Formed Tubes, Alabama

National Labor Relations Board - Board Decisions

Jun 12, 1974

211 N.L.R.B. 509 (N.L.R.B. 1974)

FORMED TUBES, ALABAMA 509
Formed Tubes, Alabama and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America , UAW. Case
10-CA-10366
June 12, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On February 27, 1974, Administrative Law Judge
Herzel H. E. Plaine issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Formed Tubes,
Alabama, Haleyville, Alabama, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
DECISION
HERZEL H. E. PLAINE, Administrative Law Judge: The
complaint charges Respondent, a manufacturer of automo-
bile exhaust systems, with having discharged employee
Dodd in August 1973, after 9 years of employment,
because of Dodd's prounion sympathies and activities, and
with having earlier interrogated employees concerning
their union membership and desires, in violation of Section
8(a)(3) and (1) of the National Labor Relations Act (the
Act).'
In its defense against the discharge , Respondent's
managerial witnesses offered two differing reasons for
discharge: (1) that employee Dodd caused his own
discharge automatically by refusing to sign a written "final
warning notice" acknowledging that his work was unsatis-
factory and that he had received earlier warnings, thereby
I The charge was filed by the Charging Party (the Union) on September
4, 1973, and the complaint was filed on October 2, 1973.
2 The transcript of the record, particularly the first half, has a
considerable number of garbled words and sentences , largely reflecting
either inaccurate reporting or transcription . Fortunately, the meanings at
these places come through, notwithstanding the garbles , and I have
refrained from attempting any larger task of correction than several
activating an alleged plant rule that failure to sign the
notice resulted in automatic dismissal ; and (2) that
employee Dodd was discharged because his work was slow
and required too much supervisory help. Respondent
conceded knowledge of employee Dodd's union affiliation
and activity on behalf of the Union, but denied that such
had anything to do with the discharge, and denied any
interrogation of employees concerning their union activi-
ties or desires.
The case was tried in Haleyville, Alabama, on November
14-16, 1973. None of the parties has filed briefs.
Upon the entire record in the case, including my
observation of the witnesses, I make the following:2
FINDINGS OF FACT
1. JURISDICTION
Respondent is a corporation with an office and place of
business at Haleyville, Alabama (and in Michigan and
Indiana, which places are not directly involved in this
case), where it is engaged in the manufacture and sale of
replacement automobile exhaust systems and tailpipes. In
the calendar year prior to the complaint , a representative
year, Respondent sold and shipped finished products in
excess of $50,000 directly to customers located outside
Alabama.
Respondent is, as the parties admit , engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
As the parties also concede , the Union is a labor
organization within the meaning of Section 2 (5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Respondent's Business Operations
At the Haleyville plant, Respondent is in the business of
manufacturing and selling replacement exhaust systems for
passenger cars. Included in the systems are exhausts,
tailpipes, and intermediate pipes.
According to Plant Manager Toby Yarborough, the
manufacturing process starts with large coils of steel that
are split and rolled into tubing of various diameters. The
tubing is cut into required lengths by Respondent's
department 1. Then the tubes or pipes are bent and
flattened appropriately in department 2. Ends are finished
or flaired in department 3. Crossover parts, brackets, and
flanges are welded in department 4. The finished products
are stamped, taped, and loaded in trucks for shipment in
department 5. The total operation employed 285 employ-
ees, according to Plant Superintendent Donald Morrow,
working two shifts, with about 165 employees on the first
or morning shift, and about 120 employees on the second
or afternoon shift.
Plant Superintendent Morrow was directly in charge and
changes, requested by Respondent and not objected to by General Counsel,
that appear necessary to avoid misunderstanding . A few other changes,
requested by Respondent, appear unnecessary in the light of my judgment
that a general revision of the language of the transcript is not required.
Accordingly, it is ordered that the transcript of the proceedings be
corrected.
211 NLRB No. 87
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
responsible for operation of the first shift. In department 2,
the bending department, with which this case is directly
concerned, the first shift had 34 employees of whom 17
were hydraulic press operators and 7 were setup men for
the hydraulic presses. (The other 10 employees worked on
air presses and in other capacities not involved in the case).
There were also hydraulic press operators and setup men
on the second shift, who not infrequently might wind up
jobs begun on the first shift, or start work completed on the
first shift.
