Bayport Fabricating, Inc.

516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bayport Fabricating, Inc. and Sheet Metal Workers' International Association, Local Union No. 54, AFL-CIO. Cases 23-CA-3121 and 23-CA-3202 August 27, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS MCCULLOCH AND JENKINS On May 27, 1969, Trial Examiner James F. Foley issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged in the complaints, and rec- ommending that the complaints be dismissed in their entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed excep- tions to the Trial Examiner's Decision and a support- ing brief, and the Respondent filed cross-exceptions and an answering brief to the General Counsel's exceptions. Pursuant to Section 3(b) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board has delegated its powers in connection with these cases to a three-member panel. 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 here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, cross-exceptions, and briefs, and the entire record in this proceeding, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner as modified herein. We adopt the Trial Examiner's conclusion that the General Counsel has not established by a prepon- derance of the evidence that the terminations of employees Baker, Snell, and Eggleston, or the failure to rehire Thomas, were discriminatorily motivated, although certain testimony was adduced by the Gener- al Counsel, which, if credited, might have caused us to hold otherwise. 1. With respect to Baker, we deem it significant that he had been reprimanded in the past for damaging machinery and for poor workmanship, and was dis- charged only after installing certain tray rings at ' The findings and conclusions of the Trial Examiner are based substan- tially upon his credibility determinations , to which the General Counsel excepts After careful review of the record herein, we conclude that the Trial Examiner's credibility resolutions , which, in turn , are based largely upon his observation of the demeanor of the witnesses involved, are not contrary to a clear preponderance of the relevant evidence Accordingly, we hold that there is no basis for disturbing them Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) incorrect intervals in a large vessel under construction for a customer in the petrochemical industry. Because of this error in the construction of the vessel, which was worth approximately $50,000, the Respondent risked having the vessel rejected by the customer. Baker's foreman, Hill, was discharged at the same time and for the same reason. 2. We also adopt the Trial Examiner's conclusion that Snell was discharged because he displayed a provocative attitude toward the Respondent while being addressed by President Moats concerning work deficiencies and not for any reason violative of the Act. The record shows that Snell had been reprimand- ed on several occasions for poor production and for idleness on the job. On or about October 29, 1968, Snell was informed that he was being transferred to the night shift as of the following evening. He expressed displeasure with this arrangement, especially as his request for an accompanying wage increase was turned down. During the next 3-day period Snell failed to report for work and, except for the second day when he called in sick, failed to notify the Compa- ny of his absence. On the fourth workday, November 4, Snell reported for work on the new shift. He arrived 25 minutes early and began talking to a working employee until reprimanded by President Moats. At the conclusion of his regularly scheduled shift that night, Snell refused to work overtime, as requested by the shift foreman, claiming that he had reached an understanding with Baletka, the plant superintendent, that he would not be required to work extra hours. The following day when Snell reported for work he was summoned to Moats' office. There, in the presence of the two men, Baletka denied that he had granted Snell immunity from working overtime. Moats confronted Snell with his unsatisfac- tory work pattern, described above. According to the credited testimony of Moats, Snell answered Moats' question as to what should be done by saying that that was Moats' problem and that "as far as he [Snell] was concerned, I [Moats] could do any damn thing I wanted to." Moats thereupon discharged Snell. 3. In view of the Trial Examiner's credibility resolu- tions, we find that Eggleston voluntarily quit the Respondent's employ on Friday, September 20, 1968, and was not discharged, as the General Counsel con- tends, when he returned to the Respondent's plant on Tuesday, September 24. The credited testimony reveals that on Thursday, September 19, Eggleston was reprimanded for improperly machining a flange which then had to be discarded. On the following day Eggleston asked his immediate supervisor, Van- derhider, for a recommendation which he could use in applying for another job. That same afternoon, 185 NLRB No. 43 BAYPORT FABRICATING, INC 517 at the conclusion of his shift and, after paychecks were distributed, Eggleston told Carr, the maintenance foreman, that he was quitting his job. He left the plant that day carrying a 30-inch fan on a 5-foot stand, having obtained a pass to carry this personal property through the plant gate. He left behind, unknown to the Respondent, personal tools weighing between 70 and 90 pounds. On Saturday, September 21, Baletka and John Haygood, the Respondent's vice president, were informed of the circumstances surrounding Eggleston's departure and the same day made arrangements to contract out his unfinished work. On the following Monday, Eggleston requested another employee to report him as sick. On Tuesday, September 24, when he appeared for work, he was turned out of the plant. On these facts, we conclude that Eggleston voluntarily quit the Respondent's employ on September 20, and that the Respondent's subsequent action was governed by the information it had received to that effect. Further, we agree that the General Counsel has not sustained his burden of proving that the Respond- ent unlawfully denied Eggleston the opportunity to work overtime during the period between his return from vacation on August 19 and his departure on September 20 The Respondent's assertion of economic necessity is uncontroverted by the record. In this respect, however, we find no basis for, nor do we adopt, the Trial Examiner's finding that such overtime included weekend work to make up regular time lost during the week by Eggleston's presence at the collective-bargaining sessions as a member of the employees' bargaining committee. Nor do we adopt the Trial Examiner's statement of his entrepreneurial philosophy and its application to the Respondent's decision to eliminate overtime, his speculation upon the working arrangements the Respondent made with outside machine shops following its decision, or his interpretation of the Respondent's decision not to require Eggleston to work overtime as a "silent repri- mand" for unsatisfactory performance. 