Shovel Supply Co.

SHOVEL SUPPLY COMPANY 235 L. C. Ferguson and E. F. Von Seggern , d/b/a Shovel Supply Com- pany and Local 96, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO. Case No. 16-CA--894. June 20,1957 DECISION AND ORDER On December 5, 1956, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had .engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, 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 alleged in the complaint, and recommended that the complaint be dismissed with respect thereto. Exceptions were thereafter filed only by the Re- spondent, together with a brief. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. The Trial Examiner found, and we agree for the reasons set forth in the Intermediate Report, that the record viewed as a whole estab- lishes that the Respondent independently violated Section 8 (a) (1) of the Act, and also violated Section 8 (a) (3) and (1) by discrimina- torily laying off seven named employees on April 26, 1956.2 The Respondent, having threatened its employees with reprisals for union membership, believed that these employees nevertheless were union members, and selected them for layoff for that reason. Supervisor Charles thereupon announced that the Union "had just gone out the door." That evening Superintendent Kuhn admitted to Maxwell that the Respondent had discharged everybody who signed a union card. The next day Supervisor Don Ferguson told Maxwell that he was sorry to see him go, but that was how his father, the Respondent's managing partner, felt about the Union. Although the Respondent reinstated three of these employees be- fore the hearing, it did so in the apparent belief that they were no longer union members, as revealed in interviews occurring before re- 1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [,Chairman Leedom and Mem- bers Be," and Jenkins]. 2 C. J. Ferguson , Harold Boone, Dials, Neal , Maxwell, Gonzales, and Larry. 118 NLRB No. 30. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD instatement. Thus, far from tending to disprove the original dis- crimination, the Respondent confirmed its unlawful purpose by such action. We have carefully considered all the arguments made by the Re- spondent in its exceptions and brief, and particularly that the layoffs were caused by a curtailment of operations and not union membership. We agree with the Trial Examiner that any curtailment of operations was but a pretext for these particular discriminatory layoffs and not the moving cause, especially in view of the fact that the Respondent at the same time was working its remaining employees overtime and was also hiring new employees in the very same departments where the layoffs occurred. 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 Respondent L. C. Ferguson and E. F. Von Seggern, d/b/a Shovel Supply Company, Dallas, Texas, their agents, successors, and assigns : 1. Cease and desist from : (a) Discouraging membership in Local 96, International Brother- hood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO, or any other labor organization of its employees, by laying off or in any other manner unlawfully discriminating in regard to hire or tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Local 96, International Brother- hood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining 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 em- ployment, 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 C. J. Ferguson, Harold W. Boone, C. R. Maxwell, and Theodore Gonzales immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges. (b) Make whole C. J. Ferguson, Harold W. Boone, Larry Dials, C. R. Maxwell, Theodore Gonzales, Clark C. Neal, and Matthew SHOVEL SUPPLY COMPANY 237 Larry, Jr., for any loss of pay suffered by reason of the Respondent's discrimination against them, in accordance with the Board's customary formula. (c) Preserve and upon request make available to the National Labor Relations Board or its agents, for examination and copying, all records necessary to determine the amounts of back pay due under the terms of this Order. (d) Post at its place of business in Dallas, Texas, copies of the notice attached to the Intermediate Report marked "Appendix A." 3 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall be duly signed by the Respondent and posted by it immediately upon receipt thereof and maintained for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Sixteenth Region in writ- ing, within ten (10) days from the date of this Order, what steps have been taken to comply herewith. AND IT is FURTHER ORDERED that the allegations of the complaint that the.Respondent discharged William C. Landahl in violation of the Act be, and they hereby are, dismissed. a This notice shall he amended, however, by substituting the words "A Decision and Order" for the words "The Recommendations of a Trial Examiner." In the event that this Order is enforced by a decree of the United States Court of Appeals, there shall, be sub- stituted 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." INTERMEDIATE REPORT STATEMENT OF THE CASE The above-captioned proceeding concerns allegations that L. C. Ferguson and E. F. Von Seggern, partners doing business as Shovel Supply Company, herein called Re- spondent, unlawfully laid off certain employees (Harold W. Boone, Larry Dials, C. J. Ferguson, Matthew Larry, Jr., C. R. Maxwell, Clark C. Neal, and Theodore Gonzales on April 26, 1956, and William C. Landahl on May 26, 1956), and allega- tions that Respondent by the aforesaid conduct and by other enumerated conduct interfered with, restrained, and coerced employees in the exercise of their rights guaranteed in the National Labor Relations Act, as amended , herein called the Act. Respondent denies the unfair labor practices alleged and asserts that the layoffs were "due to curtailment of operations under the exigencies of the business , including the shortage of suitable steel and materials ." These issues were fully litigated at a hearing before the Trial Examiner in Dallas, Texas , on September 18, 19, 20, and 21, 1956, at which all parties were represented. After the close of the hearing, briefs were received from counsel for the General Counsel and counsel for Respondent which have been considered in the preparation of this report. There is no dispute concerning the following matters and the evidence reveals and the Trial Examiner finds that : ( 1) Respondent is engaged in commerce or in a business affecting commerce within the meaning of the Act; (2) Local 96, Interna- tional Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths , Forgers & Helpers, AFL-CIO, herein referred to as the Union, is a labor organization within the meaning of. the Act; (3).Harold W. Boone, Larry Dials, C. J. Ferguson, Matthew Larry, Jr., C. R. Maxwell, Clark C. Neal, and Theodore Gonzales were laid off on April 26, 1956; (4) Clark C. Neal, Matthew Larry; Jr., and Larry Dials were re- instated on May 3, July 3, and July 9, 1956, respectively; (5) William C. Landahl 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was laid off on May 26, 1956; and (6) Harold W. Boone, C. J. Ferguson, C. R_ Maxwell, Theodore Gonzales, and William C. Landahl have not been reinstated. The disputed matters herein concern the reason for the aforementioned layoffs, and the responsibility of Respondent for certain remarks allegedly made by alleged officials of Respondent. Respondent denies that the remarks were made and further asserts that the leadmen who allegedly made the remarks are not persons for whose conduct Respondent is responsible. L. C. Ferguson and E. F. Von Seggern, partners doing business as Shovel Supply Company, engage in the manufacture and distribution of road construction equip- ment and supplies in Dallas and Houston, Texas. The principal place of business is. in Dallas, Texas, and the Dallas plant is the only one involved herein. L. C. Fergu- son is the chief executive officer and operating head of the Dallas plant. Carl Kuhn is the general superintendent of this plant. Next in authority below Kuhn are two sons of L. C. Ferguson, namely, Don Ferguson and Lynn Ferguson. Each of these individuals is a supervisor within the meaning of the Act and there is no dispute herein concerning their status as such. However, various departments are headed by persons called leadmen and there is an issue herein as to whether these leadmen (Eugene C. Stoner, leadman in the machine shop, Isaac (A]) Whidden, leadman in the 25-ton roller department, and Bill Charles, leadman in the 2- to 3- and 3- to 5-ton roller department) are supervisors. The duties and authority of these leadmen are substantially equal. As indicated above, each of these leadmen heads up a department. Each has other employees working under him for whose work the leadman is responsible. The leadman directs the work in his department, making assignments and reassignments as various phases of the operation and as the occasion requires. Also, leadmen interview applicants ifor employment and effectively recom- mend hiring, transfer, layoff, recall, or discharge. Leadmen are paid 10 cents per hour more than regular production and maintenance employees. The Trial Ex- aminer believes and finds that leadmen are supervisors within the meaning of Section 2 (11) of the Act.' This is one of those cases where the witnesses for the General Counsel are thoroughly contradicted by the witnesses for Respondent and it is not possible to reconcile the conflicting testimony of the two groups. Nevertheless, after observing the witnesses and carefully analyzing the record, the Trial Examiner cannot conclude that neither group should be relied upon and that the case should be dismissed for failure to carry the burden of proof. To the contrary, the Trial Examiner believes that the witnesses for the General Counsel should be credited. They appeared to be truthful witnesses, the events narrated by them follow a sequence not unusual during initial stages of union organizational efforts, 2 and their testimony is not self- conflicting and contradictory. On the other hand, Respondent's witnesses contra- dicted themselves and one another, and in instances their testimony on direct, and in some instances on both direct and cross-examination left implications against the General Counsel which upon further examination do not stand up.3 Respondent takes the position that inasmuch as it was necessary to effect a reduction in force, the employees involved herein, rather than other employees, were selected for layoff because they were less desirable and Respondent undertook to establish that each of the employees involved herein had certain deficiencies which made him less de- sirable. In many instances the witnesses who testified for Respondent concerning these deficiencies in their direct examination left an impression that the employee involved was totally incompetent, but further examination of the same witness either partially or wholly eradicated this impression. Furthermore, L. C. Ferguson appeared to be of a temperament likely to make the statements attributed to him under the circumstances revealed by this record. 'The facts concerning the duties, functions, and authority of leadmen are not largely in dispute ; the controversy is as to the legal consequences which spring from then (whether under the Act they are supervisors). 2 The layoffs occurred at a time when the above-named Union was engaged in organizing Respondent's employees. 