R. P. Scherer (Southeast) Corporation

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 400 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
R. P. Scherer (Southeast) Corporation and Oil,
Chemical, and Atomic Workers International
Union, AFL-CIO-CLC. Case 1 l-CA-8691
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On October 27, 1980, Administrative Law Judge
John M. Dyer 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 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, t and
conclusions2 of the Administrative Law Judge and
to adopt his recommended Order, as modified
herein. 3
'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 his findings.
'2 On August 27, 1980, the Board issued its Decision in Wright Line., a
Division of Wright Line, Inc., 251 NLRB 1083, which sets forth a two-step
mode of analysis for determining causation in cases arising under Sec.
8(aX3) or (I) of the Act. Although the Administrative Law Judge in the
instant case did not apply the precise Wright Line analysis, we find his
analysis is not rendered defective by Wright Line. Thus, the Administra-
tive Law Judge's findings at sec. C, pars 1-8, of his Decision constitute a
finding of a prima facie showing sufficient to support the inference that a
motivating factor in Respondent's decision to discharge Hal Stewart was
Stewart's engaging in protected activities. The Administrative Law Judge
found that Respondent discharged Stewart on the basis of statements he
had made which a supervisor of Respondent had provoked by threaten-
ing Stewart for his involvement in a union organizing campaign.
The Administrative Law Judge's findings with respect to Respondent's
defense satisfy the second step of Wright Line. In sec. C, par. 8, the Ad-
ministrative Law Judge implicitly rejected Respondent's contention that
because Respondent's president decided to discharge Stewart, solely on
the basis of the statements Stewart made during this exchange with the
supervisor, Respondent has proven that, in the absence of protected ac-
tivity, it would have discharged Stewart. Respondent's argument over-
looks the causal relationship between Supervisor Penegar's antiunion out-
burst and Stewart's response. Stewart's threats cannot be isolated from
Penegar's threats, which are, in turn, inseparable from the union animus
they carry. Therefore, Stewart's threats, asserted as the legitimate ground
for discharge, cannot serve to rebut the General Counsel's prima facie
case under Wright Line. Nor can Respondent assert that, in the absence
of any protected activity, it still would have discharged Stewart for his
conduct because, absent the statement Penegar made about Stewart's
union activities, it is not clear any threats would have been exchanged at
all. (Nor has it been asserted or shown that Stewart's threats were an ex-
cessive response to Penegar's outburst.) Therefore, we conclude that the
Administrative Law Judge's analysis is in harmony with the analytical
objective of Wright Line and we affirm his conclusion that Respondent's
discharge violated Sec. 8(a)(3) and (I) of the Act.
I We have modified the Administrative Law Judge's recommended
Order to include the full reinstatement language traditionally provided by
258 NLRB No. 51
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,
R. P. Scherer (Southeast) Corporation, Monroe,
North Carolina, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer Hal A. Stewart immediate and full re-
instatement to his former position or, if that posi-
tion no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any
other rights and privileges previously enjoyed, and
make him whole for any loss of earnings he may
have suffered as a result of the discrimination
against him in the manner set forth in the section
of the Administrative Law Judge's Decision enti-
tled 'The Remedy."'
2. Substitute the following for paragraph l(c):
"(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
3. 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."
4. Substitute the attached notice for that of the
Administrative Law Judge.
the Board. We have also modified his recommended Order to include the
proper cease-and-desist language "in any like or related manner."
Further, we have modified his recommended Order to include a provi-
sion that all pertinent records be made available to the Board for the pur-
pose of computing backpay.
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.
400
R. P. SCHERER (SOUTHEAST) CORP.
WE WILL NOT fire employees for engaging
in union and concerted activities with other
employees for their mutual aid and protection.
WE WILL NOT unlawfully interrogate our
employees about their union sentiments or ac-
tivities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL offer Hal A. Stewart immediate
and full reinstatement to his former job or, if
such job no longer exists, to substantially
equivalent employment without prejudice to
his seniority or other rights or privileges previ-
ously enjoyed, and WE WILL make him whole
for any loss of pay he may have suffered by
reason of our discharge of him, plus interest.
Our employees are free to become or remain mem-
bers of Oil, Chemical and Atomic Workers Interna-
tional Union, AFL-CIO-CLC.
R. P. SCHERER (SOUTHEAST) CORPO-
RATION
DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge: On Octo-
ber 22, 1979,' Oil, Chemical, and Atomic Workers Inter-
national Union, AFL-CIO-CLC, herein called the
Union or the Charging Party, filed a charge against R. P.