4. Finally, we agree with the Trial Examiner's holding that former employee Thomas was denied reemployment because the job which he sought was eliminated for nondiscriminatory reasons by the Respondent, and not because Thomas had previously filed charges with the Board alleging that he had been discriminatorily discharged some 2 months earli- er.' In this respect, we deem it significant that a general reduction in force had taken place at the ' Until July 26, 1968, Thomas was employed as an auto mechanic, performing maintenance on 10 to 14 company cars and on a few units of other mobile equipment On July 26, after the Respondent had reduced the number of cars to two, upon which only minor maintenance was to be performed, Thomas was laid off Thereafter, the Union filed a Respondent 's establishment, that the duties assigned to the employee who last held the job in question were effectively transferred to other employees, and that at no time was the job reinstated or the work force augmented to allow for the performance of those duties. Alternatively , the Trial Examiner held that even if the Respondent had refused to reemploy Thomas because the latter had filed charges with the Board, he would not find that the Respondent thereby violated Section 8(a)(4) and ( 1) of the Act, because, in his view, the objective of those charges was "obviously to harass Respondent by invoking the processes of the Board against Respondent for its doing something it had a right to do." We categori- cally reject this holding of the Trial Examiner which is, at best, gratuitous , unnecessary to a determination of the issues here involved, and contrary to Board precedent. See American International Aluminum Corp, 149 NLRB 1205, 1210. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby adopts as its Order the Recom- mended Order of the Trial Examiner, and orders that the complaints herein be, and they hereby are, dismissed in their entirety. charge alleging that Thomas was discharged for discriminatory reasons The Respondent contended that Thomas was terminated because his services were not needed after it reduced the number of company vehicles Ultimately, the Union abandoned its claim that Thomas was discharged for discriminatory reasons TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES F. FOLEY , Trial Examiner These cases, 23-CA- 3121 and 23-CA-3202, were brought before the National Labor Relations Board (herein called the Board) under Section 10(b) of the National Labor Relations Act, as amended (herein called the Act), 61 Stat 136, 76 Stat. 579, against Bayport Fabricating, Inc. (herein called Respondent), by complaints issued on November 15, 1968, in Case 23-CA-3121 and on January 10, 1969, in Case 23-CA-3202, and consolidated for hearing on January 10, 1969, and Respondent's answer filed November 25, 1968, in Case 23-CA-3121, and its answer filed January 20, 1969, in Case 23-CA-3202, and General Counsel's bill of particulars furnished on January 16, 1969, in Case 23- CA-3121 pursuant to Respondent 's motion filed on Novem- ber 25, 1968, and Trial Examiner 's order thereon issued January 10, 1967. The complaints are premised on unfair 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor practice charges filed by Sheet Metal Workers ' Interna- tional Association, Local Union No. 54, AFL-CIO (herein FINDINGS AND CONCLUSIONS called the Union), against Respondent on September 3, I. THE BUSINESS OF RESPONDENT 1968, in Case 23-CA-3121, and amended on September 25 and November 4, 1968, and on unfair labor practice charges the Union filed against Respondent on November 21, 1968, in Case 23-CA-3202. It is alleged in the complaints that since on or about July 18, 1968, Respondent, in violation of Section 8(a)(1) of the Act, has threatened employees, reprimanded employ- ees, and engaged in surveillance of them, in connection with their employment, engaged in collective bargaining with an employee and discharged Supervisor R. L Hill on August 30, 1968, to interfere with rights of employees guaranteed in Section 7 of the Act to engage in union activity, assist the Union, bargain collectively through repre- sentatives of their own choosing, and engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection. It is also alleged that Respondent discharged employees Roland Baker on August 30, 1968, Ellsworth Eggleston on September 24, 1968, and John A. Snell on November 5, 1968, and denied overtime to Eggleston on August 19, 1968, and thereafter, because of their activities as members of the employees' negotiating committee of the Union, the certified union bargaining representative, and other union acitvities, in violation of Section 8(a)(3) and (1) of the Act; threatened on September 20, 1968, to refuse reemployment to employee Gerald Thomas because he filed an unfair labor practice charge against it in connection with his layoff on July 26, 1968, and did refuse to rehire him for this reason on September 20, 1968, in violation of Section 8(a)(4) and (1) of the Act. It is finally alleged in the complaints that Respondent, by the above alleged conduct and engaging in individual bargaining with an employee and threatening him because of his absence from work while attending collective-bargain- ing negotiations as a representative of the Union, rejected the collective-bargaining principle, and refused and is refus- ing to bargain collectively, in violation of Section 8(a)(5) of the Act Respondent denies the illegal conduct alleged in the complaints It affirmatively pleaded in its answers that Baker and Hill were discharged for cause on August 30, 1968, and Snell was discharged for cause on November 5, 1968, and that Eggleston voluntarily terminated his employment on September 20, 1968 A hearing on the complaints , the bill of particulars, and the answers was held before me in Houston , Texas, on February 4, 5, 6, and 7, 1969 The parties were afforded an opportunity to present evidence , make oral arguments, and file briefs. Briefs were filed by General Counsel and Respondent after the close of the hearing ' ' The transcript consists of 848 pages Respondent's motion to correct errors in the transcript filed March 13, 1969, is granted, and errors are corrected. Respondent's motion to strike par 8(d) of the complaint in Case 23-CA-3121 is granted Respondent, a Texas corporation with office and place of business located in Houston, Texas, is engaged in the manufacture and sale of custom fabricated pressure vessels (towers), tools, and other industrial equipment During the 12-month period ending November 15, 1968, Respondent and its predecessor, Shaffer-Bayport, a division of Shaffer Tool Works (herein called Shaffer), purchased goods and materials valued in excess of $50,000 which were transported to the plant in Houston, Texas, operated by Respondent and predecessor, directly from points outside the State of Texas Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and assumption of