Metal Arts Co.

METAL ARTS COMPANY 183 NOTE.-We will notify the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Any employee having a question concerning the above notice or what it requires may inquire by mail, telephone , or in person at the Board's Regional Office, 614 ISTA Center, 150 West Market Street, Indianapolis , Indiana, Telephone No. Mel- rose 3-8921. Metal Arts Company and Richard W. Johnson. Case No. 03-CA- 1703. August 4, 1964 DECISION. AND ORDER On May 6, 1964, Trial Examiner William Seagle issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief; the Respondent filed a brief in support of the Trial Examiner's Decision. 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 [Members Leedom, Fanning, and Brown]. The Board 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 Trial Ex- aminer's Decision and the entire record in this case, including the ex- ceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' [The Board dismissed the complaint.] ' Contrary to contentions made here , we do not find sufficient basis in the record, con- sidered as a whole, for rejecting the Trial Examiner 's credibility resolutions . Standard Dry Wall Products, Inc, 91 NLRB 544 We adopt the conclusions of the Trial Examiner which are based upon the credited testimony , but do not adopt or pass upon opinions included in his Decision which assume facts different from those found TRIAL EXAMINER'S' DECISION STATEMENT OF THE CASE This case was heard before Trial Examiner William Seagle at Houston , Texas, on January 20, 21, and 22, 1964, upon a charge filed on October 24, 1963, and a complaint issued on December 5, 1963, alleging that the Respondent had violated Section 8 (a) (1) and (3) of the Act. Subsequent to the hearing counsel for the Gen- eral Counsel and for the Respondent filed briefs, which have also been considered. 148 NLRB No. 18. 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the record so made, and in view of my observation of the demeanor of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE RESPONDENT The Respondent, Metal Arts Company (hereinafter referred to as Metal Arts), is a Texas corporation engaged at Houston, Texas, in the fabrication of metal prod- ucts, principally for the chemical industry. The Respondent has customers through- out the United States and it makes, annually, shipments out of the State of Texas valued at no less than several hundred thousand dollars. II. THE LABOR ORGANIZATION INVOLVED Sheet Metal Workers' International Association, Local Union #54, AFL-CIO (hereinafter referred to as Local 54, or simply as the Union), is a labor organiza- tion within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Metal Arts was established as a business about the year 1949. It was at first a very small company, and was engaged in doing kitchen equipment work and some air-conditioning and duct work. Subsequently, the nature of its business changed, and it shifted to the fabrication of large industrial tanks and vessels, which involved the use of heavy gauge plate. At the present time Metal Arts employs approximately 60 production and main- tenance employees. The business is run by Robert W. Milner, Jr., its president, with the assistance of his nephew Bob Milner, who is shop superintendent, and Leroy Pyle, who is shop foreman. There are also five other foremen-the welding fore- man, the foreman in the tank column department, the foreman in the pneumatic conveying department, the foreman in the machine shop, and a night foreman, who has charge of a second shift which begins at 3:30 p.m. At the time when Metal Arts was doing kitchen equipment work, Local 54 of the Sheet Metal Workers Union represented its employees, and, ultimately, the Union appears to have been certified as their bargaining representative. Apparently Metal Arts bargained with the Union through a multiemployer association, and a collective- bargaining agreement negotiated through the association was in effect in 1961. The elder Milner came to feel, however, that since the nature of the business had changed, his employees would be represented more appropriately by the Boiler- makers, whose lower rates would better enable him to maintain his competitive posi- tion. Consequently, he gave notice that he wished to bargain separately from the multiemployer group, and terminated the current contract as of March 31, 1961. Despite the termination of the contract, however, Milner maintained the contractual working conditions, except that he discontinued payments into the union welfare fund. As a substitute for this benefit, he arranged health insurance for his em- ployees through the Blue Cross, and paid the premiums for this insurance. A rather paternalistic employer, who was on very friendly terms with his employees, he also made loans to them, and in 1963 he made 88 such loans to them, totaling ap- proximately $10,000. He also provided them with half-paid life insurance. In 1962, a movement for decertification of the Union was launched by one of the Metal Arts employees by the name of James K. Sapp. A decertification petition was filed with the Board's Regional Office, and an election was held on June 22, 1962, as a result of which the Union was decertified. A few months after the Union had been decertified the wage rates prevailing in the plant were generally reduced. As a result, apparently, there occurred an exodus of 9 or 10 of the employees.' In June 1963, the Union launched a campaign to regain its representative status, and two union representatives, whose names are Woodall and Crump, passed out pamphlets and authorization cards on the road leading to the plant. This was 'One of these, Jimmie Heyser. returned in January 1984, and Milner took him back after commenting, characteristically, on his need of a haircut, and on how thin he looked. "What is the matter," Milner kidded Heyser, "you been missing some meaas'+" METAL ARTS COMPANY 185 followed early in July by a meeting of the employees, the meeting being arranged as the result of the efforts of Richard W. Johnson, one of the Metal Arts employees, who became the chief supporter of the Union. In July, the Union petitioned for an election and submitted authorization cards to the Regional Office in support of its showing of interest. Believing the signatures on some of the union authorization cards to have been forged,2 the elder Milner asked each one of the employees to sign his name on a blank card, and turned the cards over to the Regional Office, which had declined an offer by Milner to compare the signatures on the authorization cards with the signatures of the employees on their applications for employment that were in the plant personnel files. In requesting the employees to put their signatures on the cards to be submitted to the Regional Office, Milner asked none of them whether he had signed a union authorization card. However, in asking Johnson for his signa- ture, Milner remarked to him: "Well, I want to get your signature, but I know you signed one of the cards, and I know yours was genuine." Notwithstanding the submission of the signature cards to the Regional Office, an election was scheduled for August 16, 1963. On August 14, Milner had posted on the plant bulletin board a notice concerning a cocktail party and dinner to be held the evening of the following day at a Mexican restaurant called the Santa Anita. This notice read as follows: To: All Employees of Metal Arts Company. I am sorry that I haven't had time to write a bunch of love letters to all of you lately, as the bulletin which was put out by the Union stated that I would be doing. You and your wives and/or sweethearts, if you happen to be single or divorced, are invited to a cocktail party and dinner to be held at the private dinning [sic] room of the Santa Anita Mexican Restaurant which is located at 1919 Louisiana Street. The cocktail party will begin at 6:30 p.m , Thursday evening, August 15. I hope that all of you employees and your wives will be able to attend. METAL ARTS COMPANY, R. W. MILNER, JR., President. P.S. Mr. Johnson, if you desire a copy of this letter to take to the union hall, my secretary will be glad to furnish it to you. It is not clear whether the cocktail party and dinner at the Santa Anita restaurant was an annual affair. In any event, just what was said by Milner or anyone else or just what happened at the Santa Anita restaurant on August 15, 1963, is ex- tremely hazy. It is clear, however, that on this occasion Milner made the statement to the employees that he had been told by the Blue Cross representative that the Blue Cross would have to discontinue its coverage of the employees if they were covered by a union welfare fund. It is also clear that there was an unpleasant incident at the Santa Anita restaurant as the guests were departing. As Leon Bates, one of the employees who was a welder, was leaving, he found Johnson and another employee by the name of Lester Paschall standing by the door. Johnson asked Bates how he would vote in the forthcoming election, and when Bates replied that he would vote nonunion, Johnson proceeded to call Bates "a suck-ass son of a bitch," and when at this point Bates' wife came up, Johnson also asked her: "How do you live with a sorry son of a bitch like that?" Bates was, of course, extremely angry, and, believing that Johnson and Paschall were about to jump on him, he pulled his knife out. Before he could make use of it, however, he was restrained by some of the other employees who, appar- ently, had observed the fracas. The election was held on August 16, the day after the dinner at the Santa Anita restaurant. Johnson acted as the Union's observer in the election. The Union lost the election by a vote of 20 to 34. 2 This belief on Milner's part seems to have been induced at least in part by the com- plaint of an employee by the name of Peter Knaut that pressure was being put on him to sign a union authorization card because the Union needed his signature to make the 30-percent showing of interest. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 22, in a reduction in force necessitated by a falling off in production,3 nine employees, including Richard W. Johnson, were laid off. These employees and the dates on which they had been hired were as follows: 4 Employee Date hired 1. Jerral Gordon----------------------------------------- 8/14/61 2. Richard W. Johnson__________________________________ 8/29/61 3. Carl J. Montgomery____________________________________ 8/13/63 4. Griffith H. Rutherford__________________________________ 5/3/62 5. James A.Sandlin-------------------------------------- 7/24/62 6. Horace A. Smith______________________________________ 8/29/63 7. George N. Trombitas__________________________________ 1/14/63 8. Billy Ray Turner______________________________________ 9/25/63 9. Praxedis Vela_________________________________________ 9/25/61 A. The alleged 8(a) (1) violations The charges against the Respondent in the present proceeding stem from alleged acts of interference, restraint, and coercion on the part of Milner in the preelection period and the inclusion of Johnson in the layoff of October 22. Milner is charged in the complaint with the interrogation of employees concerning their union activities, and with threats to discharge employees "on or about June 23, 1963." In support of these charges, two of the laid-off employees, Jerral Gordon, who had been employed as a mechanic, and Griffith H. Rutherford, who had been employed as a welder, were called as witnesses by counsel for the General Counsel. Gordon testified that one Sunday, prior to the election, while he was eating his lunch in the toolroom after working on two stainless steel vessels, Milner came up to him and asked him whether he had been to the union meeting several days pre- viously, and that when he denied this-actually he had been to the meeting-Milner asked him if he knew who was pushing the Union in the shop. According to Gordon, when he also denied knowledge on this score, Milner confided to him that if he knew who the men were who were pushing the Union, he would get rid of them be- cause he did not want anyone working for him who was dissatisfied. Milner testified that he had no recollection of any toolroom conversation with Gordon, and that the only conversation with Gordon that he could recall occurred one evening after the office force had left, and Gordon came into his office. Ac- cording to Milner, Gordon suggested in the conversation that if he raised the men's wages, they would take more interest in their work, and that he then told Gordon that he could not raise the men's wages and still maintain his competitive position. Milner explicitly denied that the Union was even mentioned in the conversation, or that he asked Gordon who had been to the union meeting or who was pushing the Union. "I didn't have to ask him that," explained Milner, "because that information was coming to me all the time right out of the plant." Milner also denied that he threatened to get rid of the union adherents. "I have got more sense than that," he explained. Rutherford testified to two conversations with Milner. According to Rutherford, the first conversation occurred on a day after there had been a union meeting, and Milner came into the T-room 5 where he was working and asked him what he thought "about them boys down at the union hall, them organizers Rutherford testi- fied that when he then remarked to Milner that they seemed like pretty nice fellows, Milner asked him how he "got roped into the deal," and told him that "he wouldn't be able to give us the benefit of insurance if the union came in because the insurance company wouldn't let them have insurance on us if we belonged to another welfare fund " According to Rutherford, the second conversation occurred on the very day of the election, when he went, of his own accord, into Milner's office to tell the latter how he felt about the Union. He told Milner, he testified. that if he were paying him $5 an hour he would be trying to get $6, and that Milner could not hold it against "a bunch of men for trying to better themselves if they thought they could." There then occurred, according to Rutherford, the following colloquy: MILNER: Well, even if you do win it you can't make me sign anything. RUTHERFORD- No, we might not be able to make you sign anything but we sure could make it hot on you. MILNER: Well, if it got that hot I could either just sell it or shut it down. 6 There 19 no contention that the reduction In force was not necessary 4 One other employee by the name of Enrique L. Vela, left voluntarily to take a Government job. 5 The T-room is a sealed , air-conditioned chamber where titanium Is welded. METAL ARTS COMPANY 187 Milner denied that he had ever talked to Rutherford in the T-room; indeed he expressed doubt that Rutherford could weld titanium. Milner also denied that he had had any conversation with Rutherford on the very day of the election. Milner was positive that on the day of the election someone who was sick was lying down part of the time on the couch in his office, and that the office was in use the rest of the time in connection with preparations for the election which necessitated con- ferences with the union officials. Milner admitted that he did have a conversation with Rutherford about the Union but he testified that it occurred about a week or so before the election. He also admitted that the substance of the conversation was correctly reported by Rutherford except that Milner denied that he said that he would sell the plant or shut it down. Milner explained that what he actually, said was that he would not be worried about any picketing because all the metal which he would need would be delivered on his railroad spur. I credit the testimony of Milner as against the testimony of Gordon and Ruther- ford with respect to these incidents. While Milner had far from an infallible memory, when he did remember something, he could hardly restrain himself from giving utterance to it, and, usually, in the most colorful language. His candor was, evidently, total, even under circumstances when it would have been wiser to be reticent. Gordon's testimony is, indeed, almost inherently incredible, and Milner himself supplied the necessary critique of it. Milner did not need to pump Gordon about who was pushing the Union for the simple reason that his knowledge of union activities was always encyclopedic. The record is replete with instances of employees who were running to Milner to tell him who was for or against the Union, and what the Union was doing. Some of them even told Milner how they would or had voted. Milner summoned none of them to his office; they always came to him, and there is nothing to show that he had to or did encourage them in any way. So far as the union situation is concerned, Milner was the father-confessor. It could more justly be said that he was interrogated by the employees rather than that he interrogated them. It would not be correct to say, moreover, that Milner was an antiunion employer. It can be said at most only that, from motives of self-interest, he favored the Boiler- makers as against the Sheet Metal Workers. Of course, such a motive could lead to the commission of unfair labor practices in certain circumstances. But I can find no convincing evidence here of an organized antiunion campaign. When such a campaign is underway, the employer usually enlists the active assistance and the cooperation of his foremen. Milner had five of them but not a single act of inter- ference, restraint, or coercion is even charged against them unless it be the inclusion of Johnson in the layoff. It is only Milner who is accused, and even the acts of interrogation and the threats charged against him seem no more than a few isolated instances which may have occurred over a period of several months-in June, July, or August 1963-for neither Gordon nor Rutherford had any recollection as to when their conversations or alleged conversations with Milner occurred except that they must have occurred before the election. To put it in another way: even if I were to credit the testimony of Gordon and Rutherford, it would hardly amount to very much. Upon the assumption that Gordon and Rutherford actually initiated the conversations with Milner, their testimony would amount to even less. Employees who lead an employer into discussing their union problems can hardly complain very much if he sometimes gives utterance to an injudicious remark. An employee who is told by an employer that the union of which he is a member will make it hot for him should not be very much surprised if the employer threatens that in such an event he will go out of business. It is true that Milner took the initiative in securing the signature cards from the employees, and that this involved planning on his part. This would have been an unfair labor practice if the signatures had been requested only from those employees who had signed union authorization cards. I find no credible evidence, however, that any employee was asked whether he had signed a card for the Union. Since all employees were asked for their signatures, and the signature cards were then turned over to the Regional Office, I do not believe that these acts amounted to an unfair labor practice, although I believe that it would have been better if they had been avoided, for by the mere act of requesting the signatures, Milner was making it plain to the employees that he was seeking to prevent an election, and that he was opposed to having to do business with the Sheet.Metal Workers. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is also true that Milner seems to have called a shop meeting of all the em- ployees on the day shift at some time before the election, and that this, too, repre- sented a deliberate act on his part.6 But the only employee who testified in any detail about what Milner is supposed to have said on this occasion was Johnson,7 whom I do not consider to be a trustworthy witness. Johnson testified on this subject during his direct examination as follows: Q. On any other occasion besides that (the obtaining of the signature cards). did Mr. Milner have anything to say about your union activities? A. Well, in a group out there they called a'meeting of the shop and Mr. Milner told us that if the union got in there that we were going to lose our insurance. Q. When was this? A. Towards the last part of July. [Emphasis supplied.] Q. I mean where were you? A. In the shop. Q. In the shop? A. Yes, sir. Q. O.K. A. And he said that anybody that was for the union out there was just a sorehead and an agitator, and that he wished that they would be man enough to get up and come get their check because they were just irritating everybody else around there. And two days later, or so, he put up this P.S. letter to me, which directly put the "sorehead" and "agitator" on my back. [Emphasis supplied.] During his cross-examination about this same shop meeting, Johnson again re- peated-even more definitely-that Milner's remark about the soreheads and agi- tators was made in a speech in the shop "the last part of July, somewhere in there," and added that Milner's speech was preceded by a speech by Leroy Pyle, the shop foreman, in which Pyle spoke "on production they had around there." It is ap- parent that Johnson's timing of this shop meeting is contradictory Although he seemed to think that the meeting occurred in July, he also definitely testified that it took place "two days, or so," before Milner's notice concerning the Santa Anita dinner, although this notice was dated August 14. Milner denied that he made any statement about soreheads and agitators getting out, and I credit his denial. So far as Milner's statements concerning the health insurance are concerned- assuming that they were made at the shop meeting, as well as the Santa Anita dinner-I do not believe that Milner exceeded the bounds of fair comment. He undoubtedly had a strong talking point in stressing the value of the Blue Cross insurance, and the possibility that it might be lost and if what he said was true- and there is nothing to show that it was not-I do not believe that what he said amounted to an unfair labor practice. B. The alleged 8(a)(3) violation It is also alleged in the complaint that the Respondent discriminatorily d;scharged Johnson. This charge stems from the fact that he was put on the layoff list of October 22 and laid off that day. Upon being hired on August 29, 1961, as a welder-trainee at $2 50 an hour Johnson was out on the night shift where he worked under a foreman named Ira L. Looper. Although hired as a welder-trainee, Johnson never qualified as a welder, and after a few months, he was put on fitting, working as a fitter's helper, and doing some simpler type of fitting himself. On June 29, 1962. which was 10 months after he had been first employed, his pay was raised from $2.50 to $2.60 an hour. In August 1962 Johnson, who hailed from Minnesota. used his vacation period to make a trip there by car 8 but overstayed his leave, and on his return Looper fired him. e It is not ton clear from the complaint, which is extremely particularistic whether the calling of this shop meeting and the remarks made at the meeting are intended to be charged as an unfair labor practice. The evidence was received, however, without objection. 7 During his cross-examination Rutherford made not much more than a passing refer- ence to what must have been this same meeting. 8 Johnson testified that the purpose of the trip was to attend the wedding of his sister- In-law but Milner testified that he had been told that Johnson's wife had left him and that he went to Minnesota to try to get her back r, METAL ARTS COMPANY %^ .^'?•?L 11,89 On the pink discharge slip, which recorded this personnel action, and which was dated August 27, 1962, Looper rated Johnson's conduct as "good," his ability and production as "fair," and his attendance as "poor"; Looper also entered on the line of the slip provided for "remarks" the comment. "doesn't show up for work " How- ever, Johnson remained in the Respondent's employ despite Looper's action, being reinstated by Bob_ Milner, the elder Milner's nephew, and put on the day shift. Johnson worked on the day shift until about the middle of September 1963 when Bob Milner transferred him back to the night shift. However, Johnson worked on the night shift for only a few weeks. He was put back on the day shift when his wife was hospitalized, and he pleaded that he had to take care of the children at night. He was still working on the day shift when he was terminated in the reduc- tion of force on October 22, 1963. When terminated, he was still making only $2.65 an hour, although he was constantly making efforts to get another raise. If one were to believe Johnson's testimony concerning the circumstances of his layoff, the conclusion would be inevitable that he was put on the layoff list as an act of retaliation for his union activity, of which Milner and Pyle admittedly had knowledge. Thus Johnson testified to the following incidents: (1) After the election-it was about the first of September-he approached Milner and asked him for a raise, and Milner remarked to him: "Well, go ask Mr. Woodall for it." 9 When he still persisted, Milner told him that all the foremen had turned him down for a raise.10 Thereupon he went and asked each of the foremen whether he had turned him down for a raise, and each of the foremen in turn denied it. 2. About October 10 he again asked Milner for a raise, and again Milner re- marked to him: "Why don't you go talk to Woodall?" When he replied that they "had already been over that," Milner declared: "You know, Johnson, you have cost me two thousand dollars in that election we just had. I had to find out what I could do or couldn't do in this election." Milner and he walked outside, and sat down and talked some more. Milner explained his "overhead costs out there, this, that and the other thing," and then remarked: "You know, Johnson, we knew we couldn't fire you because we would wind up in court-, so we decided that we would make it so damn rough on you that you would have to quit." [Emphasis supplied.] 3. When he was laid off, he asked Leroy Pyle, who broke the bad news to him, when he would be called back, and Pyle replied: "Well, maybe in a month or six weeks." Johnson expressed skepticism on this score, saying: "Well, is that true or is it just ." when Pyle interrupted him to remark: "Well, it wasn't my idea to lay you off. I was satisfied with your work. But the Old Man ( meaning Milner) is like an elephant. He don't forget anything." Milner denied making the remarks attributed to him by Johnson, and Pyle denied those attributed by Johnson to him, and I credit their denials. In addition, I credit the denials of the foremen who testified that they had not told Johnson that they had turned him in for a raise. It is quite evident to me that Johnson's testi- mony has no correspondence with reality, and reflects only his enormous capacity for self-deception and self-justification. In the end, he succeeded in convincing himself no doubt that he had actually heard what he imagined would help his case. But he overdid it; his testimony is simply too pat. The only truth in it is that he would not give up in trying to get a raise. There are indications of invention in Johnson's testimony itself. It is clear from the testimony of all the foremen, if not from the testimony of Milner, that despite Johnson's persistent efforts to secure a raise, he had been repeatedly turned down over a period of almost 11/2 years. As Milner put it, whenever the question of 'a raise for Johnson came up, the vote of the foremen was "thumbs down." There were two reasons for this One was that they did not share Johnson's exaggerated estimate of his own abilities and accomplishments; the second reason was that Johnson had been hired originally at an excessive hourly rate of pay. A helper was usually started at $1.50 an hour but Johnson had been hired at $2.50 an hour as an appren- tice welder. Milner attributed this to the fact that Johnson was such a smooth talker that he had talked the foreman who had hired him into giving him the $2.50 an hour. As Milner put it: "Johnson should have been put on the payroll at a dollar and a half, but Johnson is a smoothie . Johnson is a real good talker. He can damn 9 Woodall has already been mentioned as one of the Union's representatives. io It was customary for the wage rates of the employees to be reviewed periodically by Milner and his foremen . Such a review had just taken place, and Johnson had been denied a raise. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD near sell a man on the idea that hell is an ice house." In these circumstances, it is hardly likely that the foremen would tell him in effect that they were on his side, and that they had not turned hun down for a raise. Moreover, since the conferences in which the wage rates of employees were reviewed were supposed to be confidential, they would hardly reveal to Johnson what recommendations had been made at the conference. It is even more unlikely that Milner, who, for all his flamboyance, had been prudent enough to seek the advice of counsel, would have revealed to Johnson the innermost recesses of his mind. Milner had addressed the sardonic P.S. to Johnson, to be sure, but this could hardly be put in the category of revelation, for everybody, including Milner, knew how hard Johnson was pushing the Union, and it was revealing no secret to admit such knowledge. On the other hand, if Milner expected that Johnson's case would "wind up in court," he would hardly have told hint something which would not only be certain to make it wind up in court but to wind up in favor of Johnson. Then, again, Milner would hardly have threatened to make things rough for Johnson if he intended to get rid of him in a layoff which already was impending. Moreover, in the period of approximately 2 weeks that elapsed between the conversation in which Milner is supposed to have made this threat and Johnson's layoff, Johnson was not subjected to anything that could be described as rough treatment. Furthermore, it is also of some significance that about a month before this conversation he had been put back on the day shift be- cause of his wife's illness, which, surely, was an act of special consideration, if not kindness. As for Pyle, he would hardly have told Johnson that he would be recalled in a month or so when this was very unlikely.ii The layoff was not expected to be of brief duration, and events proved that it was not of brief duration, for nobody was actually recalled until January. Furthermore, Pyle would be even less likely than Milner to say anything to Johnson that would be both incriminating and disrespectful, such as the elephant remark, for he would have to fear not only the day of reckoning in court but also Milner's wrath. As a matter of fact, the record shows that Milner's memory was far from phenomenal. Once Johnson's direct evidence is rejected, however, the circumstantial evidence seems altogether too weak to sustain the charge that Johnson's inclusion in the layoff of October 2 was discriminatory. Although the animus against Johnson is supposed to be Milner's, it was not Milner who put his name on the layoff list but Pyle. After making up the list Pyle showed it to Milner and Milner gave his approval: But there is no evidence that Johnson's union activities were discussed at the time that Pyle showed Milner the list. The only certain knowledge of Johnson's union activities that was possessed by Pyle was that he had acted as the Union's observer in the election. There is no showing that Pyle was actuated by union animus in including Johnson in the layoff, or that Pyle was otherwise involved in any unfair labor practices. Indeed, he struck me as a rather quiet reserved individual who would be ill-suited to the role of union-buster. The situation, then, is this: that Milner who is supposed to be the antiunion employer did not select Johnson as one of the employees to be laid off and that Pyle, who is not shown to be an antiunion foreman, did. It is not at all surprising, moreover, that Johnson turned out to be No. 2 on the layoff list. In his own estimation he was a first-class fitter entitled to the top pay of $3.37 but Milner, Pyle, and the other foremen considered him a third-class fitter,i2 and the preponderance of the evidence in the record bears them out. There is little to show that Johnson's ability, and productiveness was more than just average. But, in determining whether it particular employee should be laid off, ability and produc- tiveness are not the only factors which may legitimately be considered. It is neces- sary to evaluate also the employee's conduct and character, and his record as a whole. Johnson had repeatedly been denied promotions and he had once been fired, and one of the grounds had been absenteeism. He was, apparently, a fairly heavy drinker, and on occasion could not work because of a hangover. His personal conduct in the period immediately preceding his discharge left, moreover, a good deal to be desired. At the Santa Anita dinner, he had subjected a fellow employee and his wife to,gross profanity, and at the time of his layoff, he was not on speaking terms with three or four of his fellow employees. The fact that this conduct may have been due to_his resentment against them for failing, to support the Union does not excuse his conduct or immunize him from its consequences. 11 Gordon and Rutherford, testified that Pyle made similar predictions to them and they certainly did not add to their credit as witnesses by this testimony. "The fitters were not formally classified as first, second, and third class but it is "apparent from the testimony of the witnesses that such a classification existed in fact. METAL ARTS COMPANY 191 It also cannot be contended that Johnson's layoff was a violation of seniority. None of the employees who were laid off on October 22, 1963, including Johnson, were very old employees. But actually seniority was not recognized in the Metal Arts plant-it had not been recognized even in the union contract while it was in effect-and no employee was put on the layoff list merely because he had been recently hired. What determined the retention of an employee was his general value. It is important to realize, moreover, that the layoff of October 22 was not a layoff in the ordinary sense of a periodic reduction in force in accordance with the needs of production. Layoffs were extremely rare in the Metal Arts plant where employees were ordinarily kept through slack periods. But in October 1963 produc- tion declined so precipitously that the layoff of some employees became inevitable, and Milner and Pyle took advantage of the situation by deciding to get rid of the least desirable and productive of the employees. What really occurred was a house- cleaning, or, to be more literal, a plantcleaning. While the employees who were involved in it were not formally discharged, there was actually little prospect that many of them would be recalled. Thus, the fact that in January 1964 several new employees were hired, and only one of the laid-off fitters was rehired,13 does not have much significance. The one who was rehired was James A. Sandlin. Just why Sandlin, who was a fitter on the night shift, was included in the layoff is very obscure. In fact, the only hint in the record is the testimony of Milner that in Johnson's last effort to get a raise he claimed that he was doing as much work as Sandlin who was getting $3 an hour, which was not the top pay for a fitter. The fact that Sandlin was on the night shift may also possibly have had something to do with his layoff. When he was rehired in January, Sandlin was rehired at $3.37 an hour, which was the top pay for a fitter. In any event, Milner testified that he was pretty sure that Sandlin was'also a union adherent, and there is no good reason for doubting that Milner would know. Sandlin was actually rehired, however, by Pyle rather than by Milner. In any event, the case of Sandlin does not help Johnson's case very much. A disproportionate layoff of union adherents is sometimes regarded as an indica- tion of discrimination. But it is not possible to determine from the record whether there was such a disproportion in the present case. Gordon, Johnson, Rutherford, and Sandlin were union adherents but they did not all do the same type of work. Gordon was a mechanic and Rutherford was a welder, and only Johnson and Sandlin did fitting work. How many of the fitters , precisely, were retained, al- though union adherents , is not established but there must have been a number of them. Milner testified that John M. Tom, a first-class fitter, was retained, although he knew him to be a union adherent. Earl Dudley Kirkland, a fitter's helper, was also retained , although he was a union adherent. Moreover, after Kirkland left to try another job elsewhere, Milner took him back, although he had confessed to voting for the Union . After the election Milner raised the wages of two other employees, Paul T. Napel and John Frazier, although he knew they had voted for the Union. I must conclude that there is no substantial evidence that Johnson was discrimi- nated against by being included in the layoff of October 22. I do not deem it necessary to determine, however, whether he was discharged rather than laid off, since the proof of discrimination is insufficient in either event. Pyle proved hopelessly confused in struggling with this question but, then, he is a shop foreman rather than a, dialectician . In the end, he could only declare that he would take Johnson back if he'ever needed a man of his caliber. Counsel for the General Counsel invites me to determine also whether Gordon and Rutherford were not victims of discrimination. But they were not included in the complaint, and their cases were, clearly, not fully litigated at the hearing. I have considered, therefore, the evidence relating to the layoffs of Gordon and Ruther- ford only insofar as it has pertinence to Johnson's case. CONCLUSIONS OF LAW 1. Metal Arts Company is an employer within the meaning of Section 2(2) of the Act, and is, engaged in commerce, or in an industry affecting commerce, within the meaning of Section 2(6) and (7) of the Act. ,2. Sheet Metal Workers' International Association, Local Union #54, AFL-CIO; is a labor , organization within the meaning of Section 2(5) of the Act 3. The Respondent has not interfered with, restrained, or 'coerced its employees in the exercise of the, rights guaranteed in Section 7 of the Act in violation of Section 8(a) (1) of the Act. 11 Praxedis Vela was also rehired but he was only the janitor who did , the sweeping up. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By laying off or discharging Richard W. Johnson on October 22, 1963, the Respondent has not discriminated with reference to his tenure of employment in violation of Section 8(a) (3) and (1) of the Act. RECOMMENDED ORDER In view of my findings of fact, and conclusions of law, I recommend that an order be entered dismissing the complaint. United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local 213 and Mechanical Specialty, Inc. Case No. 93-CD-75. August 4, 1964 DECISION AND DETERMINATION OF DISPUTE This is a proceeding pursuant to Section 10(k) of the Act following a charge filed by Mechanical Specialty, Inc., herein called the Em- ployer, alleging that United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local 213, herein called the Carpenters, had violated Section 8(b) (4) (D) of the Act by engaging in conduct to force or require the Employer to assign certain disputed work to em- ployees represented by the Carpenters rather than to employees repre- sented by Local 18, International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO, herein called the Laborers. A hearing was held before Hearing Officer Paul L. Harper on May 12 and 13, 1964. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Thereafter, briefs were filed by the Em- ployer and the Carpenters which have been duly considered. 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 [Members Leedom, Fanning, and Brown]. Upon the entire record in this proceeding, the Board makes the fol- lowing findings : 1. The business of the Employer Mechanical Specialty, Inc., a Texas corporation with its principal place of business in Houston, Texas, is engaged in the installation of laboratory fixtures and equipment in hospitals, schools, and related institutions. During the year 1963, the Employer received revenue in excess of $50,000 for services it performed outside the State of Texas and received goods from outside the State valued in excess of $1 mil- lion. The parties agree, and we find, that the Employer is engaged in 148 NLRB No. 23.