General Steel Industries, Inc.

National Labor Relations Board - Board Decisions

Jan 9, 1963

140 N.L.R.B. 547 (N.L.R.B. 1963)

ST. LOUIS CAR, A DIV. OF GENERAL STEEL INDUSTRIES 547
St. Louis Car, a division of General Steel Industries , Inc. and
Ralph Johnson . Case No. 14-CA-2794. January 9, 1963
DECISION AND ORDER
On October 23, 1962, Trial Examiner Jerry B. Stone issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. Thereafter, the Respondent filed exceptions to the In-
termediate Report and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in the case, including the excep-
tions and brief, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.2
1 The Respondent has requested oral argument. This request is hereby denied, because
the record, the exceptions, and the brief adequately present the issues and the positions
of the parties
' Backpay shall include the payment of interest at the rate of 6 percent per annum to
be computed in the manner set forth in Isis Plumbing ct Fleeting Co., 138 NLRB 716. For
the reasons stated in his dissent in that case, member Leedom would not award interest
on backpay, and does not approve the award here.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon .the charges filed on June 4 and 12, 1962, by Ralph Johnson, an individual,
the General Counsel of the National Labor Relations Board (herein called the
Board), by the Regional Director for the Fourteenth Region (St. Louis, Missouri),
issued his complaint dated July 13, 1962 , against St. Louis Car, a division of General
Steel Industries, Inc. (herein called the Respondent). In substance the complaint
alleged that the Respondent had discharged Ralph Johnson on May 29, 1962, be-
cause he had complained to the Union about his terms and conditions of employment,
that such discharge violated Section 8(a)(1) and (3) of the National Labor Rela-
tions Act (herein called the Act), and that such conduct affected and was affecting
commerce as set forth in Section 2(6) and (7) of the Act. Respondent's answer
admits many of the facts pleaded in the complaint but denies the commission of any
unfair labor practice.
Pursuant to appropriate notice, a hearing was held before Trial Examiner Jerry B.
Stone at St. Louis, Missouri, on August 20, 1962. All parties were represented at
and participated in the hearing and were afforded the right to present evidence, to
140 NLRB No. 53.
681-492-63-vol. 140-36
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
examine and cross-examine witnesses , to offer oral arguments , and to file briefs.
A brief filed by Respondent 's counsel has been received and considered.
Upon the entire record in this case and from my observation of the witnesses, the
following findings of fact, conclusions of law, and recommendations are made.
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
As established by the pleadings and proof, I find that Respondent maintains a
manufacturing facility and principal office at St. Louis, Missouri, where it is engaged
in the manufacture and sale of transportation equipment. Respondent, in the course
and conduct of its business operations at its St. Loius, Missouri, plant, ships goods
and products valued in excess of $50,000 annually from said plant directly to States
of the United States other than the State of Missouri. I find that Respondent is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to assert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATIONS INVOLVED
The pleadings establish and I so find that United Steelworkers of America, AFL-
CIO, and its Local 1055, are labor organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICE
Introduction
Ralph Johnson, the alleged discriminatee , was hired by Respondent sometime dur-
ing the first part of May 1961 as a fitter-tacker Respondent 's new employees are
considered probationary employees for the first 25 days. Before the end of John-
son's probationary period he was discharged on May 29, 1962. The events sur-
rounding his discharge give rise to the instant case.
Several days prior to May 28, 1962, the "water test" job had been placed under
Foreman George Sexauer . This job involves the application of water to cars by
the Respondent , and the inspection of the car for leaks. Work on the water test is
normally assigned to employees with low seniority . The employees' pay for work
on the water test is computed on straight time. Employees working on fitter-tacker
work are paid on an incentive basis. On May 28, Alvin Sibille , Respondent 's general
foreman, told Sexauer that he would let him have two men, Johnson and Bishop,
for work on the water test . These two men were currently assigned to work on
the "roof jig ." At 11 :30 a.m. Sibille told Ralph Johnson that he was being sent to
water test.'
