Plant City Steel Corp.

National Labor Relations Board - Board Decisions

Sep 25, 1962

138 N.L.R.B. 839 (N.L.R.B. 1962)

PLANT CITY STEEL CORPORATION 839
Plant City Steel Corporation and Robert C. Booth
Plant City Steel Corporation and Granville M. Alley, Jr., attor-
ney and United Steelworkers of America, AFL-CIO
Plant City Steel Corporation and Milton Teel and Clayton
Wykoff. Cases Nos. 12-CA-1952, 12-CA-2025, 1?-CA-2069-1,
and 12-CA-2069-2. September 25, 1962
DECISION AND ORDER
On October 19, 1961, George J. Bott issued his Intermediate Report
in the above-entitled proceeding, finding that Respondent Plant City
Steel Corporation 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 Inter-
mediate Report. He also found that Respondent Plant City Steel
Corporation and Respondent Granville M. Alley, Jr., had not engaged
in other unfair labor practices and recommended dismissal of the
complaint as to them. Thereafter, the Respondent Plant City Steel
Corporation and the General Counsel filed exceptions to the Inter-
mediate Report and supporting briefs.
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 [Chairman McCulloch and Members Rodgers and Fanning].
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, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(e)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Plant City Steel
Corporation, Plant City, Florida, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in United Steelworkers of America,
AFL-CIO, or in any other labor organization, by discharging, laying
off, or otherwise discriminating in regard to the hire or tenure of
employment of employees, or any term or condition of employment.
(b) Interrogating its employees as to their membership in, or ac-
tivities on behalf of, the Union, or any other labor organization, in a
manner constituting interference, restraint, or coercion in violation
of Section 8 (a) (1).
138 NLRB No. 83.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
' (c) Threatening discharge and plant shutdown or other economic
reprisal in order to discourage union membership and activities.
(d) Promulgating or enforcing a rule prohibiting employees during
nonworking time from soliciting membership in any labor organiza-
tion or from distributing literature on behalf of any labor organiza-
tion in nonworking areas of Respondent's plant.'
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities.
2. Take the following affirmative action which the Board fords will
effectuate the policies of the Act :
(a) Offer Robert C. Booth immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority or other rights and privileges previously enjoyed.
(b) Make Robert C. Booth whole for any loss of pay he may have
suffered by reason of his discharge, in the matter set forth in the sec-
tion of the Intermediate Report entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay due
and the right to reinstatement under the terms of this Order.
(d) Post at Respondent's plant at Plant City, Florida, copies of the
notice attached to the 'Intermediate Report marked "Appendix." z
Copies of said notice, to be furnished by the Regional Director for the
Twelfth Region, shall, after being duly signed by an authorized repre-
'For the reasons set forth in his dissenting opinion in Stoddard-Quirk Manufacturing
Co, 138 NLRB 615, Member Fanning dissents from that portion of the Order herein
permitting the Respondent to prohibit its employees from distributing union literature in
working areas during the employees' nonworking time.
2 This notice is hereby amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals , this notice shall be further
amended by substituting for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
The notice is further amended by adding the following which will appear immediately
below the signature at the bottom of the notice : "We will notify the above-named em-
ployee if presently serving in the Armed Forces of the United States of his right to full,
reinstatement upon application in accordance with the Selective Service Act after dis-
charge from the Armed Forces." The notice is also amended by deleting the phrase "This
notice must remain posted for 60 days from the date hereof" and substituting therefor
the phrase "This notice must remain posted for 60 consecutive days from the date of
posting."
The notice is further amended by deleting the paragraph which reads "We WILL NOT
promulgate or enforce any rule, etc," and substitute therefor the following : "Wu WILL
NOT promulgate or enforce any rule prohibiting employees during nonworking time from
soliciting membership in any labor organization or from distributing literature on behalf
of any labor organization in nonworking areas of our plant."
PLANT CITY STEEL CORPORATION 841
sentative of the Respondent, be posted immediately upon receipt there-
of, and be maintained by it for a period of 60 consecutive days there-
after, in conspicuous places, including all places where notices to
employees are customarily posted. Respondent shall take reasonable
steps to insure that such notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent Plant City Steel Corporation violated Section 8(a) (3)'
by discharging Milton Teel, Clayton Harold Wykoff, and A. E.
Vaughn, and violated Section 8(a) (1) by engaging in acts of surveil-
lance and by Respondent President Hardee's interrogation of Cal-
houn; and, that Respondent Granville M. Alley, Jr., violated Section
8(a) (1) by his statements to employees, be, and hereby is, dismissed.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges of unfair labor practices duly filed against Respondents, Plant City
Steel Corporation, herein called the Respondent Company, and Granville M. Alley,.
Jr., herein called Respondent Alley, the General Counsel of the National Labor
Relations Board issued a consolidated complaint and notice of hearing dated June 22,
1961. Answers 1 and amended answer denying the commission of unfair labor
practices were filed by Respondents and a hearing was held before Trial Examiner
George J. Bott at Tampa, Florida, on July 24 and 25 and August ^8 and 9, 1961. On
September 25, 1961, counsel for Respondents and the General Counsel submitted
briefs which I have duly considered.
Upon the entire record, and upon my observation of the witnesses, I make the fol-
lowing:
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS
Respondent Plant City Steel Corporation, a Florida corporation, maintains its•
principal office and place of business at Plant City, Florida, where it is engaged in
the business of fabricating structural, plate, and sheet steel and operating a steel
warehouse . During the year 1960, Respondent Company, in the course and conduct-
of its business operations, manufactured, sold, and distributed at said Plant City
plant products valued at in excess of $1,000,0'00, of which products valued at in
excess of $50,000 were shipped from said plant directly to States of the United
Respondent Company's answer was filed on July 3, 1961 . On July 6, 1961 , General'
Counsel filed a motion to strike Respondent Company's answer and for summary judgment
on the ground that the answer was defective under Sections 102.20 and 102.21 of the
Rules and Regulations of the Board , Series 8, in that it was not signed by an attorney of
record, and was interposed only for the purpose of delay, since the answer stated, with,
respect to the commerce allegations of the complaint , that Respondent Company was
without sufficient knowledge to form a belief . General Counsel 's motion was , on July 10,
1961 , set down for argument at the hearing scheduled for July 24 , 1961, by the Trial
Examiner originally assigned to hear the case. In the meantime, however, Respondents,
on July 7, 1961 , filed amended answers signed by attorneys of record , and in Respondent
Company's case, admitting the commerce allegations of the complaint.