3Examples of this type of testimony are readily available, but the Trial Examiner be- lieves the following examples are sufficient for illustrative purposes : (1) The testimony of Plant Superintendent Kuhn with respect to the reasons for the.layoff of Gonzales is, self- contradictory and contrary to that of partner L. C. Ferguson ; and (2) L. C. Ferguson, on direct and cross-examination left an impression that Landahl was laid off because of com- plaints from Respondent's insurance firm concerning injuries sustained by Landahl, but an examination of the entire testimony of L. C. Ferguson and the entire record reveals there were no complaints from the insurance firm directed specifically to Landahl. SHOVEL SUPPLY COMPANY 239 The April 26, 1956, Layoff 4 In June 1955 C . J. Ferguson was interviewed for employment by partner L. C. Ferguson (these Fergusons are not related ). On this occasion these individuals dis- cussed the ability of C. J . Ferguson to operate the machines which Respondent uses and the rate of pay which C. J. Ferguson sought and then L. C. Ferguson asked C. J. Ferguson whether he was a union member. After C. J. Ferguson replied he was not, he was told to go talk to Eugene Stoner (leadman in the machine shop ) further about the work.5 Stoner questioned C. J. Ferguson about his experience and inquired whether he (C. J. Ferguson ) was a union member. When Ferguson replied that he was not, Stoner informed him that "Mr. Ferguson [partner L. C. Ferguson] was very muchly against the Union and it would be best for me to forget all about the Union if I intend to go to work there ." Stoner also said that Respondent's employees had tried to get a union once before and "Mr. Ferguson had fired the men involved. " Immediately after this conversation , C. J. Ferguson was hired by Lead- man Stoner. He went to work as a general machinist. Stoner categorically denied making the statements attributed to him by C. J. Ferguson. For reasons heretofore noted, the Trial Examiner credits the testimony of C. J. Ferguson . More particularly , with respect to Stoner, the record reveals the follow- ing: The general tenor of Stoner 's testimony is that C. J. Ferguson , for several months prior to April 26, 1956, had been a very unsatisfactory employee because he was too slow and that he (Stoner ) had reprimanded Ferguson about this matter several times . Yet, close analysis of Stoner's testimony reveals that Stoner did not tell Ferguson he (Stoner ) was "dissatisfied with his [Ferguson 's] work" and that there was nothing different about what Stoner said to Ferguson than what he said to other employees working with Ferguson and that Stoner's remarks were more in the nature of prodding than in the nature of complaints about slowness. Also, the general tenor of Stoner's testimony is that William C. Landahl had been a very unsatisfactory employee in that he was inefficient at operating Respondent's equipment and his workmanship was very poor and that Landahl was discharged because of too many accidents and poor workmanship . Nevertheless, Stoner testified that he did not talk to Landahl about these matters and the only reason he (Stoner ) gave Landahi for laying him off was "too many accidents ." Stoner denied having any knowledge or suspicion prior to the layoff on April 26, that "union activity was going on out there in the Plant." He testified, "I didn't hear anything about the Union even being con- nected or even talked about it until a day or so after that [after the layoff]." Stoner further testified he did not remember talking to C. J. Ferguson about the Union on several occasions prior to the layoff and that he did not ever recall discussing the Union in the presence and hearing of an employee named Owen and that he did not "discuss the Union with any other leadman." The testimony of employees C. J. Ferguson and Clark C . Neal and of Leadman Jessie L. Boone is directly to the contrary of that given by Stoner concerning these matters. Two or three weeks prior to April 26 , 1956, a general wage increase was made effective at the plant involved herein . C. J. Ferguson , C. R. Maxwell, Clark C. Neal, and Harold W. Boone were "disappointed in the raises " they received and began considering , among themselves , the advisability of joining a union. On the morning of April 16, 1956, C. J. Ferguson telephoned J. M. Scott, general organizer for the Union involved herein, and told him the employees of Respondent were interested in a union and wanted a meeting to discuss the matter . Scott agreed to meet with the employees after working hours that day and a meeting was scheduled for that evening at the Four Brothers Cafe, which is located about a block from Respondent's plant. C. J. Ferguson then talked to Clark Neal , Stanley Mason, Harold Boone, Jessie Lee Boone , and C. R. Maxwell and "several other fellows " and advised them of the meeting to be held that night . The meeting was held as scheduled and was attended by C. J. Ferguson , Clark Neal, Stanley Mason , Harold Boone, Jessie Lee Boone, and C. R. Maxwell. While these individuals were assembled in the Four Brothers Cafe, Don Ferguson, son of partner L. C. Ferguson , came into the cafe. 4 The' findings of fact are based upon - a consideration of the entire record and observa- tions of witnesses . All evidence on disputed points is not set forth so as not to burden.• unnecessarily this report . However, all has been considered and where required , resolved. In determining credibility the Trial Examiner has considered inter alia ; the demeanor and conduct of witnesses , their candor or lack thereof ; their apparent fairness , bias or prejudice ; their interest or lack thereof : their ability to know , comprehend , and understand the matters about which they have testified ; whether they have been contradicted or other- wise impeached ; and consistency and inherent probability of the testimony. L. C. Ferguson did not testify with reference to this conversation. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The employees left the cafe and continued their meeting at a nearby parking lot. Following this initial meeting and up to April 26, 1956, Organizer Scott met on sev- eral different occasions with groups of Respondent's employees. The employees at the meeting on April 16 signed union authorization cards that date. The other em- ployees involved herein signed such cards on the dates indicated below: Larry Dials____________ The record does not reveal the date Dials signed such card but does infer that he signed such a card prior to April 26. Matthew Larry, Jr.