Coyne Cylinder Co.

National Labor Relations Board - Board DecisionsAug 27, 1980

251 N.L.R.B. 1503 (N.L.R.B. 1980)

COYNE CYLINDER COMPANY~ 15() Coyne Cylinder Company and Ray Ferrell Wil- loughby. Case 10-CA-13512 August 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On June 28, 1979, Administrative Law Judge Ivar H. Peterson issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that Re- spondent had violated Section 8(a)(1) and (3) of the Act by refusing to allow employee Ray Wil- loughby to have a union representative present during an interview conducted on October 24, 1977. To remedy the violations found, he recom- mended that Willoughby be reinstated, with back- pay, to his former or equivalent position. While we agree with the Administrative Law Judge that Re- spondent violated Section 8(a)(l) of the Act by denying Willoughby's request for union representa- tion during the interview, 2 we do not, under the circumstances herein, agree that Willoughby should be reinstated or awarded backpay. According to Willoughby's credited testimony, 3 which we rely on, on October 24, 1977, he was in- structed by his supervisor, Ed Buckner, to accom- pany him to the office of Respondent's manufactur- ing manager, James Garrett. Prior to this meeting with Garrett, Buckner told Willoughby that "What these two are about to hit you with-don't admit unless it's true."4 i Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings a In view of our findings herein, we find it unnecessary to determine whether Respondent, by its conduct, also violated Sec. 8(a)(3) of the Act I Respondent has excepted to the Administrative Law Judge's reliance on an affidavit, submitted by Willoughby to the General Counsel during investigation of the charge, to support his findings. We find no merit to this exception since Willoughby's oral testimony at the hearing is identi- cal to that found in his affidavit. I Buckner was apparently referring to Garrett and to Respondent's production superintendent, Alan Frazier, who was also present during that interview. 251 NLRB No. 198 Willoughby further credibly testified that once inside Garrett's office, Garrett stated that he had been informed by three employees that Willoughby had been "smoking pot" during his lunch hour on Thursday and Friday of the previous week.5 Wil- loughby denied the accusation stating that he had witnesses to prove that he had not been smoking pot as alleged and asked Garrett's permission to produce those witnesses. Garrett, however, denied Willoughby's request to produce the witnesses and kept insisting that Willoughby was guilty. Wil- loughby then asked that he be allowed to have union representative, Alan White, present during the rest of the interview but Garrett also denied this request. After repeatedly denying the accusa- tion, Willoughby was handed a piece of paper con- taining the address of a drug rehabilitation center and told to wait outside while Garrett, Frazier, and Buckner "discussed the matter." During his direct testimony, Garrett was asked by Respondent's attorney why Willoughby was asked to leave the room. Garrett replied, "Because I wanted to ask Ed [Buckner] and Alan [Frazier] if they had any more things they wanted to say. And-before we made a final decision." Further- more, on cross-examination he admitted that while Willoughby's final paychecks had been prepared prior to the interview, there was a possibility that Willoughby would not have been discharged. After discussing the matter with Frazier and Buckner, Garrett called Willoughby into his office again and informed him that they still felt that their witnesses were reliable and that he was guilty as charged. When Willoughby asked whether he had to go to the rehabilitation center to keep his job, Garrett replied, "No, you're going to be terminated anyway, but if you take the slip of paper and go see these people, within six months, I might recon- sider hiring you again." Willoughby continued to deny any wrongdoing and was shortly thereafter asked to leave. Respondent contends that the decision to dis- charge Willoughby was made prior to the October 24 meeting and that the sole purpose of the meet- ing was to inform Willoughby of that decision. Thus, it argues that the interview was not an inves- tigatory one involving possible disciplinary action since the disciplinary action had been predeter- mined and was merely being carried out. We find no merit to this contention since, as evidenced I The record reveals that Respondent had been experiencing some pro- duction problems and that an investigation into the cause of those prob- lems revealed a widespread use of drugs among Respondent's employees As a result of that investigation, two employees where terminated ap- proximately I month before Willoughby's discharge allegedly for smok- ing marijuana. Coyne Cylinder Company and Ray Ferrell Wil- COYNE CYLINDER COMPANY 03 1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from Garrett's own testimony, no final decision had yet been made as to whether or not to dis- charge Willoughby and, in fact, there was a possi- bility that he would not be discharged. According- ly, we find that the October 24 interview of Wil- loughby was investigatory in nature involving the possibility of discipline. Furthermore, in light of the fact that two other employees had been dis- charged just 1 month earlier for "smoking pot," it is reasonable to assume that when Willoughby was confronted with a similar accusation