jurisdiction will effectuate the purposes of the Act. II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act III THE UNFAIR LABOR PRACTICES A Undisputed Evidence It is undisputed that on April 16, 1968, the Union was certified by the Board as bargaining representative of a unit of production and maintenance employees, the Union and Respondent and predecessor Shaffer had 19 bargaining sessions in the period beginning with May 24, 1968, and ending January 20, 1969, and at the time of the hearing, February 4 to 7, 1969, the Union and Respond- ent had scheduled a meeting for February 11, 1969, the Monday following the week of the hearing, since July 30, 1968, Respondent has been the employer participant in 14 of the 19 bargaining sessions, and no charge or representation has been or is made by the Union or its representatives that Respondent's conduct at the bargaining sessions has been less than what- good-faith bargaining requires, in late April 1968 employees Baker, Eggleston, Snell, and Hernandez were appointed by the Union to be an employee bargaining committee, to assist Woodrow Woodall, International organizer, Sheet Metal Workers' International Association, AFL-CIO, and Warner Brock, the Union's attorney, in the bargaining; the employees' committee, along with Woodall and Brock, met in bargaining sessions beginning on July 30, 1968, approximately 2 weeks after Respondent acquired ownership on July 18, 1968, with Nelson Wall, secretary of Respondent, and V. Scott Kneese, an attorney, the representatives of Respondent; Baker was discharged on August 29, 1968, Eggleston either was discharged on September 24, 1968, or quit on September 20, 1968, and Snell was discharged on November 5, 1968; Baker, Snell, and Eggleston ceased to serve on the employees' committee when they ceased to be active employees, and at the time of the heanng beginning February 4, 1968, the committee consisted of employees Hernandez, Pate, and Pond; Baker received reprimands between the time he was appointed a member of the employees' committee BAYPORT FABRICATING, INC 519 and July 18, 1968, when Respondent purchased Shaffer's assets, and between the latter date and August 29, 1968, the date of his discharge; Snell received reprimands between his appointment to the employees' committee and the begin- ning of Respondent's ownership on July 18, 1968, and from this latter date to November 5, 1968, the date of his discharge; and Eggleston was not given the opportunity to work overtime after returning from vacation on August 19, 1968, and was reprimanded on September 19, 1968. It is also undisputed that Foreman R L Hill, under whose supervision Baker was working on a large pressure vessel or tower, was discharged on August 29, 1968, the same day Baker was discharged, and that Gerald Thomas, a maintenance man who was terminated on July 26, 1968, was not reemployed on September 20, 1968, although he applied for the job of maintenance man on the second shift, left vacant by the quitting of Pete Rodriguez who held this job, after Thomas had been contacted by Mike Carr, Respondent's foreman of maintenance, and told by him he might have this job for him. B. Contentions of the Parties General Counsel contends that Baker, Snell, and Eggle- ston were reprimanded and discharged, and Eggleston was denied overtime, because, unlike employee Hernandez, they actively participated in the collective-bargaining negotia- tions. General Counsel also contends that Foreman Hill was discharged along with Baker to give color to Respond- ent's pretextual reasons for Baker's discharge. General Coun- sel claims that the reprimands given Baker and Snell by Baletka, the shop superintendent under Shaffer and Respondent, in the period of Shaffer's ownership when Baker was a member of the employees' negotiating commit- tee; testimony given by employee White that Baletka said to him that he was going to get rid of Baker, Eggleston, and Snell because of their union activity, and testimony by Foreman Hill that Baletka said to him Snell was an agitator, causing everybody trouble, and Respondent had to get rid of him, and he was depending on him to do it, showed Baletka's union animus and an intention to discriminate against these three employees which carried over from Shaffer's ownership to the new ownership under Respondent. Respondent contends that Hill was discharged for making a costly inexcusable error in the fabrication of the pressure vessel or tower, which had a value of $50,000, and Baker was discharged for the same error and for making other mistakes in connection with the fabrication of the vessel; Baker was reprimanded in the period following Respondent's acquisition of ownership on July 18, 1968, for mistakes made in the fabrication of the pressure vessel or tower, and reprimanded during the prior period under Shaffer's ownership for continuously violating a safety rule and for poor production, Snell was discharged and reprimanded after Respondent acquired ownership for poor attitude, poor production, refusal to work overtime , and engaging in union activity or interfering with employees' efforts to work during working time, and reprimanded in the prior period for poor production and poor attitude, and that Eggleston quit his employment following a reprimand for poor workmanship in the operation of an engine lathe and was not discharged General Counsel contends that Gerald Thomas, a mainte- nance man terminated on July 26, 1968, was refused employ- ment on September 20, 1968, when Pete Rodriguez, the maintenance man on the second shift, quit, because his termination on July 26, 1968, was claimed to be a discrimina- tory discharge in an unfair labor practice charge filed with the Regional Director by Thomas or the Union. Respondent contends that when Rodriguez , maintenance man on the second shift, quit on September 20, 1968, it decided through John Haygood, vice president and plant superintendent, and contrary to the thinking of Mike Carr, the maintenance foreman , not to employ a maintenance man on the second shift, but to make Carr subject to call for any maintenance work required on the second shift, and has so employed Carr, and has not hired anyone to replace Rodriguez General Counsel contends that, in a conversation he had with Snell about a week before Snell's discharge, Presi- dent Moats attempted to engage in individual bargaining with Snell adverse to the collective bargaining taking place between the Union and Respondent, and threatened Snell for being absent from his job when participating in the collective bargaining which was taking place during working hours, and that such conduct constitutes a refusal to bargain in good faith and a rejection of the collective-bargaining principle. C. Background Evidence Respondent's business is the custom fabrication from alloys and exotic metals of tools, pressure vessels, and other industrial equipment for use in the oil and petrochemi- cal industries. There are five or six general contractors engaged in the construction