Trojan Steel Corp.

National Labor Relations Board - Board Decisions

Jan 14, 1970

180 N.L.R.B. 704 (N.L.R.B. 1970)

704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trojan Steel Corporation and Shopmen 's Local
Union No. 812 of the International Association of
Bridge , Structural and Ornamental Iron Workers,
AFL-CIO. Case l 1-CA-3696
Upon the entire record in this case, and from my
observation of the witnesses and after due consideration of
the briefs filed by the General Counsel and the
Respondent, I make the following:
January 14, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On March 10, 1969, Trial Examiner Bernard J.
Seff issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in any of the unfair labor practices alleged
in the complaint and recommending that the
complaint be dismissed in its entirety, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the General Counsel filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order, the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Trial Examiner: Pursuant to a
charge filed on August 1, 1968, and an amended charge
filed on September 13, 1968, by Shopmen's Local Union
No. 812 of the International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO,
hereinafter referred to as the Union, a complaint issued
on September 18, 1968, alleging that Respondent violated
8(a)(3) and (1) by discriminatorily discharging Charles T.
Hutchinson, Jr., by interrogating an employee about the
Union activities of its employees, and by creating an
impression of surveillance of its employees' Union or
other concerted activities. In its answer Respondent denies
the commission of any unfair labor practices. A hearing
was held before me at Columbia, South Carolina on
October 29, 1968.'
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Trojan Steel Corporation is a South Carolina
corporation engaged in the manufacture of steel products
with a plant located at Columbia, South Carolina which
plant is the only one involved in this proceeding. During
the past 12 months, which period is representative of all
times material herein, Respondent purchased and caused
to be shipped directly to its Columbia, South Carolina,
plant from points outside the State of South Carolina,
goods and materials valued in excess of $50,000. During
the same period of time Respondent produced, sold and
shipped directly from its Columbia, South Carolina, plant,
to points and places outside the State of South Carolina,
finished products of a value in excess of $50,000.
Respondent admits, and it is found, that the Respondent
is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interference , Restraint , and Coercion
1. Alleged interrogation and impression of
surveillance
The complaint alleged that on or about August 15,
1968, Respondent, by two admitted supervisors, Bobby
Cash, a foreman and John Earhart, the shop
superintendent, interrogated its employee, Arthur Davis
about his union activities, sympathies and desires. Also by
the nature of the inquiry Respondent created an
impression of surveillance of its employees' union or other
concerted activity.
The Respondent employs about 120 men at its
Columbia, South Carolina, plant. The operation consists
of two divisions known as Structural Steel and American
Long Spans. It seems clear that Davis was in fact
questioned by Cash and Earhart in Respondent's
fabricating department. In substance the discourse among
these three men went as follows: Earhart asked Davis if he
had been to any beer parties lately. Davis asked what beer
parties Earhart meant to which Earhart replied, "We
know you have been to a beer party." Davis said he had
and then remarked to Cash, "Oh, you should have been
there, you got free beer." Cash asked who was there.
Davis replied he did not know, "You would have seen if
you'd been there yourself." Cash then said "I know who
was there" and then he mentioned the names of two of the
Company's employees, Willie Corbett and John Waynick.
Cash continued by saying that he knew there were
probably 20 or 30 men present at the party. Davis said he
went to the meeting to find out what it was all about and
to hear what was going on. Davis asked how Cash knew
'All dates refer to 1968 unless otherwise stated
180 NLRB No. 107
TROJAN STEEL CORP.
who was at the meeting . Cash did not answer directly but
he remarked that someone told him and that "he (Cash]
knowed who was there." Davis again asked Cash where he
got his information to which Cash replied "he had ways of
finding out things." The record also shows that the beer
party was a union meeting because the Union's General
Organizer, J. W. Rutherford, while not known to Davis
by name, was identified by Davis at the hearing as having
been present at this meeting . Further Davis said that
Rutherford gave a talk about the Union during the course
of the beer party.
The General Counsel contends that the testimony of
Davis establishes interrogation by Respondent's
supervisors concerning a discussion of the employees'
union activities. Coupled with the questioning, the
remarks of Cash to the effect that Respondent knew who
was present at the meeting conveyed the clear impression
to Davis that employee union activities were under
surveillance by Respondent.