immediately after being advised by Buckner not to admit to anything, he had a reasonable basis for believing that discipline was in the offing. Under these cir- cumstances, we find that in requesting union repre- sentation during the interview, Willoughby was ex- ercising his Section 7 rights as enunciated by the Supreme Court in N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975), and that Respondent, in deny- ing his request, violated Section 8(a)(1) of the Act. 6 However, while we find the interview to be un- lawful, we do not, contrary to the Administrative Law Judge, find that Respondent should be re- quired to reinstate Willoughby or give him back- pay. The Board recently in Kraft Foods, Inc., 251 NLRB No. 6 (1980), held that where an investiga- tory interview in violation of Weingarten, supra, has occurred and the General Counsel shows that an employee was disciplined or discharged for con- duct which was the subject of that interview, then a reinstatement and backpay order is appropriate unless the Respondent can sustain its burden of showing that its decision to discipline or discharge that employee was not based on information which it obtained during the interview. In the instant case, the facts clearly show that in addition to being the cause of his discharge, Wil- loughby's alleged use of drugs during his lunch hours was also the subject matter of the unlawful interview. However, the facts show that in dis- charging Willoughby, Respondent relied solely on information obtained prior to the unlawful inter- view rather than anything obtained therein. Indeed, aside from Willoughby's repeated assertions of in- nocence, the record is devoid of any evidence to indicate that any information was, in fact, obtained during the October 24 meeting. Furthermore, we note that the General Counsel does not contend that Willoughby's discharge resulted from informa- ^ The Administrative Law Judge recommended that Respondent be or- dered to cease and desist from "Refusing to permit an employee to pro- duce witnesses concerning his activities during the time he is accused of engaging in misconduct." We note, however, that the right afforded em- ployees under Weingarten, supra, to have a union representative present during investigatory interviews involving possible disciplinary action does not encompass any right an employee may have to produce wit- nesses on his or her behalf tion obtained during that meeting. Thus, for the above-stated reasons, we shall not require Respond- ent to reinstate Willoughby or to give him backpay but, to remedy the 8(a)(1) violation found herein, shall order it to cease and desist from engaging in the unfair labor practice found herein and to post the appropriate notice. 7 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Coyne Cylinder Company, Huntsville, Alabama, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to permit an employee, upon re- quest, to have a representative present during any investigatory interview which might involve disci- plinary action. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to bar- gain collectively through representatives of their own choosing, to engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement con- forming to the provisions of Section 8(a)(3) of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act: (a) Post at its premises in Huntsville, Alabama, copies of the attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. 7 See Kraft Foods, Inc.. supra. The Administrative Law Judge recommended that the Board issue a broad cease-and desist order requiring Respondent to cease and desist from violating the Act "in any other manner." However. we do not find Respondent's conduct in this case egregious enough to warrant the issu- ance of such an order. Consequently, we shall order Respondent to cease and desist from violating the Act "in any like or related manner." See Hickmorrt Foods. Inc., 242 NLRB 1357 (1979). 8 In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant to A Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " COYNE CYLINDER COMPANY 1505 (b) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT deny any employee's request for representation at an investigatory interview which might involve disciplinary action. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of rights guarateed them by Section 7 of the Act. COYNE CYLINDER COMPANY DECISION STATEMENT OF THE CASE IVAR H. PETERSON, Administrative Law Judge: The hearing in this case was held on July 11, 1978, in Hunts- ville, Alabama, based upon the complaint issued by the Regional Director for Region 10 on April 25, which in turn was based upon a charge filed on March 13 by Ray Ferrell Willoughby, an individual, against Coyne Cylin- der Company, herein called the Respondent. Briefly stated, the complaint alleged that on or about October 24, 1977, the Respondent, by Manufacturing Manager James H. Garrett, directed Willoughby to attend an in- vestigatory meeting for the purpose of imposing discipin- ary action, and that at the meeting Willoughby requested that a union representative be present, but that Garrett denied his request. By such conduct, the complaint al- leged that the Respondent engaged in unfair labor prac- tices violative of Sections 8(a)(1) and 2(6) and (7) of the Act. In its answer, dated May 2, the Respondent ad- mitted certain jurisdictional allegations but denied that United Steelworkers of America, AFL-CIO, herein called the Union, was a