U V Industries, Inc.

National Labor Relations Board - Board Decisions

Oct 7, 1975

220 N.L.R.B. 1127 (N.L.R.B. 1975)

MUELLER BRASS CO.
Mueller Brass Co., a subsidiary of U V Industries, Inc.
and United Steelworkers of America , AFL-CIO-
CLC. Cases 26-CA-4998, 26-CA-5125, and
26-CA-5125-2
October 7, 1975
DECISION AND ORDER
On December 10, 1974, Administrative Law Judge
Milton Janus issued the attached Decision in this
proceeding. Thereafter, Respondent and General
Counsel filed exceptions and supporting briefs.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings , findings,' and
conclusions of the Administrative Law Judge to the
extent consistent herewith, and to adopt his recom-
mended Order as modified herein.
1. The Administrative Law Judge found that dur-
ing a conversation in February 1974 Foreman Chuck
Hensen , who initiated the conversation by asking
Stone what he thought about the Union, twice told
employee Hansford Stone that a union would hurt a
man more than it would help him. Although General
Counsel alleges that this remark conveyed a threat of
unfavorable company action against union adherents
and was therefore in violation of Section 8(a)(1) of
the Act, the Administrative Law Judge found that it
was protected by Section 8(c). We do not agree. We
find, rather, that although a remark of this type,
viewed in isolation, may not necessarily be violative
of the Act its import must be considered in light of
Respondent's open hostility to the Union, and the
pervasive unfair labor practices which we have found
this Respondent committed , including subsequent
unlawful threats made to Stone to the effect that he
would continue to be treated unfavorably so long as
he continued to wear a union button . In such a con-
text, the remark is clearly coercive and threatening
within the meaning of Section 8 (a)(1). We so find.
2. The complaint also alleged that Respondent
violated Section 8(a)(1) and (3) of the Act by dis-
criminatorily discharging employee Hansford Stone
for his union activities . The Administrative Law
Judge dismissed these allegations on findings that the
motivating cause for the discharge was Stone 's unau-
thorized absence from his job. We find merit in the
General Counsel 's exceptions to this dismissal for the
reasons set forth below.
' The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
1127
The record shows that Stone was placed on sick
leave on April 25, 1974, because his doctor had or-
dered him hospitalized. At that time, neither Stone
nor the Company knew how long Stone's incapacity
would last. Respondent's agent accordingly advised
Stone that, pursuant to company policy, he would
not have to report in to the Company again to keep
himself on leave status, but that he would be required
to produce a doctor's release when he reported for
work again.
Stone was hospitalized from April 25 until May 4,
but did not return to work until May 14. Stone did
not contact the Company between the date of his
hospital release and the date of his return to work
because, as his uncontradicted testimony indicates,
he was unable to resume his duties until May 14.
Upon reporting for work on May 14, however, Re-
spondent notified Stone that he had been terminated
as a "voluntary quit" the previous week under plant
rule 40, which provides that:
Absence for three consecutive working days
without permission will be considered a volun-
tary quit.
Although Stone was not so informed at that time,
Respondent's testimony indicates that the Company
had heard rumors that Stone was seen in a poolroom
and at a barbeque stand after his release from the
hospital. Respondent therefore contacted Dr. Col-
lum, Stone's doctor, who advised that Stone had
been released from the hospital May 4 and should
have returned to work on May 6. On May 9 Stone's
doctor gave the Company a note confirming these
facts.
When Stone reported to the plant on May 14 to
return to work, he was asked where he had been the
past week. Stone presented a note dated May 13
from his doctor, which stated he was able to return to
work on May 14, but Respondent refused to reinstate
him. He therefore returned to his doctor and ob-
tained another note which stated, in effect, that the
doctor had probably told Stone to take 1 more week
off after his release from the hospital. This note also
specifically voided all previous notes. Stone took this
note to the Company,2 and although Respondent ad-
mitted there was no reason to doubt the authenticity
of this note, Respondent nevertheless refused to rein-
state Stone.
General Counsel contends, and we agree, that
2 In the short interval of time between receiving the two notes from Stone,
Respondent had called Dr Collura and asked what the May 13 note meant.
The doctor explained it referred to a sore throat Stone had contracted. An
hour later, however, Dr. Collum called back and asked Respondent to ac-
cept the May 13 note as a release for Stone to return to work and to destroy
his note of May 9.
220 NLRB No. 174
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's decision to terminate Stone and its re-
fusal to reinstate him was motivated by its opposition
to the Union and its desire to rid itself of a known
union adherent and that it seized upon the circum-
stances surrounding his absence as a pretext to ac-
complish that end. The record clearly reflects
Respondent's hostile opposition to the Union. In ad-
dition to the numerous violations of the Act herein
found, we note, for background purposes, that this
Employer has previously appeared as a Respondent
before this Board in connection with various other
unfair labor practices which we found it committed.'
Moreover, as the 8(a)(1) violations herein found with
respect to employee Stone demonstrate, Respondent
was well aware of Stone's union sentiments, and ac-
tively sought to dissuade him from his adherence to
the Union. Although Respondent claims that it had
reason to believe Stone was unjustifiably prolonging
his sick leave, it did not, by its own admission, make
any attempt to contact Stone to determine his condi-
tion. Respondent merely verified Stone's release
from the hospital and then summarily terminated
him without even thereafter notifying him that this
action had been taken. As General Counsel points
out in its brief, even if Respondent had reason to
suspect that Stone had been malingering during the
week following his release from the hospital, that rea-
son evaporated when Stone submitted his doctor's
final note, voiding all previous notes, and stating in
effect that Stone should not have returned to work
until May 14. Under these circumstances, we are not
persuaded that Respondent's claimed justification
for the discharge was in fact the real reason Stone
was terminated. Rather, we find that Stone was dis-
charged for his union activities in violation of Sec-
tion 8(a)(1) and (3) of the Act.
The Remedy
Having found that Respondent discriminatorily
discharged Hansford Stone, we shall order it to offer
him reinstatement with backpay computed on a
quarterly basis from the date of his discharge to the
date of an offer of reinstatement, as prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950),
plus interest at 6 percent per annum. In all other
respects, we adopt the remedy recommended by the
Administrative Law Judge in the portion of his Deci-
sion entitled the same.
3 204 NLRB 617 (1973), enforcement granted 501 F.2d 680 (C.A. 5, 1974);
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, Muel-
ler Brass Co., a subsidiary of U V Industries, Inc.,
Fulton, Mississippi, its officers, agents, successors,
and assigns, shall take the action set forth in the rec-
ommended Order as modified herein:
1. Delete subparagraph 1(b) and substitute the fol-
lowing:
"(b) Threatening employees with adverse conse-
quences if the Union won the-election; intimidating
and warning employees against wearing union insig-
nia; questioning employees whether anyone had
talked to them about the Union or had tried to get
them to sign union cards; or asking employees why
they were wearing union buttons."
2. Delete subparagraph 2(a) and substitute the fol-
lowing:
"(a) Offer James Roy Rogers and Hansford Stone
immediate and full reinstatement to their former jobs
or, if such jobs no longer exist, to substantially equiv-
alent jobs, without prejudice to their seniority or
other rights and privileges, and make them whole for
any loss of earnings suffered by reason of
Respondent's discrimination against them in the
manner set forth in `The Remedy."'
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
MEMBER PENELLO, dissenting:
Contrary to my colleagues, I find that James Roy
Rogers was discharged for indecent conduct and not
because of his union activities.
Rule 22 of Respondent's plant rules states as fol-
lows:
An employee shall not engage in disorderly, im-
moral, indecent,or illegal conduct.
There is no challenge to the validity of the rule.
On February 3, 1974,4 Frank Robinson,
Respondent's industrial relations manager, was
called at home by a citizen of the Fulton, Mississippi,
community, who reported to him that there had been
an incident in the plant the previous week, which had
upset the female employees, and that some husbands
were going to get mad and upset. The caller did not
identify Rogers as the person responsible. The next
morning Robinson began an investigation of the
matter.
