Asheville Steel Co.

National Labor Relations Board - Board Decisions

Mar 5, 1973

202 N.L.R.B. 146 (N.L.R.B. 1973)

146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Asheville Steel Company and Robert R. Blackburn.
Case 1I-CA-4845
DECISION
STATEMENT OF THE CASE
March 5, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On October 20, 1972, Administrative Law Judge
Lowell Goerlich issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
brief, and has decided to affirm the Administrative
Law Judge's rulings, findings,' and conclusions2 and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Asheville Steel
Company, Asheville, North Carolina, its officers,
agents, successors, and assigns, shall take the action
set forth in the Administrative Law Judge's Order.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule 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 were incorrect Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings
2 We do not adopt two conclusions made by the Administrative Law
Judge in his Decision
First, the Administrative Law Judge concluded that there was no credible
proof that any employee had ever been discharged for committing the same
offense as Blackburn was charged with Contrary to the Administrative Law
Judge, it appears that two employees were previously discharged for the
same offense Blackburn was charged with However, this fact, when
considered in the light of the Respondent's past exemption of Blackburn
from overtime and weekend work because of his domestic problems, and
the concurrent union membership drive do not persuade us that he was
discharged for cause Accordingly, we agree with the Administrative Law
Judge in his further conclusion that the discharge was based on a pretext to
conceal a motive to discourage membership in the Union
Second, the Administrative Law Judge concluded that Blackburn's
transfer was for the purpose of isolating him from association with other
employees Our review of the record leads us to a contrary conclusion
There is credible record evidence that Blackburn had performed other
similar work outside of the plant prior to the advent of the organizational
drive
LOWELL GOERLICH, Administrative Law Judge: The
charge filed by Robert R. Blackburn, an individual, on
March 8, 1972, was served on the Asheville Steel
Company, the Respondent herein, on the same date. A
complaint and notice of hearing was issued on May 3,
1972. The complaint charged that the Respondent had
discharged Robert R. Blackburn on March 6, 1972, in
violation of Section 8(a)(3) of the National Labor Rela-
tions Act, as amended, herein referred to as the Act. In
addition it was charged that the Respondent had violated
Section 8(a)(1) of the Act by interrogating its employees as
to their union sympathies, by threatening employees with
loss of their positions if the Union came in, by creating an
impression of surveillance of employees' union activities,
by threatening employees that they would lose all benefits
if they selected the Union to represent them, by instructing
employees to think over their union activity, and by
offering to help get employees out of the Union.
The Respondent filed a timely answer denying that it
had engaged in or was engaging in any of the unfair labor
practices alleged.
The case came on for trial on June 29 and 30, 1972, at
Asheville, North Carolina. Each party was afforded a full
opportunity to be heard, to call, examine, cross-examine
witnesses, to argue orally on the record, to submit
proposed findings of fact and conclusions, and to file
briefs. All briefs have been carefully considered.
FINDINGS OF FACTS,' CONCLUSIONS, AND REASONS
THEREFOR
1. THE BUSINESS OF THE RESPONDENT
The Respondent is now, and has been at all times
material herein, a North Carolina corporation with its
principal place of business in Asheville, North Carolina,
where it is engaged in the steel fabrication business.
Respondent, during the past 12 months, which period is
representative of all times material herein, received directly
from points outside the State of North Carolina raw
materials valued in excess of $50,000. During the same
period, Respondent shipped directly to points and places
outside the State of North Carolina finished products
valued in excess of $50,000. The Respondent is now and
has been at all times material herein an employer engaged
to commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Bridge, Structural and
Ornamental Iron Workers , AFL-CIO, hereafter referred to
as the Union, is now , and has been at all times material
herein , a labor organization within the meaning of Section
2(5) of the Act.
The facts found herein are based on the record as a whole and the
observation of the witnesses
202 NLRB No. 10
ASHEVILLE STEEL COMPANY 147
III. THE UNFAIR LABOR PRACTICES2
A. The Supervisory Status of Willie A. Bridges,
Dutch Collins, and Clarence E. Hensley
Gilbert L. Marlowe is the Respondent's president,
Charles F. Sawyer is the Respondent's vice president in
sales, Frederick R. Stagg is the Respondent's vice president
in production, Jack R. Gosnell is the Respondent's plant
superintendent, and Eugene R. Gregory is the Respon-
dent's erection superintendent. The Respondent admits
that these employees of the Employer are supervisors
within the meaning of Section 2(11) of the Act. Issue is
drawn as to whether or not Willie A. Bridges, Dutch
Collins, and Clarence E. Hensley are supervisors within the
meaning of the Act, as alleged in the General Counsel's
complaint. Each of these individuals testified. Bridges
referred to himself as a yard foreman, Collins referred to
himself as a shop foreman, and Hensley referred to himself
as "foreman of part of the shop crew."3 Each of these three
employees wore different attire than that of the employees
who worked under them and generally did not engage in
any physical labor.
Budges supervised a crew of six or seven employees. He
decided what work they were to perform, excused them
from work for short periods of time without prior consent
of his supervisors, recommended raises which were
approved by the Respondent, and instigated discharges.4
In administering these functions Bridges exercised inde-
pendent judgment. In addressing an employee, Plant
Superintendent Gosnell referred to Bridges as the employ-
ee's boss and said to the employee, "[Y]ou do what he tells
you."
Dutch Collins supervised about 16 to 18 employees.5 He
assigned work to these employees and transferred them
from job to job. In making assignments he evaluated the
employee's ability and exercised his independent judg-
ment.6 Collins granted employees time off for short periods
and recommended raises. If employees performed their
work in an unsatisfactory manner, he reprimanded them
"strongly."
Hensley supervised between 12 and 20 employees. He
assigned work to those employees and transferred them
2 The credibility resolutions herein have been derived from a review of
the entire testimonial record and exhibits, with due regard for the natural
logic of probability, the demeanor of the witnesses, and the teachings of
N L R B v Walton Manufacturing Company & Loganville Pants Co, 369
U S 404, 408 As to those witnesses testifying in contradiction to the
findings herein, their testimony has been discredited, either as having been
in conflict with the testimony of credible witnesses or because it is in and of
itself incredulous and unworthy of belief
3 At the time of the hearing, Hensley no longer occupied such position,
he had been an estimator for about 2 months
4 Bridges instigated the discharge of employee Ayward C Clonts when
he refused to work overtime Bridges brought the matter to the attention of
Stagg and Gosnell Clonts was discharged in the presence of Bridges
5 According to Gregory, sometimes the number of employees under
Collins reached as high as 30
6 Collins testified that he used his "independent judgment in deciding
what job a particular man will get," and opined, "You've got to have
enough sense to know whether a man can make a horseshoe or not or
whether he can make a handrail or something "
7 Hensley testified that he exercised "independent judgment in deciding
which work should be given certain employees "
8 Hensley told employee Jerry Patton that he was pleased with the work
that he was doing and that he had talked to Stagg and Gosnell about it and
from job to job. In this function he exercised independent
judgment.7 Hensley excused employees for several hours
without consulting his superiors, recommended pay in-
creases,8 "chewed out" employees who performed unsatis-
factonly, and excused employees from working overtime.
