Kline Iron & Steel Co.

National Labor Relations Board - Board Decisions

Sep 17, 1969

178 N.L.R.B. 465 (N.L.R.B. 1969)

KLINE IRON & STEEL COMPANY
Kline Iron & Steel Company and Shopmen 's Local
Union No. 812 of the International Association of
Bridge Structural and Ornamental Iron Workers,
AFL-CIO. Case 11-CA-3702
September 17, 1969
DECISION AND ORDER
By CHAIRMAN MCCL LLOCH AND MEMBERS
FANNING AND JENKINS
On May 2, 1969. Trial Examiner Myron S. Waks
issued his Decision in the above-entitled matter,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner further found that Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint, and recommended that
such allegations be dismissed. Thereafter, the
General Counsel filed exceptions and a supporting
brief, and Respondent filed cross-exceptions 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 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 Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, only to the extent consistent with
the Decision herein.
We find, in agreement with the Trial Examiner,
that Respondent violated Section 8(a)(1) of the Act
by interrogating its employees concerning their
union activities, threatening employees with reprisals
for supporting the Union. threatening to challenge
the vote of each employee in any Board-conducted
election in order to determine how he voted, and
threatening to abolish overtime if the Union was
certified as the bargaining representative of the
employees. We find no merit, however, in the
General Counsel's exceptions to the Trial
Examiner's failure to find 8(a)( 1) violations based
upon (1) Superintendent Claude Corley's statement
to a group of employees that he did not [see] how
the Union would benefit employee Bishop Russell
because he would not be back in Respondent's
employ "unless he might get some back pay," and
(2) Corley's statement to employee David Ludlum
that it had been learned that Russell was riding
around with a union organizer. We consider
Corley's latter statement, however, as evidence
465
tending to shed light on Respondent's motivation in
subsequently discharging Russell, and both
statements as additional evidence of its knowledge
of Russell's support of the Union.
For the reasons stated below, we find merit in the
General Counsel's exception to the Trial Examiner's
failure to find that Bishop Russell's union activities
were a significant factor in Respondent's decision to
discharge him on July 23, 1968, and that
Respondent therefore discriminated against him in
violation of Section 8(a)(3) and (1) of the Act.
Russell first was employed by Respondent in
1936. With two interruptions he worked a total of
20 years. His last continuous period of employment
was 10 years. There is no contention that he was not
an efficient worker. On Saturday. February 18,
1968, Russell suffered a shotgun wound at his home,
as a result of which he was hospitalized for 55 days
and spent the following 3 months cony alescing.
During the last 6 weeks of this period he joined the
Union and rode around with Rutherford, the Union
organizer, signing up employees at their homes.
Russell's union activities shortly came to
Respondent's attention. As the Trial Examiner
found, about the middle of June, Plant
Superintendent Corley stated to a group of
employees that it had been found out that Russell
was `"riding around with the union man." About the
same time, Corley made known Respondent's
unequivocal hostility to the Union by stating to
employee Robert Hartley that Bernard Kline,
Respondent's president, would fire him if he had
anything to do with the Union, accused Eugene
Hartley of "visiting with the Union man;" and told
employee Tony Whittle that he had heard that he
was trying to sign up employees, warning him that
he, Corley, had laid off men in the past and could
lay off others and that if he laid off Whittle he
would not get another job in Columbia.
On July 3, Russell returned to the plant to get his
vacation money and spoke to Plant Manager
Hendrix about returning to work. Since the plant
was closed for inventory until July 15, Hendrix told
him to come back at that time. When Russell came
back on July 15, Hendrix expressed a belief that
Russell might still be too weak to resume his former
work, but told Russell to return later. Russell did so
on July 17 or 18, and on this occasion Hendrix told
him that if he obtained a statement from his doctor
certifying as to his physical fitness, he would be
reinstated. Russell procured from his doctor a
certificate, dated July 22, stating that he had
completely recovered from surgery and was fit to
resume work. When he reported to the plant the
following day, dressed for work, he found that
Hendrix had died suddenly on July 20. Russell
presented the doctor's certificate to Corley, who,
upon Hendrix's death, became Respondent's
principal production supervisor, and asked to be put
to work. Corley made no response other than to tell
him that Respondent would call him at a later time.
178 NLRBNo.73
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent has never done so and made it clear at
the hearing that it had no intention of doing so.
At the hearing. Respondent took the position that
Russell's self-inflicted gunshot wound was, as the
police report stated, an attempt at suicide. Corley
testified that Hendrix had told him shortly before
his death that he had decided not to take Russell
hack because he might be a "hindrance" to himself
and other employees.' He did not, however, advance
an independent reason of his own for not reinstating
Russell. So. too, President Kline failed to advance
any reason for refusing to rehire Russell, other than
to say that Hendrix had told him before the plant
closed for inventory on July 2, and possibly as far
back as the previous May or June. that he believed
he would not take Russell back because "we don't
want anyone like that in the plant, anyone who
would do a thing like that," and that he, Kline, had
agreed. In short, both Superintendent Corley and
President Kline, purporting to quote the dead
Hendrix, laid the responsibility on him for the
discharge of Russell, thus avoiding it for themselves.
Corley. in effect, took the position that what
Hendrix had bound Corley could not loose.
The Trial Examiner, when discussing the several
threats made by Corley to discharge employees who
solicited for the Union, as well as numerous other
acts of coercive conduct in which he found Corley
engaged, consistently resolved conflicts of testimony
against him, finding him "less than candid in his
testimony which bears directly on the issues of this
case." and "in some instances so improbable ... as
to demonstrate his lack of candor generally." lie
did credit, however, Corley's testimony that Hendrix
told him that he was not going to reinstate Russell.
since he considered the testimony of President Kline
and William Albert tended to support Corley in this
respect. He credited Kline's testimony as to
Hendrix's statement concerning Russell. adverted to
above. though he found Kline's testimony to he
vague and uncertain as to other details of the
Russell incident, such as to how it first came to his
attention and whether either Hendrix or Corley had
investigated the circumstances surrounding it and
reported them to him. Albert, who at the time of
the hearing was Respondent's Assistant Manager of
Operations, testified that Ilendrix told him while
having dinner at his home about a week or two
before he died that "it was not desirable to hire Mr.
Russell back because he would probably be a
menace to himself and also probably to his fellow
employees because of his condition." Albert was not
in Respondent's employ at the time he stated this
conversation occurred.2
'Although Corley was vague and uncertain in his testimony on direct
examination as to the date when he said Hendrix first advised him of his
"decision" not to take Russell back , on cross-examination he definitely
fixed the date as not long before Hendrix died and some time after Russell
had visited the plant on July 15 following the vacation period
'Albert had left Respondents employ on April 3. 1968, and did not
return until July 29, 1968
The testimony of Corley, Kline, and Albert is at
odds with that' of Russell, credited by the Trial
Examiner, that Hendrix informed him on July 17 or
18 that he would be put back on his job upon
presentation of a doctor.'s certificate that he was
able to work. We find it difficult to believe that if a
firm and final company decision had earlier been
made by Hendrix and approved by Kline not to
reinstate Russell for the reason now assigned,
Hendrix would have made this commitment to
Russell. Russell's testimony, of course, must be
carefully scrutinized because he is reporting the
statements of a dead man. But in the circumstances
so must that of Corley, Kline, and Albert.
Significantly, Russell's testimony alone finds
corroboration in independent evidence of
unquestionable reliability. Thus, in response to a
questionnaire relating to Russell. sent Respondent by
the Diamond State Life Insurance Co.. dated July
16, and concededly filled out by Hendrix and signed
by him in his own handwriting. Hendrix in answer
to a question as to whether Russell would resume
work with Respondent, wrote "presumably yes." In
our opinion, the Trial Examiner in resolving the
credibility issues gave insufficient weight to this
documentary evidence which is not only consistent
with the credited testimony of Russell, but serves to
refute that of Respondent's witnesses.'
However, even if we thought credible the
testimony of Kline and Albert that Hendrix made
the statements they attributed to him, the only way
this testimony can be reconciled with Russell's
credited testimony that Ilendrix promised to return
him to work if he obtained a doctor's certificate
would be on this hypothesis: that Hendrix. although
he had theretofore been disposed not to restore
Russell to his job, had by July 16 changed his mind.