At the opening of the hearing on July 24, 1961 , General Counsel renewed and argued
his motion for summary judgment . In view of the prompt filing of the amended answers,
I considered the matter moot for all practical purposes , and denied General Counsel's
motion.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
States other than the State of Florida. I find that Respondent Company is an em-
ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
Respondent Granville M. Alley, Jr., is an attorney licensed to practice in the State
of Florida and was, at all times material herein, as Respondent Company's answer
concedes, an agent of Respondent Company.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO, herein called the Union , is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The setting and the issues
In October 1957 the Board certified International Brotherhood of Boilermarkers,
AFL-CIO, as exclusive representative of Respondent Company's production em-
ployees. Respondent Company, asserting certain legal defenses, refused to honor
the certification and extensive litigation developed. Upon remand by the Court of
Appeals for the Fifth Circuit, the matter remains pending before the Board.2
Sometime in the summer or fall of 1960, United Steelworkers of America began
organizational activities at Respondent Company's plant. Union cards were distributed
and union meetings subsequently held. Respondent Company was aware of the
activities of the Union and its employees and took certain actions in November and
December 1960 and January 1961, which are alleged as unfair labor practices The
principal issues litigated in the case against Respondent Company were whether it
(1) interfered with, restrained, and coerced its employees within the meaning of Sec-
tion 8(a)(1) of the Act by improperly interrogating them, threatening them with
reprisals, engaging in surveillance of their activities, and restricting and prohibiting
the distribution of union literature and other union activities; and (2) violated Section
8(a)(3) of the Act by discharging four employees.
The issue in the case against Respondent Alley is whether he promised employees
economic benefits on condition that they refrain from union activities.
B. Alleged improper promise of benefit by Respondent Alley
On or about December 13, 1961, the Company called all of its production em-
ployees together in small groups and, over a period of 2 days, discussed various facets
of the union activity which was going on at the time. Two attorneys were present
at these meetings and it is there that Respondent Alley is supposed to have made a
promise of benefit to employees. The promise, as General Counsel's witness Booth
testified, was in Alley's statement "that the company paid him a large sum of money
to fight unions each year and that if we were to leave them alone we would get to
take the money home in our pay checks. " Several witnesses called by General
Counsel corroborated Booth with respect to the substance of the remark at-
tributed by Booth to Alley. Respondent denied that such a statement was made
at the meeting but it is unnecessary to resolve the conflict for the short answer is that,
if the remark were made by anyone, it was not made by Respondent Alley for the
record shows that he did not attend the meetings. In short, General Counsel has the
wrong Respondent.
Considerable evidence was adduced during this phase of the case but briefly the
record shows as follows:
In his case-in-chief General Counsel called five witnesses who testified about a
"lawyer's" remarks at the meeting in question but none could positively state that
Alley was the lawyer who spoke although two did testify that Whitehurst, vice presi-
dent of Respondent Company, so introduced him.
In defense counsel for Respondent Alley called the witnesses previously called by
General Counsel and two other employees, namely, Wykoff and Teel.
Respondent Alley's first witness, Robert C. Booth, a Charging Party, who earlier
had testified that he was positive that Whitehurst had introduced the lawyer who
made the alleged promise of benefit as "Mr. Alley," after stating that "he would
know (Alley) if he was brought in," categorically denied that Alley, who was sitting
in the hearing room at the time, was the lawyer introduced by Whitehurst when
Attorney Hall, who was presenting Respondent's case at the time, pointed to him.
i See Plant City Welding and Tank Company, 123 NLRB 1146; N L.R B v. Plant City
Welding and Tank Co., 275 F. 2d 859 (C.A. 5) ; 281 F. 2d 688 (C.A. 5). I draw no
inferences of any kind from this history of litigation but refer to it only to throw light
on certain statements made by Respondent Company to its employees.
PLANT CITY STEEL CORPORATION 843
Wykoff and Teel were also unable to identify Alley who had now formally en-
tered an appearance at the hearing. Robertson first stated that he thought Alley
was the man who addressed the employees but later testified that he really could not
remember and would not "swear" to it. Sullivan, who had been a General Counsel
witness, was positive that Alley was not the attorney who talked at the meeting.
Omma Nash testified that he did not think Alley was present but was positive, in
any event, that if Alley were he made no remarks. When Nash was shown a
photograph of an unidentified person, he positively identified the person in the
photograph as the individual who spoke at the meeting.
iOnly Robert Calhoun, who had earlier testified that Whitehurst introduced the
attorney who talked as "Mr. Alley," pointed to Alley, who was then sitting in the
first spectator row behind counsel table, as the lawyer who addressed the meeting.
Attorney Alley took the stand and denied that he attended the meetings. He was
corroborated by Whitehurst who identified the lawyer who spoke as one Paul Saad.
Whitehurst also identified the individual in the photograph who employee Nash
had identified as the lawyer who spoke at the meeting, as Paul Saad.
It is clear, and I find, on the basis of the evidence set forth above, that Alley was
not present at the employee meeting under consideration, and that, therefore, Gen-
eral Counsel has not established by the preponderance of the evidence that Re-
spondent Alley engaged in any conduct violative of the Act.
After Respondent rested its case General Counsel filed a written motion to amend
the complaint to name the law firm of Fowler, White, Gillen, Humkey, and Trenam,
and Granville M. Alley, Jr., Paul A. Saad, and Glen L. Greene, Jr., as Respondents
who, "individually and/or as agents of Respondent Corporation," promised em-
ployees benefits in violation of the Act. I denied the motion as being untimely, un-
clear, a complete change in the theory of the case, and because no charge had ever
been filed against the law firm, Saad, or Greene? In his brief General Counsel
requests that I reconsider and permit the amendment naming the law firm as a
Respondent. I have reviewed the record and considered General Counsel's argu-
ments but still feel that ordinary fairness requires the denial of the motion. This
is not a case of technical misnomer, as General Counsel argues, where, for example,
a partnership is sued in the wrong name or where service is technically defective
because made on the wrong person. It is evident from the entire proceeding that
General Counsel proceeded from the beginning against Alley in his individual ca-
pacity. The original charge named Alley, as did the complaint. No thought or
consideration was given to making the law firm, or any member of it, other than
Alley, a Respondent until it became evident that Alley was erroneously named.
General Counsel's proposed amendment is a complete change in theory. To argue
that service on a partner is service on the firm is pointless when the proceeding,
from the very beginning, never purported to be against the partnership. General
Counsel's motion is denied.
C. The evidence as to alleged violations of Section 8(a) (1) of the Act by
Respondent Company; findings and conclusions with respect thereto
1. Threats of reprisal
The complaint alleged that Francis William Rahrer, a supervisor, threatened
employees with reprisals because of their union activities at a "safety meeting"
called by him in December 1960. Considerable testimony was taken about the
"safety meeting" but the parties are in complete disagreement about when it oc-
curred and what was said at it. The only thing that is crystal clear in the record
is that whatever was discussed at the meeting, "safety," at least in the conventional
sense, was not.
Thus, Robert C. Booth, a former employee allegedly discharged because of his
union activities, testified that Rahrer spoke at a meeting of all plant employees,
including supervisors, in January 1961. According to Booth, Rahrer, after stating
that he was aware of union activities in the plant, said that Hardee, president of
the Company, would close the plant and convert it into a warehouse before he
would recognize the Union. Booth added that Rahrer discussed other matters,
such as the attitude of the men, which he deplored, and stated that "he knew we
had recently had a union meeting and there were seven men at this meeting and
they had better watch their step or they wouldn't have a job."
