have access to authorization cards, that he re- marked that if a card was signed the Company sooner or later would be able to see it, and that he would do ev- erything legally possible to prevent a union from getting in. Beal recalled that Spangler opened his remarks by saying that he would speak and there would be no ques- tions. Beal also observed that Spangler carried notes that he referred to. Beal testified that Spangler said not to let the union representative fool you into thinking you will remain anonymous and that Respondent would have access to the card and know who is involved and who is in the Union. He also recalled that portions of Spangler's remarks referred to having plenty of pipe to work on. Spangler then said employees had a right to strike and that the employees would end up doing that because the Company would not bargain, that Respondent would shut the plant down and nobody would be working, and that he would do everything he could to keep a union out even if it meant replacing all the employees. Zorger recalled that Spangler referred to pipe from Canada providing work and said that the Company wanted nothing to do with the Union , and if the Union got in the employees would probably be out of work. On 13 September, the day after Respondent's speech to the employees, Respondent disconnected the tele- phones and vending machines located in the threading sheds. Respondent asserts that it had been experiencing problems with the vending machines and replaced them with new machines within a month. It also explained that the phones, which were for communication within the plant between management personnel and the threader line employees, could be used for outside calls if the em- ployees went through a plant secretary and that they were disconnected because of excessive personal use by employees. On the day following the speech, the Company also changed the prevailing shift hours. The new schedule provided for the first shift to end at 3:30 p.m. and the second shift to begin at 4:30 p .m., whereas previously both shifts had a common beginning or ending at 4:30 p.m. On Friday, 14 September, at the end of the first shift, Casper informed leadman Davis that on Monday he would work for leadman Tully as a threader on another line. Davis testified that the next week he observed that Bob Bowen, who had been a threader for Davis, was acting as leadman on Davis' former line. Davis had joined the threading department in July 1983 and in October of that year became a leadman. He initially was not given full leadman pay; however, after he subsequently complained and threatened to go to the Fair Labor Board, he was given leadman wages of $6.50 an hour in July and $6.75 in August 1984. On Monday, 17 September, Casper came to Davis' work area and, along with leadman Tully, checked his work. Both Davis and Tully testified that several union handbills were on the nearby workbench and were seen by Casper. Casper then left the area and, within 5 min- utes, Cunningham came in, went directly to the hand- bills, and asked Davis if they were his . Davis said that U.S TUBULAR, INC. they were. Tully testified that Cunningham then told Davis to clock out, take the literature to his car, clock back in, and get back to work because it was illegal to have that type of literature on company property. Davis complied with Cunningham's demand after first asserting that he had been told that he was allowed to have them on the premises, as long as he did not pass them out during working hours, and that he could pass them out before or after starting work, or at lunchtime. Cun- ningham did not deny Davis' description of the occur- rence but testified that Davis' timecard indicates that he did clock out but otherwise was paid his regular day's pay. Later that same Monday morning, employees Davis, Johnson, Street, Tully, and Jeff Robson were called to a conference with Spangler, Cunningham, and Casper. Casper, Davis, and Tully agree the meeting started around 11 a.m. and lasted 1 to 2 hours while Spangler asserts it started between 1 and 2 p.m As described in Respondent's brief, this meeting was for the purpose of soliciting specific employee grievances. It admits that the presence of union activity at the plant was also discussed and that many of the operational problems discussed were later remedied. Spangler testified that he called the meeting after discussing the union activity with Cun- ningham and Casper. He specifically told them, "Let's get some of those guys up here and talk to them" but he let Cunningham and Casper select the employees who would attend. Spangler testified that he did most of the initial talking and explained that it was a very frustrating situation and that he personally did not care if the plant was organized or not. He displayed a financial statement, went through a history of the Company's operations, and discussed the inadequacy of resources to justify pay raises. He agreed that the meeting turned to a discussion of complaints and that he made notes; however, he denied that he "specifi- cally" asked for "complaints." Employees Davis, Tully, and Street described their recollections of the meeting. Davis testified that Spangler opened the meeting by stating, "This has got to stop right here, I want to know what your complaints are right now." Tully recalled that Spangler asked why