Metallic Building Co.

386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ConcLusIoNs of LAw 1. The Respondents Ben Weingart, Louis H. Boyar, and Aetna Construction, Inc., are engaged in activities affecting commerce within the meaning of Section 2 (6) and ( 7) of the Act. 2. The Respondent Union, Local No. 300, International Hod Carriers , Building and Common Laborers Union of America , A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating with respect to the hire and tenure of employment of Wilbur F. Merrick , thereby encouraging membership in the Respondent Union, Respondent Employers had engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By interfering with , restraining, and coercing their employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent Employers have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. By causing the Respondent Employers to discriminate against an employee in violation of Section 8 (a) (3) of the Act, the Respondent Union has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (b) (2) of the Act. 6. By restraining and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A ) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and ( 7) of the Act. [Recommendations omitted from publication in this volume.] METALLIC BUILDING COMPANY (A PARTNERSHIP) and HUGO S. BAKER, ET AL. Case No. 39-CA^59. February 09,195,0 Decision and Order On March 20, 1950, Trial Examiner Hamilton Gardner issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices. Thereafter, the Respondent and the General Counsel filed exceptions to the Inter- mediate Report and supporting briefs.' On June 13, 1950, the Board reopened the record and remanded the case to the "trial Examiner for the limited purpose of a further hear- ing to adduce additional evidence with regard to the commerce facts involved. On December 26, 1951, a stipulation by the parties, con- 1 The Respondent's request for oral argument is hereby denied because the record and the exceptions and briefs, in our opinion, adequately present the issues and the positions of the parties. 98 NLRB No. 64. METALLIC BUILDING COMPANY 387 taining the information required in the Board Order of June 13, 1950, was filed with the Board.2 This stipulation is hereby made a part of the record. -Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Styles]. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby af- firmed. The Board has considered the Intermediate Report, the ex- ceptions and briefs, the commerce stipulation of the parties, and the entire record in the case, and hereby adopts the findings,3 conclusions,4 and recommendations of the Trial Examiner, with the following addi- tions and modifications : 1. On the entire record and the stipulation of the parties, the Board finds that the Respondent is engaged in commerce within the meaning of the Act. The Respondent is a copartnership presently engaged in the fabrication of steel and other building materials used in the erec- tion of industrial structures. Among the Respondent's customers is Brown and Root, Inc., which has offices in Houston, Texas. During the calendar year 1949, the Respondent's sales to Brown and Root were in excess of $50,000. The Board has already found that Brown and Root is engaged in commerce within the meaning of the Act.' The Board has announced in recent decisions that it would exercise jurisdiction over those enterprises which affect commerce by virtue of the fact that they furnish goods or services necessary to the operation of other employers engaged in commerce, without regard to other factors, where such goods or services are valued at $50,000 per annum or more, and are sold to firms in certain categories, including those "engaged in producing or handling goods destined for out-of-State shipment, or performing services out of State, in the value of $25,000 per annum or more." 6 In the instant case, it is stipulated that during ' While the remand Order provided for a further hearing and supplemental findings of fact, the stipulation contains the relevant facts, and thus obviates the need for a Supple- mental Intermediate Report. ' Contrary to the Respondent's contention, we agree with the Trial Examiner 's finding that Houston Metal Trades Council, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. In addition to the cases cited by the Trial Examiner, see Olin Industries, Winchester Repeating Arms Company Division, 85 NLRB 396 ; Dun & Brad- street, Inc, 80 NLRB 56 ; J. S. Abercrombie Company, 83 NLRB 524. " The Intermediate Report contains a misstatement of fact which does not affect the Trial Examiner 's ultimate conclusions or our concurrence therein Accordingly , we note the following correction : The Trial Examiner states that Baker was never told that one of the reasons for his discharge was that he talked too much. The record discloses that Baker testified that one of the last statements Sternberg made to him when he was dis- charged was that "the reason I fired you is because you talk too much." - 5 77 NLRB 1136. 'Hollow Tree Lumber Company , 91 NLRB 635; Walter G. Brix, Inc, 96 NLRB 519; Stoll Lumber Company, 96 NLRB 682. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the year 1949, Brown and Root produced more than $25,000 worth of goods for out-of-State shipment. Furthermore, the Respondent's sales to Brown and Root during the same period exceeded the $50,000 requirement. Accordingly, on this basis alone, under our policy we find in agreement with the Trial Examiner that it would effectuate the purposes of the Act to assume jurisdiction in this case. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Metallic Build- ing Company, Houston, Texas, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in Houston Metal Trades Council, AFL, or in any other labor organization of its employees, by discrimi- natorily discharging, refusing to reinstate, or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of employment, except to the extent permitted by Section 8 (a) (3) of the Act. (b) Interrogating its employees concerning their union affiliations, activities, or sympathies, or in any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Hous- ton Metal Trades Council, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Hugo S. Baker immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Make whole Hugo S. Baker and L. B. Hightower for any loss of pay they may have suffered by reason of the Respondent's discrimi- nation against them, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (c) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other rec- METALLIC BUILDING COMPANY 389 ords necessary to analyze the amounts of back pay due and the right of reinstatement under the terms of this Order, which shall be computed in accordance with.the Board's-customary formula? (d) Post at its plant in Houston, Texas, copies of the notice at- tached hereto marked "Appendix A." 8 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Sixteenth Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER' ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent discriminated in regard to the hire and tenure of employment of Benjamin E. Chester, George H. Bonner, and Jesse L. Botello. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in HOUSTON METAL TRADES COUNCIL, AFL, or in any other labor organization of our employees, by discharging or refusing to reinstate any of our em- ployees or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment. WE WILL NOT interrogate our employees concerning their union affiliations, activities, or sympathies or in any other manner inter- fere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist HOUSTON METAL TRADES COUNCIL, AFL, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities F. W. Woolworth Company, 90 NLRB 289. , In the event this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 998666-vol . 