8 Mr. Saad had not testified and there is not even a suggestion in the record that Greene
did more than attend the meeting at which the alleged promise was made.
.844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John Robertson, a former supervisory employee of the Respondent Company,
"thought" the Rahrer "safety meeting" was in January 1961 and recalled Rahrer
saying that "Seven men better watch their step."
Employee Robert Calhoun fixed the Rahrer meeting at sometime between Thanks-
giving and Christmas 1960. He recalled that Rahrer began the meeting by informing
the men that there were many rumors of union activity in the plant and that he
wanted to bring the men "up to date." Rahrer mentioned the earlier election in
-which the Boilermakers Union was involved and, according to Calhoun, told the
men that he knew of seven men who were agitating for the Union and passing out
literature and that those men "better watch their step." Calhoun also testified
that Rahrer stated that Mr. Hardee didn't want a union and if necessary ". . . they
would close the shop and make a stock house out of it." Rahrer also warned the
,employees that anyone discovered passing out union literature on company property
would be discharged, according to Calhoun.
Employee Nash attended the Rahrer meeting and remembered Rahrer saying
that he knew there were seven agitators in the plant and that "they had better
watch their step. " He also recalled that Rahrer declared that the Company
would not permit the distribution of union literature on company premises including
the parking lot.
Employee Wykoff testified that Rahrer, at the meeting in question, stated that
he knew that seven employees were distributing literature in the plant and those
employees "better watch [their] step."
Employee Teel attended the Rahrer meeting but could not fix the date. He did
recall a statement by Rahrer in which Rahrer warned that "seven men" who were
distributing cards and literature "would go out the gate." He remembered little
else.
Rahrer testified that in the latter part of November 1960 he held a meeting at
which the Union was discussed. All employees, including foremen, were present
but Rahrer was the only speaker. He stated that he read from a prepared talk
which was introduced in evidence , and did not depart from it in any way. No
questions were asked and he answered none. Whitehurst testified that he was not
aware of Rahrer's talk in advance and when he heard of it he asked Rahrer for a
"report of exactly what was said, to give me a transcript of what he used. "
Rahrer gave Whitehurst a document purporting to be the remarks he made. White-
burst admitted that he did not know whether the document, "or the original thereof,
was prepared before or after Mr. Rahrer gave his talk."
Mrs. Jo Anne Kent, a secretary-typist at Respondent Company, was shown the
document which purports to be Rahrer's speech to the employees and which bore
the date November 29, 1960. She testified that she typed the document "either
on that date or a few days before or afterwards, more than likely it would have
'been on that date."
Resolution of the credibility question here is not easy. In the first place, Rahrer
,is without corroboration for all that Whitehurst and Mrs. Kent established was that
the document was prepared on or about the date it bore. This does not establish
that Rahrer read from it or, indeed, did not prepare it after Whitehurst asked for
a report of his remarks. If the document in evidence was copied from an "orig-
inal," that document ought to have been produced, and if typed from a secretary's
notes dictated to her, this might very well have been explained. Unfortunately,
-there is an air of some mystery about the document in evidence.
But merely because it is Rahrer 's word against a substantial number of employee
witnesses does not mean , of course , that Rahrer is not to be believed . As a matter
,of fact , the testimony of General Counsel 's witnesses is in some measure incon-
sistent and I do not accept all of it . Booth, for example , placed the meeting in
January 1961 and stated that Rahrer made reference to seven men who had attended
-a meeting. Calhoun thought the meeting was between Thanksgiving and Christmas
1960, and his testimony, and the testimony of other employees, contains no reference
-to Rahrer's awareness of a union meeting. I am convinced and find that the
meeting actually took place at the time testified to by witnesses for Respondent,
namely, about November 29 or 30, 1960, and, moreover, that Rahrer made no
-statement about a union meeting for none, according to Booth and other witnesses
,for General Counsel, had taken place at that time.
I am also troubled by doubts about the reliability of the memories of some of
General Counsel 's witnesses . Robertson , who will be considered again in the
treatment of Booth's discharge, impressed me as honest but vague about past events.
Teel and Wykoff admittedly could remember little about the time or content of
the Rahrer meeting. On the other hand, Calhoun and Nash impressed me as honest
.and cautious witnesses with reasonably good recollections.
PLANT CITY STEEL CORPORATION 845
As between Rahrer and General Counsel's witnesses I am inclined to accept the
latter's version, in substance, of what Rahrer said, despite the relatively minor incon-
sistencies and inaccuracies in the testimony of some of them, in view of their essential
consistency about the main point in issue. In addition, other evidence in the record
convinces me that they are to be believed and Rahrer discredited on the question of
whether or not he departed from his prepared statement. Respondent called em-
ployee Roy McGowan to fix the date of the Rahrer meeting. He testified credibly
that the meeting took place "two or three weeks" after he returned from the service
on November 21, 1960. Under cross-examination, he testified that the meeting lasted
about 20 minutes 4 (other witnesses estimated it to be a half hour or more) and that
it was called because of union activities inside the shop. He did not recall Rahrer
having anything in either hand as he addressed the group .5 He also testified that
Rahrer said there should be no union activities in the shop, that he knew the names
of some of the men who were active, and "there would be disciplinary action"
if the union activities in the shop did not stop. McGowan thus corroborated the
earlier witnesses in substance.6
I find, therefore, that Rahrer threatened employees that Respondent would close
its plant and engage in other acts of reprisal if employees continued their union
activities. I also find that Rahrer threatened employees with discharge if they
distributed union literature or engaged in other union activities on company property.
By engaging in such conduct Respondent violated Section 8(a)(1) of the Act.
The complaint also alleged that Respondent Company "in December 1960, by its
,officer Harold 0. Whitehurst, at an employer-sponsored meeting on company prop-
erty, lasting over a 2-day period, threatened groups consisting of approximately
ten employees to a group, that it would close its plant if a labor organization was
successful in becoming the recognized bargaining representative of its employees."
Respondent admits that it held the meetings and that the Union, union activities, and
their possible effects on Respondent's business were discussed but here again there
is a sharp dispute about exactly what was said.?
The substance of the testimony of the witnesses called by General Counsel
was that, at these meetings, Whitehurst said that Hardee, president and owner of
Respondent Company, would close down before he would recognize the Union.
Whitehurst denied that he stated that Hardee would close the plant before he would
recognize the Union. He testified that substantially the same thing was said at each
of the 12 meetings and that 2 company attorneys-Glen Greene and Paul Saad-
were present. Whitehurst and Saad discussed the earlier activity of the Boilermakers
Union and the status of the litigation involved in that case. Whitehurst said he
told the employees that it was his understanding, based on legal advice, that the
"Steelworkers could not come into the plant regardless of how many men they
signed up until that case was settled. If it was settled in favor of the Boilermakers,
the Company would be compelled to recognize the Boilermakers for a period of at
least one year." The Company's experience with the Union at another plant was
referred to by him and he told the employees that the Union's tactics there were to
flaunt "material" from another company which indicated an extremely high rate of
pay. He explained to the employees, so he said, that Respondent Company was not
in the same competitive position as the company referred to by the Steelworkers Union
in its campaign.
