Carolina Steel Corp.

National Labor Relations Board - Board Decisions

Oct 10, 1989

296 N.L.R.B. 1279 (N.L.R.B. 1989)

CAROLINA STEEL CORP.
Carolina Steel Corporation and Chauffeurs, Team-
sters and Helpers Local Union , No. 391 , affili-
ated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America , AFL-CIO. Case 11-CA-12565
October 10, 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On June 9, 1989, Administrative Law Judge
Harold Bernard Jr . issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
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 briefs and has
decided to affirm the judge 's rulings, findings, I and
conclusions as modified and to adopt the recom-
mended Order as modified and fully set out
below.2
The judge found that the Respondent ceased dis-
tributing computerized pay printouts in August
19873 in violation of Section 8(a)(1) of the Act. We
disagree.
Drivers began organizing the Union at Respond-
ent's Greensboro, North Carolina facility in late
July. In August, the Respondent provided three
computerized pay printouts listing the various fac-
tors used to compute the drivers' pay. Employee
Floyd Isley testified that he received computerized
printouts on August 9, 17, and 20, which covered 3
previous weeks. No additional printouts were pro-
t 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
We also find totally without merit the Respondent 's allegations of bias
and lack of objectivity on the part of the judge . On our full consideration
of the record and the decision , we perceive no evidence that the judge
prejudged the case , made prejudiced rulings, lacked objectivity , or dem-
onstrated a bias against the Respondent in his analysis or discussion of the
evidence.
We correct the judge 's inadvertent error in stating that Gilbert Suggs
worked as a truckdriver for the Respondent for over 21 years , it is clear
from the evidence that Suggs worked for the Respondent for over 21
years , but as a truckdriver for only 18 years
While Member Devaney agrees that the Respondent violated Sec
8(a)(3) and ( 1) by unlawfully discharging employee Suggs , he would not
find the fact that Respondent's officials did not shake hands with Suggs,
the Union 's observer , after the election was evidence of Respondent's
animus toward the Union
z Backpay for Gilbert Suggs shall be computed as prescribed in F W
Woolworth Co., 90 NLRB 289 (1950).
a All dates are in 1987 unless otherwise indicated.
1279
vided until the Respondent agreed during bargain-
ing to provide such printouts. The election was
held on October 23, and the Union was certified on
November 2.
The judge found that the Respondent's discon-
tinuance of the printouts was coercive. As noted,
we disagree . The three printouts were distributed
after, not before, the organizing activities began.
There is no evidence that the Respondent intended
this distribution to be a regular practice or that the
Respondent 's failure to continue distributing them
was in any way related to or attributed to union
activities . Therefore , we find that the Respondent
did not violate the Act in ceasing the distribution
of printouts . Accordingly, we shall dismiss this al-
legation of the complaint.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Gilbert Suggs because of his
membership in or activities on behalf of the Union,
the Respondent has violated Section 8 (a)(1) and (3)
of the Act.
4. Since November 2, 1987, the Union has been
the duly certified representative of the employees
in the unit set forth below as their exclusive repre-
sentative for purposes of collective bargaining with
the Respondent . The Union therefore is and has
been since that date the exclusive collective-bar-
gaining representative of the employees in that unit
within the meaning of Section 9(a) of the Act. That
unit, an "appropriate" one under Section 9(b) of
the Act, is as follows:
All over-the-road, local and substitute drivers
employed by Respondent at its 1451 South
Elm Street, Greensboro, North Carolina facili-
ty excluding all office clerical employees,
guards, and supervisors as defined in the Act.
5. By unilaterally changing its pay structure, the
Respondent violated Section 8(a)(5) and (1) of the
Act.
6. By withholding the annual 1987 Christmas
bonus from the represented drivers without first
notifying and bargaining with the Union , the Re-
spondent violated Section 8(a)(5) and (1) of the Act
and Section 8(a)(3) and (1) of the Act.