The "Water Test" Assignment
Sexauer, around noontime, sent Ralph Johnson to water test. Johnson asked
Sexauer if the water test were daywork and Sexauer told him that it was. Johnson
then told Sexauer that he could not "make it." The difference between "incentive
basis" pay and daywork (straight time) involved a loss in weekly pay to Johnson.2
At the end of the workday, around 4:20 p.m., as Johnson and Fred Ray left the
water test job, they saw Union Steward Robert Westmoreland and Ray asked if he
were supposed to be on the job. Westmoreland replied that he did not know but
would find out. Westmoreland, Ray, and Johnson then sought and found Foreman
Sexauer, who was with General Foreman Alvin Sibille. Westmoreland asked Sibille
if Fred (Ray) was supposed to be there. Sibille told Westmoreland that Ray's being
there was a mistake. Sexauer stated that he had just become a foreman and had
i Based on the credited, uncontradicted testimony of General Foreman Alvin Sibille
Sibille additionally during his testimony said, "And about 11 30 in the morning I told
Johnson I was going to send him down on water test, lie was the youngest man I had and
he'd get the daywork." Sibille during his testimony appeared confused and his testimony,
to a great extent, constituted a characterization of what occurred, and his reasons there-
for. Thus, he stated he told Sexauer at 11 •30 to send Hines and Johnson, that Sexauer
got mixed up and sent Ray and Johnson down, and that he saw Ray at 9 30 clown there
From the record as a whole, my observation of Sibille as lie was testifying and Johnson's
credited testimony that he asked Sexauer whether the work was daywork, I am convinced
that Sibille did not inform Johnson that the work was daywork but rather that he was
characterizing his undisclosed reason for sending Johnson to the water test. All credibility
findings are made herein, in part, on the demeanor of the witnesses involved.
2 Based on the credited uncontradicted testimony of Ralph Johnson
ST. LOUIS CAR, A DIV. OF GENERAL STEEL INDUSTRIES 549
made a mistake of identity. Westmoreland asked about Johnson and the water test.
Sibille said in effect that Ralph Johnson was the youngest man he had and would
be sent to water test. Johnson then asked if he would have to be on water test
permanently. Sibille told Johnson that he would because he was the youngest man.
He explained by saying, "I will put it this way, I have cars coming up for water
test about once a week, the way it is running now, and unless it runs out of work,
you will go down there." 3
Johnson's Complaint
The group broke up, and Westmoreland stopped Johnson and asked if he was only
complaining about working at "water test." Johnson then asked if water test was
a fitters' job, and Westmoreland replied that the would find out. Johnson indicated
that if he had to work at day rate of pay he would have to quit and find another job
in order to pay his bills 4
Miscellaneous Conversations on May 28 Concerning Johnson's Complaint
After Johnson had left, Westmoreland stopped Sibille, who was walking by, and
told him of the foregoing conversation.5 Sibille remarked in effect, "What does he
expect me to do, send the older men up there and have him on piece work? I don't
like his attitude." Sibille stated in effect that he was pretty well "set" to let him
(Johnson) go .6
After the conversation with Westmoreland, Sibille went to where Ralph Johnson's
brother, Andrew Johnson, was working. Andrew Johnson's credited testimony as to
what occurred is revealed by his answers to the following questions:
Q Did you have any further conversation with Mr. Sibille?
A. Well, regarding the brother you mean?
Q. Regarding the brother.
A. One day I was working on the scaffold and Mr. Sibille called me down off
the scaffold.
Q. When was this?
A. It was around the 29th, I believe.
Q. Of what month?
A. May. [Continuing] He called me down off the scaffold and he told me,
"I thought you said this boy was going to make me a good man?" I said, "Al,
where he worked before, the people were pleased and thought he did all right."
Al said the work was working out all right, but his mouth was too big, is all,
he had been there 15 days and went griping to the union, and if he did that
after 15' days, what would he do after the full probation. He said he hadn't
made up his mind what to do. I said that was between him and you and that's
about all there was to it.
Q. You said this took place about May 29? 7
A. Yes.
Andrew Johnson testified that Sibille had told him at an earlier date that Ralph
Johnson was doing fairly well and proving out all right.