Respondent's investigation revealed that on Janu-
ary 31 Rogers brought an object, an artificial male
208 NLRB 534 (1974), enforcement denied 509 F.2d (C.A. 5, 1975). 4 All dates hereinafter are in 1974.
MUELLER BRASS CO.
sex organ , to a breakroom table where female em-
ployees were seated , took it out of a lunchbox, and
maneuvered it to the extent of embarrassing the fe-
male employees .5 In addition , the investigation dis-
closed that the next night , February 1, Rogers, on a
dare from Larry Hobbs, made a lewd and obscene
suggestion, which is set forth in footnote 3 of the
Administrative Law Judge's Decision , to Judy Tay-
lor, a young female employee . Rogers admitted both
of these incidents , which formed the basis for his dis-
charge by Respondent under rule 22.
In my view , Rogers' language and conduct consti-
tuted a very considerable deviation from realistic
standards and his continued employment would de-
molish all standards of proper behavior . Under-
standably, the Administrative Law Judge character-
ized Rogers' conduct as "vulgar and offensive" by
"any standard of acceptable conduct ." I conclude
that Rogers' actions and language warranted dis-
charge under Respondent 's rule 22 6
Moreover , there were other matters that came up
during the investigation that showed Rogers' pen-
chant for this type of lewd conduct . In one incident
Rogers had embarrassed a female employee at her
work station by showing her by his own admission
"vulgar pictures" of "women and men having inter-
course ." Investigation of Rogers further showed that
an affidavit had been filed against him in the Justice
of the Peace Court in Tishomingo County, Mississip-
pi, wherein a lady alleded that Rogers had run her
car off the road while she was driving and had made
profane comments to her . According to
Respondent 's information, Rogers was arrested on
this charge , later pleaded guilty, and was fined for
disturbing the peace . When Rogers was asked about
these incidents during his discharge interview, he de-
clined to comment . At the hearing , while admitting
the first incident , he stated that the second one mere-
ly involved fines for possession of beer and disturb-
ing the peace . However , he acknowledged that he
had been told that two women had complained
about his conduct.
In spite of Rogers ' contemptible behavior , my col-
leagues conclude that Respondent 's reasons were
5 The owner of the indecent object was actually Larry Hobbs. It is uncon-
tradicted that on two occasions General Foreman Stamper placed the offen-
sive object out of the view of employees and, upon learning Hobbs was the
owner, ordered Hobbs to remove it from the plant premises . Hobbs had
given notice he was quitting February 2.
6vein do not want to convey a holier-than-thou attitude in judging Rogers'
conduct . I would be reluctant to condemn out of hand the language and
actions of another person since my own language is not always perfect. I do
not behove , however, that I am being hypocritical in concluding that Rogers
committed such a serious breach of moral standards generally that Respon-
dent was justified in eliminating him from its community of employees
Admittedly , there has been some deterioration of puritanical standards. I
trust that deterioration has not reached the point that Rogers' reinstatement
will promote the Federal labor policy.
1129
pretextual and that Respondent really discharged
Rogers for his known union activities, particularly in
view of its vigorous opposition to the Union and its
past unfair labor practices. Broadminded sophistica-
tion undoubtedly has its proper place, and sometimes
a not unenviable one, but it is, I think, wholly out of
place in the circumstances. What was in question
here was not only objectionable conduct by any de-
cent standard, but the conduct was particularly of-
fensive under the prevailing climate of opinion of the
small rural community in which it occurred. In my
view there is a line of decency and acceptable moral
conduct in relations between the sexes, which may
shift with the temper of the times, but which never-
theless still exists and can be transgressed, as in fact
it has been transgressed by Rogers' conduct. To ca-
sually brush aside such a disturbance of good morals,
order, and discipline, as do my colleagues in the ma-
jority, is the very antithesis of "Woman's Libera-
tion," as it condones treating women as sex objects.
Respondent may well have welcomed the opportu-
nity of getting rid of Rogers, but neither his union
activities nor the Respondent's attitude makes him
immune from discharge .7 Nor does the mere fact that
the employer has been guilty of unfair labor practices
supply the requisite evidence of unlawful motive. The
investigation into the artificial male sex organ inci-
dent was initiated without the Respondent's having
any information as to who was involved. Rogers'
name was never disclosed until well after the investi-
gation began. My colleagues lay heavy stress upon
what they regard as a suspicious set of circumstances
in the Respondent's commencing an investigation
without a precedent employee complaint. However,
the record is overwhelming that while those who had
been victimized by Rogers were extremely reluctant
to initiate a complaint, their reluctance did not
spring from a failure to be offended. It is a fair infer-
ence that it sprang from a fear of having the inci-
dents repeated and a desire to avoid a community
stir over the matter. If a respondent had to wait for a
complaint, it would effectively prevent any investiga-
tion into any events which the employees decided,
for one reason or another, to conceal. Surely an
employer's sincere and valid interest in enforcing its
own standards, avoiding embarrassment to its female
employees, and protecting its standing in the com-
munity, is not dependent upon a complaint by the
victimized employee or employees.
In addition, my colleagues rely on three other inci-
dents of alleged misconduct to show disparate treat-
ment as to Rogers. However, they fail to note that
7 Savannah Electric and Power Company, 197 NLRB 754 (1972); Mc-
Donald's Corporation, and its wholly-owned subsidiary McDonald's of Kahala,
200 NLRB 359 (1972).
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two of the three incidents were investigated before
Plant Manager Robinson and the current top man-
agement personnel came upon the scene; the third
incident was completely investigated by Robinson
and placement of blame for this incident and the
others involved questions of credibility that the Re-
spondent resolved as best it could, whether or not my
colleagues agree with the results; and most impor-
tant, unlike the other alleged offenders, Rogers ad-
mitted that he had engaged in the undesirable con-
duct for which he was discharged.
For these reasons, I conclude that the General
Counsel has failed to prove by a preponderance of
the evidence that Respondent discriminatorily dis-
charged Rogers.
In any event, I cannot fathom why my colleagues
order that Rogers be reinstated with backpay. As the
court said in the recent case of N.L.R.B. v. Apico Inns
of California, Inc., 512 F.2d 1171 (C.A. 9, 1975),
which involved similar conduct:
The evidence here clearly shows that the charg-
ing employee was and is unfit for the job for all
the reasons recited. Reinstatement with back
pay would not effectuate the policies of the Act.
It would reward conduct both reprehensible and
egregious in scope. [Emphasis supplied.]
Rogers' despicable conduct has amply shown that
he is "unfit for the job." Accordingly, my colleagues'
insistence on his reinstatement will cause an impossi-
ble situation in the plant and will certainly not effec-
tuate the policies of the Act.
Finally, for the reasons set forth by the Adminis-
trative Law Judge, I would find that Respondent dis-
charged employee Hansford Stone for violation of
plant rule 40, relating to absences for 3 consecutive
days without permission, and not for his minor activ-
ities on behalf of the Union.8 From 1970 to 1974,
Respondent has terminated 80 persons for violating
this rule.
In February, Stone had been given a verbal warn-
ing by General Foreman Charles Henson and Fore-
man Caydo Smith about his absenteeism and a writ-
ten warning when he returned from a 5-day absence
on April 18. On the latter date, Plant Manager Rob-
inson made it clear that he suspected Stone of stay-
ing away from work because he had been drinking,
rather than for illness, and then Robinson reviewed
Stone's absenteeism record with him.
Subsequently, Stone was advised by his doctor to
go to a hospital. Stone then went to the plant where
6 I would also find , for the reasons set forth by the Administrative Law
Judge , that Foreman Charles Henson's statements to Stone in February
were protected by Sec . 8(c) of the Act and were therefore not violative of
Sec. 8(a)(l) of the Act.
he told Personnel Manager Grissom what the doctor
had advised him to do. Grissom put him on sick
leave and told him to bring a release from the doctor
when he was ready to return to work. Stone went into
the hospital on April 25, was released on Saturday,
May 4, but did not return to the plant until May 14.
Between May 6 and 14, he did not call in to explain
his absence.