When employees were assigned to Hensley or Collins they
were told by Gregory or Gosnell "get with them and they'll
tell you what to do." 9
The foregoing indicia of supervisory status bring the
duties and responsibilities of Hensley, Bridges, and Collins
within the definition of supervisor as set forth in Section
2(11) of the Act.10 The exercise of supervisory authority by
these employees was "not of a merely routine or clerical
nature." These employees "responsibly"" directed other
employees, exercised independent judgment in the assign-
ment of their jobs, recommended and administered
discipline, and recommended wage increases. Moreover,
they were held out to be the Respondent's bosses and so
represented themselves. They were the only supervisors to
whom the employees working under them reported for
work assignments and direction. Accordingly, Hensley,
Bridges, and Collins were supervisors within the meaning
of the Act.
B. The Alleged Violations of Section 8(a)(1)
of the Act
First: The union organizational campaign commenced
around February 1, 1972, with the request by employee
Robert R. Blackburn, the alleged discriminatee herein, that
Union Representative Franklin visit his home. Af such visit
Franklin and Blackburn discussed union organization and
Blackburn was given union authorization cards which he
later distributed on the Respondent's premises. Blackburn
distributed about 15 cards; , other employees likewise
distributed some union authorization cards. At this time
the Employer had about 75 to 80 employees working at its
plant.12 Blackburn, as well as others, discussed the Union
at the plant and attended union meetings. Blackburn,
among the employees, was the acknowledged leader of the
union movement, and the prime spokesman at union
told them that he thought Patton deserved more money On the next Friday,
when Gosnell passed out the paychecks. he told Patton that he would
receive a raise, which he did
9 In respect to the duties and responsibilities of Hensley and Collins,
Erection Superintendent Gregory testified
Q Hensley and Collins, they had absolute control over that crew,
they were the only bosses of their respective crews , right9
A Yes
Q They were the immediate bosses, right9
A Yes
10 Section 2(11) provides
The term "supervisor" means any individual having authority, in the
interest of the employer, to hire, transfer, suspend. lay off, recall.
promote. discharge. assign , reward , or discipline other employees. or
responsibly to direct them , or to adjust their grievances , or effectively
to recommend such action. if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical nature.
but requires the use of independent judgment
ii "To be responsible is to be answerable for the discharge of a duty or
obligation Responsibility includes judgment , skill, ability, capacity, and
integrity, and is implied by power" Ohio Power Co v N LR B, 176 F 2d
385, 387 (C A 6)
i2 This is the estimate of Vice President Frederick R Stagg
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meetings. Supervisors in the plant heard rumors of the
union activity.13 Rumors of this activity were reported to
Gosnell and Stagg by Supervisor Bridges, who testified that
he had heard "faintly" rumors that Blackburn was pushing
for the Union. Around March 5, 1972, Sawyer was
informed by Stagg at a morning meeting that Blackburn
was one of the "pushers" for the Union. Collins had also
heard rumors that Blackburn had been giving out cards as
early as 2 weeks before February 25, 1972.
On February 9, 1972, President Gilbert Marlowe
approached employee Ayward C. Clonts and said, "I can't
believe what I heard about you about this union deal."
Clonts said, "What do you mean?" Marlowe responded,
"You went to a union meeting last night." Clonts then said,
"Mr. Marlowe, how could I be at two places at one time? I
was making music last night." Clonts had been to the
union meeting on February 8, 1972. Blackburn was at the
same meeting.14
Again on February 9, toward quitting time, Marlowe
approached Clonts and said, "Your name is still coming up
about these union cards." Clonts responded, "I don't know
what you're talking about. I haven't been giving out any
union cards in the parking lot." Marlowe responded, "I
will not have this on these premises." 15
On the same day, February 9, Clonts approached Yard
Foreman Bridges and said, "Bill, I can't figure out Gilbert
Marlowe is hot on me today." Bridges answered, "I believe
I can tell you one thing; you're in this umon, ain't you."
Bridges continued, "You went to a union meeting last
night, didn't you." Clonts replied, "How can I be at two
places at the same time." Thereupon Bridges said, "You're
trying to push the union in here, ain't you?" Clonts
answered, "No, sir," adding, "Another thing, after 4:30
after I punch the clock, it's my business what I do." 16 In
the same conversation Bridges also commented, "We don't
want the union in here; we don't think a union would be
good."