7. The Respondent did not violate Section
8(a)(1) of the Act by ceasing to utilize computer-
ized pay printouts.
296 NLRB No. 158
1280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8. The unfair labor practices found affect com-
merce within the meaning of Section 2(6) and (7)
of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, Carolina Steel Corporation,
Greensboro, North Carolina, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because of union or
other protected concerted activities.
(b) Unilaterally changing the terms and condi-
tions of employment of the employees in the bar-
gaining unit without prior notice to the Union and
without having afforded the Union an opportunity
to bargain.
(c) Refusing to bargain with Chauffeurs, Team-
sters and Helpers Local Union, No. 391, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL-CIO as the exclusive bargaining repre-
sentative of the employees in the bargaining unit.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Gilbert Suggs immediate and full rein-
statement to his former position or, if such position
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make whole Gilbert Suggs for any loss of
earnings and benefits he may have suffered as a
result of his unlawful discharge to be computed in
the manner set forth in the remedy section of the
judge's decision, as modified herein.
(c) Remove from its files any reference to the
unlawful discharge of Gilbert Suggs, and notify
him in writing that this has been done and that evi-
dence of the unlawful discharge will not be used as
a basis for future personnel actions against him.
(d) Prior to effectuating any changes in the terms
and conditions of employment of the employees in
the bargaining unit, notify the Union and afford it
an opportunity to bargain over such changes.
(e) On the Union's request, rescind the unilateral
changes in the pay system made about December
7, 1987, and reinstate the previous existing pay
system.
(f) Pay the employees in the unit the 1987 Christ-
mas bonus unlawfully withheld, and reinstate the
previous existing Christmas bonus policy.
(g) Make all employees in the appropriate bar-
gaining unit whole for any loss they may have suf-
fered as a result of the unilateral changes in the pay
system and Christmas bonus policy to be computed
in the manner set forth in the remedy section of the
judge's decision.
(h) On request, bargain with the Union as the ex-
clusive bargaining representative of the employees
in the following appropriate unit on terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed
agreement:
All over-the-road, local and substitute drivers
employed by Respondent at its 1451 South
Elm Street, Greensboro, North Carolina facili-
ty excluding all office clerical employees,
guards, and supervisors as defined in the Act.
(i) Preserve and, on request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(j) Post at its facility in Greensboro, North Caro-
lina, copies of the attached notice marked "Appen-
dix."4 Copies of the notice, on forms provided by
the Regional Director for Region 11, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(k) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint alle-
gation that the Respondent violated Section 8(a)(1)
of the Act by its cessation of computerized pay
printouts in August 1987 is dismissed.
4 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 -
CAROLINA STEEL CORP.
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.
WE WILL NOT discharge employees because of
union or other protected concerted activities.
WE WILL NOT unilaterally change the terms and
conditions of employment of the employees in the
bargaining unit without prior notice to the Union
and without having afforded the Union an opportu-
nity to bargain.
WE WILL NOT refuse to bargain with Chauffeurs,
Teamsters and Helpers Local Union, No. 391, af-
filiated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, AFL-CIO as the exclusive bargaining
representative of the employees in the bargaining
unit.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce employees in the
excerise of the rights guaranteed them by Section 7
of the Act.
WE WILL offer Gilbert Suggs immediate and full
reinstatement to his former position or, if that posi-
tion no longer exists , to a substantially equivalent
position , without prejudice to his seniority or any
other rights or privileges previously enjoyed.
WE WILL make whole Gilbert Suggs for any loss
of earnings and benefits he may have suffered as a
result of his unlawful discharge , with interest.
WE WILL remove from our files any reference to
the unlawful discharge of Gilbert Suggs, and notify
him in writing that this has been done and that evi-
dence of the unlawful discharge will not be used as
a basis for future personnel actions against him.
WE WILL, prior to effectuating any changes in
the terms and conditions of employment of the em-
ployees in the bargaining unit , notify the Union
and afford it an opportunity to bargain over such
changes.