In the meanwhile, Henson had received a report
that Stone had been seen in a poolroom and a bar-
beque stand the week after his release from the hos-
pital. Stone's doctor was contacted, and he sent the
Company a note, on May 9, that he had discharged
Stone on May 4, and that he should have been ready
to return to work on May 6. On May 13, the Compa-
ny also received from Stone's doctor a copy of his
report to the insurance company, indicating that
Stone had been under his care in the hospital be-
tween April 25 and May 4; he had provided Stone
with no other services; and his treatment did not re-
quire Stone's house confinement.
Based on these two reports from Stone's doctor,
Robinson decided that Stone's absence was not due
to his previous illness and decided to terminate him
for being absent 3 consecutive days without permis-
sion.
Stone finally presented himself for work on May
14. When Stone was questioned as to where he had
been, he showed Robinson a note, dated the day be-
fore, from Stone's doctor, which said that Stone was
able to return to work on May 14. Robinson then
showed Stone the doctor's May 9 note, and told him
he was terminated. Stone then left. Grissom called
Stone's doctor to learn what his May 13 note meant
and was told that it referred only to a minor sore
throat, and that Stone should have been able to re-
turn to work on May 6, after his hospitalization.
However, an hour later Stone's doctor called back to
ask if the Company would accept the May 13 note as
a release for Stone's return to work, and to destroy
his earlier note. Thereafter, Stone delivered yet a
third note from his doctor to Henson at or about
5:15 p.m. on May 14, stating that the doctor had
"probably" told Stone to take I more week off after
leaving the hospital on May 4 because of his back
problem and that "all other statements made con-
cerning this case are null and void."
As found by the Administrative Law Judge, the
two reports prepared by Stone's doctor a few days
after Stone's release from the hospital indicated that
Stone was able to return to work on May 6 and that
if Stone developed another ailment after his hospital
stay it was unrelated to that confinement. Respon-
dent could reasonably expect him to inform it of his
changed condition and to request an extension of his
MUELLER BRASS CO.
excused absence . Stone's failure to do so, the report
that he had been visiting around, and his previous
record of absenteeism gave Respondent reasonable
cause to believe that Stone had used his excused ab-
sence for sickness in order to extend his stay another
week and had then prevailed on his kindhearted doc-
tor to contradict his earlier reports in an attempt to
get Stone's job back. The record shows that 80 per-
sons had been discharged under this rule for similar
cause.
For these reasons , I find that Respondent estab-
lished cause for the discharge of Stone, and that the
General Counsel has not established by a preponder-
ance of the evidence that this cause was a pretext and
that except for his relatively minor protected activi-
ties Stone would not have been terminated.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act protects employ-
ees in their right to form, join, or assist labor unions
or to refrain from such activity.
WE WILL offer James Roy Rogers and Hans-
ford Stone immediate and full reinstatement to
their former jobs or, if such jobs no longer exist,
to substantially equivalent jobs, without preju-
dice to their seniority or other rights and privi-
leges, and we will pay them for the earnings they
lost because we wrongfully discharged them plus
interest at 6 percent.
WE WILL NOT discharge or discriminate against
employees who join or assist United Steelwork-
ers of America, AFL-CIO-CLC, or any other
union, or who engage in other concerted activi-
ties for their mutual aid or protection.
WE WILL NOT intimidate or warn our employ-
ees against wearing union insignia.
WE WILL NOT question employees whether
anyone had talked to them about the Union or
had tried to get them to sign union cards.
WE WILL NOT ask employees why they are
wearing union buttons.
WE WILL NOT threaten employees with adverse
consequences if the Union wins the election.
WE WILL NOT in any other manner interfere
with, restrain , or coerce our employees in the
exercise of rights guaranteed by Section 7 of the
National Labor Relations Act.
MUELLER BRASS CO., A SUBSIDIARY OF U V
INDUSTRIES, INC.
DECISION
STATEMENT OF THE CASE
1131
MILTON JANUS, Administrative Law Judge: The original
charge in Case 26-CA-4998 was filed by the Union on
February 13, 1974, and an amended charge on May 17,
1974. A complaint based on these charges was issued on
May 20, 1974. Thereafter, the Union filed a charge in Case
26-CA-5125 on May 28, 1974, and another charge in Case
26-CA-5125-2 on May 31, 1974. On June 26, 1974, the
Regional Director for Region 26 issued an amended com-
plaint and an order consolidating these cases. Unless other-
wise noted, all the relevant events in this case occurred in
1974.
The amended complaint alleges that certain supervisors
of Respondent violated Section 8(a)(1) by interrogating
and otherwise coercing unnamed employees, and violated
Section 8(a)(3) by suspending James Roy Rogers on Feb-
ruary 5, and discharging him on February 15; by suspend-
ing Bobby Gene Taylor from May 8 through May 14; and
by discharging Hansford Stone, Jr., on May 14.
Between the issuance of the complaint and the opening
of the hearing, the Respondent made a number of requests
of the Board, General Counsel and Regional Director for
the names of all witnesses to be called by the General
Counsel at the hearing, and for the production of docu-
ments or, in the alternative, for leave to take discovery
depositions. All these requests and motions were denied.
At the opening of the hearing, Respondent renewed these
requests of me. It seemed to me that it might expedite the
hearing if the General Counsel would then disclose the
names of the witnesses he intended to call (particularly
since many of them were in the hearing room anyway) but
the General Counsel refused my request that he do so, and
I did not insist that he comply. However, whether or not
Respondent was entitled to be advised by the General
Counsel after the hearing opened whom he intended to call
as witnesses, I find that Respondent was not in fact preju-
diced by the General Counsel's refusal, since the case was
adjourned for a few days after the General Counsel rested,
during which time Respondent could prepare his defense
with knowledge of the General Counsel's evidence.
On August 5, after the close of the hearing, Respondent
forwarded to me a denial dated July 31, from Peter G.
Nash, General Counsel, of its motion for production of
documents and discovery, etc. and requested that it be in-
cluded as an exhibit. The letter of August 5, and its attach-
ment of July 31, are hereby received and are to be marked
as Respondent's Exhibit 14a and b, respectively.
I held a hearing in this matter on various dates between
July 23 and 31, 1974, at Aberdeen, Mississippi, at which all
parties were represented. Briefs have been received from
the General Counsel and the Respondent.' Upon the entire
record in the case, including my observation of the witness-
es and their demeanor, I make the following:
Attached to the General Counsel's brief was a motion to correct the
transcript, listing about 70 items. Respondent thereupon filed a response,
agreeing to most of the suggested changes, taking exception to a few, and
Continued
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a corporation engaged at Fulton , Missis-
sippi, in the manufacture of copper tubing . During the 12
months preceding the issuance of the complaint , Respon-
dent sold and shipped goods valued in excess of $50,000
directly to points outside the State of Mississippi and dur-
ing the same period , received goods , products , and materi-
als valued in excess of $50 ,000 directly from points outside
that State . On the basis of these admitted facts, I find that
Respondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO-CLC, here-
in called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
A. Background
Production at the Company 's plant in Fulton, Mississip-
pi, began in 1971, and it now employs about 345 employees
on three shifts. The Union conducted unsuccessful orga-
nizing campaigns in 1971 and 1972 , and began its third
campaign early in 1974. It filed a representation petition on
April 15, 1974, in Case 26-RC-4764, and an election was
held on June 14, 1974. This time the Union obtained a
majority of the votes cast, but had not been certified as of
the date of the instant hearing , pending resolution of objec-
tions to conduct affecting the results of the election which
have been filed by the Company.
The Company has also been found guilty of violating
Section 8(a)(1) and (3) in two earlier cases at its Fulton
plant. The first was 204 NLRB 617 (June 28, 1973) in
which the Board found that the Company had improperly
applied a no-solicitation rule against employee George
Blanton , first suspending and then discharging him be-
cause of his support of the Union . The second case was 208
NLRB 534 (January 21, 1974), where the Board found that
the Company had suspended employee James Roy Rogers
because of his union activities and not , as it claimed, be-
offering another 200 or so items to be corrected . This brought forth a rebut-
tal from the General Counsel which , in turn , prompted the Respondent to
yet another response . Most of the suggestions by both parties are to correct
obvious errors in spelling or transcription , and these are hereby accepted.