the employees were trying to organize a union and said that they knew that the employees at the meeting were trying to organize one. Davis spoke about ventilation problems and Spangler said, "Well, we'll take care of that." Davis then brought up the subject of seniority and fairness in transferring from the yard jobs to threading. Spangler re- sponded that the Company would make out a seniority sheet to make sure that everybody got treated fairly. Tully mentioned the possibility of going to a threading school and Spangler said that would occur soon. Street described the need for tools and Spangler said, "Well, we'll get a tool box, and we'll get you all the necessary tools that you need right away." Tully asked why it had been so long since they had a raise and other employees complained about dirty bathrooms and working condi- tions. Each employee commented that Spangler took notes of the employee questions and complaints and as- serted that the complaints would be taken care of. Tully also recalls that when Robson brought up the subjects of 713 the vending machines and telephones being put out of service and the rescheduling of the two shifts, Vice President Cunningham replied, "If you want to work in a union shop, we'll show you what a union shop is like. That is the way union shops operate. You don't have that kind of stuff working in a union plant." Cunningham also "explained" that the Union could only give you a right to strike, and that that is "about all" the Union could "really" offer. Robson also asked whether Dave Pachmayer had been the employee who had told the corporate officials who was active for the Union; however, no one answered. It was asked why overtime had been cut out and Cun- ningham replied that "[i]n a union shop they don't pay overtime" and "[y]ou very seldom work any overtime." Cunningham then repeated his prior remark, "You want to work in a union shop? We'll show you what a union shop is like " After the meeting Davis asked Casper when he would get back his leadman job. Casper first replied, "You wanted seniority to work, didn't you?" and then added, "Well, you've got a bad attitude. A lot of people around here have bad attitudes around here, too, and we're going to straighten them out." The day after the meeting Tully asked to speak to Vice President Cunningham. When Cunningham came to his work area Tully explained that he was not the one who was pushing hard for union organization and that he did not want it held against him. Cunningham said he understood and knew that although Tully was in on it, he did not start it or push it. Cunningham added he knew who the hard pushers were-Johnson and Davis. Beal, who had first started with Respondent on 9 July, testified that he was sick all day Sunday, 23 September. On Monday Beal did not report to his 6 a.m. shift. He testified that he felt "really" sick when he woke up at 5 a.m. After twice calling the plant, letting the phone ring numerous times, and receiving no answer, he fell asleep. He woke up after 11 a.m. and again called the plant. A woman answered and, after Beal's apparent inquiry for Casper, said he was not in. She then agreed when Beal asked if he could leave a message for Casper to call him back. Beal received no call and when he reported for work the next day, he found that his timecard was miss- ing and that another worker was assigned to his job. At 7 a.m., Casper came in. Beal testified that he asked, "What's going on here?" and Casper replied, "John, I cannot operate this way" and told him to call back in a couple of hours. Around 10:30 a.m. Beal called and asked if he had his job. Casper repeated, "I can't operate this way, you have to be here" and then said, "You're out of a job " Casper recalls that he asked Beal where he had been on Monday and why he could not have at least called and that Beal replied that he did not wake up for 2 days and could not call. Casper asserts he then told Beal that he had been warned the week before that he would be terminated if he missed work again, and that Beal then asked for another chance. Casper replied he had given him enough chances. Beal was then terminated. Beal asked that Casper reconsider and said he would call in 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the afternoon. Casper testified Beal called and asked for another chance but Casper said no, ending the conversa- tion. Beal testified that he called Casper back on 27 Septem- ber and asked if "[i]t was final" and Casper answered, "Yeah, you're fired." Beal asserts that he then asked if he was fired for his union activities, and that Casper denied it and said if that was the case he could have fired others. Beal had been hired as a threader on 9 July after an interview with Casper . Respondent presented informa- tion relative to his absenteeism and tardiness showing that he had been late on 26 July, 8 and 10 August, and 4, 6, and 11 September and had been absent on 30 and 31 July, 13 September, and finally 24 September. Respond- ent asserts that Beal had the highest absenteeism and tar- diness rate of any employee and, on two occasions, he did not call to report off work. After the first failure on 13 September, Casper testified that he warned Beal that his next uncalled-in absence would result in his dis- charge. Respondent asserts that it had a policy of dis- charging employees for excessive