Respondent contends that the alleged 8(a)(1) violations
concern a single instance when Cash and Earhart allegedly
interrogated Davis. The date, day, and week are vague
and uncertain. Further, Respondent argues that the Union
organizing compaign encompassed a period of 5 1/2
months, from mid-May until October 29 (the date when
the hearing took place), involves a plant employing
approximately 120 employees and concerns only one
conversation which it is alleged violated Section 8(a)(1) of
the Act. Respondent also points out in its brief that Davis'
entire testimony is devoid of the mention of unions. From
all of the above the Respondent concludes that the
incident is too minimal for consideration and the scarcity
of witnesses as to any violative conduct over the 5 1/2
month course of the Union campaign is proof that
Respondent's supervisory personnel did not interfere in
any way with the Section 7 rights of the employees.
It should be noted that Respondent made no effort to
controvert Davis' testimony by calling either Cash or
Earhart as witnesses to refute it. Respondent's failure to
call them or explain why they were not called creates the
inference that if they had testified their testimony would
have corroborated that given by Davis. I find that the
conversation did in fact take place and that Davis' recital
of what transpired is correct in its essential details . This is
so despite the inability of Davis to remember specifically
the date, or day when the beer party took place.
Respondent also calls attention to the fact that the word
"union" did not come up in the direct testimony of Davis,
and from this omission of a specific word Respondent
seems to argue that what in effect took place was merely
a beer party. The testimony in the record elicited from
Davis the information that Rutherford did give a talk
about the Union and thus the meeting was a union affair
and not a beer party.
The circumstances under which the interrogation of
Davis occurred create a suspicion that the questioning
violated Section 8(a)(I). It occurred during working hours
in the Respondent's fabricating department. It was
conducted by two interrogators who were clearly
supervisors. The Board has stated , inter alia, in
Strucksnes Construction Co., Inc., 165 NLRB No. 102,
which case involved the polling of employees, that:
As we have pointed out, "an employer cannot
discriminate against union adherents without first
ascertaining who they are."
It is clear that Cash, by his questioning , sought to
ascertain who was at the beer party. The purpose of his
705
inquiry was neither explained nor was an assurance given
against retaliation. Moreover, even accepting that only
one incident of interrogation occurred, this fact standing
alone, would not affect a finding of a violation. The courts
have held that even a single question put to a single
employee may be a violation if there is a background of
union hostility and further that the significance of a
particular act of interrogation is to be determined in the
light of the entire record in the case. N L R.B. v.
Lexington Chair Co.. 361 F.2d 283, 290 (C.A. 4).
The record in the instant case does not disclose a
background of hostility to the Union. The alleged 8(a)(1)
violations are based exclusively on the testimony of a
single employee, Davis, who described certain questions
asked of him on a single occasion which took place about
August 15. In an analagous situation, N L.R B v. Ralph
Printing and Lithography Co., 379 F.2d 687 (C.A. 8), the
Court held:
Accepting Angus' version of the situation, on a single
occasion, one of the Respondent's supervisors, Higgins,
inquired of Angus' union activities, and asked him to
report to the Company on the union activities of his
co-workers. An employer's interrogation of its
employees, however, is not unlawful per se, unless
conducted with such anti-union animus as to be
coercive in nature Higgins' interrogation of Angus, not
in itself threatening or coercive, would not violate
8(a)(1) unless it was conducted against a background of
employer hostility and discrimination towards
unionization such as would induce in its employees a
fear of reprisal for lawfully pursuing their union
activities. . . . The circumstances surrounding Higgins'
interrogation negative any inference of coercion. The
questioning of Angus was not part of an employer plan
of systematic intimidation of its employees but, at best,
was isolated and casual in nature. The questioning,
moreover, was totally devoid of any coercive statements
which are usually characteristic of an unlawful
interrogation... .
The single instance of the interrogation of Davis was
innocuous, devoid of company hostility or animus, was
not coercive and was not conducted in such a threatening
manner as would induce in Respondent's employees a fear
of reprisal for lawfully pursuing their union activities.