On February 25, 1972, Blackburn, accompanied by
Collins, went to the Biltmore Estate for the purpose of
surveying a rotted cable which was to be replaced across a
river. As Collins and Blackburn were returning in an
automobile, Collins said to Blackburn, "Bob, what's this I
hear about you getting union cards signed?" Blackburn
told him that "that was right." Thereupon Collins asked
him why he was soliciting cards. He answered, "Well, we're
not making any money down here, Dutch; the money
they're paying us is so far out of line with the cost of living,
it's not even funny; it's ridculous." Collins responded, "I
can't blame you for that." Later Blackburn commented, "I
guess they'll fire me when I get back to the shop." Collins
13 Bridges testified that rumors of union activities were "all over the
plant " Bridges also testified, "Well, you could hear it [talk about union
activities ] about anywhere you was at as long as youjust heard somebody
passing by "
i4 Marlowe denied the conversation as related by Clonts, however, he
admitted that he had a conversation with Clonts in which the statement that
Clonts had "made music" was used His denial is not credited
is Marlowe claimed that he had not heard about union activities until
Sunday, March 4, 1972, when he had returned from a vacation extending
from February 18 to March 4, 1972 Marlowe's denials are not credited
ie Bridges denied the content of the conversation with Clonts, however,
he admitted Clonts came to him one morning and said that "he had been
accused of being at union meetings, and he wasn't " According to Bridges,
said, "No, they don't know about it." Blackburn answered,
"Well they will when we get back over there-when you
get back over there." Collins said, "No, I won't tell
them." 17
Sometime prior to March I, 1972, a petition was
circulated among the employees for those who were against
the Union. On March 1, Erection Superintendent Gregory
asked employee Robert L. Hensley whether he had signed
the petition. He responded that he had not. Gregory
replied "that [he] should go ahead and sign it, that it would
look so much better on [his] part to the Company if the
Company did see [his] name on the list." Hensley said that
he would not "sign it either way." Thereupon Gregory
explained that if the employees "did get the union in that
[they] would be working more or less for the union, having
to pay them for something [they] wasn't getting, and [they]
also would lose some of the Company benefits that they
were giving [them ]." 18
Prior to March 1, Shop Foreman Hensley conversed with
employee William David Hensley, at which time Shop
Foreman Hensley said to employee Hensley that "he didn't
think the union will help the employees any and that you
could lose your position if we was to get the union." Shop
Foreman Hensley added that it wouldn't do any good for
employee Hensley "to say anything about it because there
wouldn't be anybody there but [employee Hensley and
Shop Foreman Hensley] and [Shop Foreman Hensley]
would deny it." 19
Several days prior to March 2, 1972, Vice President
Charles F. Sawyer was informed by Vice President
Frederick R. Stagg that there were "rumors flying of union
activities." He received substantially the same information
from Shop Superintendent Gosnell, Erection Foreman
Gregory, and Shop Foreman Collins. Collins was quoted as
saying, "There is huddling and rumors going on. and I
understand there is union talk going."20 In response to
these rumors, Sawyer prepared a speech which he delivered
to the employees on March 2, 1972.
President Marlowe was absent. Sawyer "felt in Mr.
Marlowe's absence in the best interest of the Company that
this is what he would have done. And acting as Executive
Vice President [he] made the speech before [Marlowe]
came back." Among other things Sawyer read to the
employees, "The Company does not want a union here.
We sincerely believe that the introduction of a union into
this Company is not necessary or beneficial to your welfare
and growth with the Company. The Company will resist
this Union's efforts to make dues payers out of you with
every proper and legal means. We would like to make it
clear that it is not necessary for anyone to belong to any
he told Clonts, "As far as we was concerned they [Union I was all bad, we
didn't care who knew it and we didn't want one, we wasn 't for one, and we
didn't care who knew it " Clonts' testimony is credited
'r Collins admitted that such a conversation took place, but he claimed
that Blackburn said to him, "I suppose now you've heard that I am giving
out union cards," to which Collins replied, "I've heard rumors of that " The
version of the conversation as related by Blackburn is credited
is Gregory did not specifically deny that he had suggested to Hensley
that he sign the petition against the Union
19 Shop Foreman Hensley denied the conversation His denial is not
credited
20 Collins was quoted by Sawyer as also saying, "I guess you've heard of
this s- flying around "
ASHEVILLE STEEL COMPANY 149
union in order to work here . . . getting involved with the
Iron Workers Union is a serious thing. Each one of you
should be certain that you have the true facts about this
union and unionization generally. Any supervisor will be
happy to answer any questions you have." The speech
commenced with the statement, "It comes as no surprise to
us that the notorious Iron Workers Union is trying to make
union payers out of you . . . . Most of you know that the
Iron Workers Union is no stranger to violence. We do not
believe this is the type group any of you would want to get
involved with." 21
On March 6, 1972, employee Robert R. Blackburn was
discharged. Several days before Blackburn was fired, Shop
Foreman Clarence Hensley approached employee Joel
Henderson and said to him, "What do you think about all
this talk about the union?" Henderson replied, "What do
you mean about all this talk?" Hensley said, "Are you for
this union or not?" Henderson answered that he was for
the Union. During the conversation, Hensley said, "Well,
I'll tell you if a union comes in the Company will take
away your benefits such as your profitsharing, your
Christmas bonus, and you know, stuff like loaning you
money." 22
During the first week in March, Shop Foreman Clarence
Hensley asked employee Jerry Patton whether he had
heard talk about the Union. Patton answered in the
affirmative. Hensley said that "the union would not be any
benefit" to the employees.
On March 8, 1972, the day after a union meeting, Shop
Foreman Hensley again spoke to employee Patton.
Hensley said that he was surprised that Patton had gone to
the union meeting.
On March 8, 1972, employee Patton was engaged in
conversation with Gregory. Gregory told him that he had
seen him coming out of the labor temple the night before
and asked him how many men were at the meeting. Patton
replied 25 or 30. Gregory said that the Company had been
good to Patton and that if the Union were voted in the
employees would lose their benefits and insurance. About
1 o'clock on the same day, Gregory said to Patton that he
didn't really see him coming out of the labor temple but
that he had "told on" himself.
On March 8, 1972, employee Patton went to Vice
President Stagg's office where he talked to Gosnell and
Stagg. Some of the employees who were assigned to go to
New York to do some erection work had told Patton that if
they got into trouble in New York, they would take it out
of his hide. Patton told Gosnell "that the guys that were
21 The General Counsel claims that Sawyer deviated from his speech and
added that if the Union came in to Asheville Steel the employees would lose
all their benefits While several employees testified that Sawyer made such
statement Sawyer's testimony that he did not deviate from written text is
credited It is believed that the employees were giving their interpretation of
Sawyer's remarks rather than a verbatim recollection
22 Hensley denied the conversation with Henderson but admitted that
Henderson had told him that he had signed a union card Hensley's denials
are not credited
23 Gosnell admitted that the conversation took place, that reference was
made to the employees going to New York, and that, if there was any
trouble , they would beat Patton up or whip him However, he denied any
reference to getting Patton out of his involvement with the Union Gosnell
testified , "Jerry, if this pressure is not off of you where you'll be able to do
your job in a correct way , think it over if you want to, and tell me who's
putting the pressure so maybe I can do something about it, think it over,
going up there evidently thought that [he] was the one that
was pushing this union and the one that was giving out the
cards because he came to [him] and told [him ] that if there
was any trouble up there that he was going to come back
and take it out of [his] hide." Gosnell responded that he
did not think that the men who were going to New York
would have any trouble; "that he hadn't heard a thing
about it." When Patton told Gosnell that "the boys
thought that [he] was the one who was giving out cards,
getting the cards signed," Gosnell commented, "[I]f you
are involved in this activity, think it over the weekend, and
I'll get you out of it." 23
Around March 8, 1972, Gosnell approached employee
William David Hensley and said to him that the Company
had been good to him had it not. Hensley answered, "Yes,
sir." Gosnell said, "We heard you was for the union."