tardiness and had done so on four other occasions in 1984 . Respondent also as- serts that it had a 90-day probationary policy with new employees and points out that Beal was within the pro- bationary period. Beal, however, testified he was not told of this policy when he was hired but was informed that he should check with Casper in a few months and he would receive an increase to the same wage that other threaders were making. III. DISCUSSION The issues in this case arose from the events surround- ing a brief organizational attempt by the Union. A review of the record leads to the conclusion that the Company responded to the challenge of union represen- tation for its employees with a series of actions which collectively demonstrate its abuse of employee rights. These primary violations cumulated in two actions of il- legal demotion and discharge. A. Interrogation Supervisor Casper is shown to have questioned em- ployee Beal on 12 September regarding information about the union organizational campaign and to have ac- companied his questions with a threatening statement re- garding the loss of his job if he did not take it easy with his union activities. In this connection, it is noted that Casper equivocally testified that "nothing else happened" after his admitted questioning of Beal. Zorger, however, independently corroborated Beal's testimony regarding the additional threat and I credit the employees' descrip- tion of the full conversation. The Board's decision in Rossmore House, 269 NLRB 1176 (1984), notes its rejection of any per se rule regard- ing interrogations and reasserts that the basic test for evaluating whether interrogations violate the Act is whether under all the circumstances the interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act. Here, there were no miti- gating factors, such as assurances against reprisals, the questions regarding the union meeting elicited reluctant answers, and they were accompanied by a threat. I con- clude that the General Counsel has shown that the ques- tions had a reasonable tendency to restrain or interfere with rights guaranteed by the Act. Accordingly, I find that Respondent unlawfully interrogated Beal on 12 Sep- tember in violation of Section 8(a)(1) of the Act as al- leged. On 17 September, subsequent to Spangler's speech on 12 September, which otherwise is found here to have embraced illegal threats, Respondent's president called a meeting of select employees. As noted, Respondent's brief admits that the meeting was for the purpose of so- liciting specific employee grievances and that union ac- tivity also was discussed. I credit the collective, corrobo- rating testimony of the employees and specifically Davis' testimony that Spangler questioned them by stating, "I want to know what your complaints are right now." Spangler admitted that after first discussing the ongo- ing union activity with Casper and Cunningham he re- quested them to get "these guys" for a meeting in his office. In this context, I therefore credit Tully's recollec- tion that Spangler told them that he knew the employees at the meeting were trying to start a union and he wanted to know why. Under these circumstances, ele- ments of restraint and coercion are present and I find that Spangler's questioning on 17 September regarding why they were trying to organize a union also constitut- ed unlawful interrogation in violation of Section 8(a)(1) of the Act, as alleged. B. Threats It is well established that statements which threaten such things as plant closure, discharge of union adher- ents, and loss of benefits constitute illegal interference. As noted, the credible testimony of Beal and Zorger shows that on 12 September Casper directly told Beal that he would lose his job if he did not refrain from his union activities . I find that this statement was designed to influence and interfere with the union activities of em- ployees and I conclude that it is a violation of Section 8(a)(1) of the Act, as alleged. The speech on 12 September by Respondent's presi- dent contains statements reflecting threats and related comments which, when viewed in their overall antiunion context, have the effect of illegally influencing and inter- fering with the Section 7 rights of employees. Again, I find the independent testimony of the several employees who described what was said by Respondent at the 12 September meeting to be basically consistent and credi- ble. The reliability of their recollection is reinforced by a review of the copy of the speech which Spangler relied on while addressing the employees, which copy basically reflects the subjects that were impressed on the memo- ries of the employees. These subjects, as more fully set forth above, first included Respondent's intense opposi- tion to a union, the Company's assurance that it would find out who signed authorization cards, the probability of a strike, the shutting down of the plant so that nobody would work, and the hiring of permanent replacements. To the extent that critical remarks made by Spangler are U.S. TUBULAR, INC. not fully reflected in the printed copy of the speech, I discredit his testimony that he gave the speech exactly as prepared and, implictly , as set forth in the copy offered into evidence. In view of the credible testimony of other witnesses, I infer that Spangler added or substituted