Eastern Steel Co.

National Labor Relations Board - Board Decisions

Jan 9, 1981

253 N.L.R.B. 1230 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eastern Steel Company and Highway Truck Drivers
and Helpers Local Union No. 107 affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Case 4-CA-10327
January 9, 1981
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
ZIMMERMAN
On July 14, 1980, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed a statement in support of the Admin-
istrative Law Judge's Decision.
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 brief
and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
as modified below, 2 and to adopt her recommend-
ed Order, as modified herein. 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, as modi-
fied below, and hereby orders that the Respondent,
Eastern Steel Company, Wyndmoor, Pennsylvania,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to 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 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing her find-
ings.
2 In par. 6 of her Conclusions of Law, the Administrative Law Judge
states that the Union has been the "exclusive" bargaining representative
of the unit employees since June 6, 1979. We assume her to have meant,
and in any event find, that the Union obtained the majority support of
said employees as of that date, as there then was no obligation on the
part of the Respo,. to recognize and bargain with the Union as the
employees' exclusive bargaining representive; that obligation did ot
attach until June 12, 1979, when the Respondent embarked upon its
course of unlawful conduct. Accordingly, we have modified the Conclu-
sion of Law in question by substituting therein the word "designated" for
"exclusive."
3 The Administrative Law Judge omitted from her recommended
Order a provision requiring the Respondent to preserve certain of its re-
cords for the purpose of enabling the Board to compute backpay. We
have modified the recommended Order accordingly.
253 NLRB No. 163
1. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs accordingly:
"(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to analyze
the amount of backpay due under the terms of this
Order."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
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.
Our employees are free to exercise any or all of
these rights, including the right to join or assist the
Teamsters or any other union. Our employees are
also free to refrain from any or all such activities,
except to the extent that they may be covered by a
collective-bargaining agreement which lawfully re-
quires employees to be union members in order to
keep their jobs.
WE WILL NOT tell you that, if you decide to
be represented by a union, we will no longer
pay Christmas bonuses or cover you by medi-
cal insurance or a pension plan, and will be
less lax than at present.
WE WILL NOT tell you not to talk about
Highway Truck Drivers and Helpers Local
Union No. 107 affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any
other union until after a Board election.
WE WILL NOT interrogate you about union
activities in a manner constituting interference,
restraint, or coercion.
1230
EASTERN STEEL COMPANY
WE WILL NOT discharge you, or otherwise
discriminate against you with regard to hire or
tenure of employment or any term or condi-
tion of employment, to discourage membership
in the Teamsters or any other union.
WE WILL NOT refuse to recognize and bar-
gain collectively with the Teamsters as the ex-
clusive representative of the following employ-
ees:
All warehousemen, drivers, and machine op-
erators, excluding all other employees, su-
pervisors, and guards as defined in the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights.
WE WILL offer Robert Duane McClellan,
Jr., and Gregory Johnson reinstatement to the
jobs of which they were unlawfully deprived
or, if such jobs no longer exist, to substantially
equivalent jobs, without prejudice to their se-
niority or other rights and privileges previous-
ly enjoyed, and make them whole, with inter-
est, for any loss of pay they may have suffered
by reason of their discharge.
WE WILL, on request, recognize and bargain
with the Teamsters as the only representative
of the employees in the above-described unit,
and embody in a signed agreement any agree-
ment reached.
EASTERN STEEL COMPANY
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
proceeding was heard before me in Philadelphia, Penn-
sylvania, on March 19, 1980, pursuant to a charge filed
on July 12, 1979, and a complaint issued on August 27,
1979. The issues presented are (1) whether Respondent
Eastern Steel Company violated Section 8(a)(1) of the
National Labor Relations Act, as amended (herein called
the Act), by threatening employees with loss of benefits
if they selected Highway Truck Drivers and Helpers
Local Union No. 107 affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (herein called the Union), as their
collective-bargaining representative, by forbidding dis-
cussions about the Union, and by interrogating employ-
ees about union activity; (2) whether Respondent violat-
ed Section 8(a)3) and (1) of the Act by discharging em-
ployees Robert Duane McClellan, Jr., and Gregory
Johnson to discourage union activity; and (3) whether
Respondent's failure to honor the bargaining demand of
the Union, which had obtained signed authorization
cards from a majority of Respondent's employees in an
appropriate unit, violated Section 8(a)(5) and (1) of the
Act, and calls for a bargaining order in view of the fore-
going alleged violations of Section 8(a)(l) and (3) of the
Act.
On the basis of the entire record, including the demea-
nor of the witnesses, and after due consideration of the
briefs filed by Respondent and by counsel for the Gener-
al Counsel, I hereby make the following:
FINDIN;S OF FACT
I. JURISDICTION
Respondent is a Pennsylvania corporation which is en-
gaged in the processing, warehousing, and nonretail sale
of steel in Wyndmoor, Pennsylvania. During the 12
months immediately preceding the issuance of the com-
plaint, Respondent sold and shipped products valued in
excess of $50,000 directly to points outside Pennsylvania.
I find that, as Respondent concedes, Respondent is en-
gaged in commerce within the meaning of the Act, and
that assertion of jurisdiction over its operations will ef-
fectuate the policies of the Act.
The Union is a labor organization within the meaning
of the Act.
II. HE ALLE.IGEI) UNFAIR l.ABOR PRAC-IICS
A. Alleged Independent Violations of Section 8(a)(1)
As set forth in detail infra, at all material times, the
concededly appropriate unit herein, specifically described
infra in Conclusion of Law 5, consisted of no more than
five employees. On June 5 or 6, 1979,1 union authoriza-
tion cards were signed by James T. Fogerty, Gregory
Johnson, and Robert Duane McClellan, Jr., all of them
admittedly employees in the appropriate unit. Fogerty,
who procured the others' signatures, told them not to let
the Company's president, Edward J. Mammana, his son
Joseph Mammana (who also worked in the shop), or
Robin Loughran (allegedly a supervisor) know about the
cards, and to be "hush-hush" about them until "after the
Company got the letter from the Labor Board." By
letter dated June 8 and received by Respondent on June
11, the Union advised Respondent that more than half of
Respondent's "warehousemen, drivers, and machine op-
erators" had designated the Union as their bargaining
representative, and asked Respondent to get in touch
with a specified union representative to arrange for the
negotiation of a collective-bargaining agreement. Compa-
ny President Mammana testified that Respondent replied
to this letter, but the record fails directly to show the
content of the reply. Also on June 11, the Union filed
with the Board's Regional Office a petition requesting an
election in the unit set forth in the Union's bargaining
demand. 2
The complaint alleges, and the answer denies, that
Robin Loughran is a supervisor within the meaning of
the Act. During the week of June II 1, and after Respond-
ent's June I 11 receipt of the Union's bargaining demand
(see infra, fn. 3), Company President Mammana, who is
admittedly a supervisor within the meaning of the Act,
All dates hereafter are 1979, unless otherwise indicated.
2 The unit set forth in the petition excluded "All other employees, su-
pervisors and guards as defined in the Act."
1231
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remarked to Loughran that someone was trying to un-
ionize Respondent, and asked him if he had signed a
union card or knew anybody who had. Loughran replied
no; he had not himself signed, and there is no evidence
that at this time he knew anyone who had. Mammana
then asked Loughran to ask Fogerty, whose employee
status is undisputed, whether he had signed a union card.
Loughran thereupon went to Fogerty, told him that
Mammana had said he had received a letter in the mail
saying that the Union wanted to get in,3 and further said
that Mammana wanted to know if Fogerty had signed a
union card, or knew anything about the Union trying to
get into the Company. Although Fogerty had in fact
signed and had induced McClellan and Johnson to sign,
he said no; Fogerty testified that he had not told the
truth "because I understood it was to be hush-hush until
after the letter from the Labor Board." Later that day,
Loughran reported to Mammana that Fogerty had
denied signing a union card. Loughran credibly testified
that he told Mammana about Fogerty's response because
Mammana "asked me to ask [Fogerty] if he had signed
the card. So, when I found out the response, I felt I
should answer [Mammana's] question by reporting back
to him."4
On or about June 12, while McClellan was at a ma-
chine, Loughran asked him if he knew anything about a
union. McClellan untruthfully said no. The next day,
while McClellan was at this machine, President Mam-
mana asked McClellan if he had signed a card for the
Union. McClellan untruthfully said no. Mammana said
that "he wasn't mad. He just wanted to know who the
person was. He wanted to talk to him."
