Dimensions in Metal, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 563 (N.L.R.B. 1981)

DIMENSIONS IN METAI.. INC.
Dimensions in Metal, Inc. and International Broth-
erhood of Teamsters, Local 1196 and Willie
Boyce and Daniel Williams, Jr. Cases 26-CA-
8298, 26-RC-6174, 26-CA-8467, and 26-CA-
8361
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 4, 1981, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs. Subsequently, Respondent filed an answer-
ing brief in opposition to the exceptions filed by
the General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
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, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.3
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 and
hereby orders that the Respondent, Dimensions in
Metal, Inc., Memphis, Tennessee, its officers,
agents, successors, and assigns, shall take the action
'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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950). enfd. 188 F2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings
Additionally, Respondent in its brief asserts that the Administrative
Law Judge's credibility findings are the result of bias. After a careful ex-
amination of the entire record, we are satisfied that this allegation is with-
out merit There is no basis for finding that bias and partiality existed
merely because the Administrative Law Judge resolved important factual
conflicts in favor of the General Counsel's witnesses. As the Supreme
Court stated in N.L.R.B. v. Pittsburgh Steamship Company, 337 U.S. 656,
659 (1949), "[T]otal rejection of an opposed view cannot of itself impugn
the integrity or competence of a trier of fact "
I The General Counsel has excepted to the Administrative Law
Judge's failure to make a finding and conclusion with regard to the com-
plaint allegation of an interrogation of an employee on or about March 2.
1980. The Board finds it unnecessary to rule on this exception since any
such finding of coercive interrogation would merely be cumulative and
would not affect the remedy.
' In par I(c) of his recommended Order, the Administrative L.aw
Judge provided that Respondent shall cease and desist from threatening
to close the plant before letting a union come in. However, the Adminis-
trative Law Judge inadvertently omitted this provision from the nlotice
The Board corrects this mistake in the attached notice
258 NLRB No. 78
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
IT Is FURITHE R ORDIEREI) that Case 26-RC-6174
be remanded to the Regional Director for Region
26 to open and count the ballots of Franklin Camp-
bell and Daniel Williams and to issue a revised
tally of ballots and a certification of representative
if International Brotherhood of Teamsters, Local
1196, has received a majority of the valid votes
cast, or a certification of results of election if it has
not.
APPENDIX
NOTICE To EMPIOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discharge or otherwise dis-
criminate against any of you for supporting In-
ternational Brotherhood of Teamsters, Local
1196, or any other union.
WE WILL NOT place written reprimands in
the files of union supporters to build a case for
discriminatorily discharging them.
WE WILL NOT threaten to close the plant
before letting a union come in.
WE WILL NOT coercively question you
about union support or activity.
WE WII. NOT threaten you with less desir-
able working conditions if you select a union.
WE WILL NOT tell you it is futile to select a
union.
WE WIIL. NOT tell you the Board cannot
force us to take back an unlawfully discharged
employee.
WE WI.LL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
563
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the rights guaranteed you by Section 7 of the
Act.
WE WILL offer Willie Boyce, Franklin
Campbell, Clayton Saulsberry, and Daniel
Williams immediate and full reinstatement to
their former jobs or, if their jobs no longer
exist, to substantialy equivalent positions, with-
out prejudice to their seniority or other rights
and privileges previously enjoyed, and WE
WILL make them whole for any loss of earn-
ings and other benefits resulting from their dis-
charge, less any net interim earnings, plus in-
terest.
WE WILL remove from the files of Willie
Boyce and Clayton Saulsberry the written rep-
rimand dated May 22, 1980.
DIMENSIONS IN METAL, INC.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge:
These consolidated cases were heard by me in Memphis,
Tennessee, on November 24-26 and December 1, 1980.
The charges were filed by the Union on March 3, 1980,'
as amended on March 12 and 31, by Daniel Williams on
April 3, and by Willie Boyce on June 2. A consolidated
complaint was issued on June 20, and amended on
August 8, 1980, and an order consolidating the cases and
transferring the representation case to the Board was
issued on November 7, 1980.
During his short tenure as the Company's executive
vice president, Sam Sax discharged or directed the dis-
charge of all four of the union supporters: Franklin
Campbell and Daniel Williams before the April 4 elec-
tion and Willie Boyce and Clayton Saulsberry on May
30. The primary issues in the complaint cases are wheth-
er Company President Lomerson, shortly after the union
organizing began, threatened plant closure to avoid deal-
ing with a union; and whether Sax, upon joining the
firm, engaged in an unlawful antiunion campaign by (a)
interrogating, threatening, and coercing employees, (b)
inserting written reprimands in the files of two of the
union supporters and (c) discriminatorily discharging the
four union supporters in violation of Section 8(a)(l) and
(3) of the National Labor Relations Act, as amended.
In the representation case, the vote was two in favor
of and three against union representation, and the chal-
lenged ballots cast by discharged union supporters
Campbell and Williams are in issue.
Upon the entire record, 2 including my observation of
the demeanor of the witnesses, and after due considera-
' All dates are from July 1979 until June 1980 unless otherwise indicat-
ed.
2 The General Counsel's unopposed motion to correct the transcript,
dated January 16, 198i, is granted and received in evidence as G.C. Exh.
24.
tion of the briefs filed by the General Counsel and the
Company, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Company, Dimensions in Metal, Inc., a corpora-
tion, is engaged in the fabrication of metal doors at its
plant in Memphis, Tennessee, where it annually ships
products valued in excess of $50,000 directly to custom-
ers located outside the State. The Company admits, and I
find, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act, and
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Company President Lomerson and secretary Bill
Kralis, both formerly with Metal Vent Manufacturing
Company (builder of ornamental security doors), formed
the Company as a competing business. They rented a
small building, hired four former Metal Vent employees
(Franklin Campbell, Daniel Williams, Willie Boyce, and
Clayton Saulsberry), and began wholesale production in
August. Lomerson and Kralis were the managers, Lo-
merson's wife was the office clerk, and Jim Pevia was
hired as the retail sales manager.
The Company was both undercapitalized and under-
staffed. By January there were insufficient funds to pay
the premiums on insurance for the four production em-
ployees and one installer. (The insurance was reinstated
for I month but was then canceled again.) Welder Wil-
liams, who was using a badly worn welding lead, was
told by secretary Kralis that the Company could not
afford to buy another one, and to wrap it with tape and
continue using it, as Williams did until it finally shorted
out. Finisher Campbell was assigned to checking, build-
ing kits, packing, routing, shipping, and a number of
other responsibilities. When he repeatedly requested as-
sistance because of insufficient time to perform all of
these duties, Kralis replied that the Company could not
afford to hire anybody else.
It was under these circumstances that the four alleged
discriminatees (Campbell, Williams, Boyce, and Sauls-
berry) began discussing the formation of a union in mid-
January; that Lomerson is alleged to have threatened the
employees in late January with plant closure in order to
avoid dealing with a union; and that the former Metal
Vent director of operations, Sam Sax, joined the Compa-
ny about February 15 or 20.
The financial arrangements between Sax and owners
Lomerson and Kralis are not disclosed. The Company's
brief asserts that Sax was "hired" as a "personnel man-
ager." However, he became the executive vice president
with duties of overseeing the general functions of the
corporation and handling the daily operations as well as
developing and implementing a "personnel policy." He
was a corporate official because he was attending a cor-
porate meeting away from the plant at the time of the
564
DIMENSIONS IN METAL, INC.
mysterious cutting of Williams' new welding lead 2 days
before the election. The evidence suggests that he may
have brought some new capital into the business because
two new employees were hired: welder Grace Parola on
March 5 and Tom Wells on March 6, the date Campbell
was discharged and Wells was assigned as a packer and
shipper to assist David Rhines (who had been the install-
er) in replacing Campbell.
After Sax joined the firm, he refused to accept the
Union's certified letter requesting recognition, held an
antiunion meeting on February 28, and began the antiun-
ion campaign, taking actions which are alleged to be un-
lawful.
B. Lomerson's Closure Threat
On January 25, the morning after the January 24 epi-
sode of the TV "Skag" series (as discussed later), em-
ployees Campbell, Williams, Boyce, and Saulsberry were
on break in the finishing area, discussing the TV pro-
gram. Lomerson came by and joined in the conversation.
Saulsberry asked him how he felt about a union being in
the plant. As Saulsberry credibly testified, Lomerson an-
swered that "before he would let a union come in the
plant he would close the place down, put locks on the
doors and start all over again." Saulsberry asked if it
were not their constitutional right to organize, and Lo-
merson said he did not care. (As recalled by Williams,
Lomerson said that, before he would let a union come in,
he would close the Company, put locks on the doors,
and start somewhere else. Boyce recalled that Lomerson
said that before he would let a union come into his plant
he would close the doors, put locks on them, and start
all over again; and, when Saulsberry mentioned the right
to organize, Lomerson said he did not give a "god-
damn," he would close down anyway. Campbell recalled
that, when they were discussing the labor movie, Skag,
and Saulsberry mentioned their constitutional rights, Lo-
merson said that before he would let a union come in he
would close the place down.)
The Company concedes, in its brief, that they were
discussing the Skag elevision program "which had been
aired the previous evening," but it raises two defenses.
The first is that Lomerson did not make a closure threat.
Relying on Lomerson's claim that his only interest in the
program was his fondness for the lead actor, Karl
Malden, and his denials that he was asked or that he
made any statement regarding a negative attitude toward
a union, the Company contends that the four employees'
testimony about a closure threat should be discredited
and Lomerson's denials credited. I disagree. By his de-
meanor on the stand, Lomerson impressed me most unfa-
vorably as a witness. I discredit his denials and find that
he did threaten to close the plant before letting a union
come in.
The Company's other defense is that, although the
complaint alleges that Lomerson made the closure threat
"[oin or about" January 24, which was "after union or-
ganizing began," the testimony "shows that the meeting
was in the period of September through November 1979,
two or three months before" and "[a]ny union animus
which could be inferred if this statement had been made
is so far removed from the time of organizing as to have
no effect whatever on the employees' organizing rights."
Ignoring welder Williams' recollection that the conversa-
tion occurred in January or February, before the Union's
election petition was filed on February 28, the Company
argues that "if it occurred before October 15, 1979, as
Boyce testified that it did, then the six month limitation
period found in Section 10(b) of the Act would bar any
consideration of this meeting." The Company further
contends, "This meeting occurred by all accounts at least
two months before any organizing. Respondent asserts
that its insertion into the Complaint was a mere after-
thought-used to buttress animus claims," and "even if
found that the alleged statement was made, it was so far
removed in time from any organizing activity as to have
little significance."
At the hearing, after the four employees gave different
recollections of when the conversation about the Skag
program and the closure threat occurred, Lomerson
positively testified, "It was a morning in either late Octo-
ber or the first of November or somewhere in that area."
When so testifying, he appeared to be attempting to fab-
ricate a defense rather than give an accurate recollection
of when the conversation actually happened.
Because of the conflicting testimony, I issued a Notice
To Show Cause (included in the formal documents as
G.C. Exh. l(kk)) on April 22, giving the parties 10 days
to show cause why official notice should not be taken of
the January 6, 1980, issue of The Commerical Appeal
newspaper in Memphis, announcing that "Karl Malden
stars in Skag, which . . . premieres as a three-hour
movie tonight at 7 on Channel 5," and the January 24
issue, announcing Skag at 8 p.m. on TV Channel 5, "A
brutally explicit two-hour drama" involving "a wildcat
strike .... Savage union goons, the repression and fears
. . .and the impossible odds the men must face are all
depicted with a realism rarely achieved in television
series." In the absence of any objection to taking official
notice of the two newspaper issues (the Company's ap-
proving response is received as G.C. Exh. 1(11)), 1 find
that the locally published television schedule cannot rea-
sonably be questioned, that the discussion of one of the
Skag programs could not have occurred before the Janu-
ary 6 premiere, and that the discussion did occur January
25, the morning after the airing of the union-related pro-
gram January 24.
Accordingly, I find that President Lomerson's January
25 threat of plant closure violated Section 8(a)(1) of the
Act as alleged. I further find that Lomerson's willingness
to give fabricated testimony regarding the content and
timing of the discussion reflects adversely on his credibil-
ity.
C. Sax's Antiunion Campaign
1. February 28 meeting
February 28, shortly after Executive Vice President
Sax refused to accept the Union's certified letter request-
ing recognition, he held a long meeting with production
employees Campbell, Williams, Boyce, and Saulsberry
and installer Rhines in Secretary Kralis' office. (Sax did
565
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not testify about this meeting. The employees were able
to remember different parts of the meeting.)
Sax told the employees that he had rejected a letter
from the Union. He asked what was the status of the
Union and whether the Union's election petition had
been signed, and finisher Campbell answered that he
thought the petition had been filed. (The petition was
filed that same day.)
During the meeting, Sax told Campbell that he knew
Campbell used to be an organizer. Sax asked grinder
Boyce if he was for the Union and Boyce said he was.
Welder Williams said he was 100 percent for it. Sax
asked installer Rhines if he was for the Union, and
Rhines said he did not know right then. Sax said they
did not need a union, that he was not going to recognize
any union, that he would fight the Union in any way he
could, that he had not lost a fight yet, and that he would
do anything in his power to keep the Union from coming
into the Company. As Campbell credibly testified, Sax
told them that "without a union he could work with us,"
but that with a union, he would be "on the other side of
the fence," that "he would have to work against us," and
that "he would guarantee us that we wouldn't get any-
thing"; whereas, if the employees went along with him,
although he could not make any promises, he "would do
what he could."
Thus Sax, one of the top officials, called the employ-
ees into the office, told them he had rejected a (recogni-
tion) letter from the Union, and proceeded to interrogate
them about their union support. This meeting was called
about a month after President Lomerson had threatened
to close the plant before letting a union come in. Sax did
not give them any assurances against reprisals for sup-
porting the Union, he did not inform them of any valid
purpose for the interrogation, and he expressed hostility
toward the Union. He stated that he would not recog-
nize any union, that he would fight the Union in any
way he could, and that if the Union were in the plant, he
would be on the other side of the fence, working against
the employees, and he "would guarantee us that we
wouldn't get anything." Particularly under these circum-
stances, and the discharge a week later of finisher Camp-
bell whom Sax told in the meeting he knew used to be
an organizer, I find that the interrogation tended to
coerce the employees in the exercise of their Section 7
rights and violated Section 8(a)(1) of the Act. Also in
this context I find that Sax's threat to be on the other
side of the fence, working against the employees if the
Union were in the plant, was at least an implied threat of
less desirable working conditions if the employees select-
ed the Union to represent them and therefore violated
Section 8(a)(1) of the Act. I further find that his state-
ment that he would "guarantee" that the employees
would get nothing if a union were brought in clearly
manifested a closed mind and a determination that col-
lective bargaining would be futile, further coercing the
employees in the exercise of their Section 7 rights, in
violation of Section 8(a)(l) of the Act.
2. March 6 discharge of Campbell
a. His work performance
Before Franklin Campbell was hired in July, he had
had 3 years of experience as a finisher at Metal Vent,
putting hinges and glass on doors. At the Company, he
was assigned to what he called a "seven-man job." He
was not only responsible for finishing the door, putting
on the hinges and glass, but many other jobs. He was as-
signed to washing and cleaning the glass, putting in the
locks, and drilling holes for the silhouettes. He was as-
signed to building the lock kits and the Z-bar kits, as-
semblying all of the door components necessary for in-
stallation, including the left and right Z-bar, the header,
expander, closer, storm chain, screw package, knobs,
spindles, and keys. He alone was assigned to doing all of
the wrapping and packing (in specially designed cartons
to prevent damage) and all of the routing and shipping.
In addition he was responsible for quality control,
making the final inspection of the doors and components
to ensure quality control, making the final inspection of
the doors and components to ensure compliance with the
customers' specifications on the work sheets. He was also
assigned to receiving all merchandise, and keeping sup-
plies for the employees in the shop. He was assigned
duties outside of the plant, going with President Lomer-
son to set up dealerships in Memphis and Arkansas,
going out to install doors with secretary Kralis, and
going with Retail Sales Manager Jimmy Pevia to check
customers' locks which did not work. He also did all the
custom iron work, and served customers who picked up
doors at the plant. Finally, he secured the plant in the
evening, making sure all the lights were out and all the
equipment was turned off. For the Company to have as-
signed him all these duties and responsibilities, it un-
doubtedly regarded him as a valuable employee.
While learning these additional duties, shortly after
wholesale production began in August, Campbell was
told by secretary Kralis that he had put locks in upside
down. Later, although President Lomerson had devised
a 20-item package list in October to assist him in the
checking and packing the doors and components, Camp-
bell found that "it was just impossible for me to check
everything" because of insufficient time. It is undisputed
that Campbell frequently asked Kralis for some help be-
cause "I had too much to do," and that each time Kralis
said "they couldn't afford to hire anybody else." Camp-
bell continued to do all of the finishing, checking, pack-
ing, and shipping until he was replaced by two people, as
discussed later.
It was under these circumstances that errors were
made. Exhibits in evidence reveal the issuance of $84.28
in credits ($20 on an October 24 invoice for sending a
black instead of a white door, $36.28 on a November 5
invoice for sending a door with the wrong hinges, and
$28 on a December 18 invoice for improper wrapping,
resulting in a door being scratched and a broken glass
having to be replaced), plus total credits of $156 for mer-
chandise charged on invoices but not sent (November 6
and January 4, Resp. Exhs. 25-29). None of the credits
were issued since the January 4 invoice.
566
DIMENSIONS IN METAL, INC.
I credit Campbell's testimony that after secretary
Kralis told him about the initial lock problem (in
August), the next time he could remember anything
being said to him about a complaint was later that year
when the Company began getting complaints from Bob
Hendricks and President Lomerson "mentioned those
mistakes to me"-from his demeanor on the stand,
Campbell impressed me as being a sincere witness, doing
his best to reveal what had happened. Although Camp-
bell was not aware at the time, he so testified that the
Company had issued credits for these mistakes, the cred-
its which the Company later introduced into evidence to
show that those which were issued in 1979 were to cus-
tomers with whom Hendricks was affiliated.
Thus, the documentary evidence shows that while the
Company was operating shorthanded without sufficient
funds to employ a person to help Campbell in the finish-
ing, checking, packing, and shipping department, Camp-
bell made errors which cost the Company credits of
$84.28 (plus credits of $156 for merchandise which the
Company sold but which Camphell failed to include in
the shipments).
b. Building case against Campbell
Campbell was present in the finishing department on
January 25 when the subject of a union came up and
President Lomerson told Campbell, Williams, Boyce, and
Saulsberry that he would close the plant before he
would let a union come in. Thereafter, Campbell was the
employee orqanizer who went to the Union and picked
up authorization cards to be signed. Then, shortly after
Executive Vice President Sax joined the Company, re-
jected the Union's certified letter requesting recognition,
and began the Company's antiunion campaign. Campbell
told Sax in the February 28 meeting that he thought the
election petition was filed and Sax said he knew Camp-
bell used to be an organizer.
At this point President Lomerson, secretary Kralis,
and Retail Sales Manager Pevia proceeded to join with
Sax in building a case against Campbell. Lomerson and
Pevia admittedly solicited letters from customers against
Campbell. That same week, Lomerson told Campbell in
the office that he was making too many mistakes, that
the mistakes had been pointed out to him, and that he
had continued to make the mistakes. Lomerson conclud-
ed with a verbal reprimand, telling Campbell he had
been warned. The next week, Kralis also went on
record, giving Campbell a verbal warning. Kralis called
him to the office, told him he had been making too many
mistakes, and warned that if the mistakes could not be
corrected, "I would no longer be employed."
By this last week of Campbell's employment, the Com-
pany had assigned installer Rhines to doing some pro-
duction work, cutting materials to be used by Campbell.
Although Rhines would be assigned later that week as
one of the employees replacing Campbell, Kralis still
failed to grant Campbell any of the help he needed in
packing and shipping. (As found above, whenever Camp-
bell requested help, Kralis always replied that the Com-
pany could not afford to hire anybody else.) Also by that
week, more capital was being put into the business, and
the Company was hiring two new employees: welder
Parola on March 5, and employee Wells on March 6 to
assist Rhines in the finishing department with the pack-
ing and shipping when Campbell was discharged. Thus,
after Sax began the Company's antiunion campaign, the
Company was setting the stage for discharging Campbell
and assigning two employees to perform his work, in-
stead of giving him any of the often-requested help in
performing his multiple duties.
About 1:30 p.m. Thursday, March 6 (exactly I week
after Campbell said in the February 28 antiunion meeting
that he thought the petition had been filed, and Sax said
he knew Campbell used to be an organizer), the Compa-
ny was completing its preparations for discharging him.
Campbell was on the way to secretary Kralis' office to
get some coffee. Upon reaching the hallway outside the
office door, Campbell overheard Kralis talking over the
telephone, telling somebody named "Bob" (presumably
Robert Hendricks, a customer who later joined the Com-
pany as an executive) "to send Sam Sax a letter stating
dates of mistakes that were made," and stating that there
were too many mistakes being made and that if the mis-
takes keep happening, "they would have to find some
other company to deal with." Such a letter predated to
March 3 was sent, as discussed below.
Admittedly Sax had already decided to discharge
Campbell, and President Lomerson and secretary Kralis
had approved. Sax decided that Kralis, Campbell's imme-
diate supervisor, should handle the matter, in Sax's pres-
ence. As revealed by Sax, "I did instruct [Krails] as to
what should be said . .. I wanted to make sure there
were no extraneous comments that were unnecessary."
(Emphasis supplied.) I infer, from all the circumstances,
that the "extraneous comments" against which Sax was
cautioning Kralis were any comments about Campbell's
organizing efforts.
About 2:45 p.m. that Thursday, March 6 (G.C. Exh.
23M), Kralis called Campbell into Kralis' office and, in
the presence of Sax, discharged Campbell, telling him he
had heen making too many mistakes and that the Compa-
ny was too small to tolerate them. Kralis had a letter in
his hand (presumably one of those recently solicited by
Lomerson and Pevia), but Kralis did not show Campbell
the letter nor tell him the contents of the letter.
c. The Company's defenses
At the hearing, the Company introduced into evidence
seven written complaints from customers. Two of them
were dated in 1979: August 7 and October 4. (Resp.
Exhs. 15A and B.) The other five were dated in Febru-
ary and March (after the union organizing began): Feb-
ruary 7, 13, and 29 (Resp. Exhs. 15C, D, and E), and
March 3 and 4 (Resp. Exhs. 15G and H). In offering
these exhibits, the Company took the position: "I don't
offer them to prove the truth of the matters asserted in
the letters. They are offered for two purposes: One, that
they were received and two, action was taken based
upon them. We don't rely upon any of the comments in
the letters themselves.... We don't rely on the state-
ments in the letters to prove our case."
As Campbell credibly testified, he had never seen or
been shown any of these written complaints until after
567
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his discharge, when he received copies of the last four
(dated February 13 and 29 and March 3 and 4) from the
Tennessee Department of Employment Security, presum-
ably in connection with his claim for unemployment
compensation. I discredit President Lomerson's claim,
"I've talked to him about every one of them probably, or
most of them," and specifically discredit his claim that in
January, he discussed customers' written complaints with
Campbell "Two to three, four" times (there being no
written complaints in January), and his claim that upon
receiving the March 3 letter, "I had another very serious
conversation with Franklin Campbell." The March 3
letter was the predated letter which Campbell overheard
secretary Kralis soliciting from a "Bob" 3 days later,
ahout an hour before Kralis (at Sax's direction) dis-
charged Campbell. (Campbell overheard Kralis telling
Bob to put in the letter that if the mistakes kept happen-
ing, "they would have to find some other company to
deal with"; the March 3 letter stated that unless there
was an improvement, "we intend to buy from someone
else.") Thus, Lomerson was giving fabricated testimony
when he claimed that he had a "very serious conversa-
tion" with Campbell about this letter, which was solicit-
ed on the afternoon of the discharge and which could
not have been received until at least a day after the dis-
charge.
I also find that two other company witnesses have fab-
ricated testimony about this March 3 letter. Retail Sales
Manager Pevia claimed that this was one of the customer
complaints which he solicited. the customer to put in
writing (whereas this was the letter which Campbell
overheard Kralis soliciting); and Robert "Bob" Hen-
dricks (who was a longstanding friend of Lomerson and
who became an executive of the Company about a
month before the hearing admitted that he typed the
letter for the president of the customer, but twice testi-
fied falsely that the letter was not solicited. (The Compa-
ny's brief implies that this customer, Classic Doors, was
lost as a result of Campbell's mistakes. However, Hen-
dricks admitted that the president decided to start buying
from Metal Vent, a competitor, in May-about 2 months
after Campbell's discharge.) Concerning another written
complaint, I note that Lomerson and Pevia gave dubious
testimony, each claiming that he discussed the February
13 letter with Campbell. I discredit both of them, and
credit Campbell's testimony that he was not shown any
of the letters.
On the merits of the discharge, I find that these three
witnesses, Lomerson, Pevia, and Hendricks (all of whom
gave fabricated testimony about the written complaints
against Campbell), went to the extreme when testifying
about Campbell's mistakes. Lomerson, who also gave
fabricated testimony about when the Skag conversation
was held, as discussed above, claimed that he had
"around 50" telephone complaints from customers
against Campbell prior to January; about 8 or 10 in Janu-
ary, around 10 in February, and probably 3 or 4 in
March. Although Pevia was the retail sales manager, Ihe
claimed that since he was hired in November, he person-
ally received at least 20 complaints from the wholesale
customers. (He did not appear to be a candid witness on
the stand.) Hendricks went even further to the extreme.
He claimed that when he was working for one of the
Company's customers, he had between 50 and 100 com-
plaints against Campbell's work in the period between
June and September-despite the fact that the Company
did not begin wholesale production until August. He also
claimed that after October I, at another customer, he
had another 50 to 100 complaints about Campbell's
work, and claimed that in a shipment of 40 to 50 doors,
"there might have been" 30 mistakes. Undoubtedly if
there had been this many customer complaints about
Campbell's work, the Company would have taken reme-
dial action long before Campbell's March 6 discharge, or
the Company would have introduced into evidence more
than three credits (totaling $84.28) to cover his mistakes
and two credits (totaling $156) for unsent merchandise
during the period of his employment. After reviewing all
of the testimony by these three witnesses, I find that they
were exaggerating to the point of fabricating testimony.
Executive Vice President Sax (who clearly gave fabri-
cated testimony about welder Williams' discharge shortly
before the election, as discussed below) claimed the first
day of the hearing that, "Just since my coming there we
had to have credit memos issued to our customers due to
parts left out of the packages." However, 2 days later
when the Company introduced the five above-mentioned
credits into evidence (Resp. Exhs. 25-29), none was
dated after January 4-about 1-1/2 months before Sax
arrived. (By his demeanor on the stand, Sax appeared
more concerned with supporting the Company's cause
than accurately testifying what happened.)
d. Contentions of the parties
The General Counsel contends it is clear that the
Company's assertion that Campbell was fired due to his
poor work record is merely a pretext, and that "based
upon the timing of his discharge" and the "previous tol-
erance of his work," the "underlying motivation for
Campbell's termination was his activities in support of
the Union."
The Company denies that Campbell was discharged
because of the union activities, but concedes that "The
timing looks bad," and "it is true that the timing of
Campbell's discharge gives an appearance of impropri-
ety." Although the Company does not deny knowledge
of Campbell's organizing efforts, it contends "that the
General Counsel has not made out a prima facie case of
proper motive in the discharge of Frank Campbell" even
in light of the timing his discharge. Assuming arguendo
that an improper motive has been established, the evi-
dence is overwhelming that the Respondent discharged
Campbell because his poor work performance was cost-
ing the Respondent time, money, goodwill, and custom-
ers. There was ample and abundant business justification
for the discharge of Frank Campbell. The Company con-
tends that "Campbell's errors escalated contemporane-
ously with the organizing campaign. He literally was
single-handedly putting the Company out of business. No
labor law exists requiring a company to tolerate such in-
competence even during an organizing campaign." The
Company also contends that Campbell's mistakes were
costing the Company "large sums of money and custom-
568
DIMENSIONS IN METAL, INC.
ers as well"; that Campbell was repeatedly warned about
the mistakes; and "Under all the circumstances, the Com-
pany had no choice but to discharge Campbell." Con-
cerning its own documentary evidence (Resp. Exhs. 25-
29), showing that Campbell's errors caused the Company
to issue credits which totaled $84.28, plus credits totaling
$156 for merchandise not shipped, and none of them
being issued after Janaury 4, the Company contends that
these documented mistakes were only "representative"
examples, "and are by no means all of the examples such
costly mistakes which were made by Campbell"-with-
out offering any explanation why other customer credits,
if they existed, had not been offered into evidence. Con-
cerning the Company's admitted solicitation of written
complaints before Campbell's discharge, the Company
contends, "They were not solicited to frame Frank
Campbell," and asserts that the letters "were solicited as
a matter of regular industry practice, as a means of
having documentation of customer complaints, and as a
means of bringinq the problems to the attention of the
employee responsible."
e. Concludingfindings
Before Campbell began organizing for the Union, he
was regarded as a valuable employee, upon whom the
Company assigned many duties and responsibilities, in-
cluding finishing, packing, and shipping, as well as qual-
ity control. The Company was aware that Campbell did
not have sufficient time to perform all of his assigned
duties, but being undercapitalized, it denied his repeated
requests for assistance, told him it could not afford to
hire anybody else, and tolerated the mistakes he made
from time to time.
After Campbell and the three other alleged discrimina-
tees began discussing a union, President Lomerson told
them on January 25 that he would close the plant before
letting a union come in. Executive Vice President Sax
joined the firm about February 15 or 20, refused to
accept the Union's demand for recognition, and began
conducting the Company's campaign to defeat the
Union. In the antiunion meeting conducted by Sax, Feb-
ruary 28, Campbell told Sax that he thought the Union's
election petition had been filed, and Sax told Campbell
he knew Campbell used to be an organizer. Exactly I
week later (the "bad" timing which the Company ac-
knowledges), the Company discharged Campbell. Secre-
tary Kralis, under instructions from Sax "to make sure
there were no extraneous comments," discharged Camp-
bell in Sax's presence, telling him that he had been
making too many mistakes and the Company was too
small to tolerate them.
Meanwhile, the Company still had not assigned any-
body to assist Campbell in the finishing department. Ap-
parently he had continued to make some mistakes, but
the company witnesses' gross exaggerations of his mis-
takes throughout his employment and the absence of any
customer credits since January 4 preclude an accurate
determination of how many mistakes he was making.
The Company was aware that he had more responsibil-
ities than he had time to perform, because when it dis-
charged him on March 6, it assigned two employees to
replace him: Installer Rhines to do the finishing and
checking and Wells (a new employee hired March 6) to
do the packing and shipping. Thus, even assuming that
Campbell began or continued to make more than an al-
lowable number of mistakes in performing the excessive
duties to which he had been assigned for months when
the Company could not afford to provide him with any
assistance, the Company had the opportunity to assign
Rhines, or later Wells, to assist him with the packing and
shipping, but it failed to do so.
Instead, in the context of the union organizing cam-
paign, the Company laid the groundwork for discharging
Campbell. President Lomerson gave him a verbal warn-
ing during the week of Sax's February 28 meeting for
making too many mistakes; and secretary Kralis gave
him another warning the next week. In the meantime,
Lomerson and Retail Sales Manager Pevia were solicit-
ing customers' written complaints against Campbell, and
about an hour before his March 6 discharge, Campbell
overheard Kralis on the telephone, soliciting a written
complaint from Company Executive Hendricks, who
then worked for one of the Company's customers.
I reject the Company's contention that these written
complaints "were not solicited to frame Frank Camp-
bell" but "were solicited as a matter of regular industry
practice . . . as a means of bringing the problems to the
attention of the employee responsible." I reject it, par-
ticularly in view of the fact that none of the written
complaints were shown to Campbell before his dis-
charge, and the fact that the letter solicited by Kralis on
March 6 was predated March 3, indicated connivance
between the Company and the future company execu-
tive.
Under all these circumstances, I find that the General
Counsel has made a prima facie showing that Campbell's
union activity was a motivating factor in the Company's
decision to discharge him, and that the Company has
failed to demonstrate that it would have taken the same
action against him, instead of granting his longstanding
requests for assistance, if he had not engaged in the
union activity. Wright Line, a Division of Wright Line,
Inc., 251 NLRB 1083 (1980). I therefore find that the
Company discrimimatorily discharged Campbell to dis-
courage union membership, in violation of Section
8(a)(3) and (1) of the Act.
3. Other alleged coercion
On March 12, about 2 weeks after Executive Vice
President Sax told the employees in the February 28
meeting that he would "guarantee" that the employees
would get nothing if a union was brought in, he posted a
full-page letter on the bulletin board (G.C. Exh. 7), stat-
ing in part:
I can't believe that any of you would possibly be-
lieve that an outsider could remedy any situation
that existed or exists . . . it simply cannot be done.
There is absolutely no Union that can make us do
anything, that we wouldn't do for you when our
ability to do so exists.... Do you want to pay for
some jerk to talk for you? . . . Ask someone on
STRIKE . . . Strike Power is the only power a
569
I) lISIO()NS ()[ NATIO()NAI. lAI()R R A IO)NS lBt)ARI)
Union has . . . who wins a strike? You can be sure
YOU will not be a WINNER, and this Corporation
will survive .... would a Union do anything for
you personally? The answer is: YOU BET YOUR
BUTT THEY WOULDN'T.... Yes, there have
been mistakes, but an outsider cannot do anything
about it.... Don't Be Fooled By promises from
some Union Official . .. HE CANNOT DO ANY-
MORE FOR YOU . . . THAN WE CAN DO.
VOTE NO!
Although different words are used-this notice stating
that no outsider "could remedy any situation that existed
or exists," that an outsider "cannot do anything about"
any past mistakes, and that "some Union Official . . .
CANNOT DO ANYMORE FOR YOU . . . THAN
WE CAN DO"--I find that Sax was conveying the
same message, clearly manifesting a closed mind and a
determination that collective bargaining would be futile.
I therefore find that the notice tended to coerce the em-
ployees in the exercise of their Section 7 rights, in viola-
tion of Section 8(a)(l) of the Act.
The complaint alleges that near the end of March the
Company refused to permit its employees to use the
front entrance of the plant because of their protected
concerted activities. However, the employees had a con-
venient separate entrance to the plant, and they could
not use the front entrance without walking through the
carpeted retail sales area. I find that the Company had a
business justification for prohibiting the occasional use of
the front entrance by the plant employees, and that the
General Counsel has failed to prove that the restriction
was an unlawful reprisal for engaging in protected con-
certed activities. I therefore find that the 8(a)( ) allega-
tion must be dismissed.
On April 1, 3 days before the election, the Company
held an employee meeting at the plant. As welder Wil-
liams credibly testified, President Lomerson asked Ex-
ecutive Vice President Sax if he had anything to say. Sax
stepped up and said he had heard a rumor that Campbell
was coming back to work, but that Campbell was not.
He told the employees that "no one tells him who to
hire and who to fire." and that "no Labor Relations
Board could make us put him back to work." (Painter
Saulsberry recalled that Sax said that "Campbell would
not be coming back to work because the Union or the
Labor Board or nobody else could make them hire him
back if they did not want him." Grinder Boyce errone-
ously recalled that it was Lomerson who referred to
Campbell. Williams appeared to have the best recollec-
tion of Sax's comments.) In its defense, the Company
states in its brief that there was no mention of Frank
Campbell at a meeting held April 1. It relies on the de-
nials by Lomerson and Retail Sales Manager Pevia (both
of whom gave fabricated testimony to justify Campbell's
discriminatory discharge). Lomerson claimed that Sax
did not say a word while Lomerson was there (and that
Lomerson was there during the entire meeting), and that
Sax did not say anything about Campbell not coming
back to work. Pevia claimed that he did not believe Sax
spoke at the meeting, as well as denying that anything
was said at the meeting about Campbell. However, in a
position paper which Sax submitted to the Regional
O)ffice on April 28, Sax admitted that he did speak at the
April I meeting (telling them that "regardless of how
each of them felt about a union, harassing fellow em-
ployees to the point it interfered with their performance
would not be tolerated" (G.C. Exh. 22)). Sax did not tes-
tify about the April I meeting at the hearing. I discredit
the denials, and find that Sax did tell the employees that
"no Labor Relations Board could make us put [discri-
minatorily discharged Campbell] back to work." I find
that this statement, informing the employees in effect
that the Company would not reinstate Campbell even if
the Board held that he was unlawfully discharged and
ordered his reinstatement, tended to coerce employees in
the exercise of their Section 7 rights, violating Section
8(a)(1) of the Act.
The General Counsel has failed to prove a further alle-
gation in the complaint, that the Company about April 1
"instituted a policy and practice of issuing written repri-
mands to its employees for absences." The only repri-
mand issued around that date was Kralis' reprimand to
Saulsberry on April 2 for failure to switch off the air-
compressor at the end of the shift, and that reprimand is
not alleged to have been discriminatorily motivated. I
therefore find that this allegation must be dismissed. (The
alleged discriminatory placing of reprimands in the per-
sonnel records of Boyce and Saulsberry on May 22 is
discussed below.)
4. April 3 discharge of Williams
a. Upcoming election
On April 3, when welder Daniel Williams was summa-
rily discharged following the mysterious cutting of his
new welding lead, the Company was faced with a likely
defeat in the election to be held the next day if Campbell
(alleged on March 12 to be discriminatorily discharged)
was held to be an eligible voter. (As found above, Ex-
ecutive Vice President Sax told the employees on April
I that "no Labor Relations Board could make us put him
back to work"-indicating Sax's concern about Camp-
bell's eligibility.) Sax had been carrying on an antiunion
campaign, but three of the six remaining employees had
indicated their continued support for the Union. On
March 20, Sax had filed a charge against the Union, al-
leging harassment by the union supporters of other em-
ployees, and had submitted a supporting affidavit on
March 25, naming Williams, Boyce, and Saulsberry as
those doing the harassing. I discredit, as further fabrica-
tions, President Lomerson's denial that Sax ever reported
to him whether or not any of the employees supported
the Union and his claim that he was not sure that he
knew at the time of the April I meeting whether Wil-
liams, Boyce, or Saulsberry was for the Union. Lomer-
son admitted at one point that Sax reported to him that
welder Williams was soliciting welder Parola for a union
card; Sax stated in his April 28 position paper that Parola
"complained to Mr. Kralis, Mr. Lomerson, and myself
about Mr. Williams constantly harassing her about voting
for the Union and telling her she would not have a job
once the Union was voted in" (G.C. Exh. 22); and Sax
57()
DIMENSIONS IN METAL, INC.
testified that Parola complained to him "numerous times"
about Williams harassing her about the Union. On cross-
examination by the company counsel, Parola testified
that she reported to management that the welder and
painter-Williams and Saulsberry-were giving her a
"lot of hassle" as to how to vote. Williams credibly testi-
fied that when he asked Parola to sign a union card, she
said no. As for Boyce, the evidence is clear that the
Company was aware of his union support. The Union
filed a charge on his and Campbell's behalf on March 3
for being unlawfully laid off on that date (G.C. Exh.
I(a)), and Boyce wore a union button during the cam-
paign and served as a union observer at the election.
Thus, before Williams was summarily discharged on
April 3, the Company was faced with the prospects of
three expected union votes from the remaining union
supporters (Williams, Boyce, and Saulsberry), plus a
challenged union vote from discharged union supporter
Campbell, resulting in a possible four-to-three union vic-
tory, even assuming that all three of the remaining em-
ployees (Grace Parola, David Rhines, and Tommy
Wells) voted against union representation. However, the
immediate discharge of Williams might ensure a compa-
ny victory (a three-to-three tie vote), even if Campbell
was held to be an eligible voter.
The General Counsel argues in his brief that when the
Company's "animus toward the Union is considered, it is
clear that it possessed a strong motive and interest in dis-
charging Williams before April 4." I agree.
b. New welding lead cut
On April 2, Williams' new welding lead (purchased
"brand new" in February after the old one shorted out)
was cut in a straight, 3-inch line with a sharp object,
such as a knife, through both the outer black covering
and the inner yellow insulation. At 2:30 that afternoon,
when Williams went on break with Boyce, Saulsberry,
Rhines, and Wells on the dock-leaving welder Parola
and a new welder (James May, G.C. Exh. 23G) inside
the plant-the black outer covering had no break in it,
and the welding machine was operating perfectly. After
the 10-minute break, Williams resumed welding on a
door which had no sharp edges which could make such
a straight, long gash in the two protective layers. By
about 3:20 p.m., the dragging of the welding lead (also
called the cable or cord) across the rounded edge of
welding table or the door being welded caused the 3-
inch gash (on the underside of the cable, out of Williams'
line of vision) to open up enough for inner wires in the
cable to make contact with the metal. As Williams credi-
bly described it, "the machine started acting funny and I
felt a tremendous amount of heat up under my arm." He
stopped welding, inspected the cable, and saw that it had
short-circuited, burning a hole in the cable. He went to
the office to report what had happened, but all three of
the officers (Lomerson, Sax, and Kralis) were out. He
showed Retail Sales Manager Pevia the damaged weld-
ing lead and told him, "Just make sure you tell them
when they get in." The next morning, Williams found
that his timecard had been pulled, and secretary Kralis
called him into the office. President Lomerson was there
but did not say anything. Williams told Kralis he thought
the cord had been cut but he did not know how. Kralis
responded by handing him his separation notice and
check and telling him "get out of my office and get off
company property." He did.
c. Sax's fabricated defense
Executive Vice President Sax (who stated in his April
28 position paper (G.C. Exh. 22) that he, President Lo-
merson, and secretary Kralis reached the decision to dis-
charge Williams) gave clearly fabricated testimony to
support Williams' discharge.
The Company's principal defense, as stated in its brief,
is that Williams intentionally destroyed the cable-even
though Lomerson admitted on the stand that Williams
was "quite a welder . . . probably one of the best door
welders I've ever seen," and although at no time, either
at the hearing or in its brief, has the Company suggested
any motive for Williams intentionally cutting the cable
just 2 days before the election.
Sax was called as an adverse witness at the beginning
of the hearing, before Lomerson and Retail Sales Man-
ager Pevia revealed that all three of the company offi-
cials, Lomerson, Sax, and Kralis, were away from the
plant, attending a corporate meeting when the cable cut-
ting occurred. Lomerson testified that "When it took
place I was with Bill Kralis, Sam Sax in a corporate
meeting," away from the premises, and that when they
returned about 4:30 or 5 p.m.. after the employees were
gone, "Pevia came and notified myself, Bill Kralis and
Mr. Sax" that the cable had been damaged. Pevia testi-
fied "I was sitting in my office and Danny Williams
came down and asked me if I would come up and look
at something"; Sax, Kralis, and Lomerson were not there
and it was "About 4:15, 4:30 that afternoon when they
got back."
Yet, contrary to the testimony of Williams, Lomerson,
and Pevia, Sax claimed that he was on the premises at
the time, and that Williams gave him reason that after-
noon to believe that Williams had deliberately cut the
welding cable.
Sax falsely testified that "Sometime in the afternoon
Mr. Williams came downstairs and said that his cable has
been cut," telling Sax and Pevia about it. "1 went up to
examine the cord . . . and I was somewhat upset by
what I saw. I asked him how it occurred and he said he
had no idea." When asked what made him think Wil-
liams had deliberately cut the cable, Sax gave the fabri-
cated answer: "Well, his attitude in even telling myself
about it, about the occurrence was one of, 'Ha, Ha, get
another welding cable, someone has cut the welding cable."'
laughing. (Emphasis supplied.) When asked what else, he
went further with his false account, stating, "As though
he was not concerned about it and, of course, union ac-
tivities were going on at that time and I assumed he felt
like, as I have stated in some document here, that he
would find refuge somewhere regardless of what he
did." I note that the Company introduced into evidence
(Resp. Exh. A) the Regional Director's May 5 letter,
refusing to issue a complaint on Williams' April 3 dis-
crimination charge in Case 26-CA-8361 (G.C. Exh. I(r))
after Sax submitted the Company's April 28 position
571
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paper (G.C. Exh. 22), asserting that the cable "was prop-
erly deliberately cut." The Board on October 31, 1980
(G.C. Exh. l(gg)), overruled the Company's contention
(G.C. Exh. l(ff)), that Case 26-CA-8361 is not properly
in issue because Williams did not serve on the Regional
Director a copy of Williams' notice of appeal to the
General Counsel, who reversed the Regional Director's
dismissal letter.
Thus, to support the Company's defense that "Daniel
Williams was discharged for intentionally destroying
company property." Sax was willing to give false testi-
mony about Williams having a flippant attitude at the
time, even though it meant falsely placing himself at the
scene when in fact he was elsewhere, at a corporate
meeting when the cable was cut. Even so, he failed to
suggest any possible motive-why Williams would be
such a "total fool," as described by Williams to deliber-
ately cut his own welding lead and still use it, risking his
personal safety, or why he would provoke his own dis-
charge and perhaps cause the Union, for which he had
been campaigning, to lose the election scheduled 2 days
later. I also discredit Sax's claim that he was present
when Kralis discharged Williams.
The Company's brief goes a step further. Despite the
absence of any actual supporting evidence, the Company
entitles one subsection of its brief. "The First Welding
Cable was Intentionally Destroyed by Williams in February
1980," and contends that "Williams was discharged for
intentionally destroying two welding cables in a six week
period at a cost of $250 apiece, and not because of any
union activity on his part." The brief concludes with the
statement, "there are no labor laws protecting saboteurs."
(Emphasis supplied.)
This defense, that Williams intentionally destroyed the
first welding lead as well, is obviously an untenable, be-
lated afterthought. The contention completely ignores
Williams' credited, undisputed testimony that when the
old welding lead was badly worn (with the outer black
covering stripped back 30 inches on the nozzle end of
the cable), secretary Kralis "told me ... to just put tape
on there," over a hole in the bare yellow undercover,
"and continue using it because he could not afford to
buy another one." "You would tape one day and the
tape would pull back off," and "each and every time the
tape would wear off, I put more tape on it," until finally,
"it caught onto the table and it shorted all the way out."
Williams and Kralis discussed ways of reducing the wear
on the cable. (It was a long, 14-foot cable. Instead of
being mounted high overhead, as at other places where
Williams had worked-preventing excessive wear-it
was mounted on a welding box which was only about 5
feet high (Resp. Exhs. 7A and B).) When the nozzle or
"gun" on the end of the cable was being used over the
welding table, the middle part of the long cable was
dragging on the floor. This increased the friction on the
cable as it was pulled back and forth or reach the differ-
ent parts of the door being welded, rubbing against the
edge of the welding table or door, causing excessive
wear. It is undisputed that Williams and Kralis discussed
supporting the dragging middle section of the long cable,
to cut down on the friction, but nothing was worked out.
There obviously was no cause for the Company to be-
lieve that Williams was deliberately destroying the old
welding lead.
d. Subsequent changes made in damaged cable
The evidence does show that the new welding lead
was deliberately cut by somebody with a knife or other
sharp object. The cut was a straight, smooth, 3-inch
gash, on the underside of the cable (out of view of the
welder). It was through both the outer black rubber,
scuff-protection covering, and the second layer of
yellow, neoprene-type insulation.
The real question is the validity of the Company's de-
fense that it believed Williams was the one who inten-
tionally cut the cable.
It is apparent thought that the Company was unwilling
to rely solely on this defense, for obvious reasons. Wil-
liams was an experienced welder, with about 6 years of
experience. President Lomerson had known him for
about 4 years (at Metal Vent and at the Company) and
admitted that "He was probably one of the best door
welders I've ever seen." Williams was also known as an
active union organizer, who would have had no motive
to jeopardize the Union's hopes of winning the election
scheduled 2 days later by giving the Company cause to
discharge him. The Company had no evidence that he
had stopped work or was tampering with the welding
lead when it short-circuited. (Merely cutting the cable
would not cause a short circuit. The inner wires would
have to make contact with the door or welding table
while the trigger on the welding gun was pulled.) The
credible evidence shows that the short circuit occurred
while he was welding a door-oblivious of the fact that
someone had cut the cable on the underside, outside his
line of vision-and the 3-inch gash opened up enough for
the exposed inner wires to come in contact with the edge
of the door or table as the cable was being dragged back
and forth.
Having no direct proof to support its principal defense
that Williams intentionally cut his own welding lead, the
Company at sometime made certain changes in the phys-
ical evidence, the new welding lead, in an apparent
effort to support this and other defenses.
First, by the time the cable was produced at the hear-
ings, the black covering near the 3-inch cut had been
worn down by rubbing it against a rough metal surface,
then torn apart for about 15 or 20 inches, and separated
from the yellow insulation underneath, hanging loose.
Such a badly worn and damaged black covering would
provide, as it turned out, the basis for President Lomer-
son to testify, "It's been very badly abused." However if
this new cable, which had been used only 6 or 8 weeks,
had been in that condition at the time of the cable cut-
ting, undoubtedly something would have been said to
him about it before. As Williams credibly testified, the
black covering at the time of the cutting was smooth and
new looking, like the remainder of the cable at the time
of the hearing; that it completely covered the yellow in-
sulation; and the only damage to the black covering was
the 3-inch slit.
Secondly, when the welding cable was produced at
the hearing, inner copper wires were pulled out of the 3-
572
DIMENSIONS IN METAL, INC.
inch gash-exposing them in such a way that the Com-
pany could argue that Williams had not only cut the
cable but had prized out the wires to ensure that they
would make contact, causing the cable to short circuit.
Such a defense was undercut, however, when President
Lomerson admitted that the wires were not exposed in
that manner and pressed the wires back inside the cable
as they were when he first saw the damaged cable.
Thirdly, a second, 1-1/2-inch slit was made in the
cable with a sharp object near the first, 3-inch gash.
Company witnesses claimed that Executive Vice Presi-
dent Sax deliberately made that slit to determine how the
first gash occurred, but they gave conflicting testimony
how and when the second slit was made. President Lo-
merson first testified that within about 2 hours after the
cable cutting (when he, Sax, and Kralis returned about
4:30 or 5 p.m. that day from the corporate meeting and
checked the cable), he was present and saw Sax make
that 1-1/2-inch slit in the cable at Williams' welding
table, running the cable over the "slam bar on the outer
face of the lockbox" being welded to the doorframe Wil-
liams was building. Williams credibly testified that this
was impossible, because the edges of the slam bar are not
sharp enough to cut the cable, and as the lockbox is
being welded to the door, the corners are flush with the
door, leaving no sharp corners to touch the cable. But
on cross-examination, Lomerson gave a conflicting ac-
count. He revealed that when he, Sax, Kralis, and per-
haps Retail Sales Manager Pevia checked the cable that
afternoon, "Mr. Kralis and Mr. Sax discussed it and de-
cided on how to handle the problem the following morn-
ing" (when Kralis, in Lomerson's presence, summarily
discharged Williams, giving him his final check and sepa-
ration notice and ordering him off the premises). Ac-
cording to Lomerson, "Mr. Sax discussed it with Mr.
Kralis," stating it was "awful strange that here it is less
than six weeks old and another brand new cable is
ruined," and "that we were no longer going to tolerate
it, the expense of it, and that we had to do something
about it first thing in the morning." Thus, this time Lo-
merson in effect admitted the decision was made that
afternoon to discharge Williams the first thing in the
morning. Later when asked about Sax cutting the cable
on the slam bar, Lomerson claimed that Sax did it that
evening, and admitted not observing Sax do it. Concern-
ing who made the decision to discharge Williams (Sax
having revealed in his April 28 position paper (G.C.
Exh. 22) that Sax, Kralis, and Lomerson had reached the
decision), Lomerson first testified that he concurred in
the firing of Williams. He claimed that Williams' union
activities played absolutely no part whatsoever in the
discharge and stated that the second occurrence with the
welding lead was an expense he could no longer afford
and "will not put up with." Lomerson later claimed, "I
assume that Mr. Kralis determined the evening prior" to
discharge Williams: that no, he did not himself take any
part in determining whether or not Williams should be
discharged, "I was not present"; and that Kralis "and I
am sure that Mr. Sax had something to do" with the de-
cision to terminate him.
Sax gave a version which largely contradicted Lomer-
son's various versions. After falsely claiming that he was
there at the time Williams reported the cable cutting (as
discussed above), Sax claimed that he did not recall if
Kralis returned that day or the next morning; that one of
those times he investigated it with Kralis, ran the cable
over the slam bar which has a "very sharp . . . thin
knife-edge," and made a similar cut to the one already
there. He later testified that he gave his findings to Lo-
merson and Kralis either that evening or the first thing
the next morning. "We examined the cord . . . and I
told Mr. Kralis and Mr. Lomerson of my findings and
demonstrated . . . how I thought the cut could have
been made, and they agreed." "I told them . . . I felt
that it was a deliberate act," and "whether it was delib-
erate or not, that it was certainly negligence" and "con-
sequently I . . . didn't think we could afford to replace
welding cables daily" then after talking to Kralis and
Lomerson, Sax met with Williams in Kralis' office, with
Kralis present, and discharged him. Thus, Sax agreed
with Lomerson's versions to the extent that the second
slit was made on the slam bar of the lockbox.
When Retail Sales Manager Pevia was called to testify
for the Company, he disputed even this and gave still a
different version of what happened. He claimed that he
was present that afternoon when Sax cut the cable, but
positively testified that the cable was not cut on the slam
bar but was cut on a burr, a "piece of steel, shaving like,
sticking out" where the -inch steel tubing was cut. He
was positive that the burr was not part of the lockbox.
Williams (who impressed me most favorably as an
honest forthright witness) credibly testified that such a
burr "could cut it, but not like that"; that he did not
think a burr "could cut it that deep"; and that the burr
"probably could cut it, but it is so thin that ... it'll bend
and it wouldn't cut it from here to there. It would prob-
ably just nick it." When asked how the cable could have
been cut if not on a metal tubing burr or on a slam bar,
Williams stated his only theory was that it was cut delib-
erately; but he did not know by whom. (He did not
accuse the antiunion welder, Parola, who remained
inside the plant during the afternoon break, nor accuse
the Company with complicity in the act.) He insisted, "I
know I would not cut it and still use it."
I find no reason to doubt President Lomerson's, at
least implied, admission that the decision was made the
afternoon of the cable cutting on how to handle Wil-
liams' discharge the following morning, and the admis-
sion by both him and Sax that he concurred or partici-
pated in the discharge decision. I cannot, however,
credit any of the conflicting versions about how and
when the second, -1/2-inch slit was made in the cable.
From their demeanor on the stand, Lomerson, Sax, and
Pevia did not appear to be candid witnesses; and as indi-
cated, I credit the testimony given by Williams, an expe-
rienced welder, that neither the slam bar nor a metal
tubing burr could make such a cut on the welding lead. I
consider it more likely that Sax, who claimed that he
was able to cut the second slit on the slam bar, instead-
at sometime before or after the discharge-cut the cable
with a knife or some other sharp object, and that the
conflicting versions given by the three company wit-
573
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nesses resulted not from faulty memories but from a fab-
ricated defense.
Fourthly, before the new cable was produced at the
hearing, somebody had created a second short circuit,
burning an additional hole in the cable. The hole, about
three-quarters of an inch across, was about 10 or 12
inches from the first short circuit. The Company's only
explanation (and only a speculation) for this second burn
was Lomerson's "theory" that Williams threw the weld-
ing cable down on a hot weld when the exposed wires in
the 3-inch gash short-circuited. However the Company's
own witnesses, Plant Owner Henry Jones (who had done
contract work for the Company and who buys locks and
supplies from it) testified that this could not have hap-
pened because the door welds were not hot enough and
because, without a cut, there would be no contact to
cause a short circuit. A short circuit could have resulted
later, though, if someone had cut a slit at that spot on
the cable and operated the welding gun (which was still
operable despite the first burn), while making contact.
As for throwing down the welding gun, Williams credi-
bly denied doing so. Instead, after inspecting the damage,
he placed the nozzle into the hole on the side of the
welding table, in its proper place. As found above, he
also credibly testified that at the time he went to the
office to report the damage, the welding cord still
looked new except for the 3-inch gash where the first
short circuit occurred. I therefore find that this hole was
not burned in the cable at that time, but was made by the
Company sometime before the hearing.
President Lomerson further demonstrated his lack of
credibility after he produced the damaged cable at the
hearing and testified yes, he had inspected the cable the
afternoon of April 2. Although he obviously was aware
of the manner in which the cable had been changed
before the hearing, he falsely testified at first:
Q. Is this cable currently in the shape it was
when you first inspected it?
A. Yes, it is. (Emphasis supplied.)
He, thereafter, admitted that the second, 1-1/2-inch slit
had been intentionally added and that wires had been
pulled out from the first, 3-inch gash. He did not admit
the making of the other changes.
I find that the Company, before producing the weld-
ing cable at the hearing, converted the new looking
cable into a badly worn and damaged one, by (I) rub-
bing or scraping the black covering thin in the area near
the 3-inch gash, and tearing 15 or 20 inches of the black
covering apart and away from the yellow insulation un-
derneath, (2) pulling out the inner wires from the short
circuit, (3) cutting the 1-1/2-inch slit, and (4) making the
third hole in the cable. Even assuming that Sax cut the
1-1/2-inch slit in the cable, either before or after Wil-
liams' discharge, in order to determine how it would be
possible to cut a 3-inch gash in a welding lead in the
process of welding a door, and further assuming that
either he and Lomerson were telling the truth (that Sax
cut the cable on the slam bar) or Pevia was telling the
truth (that he saw Sax cutting the cable on a steel tubing
burr), I would find that he conducted the experiment in
search of an alternative defense. Whether or not the
Company knew who had secretly slashed the welding
lead, probably during the 10-minute break, it was taking
the implausible position that it believed that a leading
union organizer had, 2 days before an election, deliber-
ately cut and short-circuited his own welding lead, sub-
jecting himself not only to personal danger but also to
immediate discharge, canceling out his vote in the close
election. If such a straight, smooth, 3-inch gash could
somehow be made while welding a door, that would
provide a more plausible defense, that the Company be-
lieved he was negligent-Sax undoubtedly not realizing
that the company president would be admitting at the
hearing that this particular welder was one of the best he
had ever known. As quoted above, Sax testified that he
told Lomerson and Kralis he thought it was a deliberate
act or "it was certainly negligence."
e. Concluding findings
The Company admits in its brief that here, I day
before the close election, "The timing looks bad." How-
ever, it contends that there was "no need to fire Wil-
liams until he messed up his second chance." It argues
that even assuming arguendo that the General Counsel
has made out a prima facie case of an improper motive
for discharging him, "the Company had ample business
justification to discharge Williams in that there was no
other explanation for the destruction of the two cables,
other than it was done intentionally by Williams." I dis-
agree.
As found above, based on the credited, undisputed evi-
dence, there was no reason to believe that Williams de-
liberately destroyed the first cable. Concerning the new
cable, the Company argues that, "Under Williams' story,
the only possible explanation for the damage is that
someone else cut it. This explanation is self-serving, and
no proof was presented in any form by the General
Counsel to substantiate the explanation. The only possi-
ble explanation is that Williams himself cut the cable."
It is true that there was a mysterious cutting of Wil-
liams' new welding lead, and no direct evidence of who
was responsible. There was an opportunity for one of the
antiunion employees, who remained in the plant during
the 2:30 p.m. break, to have slashed the cable-on the
underside, outside the view of Williams-but no evi-
dence that she did so, with or without the Company's
encouragement. Neither is there any evidence which
would establish that Williams did the cutting.
In these circumstances, I weigh the respective possible
motivations. Contrary to the Company's contention that,
"The only possible explanation is that Williams himself
cut the cable." I find it clear that Williams could have no
conceivable motivation for deliberately cutting his own
welding lead, subjecting himself not only to personal
danger but also discharge, thereby forfeiting his opportu-
nity to vote for the union for which he had been cam-
paigning. On the other hand, the Company had a strong
motivation for contending that it believed he had cut his
own welding cable. The campaign began with four union
supporters, one of whom (Campbell) the Company had
already discriminatorily discharged. That left three union
574
DIMENSIONS IN METAL, INC.
supporters, Williams, Boyce, and Saulsberry, and three
other employees (Rhines, plus two new employees hired
since the election petition was filed). The discharge of a
second union supporter would reduce the number of
known union supporters to two. Sax had carried on an
unlawful antiunion campaign, demonstrating the Compa-
ny's union animus.
In the absence of any motivation on Williams' part to
deliberately cut his own welding lead, I reject the Com-
pany's contention that it believed Williams did so. I also
find that the General Counsel has made a prima facie
showing that Williams' union organizing was a motivat-
ing factor in the Company's decision to discharge him,
and that the Company has failed to demonstrate that it
would have taken the same action against him had he not
engaged in the union activity. I therefore find that the
Company discriminatorily discharged Daniel Williams on
April 3 because of his union activity, thereby violating
Section 8(a)(3) and (1) of the Act.
5. May 30 discharge of Boyce and Saulsberry
a. The circumstances
The credible evidence reveals that Executive Vice
President Sax, who was leading the Company's antiunion
campaign, was not content with the discriminatory dis-
charge, before the April 4 election, of two of the four
union supporters. In the latter part of May, Sax bagan
discriminating against the two remaining union support-
ers, grinder Willie Boyce and painter-door builder
Clayton Saulsberry, and then discriminatorily discharged
them, as discussed below.
Unfortunately for Sax, the Company was not thriving
with such turnover. When he joined the Company on
February 15 or 20, before the filing of the election peti-
tion on February 28, the Company had only five em-
ployees, the four union supporters, Campbell (discharged
March 6), Williams (discharged April 23), and Boyce
and Saulsberry (discharged May 30), plus installer
Rhines. As it turned out, Rhines proved to be a satisfac-
tory employee, first replacing Campbell-with the assist-
ance of Wells, hired the date of Campbell's discharge-
and later replacing secretary Kralis as plant manager
(G.C. Exh. 9). Although Sax said at the April 1 meeting
that Rhines and Wells (who, with welder Parola, pre-
sumably cast the three no-union votes in the April 4
election) would have jobs there as long as the Company
was open, neither Wells nor Parola remained on the pay-
roll May 30. The timecards in evidence show that Wells
last worked May 16 (and did not return until September
30 (G.C. Exh. 23N)). Parola, who was hired March 5,
apparently was unable to satisfactorily replace Williams
as a door welder. About a week after Williams' dis-
charge, Parola was replaced by a new door welder,
Kevin Sasser (G.C. Exhs. 23H and K). Another new
welder, James May, who remained inside the plant with
Parola during the afternoon break before Williams' new
welding lead short-circuited, worked part of that week
and the next, but not thereafter. (G.C. Exh. 23G.) By the
time Boyce and Saulsberry were discharged, the Compa-
ny had hired, as "contract labor" according to the time-
cards, Ray Swann on May 7, grinder Joe Copeland on
April 7, and painter David Brewer on May 21. (G.C.
Exhs. 231, O, and P.)
Around July 1, 1980, about a month after his discharge
of the last of the four union supporters, Sax's position as
executive vice president was eliminated because of "fi-
nancial problems" and Sax left the Company.
b. Reprimands placed in files
On May 21, both Boyce and Saulsberry were absent
from work. Boyce's friend, Delois Smith, called in about
starting time, 7:30 a.m., and notified a man, who she be-
lieved was Sax, that Boyce had a crick in his neck and
would not be in to work. Saulsberry called in and talked
to secretary Kralis, reporting that he had a boil and
would not be in. Boyce and Saulsberry returned to work
the next day, without any indication that the Company
was treating their absences as unauthorized. As Boyce
credibly testified, nothing was said to him about the ab-
sence.
By that time, Sax had inaugurated a procedure for
giving written reprimands. On April 2, the day after the
Company held an employee meeting in the election cam-
paign, Kralis gave the first of these written reprimands
to Saulsberry for "Failure to switch off Air Compressor
at end of shift" on April 1. (G.C. Exh. 8.) It is undisput-
ed that at the time Kralis showed him the reprimand,
Saulsberry told Kralis he had checked everything at
night and thought the machine was off, and protested the
reprimand, but Kralis gave him the choice, "either sign
the reprimand or get fired." He signed it. The Compa-
ny's second written reprimand was given by Kralis to
Boyce on May 13 for "Stretching morning break. Mr.
Boyce was observed by Sam Sax not returning to work
area ready for production until 9:20 a.m." (G.C. Exh. 4.)
Boyce's and Kralis' names were typed at the bottom.
(The complaint does not allege that either of these first
two grievances was issued discriminatorily.)
As Boyce and Saulsberry credibly testified, they were
not aware that the Company was giving them written
reprimands for their May 21 absences. Without their
knowledge, Sax placed in each of their files a written
reprimand for "unauthorized absence on 21 May 1980
and failure to notify the Supervisor" (G.C. Exhs. 2 and
5)-despite the fact that the Company was properly noti-
fied of the absences and despite the fact that Sax admit-
tedly did not talk to either Boyce or Saulsberry, and
claimed that he did not remember the circumstances. Sax
admitted that he had a policy of issuing a warning for an
unauthorized absence only after investigating the circum-
stances and after the employee explained the absence. He
gave this explanation: "Perhaps to clarify this so I won't
look like an idiot, those reprimands were prepared by me
just for record keeping in those cases."
Sax claimed that Kralis handled the matter, but Kralis'
name is not on either of the reprimands (as it was on
both of the earlier reprimands which Kralis issued to
Boyce and Saulsberry). Sax, himself, signed both of these
May 22 reprimands, and wrote on them, in the space for
employee signature, "Refused to sign." In view of () the
undisputed testimony that Kralis had previously threat-
ened Saulsberry with discharge if he refused to sign his
575
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first reprimand, (2) the credited denials that the employ-
ees had ever seen these reprimands or refused to sign
them, (3) Sax's testimony that the reprimands "were pre-
pared by me just for record keeping," and (4) Sax's un-
trustworthiness as a witness (appearing to be willing to
give whatever testimony would serve the Company's
cause), I discredit his claim that he issued Boyce's repri-
mand, "at my desk for Mr. Kralis to give to the employ-
ee to make him aware of it" and that Kralis reported
back that Boyce refused to sign it.
I find that Sax discriminatorily inserted the May 22
reprimands in the files of Boyce and Saulsberry-accus-
ing them of "unauthorized" absences and "failure to
notify the Supervisor," with the false notation "Refused
to sign" for the purpose of building a case for their sub-
sequent discriminatory discharge, in reprisal for their
support of the Union, thereby violating Section 8(a)(3)
and (1) of the Act.
c. Saulsberry's discharge
On Monday, May 26, the week after Sax secretly
placed the reprimands in their files, the Company began
laying Boyce and Saulsberry off and assigning new em-
ployees to work in their place. Thus, the Company ad-
vised grinder Boyce and painter-door builder Sauls-
berry that Memorial Day was an unpaid holiday because
of lack of supplies, and to report back to work on Tues-
day. Yet the timecards in evidence reveal that three new
employees, grinder Copeland, painter Brewer, whose
first day of employment was May 21, and welder Sasser,
all worked 4-3/4 hours that day. (G.C. Exhs. 23K, O,
and P.) Grinder Boyce was permitted to work 4-3/4
hours on Tuesday (G.C. Exh. 23A) and was then told to
go home because of no work, but grinder Copeland and
painter Brewer were both permitted to work 8 hours.
Boyce and Saulsberry were again laid off Wednesday,
May 28, although the timecards show that Copeland,
Brewer, and Sasser each worked a full 8 hours. After
being told that morning when he called in that his serv-
ices were not needed, grinder Boyce rode with dis-
charged union supporters Campbell and Williams to the
plant and saw Copeland doing Boyce's grinding work on
the dock. (There had never been any question about the
quality of Boyce's work, and he believed "it would take
at least three men to do that job.") Other than Sax's false
testimony that there was no work on Monday because
"we didn't receive a shipment that we needed to perform
work," there is no explanation in the evidence for the
Company laying off union supporters Boyce and Sauls-
berry that week while assigning their work to new em-
ployees.
On Thursday, May 29, when Saulsberry called in to
see if there was any work (after being off the first 3 days
that week). Retail Sales Manager Pevia told him that
secretary Kralis had not left word and to call back.
When he called a second time, as he credibly testified,
Pevia told him that Kralis had said it was okay to come
to work. Saulsberry said he would if his car would make
it. Somewhat later (Saulsberry thought "it was getting
pretty close to 10 o'clock" but he did not have a watch
and Pevia testified it was about 9 or 9:15), he called
Pevia again, said he was having car trouble, but was still
coming in if he could get his car fixed. Pevia asked if he
could pick up Boyce, and he said yes if he could get the
car fixed. After his cousin took longer than expected to
work on his car, Saulsberry drove to Boyce's apartment
to apologize for making him miss a day's work. Boyce
was not home. Saulsberry stopped only momentarily and
went "down the street to this girl, Ann's house," about
50 to 100 yards away. When he got ready to leave, his
car would not start. His cousin (Emmadell Thompson)
towed his car to the cousin's garage and again worked
on the car, not finishing until "evening time."
At work the next morning, May 30, as Saulsberry fur-
ther credibly testified; Sam Sax called Saulsberry to the
office and asked where he had been the day before. (Sax
had not worked Thursday, May 29.) Saulsberry said his
car had broken down, that he had called in and told
Pevia, and that he was trying to get his car fixed. Sax
stated that President Lomerson said he had seen Sauls-
berry's car sitting over at Willie Boyce's house, but "I
said my car was down the street from Willie's house."
Sax responded, "Well, I guess you are calling Mr. Rich-
ard Lomerson a liar," and Saulsberry said, "Well, I guess
he is." Then Sax stated, "Now, I am going to tell you
what I think. I think that you and Willie Boyce have
been somewhere fooling around." Saulsberry denied it
and Sax stated, "If I find out that you are lying I am
going to fire you." Sax left, spoke to Boyce in another
office, then returned, and told Clayton Saulsberry,
"Clayton, Willie's neighbor said that she [saw] your car
at Willie's house." Saulsberry responded, "I don't know
why they said it because it wasn't there for no more than
a minute." Lomerson spoke up and said he had seen "me
or something," and Saulsberry responded that if he did,
he "saw me down at Ann's house. He didn't see me no-
where else." Sax asked Lomerson "What are we going
to do with him?" Lomerson, obviously aware of where
he had seen Saulsberry or his car on Thursday-either in
front of Boyce's or at Ann's residence-answered. "If he
is not lying I guess we are going to have to send him
back to work," and they did. Sometime later, consider-
ably later than the 20 or 30 minutes as estimated by
Saulsberry because, as discussed below, Sax left to inter-
view Boyce's mother about Boyce's absence; Sax took
Saulsberry back to the office and discharged him, falsely
telling him his story did not check out. Lomerson's wife
gave Saulsberry his final paycheck, a separation notice,
and also a termination letter (G.C. Exh. 3), but Sax
"snapped" it back, stating that "I didn't need it," so
Saulsberry did not get to read it. When later produced,
the letter stated that he was terminated for "Unauthor-
ized absence on 21 May and 29 May 1980. Employee
LIED about circumstances involved in 29 May unau-
thorized absence." It was signed by Sax and it falsely
stated (in Sax's handwriting, the same as the May 22
written reprimands, "Refused to sign.")
Sax, in his June 3 position paper submitted on behalf
of the Company, admitted what had happened Thursday
when Saulsberry and Boyce were both absent again the
same day. Sax stated in the letter that Lomerson and
Pevia "suspected that again these two employees were
conspiring to not report or work the same day" when
576
DIMENSIONS IN METAL, INC.
Saulsberry did not arrive or call. (As found above, Sauls-
berry had agreed to pick up Boyce if Saulsberry could
get his car fixed, but they did not report to work after
the delay in getting the car repaired.) Indicating that Lo-
merson and Pevia went to investigate, Sax stated in the
letter that they "drove over to Mr. Boyce's residence"
and "Mr. Saulsberry's car was there"-the letter thus
claiming that they found Saulsberry's car at Boyce's resi-
dence, instead of at Ann's house, a short distance down
the street. (G.C. Exh. 15.)
By the time of the hearing, however, Sax, Lomerson,
and Pevia had fabricated a different story. They claimed
that instead of Lomerson and Pevia going to investigate,
they just happened to notice Saulsberry's car when they
went to the body shop with Lomerson's car. According
to Lomerson, he went to the body shop that Thursday
morning, with Pevia following to give him a ride back to
the plant. He claimed that on the way, he saw Sauls-
berry's car parked at Boyce's residence. Pevia claimed
that on the way back, he asked Lomerson. "Isn't that
Clayton Saulsberry's car?" and Lomerson answered,
"Yeah, that's Willie's house." Thus according to this tes-
timony, Lomerson claimed he saw Saulsberry' car there
on the way to the body shop; Pevia saw it on the way
back; and it was a happenstance that both of them no-
ticed it. Next Lomerson, claimed that when he and Pevia
returned to the body shop about 4 hours later, he ob-
served Saulsberry's car parked in the same place. Pevia,
in turn, claimed he and Lomerson were together in
Pevia's car, returning to the body shop, but "I don't re-
member anything being said about [Saulsberry's] car
then.... I don't remember if the car was there the
second time or not. I remember it was there the first
time because we talked about it." Apart from the conflict
between this testimony and Sax's previous admission in
his position paper, I consider this testimony incredible.
Lomerson is claiming that a car, belonging to an employ-
ee scheduled to be at work, is seen in front of another
absent employee's residence in the morning and again
about 4 hours later; and Pevia is claiming that he called
it to Lomerson's attention the first time, but he does not
recall either seeing the car or hearing anything said
about it the second time. I consider it most probable that
if this testimony were not all fabricated, Lomerson
would have made such a loud protest about Saulsberry's
car still being in front of Boyce's residence after 4 hours
that undoubtedly Pevia would have remembered it. I
find the testimony that the trips to the body shop oc-
curred May 29 is an afterthought which must be discred-
ited. I also find that when Lomerson and Pevia drove to
that street May 29 to investigate, they found Saulsberry's
car parked at Ann's house-and not at Boyce's apart-
ment where Saulsberry stopped only momentarily to ob-
serve whether Boyce was at home. These findings clarify
what Lomerson meant when Saulsberry told Sax and
Lomerson the next morning that he had been at Boyce's
not more than a minute; Sax asked what they could do
with Saulsberry; and Lomerson answered, "If he is not
lying I guess we are going to have to send him back to
work." If Lomerson had seen Saulsberry or his car in
front of Boyce's apartment, instead of at Ann's house,
there would have been no necessity for any further in-
vestigation.
In making these findings, I have taken into considera-
tion and credited Sax's testimony that Friday morning,
May 30, when he was questioning Boyce about the day
before, Boyce told him, although not recalled by Boyce,
that "if Mr. Saulsberry had come by there [to Boyce's
apartment], that he was gone, because one of his friends
[Judy Phillips, a next-door neighbor, who] knew Mr.
Saulsberry had seen him and his car there and told him
about it later." After questioning Boyce that morning,
Sax resumed his questioning of Saulsberry and told him,
as found above, "Clayton, Willie's neighbor said that she
[saw] your car at Willie's house." That was when Sauls-
berry responded that "it wasn't there more than a
minute." The problem is the conflicting testimony-not
known by the Company on the date of the discharge-
concerning the timing of Saulsberry's stopping by to see
if Boyce was home that Thursday. Boyce's friend, Delois
Smith, a credible witness, testified that Judy Phillips,
who did not testify, told her that afternoon when she
and Boyce returned home that Phillips had looked out
the window at 12 noon, according to TV time, that
Saulsberry's car was out front, that "he went down to
his aunt's house or something, but his car was not there
that long that she knowed of," and that when she looked
back out the window at I p.m. the car was gone. Al-
though the Company relies on this hearsay testimony in
its brief, Phillips' statements,-if true, bely Lomerson's
claim that the car was there 4 hours later. Saulsberry, on
the other hand, recalled that he did not stop by there
until 2:30 or 3 p.m. In view of the facts that both Smith
and Saulsberry impressed me as being honest witnesses;
Saulsberry did not have a watch; he apparently made
other mistakes in recalling the time; and Phillips did not
testify. I am unable to determine at what time he stopped
by to see if Boyce was home. In any event none of this
testimony supports the Company's fabricated body shop
testimony.
Having found that Sax, Lomerson, and Pevia gave fab-
ricated testimony about seeing Saulsberry parked at
Boyce's residence on May 29, and about other matters at
the hearing, I find their testimony untrustworthy and dis-
credit: (1) Sax's testimony that Saulsberry told Sax that
his car was in the shop all day that Thursday; (2) Lomer-
son's testimony that he felt that Saulsberry had lied to
him and "I was quite angry, to be frank with you"; and
(3) Lomerson's testimony that Saulsberry's union activity
had nothing whatever to do with his discharge and that
he would have been discharged regardless of whether he
had engaged in union activities or not. I find it clear that
Sax was also testifying falsely when he testified at one
point that when he terminated Saulsberry, "I told Mr.
Saulsberry that unfortunately since he couldn't produce
any evidence that his car was in the shop . . . that if he
could bring me something showing that his car was in
the shop or garage, in fact, somewhere all day, that we
would discuss this, and he never did." To the contrary,
the discharge was clearly final that Friday morning.
Sax admitted at the hearing that Saulsberry's work
habits "had nothing to do" with his discharge. Yet Sax
577
DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD
took the position in his June 3 position paper (G.C. Exh.
15) that Saulsberry and Boyce "have demonstrated by le-
thargic, perfunctory work habits, the described blatant dis-
regard for Corporate policy and management authority,
that they believe a Union or the National Labor Rela-
tions Act or both is a sanctuary protecting their employ-
ment regardless of misconduct or behavior that adversely
affects Corporate operations." (Emphasis supplied.)
Concerning whether the Company considered illness
and absence because of car trouble "unauthorized" ab-
sences, Lomerson acknowledged that it was not by testi-
fying, "If a man is legitimately ill or has car trouble,
that's not much you can do about it."
Upon considering all of the evidence and circum-
stances concerning Saulsberry's discharge Friday, May
30, 1 find that the General Counsel has shown that the
Company was motivated by a desire to rid the plant of
this, one of the two remaining union supporters. A week
earlier, May 22, Executive Vice President Sax had se-
cretly placed a written reprimand in (his as well as
Boyce's) personnel records, falsely accusing him of an
unauthorized absence and failure to notify the supervisor
on May 21, in order to build a case for his discriminatory
discharge. On Monday, May 26, the Company began
laying him off on days it was assigning his work to a
new employee. As found, Sax, President Lomerson, and
Retail Sales Manager Pevia gave much fabricated testi-
mony about what occurred Thursday, when Saulsberry
was permitted to return to work but had car trouble.
Friday, Sax falsely claimed that Saulsberry's account of
what happened did not check out and discharged him.
The Company thereafter produced Saulsberry's termina-
tion letter, in which Sax falsely claimed that he was ter-
minated for "unauthorized" absences on May 21 and 29
(the dates he properly notified the Company he was ill
and had car trouble) and for lying about the circum-
stances of his May 29 absence, and on which Sax falsely
wrote, as he had on the May 22 reprimands, that the em-
ployee "Refused to sign." I find it clear that the stated
grounds for Saulsberry's discharge were pretextual, that
the General Counsel has made a prima facie showing that
Saulsberry's union activity was a motivating factor in the
Company's decision to discharge him, and that the Com-
pany has failed to demonstrate that it would have taken
the same action against him in the absence of his union
support. I therefore find that Sax discriminatorily dis-
charged Clayton Saulsberry in order to discourage union
membership, in violation of Section 8(a)(3) and (1) of the
Act. I find, however, that the General Counsel has failed
to prove an additional allegation, that Saulsberry was
discharged also because he made a protest under the Oc-
cupational Safety and Health Act. I dismissed that alle-
gation.
d. Boyce's discharge
Thursday, May 29, Willie Boyce (a union observer at
the April 4 election) called in to see if there was any
work for him that day. He had been laid off all day
Monday and Wednesday, and was permitted to work
only 4-3/4 hours Tuesday, supposedly for lack of work.
However, as discussed above, a new employee had been
performing his grinding work, being assigned to work 4-
3/4 hours Monday and 8 hours both Tuesday and
Wednesday.
As Boyce credibly testified, and corroborated by his
friend, Delois Smith, who impressed me as being an
honest, forthright witness, Boyce called in four times
Thursday morning and talked to Retail Sales Manager
Pevia. The first two times, Pevia stated that neither Lo-
merson, Sax, nor Kralis was in and to call back. The
third time, Pevia authorized him to come in but had him
wait for Saulsberry to pick him up. Boyce could have
gotten to work in 5 or 10 minutes, but he was being re-
quired to wait for Saulsberry, who lived an hour or so
away in Mississippi and who was having car trouble.
About 10:30 a.m., Boyce called Pevia the fourth time
and reported that Saulsberry still had not arrived. Pevia
said, "I know," but he did not authorize Boyce to come
on in. Boyce said he would wait for Saulsberry.
About 10 o'clock that morning, Delois Smith heard
from her mother that somebody had broken into an outer
house and had taken some property belonging to Smith
and Boyce, and about 10:45 Boyce heard from his
mother that she wanted him to go on an errand for her.
Not having heard from Saulsberry by about 11 o'clock,
Boyce decided to go first to the home of Smith's mother
and then to his mother's. Before he and Smith left, he
asked her to telephone the Company a fifth time that
morning to report that he would not he coming in. She
did, telling the man who answered the telephone that
"Willie is not coming in because my mother's house got
broken into and he has to go over to his mother's house
to take care of some bills." (Emphasis supplied.)
Thus, that Thursday, after being permitted to work
only 4-3/4 hours that week, Boyce was doing his best to
get permission to go to work.
The next morning, Friday, May 30, Sax called Boyce
to the office and asked him where he had been Thurs-
day. As Boyce credibly testified, he told Sax, "I had to
do something for my mother." Sax responded, "Well,
Richard Lomerson said that he saw Clayton Saulsberry's
car in front of your house." It was then, although Boyce
did not recall that part of the conversation, that, as Sax
credibly testified, and confirmed by what Sax told Sauls-
berry shortly thereafter, Boyce said that "if Mr. Sauls-
berry had come by there, that he was gone, because of
one of his friends [who] knew Mr. Saulsberry had seen
him and his car there and told him about it later, but that
they had not had contact with each other." After Boyce
denied seeing Saulsberry Thursday, and after Sax ques-
tioned Saulsberry further in the next office, Sax told
Boyce to go back to work.
Although I have credited part of Sax's testimony
about this Friday morning conversation with Boyce, I
find that much of the testimony given by Sax and Pevia
was fabricated. Pevia claimed that Boyce did not call in
himself Thursday morning, but that Delois Smith called
and said Boyce had a crick in his neck and would not be
in that day. As found above, this actually happened, but
it was not May 29, but May 21, preceding the May 22
reprimand which Sax placed in Boyce's file to build a
case for his discriminatory discharge. Although Pevia
claimed that Smith called and talked to Pevia Thursday
578
DIMENSIONS IN METAL, INC.
morning, Sax claimed that when Sax came in Friday
morning, it was Lomerson and Lomerson's wife who
told Sax that Boyce's girl friend (Smith) called in Thurs-
day morning and said Boyce was sick. Sax claimed that
in his conversation with Boyce that morning, "I did
remind Mr. Boyce" that his girl friend had called and
"told our secretary [Mrs. Lomerson] that he was sick as
the reason for him not coming in," and claimed that
Boyce said, "No, it was all due to the break-in at his
mother's apartment." (Emphasis supplied.)
Thus, instead of admitting that the Company had reas-
signed Boyce's grinding work to a new employee that
week, as revealed by the timecards and Boyce's observa-
tions Wednesday, and admitting that Boyce was not per-
mitted to come to work until he called the third time
Thursday morning, and then was required to wait for
Saulsberry to pick him up, Pevia claimed that Delois
Smith telephoned Pevia once on Thursday morning and
reported that Boyce had a crick in his neck, and Sax
claimed to the contrary that Smith telephoned Mrs. Lo-
merson and said that Boyce was sick. Also, Sax went fur-
ther and claimed that Boyce denied Friday morning that
he was sick and that he lied about his mother's apartment
being burglarized. The Company was already aware that
there was no break-in at Boyce's mother's home. Smith
had telephoned the Company about I1 a.m. Thursday
and had told one of the managers that Boyce was not
coming in (at that late hour) because her mother's house
got broken into and Boyce had something to do for his
mother.
I find that by this time, Sax had plotted a maneuver to
finish building a case against Boyce, one of the last two
union supporters. He devised a strategem for feigning
belief that Boyce was not telling the truth about his
Thursday absence. Based on the information received the
day before from Delois Smith, that it was her mother's
house where a breakin occurred, Sax pretended that he
received false information from Boyce Friday morning
about a burglary at his mother's apartment. Taking Pevia
with him, Sax left the plant after questioning Saulsberry
and Boyce and visited Boyce's mother, asking her if her
house had been broken into and getting a negative
answer. He then asked her if she had seen Willie the day
before and she said yes. I discredit Sax's claim, not con-
firmed by Pevia, that she answered no, she had not seen
Boyce the day before.
Sax then returned to the plant, having gone through
the maneuver to prove that there was no burglary at
Boyce's mother's home-something the Company al-
ready knew from the information from Delois Smith the
day before. Sax called Boyce back into the office and
asked him if his mother's house had been broken into.
Boyce of course answered, "No." Nevertheless, Sax pro-
ceeded to discharge him. Lomerson made out Boyce's
final paycheck and separation notice, and Sax gave them
to Boyce and told him he was terminated. It is undisput-
ed, as Boyce credibly testified, that as they were leaving
Sax's office, Sax told him, "I knew I was going to get
you." Boyce's termination letter (G.C. Exh. 6), which
the Company later produced, stated that Boyce was ter-
minated for "Unauthorized absence on 21 May and 29
May 1980. Employee LIED about circumstances in-
volved in 29 May unauthorized absence." At the bottom,
Sax falsely wrote, "Refused to sign."
Boyce's discharge is complicated by one factor not
present in Saulsberry's discharge. Boyce initially testified
falsely that when he went to the utility company Thurs-
day afternoon, he paid part of his mother's light bill and
got an extension on the bill for her. He later admitted
that this was not true, and that when he went to the util-
ity company and found that the light bill had already
been paid, he kept the $20 his mother had given him to
get the extension, without informing her. (He had been
contributing $25 to $30 a week to his mother's support,
but this week he had worked only a half day.) He testi-
fied that he did not reveal what he had done because he
"didn't want people to think that I was a thug . . . but I
did repay the money to her . .. I never did anything
like that before and I needed the money so I kept it."
Because of his initial false testimony, I have closely ex-
amined all of his testimony, and taken special care in
weighing all of the supporting and opposing testimony.
After due deliberation and close observation of his de-
meanor on the stand, I have concluded that he was gen-
erally an honest witness, attempting to give accurate tes-
timony on the other matters he testified about. I there-
fore have credited much of his testimony-particularly
over the testimony of Sax and Pevia, who appeared will-
ing to fabricate testimony to support the Company's
cause.
After weighing all the evidence and circumstances, I
find that Sax discriminatorily discharged Willie Boyce,
as he did Clayton Saulsberry that same morning, on pre-
textual grounds in violation of Section 8(a)(3) and (1) of
the Act.
II. REPRESENTATION CASE
In the stipulated consent election held April 4, 1980, in
a unit of "All production and maintenance employees
employed by Diminsions in Metal, Inc., at its Memphis,
Tennessee facility," excluding "All office clerical em-
ployees, guards and supervisors as defined in the Act,"
the vote was two for and none against the Union, with
five challenged ballots. Pursuant to the Board's May 20
order directing Regional Director to open and count
challenged ballots, three challenged ballots were opened
and counted. The revised tally of ballots, issued on June
4, revealed two votes for the Union and three against.
Having found that Franklin Campbell and Daniel Wil-
liams, who cast the two remaining challenged ballots,
were discriminatorily discharged on March 6 and April
3, 1 find that they were eligible voters and overrule the
challenges to their ballots.
CONCLUSIONS OF LAW
1. By discharging Franklin Campbell on March 6,
Daniel Williams on April 3, and Willie Boyce and Clay-
ton Saulsberry on May 30, and by discriminatorily plac-
ing reprimands in the personnel records of Boyce and
Saulsberry on May 22, all because of their support of the
Union, the Company engaged in unfair labor practices
affecting commerce within the meaning of Sections
8(a)(3) and (1) and 2(6) and (7) of the Act.
579
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By threatening to close the plant before letting a
union come in, the Company violated Section 8(a)(1) of
the Act.
3. By coercively interrogating employees, by making
an implied threat of less desirable working conditions if
the employees selected the Union, and by expressing
orally and in writing the futility of selecting a union, the
Company also violated Section 8(a)(1) of the Act.
4. By informing the employees that the Board could
not make the Company put a discriminatorily discharged
employee back to work, the Company further violated
Section 8(a)(1) of the Act.
5. The General Counsel failed to prove that the Com-
pany unlawfully restricted use of the front entrance, or
on or about April 1 unlawfully instituted policy and
practice of issuing reprimands for absences, or dis-
charged Clayton Saulsberry also because he made a pro-
test under the Occupational Safety and Health Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order the
Respondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the poli-
cies of the Act.
The Respondent having discriminatorily discharged
four employees, I find it necessary to order it to offer
them reinstatement, less net interim earnings, in accord-
ance with F. W. Woolworth Company, 90 NLRB 289
(1950), plus interest as computed in Florida Steel Corpora-
tion, 231 NLRB 651 (1977). See, generally, Isis Plumbing
& Heating Co., 138 NLRB 716 (1962). Inasmuch as the
Respondent has engaged in such egregious misconduct,
including the threatening of plant closure and discharg-
ing all four of the union supporters, thereby demonstrat-
ing a general disregard for the employees' fundamental
rights, I find it necessary to issue a broad Order, requir-
ing the Respondent to cease and desist from infringing in
any other manner upon rights guranteed employees by
Section 7 of the Act. Hickmott Foods, Inc., 242 NLRB
1357 (1979).
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 3
The Respondent, Dimensions in Metal, Inc., Memphis,
Tennessee, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
any employee for supporting International Brotherhood
of Teamsters, Local 1196, or any other union.
3 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 find-
ings, 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.
(b) Placing written reprimands in the personnel re-
cords of union supporters to build a case for discrimina-
torily discharging them.
(c) Threatening to close the plant before letting a
union come in.
(d) Coercively interrogating any employee about union
support or union activity.
(e) Making any threat of less desirable working condi-
tions if the employees select a union.
(f) Expressing either orally or in writing the futility of
selecting a union.
(g) Informing any employee that the Board could not
force it to take a discriminatorily discharged employee
back to work.
(h) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Willie Boyce, Franklin Campbell, Clayton
Saulsberry, and Daniel Williams immediate and full rein-
statement to their former jobs or, if their jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or any other rights and privileges
previously enjoyed, and make them whole for the loss of
earnings and other benefits they may have suffered as a
result of the discrimination against them in the manner
set forth in the remedy section.
(b) Expunge from the personnel records of Willie
Boyce and Clayton Saulsberry the written reprimands
dated May 22, 1980.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its plant in Memphis, Tennessee, copies of
the attached notice marked "Appendix." 4 Copies of the
notice, on forms provided by the Regional Director for
Region 26, after being duly signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that Case 26-RC-6174 be re-
manded to the Regional Director to open and count the
ballots of Franklin Campbell and Daniel Williams and to
issue a revised tally of ballots and a certification of rep-
resentative if International Brotherhood of Teamsters,
' In the event that this 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
580
DIMENSIONS IN METAL, INC. 581
Local 1196, has received a majority of the valid votes
cast, or certificate of results of election if it has not.