ex- temporaneous remarks not reflected in the copy of the speech offered into evidence. Moreover, I find that Re- spondent's failure to reveal the copy of the speech to the Board's investigator in the fall of 1984 refutes its reliabil- ity and validity as a true copy of a document in existence contemporaneous with the delivery of the speech. Ac- cordingly, I receive Respondent's Exhibit 8 (the speech) into evidence with the express qualification that it is not shown to be a full and complete document prepared and in existence in that precise form at the time the speech was given to employees on 12 September. I find that the speech included threats that Respondent would find out which employees signed union authoriza- tion cards, would shut down the plant, and would hire permanent replacements and that by making these threats Respondent has infringed on the employees' Section 7 rights in violation of Section 8(a)(1) of the Act, as al- leged. The statements attributed to Respondent's officials Spangler and Cunningham during the company meeting on 17 September are not fully refuted by Respondent and I find that Respondent made such remarks to the several suspected union supporters who were called to the meeting. The remarks, set forth in detail above, in- cluded statements by Cunningham which followed a question about the Company's action in taking certain phones and vending machines out of service as well as the rescheduling of the two shifts and reducing overtime that "[w]e'll show you what a union shop is like ... . You don't have that kind of stuff working in a union plant" and I conclude that the remark constitutes a threat by Respondent regarding changes in existing working conditions, in violation of Section 8(a)(1), as al- leged. Although the remarks made at the meeting on 17 Sep- tember also included the solicitation of grievances and the promise of benefits, no allegations regarding the le- gality of these actions were made in the complaint or otherwise pursued by the General Counsel on brief and, accordingly, they will not be further considered. C. Other Interference Spangler's speech on 12 September informed employ- ees that it would be futile for them to select a union and he also indicated that the Company would gain access to any union authorization cards signed by employees. Both statements were made in context with other illegal re- marks and I find they had the purpose and effect of co- ercing employees to reject the Union and both remarks violate the Act, as alleged . See American Telecommunica- tions Corp., 249 NLRB 1135, 1136 (1980), and Heck's Inc., 273 NLRB 202 (1984). The day after the 12 September speech to the employ- ees, Respondent disconnected the telephones and the vending machines located in the threading sheds. Al- though Respondent may have accurately explained that it had been having trouble with the machines and did re- 715 place them in a month, it does not explain why they were disconnected for so long a period prior to replace- ment. Moreover, Vice President Cunningham subse- quently referred to the actions taken with the phones and vending machines, as well as the rescheduling of the two shifts, in his threat on 17 September as actions that would show the employee "what a union shop is like." Cunningham's implicit admission that the actions taken were retaliatory in nature, as well as the timing of the removal immediately after the antiunion speech of the previous day and the delayed replacement, confirms that Respondent's actions were taken as a means to interfere with the Union's organizational efforts. I find these ef- forts were coercive in nature and violate Section 8(a)(1) of the Act, as alleged. In this connection it is specifically observed that the rescheduling of the shift not only was a change in past practices but was done in such a manner as to separate the departure time of the first shift by an hour from the arrival time of the second shift, thereby interfering with the practicability of any contacts or mutual organizational activities common to both groups of employees. On Friday, 14 September, Davis was told that on Monday he would not be a leadman but should report to threader leadman Tully on another line. When he did so, he was paid a prompt visit by Vice President Cun- ningham after Supervisor Casper first inspected his work and observed union literature on the bench in his work area. Cunningham then instructed Davis that he was not allowed to have union handbills on the premises and or- dered him to clock out and remove them. This action is not shown to be justified by any legitimate rules or prac- tices of the Company and it otherwise is clearly coercive in nature and constitutes interference in violation of Sec- tion 8(a)(1) of the Act, as alleged. See Lance, Inc., 241 NLRB 655 (1979). D. Beal's Discharge With respect to the discharge aspect of this proceed- ing, applicable law requires that the General Counsel meet an initial burden of presenting sufficient evidence to support an inference that the employees' union activities were the motivating factors in the employer 's decision to terminate the employee . Here, the record shows that Beal openly distributed union leaflets and that on one such occasion Respondent's president was right behind him. Also, Supervisor Casper admitted learning from an- other employee that Beal was one