According to the credited testimony of Westmoreland, Johnson met him later on
that same day in the locker room and asked if he had found out anything as to the
job classification, or if he (Johnson) had to do the day-rate work. Westmoreland
3 Based upon a composite of the credited testimony of Ralph Johnson , Westmoreland,
and Sibille I accept Sibille ' s version as to his answer to Johnson and Westmoreland as to
Johnson's work on the water test as being more complete and accurate
4 Based on the uncontradicted credited testimony of Robert Westmoreland
c Supra, footnote 4.
9 Based on Sibille's uncontradicted credited testimony I do not credit Sibille's further
testimony to the effect that Westmoreland had told him that Johnson was "threatening
him" and that Johnson acted like a "nut ." Ralph Johnson ' s uncontradicted credited
testimony reveals that he in fact did not make threats against Sibille, and Westmoreland
credibly testified that he did not tell Sibille that Johnson had been threatening him
(Sibille ) and that he had not referred to Johnson as a "nut " As the question of whether
Sibille believed he was threatened appears to be the prime factual issue , a discussion
thereof is set out in detail in the section in this report designated as "Miscellaneous
Credibility Findings."
7 Although Andrew Johnson testified that the conversation occurred around May 29, it
is clear from the sequence of events that it occurred on May 28 . Sibille credibly testified
that it happened on May 28 and I so find.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replied that he had not found out, that they would have to see Union Committeeman
Curt Sanders . Johnson and Westmoreland went to see Sanders and asked about
Johnson 's problem . Sanders stated that he would find out.
Sanders, with Westmoreland following, headed toward the timecard rack and
met General Foreman Sibille . According to Sanders ' credited testimony he asked
Sibille if water test were in the fitters classification, and was told by Sibille that it was,
that they had "been doing it all the time over here." Sibille then asked who wanted
to know and if it were Ralph Johnson . When Sanders described Johnson, Sibille
said, "That 's him ." According to Sanders, Sibille appeared upset during the con-
versation .' Sanders and Westmoreland then left.
The Events on May 29
Shortly before 8 a.m. on May 29, Foreman Gary asked General Foreman Sibille
for one man to finish the job on water test . Sibille told Gary to take Ralph Johnson.
Gary then informed Johnson of his assignment . Johnson went to the locker room 9
Johnson saw Union Steward Westmoreland and told hun to drop the matter about
the day rate inquiry because he was still in his probationary period , needed the job,
and might lose his job if further action were taken . Westmoreland told Johnson
that it was too late because Sanders had already seen Sibille, that Sibille was sore
about it , and that Sibille was thinking of letting Johnson go anyway. The 8 a.m.
whistle blew and Johnson went to work on the water test.i9 According to the un-
contradicted credited testimony of Sibille , Westmoreland then came to him and said
that Johnson was still "kicking up a fuss." ii Sibille told Westmoreland, "I have just
about had it, I was really thinking seriously about letting him go."
Johnson credibly testified that around 2 p.m. he needed an airhose and was told
by Inspector Gary to get one . Johnson went to the tool crib and an employee stated
that an airhose was not available but to see Sibille. Johnson then contacted
Sibille,12 and told him that he was a hard man to keep up with, that he had been
looking for him for a good hour, that an airhose had broken , that he had been told
to get one at the tool crib, and that when he went to the tool crib , he had been told
that they did not have one . Sibille told Johnson that he had been on the job, that
Johnson was using an excuse to roam around , that there was another airhose, but
it was being used. Sibille also told Johnson to use a garden hose, as it would
work , and that he would get an airhose for him in the morning . 13 Sibille shortly
thereafter instructed Foreman Sexauer and Foreman Wells to fire Ralph Johnson.i4
Sibille told Sexauer that he was letting Johnson go because of his spouting off about
assignments.
8 Westmoreland testified that "Al said lie was fed up with his complaints , he thought
lie was going to get rid of him . I think Al said he had checked on him and lie had
only been there 15 days and he was going to let him go , he didn't think he had been too
good an employee, complaining as much as he had He was going to let him go before he
got his time in and on the seniority list." Sanders testified additionally that Sibille said,
"I have checked on him and he has been here 15 days and I am full up to there [ indicat-
ing] with him ," or "I am getting rid of him ," or "firing him tomorrow ." Sanders was not
sure which statement was made I do not find that these statements attributed to Sibille
were made It is clear, however , that Sibille was in an upset condition while talking to
Sanders about Johnson.