Scherer (Southeast) Corporation, herein called the Com-
pany or Respondent, alleging that it had violated Section
8(aXl) and (3) of the National Labor Relations, as
amended, herein called the Act. The charge was amend-
ed on October 30 to include, as an alleged discriminatee,
Hal Austin Stewart. The Regional Director issued a
complaint on December 5 alleging that Supervisor
Charles Penegar violated Section 8(a)(1) of the Act by
interrogating employees and soliciting their grievances in
early September and that Respondent violated Section
8(a)(3) and (1) of the Act by its discharge of Hal A.
Stewart on September 15.
Respondent's timely answer admitted the service and
commerce allegations, the status of the Union, and the
supervisory status of Respondent's plant manager, Sher-
win Brown, Supervisors Penegar, Griffin, and Trull, and
Maintenance Manager Ian Clontz, but denied that it had
violated the Act in any way.
The principal issue here is one of credibility between
Supervisor Penegar and discriminatee Stewart and cor-
roborating witness Staton and witness Jenkins. In evalu-
ating the witnesses through their testimony, the contra-
dictions and witness demeanor, I have concluded that
Penegar's testimony is not completely credible and have
credited Stewart, Staton, and Jenkins where their testi-
Unless otherwise specified, all dates herein relate to 1979
mony contradicts that of Penegar and have found that
Respondent violated Section 8(a)(1) and (3) of the Act.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue orally
at the hearing held in Charlotte, North Carolina, on June
11, 1980. Briefs from Respondent and the General Coun-
sel have been received and considered.
On the entire record in this case, including the exhibits
and testimony, and noting the contradictions in testimo-
ny, and my evaluation of the reliability of the witnesses
based on the evidence and their demeanor, I make the
following:
FINDINGS OF FACT
I. COMMERCE FINDINGS AND UNION STATUS
Respondent is a North Carolina corporation operating
a plant in Monroe, North Carolina, where it is engaged
in the manufacture of soft gelatin capsules and related
products. During the past year Respondent received at
its Monroe plant, directly from points outside North
Carolina, raw material and goods valued in excess of
$50,000, and during the same period sold and shipped di-
rectly from its Monroe, North Carolina, plant to points
outside North Carolina finished products valued in
excess of $50,000.
Respondent admits, and I find, that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
Respondent admits, and I find, that the Union herein is
a labor organization within the meaning of Section 2(5)
of the Act.
II1. THE UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
In addition to its Monroe, North Carolina, plant Re-
spondent has what is termed a sister plant in Detroit,
Michigan, which is engaged in the production of similar
products, with similar machines, and over a period of
years had a labor relations contract with the Union. Ac-
cording to testimony, the Detroit plant is being phased
out of existence.
The Monroe plant operates 7 days a week, 24 hours a
day, with 4 shifts and a total of about 100 employees.
Each of the shifts operates for a 12-hour period, from 6
a.m. to 6 p.m. or 6 p.m. to 6 a.m., for 3 days and is then
off 3 days and returns to work another 3-day cycle. The
activity we are concerned with took place on the C shift
which is a day shift and has Penegar as the production
foreman. Clontz apparently heads maintenance for all
shifts and is at the plant varying times during the week
but usually works Monday through Friday during the
day. Both he and Penegar reported to Sherwin Brown
who was the plant manager at the relevant time.
Hal Stewart was a maintenance employee skilled at re-
pairing various pieces of machinery as well as working
on plant equipment such as boilers. Stewart's direct su-
pervisor was Maintenance Manager Clontz. When Stew-
art worked in various departments of the plant, for those
periods he would be under the direction of the manager
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or supervisor of that particular department. Thus when
repairing capsulization machines, on which he worked
almost every day, Stewart would be under the tempo-
rary direction of Penegar.
The Union began an organizational campaign at Re-
spondent in late 1977 and had an election in early 1978,
which it lost by one vote. An International representa-
tive of the Union started another campaign in late 1978
which continued through 1979.
Stewart was active in both campaigns in attempting to
get persons to sign union cards and was one of some five
or six employees who attended a representation hearing
in early 1979 on behalf of the Union. Respondent admits
it knew Stewart was active for the Union.
Penegar had been with Respondent about 3 years and
became a production supervisor on the C shift on Janu-
ary 1, 1979. According to Penegar, in early April he had
a number of complaints about Stewart, feeling that Stew-
art was not cooperating with him, and he spoke to
Clontz and Brown who advised him to speak to Stewart.