98-53-26 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer to-the employee named below immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suf- fered as a result of the discrimination against hint : Hugo S. Baker - WE WILL offer to make the employee named below whole for any loss of pay suffered as a result of the discrimination against him : him : L. B. Hightower All our employees are free to become or remain members of the above-named- union, or any other labor organization, or to refrain from such activities except to the extent that such right may be af- fected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. We will not discriminate in regard to hire or tenure of em- ployment against any employees because of membership in or activity on behalf of any such labor organization. METALLIC BUILDING COMPANY ( a PARTNERSHIP), Employer. • (Title) (Representative) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE These proceedings arose upon a charge filed on June 14, 1949, by Hugo S. Baker, on behalf of himself and Benjamin E. Chester, L. B. Hightower, Jesse L. Botello, and George H. Bonner against Metallic Building Company, a copartner- ship. Upon the basis of such charge, the General Counsel of the National Labor Relations Board, acting through the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued a complaint against the named Company on Sep- tember 8, 19491 This alleged that the Company had engaged in and was engag- ing in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and 8 (a) (3) and Section 2 (6) and (7) of the Labor-Management i References in this Report will be : Metallic Building Company as the Respondent or the Company ; the General Counsel and his representative at the hearing as the General Counsel ; Houston Metallic Trades Council, AFL , as the Union ; the National Labor Relations Board as the Board ; the Labor Management Relations Act' as the Act. - . METALLIC BUILDING COMPANY 391 relations Act, (61 Stat. 136). Copies of the complaint and of the charge upon which it was based, together with notice of hearing thereon, were duly served upon the Respondent and the charging parties. The complaint alleged in substance that the Respondent engaged in unfair labor practices : ( 1) On January 25, 1949, by discharging Hugo S. Baker and on January 26, 1949, by discharging Benjamin E. Chester , L. B. Hightower, Jesse L. Botello, and George H. Bonner and by refusing to reinstate them, except that the Respondent reinstated L. B. Hightower on or about March 4, 1949 ; and (2) on and since January 24, 1949, by interfering with, restraining, and coercing its employees concerning their union affiliations and threatening and warning them to refrain from union activities. Thereby, it alleged , the Respondent had deprived its employees of the exercise of the rights guaranteed in Section 7 of the Act. The Respondent filed an answer to the complaint which , in substance and effect, constituted a general and specific denial , but alleged affirmatively that it discharged the six named employees "for good and sufficient cause," and admitted the reinstatement of Hightower . Simultaneously with its answer, the Respond- ent filed a "Motion for a More Definite Statement" demanding the names of its employees against whom it is alleged to have violated Section 8 ( a) (1). Pursuant to notice, a hearing was held in Houston , Texas, from September 20 through 29, 1949, before Hamilton Gardner, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner . At this hearing two of the charging parties, Jesse L. Botello and George H. Bonner , were not present and no proof was adduced concerning the facts of their discharge as alleged .in the complaint. On the completion of the General Counsel's case in chief and again at the conclusion of the hearing, counsel for the Respondent moved to dismiss the complaint as to Botello and Bonner . The Trial Examiner took these motions under advisement . They are now denied . On his part the General Counsel affirmed in open hearing that he had endeavored to locate Botello and Bonner and had not been able to do so. At the end of the hearing, the General Counsel stated for the record that if he were unable to locate these two men before October 25, 1949, he would move to dismiss the case as to them, without prejudice. On October 25, 1949, the General Counsel filed a telegraphic application with the Trial Examiner to reopen the hearing for the purpose of presenting proof as to the discharge of Botello and Bonner and alleged that they were presently available. Counsel for the Respondent resisted the motion . On November 21, 1949, the undersigned signed and entered an order reopening the hearing for the purpose mentioned and set December 19, 1949, at Houston, Texas, as the date and place of its reconvening. Thereupon counsel for the Respondent filed a motion and supplemental motion to set aside the order of November 21, 1949. Pursuant to such order the undersigned reopened and reconvened the hearing at Houston, Texas, on December 19, 1949. The motion and supplemental motion of the Respondent, mentioned above, were argued at length, considered by the undersigned , and denied. Thereupon the hearing continued through December 19 and 20, 1949. In their supplemental brief counsel for the Respondent present the argument that the Trial Examiner committed error in denying their motions to set aside the order of November 21, 1949, which reopened the' hearing. Cases from several States are cited. But all these are interpretations of local statutes dealing with motions for a new trial . In my opinion the present situation is quite different. Section 203.35 of -the Board's Rules and Regulations reads in part: 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The trial examiner shall have authority, with respect to cases assigned to him, between the time he is designated and transfer of the case to the Board, subject to the Rules and Regulations of the Board and within its powers : - (h) . .. and to order hearings reopened prior to issuance of intermediate reports (recommended decisions), No conditions precedent to the issuance of such orders are otherwise enumer- ated, nor has any decision of the Board applicable to the point been found. I regard this contention of counsel as untenable. At both phases of the hearing the General Counsel and the Respondent were represented by counsel. and the Union by an authorized representative. Full opportunity was afforded all parties to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. During the course of the hearing, at the ending of the case in chief of the General Counsel, and at the conclusion of the introduction of evidence, both the General Counsel and,the Respondent made various motions as to the pleadings and the evidence (too numerous to mention in the limited space in this Report). Some of these were taken under advisement by the Trial Examiner. Except as such motions are granted as made or as modified in this Report, they are hereby denied. At the end of the hearing the undersigned granted a motion of the General Counsel, to which no objection was made, to amend the pleadings in minor matters to con- form to the proof. Oral arguments were made at the beginning and at the end of the hearing by both counsel. The parties were advised of their right to file proposed findings of fact, conclusions of law, and briefs. The Respondent submitted a brief and a supplemental brief. The General Counsel filed no brief. On or about December 28, 1949, the Respondent filed its motion to reopen the hearing again. An accompanying affidavit set forth that Jesse L. Botello, a charging party and witness, had been convicted of forgery in a Texas court on August 18, 1941. On January 27,19-50, the General Counsel filed a written state- ment that the facts stated in the affidavit might be considered by the Trial Examiner as true and correct. Accordingly on February 15, 1950, the under- signed signed and entered an order denying the Respondent's motion to reopen the hearing for the second time. Upon the entire record in the case, and from my observation of the witnesses, I make the following : FINDINGS of FACT I 111E RUSI1Ehs OF' THE RESI-ONDENT Metallic Building Company is a copartnership consisting of Brinkley B. Brown, C R McDaniels , and Gilbert Leach , with its office and plant at Houston, Texas. It has operated for about 2 years and employs approximately 60 people. Its business consists of the manufacture , sale. erection , and distribution of steel industrial buildings. Primarily the function of its Houston plant is to fabricate steel and other building materials which go into the erection of industrial struc- tures. It does not manufacture this steel and other materials but purchases them, chiefly from warehousemen , wholesalers, brokers, and agents in Houston. It also buys and sells a small amount of building materials without processing it. The record indicates that-the steel , corrugated iron, asbestos , window sashes, ventilators, paints , tools, welding machines and accessories , and other similar materials used by the Company in its fabricating processes are manufactured METALLIC BUILDING COMPANY 393 in States other than Texas, shipped to the middlemen mentioned in Houston and sold by them to the Company. A minor proportion of such materials is purchased by the Respondent directly from manufacturers outside of Texas. Total pur- chases for 1948 were $803,900.82. Of these 80.38 percent was made in Texas and 19.62 percent in outside States. Total sales in 1948 equalled $1,136,181.79. The evidence does not show the proportion of such sales made in Texas as compared with those in other States . But numerous purchasers from the Company are designated which are engaged in interstate commerce and