of those who was going to attend a union meeting, Casper then questioned Beal about attending the meeting and warned him that he could lose his job because of his union activity These facts show that Respondent knew of Beal's union in- volvement and I otherwise find that the series of 8(a)(1) violations discussed above and the factional situations on which they are based demonstrate a climate of antiunion animus. Under these circumstances , I conclude that the General Counsel has met her initial burden by presenting a prima facie showing sufficient to support an inference that the employees' union activity was the motivating factor in Respondent's decision to terminate. According- ly, the testimony will be discussed and the record evalu- 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ated in keeping with the criteria set forth in Wright Line, 251 NLRB 1083 (1980) (see also NLRB v. Transportation Management Corp., 462 U.S. 393 (1983)), to consider Re- spondent's defense and, in the light thereof, whether the General Counsel has carried her overall burden. Supervisor Casper testified that he made the decision to terminate Beal when Beal failed to call in and report his absence on 24 September. Casper asserts that he ver- bally warned Beal the previous week, after Beal's ab- sence on the day after the union and company meeting, that he would be terminated for being absent without calling in. Respondent submitted two phone logs, kept in the regular course of business , Respondent's Exhibit 9 which begins on 5 September and Respondent 's Exhibit 10 which begins 23 March and extended to 17 Decem- ber. Neither log reflected a call for Casper from Beal on 24 September. Spangler testified that it is company policy to record every phone call; however, Respond- ent's Exhibit 9 shows only three calls to Casper during September-one from his sister, one from employee Bob Zorger on 5 September at 10 a .m. (with a message that he would be out the rest of the week because of his fa- ther's death), and one from a name not reflected in Re- spondent's payroll records. Respondent's Exhibit 10 shows only three calls for Casper between March and the end of September, two of which are from an oil company and one of which is from a name not reflected in Respondent's payroll records. Other witnesses indicated numerous occasions during this period where employees were late or absent and, except for Zorger's one call reflecting the extraordinary occasion of the death of his father, the telephone logs do not show any calls regarding these occasions. Under these circumstances, I cannot conclude that Respondent's phone logs constitute reliable, probative evidence that would tend to prove or disprove that phone calls regard- ing attendance at work were or were not made on any particular occasion. Respondent asserts that Beal was discharged for exces- sive absenteeism and tardiness and supports this assenta- tion with Casper's testimony that Beal had been late on 26 July, 8 and 10 August, and 4, 6, and 11 September and had been absent on 30 and 31 July, 13 September, and finally 24 September.3 It also claims that Beal had the highest absenteeism and tardiness rate of any employ- ee, that he was a probationary employee, and that in 1984 its policy of discharging employees for excessive tardiness resulted in four other terminations (one a threader). There is no indication, however, that Casper or any one else made any review or evaluation of Beal's attend- ance records prior to the time of the termination deci- a Beal's timecards reflect time in hundredths of an hour and shows he was late only .08 hour on 26 July and was docked for .25 hour The card for 8 and 10 August reflects a 7 a in clock-in, whereas the other days in that week are clocked in at 6 am, however, no notation "late" appears on the card as it does on the cards of some other workers and Beal's card otherwise reflects that he was credited with the same 8 hours' regular work on each day. The card for 30 and 31 July bears the notation "S" (apparently for sick). The clock-ins on 4 and 6 September were 14 and 10 hour late, respectively, and he was docked 50 hours in paid time The clock-in for 11 September was 04 hour and no late notation or re- duction in credited hours was made sion. In fact, no such review occurred until the time of the hearing when Respondent attempted to bolster and rationalize its decision to fire Beal. The record otherwise shows that threader David Pachmayer, who was not a union supporter, had a poor absenteeism record yet was not subjected to review or disciplinary action . In this connection, I credit the personal observations of former threader Zorger that Pachmayer was often absent in 1984, and at times did not call in.4 Zorger had no preju- dicial bias in relation to the outcome of this proceeding and he was in the unique position of frequently having been on a production line with Pachmayer and having to cover for Pachmayer to meet the line's production quotas. Respondent's payroll registers for April through July 1984 were entered into evidence but were not oth- erwise abstracted by the parties to show any specific comparisons. A brief review, however, indicates uncoded variations not reflecting vacation, sick, or holiday time ("v," "s," or "h") from a regular workweek of approxi- mately 38 hours less than regular between April