Axelson, Inc.

AXELSON, INC. Axelson, Inc. and International Association of Ma- chinists and Aerospace Workers, AFL-CIO. Case 16-CA-9302 30 July 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 17 September 1981 Administrative Law Judge Richard A. Scully issued the attached deci- sion. The Respondent filed exceptions and a sup- porting 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, 3 and conclusions,2 as modified herein, 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, Axelson, Inc., Longview, Texas, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order as modified. i The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an,admimstrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Will Products, 91 NLRB 544 (1950), enfd 188 F,2d 362 (3d Car 1951). We have carefully examined the record and find no basis for reversing the findings. Throughout his decision, the judge characterizes the 29 July 1981 meeting as an "investigatory" interview. The protection afforded employ- ees as outlined in NLRB P. J Weingarten, 420 US. 251 (1975), covers both `investigatory" and "disciplinary" interviews, except those inter- views conducted for the exclusive purpose of notifying an employee of previously determined disciplinary action. Baton Rouge Water Works Co, 246 NLRB 995 (1979) Therefore, we have modified the judge's recom- mended Order and notice to conform to Baton Rouge. The judge relied on Kraft Foods, 251 NLRB 598 (1980), in finding that employee Bryant was not entitled to reinstatement and backpay since there was no evidence that the employee was discharged on the basis of information obtained during the unlawful interviews Although we agree with his finding that the employee is not entitled to reinstatement and backpay, Chairman Dotson and Member Stephens rely on Taracorp, Inc., 273 NLRB 221 (1984), which overruled Kraft Foods. Member Johansen concurs in the finding that a make-whole remedy is not appropriate when an employee has been disciplined for lawful reasons. 2 The Respondent contends that employee Bryant was not entitled to a union representative because the Union had lost the initial ballot count in a decertification election held on 13 September 1979. On 28 February - 1984, however, after resolution of objections and determinative chal- lenged ballots, the Board certified that a majority of valid ballots had been cast for the Union. Thus, even assuming, arguendo, the application of the "at risk" doctrine of Mike O'Connor Chevrolet, 209 NLRB 701 (1974), to the Respondent's postdecertification-election denial of a union representative under Weingarten, we would still find the violation here because the Union won the election and thereby reaffirmed its majority representative status. See Saints Mary & Elizabeth Hospital, 282 NLRB 73 (1986) 49' 1. Substitute the following for paragraph 1(a). "(a) Requiring any employee to take part in any interview, except an interview conducted for the exclusive purpose of notifying an employee of pre- viously determined disciplinary action, without union representation if such representation has been requested by an employee who has reasonable grounds to believe that the interview may result in disciplinary action." 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board 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 pro- tected concerted activities. WE WILL NOT require any employee to take part in any interview, except an interview conducted for the purpose of notifying an employee of previ- ously determined disciplinary action, without union representation if such representation has been re- quested by an employee who has reasonable cause to believe that the interview may result in discipli- nary action. 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. AXELSON, INC. J O. Dodson, Esq., for the General Counsel. Frank B. Wolfe, Esq., of Tulsa, Oklahoma, for the Re- spondent. J. D. Crow, of Dallas, Texas, for the Charging Party. 285 NLRB No. 5 50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD DECISION RICHARD A . SCULLY, Administrative Law Judge. On a charge filed on 11 August 1980, a complaint ' was issued by the Acting Regional Director for Region 16 of the National Labor Relations Board against Axelson, Inc (the Respondent) alleging that it had engaged in certain unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) The Respondent filed a timely answer denying that it had committed any violation of the Act. A hearing was held in Longview, Texas, on 28 and 29 April 1981, at which all parties were given a full oppor- tunity to participate , to examine and cross -examine wit- nesses, and to present argument Briefs submitted on behalf of the General Counsel and the Respondent have been carefully considered . On the entire record and from my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT I THE BUSINESS OF RESPONDENT At all times material, the Respondent was a Delaware corporation with offices and