Whitehurst stated that he gave the employees a "hypothetical example" of what
could happen if the Union, or some other union, were successful in organizing Re-
spondent. He said that "this impression [that], . . . there would be a complete
change in pay scale from the existing scale . . ." to the one another company paid
was impossible. He testified that, in his example , he said that "if the union came in
we would sit down to negotiate with the union . . ." but that "no existing law com-
pelled the parties to agree to unacceptable terms." He discussed what might happen
in the event of a strike. He told the employees that Respondent could replace them.
He said further, "At such time if the operation turned out that it was impossible to
Even a slow reader could have read Rahrer 's alleged prepared statement in 5 minutes.
6 He was corroborated by a number of other witnesses on this point.
6 Basically, of course , the issue is whether Rahrer made threats of reprisal . From an-
,other point of view, however, the issue is whether Rahrer clung to his script, as he testi-
fled, or extemporized as the employees said . I find that he departed from it and that the
employees were basically consistent about the nature of the departures , namely, that
Rabrer threatened them.
7 There is also a conflict about the date. I find that the meeting took place on Decem-
ber 12, 1960.
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operate the company at a profit, . . . the management always has the right to
close the gate and sell out if they chose. This tremendous increase in wages, if the
Steelworkers forced us into it, would have to offset by productivity in the plant ...
we could not be forced into any ridiculous pay scale."
In respect to the possibility of closing Whitehurst answered, "Yes, I did mention
regarding when we were talking about the possibility of closing if economic condi-
tions demanded it the fact it is a closely held corporation, it is not a corporation
where there are many stockholders [where] the prerogative of management would
be a little clouded in the event economy should dictate the closing of the plant and
selling the assets. [I] stated Mr. Hardee had built a good substantial business and
the assets of the Company were such if he chose he could sell out the Company,
close the gates, and have enough money to last out the rest of his life." He said
he made this statement in connection with the "economic situation the union might
bring about."
I credit Whitehurst and find that he made the statements he said he did and did
not bluntly state that Hardee would close the plant before he would recognize the
Union. I do not believe that a sophisticated person like Whitehurst would, especially
in the presence of two skillful attorney navigators, steer himself into the shoals of
"threats of reprisal" when the blue waters of "prediction'of the economic consequences
of unionism" were close at hand. Although I believe that the employees honestly
believed Whitehurst was telling them that their union activity was an exercise in
futility inevitably leading to loss of employment, and although I think that White-
-burst's speech was adroitly pitched on that note, nevertheless, a description of what
can happen in the event of union organization, substantially the way Whitehurst set
it forth, has been held to be protected free speech under Section 8(c) of the Act,
and not to be a threat of reprisal, but a prediction of the economic consequences of
unionism.8
However, when Whitehurst added that it would be easier for Hardee to go out
of business than it would be for a company with many stockholders, he, in my view,
in the context of this case, including Rahrer's threats about Hardee closing the plant
made only 2 weeks before, made a threat to the economic security of the employees
which was a violation of Section 8(a) (1) of the Act, and I so find9
2. Interrogation of employees
Sometime close to the date of the meeting at which Supervisor Rahrer addressed
the employees and made the statements which I have found were threats of reprisal,
Rahrer sent for employee Calhoun and talked to him about his union activity.
According to Calhoun, Rahrer said, "Bob, I am surprised at you. . I have been
told you have been passing out union literature in the shop." Calhoun pleaded ig-
norance and , according to him, Rahrer stated that he knew of seven men who were
causing "a lot of trouble" and were passing out literature and that Calhoun had been
"pointed out" as one of the seven. Calhoun denied that he had distributed literature
or had even seen any in the plant. Rahrer, so Calhoun testified, then told him to
"watch [his] step" and also asked him who the other men were. Calhoun told Rahrer
be had no knowledge of the identity of the others. Rahrer -admitted he had a discus-
sion with Calhoun about the Union, at or about the time stated, but his version was
different. He admitted he sent for Calhoun and "I told him I heard he was working
with the union and I was kind of surprised at him since I was trying to help him in
his business and gave him his job back when he failed in his business , and he came
back at me and said, `I am not going to tell a lie. I have been active in the union'
and I said. `Go ahead and keep your nose clean and we will make the best we can
of it.' " Rahrer denied any threats to Calhoun or inquiries about the activity of
others. T do not believe Rahrer. Rahrer had made similar statements before in
the so-called safety meeting and it is clear that he was much interested in the distribu-
tion of literature on company property. Calhoun's story is the most likely in the
circumstances and I have previously discredited Rahrer generally. Although Calhoun
was in error about dates of certain occurrences in other phases of the case and,
positively, but erroneously, identified Alley as the attorney who spoke at the meeting
called by Whitehurst, I credit his testimony. T find that Rahrer improperly inquired
of Calhoun about his union activities and the activities of others.
Robert Booth testified that sometime in November 1960 Merkhofer, secretary-
treasurer of Respondent Company, approached Booth at the Company's concession
8 Chicopee Manufacturinq Corporation, 107 NLRB 106; The Luv Clock Manufacturing
Company Inc., 113 NLRB 1194; Edanont Manufacturing Company, 120 NLRB 525.
9 See Willard's Shop Rite Markets, Inc, 132 NLRB 1146.
PLANT CITY STEEL CORPORATION 847
stand and asked him if he knew "anything of the union activities that was going on
there at the plant.. Booth denied knowledge of such activities . Merkhofer did
not testify . I find that Merkhofer did make the inquiry.
I find and conclude that Respondent Company by interrogating Calhoun and
Booth, as set forth above, violated Section 8 ( a) (1) of the Act.
The complaint also alleged that Respondent Company, in December 1960, by its
president , Clifford Hardee , interrogated an employee about his union membership,
and that of others, and made threats of reprisal . To support the allegation employee
Calhoun testified that while he , although still employed by Respondent , was operat-
ing a service station adjoining Respondent 's plant, Hardee , accompanied by Murray,
drove in and engaged him in conversation out of the hearing of Murray . Calhoun
stated Hardee asked him who was passing out literature in the shop and who was
"agitating the union." Calhoun told Hardee he had no information but Hardee
insisted he did and, according to Calhoun , called him a liar a number of times.
Hardee then stated , so Calhoun said , "You know how I feel about the union ... the
shop will never be union . . . if it is necessary I will close the doors and fire every
man in there.. . Then Hardee shook Calhoun's hand, said, "Let's just forget
the whole thing ," and departed.
Hardee and Murray testified about the incident . Murray heard none of the
conversation but fixed the date of it as "the first part of September " 1960. Hardee
denied Calhoun's version of the conversation and testified that in a prior campaign
to organize Respondent , Calhoun's predecessor in ownership of the service station
had been approached by a union representative and asked for home addresses of
Respondent 's employees . Hardee, so he said, asked Calhoun not to cooperate with
the Union if the same thing happened again and Calhoun promised that he would
not. Hardee positively fixed the date of the talk with Calhoun as September 9, 1960.