9 Based on the credited uncontradicted testimony of Sibille
10A composite of the credited testimony of Ralph Johnson , Sanders , and Westmoreland.
Sibille testified in effect that the foregoing occurred after the 8 a in. whistle I credit
Johnson and Westmoreland to the effect that the last whistle blew during their conversa-
tion Sibille apparently confused the 5-minutes -to-8 whistle with the 8 a in. whistle
11 The General Counsel did not elicit a denial of this from Westmoreland Sibille later
testified as to the May 31 conversation that lie made reference to Westmoreland 's alleged
statement of May 29 Sibille testified that Westmoreland denied having made the alleged
May 29 statement in the May 31 conversation . Westmoreland 's testimony concerning his
statements on May 31 constituted a denial of the time of the water fountain conversation,
but not a denial of his telling Sibille later that Johnson was still kicking up a fuss.
12 Sibille fixed the time as around 10 or 10.15 in the morning . In view of the timing
of Sibille 's instructions to Sexauer and Wells, and Sexauer 's and Gary 's conversation to
Johnson as to his discharge , I find that Johnson's reference to time is more credible.
13 Based on a composite of the credited testimony of Ralph Johnson and Alvin Sibille.
14 Based on the uncontradicted credited testimony of Alvin Sibille.
ST. LOUIS CAR, A DIV. OF GENERAL STEEL INDUSTRIES 551
The Discharge of Johnson
Foreman Gary at 3:30 p m. instructed Johnson to get his tools and take them
back to the steel plant and to see George Sexauer at 4 o'clock. At 4 o'clock Sexauer
told Johnson that he had bad news for him. Johnson answered that he thought
he knew what it was, that he was being fired. Sexauer then stated that it was none
of his doing, that he was well pleased with Johnson. He said that Sibille had said
to let Johnson go but that he had tried to talk Sibille out of firing him. Sexauer
stated that Sibille had said that Johnson was done and that was it. Sexauer instructed
Johnson how to check out and Johnson commenced checking out.is
Union Steward Westmoreland saw Johnson at 4:25, and was told by Johnson of
his discharge. Johnson asked Westmoreland whether he had seen Sibille. West-
moreland said no and the two left by separate ways.16
Later Westmoreland walked up to Sibille and Foreman Highley who were in the
shop aisle and told Sibille that Johnson was looking for him. Sibille stated that he
did not care why he was looking for him, that he was on the floor and he did not
worry why Johnson was looking for him. Westmoreland then stated that Johnson
did not seem like anybody to monkey with, that he was nobody's fool.17
Around 4:30 p.m., Johnson contacted Luther E. Thorpe, chairman of the local
union, and told him that he had been discharged. They discussed Johnson's status,
and Thorpe told Johnson that he understood that he was a probationary employee.
Johnson asked Thorpe to see if he could get the Respondent to take him back
and the latter replied that he would try. Thorpe told Johnson to come in on May
31 (May 30 was a holiday) and he would see what could be done. Thorpe then
contacted Personnel Manager Foelsch and asked if he knew that Ralph Johnson
was terminated, had failed in probation. Foelsch said he knew nothing about it.
Thorpe asked Foelsch to let him know if he heard anything on May 31.
The Events of May 31
Johnson returned to the plant on May 31, and found his timecard still in the
rack. He informed Thorpe of this. Thorpe asked if Johnson had received a total
clearance (of things checked out). Johnson told him that he had not. Thorpe
then told Johnson that evidently the Respondent did not intend to discharge him
He told Johnson to punch in. Johnson punched in and went back to the water test
job. Foreman Gary saw Johnson and asked him why he was there. Johnson
told Gary that he came to work and saw his timecard in the rack. Gary stated
that he had already been assigned two men to the job Johnson had been on and
told Johnson to see Sexauer. Johnson went to Sexauer and asked if there were a
chance of going to work. Sexauer told him no, that Sibille had seen him come
in and had said not to let Johnson go to work. Johnson then went to see Union
Chairman Thorpe. Thorpe told Johnson to wait in the locker room and that he
and Westmoreland would see what they could do to straighten the matter out.