its principal place of busi- ness in Longview , Texas, where it engaged in the manu- facture and marketing of production equipment used in the petrochemical industry . During the previous calendar year, it received goods and materials valued in excess of $50,000 directly from suppliers located outside the State of Texas and it sold and shipped goods valued in excess of $50,000 directly to customers located outside the State of Texas . The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent admits, and I find, that at all times material the International Association of Machinists and Aerospace Workers, AFL-CIO (the Union) has been a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The first issue is whether the Respondent unlawfully refused to permit employee Elijah Bryant Jr. to have a union representative present during an investigative interview on 29 July 1980, thereby violating his rights to union representation under Section 7 of the Act as out- lined in NLRB v. J. Weingarten, Inc., 420 U S. 251 (1975) The second issue is whether the Respondent dis- charged Bryant in retaliation for his participation in a strike at its Longview facility in 1979. ' Prior to the opening of the hearing the parties reached a settlement in Case 16-CA-9279 and the General Counsel 's motion to withdraw the portion of the consolidated complaint relating to Case 16-CA-9279 was granted B. The Facts Bryant was employed by the Respondent at its Long- view plant on 6 January 1964 His job classification was that of "car loader," which included unloading incoming raw steel from trucks inside the plant with the aid of an overhead crane and loading finished steel rods on trucks outside the building using a forklift truck. His duties also involved doing the paperwork related to the receipt of raw material. The Union had been certified to represent the Re- spondent's employees for approximately 20 years prior to the expiration of the most recent collective-bargaining agreement on 18 February 1979. After that contract ex- pired, there was an economic strike at the plant, which lasted until 31 May 1979. Bryant was a member of the Union and participated in the strike throughout its course. Thereafter, he made an unconditional offer to return to work and was recalled about 5 October 1979, to work as a car loader on the night shift. He stayed there until December 1979, when he was returned to the first shift where he had worked prior to the strike Bryant was the only car loader assigned to the first shift in the Respondent 's rod plant. After the end of the strike, a petition to decertify the Union was filed and an election was held on 13 Septem- ber 1979 There were many challenged ballots and objec- tions to the election were filed by both the Respondent and the Union . The Board has overruled the objections and has ordered a number of the challenged ballots counted A final determination on the decertification pe- tition awaits the resolution of the remaining challenges, which depends on the outcome of a related unfair labor practices case 1. The alleged Weingarten violation On the morning of Monday , 21 July 1980, Bryant ad- vised his foreman, Kenneth Roberson, that he wanted leave to attend a funeral Roberson went with Bryant to the office of Richard McGehee, the superintendent of the rod plant Bryant asked McGehee for 4 days' leave in order to attend the funeral in Yuma, Arizona, of an uncle "that had nearly raised him " McGehee advised Bryant that he did not have authority to grant leave, but that he would consult with the personnel department McGehee then telephoned John Teegerstrom, the Re- spondent's manager of industrial relations, and advised him of Bryant's request Teegerstrom told McGehee that he needed more information and that he would come over and talk to Bryant Teegerstrom came to McGehee's office where McGe- hee, Roberson, and Bryant were present Bryant asked Teegerstrom for a leave of absence to attend the funeral. Teegerstrom told Bryant that he could not grant leave to attend the funeral of an uncle , but that he would try to work something out 2 Teegerstrom then asked if Bryant 2 The collective-bargaining agreement , which had expired on 18 Feb- ruary 1979, provided for 2 days off with pay for the purpose of attending the funeral of a member of an employee 's immediate family However, immediate family did not include uncles AXELSON, INC had any vacation coming to him. McGehee's unofficial records indicated that Bryant had 40 hours of vacation due and this was verified by the personnel department. Bryant was asked if he would consider taking vacation and responded that he wanted a leave of absence. When Teegerstrom told him he could not have leave, he agreed to take vacation. Teegerstrom told Bryant that he would have to take all of his vacation that week and return to work on Monday, 28 July Roberson and McGehee agreed that they could get along without Bryant for the rest of the week Bryant was