I do not credit Hardee's story but believe he made the remarks Calhoun testified to.
Calhoun is still employed by Respondent and I consider it extremely unlikely that
he would have concocted such a tale about Mr. Hardee . On the other hand, Cal-
houn was not positive about the date of the conversation and I credit Murray and
Hardee about the time. I find the meeting took place on September 9, 1960. The
Company's employment records show that Calhoun was not employed the week
ending September 4, 1960, and did not return to employment until the week ending
November 6, 1960. Calhoun admitted that he quit for some time to run a service
station. I find that the conversation with Hardee took place on September 9, 1960,
while Calhoun was self-employed . Since no charge was filed in this case until
April 4, 1961 , the Hardee-Calhoun incident is barred by the statute of limitations
in Section 10(b) of the Act. Although I find no violation of the Act as alleged, I
find the incident, which was thoroughly explored at the hearing , throws light on
Hardee's attitude towards the Union and those who were distributing literature
and supports my finding that Rahrer also interrogated Calhoun. In addition, al-
though the incident is barred , it reveals that Rahrer 's and Merkhofer's inquiries about
the Union were no mere isolated or casual acts.
3. Surveillance of union activities
The Union held a meeting in the coffee shop of the Plant City Hotel on January 19,
1961. Employees Booth and Nash testified that they saw Walter Harkala, manager
of Hardee Manufacturing Company, which by virtue of common ownership, offi-
cers, and control constitute with Respondent a single integrated business enterprise,
standing about 50 feet away from the entrance to the hotel coffeeshop . Harkala,
according to them , had a pad and pen in his hand. Other employees who attended
the meeting did not see Harkala. Harkala testified credibly that on the night in
question his wife and he, and another couple, had dinner at the hotel. He saw no
employees and denied he had a pad or pen in his hand. I credit Harkala's explana-
tion of his presence at the place in question . I find , contrary to the allegations of
the complaint, that Respondent has not engaged in surveillance of union meetings.
4. Respondent's no-solicitation and no-distribution rule
Respondent published its plant rules in a booklet which it gave to all employees
when hired . Rule 14 provides:
Employees must not engage in the distribution of any literature , unauthorized
soliciting or selling of any kind during working hours or on company premises.
At the Rahrer "safety meeting ," described above, Rahrer referred to the rule and
told the employees that anyone passing out union literature on company property,
including the parking lot, would be discharged . Although the record is sketchy, there
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is substantial evidence that Rahrer also said he did not want "any kind of union.
activities" in the plant or on the parking lot such as "distributing written matter of any
kind (and) trying to get cards signed." Rahrer also told Calhoun that the Company
did not even permit union literature in the plant and that the rule against distribu-
tion applied to coffee breaks.io
Rahrer admitted that he enforced the Company's no-distribution and no-solicita-
tion rule by removing union literature from employees' cars parked in the parking lot.
This literature was under the windshield wipers and on the front seats. He had also
in the past removed commercial advertising material from employees' cars. Plant
Superintendent Joseph Napolitan also conceded that he removed union literature
from employees' cars in the parking lot.
No-solicitation or no-distribution rules which prohibit union solicitation or
distribution on company property by employees during nonworking time are
presumptively invalid both as to promulgation and enforcement unless special cir-
cumstances make the rule necessary in order to maintain production or discipline."
Respondent's rule, which is not restricted to working hours, is not defended on the-
ground of special circumstances and is, therefore, illegal both in its promulgation and
enforcement.
Respondent contends that, with respect to the parking lot, it has the right to post
its premises against distribution by outsiders. This is true.12 But here the rule-
was not enforced against outside union representatives but against Respondent's own
employees. Respondent's rule applies to employees on its face, and Rahrer and
Napolitan stated that, in removing literature from employee cars, they were acting
to enforce such rule. Respondent had the right to prevent nonemployee distribution,
in the circumstances of this case, but it had no right to remove union literature
from employees' cars. I find that Respondent by promulgating and enforcing its
no-solicitation and no-distribution rule, including the removal of union literature from
employees' cars, violated Section 8(a)(1) of the Act.
D. The alleged discriminatory discharges
The complaint, as amended at the hearing, alleged that Respondent, on or about
January 27, 1961, discharged Robert C. Booth, Milton Teel, Clayton Harold Wykoff,_
and A. E. Vaughn because of their activities on behalf of the Union.
1. Robert C. Booth
Booth was discharged on January 27, 1961, after about 31/a years of employment
with Respondent. His last job was that of a hydraulic brake operator and there is
no issue regarding his competency. After Booth was fired his helper was given his
job and no one has been hired to replace him.
Booth was active in the Union. He signed a union authorization card in the
fall of 1960 and distributed cards to other employees. Most of his activity appears
to have taken place in December 1960 and January 1961. He signed up a substantial
number of employees in the plant during nonworking hours. He attended four union.
meetings, three of which took place at the Plant City Hotel, in Plant City, Florida, in
January 1961 and an earlier meeting at an employee's home in December 1960.
At quitting time on January 27, 1961, Booth's foreman, John Robertson, handed.
Booth a "termination slip" which the employee signed. The document contained a
space for "Reason for termination" and contained the statement "Lack of work;
Violation of Company policy." According to Booth, Robertson expressed his regrets
about the termination and asked Booth if he would come back to work if Robertson
"got the thing straightened out.. .. Walter Zegers, a former supervisor of Booth,
joined Booth and Robertson and also expressed his regrets.
Booth testified that before leaving the plant he saw Napolitan, who admittedly
was responsible for Booth's discharge, and asked him what violation of "company
policy" he had committed. Napolitan replied, "I only work here like you do. You
will have to ask somebody higher than me." Napolitan denied this remark.
Booth then went to the company parking lot for his car. He testified that his
former supervisor, Zegers, went with him and told Booth that he "should have
been more careful with his union cards." Zegers denied any reference to Booth's
union activities.
is Testimony of Nash and Calhoun. Rahrer testified that he read the rule to employees
and told them they were subject to discipline if they violated it.
11 Walton Manufacturing Company , 126 NLRB 697, enfd. 289 F. 2d 177 (C.A. 5).
12 N.L.R.B. v. The Babcock & Wilcox Company, 351 U.S. 105.
PLANT CITY STEEL CORPORATION 849'
John Robertson testified that, at a meeting of supervisors the Monday before
Booth's discharge, he was informed by Superintendent Napolitan that a group of
employees were to be discharged. He and other supervisors were asked at that time
to give Napolitan a list of men who, in Robertson's words, "they could do without
or wanted,to discharge." He made up such a list but d'id not place Booth's name on it.
According to Robertson, he found out that Booth was to be discharged at noon on,
the day of his discharge when Napolitan gave him two paychecks for Booth, one of
which was termination pay, and told him to hold the latter to near quitting time
and then give it to Booth. After lunch Robertson went to see Napolitan hoping to
talk him out of discharging Booth. He testified that he asked Napolitan why Booth
was being discharged in view of the fact that Booth was "a first class man" who
was badly needed, and that Napolitan said, "You should know what it is all about.