Hensley answered, "No, sir"; the answer was untruthful.
About a week after Blackburn was fired Erection
Superintendent Gregory approached employee Joel Hen-
derson and said, "I hear you've been pushing this union."
Henderson answered that he had not been pushing for the
Union, but that he had been discussing the Union "just like
everybody else at Asheville Steel ." Whereupon Gregory
asked, "Tell me how much did the insurance pay on your
last baby?" Henderson responded, "Three hundred dol-
lars." Gregory said, "I guess you know if the union comes
in you would have had to pay that yourself."
Second: As set out above Supervisors Bridges, Collins,
Gregory, and Hensley and Plant Superintendent Gosnell
interrogated employees in respect to their union activities.
These interrogations occurred in the context of other
unfair labor practices; they were for the clear purpose of
eliciting information in aid of the Respondent's antiunion
campaign. Their purpose was not communicated to the
employees nor was any assurance against reprisals given to
the employees.24 Moreover, the Respondent did not prove
that such questioning was pursuant to the Employer's
legitimate business interests . The effect of the questioning
was to inhibit union activity,25 and instill in the minds of
employees fear of discrimination on the basis of the
information obtained.26 Accordingly , it is found that by
the following interrogations the Respondent violated
Section 8(a)(1) of the Act: 27
(a) Supervisor Bridges' interrogations of employee Clonts
on February 9, 1972, to wit: "You went to a union meeting
last night, didn't you?" and "You're trying to push the
union in here, ain't you?"
(b) Supervisor Collins' interrogation of employee Black-
please come back in Monday, and let's talk this thing out " Where Gosnell's
testimony conflicts with Patton's testimony, Patton's testimony is credited
24 The Board has said, "Questioning selected employees about their
union sympathies without any assurance against reprisal , by its very
nature tends to inhibit employees in the exercise of their right to organize
Engineered Steel Products, Inc, 188 NLRB No 52
25 "It is well settled that such interrogation violates Section 8(a)(l) when
its probable effect is to inhibit union activity " N L R B v Southern
Electronics Co, 430 F 2d 1391
26 "Interrogation as to union sympathy and affiliation has been held to
violate the Act because of its natural tendency to instill in the minds of
employees fear of discrimination on the basis of the information the
employer has obtained " N L R B v West Coast Casket Company, Inc, 205
F 2d 902, 904 (CA 9)
27 See N L R B v Super Toys, Inc, Hendel Manufacturing Company,
Incorporated, 197 NLRB No 179
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
burn on February 25, 1972, to wit: "Bob, what's this I hear
about you getting cards signed?"
(c) Supervisor Gregory's interrogation of employee
Robert L. Hensley on March 1, 1972, as to whether he had
signed the petition against the Union.28
(d) Supervisor Hensley's interrogations of employee
Henderson shortly prior to March 6, 1972, to wit: "What
do you think about this talk about the union?" and "Are
you for the union or not?"
(e) Supervisor Hensley's interrogation of employee
Patton during the first week in March as to whether he had
heard talk about the Union.
(f) Plant Superintendent Gosnell's interrogation ad-
dressed to employee William David Hensley around
March 8, 1972, to wit: "We heard you was for the
union." 29
Third. In addition to the coercive interrogations men-
tioned above, the Respondent violated Section 8(a)(1) of
the Act by supervisors' threats that certain benefits would
be taken away if the Union succeeded in organizing the
plant. (See GTE Automatic Electric, Inc., 196 NLRB No.
134.) The following remarks by supervisors were threats of
reprisal and were unlawful:
(a) Supervisor Gregory's threat to employee Robert L.
Hensley on March 1, 1972, to wit: If the employees "did
get a union in . . . [they] also would lose some of the
company benefits that they was giving us."
(b) Supervisor Hensley's remarks to employee William
David Hensley sometime prior to March 1, 1972, that "he
didn't think the union would help us [the employees] any,"
and that, "you could lose your position if we was to get the
union." 30
(c) Supervisor Hensley's threat to employee Henderson
sometime prior to March 6, 1972, to wit: "Well, I'll tell you
if the union comes in the company will take away your
benefits such as your profitsharing, your Christmas bonus,
and you know, stuff like loaning you money."
(d) Supervisor Gregory's threat made to employee Patton
on March 8, 1972, that, "[i If they voted the union in that
we would lose all our benefits and insurance."
(e) Supervisor Gregory's remark to employee Henderson
about a week after March 6, 1972, that, "[i]f the Union
comes in you would have had to pay that [certain
insurance benefits ] yourself."
Fourth The Respondent also violated Section 8(a)(1) of
the Act by causing the employees to believe that the
Respondent was spying upon their union activities.31 The
following conduct of the Respondent's supervisors created
unlawful impressions of surveillance:
(a) President Marlowe's remarks to employee Clonts on
February 9, 1972, to wit: "You went to a union meeting
28 Gregory 's suggestion to employee Hensley that he should "go ahead
and sign" the petition against the Union , that it would look better to the
Company, was also a violation of Section 8(a)(1) "Section 8(a)(1) makes it
unlawful for an employer to induce employees to sign any form of
union-repudiating document " N L R B v Birmingham Publishing
Company, 262 F 2d 2, 7 (C A 5)
29 While Gosnell's remark was not framed in the form of a question the
employee treated it as such and answered , "No, sir "
30 The Board has said , "We regard a threat of job loss to be a serious
deterrant to organizational activity " Comet Rice Mills Division, Early
California Industries, Inc, 195 NLRB No 117
last night ." and "Your name is still coming up about these
union cards."
(b) Supervisor Hensley's remark to employee Henderson
on March 8, 1972, that he was surprised that Henderson
had gone to a union meeting.
(c) Supervisor Gregory's remark to employee Patton on
March 8, 1972, that he had seen him coming out of the
labor temple on March 7, 1972.
(d) Supervisor Gregory's remark to employee Henderson
about a week after March 6, 1972, to wit: "I hear you've
been pushing this union."
Fifth: Finally, the Respondent violated Section 8(a)(1) of
the Act by Plant Superintendent Gosnell's remark to
employee Patton on March 8, 1972, that if he were
involved in union activity, "think it over the weekend and
[he would] try to get [him] out of it."