WE WILL, on the Union' s request , rescind the
unilateral changes in the pay system made about
December 7, 1987, and reinstate the previous exist-
ing pay system.
WE WILL pay the employees in the bargaining
unit the 1987 Christmas bonus unlawfully withheld,
and reinstate the previous existing Christmas bonus
policy.
WE WILL, make all employees in the bargaining
unit whole for any loss they may have suffered as a
1281
result of our unilateral changes in the pay system
and Christmas bonus policy , with interest.
WE WILL, on request, bargain with the Union as
the exclusive bargaining representative of the em-
ployees in the following appropriate unit on terms
and conditions of employment and, if an under-
standing is reached , embody the understanding in a
signed agreement:
All over-the-road , local and substitute drivers
employed by Respondent at its 1451 South
Elm Street , Greensboro , North Carolina facili-
ty excluding all office clerical employees,
guards, and supervisors as defined in the Act.
CAROLINA STEEL CORPORATION
George Carson II, Esq., for the General Counsel.
Charles P. Roberts III, Esq., for the Respondent.
R. W. Brown , Business Agent, for the Charging Party.
DECISION
STATEMENT OF THE CASE
HAROLD BERNARD , JR., Administrative Law Judge. I
heard the case June 22 and 23, 1988, in Winston -Salem,
North Carolina, pursuant to allegations in the complaint
issued January 21, 1988, that Respondent unilaterally
changed employment conditions without notice to the
Union, and discharged employee Gilbert Suggs for dis-
criminatory reasons thereby violating, in sum , Section
8(a)(1), (3), and (5) of the Act.
Based on the entire record,' including the witnesses'
demeanor, and consideration of the parties' briefs, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a North Carolina corporation engaged
in warehousing , sale, and distribution of processed metal
products at a facility located in Greensboro, North Caro-
lina, from which it annually ships products valued in
excess of $50,000 directly to points outside North Caroli-
na. I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act . The Union is admittedly a labor organization
within the meaning of Section 2 (5) of the Act.
Appropriate Bargaining Unit
The appropriate bargaining unit, as certified in Case
11-RC-5452, is:
All over-the-road, local and substitute drivers em-
ployed by Respondent at its South Elm Street,
Greensboro , North Carolina facility excluding all
I Motion on brief by counsel for General Counsel to correct the tran-
script to accurately reflect that witness Gilbert Suggs denied altering a
back order delivery ticket during his testimony is granted as conforming
with the actual testimony
1282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
office clerical employees , guards and supervisors as
defined in the Act.
Admittedly, the Union has been the representative for
purposes of collective bargaining of employees in the
unit since certification on November 2, 1987, and con-
tinuing to date.
H. THE UNFAIR LABOR PRACTICES
A. The Cessation of Computerized Pay Printouts
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) and (3) of the Act by discontinuing the prac-
tice whereby it furnished employees a printed break-
down of factors forming the basis for the employees'
paychecks on a weekly basis on payday , in mid-Septem-
ber 1987 , thereby violating Section 8 (a)(1) and (3). Com-
plaint paragraphs 8, 16, and 17. On brief counsel for
General Counsel alleges the conduct as being violative of
Section 8(a)(1) only, and does not allege this conduct as
an unlawful unilateral change; further he places the date
for the conduct as August, rather than September.
The record shows that employees received the pay
printouts August 17 and 20, 1987, and (one other week
that month). (G.C. Exhs. 14 and 15.) The information
was needed by employees following Respondent's
change from an hourly system of pay to a miles and
stops pay system the previous January 1987. The forms
helped employees to follow Respondent's calculations in
the more complex pay system, a matter of serious con-
cern to them because , in the words of employee truck-
driver Floyd Isley, a driver since 1970, employees were
not making as much on stops and miles as they did on
the simpler hourly compensation basis . The forms
showed employees the various components that made up
their pay and clearly helped them to understand a basic
term in their employment; as such the reports constituted
a clear benefit to them. The August 20 printout was the
last such form Isley received.