. words to that effect."
Robertson also testified that the termination slip which he handed Booth on his
discharge had a second portion which is not shown to the employee which contains
spaces for evaluation of the employee's work and character. This is normally filled
out by the immediate supervisor but had already been filled out when Robertson
received it. Robertson also related a conversation he had with Supervisor Zegers,
after he learned of Booth's discharge, in which Zegers stated in reference to Booth,
"You know what it is all about, it is because of union activities he was laid off."
Superintendent Napolitan was the Company's principal witness in the Booth case.
He testified that Booth was absent from work on January 23, 1961, and his foreman,
Robertson, filled out an absentee slip marking the reason for absence "unknown."
Robertson, according to Napolitan, told him that, on returning to work on Tuesday,
Booth told Robertson that Booth 's son had been in an accident and that this upset.
Booth, senior, enough to cause his absence. After Robertson had related Booth's
story to Napolitan, employee Booth stopped Napolitan in the plant, so Napolitan testi-
fied, and gave him other details about his son's accident and its effect on Booth,
senior. According to the superintendent, Booth told him that he (Booth) had a
nervous breakdown, that his doctor wanted him to be hospitalized, but that Booth
declined, insisting that mediaction would be enough. This story, said Napoli-tan,
made him suspicious of Booth's excuse for his,l-day absence and he decided to per-
sonally check it out. He called Dr. Sanchez, the physician who had treated Booth's
son and also the hospital at which the treatment was given and found no record
of any kind about care being given or offered Booth, senior. It was now Thursday
of the week in question when Napolitan had finished his investigation and, on the
basis of this investigation Napolitan, in his words, "Called this foreman (Robertson)
in and told him what had been transpiring, I had checked on the story Booth had
given him and it was not true and I told him as far as I was concerned those were
grounds for termination and I had him make out a termination slip which I signed.13
He was discharged on the 27th of January."
Napolitan was shown Booth's termination slip, which is dated January 24, 1961,
and explained that a portion of the original document is kept by the employer and
contains information about the employee's work habits and an opinion as to whether
or not the employee should be rehired. He testified that the lower portion con-
taining an assessment of the employee's characteristics was in Foreman Robertson's
handwriting. The portion of the form which is in evidence has the word "No"'
written after questions as to whether or not the employee was satisfactory, honest,
and trustworthy and should be reemployed.14
Napolitan admitted that he had a conversation with Booth after his discharge.
He testified that Booth asked him for a reason and he told Booth that he had falsified
his reason for absence on Monday to both Robertson and Napolitan. He denied
that he said that he merely worked there and that Booth would have to ask a higher
official.
Foreman Zegers testified that he did have a short conversation with Booth on the
day Booth was discharged. His explanation was that, pursuant to a previous ar-
rangement, he met Booth after working hours at the plant gate in order to pick up'
a sleeping bag which was in Booth's car. The men walked to the parking lot from
the gate and, when they arrived at Booth's car, so Zegers said, Booth showed him his
termination slip and stated that he did not agree with the reasons for release set
"The termination slip is actually dated January 24, 1961, which was Tuesday of the
week involved.
14 Robertson first testified that the evaluation of the employee had been filled in when
he first saw the termination slip but later indicated that the word "no" looked like his
handwriting . I think he was confused , but, in any event, regardless of the handwriting,
the actual evaluation was Napolitan 's not Robertson's.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forth in the document but that he thought it was because of his union activities.
Zegers said he "didn't agree with him because that wasn 't the reason on the termina-
tion paper." He denied that he told Booth that he was fired because of his union
activities or made a statement about union cards. He said he had no knowledge
of Booth's union activity. He also denied that he had told Foreman Robertson that
Booth was discharged because of the Union.
The Company 's position with respect to Booth 's discharge is basically that he
was discharged by Napolitan because he did not report his absence on Monday,
January 23 , 1961 , and lied about the reason for it when he reported for work the
next day.
At the outset it should be pointed out the General Counsel, in my view , made out
a strong prima facie case establishing the illegal discharge of Booth . Booth was
active in the Union, the Company knew it, and indicated forcefully , through Rahrer,
that the Respondent disapproved of union activity on its premises . The discharge
of a competent employee without warning, in these circumstances , particularly in
the light of Napolitan 's and Zegers' statements to Booth and Robertson , clearly
shifted the burden of going forward to Respondent to explain Booth's discharge,
although , of course , the ultimate burden rested on General Counsel to establish his
case by a preponderance of the evidence.
Before going to the heart of the matter , which is the motivating factors in Booth's
discharge , certain underbrush must be cleared away. In my view, because of
faulty memory , uncertainty in testimony , caused by confusion on the witness stand,
and undue emphasis on unimportant detail, the record has become confused and
somewhat difficult to follow. Before assessing finally, therefore , the ultimate issue
of motivation which is dependent on an assessment of credibility these preliminary
matters must be disposed of.
Since part of Respondent 's defense rests on Booth's alleged failure to report his
absence of January 23 on that date it would seem that the existence or nonexistence
of such a basic fact would be clear in the record . But it is not . Napolitan testified
that on January 23 Robertson made out an absentee slip for Booth stating the reason
for absence as "unknown " because Booth had not reported in. Robertson , in sub-
stance, testified that Booth told him on the day of his return that he had called the
office. Booth testified twice in the General Counsel 's case and , strangely , never was
asked , and never stated whether he had reported off ill on Monday . Much evidence
was taken about the Company 's practice in recording absences, including the sub-
stitution of a new report in the employee 's file if, after being absent without report-
ing, he, on his return, had a sufficient excuse. Nevertheless , the record remains
unclear. Earlier I have indicated that Foreman Robertson had a faulty recall of
detail and, on that basis , and Booth's failure to clarify a simple matter, I credit
Napolitan 's version that Booth did not report the reason for his absence until his
return . I find that Booth had an unexcused absence on January 23, 1961.
Robertson 's, Napolitan 's, and Booth 's versions of the events of the next 2 or 3
days, as they related to the reasons for Booth 's absence , and Napolitan 's reactions
to it, are unclear and contradictory . Robertson testified that Napolitan told him
on January 23 or 24 to give Booth a 2-day disciplinary layoff for not reporting off
but when "Booth told me he had reported in I went to the office and found the
report there and it had not been given to me and I gave it to Napolitan and nothing
was said after that." [Emphasis supplied ] Napolitan, on the other hand , testified,
as set forth above, that Booth stopped him in the plant on his return and gave him
a different and more colorful account of his absence than Booth had given Robertson;
that he brought this story to Robertson 's attention after checking it out with the
doctor's office and the hospital. Booth denied , in rebutal , that he had ever discussed
the reason for his absence on January 23 with Superintendent Napolitan. But
Robertson , despite his testimony that "nothing was said after that" admitted, under
cross-examination , that Napolitan had told him subsequent to "the time Booth re-
ported back . . . on Tuesday . January 24 , that Booth . . . had told him a different
story as to why he had been absent ." I, therefore , discredit Booth in this instance
and find that he discussed the reason for his Monday absence with Napolitan as
well as Robertson and that Napolitan discussed it with Robertson.