----- April 25, 1956. Theodore Gonzales----- April 17, 1956. William C. Landahl_____ April 17 or 18, 1956. On April 23, 1956, Isaac (Al) Whidden, leadman in the 25-ton roller department, told Theodore Gonzales that "one of the men that we trusted the most knew what was going on and was taking Mr. Ferguson [partner L. C. Ferguson] all the infor- mation about the Union, that he [Ferguson] knew the time of the meetings and who signed the cards." On April 24, 1956, Gonzales remarked to Whidden that he (Gonzales) "hated to .see a Union come in because it would knock out a lot of overtime" and Whidden replied that if he (Whidden) "had anything to do with it the Union wouldn't .come in.,, During the forenoon on April 25, 1956, Whidden told Gonzales that he (Whidden) .and his brother, George Whidden, were going to try their best to keep the Union from coming in even if it meant telling L. C. Ferguson about it and that L. C. Fergu- son had told him (Whidden) about having a list of 12 men that signed cards for the Union, and he (Gonzales) was one of them, and he (Gonzales) "had better start hunting for another job," because he was going to get "run off" the next day. That afternoon (about 4:30 p. m. on April 25) L. C. Ferguson and Whidden con- ferred in the 25-ton roller department for about 15 minutes and at the conclusion .of this conversation Whidden came to Gonzales and told him to forget about what he (Whidden) had told Gonzales that morning because he (Whidden) was just joking about it. As noted elsewhere in this Report, Gonzales was laid off on April 26, 1956. Whidden categorically denied making the statements noted above, which were .attributed to him by Gonzales. According to Whidden, Gonzales had been a good worker (so good in fact that at Whidden's request he was transferred from another .department to the 25-ton roller department around the first part of 1956), but about a month before he was laid off he got to where he would not hold up his end of the work-did a lot of "fooling around" and talking-and for the last 2 weeks he was there, he was warned about such conduct (by Whidden) "at least twice and maybe three times a week," and a couple of days before April 25, he was told (by Whidden) that if he "didn't straighten out and start doing his work like he should" he "just might as well look for another job because we wouldn't put up with him messing around back there and half doing his work like he had been doing." -Gonzales was not interrogated about "fooling around" or about "warnings." Whid- den also denied that prior to April 26, he was aware of activity on behalf of the Union. However, Jessie Lee Boone testified without contradiction that on or about April 25, 1956, and before the layoffs, Whidden remarked to him (Boone) and "to the Howard boy," while the three of them were talking about the Union, that he (Whidden) "was going to do everything he could to keep a union out [of Respondent's plant] even [if] it meant trying to get somebody fired." The Trial Examiner credits Gonzales' testimony and finds that Whidden made the remarks attributed to him and noted above. Clark C. Neal testified that about noon on April 26 Leadman Stoner was invited to eat lunch with 'him (Neal), "the Mason boy and another guy by the name of .Jim" and that on this occasion the following occurred: Q. What was said?-A. Well, Gene [Stoner] he wasn't sitting exactly over there where we were. He was over there eating by himself and I asked him what was wrong today and he wouldn't talk or nothing. He had his head down and he raised up and said, No, he was just studying." He got up and came over to where we were at. Q. Did he say what he was studying about?-A. He didn't at that time. He came.over where we was eating and he sat down and he said he was studying about that union deal. I said, "what union deal.". And he said, "don't let on that you don't know anything about it," and he started talking. He said he didn't think a union would ever work there. He said if they did anything they had better do it fast., that there would be some that would be fired. That was .all that was said durig that time. SHOVEL SUPPLY COMPANY 241 Neither "the Mason boy" nor the "guy by the name of Jim" testified herein . Stoner did not "recall" or "remember anything like that." The Trial Examiner notes that the conduct and statements attributed to Stoner by Neal are similar in kind to that attributed to Stoner by other employees and in this light and on the basis of observation of witnesses and the entire record herein credits Neal's testimony and finds the facts to be as noted above. On April 26, 1956, the Union involved herein filed a petition for certification with the Sixteenth Regional Office of this Agency (the Fort Worth office of the National Labor Relations Board ). The time stamp of the Regional Office reveals that this petition was filed at 12:30 p. m. This matter is referred to as Case No. 16-RC-1888. When C. J. Ferguson, C. R. Maxwell, Harold W. Boone, Jessie L. Boone, Matthew Larry, Jr., Larry Dials, Clark C. Neal, and Theodore Gonzales went to the time clock to punch out at quitting time on Thursday , April 26, 1956, they found in place of their timecards their final paychecks and a notice stating: Due to curtailment of operations , we will not be able to use you after today. Should we need you in the future, we will be glad to call you. Thank you for your service. Yours very truly, L. C. FERGUSON. Thursday was not the regular payday and these employees had no prior warning, except as indicated in this report , that their jobs were in jeopardy. These were the only employees laid off on April 26, 1956, and there have been no layoffs since that date "because of shortages." After receiving the layoff notice mentioned above, C. J. Ferguson "stayed around a little bit and then went to the washroom to clean up and go home ." At that time there were approximately 20 persons gathered in the washroom and Bill Charles, leadman in the 2 - to 3- and 3- to 5-ton roller department, referring to the layoffs "hollered out loud for everybody to hear" that "the union had