Accordingly, I recommend that the complaint be
dismissed with respect to the allegations of unlawful
interrogation.
In support of the allegation in the complaint that
Respondent created an impression of surveillance the
General Counsel points to the following information: Cash
asked Davis who was at the meeting, indicated he knew
there were 20-30 people present and he knew who was
there. The interrogation took place about 2 days after the
meeting and the names of employees Willie Corbett and
John Waynick were mentioned by Cash. The record is
imprecise as to the number of individuals who were
present in the beer place and is equally barren of
information as to whether these persons in this public
place were Respondent's employees. The General Counsel
asked Davis if Cash made any comment about it being his
business to find out who was at the meeting. Davis
replied, ". . . he didn't say that actually it was his business
to find out who was at the meeting; he said he 'knowed'
who was there." It appears clear that Respondent' s agents
did not intimate that the source of their knowledge was
derived from surveillance nor is there credible evidence
that the Respondent created an impression of surveillance
from saying what was told to Davis. Cash might more
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasonably have secured his information from other
employees like Corbett or Waynick. Accordingly, the
mere indication by Respondent of knowledge that the
employees had a union meeting at a beer joint is
insufficient to establish that Respondent created an
impression of surveillance to its employees and it will
therefore be recommended that this allegation of the
complaint (paragraph 6C) be dismissed. See Woodruff
Electric Cooperative Corporation, 174 NLRB No. 84.
B. The Discharge of Charles Hutchinson
Hutchinson began to work for Respondent on
November 5, 1966, as a welder in the Long Span division
under the supervision of Charlie Hall, who was the
foreman of that department at that time. He was
discharged on July 5, 1968. Hall said that Hutchinson was
a good welder.
It is not disputed that a union organizational campaign
began in mid-May and continued for approximately 5 1/2
months. Sometime during the first week in June, the date
being uncertain, Hutchinson was taken off the welding line
and told to level off a pile of dirt. He performed this task
and during the course of the day he also wheeled out of
the plant and handled certain 100 gallon drums loaded
with trash. He complained that the day was hot and the
work heavy and he was assisted in handling this
assignment by another employee , also a welder, named
Virginius Johnson. At the end of this day's work,
Hutchinson says he asked Hall if he was given this task
because he [Hutchinson] was working for the Union. Hall
allegedly replied, "No, its ain't nothing like that." On the
next day, Hutchinson was asked to help with taking
inventory. This work involved stacking and counting
welding rings and cleaning up in the area . Hutchinson was
assisted in this task by an employee named Hooks. Once
again, at the end of this assignment, Hutchinson allegedly
asked Roy Carns, Respondent's production manager, if he
was being picked on because he was working with the
Union to which Carns allegedly answered, "No."
Supervisor Hall testified in answer to Respondent's
question whether the word union had come up in his
conversation with Hutchinson that it was not mentioned.
Carns did not testify. The General Counsel sought to
show that levelling dirt, carrying out large drums of trash
and taking inventory was not the work usually performed
by Hutchinson. A welder earns $1.85 per hour and
clean-up duties could have been performed by laborers
who earn $1.60 per hour. Similarly, the taking of
inventory was also not usually part of the duties of
welders The record, however, shows that Hutchinson was
assisted in clean-up work by another welder , Virginius
Johnson . It was Respondent 's practice to assign whatever
tasks needed to be done to any available employee and the
employees are required to do whatever work is necessary
regardless of what work they usually performed. On
cross-examination , Hutchinson admitted that he helped
with inventory duties at least once before during the
course of his employment. As the testimony came out it
appeared that Hutchinson's question , put to both Hall and
Carns - were onerous tasks being imposed on him
becuase he was trying to bring the Union in - were
rather pat , self-serving declarations. They seemed
contrived and designed to establish knowledge by the
Respondent of Hutchinson ' s union activities . This is
especially so when viewed against an earlier statement
made by Hutchinson that although he claimed to have
signed up approximately 45 of Respondent ' s employees in
the union during break time and outside of the plant no
company supervisor saw him engage in these activities. It
is more likely that if he did sign up 45 employees out of a
complement of 120 men he was seen by some
representatives of management Having made this
statement there was a gap in his case concerning
Respondent's knowledge and, viewing the evidence on this
point in its totality, I question whether Hutchinson did
make these remarks. Assuming, arguendo that they were
made and Respondent knew of Hutchinson's activities the
essential elements of a discriminatory discharge need
further evaluation.