Thorpe and Westmoreland sought Foreman Sexauer. Thorpe asked Sexauer
whether Johnson had been a good worker, and Sexauer replied that as far as he
was concerned Johnson was a very good worker.
Thorpe and Westmoreland then went to the locker room and got Johnson and
the three went to see Personnel Manager Foelsch. Thorpe asked Foelsch if he had
heard anything about Ralph Johnson's termination. Foelsch told Thorpe that he
had not and then said, "Let's find out." Thorpe, Foelsch, Johnson, and Westmore-
land went to see General Foreman Sibille. Foelsch and Thorpe asked Sibille why
he was letting Johnson go. Sibille told them that he did not think Johnson would
make a good employee, that Johnson had threatened to quit and that he was let-
ting him go. Sibille reminded Westmoreland of his conversation on Tuesday morn-
ing to the effect that Ralph was still kicking up a storm. Westmoreland said that
he had not said that, that he was not even there at the time. Sibille told West-
moreland that he was there, that he had not left until 9:30. Westmoreland replied
that Johnson had not threatened to quit, that Johnson had said that if he was going
to stay on straight time he would have to look for something else due to his
financial situation. Sibille then said, "Well, I seen him in front of the water cooler
talking to you at 10 minutes after 8." Westmoreland then stated that he did not
believe Sibille had seen him at that time because he was on the job at 8:05 and
had injured his ankle about that time, had to go to the nurse, and had gone home.
15 Based on the uncontradicted credited testimony of Ralph Johnson
16 Based on the uncontradicted credited testimony of Robert Westmoreland.
11 Based on the credited testimony of Robert Westmoreland
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Westmoreland testified that he went to the nurse approximately at 8:30 and left
for home at 9 or 9:15 am. During the conversation Thorpe requested that Sibille
take Johnson back. Thorpe stated that he did not think it was quite fair, under
the circumstances, to let Johnson go for talking to the shop steward, committee-
man, and Sibille. Sibille stated, "No, I am"-and he made an indication toward
his neck-"up to my neck with the man." Thorpe again stated that he could not
see why Sibille should let a man go because he was talking something over with
the shop steward and committeeman. During the conversation Sibille told Foelsch
that Johnson had failed probation, that he was always griping about any job as-
signment that did not have the incentive system attached to it. Thorpe asked Sibille
if he were firing Johnson Sibille stated that he was letting him go and that was it.
Thorpe then pointed out that Johnson would not be able to get unemployment
insurance, and might not obtain work right away. Sibille stated that he was just
letting Johnson go and that he would be able to draw unemployment insurance.
Johnson then asked Sibille about the same matter and was told that he could check
the records. Johnson left and finished checking out from the Respondent.
Miscellaneous Credibility Findings
Although Sibille's testimony in general does not contradict the foregoing. I do
not credit certain additional testimony of his 18 The additional noncredited testi-
mony of Sibille may be summarized as his statements alluding to (1) alleged state-
ments by Westmoreland on May 28 to the effect that Johnson had threatened
Sibille and that Johnson acted like a "nut"; (2) alleged statements by Westmoreland
on May 29 (after Johnson's discharge) to the effect that Johnson was looking for
him to beat him up; (3) alleged statements by Sibille to Sexauer to the effect that
Johnson was being fired for spouting off and for threatening Sibille; (4) alleged
statements by Sibille to Sanders, time undisclosed, to the effect that Johnson had
been fired because Sibille "didn't like to have a man going to quit whenever I as-
signed him something he didn't like, I didn't like to be threatened"; and (5)
his alleged reasons for firing Johnson including his belief that Johnson had threatened
him.
As to the foregoing, Ralph Johnson's uncontradicted credited testimony reveals
that in fact he did not threaten Sibille. Westmoreland credibly testified that he
did not tell Sibille that Johnson had threatened him, and did not say that Johnson
acted like a "nut."