After the August discontinuance-the election was
conducted on October 23, 1987, with the Union's certifi-
cation following on November 2, 1987-the record
shows there was a brief resumption in the practice fol-
lowed by an unexplained discontinuance yet again. A
still further resumption occurred when Respondent
issued , in Isley's words , "some kind of form" covering
January to May 1988, only to again stop its practice
weeks before this hearing . Contrary to Respondent's as-
sertion on brief, the initial discontinuance, in my view,
has never been fully remedied given the on -again off-
again chain of events , and the fact that such "remedy"
was not formulated under the auspices of a standard
Board remedy including assurances by Respondent
against a repetition of such conduct in an official Board
notice to employees . Respondent never explained the
reason for its conduct in the preelection period; or why
it timed the discontinuance of this significant employee
benefit on the heels of its employees' organizational ef-
forts, leaving them to guess at its import and absorb the
impact of "the fist without the velvet glove" implicit in
the "well -timed removal " of a benefit. I find its action,
without credible explanation or illumination through tes-
timony by the Respondent official who directed the
action, and given other evidence of animus and unlawful-
ly discriminatory conduct described below to be coer-
cive of employees ' rights to engage in union activities
and in violation of Section 8(a)(1) of the Act. Joslyn Mfg.
& Supply Co., 167 NLRB 353, 357 fn. 18 (1967), citing
Judge Harlan in NLRB v. Exchange Parts Co., 375 U.S.
405, 409 ( 1964). In this connection , I found the testimony
of Vice President Davis based on vague recollection and
Supervisor Reittinger 's unlikely account neither persua-
sive nor corroborative given Isley 's credible and uncon-
tested testimony on the subject.
B. The Termination of Gilbert Suggs
Gilbert Suggs worked for Respondent as a truckdriver
for over 21 years achieving both a discipline -free record
during his long tenure as a senior driver, and Respond-
ent's respect , in the words of then Operations Manager
James Griffin as a "good worker, who worked good for
me." The long -tenured Suggs openly supported fellow
employees' efforts to secure union representation begin-
ing in July 1987 by attending union meetings, helping to
obtain union authorization cards, wearing a badge, and
keeping a union hat on the dashboard in his truck. Suggs
also served as the Union 's official observer at the repre-
sentation election conducted on October 23, following
the July, August, and September preelection campaign
activities . At the polling place after the ballots had been
cast and tallied showing a majority in favor of union rep-
resentation , Suggs and the company observer both rose
from their seats as company representatives neared the
table, including its president, vice president , and Person-
nel Manager Sadie Cox . Coldly, pointedly, and given the
norm of polite behavior reasonably called for, insult-
ingly, if not contemptuously, the Respondent officials ig-
nored Suggs-a long -term employee with a good work
record and discipline-free past-by refusing to acknowl-
edge his presence , while at the same time, with Suggs
looking on and standing right alongside the other observ-
er, greeting and handshaking the company observer.
Respondent admittedly knew about Suggs' union cam-
paign activities and, further, does not deny, as credibly
reported by Suggs, that very shortly after the employee
organizational activities began , Manager Griffin spoke to
Suggs and other drivers in the customer service area in
August. Griffin told Suggs and the other employees, re-
ferring to the employees who had tried to organize the
union before , that he had been reading some old records
and they were no longer with the Company , leaving the
assembled groups to guess the reason for their departures
and thereby, I find, conveying a grim forecast employ-
ment-wise for any employee who supported or engaged
in union activities at Carolina Steel . No other interpreta-
tion can reasonably be made and Griffin neither denied
the account nor attempted to cast it into a less-menacing
context . After the election , the Union became the certi-
fied bargaining representative on November 2. Respond-
ent fired Suggs on November 23 allegedly for "falsifying
a company record," even though Suggs had clearly
flagged to the Company's attention an erroneous entry
on the driver's daily travel report he was responsible for
CAROLINA STEEL CORP. 1283
by both a written correction to a company report filed
with the Company and by directly communicating the
error to his immediate supervisor , showing him the pa-
perwork and describing the surrounding circumstances,
all well in advance of Respondent 's investigation and the
decision to discharge him. A painstakingly detailed
review leads to the following:
When Suggs arrived at the customer's facility on No-
vember 10, he made an entry into his trip sheet (G.C.