About 9 a.m. on Monday, July 1, Hutchinson felt dizzy
and asked his supervisor, Hall, for permission to leave the
plant to see his doctor. He had been bothered with a high
blood pressure problem for some time and had been
absent on two previous occasions, once in 1967 and again
early in 1968. On these occasions either Hutchinson or his
wife contacted the plant to notify Respondent of his
absence. It is not disputed that Hall gave him permission
to leave the plant. He remained away from work Tuesday,
July 2, Wednesday, July 3 and did not call in to report his
absence. Thursday, July 4 was a holiday and Hutchinson
came back to work on Friday, July 5. He saw Hall upon
his return who told him that he had been discharged for
failure to call in to report his absence. The record
contains an exhibit which sets forth the reason for his
discharge as follows: "Ask off the morning of July 1,
1968, said he felt dizzy, has not returned to work or called
in to date July 5, 1968."
Respondent and General Counsel entered into a
stipulation at the hearing that there was a rule concerning
absence from work as follows.
Absence from work and Reporting Absences.
If for any reason you cannot be at work, it is
requested that you notify your supervisor of your
absence and your reason before 10 a.m. the day on
which you are absent. If this is not adhered to, you will
be subject to discharge. Pursuant to this rule
throughout the year 1968 a substantial number of
employees former employees of Trojan Steel
Corporation have been separated from the company for
violation of that stated rule.
Hutchinson testified that he knew about Respondent's
rule concerning reporting absence and on those days when
he was absent in the past he complied with it. The
General Counsel on direct examination asked Hutchinson
why he did not call in on 2 days in succession. Hutchinson
answered as follows:
Well, since he [Hall] knew I had high blood pressure
and that I - the previous times I had been out for this,
I went under the assumption that he would understand;
so, therefore, I didn't bother to call in. I did not bother
to call in. I said, well, I'll come in on Friday and let
them know when I'd be back at work.
The General Counsel adduced testimony from two
employees, Sylvester Jefferson and Willie Corbett on the
matter of calling in to notify Respondent of absence from
work. Jefferson testified without refutation and without
being cross-examined that he had been absent about 50
times and called in about half of the times he had been
away. Respondent did not take any disciplinary action
against him . Similarly, Corbett testified that he knew the
company rule about calling in when absent and that the
failure to call in would subject the employee to discharge.
On a number of occasions when he was absent he
sometimes did call in and sometimes he neglected to do
TROJAN STEEL CORP.
so. Thus, two witnesses testified that the rule was not
mechanistically applied. However, it is to be noted that
the General Counsel and Respondent stipulated at the
hearing as to the substance of the rule and the fact that in
1968 a substantial number of employees had been
discharged for violating it. The requirement about
notifying the Respondent concerning absence was well
known to the employees.
Hutchinson testified that at the time he was discharged
he was asked to sign an Employee Release Form on which
the reason for discharge allegedly was stated to be that he
left his work station without permission. He refused to
sign the form since he had received permission from Hall
to leave the plant. He further testified that when he
discussed his discharge with Respondent's production
manager, Carns, he was told that he had left his work
station without permission. When Hutchinson received his
last paycheck one of Respondent's secretaries asked him
to sign an Employee Release Form and this one gave as
the reason for his discharge that he failed to call in to
report his absence. He again refused to sign the form.
Carns was not called as a witness to testify for the
Respondent.
The General Counsel argues that the testimony of
Hutchinson establishes that the Respondent prepared two
employee release forms which stated different reasons on
each form as the basis for his discharge. Hall testified that
only one form was prepared by the Respondent; that one
was written by Hall in his own handwriting, is included in
the record as an exhibit and stated that the reason for the
discharge was due to failure to call in to report his
[Hutchinson's] absence. I credit Hall's testimony. It does
not seem reasonable to believe that Respondent would
falsify its records when Hutchinson admittedly failed to
call in to report his absence and this failure to call in is a
clear violation of a company rule which exposed him to
discharge. In order to accept as true the version of this
incident described by Hutchinson it is necessary to accept
his credibility as being beyond question. As will be seen
below certain other testimony of Hutchinson casts serious
doubts on his credibility.