After Respondent had received the Union's June 11
petition (see infra, fn. 5), but before a meeting, described
below, between several employees and President Mam-
mana, he asked employee Johnson if anyone had come
around to the employees from the Labor Board5 and if
he had filled out any cards. Johnson said no. There is no
evidence that anyone from the Board had in fact ap-
proached the employees, but Johnson had in fact signed
a card. When this conversation occurred, President
Mammana's son Joseph, who was in Respondent's
employ and was a close friend of Johnson, was in the im-
mediate area.
A few days after this conversation, but before McClel-
lan's and Johnson's June 22 termination, Company Presi-
dent Edward Mammana met with a group of Respond-
ent's personnel, consisting of his son Joseph, Loughran,
Johnson, and McClellan. Of these four, only Johnson
and McClellan had signed cards. Employee Fogerty was
making deliveries, and was not there. President Mam-
mana asked each of these four persons individually if he
had signed a union card or knew that anyone else had,
and each said no. Mammana said that "sdomebody was
lying, because he knew the cards were filled out." Presi-
a This reference leads me to infer that the events in this paragraph oc-
curred after Respondent's June 11 receipt of the Union's bargaining
demand.
4 My findings as to the Loughran-Fogerty conversation are based on a
composite of their testimony.
I This remark leads me to infer that this conversation occurred after
Respondent had received the Union's June I I petition.
dent Mammana said that he thought Fogerty was the
one who had started the union movement, that Fogerty
was a "no good bum," and that Fogerty, who had
worked for Respondent for 5 years, had been a lazy
worker since starting to work for Respondent. President
Mammana further said that people who join unions "usu-
ally are low-life, or they can't make a go out of life." He
said that if the employees were represented by a union,
they might get better wages, but they would have to pay
dues, "the place wouldn't be as lax as it is," they would
no longer receive a Christmas bonus or "be covered by
[Respondent] with Blue Cross and Blue Shield," and
"the pension plan would be taken over by the Union and
that [Respondent] would not be responsible for any-
body's pension."6 President Mammana further said that
Respondent was then following a practice of assigning
employees to do whatever work was available, without
regard to what the work was; but that if the Union orga-
nized the shop, each employee might be given a job clas-
sification, and in the event there was no work for him in
his job classification, he would have to go home. As the
meeting was breaking up, President Mammana asked his
subordinates not to talk about the Union before the elec-
tion came up.7
B. Alleged Discrimination
I. McClellan
McClellan was hired by Respondent in mid-January as
a warehouseman and machine operator, at $4 an hour,
with a promise of an increase if his work was satisfac-
tory. He received a 25-cent increase, 3 or 4 weeks later.
Then, in March, President Mammana received a report
from his son Joseph that McClellan did not like working
for Respondent and had taken off a few days to inter-
view for jobs elsewhere. President Mammana called Mc-
Clellan into Mammana's office and told him that Mam-
mana liked him very much and wanted him to stay.
Mammana said that he knew McClellan was unhappy,
and asked what Respondent could do to make him
happy, but McClellan made no response.
In April or May, Mammana learned that McClellan
was still looking for another job. On Friday, June 22,
Mammana sent Loughran to tell McClellan that Mam-
mana wanted to see McClellan before he left. After
punching out, McClellan went to Mammana's office.
Mammana said, "Let's be truthful. You are looking for
I My finding as to what President Mammana said about pensions is
based on Loughran's and Johnson's testimony. For demeanor reasons, I
do not accept President Mammana's testimony that he believed and said
that Resondent's existing pension plan probably would not include orga-
nized groups. Respondent failed to offer into evidence any documents
showing the terms of this plan.
My findings in this paragraph are based on a composite of credible
portions of the testimony of President Mammana, Loughran, Johnson.
and McClellan. To the extent inconsistent with these findings, I do not
accept Loughran's testimony that Mammana did not threaten to take any
benefits away from anyone (supra, fn. 6) or threaten to fire anyone. I
think Johnson was mistaken in testifying that Mammana said "to make
sure the Union we picked went by certain classifications, where we
wouldn't be held in one steady job because he was the one making up the
classification," and whether an employee worked depended on whether
there was work in his classification.
1232
EASTERN STEEL COMPANY
another job." McClellan admitted that he was. Mam-
mana said that McClellan "might as well quit, or he will
fire [McClellan] because [Mammana] doesn't want some-
one who is not going to work for the company perma-
nently." Mammana said that he would lay McClellan off
so he could collect unemployment insurance and have
time to look for another job. Mammana then asked why
McClellan was working there. McClellan replied, "Just
to make money." After some more discussion, McClellan
asked for his paycheck for the last week of his employ-
ment. Mammana said that he would have a check made
out by Monday, June 25. McClellan said that this would
be fine, and left the office. 8 The following Monday,
Loughran told McClellan that he was sorry, that he had
not known that Mammana was going to fire or lay him
off that Friday.
My findings as to the date of this conversation are
based on post-hearing letters to me from counsel for Re-
spondent and for the General Counsel that McClellan's
last day of employment was June 22; my findings as to
the substance of the conversation are based on McClel-
lan's testimony. Mammana testified on direct examination
that he told McClellan that Respondent wanted to teach
him how to run "the drawbench, the production ma-
chine," but did not want to expend a great deal of effort
on anyone who was not interested in staying in Respond-
ent's employ, and asked for McClellan's intentions; Mc-
Clellan responded "What difference does it make? I'm
doing my job, and I'm ready to go"; Mammana tried to
extract from McClellan an answer which was not "stan-
doffish"; and at this point McClellan "stood up and
promptly said, 'Fine, give me my paycheck."' Mammana
testified that McClellan "was not threatened with being
fired. All I wanted was an answer." Moreover, Respond-
ent's records state that McClellan quit. However, on
cross-examination, Mammana testified that in September
he asked McClellan to return to work because "My main
concern was running a production machine, referred to
as a shoe mogg, a drawbench . . . and my prime con-
cern was to get someone who had experience and expo-
sure to it, and the only one at that time that did have
exposure to it other than Robin Loughran and myself
was Bob McClellan . . . We wanted [him] back because
we didn't want to go through the agony of training
someone." President Mammana's testimony in this re-
spect thus confirms McClellan's testimony, which I
credit, that he had already been operating this machine
as part of his job and had already been trained on it by
Loughran. This credible evidence that McClellan had al-
ready been trained on this machine is inconsistent with
Mammana's testimony regarding the reason he gave Mc-
Clellan for asking whether he intended to stay. For this
and demeanor reasons, I accept McClellan's version of
the conversation.
2. Johnson
At all times relevant herein, Johnson was a college
student. He was first hired by Respondent in October
" Ordinarily, employees were paid each Friday for the workweek
which ended the preceding Friday. The paycheck McClellan received on
Friday. Jine 22, was for the workweek ending Friday, June 15
1978. On November 30, 1978, he left Respondent's
employ in order to engage in college wrestling. He was
rehired a few days before December 28, 1978; left Re-
spondent's employ again about January 12, 1979; and
was rehired shortly before February 23, 1979.
On Friday, June 22, 1979, Loughran gave Johnson
two paychecks, for the last two workweeks (see supra,
fn. 8). Loughran said that work was getting slow, and
that Respondent would get in touch with Johnson if
there was any chance of coming back. Johnson asked if
he could see President Mammana before leaving. Lough-
ran said that "it wasn't the right time."
President Mammana testified that he decided to termi-
nate Johnson because Respondent was having "deep fi-
nancial problems" and had to cut back, and Johnson was
the least desirable employee.
As to Respondent's financial position, Mammana testi-
fied that about May or June 1979, incoming orders start-
ed to decline and "there was no backlog coming in";
"backlog" means work to be performed on the 10 to 15
percent of Respondent's purchases which Respondent
processes before selling to its customers. About half of
Respondent's gross income is derived from orders which
are filled almost immediately, and about half from orders
which are filled 4 to 10 weeks after being received. 9 Re-
spondent's May 1979 shipments were about 9 percent
higher than its April 1979 shipments, while its May 1978
shipments were about 9 percent lower than its April
1978 shipments. Respondent's June 1979 shipments were
about 25 percent lower than its May 1979 shipments,
while its June 1978 shipments were about 17 percent
lower than its May 1978 shipments. Respondent's July
1979 shipments were about 15 percent lower than its
June 1979 shipments, while its July 1978 shipments were
about 13 percent lower than its June 1978 shipments. Re-
spondent's August 1979 shipments were about 15 percent
higher than its July 1979 shipments, while its August
1978 shipments were about 6 percent lower than its July
1978 shipments. Respondent's shipments in September
1979, which included the 10th week after Johnson's ter-
mination, were about 9 percent higher than its August
1979 shipments, while its September 1978 shipments
were about I 1 percent lower than its August 1978 ship-
ments.
