Converse Bridge and Steel Co.

In the Matter Of CONVERSE BRIDGE AND STEEL COMPANY and INTER- NATIONAL ASSOCIATION OF, BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, SHOPMEN LOCAL UNION No. 526 Case No. C-f546.Decided May 3, 1943 DECISION AND ORDER On March 6, 1943, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had not engaged in unfair labor practices as alleged in the complaint herein, and recommending that the complaint be dismissed, as set forth in the copy of the Intermediate Report annexed hereto. Thereafter, the Union filed exceptions to the Intermediate Report and a brief in sup- port of its exceptions. The Board has considered the rulings made by the Trial Examiner at the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Pursuant to notice, a hearing for the purpose of oral argument was held before the Board at Washington, D. C., on April 22,1943, at which the respondent was represented by counsel. The Board has considered the Intermediate Report, the Union's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations made by the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the complaint against the respondent, Converse Bridge and Steel Company, Chattanooga, Tennessee, be, and it hereby is, dismissed. INTERMEDIATE REPORT Mr. Dan M. Byrd, Jr., for the Board Mr. John S. Fletcher and Mr. S. B. Strang, of Chattanooga, Tenn., for the respondent. Mr. H. G. B. King and Miss Virgina Lee Roberts, of Chattanooga, Tenn., and Mr. Stanley Rounds, of St. Louis, Mo, for the Union. 49 N. L. R. B., No. 48. 374 CONVERSE BRIDGE AND STEEL COMPANY 375 STATEMENT OF THE CASE Upon a charge duly filed on October 5, 1942, by International Association of Bridge, Structural and Ornamental Iron Workers, Shopmen Local Union No. 526, affiliated with the American Federation' of Labor, herein called the Union, the National Labor Relations'Board, herein called the Board, by its Regional Director for the Tenth Region (Atlanta, Georgia), issued its complaint dated January 27, 1943, against Converse Bridge and Steel Company, Chattanooga, Tennessee, herein. called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing thereon were duly served upon the respondent and the Union. With respect to the unfair labor practices the#complaint alleged in substance: (1) that at various times since June 1, 1942, the respondent through certain specified officers, agents, and supervisory employees, refused to meet and discuss grievances with the Union during working hours, although the Union was the exclusive collective bargaining representative of its employees; used reports of investigations of the union activity or other concerted activity of its employees while they were employed by other employers ; and provoked fights with union members because of their membership in and activities on behalf of the Union ; (2) that on or about September 11, 1942, the respondent discharged Harry M. Conley and at all times thereafter has refused to reemply him because of his membership in and activities on behalf of the Union, and because he engaged with other employees in concerted activities for the purpose of collective bargaining and other mutual aid and protection ; and (3) that by the acts above set forth the respondent discriminated in regard to the hire and tenure of Conley's employment and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent filed an answer dated February 3, 1943, admitting the juris- dictional allegations of the complaint but denying that the respondent had engaged in the alleged unfair labor practices. The respondent, in its answer, admits, that it discharged Conley on or about September 11, 1942, and has since that date refused to reemploy him, but avers that Conley was discharged be- cause 'of his unsatisfactory work, inattention to duties, use of abusive language to his superiors, and other similar conduct. The answer further alleges that in any event Conley would have been laid off on September 11 because the work which he was performing as a riveter was discontinued at about that time. Pursuant to notice, a hearing was held on Feburary 11 and 12, 1943, at Chat- tanooga, Tennessee, before William F. Guffey, Jr., the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent, and the Union were represented by counsel and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the close of the respondent's case counsel for the Board moved to amend the pleadings to con- form to the evidence with respect to minor matters. This motion was granted without objection. Although all parties were advised that they might argue orally before the undersigned and file briefs with him, all parties waived oral argument and the filing of briefs. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : 11 376 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD - FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Converse Bridge and Steel Company, the respondent herein, is a Tennessee corporation having its sole office and plant in Chattanooga, Tennessee, where it is engaged in the manufacture, 'fabrication, sale and distribution of structural steel products. During the year 1941, the respondent used ' more than $800,000 'worth of raw materials, approximately 96 percent of which was shipped to the respondent's plant from points outside the State of Tennessee. During the same period, the respondent sold finished products valued in excess of $1,000,000, ap- proximately 23 percent of which was shipped from the respondent's plant to points outside the State of Tennessee. These figures are substantially the same ' ' ' 'for the year 1942 - . II. THE ORGANIZATION INVOLVED International Association of Bridge, Structural and Ornamental Iron Workers, Shopmen Local Union No. 526, is a labor organization, affiliated with the American Federation of Labor, admitting to membership employees of the respondent. IH. THE ALLEGED UNFAIR LABOR PRACTICES - A. The respondent's relations with the Union generally The respondent's relations with the Union began on May 10, ' 1937; when the Union informed the respondent that it represented a majority of the respondent's employees and requested the respondent to execute a contract with' it. P. H. Wood, the respondent's president, testified that he had "good reason" to believe that the Union's claim was true and that he agreed to meet with the Union without requiring any evidence of its claim to represent the employees. On May 11 the respondent and the Union executed a contract. From that date until the pres- ent time the respondent has maintained its contractual relations with, the Union. On September 11, 1941, the respondent and the Union executed a closed shop. contract which, a's amended and supplemented from time to time, is still in effect. President Wood testified that since May 1937, it has been they respondent's policy to maintain harmonious and cooperative relations with the Union. Stanley Rounds, a general organizer for the Union, 'testified that the relationship between the respondent and the Union' was "very harmonious" from 1937 until June 1942. Except for the alleged unfair' labor practices covered by the complaint in the instant proceeding which are alleged'to have occurred since June 1, 1942, there is no' claim of any anti-union animus or conduct on the part of the respondent. • The Board frequently and' properly considers the anti-union attitude and actions of employers when weighing the•evi'dence of alleged unfair labor practices. It is equally proper to evaluate the merits of'alleged violation's of the Act in'the light of an employer's past harmonious relationship with labor organizations. B: The alleged interference, restraint,-and coercion,- The The complaint alleges as interference, restraint, and coercion, the respondent's refusal to meet the Union's committee, and discuss grievances during working hours, its use of reports of investigations of its employees' union or other con- certed activity while they were, employed 'by other employers, and its provoking of fights with union members because of their membership, in, and activity on behalf of the Union. The supplementary union contract which became effective September 11, 1942, provided that differences between the respondent and the Union "will preferably CONVERSE BRIDGE AND STEEL COMPANY 377 be handled by the Shop Committee with,the representatives of the Company after working hours" but that differences "necessitating immediate action will be handled during working hours." The contract between the respondent and the ,.Union also provides that an authorized representative of the Union shall be permitted to visit the respondent's office or plant during working hours to investi- gate any matter covered by the contract so long as he in no way interferes with the progress of work in the plant. It is undisputed that the shop steward, at his will, 'had access to the respondent's general superintendent and vice-president at all times including working hours. It is also undisputed that the Union's shop committee, had access to the respondent's general superintendent and, its vice- president at any time it requested a conference, so long as the conference was held after working hours which ended at 3: 30 p m. The respondent admits that it refused to confer with the shop committee during working hours. There is no evidence that a conference was ever requested concerning any matter which the Union claimed required "immediate action", within the meaning of the contract. In fact, the record does not indicate what type of situation' would require "imme- diate action." R. P Smith, testified that when he became the respondent's general superin- tendent in September 1940, he noticed, on occasion, that several of his key men were absent from their duties, and upon inquiry discovered that they were mem- bers of the Union's shop committee and were in conference with representatives of the respondent He further testified that he informed J. E. Morelock, the respondent's vice-president and plant manager, that he could not maintain pro- duction at a high level when his key men were absent from their work, and that lie demanded that the practice of meeting the Union's shop committee during -working hours be