of refineries and petrochemical plants in the Houston-Harris County area, who may subcon- tract the fabrication of equipment to Respondent, and in turn supply the finished product to the industry for its ultimate use. These general contractors and the ultimate users, the approximately 35 operating petrochemical and oil companies in the area, are Respondent's available custom- ers. Respondent's plant was originally built by the Offenhauser Company (herein called Offenhauser) in September 1965 On March 7, 1966, it was purchased by Shaffer-Bayport, a division of Shaffer Tool Works (herein called Shaffer). Included in the purchase agreement between Offenhauser and Shaffer was an agreement that former employees could not leave Shaffer to return to Offenhauser for 3 years (until March 7, 1969) unless they were discharged or laid off. On or about July 18, 1968, Respondent purchased the assets of Shaffer The agreement between Offenhauser and Shaffer regarding the reemployment of former Offenhau- ser employees by Offenhauser became an agreement between Offenhauser and Respondent Shaffer, Respondent's predecessor, lost approximately $1 5 million for the fiscal year preceding Respondent's acquisition It had a reputation in the industry for poor quality workmanship. Because of this reputation and its own experience, Brown and Root , Inc., one of the major 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD customers in the industry , had completely ceased placing business with Shaffer However, when Respondent acquired the plant, Brown & Root once again started placing business with it . Brown and Root was of the opinion that Respondent, with Bruce Moats as majority stockholder and chairman of the board, would produce high quality products. Its opinion was based on its experience with Houston Fabricat- ing Inc., another fabricating facility operated by Moats, and the opinion of its chief inspector Prior to selling the plant to Respondent , Shaffer, to reduce its losses, and to improve the plant's saleability , employed an efficiency engineer to look into the plant 's production and delivery problems, mistakes , and low employee morale. When Respondent acquired ownership it immediately began an effort to correct the problems and create a profitable situa- tion disclosed by the efficiency engineer and its own observa- tions On the second day of its ownership , Respondent reduced the number of office and production employees, reduced overhead by $20,000 and did away with 11 of the 13 company vehicles The number of employees in the bargaining unit were reduced to approximately 80, and the office force was reduced from 40 to 8 employees. President Moats, 35 years of age, became an employee in the industry at 17 years of age On the list of jobs he held is that of estimator This job requires a knowledge of costs, or a method for obtaining costs, of plant operations and equipment , and a capacity for estimating prices in relation to costs for a contract job Moats divided his time between Houston Fabricating and Respondent At Respondent's plant, he watched the various plant operations including the operation of machines by employees. He would walk down an aisle of the plant and stop and look at a machine operation He watched the operation of a machine in terms of time and quality of work and product Moats knew the names of the four members of the Union's employees' negotiating committee from about the time Respondent acquired ownership , and about 30 days later learned the identity of these employees, the machines they worked, or the locations at which they worked D Evidence of Conduct in Controversy 1 Reprimands prior to July 18, 1968 Employee Baker, a fitter and layout man, was reprimand- ed by Foreman Hill on May 10, 1968, at the request of Shop Superintendent Baletka for not wearing a hard hat Baker worked under Hill in Department C Written notice of the reprimand was made by Hill and approved by Baletka and placed in Baker's personnel file. Baletka had seen Baker on a number of occasions without his hard hat while working and signaled to him to put it on The May 10 notice of reprimand showed a mark of good for Baker's ability, conduct , attendance, and produc- tion The other available marks were "Excellent," "Fair," and "Poor." Shortly after May 10, Baletka personally repri- manded Baker for not wearing his hard hat and for poor production Baletka testified that on each occasion Baker was told to wear his hard hat he was not wearing it, and at the time of the last reprimand which was also for poor production, Baker's production was poor Baker testified that the day following the day he was reprimanded by Baletka he saw seven employees without hard hats, and that when he received this reprimand he had taken off his hat to put on his helper's welding mask. There is no testimony that either Hill or Baletka saw the other employees without the hard hats There is a plant safety rule that hard hats and glasses be worn when working. Hill testified that the May 10 reprimand to Baker was deserved . He and Baker testified that they had no recollec- tion of a notice of reprimand being previously prepared for neglecting to wear a hard hat On June 19, 1968, Shop Superintendent Baletka repri- manded employee Snell, a junior fitter Baletka warned him that his production was very poor and that he was doing entirely too much talking to other employees during working hours . A notice of reprimand was written by Baletka and placed in Snell 's personnel file The place on the notice form for marking Snell's record at the time of the reprimand was not filled in Snell's foreman at the time was Hill He was foreman of Department C Hill was not aware that Baletka had reprimanded Snell Snell testified that he was informed by Foreman Hill that the office, presumably Baletka, had informed Hill that he (Snell) was "goofing off," that he was walking around and shirking his duties , and not doing his work According to Snell, Hill reported to him that he received one to two complaints a week about Snell for a period of 4 weeks starting in June 1968 Snell testified that he had to go to the toolroom to obtain the rods made of the same metal that was to be tacked or temporarily welded, and to go about the plant (approximately 300 yards long) and look in the bays to find a come-along or air hoses for the grinder, and when assigned to do a job at a specific location or to assist a fitter he would have to go to the location of the job or of the fitter he was assisting. Hill testified that Snell was a good worker Baletka testified he told Hill around June 15 that Snell's production was poor, and that Snell would have to work whether he belonged or did not belong to the Union Employee W A White, a fitter and layout man like Baker, who knew Baker, testified that on or about June 1, 1968, Baletka told him he would have to get rid of Snell because he was devoting too much of his time to union activities , and about 2 weeks later told him that Eggleston and Baker thought they