C. The Discharge of Robert R. Blackburn
First: Robert R. Blackburn was hired on October 23,
1967. On his application for employment appeared the
statement in reference to his wife , Clara Blackburn,
"disabled last 3-1/2 yrs." At the time he was hired,
Blackburn told Stagg and Gosnell that his wife had
rheumatoid arthritis, that she could not walk and was in a
wheelchair, and that she could not use her hands or stand
alone. He also indicated that he had had to feed her for
about 2 years because she was unable to get her hands up
to her mouth.32 During the interview, Blackburn was told
that he would have to work overtime, out of town, nights,
and away from home. Blackburn said that he could not
work weekends or away from home because of his invalid
wife, stating that he had to be there "every evening and
take care of her on weekends"; that he had no one to take
care of her. Nevertheless, the Respondent hired Blackburn
and said, "They could work around it." Blackburn was
hired as an electric welder in which classification he
possessed 10 years' experience.
Shortly after Blackburn was hired, he was asked by
Gosnell to work 12-hour shifts. He said that he could not,
whereupon he reported to Stagg that he had been
scheduled to work 12-hour shifts which he could not do
because he had to be home every evening with his wife.
Stagg said, "You dust forget about it; we'll overlook it, and
we'll send somebody else." On another occasion, Black-
burn had refused to perform Saturday work, indicating
that he had to stay with his wife on weekends. Gosnell sent
another employee to fill in for him. During his tenure of
employment the Respondent took a "decent" attitude
toward the problem of his wife's illness as it affected his
working overtime and on weekends.33
31 "[Tlhe law reasons that when the employer either engages in
surveillance or takes steps leading his employees to think it is going on, they
are under the threat of economic coercion, retaliation , etc " Hendrix
Manufacturing Company, Inc v N L R B, 321 F 2d 100, 104, fn 7 (C A 5)
See also N L R B v Ralph Printing and Lithographing Company, 379 F 2d
687, 691 (C A 8)
32 While Blackburn was working for the Respondent , Mrs. Blackburn
had undergone 13 or 14 operations which were processed through the
Respondent 's insurance program
33 Stagg testified, "After he had worked for us a while this came to light
that his wife was pretty sick , and he had to stay with her, or he told us this
ASHEVILLE STEEL COMPANY
Stagg said that when Blackburn was requested to work
overtime he "would bring up this old excuse about I've got
to get off at 4:30; my babysitter leaves, and I have to be
with my wife all the time." Stagg's attitude was, "Well, you
can't be hard-hearted in business all the time." Neverthe-
less, according to Stagg, the policy in regard to Blackburn
changed in the forepart of February as the result of rumors
which came to Stagg that employees were dissatisfied with
the privileges afforded Blackburn. According to Stagg, "It
was disrupting our organization." However, the new policy
was never communicated to Blackburn, nor was it ever
mentioned to him that he was abusing the privileges which
the employer allowed him.34
Blackburn had been a palmary employee. Of Blackburn,
Gregory said, "Mr. Blackburn is a good mechanic. He does
his job." Collins was more complimentary. He testified, "In
my opinion he was a good employee, a good welder; one of
the best I've ever seen."
Blackburn was assigned to a job at the Asphalt Paving
Company on February 28, 1972. The paving company is
located at Black Mountain, North Carolina, a distance of
around 10 miles from the Respondent's premises. Another
employee, Joel Henderson, was assigned to the same
project. Gregory was in charge of the project. At the time,
the Asphalt Paving Company was out of production
because of the work being performed. The company
resumed operations in about 2-1/2 weeks; however, the
work was not completed on the job until some time after
that.
On Friday, March 3, Gregory appeared about 11 o'clock
on the job and stated that the Asphalt Paving Company
wanted the job finished and that Blackburn and Hender-
son would have to work weekends.35 Blackburn told him
that he couldn't work weekends because he had to take
care of his wife. Whereupon Gregory responded, "The men
that work on my crew work anytime I need them," to
which Blackburn replied, "I haven't been working on your
crew." Nevertheless, Gregory scheduled Blackburn and
Henderson to work on Saturday and Sunday. Henderson
worked on Saturday but did not show on Sunday, having
called in, indicating that his baby was sick. Henderson was
excused.
When Henderson and Blackburn returned to the plant
on Friday afternoon, Gosnell said to them, "We're looking
for you boys in here Saturday and Sunday." Blackburn
replied, "I can't work this weekend; you know it." Gosnell
instructed Blackburn to see Stagg.
Gosnell went to Stagg's office with Blackburn, where
Blackburn told Stagg that he could not work that weekend.
Blackburn was told that he must work Saturday and
Sunday, that they could not put anyone else on the job.
So after all we're not cannibals, so we worked with him and tried to be as
decent as possible "
34 Gosnell said that when employees complained about Blackburn's
privileges he would say to them, "[G ]entlemen, he says he has a sick wife,
and ya'll ought to have a big enough heart in you to fill in for him every
once in a while, and we've got thisjob to do, and I'm not necessarily asking
you to do it for Robert Blackburn, I am asking you to do it for Jack
Gosnell, trying to get this work out "
35 No one worked weekends on this job after the first weekend
36 Stagg described what occurred as follows "it was around 5 00, 5 or
10 minutes after 5 00 And he said, '[W ]e've had Bob lined up on this Job
for Asheville [Asphalt] Paving Company, and now he says he can't work
151
Stagg said that the Respondent might lose the contract.
Blackburn reiterated the fact that he could not work
Saturday and Sunday and pointed out that he had told
them before that he could not work weekends. He said, "I
have too much to do, working on weekends; I have to take
care of my wife and do all the chores." Stagg responded,
"We can't send nobody else out there; you're the one that
has to go." As Blackburn commenced to leave, Gosnell
said that "they were looking for [him] in there, and wanted
[him] in there in the morning." Blackburn said that he
could not make it as he went out the door. Gosnell agreed
that Blackburn said that he could not make it because his
wife was sick. Stagg did not threaten Blackburn with
disciplinary action if he failed to report on Saturday36 nor
direct him to call in if he was unable to work on Saturday.
On Saturday morning, March 4, when Blackburn had
not called in by about 7:15, Collins phoned Gosnell and
reported this fact. Collins was told to notify Julian Jarrell
to come to work, which he did. Henderson heard Collins
make two telephone calls, one to Jarrell and the other one
to Robert Joyner. Henderson and Blackburn were to have
left the Employer's Asheville plant for the paving job at
7:30. Jarrell arrived about 8 p.m. and Joyner arrived about
8:30. The three employees started to the asphalt paving job
some time between 8:30 and 9: 00 a.m . Henderson and
Blackburn were equally qualified to do the work. Hender-
son took over for Blackburn. Jarrell continued working on
the job until it was completed.