told that he could leave immediately, it being between 8 and 9 a.m., and that he would be paid for the time he had worked that day and for his 40 hours of vacation. Bryant asked if he could take 4 days of vacation that week and save 1 day or take Monday, 28 July, off and was told he could not.3 There was some additional discussion about the va- cation time Bryant had coming and Teegerstrom told Bryant that he was being allowed to take his vacation time that week because of special circumstances,4 that Monday, 21 July, would be the first vacation day, and that the only way he would be granted the vacation was if he returned to work on 28 July. Bryant asked if he could get his 40 hours' vacation pay in advance and was told that it might be possible, but that it would not be ready until the afternoon. Bryant stated that he would work the rest of the day and did so I find that Bryant was told explicitly that his being al- lowed to take his vacation during the week beginning 21 July was conditioned on his return to work on 28 July. Bryant acknowledged this in his testimony He further testified he did not advise Roberson or McGehee that he would not be back to work on 28 July and that when he left he intended to be back to work on that date.5 Bryant did not report for work on Monday, 28 July, and did not call in to explain his absence He came in on Tuesday, 29 July, and on arrival was asked by Roberson where he had been the previous day Bryant responded 3 It was company policy that vacations should be taken in weekly in- crements, when possible , beginning on Monday and ending on Sunday, and the printed vacation request forms used by the Company so provide It was also company policy that vacation time due employees should be taken and no payment in lieu of vacation would be made except at the Company's request Under the circumstances, it appears that Teegerstrom could have permitted Bryant to take Monday, 28 July, as a vacation day had he chosen to do so It is clear that he did not do so and that Bryant was told that he was expected to be back at work on Monday, 28 July 4 Normally, an employee must request vacation a month in advance The Company has the final say as to when vacation time can be taken 5 My findings as to what transpired on Monday, 21 July, are based on the credited testimony of Teegerstrom, McGehee, and Roberson in the limited instances that their consistent versions of the events differ from that of Bryant Bryant testified that he went directly to McGehee with his request for leave and did not talk to Roberson It is clear, however, that Roberson was involved and that he was present in McGehee's office throughout the course of the conversations concerning Bryant's request for leave to attend the funeral Bryant also testified that McGehee had told him initially that there was no problem with his taking 5 days' vaca- tion but that it was up to Teegerstrom However, the suggestion that Bryant take vacation time was first brought up by Teegerstrom after he arrived at McGehee's office McGehee had authority to grant vacation but not leave If McGehee had approved Bryant's taking vacation there would have been no reason for Teegerstrom to have gotten involved in the matter Bryant denied that Teegerstrom told him he could leave im- mediately on 21 July and be paid for the time he had already worked In fact, Bryant was paid for 40 hours' vacation and for the full day he worked on Monday, 21 July 51 that he had another vacation day coming to him Some- time later, Bryant spoke to McGehee and told him there had been a misunderstanding as to when he was to report back to work At approximately 10 a.m., Bryant met with Teegerstrom, McGehee, and Roberson in McGehee's office to discuss Bryant's absence. A supervi- sor named Johnny Merrill was also present, but did not participate in the meeting. Teegerstrom asked Bryant where he was on Monday and Bryant said he was at home. Teegerstrom asked why he had not come to work and Bryant said that he had had 40 hours of vacation coming to him. Teegerstrom asked additional questions concerning when the funeral had been, when Bryant had returned home, and about stopping in Dallas to visit his sister. Teegerstrom again asked why Bryant did not come to work on Monday and Bryant responded that he had 40 hours of vacation 6 At this point in the meeting Bryant told Teegerstrom that he wanted a representative. Bryant testified that he specifically asked for a "union representative" and was told by Teegerstrom that as far as Teegerstrom was con- cerned there was no union representation. When Bryant repeated his request, Teegerstrom told him he could have Bill Mulliken, the Respondent's personnel manager, as a representative 7 Bryant refused because Mulliken was "company." After his request for representation, Bryant answered no other questions and was told to return to work "pending further investigation." Roberson, McGehee, and Teegerstrom all denied that Bryant