discontinued Pursuant to Smith's demand, conferences be- tween the Union's shop committee and representatives of the respondent,were thereafter held after the working day had ended. Smith's testimony in this respect is corroborated, in substance, by that of Morelock. There is nothing in the Act or in any Board decision, so far as the undersigned is aware, that makes it unlawful for an employer to refuse to discuss grievances with a union committee during working hours. The Act's only reference to this matter is the proviso of Section 8 (2) that "an employer shall not be, prohibited from permitting employees to confer with him during working hours without loss of time or pay." That proviso is directly related to the Act's proscription of employer support of a labor organization. It does not bestow or protect ,any right to be heard during working hours. - The undersigned finds that the respondent refused to meet with the Union's shop committee during working hours, and that the respondent's refusal so to meet does not constitute a violation of the Act. As to the allegation that the respondent used reports of investigations of its employees' union or other concerted activities while they were employed by other employers, the only relevant evidence is as follows: ,Harry ^1. Conley, whose alleged discriminatory discharge is discussed herein- after, worked for the respondent from 1923 to 1933, at which time he voluntarily left the respondent's employ and began working , for Signal knitting Mills. Conley was reemployed by the respondent in 1937. President Wood 'testified that about a week after, Conley was reemployed, a Mr. Murphy, an official of Signal Knitting Mills, told him that Signal Knitting Mills was ' pleased that 'the respondent had,hired Conley because "He is con- tentious and has caused a lot of trouble with his foreman and his inability to get along with the other men or with the other employees." According to Wood's credible and undisputed testimony, Conley's union affiliations or activities were not mentioned by Murphy at that or any. other time: When Wood returned to f 378 DEGIFSJONS OF NATIONAL LABOR RELYMONS BOARD the plant, he told Vice-president Morelock that lie had just learned that he had hired Conley and that Conley had been a "trouble maker" at his previous place of employment . Morelock replied that Conley had been a satisfactory employee during his previous period of employment and that he would continue to employ Conley unless President Wood seriously objected. In 1941, Conley was transferred from the riveting crew, where lie had earned 80 cents , an hour , to a job as operator of the , shears which paid a lower rate than that of, a riveter. Conley testified that at about that time , Vice-president Morelock told . him, however , that his wage rate would not be decreased; that the respondent considered Conley one of its old employees and wanted Conley to feel that way ; that Murphy had told President Wood that when the respondent hired Conley it had done Signal Knitting Mills a favor because Conley "was one of the worst labor agitators" that Murphy had ever seen ; and that the respondent "didn't pay any attention " to Murphy's remarks Vice-president Morelock's version of his statements to Conley . on this occasion is substantially the same as Conley's except that Morelock denied that he used the term "labor agitator" when speaking of Conley's previous employment . He testified that he knew nothing about Conley's union activities at Signal Knitting Mills and did not even know whether or not they had a union at that plant. He further testified that President Wood had told him about Murphy's statement concerning Conley, but that Wood had not mentioned Conley's union activities at Signal Knitting Mills. Morelock and Wood testified that the respondent had made no inquiry concerning Conley's or any other prospective employee's union activities at other places of employment. - Joseph D. Gould , a field examiner for the Board , testified that on October 22, 1942, he had a conference with John S Fletcher , the respondent's counsel, con- cerning the unfair labor practice charges filed by the Union . Gould testified that during this conference Fletcher stated that one of the reasons for the refusal to rehire Conley was that Fletcher had "found out that two years previously Conley had been a disturbing element in other plants in this area ,", and that Fletcher refused to elaborate upon that-statement. Fletcher testified that in his con-' ference with Gould he stated that the respondent knew that Conley had "been very contentious and had caused a lot of difficulty in his former place of employ- ment." He further testified that he did not tell Gould , and did not have in his mind that Conley's contentiousness had anything to do with labor activities' He further testified that he did not tell Gould that the respondent 's information concerning Conley's contentiousness had been obtained through any inquiry by the respondent , and that' as a matter of fact no such inquiry had ever been made. Considering all the evidence relevant to this