Westmoreland credibly testified that on the evening of May 29 (which was
after Johnson had been discharged) he told Sibille that Johnson was looking for
him and that Sibille had said that he did not care why he was looking for him,
that he was on the floor and he did not worry why he was looking for him. West-
moreland testified that he told Sibille that "the guy didn't seem like anybody to
monkey with, he is nobody's fool." Sibille testified that Westmoreland said, "Did
Ralph find you? He was looking for you," and that he (Sibille) said, "I have
been here all day." Sibille further testified that Westmoreland said, "He's looking
for you to beat the heck out of you," and that he (Sibille) said, "I'm right here
on the floor. I never did see him."
Foreman Highley testified to the same conversation as follows:
I came in direct contact when Bob Westmoreland was telling Al that John-
son had threatened him, something in effect, that he had threatened him, he
was going to beat him up-something of that nature. Anyway, I took it he
was going to beat him up, and he asked me if I had seen him, and that is
where I got it. I was standing there as Al Sibille and Bob made the remarks
and after saying that he said, "He's crazy enough to do it," that is where I
came in, and that's about the extent of the thing, so far as hearing Bob's
statement.
On cross-examination Highley testified as follows:
I was there working on this machine and Al had walked up and Bob, and
I don't remember who else was there, but I remember Bob making this state-
ment in Al's presence and my presence. He asked Al if Ralph had seen him and
Al had said no. I don't know his exact words. I do know for sure he said Ralph
had been looking for Al and he had threatened to beat him up, and he was
crazy enough to do it. That is what he said. He used the word "Threatened."
I believe he said something to the effect, if I recall correctly he said he'd made
up his mind to let him go, he was thinking of letting him go, something of hurting
him. I can't say exactly.
18 Based in part on my observation of Sibille and the other witnesses' demeanor
ST. LOUIS CAR , A DIV. OF GENERAL STEEL INDUSTRIES 553
Significantly the credited evidence does not reveal that Sibille mentioned "threats"
as a basis for Johnson 's discharge on the morning of May 31, when confronted
by Johnson , Westmoreland , Thorpe, Sanders , and Personnel Manager Foelsch.
Sibille, in conection with his testimony of the events on Tuesday , testified "and
later, Curt Sanders asked me about it, and I said , `Well. I didn ' t like to have a
man that's going to quit whenever I assigned him something he didn't like. And
I didn't like to be threatened , either. That disturbed me quite a bit: "
In connection with the question of alleged threats the Trial Examiner asked Sibille
what were the words used by Westmoreland as to the alleged threats. Sibille testified
as follows, "He told me, `You want to watch out for the guy. I don't want to see
you get hurt .' I said , `Don't worry about me getting hurt ....' " The Trial Exam-
iner then asked if Westmoreland had said anything else. Sibille testified , "Not at
that time ," and in answer to a further question as to what Westmoreland had said
Johnson would do, Sibille testified , "Not outside of his threatening me." 19
In summary , Personnel Manager Foelsch and the other witnesses , including Sibille,
all testify to versions of the May 31 conversation as to Johnson 's discharge which do
not mention threats as one of the bases for the discharge , Highley 's testimony is un-
sure as to exactly what was said, and I am convinced that Westmoreland 's version
as to all the conversations pertaining to alleged threats is more reliable . I so credit
Westmoreland , and discredit Sibille 's and Highley's version as to alleged threats I
am convinced that all of Sibille 's testimony as to threats is based on an afterthought
rationalization possibly connected with his misunderstanding of what was said by
Westmoreland on the evening of May 29 after Johnson had been discharged.