were intelligent with union activities, and he would have to get rid of them White also testified that after the June 15 conversation he had with Baletka, Hill told him that Baletka said to him he was out to get Snell , and that he had informed him to get rid of Snell because he was devoting too much time to union activities and was not able to perform his duties White, on cross-examination , admitted that on June 14, 1968, he told Baletka he was joining the Union, and that Baletka said he could not tell him what to do or not to do, that it was his business Baletka testified that the only thing he said to White in connection with union activity was his statement to him that it was his prerogative to join the Union in response to White's statement to him that he was joining the Union . Baletka denied he BAYPORT FABRICATING, INC said anything to White about Baker's, Eggleston's, or Snell's union activity or that he would have to get rid of them for engaging in it. Baletka testified that he told Hill around June 15 that Snell's production was poor and that Snell would have to work whether he belonged or did not belong to the Union He denied he said anything to Hill about getting rid of Snell because he was devoting too much time to union activities 2 Reprimands given Baker after July 18, 1968 Baker testified that after Respondent acquired the assets of Shaffer on July 18, 1968, he was reprimanded twice by Baletka and once by Moats The reprimands were in connection with the construction of a pressure vessel of stainless steel, 15 to 17 feet in diameter and 80 feet in height, being built for Monsanto Company. The pressure vessel was being built of circular sections 8 to 10 feet in length The sections or cans were permanently welded together to form the completed vessel. It was laid out horizontally on the plant floor Baker was building this vessel under the direct supervision of Foreman Hill and with the assistance of employees on the day and night shifts. Baker testified that the night shift got two of the cans crooked, and to straighten them out he had his welder or tacker join them with a temporary weld He lifted them with a crane The force from the crane was exerted at the outer ends of the cans with the result that the temporary weld joining the inner ends split, and the cans being unsupported at these ends fell and broke. The force from the crane should have been evenly distributed across the cans or at least balanced Baker testified that the night shift and his tacker were responsible and not him Baletka testified he observed the lifting and the breakage, and instructed Foreman Hill to reprimand Baker He did not talk to Baker about the incident He did, however, consider this incident along with two other incidents involv- ing this pressure vessel in recommending Baker's discharge to Vice President Haygood on August 29, 1968. Baker testified that about the same time after July 18 Baletka said to him that he wanted to talk to him about President Moats' statement to him that he, Baker, was ruining a set of rubber turning rolls Baker told him that someone else had burned off the rubber from the rolls, and that someone had put a ring on the section of the tower being turned which made a groove in the rubber 3 or 4 inches wide. Vice President Haygood testified that Baker had incorrectly positioned two sections or cans of the pressure vessel or tower on the turning rolls so that the fit-up lugs which hold the sections together until they are welded bit into the turning rolls. The turning rolls turn the cans while they are being welded The fit-up lugs jut out from the places holding the sections or cans together. Baker testified that about August 8, 1968, 3 weeks before he was discharged, he had to affix some spray nozzles to the interior of the vessel or tower, and his helper had gone for some welding rods for this job. When he was standing next to the tower waiting for the helper to return, Moats came by, and said that he could not fix the "dam thing" by looking at it, and that he replied, "I sure as hell can't." There is no evidence that he explained to 521 Moats that he was waiting for the helper to return with the welding rods. 3 Reprimands given Snell after July 18, 1968 Foreman Hill testified that he attended a supervisor's meeting on July 20, 1968, at which President Moats, Vice President and Plant Manager Haygood, Shop Superintend- ent Baletka, and Foreman Vanderhider were present, and that Baletka stated to Hill in the presence of the others that Snell was no good, was an agitator, caused everybody trouble, and had to be gotten rid of, and instructed Hill to get rid of him immediately Baletka denied he made this statement to Hill Hill testified he disclosed Baletka's instructions to Snell, but refused to discharge him, as he was satisfied with his work. Hill testified that he was told at the July 20 meeting that every employee had to receive three reprimands in writing before they could be discharged. Haygood testified that he told those present at the supervisors' meetings that the plant did not make money under Shaffer because not enough control of employ- ees was exercised by management. He told the supervisors that when an employee did something wrong a warning slip should be issued On July 21, 1968, Hill reprimanded Snell about being idle and visiting during working hours A notice of the reprimand was prepared by Hill and approved by Baletka. The space on the notice form for the record of the employee reprimanded was marked fair for ability and attendance, and poor for conduct and production. Hill testified that he marked Snell's production poor, but that it was fair to good and he would have marked it fair, but was of the opinion Baletka would not approve the mark unless it was "poor "Z Snell testified that shortly after July 18, 1968, his foreman, apparently Hill, told him that some vessels located at the back door of the plant ready to be shipped had to have Respondent's name, Bayport Fabricating, welded on them, and he went to the back of the plant and asked an employee there where the nameplates were to be welded on the vessels He was told that Inspector Angele would have to tell him. About an hour and a half later, Angele appeared and showed him the place on the vessels where he thought the nameplates should be located While he was welding, Baletka appeared with Hill and said to him in Hill's presence that he had been doing nothing and if he did not get busy he would have to run him off. Snell had made no attempt to find Angele during the hour and a half, but just waited until he appeared at the location near the back door where the vessels were. ' Hill's credibility as a witness is in issue not only for the reason he was discharged by Respondent, and his testimony contradicts his opinion in writing of Snell's and Baker's work that he gave at a time when it was under scrutiny, but because of the evidence that in making application for employment to Offenhauser he stated on the application form he left Pan