The General Counsel has informed me that certain exhibits which I re-
ceived were improperly placed in the Rejected Exhibits file by the reporter
These are partial transcripts of the testimony of certain witnesses in the
previous cases at Respondent 's Fulton plant . I hereby direct that the testi-
mony of Charles Lymburner in Case 26 -CA-4495, at p. 30 , that of James
Roy Rogers, in the same case at p . 190, and the testimony of John Williams
in Case 26-CA-4666, p. 212-213 , be marked as G.C. Exhs. 10, 11, and 12,
respectively.
cause Rogers had falsely stated that he had visited a doctor
during a 1-day absence for sickness? This is the same em-
ployee whose suspension and later discharge is the subject
of an 8(aX3) allegation in this case.
In both of the earlier cases the Board upheld the findings
of the Administrative Law Judges as to violations of Sec-
tion 8(a)(1) with respect to creating an impression of keep-
ing their employees ' union activities under surveillance, of
making veiled threats to go out of business , and of threat-
ening employees that union supporters would have difficul-
ty obtaining employment at other area plants. Finally, in
both of them, the Board found that Respondent had made
no secret of its opinion that its employees did not need a
union to represent them, and that it did not want a union
at the plant.
As of the date of the instant hearing, Respondent had
not complied with either Board decision , and has filed peti-
tions for review with the Fifth Circuit Court of Appeals.
B. The Discharge of James Roy Rogers
Rogers was suspended on February 5, after a prelimi-
nary investigation, and was discharged a week or so later,
after a further investigation . The alleged reason for these
disciplinary actions was his violation of plant rule 22,
which reads:
An employee shall not engage in disorderly, immoral,
indecent or illegal conduct.
Rogers was accused of two different specific acts in vio-
lation of the rule, on successive nights, January 31 and
February 1. Rogers admitted doing what he was accused
of. I will describe the acts later, reluctantly, since by any
standard of acceptable conduct they are vulgar and offen-
sive. The General Counsel admits as much, but argues that
Rogers' termination nevertheless violated Section 8(a)(3),
because Respondent seized on these incidents as a pretext
for discharging him because of his union adherence. Thus,
the General Counsel points out that Rogers was a well-
known union supporter whom the Company had once be-
fore disciplined for discriminatory reasons , while also argu-
ing that he was treated differently from other employees
who had committed equally indecent offenses without re-
proach.
I am satisfied that Respondent's officials knew of Rog-
ers' past activities on the Union's behalf. In the first of the
two previous cases, 204 NLRB 617, the Board found that a
company official had told an employee in September 1972
that Rogers' name was on the desk of every employer in
the area as a union pusher, and that he would not be able
to get a job in the area if he left Mueller. In the second
case , 208 NLRB 534, the Board found that the Company
had suspended Rogers, after an investigation whose true
purpose was to punish him for his conspicuous involve-
ment with the Union.
2 It should be noted that Rogers had testified for the General Counsel in
the first of these two prior cases, and that the Administrative Law Judge in
the second case had held that one of the reasons that Respondent had
suspended Rogers was for giving testimony in the earlier case , in violation
of Sec . 8(a)(4). However , a majority of the Board panel did not adopt that
finding because the evidence did not sufficiently establish that as a motive
for the suspension
MUELLER BRASS CO.
Rogers testified credibly in this proceeding that , in prep-
aration for the Union 's third election campaign , he distrib-
uted leaflets , secured authorization cards and wore a union
button constantly . How much of this came to the attention
of supervisors is not known, but certainly his wearing a
union button must have alerted them to the fact that he
was still sympathetic to the Union.
The incidents of January 31 and February 1. Larry Hobbs,
an acquaintance of Rogers at work, had already given no-
tice that he was quitting his employment as of February 2.
On January 31, his next to the last day at work, he brought
into the plant, in a lunchpail , a molded plastic or rubber
penis, which could be cranked and thus made to wiggle.
Before the shift began at 11 p.m . Hobbs displayed it in the
breakroom to a group of men, including Rogers , causing
general merriment . Paul Stamper , the general foreman for
the shift, was there with Frank Robinson , the plant's indus-
trial relations manager , who had come in that night to con-
duct an employees ' meeting at the beginning of the shift.
Stamper and Robinson both walked over to the group as
they watched the display, and saw the object in the lunch-
pail. Stamper said he put it on top of one of the vending
machines in the room , but whether he did or not, the
lunchpail reappeared on a table in the lunchroom at the 5
a.m. break.
Rogers asked Hobbs if he could borrow it, and despite
Hobbs' initial reluctance, Rogers walked over to the table,
opened the lunchpail and demonstrated the object's wig-
gling action by cranking it. Among those at the table was a
female employee , Geraldine Gillespie . As Rogers described
what, followed, "Everybody died laughing", except Gilles-
pie who turned her head away , saying to Rogers, "You
sorry thing, boy." Gillespie made no complaint about Rog-
ers or the display of the object to any management official.
The next night, February 1, was Hobbs' last working
day. During the shift, Hobbs saw a young female employ-
ee, Judy Taylor, nearby. He went over to Rogers' station,
made an indecent remark about Taylor, and dared Rogers
to repeat it to her. Rogers laughed , called Taylor over to
him, and after some reluctance , whether real or feigned,
repeated to her what Hobbs had just said .' Taylor's expres-
sion changed , and she walked away angrily but said noth-
ing. Rogers realized that he had put himself into an uncom-
fortable position , and according to him, apologized to
Taylor twice that evening.4 Taylor did not complain about
Rogers' offensive remark to any company supervisor either
that night or thereafter.
The investigation . The following Sunday evening, Rob-
inson , the industrial relations manager, received a call at
home from a former resident of Fulton , who had done
some work for the plant previously. The caller, named Dai-
ley, told Robinson , that there had been an incident in the
7 Rogers told Taylor, "Fat boy said that he would let you piss in his
mouth to get a look at your thing ." There is an immaterial discrepancy
between Taylor's and Rogers ' versions as to the last word of the sentence,
but no one was in any doubt about what Hobbs and Rogers were referring
to.
Taylor testified that Rogers did not apologize to her until after he was
discharged . However , the conflict on this point need not be decided, since
Respondent's decision to discharge Rogers did not turn on whether he had
apologized to Taylor.
1133
plant last week , and that some husbands were going to be
upset. From Robinson's later testimony, it is apparent that
Dailey was referring to the artificial penis which had been
shown around on the 31st. Robinson was not questioned
about whether he told Dailey that he already knew the
object had been publicly shown that night.
Robinson told Dailey he would look into the matter, and
the next morning asked Foreman Stamper if he had had
any complaints about female employees being shown the
object. Stamper said he had heard nothing about that.
Foreman Moore was also asked about the matter, and he
too said that he had not heard anything about female em-
ployees being upset or having been shown it. Robinson
nevertheless continued to make inquiries among the em-
ployees on that shift, and learned from one of them that it
was reported that Rogers had shown the object to female
employees, particulary Gillespie, in the lunchroom. Gilles-
pie was then called in, and she told Robinson that Rogers
had tried to show her what was in the lunchpail, but that
she had turned her head away and told him to leave.
Robinson testified that in pursuing his investigation, he
spoke to all the female employees on the shift, and to many
of the male employees. One of these, Johnny Franks, cor-
roborated Gillespie's story, and then told him about the
incident the following night, involving Rogers and Judy
Taylor. It is thus obvious that if Robinson had queried
Taylor about the lunchpail and its contents, she had not
used the occasion to complain about what Rogers had said
to her the following night.
After Franks' revelation, Judy Taylor was called into the
office, where she was questioned by Robinson, in the pres-
ence of Foremen Stamper and Moore. She admitted that
an employee had made an indecent remark to her, but be-
gan to cry when Robinson asked her the details. She then
told him that it was Rogers who had made the remark, but
refused to tell Robinson what he had said. Robinson wrote
it out for her, and she agreed that it was accurate except for
the last word, yet another synonym for the female sexual
organ . At one point, Robinson asked her why she hadn't
filed a complaint about it, but she would not answer. Final-
ly, he apologized for having made her cry.