Conclusion
I am convinced from the foregoing evidence that the General Counsel has more
than adequately established that the motivating reason for the discharge of Ralph
Johnson was Sibille's dislike of Johnson 's utilization of the Union in ascertaining
whether his job assignment was proper or not. Sibille 's direct testimony as to the
events surrounding Johnson's discharge alluded to the meeting among Ralph Johnson,
Ray, Westmoreland , and Sexauer on May 28, wherein the job assignment was dis-
cussed , and to his conversations with Westmoreland and Sanders on the evening of
May 28, to his conversation with Andrew Johnson on May 28, and his conversation
with Westmoreland on the morning of May 29. Thus, Sibille 's own testimony reveals
that the crucial events concerned themselves with statements made to him by union
agents about the utilization of the Union by Ralph Johnson, or by Ralph Johnson
when accompanied by an union agent I am convinced furthermore that, similarly
to some of Sibille's discredited testimony , the additional reasons set forth by him
at the May 31 discussion with Personnel Manager Foelsch , Johnson, and union
agents, constituted afterthought rationalization. Even there no reference was made
as to threats , or as to the "air hose" incident . Respondent does not contend that
Johnson was not a satisfactory worker but basically that he would not make a good
employee because of his griping . Respondent contended that Johnson was discharged
because of "belief" of threats . I have found that threats were not made , and the
evidence does not reveal anything similar to a statement of threats having been
made prior to his discharge . I am convinced as to all of Respondent's alleged
reasons to the effect that Johnson was not discharged for complaining to the Union,
that they constitute afterthought pretexts . Sibille's statements to Andrew Johnson
on May 28 revealed his antagonism to Ralph Johnson's utilization of the Union
when he alluded to Ralph Johnson 's mouth being too big , that he had been there
only 15 days and already was talking to the Union , and when he asked what would
Ralph Johnson do after probation . The subsequent statements by Sibille referring
to Johnson 's "kicking up a storm " and griping about work assignments ( in con-
nection with the various meetings that Sibille had with union agents over Johnson's
problem ) thus clearly reveal that Sibille caused Ralph Johnson's discharge because
he was angered at Johnson 's utilization of the Union , the collective -bargaining agent.
The Respondent contends that its motivation should not be found discriminatory
because of its admitted good relationship with the Union . Nevertheless, in the
instant case it has been found that its agent 's motivating reason for discharging
Johnson was his anger at Johnson 's utilization of the Union . In making the findings
in this case , I am cognizant that Sibille probably set forth to the superior officials at
Respondent the reasons which I have found to be pretext . Sibille's failure to so
19 The Respondent contends that these remarks were the ones made at the time of
Highley's presence Thus, Sibille 's two versions are contradictory to each other and the
latter's contradictory to Highley 's testimony.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inform his superiors of the real motivating reason for Johnson's discharge does not
alter that the real reasons were discriminatory.
It thus appears obvious that Johnson was fired for engaging in activities protected
by the Act.20 It is found, therefore, that Respondent's discharge of Ralph Johnson
was an unfair labor practice in violation of Section 8(a)(1) and (3) of the Act.
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 I, 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.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it is recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(3) and (1) of the Act by
the discharge of Ralph Johnson, it is recommended that Respondent offer him im-
mediate and full reinstatement to his former or substantially equivalent position,
without prejudice to his seniority and other rights and privileges, and make him
whole for any loss of earnings he may have suffered by reason of such discrimina-
tion by payment to him of a sum of money equal to that which he normally would
have earned as wages from the date of his discharge to the date of said offer of rein-
statement, less his net earnings during such period, with backpay computed on a
quarterly basis in the manner established by the Board in F. W. Woolworth Co.,
90 NLRB 289, 291-294, and with interest thereon as prescribed by the Board in
Isis Plumbing & Heating Co, 138 NLRB 716.
CONCLUSIONS OF LAW
1. United Steelworkers of America , AFL-CIO, and its Local 1055 , are labor
organizations within the meaning of the Act.
2. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
3 By discriminating with regard to the hire and tenure of Ralph Johnson , thereby
discouraging the exercise by employees of full freedom of association for the pur-
pose of negotiating and adjusting the terms and conditions of their employment or
other mutual aid or protection , Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 ( a)(1) and ( 3) of the Act.
4 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER 21
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this case, it is recommended 22 that Respondent, St. Louis Car, a
division of General Steel Industries, Inc., its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging concerted activity having for its purpose the submission, pre-
sentation, and processing of grievances, complaints, and related matters, by dis-
charging or otherwise discriminating against any of its employees in regard to their
hire or tenure of employment, or any term or condition of their employment because
of their concerted activities.