But such a hypothesis does not also allow credence
of Corley's testimony that Hendrix told him he had
decided not to reinstate Russell because of the
gunshot incident. As noted above, Corley testified
that he was so told, and for the first time, sometime
alter July' 15. Corley's testimony cannot reasonably
be squared with f lend fix's substantially
contemporaneous statement to the opposite effect on
the insurance form, let alone with Hendrix's credited
statement to Russell at about the same time that he
would be returned to work if certified by a doctor as
physically fit. For these reasons, and in light of
Corlcy's general unreliability as a witness, we
cannot accept his testimony that Hendrix told him
he had decided not to reinstate Russell. Nor is there
anything in the record to indicate that Corley was
'Unlike the Trial Examiner, we do not find the force of Hendrix's
response in the insurance questionnaire to be minimized by the inclusion of
the qualifying word. "presumably " This response in our view must be
considered in conjunction with Hendrix ' s statement to Russell on the
following day or the day after , that Respondent would return him to work
on presentation of a doctor 's certificate when these statements are
construed together , it appears that the condition of Russell's rehiring was
simply his furnishing such a certificate , a usual, even essential prcr i quisite
after a long illness
KLINE IRON & STEEL COMPANY 467
apprised of such a decision from any other source.
No such decision was entered in Russell's personnel
file or other company record. Nor does it appear
that Kline ever communicated such a decision to
Corley. either before or after Hendrix's death.
For the reasons indicated above, we are convinced
that the credible evidence does not support the Trial
Examiner's implicit finding that Hendrix prior to his
death had already made a final decision not to
reinstate Russell, and that Corley in effect acted
merely in a ministerial role when, on July 23, he
refused, without any reason given, to allow Russell
to return to work. Obviously, if. as we believe, the
record establishes that prior to Russell's July 23
visit to the plant, no conclusive decision had yet
been made, someone besides the deceased Hendrix
must have been responsible for the refusal to
reinstate Russell on July 23 and thereafter. In the
absence of evidence to the contrary-and Respondent
adduced none - it can only be inferred that the
responsibility lay with Corley, on whom Russell
called, and who, following Hendrix's death, was in
charge of plant operation'.
There can be little question that, as Hendrix's
successor, Corley, on July 23, had authority to
reinstate Russell without reference to any earlier
decision, tentative or final, by Hendrix ' It is
understandable that Corley, as Hendrix's successor.
might reach a different conclusion from Hendrix on
a matter of company policy. But if his difference
with Hendrix had a legitimate basis, there was no
reason for Corley not to disclose it or assume
responsibility for it. We regard it as significant,
therefore, that Corley refused to give Russell, any
reason for denying him the reinstatement Hendrix
had promised. Similarly, Corley at the hearing
advanced no reason of his own for the action he
took, even to the extent of stating that he acted for
the reason he attributed to Hendrix. By way of
explanation he did no more than advert to the
alleged earlier conversation which he stated he had
with Hendrix. But his testimony in that regard, as
we have found above, does not withstand the test of
close scrutiny and cannot be credited.
In these circumstances, we, unlike the Trial
Examiner, are unable to view the evidence adduced
by Respondent in support of its defense as of
sufficient probative force to overcome the strong
prima facie case made out by the General Counsel.
The Trial Examiner's findings reflect that Coriey
had a deep aversion to union organisation. He was
the principal actor on behalf of Respondent in the
campaign to defeat the union, engaging in numerous
'Although the Trial Examiner refused to find that , after Hendrix s death,
"responsibility for Russell ' s case devolved upon Curley' we find he was in
error in that respect . The reason given by the frial Examiner was that
"there is no evidence that , following the death of Hendrix. Corley was
given expanded duties at the plant and , if so that they included the
dc,cisions as to Russell " The, Trial Examiner , however, overlooked
Corlev s own testimony on cross-examination when asked what his
authority was upon the death of Hendrix, Corley's reply was that it was
over all departments "The whole plane I run the whole place "
acts of coercive conduct, which included, inter alia,
threats of discharge to employees who, like Russell,
were active in organizing for the Union. He knew
that Russell had been engaged in riding around with
the union organizer soliciting union membership,
and had mentioned this to other employees, and on
one occasion had stated that he didn't see how the
union would do Russell any good as Russell would
not be back "unless he got back pay." Bearing
particularly in mind that Hendrix had agreed to
restore Russell to his job upon presentation of a
doctor's certificate, that Corley gave no reason at all
to Russell for not doing so, and that at the hearing
he also refrained from giving his own reason for the
action, though he was responsible for it, but instead
attributed to the deceased Hendrix a final discharge
decision he had not made, we can only infer that
Corley was motivated at least partly by his
antagonism to Russell's union activities in rejecting,
on July 23, 1968, and thereafter, Russell's request to
return to work, thereby in effect discharging him.
Accordingly we conclude, and find, that by refusing
to reinstate Russell to his lob on and after July 23,
1968. Respondent discriminated against him in
violation of Section 8(a)(3) and (l) of the Act.
THE REMEDY
In accordance with above finding, we shall order
that Respondent offer Bishop Russell immediate and
lull 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 earnings he may have
suffered by reason of the discrimination against him,
by payment to him of a sum equal to that which he
normally would have earned from July 23, 1968. the
date of his discharge, to the date of the
Respondent's offer of reinstatement, less his net
earnings during such period. The backpay provided
herein shall be computed on the basis of calendar
quarters, in accordance with the method prescribed
in F W woolxorth Company. 90 NLRB 289
Interest at the rate of 6 percent per annum shall be
added to such net backpay and shall be computed in
the manner set forth in Isis Plumbing & Heating
C'o , 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act. as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and orders that Respondent, Kline
Iron & Steel Company its officers, agents,
successors, and assigns. shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified:
1. Change subparagraph (f) of paragraph 1 of the
Trial Examiner's Recommended Order to
468 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
subparagraph (g) and insert as subparagraph (f) the
following language.
"(f) Discharging or otherwise discriminating
against Bishop Russell , or any other employee,
because of his interest or sympathies in, or activities
on behalf of, Shopmen ' s Local Union No. 812, of
the International Association of Bridge, Structural
and Ornamental Iron Workers , AFL-CIO, or any
other labor organization."
2. Change subparagraph ', (a) and (b) of paragraph
2 of the Trial Examiner ' s Recommended Order to
subparagraphs (c) and (d), respectively , and insert as
subparagraphs (a) and (b) the following language.
"(a) Offer to Bishop Russell immediate and full
reinstatement to his former or substantially
equivalent position , without prejudice to his
seniority or other rights and privileges previously
enjoyed , and make him whole for any loss of
earnings he may have suffered as a result of the
discrimination against him in the manner set forth
in the Remedy provision of this Decision and Order.
"(b) Notify Bishop Russell 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 and the Universal
Military Training and Service Act, as amended,
after his discharge from the Armed Forces."
3. Insert as the third and fourth indented
paragraphs in the Appendix attached to the Trial
Examiner ' s Recommended Order the following two
indented paragraphs:
WE WILL NOT discharge or otherwise
discriminate against Bishop Russell or any other
employee, because of his interests or sympathies
in. or activities on behalf of. Shopmen 's Local
Union No. 812, of the International Association
of Bridge Structural and Ornamental Iron
Workers, AFL-CIO, or any other labor
organization.
WE WILL offer Bishop J2ussel1 immediate and
full reinstatement to his former or substantially
equivalent job, without prejudice to his seniority
or other rights and privileges he previously
enjoyed , and WEwILLmake Bishop Russell whole
for the discrimination against him by payment to
him of any loss of earnings he may have suffered,
with interest thereon at 6 percent per annum.
WE WILL notify the above-named employee 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 and the Univer sal Military Training
and Service Act, as amended , after his discharge
from the Armed Forces.
TRIAL EXAMINER'S DECISION
STATE64I.NT OF THE CASE
MYRON S. WAKS, Trial Examiner- This case, tried at
Columbia, South Carolina, on September 19 and 20,' and
November 13 and 14, pursuant to a charge filed on
August 9, and a complaint issued August 30. presents the
question whether Respondent by various acts violated
Section 8(a)(1) of the National Labor Relations Act, as
amended, and whether Respondent's refusal to employ
Bishop L. Russell following an absence due to illness
resulting from a gunshot wound was because of Russell's
union activities and therefore in violation of Section
8(a)(I) and (3) of the Act.
Respondent's motions, renewed before the close of the
hearing and upon which I reserved ruling, to dismiss the
case in its entirety and/or to dismiss the allegation of the
complaint in paragraph 7(a) and (c) as pertains to Bernard
Kline and Paul Byers, as well as paragraph 7(a) as it
pertains to alleged unlawful conduct of Claude Metz on
May 4, are disposed of in accordance with the findings
and conclusions set forth in the decision.