just gone out the door." Charles was not called as a witness in this matter. During the early evening on April 26, 1956, C. R. Maxwell and his wife went into a cafe where they had coffee with Cark Kuhn, plant superintendent. Maxwell asked Kuhn the reason he and the other employees were "fired " and Kuhn told him "well, Ray, I understand that Mr. Ferguson fired everybody that signed a union card." Kuhn further stated that partner L . C. Ferguson had a man at the labor temple giving him information and that he (L. C. Ferguson ) was letting every- body go that had signed a union card . Kuhn told Maxwell that he (Kuhn) had suggested to L. C. Ferguson that Maxwell and another employee not be laid off because laying them off would put Kuhn "in a bind" and that L. C. Ferguson re- fused to abide by this suggestion and was "letting them all go." When Maxwell was employed in 1953 or 1954 (the record is not clear when Maxwell was hired) he was told by Kuhn that L. C. Ferguson did not like unions and that Maxwell was "to understand we didn't have a union out there." During the conversation on April 26, 1956, Kuhn stated to Maxwell "I believe I told you and everybody I hired that Mr. Ferguson didn't go for the union." Kuhn also told Maxwell that L. C. Ferguson had said, "that if men would stay with him that had been with him a long time" before he would go union, he "would close the gate and lock the trucks up" and go somewhere else and start over, that he (L. C. Ferguson ) "had built it up from nothing, and before he would have anybody come in and tell him what to do, he would quit." 6 G The above findings of fact are based upon the testimony of Maxwell which the Trial Examiner credits . Kuhn denied that he ever made any attempts in connection with hiring employees to determine whether they belong to a union or didn't belong to a union , denied that at the time he hired Maxwell (or any other employee ) he told him ( or them) that Mr. Ferguson did not approve of unions or would not go for unions or anything of that sort, and denied that prior to the layoff he was aware of any union activities at the plant or of activities on behalf of the Union by any of the employees involved herein. Kuhn categorically denied that at the meeting with Maxwell and his wife he (Kuhn ) said "I understand Mr. Ferguson fired every man who signed a union card," that he (Kuhn ) stated "I believe I told you and every other man I hired that Mr. Ferguson did not go for unions" and testified he (Kuhn ) did not tell Maxwell that he (Kuhn ) had suggested that Maxwell and another man be retained and that L . C. Ferguson had rejected this suggestion and did not tell Maxwell that L . C. Ferguson had said that before he ( L. C. Ferguson ) would allow a union to come into the plant he would lock the gate and close it down . Kuhn further testified he did not remember all of the conversation , that Maxwell asked why he had been 450553--58-vol. 118-17 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The day following the layoff, Maxwell went to the plant to get his tools. He met Don Ferguson (son of L. C. Ferguson ) who remarked that he was sorry to see Maxwell go, "but you know how the old man feels about the Union." 7 Maxwell then talked to L. C. Ferguson . He asked L. C. Ferguson why he was fired and L. C. Ferguson indicated that he had not been fired, that his (Maxwell's ) work had been "excellent" and that if he could use him again , he would call him. During this conversation Maxwell volunteered that he (Maxwell ) was not promoting the Union and L. C. Ferguson asked him who was promoting it. Maxwell stated he did not know.8 On direct examination Theodore Gonzales testified that on April 27 partner L. C. Ferguson told him that "the shop was really too small to try to get the Union in," that "in a shop of over 200 it would pay to bring a Union in, but the shop was too small." On cross-examination and leading questions Gonzales, in reconstructing this meeting, failed to allude to the above-quoted statements . L. C. Ferguson did not testify with reference .to this matter. The Trial Examiner believes it of little or no value to the issues herein whether L. C. Ferguson made these statements and the undersigned makes no findings with respect thereto. On or about May 2 , 1956, C. J. Ferguson went to the plant to pick up his tools. Stoner asked Ferguson if he was working and when Ferguson answered in the af- firmative, Stoner remarked that he (Ferguson ) knew what was going to happen because he (Stoner) had warned him (Ferguson ) about union activities . Stoner also told Ferguson that partner L. C. Ferguson had talked to him (Stoner) and to Plant Superintendent Kuhn and told them that rather than have a union , Respondent would "just close the doors and start all over again ." Stoner asked C. J. Ferguson whether Clark Neal had signed a union card and upon receiving a negative reply stated that he (Stoner) "was going to try to" reemploy Neal. Stoner denied making these statements to C. J . Ferguson . However, he did not deny asking C. J. Ferguson whether Neal had signed a union card or telling Ferguson that he (Stoner ) was going to try to reemploy Neal. As noted above, Neal was re- employed on May 3, 1956. He works under Leadman Stoner. Stoner did not give his version of the May 2 meeting with C. J. Ferguson. L. C. Ferguson denied that in talking to any "rank and file employees" he made the statement that he would "close the plant down before " he would "let a union come in." He did not deny making such a statement to Stoner or to Kuhn. Kuhn did not testify with reference to such statement. The week following the layoff Neal asked Leadman Stoner "about me coming back" and was told to see partner L. C. Ferguson . Neal went to Ferguson's office and asked him about coming back to work. Ferguson criticized Neal for absenteeism and for excessive use of alcoholic beverage , but agreed to take Neal back because he was "a good hand." In the course of this conversation Ferguson asked Neal if he "belonged to a union," and