labor organization within the meaning of Section 2(5) of thc Act; that Garrett occu- pied the position of manufacturing manager and is a su- pervisor within the meaning of Section 2(11) of the Act; that the Regional Director for Region 10, on April 1, 1977, certified the Union as the exclusive collective-bar- gaining representative of employees in an appropriate unit and that the Union has been and is the exclusive representative of the employees therein within the mean- ing of Section 9(a) of the Act; that on or about October 24, 1977, Garrett directed Willoughby to attend an inves- tigatory meeting for the purpose of imposing disciplinary action; that Willoughby requested that a union repre- sentative be present, and that Garrett denied his request. By such conduct, the complaint alleged that the Re- spondent engaged in unfair labor practice affecting com- merce within the meaning of Sections 8(a)(l) and 2(6) and (7) of the Act. Upon the entire record in the case, including my ob- servation of the witnesses as they testified and a consid- eration of the briefs filed with me on or about August 7 by counsel for both parties, I make the following: FINDINGS OF FACT 1. JURISDICTION The Respondent, a California corporation, maintains an office and place of business in Huntsville, Alabama, where it is engaged in the manufacture of acetylene cyl- inders. During the calendar year preceding issuance of the complaint it sold and shipped finished products valued in excess of $50,000 directly to customers located outside the State of Alabama. Garrett, as he testified, had been employed by the Respondent for 11 years and had worked at the Huntsville plant for about 3 years, where his position was that of manufacturing manager, responsi- ble for all production and engineering functions. Alan Frazier, who has been employed by the Respondent for 23 years, has held the position of production superintend- ent for about 18 years and has authority to terminate em- ployees. Nelson W. Gill, Jr., is the Respondent's chief engineer. II1. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence Counsel for the General Counsel states that the fol- lowing three issues are presented: (a) whether Wil- loughby was directed to attend the Octobor 24 investiga- tory meeting, (b) whether he had a reasonable fear that the interview might result in disciplinary action, and (c) whether he requested union representation at the inter- view. On the other hand, counsel for the Respondent, in its brief, states that the following issues are presented: (a) whether Willoughby's testimony should be credited, "thus necessitating the discrediting of all other witnesses, including supervisors, employees, and former employ- ees," and (b) whether Willoughby "is competent to tes- tify about his termination interview." Manufacturing Manager Garrett testified that produc- tion problems in the massing department caused the Re- spondent to make an investigation which led it to believe that it was experiencing "sabotage." He related that "we would find foreign matter thrown in the pumps, stopping up lines and this type of thing. Quite a bit of downtown in that area." The Respondent's officials met with em- ployees in departmental meetings and sought to obtain their assistance in resolving the problems. They were asked if they knew who was creating the problem and were solicited to stop it. Approximately three or four such meetings were held. At one of the later meetings officials said that the Respondent would have to get to the bottom of the problem even if it had to replace ev- eryone in the department. Thereafter, the Respondent, so Garrett testified, "did get some feedback." He related that "we were looking for sabotage problems, but we were never able to identify any specific party involved in COYNE CYLINDER COMPANY 1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD truly sabotage. But during the investigating procedure we did uncover quite a bit of drug problems," which "involved several people." Initially, the Respondent ter- minated two employees and hoped that this action "would straighten out the others that were involved." The two persons terminated were Kenneth Vining and Barry McAnally. However, this action can not straighten out the problem, as the Respondent continued to have a great deal of downtime and the information that we were accumulating all that time indicated that the specif- ic problem was directly related with the mixer operator; "which position was then occupied by Willoughby." Garrett stated Willoughby had been employed for about 2 years and "had been a good employee in the past." After discussing the matter with other supervisors, in- cluding Frazier, Garrett advised Frazier that the "prob- lems were not going to clear themselves up and we were going to have to terminate Ray Willoughby," Thereafter they called in Willoughby's foreman, Ed Buckner, as they felt Buckner should be aware of what was going on before Willoughby was discharged. Garrett stated that the decision to terminate Willoughby was made before Willoughby was called into the conference room. Ac- cording to Garrett, when Willoughby came to the con- ference room he "appeared nervous." In addition to Gar- rett, Bucskner and Frazier were present for the Respond- ent. Garrett stated that neither Frazier nor Buckner, so far as he could recall, spoke at the meeting. Garrett testi- fied that he told Willoughby that the Respondent "had definite proof that he was involved and