He testified that he did so and they agreed to forget their
past differences and shook hands.
Stewart agreed that he and Penegar did not get along
well and stated that other employees did not get along
well with Penegar either. He testified that somewhere
around May or June Penegar accused him of egging on a
fight between two employees which he denied. Some 3
or 4 weeks later, he was having trouble with one of the
boilers and was attempting to get another boiler started
when he was paged by Penegar. Penegar said he wanted
him to take the face off a capsulization machine because
he thought something was stuck inside. Stewart said that
was not the trouble with the machine and he could not
work on the machine right then because he had to get
the other boiler started or else the whole plant operation
would stop. He said Penegar became very angry but that
nevertheless he went and worked on the boiler and then
came back to the machine, removed the head, found that
the trouble was not as Penegar said, but as he had indi-
cated to Penegar, and then fixed the machine.
In August, Stewart had worked on a machine in Pene-
gar's section and was about to go to lunch since the
lunch period for maintenance employees started at 12
o'clock, when Penegar told him to work on another ma-
chine. He told Penegar it was his lunchtime. Penegar
became very angry and told him to work on the machine
anyway. Stewart stayed and worked on the machine and
fixed it in about 15 minutes and went to lunch. When he
returned, the machine was idle since the machine opera-
tor was at lunch. Penegar got very angry with Stewart
again in September because it took Stewart a while to
complete work on a machine which had an electrical
problem. After Stewart completed the repairs, Penegar
sarcastically said he should put Stewart into a white uni-
form, meaning make him a production employee.
Because of these run-ins, Stewart talked to Clontz in
July and Clontz told him not to pay attention to Pene-
gar.
Clontz testified that on occasions Penegar was angry
when he complained about various employees of Clontz.
He felt that Penegar gave his men a rough time and he
had complaints from his men about Penegar's treatment
of them. Stewart talked to Clontz several times about
Penegar's treatment of him. Clontz had no complaints
about Stewart's work. Clontz said he felt Penegar over-
reacted to situations and had a very demanding way of
speaking which sounded angry. Stewart recalled Clontz
telling him in September, when they were discussing
Penegar, that he (Stewart) was doing his work and that
is all he had to worry about.
According to Penegar, Stewart had already gone to
the lunchroom when he stopped Stewart and asked him
to come back and work on the machine, stating that the
machine had just developed difficulties. Jenkins, an em-
ployee who left Respondent after being suspended, testi-
fied that the machine was down and remained down
after Stewart fixed it, and that there had been no hurry
to fix the machine but apparently Penegar was in a
hurry.
Penegar said that on another occasion a belt was slip-
ping on a machine which had been worked on earlier
that morning by another maintenance employee and he
wanted Stewart to take a belt from another machine and
put it on this machine to get it working again. Penegar
said the machine could only have been down 20 minutes
or so because there were capsules in the tray.
Stewart testified that machine had been down for sev-
eral days, awaiting a new belt and that a belt of the
wrong size had been received, was sent back and a new
belt should have been received shortly. There was a dis-
pute as to what was said at that time but after the new
belt was received, apparently later that day, it was in-
stalled.
Penegar said he spoke to Clontz in early September
about the two August incidents concerning machine re-
pairs, but stated that he was not making a complaint
about Stewart but was just giving Clontz information
concerning Stewart.
B. Events of September 14 and 15
According to Stewart, Respondent held a meeting of
employees on September 14 during which an antiunion
movie was shown. Ducett, the southeastern director for
Respondent, was then at the plant and following the
meeting Clontz told Stewart that Penegar had been talk-
ing to Ducett about run-ins that Penegar and Stewart
had. Stewart asked Clontz if he could talk to Penegar
and Clontz said he could.
Clontz stated that on that afternoon he talked to Stew-
art for a couple of minutes and told him of a conversa-
tion with Penegar and said he wanted Stewart to get
along with the supervisors, that it was important to do
so. Clontz made no mention of Ducett in that conversa-
tion and later stated he did not remember telling Stewart
that Penegar had complained to Ducett about Stewart.