President Marlowe returned from his vacation on
Sunday, March 5, 1972, between 4 and 5 p.m. First
Marlowe testified that he "didn't know anything about the
union" at that time and did not learn about Blackburn's
discharge until Monday morning, March 6, 1972. Later in
his testimony he related that Stagg had called him on
Sunday afternoon but had "only told [him] there was some
union activities." (Emphasis supplied.) Later, Marlowe
expanded on this testimony. He testified that Stagg "only
said that Blackburn did not show up for work and that I
said, `Well, Fred, it's strictly up to you.' " (Emphasis
supplied.) Finally, Marlowe testified, "[H]e [Stagg] told me
there was some union activities, and he also said that
Blackburn didn't show up for work." Marlowe testified
further that he "wouldn't deny" that he had asked Stagg
who was pushing the cards and the union. Nevertheless,
Marlowe claimed that he knew nothing of Blackburn's
union activities until Monday, March 6, 1972. Marlowe
knew, however, that Blackburn's wife had undergone a
number of operations and that they were paid through the
Company's insurance program. He also knew that Black-
burn had been excused from working overtime because his
sick wife required his presence at home.
tomorrow' And he had known of it, I think , since Thursday And I said,
'Well, Bob, you're sure you can't make an effort this time and get a
babysitter or do something so that you can work this particular time ' I said,
'[T ]his is something special ' I said, 'Asheville Paving is a special customer
of ours because I've worked with them for the last 25 years, and they're
expecting us back there , they've got a deadline on this equipment to get it
in ' And I said. '[W le've got to work this weekend, that 's all there is to it' I
said, 'You know this is a job with no blueprints , all of this information was
communicated to you by word of mouth 'And it was a field job where just
not anyone can take over And I said, '[J just make a little effort this time' I
said, 'I'm sure something can be worked out' He said , 'Well, I'll see,' and
turned around and walked out "
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Monday morning, Blackburn was informed that
Stagg wanted to see him in the office. Stagg said to him,
"You didn't come in Saturday; you didn't come in
Sunday; and you didn't call in. I can't put up with it. I'm
going to have to let you go."
Stagg testified that had Blackburn called in and
indicated that he was unable to find anyone to take care of
his wife, it would have been the policy of the Company to
have excused him.37 At the time Blackburn was dis-
charged, Stagg did not ask him the reason for his failure to
call in or appear for work on Saturday and Sunday.
According to Gregory, if a man was supposed to work
and did not show up or did not call in, ordinarily he was
given a warning rather than a discharge. Collins knew of
no occurrence where an employee had been discharged for
refusing to work on Saturday or for failure to call in.
Henderson testified that he had been absent on several
occasions and had not called in and that no disciplinary
action had been taken against him. The Respondent
produced two separation notices in which it was stated that
the employees had failed to show up for work or call in. In
each of the cases, the details were not given. The last day of
employment recorded for one employee, Edward Banks,
was May 9, 1969. He was not discharged until May 15,
1969. The last day worked by the other employee, Joe
Metcalf, was October 24, 1967; he was not discharged until
November 17, 1967. There were no other employees who
had been discharged for these causes in the period of the
last 5 years.
Second: ". . . an employer may hire and discharge at
will, so long as his action is not based on opposition to
union activities." N.L.R.B. v. South Rambler Company, 324
F.2d 447, 449 (C.A. 8). However, the "mere existence of
valid grounds for a discharge is not defense to a charge
that the discharge was unlawful, unless the discharge was
predicated solely on those grounds, and not by a desire to
discourage union activity." NL.R.B. v. Symons Manufac-
turing Co, 328 F.2d 835, 837 (C.A. 7)38 "A justifiable
ground for dismissal is no defense if it is a pretext and not
the moving cause." N.L.R.B. v. Solo Cup Co., 237 F.2d 521,
525 (C.A. 8) ". . . the `real motive' of the Employer in an
alleged 8(a)(3) violation is decisive." N L.R.B. v. Brown
Food Store, 380U.S. 278, 287. "It is the `true purpose' or
37 Blackburn testified without contradiction that he had never called in
before
38 The principle was well stated by the Court of Appeals for the Second
Circuit in N L R B v Great Eastern Color Lithographic Corp, 309 F 2d 352,
355, enfg 133 N LRB 911
The issue before us is not, of course, whether or not there existed
grounds for discharge of these employees apart from their union
activities The fact that the employer had ample reason for discharging
them is of no moment It was free to discharge them for any reason
good or bad, so long as it did not discharge them for their union
activity And even though the discharges may have been based upon
other reasons as well, if the employer was partly motivated by union
activity, the discharges were violative of the Act
19 "Discrimination consists of treating like cases differently " Frosty
Morn Meats, Inc v N L R B, 296 F 2d 617, 621
10 While there is sufficient credible direct proof of the Respondent's
knowledge of Blackburn's union affections and activities the "small shop
theory," imputing knowledge to the Respondent is also applicable See
Quest-Shon Mark Brassiere Co, 80 NLRB 1149, 1150, enfd 185 F 2d 285
(C A 2), cert denied 342 U S 812
4i " every equivocal act that was done may be properly viewed in the
light of respondent's animus toward the effort to organize its men "
`real motive' in hiring or firing that constitutes the test."
Loca1357, International Brotherhood of Teamsters [Los Ange-
les- Seattle Motor Express] v. N.L.R.B., 365 U.S. 667, 675.
"Section 8(a)(3) prohibits discrimination in regard to
tenure or other conditions of employment to discourage
union membership. . . . It has long been established that a
finding of violation under this section will normally turn
on the employer's motivation." American Ship Building Co.
v. N.L.R.B., 380 U.S. 300, 311. Thus the "real motive" of
the Respondent in discharging Blackburn is the relevant
consideration in determining whether the Respondent
discriminatorily39 discharged Blackburn to "discourage
membership in any labor organization." (Section 8(a)(3) of
the Act). In this respect it must be considered that the
credible record reveals that the Respondent knew40 that
Blackburn was a pusher for the Union and that the
Respondent strenuously opposed the union organization of
its employees.41 The Respondent's opposition to the Union
was not of a passive or latent character but manifested
itself in the commission of unfair labor practices. More-
over, its anxiety at the advent of the Union was of such
intensity that it hurriedly assembled its employees in a
captive audience to listen to its antiunion position even
though its president was on vacation. Under these
circumstances, the discharge of a leading union advocate,
even though it was for seemingly nondiscriminatory
reasons, is a substantial contribution to the objectives of an
employer who has been utilizing unfair labor practices as a
tactic to chill its employees' union affections. "Obviously
the discharge of a leading union advocate is a most
effective method of undermining a union organizational
effort." N. L. R. B. v. Longhorn Transfer Service, 346 F.2d
1003 (C.A. 5). Thus, if the purpose of the respondent was
to thwart the Union's advent by unfair labor tactics, the
discharge of Blackburn, a leading union partisan, must
have furthered that purpose. That this was the Respon-
dent's "real purpose" is apparent from the testimony of
President Marlowe.