Neal answered "No, Sir." Ferguson also told Neal that Respondent's business started as a small shop and had been built up to a pretty nice shop and that he (Ferguson ) did not want a union in the shop and "before he would have a union in there he would close it down." 9 During the week following the layoff Leadman Bill Charles sent for Matthew Larry and after getting Larry's assurance that he (Larry) was no longer connected with the Union told him ( Larry) that he (Charles ) would try to get him "back on"-that he would talk to L. C . Ferguson about reemploying Larry and send him (Larry ) word. In July, Charles again sent word to Larry to see him (Charles) "about a job." Larry did and was reinstated on July 3, 1956. When Larry reported for work there was another employee in his job who was transferred to "the other side of the shop," to make room for Larry-10 fired and he (Kuhn) told Maxwell he bad not been fired but had been laid off and that his notice of layoff was self-explanatory as to why. Kuhn testified that Maxwell inquired whether his layoff was "on account of the Union" and lie (Kuhn) told him so far as he (Kuhn) "knew, the Union had nothing to do with it." Kuhn testified there may have been further comments about the Union but he did not recall anything else that was said about the Union. 7 Don Ferguson did not deny this statement which was attributed to him by Maxwell. L. C. Ferguson did not testify concerning this conversation. 9 L. C. Ferguson categorically denied that he told Neal or any "rank and file employees" that "before he would let. a union come into the plant" he "would close it down." The Trial Examiner credits the testimony of Neal and finds the facts to be as noted above. 10 These findings of fact are based upon the testimony of Matthew Larry, J r. Leadman Charles did not testify in this proceeding. SHOVEL SUPPLY COMPANY 243 At the time of the April 26 layoffs, Respondent had in operation 9 departments (a department that manufactured rubber tired rollers of the nonpropelled type, a department that manufactured self-propelled rollers, a department that manufactured tamping rollers, a department that manufactured cutting edges, a department that manufactured drill steel, a department that manufactured 2- to 3- and 3- to 5-ton rollers, a department that manufactured 5- to 8- and 8- to 12-ton rollers, a depart- ment that manufactured 25-ton rollers, and a general machine shop which manu- factured parts for all of the other departments). In February or March 1956 these departments began working 50 hours and continued this work schedule until the steel strike about July 1, 1956, at which time the overtime hours were eliminated. Also, the 5- to 8- and 8- to 12-ton roller and the 25-ton roller had only been in production for a few months prior to April 26, 1956, and Respondent had not reached its peak of production of these rollers by April 26. The layoff was made effective primarily, if not exclusively, among employees in the 2- to 3- and 3- to 5-ton roller department, the 5- to 8- and 8- to 12-ton roller department, the 25-ton roller depart ment, and the machine shop-departments where employees active on behalf of the Union worked. During the months immediately prior to and immediately after April 26, 1956, employees were hired in each of the departments affected by the layoffs and the total complement of employees increased. In the machine shop where 2 of the laid-off employees worked (C. J. Ferguson and Clark Neal), 21 employees were hired after April 26 and there was a net increase since March 1, 1956, of 4 employees. In the manufacture of its products Respondent uses large quantities of steel plate, ship channel, shafting, bearings, castings, engines of various kinds, torque converters, clutches, and component parts, including tires, wheels, and rims. As noted elsewhere in this report, Respondent contends that the layoff on April 26 was "due to curtail- ment of operations" because of "shortage of suitable steel and materials." In con- nection with this contention Respondent introduced into the record certain testimony and exhibits of an economic nature which it contends establishes a shortage of prac- tically everything which Respondent uses began in mid-1955 and grew progressively worse from January 1, 1956, to April 26, 1956. However, the evidence adduced is insufficient to make a comparison of steel and materials on hand on a month-by- month basis or to compare the situation in April with that existing in the preceding months and, thus, insufficient to determine whether the layoffs were with or without economic justification. Records from which comparisons could be made were avail- able, but neither the records themselves nor pertinent summaries thereof were made a part of the record herein. Possibly an inference may be drawn that such evidence, if -adduced, would not have been favorable to Respondent (see N. L. R. B. v. Wallick and Schwalm Company, 198 F. 2d 477 (C. A. 3) ), but it is not necessary to draw such an inference herein. Assuming, arguendo, that Respondent's economic situation in April 1956 was such that it would justify layoffs, the undersigned is not persuaded that business reasons motivated the layoffs on April 26. A justifiable ground for dismissal is no defense if it is a pretext and not the moving cause. (See N. L. R. B. v. Solo Cup Co., 237 F. 2d 521 (C. A. 8).) Several factors, in addition to the evidence of Respondent's hostility towards the Union and its desire not to operate with it (noted above), lend persuasive support to the contention that. the layoffs were not motivated by business conditions but were because of Respondent's hostility toward the Union. If there was, in fact, a critical and progressively worse shortage of materials, why had Respondent recently under- taken the manufacture of the 5- to 8- and 8- to 12-ton rollers and the 25-ton rollers, which required substantial amounts of steel and materials? Why was a layoff necessary on April 26 when hours had not yet been cut, when there was no other