Am Steel and B A Reisner, two prior employers, to obtain a better job, and his admission on cross-examination that he was discharged by one employer, namely, Pan Am Steel, and then his subsequent admission on cross-examination he had been discharged by Reisner Counsel for the General Counsel elicited an explanation from Hill for the false statements, but the fact remains that he made them 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In August 1968, Baletka transferred Snell from Depart- 4. The discharges of Baker and Hill ment C to Department D under Roger Martin. This was also a day-shift job. According to Snell, Baletka told him at the time of the transfer that he did not believe that Foreman Hill was taking advantage of what he could do. When he had been 2 weeks under Martin, Baletka complimented him on the good work he was doing After Snell said to him he probably would not think so if he knew about the mistake that he had just made, Baletka replied that everybody made small mistakes. Snell testified that when Baletka found out later what the mistake was he said nothing one way or the other. Hill testified that Baletka told him that Snell was doing better work under Martin's supervision than he did under his. General Counsel questioned Baletka on cross-examination about two notices of reprimand that Baletka made out on October 4, 1968. One states that he warned Snell about talking about union activities during working hours. Baletka completed the space for the employees' record at the time of the reprimand by marking Snell's ability, conduct, and attendance fair and his production poor. The second notice states that Baletka told Snell that the time from 3:20 to 3.30 p.m. was time for shop cleanup and putting tools away and "not for talking and Union Negotiations." Baletka did not mark Snell's record on this notice. Baletka testified that on October 4, 1968, he saw Snell at the time the whistle blew for cleanup talking to five or six other employees, and he told him that the time was for cleanup and not for talking and union negotiations. He explained that he apparently made out the second notice because it had slipped his mind that he had already made one out, and that while the foreman, which was Martin in this instance, usually makes out the notice of reprimand, he made out the notice because he was the one who saw what Snell was doing and gave the reprimand. When Snell testified in rebuttal, he did not deny he was engaged in union activity at the time he was reprimanded. Baletka testified that Snell did fine work after being transferred to Martin's department for about 30 days, but then his production became poor and remained that way, and that Martin talked to him about Snell's poor production and said there was nothing he could do with him. The transfer from Hill's department to Martin's was in August some weeks before Hill's discharge on August 30, 1968 Snell testified that a day or so before Martin notified him he was being transferred to the night shift, Martin asked him if he could speed up his production, and he replied he could not do so because he was working alone, and there was just so much a person could do Snell also testified that Martin told him that Baletka had said to Martin that Snell's production was poor Martin notified him in the morning of October 29 that he was being transferred to the night shift effective October 30,' and that another fitter would possibly be transferred with him. ' A repnmand to Snell on November 4, 1968, by President Moats is discussed in connection with his discharge on November 5, 1968 A reprimand to Eggleston by Vice President and Plant Manager Haygood on September 19, 1968, is discussed in connection with his discharge on September 24 or his voluntary termination on September 20, 1968 As previously found, Baker and Hill were discharged on August 29, 1968. It has also been found that Baker, under Foreman Hill, was fabricating for Monsanto Company a pressure vessel or tower about 80 feet in length and 15 to 17 feet in diameter It was a 3-month project. About 1 month had been spent on it when Respondent took over from Shaffer, another month was spent on it from the date of July 18, when Respondent acquired the plant, and August 30 when Baker and Hill were discharged, and about a month's work remained to be done following the discharge. An essential part of the vessel or tower are process trays. The trays rest on tray rings or tray bars which are welded to the inside walls of the vessel or tower. The trays, which are also installed by Respondent, are made by another manufacturer The spacing between the trays is of critical importance. The liquids and semi-liquids build up and flow from one tray to another. The type of liquid it is when drawn off depends on the level at which the liquid is when drawn off and the delay-and- cooling process which affects the liquid as it travels between trays and rests at the tray levels. The spacing between trays varies with the intended use of the custom-fabricated vessel. The customer specifies the spacing in line with the intended use of the vessel While the spacing may vary between vessels, it is usually the same in one vessel Thus, if the first tray is 2 inches from the reference line, the seoncd tray will be 4 inches from the reference line. If the spacing is to vary between trays, a notice will be placed on the shop drawing pointing out the departure from the customary situation In any event, if there is a fraction in the measurement for the space between the first tray and the reference line, the fraction is the same in the other space measurements except where a variance is brought to attention by a note on the drawing.4 Monsanto supplied the original tracing and specifications for the design of the vessel Respondent reworked certain portions of the Monsanto tracing in accordance with the specifications supplied by Monsanto, and Respondent's Engineering Department made up shop prints to be used in the fabricating of the vessel. General Counsel offered in evidence a portion of a shop print showing measurements of the distance of each of 12 tray bars of rings from the reference line Each of the measurements has a fraction Nine of them clearly have the fraction of one-half inch. The other three fractions are not clear, and looking at them without reliance on background or expertise can be read as one-eighth inch as well as one-half inch. The correct measurement is one- half. Hill's and Baker's testimony is that they asked Baletka what the fraction was in each of the three measurements, and he said it was one-eighth, and they relied on his statement and installed the three tray rings or bars with a distance for each of them from the reference line that included the fraction of one-eighth instead of one-half. ' This is the testimony of an expert witness who testified for Respondent I credit his testimony and his qualifications The testimony of Baker, Hill, Baletka , and Haygood corroborates the expert 's testimony. BAYPORT