Upon the entire record in the case including my
observation of the witnesses, and after due consideration
of the briefs filed by General Counsel and the
Respondent, I make the following.
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The pleadings establish and I find that the Respondent,
which is engaged in the manufacture of structural steel
products at its plant in Columbia, South Carolina, during
the 12 months preceding the issuance of complaint
received at its Columbia plant raw materials valued in
excess of $50,000 from places outside the State of South
Carolina, and during the same period shipped from its
Columbia plant finished products valued in excess of
S50,000 to places outside the State of South Carolina.
Upon these admitted facts, I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
IL THE LABOR ORGANIZATION INVOLVED
The pleadings further establish and I find that
Shopmen's Local Union No. 812 of the International
Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO , the Charging Party herein , is a labor
organization within the meanmg of Section 2(5) of the
Act.
iii. TILE UNFAIR LABOR PRACTICLS
A. Interference. Restraint , and Coercion
1. The facts
Beginning in April the Union embarked on an
organizational campaign among the employees of
Respondent. This became known to the Company at least
as early as the first of May. Immediately thereafter,
according to the allegations of the complaint, the
Company engaged in unlawful conduct aimed at
discouraging the employees' union organizational activity
by threats of discharge, interrogation. creating the
impression of surveillance, threats to challenge every voter
in any Board election to determine hove' the employees
voted, and threats to abolish overtime if the employees
selected the Union as their collective-bargaining agent.
These allegations were denied by the Company and the
'Unless otherwise indicated all dates herein occurred in [968
KLINE IRON & STEEL COMPANY
resolution of the issues presented turns substantially on
the credibility to be afforded those witnesses offered by
the General Counsel in support of these allegations as
against those witnesses offered by the Company in support
of its denial. The alleged unlawful conduct testified to by
witnesses for the General Counsel concerns substantially
the activities of Claude Corley, superintendent of the new
plant, and Claude Metz and Wyman Shealy, who are
foremen in the fabricating department at the new plant.'
a. The alleged unlawful conduct of Claude Corley'
The employees who testified concerning the unlawful
conduct of Superintendent Corley are employed at the
new plant and work under his general supervision.
David Ludlam is employed by the Company as a
multiple bean punch operator. Ludlam testified that on
May 3, Superintendent Corley took him off the job to
speak with him, and that the following discussion ensued.
Corley stated to Ludlam that "he understood that
[Ludlam] was in favor of the union." When Ludlam asked
Corley whether Corley thought a union would help him,
Corley replied that if the Union came in and it was 100
percent then it would be good for the Company, but if
not, it would not be good. Corley then told Ludlam that
`he heard that several different people had stated that
they had heard [Ludlam] was in favor of the union "
Corley mentioned the names of Frank Linder and one of
the Hartlevs and said he had seen Ludlam talking to them
and "he knew how they were. And how they felt about the
union."
On the same date, May 3, according to employee
Robert Hartley, who works in the fabricating department,
Corley stated to hint that Bernard Kline (the Company's
president) "will fire you if you have anything to do with
the union," and that Foreman Carl Metz who was present
had agreed with Corley's statement. According to Robert
Hartley's testimony, Eugene Hartley and Tony Whittle,
also employees at the new plant, were present at the time
of this conversation.'
Further acts of Corley were testified to by employee
Linder who works as a layout man under the supervision
'Counsel for the General Counsel sought to establish the allegations in
the complaint in par 7(a) and (c) as pertains to Bernard Kline and Paul
Byers, as well as par 7 (a) as it pertains to alleged unlawful conduct of
Claude Metz on May 4 through the testimony of employee Clarence
Larrimore Larrimore , who in a pretrial affidavit had attested to various
acts of unlawful conduct by Kline and Byers . as well as a threat of
discharge by Claude Metz on May 4 , substantially repudiated the faun set
forth in his affidavit. While in one instance Larrimore testified he
"believed" Byers told him on May 4 and thereafter that if he liked his job
he had better not associate with the Union , he later indicated that by his
use of the word "believe ," he meant that he thought it was a fact but he
could not be "definite"; Byers unequivocally denied making any such
statement I note too that Lattimore s testimony was contradictory,
evasive. and at times ambiguous . According to Larrimore he had received
telephone calls from unknown persons during which he and his family were
threatened with harm if he did not cooperate with the Union These calls
occurred prior to the date on which he gave his affidavit to the Board
agent and Larrimore testified that he had lied to the Board agent and
could not be sure that what he told the Board agent was true Larrimore
also testified that prior to testifying he had received an anonymous
telephone call threatening him with the loss of his job and the repossession
of all his things that could be repossessed It was obvious that Larrimore
was under great strain when he testified . In view of the foregoing I cannot
regard as credible any of the facts attested to by Larrimore. In the
circumstances I conclude that General Counsel has failed to adduce
credible evidence to support any of these allegations of the complaint
'Eugene Hartley testified as to the threat of discharge made by Metz on
May 3; Whittle while called as a witness did not testify as to this incident
469
of Foreman Metz Linder testified that on May 15, he was
called to the plant office. Linder further testified that
when he arrived at the office, which was located in a
trailer outside of the plant, John Hendrix, plant manager,
and Superintendent Corley were there, and that the
following conversation occurred. Hendrix inquired,
"Frank, what do you know about the union?" Linder
replied. "I don't know a thing in the world about the
union." They continued to talk and Corley said, "Frank, 1
heard that you have been running around getting union
cards signed." According to Linder he replied, "I don't
know who told you that." Hendrix and Corley had then
inquired of Linder "what would (he] accomplish by the
union," and Linder replied, "I don't know a thing about
no union, and 1 have never belonged to a union in my
life." They then asked what Linder thought the crowd out
in the shop felt about the Union. Linder replied that he
did not know, that from what he had heard on some days
it seemed about 90 percent were for the Union and other
days only 30 percent.
On May 22, according to employee Tony Whittle, who
also works in the fabricating department under Foreman
Metz, he was called to the office by Metz; when he
arrived at the office both Metz and Superintendent Corley
were present Whittle testified that thereafter the following
occurred As Whittle entered the office Corley started to
question him about his union activities, and Metz got up
and left. Corley asked Whittle "what do you think about
the union" and Whittle replied that he "hadn't thought
too much about it around here." Corley then stated "I
heard that you had been trying to get employees to sign
union cards." Whittle replied, "1 have not. Have not ever
asked anyone to sign union cards. I have asked them what
they thought about the union, but that is all." According
to Whittle, Corley then stated, "I have laid some men off
in the past, and I can lay some more off, and ... if I was
to lay you off, you would not get another job in
Columbia, couldn't get another job in Columbia."
According to Whittle he then stated to Corley that "I
have been wanting to ask [you] about a raise" but since
Corley had questioned him about his (Whittle' s) union
activities Whittle stated to Corley "1 don' t guess I will get
one." Corley replied, "as long as the union was going on
no one was going to get an increase in pay."
On May 24, according to employee Eugene Hartley,
who during the time relevant to this proceeding worked as
a welder in the fabricating department under Foreman
Metz, he spoke to Superintendent Corley about time off
to attend a funeral. Eugene Hartley further testified that
he generally worked from 7 a.m. to 5:30 p.m.; that on
May 24 he left the plant at 3 p.m. to attend the funeral
and returned therelrom between 5.30 and 6 p.m . that in
the evening he met Rutherford, the union organizer, and
went to Saint Matthews to see about getting some union
cards signed. The next day, according to Hartley.
Superintendent Corley asked him if he had gone to the
funeral, and, when he replied that he had, Corley stated
that Hartley had not gone to the funeral but that Hartley
had been "visiting with the union man." Hartley further
testified that Corley then stated that "he didn't mind
letting people off, but he didn't want people telling him
lies about getting off. And going to St. Matthews with a
union man."'
'Tony Whittle testified that he had overheard part of a conversation
between Eugene Hartley and Corley similar to that described by Eugene
Hartley, Whittle placed the date as July 25 According to Whittle, Corley
stated to Eugene Hartley "I don't mind letting a man get off, but I don't
like him telling me a lie.`'
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the middle of June, according to employee James W
Hall, Jr., who is a welder in the tower department under
the supervision of Wade Higgins, he overheard a
conversation in which Superintendent Corley made
reference to Bishop Russell, the alleged discriminatee in
this case. According to Hall when he was leaving the plant
at the close of work one day he overheard a conversation
near the timecloek in which Corley stated that he (Corley)
"did not see where the union would do Bishop any good
because he wouldn't be back unless he might get some
back pay." According to Hall there were 15 to 20 other
employees present who were walking quietly towards the
timecloek when he overheard Corley who was 6 or 8 feet
from the timecloek. Also early One morning in mid-June,
according to employee David Ludlam, he approached a
drink machine where a group of people were talking, and,
when Ludlam inquired what they were discussing.