been involved in drug usage, during lunch breaks," and that he would come back from lunch and "was operating or attempting to operate his equipment under the influence of these drugs." Garrett stated that Willoughby denied the accu- sation, whereupon Garrett, so he testified, "told him he had reliable witnesses to the fact that this was indeed the case and that we were going to have to terminate him. Willoughby pleaded for his job, stating that he needed to work, he was not guilty and he had never used drugs on company property. Garrett reiterated that he told Wil- loughby that the Respondent "did have specific knowl- edge and good witnesses, reliable witnesses that said that he had," that the Respondent was "suffering too much downtime in that department," and that Willoughby's job "was too critical and we could not tolerate it, and we would have to terminate him." Garrett added that in- asmuch as he felt that Willoughby "had been a good em- ployee in the past and that if he would go to the . . . Drug Rehabilitation Center in Decatur, that we . . . would consider hiring him in roughly four to six months. Or whenever he got himself straightened up." Wil- loughby said "he did not need rehabilitation," and that he was not guilty. Thereupon, Garrett asked him to leave the room while the Respondent's representatives discussed the matter. When Willoughby returned to the conference room, Garrett told him, ". . . we still felt our witnesses were reliable, we felt he was guilty as charged and that we were going to have to terminate him." While Wil- loughby was out of the conference room, Garrett asked his secretary to get the address of the rehabilitation center and, when Willoughby returned, he gave him the address and told Willoughby that ". .. if he would go and straighten himself out, we would consider re-hiring him." Willoughby again denied that he needed to go to the rehabilitation center. Garrett acknowledged that the Union at that time was the collective-bargaining representative of the Respond- ent's employees. He testified that during the conference nothing was said about the Union or about a union rep- resentative being present; he denied that Willoughby asked for a union steward or any other union representa- tive to be present, nor did Willoughby ask to present any witnesses. At the time of the conference, the Respondent was engaged in collective-bargaining negotiations. When asked what he would have done if Willoughby had asked for a union representative, Garret testified that "the thought never came to mind" and, if he had requested representation, "I suppose I would have to contact our attorney and find out what I should do." Garrett ac- knowledged that for about 7 years, while employed by the Respondent in Memphis, he had met "quite often" with the Union and that he had also "worked for other companies that had unions." He acknowledged that in his experience he had had situations where an employee asked for a union representative to be present and that he was aware of the concept of union representation, and that "at this point in time we were extremely cautious because we were in negotiations." Garrett related that, about 3 weeks before he testified, Willoughby called him at home in the evening, stating that he wanted his job back. Garrett told him that he could not have his job back because he had been termi- nated for cause. Willoughby, so Garrett testified, denied this and again stated that he was not guilty as charged. Garrett stated that he "told him that he had reliable wit- nesses then, and there was nothing that I'd seen in the meantime that would change my mind." He further said, "As a matter of fact, now we had found out that he was not only a drug user, but he was also a liar" and that "He lied about asking for union representation in the meeting, and I told him that I didn't hear it. I knew he was lying, Alan Frazier knew he was lying, Ed Buckner knew he was lying and he knew he was lying." Wil- loughby stated that Garrett may not have heard, "but I said it." Thereupon Garrett stated that no one else in the room had heard it, whereupon Willoughby asserted he alledegly stated that he knew "who has told on me. It was that janitor, and he was back there in the mixing area. A fellow by the name of Joe Hall." Garrett testi- fied that Willoughby "said that that guy had been traf- ficking in drugs and bringing drugs back." Garrett stated that Willoughby ". . . also made some mention of some- one in management, being involved either in a rake-off or a pay-off or something of that type. He said he was investigating that and when he got enough dope he would report it to California. California being our corpo- rate office." Garrett related that he told Willoughby that "whatever he did, he'd better make sure it was the truth because there were such things as libel laws and he could get himself in a lot of trouble that way." Garrett testified Willoughby said that he was going to do it and COYNE CYINDER COMPANY 1507 "I told him well give us your best shot .... " There- upon Garrett hung up the telephone. On cross-examination, Garrett testified that if an em- ployee were to be terminated, the usual policy was to consult with the employee before discharge was effected. He stated that, of the approximately 200 employees, only 10 or 15 had been discharged in the period since the plant opened in mid-1975, and that when the plant was opened approximately 7 or 8 were terminated without first having been