FABRICATING, INC 523 Baletka disagrees. He testified he told them the fraction was one-half, but to check it with the Engineering Depart- ment to make sure On August 29, 1968, when 70 percent of the vessel was completed, Hill informed Baker that in error the fraction of one-eighth for three of the measurements was used instead of the fraction of one-half. Hill asked Baletka what he was going to do. The latter said he would find out. Baletka conferred with Vice President and Plant Manager Haygood They decided to telephone the inspector for Mon- santo who visited Respondent's plant and checked the progress of the work. Haygood talked to him by telephone on the afternoon of August 30, 1968, about the matter, and he said he would talk to his superiors and then let Haygood know what he should do On August 29, 1968, Haygood and Baletka decided to discharge Hill and Baker. Hill was notified of his discharge by Haygood on August 29 before leaving the plant. Baker left early, but was notified the same date by Haygood by telephone to pick up his check and hand in his tool checks. Baker said he would do so the following day Subsequently, the Monsanto inspec- tor notified Haygood that Monsanto would accept the vessel upon its completion without any correction of the error The resolution of the credibility issue whether Hill and Baker, contrary to Baletka's opinion that the fraction in each of the 12 tray bar dimensions was one-half, decided the fraction was one-eighth and acted accordingly, is critical to the determination of whether the discharges of Baker and Hill were discriminatory. The testimony of Baker, Hill, Baletka, and Haygood is set out below Baker testified that the measurements for the spacing of three of the tray rings appeared to him to include the fraction of one- eighth instead of the fraction of one-half included in the measurements for the spacing of the other nine tray rings. He consulted Foreman Hill and the latter agreed that the fraction in the three measurements being examined looked like one-eighth Baker testified that Hill and he went to see Baletka about the measurements, and Baletka, after looking at them, said the fraction was one-eighth. They put in each of the three tray rings with a spacing measurement from the line of reference that included the fraction of one-eighth According to Baker, 2 days before the vessel was finished, Baletka said they were wrong, and he was going to check them. Then on August 29, Haygood told him by telephone to pick up his check, and to bring the tool checks he had with him. He said he would do so the following day and also pick up his tools., Hill testified that after the cans or sections that made up the vessel were welded together, the tray rings were laid out. Baker checked the dimensions on the shop print he was using for the spacing of the rings, and said to him that two of them had a fraction which he could not make out, that he did not know whether it was one- half or one-eighth. Hill looked at them, and said to Baker that the fraction looked like one-eighth They discussed ' Tool checks are given to a mechanic for use in checking out of the toolroom tools owned by Respondent. it with Baletka. Baletka agreed that the fraction looked like one-eighth and said to put in the tray rings with the space dimensions to include the fraction of one-eighth and not one-half After the three tray bars or rings were installed, being tacked in, Hill talked to Dave Brock, a draftsman in the Engineering Department, about the spacing measurement for the third tray ring Brock was that depart- ment's contact with Department C, Hill's department, on the pressure vessel job for Monsanto. Brock told Hill there were no dimensions for the tray bars on the drawings with a one-eighth fraction, that all the fractions were one- half. Brock said that the drawings were very poor. Hill testified he got hold of Baletka and told him that three tray rings were in wrong. Hill had stopped all welding on the vessel Baletka said he would find out what to do About 3.20 or 325 pm, Plant Manager Haygood came to his desk and said to bring his drawings into the office, that there had been a $15,000 mistake, and they had to get to the bottom of it Haygood also said that it would take 18 to 20 hours to correct the error. Haygood also said that Baker's presence would not be needed. Hill testified he went to Haygood's office. A conversation ensued The participants were Hill, Haygood, and Baletka. Haygood asked Hill how many towers he had built, and he answered about 50. Haygood asked him if he had seen any drawings prior to the drawing for the vessel for Monsanto with a one-eighth fraction in the tray dimen- sions, and he answered no, but was satisfied that the drawing provided dimensions for three of the tray rings that had a one-eighth fraction in them, and that Baletka agreed that the fraction in these three dimensions was one-eighth. Baletka denied that he agreed the fraction was one-eighth. He said that he told Baker that if he had a problem he should see Brock. Hill testified that Baker had said to him that Baletka said to Baker to come to him when he had a problem and he would find out the answer and would contact Brock if necessary. Baletka said in this meeting that he could read the prints plain and thought the fractions were one-half. He was standing facing Haygood, who was at his desk, and the prints were on the desk in front of Haygood Baletka had Hill's magnifying glass and was looking at the fractions through it. Baletka, from the place where he was standing, was reading the print from bottom to top instead of the customary way to read it, that is from top to bottom. Hill also testified that at this time President Moats walked in and asked if they were about to get to the bottom of the mistake, and sitting down by the door told Hill to return to the shop, and they would figure out what to do about the mistake. Hill returned to his desk, and 30 or 40 minutes later, Baletka came to his desk and told him they were going to have to let him go He said to him to get his tools together, and they would have his check ready in a few minutes. Baletka, the shop superintendent, and Hill's superior, testified that Baker and Hill came to him at the layout stage of the vessel or tower, and asked him what he considered the fraction to be in the dimensions of two of the tray bars, that they thought it was one-eighth. He said he could tell they were one-half but if they had 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any doubt to check with Dave Brock of the Engineering Department About 2 weeks later, they came in his office questioning the fraction in a third tray ring dimension He told Hill to call Brock. Hill called Brock on the telephone in Baletka's office. Hill told him later Brock said that all of the tray ring dimensions had the fraction of one- half None was one-eighth Shortly after Hill called Brock, the latter brought new prints that had dust been run off and presented them to Baletka for their use