Robinson testified that he could not recall if Taylor had
told him then that she wasn't concerned about the matter,
and didn't understand why he was. Taylor said that she
was interviewed a second time some days later, when she
told Robinson that if she was not upset, they should not be
either; that they shouldn't make such a big deal about Roy
(Rogers) when they hadn't done anything about her com-
plaint over what another employee, Rex Cleveland, had
once said to her. (The Cleveland incident will be related
later.)
Rogers was then called in, and was told he could have
another employee with him as a witness. Rogers asked for
Ronnie Smith, who came in. Robinson asked Rogers about
both incidents, and Rogers readily admitted what he had
done. Robinson then suspended him, pending further in-
vestigation, at which Rogers began to tell him about al-
leged vulgar conduct and conversations engaged in by
male and female employees. Robinson asked him for
names , but Rogers refused to reveal them. Rogers then said
he would notify the Labor Board the next day, and Rob-
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inson replied that he was willing to take this thing any
place.
Rogers was called back the following week , when Rob-
inson asked him about an arrest the year before, and
whether he had not shown a female employee some dirty
pictures . Robinson then left to see the plant manager, and
on returning , told Rogers he was being discharged . Later,
Robinson sent him a letter of discharge, based on the inci-
dents of January 31 and February 1, as a violation of rule
22.
Other misconduct in the plant. To show that Rogers was
treated disparately from other employees who had also en-
gaged in "disorderly, immoral or indecent" conduct, the
General Counsel offered testimony through several em-
ployees that supervisors and employees had engaged in im-
proper conduct of varying degrees of seriousness, which
the Company had ignored. It ranges from the use of such
common expletives as "hell," "damn ," and "son of a
bitch," uttered in the presence of female employees, to
more serious conduct , such as the circulation of books and
magazines displaying female nudity and sexual acts , or tell-
ing dirty stories.
It is apparent that conversation and conduct loosely de-
scribed as suggestive was fairly common in the plant. I find
little of it particularly shocking , and I assume that most of
the men and some of the women were able and willing to
take it in stride. As evidence of that is the fact that few of
the women "subjected" to that kind of talk, or to the dis-
play of "dirty" pictures, ever considered it necessary to
complain to management or to their immediate supervi-
sors. The fact that some foremen went along with it or even
participated in it may have some slight relevancy as to how
company officials reacted to Rogers' two offenses, al-
though I note that there is no evidence that any of this had
come to the attention of top management. More directly
relevant in deciding whether the Company had a double
standard of morality, one for Rogers, and another for ev-
eryone else, is its reaction to certain incidents where wom-
en employees did complain about improper conduct by
male employees . There were three such complaints.
1. Judy Maxey is in her early twenties and married. Her
husband and father work at the plant on the same shift as
hers . She testified that one night in late 1972 or early 1973,
her immediate supervisor, Caydo Smith, while helping her
set up her machine, stepped behind, put his hands around
her, and asked if he could feel her breasts just once. He
then touched her breasts, at which she knocked his arms
away. Smith was an old friend of her father's, and Maxey
said she was going to tell him what Smith had done, but
Smith told her it would only cause trouble, and that she
must never have worked in a factory before. She did not
report it then, either to her father or to any company offi-
cial. Within a week , Smith again came up behind her as she
was bending over, and pinched her on the rear. Maxey
began to cry and went over to her father's machine to tell
him what had happened. Her husband was in the area,
came over when he saw her crying, and together they went
to see General Foreman Stamper . Stamper then took them
to his office where he filled out a report on both incidents.
Maxey was still upset after talking to Stamper, and was
given permission to leave early . Stamper spoke to Smith
that night, who then tried to apologize to Maxey's father.
The next day, Maxey, her father and husband went to see
the plant manager, Lymburner, to complain about Smith.
Lymburner told them he would take some action and that
Smith would apologize. If anything further happened,
Maxey was never informed of its In fact, Smith was later
promoted from leadman to foreman.
Smith denied Maxey's story that he had asked if he
could touch her breasts, or that he had pinched her. If it
were necessary to decide between them, I would credit
Maxey. However, the only issue relevant to this matter, in
the conflicting versions of Maxey and Smith, is how the
Company went about investigating what strikes me as a
very serious charge, that of a supervisor molesting a female
employee. As to that, Stamper testified that he had asked
Smith about it, and that Smith denied Maxey's accusation.
Apparently, that was the extent of the investigation. If
Stamper reported the matter to the plant manager or the
industrial relations manager, neither saw fit to investigate
further, by checking, for example, with other female em-
ployees working under Smith's supervision. As the
Respondent's brief to me put it (p. 27):
The Company concluded that either the incident did
not happen, or it was such an insignificant incident,
that the Company could not ever deduce the final
truth. They elected to credit Caydo Smith's version
based on the evidence at hand, and did so upon a
reasonable basis.
2. Judy Taylor, who had not complained about Rogers'
indecent remark to her, had complained to Foreman
Stamper some months before, about a remark made to her
by employee Cleveland. Taylor testified that shortly after
she began working at the plant, in August 1973, she had
asked Cleveland to help her move something, that he had
done so, and that he had then come back to her, to ask if
she would do something for him too. She asked what it was
she could do for him, and he responded that he would like
to get into her pants .6 She became angry, and he retreated.
She reported the incident to Stamper that evening, who
wrote down what she told him. She asked Stamper if it
would go into the front office. He said it wouldn 't, unless
Cleveland bothered her again. Taylor asked Stamper to
keep Cleveland away from her, and he said he would tell
Cleveland's foreman to keep him in his own department.
Although Taylor testified, on redirect examination, that
she had not told Stamper that she did not want it to go to
the front office, the clear effect of her entire testimony is
that she preferred that Stamper handle the matter quietly
by seeing to it that Cleveland stayed away from her, rather
than have the incident be referred to the front office.
Stamper thus obliged her by not reporting the matter to his
superiors. Cleveland testified that he had never been ques-
tioned about his remark to Taylor by any supervisor or
company official.
More than a year later, when Maxey mentioned the Smith incidents to
Robinson, in connection with a subpena served on her in this case , he told
her he thought she ought to drop the matter since it was so old.
6 Cleveland's testimony on this matter is unbelievable . He said he had
admired what Taylor was wearing, and had asked her if he could wear her
pants. He admitted , though , that it was possible she might have misunder-
stood his remark.
MUELLER BRASS CO.
3. The latest complaint by a female employee over an
indecent remark made to her occurred just a week or so
before the hearing in this case . Janice Loden testified that
she was holding a metal rod when an employee in the area,
Titus Riley, asked her if she had ever had one that little
and that long before. Loden said she asked another em-
ployee, Dillard Johnson, to repeat what Riley had said, to
be sure she had heard it right. Johnson confirmed what she
thought she had heard from Riley. When she told her hus-
band about the remark that evening, he became angry, and
the next day the two of them went to see Robinson, the
industrial relations manager. He told them something
would be done about it, and referred the matter to Gray,
the general foreman on Loden's shift. Gray questioned her
and Johnson about the incident, but if Gray also talked to
Riley, it cannot be determined from the record. The upshot
of Gray's investigation , astounding as it may seem, is that
Loden and Johnson were given written reprimands: Loden
for horseplay in poking Riley with the rod, and Johnson
for having made the statement , despite the fact that he had
merely repeated, at Loden's request, what Riley had said.
The Company does not claim that Riley was also repri-
manded.7
Conclusions as to Rogers. There are aspects of the Rogers
discharge which raise unanswered questions of great con-
cern to me. I am puzzled by what prompted Robinson's
investigation into the artificial penis incident, which then
fortuitously led into a further extensive investigation as to
what Rogers said to Taylor the following night. Robinson
and Stamper had seen the object in the lunch pail the night
of January 31, had seen a crowd of men gawking at it, and
had at the most put it out of sight. No one had then been
warned that its further display might lead to discharge, yet
that was the result when Rogers showed it again. When
Dailey, who did not even work at the plant, called Rob-
inson on a Sunday evening at his home, to tell him crypti-
cally about husbands being upset, did Robinson question
him further as would be most natural, and then inform him
that he already knew about the object having been shown?