(b) In any like or related manner interfering with, restraining, or coercing our
employees in the exercise of their rights guaranteed to them in Section 7 of the Act,
except to the extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment , as authorized in
20 Bowman Transportation , Inc, 134 NLRB 1419 The fact that Johnson was a pro-
bationary employee does not remove the protection given employees under the Act.
n In the event that this Recommended Order be adopted by the Board, the word "Order"
shall be deemed substituted for the words "Recommended Order "
21 In the event that this Recommended Order be adopted by the Board, the word "ordered"
shall be deemed substituted for the words "recommended "
ST. LOUIS CAR , A DIV. OF GENERAL STEEL INDUSTRIES 555
Section 8 ( a)(3) of the National Labor Relations Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which it is found will effectuate the policies
of the Act:
(a) Offer to Ralph Johnson immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his seniority and other rights
and privileges.
(b) Make whole Ralph Johnson for any loss of pay he may have suffered by
reason of the discrimination against him , by payment to him of a sum of money
equal to the amount he normally would have earned as wages from the date of
his discharge to the date of the Respondent 's offer of reinstatement in the manner
set forth in the section entitled "The Remedy."
(c) Preserve and , upon request , make available to the Board and its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records relevant or necessary to
the determination of the amounts of backpay due and to the reinstatement and
related rights provided under the terms of this Recommended Order.
(d) Post at its premises in St. Louis , Missouri , copies of the attached notice
marked "Appendix ." 23 Copies of said notice , to be furnished by the Regional
Director for the Fourteenth Region, shall , after being signed by Respondent 's repre-
sentative , be posted by Respondent immediately upon receipt thereof and 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 Respondent to insure that said notices are not altered , defaced, or covered by
any other material.
(e) Notify the Regional Director for the Fourteenth Region, in writing, within
20 days from the date of this Recommended Order, what steps the Respondent has
taken to comply herewith.24
23 In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "A Recommended Order of a Trial
Examiner" in the notice . In the further event that the Board ' s Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order "
u In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read. "Notify said Regional Director , in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage our employees from engaging in concerted activities,
having for its purpose the submission , presentation , and processing of grievances,
complaints, and related matters, by discharging or otherwise discriminating
against any of our employees in regard to their hire or tenure of employment
or any term or condition of employment.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of their rights guaranteed to them in Section 7
of the Act, except to the extent that such right may be affected by any agree-
ment requiring membership in a labor organization as a condition of employ-
ment, as authorized in Section 8(a)(3) of the National Labor Relations Act, as
modified by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL offer to Ralph Johnson immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his seniority and
other rights and privileges and make him whole for any loss of pay he may
have suffered by reason of the discrimination against him.
All of our employees are free to become, remain, or refrain from becoming or
remaining members of any labor organization , except to the extent that this right
may be affected by an agreement requiring membership in a labor organization as a
condition of employment , as authorized in Section 8(a)(3) of the National Labor
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Act, as modified by the Labor- Management Reporting and Disclosure Act
of 1959.
ST. Louis CAR, A DIVISION OF GENERAL
STEEL INDUSTRIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify any of the above -named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act after discharge from the
Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 4459
Federal Building, 1520 Market Street , St. Louis 3 , Missouri, Telephone No. Main
1-8100, Extension 2142, if they have any question concerning this notice or com-
pliance with its provisions.
Pottsville Community Hotel Co., Inc . ( Necho-Allen Hotel) and
Local 391, Hotel and Restaurant Employees and Bartenders
International Union , AFL-CIO. Case No. 4-CA-2544. Janu-
ary 9, 1963
DECISION AND ORDER
On October 1, 1962, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the attached Intermediate Report. There-
after, the General Counsel filed exceptions to the Intermediate Report
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report and the General
Counsel's exceptions and brief, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner, with the follow-
ing exceptions and additions.
1. We adopt the recommendation of the Trial Examiner that the
complaint be dismissed insofar as it alleges that the Respondent dis-
criminated against Francis H. Spotts and Anne M. Kehoe.'
2. At the time of the events herein, Cerullo had been employed as a
banquet waiter for more than 5 years, had apparently always done
I We find that the Trial Examiner 's credibility resolutions as to Spotts and Kehoe are
not clearly erroneous . We do not, however, adopt his conclusion that Spotts' discharge
would not have constituted a violation if Spotts had not quit.
140 NLRB No. 54.