interviewed because they "were just not cutting the mustard." The Steelworkers won the election on April 1, 1977, and was certified on April 11. Garrett acknowledged that that Union no longer represented the employees at the time he testified, July 11, 1978, having been decerti- fied on June 9. Garrett stated that he was satisfied, from the reports of other employees, that the allegations concerning Wil- loughby were true. He acknowledged that he did not inform Willoughby that he had a right to union represen- tation if he so desired. John M. Lord, director of the Drug Abuse Program at the University of Alabama School of Medicine, testified that he had daily contact with individuals who had drug abuse problems and that part of his job was to help them with those problems. Lord also had taught classes on drug abuse and given seminars on the subject. He stated that on the basis of his education and experience, a person who smokes marijuana might evidence symptoms of bloodshot eyes and also a lack of coherency in verbal communications. On cross-examination, Lord stated that a user of marijuana "might have bloodshot eyes, but that depended upon the quality of the drug, the frequency of use, and the individual in question. On rebuttal, Willoughby testified that several weeks before he was discharged he and Castle had a disagree- ment, and that Castle "came around to me right before he was going home from work at the end of his shift," and stated that he had heard that Willoughby "told the people around here that I had been over and told Wil- liam L. Evans, Jr.'s wife, about you and him running ground with single girls." Willoughby testified that he had told Castle that and that "all the people around here in this department have been telling me about what a good person you are, so I thought I'd just set them straight about what kind of back-stabber you are. That is the truth to the best of my knowledge." Willoughby tes- tified that Castle appeared to be upset. About a week before being terminated Willoughby's supervisor, Buckner, was absent and Frazier asked him to fill in for Buckner. While acting as foreman, an em- ployee, William Shackleford, asked Willoughby for time off beginning about lunchtime. Willoughby checked the schedule, so he testified, and "found that we were short of men and I told him I couldn't let him off. And I think he sort of got irritated at me." Willoughby stated that the reason he felt that Shackleford was upset was be- cause "he didn't speak to me the rest of the day or the rest of the entire week hardly." Willoughby related that he began wearing contact lenses in August 1977, and that it "takes a person wear- ing them about 4 to 6 weeks to get used to wearing them. While you're getting used to wearing them, con- tact lens causes redness of the eyes and different symp- toms like that that cause eye irritations and everything like that." While employed by the Respondent, Wil- loughby also had occasion to take prescription medicine, taking a pill once before each meal for ulcers and also medicine for bronchitis. He testified that he had been taking prescription medicine since he started working for the Respondent in October 1975, and that in February 1976 he was admitted to a hospital and it was then that he ". . . found out that I had bronchitis and ulcers, and I'd been taking the prescription since then." Shackleford, the first witness called by counsel for the Respondent, related that he had been working for the Respondent for approximately 2 years and for the last 4 months in the finishing department. He testified that he had transferred to finishing recently and that prior to that time he had worked in the massing department in close proximity to Willoughby. He stated that he smoked marijuana with Willoughby and that he did so on compa- ny time and premises. He further testified that Wil- loughby, after smoking marijuana, had impaired ability to understand and comprehend when conversing with other people, and appeared to be incoherent in such conversa- tions and, on numerous occasions, would stand on the job and stare into space. He further testified that Wil- loughby's general reputation for truthfulness in the Huntsville community was "not good, it's kind of bad. Numerous people have told me not to believe a thing that he says," and that he had found that to be true "in a lot of cases." Marvin Castle, who had worked in the Respondent's massing department since January 1976 in relatively close proximity to Willoughby, testified that he had ob- served Willoughby smoke marijuana on company time and premises and that, after smoking marijuana, Wil- loughby "has pretty wild and glassy-eyes, he's just hard for me to get along with," and that he had seen Wil- loughby "a time or two sniff some powder" on company time and premises. He further testified that Willoughby gave him some marijuana to take home and that he smoked it. Frazier testified that supervision "found out that there was a lot of dope being used," that some em- ployees "weren't responsible for what was going on," and that Willoughby "admitted to me that he was using dope, but he was using it at home, he said he wasn't using it on the job." He further related that on the day Willoughby was terminated he talked with Garrett who stated that "he had proof, definite proof that Ray was using drugs. He was doing it during lunch and coming back under the influence of it and actually on the job. And he had decided that we was going to have