On the Monday following that Friday, Clontz wrote an
employee counseling record stating that on Friday after-
noon around 5:15, after having a complaint from a super-
visor that Stewart did not respond as quickly as his su-
pervisor thought he should, and was not as cooperative
as the supervisor thought Stewart should be, he men-
tioned it to Stewart, who replied that he thought he was
doing everything he could do to cooperate and did not
402
R. P. SCHERER (SOUTHEAST) CORP.
know what the other supervisor expected of him. Clontz
wrote in his report that he told Stewart to make every
effort to get along with his supervisor and it was impor-
tant that he do so and asked Stewart to talk to Penegar
and see if they could smooth out their differences.
Stewart went to the capsulization department and told
Penegar he wanted to speak to him in private and they
walked into the maintenance department and stood in an
aisle next to some bins. Stewart asked what Penegar had
told Ducett. Penegar replied that he was a supervisor
and was responsible for his department and was tired of
Stewart holding his people up talking union to them and
if he did not like it they could go outside and settle it.
Stewart turned and went out the door and walked into
the middle of the street. Penegar came outside and stood
on the sidewalk some 15 to 30 feet away. Stewart told
Penegar to come out in the street and settle it once and
for all. Penegar said he would not. Stewart said he
would whip Penegar's "ass" and it would not be on
company property or time. Penegar said if Stewart came
around his house he would kill him. About that time an
employee opened the door and spoke to Penegar and
Penegar started back inside. Stewart told Penegar the
thing needed to be settled once and for all and asked him
to call either Clontz or Brown. Penegar refused to do so
and, since his shift was over, Stewart left and went
home.
Penegar testified that Stewart came to him late on
Friday and said he wanted to talk privately and they
went to the maintenance department and stood next to
the bins. Stewart asked if Penegar were trying to get
stars in his crown and, according to Penegar, Stewart
had his fists clenched. Penegar did not recall any men-
tion being made of Ducett and said that nothing was said
about union activities. According to Penegar, Stewart
said they could settle this outside and he believed Stew-
art wanted to go outside to discuss the matter further
since their voices were getting loud and he felt Stewart
did not want to discuss this in the plant with people
around. He said he had no idea that a physical contest
would be involved in stepping outside. Penegar did not
recall seeing anybody in the area except one man who
was proceeding to his work. When they got outside, he
told Stewart that fighting was no way to settle anything,
but Stewart threatened him, saying he would get him
away from the plant and he told Stewart that if Stewart
came around his house somebody was bound to get hurt.
Penegar testified that he told Stewart he would inform
Clontz and Brown of their meeting. Penegar, however,
made no calls until after he met with the supervisor of
the incoming shift and discussed orders, etc., with him.
Employee Staton, who was then a janitor and has
since been promoted, was seen by Stewart, passing by
while he and Penegar were in the maintenance room.
Staton testified that he had come in through the back
door and went past Stewart and Penegar through the
other door and while passing heard Penegar tell Stewart
he was tired of Stewart going into his area and talking
union. Staton is still employed by Respondent.
Clontz testified that after 6 that evening Penegar
called him at home and said he and Stewart had a run-in
and that Stewart had threatened him. Clontz told Pene-
gar to call Brown.
Brown testified that he talked to Penegar on the phone
about 8 p.m. saying there had been a previous call from
Penegar which he returned. Penegar said he and Stewart
had a run-in and that Stewart had asked him outside and
threatened him with physical violence, saying he would
get him and not at the plant. Brown said he would be in
the plant the next morning to discuss the matter. Al-
though Clontz was off on Saturday, he came to the plant
and spoke to Stewart for a couple of minutes. Stewart
said Penegar had threatened him and accused him of
being a union organizer and he had denied it. About that
time Brown wanted Clontz in his office. Clontz told
Brown of his conversation with Stewart but was not
asked for any recommendations and made none.
Penegar said he was called to Brown's office the next
morning and Brown said he wanted to see if Penegar's
story had changed and said, "Let's hear it." Penegar did
not recite the conversation but merely said he repeated
what he had said over the phone. His testimony was not
exact on that conversation either, with Penegar saying
he gave Brown an exact explanation of what happened
and then Brown told him to return to work. Penegar
also stated that he had been surprised by Stewart's
"jumping him," and that he did not notice anybody else
in the maintenance room and that someone could have
driven a tractor-trailer behind him and he would not
have seen him.
Thus Penegar did not deny that Staton was in the area
and appears to say he was so intent on what Stewart was
saying he would not have noticed anything or anyone in
the area. Another implication given Penegar's makeup
was that he had become extremely angry and was intent
on Stewart. Brown asked Penegar if he had mentioned
union to Stewart and he said no. Penegar said he was not
asked for any recommendation but told Brown that, as a
supervisor, he thought he should not have to take that
type of abuse from an employee.
Stewart reported on Saturday and worked for several
hours before he was called to Brown's office. After
greeting one another, Brown told him he was departing
from the Company, that he had heard the story from his
supervisors, and they were right. Stewart asked if Brown
wanted to hear his side and Brown said no and asked for
his keys, which Stewart gave Brown. He told Brown
that Penegar had accused him of holding up his employ-
ees and talking union to them and Brown asked if Pene-
gar had really said that. He stated that Penegar had.
Brown testified he first spoke to Clontz that morning
and Clontz said he had talked to Stewart who said Pene-
gar had accused him of being a union activist in the
plant. He called Penegar in and Penegar repeated his
story, and denied he had accused Stewart of being active
in the Union. Brown said that Penegar was very upset
on Friday night but confirmed the events again on Satur-
day. Brown called Stewart in and asked him about the
affair. Stewart confirmed it and in effect repeated the
threats that had been made and said that Penegar had
hassled him and it was not warranted. According to
Brown, Stewart said they had stepped outside and Stew-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
art had told Penegar he would get him and not at work
either and Penegar had replied that if Stewart came
messing around his home someone would get hurt. Ac-
cording to Brown, Stewart said he had told Penegar that
he could not stay at home all the time and that he was
going to get him, if not at home, some place else. Brown
told Stewart he could not tolerate that kind of threats
being made and felt he had to terminate him. Stewart
said he was going to the National Labor Relations Board
about it because he had been hassled by Penegar and ac-
cused by Penegar of engaging in union activity. Stewart
is 52 years old, stands about 6 feet, 2 inches, and weighs
around 270 pounds with some of it not being muscle.
Penegar is 35 years old, stands 6 feet tall and weighs 185
pounds.
Barry Jenkins testified that somewhere around Septem-
ber, prior to Stewart's termination, Penegar gave him a
ride home. During the ride Penegar said he was having
troubles with Stewart who was for the Union and he did
not know how to handle it and asked how Jenkins would
handle it, knowing that Jenkins was friendly with Stew-
art. Jenkins demurred, saying that they were friends and
he could not tell Penegar how to do it. Thereafter, ac-
cording to Jenkins, Penegar asked what it would take to
get him to vote for the Union and he replied that, if a
certain person were made a supervisor, he would certain-
ly vote for the Union. Penegar then asked what it would
take to get him to vote for the Company and he an-
swered a cost-of-living raise and some other benefits.
Penegar acknowledged giving Jenkins a ride home on
one occasion and that he talked about Stewart, asking
how he could get along with him but stated he did not
mention union in regard to Stewart. Penegar said there
was a discussion concerning unions, but his testimony
was very hazy concerning that. He said there was some-
thing about votes and what it would take to vote and
Jenkins did say something about a cost-of-living raise.
C. Conclusions and Analysis
From the testimony, it appears that Penegar has a
quick temper and gets angry at what he considers a
slight to his supervisory authority. The testimony shows
he is a very demanding person who is impressed with his
authority and overuses it in an apparent effort to be an
effective supervisor. From his appearance, he appears to
possess very little humor, taking all things, including
himself, very seriously.
Staton's corroboration of Stewart that Penegar ac-
cused Stewart of slowing up his employees talking about
the Union is credited. Staton is an employee recently
promoted by Respondent and has no reason to be biased
against Respondent. Stewart's testimony was fairly con-
sistent and in many places was corroborated by Clontz.
Clontz did not recall, but did not deny, that he had men-
tioned Ducett to Stewart. The Monday, post-termination
counseling report is not derogatory in any sense and, as
Clontz said, Stewart may not have understood he was
being counseled.
Stewart went to Penegar to discuss what Penegar was
saying about him to Clontz and Ducett, and asked to talk
to him in the maintenance room. I conclude and find that
to Stewart's question of what Penegar was saying about
him, Penegar, believing his supervisory authority was
being questioned, became angry and blurted out that as a
supervisor he was tired of Stewart holding up his people
talking about the Union and that, if Stewart did not like
it, they would settle it outside. Stewart accepted the
challenge by turning and going out the door and into the
street. I cannot credit Penegar's testimony that Stewart
asked him outside to discuss it further. Penegar's state-
ment that his attention was so focused on Stewart that a
tractor-trailer could have been driven behind him with-
out his noticing it belies his statements which seek to
give the impression that, since their voices were getting
loud, it was best to go outside. Who would have been
disturbed by loud voices since they each only saw one
person go by and leave the area? Penegar knew fully
well what he said about settling the matter outside but,
once outside, reflected on what was happening and con-
sidered that as a supervisor he could not be in the posi-
tion of challenging an employee to a fight and might be
putting his job in jeopardy and sought to put an end to
it. The threats were exchanged and Stewart asked Pene-
gar to call Clontz and Brown and get the matter settled.
Penegar refused to do so. Stewart, feeling the matter was
at an end, went home.
Respondent sought to make much of Stewart's weight
and size as against Penegar but, considering their respec-
tive ages and the fact that Stewart would be considered
a bit paunchy, I would not consider Penegar over-
matched and probably the odds the other way.
Penegar reflected further on the matter and gave a
slightly altered version of the affair to Clontz and
Brown.
When asked about the matter, Stewart freely admitted
the exchange of threats, feeling that under the circum-
stances of being challenged by Penegar he was free to
say what he said.
Brown, listening to Penegar's version which recited
that Stewart asked him to step outside and then threat-
ened him, decided to back his supervisor on that supervi-
sor's version of the events and fired Stewart.
I find the facts to be different and conclude that Pene-
gar was angry at Stewart for talking union and being a
union proponent (see Jenkins' testimony) and on this oc-
casion boiled over and precipitated the scene and the
threats. Finding that Brown discharged Stewart under a
mistaken view of the events and that the actual events
show that union animus played a significant part in pre-
cipitating the confrontation and that Penegar hid that
from Brown, I conclude that the discharge violated Sec-
tion 8(a)(3) and (1) of the Act.
Penegar's testimony concerning his statements to Jen-
kins were vague and, to some extent, grudging admis-
sions of Jenkins' testimony. I find and conclude that Pen-
egar did mention Stewart's union activities and did ques-
tion Jenkins as to what it would take to get him to vote
for and against the Union. I find that the latter question-
ings violated Section 8(a)(1) of the Act as unlawful inter-
rogation and were not a soliciting of grievances.
404
R. P. SCHERER (SOUTHEAST) CORP.
111. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section II,
above, and therein found to constitute unfair labor prac-
tices in violation of Section 8(a)(1) and (3) of the Act,
occurring in connection with Respondent's business op-
erations as set forth in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
IV. THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set forth above, I recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discharged Hal A.
Stewart on September 15, 1979, and refused to rehire
him, I recommend that Respondent offer him immediate
and full reinstatement to his former or substantially simi-
lar position, without prejudice to his seniority or other
rights and privileges, and that Respondent make him
whole for any loss of pay he may have suffered by
reason of Respondent's discriminatory actions by pay-
ment to him of a sum of money equal to that which he
would have normally received as wages from the date of
his termination until Respondent offers him reinstate-
ment, less any net earnings in the interim. Backpay, with
interest, is to be computed on a quarterly basis in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977). 2 I further recommend that Respond-
ent make available to the Board, upon request, payroll
and other records in order to facilitate checking the
amount of backpay due him and other rights he may be
entitled to receive.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent violated Section 8(a)(3) and (1) of the
Act by its discriminatory termination of Hal A. Stewart
because he engaged in union and concerted activities
with other employees for the purposes of mutual aid and
protection.
2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
3. Respondent further violated Section 8(a)(1) of the
Act by unlawfully interrogating employees about their
union activities and sentiments.
Upon the basis of the foregoing findings of fact and
conclusions of law, and the entire record in this case
considered as a whole, it is recommended that:
ORDER 3
The Respondent, R. P. Scherer (Southeast) Corpora-
tion, Monroe, North Carolina, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discriminatorily terminating employees because
they engaged in union and concerted activities with
other employees for their mutual aid and protection.
(b) Unlawfully interrogating employees about their
union sentiments and activities.
(c) In the same or any similar manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Reinstate and make Hal A. Stewart whole for the
loss of pay he suffered by reason of Respondent's dis-
crimination against him in accordance with the recom-
mendations set forth in the section of this Decision enti-
tled "The Remedy."
(b) Post at its Monroe, North Carolina, plant copies of
the attached notice marked "Appendix."' Copies of said
notices, on forms provided by the Regional Director for
Region II, shall, after being duly signed by an author-
ized representative of Respondent, be posted by Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order what
steps Respondent has taken to comply herewith.
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
405