proof was presented that an undesignated proportion of completed fabricating jobs was shipped from Houston to other States and in at least one instance to a foreign country. The Respondent changed the nature of its business somewhat on January 1, 1949. Therefore it had erected industrial buildings from its fabricated mate- rials. But on that date it went out of the erection business and confined itself to fabricating exclusively except for the small amount of sales of building mate- rials already mentioned. Since January 1, 1949, the Company has itself made no shipments in interstate commerce. Its completed fabricating jobs are deliv- ered-at its Houston plant to purchasers, whether contractors or owners of the industrial buildings. From January 1, 1949, to June 30, purchases of raw mate- rials-were 97.27 percent in Texas and 2.73 percent elsewhere; equipment pur- chases were 46.52 percent in Texas and 51.48 percent from other States ; and total purchases were 97.07 percent in Texas and 2.93 percent outside of that State. The exact amounts in dollars do not appear. Evidence presented showed that a proportion both of the raw materials and equipment so bought were originally manufactured outside of Texas. What that exact proportion is does not appear in the proof. As to sales in the first 6 months of 1949, the record is even less satisfactory. It is undisputed that the Company sold an unspecified number of fabricated buildings to contractors to be erected eventually in States other than Texas. In one specific instance a sale of $234 was made to a company in Louisi- ana. Neither exact amounts nor proportions were proved otherwise. In their brief, counsel for the Respondent contend that due to the change in type of business on January 1, 1949, and to the fact that the unfair labor prac- tices complained about all occurred in 1949, the data concerning the Company's business in 1948 should not be considered. Counsel cite no Board decisions on this particular point nor have been found. As against this rather limited contention, there remains the unchallenged, almost universal practice of the Board in such cases to receive evidence of the employer' s business extending back to a year before the alleged unfair labor practices. In the instant case there exist special reasons for doing so. In the first place the fabricating part of the Respondent's business continued on into 1949; only the erecting phase was dropped. Secondly, it is a fair inference that the fabricating phase was not diminished in 1949 from the 1948 status. It is true that neither party prof- fered any data as to the relative proportions of the fabricating activities to the erecting phase of the Company in 1948. But on the same point the record is silent as to any reduction of maintenance force or managerial staff in 1949 because of the changeover. Finally the unfair labor practices complained of all occurred in January 1949, which was the first month under the new method of operation, thus leaving only an unappreciable period of history to consider, if counsel's argument be accepted. I cannot concur in this contention. But even if it might be granted, there still remains a substantial body of proof re- lating to 1949 which points to interstate commerce. On the over-all question of jurisdiction Respondent's counsel urge in their brief that "the Trial Examiner should assert his discretion to refuse jurisdic- tion . . . for the reason that the business of Respondent is essentially local, and 394 DECISIONS OF NATIONAL LABOR --RELATIONS BOARD it would not effectuate the purposes of the Act to assert jurisdiction." In sup- port of this thesis counsel cite 18 Board decisions where jurisdiction was re- fused. Only 2 2 of the cited cases, however, deal with a business substantially similar to that of the Respondent. Counsel assert that "it is difficult to analyze these decisions. No set formula can be defined by which an employer will know whether or not the Board will assert jurisdiction over his business." The following tabulation of cases deals with types of manufacturing busi- nesses the same as the Respondent's or very similar to it. The list is not all- inclusive. Title Typs of operations Amount I Percent Efficient Tool & Die Co , 79 NLRB 170. Underwood Machinery Co, 79 NLRB 177 Binns Passaic Iron & Brass Foundry, 77 NLRB 60 Johnston Mfg Co , 80 NLRB 084. All Metal Pickling Corp, 85 NLRB 857. Tools and dies -__--___ Machinery ____________ Iron and semisteel castings. Valves ----------- Removal Removal of scale from steel Inflow $100, 000 25, 000 22,163 50, 000 4, 000 50 30 50 2 $10, 000 2, 500 Percent 5 3, 500 (Customers included corporations doing a large scale interstate business) Decision on juris- diction Asserted Do Do Do Do 5 Unique Ventilation Co, 75 Sheet metal novelties- ---------- -------- $42, 600 53 Asserted NLRB 325. Mississippi Tank Co, 82 Tanks ----------------- $50,000 100 2,000 2 Do NLRB 1234. U. S Trailer Mfg. Co, 82 Trailers--------------- 2,500 10 25,000 25 Do NLRB 99. (But see, inter alit, the following cases, contra ) abilan Iron & Machine Co , -Machine shop repairs $6,000 20 __________ ________ Refused 80 NLRB 820. and fabrication. ower Tool and Die Co, 85 Tools anddies -------- 10,875 75 $53,200 95 Do NLRB 127. dvance Welding Works, 81 Tanks_________________ 6,180 6 1,900 1 Do NLRB 199. Crew Machine Products Co , Machine parts --------- 19,644 66 2,115 3 Do 85 NLRB 129. o T A S As compared to this tabulation of decisions, several distinctive elements stand out in the case at bar. The first is the volume of business of the Re- spondent both in purchases and sales . They exceed corresponding figures in all the cited cases, whether jurisdiction was asserted or rejected. Nearly all of the equipment and raw materials bought by the Company were manufac- tured out of Texas, even though purchased from local Houston dealers. Cor- respondingly a substantial part of the buildings fabricated in Houston were eventually erected in States other-than Texas. These statements apply both to 1948 and 1949. The second characteristic is that part of the Respondent's sales were to purchasers admittedly engaged in interstate commerce. Finally the Respondent, under the cases, can hardly be denominated a purely local business. Raw material and equipment manufactured elsewhere flowed into Texas, were fabricated at the Houston plant, and in substantial part moved Outflow Amount 2 Advance Welding Worka, 81 NLRB 199 ; Gabilan Iron and Machine Company, SO NLRB 820. METALLIC BUILDING COMPANY 395 into other States. I am of the opinion that it would effectuate the purpose of the Act to assert jurisdiction in this case. • Accordingly, I find that the Respondent is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED While the charges in the instant case were filed by five discharged employees of the Respondent, the basic facts involved a labor union. This was the Hous- ton Metal Trades Council, AFL. The complaint alleges it is a labor organi- zation within the meaning of Section 2 (5) of the Act. The Respondent's answer denies this allegation. In their-brief counsel for the Respondent earnestly support such denial. Testimony concerning the organization, functions, and membership of Houston Metal Trades Council, AFL, was presented by Walter D. Wells, presently and for several years previously, the secretary of the Council. It was not con- troverted. According to the constitution of the Counci,, which is in evidence : Membership in this organization shall be composed of correlated crafts of the Metal Trades Department of the American Federation of Labor and kindred organizations affiliated with the American Federation of Labor. At the time of the hearing these were the constituent union members: (1) boilermakers, (2) pipefitters, (3) electricians, (4) carpenters, (5) sheet metal workers, (6) three locals of operating engineers, (7) teamsters, (8) hodcarriers and common laborers, (9) painters, and (10) sign and pictorial painters. Each of these member unions elects or appoints delegates to the Council. No in- dividual union member belongs to the Council: Employees of a plant in the Houston area may belong to the particular local union of his craft, which in turn sends representatives to the Council. Among its other functions the Council acts as bargaining agent in collective negotiations for its member unions and for others seeking union recognition. In the present case it had filed a petition with- the Board for a representation election in the Respondent's plant, which, however, was withdrawn when the charges of unfair labor practices were filed. In short the contention of the Respondent is that, since individual employees cannot become members of the Council, it is not empowered under the Act to represent them in collective bargaining. The Board has consistently held to the contrary. Local or county union councils with the same setup as the Houston Metal Trades Council, AFL, have been uniformly held to be recognized as labor organizations under the Act. The following Board decisions in unfair labor practice cases (not including any representation cases), illustrate the rule: Denver Building and Construction Trades Council, at al. (Grauman Company);' Building and Construction Trades Council of Orange County and Orange County District Council of Car- penters; ' Building and Construction Trades Council of Pittsburgh and Car- penters District Council of Pittsburgh, et al. (Petredis) ;' and Los Angeles Building and Construction Trades Council, AFL at al. (International Associa- tion of Machinists) e Accordingly I find that Houston Metal Trades Council, AFL, is a labor organi- zation within the meaning of Section 2 (5) of the Act. 3 87 NLRB 755. 