Marlowe was a disingenuous witness. His testimony was
contradictory and vacillatory. A review of Marlowe's
testimony printed in the margin42 confirms that Marlowe
was less than candid in disclosing his full conversation with
Stagg on Sunday and withheld important parts thereof
N L R B v Houston and North Tesas' Motor Freight Lines, Inc, 193 F 2d
394, 398 (C A 5), cert denied 343 U S 934
42 The testimony is as follows
Q Now, you didn't know anything about the union until after you
came back from vacation, is that right9
A That's correct, sir
s r r r r
Q Well, sir, who told you about the union"
A Well, when I got to work Monday, Mr Stagg told me about it
s r r s r
Q Did he tell you he had fired Robert Blackburn
A This was later on, sir
Q He didn't tell you the day that you got back"
A It was later on in the morning I think
r r r r r
A He told me that Blackburn did not show up for work when he
was supposed to
[Q I What day of the week was this9
[A I This was on a Monday
r s s
A He said he had to let him go
ASHEVILLE STEEL COMPANY 153
which would have reflected upon the Employer's real
motive. Marlowe's handling of his testimony, as well as his
demeanor while testifying, are persuasive of the fact that
Blackburn's discharge was firmed on Sunday afternoon
and that union considerations permeated Blackburn's
discharge. The conclusion that union considerations
permeated Blackburn's discharge is also supported by the
following additional factors. (1) It was an "unreasonable
and unnatural act"43 for the Respondent to discharge
Blackburn, an excellent employee, whose caliber was such
that the Respondent had continued him in employment
even though his wife's illness caused him to refuse overtime
and Saturday and Sunday work.44 (2) The fact that the
Respondent did not preliminarily warn Blackburn that, if
he did not report for work on Saturday or call in, he would
be subject to discharge, indicates that on Friday the
Respondent either did not view such offense as of a severe
nature or that the Respondent, reasonably certain that
Blackburn would not be available for work, purposely
placed his job in jeopardy.45 (3) Prior to the advent of the
Union, the Respondent's policy toward Blackburn had
been one of understanding and humaneness; it abruptly
changed without credible reason when Blackburn's union
activities became known. (4) The credible record discloses
that the Respondent's need was not urgent in that a
replacement was readily available for him 46 (5) As the
Respondent had been administering discipline there is no
credible proof that an unambiguous rule provided for
discharge for Blackburn's offense or that any employee
had ever been discharged for a like offense. (6) In effecting
Blackburn's discharge the Respondent, apparently having
determined its action in advance, made no inquiry of
Blackburn as to his reason for not calling in or appearing
for work.47 (7) Blackburn had not been given a clear
ultimatum that, if he did not call in or appear for work, he
would be discharged.
Hence the conclusion obtains that the claimed offense of
Blackburn was seized on by the Respondent as a pretext to
shroud the "real motive" for Blackburn's discharge and
that the "real motive" was to discourage membership in a
union. By such misconduct the Respondent violated
Section 8(a)(3) of the Act.
In addition the Respondent's discrimination against
Blackburn did not originate with his discharge. The
Respondent's indulgence in reprisals against Blackburn
commenced with his transfer from the plant where he was
usually assigned to the Asheville Paving Company jobsite,
the plain purpose of which was to isolate Blackburn, the
leading union advocate, from association with other
employees; it manifested itself again in the sudden
withdrawal of Blackburn's privilege of exemption from
weekend work so that he might care for his invalid wife; 48
and finally it was consummated in the actual discharge of
Blackburn. The chain of events supports the General
Counsel's theory that the Respondent "set Blackburn up
for discharge."49 In this respect it is also significant that
even though the Respondent knew of Blackburn's wife's
incapacitation and the likelihood of his inability to work
for such reason, it sought a replacement for him neither
[A ] I didn't know anything about it until I came in Monday
• • rt # rt
Q And Mr Stagg didn't call you up and tell you about it, that he
was going to have to fire the number I union pusher9
A No sir, there -was no conversation about number I union
pusher
• rt # # rt
Q He didn't tell you that Blackburn had anything to do with
union9
A At that time he didn't know any thing, I didn't know anything
about the union
• # rt # rt
[Q ] Now, between the time you came back on Sunday and a
quarter of 8 00 on Monday, had any one contacted you, or had you
learned of any union activity whatsoever9
[A ] I think I recall Mr Stagg called me, and that was about it
Q But he called you about that on Sunday
A He only told me there were some union activities
• • # • •
Q You weren't curious as to who was pushing n9
A No He didn't know He didn't say anything about it at the
time He only said that Blackburn did not show up for work, and
that-I said, "Well, Fred, its strictly up to you "
rt • • # #
A Well, he told me there was some union activities, and he also
said that Blackburn didn't show up for work
# # • • #
Q You were curious, yet you didn't ask him who was pushing
these cards, who was pushing this union
A I don't recall asking him, no, sir
Q Well, You wouldn't deny that you asked him that, will you9
A I can't answer that, I really don't know
Q You wouldn't deny that you asked him that9
A I wouldn't deny that I did
43 Cf Magic Chef, Inc, 181 NLRB No 146
14 "The discharge of qualified workers who are also union activists '
is a circumstance of suspicion which may give rise to ajustified inference of
violative discrimination' " Betts Baking Co v N L R B, 380 F 2d 199, 204
(C A 10)
45 It was said in E Anthony & Sony, Inc v N L R B, 163 F 2d 22, 26-27
(C A D C ), "If the employer had really been disturbed by the circumstances
it assigned as reasons for [the] discharge[s], and had had no other
circumstance in mind , some word of admonition, some caution that the
offending lapse be not repeated, or some opportunity for correction of the
objectionable practice, would be almost inevitable The summariness of the
discharge[s] gives rise to a doubt as to the good faith of the assigned
reasons "
46 This conclusion is further supported by the fact that thereafter
weekend work was not performed on the Asphalt Paving job
47 As the court observed in United States Rubber Company v N L R B,
384 F 2d 660, 662-663 (CA 5). in affirming the Board's finding of
discrimination, "Perhaps most damning is the fact that both [employees]
were summarily discharged after reports of their misconduct without
being given any opportunity to explain or give their versions of the
incidents "
48 While the Respondent claimed that it had decided to withdraw
Blackburn's exemption from weekend work because of its alleged belief that
he had abused the privilege, such claim takes on the nature of an
afterthought for certainly the Respondent, if it viewed the charges seriously,
would have confronted Blackburn with them
49 The case, J P Stevens & Co v NLRB, 449 F 2d 595 (C A 4), cited
and relied on by the Respondent. has been reviewed It may be
distinguished in that (1) unlike the Stevens case, Blackburn did not "well"
know that his employment included Saturday assignments , unlike the
Stevens case, Blackburn had never been warned that his "extra engagement"
on weekends "must not interfere with his Saturday obligations to the
Company", unlike the Stevens case the withdrawal, on such short notice, of
Blackburn's privilege of exemption from Saturday work to attend his invalid
wife was not a legitimate management demand but was in reprisal for
Blackburn's union affection
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before his assignment nor after he said he "couldn't make
it," although employees Jarrell and Joyner were availa-
ble.50
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and it will
effectuate the purposes of the Act for jurisdiction to be
exercised herein.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed them by
Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
4. By unlawfully discharging Robert R. Blackburn on
March 6, 1972, the Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and take affirmative action
designed to effectuate the policies of the Act.
It having been found that the Respondent unlawfully
discharged Robert R. Blackburn and thereby violated
Section 8(a)(3) and (1) of the Act, it is recommended that
the Respondent remedy such unlawful conduct. It is
recommended in accordance with Board policy51 that
Respondent offer Robert R. Blackburn immediate and full
reinstatement to his former position or, if such position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings that he may have
suffered as a result of the discrimination against him by
payment to him of a sum of money equal to the amount he
would have earned from the date of his discriminatory
discharge to the date of an offer of reinstatement, less net
earnings during such period to be computed on a quarterly
basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289, and including interest
at the rate of 6 percent per annum in the manner set forth
in Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of 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: 52
ORDER
The Respondent, Asheville Steel Company, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging concerted activities of its employees or
membership in International Association of Bridge , Struc-
tural and Ornamental Iron Workers, AFL-CIO, or any
other labor organization , by unlawfully discriminatorily
discharging any of its employees or by unlawfully
discriminating in any manner in respect to their hire or
tenure of employment or any term or condition of
employment in violation of Section 8(a)(3) of the Act.
(b) Unlawfully interrogating its employees regarding
their union activities.
(c) Unlawfully threatening employees with the loss of
their positions or the loss of benefits if the Union were to
be selected to represent them.
(d) Unlawfully creating an impression of a surveillance
of its employees ' union activities.
(e) Unlawfully encouraging employees to sign petitions
against the Union.
(f) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
right to self-organization , to form labor organizations, to
join International Association of Bridge, Structural and
Ornamental Iron Workers, AFL-CIO, or any other labor
organization, to bargain collectively through representa-
tives of their own choosing , and to engage in concerted
activities for the purpose of mutual aid or protection as
guaranteed in Section 7 of the Act or to refrain from any
and all such activities subject to the union-security
requirements of Section 8(a)(3) of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer Robert R. Blackburn immediate and full
reinstatement to his former position or, if such position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
discharging, if necessary, any employee hired to replace
him, and make him whole for any loss of pay that he may
have suffered by reason of the Respondent's discrinuna-
tion against him in accordance with the recommendations
set forth in the section of this Decision entitled "Remedy."
(b) Notify immediately the above-named individual if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
50 This quotation from the General Counsel's brief is apropos
It cannot be said that Respondent did not have compassion for the
misfortune that befell Blackburn 's wife Time and again Blackburn
declined to work week -ends and gave as his reason therefor the fact
that he had to take care of his sick wife Time and time again this
reason was accepted by Respondent without serious question in the
words of obstensibly benevolent Vice President Stagg "So after all
we're not cannibals , so we worked with him and tried to be as decent as
possible " However, upon the arrival of the Union and the disclosure of
Blackburn as its principal champion, the missionary spirit prevailing
theretofore made a hasty departure and Blackburn was unceremoni-
ously slated for the pot
Si See The Rushion Company, 158 NLRB 1730. 1740
52 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , and recommended Order herein shall , as provided in
Section 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
ASHEVILLE STEEL COMPANY
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(d) Post at its Asheville, North Carolina, plant copies of
the attached notice marked "Appendix." 53 Copies of said
notice, on forms provided by the Regional Director for
Region 11, after being duly signed by the Respondent's
representative, shall be posted by it 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 ensure
that said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith.54
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act other
than those found in this Decision.
13 In the event that the Board's Order is enforced by a Judgment of a
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 "
54 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 11, in writing , within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board, after a trial in which
all parties were permitted to introduce evidence, found that
we discharged Robert R. Blackburn unlawfully and that by
his discharge we discouraged employees from becoming
and remaining members of the International Association
of Bridge, Structural and Ornamental Iron Workers,
AFL-CIO.
WE WILL offer Robert R. Blackburn his former job
or, if his job no longer exists, a substantially equivalent
position.
WE WILL restore his seniority and pay him any
backpay he lost because we discharged him.
155
WE WILL NOT discharge any employee for the same
reasons for which the Board found that we discharged
the above-named employee
WE WILL NOT unlawfully discharge employees for
lawfully engaging in union activities or protected
concerted activity.
WE WILL NOT unlawfully interrogate our employees
with respect to their union activities.
WE WILL NOT unlawfully threaten our employees
with loss of their positions or with loss of benefits if the
Union is selected to represent them
WE WILL NOT unlawfully create the impression that
we are spying on our employees' union activities
WE WILL NOT encourage our employees to sign
petitions against the Union.
The laws of the United States give all employees these
rights:
To organize themselves
To form, join, or help unions
To bargain as a group through representatives
they choose
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any and all of these things subject
to the union-security requirements of Section
8(a)(3) of the National Labor Relations Act, as
amended.
All of you are free to remain or refrain from becoming or
remaining members of a labor organization.
ASHEVILLE STEEL COMPANY
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 1624
Wachovia Building, 301 North Main Street, Winston-
Salem, North Carolina 27101, Telephone 919-723-2300.