Superintendent Corley, who was present in the group,
replied that "they had found out that Bishop was riding
around with the union man "
Further interrogation by Corley occurred around the
first week of August according to employee Walter
Glover, who also works in the fabricating department
under 1-oreman Metz Thus Glover testified that during
that period Corley stopped him near his work station one
day and told Glover that he wanted to speak to him
sometime before he left for home According to Glover he
wondered what Corley wanted, and shortly thereafter went
up to Corley and asked him Corley then stated to Glover
"I heard you was for the union " When Glover asked him
how he heard that, Corley answered "that is what I heard,
you are for the union." According to Glover he did not
tell Corley he was for the Union although he had already
signed the union card.
b C'orley's dental of unlawful conduct
Corley was not examined with regard to the alleged
May 3 conversation regarding the Union attested to by
David Ludlam.` Corley did address himself to the
testimony of Robert Hartley, he denied that lie had
conversations with Robert Hartley regarding the Union
and further denied that he had told Robert Hartley that
he would be fired if lie had anything to do with the Lnion,
or that he had ever said that to anybody Similarly, with
regard to the alleged May 15 conversation attested to by
Frank Linder, Corley denied that he and Linder had ever
had any conversation in which the Union was mentioned.
As to employee Whittle, Corley stated that he
mentioned the Union to Whittle on just one occasion, that
this occurred sometime in "June or back about that
time." According to Corley. Whittle was down at the
paint shop which is out of the department where Whittle
was supposed to work, and that employees in the paint
department complained to Corley that Whittle was
"worrying them so that they could not get their work
done Ming to get them to sign union cards." Corley
testified that he told Whittle "you haven't got a bit of
business down there." and further that if he caught him
down there "worrying those people so that they can't
work and stopping production . I am firing you as of
that date." Corley testified that Whittle had no reason at
'At one point during cross -examination , however, when Corley was
questioned with regard to interrogating employees about having cards
signed, or with regard to getting employees to join the Union, he stated
generally that he did not question the employees about the Union
any time to be in the paint shop, and that the matter was
brought to his attention by the employees in the paint
shop Corley had denied that he was aware of any
employees soliciting other employees for the Union or
that he had interrogated the employees about soliciting for
the Union or about the Union generally. When examined
specifically as to Whittle. Corley denied that he knew that
Whittle was passing out union cards, explaining that,
while the employees complained to him about Whittle, he
did not know Whittle was in [act soliciting cards.
According to Corley, notwithstanding the alleged paint
shop complaints and his admission that he "may" have
heard that Russell was passing out union cards, when
Plant Manager Hendrix "sometimes" questioned him as
to whether he had heard anything about the Union,
Corley testified that he told Hendrix that he had not
heard anything.
Corley did not testify with regard to the alleged
conversation between himself and Eugene Hartley
concerning Hartley's absence to attend a funeral and the
statement allegedly made by him that he knew that
Hartley was out with the "union man " Respondent did,
however, introduce evidence to show that the funeral had
not occurred on May 24. as testified to by Eugene
Hartley, or July 24, as testified to by Tony Whittle, but
that the funeral had occurred on June 24
With regard to the testimony of Hall and Ludlam
concerning Corley's statements in mid-.Tune about Russell-
s e., that Russell would not he hack and that Russell was
running around with the union,man-.Corley denied that he
had ever discussed Russell With Hall or Ludlam or in their
presence According to Corley his discussions with Plant
Manager Hendrix concerning Bishop Russell occurred in
the trailer office which was located 40 feet from the plant
Finally with regard to the testimony of Glover
concerning Corley's conversation with him about the
Union in early August, Corley denied that he had ever
spoken to Glover about the Union
c Findings regarding Corley'.s alleged unlawful
conduct
Based on my observation of the witnesses and a review
of the record, I find Hall, Ludlam. and Linder, as well as
Robert Hartley and Tonv Whittle, to be credible
witnesses. Each testified without hesitation and with as
much certainty as is reasonable to expect of an honest
witness. Eugene Hartley, who appeared under subpena,
was obviously tense when testifying and this was reflected
in his difficulty to recall the name of his doctor and his
deceased neighbor, the date of his neighbor's funeral, and
his prior address However, I find that Eugene Hartley
was an honest witness and testified to the best of his
ability Furthermore. I note that Eugene Hartley's
testimony as regards the conversation with Corley, which
is in issue, was undenied and was corroborated in part by
Whittle 1-urthermore, in view of the other acts of
interrogation by Corley which I Lind occurred, as well as
my observation of Glover as a witness, I credit Glover's
testimony regarding the August incident which involved
Corley.
Based on my observation of Corley and a review of the
record, I have resolved conflicts in testimony against
Corley Corley impressed me as less than candid in his
testimony which bears directly on the issues of this case.
His testimony was generally responsive to questions put to
him by company counsel, however, on cross-examination
when being questioned more specifically with regard to
KLINE IRON & STEEL COMPANY 471
matters relating to the allegations of the complaint,
Corley's answers were frequently evasive, and in some
instances so improbable in the circumstances as to
demonstrate his lack of candor generally.
Accordingly, consistent with the foregoing, I find that
on May 3, as Ludlam testified, Corley created the
impression of surveillance by his comments with regard to
Ludlam's union sympathies and what he purported to
have heard, and by his pointed reference. to Ludlam's
observed conversations with Linder and the Hartlcys
whose prounion sentiments Corley indicated were known
to him Based on Robert Hartley's credited testimony I
further find that on that same date, May 3, Corley
warned Robert Hartley that President Kline would tire
him if he had anything to do with the Union
I further find, based on Linder's credited testimony,
that on May 15 Linder was called into the Company's
plant office and there was interrogated by Superintendent
Corley and Plant Manager Hendrix concerning Linder's
union activities, what Linder thought the Union would
accomplish, and what the employees in the shop felt about
the Union. Similarly, based on Whittle's credited
testimony, I find that on May 22 Whittle was called into
the office and was thereafter questioned by Corley
concerning his union sentiment and activites. and was
threatened with layoff and being blacklisted so far as
other fobs in the area are concerned.'
Based on Eugene Hartley's testimony I find that he
asked for and received permission to attend the funeral of
his neighbor, that the next day Superintendent Corley
accused him of not taking the time off for the funeral,
that Hartley had lied to him and had gone "visiting with
the union man."'
'As indicated, in so finding I have resolved the direct conflict in
testimony between Robert Hartley and Superintendent Corley in favor of
Robert Hartley In addition to the reasons set forth supra it is noted that
Robert Hartley was supported in general outline-i e , that a discharge
threat was made-by the testimony of Eugene Hartley Albeit Eugene
Hartley's recollection of the circumstances relating to this incident varied
from Robert Hartley ' s, it is significant that the testimony of both witnesses
tied Forcman Metz to the threat of discharge Since I regard Robert
Hartley's recollection as more accurate than that of Eugene Hartley, I find
that Corley, too, was involved in the discharge threat made that day
'As noted . Curley did not deny that he had threatened Whittle with
discharge but asserted that this was provoked by complaints from paint
shop employees that Whittle was "worrying" them about signing union
cards, further that he had let Whittle know the reason for the reprimand
and that the warning was for Whittle to stay out of the paint shop and
stop "worrying" the employees Whittle in turn denied that he had ever
solicited anybody' s union membership Based on my evaluation of Corley
generally, as set forth supra , I do not credit his account of the events
which allegedly led up to the threat to Whittle I note that Corley 's
testimony relative to this incident is generally incredible I cannot believe
that if this incident occurred Corley would not have told Hendrix about
this matter, yet Corley testified that , when Hendrix "sometimes" inquired
whether he had "heard " anything about the Union, Corley had told him he
had not Furthermore, in view of his interrogation of other employees
concerning union activites I cannot believe that , 11 Corley had received
such complaints, he would net have questioned Whittle regarding the
complaints or his purpose in visiting the paint shop Yet Corley insisted
that he did not question any employees about soliciting for the Union or
about the Union generally In these circumstances and noting that no
employee from the paint shop testified regarding this incident, I do not
find that such complaints had in fact been received Furthermore, assuming
that Whittle had been in the paint shop and away from his work station
and this had been made known to Corley. I find that his warning was not
directed to Whittle because he left his work station or was interfering with
production but was a warning directed to his continued support of the
Union generally
'As noted supra while Hartley had some difficulty recalling sonic of the
events in relation to this incident , Whittle's testimony corroborated the tact
Based on the credited testimony of Hall and Ludlam, 1
find that in mid-June Corley stated as overheard by Hall
that he "did not see where the union would do Bishop any
good because he wouldn't be back unless he might get
some back pay." and further stated to Ludlam that "they
had found out that Bishop was riding around with the
union man "'
Finally. I find that Corley. in early August, stated to
employee Glover. as testified by him. that he had "heard"
that Glover was "for the union "
d The alleged unlawful conduct of Foremen Claude
Metz and Wyman Shealy
As indicated supra, Eugene Hartley testified that on
May 3, he, Robert Hartley, and other employees were
standing by Metz' desk. According to Eugene Hartley,
Metz asked if they had anything to do with the Union and
told them that if they did they would probably be laid off.