layoff and only hours were cut, even during the steel strike (which began about July 1, 1956)? All departments were affected, if any were, by the steel shortages. Yet, the layoffs were made effective primarily, if not exclusively, in departments where employees active on behalf of the Union worked. These facts, taken together with the timing of the layoffs (during the initial stages of organizational efforts), the sequence of events, the abruptness of the layoffs without prior warning, and the revealing remarks noted above, make it apparent that the layoffs were not for business reasons, but for the purpose of eliminating the Union from the scene. It stretches credulity too far to believe that there was only coincidental connection between the union activities then current, and the abrupt terminations of employment. On the basis of the entire record the Trial Examiner is not persuaded that the layoffs on April 26, 1956, were motivated by economic considerations and believes and finds that they were because of activity on behalf of the Union. Accordingly, the Trial Examiner finds that Respondent discriminatorily laid off Harold W. Boone, Larry Dials, C. J. Ferguson, Matthew Larry, Jr., C. R. Maxwell, Clark C. Neal, and Theodore Gonzales. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Landahl Landahl was hired by Stoner in April 1956 as a partially experienced turret lathe operator. A few days after he started working, he mashed the index finger on his left hand, but the only loss of time occasioned thereby was the amount required going back and forth to the doctor that day." On May 22, 1956, Landahl smashed "the little finger" on his left -hand and again lost only such time as was required to visit the doctor that day. Landahl signed the union authorization card on April 17 or 18, 1956 , but was not active on its behalf prior to the layoff on April 26. However, after the layoff he became Organizer Scott's contact man and was very active in promoting the Union's cause. On May 26 (not a regular payday ) Landahl was discharged by Stoner and given a notice from partner L. C. Ferguson stating: Due to your high accident rate and that we are compelled to reduce forces, your services will be terminated as of noon today. Thank you for your services. Landahl testified that about a couple of hours before he was discharged: He (Stoner ) come around and told me that, he said he hated to have to let me go, but he said the old man is getting hot on me, that I had had too many •accidents and that he was going to have to let me go because of it. He had already had one insurance cancelled on account of accidents, so after that I told him, I said, "at least I know it's not your fault ." I said, "It is probably just as well because I would probably be let go anyway because I was trying to get the Union in." ' Stoner acted like he didn't know anything about it and I said , "Maybe one thing will be accomplished anyway, maybe the fellows will get a chance to vote for it." He said, "They won't ever get a chance to vote for it. They won't ever get a union in here to start with because the old man will shut down the plant first." I said, "At least they will get a chance to vote for it whether they vote or not." He said, "They won't ever get to vote anyway; where do you think I have been all morning," and then he offered to bet me any amount of money I wished to bet that they wouldn't have a vote out there. L. C. Ferguson first testified Landahl was laid off because of his accident record and left the impression that Respondent's insurance company had "raised Cain" about this record. L. C. Ferguson's later testimony indicates he (Ferguson ) did not know whether the insurance company had complained specifically about Landahl's accident record.12 Still later, L. C. Ferguson indicated Landahl had a poor performance (he was very inaccurate ) and that this plus his accident record was the cause of his discharge. Ferguson did not give a satisfactory explanation of what "reduction in forces" (see notice given Landahl ) was contemplated at the time of Landa h l's dis- charge and indicated that the reduction of forces did not have anything to do with Landahl's discharge. Kuhn first indicated shortage of materials played a part in Landahl 's discharge, but later testified that Landahl was laid off solely because "he couldn't produce and every time he done a job, he got hurt" (was laid off solely because of "too many mistakes and too much hurt" ). Kuhn testified that Landahl had several injuries (such as cut fingers requiring first-aid treatment ) in addition to the two injuries noted above. Kuhn also testified that there were several complaints about Landahl 's work. The nature and extent of these complaints are not revealed by this record. Stoner testified that in addition to the two injuries noted above, Landahl "had several other little accidents that we took care of there at the shop" and that Landahl was discharged because of "too many accidents" and at the time of his discharge he told Landahl he was being discharged because he had too many accidents. Later in his testimony, Stoner indicated that Landahl 's workmanship was not satisfactory and that this played a part in the discharge of Landahl . However, Landahl was not told about these deficiencies. Concerning the statements attributed to him by Landahl and noted above, Stoner testified: Q. I see. All right. What did you tell him was the reason he was being terminated?-A. I told him I was letting him go because he had too many accidents. 11 Respondent's records revealed that this accident occurred on April 3 or 5, 1956. '2 The record indicates there was no complaint from the insurance firm directed spe- cifically at Landahl. SHOVEL SUPPLY COMPANY 245 Q. What did he say to you about that?-A. He said that was all right. If that's the way it was, that's the way it was. Q. All right. Did he or not at that time tell you that it was just as well because he had been trying to get a union in the plant?