During the course of his testimony on direct
examination, Hutchinson maintained with consistency that
whenever he was absent he called or had his wife call the
plant to report his absence. He reiterated this fact and
remained unshaken on this point during
cross-examination. He completed his testimony and was
excused as a witness. At this point in the hearing a recess
was declared. After a brief recess the parties returned to
the hearing room. General Counsel asked permission to
put Hutchinson back on the stand to answer one
additional question. Respondent objected to recalling the
witness on ground that he had completed his testimony
and was seen engaged in conversation with the General
Counsel during the recess . The Trial Examiner permitted
him to be recalled. He was asked if every single day he
had been out he had called the plant. The witness stated
he answered "Yes" to that question in his previous
testimony. At this point he said he wanted to change his
answer and wished to retract this statement. Hutchinson
thereupon reversed his previous testimony, changed his
answer to "No" and explained his change by saying he
did not fully understand the question. He was not fully
aware of what was asked and answered before he gave the
matter sufficient thought.
Thus, Hutchinson reversed his prior testimony in the
face of a simple question dealing with one of the cardinal
matters in this case. The question of the validity of
707
Respondent's reason for discharging him is weighed in
significant part on whether or not he always called in to
report his absence. By totally reversing his answer
Hutchinson seriously damaged his credibility as a witness.
Concluding Findings
The evidence did not establish that Respondent was
harassing Hutchinson or that it sought deliberately to
subject him to doing heavy work which it knew would
prove intolerable. Nor does the record show that
Respondent singled out Hutchinson to do other than
welding work. It was not refuted that the Company had a
practice of assigning work to whatever men were available
to perform duties requested of them regardless of what
work they usually performed. Hutchinson was assisted in
clean-up tasks by Johnson who was also a welder.
Inventory work had been previously done by Hutchinson
on at least one prior occasion and he was helped in this
task by employee Hooks on the day in question.
The evidence was inconclusive that Respondent knew
Hutchinson was engaged in union activities. I do not
credit his self-serving statements made to supervisors Hall
and Carns. Hutchinson's credibility was seriously
damaged when he reversed himself on the crucial issue as
to whether he always called in to report absences as
explained, supra, under point A. of the instant decision.
The fact that a substantial number of Respondent's
employees were discharged in 1968 for failure to comply
with Respondent's well known rule about reporting
absences was established by the stipulation of the General
Counsel and the Respondent entered into during the
course of the hearing. It is not disputed that Hutchinson
failed to call in on two successive work days. If he was
too sick to call in , and there is no such evidence in the
record, then his wife could have called as he testified she
had done in the past. It is not within the province of the
Trial Examiner to pass judgment as to whether discharge
was a harsh penalty to impose on Hutchinson under the
facts and circumstances of this case. Suffice it to say that
a substantial number of Respondent's employees had been
discharged in 1968 for the same reason upon which
Hutchinson's discharge was based.
Special attention is called to the fact that in the course
of a 5 1/2 month union campaign involving a plant with a
work force of approximately 120 employees a solitary
incident of independent 8(a)(1) activity allegedly took
place. Even the interrogation which occurred is devoid of
a suggestion of a threat or coercion directed against
Respondent's employees. This most unusual fact has been
accorded significant weight in reaching the conclusion that
Hutchinson was not discharged because of his union or
concerted activities.
CONCLUSIONS OF LAW
On the basis of the foregoing findings of fact, and upon
the entire record in this case, I make the following
conclusions of law:
1. Trojan Steel Corporation is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Shopmen's Local Union No. 812 of the International
Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The allegations of the complaint that Trojan Steel RECOMMENDED ORDER
Corporation, has engaged in unfair labor practices within
the meaning of Section 8(a)(I) and (3) of the Act have not It is recommended that the complaint be dismissed in
been sustained . its entirety