Did Dailey, who had done investigative work for the Com-
pany, then tell Robinson that Rogers had been involved in
the later showing of the object, and did Robinson decide to
conduct his own investigation, already knowing that Rog-
ers might be vulnerable? Robinson said he talked to all the
female employees on the shift, yet Taylor who was on that
shift never testified that she had been questioned about
Rogers' showing the object. Would Robinson have consid-
ered that Rogers' showing the object to a group of male
employees was not indecent conduct, yet consider that it
was indecent merely because there was one female employ-
ee present? That would show a tender regard for the sensi-
bilities of the women employees which they themselves ap-
parently did not share , since none of them had complained
about Rogers.
This is to be contrasted with the superficial investiga-
tions and failure to take action in the three incidents when
7 Loden and Johnson were known to be dedicated union supporters, since
they were on a list prepared by the Company of employees who were not to
attend meetings at which the Company could explain its opposition to
unionization.
1135
women did complain about a fellow male employee. When
Smith, a leadman, was accused of molesting a young fe-
male employee, Smith's word was taken as true. Did the
Company really believe that Judy Maxey had falsely ac-
cused Smith to her father and her husband, and if so, why
did it not fire her for it? Instead, it chose to bury the matter
without a full investigation of a serious charge. The same is
true of Taylor's charge against Cleveland and Loden's
charge against Riley: these matters were hushed up with-
out any invocation of plant rule 22. Thus, the treatment
accorded Rogers, for offenses no graver than those of
which Smith, Cleveland, and Riley were accused, runs
counter to the pattern of investigation engaged in by the
Company on those occasions.
In view of Respondent's opposition to the Union, its
knowledge of Rogers' union sympathies, its prior discrimi-
nation against him, and the protracted investigation into
Rogers' two offenses, despite the absence of any employee
complaints, as compared with its complacency over com-
plaints by women employees in similar situations, I am
satisfied that Respondent relied on Rogers' improper con-
duct as a pretext for finally getting rid of him. I therefore
find that Respondent violated Section 8(a)(3) in discharg-
ing Rogers.
C. The Discharge of Hansford Stone
Alleged 8(a)(1) conduct. Stone was employed by the Com-
pany in March 1972, and was informed on May 14, 1974,
that he had been terminated for violation of plant rule 40,
relating to absence for 3 consecutive working days without
permission . The General Counsel contends that he was, in
fact, discharged for his adherence to the Union.
Stone testified that he had signed authorization cards for
the Union in its 1972 and 1974 campaigns, had gotten a
few cards signed by fellow employees, and had worn a
union button daily during the last two campaigns. Fore-
man Henson admitted knowing that Stone had been wear-
ing a union button, but denied knowing how active Stone
had been otherwise for the Union.
Henson and Stone had a conversation about the Union
in February 1974. There is some difference between their
versions as to how the conversation began, but I consider it
immaterial. According to Stone, whose version I accept,
Henson asked him what he thought about the Union, to
which Stone said he didn't know. Henson then went on to
tell him about his own sad experience when he had been a
union member and his union refused him a loan when his
wife was in the hospital, and that a union would hurt a
man more than it would help him. Again, Stone responded
that he didn't know, never having been in a union . Henson
then said, according to Stone, that if there was a strike, the
money lost by the employees would never be made up.
Stone said he was not being treated properly by the Com-
pany, while Henson pointed out that it was the Company
that had given him a job. Henson then said he thought the
Union wouldn't win the election, and that in the long run
the Union would hurt a man rather than help him.
Henson's conversation, as reported by Stone, neither
promised Stone anything if he rejected the Union, nor
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threatened him with the loss of company benefits if he
continued to adhere to it . Henson was trying to convince
Stone that he would gain nothing through the Union, but
his arguments seem to me to be protected by Section 8(c).
It is true that Henson opened the conversation by asking
Stone what he thought about the Union , but I take this
more as a conversational opening than an inquiry into his
state of mind, since Stone customarily wore a union button
which Henson could see. I find nothing violative of Section
8(a)(1) in Henson 's remarks in February 1974.
Stone had been away from work for a few days in April
because of illness, returning with a doctor's note which he
gave to Robinson, the industrial relations manager. Rob-
inson made it clear that he suspected Stone of staying away
from work because he had been drinking , rather than for
illness, and then reviewed Stone's absentee record with
him. When Stone then reported to the plant floor he found
his timecard missing . He located Henson who had his card,
and together with Foreman Smith they went into one of
the offices.
According to Stone, Henson said they weren't trying to
be hard on him , but the new management at the plant was
checking closely into absentee reports . According to Stone,
Henson then told him that part of his problem was that he
might be getting rust poison . When Stone asked what that
meant, Henson pointed to his union button . Stone then
complained about the way Robinson was treating him, at
which Smith said he shouldn't put himself out on a limb to
get something that would hurt him more than Robinson
would . Stone said he had never been in a union but he
knew how Robinson was treating him. Smith then replied
that Stone would do whatever he wanted to. I credit Stone
over the denials of Henson and Smith that the former had
said anything about rust poison , or that the latter had said
that Stone should not put himself out on a limb.
I find that Henson's reference to Stone 's union pin as
causing rust poison, and Smith's remark about not going
out on a limb , would both have the foreseeable effect of
intimidating Stone in the exercise of his right to wear union
insignia and to engage in other union activities . Such gra-
tuitous reminders of possible consequences , following on
Stone's remark about his mistreatment by Robinson,
would serve to impress on Stone a possible connection be-
tween Robinson 's unfavorable treatment of him and his
wearing union insignia, an indication of his continued in-
terest in union organization. I view this as implied threats
that he would continue to be treated unfavorably so long
as he continued to wear a union button . I find that
Henson's and Smith's remarks , set out above , are violative
of Section 8(a)(1).
Stone's discharge. Stone had been given a verbal warning
by Henson about absenteeism in February , and a written
warning when he returned from his 5 -day absence on April
18. Stone denied that he had been shown the warning or
that it had been read to him, but nevertheless admitted that
Henson had spoken to him about his absentee record on
April 18.
The following week, Stone had some stomach problems
and had his sister call in to say he was ill. The next day he
went to see a Dr. Collum, who advised him to go to the
hospital. Stone then went to the plant where he told Gris-
som, the personnel manager , what the doctor had advised
him to do. Grissom put him on sick leave so that he would
not have to call in thereafter, and told him to bring a re-
lease from the doctor when he was ready to return to work.
Stone then went into the hospital on April 25, was released
on Saturday, May 4, but did not return to the plant until
Tuesday, May 14. Between May 6 and 14, he did not call in
to explain his absence.
Stone testified that Dr. Collum, on releasing him from
the hospital on May 4, had told him to take it easy and stay
on his medication. Stone had gone to the hospital with
stomach pains, but said that he had developed a back
problem while there, and that during the week between
May 6 and 13, he also had a sore throat. That week Stone
visited his family in a nearby town but generally stayed
close to home. Henson, however, reported to Robinson
that Stone had been seen in a poolroom and a barbecue
stand the week after his release from the hospital. Dr. Col-
lum was contacted, and he sent the Company a note, on
May 9, that he had discharged Stone on May 4, and that he
should have been ready to return to work on the 6th. On
May 13, the Company also received from Dr. Collum a
copy of his report to the insurance carrier, indicating that
Stone had been under his care in the hospital between
April 25 and May 4, that he had provided Stone with no
other services, and that his treatment did not require
Stone's house confinement. This attending physician's
statement (Resp . Exh. 9) was dated May 8.
Based on Dr. Collum's two reports, Robinson decided
that Stone's absence from May 6 on was not due to his
previous illness , and to terminate him for being absent 3
consecutive days without permission. No notification was
sent to Stone.
The following Tuesday, May 14, Stone reported to the
plant. When asked where he had been the past week, Stone
showed Robinson a note , dated the day before, from Dr.