Exh. 3), reflecting a load weight in pounds of 19,842,
which figure he took from the delivery ticket for that
load (G.C. Exh. 2). After unloading, which involved
about four or five truck "moves" for unloading purposes,
when Suggs presented the delivery tickets for the cus-
tomer's representative to sign , he, Suggs noticed that the
cusotmer copy (not Respondent 's copy) bore an entry of
only 17,842 (G.C. Exh. 4). Suggs thereupon immediately
wrote 17,842 clearly on Respondent 's copy, and circled
it prominently as a correction . Due to a rain-caused
delay, lengthened by the need to also trap down his load,
Suggs did not then also correct General Counsel Exhibit
3, but went on to the next delivery. That evening seeing
no one from management around to discuss matters with,
Suggs turned in the trip sheet, as well as the delivery
ticket flagging the error. The next day November 11,
Suggs went to work; as driver-supervisor Reittinger had
not arrived by the time Suggs was to begin a delivery,
Suggs left , and on his return explained the events of No-
vember 10, the day before, to Reittinger showing him on
the delivery ticket where he had corrected the weight to
show the same weight as contained on the customer
copy and circled it . Regarding the trip sheet matter,
Suggs told Reittinger he did not know whether he
wanted to pay him for a $10 stop (the entry of 19,842
added to another load at the customer's location exceed-
ed 20,000 pounds thereby qualifying for a "10 dollar
stop") or for the separate "move(s)," the latter mode of
compensation-depending upon an evaluation of the ap-
propriateness of the moves-being compensable at $2.45
per move or in this case amounting to arguably $12.25.
The next thing Suggs knew , Respondent management
officials, Manager Griffin and Personnel Manager Cox,
were interrogating him in a very serious vein on Novem-
ber 20, having launched a full scale investigation before
Suggs had an inkling he had done anything wrong, from
driver-supervisor Reittinger . He denied altering the de-
livery ticket and in response to the question why he had
entered the 19,842 figure explained either "to get the
$10.00 stop," or "I thought it was a $10.00 stop" either
version, in my view, when construed in the employee
vernacular meaning the same thing , that is, that since
that weight appeared, albeit as subsequently learned to be
an error, on the delivery ticket and since that weight (to-
gether with another load there) exceeded 20,000 pounds,
he put it down on the trip sheet to get the resulting $10
stop. For Respondent to argue now that this was an ad-
mission of guilt by Suggs is strongly belied by the estab-
lished facts and even placed in serious question by Re-
spondent 's own position , for if, by this answer, Suggs
had "admitted" the violation , why did Respondent take
the trouble to say anymore than that as the reason; why
did Cox refer to the ink being the same color in Suggs'
pen as on the altered delivery ticket as an added reason;
further, why go into the alleged further rationale that the
17,842 figure was on all the other delivery ticket copies
which allegedly-but unprovenly-were only in Suggs'
hands after their issuance? And, given what was further
established , namely, that Suggs had undeniably reported
matters fully to Reittinger and through him to upper
management-the details showing just the opposite of an
"admission" of any guilt , the admission argument fails.
More grave doubts arise from the Respondent wit-
nesses' testimonial performance . Supervisor Reittinger
flipflopped in his testimony , finally admitting he had
indeed specifically informed Griffin about Suggs' own
exonerating report , telling Suggs later that "yes, I have"
in response to Suggs' question , "Well, did you explain to
him that I had physically showed you the problem?"