Hartley told Metz that he had nothing to do with the
Union and believed that the others said the same. Eugene
Hartley further testified he did not stay there very long
and walked off so he did not hear Metz say anything else.
Employee D. C. Higgins is a welder in the new plant,
and during the time relevant to this case worked under the
supervision of Foreman Metz Higgins testified that on or
about June 10 Claude Metz approached him while he was
working, that Metz said "D., what do you think about the
union " According to Higgins, when he replied, "well,
Claude, I think it is all right, what do you think`'", Metz
turned around and walked off.
On July 31, according to Eugene Hartley, he was
working at his job in the fabricating department when he,
too, was approached by Foreman Metz Eugene Hartley
testified that Metz stated "I want to talk to you about the
union," that Metz went on to say he knew how many
employees had signed cards on Foreman Shealy's side and
how many had signed cards on his side of the fabricating
department
Employee David Ludlam testified as to further acts of
Foreman Metz According to Ludlam on May 6 or 7 a
that Corley had spoken to him about this matter and Corley did not deny
the substance of the conversation attested to by Eugene Hartley I find,
however, that Hartley and Whittle were mistaken in their recollection as to
when the event occurred , the funeral for Kyzer did not occur on May 24 as
remembered by Hartley or July 24 as remembered by Whittle, but in fact
occurred on June 24 as demonstrated by Resp Exh 6, the death certificate
of Kvzer
'With regard to the credibility resolution as to the statement overheard
by Hall it was also noted , contrary to the Respondent ' s argument in its
briel that a decision not to reemploy Russell was made well into July, that
President Kline testified he approved a decision not to take Russell back
before the plant vacation on July 3, and that it could have been as early as
May or June Corley's testimony regarding his knowledge of such a
decision was contradictory and in some aspects incredible Thus Corley
testified on the one hand that he learned of Hendrix's decision not to
reemploy Russell for the first time about the first week in July He later
testified, however, that he spoke with Russell at the plant on two occasions
and that one was after the plant vacation which ended on July 15 and that
he was "satisfied that [Hendrix ] had not told me yet the decision " Finally,
Corley testified that lie had not disclosed that Ilendrix had communicated
the decision to him prior to his testimony at the hearing, this
notwithstanding meetings with counsel to prepare a defense to these
charges I find that, whether or not a final decision had been made,
Corley. who discussed the Russell case with Hendrix, was privy to the
thinking of the Company and that his comment which Hall overheard was
a reflection of that thinking
As regards Corley's statement to Ludlam reflecting a knowledge of
Russell's union activity, Corley 's admission that he "may" have heard that
Russell was soliciting union cards is noted
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
group of employees while eating their dinner were
discussing what would happen if there was a union
election. Claude Metz was present and, according to
Ludlam, Metz told the employees that if they had an
election "it wouldn't do any good, because he said the
company would challenge every vote, and they would
write the name out on the ballot and then they would
know how every man voted." According to Ludlam he
told Metz that he had not been there for the other
elections but that that did not sound right. Ludlam further
testified that later that same day Claude Metz and
Wyman Shealy were talking and they said the first thing
that the Company would do if the Union was voted in at
Kline would be to cut back to 40 hours Robert Hartley
also testified that, on or about May 6, Metz had a
conversation with him while he (Hartley) was working.
According to Hartley, Metz stated to him that "if the
Union would come in there that we would get a 10-cent
raise, and they would cut us from 55 hours back to 40
hours, therefore, we would not benefit by joining the
union."
e. Denial of unlawful conduct by Foremen Metz and
Shealy
Metz did not testify directly with regard to the threat of
discharge allegedly made to employees Eugene Hartley,
Robert Hartley, and other employees present. According
to Metz he did have one conversation with Eugene
Hartley in which the Union was mentioned: this occurred
about the "middle of the year " The circumstances
surrounding the conversation and the conversation itself
related by Metz were as follows. One day when he was
taking Hartley back to show him where to get some
material to work on, Hartley had said to him that Gator
(the maintenance man) had better keep his big mouth
shut. According to Metz he looked over at Hartley who
he said appeared "kind of warm" and asked what Gator
had done and Hartley answered that Gator had said that
he (Hartley) was having union meetings at his house.
Later that day when Metz went to the toolroom he related
the incident to Gator. and Gator stated. "well, 1 will talk
to that gentleman" Still later in the day when he was
checking Eugene Hartle_'s work, Hartley stated do you
know what Gator said, and Metz replied that he did not.
Hartley then stated that Gator said he could name
everybody that signed union cards to which Metz replied
he probably could and just kept on checking Hartley's
work. Metz initially testified that there were no other
conversations with Eugene Hartley. On cross-examination,
however, he admitted that there were other conversations
with Eugene Hartley concerning the Union. According to
Metz these conversations were initiated by Hartley and
included an exchange in which Hartley stated to him that
he supposed he would he discharged after the union
campaign ended, to which Metz replied, "not necessarily."
With regard to the alleged interrogation of Higgins in
June 1968, Metz denied that he ever had any conversation
with Higgins between March and July 1968 in which the
Union was mentioned by either of them.
Regarding Ludlam, Metz testified that he had only one
conversation with Ludlam concerning the Union. Metz
could not recall the month in which this conversation
occurred but testified initially that it was "in the early
part of the year"; a period which he later stated was
sometime between spring and summer - i e.. between
March and June. Metz gave the following account of his
conversation with Ludlam. One day during lunch Ludlam
said to him, "Claude, I know you been in some union
elections when they voted . . . how did they work." Metz
replied, "the way that they done the time I was there ...
they had a union man and they had it man from the
company and as you would go through the line well they
would check us off." He then told Ludlam that Claude
Corley was right ahead of him and they made him put his
vote in an envelope. According to Metz there was nothing
else said in that conversation about that previous election.
Metz denied that he told Ludlam that in a future election
the Company would challenge every vote and make the
employees put their vote in an envelope. Metz also denied
that he had during this conversation mentioned hours of
work to Ludlam. Metz further denied that he had any
conversations with Robert Hartley in which the Union
was mentioned. Metz testified that at one time when he
and other employees were looking at a notice tacked up
on the toolroom door he said "1 hope that they don't
come in here because one time when, it went into Owens
they cut to forty hours and give them a ten cent raise."
Metz was certain that Ludlam was not present at that
time and does not know whether Robert Hartley was
there Metz denied generally that he ever told any person
that if the Union came in to Kline Iron and Steel that
wages would go up 10 cents and the hours would be cut
from 55 hours back to 40 hours a week. According to
Metz he could not have made such a statement because he
did not know that this would happen.
Foreman Shealy denied that he had any conversations
with Ludlam in which the Union was mentioned.
According to Shealy there was only one conversation with
Ludlam in which a change in weekly hours was discussed.
Shealy testified that some 3 months earlier (which would
be in August) Ludlam was complaining to him about long
hours and overtime. According to Shealy he told Ludlam
that, "it was always going on like that That they always
had run it like that and there wasn't any use in changing
it now " According to Shealy, Ludlam replied that it
might be and that he knew what Ludlam was talking
about Shealy then asked him if he could live on a
40-hour-a-week check and walked off Shealy admitted
that he had discussed the Union with other foremen and
that he talked with Corley at his break and had discussed
overtime; however, Shealy denied that Corley and he had
discussed at any time the possibility that the Company
might cut overtime.
f. Findings regarding the alleged unlawful conduct of
Foremen Metz and Shealy,
As indicated supra I have found Robert Hartley and
David Ludlam to be reliable witnesses whose testimony I
credit. I also credit the testimony of D. C. Higgins who
impressed me as a truthful witness Regarding Eugene
Hartley I have noted that his testimony about a May 3
threat ascribed to Metz was supported by Robert Hartley.