matter , the undersigned can not credit Conley's testimony that Morelock stated that the respondent had learned that Conley was a "labor agitator ". Conley's testimony on many matters is vague and indefinite When questioned by the respondent 's counsel and by the Trial Examiner, Conley at times was a reluctant witness and gave inconsistent testimony.' As the undersigned observed Conley on the witness, stand, he was i For example, Conley, on cross -examination , first testified that on one occasion he called Superintendent Smith a "damned rascal." When pressed by counsel with respect to this incident, he grudgingly admitted that he "probably" used a different and quite obscene epithet In addition, Conley was instrumental in calling an unauthorized strike on August 6, 1942 In his testimony with respect to this incident, Conley, on cross-exami- 'nation, flatly denied having anything to do with calling the strike. When questioned by the Trial Examiner in this regard Conley testified that he told a couple of employees to inform the men that he was going to quit work at two o'clock. Upon further questioning he admitted that at two o'clock he and another employee gave a signal to the men which initiated the strike . The strike terminated,on August 10, 1942, when Conley and the rest of the employees returned to work. I CONVERSE BRIDGE AND STEEL COMPANY , 379, not favorably impressed Nor is he favorably impressed by Conley's testimony considered as a whole Except where his testimony is corroborated by credible witnesses, the undersigned is not inclined to give credence to it. Morelock, on ,the other hand, was a forthright and honest witness. He made no attempt to withhold damaging' evidence. The undersigneC accepts his denial of Conley's accusation and finds that Morelock made no reference to union activities during his above-related conversation with Conley It is further found that Murphy's statement to Wood concerning Conley's contentiousness while employed by Signal Knitting Mills was voluntarily made by Murphy to Wood during a chance meeting of the two and without any inquiry on the respondent's part, and that Murphy's statement to Wood included no mention of Conley's union activities It is further found that there is no credible evidence that the respondent used reports of investigation of the union or other concerted activities of its employees while they were employed by other employers With respect to the allegation that the respondent provoked fights with union members because of their membership in and activity on behalf'of the Union, the only relevant evidence concerns an altercation between Vice-president More- lock and Conley which occurred on August 10, 1912. Concerning this altercation Conley testified that near the end of the working day Morelock led him to the sidewalk in front of the plant and there stated to Conley: "You can walk under a- snake's belly without taking your hat off If you were ten times the man you are, you would be lower down than a bastard " Conley testified that More- lock then blocked the way back to the plant and that he slapped Morelock with a glove which he had in his hand, and that Morelock then "tore into [Conley] with both fists " Conley further testified that at a hearing on a peace warrant which lie swore out against Morelock, the,latter testified that he spoke to Conley as he did on August 10 because of "the way [Conley] handled the union." It was stipulated that Virginia Lee Roberts, one of the Union's attorneys of record herein, would,, if called as a witness, corroborate Conley with respect to Morelock's testimony at the peace warrant hearing. Morelock admitted at the hearing before the undersigned that he made sub- stantially the remarks attributed to him by Conley. He further testified- that while he was talking to Conley, the latter kept striking Morelock in the face with a glove,2 and after he had finished talking and started to walk back to the office Conley struck him on the shoulder at which point Morelock, according to his own testimony, "turned around and let him [Conley] have all I [Morelock] had." Morelock's description of the altercation is corroborated by J H Botsford, the respondent's estimator and safety engineer , who witnessed the fight and helped separate Conley and Morelock Morelock testified that at the peace warrant hear- ing he stated that his remarks to Conley were "not because of his union activities, but it was because of his manner in which he was carrying them out." At the hearing before the undersigned Morelock characterized Conley's manner as "obstreperous and impudent and insulting" Morelock attributed his action on August 10 to his inability longer to tolerate Conley's reprehensible conduct toward his superiors and especially his failure properly to appreciate Morelock's defense of him in his repeated controversies with Superintendent Smith. It is clear from the record that on September 11, 1940, the day after Smith became plant superintendent, he complained to Morelock about Conley' s inatten- tion to his duties and indicated to Morelock that he was thinking of