When Suggs asked Reittinger what Griffin said in reply,
Reittinger replied that Griffin said he, Reittinger , should
have reported this to him . This occurred prior to the dis-
charge action casting serious doubts on the Respondent's
motive behind terminating Suggs; a doubt deepened into
still further suspicion by Cox's testimony that Suggs him-
self told Cox and Griffin he had pointed out the discrep-
ancy to Supervisor Reittinger . Griffin , an important prin-
cipal behind the decision to terminate Suggs, said Reit-
tinger did not inform him of anything over the phone on
Friday, but then testified to a meeting with Reittinger
the following Monday, about which he was not ques-
tioned . I cannot credit Griffin in this regard given Cox's
testimony that Suggs informed both Cox and Griffin at
the meeting on Friday , November 20, that he , Suggs,
had indeed reported the matter to his Supervisor, Terry
Reittinger, but Griffin, when asked about that seemed to
me to fudge his reply, even when shown a Cox-prepared
memorandum concerning the meeting and containing
that very fact, by unconvincingly stating , "I didn't hear
him say it . If I did , I didn't [sic] and, I don 't recall him
saying it." Central to any "guilt" on Suggs' part was the
very question arising over his intent to do wrong-as op-
posed to being careless-yet Griffin didn' t recall , though
another important principal, Cox, did recall , Suggs' cor-
roborated statement to them that he had reported the
matter to supervision the very next day . And highly sig-
nifically, neither Cox nor Respondent counsel explain
away this central fact, that Suggs could not-based upon
any probative evidence-be reasonably found to have in-
tentionally falsified a company document given his
report to supervision the next day ; worse, Suggs' efforts
to defend against the Respondent 's charge-met at this
hearing by after-the-fact, unproven later alleged possible
offenses not shown to have been at all relied upon for
the discharge decision but dredged up anyway to shore
up an unpersuasive and sagging defense, and by a Sher-
lock Holmes-like mystery-based reenactment unsupport-
ed by any evidence-was simply ignored in Respondent's
investigation and decision-making process.
Respondent knew this, but pushed ahead to judgment
against Suggs based upon speculation and half-truths,
fueled , I believe, by a much different motive than to dis-
cipline for the alleged and unproven offense . Suggs, in
any reasonable view of events , was negligent at most in
1284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
his recordkeeping timetable. He should have changed his
trip sheet when he changed the delivery ticket, or re-
ported matters more quickly afterward than he did, al-
though he did so the next day, not finding his supervisor
until then. But to say in these circumstances where, as is
evident, he reported matters in a reasonably prompt
manner, little or no money was at stake to provide a fi-
nancial motive, no long delay of time with any attendant
adverse repercussions befell Respondent, the pay system
was complex calling for frequent employee-supervisor
consultations-discussed further below, the only prior in-
cident anywhere nearly similar to this resulted in a mild
suspension without completion in the investigation
(though an employer is entitled to tighten its policies), he
was a good employee who did good work for over 21
years, that the capital punishment in industrial relations
of discharge was at all warranted on the basis of an arbi-
trary, one-sided half-baked investigation showing an al-
leged admission is unwarranted and grossly out of pro-
portion to any unbiased view of events. The preponder-
ence of proof is contrary to any honest or mistaken belief
by Respondent's agents Cox or Griffin that Suggs admit-
ted falsifying a company document. Counsel for General
Counsel, I find, presented a prima facie case, given
Suggs' admitted and prominent union activities and Re-
spondent's animus combined with unsupported and un-
persuasive reasons for Suggs' discharge, of a discrimina-
tory discharge, and it then became Respondent's burden
to establish that it would have taken this action even
apart from considering Suggs' support for the Union.
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982). This it
failed to do. Given its reliance instead , on a plainly con-
cocted falsely based admission , and a biasedly crafted un-
fairly incomplete investigation, which ignored the facts
and failed to give due weight to Sugg's tenure, establish-
ing in sum that the asserted reason for the discharge was
pretextual, I find Respondent violated Section 8(a)(3) of
the Act. Ebon Research Systems, 290 NLRB 751 (1988);
and Burger King Corp., 279 NLRB 227 (1986).
C. Respondent's Unilateral Changes in the
Wage Structure
For many years Respondent paid drivers on an hourly
basis. On January 12, 1987, Respondent referred to a pay
rate structure based upon trip miles and stops, describing
the system to employees in a memorandum of instruc-
tions. (R. Exh. 8.) The system set forth in the memoran-
dum limited the payment due employees for making
truckstops to specifically identified numbers and types of
stops, that is, rate of $2.45 up from $2.30 per stop for
three occasions: initial truck preparation, end of day time
to prepare paper work, and a fueling stop. A $10-per-
stop rate was also provided depending upon weight, and
for mill pickups or unusually long-time unloading jobs.
(R. Exh. 8, B-F, and G.C. Exhs. 5 and 6).
The record testimony shows that Respondent informed
drivers who had made complaints about the system on
August 21, 1987, that henceforth Respondent would pay
the drivers for a stop any time they moved the truck-
driver Garland Smith nailing down Personnel Manager
Cox on the point quite specifically, and his account was
corroborated by other employees at the meeting. Driver
Isley testified that Respondent told the drivers that in re-
sponse to employee complaints a 20,000-pound load
would equal a $10 stop plus if the driver had to move a
truck at the insistence of a customer, such move would
pay $2.45 per move-and that Cox said if you move the
truck you get paid $2.45 per move. It is clear that the
drivers thereafter were paid liberally for stops or moves
than was the case under the previous directive. Isley re-
ceived paid stops on November 2 and 3, 1987, not previ-
ously covered; employee Garland Smith testified that
Vice President Schroeder at that meeting also said the
drivers would be paid for delay time waiting for their
truck to be loaded at Carolina Steel; and he was paid for
the extra or newly recorded stops and delay time. (G.C.
Exh. 16.) Supervisor Reittinger paid or approved pay for
stops under the liberal policy to driver Suggs, on Octo-
ber 2, 1987, and other occasions (R. Exhs. 2, 3, 4, 5); and
informed employee driver Larry Wells in October about
the policy and more liberal payments. Schroeder himself
approved even payment for a stop or move at a $10 stop
when driver James Hefner had to turn his truck around,
instructing Reittinger in the presence of other drivers to
pay for the move. This policy was administered between
August until sometime on or about December 7, 1987,
when Respondent's operations manager, without notice
or consulting with the Union-the drivers' collective-
bargaining representative, curtailed the pay structure
system sharply stating there would no longer be pay for
extra stops and truck moves simply because it was "not
on the paper"; and explaining to a protesting employee
any understanding to the contrary was based upon a mis-
understanding. The pay system proven to have been in
place between August and December provided employ-
ees with improved pay for a substantial period of time
and had clearly become a condition of their employment
which could not be changed without notice and an op-
portunity to bargain about the matters being accorded
the employees' statutorily certified bargaining representa-
tive, let alone by branding the inproved pay system in
place for over 100 days a misunderstanding and unilater-
ally changing it by substantially downgrading its con-
tents. I find that Respondent made unilateral changes in
its pay structure in violation of Section 8(a)(5) of the
Act. NLRB v. Advertisers Mfg. Co., 823 F.2d 1086 (6th
Cir. 1987); NLRB v. Crystal Springs Skirt Corp., 637 F.2d
399, 402-404 (5th Cir. 1981); and cases cited below.
D. Christmas Bonus
Respondent maintained a longstanding practice for 20
years of granting all employees a Christmas bonus annu-
ally, varying from, according to driver Isely a low of 4-
1/2 percent to a high of 13 percent of the employee's
annual earnings-in his case the amount usually came in
at around $2000 annually over the years since he began
employment in 1970. Respondent announced to driver
employees through Operations Manager Smithey's read-
ing a letter on December 11, that the 9 percent bonus de-
cided upon by Respondent that year would not be paid
to the represented drivers. Respondent paid the bonus to
its nonrepresented employees at this location. The Union
CAROLINA STEEL CORP. 1285
protested to the action, seeking to have the annual bonus
paid to the represented employees , but without success.