In department 2, the bending department, the hydraulic
presses take the straight lengths of exhaust pipes and
tailpipes and stamp them out with the variety of predeter-
mined bends, tilts, and flat spots that permits the finished
pipe to fit the chassis of the automobile and avoid
interference with other parts of the car, and to be welded
into and onto other parts where required. Before the
hydraulic presses are ready to do their jobs, they must be
set up individually for the shape and style exhaust or
tailpipe required on the make and model car with which
the individual job is concerned. Since the orders of
Respondent's customers are for replacement exhausts, they
go back over the years, according to Plant Manager
Yarborough and Superintendent Morrow, from current to
1948 models and even involve some earlier model A cars.
Because cars are everchanging by makes, and by models
within makes, the variety of exhausts and tailpipes is thus
enormous and numbers some 2,500 or more different
setups, said Morrow, for the mostly American and some
foreign cars for which Respondent's customers place
orders. The customers are approximately seven equipment
manufacturers who provide automobile manufacturers
with the original equipment for which Respondent pro-
vides some of the replacements.
According to setup man Robert Pickard, orders may run
from 250 to 12,000 pipes per order. The job of the setup
man, said Pickard, is to set up the hydraulic press so that
the press operator can crank out the pipes on each order in
the desired shape. The setup man sets the several stops on
the press, each of which when properly set, will produce
the respective bends, tilts, or flat spots needed in the pipe.
The setup man works from a blueprint transferred in two
drawings onto each side of a thick sheetrock like board,
called a template. The drawings on the template simulate
in lifesize the bends, flat spots, and tilts of the desired
finished pipe, and with the aid of blocks the setup man
measures and fits to the template the sample pipe he
develops and corrects, as he adjusts the press. His job is to
make sure that the bend or degree of bend is set up right.
Some of the jobs call for as many as thirteen bends per
pipe and frequently the bend requires a tilt to put the right
angle into the bend.
When satisfied that he has a setup that will run a suitable
pipe, the setup man obtains supervisory approval from the
assistant foreman or the leadman, one of whom checks out
his sample pipe for measurements within the allowable
tolerances and for machine flaws and, where necessary in
his opinion, directs further adjustments in the setup or aids
the setup man in making the adjustments.
Once the setup is approved, the hydraulic press operator
runs the pipe through the press which, at each successive
stop, puts a bend or tilt in the pipe and trips over to the
next bend or tilt, until completion.
Each setup requires several hours' work, but on a varying
scale, depending on the complexity of the job, quality of
the steel, the amount and quality of help the setup man
may get from an operator in making the setup, need for
retrim or other adjustments, and readjustments or correc-
tions ordered by the floor supervisors. On an occasional
repeat job, the setup man may have available a previous
setup card and a completed sample which will reduce his
time, but this is not a frequent occurrence.
B. Union Organization and Activity
Respondent's employees are not unionized. The Union
began an organizing campaign in late 1968, and employee
Dois Dodd who, in previous employment at International
Harvester of Indiana, had been a UAW member, helped
with the organizing.
Employee Dodd, of the first-shift bending department,
came to work for Respondent in September 1964, first as a
cutoff press operator, then became a hydraulic press
operator, and then became a hydraulic press setup man in
July 1967, at which job he remained until his discharge in
August 1973. Dodd obtained signatures on employee
authorization cards and served as union observer at the
Board-conducted election in February 1969. The Union
lost the election.
In April or May 1972, according to employee Dodd, a
group of employees asked him to get in touch with the
Union about organizing again. He did, and a second union
campaign took place , culminating in a second election on
November 9, 1972. In the course of the campaign, Dodd
helped obtain employee authorization card signatures, took
part in union meetings, and served as union observer at the
election. Another employee on the second shift, Bayard
Shelnutt, served as a second union observer. Again, the
Union lost the election.
Respondent conceded awareness of employee Dodd's
union activities and sympathies.
C. Demotion, Interrogation, and Discharge of
Employee Dodd
On the morning of the day of the second election for
union representation, November 9, 1972 (the election was
held in the afternoon), setup man Dodd had started to set
up the presses of hydraulic press operators Rogers and
Ellie Walker. Press operator Lawson Raper came over
from his nearby hydraulic press to ask Dodd a question
when Foreman Ike Rasbury, at a distance from the four
men, yelled to get back to work, there was too much
talking, according to employee Walker. Rasbury came
down to where the men were and ordered employee Raper
back to his machine. Raper complied and Rasbury then
told Raper (out of the hearing of the others) that there were
two or three of them he (Rasbury) would make it rough on
if that Union didn't come in. Raper, an employee of 8-1/2
years' standing at the time of teal, further testified that
Foreman Rasbury had made known to the employees his
opposition to the Union prior to this occasion.
Foreman Rasbury then turned to employees Dodd,
FORMED TUBES , ALABAMA 511
Walker, and Rogers and, addressing Dodd, told him that
his order to Raper (to get back to work) applied to Dodd
too. Dodd complied, but said he didn't think it was
necessary for Rasbury to jump all over them. Rasbury
replied if Dodd felt that way why not just quit, according
to the testimony of employees Walker and Dodd, and then
added that Dodd had better hope the Union comes in,
because if it did not he (Dodd) had had it. Dodd answered
he didn't see what his job had to do with it since he was
doing his job, to which Rasbury retorted the point was that
his work was not satisfactory.
According to employee Dodd, this was the first time
there had been any intimation to him that his work was not
regarded as satisfactory. He added he was hurt because he
thought Rasbury and he were friends. He recalled an
earlier conversation with Rasbury in connection with the
first election when Rasbury asked him why he wanted a
union , and he had said for job security; whereupon
Rasbury had commented that a good worker like Dodd
had no need for job security, the company would never get
rid of a man like him.
A few minutes after the discussion on the morning of
November 9, 1972, involving the four employees, Foreman
Rasbury, who said he was disturbed as a result of the
discussion, talked to employee Willis Adamson whose
hydraulic press was nearby the others. He told employee
Adamson, as Adamson testified, that if the Union did not
come in employee Dodd had better pack his stuff and get
out or he (Rasbury) would fire him. Adamson was a
hydraulic press operator at the time of trial, training to be a
setup man.
Foreman Rasbury admitted the conversation with
employee Adamson, including the reference to Dodd and
to the Union; but denied mentioning the Union in his
conversations with employees Raper and Dodd. However,
I credit the testimony of employees Raper, Walker, and
Dodd over Foreman Rasbury's denials. In the case of
employees Raper and Walker, particularly, who were in the
vulnerable position of current employees testifying ad-
versely to their employer, their credibility was entitled to
added support; Georgia Rug Mill, 131 NLRB 1304, 1305,
fn. 2 (1961); Wirtz v. B.A.C. Steel Co., 312 F.2d 14, 16
(C.A. 4, 1963); Marine Welding and Repair Works, 174
NLRB 661, 666, fn. 9 (1969), enfd. 430 F.2d 395 (C.A. 8,
1971).3
General Counsel has not cited these conversations of
Foreman Rasbury on November 9, 1972, as direct
violations of the Act, but as background for the subsequent
demotion of employee Dodd in February 1973, followed
by his discharge in August 1973.
In 1973, Respondent embarked upon a process of plant
expansion, according to Plant Superintendent Morrow, to
keep up with its expanding business ; and, among other
things, it began training additional setup men from among
the operators with the object of increasing by 10 or 12 the
number of setup men by March 1974. Each prospective
trainee needed at least 2-1/2 months' preliminary training
and additional training thereafter. Notwithstanding the
need for trained setup men, on February 28, 1973,
Foreman Rasbury informed setup man Dodd that as of
March 5, 1973, he was being demoted from setup man to
hydraulic press operator. According to Dodd, Rasbury told
him he had been pressured to demote Dodd (the change
entailed a loss in pay from $3.40 per hour to $3.15 per
hour), but Rasbury claimed he said only that he had
discussed the demotion with Manager Yarborough and
Superintendent Morrow. Dodd said it was a dirty deal, in
retaliation for his union activity, to which Rasbury made
no direct response, but did say, if it were he, he'd quit.
Employee Dodd immediately protested the demotion to
Plant Manager Yarborough, to no avail, and the Union
took the matter to the Board on an 8(a)(3) charge, filed
April 30, 1973, on behalf of both Dodd and employee
Bayard Shelnutt, the second union observer at the previous
November election, who was discharged by Respondent 10
days after Dodd's demotion, see G.C. Exhibit 2(a),
complaint filed June 7, 1973.
Respondent restored employee Dodd, who had contin-
ued working as an operator, to his job as setup man, on
June 6, 1973, after advising him, in a meeting on June 5,
that he would be reinstated with back pay for the loss of
the pay differential he incurred (testimony of Personnel
Manager Ernest Hulsey). By stipulation of counsel, it
appeared that discharged employee Shelnutt received a
money settlement and the complaint of June 7, supra, as to
both Dodd and Shelnutt was dismissed on July 13, 1973, at
the request of the Union, G.C. Exhibit 2(b).
In the meeting of June 5, 1973, attended by Plant
Manager Yarborough, Foreman Rasbury, Personnel Man-
ager Hulsey, and employee Dodd (Plant Superintendent
Morrow was absent from the plant and did not attend),
according to Hulsey and Rasbury, nothing was said to
employee Dodd about his setup work or improvement or
speed, only that he would be put back on setup work the
following Monday, June 11 (this was moved up to June 6,
see Resp. Exh. 3). According to Yarborough, Dodd said he
accepted, that he felt going to the Board was the only way
he and employee Shelnutt had for correcting the wrong
done them. Yarborough said Shelnutt was not involved in
this discussion, and asked if anyone else had anything to
say.
Foreman Rasbury asked a question. According to
employee Dodd, the question was, why did he, Dodd, want
a union? Dodd answered, he said, he wanted a union
mainly for job security.
According to Rasbury, his question was, why wasn't
Dodd satisfied working there, and, had he, Rasbury,
treated Dodd wrong? According to Rasbury, Dodd
answered, Rasbury hadn't mistreated him, but he thought
we would be better off organized by a union.4
Foreman Rasbury's explanation of his version of the
question is revealing. He said, when he asked employee
Dodd, why he was dissatisfied, it was because it seemed
that Dodd was working against the company and working
3 That employee Walker was related by marriage to employee Dodd did 4 Plant Manager Yarborough was generally corroborative of Rasbury,
not detract from his credibility or the value of his testimony, which derived but Personnel Manager Hulsey didn't remember whether Foreman Rasbury
support and corroboration from the testimony of the others , the surround- mentioned the Union in asking his question , and recalled Dodd answering
ing circumstances , and other admissions of Foreman Rasbury, infra . that he wanted a union for job security.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the Union; Dodd had his mind on the Union instead of
his job, to the point where he couldn't improve anymore,
said Rasbury.
I am satisfied that the truth was on employee Dodd's
side, and that he was directly questioned by Foreman
Rasbury, in the presence of the plant's top management, as
to his (Dodd's) union preference and desires, as charged in
the complaint.
Employee Dodd returned to setup work on June 6, 1973.
On August 1, 1973, he was called to Plant Superintendent
Morrow's office and told by Morrow that his work was
below par, and that he would have to improve. Dodd said
he did the best he knew how, and, according to Morrow,
added this was a frameup, because of his union activities.
Morrow replied that he didn't agree.
On August 24, 1973, employee Dodd was called to a
meeting with Plant Superintendent Morrow and Personnel
Manager Hulsey. Morrow told Dodd he had seen no
improvement in his work, that Dodd had been warned
twice before, counting the June 5 reinstatement meeting
(which Morrow did not attend) as a first warning and the
August 1 meeting as the second warning, and he was now
being given a final written warning to perform his setup job
satisfactorily or be discharged. The warning, Respondent's
Exhibit 1, reciting the two alleged verbal warnings of June
5 and August 1, had to be signed by Dodd said Morrow or,
as was typed on its face, Dodd was subject to automatic
dismissal. Dodd refused to sign, saying that signing would
merely be a brief delay, and his acquiescence, in their firing
him later. Moreover, he did not regard the June 5 meeting
that restored him to his setupjob as a warning.
Dodd having refused to sign the warning notice, Morrow
told Dodd that he was discharged and directed Hulsey to
get Dodd's final paycheck.
D. Respondent's Explanations of the Discharge
Plant Manager Yarborough, who disclaimed any knowl-
edge of employee Dodd's ability to do his job, saying that
this information came from Dodd's immediate supervisors,
stated that he had nothing to do with the decision to
terminate Dodd. Yarborough said he discussed Dodd's
future on August 24, 1973, with his two top assistants,
Plant Superintendent Morrow and Foreman Rasbury.
They thought he ought to be discharged forthwith because
he could not do his job, said Yarborough; but, because he,
Yarborough, thought Dodd ought to have a final warning,
agreed to the final warning handed Dodd late that day.
Dodd caused his own dismissal by failing to sign the
warning, said Yarborough.
Yarborough claimed that Respondent inaugurated the
written warning system, coupled with automatic dismissal
for refusal to sign, in 1964, by a posting of notice for 2
weeks on the plant bulletin board and a subsequent similar
posting in 1968. However, he offered no evidence of such
rule or its posting, and conceded, as did Personnel
Manager Hulsey, that though Respondent has written rules
for employees in an employees' handbook, there is no such
rule relating to a warning system in Respondent's written
rules. In addition, Hulsey, who has been Respondent's
personnel manager for the past 5 years, testified that he
had not notified Dodd of the alleged rule concerning
written warning notices, and that, at the terminal meeting
on August 24, neither he nor Morrow told Dodd that he
might not necessarily be discharged and would continue
working if he signed the warning notice.
In his initial testimony, Plant Superintendent Morrow,
who handled the dismissal of employee Dodd, took the
same position (as Yarborough and Hulsey) that Dodd
caused his own automatic dismissal, in accordance with the
typed legend on the warning notice, by refusal to sign the
notice.
On cross-examination, Morrow reversed his initial
testimony, and stated flatly that Dodd was no longer with
Respondent because of his work, that his jobs took
excessive time and excessive time of his supervisors, that
this was the reason for his discharge, and that his failure to
sign the warning notice, Respondent's Exhibit 1, was not
the real reason for the discharge.
On redirect examination, though Respondent sought to
rehabilitate Morrow's initial testimony and reason for the
dismissal of Dodd, Morrow persisted that Dodd was
terminated "because his setup [sic] was inadequate."
In demonstrating the alleged inadequacy, more particu-
larly described by Plant Superintendent Morrow as being
slow or taking excessive time to complete setups, and
requiring excessive time of the floor supervisors to approve
setups, Morrow placed great reliance upon a comparative
time analysis of the seven morning shift setup men over a
12-week period from May 31 to August 23, 1973, (Resp.
Exh. 5). The figures came from timesheets kept by
Respondent for each setup job in a periodic time-cost
study. The time for each job ran from start by the setup
man though approval by the floor supervisor, with
clockout only for major interruptions. Morrow and the
supervisory witnesses brushed aside the variety of differ-
ences in jobs, and time-consuming causes that affect each
job and its time differently, on the ground that these tend
to level or average out similarly for each man over a period
of time. Respondent's analysis (Resp. Exh. 5) showed that,
for 97 setups performed by employee Dodd in the period,
he averaged 2.66 hours per setup, or 2 hours and 40
minutes per setup. Comparing Dodd with employee Robert
Pickard, rated by Respondent's supervisors as a good setup
man, Pickard did 94 setups in the period for an average of
2.51 hours per setup, or 2 hours and 31 minutes per setup.
The average difference between the two men was only 9
minutes per setup longer for Dodd than for Pickard
(testimony of Assistant Foreman Guy Berry, and Resp.
Exh. 5).
From Respondent's exhibit 5, it appears that employee
Gurstel Gardner (who was rated by Respondent's supervi-
sors as in the same category as employee Dodd) did 82
setups in an average 2.60 hours per setup, or 2 hours and 36
minutes per setup, which was an average 4 minutes per
setup less than Dodd's time.
On cross-examination of Plant Superintendent Morrow,
as the significance of the figures in the comparative
analysis, became apparent, Morrow conceded that employ-
ee Dodd was not materially slower than three or four of the
setup men on his shift. Morrow contended that the jobs
these other setup men had been doing involved more
severe bends and were more complicated than the jobs
FORMED TUBES , ALABAMA 513
performed by Dodd (something that neither he nor others
could tell from the analysis), and suggested that the floor
foremen had , bn, giving Dodd easier jobs to speed
production. The contention and suggestion were contradic-
ted and eliminated by the later testimony of Assistant
Foreman Berry, who testified that he had worked with all
seven setup men , checked at least half of Dodd's jobs, had
not given Dodd any different jobs than he gave the other
setup men , and that the jobs for all averaged out to the
same degree of difficulty.
Superintendent Morrow fell back to his ultimate conten-
tion that while he could live with a setup time average of
2.66 hours per job (employee Dodd's average on Resp. Exh.
5), the main complaint against Dodd was that he needed
excessive time of the leadmen or floor supervisors for
approving his setups . Admittedly, no separate figures of
this time were kept, in any fashion. The time spent by the
floor supervisor in approving a setup was lumped in with
the total job time of the setup.
The two floor supervisors who performed this function
for the seven setup men in department 2, along with
performing their other duties of aiding the other 27
employees in the department and speeding production,
were the assistant foreman, Guy Berry, and the group
leader or leadman , Gerald Corsbie. They testified that each
had approved about half of employee Dodd's setups over
the past several years and said that they spent far greater
amounts of time in assisting with and approving Dodd's
setups than with any other setup man. Assistant Foreman
Berry claimed he spent 4 hours per day with Dodd and
Leadman Corsbie claimed he spent 1-1/2 hours to 2-1/2
hours per setup with Dodd (or about the same time per day
as Berry). Several circumstances suggest that these claims
were exaggerated out of all proportion, if indeed there was
any special problem with Dodd.
Looking at the time spent with just the seven setup men
of the department, it was conceded that the two floor
supervisors had to spend time with each of them, from the
very best performer, whose work was right 90 percent of
the time , thru the good or average performers whose work
was right 70 percent of the time, to the bottom performers
whose work was right 40-50 percent of the time. As jobs
became more complicated, said Leadman Corsbie, he was
spending from 1/2 hour to 1 hour with the average setup
man on a setup. Since Berry and Corsbie were together
assisting on and approving daily between 14 and 21 setups
(2 to 3 per setup man), it is hardly likely that each was
spending half of his day with 1 setup man and still getting
his work done with the others. This becomes even more
evident in the light of Berry's testimony that he and
Corsbie assist all 34 employees in the department,
operators as well as setup men, and Berry sometimes must
substitute for Foreman Rasbury.
Berry and Corsbie testified that they each complained
about having to spend excessive time with employee Dodd
to Foreman Rasbury, but never said anything to Dodd
directly, though he was directly in their charge. Although
this was a daily intolerable situation, from their description
of it, Berry thought he complained twice to Rasbury, the
first time a year or a year and a half before trial, which was
prior to or around the November 1972 election; and
Corsbie said he complained to Rasbury several times
mostly in 1972.
Interestiltgly, Foreman Rasbury said he talked to Dodd
about the matter of his performance only twice (Dodd
denies there were any such conversations), once before the
November 1972 election , once after . Rasbury said he told
Dodd he was a little too slow and to try and speed it up, and
that the leadmen were spending a little too much time with
him and try to improve. Rasbury carefully noted in his
testimony that he did not say to Dodd that he was too slow,
and he did not say the leadmen were spending way too
much time with him.
These circumstances, put together, suggest that the
alleged time of floor supervisors spent on employee Dodd
was neither excessive nor the problem with Dodd that
Respondent sought to make it at trial in justification of his
discharge.
Employee Dodd began his work as a setup man in July
1967, and, as Foreman Rasbury testified, he was an
acceptable setup man who did a pretty fair job. Respon-
dent's witnesses testified that beginning in 1969-70 with
the motor car trend to larger and more complicated
engines and emission controls, the business emphasis for
Respondent began to shift from tailpipes (pipes going from
muffler to rear end of the car) to exhaust systems (pipes
coming from manifold back to muffler), which, it was said,
were more difficult to set up than the pre- 1969 jobs.5 It was
also said by Plant Superintendent Morrow and Foreman
Rasbury that with the 1969-70 changeover, employee
Dodd was not able to keep up, hence his alleged time
problem and need for help. Significantly, the alleged
complaints about Dodd's performance did not arise in
1969 or 1970 or 1971 or the first half of 1972. Dodd
appeared to become a problem 3-1/2 years after the
changeover began, during the campaign for union repre-
sentation and the election of November 1972. Foreman
Rasbury said he was moved to talk to employee Dodd
before and after the election because Dodd didn't seem to
have his mind on his job, his mind was on something
outside the plant-1 figured, said Rasbury, that Dodd had
his mind on the Union.
The one hard piece of evidence on the question of
employee Dodd's ability to keep up with the current work
came in with Respondent's Exhibit 3. This was a summary
of Dodd's setup jobs after his reinstatement as setup man
in June 1973. One portion of the summary goes up to July
31, after which Dodd was given the warning of August 1 by
Plant Manager Morrow. The second portion covers August
1-24, 1973, the last 3 weeks of Dodd's work. Morrow
offered the exhibit to demonstrate jobs he had marked as
showing excessive time on Dodd's part. It turned out that
in the period August 1-24, 1973, after the warning of
August 1, and prior to discharge on August 24, the only
jobs that Morrow marked as excessive were jobs partly
done by Dodd and partly done by another setup man on
the second shift. Every job done by employee Dodd alone
in that period was done without excessive time, and
5 There was also testimony from the same witnesses, however, that many
of the pre- 1969 jobs were as complicated and difficult as the later jobs.
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Morrow conceded this at trial. However, Morrow never
took this fact into account when he discharged Dodd on
August 24, 1973, because by his own admission Morrow
made no personal study of Dodd's work until after August
24, 1973.6
E. 8(a)(1) and (3) Findings
In my view, Respondent 's explanations for the discharge
of employee Dodd are a tissue of pretense to disguise the
antiunion motivation that was the real cause for his
discharge . The shifting explanations , described under
heading "D" above , undermine Respondent 's denial of
discrimination , N.L.R.B. v. Schill Steel Products, Inc., 340
F.2d 568 , 573 (C .A. 5, 1965), particularly since Respon-
dent's claims of Dodd 's inadequacy as an employee were
unsubstantiated.
Dodd was an employee of 9 years ' standing with
Respondent . By 1972, Dodd apparently had emerged as
the employee leader in the movement for unionization at
the plant, following defeat of the first attempt at unioniza-
tion in 1968-69 . He was active in obtaining employee
support through authorization cards , organizing and
attending meetings in the 1972 campaign , and acted as
union observer at the election of November 9, 1972.
Respondent was opposed to the Union , and Foreman
Rasbury , an admitted statutory supervisor , served notice
on Dodd and his fellow employees , on the morning of the
November 9, 1972 , election , that Dodd (and possibly other
union adherents) were slated to be fired . Following the
second defeat of the Union , Respondent moved in that
direction in March 1973 by demoting Dodd to a lesser job
(and suggesting he resign), supposedly because he could
not handle the setup man's job he was in and had been in
since 1967 , and firing another employee , Shelnutt , who had
been a second union election observer.
Following the filing of a charge by the Union with the
Board (on behalf of employees Dodd and Shelnutt) and
concomitant with the filing of a Board complaint , in June
1973, Respondent restored Dodd to his former job as setup
man (also settling out the discharge of Shelnutt and
obtaining dismissal of the then pending complaint).
Preliminary to his reinstatement as setup man, employee
Dodd was called into a meeting with the plant manager,
personnel manager , and his foreman, Rasbury, on June 5,
1973, to be told that he was being restored to his former
job with backpay . His past or future performance was not
discussed but Foreman Rasbury questioned him on why he
wanted a union in the plant.
Such interrogation was coercive and in violation of
Section 8(a)(1) of the Act . In the mind of the employee it
would naturally be associated with Respondent 's active
opposition to the Union . The questioning was conducted in
the presence of the top plant management . There was no
explanation of its purpose, nor was any legitimate purpose
apparent . It had the appearance of a warning or attempt to
intimidate , and employee Dodd was offered no assurance
against reprisal or retaliation . N.L.R.B. v. Varo, Inc., 425
F.2d 293 , 298 (C .A. 5, 1970).
6 There was also testimony by several of Dodd's fellow employees
indicating that he was performing comparably with the other setup men and
At this point , if not earlier , the pattern of future
company action respecting employee Dodd was set. As
Foreman Rasbury said , he was already of the view that
Dodd was working for the Union and against the
Company . This view was apparently shared by the plant
management.
Employee Dodd was let in on the game when he was
warned by Plant Superintendent Morrow on August 1,
1973, that his work was substandard and he would have to
improve or go . (As Morrow noted , Dodd cried "frameup.")
The game was played out on August 24, 1973, when
employee Dodd was given and declined the opportunity to
sign a written warning that his work was substandard, and
that he had been warned twice before , though he had only
been warned once . He was dismissed forthwith on a claim
that he had breached a plant rule, refusal to sign the
warning notice , although that was not a plant rule among
the written rules governing employee conduct , but only a
inscription on the notice. Respondent switched from
this claim to the claim that Dodd was fired because he was
an inadequate employee by reason of slowness , and taking
too much of his floor supervisors' time. As analyzed under
heading "D" above , these claims concerning Dodd were
not substantiated , and some of Respondent 's exhibits and
testimony, as well as testimony of Dodd 's fellow employ-
ees, provided affirmative evidence that Dodd had been
performing his job comparably to the performance of his
colleagues . Thus his discharge , in these circumstances and
at a time when Respondent was expanding and needed
more, rather than less, well-trained setup men, can be
explained only by the fact that employee Dodd continued
to openly espouse union organization of Respondent's
employees , which Respondent would not abide.
Respondent 's real reason for the discharge of employee
Dodd was to be rid of the employee leader for plant
unionization and to discourage unionization of its employ-
ees, in violation of Section 8(aX3) and (1) of the Act.
Respondent's claimed reasons for discharge were pretexts
to conceal the real reason and the unlawful object.
N.L.R.B. v. Iron City Sash and Door Co., 352 F.2d 437,
438-439 (C.A. 6, 1965); N.L.RB. v. Schnell Tool and Die
Corp., 359 F .2d 39 , 44 (C.A . 6, 1966); and see holdings in
N.L.R.B. v. Ulbrich Stainless Steels, Inc., 393 F.2d 871, 872
(C.A. 2, 1968), that the stated ground was not the real
ground for the discharge ; and Shattuck Denn Mining Corp.,
362 F .2d 466, 470 (C .A. 9, 1966), that the stated ground
was designed to conceal the unlawful motive.
CONCLUSIONS OF LAW
1. By coercively interrogating employee Dois Dodd on
June 5, 1973 , concerning his union sympathies and desires,
Respondent engaged in an unfair labor practice within the
meaning of Section 8(aXl) of the Act.
2. By discharge of employee Dodd on August 24, 1973,
because of his support of, and activities for, the Union and
in order to discourage such activities or union membership
of its employees Respondent engaged in an unfair labor
was helpful to the press operators.
FORMED TUBES , ALABAMA 515
practice within the meaning of Section 8(a)(3) and (1) of
the Act.
3. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
In connection with the unfair labor practices, it will be
recommended that the Respondent:
(1) Cease and desist from its unfair labor practices.
(2) Offer to reinstate employee Dois Dodd with backpay
from the time of discharge, backpay to "mputed on a
quarterly basis as set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), approved in N.LR.B. v. Seven-Up
Bottling Co., 344 U.S. 344 (1953), with interest at 6 percent
per annum as provided in Isis Plumbing & Heating Co., 138
NLRB 716 (1962), approved in Philip Carey Mfg. Co. v.
N.L.R.B., 331 F.2d 720 (C.A. 6, 1964), cert. denied 379
U.S. 888 (1964).
(3) Post the notices provided for herein.
Because the Respondent violated fundamental employee
rights guaranteed by Section 7 of the Act, and because
there appears from the manner of the commission of this
conduct an attitude of opposition to the purposes of the
Act and a proclivity to commit other unfair labor practices,
it will be further recommended that the Respondent:
(4) cease and desist from in any manner infringing upon
the rights guaranteed by Section 7 of the Act. N.L.R.B. v.
Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941); P. R.
Mallory and Co. v. N.L.R.B., 400 F.2d 956, 959-960 (C.A.
7, 1968), cert. denied 394 U.S. 918 (1969); N.L.R.B. v.
Bama Company, 353 F.2d 323-324 (C.A. 5, 1965).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is hereby issued the following recommended:
ORDERT
(c) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to ascertain the backpay due under the terms of
this Order.
(d) Post in its plant at Haleyville, Alabama, copies of the
attached notice marked "Appendix."8 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent's
authorized representative shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees 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 10, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
7 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , recommendations , and 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.
8 In the event that the Board 's Order is enforced by a judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Respondent, Formed Tubes, Alabama, its officers,
agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union sympathies and desires.
(b) Discharging employees because they engage in or
support union activities.
(c) Discouraging employees from support of or member-
ship in the Union or other labor organization by discharge
or other discrimination affecting their tenure and condi-
tions of employment.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make employee Dois Dodd whole, in the manner set
forth in the section of this Decision entitled "The
Remedy," for any loss of earnings incurred by him as a
result of his discharge on August 24, 1973.
(b) Offer to employee Dodd immediate and full
reinstatement to his former job or, if the job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges.
The National Labor Relations Board having found, after a
trial, that we violated the National Labor Relations Act,
we hereby notify you that:
WE WILL NOT coercively interrogate you concerning
your union sympathies and desires.
WE WILL NOT discharge you because you engage in
or support union or other lawful concerted employee
activities.
WE WILL NOT discourage you from support of or
membership in the Union or other labor organization
by discharge or other discrimination affecting tenure
and conditions of your employment.
WE WILL NOT in any other manner interfere with
your rights to belong to or be active for a labor union,
or to refrain therefrom.
because the Board found that we unlawfully dis-
charged employee Dois Dodd on August 24, 1973, wE
WILL offer Mr. Dodd his former or like job.
WE WILL give him backpay with interest from
August 24, 1973.
FORMED TUBES, ALABAMA
(Employer)
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dated By from the date of posting and must not be altered, defaced,
(Representative) (Title) or covered by any other material.
Any questions concerning this notice or compliance with
This is an official notice and must not be defaced by its provisions may be directed to the Board's Office,
anyone . Peachtree Building, Room 701, 730 Peachtree Street, NE
This notice must remain posted for 60 consecutive days Atlanta, Georgia 30308, Telephone 404-526-5760.