President Mammana testified that because 1979 steel
prices were higher than 1978 steel prices, 1979 shipments
would have to total 13 or 14 percent higher than 1978
shipments in order to have the same volume; with this
adjustment Respondent's 1979 sales (although they ex-
ceeded its 1978 sales in dollar volume for every month
but February, March, October, and November) were
higher than Respondent's 1978 sales in January, August,
and September, and lower in every other month. How-
ever, Mammana went on to testify, ". . . we are not con-
cerned about volume. We are concerned about how
much money we make." Respondent's net income for the
quarter ending June 30 was about $9,200 in 1979, while
its net income for that quarter in 1978 was about $5,400;
the following quarter in 1979 showed a loss of about
However, a higher profit is ohtained from the orders which are filled
Inmediately
1233
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$3,200 and the following quarter in 1978 showed a profit
of about $1,800. The record fails to show the salary of
President Mammana, who is Respondent's sole stock-
holder, or the salary (if any) of treasurer Hope Mam-
mana, his wife, during either of these years.' ° Johnson
was rehired for the first time in late December 1978, a
month when shipments were the lowest ($60,000) for any
month shown by the record. Johnson's payroll record,
attached to a letter from Respondent's counsel to me
(with a copy to the General Counsel, including enclo-
sures) states, in effect, that between his December 1978
rehire and the mid-January 1979 beginning of his leave
of absence, he worked between 8 and 24 hours a week.
Moreover, before Johnson began this leave of absence,
Respondent agreed to rehire him, and in fact it did so in
late February.
President Mammana testified that Respondent would
have terminated Johnson even if Respondent had had no
economic problems. Respondent's payroll records state
that Johnson was laid off. Mammana further testified that
he wanted to fire Johnson at the end of May or the first
week in June; when asked whether he had given a May
18 date to a Board agent, he replied, "I do not decline
that I said it, but I do not remember saying it." When
asked on direct examination why he did not discharge
Johnson at the end of May or the beginning of June, he
testified, "I don't know why. .. I just procrastinated on
it and that was it, and I took into account the [very
friendly] personal relationship with my son [Joseph] and
Gregory Johnson and I just delayed on it." Still on
direct examination, he testified that he was going to let
Johnson go "probably in the middle of June," but did
not do so because he had heard from the Board (inferen-
tially, regarding the Union's June 11 petition) and coun-
sel told him not to let Johnson go. On cross-examination,
Mammana testified that he had told a Board agent that
Respondent was too busy in May to get rid of Johnson
and hire another employee.
Mammana testified that aside from economic condi-
tions, he decided to get rid of Johnson because he re-
ceived a $60 traffic ticket for driving Respondent's truck
the wrong way on a one-way street and, when Mam-
mana reproached him, said that he thought he could get
away with it; because of "absenteeism"; because of John-
son's errors in cutting and grinding steel; and because he
endangered himself in the course of unloading a bundle
of steel. The record fails to show whether the traffic
ticket incident occurred before Mammana (according to
his testimony) reached a decision to get rid of Johnson.
As to Johnson's "absenteeism," Mammana testified on
direct examination that before May 1979 Johnson's "days
i' Although the record fails directly to show that President Mammana
receives a salary, I infer that he does, in view of the record evidence that
he devotes almost all of his time to his business.
The net income figures set forth in the text appear on an unaudited
statement which contains the following statement by the certified public
accountants who prepared it: "This statement has been prepared for man-
agement purposes only and has not been subjected to an examination in
accordance with generally accepted auditing standards. In addition, this
statement does not necessarily include disclosures that might be required
for a fair presentation We do not, therefore, express an opinion on the
information contained in this statement." President Mammana first saw
this document in January 180, about 6 months after Johnson's termina-
tlion
of absentee were too numerous to bring in"; that in May
and up to mid-June, he was absent "five or six times in a
2 or 3-week period"; and that this May and June "absen-
teeism" was a problem for Mammana. Still on direct ex-
amination, Mammana testified that Johnson's "absentee-
ism was relatively consistent. He was regularly absent,"
and then, that he had become worse "around January or
February." On cross-examination, Mammana initially tes-
tified that Johnson's attendance record had been pretty
poor throughout his employment; and then, that his at-
tendance "wasn't that bad" until after his rehire in late
February, after which he "started to go wild" and "he
was late, didn't come to work, didn't call or whatever";
that in February or March, when Mammana telephoned
Johnson at home about 9 a.m., he was still in bed; and
that Mammana reproached Johnson about these deficien-
cies two or three times, after which, Johnson would call
Mammana when Johnson did not come to work. Mam-
mana further testified that he told Loughran on several
occasions to "lay into" Johnson, without talking to
Loughran about any excuses or reasons that Johnson
may have offered. Then, when asked whether Loughran
had told Mammana, on each occasion when Johnson was
off before about March or April, that Johnson had
cleared the absence with Loughran, Mammana testified,
"Yes, but we are not talking about authorized absentee-
ism, we are just talking about someone who doesn't
come to work and doesn't even call. This is what both-
ered me. It wasn't the fact that he took time off. I'd give
anybody time off." At this point, Mammana testified that
Johnson's absences on "May 17 and 24, or whatever"
were "unauthorized absenteeisms." Mammana further
testified that he had never told Johnson "directly" that
he would be fired as a result of his "unauthorized absen-
teeism." Johnson credibly testified that on an undisclosed
number of days in May or June he did not come to work
because his car, in which he drove to work, had to be
repaired, and that on these occasions he called Loughran
or Mammana that same morning. He further credibly tes-
tified that on all other occasions when he was absent he
had previously checked with Loughran, who had never
denied him permission for a day off. l l
Mammana further testified that Johnson twice ground
certain steel too small; the record does not show wheth-
er this incident, which occurred at the end of May, oc-
curred before Mammana, according to his testimony, de-
cided to discharge Johnson. Further, Mammana testified
that in March or April Johnson cut an order of steel to
3/16 of an inch shorter than the customer had ordered;
that the too short-steel was shipped to the customer,
who complained; and that Johnson's blunder cost Re-
spondent $400. Mammana testified that, on an unspeci-
fied date thereafter, Respondent took him off the grind-
er, and "We took him off everything." Johnson's payroll
record, forwarded to me (with a copy to the General
Counsel) after the hearing, shows that, between March 2
and his layoff, he was paid for 16 to 40 hours a week,
with an average of about 28 hours, and that he was paid
for about 30 hours the last week of his employment. Be-
' Loughran, who was called as a witness by both the General Coun-
sel and Respondent, was not asked about this matter.
1234
EASTERN STEEL COMPANY
cause it is unlikely that Respondent gave Johnson no
work at all to do, while thus continuing to pay him $3.50
an hour, and for demeanor reasons, I regard as more
credible Johnson's testimony that he was transferred
from the grinder to the cutter because Respondent
needed a different wheel; that at the time of his termina-
tion he was doing more cutting than grinding and was
doing whatever needed to be done; and that, so far as he
knew, his transfer from the grinder was not due to his
having ground bar to the wrong dimensions a couple of
times.
As to the steel-loading incident, the credible evidence
shows as follows: On a date not shown in the record,
Respondent received a delivery of steel in a covered van
rather than (as it should have been) in an open truck.
After five or six unsuccessful efforts to adjust the load of
steel onto the hook of the crane at an angle which would
prevent the steel from getting caught in the van when
the crane was lifting the steel, Johnson sat on one end of
the load and, by "bouncing" it while it was attached to
the hook of the moving crane, manipulated the position
of the load so as to enable the crane to remove it. While
Johnson was thus "riding" the load, it was about 5 feet
off the ground. A few weeks later, Johnson and Joseph
Mammana related the incident to Loughran, who said
that Johnson's conduct was imprudent.' 2
3. Events subsequent to McClellan's and Johnson's
termination
Mammana testified that in the past, when work was
slow, Respondent sometimes gave employees other jobs
to do, sometimes would also cut back on their hours, and
sometimes would lay them off. In connection with
McClellan's separation on the same June 22 date as John-
son's, Mammana testified that Respondent had a bit of or
slight leeway in determining whether to keep someone
or let him go. In July 1979, Respondent hired a high
school student to "stay around" for 2 weeks while
Loughran or Joseph Mammana drove Respondent's
truck during truckdriver Fogerty's vacation.