Moreover . I find that his testimony when weighed against
that of Metz was more reliable. Based on my observation
of Metz and a review of his testimony, I find that Metz
like Corley was less than candid as a witness in this
proceeding1" and note further his inability to recall events
with certainty such as was demonstrated regarding when
his purported conversations with Ludlam and Hartley
occurred.
10MetE' testimony as to significant matters was contradictory; in some
instances when pressed on cross-examination he changed his testimony
substantially Thus Metz who generally denied many of the statements
KLINE IRON & STEEL COMPANY 473
Based on my observation of Shealy and a review of the
record I have resolved the conflict in testimony between
Shealy and Ludlam against Shealy. Thus I do not credit
Shealy's denial of any conversations relating to a cutback
in hours other than that with Ludlam in August or his
denial that he ever discussed a cutback in hours with
Foreman Metz. Shealy admitted he spent time at his
break with Metz, that they discussed the Union and had
discussed overtime; however, according to Shealy, in these
discussions about overtime they never discussed the
possibility that the Company might cut overtime. Metz
admitted that he was so concerned about a cut in overtime
if the Union came in that he voiced this concern about
what had happened at Owens to the employees. In view of
this the denial that Metz and Shealy, who while they
admittedly had discussions concerning the Union and the
subject of overtime, did not discuss the possible cut in
overtime if the Union came in is not credible particularly
when weighed against the direct testimony of Ludlam
whom I regard as a credible witness.
Accordingly, consistent with the foregoing, I lind that
on May 3, as testified to by Eugene Hartley, Foreman
Metz questioned the employees then present about the
Union and threatened them with layoff if they had
anything to do with the Union. I further find that on July
10 Foreman Metz questioned Higgins as to his union
sympathies.
Furthermore, based on Eugene Hartley's credited
testimony. I find that Metz took Eugene Hartley aside to
inform him that he knew the number of employees who
had signed cards in each of his and Shealy's groups.
Based on Ludlam's credited testimony, I find that on
May 6 or 7 Metz threatened that, if the employees had an
election, the Company would challenge each voter and
thereby learn how every man voted. And later that same
day Metz and Shealy while talking stated in Ludlam's
presence that if the Union were voted in the Company
would cut back to 40 hours. I further find in this regard.
based on Robert Hartlev's credited testimony, that on or
about May 6 Metz engaged Robert Hartley in
conversation at Hartley's work station and warned that if
the Union came in the employees would not benefit
thereby since there would be a 10-cent raise but the hours
would be cut from 55 hours back to 40 hours.
attributed to him by General Counsel's witnesses did not specifically deny
the May 3 threat of layoff attributed to him by Robert and Eugene
Hartley Metz generally denied any conversations with Robert Hartley and
initially testified that there was only one incident regarding which he had
conversations with Eugene Hartley-this was the Gator incident which
allegedly occurred sometime in "the middle of the year ." Assumedly the
inference sought to be established , since this purportedly was the only
conversation , was that others did not occur , thereby denying . although not
directly, the threat of discharge for union activity which was attributed to
him by Eugene Hartley. However, when pressed on cross-examination,
Metz admitted that he had conversations with Eugene Hartley other than
those involving Gator in which the Union was mentioned albeit
conversations , which, according to Metz, Eugene Hartley had initiated
Similarly, while Metz admitted conversations with other supervisors
concerning the Union , initially he testified he was "sure" these
conversations did not concern the number of people who had signed cards,
who was for the Union, what the Union would get if it came in, how he
thought an election would go, the possibility of discharging employees
because of the Union , or where union meetings were being held When
pressed further on cross-examination Metz testified he "did not know"
what these conversations were about and finally conceded that the
conversations "could have been " about those matters which he had been
"sure" had not been discussed.
2. Conclusions as to the alleged violation of Section
8(a)(1)
I find, based on the credited testimony set forth above,
that Respondent violated Section 8(a)(1) by
1. Interrogating its employees concerning the
employees ' union sympathies and activities as follows:
Superintendent Corley''s" interrogation of employee
Linder on May 15, employee Whittle on May 22, and
employee Glover during the first week in August;
Foreman Metz' interrogation of Eugene Hartley and other
employees then present on May 3 and employee Higgins
on or about June 10.
2. Threatening employees by creating the impression of
surveillance of employees' union activities as follows.
Superintendent Corley's statements to Ludlam on May 3,
to Linder on May 15, to Whittle on May 22, to Eugene
Hartley on July 25: Metz' statements to Eugene Hartley
on July 31.
3 Threatening to discharge or lay off employees
because of their support of the Union as follows:
Superintendent Corley's threat made to employee Robert
Hartley on May 3 and to employee Whittle on May 22;
Foreman Metz' threat made to Eugene Hartley, Robert
Hartley, and other employees present on May 3.
4 Coercmg its employees in the exercise of their rights
under the Act to have a Board-conducted election through
the statement made by Foreman Metz on May 6 or 7 that
it would do no good to have an election since Respondent
would challenge every voter and thereby learn how each
man had voted
5. Threatening to reduce hours and do away with
overtime work by the statements of Foreman Corley and
Metz on May 6 or 7 in the presence of employee Ludlam
and by Foreman Metz' statement to Robert Hartley on or
about May 6
I do not find that Respondent violated Section 8(a)(1)
by Corley's statements in mid-June-i.e that he "did not
see where the union would do Bishop any good because he
wouldn't be back unless he might get some back pay,"
and on another occasion that -they had found out that
Bishop was riding around with the union man."" The first
statement appears only to evidence the Company's
determination not to take Russell back, and the reference
to the Union appears to be either that it would not bring
about a change of attitude by the Company or that it
would not be able to represent Russell as an employee of
the Company in the future since he would not be
employed While the term "backpay" is frequently used
in remedying a discriminatory discharge it is also part of
the jargon of the shop and it is equally inferrable that its
use here was to the compensation Russell was seeking to
recover under the insurance coverage for the period of
absence due to the gunshot wound, which is more fully
discussed infra. In the circumstances I find that the
General Counsel failed to establish that this statement
constituted a threat that Russell would not be back
because of his union activities Regarding the latter
"Superintendent Corley, Foreman Metz, and Foreman Shealy are
admitted to be supervisors within the meaning of Sec 2(11) of the Act,
and as such, absent special circumstances not present here, the Company is
responsible for their conduct J S Abercrombie Co . 83 NLRB 524
"in his brief General Counsel did not set forth the basis in the record
for each of the 8( a)(I) violations alleged in the complaint but based on the
dates set forth in the complaint I have considered that the former
statement was relied on as a threat of discharge and that the latter
statement as an incident of the Company's creating the impression of
surveillance
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement , the credited testimony is that when Corley
made the statement it was prompted by Ludlam's
observation of a discussion by a group of employees and
Ludlam's question as to what the discussion was about; in
these circumstances it is equally inferrable that "they" as
used by Corley referred to the group of employees who
were then discussing the matter and does not establish
that Corley by this statement was seeking to create the
impression of surveillance.
B The Alleged Discriminatory Discharge of Russell
1. The refusal to return Russell to work
Bishop Russell began as an employee for Kline Iron &
Steel Company in 1936 and continued in his employment
there until 1943; thereafter he quit, worked 2 more years
for the Company, quit again , and returned to work in
1958. He has been continuously employed by the
Company since 1958. On Saturday, February 18, Russell
suffered a gunshot wound in his home and thereafter was
hospitalized for 55 days. Following this Russell spent a
period of about 3 months at home convalescing and
during about one and a half months of this period he rode
with Union Organvcr Rutherford, visiting the home of
about 15 or 20 employees to discuss the Union with them.