Respondent alleges that it gave notice to the Union
concerning this matter when, during the parties' initial
bargaining session on December 8, Respondent's spokes-
man informed the Union's side that among the economic
topics to be discussed following noneconomics would be
benefits, bonuses, pensions and so forth. I credit Re-
spondent witnesses over the union representative's failure
to recall this assertion ; however, I find no merit what-
ever in Respondent 's argument that this mere reference
to future possible discussions amounted to the requisite
notice and opportunity to bargain over Respondent's fait
accompli announcement on December 11 that union rep-
resented employees would not be granted the bonus as is
required by law. Such an interpretation has been specifi-
cally rejected as unsettling to the course in bargaining
contemplated under the Act given its carte blanc-like
authorization for wholesale unilateral disruptions in em-
ployment conditions . American Rubber & Plastics Corp.,
200 NLRB 867, 874 (1972). It is rejected here as well.
Respondent's further assertion that the amount decided
upon was a matter of discretionary judgment likewise is
unavailing as there remained a duty to bargain over the
amount . Oneita Knitting Mills, 205 NLRB 500, 502-503
(1973). Respondent's citations of cases in support of its
defense are all readily distinguishable on the facts.
In short, there was no evidence the subject itself was
even on the table in any real sense, and there was cer-
tainly no impasse justifying the unilateral change. Ac-
cordingly, I find that Respondent unlawfully withheld
the annual Christmas bonus from its drivers in a unilater-
al manner , which action certainly would tend to discour-
age union membership so that Respondent was thereby
in violation of Section 8(a)(3) and (5) of the Act. Radio
Electric Service Co., 278 NLRB 531, 536 (1986); Rocky
Mountain Hospital, 289 NLRB 1347 (1988); and Indiana
& Michigan Electric Co., 284 NLRB 53 (1987).
REMEDY
It is recommended that Respondent be ordered to
cease and desist from engaging in the unfair labor prac-
tices described in the preceding findings and to take cer-
tain affirmative action designed to effectuate the policies
of the Act. Regarding the discharge of Gilbert Suggs, it
is recommended Respondent be ordered to offer Suggs
immediate and unconditional reinstatement to his former
position and to make him whole for all wages and bene-
fits lost by him as a result of the unlawful discharge with
interest being computed at the "short-term Federal rate"
for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621 , in accordance with the
Board's decision in New Horizons for the Retarded, 283
NLRB 1173 ( 1987). Interest on amounts accrued prior to
January 1, 1987, shall be computed in accordance with
Florida Steel Corp., 231 NRLB 651 (1977). With respect
to the Respondent 's cessation in providing printout de-
scriptions of employee paychecks found to be in viola-
tion of Section 8(a)(1) of the Act, it shall be ordered that
the practices be resumed ; with respect to the Respond-
ent's unilateral changes in employment conditions, it
shall be ordered that Respondent , upon request by the
Union, promptly restore such conditions to the status
quo ante, and make whole the unit employees for any
losses they have suffered as a result of the Respondent's
unilateral actions . The amounts are to be computed as
provided in Ogle Protection Service, 183 NLRB 682 (1970)
and Kraft Plumbing & Heating, 252 NLRB 891 fn. 2,
with interest in accord with New Horizons for the Retard-
ed, supra, as further described above . It shall also be or-
dered that the Respondent bargain in good faith with the
Union and, if an understanding is reached , embody such
understanding in a written signed agreement . I shall also
recommend that Respondent be ordered to expunge from
its records and reference to its unlawful discharge of Gil-
bert Suggs, Sterling Sugars, 261 NLRB 472 (1982), and
notifying him in wiritng that his has been done and that
this discipline will not be used against him in any way.
[Recommended Order omitted from publication.]