On July 2, 1979, Respondent (through President Mam-
mana) and the Union executed a stipulation for certifica-
tion upon consent election, calling for an election on
July 27. The eligible voters were those on the payroll for
the payroll period ending June 30, the payroll period
after Johnson's and McClellan's separation. The General
Counsel stated on the record, without contradiction by
any party, that by letter dated July 16 the parties were
notified that the processing of the representation case
would be suspended pending disposition of the instant
July 12 unfair labor practice charge.
The complaint herein issued in late August. In early
September, President Mammana telephoned McClellan
that Mammana would like to talk to McClellan about
coming back to work. McClellan said that he was "inter-
12 My findings In this paragraph are based on the testimony of John-
son, McClellan, and Loughran, and inferences therefrom For demeanor
reasons, I do not accept Mammana's uncorroborated testimony that he
and salesman William Jackson observed Johnson riding the steel at a time
when no truck was in the warehouse, or Mammalia's testimony, ill effect
denied by Loughran, that Maninmanl told L.oughran 11 reprimand John-
son about the incident
ested." Thereafter, on September 10, McClellan con-
ferred with Mammana in his office. Mammana said that
McClellan would receive the same pay he had been re-
ceiving before his separation, that he would be running
the drawbench and the other machines (as he had
before), but that his job would be "a better job, a super-
visor type job. [McClellan] would be at the same level as
Robin Loughran and there was more work to be done
with more men."' 3 McClellan said that he would let
Mammana know the next day. The next day, McClellan
telephoned Mammana that McClellan was not interested
in the job "at that pay."' 4 On the following day, Sep-
tember 12, Mammana sent McClellan a mailgram which
stated:
This will confirm our phone conversation of 9-
11-79 in which you declined the offer of re-employ-
ment . . . that was made to you in my office on 9-
10-79. We regret not having you back with us
Initially, Mammana testified that he telephoned McClel-
lan because business had started to improve and Mam-
mana wanted to get McClellan to come back to work.
Then, Mammana testified that he "imagined" the pend-
ing unfair labor practice charge had something to do
with his call and the mailgram, that he was "instructed"
to send the mailgram, but that such instructions were not
the reason why he telephoned McClellan and offered
him the job. Respondent's September and October ship-
ments were higher than they had been since May, but
November shipments were the lowest since July, and
December 1979 shipments were the lowest since Decem-
ber 1978.
President Mammana testified that toward the end of
1979 more work was available for Joseph Mammana
than he had been performing previously. However, after
the departure about July 1979 of the high school student
hired for the period of Fogerty's vacation, the number
and identity of Respondent's shop personnel remained
unchanged until in mid-January 1980, Respondent hired
a part-time employee, David Garnett, to perform "essen-
tially the same functions as [Joseph Mammana], which is
about everything." President Mammana told Garnett that
this was a "temporary position in light of general busi-
ness conditions," and he would be working for "three or
four months or so." At the time of the March 19, 1980,
hearing, 2 months later, Garnett was still working for
Respondent. At that time, Respondent's warehouse per-
sonnel consisted of Fogerty, Garnett, Loughran, and
Joseph Mammana.
" My finding in his sentence is based oIn a composite of the testimony
of McClellan, whom fr demeanor reasoes I find to be a more credible
witness than Mammania, and credible parts of Mammana's testimony I do
not accept Mammanas' testimony that he told McClellan that he was to
perform the function of a machine operator and leadman out in the
warehoslle, essentially the same thing as Robin t.ughran des, right
4 McClellan would have received 4 25 an hour. his rate when termi
I iied Jrc 1979. l oughran sa:;l receising ahbout t) an hour
1235
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Status of Robin Loughran and Joseph
Mammana
i. Loughran
In June 1979, and before the separation of McClellan
and Johnson, Respondent's warehouse personnel consist-
ed of McClellan, Johnson, Fogerty, Joseph Mammana,
and Loughran. Respondent contends, in effect, that the
sole supervisor with respect to warehouse personnel was
President Edward Mammana. The General Counsel con-
tends that Loughran also occupied supervisory status.
Loughran reported directly to President Mammana,
who spent very little time in the warehouse and spent
the majority of his time in the office. When Mammana
was not in the warehouse, Loughran, the senior person
in the warehouse, was in charge. Loughran did most of
the direction of employees on a day-to-day basis. Mam-
mana told Loughran what orders to make up and get
out, and left up to Loughran which person would be
better able to do it. Loughran either made up the order
himself or had the people who were not doing other
things make it up. Johnson and McClellan credibly testi-
fied that they received their job assignments from
Loughran. Also, when part-time employee Johnson told
Loughran that Johnson was to have a day off from
school, Loughran would tell him whether to come in
early that day or at his regular time. Loughran changed
employees from one machine to another, and told them
what to do after they had completed the job they were
on. He credibly testified that a substantial number of jobs
were not routinely taken over by an employee simply be-
cause he knew that a particular machine had to be run
and knew how to run it, but involved Loughran's telling
somebody to do something. Every morning Loughran
gave truckdriver Fogerty the papers which showed what
deliveries were to be made that day. Then, Loughran
and Fogerty loaded the deliveries onto Fogerty's truck.
Loughran trained the employees on the machines. If
an employee had a problem with his machine, he usually
saw Loughran, but sometimes the employees would con-
sult another worker about minor problems. Loughran
sometimes checked the work or set up the machines, and
if he saw that something was not right, he so advised the
employee responsible and told him how to do the work.
If an employee had a work-related problem, he con-
sulted Loughran or President Mammana. It was not un-
usual for an employee to come to Loughran with a prob-
lem. Loughran would resolve problems presented to him
regarding how to set up a machine, how to fix things,
how to read a tape measure or a micrometer, and where
some steel was located. Other problems he referred to
Mammana.
Loughran acted as a "go-between" with respect to em-
ployees' grievances. Also, some employee requests for
days off were directed to him. When an employee ap-
proached Loughran with a request for a day off, Lough-
ran usually transmitted the request to President Mam-
mana and transmitted the reply to the employee. On one
or two occasions, Loughran granted the request on his
own, but Mammana knew about this action before the
employee actually took the day off.
Loughran interviewed applicants for employment in
President Mammana's absence and gave Mammana as
objective a report as possible about the employee's expe-
rience and abilities. Sometimes Loughran volunteered an
opinion about the applicant. Before June 1979, Loughran
interviewed six or seven applicants, five or six of whom
were eventually interviewed by Mammana. The record
fails to show whether Mammana ever failed to hire
anyone whom Loughran spoke positively about. On one
occasion in 1977, early in Loughran's employment with
Respondent, Mammana hired an applicant whom Lough-
ran had spoke negatively about. In January 1979, at
Mammana's instructions, Loughran arranged for a help
wanted advertisement instructing applicants to talk to
Loughran. After interviewing applicant McClellan,
Loughran reported to President Mammana McClellan's
age, the nature of his present employment, that Lough-
ran thought McClellan was able to do the work, and that
he was a "mildmannered, well-spoken young man,"15
Later that day, Mammana told Loughran to hire Mc-
Clellan. Mammana testified that he had seen McClellan
physically and "liked what he looked like." McClellan
never filed a written application,' 6 and was never inter-
viewed by Mammana. About July 1979, Loughran told
President Mammana that another employee would be
needed during employee Fogerty's 2-week vacation, and
suggested that Respondent take on for this period a high
school student who was a friend of Loughran's brother.
Mammana accepted Loughran's suggestion, and the stu-
dent was hired for that period without any further action
by Mammana.
Loughran distributed the paychecks, and was consult-
ed by Fogerty when he failed in July 1979 to receive a
check for his vacation pay; this matter was resolved. As
of June 1979, Loughran was paid $6 an hour, with time
and a half for overtime. The admitted employees in the
warehouse were paid $3.50 to $5.75. They punched a ti-
meclock, but Loughran did not. Unlike admitted employ-
ees, Loughran sometimes worked at a desk, which was
in the same office as President Mammana's desk, where
Loughran put purchase orders together and, in the ab-
sence of Mammana's secretary, answered the telephone.
Such activities consumed about 60 percent of his time;
the remainder of his time was spent in "actual work."