to let him go." Joseph Respiliar, who had worked for the Respondent in the same department with Willoughby prior to quit- ting when the choice was given him whether to quit or be discharged, testified that Willoughby had made untrue allegations against him concerning the operation of the mixing machine, that Willoughby's reputation for truth- fulness in the Huntsville community was not good and that Willoughby was "a liar." On cross-examination, Ra- COYNE CYLINDER COMPANY 07 1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spilair admitted that he believed he lost his job because of Willoughby and that it "could be" that he bore a grudge against him for that reason. Nelson Gill, the Respondent's chief engineer, testified that he knew Willoughby, and that one Joe Hill, a member of the Union's negotiating committee, told him that Willoughby's poor work performance on an occa- sion was caused by the fact that Willoughby's "... taking pills . . . was affecting his judgment." Hill was not called as a witness. B. Discussion and Conclusions As is so frequently the case in proceedings of this nature, the resolution of the issue presented depends in substantial part upon determinations regarding the credi- bility of witnesses. In observing and listening to Wil- loughby as he testified, it appeared to me that he was en- deavoring to the best of his ability to tell the truth. Cer- tainly he did not impress me as one who would under- take to fabricate. In a lengthy statement he wrote and gave to the Board agent on March 23, 1978, he stated that at approximately I o'clock on October 24 Supervi- sor Buckner told him to get his coat and accompany him to Garrett's office and, according to the affidavit, Buckner stated, "What these two are about to hit you with-don't admit it unless it's true." The affidavit recit- ed that when in Garrett's office, Garrett stated, "Three employees have informed me you were smoking pot at lunch Thurs. and Friday." Willoughby denied the accu- sation and stated that he had witnesses that would attest to his playing basketball on Thursday, and that on Friday he sat in the laboratory and talked with supervi- sor Henderson with regard to contract negotiations. The affidavit further states that he asked Garrett "that I have a union representative, Alan White of the bargaining committee, sit in during the rest of the conversation and if I could bring witnesses to show where I was Thurs. and Fri. at lunch. Garrett refused to allow anyone to come to my aid." Buckner was not called as a witness.' In assessing the testimony of Castle and Shackleford, it is noted that both of them have an interest in being con- tinued in employment by the Respondent, that Wil- loughby and Castle, as Willoughby credibly testified, had a disagreement about a remark that Willoughby made to other employees concerning Castle. Moreover, both were asked a number of leading questions on direct ex- amination which counsel for the General Counsel asserts necessitates that "miminal weight should be accorded to their testimony." Finally, the testimony of Raspiliar with regard to Willoughby's reputation for truthfulness is sus- In his brief, counsel for the Respondent states Buckner no longer works for the Respondent, that he had left the State and no one had his address. Frazier testified he knew of no one who had been in contact with Buckner. pect. Admittedly, Raspiliar had a grudge against Wil- loughby's because he believed Willoughby was responsi- ble for the loss of his job. In this connection, it is noted that, according to Frazier, the Respondent acted on the basis of Willoughby's report and gave Raspiliar the choice of voluntarily quitting or being terminated. Coun- sel for the General Counsel asks: "If Willoughby's gener- al reputation for truthfulness was apparently in such low regard . . . why did Respondent act upon Willoughby's report with such haste and force Raspiliar to resign?" He answers the question by stating that Willoughby "did not have a general reputation for untruthfulness." After carefully weighing the evidence and the argu- ments of counsel, I come to the conclusion that the Re- spondent did, in fact, deny Willoughby's request for rep- resentation at the disciplinary interview on October 24. That is the only issue involved. While I admitted evi- dence concerning alleged use of drugs by Willoughby, I am now inclined to agree with counsel for the General Counsel that this was error, inasmuch as the "sole issue at the hearing was whether Willoughby was wrongfully denied union representation, not whether he was guilty of the misconduct that led to his discharge." To conclude, I find that the Respondent denied Wil- loughby's request that he have a union representative present at the disciplinary interview and also did not permit him to produce witnesses concerning his activities on the 2 days he was accused of smoking marijuana. In consequence, I shall recommend that the Respondent offer him reinstatement to his former or substantially equivalent job with backpay plus interest, and post ap- propriate notices. CONCLUSIONS OF LAW i. Coyne Cylinder Company, Huntsville, Alabama, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has engaged in unfair labor prac- tices within the meaning op Section 8(a)(l) and (3) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, it will be recommended that the Respond- ent cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. [Recommended Order omitted from publication.]