Collum, which said that Stone was able to return to work
on May 14. Robinson then showed Stone Dr. Collum's
note of May 9, and told him he was terminated. Stone then
left. Grissom called the doctor to learn what his note of
May 13 meant, and was told, according to Grissom, that it
referred only to a minor sore throat, and that Stone should
have been able to return to work on May 6, after his hospi-
talization. However, an hour later the doctor called Gris-
som to ask if the Company would accept the May 13 note
as a release for Stone 's return to work , and to destroy his
earlier note . Grissom did not give him a direct answer.
When Stone left the plant he went to see Dr. Collum.
Later that afternoon he brought back still another note
from him, reading as follows:
This note is to certify that I probably told Hank Stone
to take one more week off (after leaving the hospital
on May 4, 1974) because of his back problems. How-
ever, he is well and ready to return to work as of this
date. All other statements made concerning this case
are null and void and no other notes are forthcoming.
(G.C. Exh. 5.)
Robinson still refused to reinstate him, and even though
Stone spoke to the plant manager the next day, Robinson's
decision to treat Stone's absence the week of May 6 as a
MUELLER BRASS CO.
voluntary quit was allowed to stand.
I have related this matter in all its detail, not because I
expect to be able to decide whether Stone was in fact con-
tinually under Dr. Collum's care between May 4 and May
13, when he went to see the doctor for the first time after
his release from the hospital, but only to determine wheth-
er the Company considered, in good faith, that Stone was
in violation of its 3-day unexcused absence rule.
The two reports which Dr. Collura prepared a few days
after Stone's release from the hospital indicate that Stone
was able to return to work on May 6, and that if Stone
developed another ailment after his hospital stay, it was
unrelated to that confinement. The Company could rea-
sonably expect him to inform it of his changed condition
and to request an extension of his excused absence . Stone's
failure to do so, the report that he had been visiting
around, and his previous record of absenteeism seem to me
to be a sufficient basis for Robinson's belief that Stone had
used his excused absence for sickness in order to extend his
stay another week, and had then prevailed on Dr. Collum
to contradict his earlier reports. I have taken into account
the company's knowledge of his rather minor activities on
the Union's behalf as well as the remarks of Henson and
Smith about "rust poisoning" and "going out on a limb."
Despite the fact that I have found these remarks to be in
violation of Section 8(a)(1), I am not satisfied that the
Company's admitted opposition to the Union played any
part in its decision to terminate Stone for violating its rule
about unexcused absences. I shall therefore recommend
that the allegation of the complaint relating to Stone's dis-
charge be dismissed.
D. The Suspension of Bobby Taylor
Taylor, who had been employed at the plant since No-
vember 1973 , was given a 5-day suspension on May 8,
1974. The General Counsel alleges that it was because of
Taylor's union activities and sympathies, while the Re-
spondent contends that it was given for violation of its
plant rule 12, reading as follows:
An employee shall not utter or publish false , vicious,
or malicious statements concerning the Company, its
products, or any employee of the Company, nor give
false testimony in the case of accident or other lawful
investigation . (G.C. Exh. 2).
Interrogation . Taylor had worn a union button continu-
ally during the Union's election campaign , and Respon-
dent admitted that it knew he was prounion. The com-
plaint alleges two incidents of unlawful interrogation of
Taylor by supervisors. The first occurred in December
1973, at the end of Taylor's first 30 days on the job, when
his performance was reviewed by Foreman Gunter. Taylor
said that Gunter then asked him if anyone had talked to
him or tried to get him to sign a union card. Gunter denied
asking Taylor such questions, saying that he had only told
Taylor that the Company felt like the employees did not
need a union, and that it would do anything legally to keep
one out.
Two months later, at Taylor's 90-day review, Foreman
Rose asked him, according to Taylor, what he had against
1137
the Company, that he should be wearing a union button,
that unions in his experience lead to violence and strikes,
and that the Company did not want a union. Rose testified
that he had not said anything about Taylor's union button
nor asked him why he was for the Union or against the
Company.
There is very little here to help me decide who was tell-
ing the truth-Taylor or the two supervisors who reviewed
his performance during his probationary period. Although
the demeanor of Gunter and Rose revealed no obvious or
telltale signs that either was lying, I believe Taylor. I there-
fore find that Gunter asked him if anyone had talked to
him about the Union or had tried to get him to sign a
union card, and that Rose had asked him,. on seeing his
union button, what he had against the Company. Interro-
gation as to an employee's feelings about the Union, or
whether other employees have spoken to him about it, are
clearly matters of no concern to supervisors and tend to
intimidate the object of such examination in the exercise of
his Section 7 rights. I find these remarks of Gunter and
Rose to be in violation of Section 8(a)(1).
The suspension. Taylor and another employee, Copeland,
were assigned to service the machines in the automatics
department, loading, cleaning, and keeping them supplied
with stock. There were three lines in the department, and
with the permission of their supervisor, Rose, one of them
would service one line for a certain period while the other
would be, working on the other two lines, after which they
would switch. There is a dispute, which I think it unneces-
sary to resolve, whether such switching could take place
during a shift or only at the beginning of a work period.
On May 6, Taylor who was working two lines that shift,
said he saw Copeland motion him to come over to his line.
Taylor went over to talk to him, and had been there just a
few seconds when Rose called him over to his station and
asked him what the hell he was doing back there. Taylor
said he tried to explain that Copeland had wanted to tell
him something, but Rose cut him off by telling him "to get
his son of a bitching ass back on his line, and that if he
couldn't do the job he would get someone else who could."
Taylor said he was offended by the expletive, and told a
couple of employees at the next break period what Rose
had said to him. He also complained to Foreman Henson
about the remark, who told him he would talk to Rose
about it. At the end of the shift, Taylor went to see Henson
who said he had approached Rose but hadn't been able to
understand him because of the noise. Henson told Taylor
he would get back to him later. Taylor then punched out,
leaving through the casting department where he ran
across Rose. Rose told Taylor he wasn't to leave through
casting when it was in operation, at which Taylor told him
that he didn't appreciate what Rose had said to him earlier,
that his mother was no damn bitch. Taylor said that Rose
acted innocent, as if he didn't know what Taylor was refer-
ring to. Rose testified, as a matter of fact, that he had not
cursed Taylor but had only told him to get back to his own
job, and that if he couldn't handle it he would get someone
who could.
Taylor did not come to work the next night because of
car trouble. When he returned the night following, he went
to see Industrial Relations Manager Robinson to complain
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about Rose 's cursing him. Taylor asked that Copeland be
called in, and Robinson also sent for Henson and Rose.
Robinson then questioned Taylor and Copeland about the
incident . Copeland said he had not heard what Rose had
actually said to Taylor, but repeated what Taylor had re-
ported Rose as saying . Robinson, Henson , and Rose then
left the room for a few minutes , and on returning, Rob-
inson asked Taylor if he would be willing to take a lie
detector test. Taylor said he would be glad to do so, and
offered to go to Tupelo where there was the necessary
equipment . Robinson then suspended Taylor pending fur-
ther investigation, telling him he could file a complaint
with the plant manager . Taylor did so, requesting that he
and Rose be given a he detector test.
Taylor returned to the plant the following week, and
again met with Robinson , Henson , and Rose . Robinson
told him the matter had been further investigated, that he
had decided that Rose 's version of their confrontation was
true, and that Taylor had been given a 5-day suspension
for falsely telling other employees that Rose had cursed
him. Since Taylor had already been away for 5 days, he
was told to return to work the next day.
Robinson 's investigation of Taylor's complaint that
Rose had cursed him strikes me as being loaded against
Taylor, particularly his first raising the matter of taking a
lie detector test and then dropping it when Taylor agreed
to do so with Rose . It is , however, axiomatic that an em-
ployer may indulge himself in disciplining employees for
inadequate or even unfair reasons, as measured by an im-
partial arbitrator, so long as he is not motivated by anti-
union considerations in meting out such discipline. Rob-
inson either believed Rose's version that he had not cursed
Taylor, or professed to believe it so as to uphold the pres-
tige and authority of a supervisor about whom a rank-and-
file employee has complained . Robinson may also have
had other reasons for favoring Rose over Taylor, such as
Taylor's brashness in blowing up a minor run-in with his
supervisor, and then publicizing it to other employees. I
think some or all of these considerations motivated Rob-
inson, nor am I convinced from the evidence that Taylor's
only show of adherence to the Union , wearing a union
button, played any part in Robinson's decision to suspend
Taylor. I shall therefore recommend that the allegation of
the complaint relating to Taylor's suspension be dismissed.