Loughran also performed the same physical work as the
admitted employees in the warehouse-that is, operating
machines, making up orders, helping load the truck, and
driving it in the absence of the regular driver. As to the
warehouse work, he had more experience than anyone
else in the warehouse. Loughran was the only person in
the warehouse who had substantial experience in setting
up the machines.
As previously noted, at Mammana's instructions
Loughran informed Johnson of his layoff; this was the
only occasion when Loughran ever conveyed such a
i lli's finding is hased on a conmposite of oughran's and Mammana's
teqtimllony Io he extent inconsistentr with my finding in the text. I dor not
accept l.oughrans testimony that he did not make any recommendation
to Mammana with respect to M'lcClellan's application.
"' I his linding is hased o the testimony f McClellan. whose recll-
rectionl as tI Sluch miatter, I conclude. is more reliable than Lolughran's
Rspoinide(l did 11n producC alN writenr application fromn McC'lellan
1236
1 EASTERN STEEL COMPANY
message to an employee. Further, Mammana directed
Loughran to summon McClellan to the interview where
he was terminated, and Loughran attended it; but the
record indicates that Loughran had no advance knowl-
edge that during this interview McClellan was going to
be discharged. Also, as previously noted, President
Mammana directed Loughran to ask Fogerty whether he
had signed a union card.
On direct examination, Mammana testified that Lough-
ran's position is "machine operator and leadman"; that he
does not have the title of supervisor or warehouse fore-
man; and that Mammana had never told him that he had
that title.' 7 However, as previously noted, Mammana
told McClellan in September 1979 that Loughran occu-
pied a "supervisor type job."
There is no evidence that Loughran had the power to
hire or fire employees. He was never told that he had
such authority, or the authority to discipline them. He
testified that no employee had ever "blatantly" refused
to follow his requests or directions, and that the only dis-
cipline he had ever imposed was to tell an employee that
he was not using commonsense or innate knowledge that
he should have. Employee Johnson credibly testified
that, when a saw was not operating properly, Loughran
would tell him to keep an eye on his work. Loughran
played no part in setting wages or granting increases,
and did not have the authority to approve overtime for
employees. Vacations were authorized by President
Mammana.
I conclude that Loughran had authority, in Respond-
ent's interest and in the exercise of independent judg-
ment, responsibly to direct Respondent's warehouse em-
ployees and effectively to recommend hire, and that he
was a supervisor within the meaning of Section 2(11) of
the Act.
2. Joseph Mammana
All of Respondent's stock is owned by Edward Mam-
mana, its president. The only other corporate officer, so
far as the record shows, is his wife Hope, who is Re-
spondent's treasurer but does not actively participate in
the business."' Joseph Mammana is the son of Edward
and Hope Mammana. He is 19 or 20 years old, and re-
sides with his parents. He pays his father for housing; but
his father pays for his food, clothes, and college tuition.
Joseph is covered as his father's dependent under his fa-
ther's health insurance plan (paid for by Respondent),
and his father claims him as a dependent on his father's
income tax return.
Joseph began working for Respondent in 1977 or 1978,
when he was 16 or 17 years old. He performs the same
17 Loughran testified that he was never given a job title, that Marn-
mana never told him that he was a foreman or supervisor, and that Manm-
mana had described him to others (perhaps in his presence) as a leadman.
On cross-examination, Mammana testified as follows:
Q. Have you ever referred to Robin Loughran as a leadman?
A. To whom?
Q. To anybody?
A. To Robin.
Q. Did you tell him that was his position?
A. No.
' Hope Mammana's brother, Robert Contino, plays some role in the
bsiness. but the record fails to show just what he does.
kind of work as employees admittedly in the unit-gen-
eral warehouse work, answering the telephone, helping
Respondent make up orders, sweeping the floors, operat-
ing and loading machines, and loading and driving the
truck. In June 1979, he was paid $3.50 or $4 an hour;
employees admittedly in the unit were paid between
$3.50 (Johnson) and $5.75 (Fogerty). He had no fringe
benefits different from those of any admitted employees.
His working conditions were the same as the working
conditions of the other men in the warehouse. Like
them, he punched a timeclock. His father is not training
him with an eye to taking over the business. Edward
Mammana testified that in June 1979 he would discuss
the business with his son, "just brief type of discussions.
Sitting around the dinner table at night, and this was a
casual type of conversation." In June 1979, Joseph Mam-
mana played no role in business decisions.
During the school year, Joseph Mammana attends col-
lege, apparently, on a full-time basis. As of June 1979,
Respondent had arranged his work schedule around his
class schedule. He worked 21 to 23 hours a week during
the school year, and 30 hours a week during the summer;
full-time employee Fogerty, who is admittedly in the
unit, works 40 hours a week. Gregory Johnson, also ad-
mittedly in the unit before his June 22 termination, was
also a college student while working for Respondent.
Respondent arranged Johnson's hours around his college
class and athletic schedules. Edward Mammana testified
that Johnson, too, worked 21 to 23 hours a week; but
Johnson's payroll record, forwarded to me (with a copy
to the General Counsel) after. the hearing, shows that
during Johnson's last tour of duty with Respondent (late
February to June 22, 1979) he worked an average of
about 29 hours a week. Edward Mammana testified that
Respondent "kind of did the same thing for Gregory
Johnson that we did for my son, and . . . we did it be-
cause of the strong personal relationship between Greg-
ory Johnson and my son." Loughran testified that Joseph
Mammana had no privileges different from those accord-
ed the admitted employees. When asked whether Joseph
Mammana was treated differently from admitted employ-
ees, Edward Mammana replied, "Yes, he was treated
worse .... He was reprimanded more severely because
I felt it was his position to show an example."
I find that Joseph Mammana is an individual employed
by his parent and, therefore, is not an employee within
the meaning of Section 2(3) of the Act. Viele & Sons,
Inc., 227 NLRB 1940, 1947 (1977); Missouri Electric
Works. Inc., 212 NLRB 124 (1974); M. J. Pirolli & Sons,
Inc., 194 NLRB 241, 249 (1971), enfd. 80 LRRM 3170
(Ist Cir. 1972), cert. denied 409 U.S. 1008 (1972); Bridge-
ton Transit, 123 NLRB 1196, 1197 (1959). Assuming ar-
guendo that Joseph Mammana is an employee within the
meaning of the Act, I would exclude him from the unit,
on the ground that because his father owns and actively
manages the business, and because Joseph Mammana is
living with and dependent on his parents, his interests are
more closely allied with those of management than with
those of the other employees. Viele, supra at 1948.
1237
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Analysis and Conclusions
1. The alleged independent violations of Section
8(a)(1)
I agree with the General Counsel that Respondent vio-
lated Section 8(a)(1) of the Act when President Mam-
mana told the employees that if they decided to be repre-
sented by a union Respondent would no longer pay
Christmas bonuses or cover them by medical insurance
or a pension plan, and that the place would not be as
"lax" as it had been before. Also, I agree that Respond-
ent also violated Section 8(a)(1) when President Mam-
mana told the employees not to talk about the Union
until after the election. Finally, I agree that Respondent
further violated Section 8(a)(1) when Fogerty was inter-
rogated by Loughran about whether he had signed a
union card;'9 when Supervisor Loughran asked McClel-
lan if he knew anything about a union; when President
Mammana asked Johnson if anyone had come around to
the employees from the Labor Board and if he had filled
out any cards; and when Mammana asked McClellan and
Johnson, at the employee meeting, whether they had
signed cards or knew if anyone else had. In finding that
the foregoing interrogation violated the Act, I note that
Respondent was thereby seeking information useful for
discrimination; that (as found infra), Respondent later
discharged two of its three employees because they had
signed cards; that, with the arguable exception of Mam-
mana's private interrogation of McClellan, no assurances
against reprisal were given; that every unit employee
was interrogated, two of them repeatedly; and that Re-
spondent neither tendered any legitimate purpose for
such interrogation to the employees, nor offered any to
me. In this connection, I note that Respondent never
evinced any willingness to recognize the Union on the
basis of a card check and, indeed, President Mammana
stated, at the end of the meeting where he interrogated
all the employees present and then said he knew cards
had been signed, that he anticipated there would be an
election. However, I give little weight to the untruthful-
ness of the employees' replies, in view of Fogerty's
action in urging the employees, when they signed cards,
to conceal their execution from Respondent.
However, I do not determine the legality of Mam-
mana's remarks about job classifications, because the
complaint does not clearly put such remarks in issue, and
the General Counsel's brief does not assert that they vio-
lated the Act.
2. The alleged discriminatory discharges
Further, I agree with the General Counsel that Re-
spondent discharged McClellan and Johnson because of
their union activity, in violation of Section 8(a)(3) and
(I) of the Act.
Thus, notwithstanding President Mammana's testimony
at one point that "I only have had praise for the Union
19 Respondent is answerable for such conduct whether or not Lough-
ran was a supervisor, inasmuch as admitted Supel visor Mammana in-
structed him to engage in it and Loughran truthfully told the employee
that the inquiry had proceeded from Mammana. Finesylver Manufacturing
Company, 220 NLRB 648, 654 (1975), enfd. 536 F.2d 388 (5th Cir. 1976)
and I have never been opposed to it," his dislike of the
Union is established by his statements at the employee
meeting in mid-June. More specifically, his union animus
is shown by his threats at that meeting that unionization
would cause Respondent to stop paying Christmas bo-
nuses, to withdraw the existing pension and medical in-
surance benefits, and to be less "lax" than previously; by
his comments that Fogerty had probably started the
union movement and was a "no good bum"; and by his
further comments that people who join unions "usually
are low-life." His dislike of the Union is further shown
by his testimony that he was "pretty concerned" about
the prospect of the Union's coming into his business.
Moreover, I find that notwithstanding the employees'
efforts to conceal their union activity, President Mam-
mana knew or suspected that McClellan and Johnson
had signed union cards. Thus, Respondent's entire per-
sonnel complement (aside from President Mammana)
consisted of only about seven people, including a sales-
man, a secretary, Supervisor Loughran, and President
Mammana's son; and the bargaining unit consisted of
only three people. Further, Mammana admitted that he
was a "curiosity seeker," who was "interested in about
what was going on"; it is undenied that Mammana and
Supervisor Loughran interrogated the entire unit about
the card-signers' identity; the Union's demand letter in
effect advised Mammana that at least two employees had
signed cards; when Supervisor Loughran, President
Mammana's son, McClellan, and Johnson all denied sign-
ing cards or knowing that anyone else had, President
Mammana said that "somebody was lying, because he
knew the cards were filled out"; Supervisor Loughran
(with whom President Mammana admittedly discussed
the Union) and President Mammana's son regularly
worked side by side with the unit employees; President
Mammana's son resided with his parents,2 0 and at all
times was Johnson's close friend; President Mammana
testified that he and the employees "had general discus-
sions and I was aware of what was going on; I was
aware of a great deal of things"; and Mammana was cor-
rect in voicing the opinion that the one who had started
the union movement was Fogerty (who had induced Mc-
Clellan and Johnson to sign cards). In view of President
Mammana's admitted anxiety to find out who had signed
cards, the availability as conduits of such information of
Mammana's son and Supervisor Loughran, the small size
of the unit, Mammana's admitted awareness of what was
going on . . . a great deal of things" and his demonstrat-
ed awareness of who had started the union movement,
and in view of Mammana's demeanor in denying knowl-
edge of McClellan's and Johnson's union activity, I dis-
credit Mammana's denials, and find that he knew or at
least suspected it.21
20 Indeed, President Mammana testified that in March 1979 he had
learned from his son of employee McClellan's efforts to obtain a job else-
where.
21 N.L.R.B. v. Walton Manufacturing Company & Loganville Pants Co.,
369 U S. 404, 408 (1962); N.L.R.B v. Dove Coal Company and Lark Coal
Company, 369 F.2d 849, 851 (4th Cir 1966); Ontario Gasoline & Car
Wash, 228 NLRB 950, fn. I (1977). See also General Iron Corp., 218
NLRB 770, 778 (1975), enfd. 538 F2d 312 (2d Cir. 1976).
1238
EASTERN STEEL COMPANY
This finding of knowledge is, moreover, supported by
evidence which persuades me that the reasons advanced
by Respondent for the discharges were not the real rea-
sons. Florida Cities Water Company, 247 NLRB No. 111
(1980). President Mammana admittedly regarded McClel-
lan as an exceedingly desirable employee; yet on June 22,
1979, just before the beginning of the pay period to
which Mammana later agreed as determining eligibility
to vote in the aborted representation election, Mammana
gave McClellan a choice of resignation or discharge on
the ground that he was looking for another job, and
Mammana did not want an employee who was not going
to work for Respondent permanently. Even without
more, this is a rather odd reason for discharging an oth-
erwise desirable employee at an age of 24 and a wage
level of $4.25 an hour, where employees can ordinarily
be expected to change employers from time to time.
Moreover, when President Mammana had learned, about
March 1979, that McClellan was looking for a job else-
where, Mammana urged him to stay and, so far as the
record shows, made no effort to stop or limit his train-
ing. Indeed, Respondent does not even claim that Mc-
Clellan was given a choice of quitting or discharge be-
cause he was looking for a job elsewhere; rather, Re-
spondent contends that McClellan was not threatened
with discharge and that he voluntarily resigned-a con-
tention unsupported by the credible evidence.
Nor do I believe that Mammana gave the real reasons
for Johnson's termination. Thus, Mammana testified that
Johnson was discharged partly because of "absenteeism."
However, Mammana vacillated in his testimony about
the extent and dates of Johnson's alleged "absenteeism,"
and even what Mammana meant by "absenteeism." Thus,
Mammana initially testified that by "absenteeism" he
meant frequently failing to come to work. He testified at
some points that Johnson's attendance record had been
poor throughout his employment, elsewhere that it
became worse "around January or February" (between
January 13 and February 20, Johnson was not working
for Respondent at all), and elsewhere that it became
worse after his rehire in late February. Then, after being
reminded that Johnson had cleared all the foregoing ab-
sences with Loughran, Mammana admitted that such
"authorized absenteeism" had nothing to do with John-
son's discharge, and alleged that Johnson was guilty of
"unauthorized absenteeism" on two occasions in May.
However, it is undenied that, when Johnson's absences
were due to difficulties with his car, he called Respond-
ent the previous day or that same morning; that he had
received advance permission from Supervisor Loughran
for all other days off; and that he was never warned of
discharge for "unauthorized absenteeism." Furthermore,
the credible evidence shows that Mammana exaggerated
Johnson's culpability in connection with another incident
which allegedly motivated his discharge (namely, the
steel-riding incident), and fails to show that the traffic
ticket incident occurred before whatever date it was that
Mammana, according to his rather vague testimony,
reached a decision to get rid of Johnson. Moreover, none
of these incidents was mentioned to Johnson when he
was terminated, on the sole expressed ground that work
was slow and with the assurance that Respondent would
get in touch with him if there was any chance of coming
back; nor is there any evidence that Respondent ever
threatened to discharge him because of any of these inci-
dents.
However, the principal difficulty with Mammana's ex-
planation of why Johnson was discharged is that it fails
to explain why he was discharged at that particular time.
During the 1979 months relevant herein, the month-to-
month variations in Respondent's shipments were not
markedly different from the variations during the same
months in 1978. Further, Respondent's profits during the
quarter ending in June 1979 (Johnson was discharged on
June 22, 1979) were about 70 percent higher than in the
same quarter in 1978. Mammana in his testimony pointed
to the fact that Respondent thereafter showed a $3,200
loss for the next quarter in 1979, as compared to a $1,700
profit for the corresponding 1978 quarter; and testified
that as of Johnson's June 22 discharge, Mammana antici-
pated this loss because "We work on a backlog and there
was no backlog coming in. We were drying up with
work . . .. We generally have a month or two of work
out there .. .. We were drying up in grinding." Assum-
ing arguendo that in fact there was no backlog coming
in, this circumstance would not likely be sufficient to
suggest a loss in the future, because material processed
by Respondent comprises only 10 to 15 percent of the
products sold by Respondent. Moreover, for demeanor
reasons I accept Johnson's testimony that there was
"plenty" of grinding work in the shop when he was ter-
minated, and discredit Mammana's testimony to the con-
trary. Nor is there any evidence or claim that any of the
incidents for which Johnson was allegedly discharged
occurred shortly before and precipitated his June 22 dis-
charge. On the other hand, if really motivated by such
incidents, Johnson's discharge would have rendered him
ineligible to vote in the anticipated Board election-al-
though he would have been eligible if temporarily laid
off for lack of work or if Respondent had merely cur-
tailed his hours, as Respondent had done in early Janu-
ary 1979 when orders were not coming in. In this con-
nection, I note Mammana's testimony that, as of John-
son's discharge date, Respondent had some flexibility in
the number of employees it could keep on the payroll,
and the fact that just a few weeks later Respondent had
to hire a temporary employee about whom it knew prac-
tically nothing, in order to carry on operations during
Fogerty's vacation. Furthermore, Mammana's explana-
tion on redirect examination of why he terminated John-
son rather than cutting back hours or assigning employ-
ees to other jobs-namely, that Mammana did not want
Respondent's long-time employees to "suffer"-is incon-
sistent with his testimony on cross-examination that be-
cause of alleged deficiencies in Johnson as an employee,
he would not have been kept on even if Respondent had
had no economic problems.
For the foregoing reasons, I conclude that Respondent
discharged McClellan and Johnson because it knew, or
at least suspected, that they had signed union cards, and
that, therefore, their discharge violated Section 8(a)(3)
and (1) of the Act. This conclusion is not disproved by
Respondent's retention of Fogerty, whom it rightly sus-
1239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pected of having started the union movement. Nachman
Corp. v. N.L.R.B., 337 F.2d 421, 424 (7th Cir. 1964). The
discharge of McClellan and Johnson was sufficient to de-
stroy the Union's majority,22 Respondent might well
have felt economically unable to operate without any
unit employees at all (indeed, it hired a temporary em-
ployee about whom it knew virtually nothing to work
during Fogerty's vacation), and it might have chosen to
retain Fogerty (by far the senior and best paid unit em-
ployee) as the employee who was least dispensable,
whom it was hardest to find a pretext for discharging, or
who it thought would be most easily frightened by the
discriminatory discharge of his fellow employees. Nor is
Respondent's position helped by its September 1979 job
offer to McClellan. McClellan was offered a supervisory
job, which would have rendered him ineligible to vote in
a Board election and would have privileged Respondent
to discharge him for subsequent union activity. More-
over, I infer that the offer was made in the hope of limit-
ing backpay liability, because it was made shortly after
the complaint issued, Respondent took the unusual step
of memorializing it and McClellan's refusal in a mail-
gram, and thereafter Respondent did not hire anyone for
the job it offered him. 23
E. The Failure To Bargain
It is undisputed that on June 5 or 6, 1979, all three of
the employees in the appropriate unit signed cards which
read as follows:
TEAMSTER'S LOCAL 107
I, the undersigned, of my own free will, desire to
become a member of Local 107, Affiliated with In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Independ-
ent, and by so doing designate said Union as my
*2 In fact, their discharge, because it reduced the unit to one person,
precluded any Board election at all. The Huntington Hospital, Inc., 229
NLRB 253 (1977). In any event, their discharge destroyed the Union's
majority even accepting Respondent's contention that nonsigners Joseph
Mammana and/or Loughran should be included in the unit.
as Although the job offered McClellan had the same pay as the job
from which he was unlawfully discharged, I find that this offer did not
constitute an offer of reinstatement, either to his old job or to a substan-
tially equivalent job, and did not toll McClellan's backpay. I so conclude
because, even when considered objectively, the job which McClellan was
offered entailed more responsibility than the job of which he was unlaw-
fully deprived and, moreover, was outside the bargaining unit. See Ra-
mona's Mexican Food Products, 203 NLRB 663, 679, 686 (1973), enfd. 531
F.2d 390 (9th Cir. 1975); N.LR.R v. Draper Corporation, 159 F.2d 294,
297 (Ist Cir. 1947); see also N.L.R.B. v. Armour & Company, 154 F.2d
570, 577 (lOth Cir. 1945). I would reach the same result if the record
merely showed that McClellan preferred his old job for personal reasons.
Tex-Tan Welhausen Company and Tex-Tan Western Leather Company, Di-
vision of Tandy Corporation, 172 NLRB 851, 890-891 (1968), enfd 419
F.2d 1265 (5th Cir. 1969), vacated and remanded 397 U.S. 819 amended
434 F.2d 405 (5th Cir. 1970), cert. denied 402 U.S. 983 (1971) Moreover,
because the job offered McClellan included many of the same duties he
had performed before his unlawful discharge, and because who performs
a particular task in Respondent's warehouse depends largely on who is
immediately available to do it, I find that Respondent has failed to show
that McClellan's old job was no longer in existence.
chosen representative in all matters pertaining to
wages, hours and working conditions. 24
Respondent does not question, and I find, that these
cards unambiguously designated the Union as the em-
ployees' collective-bargaining representative. An employ-
ee's purpose in signing such a card is conclusively pre-
sumed to be authorization of the union to represent him
in the absence of evidence that the employee was clearly
told that the sole purpose of the card was to bring about
an election to determine the union's status. N.L.R.B. v.
Gissel Packing Co., 395 U.S. 575, 606-608 (1969);
N.L.R.B. v. Bover Brothers, Inc., 448 F.2d 555, 561-562
(3d Cir. 1971); Jefferson National Bank, 240 NLRB 1057,
1075 (1979). The record herein fails to show that any of
the employees was so advised. Thus, the positive evi-
dence merely shows that Union Organizer Jack Thomp-
son told employee Fogerty that the Union would send
cards to the Board and arrangements for an election
would take 6 to 8 weeks, and that Fogerty told Johnson
(a college student) and McClellan that the Union would
get them better wages and benefits and that the cards
would be sent to the Board and would be used to get an
election. Further, the positive evidence shows that Fo-
gerty and McClellan read their cards before signing
them. The statements made to these employees do not
constitute "evidence that the signing employee was
clearly told that the sole purpose of the card was to
bring about an election" (Boyer, supra, 448 F.2d at
561). 25 Fogerty did testify that Thompson "possibly"
told him that the cards would be used "just" for an elec-
tion (but "I don't recall"); and that it was "very possi-
ble" Fogerty told McClellan and Johnson, when solicit-
ing their cards, that he "might have said" an election
was the sole purpose of the cards. Also, when asked on
cross-examination whether Fogerty had said that "the
purpose of the cards was to get a Labor Board election,"
McClellan said, "I guess so, yes." However, this largely
speculative testimony does not satisfy Respondent's
burden of showing that the "clear language" of the card
was "deliberately and clearly canceled . . . with words
calculated to direct the signer to disregard and forget the
language above his signature" (Gissel, supra, 395 U.S. at
606-609, and 584, fn. 5).
In short, before Respondent began its violations of
Section 8(a)(1) and (3) of the Act, all of the employees in
the unit had executed operative cards designating the
Union as its collective-bargaining representative. Under
such circumstances, a bargaining order should issue not
only in the "exceptional" case of "outrageous" and "per-
24 Forgerty and McClellan each testified that he signed a card on June
5, and their card bears that date. Johnson's card is dated "5/5/79." How-
ever, he testified that he signed it in early June, Fogerty testified that
Johnson returned his filled out card to Fogerty on June 6, and the Re-
gional Office date stamps on the cards show that it received them on
June II I note that a majority of the unit employees signed cards even
accepting Respondent's contention that Loughran and Joseph Mammana
were also in the unit.
25 Cf. Fort Smith Outerwear, Inc. v. N.LR.B., 499 F.2d 223 (8th Cir
1974), where the court found that representations made to four card sign-
ers, two of whom signed cards without reading them, amounted to repre-
sentations that the cards were being solicited "solely for the purpose of
obtaining an election.
1240
EASTERN STEEL COMPANY
vmive" unfair labor practices, which are of "such a
nature that their coercive effect cannot be eliminated by
the application of traditional remedies, with the result
that a fair and reliable election cannot be held," but also
in "less extraordinary cases marked by less pervasive
practices which nonetheless still have the tendency to
undermine majority strength and impede the election
process." Gissel, supra, 395 U.S. at 613-614. In view of
Respondent's action in destroying the bargaining unit by
discriminatorily discharging all but one of the employees
in the unit, I conclude that the instant case calls for, at
the very least, a "second-category" bargaining order. 26
Whether in such a "second-category" case the refusal to
bargain constitutes an 8(a)(5) violation and calls for a
bargaining order turns on whether the possibility of eras-
ing the effects of past unfair labor practices and insuring
a fair election by the use of traditional remedies is slight
and employee sentiment would on balance, be better pro-
tected by a bargaining order. Among the factors material
in making such an assessment are the extensiveness of the
employer's unfair labor practices in terms of their past
effect on election conditions and the likelihood of their
recurrence in the future. Gissel, supra, 395 U.S. at 614-
615; Daybreak Lodge Nursing & Convalescent Home, 230
NLRB 800, 804-805 (1977), enfd. 585 F.2d 79 (3d Cir.
1978); Frito-Lay, supra, 585 F.2d at 68-69.
On the basis of these standards, I agree with the Gen-
eral Counsel that a bargaining order should issue here.
As previously noted, the June 1979 discharges rendered
an immediate election impossible, because they reduced
the unit to only one employee; and no more were hired
until January 1980. Furthermore, "The discharge of em-
ployees because of union activity is one of the most fla-
grant means by which an employer can hope to dissuade
employees from selecting a bargaining representative be-
cause no event can have more crippling consequences to
the exercise of Section 7 rights than the loss of work."
Ethan Allen, Inc., 247 NLRB No. 90 (1980); see also At-
lanta Blue Print & Graphics Co., 244 NLRB 634 (1979).
"Moreover, in a small unit, the impact of such discharges
has a far greater effect than in a larger one and practical-
ly makes a fair election impossible." Pay 'N Save, supra,
247 NLRB No. 184 (1980). In addition, Respondent co-
ercively interrogated all the unit employees about union
activities, unlawfully forbade employees even to discuss
the Union until after the election, and threatened to
punish all of them, if the Union came into the shop, by
withdrawing Christmas bonuses, insurance benefits, and a
pension plan, and by being less "lax" than at present. All
the discharges and threats, and most of the interrogation,
proceeded from Respondent's president and sole stock-
holder, who is the active head of the business. Further-
more, so far as the record shows, the only conduct by
Respondent even arguably constituting an effort to neu-
tralize these unfair labor practices was its offer to Mc-
Clellan of a job, which, although it paid the same as his
old job, was more difficult, removed him from the bar-
26 If the distinction were material here, I would find this to be a "first-
category" case. Cf. Pay 'N Save Corporation, 247 NLRB No. 184 (1980);
Frito-Lay. Inc., 232 NLRB 753, 754-755 (1977). enfd in relevent part 585
F.2d 62, 68-69 (3d Cir 1978): United Dairy armers Cooperative. 242
NLRB 1026 (1979)
gaining unit, and exposed him to lawful discharge for
subsequent union activity. In view of the top-level
source of Respondent's unfair labor practices and the ab-
sence of any real effort to counteract them, I conclude
that the mere issuance of a cease-and-desist, reinstate-
ment/backpay, and notice-posting order will likely be in-
sufficient to deter Respondent from future unfair labor
practices which would impede a fair election. 27
For the foregoing reasons, I find that Respondent's
failure to honor the Union's June 11, 1979, bargaining
demand violated Section 8(a)(5) and (1) of the Act and
calls for a bargaining order. The bargaining obligation
runs from June 12, 1979, the approximate date when Re-
spondent began to engage in its independent 8(a)(I) vio-
lations.
CONCLUSIONS OF LAW
I. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act
by telling employees that if they decide to be represented
by a union, Respondent will no longer pay Christmas bo-
nuses or cover them by medical insurance or a pension
plan, and will be less lax than at present; by telling em-
ployees not to talk about the Union until after the elec-
tion; and by interrogating employees about union activi-
ties in a manner constituting interference, restraint, and
coercion.
4. Respondent has violated Section 8(a)(3) and (1) of
the Act by discharging Robert Duane McClellan, Jr.,
and Gregory Johnson to discourage union activity.
5. The following unit of Respondent's employees is ap-
propriate for collective-bargaining purposes within the
meaning of Section 9(b) of the Act:
All warehousemen, drivers and machine operators,
excluding all other employees, supervisors, and
guards as defined in the Act.
6. The Union has been at all times since June 6, 1979,
and still is, the exclusive bargaining representative of the
employees in said unit for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act.
7. Respondent has violated Section 8(a)(5) and (1) of
the Act by failing to honor the Union's demand that Re-
spondent recognize and bargain with the Union as the
exclusive representative of the employees in that unit,
while engaging in the conduct set forth in paragraphs 3
and 4.
8. The unfair labor practices set forth in paragraphs 3,
4, and 7 affect commerce within the meaning of Section
2(6) and (7) of the Act.
2 Munro Enterprises. Inc., 210 NLRB 403 (1974), and Cato Show Print-
ing Co.. Inc., 219 NLRB 739 (1975), where no bargaining order as
issued, each involved a single discriminatory discharge in a unit of 20 em-
ployees and 106 employees, respectively Moreover, in Cato Show, the
union obtained most of its authorization cards after the commission of the
employer's unfair labor practices.
1241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be re-
quired to cease and desist therefrom. Such unfair labor
practices included the discriminatory discharge of all but
one employee in the unit, were committed almost entire-
ly by Respondent's president and sole stockholder, were
directed at all the employees in the unit, included threats
to engage in unfair labor practices in the future, and in-
volved several different types of violations. I conclude
that unless restrained, Respondent is likely to engage in
continuing and varying efforts in the future to prevent its
employees from exercising their rights under Section 7 of
the Act. Accordingly, Respondent will be required to re-
frain from in any other manner in infringing on such
rights. N.L.R.B. v. Express Publishing Company, 312 U.S.
426, 437-439 (1941); N.L.R.B. v. Southern Transport Inc.,
343 F.2d 559, 561 (8th Cir. 1965); N.L.R.B. v. East Texas
Pulp & Paper Company, 346 F.2d 686, 689-690 (5th Cir.
1965); Hickmolt Foods, Inc., 242 NLRB 1357 (1979).
Affirmatively, Respondent will be required to offer
McClellan and Johnson immediate reinstatement to the
jobs of which they were unlawfully deprived, or if such
jobs no longer exist, substantially equivalent jobs, with-
out prejudice to their seniority or other rights and privi-
leges previously enjoyed. In addition, Respondent will be
required to make them whole for any loss of pay they
may have suffered by reason of the discrimination
against them, less net earnings, to be computed in the
manner prescribed in F W Woolworth Company, 90
NLRB 289 (1950), with interest as called for in Florida
Steel Corporation, 231 NLRB 651 (1977). 28 Also, Re-
spondent will be required to bargain with the Union on
request, and to post appropriate notices.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 29
The Respondent, Eastern Steel Company, Wyndmoar,
Pennsylvania, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Telling employees that if they decide to be repre-
sented by a union, Respondent will no longer pay Christ-
mas bonuses or cover them by medical insurance or a
pension plan, and will be less "lax" than at present.
(b) Telling employees not to talk about Highway
Truck Drivers and Helpers Local Union No. 107 affili-
28 See, generally. Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
29 In the event no exceptions are filed as provided by Sec. 102 46 of
the Rules and Regulations of the National L.abor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization until after a Board election.
(c) Interrogating employees about union activities in a
manner constituting interference, restraint, or coercion.
(d) Discharging any employee, or otherwise discrimi-
nating against any employee with regard to his hire or
tenure of employment or any other term or condition of
employment, to discourage membership in the Union or
any other labor organization.
(e) Refusing to recognize and bargain collectively with
the Union as the exclusive representative of the follow-
ing appropriate unit of Respondent's employees:
All warehousemen, drivers, and machine operators,
excluding all other employees, supervisors, and
guards as defined in the Act.
(f) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
under the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Robert Duane McClellan, Jr., and Gregory
Johnson reinstatement to the jobs of which they were
unlawfully deprived or, if such jobs no longer exist, sub-
stantially equivalent jobs, without prejudice to their se-
niority or other rights and privileges previously enjoyed;
and make them whole for any loss of pay they have suf-
fered by reason of the discrimination against them, in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Upon request, recognize and bargain with the
Union as the exclusive representative of the employees in
the appropriate unit, and embody in a signed agreement
any agreement reached.
(c) Post at its Wyndmoor, Pennsylvania, facility,
copies of the attached notice marked "Appendix." 30
Copies of said notice, on forms provided by the Regional
Director for Region 4, after being duly signed by Re-
spondent, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date this Order, what steps
Respondent has taken to comply herewith.
:'0 In the event that this Order is enforced by a Judgment of the
United States Court of Apeals, the words in the notice reading "Posted
by Older of the National Labor Relations Board" shall read "Posted Pur-
suant to a Judgment of the United States Court of Appeals Inforcing an
Order of the National Labor Relations Board."
' U.S. Government Printing Office: 1981--341-554/204
1242