4 Lumber and Sawmill Workers Union, et al. (Santa Ana Lumber Company), 87 NLRB 937. 85 NLRB 241. 6 83 NLRB 477. 396 DECISIONS OF NATIONAL LABOR RELATIONS ' BOARD III. THE UNFAIR LABOR PRACTICES A' The over-all background 1. Identity of persons involved It will be helpful to identify the actors participating in the events pertinent to the issues in this case. a. The discharged employees The dischargees herein were Hugo S. Baker, Benjamin E. Chester, L. B. High- tower, Jesse L. Botello, and George H. Bonner. Baker was fired on January 25, 1949; the others on the following day. b. Respondent For the Metallic Building Company Brinkley B. Brown was general manager ; C. R. McDaniels, chief engineer; and Gilbert Leach, sales manager. These were the three copartners copstituting the firm. Only Brown testified. Thomas E. Sternberg acted as superintendent of plant. The connection of other witnesses with the Respondent will be discussed in considering their testimony. c. Union Walter D. Wells, a witness for the General Counsel, was secretary of Houston Metal Trades Council, AFL. 2. Union drive The attempt to unionize the Respondent's plant was limited to a period of less than 2 weeks in the latter part of January 1949. Primarily it was the effort of Hugo S. Baker, one of the five men discharged, and will be discussed in that connection. No union meetings were held and no contacts with the Company either as to collective bargaining were attempted B. Discriminatory discharges The complaint alleges that the Respondent violated Section 8 (a) (3) of the Act by discharging the five men mentioned on January 25 and 26, 1949, "for the reason that they joined or assisted the Union or engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection" and refused to reinstate them. The Respondent answered that they were discharged "for good and sufficient cause" or voluntarily quit. Inasmuch as the circumstances surrounding the discharge of each man differed from the others, they will be discussed separately. 1. Hugo S. Baker a. The dischargee Baker, one of the complainants, was employed by the Respondent as a welder on January 10, 1949, and discharged on January 25. Omitting Saturdays and Sundays, he worked 111/2 days only. His experience in welding extended back to 1923. b. Baker's union activities That Baker assumed the lead in the effort to unionize the Respondent's plant and was by far the most active employee in that campaign was not disputed. His own testimony to that effect was fully corroborated by two witnesses for the General Counsel and seven witnesses for the Respondent. METALLIC BUILDING COMPANY 397 Baker testified that a few days after he started to work for the Company he was approached by several of his fellow employees as to the necessary steps to take in order to organize a union. Substantial proof is lacking that Baker made the initial moves himself. But he very readily fell in with the over-all idea and telephoned to Walter D. Wells, secretary of the Houston Metal Trades Council, AFL, whom he had previously known, and requested that the latter send him some application cards. In return Wells forwarded him 50 such cards. On direct examination Baker asserted this request was probably made on Wednesday, January 12, 1949, and that he received the cards on the following Friday. But on cross- and redirect examination he admitted the date was probably 1 week later, on Wednesday, January 19. This is likely correct because by stipulation all the cards signed were dated January 21 or later. On Friday, January 21, Baker began the distribution of cards. Some were handed to mem- bers of a group at lunch time ; most others he delivered to employees directly during working hours, and in several instances other employees received several cards with the request that they be handed on Cases in the last category were J. L. Botello, Howard E. Tate, Carl R. King, C. D. Hefner, and Ed Cain. The last two were brothers-in-law of Sternberg, plant superintendent. Both Baker and Hefner testified that the brothers-in-law's passing of the cards might be less likely to draw suspicion. All agreed the campaign should be kept as secret as possible. Some of the men who were supposed to pass out cards did not do so and a number of refusals were encountered. By Tuesday, January 25, Baker had received 23 signed applications which he transmitted to Wells of the Union. c. Respondent's knowledge of Baker's union activities Testimony concerning this matter was conflicting It is not disputed, however, that when Baker was hired by Sternberg on January 10, 1949, he told the latter that he belonged to a union. According to Baker, he had a conversation with Sternberg on the reason for his discharge about noon of January 25 while they were on the way to the company office to pick up Baker's final pay check when he was fired. Baker asserted that Sternberg then said: "I think that was a ______ ______ thing to do." I said, "What?" He said, "Trying to organize this plant and get a union in here." I said, "Well, I don't think so. When I came here I had no intentions of doing anything like that. It never crossed my mind. But these boys approached me, and knew I was a union man and asked me how about seeing if we could get the information to start." And he said, "I don't believe that." Sternberg denied making any such statement. He further insisted that he never knew of any union activity in the plant until he was told about it by Botello on the afternoon of January 26 after the latter had been fired. As against that is the testimony of E. G. Kelly, a witness for the Respondent, who testified that a short time before the first discharge he found a union application card in his pocket and "might have" told Sternberg and definitely did tell Brown, manager, about it. Moreover, Sternberg admitted having talked to Hightower, before the latter was discharged. Hightower wanted higher pay and said he would join the Union if it was not forthcoming. Sternberg also made some remarks about Hightower being the new steward of the Union. He explained that the remarks about the steward were made "jokingly " As will be pointed out later in the Report (under consideration of Section 8 (a) (1) ), Sternberg discussed the Union with several employees before the date of Baker's discharge. Both Sternberg and his brother-in-law, Hefner, testified that the latter never disclosed anything about the union drive until after Baker's discharge. No proof was adduced to the contrary. 398 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD On the question of credibility in the contradiction between Baker and Sternberg I accept Baker's version and similarly accept the remaining testimony of Sternberg's knowledge of union activities in the plant . Accordingly I find that the Respondent was informed of Baker's activities on behalf of the Union. d. Respondent's defense of "good and sufficient cause" In the opening statement of counsel and by the evidence adduced the Respond- ent sought to prove that Baker was discharged because of inefficient welding and of talking too much during working hours. Sternberg, plant superintendent, gave the reason as "for poor workmanship, talking too much on the job." The position of counsel was that they did not challenge Baker's experience and ability as a welder generally, but that his welding performance for the Respondent was unsatisfactory. The evidence as to the efficiency of Baker's welding work, offered by both parties, was extensive, largely technical, and generally contradictory. Five witnesses, including Baker, for the General Counsel and 13 witnesses for the Respondent, testified concerning it at greater or lesser length. Several of the Respondent's witnesses, according to their own statements, had little oppor- tunity and less reason to observe Baker's work. Some witnesses on both sides demonstrated only questionable capacity to pass judgment on the subject. It would serve no useful purpose