used the word "union" when he asked for a rep- resentative. According to Teegerstrom, Bryant asked only for "a representative " When Bryant rejected his offer to get Mulliken as a representative, Teegerstrom asked him who he wanted and Bryant responded, "you know who." When Teegerstrom asked where the repre- sentative he wanted was, Bryant responded, "you know." These questions and answers were repeated sev- eral times. McGehee and Roberson testified that this conversation was essentially as described by Teeger- strom. Bryant denied that Teegerstrom asked him who he wanted called or where the representative he wanted was. Teegerstrom testified that after the exchange con- cerning the representative, he asked Bryant only if he wanted to offer anything further, Bryant declined, and the meeting terminated Although in some respects Bryant's recollection of the incidents on 29 July 1980, and at other times, was faulty or confused, I credit his testimony concerning the re- quest for a union representative at this meeting, notwith- standing the contrary testimony of the three company 6 Bryant admitted making this statement Although he also testified that he told Teegerstrom he was tired and feeling bad from the long drive, none of the others present corroborated this According to Rober- son, McGehee, and Teegerstrom, Bryant mentioned being tired only in connection with his stopping at his sister's home in Dallas on Saturday I do not credit Bryant's claim that he told them he did not come to work on Monday because he was "tired and feeling bad " r According to Bryant, Teegerstrom offered Mulliken as a representa- tive in a meeting held at 3 p m that day Inasmuch as I credit the testi- mony of Roberson, McGehee, and Teegerstrom that Bryant did not ask for a representative at the afternoon meeting , this discussion must have occurred at the morning meeting All those present but Bryant placed it in the morning meeting 52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD representatives who testified. First, I find it difficult to believe that Bryant, who was a member of the Union, would ask only for "a representative" and never mention the word "union" despite repeated inquiries by Teeger- strom as to who the representative he wanted was and where the representative could be found. I also find it difficult to believe that Bryant would reject Mulliken as a representative because he was "company," but not say that the representative he wanted was "union." I find it likely that the questions about who Bryant wanted as a representative and where the representative was, if asked at all, came after Teegerstrom had dismissed Bryant's re- quest for union representation by saying that as far as he was concerned there was no union representation, a statement that was consistent with the Respondent 's posi- tion that the Union had lost the decertification election. Also, I consider it incredible that two upper echelon supervisors such as Teegerstrom and McGehee, each with substantial experience with industrial relations mat- ters and, specifically, with the conduct of disciplinary interviews, were not aware that Bryant was asking for union representation . I find that Bryant requested a union representative and that his request was denied or ignored. At approximately 3 p.m., on 29 July 1980, Bryant was again summoned to McGehee's office where Teeger- strom, McGehee, and Roberson were present. A supervi- sor named Art Meeker was also present but did not par- ticipate in the meeting. According to McGehee and Ro- berson, Bryant was asked if he wanted to add anything to what he had said at the morning meeting and de- clined Teegerstrom testified that he began the meeting by reviewing what Bryant had said at the morning meet- ing and then asked if Bryant wanted to offer anything in his behalf. Bryant said, "no." All three deny that Bryant asked for representation at this meeting. Bryant testified that at this meeting Teegerstrom asked him some of the same questions he had asked before and asked him for proof that he had attended his uncle's fu- neral . Bryant went out to his truck and got a program from the funeral 8 Although Bryant stated that he asked for a union representative at this meeting and was of- fered Mulliken, as discussed above, I find that the con- versation concerning a representative and Mulliken oc- curred at the morning meeting. This meeting ended with Teegerstrom telling Bryant that he had failed to return to work on Monday, as he had agreed, that he was being placed on indefinite sus- pension for insubordination, and that he would be noti- fied of the final disposition of the matter at a later date. Bryant asked if his suspension had anything to do with an accident he had had with a forklift truck and was told that it did not. When Bryant indicated that he did not understand what insubordination meant, Teegerstrom gave him an explanation and then read him the definition from a