Russell himself had signed a union card
On July 1, Russell was released by his doctor and on
the same day visited the plant and talked with
Superintendent Corley. On that date Plant Manager
Hendrix was in the hospital and Corley told Russell that
he could not do anything because Hendrix took care of
the insurance and he could not tell Russell "whether the
insurance would take Russell back." On July 3, Russell
visited the plant to get his vacation money, which he
received, and talked with Hendrix, Hendrix told him to
cone in on July 15 since the plant would be closed for the
employees' vacation from July 3 to July 15. Russell
reported on July 15, prepared to go to work; however,
when he talked to Hendrix he was told that he had better
get a part-time job, that it was too hot in the shop and
that he, Russell, was weak When Russell pointed to other
disabled employees in the plant who were then working,
Hendrix merely smiled and said nothing. Russell returned
to the plant on the 17th or 18th of July and was told by
Hendrix to get a checkup by his doctor and if the doctor
okayed Russell he could return to work Russell then
obtained a written statement from his doctor, stating that
Russell was able to return to work; the statement was
signed July 22 and on July 23 Russell reported to the
Company at 7 a in in his work clothes prepared to go to
work. Since Hendrix had died very suddenly on July 20,
Russell reported to Corley and gave him the doctor's
statement, releasing him for work Corley after reading
the statement said that he would call Russell Corley did
not call Russell, and, when Russell called him sometime
later, Corley told him he could not return to work at that
time but that maybe he could at a later date " The
Company at the hearing made it clear that it would not
return Russell to work."
"The foregoing facts are based on the credited testimony of Russell
which was substantially uncontradicted
"Russell is presently employed as a burner for another steel company
and is working 56 hours a week
2 The Respondent ' s position
The Company denied that its refusal to return Russell
to work following his illness was in any way related to
Russell' s union activity and sympathies. It is the
Company's position that it had good reason to believe
that the gunshot accident which occurred in Russell's
home on February 18 was in fact self-inflicted and an
attempt at suicide; the Company further contended that it
refused to return Russell to work because the Company
felt Russell would represent a danger to himself and to
others if he was permitted to return to his job. According
to the Company the decision to refuse to take Russell
back was made by Hendrix prior to his death and was
adhered to by the Company.
William Albert, as the assistant manager of operations.
takes care of employees' hospitalization insurance.
According to Albert's testimony, which I credit, he saw
the police report of the gunshot accident 3 days after it
was written. Albert had requested the report from the
hospitalization insurance carrier for information
concerning the benefits to which Russell was entitled 15
The police report indicated that the gunshot wound that
Russell received on February 18 was self-inflicted and the
insurance company had declared him ineligible for benefits
for this reason. According to Albert he had discussed the
police report with Hendrix, who, as the general manager
of the Williams Street plant, made all decisions with
regard to hiring and firing at the new plant; he had then
filed the report in Russell' s personnel file. According to
President Kline whose testimony 1 credit, he received an
oral report about a week or ten days after the event that
Russell had made an unsuccessful attempt at suicide."
Kline did not make the initial decision to discharge
Russell but had participated in the decision. On a date
prior to July 3, the beginning of the plant vacation, a date
which may have been as early as May or June, Kline
received a call from Plant Manager Hendrix. Hendrix
discussed Russell 's situation and told Kline that he
believed he would not take Russell back stating "we don't
want anyone like that in the plant. anyone that would do
a thing like this." Kline approved Hendrix's decision.
stating to him, that "that is very good thinking, John, I'll
buy it and we won't take him back . . . be dangerous to
him and dangerous to us." With regard to Hendrix's
decision not to reemploy Russell, Albert testified that he.
too, had discussions with Hendrix concerning Russell's
return to work. Albert testified that, when he discussed
Russell with Hendrix shortly after learning about the
police report, there had been little talk of Russell's future
employment since it was doubtful at that time that Russell
would live. However, about a week or two before
Hendrix's death, Hendrix had discussed Russell's return to
work during a social evening at Albert's home " At that
time Hendrix indicated that based upon the police report
and his observation of Russell who had been to his office
that it would not be desirable to hire him back because
Russell would be a menace to himself and also probably
to his fellow employees because of his condition
According to Albert, at no time during his discussions of
Russell with Hendrix was the Union ever mentioned.
Superintendent Corley also testified that he had
discussed the employment of Russell with Hendrix, and
"Russell 's request was prompted by an inquiry from Russell's wife
"Kline had not seen the police report before the hearing
"Albert had lelt the employment of Kline Iron & Steel on April 3. 1968,
and did not return to its employ until July 29, 1968
KLINE IRON & STEEL COMPANY 475
about 2 or 3 weeks before his death Hendrix had told
Corley that he (Hendrix) had made the decision not to
rehire Russell because he might be dangerous to himself
and other employees. Corley disclaimed any role with
regard to Russell's employment status. According to
Corley, when Russell had returned to the plant he had
sent hint straight to Hendrix because where insurance was
involved Hendrix took care of the matter. Corley testified
that he was not present during the conversations between
Russell and Hendrix With regard to Hendrix's knowledge
of union activites. Corley testified that Hendrix might
have asked him some times if he had heard anything and
he would tell Hendrix that he had not.78
3. Additional findings, analysis, and conclusions
As indicated supra, the credited evidence establishes
that the Respondent engaged in numerous acts of unlawful
conduct in an effort to defeat the Union's organizational
campaign, including threats to discharge employees if they
continued to support the Union The evidence also
establishes that Russell was active in assisting the union
organizer in soliciting cards and that this was known to
the Company Moreover the initial refusal to return
Russell to work occurred shortly after Russell' s union
activity Thus the record establishes a prima facie case
that Russell's discharge was for union considerations and
violative of Section 8(a)(3). However, I also find that the
Company's stated reason for discharge has substantial
basis in this record. I find that the Company had a
good-laith belief that Russell's gunshot wound of
February 18 was self-inflicted and an attempt at suicide.'°
There is no question that a company, insol'ar as Section
8(a)(3) of the Act is concerned, may discharge employees
for any reason, whether or not the cause be viewed as
reasonable in the circumstances, provided only that a
cause for the discharge is not union considerations
Moreover. while in circumstances where there is a prima
facie case for finding unlawful motivation, an employer's
stated reason for discharge, if inherently implausible, may
lend some support to a finding of violation, here the
Company's stated reason for discharge was not inherently
implausible. Russell's job in the fabricating department
involved the use of, and placed him in close proximity to,
equipment which was inherently dangerous and required a
high degree of care on the part of an employee Thus, the
question is whether the Company, believing that Russell
had attempted suicide, discharge Russell for this reason,
or whether the Company relied on this as a pretext for
unlawfully denying Russell 17is job; simply stated, in the
circumstances present would the Company have
discharged Russell if it had not been for his known union
activity I find for the reasons set forth below that the
evidence does not preponderate in favor of a finding that
the Company's decision to discharge Russell was
influenced by his known union activity.
Plant Manager Hendrix made known his decision not
to take Russell back first to President Kline as early as
May or June and certainly before the plant vacation
period starting on July 3. When Hendrix discussed with
him the decision not to take Russell back because he
might be a danger to himself and others, Kline approved
it. While Plant Manager Hendrix had the power to hire or
lire on his own, I do not regard it as unusual that he
discussed his decision with Kline because of the difficulty
of the situation- the return of a well-regarded employee
with long service, but one who he believed had attempted
suicide and whose job involved potentially dangerous
equipment. Kline himself evidenced some uncertainty as to
the decision, stating " . I believe and I am not sure
about this, but if I had the decision to make, i would
make it just the way that it is"; Kline in fact endorsed
Hendrix's decision, apparently a difficult one for both
men
Notwithstanding Kline's approval in the matter.
Hendrix did not relate this decision to Russell at any time
prior to his death on July 20. While he did not put Russell
back to work, Hendrix kept Russell returning to the plant.
Thus on July 3 Hendrix advised Russell to return on July
15; on July 15 Hendrix told Russell he looked too weak to'
work, and, when Russell again returned to work on July
17 or 18, Hendrix told Russell that if his doctor certified
him as able to do so he would be returned to work.
Furthermore on July 16 Hendrix signed an insurance
questionaire in which he indicated that Russell presumably
would return to work when able.
In his brief General Counsel argues that, assuming that
Hendrix had made the decision attested to by Kline and
Albert ,21 the evidence would indicate at least that as of
July 16. Hendrix had changed his mind about returning
Russell to work General Counsel notes particularly
Hendrix's response on July 16 to the insurance company's
question regarding Russell's return to work.2' General
Counsel further contends that it was Claude Corley who
made the decision not to rehire Bishop Russell on July 23,
that Corley knew of Russell's union activity, had told
employees in June that Russell would not be hack. and
that upon Hendrix's death Corley. who it is contended
assumed full charge of the plant including the
responsibility for deciding Russell's case, had terminated
Russell for his union activities.
On this record I cannot find as urged by the General
Counsel that following the death of Hendrix, the full
"As indicated supra , I do not regard Corley as a reliable witness.
however, I credit his statement regarding Hendrix s report of his decision
as to its substance noting that the testimony of Kline and Albert tend to
support ibis I do not credit Corley as to when the report was made to him
since his testimony was contradictory As noted earlier herein, Corley first
testified it was made the first week in July, he later testified he was certain
he had not yet received such report on the occasion when Russell visited
the plant following the vacation which ended on July 15 Similarly I do not
credit his statement that he told Hendrix nothing with regard to what he
had heard about the Union Curley knew of Russell's activities by
mid-June and I find that Corley who had discussed Russell with Hendrix
had made this information known to Hendrix
"Whether Russell in fact attempted suicide is not necessary to the
dispositon of the issues of this case, it is enough that the Company in good
faith believed that this was what had happened Nor do I believe in light of
the police report covering this incident that the Company's failure to
investigate this matter further derogates from finding a good-faith belief on
its part that Russell had attempted to take his own life
"And as to such a finding General Counsel notes in his brief that the
evidence to support such statements is hearsay in that Hendrix, the
declarant , is now deceased Counsel made no objection to the admission of
such testimony at the hearing and, as indicated supra , relied on such
testimony in presenting evidence through Russell , i e , conversations which
occurred between Russell and Hendrix In any event the Board has
repeatedly held that it "is not precluded from considering as evidence
statements attributed to deceased persons or those too ill to testify [The
Board] does , however , subject such testimony to the closest scrutiny before
deciding what weight to give it " West Texas Utilities Co. Inc. 94 NLRB
1638, 1639, enld 195 F 2d 519 (C A 5) See also Sam Wallick, 95 NLRB
1262, enfd 198 F 2d 477 , 483 (C A 3 ), Hazen & Jaeger Funeral Home, 95
NLRB 1034, 1043, fn 9, enld 203 F 2d 807 (C A 9 ), Chun King Sales,
Inc, 126 NLRB 851, 864-865, Pasadena Bowling Center . 150 NLRB 729,
733-734, Calandra Photo , Inc . 151 NLRB 660, 669
"It is noted that Hendrix 's response on the insurance questionnaire was
not unequivocal but was qualified by the word "presumably "
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
responsibility for the new plant and particularly the
disposition of Russell's case devolved on Corley. There is
no evidence in this record that, following the death of
Hendrix, Corley was given expanded duties at the new
plant, and, if so, that they included the decision as to
Russell The credible evidence establishes that Hendrix
had Iclt called upon to clear his decision not to return
Russell to work with President Kline and this decision as
related to Kline was for reasons unrelated to his union
activities. There is no evidence that Corley ever was
authorized to depart from this decision or was permitted
to act on his own and thereby given the opportunity to
substitute his own reason for the action taken
The question posed by Hendrix's conduct following his
earlier discussion with Kline and also Albert remains.
However, whether Hendrix was merely procrastinating in
carrying out the difficult task of informing Russell that he
was discharged, and more particularly that the reason
therefor related to what the Respondent believed was his
attempted suicide, or whether he had indeed changed his
mind, I find is not determinative of the Company's motive
in ultimately discharging Russell. For even if it is assumed
that Hendrix had changed his mind about putting Russell
back to work, there is no evidence that this had been
communicated to any management official. More
importantly, there is no evidence that Kline had been so
informed, or was even aware of Russell's visits to the
plant in July or what was transpiring between Hendrix
and Russell. So far as the record discloses. Kline's only
knowledge of a decision by Hendrix was that which was
disclosed to him before July 3. The Company's position
concerning Russell is that it adhered to Hendrix's
decision, that decision I conclude was that which was
communicated to Kline before July 3. Moreover that a
decision had been made about the same time that
company officials were aware of Russell's activities is
evidenced by the remarks of Corley in mid-June; i.e., that
Russell would not be back and, on another occasion, that
they were aware he was riding with the union man. There
is nothing in this record which would support a finding
that there were any other union-connected activities or
indeed a continuation of his earlier activities by Russell so
as to support a further finding that the Company's reason
for Russell's discharge would have changed from that
which was discussed before July 3 with Kline and later
with Albert.22
I conclude therefore that on the basis of this record and
the credited evidence that it was Hendrix's decision not to
put Russell back to work following his illness because of
the good-faith belief that Russell had attempted suicide in
February, the decision Hendrick cleared with Kline and
the only one known to Kline, which was adhered to by the
Company in its discharge of Russell
Accordingly, I find that the General Counsel tailed to
establish by a preponderance of the evidence that Russell
was discharged in violation of Section 8(a)(3) and
"Moreover , regarding the Company's motive for Russell's discharge, it
is also noted that , while the Company had in fact threatened other
employees with discharge it they engaged in union activities, these
employees have continued in their employment , in some instances these
employees were known to be active union adherents , were employees who
were not as well regarded as Russell and who did not have a long
employment relationship with the Company as did Russell Employee
Whittle, one of the employees threatened with discharge , has not only
continued in his employment but has received two raises, this
notwithstanding Corley's statement to him at the time of the discharge
threat that there would be no raises as long as the "union thing
continued.
recommend that this allegation of the complaint be
dismissed.
TV. THE EFFECT OF fiiE UNFAIR LABOR PRACTICI-S UPON
COMMERCE
The activities of the Company set forth in section III,
above, occurring in connection with the Company's
operations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that the Company engaged in
unfair labor practices in violation of Section 8(a)(1) of the
Act, it will be recommended that the Company cease and
desist therefrom and take certain affirmative action
designed to effectuate the purposes of the Act.
On the basis of the foregoing findings of fact, and upon
the entire record in this case, I make the following:
CoNCr.USIONS OF LAW
1. The Company is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Company has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act, which
unfair labor practices affect commerce within the meaning
of Section 2(6) and (7) of the Act.
4. The Company has not engaged in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, it is
recommended that the Company , Kline Iron & Steel
Company, its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union
activities , sympathies, and membership.
(b) Threatening employees with discharge because of
their union activities , sympathies, and membership.
(c) Threatening employees by creating the impression
that their union activities are being kept under
surveillance.
(d) Coercing its employees by telling them that the
Company will challenge every voter in any
Board-conducted election in order to determine how they
voted.
(e) Threatening to abolish overtime if the Union is
selected as the bargaining representative of the employees
(f) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their rights to
self-organization , to form labor organizations , to join or
assist Shopman ' s Local Union No. 812 of the
International Association of Bridge . Structural and
Ornamental Iron Workers , AFL-CIO , or any other labor
organization , to bargain collectively through
representatives of their own choosing , to engage in
concerted activites for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any
KLINE IRON & STEEL COMPANY 477
and all such activities, except to the extent that such rights
may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of
1959
2 Take the following affirmative action which will
effectuate the purposes of the Act:
(a) Post at its plants in Columbia, South Carolina,
copies of the attached notice marked "Appendix""
Copies of said notice, on forms provided by the Regional
Director for Region II, after being duly signed by
Respondent's authorized representative. shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter. in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 11, in
writing. within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.2'
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges unfair labor practices not specifically
found herein.
"in the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" and in the first paragraph of
the notice the words "a Trial Examiner of' shall be deleted . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith'
APPENDIX
NOTICF TO ALL EMPLOYEFS
Pursuant to the Recommended Order of a Trial
Examiner of' the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
Following a trial in which the Company and the
General Counsel of the National Labor Relations Board
participated and offered their evidence, a Trial Examiner
of The National Labor Relations Board has found that we
violated the law and has ordered us to post this notice and
to abide by what we say in this notice
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any and all of these things
WE WILL NOT do anything that interferes with these
rights. More specifically,
WE WILL NOT threaten employees with discharge
because of their union membership, activities on behalf
of the Union, or support of the Union.
WE Witt NOT question employees concerning their
union membership, activities on behalf of the Union, or
support of the Union.
WE WILL NOT threaten employees by creating the
impression among our employees that their union
activities are being kept under surveillance.
WE WILL NOT coerce employees by telling them that
the Company will challenge every voter in any
Board-conducted election in order to determine how
they voted.
WE WILL NOT threaten to abolish overtime if the
Union is selected as the bargaining agent of the
employees.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of any
labor organization.
KLINE IRON & STEFL
COMPANY
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered. defaced,
or covered by any other material
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 16th Floor,
Wachovia Building, 301 North Main Street,
Winston-Salem, North Carolina 27101, Telephone
919-723-9211, Extension 360.