replacing Conley. Morelock told Smith to give Conley an opportunity to improve. Smith 2 Conley denied striking Morelock before Morelock struck him . The undersigned does not credit Conley's denial. I 380 DECISION S OF NATIONAL • LABOR RELATIONS BOARD repeatedly complained of Conley's work during the following two years. Each time such a complaint was made Morelock interceded on Conley's behalf and prevented Smith from discharging Conley. On one occasion in 1941 Smith found Conley in the wash room and told him to return to work. Conley said that his visit there was necessary and he would return to work when he was ready. Conley complained to Morelock about Smith's reprimand. When Morelock in- quired what Conley was doing in the wash room, Smith, who was present, stated that Conley was "standing there talking " Conley then turned to Smith and said, "You' are just a damned liar." On August 4, 1942, Conley showed his contempt for Smith by calling him a "damned rascal" or a different and quite obscene name, because Smith refused to meet the Union's shop committee during working hours. On August 6, Conley was instrumental in calling a clearly unwarranted and admittedly unauthorized strike e, The employees returned to work on August 10. On that day Smith complained to Morelock that Conley was loafing again and asked Morelock to verify the complaint. According to Morelock's credible and' undenied testimony, he went to the plant where he observed Conley talking to three other employees which kept all of them away from their work. Morelock testified that this observation caused him to ponder Conley's conduct during the past two years, and that after a while he "finally lost [his] head and got mad." Thereafter the altercation between Conley and Morelock ensued. The undersigned credits Morelock's and Botsford's version of the altercation. The undersigned is convinced that Morelock acted as he did toward Conley, not because of. Conley's union activities, but because of the cumulative effect on Morelock of Conley's conduct during the preceding two years Some of Conley's objectionable conduct was closely related to the discharge of his duties, as an officer of the Union. The undersigned, however, accepts Morelock's statement that his action against Conley on August 10 was provoked, not by Conley' s union activities, but rather by Conley's lack of appreciation of Morelock's efforts in his behalf and by Conley's high-handed and offensive manner in conducting his union affairs. The respondent's long history of amicable relations with the Union, precludes a finding that Morelock's action was -retaliation for Conley's union activity. The Act protects employees in their right to organize, join, and, assist labor organizations. It does not require an employer to wink at insubordina- tion, inefficiency, disrespect, and similar derelictions. The protection of,the Act should not be used as a mantel for every kind of reprehensible conduct. The Board has recently so held' - The undersigned finds that the allegations of the complaint that the respondent interfered with, restrained, and coerced its employees in the exercise of their rights as guaranteed in Section 7 of the Act, by refusing to discuss grievances during working hours, using reports of its employees' union activities at other places of employment, and provoking fights with union members are not supported by the evidence. , 0. The discharge. o f Harry M. Conley - The complaint alleges that on or about September 11, 1942, the respondent discharged Harry M. Conley, and since that date has refused to reemploy him because of his union membership and activity. The respondent, in its answer, admits the discharge and the refusal to reemploy, but avers that its action is the result of. Conley.'s unsatisfactory work, inattention to duties, and use of abusive language in speaking with his superiors. Since the contract in effect on, the date of'the'strike prohibited work stoppages unless amicable means including arbitration were exhausted in an effort to prevent such action, the walkout on August 6 was clearly a violation of the contract. 11 Matter of Wilson & Company, Inc., 43 N. L. R. B. 804 , 819-20. i CON'V'ERSE ' BRI-DGE ' AND' -STE'EL - COMPANY ^ 381 Conley was employed by. the respondent from 1923 to 1933, and from 1937 until his discharge; a total of approximately 15 years. His work was admittedly satisfactory until about 1940. In June 1942 Conley was elected president of the Union. Prior to that.time he had been the Union's financial secretary and treas- urer. From the early part of July 1942 until his discharge, Conley participated as a representative of the Union, in many 'bargaining conferences with the respondent. Apart from the antagonism between Conley and Smith, as disclosed by the record, and Conley's role in the strike and the altercation between Conley and Morelock on August 10,° these are the only facts which would tend to indicate a discriminatory motive for the discharge.' Conley was discharged by President Wood. Wood testified that he had heard so much criticism of Conley's work from