and July. It also is noted that the circumstances under which the other threader was terminated were not specifically described. Under these circumstances, I find that Re- spondent's records do not refute Zorger's testimony and I conclude that Respondent has not probatively shown that at the time Casper dictated Beal's discharge, it had a valid reason to believe that Beal had a disproportionately worse attendance record than other comparable employ- ees. Zorger also credibly testified that when he was hired it was indicated that he would be given a week or two to see how he worked out but otherwise was not in- formed of any probationary period. Also, Tully testified that when hired, he was informed that after 90 days his rate of pay would increase 50 cents but that no mention was made of possible termination during that period. Re- spondent presented no written policy and, in view of the employees' testimony, I concluded that any verbal pro- bationary policy in effect related to a payscale rather than to any disciplinary or open termination probation- ary period. Furthermore, the alleged probationary period was not mentioned at the time Beal was discharged and it appears that the only reason given to Beal was that his termina- tion was for absenteeism. Under these circumstances Re- spondent's subsequent shift to a reliance on a "probation- ary" and "policy" rationale is not supported factually on the record and tends to reinforce a conclusion that Re- spondent's belated analysis of Beal's attendance record was not the determinative factor in his discharge. The record also shows that Respondent established an apparent progressive disciplinary system in the spring of 1984 because of excessive work absences or misuse of sick leave. Tully testified that Casper held a meeting 4 In this connection it is observed that Respondent submitted 10 time- cards for Pachmayer covering the period between July and September These cards showed a 3-hour late arrival on 20 July, absences on 3 August and 18 September, and a "late" notation on 21 September and clock-in time similar on 18 and 19 July of 6 02 and 6:14 a.m. for an appar- ent 6 a.m starting time Also, the entry for 17 September is written over to reflect a 6 a.m clock-in U.S. TUBULAR, INC. with the employees in March or April (prior to Beal's employment) and notified them that use of more than I sick day every third of the year would result in a 3-day layoff without pay. Here, at the time of Beal's discharge, no attempt was made to check out his story that he had called in, and no attempt was made to otherwise salvage the services of an employee with no apparent job per- formance problems. No lesser discipline, such as issuing a written warning or applying a suspension remedy, was considered despite the fact that other employees were frequently absent and tardy and had been told they would be subject to suspension without pay for such be- havior. Respondent made no investigation of the circum- stances of Beal's absence but instead immediately im- posed the most severe penalty possible . This occurred only a few days after the union drive began , after Beal was observed distributing union literature , after Supervi- sor Casper had interrogated Beal about his union in- volvement, and after Respondent had engaged in the other unfair labor practices noted above. Under the circumstances, I find that Respondent seized on Beal's indiscrete absence on 24 September to rid itself of a union supporter and to demonstrate the fu- tility of pressing a union campaign, a message which it had pressed on the employees in its meetings on 12 and 17 September. Although Respondent may have had some legimate business concern over the attendance practice of employees, it is clear that its action in terminating Beal in lieu of some lesser form of discipline was part of its effort to discourage other employees from joining and acting on behalf of the Union. Here, the factors noted above and especially the indi- cation of disparate treatment compared to employee David Pachmayer and the lack of clear, specific estab- lished rules regarding absences and tardiness distinguish this case from the situation recently considered by the Board in A & T Mfg. Co., 276 NLRB 1183 (1985). The timing of Beal's discharge almost immediately after Respondent's illegal interference with the employ- ees' organizational activities and just prior to the expira- tion of his alleged 90-workday probationary period, the absence of meaningful investigation, the failure to adhere to its apparent progressive disciplinary system , and the finality of the discipline all reinforce the pretextual nature of Respondent's justification and lead to the con- clusion that Beal would not have been discharged for the alleged offense but for his identification as a union sup- porter and Respondent's desire to keep the Union out of its shop. In summation, I conclude that although it can be con- sidered that Beal's absences partially motivated its action, Respondent has not persuasively shown that Beal would have been discharged in the absence of his active role in the union organizational drive just prior to his termina- tion. I otherwise conclude that the General Counsel has met the overall burden of proof consistent with the moti- vation criteria set forth in Wright Line, supra, and, ac- cordingly , I conclude that by discharging John Beal on 24 September, Respondent violated Section 8(a)(1) and (3) of the Act, as alleged. 