Although I have resolved the above matters in Respondent 's favor, such resolu-
tion is not fatal to General Counsel 's case for , although Booth , as I have found,
was absent from work on January 23 without reporting off, and upon his return
gave Robertson and Napolitan different versions of the reason for his absence, the
issue whether Napolitan discharged Booth because of his union activities and used
Booth's story as a pretext to conceal the real reason for the discharge still remains.
An employer "can discharge for good cause , for bad cause . or no cause at all."
N.L.R.B. v. T. A. McGahey , Sr., et al., d/b/a Columbus Marble Works, 233 F. 2d
PLANT CITY STEEL CORPORATION 851
406, 412 (C A. 5). But the absence of any cause or the presence of a reason for
which employees are not ordinarily fired is evidence bearing on the weight of the
evidence advanced by an employer to offset an inference of discriminatory motiva-
tion from other evidence I have pointed out earlier that General Counsel's evidence
warranted an inference that Booth's discharge was illegally motivated. Analysis
of the reason given by Respondent for Booth's discharge, in the light of the manner
in which it was effected, convinces me that it does little to offset the inference that
the discharge was illegal.
The nature of the offense, considering Booth's employment record, was trivial.
Respondent's plant rules provided that an employee violating certain rules "after
due warning, may be subject to discharge or other disciplinary action... . The
rules provided that employees should be regular in attendance, that excessive or
unexcused absences would not be tolerated, and that employees were required,
except in unusual circumstances, to report to the Company if they were to be absent.
Robertson testified that Booth's record of absenteeism was average and, although
Napolitan suggested that Booth might have been absent before without calling in,
he did not carry through with his thought and no evidence was offered to sub-
stantiate it. Zegers, Booth's former foreman, did not testify about absenteeism.
Certainly there is no evidence in the record that Booth had ever been warned about
this offense or any other. As far as the record in the instant case is concerned,
Booth's record of reliability and trustworthiness was good. If he had ever lied
before to management the record does not show it. In addition, his story on its
face seems a great deal for a superintendent to exercise himself about. If Booth
had, as a first offender, gone fishing and concocted a story of illness to excuse a
1-day absence, a warning as permitted by the rules would seem enough. Because
he chose to exaggerate the effects on him of his son's accident he received no warn-
ing, which itself is a violation of Respondent's own code, but instead got the
extreme penalty of discharge rather than discipline as provided in the rules.
Napolitan's own handling of the incident indicates that the whole affair was a
subterfuge. Napolitan was superintendent of a plant work force of about 115 men.
Intrigued by Booth's imaginative account of how much his son's injuries had affected
him, he questioned not Booth but, at the expense of some time and effort, made an
independent investigation of the whole affair through doctor and hospital contacts.is
This was all done over a period of 3 days while Booth continued at his work. It
is apparent to me that Napolitan did not want a valid excuse, an explanation, or
even an apology from Booth who was easily available for an interview, nor an
opportunity to warn Booth and put him on the right path but wanted instead an
incident that could be blown into a breach of trust.16
Finally, Napolitan's treatment of Booth on the day of his discharge indicates
that even Napolitan believed that the alleged Booth dereliction would not stand
analysis and discussion. Booth, prior to leaving the plant, asked Napolitan for an
explanation of the "company policy" violation set forth in his discharge slip. Na-
politan gave him none. At the hearing Napolitan testified that he explained "in
detail" to Booth the reasons for his discharge. In an affidavit Napolitan gave a
representative of General Counsel on April 21, 1961, in the presence of an attorney
for Respondent, he stated that he did not discuss those matters with Booth. In
view of this prior inconsistent statement, for which a lame explanation was given
by Napolitan, I discredit his testimony in this matter and credit Booth here.
Both Napolitan and Foreman Zegers denied any knowledge of Booth's union
activity and Napolitan, in fact, said that he thought Booth was antiunion. This is
highly unlikely in view of Respondent's efforts to discover the active proponents
of the Union. Indeed, Whitehurst, vice president of Respondent, admitted he knew
that Booth and others were unionmen. This is an added reason for my discrediting
Napolitan where I have, and also disbelieving Zegers when he denied stating to
Robertson that Booth's union activity was involved in his discharge or telling
Booth, in the parking lot, that he should have been more careful with his union
cards
I find that Respondent discharged Booth in violation of Section 8(a)(3) of the
Act.
'5 Napolitan's investigation of employee Bohanan who held two jobs is not parallel in
my view.
'a Napolitan did not deny that he told Foreman Chadwick in June 1960 to discharge an
employee who had been seen talking with a union representative but to wait a week so
that the reason would not be apparent. This incident ]ends support to a finding that
the Booth discharge was pretextual
662353-63-vol 138-55
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Wykoff, Teel, and Vaughn
Wykoff, Teel, and Vaughn were added to the complaint as alleged discriminatees
at the hearing. General Counsel's theory, essentially, is that they stand or fall to-
gether for all attended a union meeting at which seven employees were present,
management made threats against the seven who attended the meeting, and four
(Booth and the above three complainants) were subsequently fired. These facts,
in his view, taken with the Company's animus toward unions, threats, and other
acts of interference establish discrimination-so the argument goes.
Although Vaughn did not testify at the hearing and we know little about him,
there is a common thread running through the cases of the three men for there is
evidence that they attended a union meeting and that Respondent made threats of
reprisal against those who attended.
Wykoff was laid off on January 27, 1961, and given a termination slip which gave
the reason for layoff as "lack of work." He recalled no conversation with the super-
visor who gave him his termination notice. He was recalled to work on May 8,
1961, and was employed at the time of the hearing.
With respect to his union activities, Wykoff testified that he attended three union
meetings and distributed about five union cards which he had obtained at the second
union meeting he attended He said that the first meeting he attended was "in late
summer" of 1960 and that all meetings were at the Plant City Hotel. At the second
meeting he attended, which he said was about a month later, there were about seven
employees present "it seemed to (him)." Later he testified that there were "seven
or eight" present. About a "week or ten days" after he received the union cards, he
went to employees' homes and solicited them for the Union. He testified that he
did not see a company representative in the vicinity of the Plant City Hotel at the
time of the union meetings; that he personally carried on no union activity on com-
pany premises, and none of his discussions in the plant about the Union took place
in the presence of supervisors.
Wykoff thought the Rahrer meeting was held "before Christmas, sometime, in
December sometime, let's say," and when asked what was said at the meeting, replied
that he did not "recall too much of it." He did recall that Rahrer talked about
"union agitation" in the shop and "there were seven of us fellows giving out literature
for the union and they knew who we were and we better watch our step " Wykoff
said he was certain that Rahrer spoke to the employees after the second union meet-
ing Wykoff attended and that it "was not possible" it was before. He also "believed"
that Vaughn attended the second union meeting as well as the first.