dictionary. Bryant was directed to report to the plant on Friday of that week, but when he got there he was told that Teegerstrom had gone home sick. On the following 8 McGehee's testimony indicates that the funeral program was ob- tained at the afternoon meeting (Tr 164 ) Monday, 4 August 1980, Bryant met with Teegerstrom, McGehee, and Stu Hink, Respondent's vice president of manufacturing. Teegerstrom again reviewed the facts concerning Bryant's failure to return to work on 28 July and asked Bryant if he had anything to say in his behalf. Bryant said he had nothing to say and Teegerstrom told him that he was terminated for insubordination. Discussion and Conclusions In the Weingarten case, supra, the Supreme Court held that an employee has a statutory right to refuse to submit without union representation to an interview that he rea- sonably fears may result in discipline. The first questions presented are whether under the circumstances the em- ployee was entitled to union representation and whether he made a valid request for such representation.9 The Respondent contends that Bryant had no right to a union representative because the Union had lost the decertifica- tion election and, therefore, his request for union repre- sentation is not concerted activity. Not only is the final result of the election still in doubt, but the Board has held" that the employees' statutory right to representa- tion during an investigatory interview is not dependent on the status of a union as a bargaining representative, stating: [I]n Weingarten, the Court's primary concern was with the right of employees to have some measure of protection when faced with a confrontation with the employer which might result in adverse action against the employee. These employee concerns remain whether or not the employees are represent- ed by a union. Here, employees Charles and Kittley requested union representation at a time when the Union had been selected by a majority of employees in a Board-conducted election, but had not yet been certified as the bargaining representative. Their re- quest was an exercise of the right guaranteed to them by Section 7 to act in concert for mutual aid and protection In these circumstances, the status of the requested representative, whether it be that of Union not yet certified or simply that of fellow em- ployee, does not operate to deprive the employees of the rights which they enjoy by virtue of the plain mandate in Section 7.11 Therefore, Bryant had the right to union representation at the interview conducted on 29 July 1980. The Respondent contends that Bryant's request for union representation was ineffective because he failed to designate a specific union representative by name. It is true that the right to have representation at an mvestiga- 9 There is apparently no dispute that Bryant had a reasonable expecta- tion that discipline might result from the meeting on 29 July 1980, and I so find There is no merit to the suggestion in Respondent 's brief that dis- ciplinary action had already been decided before the interview on 29 July Teegerstrom terminated the morning interview on that date by sending Bryant back to work "pending further investigation" and testified that he was still discussing what action to take on the morning of 4 August- 10 Anchortank, Inc, 239 NLRB 430 (1978) 11 Id at 431 AXELSON, INC. tory interview is triggered only on a request for such a representative, 12 but there is no specific requirement that the employee designate a union representative by name. It is enough when, as here, the request is "sufficient to put the Employer on notice of the employee's desires."13 Given Teegerstrom's response to Bryant's initial request for union representation, that as far as he was concerned there was no union representation, and his offer to call Mulliken, Respondent's personnel manager who replaces Teegerstrom in his absence, to act as a representative, I find that any attempt by Bryant to designate a specific individual would have been futile. I was not impressed by Teegerstrom's claim that he personally did not know who or where the union representatives were. As the Company's director of industrial relations it was his busi- ness to know or to find out. The Union had been in the plant for 20 years or more. Teegerstrom admitted that he knew the Union had an office in Longview and that he was acquainted with at least three union representatives. He admitted that he made no effort to contact the union office in Longview or any union representative. This is not a case where the employee made a request for repre- sentation that was impossible to comply with. On the contrary, it appears that Teegerstrom did not make even a good-faith effort to honor the request, but simply re- jected it because "as far as he was concerned there was no union representation." I find that Bryant made a valid request for union representation during the morning meeting on 29 July and that it