E. Other 8(a)(1) Allegations
Foreman Henson and Judy Maxey. The hearing in this
case was originally scheduled for Tuesday, June 18, 1974,
and in preparing for it, the Company posted a notice that
employees who were under subpena in the case should ad-
vise their supervisors so that replacements could be ob-
tained . Maxey told Henson , at her work station , that she
had received a summons for June 17 , and since he knew
that the Rogers case (as it was referred to at the plant) was
scheduled for the next day, he was confused and asked her
if it had anything to do with the Rogers case or if she had
gone to the Labor Board about the Caydo Smith incident.8
8 Maxey testified that Henson had asked her why she had gone to the
Maxey then said she wanted a witness to their conversa-
tion, but Henson was then called away. Later that day, he
spoke to Judy Maxey and her husband on the plant floor,
and again asked if she had gone to the Board in connection
with her experience with Smith. The rest of the conversa-
tion between Henson and the Maxeys centered about the
fact that the Company had never satisfied her in connec-
tion with her complaint a year and a half ago over Smith
molesting her. The above recital of facts is based on Judy
Maxey's testimony. Henson's testimony is not substantially
different. He said he was confused by Maxey saying that
she had been summoned to court for June 17, and that he
had asked her if she knew what the summons was for, and
whether it concerned the Rogers case or her complaint
about Smith.
Based on Maxey's testimony, the General Counsel con-
tends that Henson's questioning her as to why she had
given an affidavit to the Board was coercive interrogation,
tending to intimidate her, and was thus violative of Section
8(a)(1).
Henson was, in effect, trying to find out from Maxey if
she was to be a witness in the Rogers case on June 18, or
whether she had made a complaint to the Board in what he
regarded as an unrelated matter , that concerning Caydo
Smith. As it turned out, of course, Maxey had been subpe-
naed to testify in the Rogers case about Smith , but Henson
had no way of knowing then how or why the two seemingly
unrelated matters were connected.
In view of Maxey's error in telling Henson that she had
been summoned to court for June 17, Henson's inquiry
seems to have been prompted by his confusion as to what
Maxey had been summoned for. Henson wanted to know
if the Company was being charged in what seemed to him
a totally different case or if, perhaps, Maxey had to appear
somewhere on the Rogers matter on the day before the
scheduled hearing. Although, technically speaking, it was
no concern of his why or when Maxey had to appear or for
what case, realistically it seems to me that his inquiries of
Maxey were not coercive.
Excluding union adherents from company meetings. Para-
graph 10(b) of the complaint alleges that Respondent vio-
lated Section 8(a)(l) by requiring known union adherents
to work while other employees attended meetings conduct-
ed by Respondent concerning the union election.
Williams, the Company's vice president for industrial re-
lations , conducted a series of meetings prior to the election
at which he expressed the Company's opposition to the
Union. Nothing that he said then is alleged to be violative
of the Act. In preparing for the meetings, which were held
on each shift, supervisors made up a list of all employees
classifying them in one of three groups: those who had
Labor Board , but her testimony on p. 365 leaves no doubt in my mind that
his inquiry was whether she had gone to the Board over the Caydo Smith
incident.
9 The cases cited to me by the General Counsel, Tamper, Inc., 207 NLRB
907 (1973), and Ambox, Incorporated, 146 NLRB 1520 (1964), are not appo-
site to the situation here . Those cases deal with extensive interrogation by
company counsel of employees as to their own union activities and those of
other employees, during interviews which were ostensibly in preparation for
trial. Here , on the other hand , a company supervisor was only trying to
learn for purposes of work scheduling why an employee had to be away
from work on a date other than a scheduled Board hearing.
MUELLER BRASS CO. 1139
been employed at the plant during a previous union cam-
paign ; those who had been first employed since the prior
campaign ; and those whom the Company considered to be
strong union adherents . None of the employees in the last
group were invited to attend the company meetings. The
lists are in evidence as Administrative Law Judge's Exhibit
1, and my count of group 3 (those not invited) shows that
there were about 90 such employees, or roughly one quar-
ter of the total employee complement.
On May 30, Bobby Taylor, whose 5-day suspension I
have discussed previously, asked his foreman, Rose, if the
meetings had been discontinued and why he was not al-
lowed to attend. Rose told him that the Company already
knew how he was going to vote and that he did not need to
go. Taylor then asked to speak with Williams, who had
conducted the meetings , and was permitted to do so.
Respondent has referred me to two recent Board cases
which hold that, even in the context of extensive violations
of Section 8(a)(1), an employer may exclude known union
adherents from employee meetings held to present his case
for opposing a union then engaged in seeking recogni-
tion .) I find no significant distinctions between those cases
and the situations here, and I shall therefore recommend
dismissal of the complaint in that respect.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. United Steelworkers of America , AFL-CIO-CLC, is
a labor organization within the meaning of Section 2(5) of
the Act.
3. By discriminatorily terminating James Roy Rogers,
thereby discouraging membership in the Union , the Re-
spondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a)(3) and (1) of
the Act.
4. By intimidating and warning employees against wear-
ing union insignia , by questioning employees whether any-
one had talked to them about the Union, had tried to get
them to sign union cards, or by asking employees why they
were wearing union buttons , Respondent has interfered
with , coerced , and restrained its employees in the exercise
of the rights guaranteed in Section 7 of the Act, and in
violation of Section 8(a)(1) of the Act.
The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has committed certain
unfair labor practices , I shall recommend that it cease and
desist therefrom , and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having first suspended and then discharged James Roy
Rogers, I find it necessary to order the Respondent to offer
him reinstatement , with backpay computed on a quarterly
basis from the date of his suspension to the date of the
10 Sparlus Corporation, 195 NLRB 134, 141 (1972), and Luxuray of New
York Division of Beaunit Corporation , 185 NLRB 100, fn 1 ( 1970).
offer of reinstatement, as prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), plus interest at 6 percent
per annum. I shall order it to post appropriate notices.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 11
Respondent, Mueller Brass Co. a subsidiary of U V In-
dustries, Inc., Fulton, Mississippi, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in United Steelworkers of
America, AFL-CIO-CLC, or in any other labor organiza-
tion of its employees, by discriminatorily discharging, forc-
ing the termination, or in any other manner discriminating
against any employee in regard to hire, tenure, or any other
term or condition of employment.
(b) Intimidating and warning employees against wear-
ing union insignia; questioning employees whether anyone
had talked to them about the Union or had tried to get
them to sign union cards; or asking employees why they
were wearing union buttons.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to join or assist the above-named labor orga-
nization, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, to en-
gage in other concerted activities for the purpose of mutual
aid or protection as guaranteed in Section 7 of the Nation-
al Labor Relations Act, or to refrain from any or all such
activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer James Roy Rogers immediate and full rein-
statement to his former job, without prejudice to his senior-
ity or other rights and privileges, and make him whole for
any loss of earnings suffered by reason of Respondent's
discrimination against him in the manner set forth in "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all rec-
ords necessary to analyze the amount of backpay due, and
the right of reinstatement.
(c) Post at its plant and office at Fulton, Mississippi,
copies of the attached notice marked "Appendix."12 Copies
of the notice, on forms provided by the Regional Director
for Region 26, after being duly signed by an authorized
representative of the Respondent, shall be posted immedi-
ately upon receipt thereof, in conspicuous places, including
11 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
12 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all places where notices to employees are customarily post- ing, within 20 days from the receipt of this Order, what
ed. Reasonable steps shall be taken by the Respondent to steps the Respondent has taken to comply herewith.
ensure that said notices are not altered , defaced , or covered IT IS FURTHER RECOMMENDED that the allegations of the
by any other material. complaint regarding any violations not found herein be
(d) Notify the Regional Director for Region 26, in writ- dismissed.