Morelock and Superintendent Smith that during the last 3 weeks of Conley's employment he (Wood) observed Conley at his work and concluded that the criticism was warranted. Wood testified that after his observation of Conley he decided to discharge Conley and on or about September 11, he'told the timekeeper to give Conley his separation notice. A separation notice dated September 11, 1942, stating that Conley was discharged on September 10 because of unsatisfactory service, was mailed to Conley who received it, together with his accrued wages, on September 19. The record contains considerable evidence in support of the respondent's asserted reasons for discharging Conley. The evidence generally is to the effect that Conley was a good riveter but a poor shearman and that he loafed on both jobs. Smith became the respondent's general superintendent on Septem- ber 10, 1940. At that-time Conley was employed as a rivet driver.' The rivet driver is the lead man on a crew of four and is responsible for the production of his crew. ' Smith testified that on his first day as "superintendent he' noticed that all the riveters were lax and on the second day he spent most of his- time with the riveting crews. He further testified that most of the men improved but that the work of Conley's crew was much below par and he was compelled to tell Conley that if he "didn't stand up and get going on the job that I- [Smith] would not only discharge him [Conley] but the entire gang.", Conley, accord- ing to Sniith, would sit down and leave certain portions of his work in, the bands of other members of his crew. Smith further testified that after his first warning, Conley was "spasmodic"-one day-his attitude and conduct would The undersigned has found above that these incidents disclose no antiunion animus on the respondent's part- As found above, the record does not-support .a finding that the respondent used reports of investigations' of its employees' union activities at other plants; or that such alleged reports labeled Conley a "labor agitator," or that Morelock called Conley a "labor agi- tator " Some evidence was adduced for the purpose of showing that about a month before Conley's discharge, the respondent showed some concern over reports it had received that 'Conley was leading au'attenipt to'establish'a C. I. 0 union in'the plant. From all the relevant evidence the undersigned finds that in the latter part of 1941 , after the respondent had signed a closed-shop contract with the Union, Harry Wilcox, then president of the Union, complained to Morelock and Smith that some employees , including Conley, were trying to shift, to the C. I 0 'and sought the respondent's advice in the matter; that the respondent then 'stated that it'could'take no action in the'matter until the Union did; and that Sm°th , on August 13, 1942, told Stanley , Rounds, a general organizer for the Union, that he [Smith ] understood that Conley "is instrumental in some C. I. 0. stuff around the plant." It is fuither found that Smith's remark to Rounds 'are of no significance insofar as Conley's alleged discriminatory discharge is concerned - 4 Conley testified that he was operating the shearsT when Smith became superintendent and that shortly thereafter he became a rivet driver .. Smith•and Morelock testified-that Conley was a rivet driver when Smith became superintendent . It has been found above that Conley was in many matters not a credible witness: His over-all testimony , as well as that of 'Smith' and Morelock;' leads'the undersigned to'credit them 'and not him'with respect to'the nature of his employment in September 1940. •r.. ,^• ;i t . ,^ , r' T, . . , , 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be satisfactory and the next day he would"drift back" to his old habits. Ac- cording to Smith, Conley and his crew on one day drove only 346 rivets while another crew drove almost 900. Smith and Morelock testified that Smith com- plained to Morelock that Conley_ was a slacker and would not work and asked that Conley be discharged. They also testified that Morelock told Smith he must be mistaken about Conley since his work during a previous period of em- ployment had been satisfactory, that he told Smith to try to correct Conley's faults, and that he refused to permit Smith to discharge Conley: Similar complaints about Corley's unsatisfactory work and inattention to duties were made by Smith to Morelock' from time to time. Morelock testi- fied that in 1941 he spoke to Conley concerning the complaints about his work and asked him why he continued "trying to buck Smith all the time." Conley, according to Morelock, agreed that he had had the wrong attitude and promised to improve. The testimony of Morelock and Smith concerning Conley's unsatisfactory work as a rivet driver is corroborated by that of J. W. O'Neal, the respondent's assistant superintendent. O'Neal testified that there were times when Conley was a good riveter but that he frequently found Conley away from his work talking to other employees. In the latter part of 1941, the volume of the respondent's riveting work