was denied. I further find that it was unnecessary to make a similar request at the afternoon meeting because it was nothing more than a continuation of the same interview on the same day, in the same place, with the same participants, and about the same subject matter and because Teegerstrom's response to Bryant's initial request made it clear that any renewed request would be futile. The Board has held that: Under Weingarten, once an employee makes such a valid request for union representation, the em- ployer is permitted one of three options: (1) grant the request, (2) discontinue the interview, or (3) offer the employee the choice between continuing the interview unaccompanied by a union representa- tive or having no interview at all. Under no circum- stances may the employer continue the interview without granting the employee union representation, unless the employee voluntarily agrees to remain unrepresented after having been presented by the employer with the choices mentioned in option (3) above or if the employee is otherwise aware of those choices. [Emphasis in original.] i 4 Teegerstrom terminated the morning interview immedi- ately after denying Bryant's request for representation except for asking whether Bryant wanted to say any- thing in his behalf. i 5 However, he reconvened the inter- 12 See Lennox Industries, 244 NLRB 607 (1979) 13 Southwestern Bell Telephone Co, 227 NLRB 1223 (1977) 14 Postal Service, 241 NLRB 141 (1979) 15 This alone may not have been sufficient to constitute a violation of the Act See Texaco, Inc, 242 NLRB 291 (1979) 53 view that afternoon, reviewed the statements Bryant had made in the morning, asked for and obtained a copy of the funeral program, and again asked Bryant if he had anything to add without offering Bryant the choice of continuing the interview unrepresented or having no interview at all. When the employer attempts to question the employee, to engage in any manner of dialogue, or to participate in any other interchange that could be char- acterized as an interview after denying the request for representation, there is a violation of the Act. i 6 The meeting with Bryant conducted by Teegerstrom on the afternoon of 29 July clearly constitutes such an interview and a violation of Section 8(a)(1) of the Act. When the employer conducts an investigatory inter- view in violation of Weingarten and the employee is dis- charged for conduct that was the subject of that inter- view, a reinstatement and backpay order is appropriate unless the employer establishes that the discharge was not based on information that it obtained during the interview, i 7 Here, the General Counsel has made a prima facie showing that Bryant's failure to report for work on Monday, 28 July, was the cause of his discharge and was the subject matter of the unlawful interview. The Respondent, however, has established that it relied solely on information obtained prior to the unlawful interview and not on anything obtained therein. Bryant stated his reason for failing to report on 28 July, that he had another day of vacation coming to him, to Roberson and McGehee on the morning of 29 July and to Teeger- strom at the meeting in McGehee's office before he made his request for union representation. Bryant was dis- charged for failing to return to work on 28 July, as he had agreed when his application for emergency vacation had been approved on 21 July. He understood and agreed to the conditions Teegerstrom had set in granting the vacation, accepted payment for 8 hours of vacation in lieu of the time off, and then took the time off anyway. All of these facts were known to Teegerstrom before the meeting in the afternoon of 29 July and they were the basis for Bryant's discharge. The only thing new that was developed at the meeting was Bryant's producing the funeral program which evidenced his at- tendance at the funeral. Although this may have shown that his request for time off was justified, it had no bear- ing on the matter that caused his discharge, his failure to return to work on 28 July. Because Bryant's discharge was not based on information obtained during the unlaw- ful interview, the Respondent will not be required to re- instate Bryant or give him backpay. 