Milton Teel was terminated on January 27, 1961, and given a termination notice
which also read "lack of work " He attended two union meetings at the Plant City
Hotel According to him, the first union meeting he attended was in November or
December 1960 and Booth was present as well as Wykoff and Vaughn.17 He saw
no company representative near the meeting place. He said he "would say" that
there were seven or eight employees present at the first meeting, and four or five at
the second, which was also held -at the Plant City Hotel "somewhere in the last
of 1960 "
He also handed out cards which he received at the first union meeting he attended
but his activity was not done in the presence of supervisors, he said. He recalled
the Rahrer meeting as being before the second union meeting he attended but was
not sure whether it was before or after the first one. He said Rahrer said he "knew
seven men distributing union activities, . . . and if they didn't watch their step, they
would go out the gate "
The theme had been set early in the hearing 18 and now through Wykoff and Teel
it is firmly established. Seven men attend a union meeting, the superintendent later
admits he knows who they are, and warns them to "watch their step." Subsequently,
not having heeded the warning, four of the seven are summarily dismissed after years
of service. This, taken with a pattern of company hostility to unions, must result in a
finding of discrimination. However, careful attention reveals dissonance, rather
than harmony, in the theme.
Wykoff's and Teel's touch was uncertain, their memories faulty. In addition to
the hedgings indicated above as, for example, "-it seemed to (me)" and "in late
summer," a full reading of Wykoff's and Teel's testimony and recollection of their
demeanor convinces me that they had no strong independent recall of when the
union meetings occurred, which ones they attended, or who was there. They were
17 He also said there were four or five others in addition to the four mentioned
18 Booth had testified that Rahrer, at the so-called safety meeting, had claimed knowl-
edge of seven men who attended a union meeting.
PLANT CITY STEEL CORPORATION 853
equally and admittedly weak (at certain times) about the content and date of the
Rahrer meeting. Even in regard to the attendance at the union meeting in ques-
tion, it was not a clear "seven" but an uncertain seven or eight, and even, according
to Teel's testimony, a possible nine.
Booth was more consistent and, to have the Rahrer warning make sense, he placed
the Rahrer meeting in January 1961 for, according to him, and he is independently
supported and buttressed by the testimony of other witnesses, the union meetings
at the Plant City Hotel took place in January 1961.19 I find that such is the fact,
and that, therefore, when Wykoff and Teel made Rahrer aware of their attendance at
a union meeting at the Plant City Hotel they made him clairvoyant, for the Rahrer
meeting, as I have previously found, took place no later than December 1, 1960.
I have found earlier that Rahrer, although he warned employees of discipline
because of their union activities in and around the shop, did not, contrary to Booth's
testimony, mention a union meeting. But even this reference to "agitation," or union
activities generally, does not help Wykoff and Teel for they engaged in no activity
until they received union cards at a union meeting in January 1961. There is no
evidence, therefore, that any threats were directed by Respondent to Wykoff and
Teel as General Counsel theorizes.
Although Whitehurst admitted that he had heard that Wykoff, Teel, and Vaughn
"were engaged in union activity," he also testified that he had heard the same thing
about all of the employees. There is no probative evidence in the record that Re-
spondent knew that the three alleged discriminatees were more active than anyone
else. General Counsel conceded that four unnamed employees who attended the
union meeting which the complainants attended still work for the Respondent, and
Booth testified that he distributed 20 or 25 cards to others. It is clear, therefore,
that a substantial number of employees were active and not discriminated against.
Indeed, Calhoun who was berated by Hardee for not cooperating in uncovering the
union adherents, and reprimanded by Rahrer for passing out literature, was rehired
after a leave of absence. These factors, and serious doubts about the actual number
of employees who attended the union meetings or were otherwise active in the
Union, destroy General Counsel's argument of discrimination by disproportion. Fi-
nally, Whitehurst and Napolitan testified without contradiction that the layoff was
seasonal and that the Company did not need the services of the employees laid off.
No one was hired in their places.
I find that General Counsel has not established by a preponderance of the evidence
that Wykoff, Teel, and Vaughn were discharged because of their activities in behalf
of the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent Company set forth in section III, above, occurring in
connection with the operations of Respondent as described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and, such of them as have been found to constitute unfair labor
practices, tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent Company engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act, it will be recommended
that the Respondent cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It will be recommended that Respondent offer employee Robert Booth 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 earnings he may have suffered by reason of the discrimination against him,
by payment to him of a sum of money equal to that which he would have earned as
wages from the date of the discrimination against him to the date of offer of rein-
statement, and in a manner consistent with Board policy set forth in F. W. Woolworth
Company, 90 NLRB 289.
It will also be recommended that the Respondent preserve and, upon request, make
available to the Board, payroll and other records to facilitate the computation of
backpay.
11 Booth testified he saw Harkala near the Plant City Hotel coffeeshop on January 16 or
17, 1961 Harkala fixed It as January 19. There were three meetings at the hotel and
this was the second The first took place around the first of the year
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It will also be recommended , in view of the nature of the unfair labor practices
the Respondent has engaged in, that it cease and desist from infringing in any manner
upon the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent Company is engaged in commerce within the meaning of Section
-2(6) and (7 ) of the Act.
2. United Steelworkers of America , AFL-CIO,,is a labor organization within the
meaning of Section 2 ( 5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Robert
Booth, thereby discouraging membership in the Union , the Respondent Company
has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the
Act.
4. By engaging in the conduct set forth under section III, C , 1, 2, and 4, above,
Respondent Company interfered with, restrained , and coerced its employees and has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)( I) of the Act.
5. The Respondent Company has not engaged in surveillance as alleged in the
complaint.
6. The Respondent Company did not discharge Milton Teel , Clayton Wykoff,
and A. E. Vaughn in violation of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
8. Respondent Granville M. Alley, Jr., did not engage in unfair labor practices
in violation of the Act.
IRecommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL offer to Robert Booth immediate and full reinstatement to his former
or substantially equivalent position , without prejudice to his seniority or other
rights and privileges , and make him whole for any loss of pay suffered as a
result of the discrimination against him.
WE WILL NOT discourage membership in United Steelworkers of America,
AFL-CIO , or any other labor organization , by discriminating in respect to the
hire and tenure or other conditions of employment of any employee.
WE WILL NOT promulgate or enforce any rule prohibiting employees from
soliciting membership in or circulating literature on behalf of any labor organ-
ization on company property during employees ' nonworking time.
WE WILL NOT interrogate employees about their union activities and the ac-
tivities of other employees and threaten reprisals against employees because of
their union activities , or in any other manner interfere with, restrain , or coerce
our employees in the exercise of the right to self-organization , to form labor
organizations , to join or assist the above-named or any other labor organization,
to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from any and all such activities.
PLANT CITY STEEL CORPORATION,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced , or covered by any other material
Employees may communicate directly with the Board's Regional Office, Ross
Building, 112 East Cass Street , Tampa 2, Florida , Telephone Number , 223-4623,
if they have any question concerning this notice or compliance with its provisions.