be- gan to decline. About that time Joe Engle, operator of the plate shears, was made stock yard foreman. Pursuant to Morelock's suggestion Conley replaced Engle as operator of the plate shears. Smith testified that Conley was slow, on the shears, that he frequently found Conley standing near the shears talk- ing to other employees, and that the lay-out department complained that it could not produce its expected quota because of the hold-up'on the plate shears. Smith and Morelock testified that while Conley was working on the shears the plates were improperly cut and the welding edges would not fit. About three months before Conley's discharge the respondent obtained a rush order for plate girders which required a temporary riveting crew. There were other employees capable of operating the plate shears and Conley was put on the temporary riveting crew. He continued to work principally on the riveting crew until his discharge. This period of Conley's employment, according to the respondent' s witnesses, continued to be unsatisfactory. President Wood's testimony concerning his observations of Conley's work during the last three weeks of his employment has already been noted. Smith testified that from August 10 until Conley's discharge, he repeatedly found Conley away from his work, walking around and talking to other employees. At times, according to Smith, Conley was away from his work for so long that the other members, of his crew operated without him, and on several occasions Smith drove rivets in Conley's place because of the necessity of getting the work done. Smith's testimony in this respect is corroborated by Morelock and O'Neal. Conley testified that no complaints were ever made to him about his work. Morelock, Smith, and O'Neal, on the other hand, testified that at,various times from'September 1940 until Conley's discharge, they told Conley about his inatten- tion to his duties and his poor work on the shears. On cross-examination, Conley admitted that in 1941 Smith criticised him for being away from his work and that he [Conley] complained to Morelock about Smith's reprimand. The undersigned credits the testimony of Morelock, Smith, and O' Neal concern- ing Conley's unsatisfactory ,work, his inattention to duties and the fact that=these derelictions were brought to Conley's attention. It is found that during the'two years preceding Conley's discharge, his work was not satisfactory, he frequently and unnecessarily absented himself from his place of work, and these complaints I CON'VE'RSE BRIDGE AND STEEL COMPANY . 383 were brought to his attention with warnings that his attitude and conduct while at work must improve 8 There also is convincing evidence of Conley's use of profane and sometimes obscene language in speaking to and about his superiors Morelock and'Smith testified in general terms concerning Conley's use of profanity or other disrespect- ful language when speaking to and of his superiors. O'Neal testified that just a few weeks before Conley's discharge he asked Conley to rush a certain piece of work and Conley replied: "Oh, to hell with you, . . . you and Smith would, both like to see me work for 25 cents an hour " Conley admitted that on one occasion be called Smith a "damned liar," and that on another occasion he called Smith either a "damned rascal" or used another appellation more foul than profane the repetition of which would add nothing but bad taste to this discussion. The undersigned finds that the respondent's assertion that Conley used abusive language in speaking to his superiors is supported by substantial evidence. It may be argued that the probative value of the evidence of Conley's unsatis- factory work is weakened by the fact that he was paid more than the minimum rate specified in the contract between the respondent and the Union, and that in January 1942, and again just a few days before his discharge, he received wage increases of five cents per hour. It is clear, however, that many employees earned more than the contract minimum. According to Smith's credible and undisputed evidence, there were about 82 such employees out of a total of 120 employees. Moreloek and Smith testified that Conley's increase of January 1942 was given to -him as compensation for keeping a record of materials which lie sheared, an additional, task imposed at the time the increase was given. More- lock further testified that -Conley's increase just prior to his discharge was one among several rate increases on certain job classifications which the respond- ent and the Union negotiated at that time. The undersigned credits the testi- mony of Morelock and Smith, and finds that no significance attaches to Conley's wage rates or increases. Some question may be raised as to the reason why the respondent delayed Conley's discharge for two years after the first complaints about his work were made. The answer provided by the record is that Superintendent Smith re- peatedly asked that Conley be discharged and Morelock, remembering Conley's previous satisfactory employment, insisted that Conley be given every oppoitu- nity to improve: Moreloek testified that he did not discharge Conley after his conduct became particularly offensive in July and August because the respondent and the Union were then engaged in adjusting certain grievances and negotiating a supplemental contract, and it was not desirable to jeopardize the negotiations by discharging the Union's president at that time. This was especially true, 8 For the purpose of showing that Conley 's work was not unsatisfactory, statements of recommendation of Conley signed by six of the respondent's supervisors were intioduced in evidence. These statements are entitled to very little weight for several reasons Five of the six who signed them are members of the Union. The sixth left the respondent's employ in Septembei 1940, and could have no direct knowledge of Conley's work during the pea old in question. Of the five who were employed by the respondent during the period in, question only one of them, according to Smith and Morelock, ever had duect supers isrou of Conley, and he had only during rare intervals when Conley worked foe shoe t period" on the fit-up gangs. Except as it relates to Floyd Wilson, yard foieman, the testimony of Smith and Moreloek is contradicted only by Conley and the recommendations theniselvi s. For reasons heretofore stated , the undersigned is unwilling to credit Conley in this matter. The recommendations are unsworn and are dated subsequent to the filing of the charges giving rise to this proceeding They do not merit the weight which ordinarily attaches to testimony under oath Wilson was the only supervisor to testify that Conlev's work came under his supervision . Smith and Moreloek weie credible witnesses and the undeisrgned accepts their testimony as against Wilson s. In passing, it should be noted that Wilson testified only concerning his supervisory duties and not about the quality of Conley's woe k-. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Morelock testified, in view of,the fact that the gradual tapering off of riveting would soon solve the problem by Conley's lay-off for lack of work. The under- signed credits Morelock's testimony; and finds accordingly. The undersigned is favorably impressed with the amicable and harmonious relations which, as the record shows, existed from the date of the Union's first request for recognition in May 1937 until about June 192 when Conley was elected president of the Union. The record discloses that throughout the history of its relationship with the 'Union, the respondent's conduct was exemplary; no evidence of anti-union bias is revealed in support of the allegations of interference, restraint and coercion. In view of this background , the undersigned is convinced that the totality of the evidence cannot realistically be interpreted so as to justify an inference of discriminatory motive with respect to the respondent 's discharge of Conley in September 1942. The undersigned finds that ' the respondent discharged Conley on or about September 11, 1942, because of his unsatisfactory work, his inattention to his duties, and his use of profane and abusive language toward his superiors, and not because of his membership in or activity on behalf of the Union.' Upon the basis of the foregoing findings of fact and upon the entire record in the case the undersigned makes the following : ^ CONCLUSIONS of LAW 1. Converse Bridge and Steel Company, the respondent herein, is engaged in commerce within the meaning of Section 2 ( 6)- of the Act. 2. International Association of Bridge, Structural and Ornamental Iron Workers, Shopmen Local Union No. 526, is a labor organization within the mean- ing of Section 2 (5) of the TAct. 3. The respondent has not engaged in unfair labor practices within the mean- ing of Section 8 (1) or (3) of the Act. RECOMMENDATIONS Upon . the basis of the foregoing findings of fact and conclusions of law, it is recommended that the complaint against the respondent , Converse Bridge and 'Steel Company, Chattanooga, Tennessee , be dismissed. - As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 2-as amended , effective October 28, 1942-any party may within fifteen (15) days from the date of the entry of the order transferring the case to the Board , pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Shoreham Building, Washington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or pro- ceeding ( including rulings upon all, motions or objections ) as he relies upon, together with the original and four copies of a brief in support thereof As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must'be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. Dated March 6, 1943 WILLIAM F. GUFFEY, JR. Trial 'Euariner. ° On September 11, Assistant Plant Superintendent O'Neal, unknown to President Wood, laid Conley off for lack of riveting work. The complaint does not allege the lay-off to have been discriminatory . Considerable evidence was adduced, however, for the purpose of 'showing discrimination . Since it has been found that Conley was discharged for cause on the same day, it is unnecessary to discuss the lay-off.