2. The alleged 8(a)(3) violation The complaint also alleges that Bryant's discharge was in retaliation for his participation in a strike between 18 February and 31 May 1979. The General Counsel con- tends that several incidents being the allegedly "trumped up" reprimand of Bryant on 14 July 1980, over a record- keeping error. According to Bryant, he was called into Is Amoco Oil Co, 238 NLRB 551 (1978), Lennox Industries, supra 17 Kraft Foods, Inc, 251 NLRB 599 (1980), Coyne Cylinder Co, 251 NLRB 1503 (1980) 54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD McGehee's office and Roberson told McGehee that Bryant had not correctly recorded certain raw material that had been received. Bryant responded that he had been sent outside to load a truck. McGehee told Bryant that he had to keep up with the steel received on his shift, either by doing it himself or training someone to do it. When Bryant asked that the same man be sent to help him every time, McGehee said maybe Bryant should find another job. According to McGehee, he questioned Bryant about a report that bore Bryant's initials and showed four or five bundles of steel being received while a shipping notice showed seven or eight bundles had been delivered. Bryant was asked to help out in determining what was wrong with the unloading document. There is no evidence that Bryant was disciplined as a result of this incident or that he was asked to do any- thing other than what was a part of his normal duties as a car loader. Another incident occurred on 15 July 1980. While loading a damaged crate of steel rods on a truck, the forklift truck Bryant operated malfunctioned causing the crate to slip off, striking and injuring the truckdriver who was attempting to assist with the loading . Bryant testified that the incident was investigated by McGehee and Mulliken and Mulliken concluded that there "was negligence on the fork operator." According to McGehee's testimony , his investigation of the incident indicated that the mechanical failure of the forklift, which was known to have had a hydraulic pressure problem for several months , was the major cause of the accident although operator error was also involved . No disciplinary action was taken against Bryant. To the extent their versions of these incidents differ, I credit the testimony of McGehee who appeared to have a clearer recollection of the events than Bryant There does not appear to be any dispute but that Bryant was not disciplined in any way with respect to either inci- dent. Finally, the General Counsel points to the suspension and discharge of Bryant for missing a single day of work. While the Respondent 's action in discharging ap- pears harsh, the evidence shows that Teegerstrom and McGehee made a considerable effort to accommodate Bryant's request for time off and to get him his vacation pay before he left on 21 July, that Bryant was aware that he was expected back on 28 July, and that he agreed that he would be there. Under the circumstances , it cannot be said that Respondent's action in discharging Bryant was without cause. There is no evidence of any union animus on the Re- spondent's part. Considering all the evidence in the record, I find nothing that would indicate Bryant's dis- charge was in any way related to the fact that he had participated in a strike that had ended 14 months earlier. Accordingly, I find that the General Counsel has failed to establish a prima facie case that Bryant's participation in the strike was a motivating factor in the Respondent's decision to discharge him and recommend that this alle- gation be dismissed. CONCLUSIONS OF LAW 1. The Respondent, Axelson, Inc, is an employer en- gaged 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. The Respondent violated Section 8(a)(1) of the Act on 29 July 1980, by requiring Elijah Bryant Jr. to submit to an investigatory interview that he reasonably feared might result in his discipline , while denying his request for union representation. 4. The Respondent did not violate Section 8 (a)(1) and (3) of the Act by its discharge of Elijah Bryant Jr. THE REMEDY Having found that the Respondent has violated Sec- tion 8(a)(1) of the Act in certain respects , I shall recom- mend that it be required to cease and desist therefrom and to take certain affirmative action designed to effectu- ate the policies of the Act. Inasmuch as I have found that the Respondent's dis- charge of Elijah Bryant Jr. was not based on any infor- mation obtained as a result of the unlawful interview, I shall not recommend that Bryant be ordered reinstated or awarded backpay. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed18 ORDER The Respondent, Axelson, Inc., Longview, Texas, its officers, agents, successors , and assigns, shall 1. Cease and desist from (a) Requiring any employee to take part in any investi- gatory interview without union representation if such representation has been requested by the employee and he has reasonable grounds to believe that the interview may result in disciplinary action against him. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its Longview, Texas facility, copies of the attached notice marked "Appendix." i 9 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- 18 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 is 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 " AXELSON, INC. 55 sonable steps shall be taken by the Respondent to ensure IT IS FURTHER RECOMMENDED that the complaint be that the notices are not altered , defaced, or covered by dismissed insofar as it alleges violations not specifically any other material. found. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply.