Florida Steel Corp.

National Labor Relations Board - Board Decisions

Oct 24, 1974

214 N.L.R.B. 264 (N.L.R.B. 1974)

264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Florida Steel Corporation and United Steelworkers of
America, AFL-CIO. Cases 11-CA-5324, 5326,
5347, 5366, 5395, 5405, 5429, 5444, 5448, 5451, and
5455
October 24, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
vocate, on condition that he not support the Union.
We agree that this was a violation. The Administra-
tive Law Judge found that Swanson thereafter
joined the Union, proselytized for it, and was dis-
charged for that reason. However, we do not adopt
the latter's finding that Section 8(a)(3) was thereby
violated inasmuch as that violation was neither al-
leged nor litigated.
ORDER
On April 18, 1974, Administrative Law Judge Ber-
nard J. Seff issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, General Counsel filed cross-ex-
ceptions and a supporting brief, and Respondent
filed an answering 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 briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
The Administrative Law Judge found no 8(a)(3)
violation with respect to John Wells, Jr., who was
discharged May ,19, 1973, after having worked ap-
proximately l year. He previously worked for Re-
spondent in 1963 when he was discharged for absen-
teeism. He was a good worker though absent nine
times and late six times during the calendar year pre-
ceding his discharge, his poor attendance being the
reason Respondent gives for termination. However,
Wells was not first suspended before discharge, a
necessary disciplinary step in accordance with com-
pany policy, and was terminated 3 days after his at-
tendance at a union meeting held under surveillance
by Respondent. Additionally, the racial overtones in
this case demonstrate Respondent's hostility to those
of its black employees who were union adherents.
Fourteen of the seventeen alleged dischargees were
black. Testimony was adduced at the hearing that
Respondent would not hire young, black employees
as they were viewed as likely union supporters, and
the Administrative Law Judge specifically found ap-
peals to racial prejudice in the Company's antiunion
campaign as an independent 8(a)(1) violation. Wells,
a black, had already signed a union authorization
card. In the totality of these circumstances we find
Wells was discharged in violation of Section 8(a)(3)
of the Act.
As to Eric Swanson the complaint alleged an
8(a)(1) violation for rehiring him, a known union ad-
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent, Florida
Steel Corporation, Croft, North Carolina, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order, as so modified:
1. Substitute the following for paragraph 1(j).
"(j) Engaging in surveillance and creating the im-
pression of surveillance of its employees' union activ-
ities."
2. Substitute the following for paragraph 1(n).
"(n) Discharging employees for engaging in activi-
ties in support of a union or discharging supervisors
who refuse requests to commit unfair labor practices
within the meaning of the Act, such as engaging in
appeals to racial prejudice designed to defeat a union
or selectively disciplining employees because of their
support for a union."
3. Substitute the following for paragraph 2(a).
(a) Offer James Ashcraft, Bobby Bryant, Charles
Frazier, Henry Huey, Thomas Fraylon, Alfred
Haynes, Gary Davis, Loren Theodore, Bruce Lem-
mond, Robert Early, Don Shelton, Winfield Eudy,
and John Wells, Jr., reinstatement to their former po-
sitions or, if these positions no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and of-
fer James Reid pay for a 3-day suspension (he is still
employed by Respondent)."
4. 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
After a trial at which all sides had the chance to give
evidence, the National Labor Relations Board found
that we, Florida Steel Corporation, violated the Na-
214 NLRB No. 59
FLORIDA STEEL CORPORATION 265
tional Labor Relations Act, and ordered us to post
this notice and to keep our word about what we say
in this notice.
The law.gives you the right:
To form, join, or help unions
To choose a union to represent you in bar-
gaining with us
To act together for your common interest or
protection
To refuse to participate in any or all of these
things.
WE WILL NOT coercively interrogate our em-
ployees and threaten them with loss of jobs if
they become members of or assist United
Steelworkers of America, AFL-CIO.
WE WILL NOT threaten our employees with
plant closure if they select the Union as their
bargaining representative.
WE WILL NOT threaten our employees with
reduction of overtime work for engaging in
union activities.
WE WILL NOT threaten our employees with
layoff and a lockout if they select the Union
as their bargaining representative.
WE WILL NOT threaten to take away all ben-
efits if our employees select the Union as their
representative.
WE WILL NOT threaten to work 12-hour days
with nonunion personnel if our employees se-
lect the Union as their bargaining representa-
tive.
WE WILL NOT impose more stringent work-
ing conditions because our employees en-
gaged in union activities.
WE WILL NOT appeal to racial prejudice in
order to combat the Union.
WE WILL NOT engage one of our employees
to spy on union activities of other employees.
WE WILL NOT engage in surveillance or
create the impression of surveillance of our
employees' union activities.
WE WILL NOT sponsor and solicit our em-
ployees to sign an antiunion petition which we
circulated among our employees.
WE WILL NOT threaten to subcontract our
trucking operations if the Union is selected as
our employees' bargaining representative.
WE WILL NOT promise improved wages if the
employees reject the Union as its representa-
tive.
WE WILL NOT discharge employees for en-
gaging in activities in support of the Union or
discharge supervisors who refuse our request
to commit unfair labor practices within the
meaning of the Act, such as engaging in ap-
peals to racial prejudice designed to defeat a
union or selectively disciplining employees
because of their support of a union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights under Section 7 of the
Act.
WE WILL offer to reinstate James Ashcraft,
Bobby Bryant, Charles Frazier, Henry Huey,
Thomas Fraylon, Alfred Haynes, Gary Davis,
Loren Theodore, Bruce Lemmond, Robert
Early, Don Shelton, Winfield Eudy, and John
Wells, Jr., to their former jobs or, if those jobs
no longer exist, to substantially equivalent
jobs without any loss of seniority or other
rights, and WE WILL reimburse them for any
loss of earnings they may have suffered be-
cause we discharged them, with 6 percent in-
terest, and WE WILL offer James Reid pay for a
3-day suspension, with interest.
FLORIDA STEEL
CORPORATION
DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Administrative Law Judge: This case
came on for hearing before me in Charlotte, North Caroli-
na, on varying dates from October 24 through November
2, 1973.' The United Steelworkers of America, AFL-CIO,
hereinafter referred to as the Union, filed its original
charge on May 17; the original complaint was issued on
July 31; a series of II charges were filed against Florida
Steel Corporation, variously referred to as the Respondent
or Company, between May 17 and September 17. The
cases were consolidated and the hearing took place on the
second amended consolidated complaint issued on Octo-
ber 11. The complaint alleged that Respondent had com-
mitted certain violations of Section 8(a)(1) and (3) and had
discriminatorily discharged about 17 employees. It was fur-
ther alleged that Respondent committed a wide spectrum
of independent 8(a)(1) activities such as threatening to
close the plant; engaging in surveillance; interrogating its
employees; promising certain employees benefits if they
did not vote for the Union; engaging one of its employees
to spy on union activities of other employees and other
acts. A number of amendments were added to the com-
plaint during the hearing one of which alleged a violation
of Section 8(a)(4).
Respondent in its answer denied the commission of the
unfair labor practices but admitted allegations of the com-
plaint sufficient to support the assertion of jurisdiction on
the current standards of the Board (both inflow of over
$50,000 and outflow of over $50,000) in the past 12
1 All dates took place in 1973 unless otherwise indicated.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
months. The answer further admits that the Union is a
labor organization within the meaning of the Act.
Upon the entire record,2 and my observation of the wit-
nesses and their demeanor, and after consideration of the
briefs filed by the parties, I make the following:
FINDINGS OF FACT
1. THE COMPANY AND ITS BUSINESS
Respondent is a Florida Corporation with a plant locat-
ed in Croft, North Carolina, where it is engaged in the
manufacture of steel and reinforced rods.
It. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
INTRODUCTION
The Union commenced its organizing campaign about
March 20, 1973. The Respondent employs approximately
200 production and maintenance employees in its steel
mill. After 2 months of such efforts it filed a petition for
certification on May 17. The election took place on July 12
but one whole shift did not vote which resulted in a second
election taking place on August 30. Ninety-seven votes
were cast for the Union; 82 votes were cast against the
Union and there were 19 challenged ballots. The Represen-
tation case is not before me for decision.
The Company's Supervisory Hierarchy
It is admitted by the Respondent that the persons listed
below occupied supervisory positions within the meaning
of Section 2(11) of the Act:
Stanley Peschel-Rolling Mill Supt.
John W. Kachel-Manager Industrial Relations
David Hargett-Supv., "A" crew
Alvis O'Brien-Supv., "A" crew
Ray McGlamery-Supv.
Tim Wilkes-Supv., "A" crew
Burt Larson-Supv.
Bobby Mitchell-Supv., "C" crew
Michael Barnhardt-Shearing & Shipping Supv., "A"
crew
Steve Henson-Melter foreman on "B" crew
Jack Eudy-Supv.
Delmar Milam-Supv., "D" crew
Sam Tesh-Maintenance Supv.
Jimmy Summerlin-Supv., "D" crew
Richard Carpenter-Employment Supv.
Joe Stricker-Supv.
Jerry Hinson-Supv.
John Davis-Supv. of the Fabrication Shop
Buzz Minor-Supv.
Bill Newell-Supv.
2 The General Counsel filed two unopposed motions to correct the tran-
script which I now grant.
William Shamholtz-Supv.
Denny Andrew-Plant Manager
The keystone of the General Counsel's case is largely
based on the testimony of Supervisor Eudy. Along about
March, when the Union's organizational efforts began, the
Company enlisted the aid of its supervisors to combat the
union campaign. In the beginning Eudy was the most mili-
tant of the Company's agents. He made strenuous efforts
to defeat the Union.
Eudy testified he was instructed to engage in a wide
range of illegal activities by Kachel, manager of labor rela-
tions, and Peschel, who is the rolling mill superintendent.
Eudy testified that he interrogated employees concerning
their union activities; engaged in surveillance: threatened
employees with reduction of overtime for engaging in
union activities; threatened employees with plant closure if
the Union was selected by the employees; appealed to ra-
cial prejudice to combat the Union and solicited an em-
ployee to spy on other employees' union activities.
Respondent in its brief characterized the enthusiasm
that Eudy displayed when he threw himself into the cause
of presenting the Company's side of the story as "very
nearly his own private war against the union organizing
activity." Shortly before the holding of the first election,
July 12, Eudy had a change of heart and switched sides. In
this posture he demonstrated as much zeal attacking the
Respondent as he had previously in his verbal assaults on
the Union. In view of the significant role in the commission
of unfair labor practices played by Eudy, his credibility as
a witness is of paramount importance. This issue will be
dealt with infra in the instant decision. Suffice it to say that
much of Eudy's testimony was corroborated. His reliability
was sharply attacked by Respondent. The main thrust of
this attack centered on the testimony of Alvis O'Brien that
Eudy had boasted to him that Eudy engaged in numerous
amatory exploits with female employees on company time
and property. It should be noted at the outset that a pro-
pensity to engage in sexual relations with employees does
not preclude a witness from testifying truthfully. I credit
that much of Eudy's testimony which was corroborated by
other witnesses and is substantiated by internal evidence in
the record.
Numerous other supervisors also engaged in extensive
8(a)(1) activity under the guidance and with the assistance
of Stanley Peschel, rolling mill superintendent, and John
Kachel, manager of industrial relations.
III. THE UNFAIR LABOR PRACTICES
The Company's Antiunion Campaign
A. Appeals to Racial Prejudice
Eudy testified that in opposition to the union campaign,
the Company began a program of eliminating those em-
ployees most likely to be union sympathizers. Eudy further
testified that during the first part of May, Kachel told him
that the black people were the cause of the Union being in
Charlotte; Kachel told the Respondent's supervisors that
the NAACP had petitioned the United Steelworkers to
"kick off" this campaign at Florida Steel. The supervisors
FLORIDA STEEL CORPORATION 267
were told that in their discussions with the people to em-
phasize that this would be a black union, that it was going
to be run by the blacks and this would discourage white
people from joining the Union. Respondent concentrated
on black employees. This is borne out by the fact that out
of 16 dischargees 13 were black. Furthermore the record
clearly supports Eudy's testimony on the black issue by a
stipulation entered into by Respondent's counsel and the
General Counsel. During May 1973, Respondent hired
only two blacks from a total of 19 new employees; during
June Respondent hired only one black from a total of nine
employees; during July Respondent hired no blacks out of
a total of seven employees; and during August Respondent
hired only one black from a total of eight employees.
Eudy stated that he based his entire campaign on this
theme. Kachel was asked if he ever told Eudy that blacks
or black people were the reason for union organizational
efforts. His answer was as follows:
No sir, I can remember that there was a rumor going
through the whole mill out there that a group of em-
ployees, black employees had gone to the NAACP
and that the NAACP had referred them to the Steel-
workers. Now how , that knowledge was; I heard it
walking around the mills; a couple of people told me
about it. I am sure that other people knew . I may have
said something in conversation about it but it was
something I heard in the mill; but I didn ' t use it as a
lever of tool against anybody or any group.
There is a marked similarity between Eudy 's version of
this conversation and the explanation made by Kachel. By
transposing the conversation away from himself and as-
cribing it to rumor this vague statement sounds more like
Kachel's words than a rumor.
B. Threats, Interrogation, and Surveillance
Employee James Jordan testified that on an occasion
outside the building about 8 a.m. in the morning, Melter
Foreman Steve Henson spoke to him, saying, "how
come you went to the union meeting last night?" Jordan
replied that he had gone to the meeting, to which Henson
responded, "tell me, what good is the Union?" Jordan said
that he had worked with the Union before he came with
Florida Steel and it had done a lot of good for him. Hen-
son asserted "that he didn't think that the Union was too
good because he had worked for it before and they had
given him a bum deal."
Henson testified that he didn't remember telling Jordan
that he knew Jordan had gone to the union meeting, but
did recall asking Jordan what good, the Union was and
recalled that -Jordan replied that he had worked for the
Union at one time and thought it was a lot of help for the
men. Henson further said he couldn't recall when this con-
versation occurred but it happened before Jordan "started
wearing his (union) card , or something."
On the above, I credit Jordan's version of the conversa-
tion.
Shear Foreman Bobby Mitchell spoke to female employ-
ee Bobby Bryant about April 20 and asked her did she
know anything about the petition being circulated through
the plant relating to the union. At first Bryant denied she
knew anything about a petition. Mitchell pressed her and
said she was lying because Mitchell had been told Bryant
and some other employees were trying to bring the Union
into the plant. Bryant repeated that she was not involved
in such action. A fellow employee, Harvey McKinley,
laughed and told Bryant to tell Mitchell what she knew
because the Company already had this information. Bryant
then replied she was for the Union and would do ev-
erything she could to help the Union.
Employee James W. Miller (it is necessary to use the
middle initial because there is more than one Miller em-
ployed by Respondent) on or about April 20 had gone to
get a drink at the fountain. On his way back Miller was
asked by supervisor Mitchell had he heard anything about
a petition. Miller knew nothing about a petition. About 2
or 3 days after Bryant was fired Mitchell asked Miller
"why was everyone wanting a union?"
Loren Theodore worked for the Respondent from
March 20, 1972, until he was discharged on May 27, 1973.
Early in May his supervisor Delmar Milam spoke with
Theodore while he was working in the pick area. Milam
asked Theodore if he had heard anything about a union
petition then circulating in the mill . He replied he had
heard about it and he had signed it.
About I week before Theodore was terminated, about
May 20, he had another conversation with Milam. Theo-
dore has a brother from Ohio who was trying to get a job
with Florida Steel. He had spoken to Milam twice about
his brother's efforts to get a job. Milam asked if the brother
had heard from the Company. Theodore said the Compa-
ny was probably checking out the application. Milam then
said, "Well, is he union like you and Lee Turner?" Theo-
dore answered he did not know but if Milam wanted this
information he would have to ask his brother.
Theodore also recalled a conversation with Milam con-
cerning the poor condition of the molds. Theodore said he
had remarked he would be glad when the Union got in and
straightened out this situation. Milam replied, " ... there
wasn't going to be any union coming in, that Florida Steel
could close the doors if they would go union."
Milam was not called as a witness by Respondent and
therefore the allegations concerning statements ascribed to
him stand unrefuted on the record. I credit Theodore's ver-
sion of the incident.
Eudy questioned employee Shelton concerning certain
employees; whether they were active in the Union. Eudy
wanted to know if Shelton had any information' about Wil-
lie Steele . Eudy told Shelton, Steele had missed several
days work and he said Respondent wanted to get rid of
him but did not know how without getting in any trouble.
The Company wanted Shelton to find out if Steele was
involved in the Union in any way. Eudy said Steele did a
good job.,
Eudy continued in the same frame of reference following
his conversation with Steele. Eudy did not want to get rid
of his crane operator, Ernie Sturdivant, who also was de-
scribed as a good worker. Eudy also said that the same
thing applied to Bobby Bostic, J. R. Hunt, Crayton Hunt,
and David Gross. All of the above interrogation was di-
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rected by Eudy to Shelton. It encompasses the information
concerning Willie Steele, Ernie Sturdivant, Bobby Bostic,
J. R. Hunt, Crayton Hunt, David Gross, and the thrust of
the questions asked by Eudy of Shelton was to find out
whether or not these employees were favorable to the
Union or were involved in union activities.
Eudy had a series of conversations with employee Rob-
ert Early. During the last of June or the first of July, Eudy,
in the course of talk about a hunting gun, asked Early
"what was we doing about messing everything up with this
damn union."
Starting about May, Eudy had a number of conversa-
tions with employee Bobby Bostic about the Union. Eudy
told him that if Bostic stuck by him (Eudy) he could do
more for him than a union could. Eudy offered Bostic a
temporary job as a crane operator earning 30 cents an hour
more than he was earning at the time of the conversation.
At another time in this time sequence Eudy told Bostic that
the Company did not want a union and that "he (Eudy)
would do everything in his power to keep it out-before
the Company would sign a contract they would go out of
business."
Employee Harold Yount testified that he had two talks
concerning the Union with supervisor Alvis O'Brien. The
first conversation was on July 9 and the second on July 10.
The first conversation took place at the 12-inch mill.
O'Brien asked Yount "what was my price to change my
vote and vote against the Union." I told him that I didn't
have a price. He continued that "everybody has a price."
In a joking manner Yount said he "would consider chang-
ing his vote for a year's paid vacation." O'Brien took the
remark about a year's paid vacation seriously and cursed
Yount out. He wanted to know what Union Representative
Moon had promised him.
On July 10 Yount had another conversation with
O'Brien, this time in the office of Superintendent Peschel
where Yount had been instructed to report by his immedi-
ate boss, Joe Stricker. Only O 'Brien and Yount were pre-
sent at the second conversation. This talk took place at
7:30 in the morning.
O'Brien said, "he-asked me how come I was so stub-
born and so set on the Union, and I told him that my
brother had drove a truck for a number of years, and I
know what a good union can do for you, how it can help a
person; O'Brien said that he had worked for unions up
north and they never had helped him in any way; and I
told him that if the Union got in Florida Steel that it would
have to help conditions the way they was; that they
couldn't get too much worse; and he (O'Brien) went on to
tell me that the Union had a stubborn company; they
wouldn't negotiate; O'Brien said that they would close the
plant down first; I told them that I didn't think so because
of the stockholders in the plant wouldn't see it shut down
since this would cause a loss of money." O'Brien then said,
"they wouldn't bother with the Union at the table."
O'Brien also said that if I would change my vote this
time and vote against the Union, that in a year's time when
we could try to reorganize the plant he would stand beside
me and help me get votes for the Union providing I would
go against it this time. And I told him no, sir, that I
wouldn't do it and that I "wouldn't take a bribe."
Employee Frederick Nilsson testified that in the early
morning of May 18 the melt shop superintendent, Burt
Larson , asked Nilsson if he had any knowledge of the
union activities and what was going on, and what the
Union was up to and Nilsson told him that he didn't know
and didn ' t wish to continue the conversation anymore and
he excused himself.
O'Brien testified and denied that he asked Yount what
his price would be to change his vote and he denied hear-
ing mention of a year's paid vacation . O'Brien admitted
that he had some conversation with Yount about the fact
that he inquired as to why Yount was so stubbornly for the
Union and Yount had replied that it would have to help
things. O'Brien then testified as follows:
I asked him why he was so stubborn why he was so
headstrong . . . and he said, because his father had
been to the Union and it had always been good to
him; and he said that his father was a teamster [who]
worked on a dock or something and it had always
been good to his Dad ._ (O'Brien) told him that I
knew conditions at Florida Steel wasn't as good as
they should be. This was true you know that things
hadn't always been done in the past to the best of
everyone's benefit but that we had a new manager,
and the man had promised to improve conditions so I
asked him to give this man a chance. [This refers to
the new plant superintent Denny Andrew.] . . . and
my exact words to him, I said, `If the Company wins
this election, and we could have another election here
in a year's time after one year, if most of these things
that Denny Andrew said he was going to do hasn't
been done in a year's time , I will help you organize the
next union.'
All of the above information was testified to by O'Brien.
O'Brien admitted that he approached every man who
worked for him to urge each of them to wear "VOTE NO"
stickers on their clothing. O'Brien said he understood part
of his duties was to persuade the employees to vote against
the Union. In order to know which men were for the
Union and which were for the Company he offered compa-
ny stickers to his crew. Yount refused to wear one and said
he wanted something different. O'Brien went on to say that
most of his employees took the antiunion stickers and wore
them. O'Brien further remarked that during lax time, he
offered his men the stickers but not at times when they
were actively engaged in production.
There were conflicting versions of the incidents that
were recounted by Yount and O'Brien but in any event it is
clear, and it was admitted by O'Brien, that among other
things he did interrogate Yount about the Union. I so find.
Employee Natale Plutino testified that his supervisor
Jerry Hinson asked him why he didn't wear a "VOTE NO"
sticker, to which Plutino replied that he was going to cast
his vote either yes or no and he did not want to wear a
sticker.
Plutino stated that during the same week that he had his
conversation with Hinson, Supervisor Bill Newell asked
him at lunch time between 10:30 and II in the morning the
same question asked by Hinson. He. asked why I wouldn't
FLORIDA STEEL CORPORATION 269
wear a "VOTE NO" sticker and I told him the same thing I
told Hinson that I didn't have to wear a sticker like that
and it was not because I was afraid. Plutino went on to say
that Newell, before the first election during the first part of
July, asked Plutino when the organizers were going around
to different peoples' houses Plutino should be good to them
and find out everything that he could and then come back
the next day and report to him (Newell).
Eudy testified that Respondent's manager of labor rela-
tions Kachel , entered into an arrangement with him to take
small groups of employees out, buy them beer, solicit infor-
mation concerning union activities , and report back to Ka-
chel. Kachel admitted that he agreed to the plan. Eudy
asked Kachel if he would be reimbursed for out-of-pocket
expenses . Kachel admitted that two such occasions took
place and Eudy was reimbursed by receiving two pay-
ments, one for $8 and one for $10 directly from company
funds.
Employee Robert Riggan testified that supervisor David
Hargett threatened him with discharge when he told Rig-
gan that "if the Union got in and you help it get in here,
you might as well look for another job, you son of a bitch."
Respondent engaged in surveillance of its employees'
union activities. Three employees, Fraylon, Huey, and
Alfred Haynes testified to seeing Shearing Supervisor Mike
Barnhardt, sitting in his automobile observing which em-
ployees were attending a union meeting on May 8 at the
Howard Johnson Motel. Fraylon testified that when he ar-
rived at the Howard Johnson parking lot employee Henry
Huey pulled in behind him and later Haynes parked on
this lot. The three men saw Barnhardt go around the lot
and he appeared to be checking the license numbers on the
tags of the cars on the lot. Fraylon's testimony was corrob-
orated by Huey and Haynes.
Barnhardt claims he was on his way to help a friend do
some work in his house. The usual route he normally took
to reach his friend's home was blocked by a muddy road.
In order to bypass the roadblock he turned his car around
in the Howard Johnson parking lot. He made a turn in this
lot in order to take another route.
I credit the version of this incident given by the three
employees and do not credit the explanation offered by
Barnhardt.
Fraylon was involved in an incident of interrogation en-
gaged in by Respondent. When Fraylon applied for a job
at Florida Steel he was interviewed by Kachel. He had
been employed at the A & P warehouse and this was
known to Kachel . Kachel said there was no use asking
Fraylon about union affairs he knew that the A & P is all
unionized. Fraylon was then asked by Kachel how he felt
about the Union. Fraylon replied that the Union never
gave him any bad deals and so ,he would be for the Union.
Kachel did not controvert the testimony of the interroga-
tion of Fraylon. I therefore credit Fraylon and find that he
was asked by Kachel what he thought of the Union.
Respondent threatened his employees with plant closure
if they selected the Union. Supervisor Eudy told employee
Bobby Bostic that he would do everything in his power to
keep it out; before the Company would sign a contract
they would go out of business.
Employee Loren Theodore was told by his supervisor,
Delmar Milam , that "there wasn ' t going to be any union
coming in, that Florida Steel could close the doors before
they would go union."
Employee Harold Yount was told by Supervisor Alvis
O'Brien that the Company would close the plant down if
the employees voted the Union in.
On another occasion the Company threatened to lock
out its employees if the Union was elected. Maintenance
Supervisor Sam Tesh told employee James Reid:
Well he said something about that they would be able
to shut down for something like 3 months or some-
thing like that and that they would work it with non-
union people.
A further threat was also made by Tesh that fringe benefits
concerning insurance and vacation pay would be eliminat-
ed if the Union was voted in.
Tesh did not appear as a witness and therefore Reid's
comments were not contradicted and stand as being true.
On another occasion in a conversation that took place in
the snackbar about 2 days before the first election, on July
10, ' Plant Superintendent John Davis had a conversation
with employee Bruce Lemmond. In this conversation Da-
vis told Lemmond "if the union came in we would lose all
our benefits , our savings plans and retirement."
About a week before the first election took place a con-
versation occurred with employee Plutino. In the course of
this talk Assistant Foreman Newell told Plutino to be
pleasant to union organizers if they came to see him in his
home, find out everything he could, and then report back
to Newell.
Plutino testified that he noticed a change in his working
conditions which took place after the election. In his own
words he said, "I noticed it , it seems that I had to work a
lot of jobs that called for helpers that I was working
alone." Prior to the election it was rare for Plutino to see
supervisors standing around observing him. After the elec-
tion he noticed that supervisors were frequently standing
around staring at him.
Eudy testified that Peschel told him to impose more
stringent requirements on the employees regarding lunch
breaks, other breaktime and working rules. For example,
before the advent of the Union the supervisors ran their
crews according to their own judgment. After the start of
the union campaign the supervisors were required to keep
their employees busy, keep scrap cut up and keep their
employees so occupied that they did not have an opportu-
nity to stand around and talk. The employees were not to
leave their work stations even to go to the restroom without
express permission . If they did they were to be disciplined.
Prior to the receipt of these new instructions these matters
were left up to the supervisors.
Employee Bobby Keziah was thought to be procompany
in his attitude up until the date of the election , July 12. In
the past he had been given a fair amount of overtime work.
On the day of the election he was seen in the company of a
union representative and he had acted as a union observer
at the polling place. Once his identification as a partisan of
the Union was known to the Company, Peschel gave in-
structions that Keziah was -not to work overtime unless this
was first cleared with top supervision.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eudy testified that the Company sponsored and solicited
an antiunion petition which was captioned "Florida Steel
Committee Against the Steelworkers " or words to that ef-
fect. This petition was circulated during the end of June or
the first part of July. Eudy said that this petition was circu-
lated during working hours by employees who had free
time to engage in this activity . He further testified that he
observed these petitions being turned over to Peschel.
Supervisor Jerry Hinson told truckdriver Bruce Lem-
mond that he was strictly opposed to the Union . Hinson
tried to get all of the men to vote against the Union. Fur-
thermore he said, "if the union came in the Respondent
would send all trucks back to the Ryder Truck Rental
Company from which they were leased ." If the Union was
selected as the employees bargaining agent, Lemmond was
threatened that this subcontract would cause all truckdri-
vers to lose their jobs. I credit Lemmond and conclude that
under the circumstances described above Hinson 's threat is
violative of Section 8(a)(1) and I so find.
Employee Bobby Bostic credibly testified that Eudy told
him around the first or second week in July that if Bostic
stuck by him he could do more for Bostic than the Union
could . Eudy gave Bostic a temporary job making about 30
cents an hour more than he previously earned . The Gener-
al Counsel states that the promise of improved wages if
Bostic would not join the Union constitutes a clear viola-
tion of Section 8(a)(1). I agree and so find.
Employee Plutino testified that he was told that he better
not go to a union meeting tonight and "if you do I am
going to take a big hunk out of your ass tomorrow." This
remark was ascribed to supervisor Newell . Newell denied
that he made such a statement . In any event I disagree with
General Counsel that if such a remark was made by Newell
that it represents a threat of physical harm as is stated in
General Counsel 's brief . I believe that it is couched in typi-
cal shop talk as a figure of speech and was not intended to
be taken literally . However , it does show union animus on
the part of Newell . I credit Plutino that the remark was
made by Newell . Such a threat is a clear manifestation of
Newell 's antiunion attitude and as such is a violation of
Section 8(a)(1).
Employee Riggan testified that Respondent denied him
a customary increase in pay at the end,of his 70-day proba-
tionary period . This denial was based on the ground that
his supervisor , Hargett , said that because of the union cam-
paign then in progress all increases were frozen.
Hargett denied he said all raises were frozen because of
the union campaign . There was such an intense. antiunion
campaign in progress , some of which was being partici-
pated in by Hargett , that it is reasonable to believe he did
in fact make this statement . I credit Riggan and find that
by Hargett 's remark Respondent violated Section 8(a)(1).
The complaint was amended at the hearing to include an
allegation that Respondent interfered with the . election
which took place on July 12. Agreement had been reached
by the parties that employees were to be released by ob
servers circulating through the plant . Both employee Lem-
mond and Plutino corroborated the fact that Supervisor
Hinson came to their work stations , told them it was time
to vote , and shepherded them in their respective groups-to
the polling place . After the . groups. had voted they 'were
escorted back to their work stations. It is standard operat-
ing procedure for voters to be escorted by observers to and
from the polling place. There is no basis for complaint
concerning the role played by Hinson . He did not interfere
with the election . I recommend that this allegation in the
complaint be dismissed.
Two days before the election the Company held 2 or 3
meetings with the employees to listen to a speech being
given by John Davis who is the superintendent of the fabri-
cating shop . During the course of this talk, a copy of which
appears in the record (Resp. Exh. 18 ), Davis conceded that
he made other remarks not included in the written material
he had before him. Plutino worked two shifts on July 10
and therefore listened to the talk given by Davis twice. He
testified that Davis allegedly, inter alia, made the following
threats: employees would have to start from scratch in bar-
gaining if the Union won; the employees would lose vaca-
tion time ; would lose overtime pay for Saturday work; in
addition to the number of rules they were operating under
(some 26 in number) they would have many more rules
that they would be compelled to comply with if the Union
became their bargaining representative ; they would be
shunned by management if the Union won the election; all
bargaining efforts with the Company would be futile.
Read in context the written speech does not contain
threats of reprisal or promises of benefit and is protected
by Section,.8(c) of the Act . Plutino testified that Davis de-
parted from the written script and added threats of loss of
vacation , loss of overtime pay for Saturday work , and in-
crease of the number of rules that would have to be corn-'
plied with by the employees . If these additional statements
were made beyond the printed version of the speech they
would represent illegal threats of reprisal.
The speech was made on July 10 . The hearing concern-
ing this testimony took place on October 31. Davis testified
that he' spoke along the lines set forth in the typed speech.
He denied he extemporized on subjects beyond what he
himself had typed . Plutino testified with specificity about
threats made to the employees . It is difficult to recapture
exact words spoken unless notes were taken while the
speech was in progress or there is corroboration from
others who also heard the speech . Neither of these factors
are present . It seems unlikely that 4 months after hearing a
speech that it could be recalled in detail . On the state of the
record I am not convinced that Davis made the additional
remarks attributed to him by Plutino.
As an example of the inculcation of antiunion attitudes
implanted in Respondent 's supervisors the reemployment
of Eric Swanson is instructive . Swanson had been previous-
ly employed by Respondent and had been rehired on May
19. Before he was rehired he was instructed to have a talk
with supervisor Burt Larson . He testified as follows:
Burt'Larson told me that he would be more than glad
to have a worker of my caliber come back to work for
him, but that he had known from a prior conversation
that we had that I was prounion , and that as I must be
aware , he said that as much as he would like to have
me back , that under the circumstances he would be
cutting his throat if I was to come back- and support
FLORIDA STEEL CORPORATION 271
the union. . . . Larson continued . . . but (if) I would
attempt to influence the vote of other employees by
stating my views, and he just couldn't tolerate this.
.. . Following this time I told him, `Well, Burt, as I
understand it, unless I agree to remain uninvolved in
the union campaign, you won't take me back to work.'
He nodded his head, and I said, Well in that case I
give you my word to remain neutral. He said, `Fine I'll
talk to John Kachel.' Just as I got ready to leave, he
cautioned me, saying that if I was to break my prom-
ise, that things had a way of getting back to him, and
he would find out about it sooner or later. He said he
would not advise that.
Swanson was terminated on August 1 but the General
Counsel stated that Larson was not concerned with the
circumstances of Swanson 's termination.
C. The 8(a)(3)'s
1. James Ashcraft
Ashcraft was hired on March 28, 1973, and discharged
on April 27. He was employed doing stripper work. His
direct supervisor was Delmar Milam. Ashcraft testified
that he joined the Union, attended union meetings, and
talked to other employees about the Union. About 2 weeks
after starting on his job he had a conversation with Milam.
Milam asked him how he liked his job. Ashcraft said he
liked the job O.K. but complained that working conditions
were bad. Respondent had a shortage- of employees. Two
men were required to do the job of three. Ashcraft told
Milam "yeah, if they had a union here, two men would not
have to do 3 men's jobs."
About 3 or 4 days after this conversation Milam ap-
proached him while he was stripping heat at the melt shop.
Ashcraft complained about not receiving the pay he had
hired in at. Ashcraft then said , "if this place had a union, it
would not be like this." Milam replied that he did not
know much about the Union.
On April 27 Milam called Ashcraft off the job and told
him he had to be terminated. When asked why, Milam said
he did not know. It is not disputed and Respondent's rec-
ord (G.C. Exh. 45) shows that Ashcraft was a satisfactory
employee.
Ashcraft was told by Industrial Relations Director Ka-
chel that he had been terminated for falsifying his employ-
ment application. His former employer was the Alcoa
Company. Ashcraft had indicated that he had been em-
ployed continuously from June 1968 to October 1972. In
response to a routine reference request Alcoa listed
Ashcraft's employment as being from June 11, 1968, to
July 18, 1971, and from August 21, 1972, to October 14,
1972. Thus there is a gap of about 13 months during which '
Ashcraft was not working for Alcoa.
. In point of fact Ashcraft was laid off twice by Alcoa for
economic reasons during the period in question. During
the layoffs Ashcraft remained in layoff status, was recalled,
retained his seniority date, and received layoff benefits
from Alcoa.
Respondent concedes that if the variance in the employ-
ment questionaire had been for a few months, Ashcraft
would probably not have been terminated, but it argues
that 13 months represents too great a discrepancy.
Note that the union campaign was actively in progress in
the plant in April. Ashcraft directly told his supervisor,
Milam, on two occasions that he favored having a union in
the mill. Alcoa's response to Respondent's questionaire is
dated April 3. Three weeks later, on April 27, Respondent
summarily fired Ashcraft. If Ashcraft's offense was regard-
ed as sufficiently serious to cause his discharge why did it
take this long to eliminate him? The inference is clear that
this move to eliminate a union activist was part of the
Respondent's active campaign to defeat the Union. I find
that Ashcraft's discharge was discriminatorily motivated
and in violation of Section 8(a)(3) of the Act.
2. Bobby Bryant
Bryant is a black female employee who was employed by
Respondent as a shear operator. She was hired on Septem-
ber 17, 1972, and discharged on April 30, 1973.
During her regular shift her supervisor, Bobby Mitchell,
came to her and asked her if she knew anything about a
union or a petition coming into the plant. At first she de-
nied any such knowledge. Later she testified she told him
"I am for the union and I will do anything I can to help
them." Mitchell then said, "that's all I wanted to know."
He said, "you meet me in my office at about fifteen, to
4:00." Bryant said she went to Mitchell's office at which
time he told her she was terminated for being tardy and
late. Bryant replied she did not see any reason for that
because a lot of:other employees had been tardy and late
more frequently than she had and had not been fired. Mit-
chell then asked her if she knew anyone else on her shift
who had signed up with the- Union. She told him no-she
was the only one that she knew of.
Mitchell flatly denied he had made any remarks con-
cerning the Union. He went on to say that the first time he
heard about the union campaign was at a general meeting
of supervisors that took place in April in the Company's
conference room. The record shows that Bryant had been
warned about excessive absence and tardiness and had
been given a 30-day suspension. Mitchell was asked when
the general meeting of supervisors took place. He said he
could not remember the day or the month of this meeting.
The record shows that the meeting occurred in May. Mit-
chell said that he did not know there was, any union activi-
ty prior to the meeting of supervisors: This seems highly
unlikely. The union campaign began on March 20. In April
there was much talk and interrogation in the plant on this
subject. Note that Peschel testified his first meeting with
the supervisors took place in May.
More importantly Peschel approached Bryant to bawl
her out for improperly loading a flatcar. Peschel accused
her of intentionally loading the flatcar incorrectly. Bryant
defended by saying she merely followed the instructions of
employee Sturdivant who is the crane operator and was
responsible for giving her instructions . In the course of ber-
ating Bryant , Peschel told Bryant she "had been causing a
lot of disturbance around there." When asked what he
meant he said "he had heard I had been trying to get a
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petition or a union started and Peschel said he was going to
talk to Mitchell about it." At this point Peschel went over
and talked to Bobby Mitchell. From this testimony, (some
of it given by Peschel during his testimony), it is clear that
Mitchell knew about Bryant's involvement with the Union
immediately prior to discharging her.
Bryant had given an affidavit to the NLRB which con-
tained some confused and contradicting statements. After
establishing that Bryant did in fact execute this affidavit,
Respondent 's counsel introduced the document in evi-
dence (Resp. Exh. 1) and waived further examination.
Out of the welter of this evidence, it appears clear that
Bryant was discharged because Respondent knew she was
active in the Union. I credit her testimony as corroborated
by the testimony of Peschel and find that Respondent dis-
charged her not for lateness and absences but because of
her union activities . This is violative of the Act.
3. Charles Frazier
Frazier was employed on December 15, 1972, and was
discharged on May 4, 1973. He worked as a loader in the
steel mill . Shortly before his discharge he had a party at his
home. There was considerable talk among those present
about the need for the Union at Florida Steel. Frazier's
supervisor, Bobby Mitchell, was present at this party. Re-
spondent called Mitchell as a witness but he said he could
not recall the talk because he was so drunk he could re-
member nothing about what was said at the party.
Frazier wore his protective hardhat sideways with the
beak at the side. He was told to wear it correctly. On May
4, when he continued to wear his hat sideways, he was
fired. He explained the reason for turning his hat to the
side was that his work station was hot-90 to 100 de-
grees-this caused him to sweat profusely and he could
wipe his eyes more readily while his hat was sideways. He
was told to go to the first aid room to secure a sweat band.
He did not follow this suggestion.
At first blush this discharge seems to be for cause. How-
ever it is important to point out the following : (a) no other
employees have ever been fired for this reason; (b) in addi-
tion to welders other employees wear their hats in positions
similar to the way Frazier wore his hardhat and continue to
wear them this way. For example employee Shiner has and
still wears his hat askew and no discipline has been im-
posed on him . Instead of imposing a disciplinary suspen-
sion, as has been done with many other employees, Frazier
was fired on the spot. Why the sudden imposition of the
extreme penalty of discharge? The answer to this question
is found in the testimony recalled by Supervisor Eudy of
the instructions given to him by Superintendent Peschel:
I recall that Mr. Peschel gave instructions that some-
thing was going to have to be done with Frazier, that
he had a lot of lost time, and he was carrying on a lot
of union activities ; and his absenteeism wasn't good
... and that it wouldn't be too hard to build a case
on him, and to go ahead and start the paper work so
that he could be discharged.
The Company clearly knew of Frazier's prounion feel-
ings. The law is well settled that while an employer can
discharge an employee for any reason or no reason if any
part of the reason is due to union activities such a dis-
charge is violative of the Act. On the facts of this case the
inference is clear that Frazier was discharged as part of a
discriminatory pattern engaged in by Respondent to rid
itself of union adherents. I credit the testimony of Eudy
and find that Frazier was discharged for discriminatory
reasons violative of Section 8(a)(3) of the Act.
4. Henry Huey
Huey began to work for Respondent as an assistant roll-
er on September 5, 1964. He was discharged on May 10,
1973. During the 9 years of his employment he received
numerous performance ratings. General Counsel Exhibits
23 thru 34 for the most part show that his performance was
better than satisfactory and Exhibits 26, 27, and 32 show
he was rated as outstanding on a number of elements cov-
ered by these reports.
However, his ratings changed when Alvis O'Brien be-
came his supervisor. Note that on May 6 and May 7, 1973,
he received warnings that he failed to perform the duties of
his job, caused waste, and "recurrence of this type of in-
fraction will cause discharge ." On his rating dated January
29, 1973, his rate of pay is listed as $4.08 per hour.
Huey worked on May 7. He was off work on May 8 and
returned to work on May 10. O'Brien came to him on his
job, directed him to see him and Superintendent Peschel in
Peschel's office. O'Brien showed him a sheet which indi-
cated that he had 38 shorts (rods that were shorter than
specifications) in one heat . A heat is one furnace load.
During the time these shorts occurred, Huey had talked to
his crane operator for about 25 minutes . Huey explained
that during this conversation he was in a position where he
could see the hot bed and the mill. He was short a utility
man and he had to do two jobs. At the end of the day he
was summoned to Peschel 's office where O'Brien said "for
what happened this morning and for other reasons we are
going to terminate you."
Huey testified that he had never been warned for run-
ning short bars. He said he doubted he had 38 shorts. He
admitted it was his responsibility, not to run shorts.
It is apparent that O' Brien felt Huey had been rated too
highly in earlier reports. But absent any previous warnings
or reprimands for running shorts this incident is not a rea-
sonable basis for discharging him. It is significant that
Huey, corroborated by employees Thomas Fraylon, John
Wells, and Alfred Haynes, testified that they attended a
union meeting at the Howard Johnson Motel on May 8,
where they were seen by Supervisor Michael Barnhardt. As
has been shown supra, under Section 8(a)(1) the Company
was engaged in a vigorous campaign to defeat the Union.
One of the techniques employed to eliminate prounion ad-
herents is to build a file of complaints and then discharge
an employee. In this connection former supervisor Jack
Eudy was being pressed to fire an employee, Bobby Bostic.
Eudy said he had no complaint about Bostic . Alvis O'Brien
spoke up and said why haven't you fired him yet-he was
put on your crew for you to fire. At this point in the con-
versation Alvis O'Brien said "Well, you can do him like I
FLORIDA STEEL CORPORATION 273
did Henry Huey . . . you can build a case on the black
son-of-a-bitch because you know he is for the union." Em-
ployees Shelton and Eudy testified to the above conversa-
tion with O'Brien. O'Brien denied having made the state-
ment. I credit Shelton and Eudy and discredit O'Brien's
denial. The pattern of Respondent's activity in opposition
to the Union fits into the quoted testimony. O'Brien admit-
ted he was violently opposed to the Union. Under these
circumstances I find that the reason advanced for the dis-
charge of Huey, a 9-year employee was pretextuous. Huey
was discharged because of his adherence to the Union in
violation of the Act.
5. Thomas Fraylon
Fraylon was hired as a janitor on March 5, 1973. He was
discharged for unsatisfactory attendance and leaving his
work station. Respondent's records show that he was late
five times, absent once, and on one occasion he left the
plant without permission. The Company further stated that
Fraylon was warned a number of times but he continued to
wander around the mill. On one occasion, May 6, he was
not at his station and was almost hit by a bar of hot steel.
He was discharged before he had completed his 70-day
probationary period.
Fraylon testified that he was seen by the director of la-
bor relations, Kachel, and at his initial interview Kachel
learned Fraylon had been employed by the A & P Compa-
ny. Kachel then remarked, "there is no use asking you
about any union affairs because A & P is all unionized."
Fraylon said, "Yes it is." Kachel then asked how Fraylon
felt about the Union. Fraylon replied "well, the union has
never gave me any bad deals or nothing of no kind and so
I would be for a union."
On May 8, Fraylon testified he attended a union meeting
together with employee Henry Huey at the Howard John-
son Motel where they were seen by Supervisor Mike Barn-
hardt. On Fraylon's first day back at work on May 10 after
this meeting, he was summarily fired. He testified he was
never warned about his absence and tardiness and that as a
janitor he cleaned many places in the plant and thus had
no fixed work station.
Kachel did not deny Fraylon's testimony. It is clear that
the Company was well aware of Fraylon's prounion view-
point. Further he was seen at the union meeting by a com-
pany supervisor immediately prior to his discharge. It has
long been held that a discharge, following swiftly upon dis-
covery of union activity, strongly indicates that the dis-
charge was in fact motivated by union considerations. This
inference of unlawful motivation is further supported by
the hostility toward the Union revealed by Respondent's
unlawful interrogation and its assertions of antiunion bias.
I find that Fraylon was discharged because of his union
sympathies in violation of the Act. '
6. John Wells
Wells worked for Respondent the first time in 1963. He
was discharged due to excessive absenteeism. He was given
a second chance, was rehired on April 21, 1972, and was
terminated on May 9, 1973. His discharge on this occasion
was again based on absenteeism. Supervisor Larson testi-
fied Wells was absent 9 days and late 6 times in this calen-
dar year. Respondent concedes that Wells was a good sta-
plesetter when he worked and it is for this reason that he
was rehired.
According to the record Respondent's policy regarding
discipline consisted of three steps before a discharge could
take place at the fourth step. According to the General
Counsel this failure to follow the policy set forth in the
company manual points up a flaw in Respondent's defense
but I place no significance on this fact.
The General Counsel continues that Wells signed a
union card and spoke to a few fellows on his shift and
another shift about the Union. Wells testified that he was
unaware of having been seen by management during his
union activity. Wells was one of the employees who attend-
ed the union meeting which took place at the Howard
Johnson Motel on May 8. He testified he did not know he
was seen by a company representative at this time.
He asked for time off to straighten out a personal prob-
lem with the local court which concerned an instance of
mistaken identity. He was told he could go but would re-
ceive a reprimand for leaving his job. He testified he re-
ported to work the day after the union meeting, became
sick while working, and received permission from his su-
pervisor, Tim Wilkes, to see a doctor. He said the doctor
was not in when he went to see him.
The General Counsel contends that Wells' discharge
coming shortly after he attended the union meeting of May
8 indicates that he was discharged because of his atten-
dance at the union meeting. There is no evidence, direct or
indirect, in support of this conclusion and on cross-exami-
nation Wells testified that no supervisor spoke to him
about the Union.
Respondent points out that while Wells was a good
worker when he showed up, his record shows that he con-
tinually lost time and he was twice discharged for excessive
absenteeism. I am persuaded that he was discharged for
cause and recommend that this allegation in the complaint
be dismissed.
7. Alfred Haynes
Haynes began to work for Respondent as a forklift oper-
ator on May 27, 1965. He was terminated on May 12, 1973.
During his 8 years of employment he was an exceptional
worker. Exhibits 50 and 51 in the record show his perfor-
mance was graded "Outstanding" and "better than satis-
factory." His personnel file also includes a special letter of
commendation for unusually good attendance.
Haynes was a union adherent; he signed a union author-
ization card and attended the union meeting on May 8 at
the Howard Johnson Motel. When he arrived at this meet-
ing he saw, and was seen by, Supervisor Michael Barn-
hardt. When he returned to the plant his supervisor, Dave
Hargett, came up to him and said, "what is this that I•hear
about you that you are going to get fired?" Haynes replied,
"What? Get Fired? Get fired for what? What have I
done?" Hargett answered that someone on the shift told
him that Haynes might be fired. Haynes had stated in the
union meeting the day before that because Barnhardt had
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seen him that he would not have a job because his atten-
dance at the union meeting would get back to his bossman.
On Friday evening, May 10, Haynes found that his
home had no electricity and it was too late Lc; get a man to
repair the faulty system. Haynes came to v, rk Saturday
morning, May 11. His wife phoned him at the mill to tell
him his freezer, which had considerable meat in it, was off,
his electrified fence which kept his hogs enclosed was not
working, and he had no water. He looked for his supervi-
sor, Hargett, to tell him about the emergency but could not
locate him. He changed his clothes and was on his way
home when he met Hargett to whom he explained the
emergency. Despite his explanation Hargett refused him
permission to leave and said if he left the plant he would be
walking off the job. He did leave and was discharged.
Haynes testified that before he left the plant he saw two
men near his forklift who were capable of operating it.
The record shows that on two previous occasions
Haynes had emergency problems. When they were ex-
plained he was permitted to go home. Respondent offered
Exhibit 36 which is a disciplinary report against Haynes for
leaving without permission on November 6, 1971, almost 2
years prior to his termination. This incident did not result
in either a discharge or a suspension. The General Counsel
points out that this infraction did not takes place during a
union organizing campaign! However Haynes is black and
was present at the May 8 union meeting. Dave Hargett had
only been Haynes' supervisor for 12 days when the inci-
dent took place. The record also shows that Hargett is the
same supervisor who admitted he stamped his foot and
uttered the words "son-of-a-bitch" upon seeing an employ-
ee wearing pro-Steelworkers stickers.
Viewing the evidence in its totality it seems clear that
Respondent knew Haynes was prounion and this is what
caused a hasty decision against an 8-year employee in a
situation where in the past he had received only a repri-
mand for a similar infraction. The inference is clear that a
discharge following closely upon discovery of union activi-
ty strongly indicates that the discharge was motivated by
union considerations. I so find.
8. Gary Davis
Davis began to work in February as an ingot staple set-
ter in the. mett shop under the overall supervision of Burt
Larson. His immediate supervisor was Tim Wilkes. He was
discharged May 19 for failing to report off or call in. Davis
explained that his usual lift did not show up. He said he
tried unsuccessfully to reach the plant by phone to call in.
Wilkes did not appear at the hearing and therefore gave
no testimony concerning Davis. Larson testified that Davis
worked for Respondent for 73 days which would take him
past the 70-day probationary period established for all new
employees. There are two significant exhibits in the record
(Resp. Exhs. 25 and 26). The first one, dated May 8, writ-
ten in heavy handwriting, carries this notation:
I hereby extend your prohationary period. Improve-
ment must be made during next 30 days in quality and
attendance. Will review again in June. Next review
6/17/73.
A second report (Resp. Exh. 25), dated May 22, states Da-
vis had been late three times and absent two times; it also
carries the notation: warned May II and again on May 14.
Davis testified he was not warned and never was sus-
pended. Larson testified that "Davis had a reprimand as
well as a warning due to I poor attendance . . . he worked
out real well the first few weeks and then his attendance
started dropping off as well as his work." Davis further
testified that he attended the union meeting on May 8
where he received union credentials which he wore con-
spicuously on his shirt pocket. It is implausible that Re-
spondent did not know Davis was a union adherent. If his
work and attendance began to fall off a few weeks after he
was hired it is difficult to understand why he received only
one writeup from February to May 8. The record does not
show that Davis was informed his probationary period had
been extended. There is no record information that any
other employee had his probationary period extended.
The timing of the report of May 11 (dated May 8 in the
upper right hand corner) coming as it did 3 days after Da-
vis began to openly wear his union credentials in the plant
is unexplained by Respondent and appears to be suspi-
cious. It has long heen held that a discharge, following
swiftly upon discovery of union activity, strongly indicates
that the discharge was in fact motivated by union consider-
ations.3 The inference of unlawful motivation is further
supported by the hostility toward the Union revealed by
the Company's unlawful interrogations and its assertions
of antiunion bias. I find that the discharge of Davis was
violative of the Act.
9. Loren Theodore
Theodore began to work for Respondent as an ingot
stacker on March 20, 1972, and was terminated on May 17,
1973. In the course of his employment he also did stripping
work. Theodore is slight in build, weighs 125 pounds, and
is short in stature. The nature of his stripping work requires
him to pry a stuck ingot (known as a sticker) out of molds
which made it necessary for him at times to wield a 20-
pound sledge and a 23-pound crowbar. This work became
too onerous for him and he requested a transfer to the
position of crane operator. This job never materialized on a
permanent basis. Theodore agreed to take a lower paying
job. Finally Respondent offered him an easier job on an-
other, shift. Theodore objected to the shift change because
this would have interfered with personal plans he had
made. Supervisor Larson said Theodore walked off his job
and thus quit. Theodore said he was discharged.
At the time he was terminated his supervisor was Delmar
Milam. Respondent's rating reports show that Theodore
was graded satisfactory and better than satisfactory. (Resp.
Exhs. 3 and 6) Thus he was a good worker.
Theodore was active in the Union, he signed a union
card and spoke in favor of the Union to about 12 fellow
J N.L.R. B. v. Overnite Transportation Co., 308 F.2d 284, 287 (C.A. 4,
1962): N.L.R.B. v. Virginia Metal Crafters, Inc., 387 F.2d 379, 380 (C.A. 4,
1967); Richmond Lumber and Building Supply Company v. N. L. R. B. 373 F.2d
736, 737 (C.A. 4. 1967): N. L. R. B. v. Dove Coal Co. and Lark Coal Company,
369 F .2d 849, 850 (C.A. 4, 1966).
FLORIDA STEEL CORPORATION 275
employees. He attended union meetings. He testified that
around the first of May, while he was working in the pit, he
had a conversation with Milam. Milam asked if he had
heard anything about a union petition floating around and
"I told him yeah I had heard about it. I signed it." Milam
shook his head and walked away. Later, about a week be-
fore he was terminated, while he was at the drinking foun-
tain, Milam was putting timecards in the rack. Theodore
had a brother from Ohio who was trying to get a job with
Florida Steel . Theodore spoke to Milam about his brother.
Milam asked him if his brother heard from the Company.
Theodore then said "no, he hadn't heard anything yet;
they probably wanted to check him out." Milam asked
him, "Is he union like you and Lee Turner?"
Another statement was made by Milam about the
Union. Sometime about the first of May and the date of his
discharge, May 17, Theodore complained about the condi-
tion of the molds. He said he would be glad when the
Union got in and straightened out the mold problem. Mi-
lam replied "there wasn't going to be any union coming in,
that Florida Steel could close the doors before they would
go union."
After these incidents Respondent gave Theodore a warn-
ing about absences. At this time Theodore testified two
other employees were absent at the same time but they did
not receive written reprimands.
Theodore's testimony stands unrefuted in the record be-
cause Milam did not testify.
Thus an employee who had performed in a satisfactory
manner on the job was treated in a perfunctory manner
and given short shrift. His reasonable request regarding his
shift was given no consideration. When Theodore asked if
"that was it" he received no answer. His exit interview was
tantamount to a termination . During this period Respon-
dent was engaged in a vigorous antiunion campaign. The
Company knew that Theodore was active in the Union. In
view of Milam's interrogations and his further statement
that the plant would close before it would go union I con-
clude Theodore's termination was motivated by antiunion
considerations violative of the Act. I so find.
10. Robert Riggan
Riggan is listed in paragraph 9 of the complaint as an
8(a)(3) dischargee. At the hearing Riggan's testimony
shows he was not discharged but quit his job.
After hearing this testimony, the General Counsel made
a motion to dismiss the 8(a)(3) allegation as to Riggan. I
granted the motion.
11. Bruce Lemmond
Lemmond was hired as a tractor-trailer driver by Re-
spondent on November 27, 1968, and was terminated on
either July 13 or 16, 1973. His supervisor, immediately
prior to his separation, was Jerry Hinson.
During the month of June, Lemmond was asked by Hin-
son to vote against the Union. Lemmond told him he was
for the Union. During the hearing on Lemmond's case
Hinson denied knowledge of Lemmond's union sympa-
thies. Respondent's other supervisory witness, W. T. New-
ell, testified that "Lemmond never was ashamed that he
was for the Union"; Newell continued by saying that Lem-
mond wore "Go Steelworkers" badges. Superintendent Da-
vis at first said he was not aware of the fact that Lemmond
was for the Union. He later reversed himself and admitted
that he heard Lemmond was wearing "Vote Yes" stickers
on his shirt in the plant. From the testimony I have cred-
ited supra, under independent 8(a)(l) activity, it is clear
that Lemmond was conspicuously prounion and this fact
was well known to the Respondent.
The incident which the Company relied on to support its
assertion that Lemmond quit his job but was not fired re-
volves around an accident in which a bundle of steel rods
fell off his truck on July 12. According to the testimony of
Lemmond as soon as he heard the bundle of steel rods fall
off his trailer he followed usual company practice and
phoned Supervisor Newell. Newell arrived at the truck ac-
companied by three employees. Lemmond testified that
when he phoned he asked Newell to send I or 2 men. His
testimony was corroborated by a fellow employee, Plutino,
who said he heard Lemmond phone Newell and ask for I
or 2 men. Respondent explained that in order for four men
to leave the plant one of the furnaces had to be shut down
thus causing a serious loss in production. Newell claims
that he picked up the bundle himself and placed it back on
the truck. This is disputed by Lemmond who said other
employees replaced the load. In any event the point urged
by Respondent was that it was easy for one man to replace
the load of steel because it only weighed 63 pounds.
Hinson reported the incident to Superintendent Davis
who called Lemmond to his office, sternly reproved him
and wrote up a reprimand (G.C. Exh. 70). Lemmond was
upset and angry because in his 5 years of employment with
Respondent he had never received either a written or oral
reprimand. Further Lemmond said it was not an unusual
event for steel to fall off a trailer. This had happened to
him and to other drivers none of whom were criticized in
any way. The record also contains a letter of commenda-
tion to Lemmond from John Davis dated June 27, 1973
(G.C. Exh . 68), congratulating him on having perfect atten-
dance for 26 weeks.
What happened next is somewhat confused in the rec-
ord. Lemmond claims that in the heat of anger after he left
Davis' office he said "I should quit." Newell testified that
Lemmond told Hinson, "Jerry, I'm quitting." Lemmond
was so upset by receiving the reprimand that he went to
Hinson and asked for the rest of the day off to calm down.
As Lemmond reached the exit gate he was met by Hinson
and asked to turn over the Company's gas credit card.
Lemmond was surprised and it is not disputed that Lem-
mond told Hinson unequivocally that he was not quitting
and would be in to work on Monday, July 16. He did
return, found his card was not in the rack and went to see
Davis. Davis gave him separation papers based on the inci-
dent of July 13. In other words Respondent maintained
Lemmond quit his job.
It should be noted, and it was not denied by the Respon-
dent, that when Lemmond applied for a job at Florida
Steel he explained directly to Davis that he had suffered
the loss of a lung while he was in the Service. Lemmond
testified his service profile states that because of his physi-
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cal condition he was not to lift anything. Prior to applying 12. James Jordan and John Grier
at Florida Steel he had previously tried to get work at
Southern Bell and United Parcel but they would not hire
him because of his lung operation. Respondent hired Lem-
mond with full knowledge of his physical limitation not to
lift anything heavy. Despite this medical history Davis
hired Lemmond. At another point in the record Davis said
the bundle only weighed 63 pounds. Davis said he would
not hire anybody as a driver who could not lift this weight
with "one hand." This is a ridiculous statement. Addition-
ally Davis intimated that the bundle either fell off the trail-
er or was thrown off. When asked on cross-examination if
this would be a serious matter, Davis answered, yes. He
was then asked:
Q. Did you check with the guard?
A. No, I didn't check with the guard.
Q. Wouldn't you be surprised or alarmed to find
out one of your employees was sabotaging the opera-
tion, the productivity of the company? Wouldn't that
have alarmed you Mr. Davis?
A. Not really.
At another point in his testimony Davis was asked if he
ever disciplined an employee for having a bad attitude.
Davis answered, "No, not really."
Q. Isn't it true, Mr. Davis, that you felt the union
campaign had a direct effect upon the attitude of your
drivers changing?
A. Campaign? Yeah I think it did.
Q. You still feel that way?
A. Yes, sir.
These examples of the testimony of Davis show him to
be an evasive and self-contradictory witness. I do not cred-
it what he said in relation to the Lemmond case.
Note also Respondent's brief states, inter a/ia, "If there
was ever a deserving candidate for a reprimand of some
sort ...." A reprimand of some sort is a far cry from
what amounts to a discharge.
Thus we have an admittedly good employee with a 5-
year record of employment and no previous record of ever
having received either a written or oral reprimand sudden-
ly, one day after he prominently displayed his "Vote Yes"
union insignia-one day before a scheduled NLRB elec-
tion-Lemmond was enmeshed in a web of doubtful cir-
cumstances and suddenly eliminated from Respondent's
employ. The Company's insistence that he quit his job
makes it clear that the Respondent was determined to get
rid of him. Neither Lemmond nor other drivers had ever
been disciplined in any way for losing a bundle of steel
from their trailers. I credit Lemmond's version of the inci-
dent and find the haste with which Respondent sought to
make it appear that he quit his job suspicious as to timing
and contrary to the credited testimony in the record. His
elimination was a pretext to hide the fact that his attempt-
ed forced quit was in truth a constructive discharge be-
cause of his known union sympathies, in violation of Sec-
tion 8(a)(3) of the Act. I so find.
Jordan and Grier are being discussed together because
they were both employed as ingot strippers, both were dis-
charged at the same time for the same offense and both
were under the supervision of Supervisor Steve Henson.
Jordan was hired on January 19, 1973, and Grier was first
employed on February 27, 1973. They were both dis-
charged on June 26.
On June 26 both Jordan and Grier left their work sta-
tions at about 4: 10 a.m. to take a break. Strippers usually
take breaks when their work permits. The men usually take
breaks in the canteen area. If for some reason they do not
go to the canteen area they usually hang around behind the
ladle-prepare area which is the place the men usually sit
around and "shoot the bull." On the night in question Hen-
son testified:
I went to the canteen area to see if these fellows were
there. They weren't. I went on back of the canteen and
they weren't back there; I-went back to the shop; went
on back through the shop, where I went back to the
area that the men usually sit around in; looked around
this area and could not see them anywhere. Then I
went back in the shop and got the other fellows to
doing the work that Jordan and Grier should have
been doing. In order to do this I had to shut the 512
furnace down for a while. I next saw them about one
hour later. I asked where they were. They said out
back where I had already looked. I know they weren't
there.
Respondent does not deny that both Jordan and Grier
wore union insignia and made no secret of their adherence
to the Union. Henson did not deny that about 3 weeks
before their discharge he asked Jordan what good the
Union was. Jordan replied that he had worked for a union
at one time and thought it was a lot of help for the men.
Grier and Jordan both testified that on this night they had
taken their break outside the building where it is cooler
than in the plant. Grier said they were outside for about 15
minutes when Jordan looked in the mill to see how the
work was progressing. He reported to Grier that they still
had some time before having to go back to work.
When they returned to the job situs they found two other
men doing their work. Henson came along and told them
to report to the office. When they got there Henson told
them, "I will give you a reprimand and you all go home
and come back tomorrow night." Jordan then testified he
said "before I get up out of bed and come back over here
and find out I am fired you call me and let me know."
Henson reputedly said okay. Henson denied he said any-
thing about giving the men a reprimand. Henson took up
the Jordan and Grier absence the next day with his superi-
or, Burt Larson. Larson testified that Respondent has two
furnaces. The absence of both Grier and Jordan made nec-
essary the closing of one of these furnaces. This caused
Respondent to lose 50 percent of its production time for
the time the furnace was down. He said the dereliction of
duty by Grier and Jordon was serious enough to warrant
their termination. He also said that the place alongside the
FLORIDA STEEL CORPORATION 277
building where breaks were also taken is illuminated with
vapor lamps. Henson said he looked outside the building
and knows that no one was there.
Grier's affidavit to the NLRB examiner states, "When
we finished what we had been doing in the mill we went
outside and took a walk." When questioned on cross-ex-
amination Grier denied he said they had taken a walk. He
said they sat down. The affidavit is also silent about
Jordan's going inside to check on what was going on which
would determine when they would have to return to the
mill and continue their work. Both Jordan and Grier testi-
fied they felt they were going to be fired. Grier was asked if
he had testified that after he left the plant that night he
figured that he had been fired.
A. Yes.
Q. Why?
A. Because they were firing everybody out there
that was for the union without any reason and this
shows what was happening.
Q. And so despite what Henson said, you made up
your mind that you were going to be fired, is that
correct, sir?
A. Yeah, but I had a doubt in my mind, but I want-
ed to be sure, I just figured it.
In the affidavit given to the NLRB, Jordan stated, "I
told him to fire me if he was going to fire me." This is in
conflict with Jordan's testimony at the hearing. When his
statement was shown to him with this quotation Jordan
said the affidavit was not correct.
Melter Foreman Henson testified that the men were
missing from their work stations for approximately 1 hour.
For this reason Larson discharged them. The General
Counsel states in his brief that if the record supports
Respondent's contention that Jordan and Grier walked off
the job and remained away for approximately 1 hour, disci-
pline was warranted. However the General Counsel argues
that the record does not support this conlusion and assum-
ing, arguendo, such a finding, termination was too stern a
measure for such an offense. I do not agree with the Gener-
al Counsel.
A crucial aspect of these cases is that both men testified
they expected to be fired. They therefore must have felt
guilty of a serious dereliction of duty. No causal relation-
ship was proven between their discharge and union activi-
ties. I credit Henson's version of the incident because the
internal evidence in the record supports his position. I do
not believe the contradictory testimony of Jordan and
Grier. Under these circumstances, I recommend the dis-
missal of the allegations concerning Jordan and Grier.
13. James W. Reid
Reid was hired as an assistant roller on July 19, 1966.
His supervisor was Bill Shanholtz. Reid signed a union au-
thorization card, talked to some employees about the
Union, and appeared at the R case as a potential witness
for the Union. The hearing was not opened because the
parties consented to an election. Reid wore a pocket holder
marked "Go Steelworkers" prominently on his shirt pocket.
Reid was an excellent employee as is evidenced by Gen-
eral Counsel Exhibit 56. This exhibit is dated November 7,
1972, and shows that his then supervisor, Stricker, made a
highly laudatory evaluation of him, viz: Productivity above
average; tries to produce as much as possible; keeps a close
watch on productivity; tries to produce as much as possi-
ble; keeps a close watch on quality; makes few errors;
needs very little supervision; thinks and acts on his own;
exerts more effort than most; good knowledge of his job
and can fill in on most other jobs; very sound in his think-
ing and judgment. In small script attendance is marked 6
months, 12 absences and 5 latenesses.
On or about August 8, 1973, Reid was discharged by
Peschel. This decision was reversed on the same day. He
was reinstated and has been steadily employed by Respon-
dent ever since. On the day of his discharge Reid was out-
side the plant giving out union literature in the company of
Moon, the union representative. Reid was not told the rea-
son for his discharge. There is testimony in the record that
Peschel and Supervisor Stanholtz spoke to him about his
performance. Reid asked Peschel why he was riding his
(Reid's) back. Peschel replied that if Reid thought he was
being picked on he could punch out and go home and
Respondent would not tell him why he was discharged.
Reid received word that he was called at home by Peschel
and a message was left with his wife to phone the plant.
Reid called Peschel, went in to see him, and was told the
decision to fire him had been reversed. He was again given
no reason. Peschel told him he was not terminated but was
suspended for 3 days.
Peschel did not refute Reid's testimony. The reversal of
the decision to discharge him and the failure to be given
any reason for this action makes it clear that he should not
have been discharged in the first place. Similarly the 3-day
suspension was also not explained and the resultant'loss of
3 days' pay was without justification. The General Counsel
characterized the discharge and suspension as being frivo-
lous action taken against a known union adherent. I agree
and find that Reid was discriminatorily disciplined in vio-
lation of Section 8(a)(3).
14. Robert Early
Early was hired by Respondent as a stripper crane oper-
ator on March 18, 1968, and was discharged on August 10,
1973. It is not disputed that for over 5 years he was an
excellent employee but his attendance was never good.
The record shows that between October 7, 1971, and
May 9, 1973, he received five written disciplinary reports
for absenteeism each of which included the admonition
that future unexcused absences would result in his termina-
tion. On the May 7 disciplinary report (Resp. Exh. 11) Su-
pervisor Larson wrote, "Future disregard for Company
rules will result in your DISCHARGE." A marked improve-
ment took place after May 7 in that Early did not miss a
day or come to work late until August 9.
It is significant to note that during the time intervening
between May 7 and August 9, Early became conspicuously
active in the Union. He signed a union authorization card;
talked to employees in the plant; wore "Go Steelworkers"
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insignia on both his shirt and hardhat; and placed "Vote
Yes" stickers over "Vote No" stickers on his crane. Also
during this period he was interrogated by Supervisors Tom
Wilkes and Jack Eudy. Eudy told him that "he was mess-
ing everything up because of the Union."
Thus it is apparent that after receiving many disciplinary
reports since October 1971, Early was fired following his
next unexcused absence after Respondent discovered that
he was a strong prounion advocate. No precipitating inci-
dent caused the end of the Company's tolerance of his
proclivity for being absent from work. I find Early was
discharged because of his open advocacy of the Union.
This is violative of the Act.
15. Don Shelton-8(a)(3) and (4)
Shelton was employed in April 1972 and was terminated
August 24, 1973. He held a number of jobs during this
period. He started as a rolling mill hooker and was promot-
ed to shear operator. He was an excellent employee as wit-
ness the number of wage increases he received in addition
to some across-the-board increments received by all em-
ployees.
Industrial Relations Director John Kachel admitted that
in June 1973 Shelton was "cultivated" as a spy for Respon-
dent. Early in the union campaign Shelton informed the
Company concerning details of the campaign and the
names of certain employees who supported the Union. Su-
pervisor Eudy assured Shelton that in exchange for fur-
nishing this information "I wouldn't be hurting myself in
the future." Respondent implemented this offer during
June 1973 by promoting Shelton to acting supervisor dur-
ing the time when several supervisors were away on vaca-
tion.
After Respondent received a number of unfair labor
practice charges it appears that the Company. realized there
were disparities of treatment concerning poor attendance
between employees who were espousing the Union and
some who were not identified with the Union. At this point
Respondent began issuing reprimands to other employees
to balance these disparities. Shelton received reprimands,
one of which included a 3-day suspension for absences and
latenesses. On August 14, Respondent issued a reprimand
to Shelton even though it was not deserved because Shel-
ton was not at fault. The driver who took him to work
failed to pick him up.
Shelton put Respondent on notice that he had changed
over from company spy to union supporter on August 23.
At this time Shelton put "Vote Yes" stickers on his hard
hat and displayed this prounion notice on both August 23
and 24 . Shelton 's immediate supervisor , Jimmy Summerlin,
came up to him and said, "it looks like you changed your
mind." Shelton said he had. Supervisor Alvis O'Brien came
by and asked Shelton if he wanted a new hardhat. On Au-
gust 24, Shelton, accompanied by Union Representative
Moon, drove to the NLRB office in Winston-Salem to exe-
cute an affidavit for the Board and to assist in the filing of
a new charge. It is not disputed that another union repre-
sentative, Estes Riffe, had a conversation with Kachel out-
side the plant between 2 and 3 p.m. on August 24 and told
Kachel that Florida Steel was going to be in real trouble
because Shelton and Jack Eudy were giving statements to
the NLRB . Shortly after Shelton arrived for work he was
discharged within the hour.
Shelton arrived at the plant about 3 minutes late for his
4 p.m. shift . He was instructed by Summerlin to go to
Peschel 's office . Shelton , Summerlin , and Peschel were pre-
sent . Summerlin told Shelton that he had been warned,
given his last chance , and was terminated . Shelton was
wearing his hardhat with Steelworkers stickers emblazoned
on it during this interview . The General Counsel points out
that Shelton was fired for being 6 minutes late. Summerlin
testified that he would have fired Shelton if he had been
one minute late even though Respondent 's rules give each
employee a 3-minute tolerance for checking in. The evi-
dence is conclusive that Shelton was discharged because of
his sympathies with the Union and giving evidence to the
Board . Thus Respondent violated both Section 8(a)(3) and
(4) of the Act . I so find.
16. Winfield Jack Eudy
Eudy was employed in September 1971 and was dis-
charged on August 17, 1973. He was a shift supervisor. The
reasons given by Respondent at the time of the discharge
were 1) that he had falsified the timecard of employee Car-
rie Hough and 2) that he had a bad attitude. In its brief,
however, Respondent refers only to alleged sexual miscon-
duct in the plant.
There is no dispute about the fact that at the outset of
the Union's campaign Eudy was one of the most militant
of Respondent's supervisors and he vigorously campaigned
against the Union. In the course of his efforts he commit-
ted many unfair labor practices which are detailed else-
where in the instant decision. In fact Eudy's activities con-
stituted the basic framework of the General Counsel's case.
.Eudy provided the General Counsel with a galaxy of inci-
dents involving not only himself but also many of the
Respondent's other supervisors. Much of this testimony
was corroborated by the testimony of the Company's em-
ployees.
Through Eudy and other supervisors it is clear that Re-
spondent had a strong antipathy to the Union and em-
barked upon its contest with the Union with vigor and
determination. While it is not illegal to oppose a labor
union , when Respondent's opposition took the form of en-
gaging in extensive unfair labor practices through the ac-
tions of its supervisors its illegal motivation becomes irre-
futable. Respondent seeks to make much of certain incon-
sistencies in Eudy's recital, among others, that Eudy placed
Respondent's attorney, Mr. Lanquist, at the meeting which
took place at the Kings Kastle motel. Eudy'was in error. In
the course of testifying at great length it is inevitable that
mistakes are made as no witness could have total recall.
Supervisor Newell, who testified for Respondent, stated
at the meeting which took place at the Kings Kastle motel
about a week before the first election of July 12 a number
of supervisors made comments in front of the entire group.
Three or four of the rolling mill supervisors made remarks
but Eudy was the most outspoken man there. He spoke in
a loud and angry voice. He said the supervisors were get-
ting a raw deal ; that Respondent was keeping the supervi-
FLORIDA STEEL CORPORATION 279
sors in the dark ; that they were not supporting first line
supervisors . Supervisor Hinson said that Eudy was down-
grading the Company.
At the time of his exit interview Eudy said he was not
going to do anything that would result in additional unfair
labor practices being brought against him. Either Peschel
or Kachel (the record is not clear) said not to worry as
"Respondent had a lawyer who was paid to take care of
that." Eudy also complained , among other disagreements,
with Respondent 's tactics , that the Company was pressur-
ing supervisors to discipline some employees who did not
warrant discipline . He was told that an employee should be
suspended because of absenteeism and the next time he
was away from the plant he was to be terminated. The
employee to whom he was alluding was Willie Steele. At
the Kings Kastle meeting Peschel told Eudy and the other
supervisors to cease being lenient in implementing the
Company rules regarding absenteeism and lateness. Pes-
chel instructed them to make a paper record which would
later form the basis for discharge . In effect Peschel told the
supervisors discipline was to be tightened up and employ-
ees who were active in the Union and who committed in-
fractions of Respondent 's rules that had previously been
ignored were to be discharged after a paper record had
been made against them . From this point on Eudy had a
change of heart.
When he was discharged Eudy was told that he had fal-
sified the timecard of employee Carrie Hough . The evi-
dence in the record does not establish that Eudy falsified
this card . The Company never showed that Hough had not
worked the hours indicated on her timecard . Further the
card in issue is dated February 10, 1973, yet Respondent
did nothing about it until May 10. It is significant that the
Company's alleged discovery came shortly after Respon-
dent learned of the Union's activities in its plant.
On the last day of the protracted hearing Alvis O'Brien,
who left the Company about October 1973, was flown in
by Respondent from his present job in Nebraska. From
him the Company elicited testimony that in late June or
early July, Eudy had boasted of a number of sexual en-
counters with female employees . This testimony estab-
lished , at most, that Eudy is a braggart and is no evidence
at all that he did in fact do what he said he did . Eudy's
sexual activities had never been mentioned by Respondent
and is obviously an afterthought introduced by the Com-
pany to bolster a weak case. According to O'Brien, this
information was known by Respondent in late June or ear-
ly July yet Respondent took no action against Eudy until
August 17. When asked why no action was taken until
August 17 Peschel stated only that he had instructions not
to take action until he was allowed to do it . As an explana-
tion this is totally unconvincing and only emphasizes that
the Company 's moral indignation is feigned.
It is clear that Eudy's discharge was motivated by the
fact that he ceased to support Respondent and revealed to
the General Counsel the extent of the Company's illegal
efforts to subvert its employees right to join a union. The
reasons given by Respondent for his discharge are a classic
example of real and shifting defenses which mask a dis-
criminatory motive. They are obviously a pretext. I find,
therefore , that Respondent violated 8(a)(1) on August 17
when it discharged Supervisor Eudy because he refused to
commit additional unfair labor practices.
17. Eric Swanson
Swanson had worked for the Company on a previous
occasion. He was discharged for writing a satire on work-
ing conditions at Florida Steel which had been posted on
the bulletin board. He had been an excellent employee who
was rehired on May 19, 1973, and discharged on August 1.
Before Swanson was rehired he was interviewed by Su-
pervisor Burt Larson. Larson said he knew Swanson was
prounion and "that I must be aware . . . as much as he
would like to have me back, under the circumstances he
would be cutting his throat if I was to come back and
support the Union." To all of this Swanson said he would
remain neutral. As later events reveal Swanson became dis-
enchanted with Respondent because of its antiunion tac-
tics. He joined the Union and proselytized for it. For this
reason he was again discharged.
By discharging Swanson-for his union activities Respon-
dent violated Section 8(a)(3). I so find.
18. Bobby Bostic
The record reflects the fact that Bostic was interrogated
by Eudy and promised a better job if he would vote against
the Union. He did receive a temporary job as a crane oper-
ator at an increase in pay. He was also given two written
reprimands which Bostic claims were without justification.
The General Counsel in his brief argues, "[T]herefore,
these reprimands, which certainly have the impact of po-
tentially influencing the duration of Bostic's employment
with Respondent, are violative of Section 8(a)(3). An
8(a)(1) remedy has been provided to cover the incidents
concerning Bostic. I disagree with the General Counsel on
his contention that what occurred to Bostic constitutes an
8(a)(3) violation. I therefore recommend that the 8(a)(3)
allegation in the brief be dismissed.
19. Miscellany
The complaint alleges that employee James Massey was
discriminatorily discharged . He did not appear at the hear-
ing and I therefore recommend that this allegation - be dis-
missed.
The name of Supervisor Buzz Minor appears in the com-
plaint alleging an instance of 8(a)(1) activity. Minor did
not appear at the hearing . The record contains no evidence
to support this allegation and I therefore recommend that
it be dismissed.
The record is replete with mention of Respondent's ad-
mitted efforts to have its employees wear "No Union"
stickers . The law is settled on this point as is stated in
Garland Knitting Mills of Beaufort, South Carolina, Inc., 170
NLRB 821 (1968), where the Board held:
It is clear, in the circumstances of this case, that
Respondent 's supervisors, by passing out tags and ob-
serving who accepted or rejected them , in effect forced
each employee who was approached to manifest' his
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
choice. We find that such exertion of pressure upon
employees constitutes coercive conduct violative of
Section 8(a)(1). See Kawneer Company, 164 NLRB
983.
I therefore find that Respondent 's widespread efforts to
have its employees accept its "No Union" and "Vote No"
stickers is violative of Section 8(a)(I) of the Act.
Respondent made appeals to racial prejudice in the
course of its antiunion campaign . There are clear racial
overtones which demonstrate Respondent's hostility to
those of its black employees who were union adherents. I
so find.
All 8(a)(1) statements not discredited stand as findings
made by me.
The unrebutted testimony of James Reid shows that Su-
pervisor Tesh threatened that if the Union came in the
Company would work its nonunion personnel 12 hours a
day. Tesh said if the Union came in the Company was
going to have the National Guard at the gate to stop all
union people and they would let the nonunion people come
in and run the mill 12 hours a day.
Credibility
There are numerous questions of credibility that arose
in this case. Overall there emerged from the testimony of
the General Counsel's witnesses a pattern of pervasive un-
fair labor practices engaged in by Respondent. The princi-
pal witness for the Government's case was Jack Eudy.
Eudy testified at great length. He was on the witness
stand for more than a solid day. He was clear, direct and
gave his evidence with assurance. Although he was subject-
ed to searching and skillful cross-examination he remained
unshaken in his recital of the events which took place in
the plant. Most of what he stated was reinforced and af-
firmed by the testimony of the General Counsel's witness-
es. While he did , from time to time , refer to written materi-
al he had with him this was done to refresh his recollection.
I was impressed with his demeanor and find him to be a
credible witness.
Employee James Reid is still employed by the Company.
The average employee is keenly aware of his dependence
upon the Employer's good will. With this fact in mind and
having much to lose by giving testimony adverse to Re-
spondent, Reid did so realizing his exposure to consider-
able peril of economic reprisal. It could be said that his
testimony , being adverse to Respondent , was in a sense
contrary to his own interest . For this reason such evidence
is not likely to be false. Accordingly, based on the compar-
ative demeanor of the employee witnesses-on the one hand
and the supervisors called as witnesses by Respondent who
gave conflicting or contrary testimony on the other, I credit
the former over the latter.
One of the chief witnesses for Respondent was Alvis
O'Brien . His testimony was given in a halting and uncer-
tain manner . He was not convincing . I was not impressed
with his demeanor and find him to be an incredible wit-
ness.
Except for the testimony given by Superintendent John
Davis concerning the speech he gave to all employees in a
logical and reasonable manner, I find that Davis' testimo-
ny with respect to employee Lemmond was shot through
with inherent improbability. I find him to be an incredible
witness.
I find that the testimony of most of the General
Counsel's witnesses was corroborated by internal evidence
in the record. This is a further reason why I have credited
such testimony.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section 1, above, have a close,
intimate , and substantial relation to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8 (a)(1), (3),
and (4) of the Act, it will be recommended that Respon-
dent cease and desist therefrom and take certain affirma-
tive action designed to effectuate the purposes of the Act.
Having found that Respondent discriminatorily dis-
charged the following employees: James Ashcraft, Bobby
Bryant, Charles Frazier, Henry Huey, Thomas Fraylon,
Alfred Haynes, Gary Davis, Loren Theodore, Bruce Lem-
mond, Don Shelton, Robert Early, Winfield Jack Eudy
and Eric Swanson (James Reid was illegally suspended for
3 days), I shall recommend that Respondent offer them
immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their
seniority and other rights and privileges, and make them
whole for any loss of earnings they may have suffered by
reason of the discrimination against them to the date of
offer of reinstatement , less interim earnings , and in a man-
ner consistent with Board policy set out in F. W. Wool-
worth Company, 90 NLRB 289 (1950), to which shall be
added interest at the rate of 6 percent per annum as pre-
scribed by the Board in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent has engaged in and is engaging in
unfair labor practices in violation of Section 8(a)(1), (3),
and (4) of the Act, which unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
FLORIDA STEEL CORPORATION
Act, I hereby issue the following recommended:
ORDER4
Respondent , Florida Steel Corporation , its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating its employees with loss of
jobs , if they become members of or assist United Steel-
workers of America AFL-CIO.
(b) Threatening its employees with plant closure if they
select the Union as their bargaining representative.
(c) Threatening its employees with reduction of over-
time work for engaging in union activities.
(d) Threatening its employees with layoff and a lockout
if they select the Union as their bargaining representative.
(e) Threatening to take away all benefits if they select
the Union as their representative.
(f) Threatening to work 12-hour days with nonunion
personnel if its employees selected the Union as their bar-
gaining representative.
(g) Imposing more stringent working conditions because
its employees engaged in union activities.
(h) Appealing to racial prejudice in order to combat the
Union.
(i) Engaging one of its employees to spy on union activi-
ties of other employees.
(j) Engaging in surveillance and the impression of sur-
veillance of its employees.
(k) Sponsoring and soliciting employees to sign an an-
tiunion petition which it circulated among its employees.
(1) Threatening to subcontract its trucking operations if
the Union was selected as its employees' bargaining repre-
sentative.
(m) Promising improved wages if the employees reject
the Union as its representative.
In the event no exceptions are filed as provided by Section 102 .46 of the
Rules and Regulations of the National Labor Relations Board , the findings.
conclusions , and recommended Order herein shall, as provided in Section
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.
281
(n) Discharging employees including Supervisor Jack
Eudy for engaging in activities in support of the Union.
(o) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Offer James Ashcraft, Bobby Bryant, Charles Fra-
zier , Henry Huey, Thomas Fraylon, Alfred Haynes, Gary
Davis, Loren Theodore, Bruce Lemmond, Robert Early,
Don Shelton, Winfield Eudy, and Eric Swanson, and
James Reid pay for a 3-day suspension (he is still employed
by Respondent) reinstatement to their former or substan-
tially equivalent positions without prejudice to their senior-
ity and other rights and privileges.
(b) Make the above employees whole for any loss of
earnings suffered by reason of their discharge, in the man-
ner set forth in the section herein entitled "The Remedy".
(c) Preserve and make available to the Board or its
agents, upon request, for examination and copying, all rec-
ords necessary for the determination of backpay due and
the right to reinstatement.
(d) Post at its plant in Croft, North Carolina, copies of
the attached notice marked "Appendix." 5 Copies of the
notice on forms provided by the Regional Director for Re-
gion 11, after being duly signed by an authorized represen-
tative of the Respondent, shall be posted by the Respon-
dent immediately upon receipt thereof and be maintained
by it for 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 11, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
5In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading, "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."