-A. I believe he men- tioned something about it. I don't recall exactly what it was. Q. All right. Now, did you tell him in response to his statement that he had been active in trying to get a union in the plant, that they would never get a union in the plant?-A. No. Q. He further states that at that time, and that's at the termination time, after he had told you that he was active in the Union and it was just as well that he was being let go, did you tell him that the old man would shut down the plant before he would let a union come in?-A. Oh, no, Sir. Q. Did you tell him anything remotely resembling that statement?-A. No, Sir, I don't remember telling him anything like that. Q. All right. He further states that at that time and as a part of that same conversation, that you offered to bet him any amount that he wanted to bet that they would never even have an opportunity to vote on the Union.-A. No, Sir. Q. That didn't occur?-A. No, Sir. While there are certain flaws in Respondent's evidence concerning Landahl and the entire evidence adduced raises a suspicion as to Respondent's real motive in discharging Landahl, the Trial Examiner is not persuaded that the discharge was because of union membership or activity. The suddenness of the discharge without prior warning, approximately a week after Landahl's most recent accident, the evidence of Respondent's hostility toward the Union, and the inconstant explanations for the discharge offered by Respondent, raise a suspicion that Respondent became aware of Landahl's union activities and discharged him for the purpose of eliminating from the scene a union protagonist. Suspicion, however, is not proof. The burden is on the General Counsel to prove by a preponderance. of the credible evidence that Respondent's conduct toward Landahl was motivated by antiunion considerations. In the opinion of the Trial Examiner, he has not sustained this burden. Notwith- standing a suspicion of discrimination, the Trial Examiner is unable to find that the discharge of Landahl was without economic justification and the Trial Examiner believes and finds that the record lacks a preponderance of evidence that it was motivated by antiunion considerations. Accordingly, the Trial Examiner recom- mends that the allegations of the complaint with respect to this matter be dismissed. ULTIMATE FINDINGS AND CONCLUSIONS In summary, the Trial Examiner finds and concludes: 1. The evidence adduced in this proceeding satisfies the Board's requirements for the assertion of jurisdiction herein.13 2. Local 96, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO, is a labor organization within the mean- ing of the Act. 3. The evidence adduced establishes that leadmen are supervisors within the meaning of the Act. 4. The evidence adduced establishes that Respondent on April 26, 1956, discrim- inatorily laid off Harold W. Boone, Larry Dials, C. J. Ferguson, Matthew Larry, Jr., C. R. Maxwell, Clark C. Neal, and Theodore Gonzales and thereby violated Section 8 (a) (1) and (3) of the Act. 5. The evidence adduced established that Respondent interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in the Act and thereby violated Section 8 (a) (1) of the Act. 6. The aforesaid activities are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 7. The evidence adduced does not establish that Respondent discharged William C. Landahl for the reason that he joined or assisted the Union or engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection. [Recommendations omitted from publication.] 13 Respondent Is engaged in Texas in the manufacture and distribution of road-construc- tion equipment and supplies and in the course of conduct of its business annually receives from points and places outside of Texas materials having an approximate value of $350,000 and annually ships finished products having a value in excess of $50,000 in interstate com- merce to points and places outside of Texas. 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in, or activities on behalf of , Local 96, International Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO, or in or on behalf of any other labor organization of our employees , by discriminating in any manner in regard to terms or conditions of employment. WE WILL offer to Harold W. Boone, C. J. Ferguson , C. R. Maxwell, and Theodore Gonzales immediate and full reinstatement to their former positions without prejudice to any rights previously enjoyed. Clark C. Neal, Matthew Larry, Jr., and Larry Dials were reinstated on May 3, July 3, and July 9, 1956, respectively. WE WILL make whole Harold W. Boone, Larry Dials, C. J. Ferguson, Matthew Larry, Jr., C. R. Maxwell, Clark C. Neal, and Theodore Gonzales for any loss of earnings suffered as a result of the discriminations against them. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to engage in, or refrain from engaging in, union or concerted activities for the purpose of collective bargaining or other mutual aid or protection. All employees are free to become, remain, or to refrain from becoming or remain- ing members of Local 96, International Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths , Forgers & Helpers, AFL-CIO, or any other labor organization. L. C. FERGUSON AND E. F. VON SEGGERN d/b/a SHOVEL SUPPLY COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. California Date Growers Association and United Packinghouse Workers of America, AFL-CIO, Local Union No. 73.1 Case No. 21-CA-2130. June 21, 1957 DECISION AND ORDER On February 20, 1956, Trial Examiner William E. Spencer issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging 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 Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not violated the Act in certain other respects. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. The Respondent also filed a reply brief 2 1 Herein called the Union. 2 The Respondent's request for oral argument is hereby denied as the record , exceptions, and briefs , in our opinion , adequately present the issues and positions of the parties. 118 NLRB No. 29.