717 E. Davis' Demotion Evaluation of the change relative to the demotion of threader leadman Davis to threader must also be made under the Wright Line criteria. Here, the General Coun- sel has shown that Davis attended the first employees' organizational meeting on 9 September and began distrib- uting union literature at Respondent's facility before work on 10 September . Davis was also selected by Casper and Cunningham to attend the meeting between management and the suspected union activists . A climate of antiunion animus was also shown and, under the cir- cumstances, including Respondent's various 8(a)(1) viola- tions, I conclude that the General Counsel , has estab- lished that Davis was known by Respondent to have been involved with the Union and that his demotion was in some way motivated by Respondent 's desire to frus- trate union activity. Respondent attempts to meet its affirmative defense burden by alleging that Davis was not demoted but was reassigned to threader from his position as leadman for legitimate business reasons . It asserts that Davis was the least senior leadman trained for the position , that when business is slow there is a cutback to one shift on certain threading lines, that some employees switch from lead- man back to threaders on such occasions, and that this is what happened to Davis on 17 September. Davis, however, testified that on 17 September Bob Bowen, who had been a threader for Davis, became the leadman on Davis' former line . Respondent asserts that its pay records and timecards do not reflect that Bowen worked as a leadman. The payroll records for the 2- week period ending 29 September show Bowman worked 74 hours as a threader and 33.5 hours as a labor- er on the upset crew . Bowman's timecard for the week of 17 September reflects no hours on Monday, 11.5 hours on Tuesday, 9 hours on Wednesday , 15 hours on Thursday, and 9 hours on Friday, 21 September, all as a threader. The following week, Bowman worked 10 hours on each day except Friday under the threader code number. Davis' unrebutted testimony shows that he held the position of leadman for several months before getting leadman pay . A review of Respondent's payroll records show that in April Davis was coded as a threader, but received 50 cents an hour more than other threaders and in July 75 cents more (for a total of $6.75 , the same rate he received when he was listed under the leadman code), and that starting in August he was listed under the lead- man code. For the week of 17 September , Davis' time- card reflected the code for a threader and 40.5 hours while the 2-week payroll records list him under the code for threader leadman with no hours and coded as a threader for 80.5 hours at a rate of $6 an hour. Under these circumstances, I conclude the timecard and payroll record are not shown to be sufficiently reliable to sub- stantiate Respondent's contention that they would accu- rately show whether Bowman actually served as a threader leadman and they do not disprove Davis' testi- mony that Bowman replaced him as a leadman. Most significantly, no specific evidence was presented to show any slowdown in business at the time of Davis' 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD demotion. A review of Respondent's payroll records, however, shows the following regular and overtime hours worked for the 2-week period ending on the date indicated: Threaders Leadman Threader 9/15 ................................................... 1467 662 9/29 ........................ ....................... 1502 615 Thus, a comparison of the 2-week period before Davis was demoted with the 2 weeks after shows that at the time of the alleged slowdown in business, threaders worked 35 hours more, while leadmen were credited with 47 hours less. This indicates that the same or higher level of operation was maintained with the only real dif- ference being that neither Davis nor Bowman was being coded or paid as a leadman threader. Accordingly, I conclude that Respondent's asserted business reason is false and its assertation that a slowdown in work re- quired Davis' "reassignment" is merely a rationalization to disguise its real, antiunion motivation for Davis' de- motion. In addition, it is noted that Davis was not told by Respondent at the time he was "reassigned" that it was because of a business slowdown and, otherwise, I credit Davis' testimony that when he inquired of the reason, Supervisor Casper specifically told him that it was because he had a "bad attitude" and, along with others, "was going to be straightened out." Under these circumstances, I conclude that Respond- ent has not met its burden of showing that Davis would have been demoted absent his protected union activity. The General Counsel otherwise has met her overall burden of proof and I further conclude that by telling Davis he was being demoted for his "bad attitude" and by demoting him because of his union activity Respond- ent violated Section 8(a)(1) and (3) of the Act, as alleged. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By interrogating employees concerning their union sympathies and activities or those of other employees and by stating to, and threatening, employees that they would be discharged for engaging in union activities, that the Company would find out who signed authoriza- tion cards, that the plant would be shut down and per- manent replacements hired, that selection of a union would be futile, and that telephones and vending ma- chines would be removed, work shifts rescheduled, and overtime reduced, Respondent has interfered with, re- strained, and coerced employees in the exercise of their rights guaranteed them by Section 7 of the Act, and thereby has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. 4. By disconnecting telephones and vending machines, by rescheduling shifts to separate and interfere with em- ployee contacts, and by prohibiting an employee from having union literature on Respondent 's premises and or- dering him to clock out and remove such literature, Re- spondent has engaged in unfair labor practices in viola- tion of Section 8(a)(l) of the Act. 5. By discharging employee John Beal on 25 Septem- ber 1984 because of his union activities, Respondent has violated Section 8(a)(1) and (3) of the Act. 6. By demoting employee Jeffrey Davis and telling him that he had a "bad attitude" and "was going to be straightened out" because of his union activities, Re- spondent violated Section 8(a)(1) and (3) of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. Respondent having discriminatorily demoted and dis- charged employees Davis and Beal, I find it necessary to order it to offer them reinstatement to their former posi- tions with compensation for loss of pay and other bene- fits, in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). It also shall reinstate the working conditions that existed prior to 12 September 1984, and remove from its files any reference to the de- motion and discharge and notify them that it has been done and that evidence of such unlawful action will not be used as a basis for further action against them. See Sterling Sugars, 261 NLRB 472 (1982). Otherwise, be- cause of the serious nature of the violations and an over- all display of a general disregard for the employees' fun- damental rights, I find it necessary to issue a broad order, requiring Respondent to cease and desist from in- fringing in any other manner on rights guaranteed em- ployees by Section 7 of the Act, Hickmott Foods, 242 NLRB 1357 (1979). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed$ ORDER The Respondent, Benmit Division, U.S. Tubular, Inc., Dalton, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating any employee about his union support or union activities. (b) Threatening employees with the closure of its busi- ness and the hiring of permanent replacements because of ongoing union activities. (c) Threatening employees with discharge for engag- ing in union activities. I If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses U.S. TUBULAR, INC. (d) Informing employees that it would find out who signed authorization cards. (e) Telling employees that selection of a union would be futile. (f) Disconnecting the telephones and vending ma- chines, rescheduling shifts to separate employee contacts, and informing employees that such actions, as well as re- duction in overtime, are examples of a union shop. (g) Prohibiting employees from having union literature on its premises and ordering employees to clock out to remove union literature from its premises. (h) Telling any employee that he has a "bad attitude" that will be straightened out because of his union activi- ties. (i) Demoting any employee because of his union ac- tivities. (j) Discharging any employee or otherwise discrimi- nating against him in retaliation for engaging in union ac- tivities or other protected concerted activities. (k) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer John Beal immediate and full reinstatement to his former position and make him whole for the losses he incurred as a result of the discrimination against him in the manner specified in the remedy section, above, remove from its files any reference to his discharge on 25 September 1984, and notify him in writing that this has been done and that evidence of this unlawful dis- charge will not be used as a basis for future personnel actions against him. (b) Offer Jeffrey Davis immediate and full reinstate- ment to a position as threader leadman and make him whole for the losses he incurred as a result of the dis- 719 crimination against him in the manner specified in the remedy section, above, remove from its files any refer- ence to his demotion on 17 September 1984, and notify him in writing that this has been done and that evidence of this unlawful demotion will not be used as a basis for future personnel actions against him. (c) On request, reinstate the working conditions rela- tive to vending machines, telephones, shift starting and ending times, and overtime to those that existed prior to 12 September 1984. (d) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its Dalton, Ohio facility copies of the at- tached notice marked "Appendix."e Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent's authorized rep- resentative, shall be posted by the Respondent immedi- ately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reasonable steps shall bt aken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. s If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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 "