to detail this mass of proof. Attention should be called, however, to the testimony of Williams for the Respondent. He stated that at the request of Fritzsching, a "layout" man, he gave a demonstration of proper welding to Baker and then asked Baker to make a weld in the same fashion which he did. Kelly, another "layout man," and Fritzsching were present, according to the witness. On cross-examination Williams admitted that he had not informed Baker of the purpose of his demonstration ; that he had not asked Baker to make an imitative weld ; and that in fact Baker did not do so. Kelly, Respondent's witness, gave no testimony concerning the demonstration. Baker denied that such an incident ever occurred. Neither Williams, Kelly, nor Fritzsching made any comment to Baker about this demonstration later, nor did they ever point out any bad welding to Baker, although they all claimed to have seen some. Fritzsching and Williams testified they reported Baker's inferior workmanship to Sternbeig. The latter asserted as a witness that he had observed several bad welds by Baker, but had never said anything to him about it. On the whole I credit the testimony of the General Counsel's witnesses in this disputed area. The most significant fact about all this testimony concerning Baker's alleged poor welding was that neither Sternberg, plant superintendent, nor any of the men under him, ever called Baker's attention to defects in his welding. The record is silent that Baker was ever criticized or reprimanded on account of his work. Not one such word was ever said to him. When Baker was discharged on January 25, 1949, Sternberg told him the reason was that he was "not satisfactory." Notwithstanding all this purported inefficiency by Baker, he was assigned on the morning of his discharge to do welding on trusses for the Weingarten building, which Sternberg admitted was a "very important job." In view of the foregoing I find that Baker was not discharged on account of inferior workmanship. The second reason for Baker's discharge assigned by the Respondent was that lie talked too much during working hours. A succession of 11 witnesses testified that they had observed him talking to other employees while on the job. The length and frequency of such conversations varied with the several METALLIC BUILDING COMPANY 399 witnesses. But each one, when interrogated on the matter, admitted that he too talked on the job to some extent . All testified that they had not heard of any company rule against such conversations. The testimony showed that when 2 men were teamed together their work required them to converse with each other, and that there were occasional idle periods. Sternberg admitted that a certain amount of such talk was necessary to carry the shop work forward and that there was no rule against it. Baker admitted talking to his fellow workmen occasionally, including the subject of the Union, but denied that such discussions were extensive or that they interfered with his work. He also testified that at no time was he ever criticized or warned that he talked too much on the job. Nor was that ever stated to him as a ground for his discharge. I find that Baker's discharge was not due in part or at all to his talking on- the job. e. Facts of discharge During the noon period while Baker was eating his lunch with several employees on Tuesday, January 25, 1949, Sternberg came to him and told him to accompany the former to the office. While en route, the conversation concerning the Union previously discussed occurred. Upon arrival at the office Baker observed that a clerk was already making out his check. Sternberg thereupon told Baker he was fired because he was "unsatisfactory." Baker never applied for rein- statement nor did the Respondent offer to reemploy him. f: Discrimination for union activities It is clear from the recital of facts set forth above that Baker did engage in union activities while employed by the Respondent and that the latter knew of such course of conduct by him. It is equally apparent that his alleged inefficiency and talking on the job were not the real reasons for his discharge, but only a subterfuge . What actually motivated the Respondent in firing Baker was the union drive in its plant which Baker spearheaded . I find that the proof shows such discharge to be discriminatory under the Act. This rule has long been applied, both by the Board and the Federal courts. A recent case from the I+ourth Circuit is illustrative.? Conclusion I find that the Respondent, by discharging Hugo S. Baker under the circum- stances obtaining in this case, violated 'Section 8 (a) (3) of the Act. 2. L. B. Hightower Hightower's testimony indicated that he had worked for the Respondent 31/2 years. In January 1949, he was classified as a nonspecialist laborer and did "everything around there, anything that comes up, no special job." At the time of the hearing he was residing at the home of Brinkley B. Brown, manager of the Company, for whom he did extra work. Union activity by Hightower consisted of little more than signing an appli- cation card on Monday, January 24. He had inquired of Hefner about the Union who referred him to Sternberg's other brother-in-law, Ed Cain, who handed him the card. After signing it Hightower gave it to Bonner, one of the five dischargees, for delivery to Baker. The Respondent's knowledge of Hightower's union affiliation was derived primarily from conversations between him, and Sternberg, plant superintendent. 7 N. L. R. B. v. Dixie Shirt Co , Inc., 172 F. 2d 969, 973 (C A 4). 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (These will be elaborated in the discussion under Section 8 (a) (1).) On Monday, January 24, according to Hightower, Sternberg asked him if he had a union card, and upon an affirmative answer, added that he had better not give it to anybody because nobody could get anything out of the Union. Sternberg did not testify about this conversation. The next day, Tuesday, January 2a, the two talked again. Sternberg remarked that Hightower was to be the union steward, but the latter remarked that he wanted to be the treasurer "where the money was." Sternberg did not specifically deny this conversation, but intimated it was all said jokingly. He admitted that on Wednesday, January 26, he had again asked Hightower if he was still going to join the Union and received the reply that he would do so to secure as much pay as Cain. From this evidence it is apparent that the Respondent was advised of Hightower's union activities. The reason given by the Company for firing Hightower was that he com- plained too much about not receiving as much pay as Ed Cain and 'thereby neglected his work. Hightower admitted that he "griped" to "a few of the boys," but "not all the time, every once in a while." A succession of six witnesses for the Respondent testified that Hightower had "griped" to them about his wages as compared to Cain. He insisted that Sternberg had never criticized him because of these complaints. To the contrary Sternberg testified that he had warned Hightower not to mention Cain's pay to him any more. In this connection Sternberg said on direct examination : A. I told him if he didn't hush up about Ed I would fire him. Q. Did he say anything more about Ed Cain? A. Not that I remember. He also stated that at the time of this conversation he had no intention of firing Hightower and that nothing additional had intervened until he did discharge Hightower on January 26. According to Hightower, Sternberg told him at the time his check was delivered that he was fired for "neglecting his work." He replied that "I was fired on account of this union business." Sternberg gave no testimony as to this conversation. From the foregoing it is evident that High- tower was not really fired because of his "griping." At the time of Hightower's discharge Sternberg suggested that he talk to Walter Craft, another employee. The latter told him that "as soon as this deal here blows over," possibly in 2 or 3 weeks, he would be reemployed. Accordingly, he wrote a letter to the Company requesting reinstatement. Sorrels, a layout man, came to his home and requested him to return to his job. He was rein- stated March 4, 1949, and remained continuously with the Respondent to the time of the hearing. When he was reinstated nothing was said about his pre- vious "griping." Considered as a whole, these facts show that Hightower did carry out union activities ; the Respondent was advised of such action by him ; he was not fired for "griping"; and was really discharged because of his union affiliation. This constituted the sort of discrimination which the Act prohibits. The conclusion is strengthened by his prompt reinstatement in the manner described. Conclusion I find that by discharging Hightower in the manner above set forth the Re- spondent violated Section 8 (a) (3) of the Act. 3. Benjamin E. Chester - Chester was employed by the Respondent on September 4, 1948, and worked for it until his discharge on January 26, 1949. He described his duties as METALLIC BUILDING COMPANY 401 "helper and acetylene burner, all around work. I had no particular job ; I did a little tacking occasionally ; helped the layout men." As to Chester's union activity, the record is extremely meager. In evidence is an application card signed by him on a blank date in January 1949. No proof is found that he ever solicited' anyone to join the Union. According to his own testimony, he had lunch with Baker at noon on Wednesday, January 26. Baker gave him four application cards. It does not appear whether he signed one of these. He stated he delivered one to Farrar, who never signed it. He also claimed to have presented cards to two painters, whose names he could not re- member nor did he know whether they ever signed. It is worthy of note that within a very short time after lunch Chester was fired Even more doubtful than the matter of Chester's limited and belated union activities is the question whether the Respondent had knowledge of them. Con- cerning this the General Counsel, in his closing oral argument, admitted : Now, we come to the question of Chester. Now, I am going to concede at the outset-because I know my colleague, l\lr. Lyne, will certainly point it out-I don't think I have been able to prove direct knowledge by Sternberg or any supervisor of the Company that Chester had signed a union card. I make that concession because it appears to be the facts and I don't believe in concealing facts... . The record fully confirms this admission. In fairness to the General Counsel, however, it should be stated that he contended such knowledge on the part of the Respondent might be inferred from the "sequence of events." This argument deserves consideration. On his own cross-examination Chester could point only to four fellow employees whom he had told of signing a union card : Farrar, Cain, Yates, and Baker. None of these was a supervisor or officer of the Company within the meaning of the Act. No proof was presented that either of them ever informed any supervisor of such knowledge. To the contrary, there is testimony that Cain did not talk to his brother-in-law, Sternberg, about the Union until after the five complainants had been fired. The record, as admitted by the General Coun- sel, is completely silent that the Respondent knew anything about Chester's con- nection with the Union. Nor can a logical inference be predicated on the evi- dence at hand that they possessed such information. Consequently I find that the Respondent did not know of Chester's union membership or activities. This finding alone is sufficient for determination of Chester's case, 9 but in order to present a complete picture the reason for his discharge should be con- sidered The Respondent assigned such ground to be that Chester drank liquor on the job and was intoxicated during working hours, in spite of warnings given to him by his supervisor and more particularly was drunk on the day he was fired. Chester testified about his own drinking habits. On direct examination he asserted that Sternberg called him to the Company's office about 6 weeks before his discharge and told him, "I better not catch you with any bottle around here or I will have to let you go." On cross-examination he was asked whether he was a "heavy drinker" ; he replied : "I wouldn't say unusually heavy." He ad- mitted that he drank on the job "a couple of times" and then detailed three separate occasions when he imbibed liquor or beer while on duty. He further ,conceded that he drank six bottles of beer ytbe night before, his discharge, but conceded that in a previous hearing before the Texas Employment Commission, (in evidence ), he had fixed the number at eight bottles. He admitted he drank Salant d Salant, Inc, 87 NLIIB 215. 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD considerable beer at home in the evenings and that Kelly, an employee, had also warned him not to drink on the job. He stated he had never laid off work be- cause of drinking, but would not deny that he had testified in the Texas Employ- ment Commission hearing : "I've taken quite a bit of time off and went out and drank and went on parties. . . . The longest [time] I lost was about ten days ; previous to that it was one, two, and three days at a time. . . . These things [would] happen . . . approximately every two or three weeks." On Christmas Day, 1948, he received a present of a bottle of whiskey and Sternberg told him : "Now, don't get drunk." Testimony of other witnesses added to the details in the over-all picture. Ten employees of the Respondent testified they had smelled liquor on Chester's bi eath at various times while he was working. None of this was refuted directly, al- though three witnesses for the General Counsel presented purely negative testi- mony that they had never seen Chester drink or be under the influence of alcohol during duty hours. Farrar, for the Respondent, testified that Chester and one other employee worked together in the forenoon of Wednesday, January 26, 1949. They were installing some power lines on a 'monorail, under the roof of a shop building, which was used to operate a crane. Farrar and Chester worked di- rectly on the monorail. Farrar noticed Chester almost fall from their station and asked him if he was dizzy. Chester replied that "he just had too much to drink the night before" and "I am too dizzy and drunk to be up here." Farrar then sent him to work on the ground. Chester's explanation of this incident in the General Counsel's rebuttal, together with the impression he gave during all the time he occupied the witness stand, was most unconvincing and I discredit it. Two other witnesses gave testimony that they had heard Sternberg warn Chester about his drinking, but they place the time closer to the date of discharge. Sternberg himself insisted that he personally smelled liquor on Chester's breath on the morning of January 26 and thereupon fired him. Other testimony is merely cumulative to the same effect. At some unspecified time after his discharge Chester applied in writing to the Company for reinstatement but nothing came of it. Considering all the facts of record in Chester's case, I find that he was dis- charged because he drank liquor and was under its influence on numerous oc- casions and not because of his union activities. The Board reached this result under almost the same facts.' Conclusion I find that the Respondent, in discharging Chester under the circumstances of record, did not violate Section 8 (a) (3) of the Act. I shall recommend that the portion of the complaint relating to him be dismissed. 4. George H. Bonner Bonner was employed by the Respondent from September 1948 to January .26, 1949. He worked partly as a welder, but also performed other kinds of metal-working jobs. Bonner gave no testimony whatsoever concerning his membership or activities in the Union except as to one conversation with a group at lunch time which included Baker . But among the exhibits on file is an application card (tecilni- cally. "Authorization for Representation under the National Labor Relations Act") signed by him on Monday , January 24 , 1949. He stated it was received from Baker. As previously mentioned, Hightower testified that he gave his signed card to Bonner for delivery to Baker. Shawnee Milling Co, 82 NLRB 1266. METALLIC BUILDING COMPANY 403 Not one word may be found in the record that the Respondent knew Bonner was a member of the Union or active in its behalf. Both Brown, manager, and Sternberg, plant superintendent, expressly denied it. I find myself unable to infer such knowledge, as the General Counsel suggested in his oral argument, from the "sequence of events" or "the overall background." Some substantial proof concerning it must be adduced. The burden of such proof rested on the General Counsel ; he failed to discharge it. Suspicion and insinuation are not proper evidentiary substitutes for proof. I find, therefore, that the Respondent had no knowledge of Bonner's union activities, such as they were. Based on Bonner's testimony alone, the real reason for his discharge is ap- parent. On January 26 the Company was performing some adjustment work on a building outside its plant which it had fabricated for a man named Schlum- berger. A foreman named Rogers, who did not testify, was in charge of such outside jobs. Fritzsching, a layout man, suggested to Sternberg that Bonner be sent out to do some welding and cutting because he had been on such work previously. Bonner reported to Rogers with the necessary tools. By his own statement he adopted an attitude of doing nothing until specifically instructed by Rogers. As a result he and Rogers became involved in an altercation. Bon- ner several times mentions : "We were still arguing." Finally Rogers told him to return to the office and net his check. This was a clear case of insubordina- tion and the Respondent was entitled to fire Bonner on that basis. The Board has consistently so held 1° Nothing in the record shows any discriminatory discharge of Bonner because of his union activity. Bonner stated that he had never applied for reinstatement and did not wish to work for the Company except "under certain circumstances" which he did not define. Conclusion I find that the Respondent did not violate Section 8 (a) (3) by discharging Bonner. I shall recommend that such portion of the complaint as pertains to him be dismissed. 5. Jesse L. Botello Botello worked for the Respondent from August 20, 1948, to January 26, 1949, first as a combination electric and gas welder and later as a layout man and welder. He testified he first heard about the union campaign in the Company's shop between January 21 and 23 from Ed Cain. Two or three days before his dis- charge on January 26 he stated that Baker gave him two union cards, one of which he handed on to Bonner. This conflicts with Bonner's testimony that his card came from Baker. No proof is found that Botello solicited any employees to join the Union. Proof of knowledge by the Respondent of Botello's union affiliation and activi- ties rests on his own testimony. On direct examination he asserted that on the morning he was discharged Sternberg came to his place of work ; asked him "had I heard anything going on about the union there in the shop" to which he replied that he had "heard some of the boys talking about it"; asked him if he had signed one of the cards and received an affirmative reply. He further testified that while he was,waiting for his discharge check in the office Stern- berg "told me he sure hated to see me go because he liked my work and every- 10 Lloyd A . Fry Roofing Co , 85 NLRB 1222 See also Joanna Cotton M1118 v . N. L R. B , 176 F. 2d 749 (C A. 4). 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thing, but he just had to let me go because I was a union member." He insisted further that Sternberg repeated substantially the same remarks several times later-once while Botello was on the way to his car after being fired and twice in conversations in downtown Houston several days later. These statements, according to the witness, included a promise to reemploy him within 2 or 3 weeks when the "trouble" had blown over. Sternberg's version of the part of these conversations he admitted having differs entirely from Botello's. The question of credibility will be discussed shortly. The Respondent's defense to Botello's charge of discriminatory discharge was that he quit voluntarily and was never fired. Fritzsching, for the Respondent, testified he asked Botello in the office while the latter was waiting for his check "why he was quitting" and received the reply, "I just want to quit while the trouble blows over " Craft asserted he was present and heard this conversation. Sternberg claimed Botello told him at the time of discharge, "You are having a little trouble. I am going to have to quit." Brown, manager, testified that a conversation, at Botello's request, was held between them on January 27 at a Houston drive-in. Sternberg was present. Botello gave some information con- cerning the possibility of his signing a statement for a Board representative and then added, "Do you understand, Mr. Brown, that I quit, and the reason I quit was I am a union man and I would either have to work for the union and against you or for you and against the union. It is a bad condition for me So there wasn't anything for me to do except quit." Sorrels, on the witness stand for the Company, gave testimony that on Monday, January 24, Botello told him he was leaving the Respondent to work for the Southwestern Fabricating Company, a statement he made several times previously. J. C. Peterson and King told the same story. Farrar stated that Botello tried to borrow money from him early on January 26 because "he was fixing to quit that day." Farrar did not lend him the money but Brown did. On cross-examination Botello said he could not remember whether he ever told anyone he was going to quit the Respondent, but denied the conversations testified to by Fritzsching, Sorrels, Peterson, and Farrar; admitted he quit just before Christmas, 1948, to accept a job with South- western, but returned to the Respondent when he slid not receive it, and claimed that he had talked several times with Sternberg after his discharge about the possibility of reinstatement. In fact he was never rehired. Thus the record as to Botello's alleged discharge is one largely of contradic- tion. Botello asserted he was discharged for union activities. All the witnesses for the Respondent insisted he quit voluntarily and denied the element of dis- crimination. The pertinent issues must be decided on the basis of credibility of those who appeared on the witness stand. Botello's testimony varied in several instances from that of other witnesses for the General Counsel ; e. g, Botello stated he gave Bonner a union card whereas Bonner's statement was that he received it from Baker ; and Botello repeated several times that Baker was fired just before lunch, while all other witnesses fixed the event as occurring during the lunch period; and finally where Baker testified he had been working alone on the critical forenoon, Botello averred he worked with Baker. Moreover, his testimony in several instances was contradictory in and of itself: (1) He first stated that when he was fired he "got in the car and drove home," but shortly thereafter said he "kept lagging around the plant there until the rest of the boys got straightened out so we could leave together"; (2) he first gave infor- mation that, on the morning of January 26 he ,was working on trusses and then changed that- to columns; (3) initially he-,designated Farrar as his "leaderman" and later switched to Sorrels, saying "I get Mr. Farrar and Mr. Sorrels mixed up'"; (4) originally he testified lie attempted to borrow money from Farrar on METALLIC BUILDING COMPANY 405 January 26 and thereafter fixed the time as before Christmas; (5) at one time he said his wife was then in the hospital and subsequently stated 'she "was sick, but not in bed"; (6) he stated the reason for quitting his job with the Respond- ent just before Christmas was, "I wanted to have a good time and spend my money," yet he had already testified his wife was then sick and he tried to bor- row from Farrar; (7) he gave as another reason for so quitting at Christmas that he intended to go to work for Southwestern, then asserted he did not "try to get a job anywhere else during that time." Other such instances could be cited. Botello, as a witness, did not give an impression of forthrightness, straight- forwardness, -and dependability. Instead his demeanor reflected trickiness, improvisation, and general unreliability. To all this may be added the stipulated fact that he was convicted in a Texas court of forgery in 1941. In view of all the circumstances I do not credit Bbtello's testimony as to any matters dis- puted or contradicted-and that includes all the pertinent issues as to his alleged discharge. Conclusion I find that the Respondent did not violate Section 8 (a) (3) of the Act by reason of Botello's separation from its service I shall therefore recommend that such portion of the complaint be dismissed. Conclusion as to Discrimination To summarize, I find that the Respondent, by discharging Hugo S. Baker and L. B. Hightower under the circumstances appearing in this case, violated Section 8 (a) (3) of the Act. C. Interference, restraint, and coercion The complaint alleges eight coercive statements by supervisors of the Re- spondent in violation of Section 8 (a) (1) of the Act. Proof was presented bearing on these and on several others as well Most of these declarations were by Sternberg, plant superintendent. 1. Sternberg to Hightower Some of this testimony has already been discussed in connection with High- tower's discharge. The latter testified that on Monday, January 24, 1949, in the company rest room, Sternberg asked him if he "got one of them cards " To an affirmative reply Sternberg continued, "You better not give that to anybody . . . What do they think they are going to get out of the union?" Hightower also related two statements made to him by Sternberg on the fol- lowing day, January 25, the first near a crane in the shop. It was: "I hear you are the steward," to which Hightower replied : "I am not going to be the steward, I am going to be the treasurer." The second occurred in or near the rest room : "That's the steward coming ; he may be on the union job but he don't know what I have in store for him." Hightower then said he was going to join the Union in order to secure higher wages to equal those of Cain. A fellow employee, Walter Craft, testifying for the General Counsel, was present at these con- versations and confirmed Hightower's story. Sternberg admitted generally what was said, as appears above, but insisted that the references to "steward" were make jokingly. I find Sternberg's characterization unconvincing. I credit the testimony of Hightower and Craft, which is, indeed, largely corroborated by Sternberg him- 998666--vol 98--53--27 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD self. These remarks and questions amount to interrogation of an employee regarding his union membership or activities . Such questioning has been uni- formly held to be violative of Section 8 (a) (1) of the Act" 2. Sternberg to Botello i'Botello'testified, as previously discussed, that on January 25 shortly after lunch Sternberg asked him, . how I was doing.... I told him . . . pretty good, and he said had'I heard anything going on about the union there in the shop. I told -' him I heard some of the boys talking about it. He asked me if I had signed one of the cards, and I said yes. ..' . He said, "Well, if I can help it, there won't be a union in the shop.... Sternberg denied making the, statement. For the reasons previously stated in this Report I discredit this testimony by Botello and shall disregard this incident. 3. Sternberg to Farrar On Monday, January 24, Farrar had a short conversation with Sternberg on the way to work, according to Farrar. At first he denied any such conversation but when his recollection was refreshed by reading a statement previously given to a Board field examiner, he continued : Q. I ask you whether or not you said this in your statement : " Sternberg, on Monday before these men were fired, asked me if I had signed a union card. I answered no and that was all." Did you so state and swear to that statement? A.Idid. ... Q. 'I am asking you whether or not Sternberg ever questioned you about the union? .. . A. He did, yes. I credit this testimony, which constitutes"another instance of interrogation regarding union affiliation. 4. Sternberg to Baker This conversation between Sternberg and Baker while they proceeded to the company office to obtain Baker's check on January 25, 1949, has already been detailed in connection with Baker's discharge and need not be repeated here. I find it to be coercion under Section 8 (a) (1). 5. Sorrels to Baker, Botello, and others This conversation is alleged in the complaint and some evidence was received concerning it upon the condition that proof should later be offered that Sorrels was a supervisor within the meaning of the Act. Brown testified that the only supervising officials of the Company were himself as manager, Sternberg as plant superintendent, and Rogers as foreman for work outside the plant. He insisted there were no other foremen. Sternberg acquiesced. Some evidence was received as to Sorrells' functions. Various wit- nesses designated him with different names, but in general it amounted to "leaderman" or "layout man." His actual duties were to lay out on the steel the places where the welders made their welds or other workmen drilled holes in the metal. He had no authority to hire or fire or in general to instruct men what to do except specifically under Sternberg's directions. Hence I find that 11 N. L. R. B. v. La Salle Steel Co., 178 F. 2d 829 (C. A. 7). METALLIC BUILDING COMPANY 407 Sorrels was not a supervisor within the meaning of the Act. So I shall strike from the record all evidence of conversations about the Union by Sorrels to Baker, Botello, or other employees. 6. Sternberg to Sorrels In view of the finding made in the last numbered paragraph that Sorrels was not a supervisor, it is relevant to consider a conversation he testified having with Sternberg on January 24. He was the Respondent's witness. At first he could not recall any such conversation. When he had read a statement, however, which he admitted having signed previously, he stated: "I remember Sternberg asking me did I know anything about the union and I told him I didn't." Coming as this statement does from a reluctant witness, I credit the testimony. Here is more interrogation. 7. Sternberg to Kelly Sorrells testified he heard Sternberg and Kelly talk as follows : Sternberg asked Kelly did he know anything about the union. Kelly said he did, he had a card and he asked Kelly did he sign the card and Kelly said no he didn't. Neither Kelly nor Sternberg denied this conversation. I credit it. 8. Sternberg to Hefner Hefner; Sternberg's brother-in-law, mentioned during his testimony for the the Company, that on January 27, 1949, 1 day after the last discharge, he had talked to Sternberg about the Union. The General Counsel thereupon moved to amend the complaint by adding subparagraph (i) to paragraph IX, alleging this conversation. This motion was taken under advisement by the Trial Ex- uminer. It is hereby granted and the complaint is so amended. According to Hefner, Sternberg asked him if he had signed a card and who else had similarly signed. I believe Hefner's story. 9. Sorrels to Kelly The General Counsel also moved to amend the complaint by adding subpara- graph (j) to paragraph LX to show alleged comments about the Union made by Sorrels to Kelly. In view of the previous finding that Sorrels was not a supervisor, such evidence would not be admissible. The motion to amend the complaint is therefore denied. 10. Cain, Hefner, Fritzsching, and others to Pritchett Some evidence was adduced that Cain, Hefner, Fritzsching, and other em- ployees had made antiunion comments to Pritchett and other workmen. No substantial, credible proof is in the record from which a finding could logically be made that any of these employees are supervisors within the meaning of the Act. Such statements will therefore be disregarded. 11. Other alleged coercive actions At the hearing the General Counsel several times intimated through his own statements and by questions which were primarily accusations that the Re- spondent had engaged in coercive actions other than by the statements just discussed. These were (1) that Sternberg had searched the men's lockers and automobiles for union cards; (2) that Brown had installed a listening device in 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the rest room and elsewhere to overhear the conversations of his employees ; and (3) that the Company hired detectives to follow Baker after he was dis- charged. The only real proof in the record is Brown's admission that shortly before the hearing the Respondent employed detectives to find out where Baker worked, but the contents of such reports were not presented. The rest is mere suspicion and innuendo . It will be disregarded. Conclusion as to Interference, Restraint, and Coercion Under the facts set forth I find that the Respondent, beginning on or about January 24, 1949, interfered with, restrained, and coerced its employees in viola- tion of Section 8 (a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE It is found that the activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Sec- tion I, above, have a close, intimate, and substantial relation 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. v. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the purpose of the Act. It has been found that the Respondent discriminatorily discharged Hugo S. Baker and L. B. Hightower because of their union activities, but later rein- stated L. B. Hightower. It will therefore be recommended that the Respondent offer to Hugo S. Baker immediate and full reinstatement to his former or sub- stantially equivalent position, without prejudice to his seniority or other rights and privileges, and make both employees whole for any loss of pay they may have,suffered by reason of the Respondent's discrimination against them, by payment to them of a sum of money equal to that which they normally would have earned as wages from the date of their discharge to the Respondent's offer of reinstatement, less their net earnings during such period. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Houston Metal Trades Council, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Hugo S. Baker and L. B. Hightower, thereby discouraging membership in Houston Metal Trades Council, AFL, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering- with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. - 4. Said unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent, by discharging Benjamin E. Chester, George H. Bonner, and Jesse L. Botello, did not violate Section 8 (a) (3) of the Act. [Recommendations omitted from publication in this volume I