A week or 10 days later, Hill informed him that the three tray bars were put in with the one-eighth fraction in the space dimensions for each of them instead of the fraction of one-half He asked Hill why he had done this when he had checked with, Brock and knew the fraction was one- half. Hill did not answer Baletka testified he went to Haygood's office and discussed the matter with Haygood. About 3 p.m., Haygood asked him to bring Hill to his office He asked him in the presence of Haygood why he had put in the three tray bars with the fractional dimension of one-eighth instead of one-half He replied that as far as he was concerned' the dimensions for each of the three bars had a one- eighth fraction Haygood asked him if he had ever seen tray bar dimenions which varied by three-eighths of an inch, and Hill said no. He also asked him if he had built a tower before, and he said he had ° Haygood then sent him back to the shop Baletka testified that Haygood and he discussed the matter and decided to terminate Hill because he should have had all the information since he "was working right with Engineering on it," and also decided to terminate Baker for the mistake and for other errors he made when working on the vessel ' Baletka testified that Respondent learned from Monsanto the Tuesday or Wednesday after Hill's discharge (September 3 or 4, 1968) that it would accept the vessel with the error in it. He saw Baker the next day, about the middle of the morning, and started to tell him why he was discharged, but Baker interrupted to say the tray bars had been questioned Baletka replied that he and Hill had been told the fractions were one-half inch and they had access to the Engineering Depart- ment Baker then said that Baletka had been forced to run him off, and that when "these sons-of-bitches" got through with him they would also run him off Baletka also testified he said to Baker that he should have fired him for the way he lifted the cans or sections of the vessel which caused them to come apart, fall, and break, and that about a year before the discharge Baker told him that he wished to be discharged so he could go back to Oppenhauser Haygood testified that when Baletka reported the error to him, he had Inspector Angele check the vessel and when Angele had checked it, he reported to him that the error was present as Baletka stated it. Haygood's testimo- ny corroborates Baletka's testimony except in one substantial ' As previously stated the variation between the 12 tray bar dimensions is 2 feet The fraction of one-half remains constant Between the dimensions for the sixth and seventh tray bars is a variation of 4 feet to allow for a manway or entrance to the vessel for work therein during fabrication, or for repair or maintenance after it is completed and placed in operation ' These errors are discussed supra respect Baletka expressed the opinion that Respondent was informed by Monsanto's inspector the following Tues- day or Wednesday that Monsanto would accept the vessel with the error in it, while Haygood testified that he called the inspector the morning of Friday, August 30, apprised him of the error, and asked what should be done, and was informed by him that afternoon that the vessel would still be accepted Haygood also testified that if the error had to be corrected the shell of the vessel would have been weakened by additional shrinkage due to the gouging out of the welded tray rings, smoothing the surface, and rewelding them in at the correct locations. He testified that there would have been shock corrosion of the shell of the vessel during its use due to the pressure against the weakened surface Haygood also testified that the mis- take could have cost Respondent $50,000, the full value of the tower as Monsanto was not required to accept the vessel with the error in it or in a corrected condition It could also give Respondent a black eye with Monsanto, one of its best customers. The least possible cost if Monsanto required the error to be corrected would be a couple of hundred dollars to move the tray rings or bars plus a severe blow to Respondent's reputation as fabricators. 5 The discharge of Snell It has been found that Snell was reprimanded a number of times from his appointment in April 1968 to the employ- ees' bargaining committee to October 4, 1968. The evidence of these reprimands, in support of and against General Counsel's case, has been stated supra General Counsel contends that the reprimands were to harass Snell because of his activity on the employees' bargaining committee. Stated below is the evidence of a reprimand Moats gave Snell on November 4, for conduct he engaged in when he entered the plant at 3 p.m. to report for the first time for the night shift which began at 3:30 p.m.; Snell's conversations with Night Foreman Bates and Baletka shortly before his discharge about his transfer to the night shift, Moats' conversation with Snell on November 5, in the course of which Snell was discharged, and in footnote 10 a conversation between Moats and Snell in the last part of September which included a discussion initiated by Snell dealing with the bargaining taking place between Respondent and the Union in which Snell participated as a member of the employees' bargaining committee. Gener- al Counsel contends that the evidence shows that Snell's discharge was discriminatory, and that Respondent, by Moats, attempted to engage in individual bargaining with Snell on matters that could be discussed only in the collec- tive-bargaining negotiations! Respondent contends the dis- charge was for cause and denies individual bargaining. The only testimony dealing with the events that occurred in the collective-bargaining between the Union and the Respondent is the conclu- sionary testimony of Baker, Snell , and Eggleston that they actively partici- pated in the collective bargaining while Hernandez , the other member of the employees' bargaining committee , did not actively participate Woodall and Brock, the chief negotiators for the Union, did not testify and neither did Hernandez Hernandez was retained by the Union as one of the Union's employee bargaining representatives after Baker and Snell were discharged, and Eggleston either quit or was discharged BAYPORT FABRICATING, INC 525 a. Snell's testimony Snell testified that about 20 minutes before 12 noon on October 29 he went to Baletka's office and had a conversation with him. He told Baketka he had to have more money if he was going on the night shift. Baletka said he could not give him more money, that it was up to the foreman to turn him in for a raise. He asked Snell how he could give him more money when he had been complaining about his work being sloppy and his dragging around. Snell asked him who complained, and Baletka replied that Martin had to chew him out that morning. Snell answered that Martin did not chew him out. He merely asked him if he could work faster, and he answered that he could only do so much working alone with the heavy stuff. Baletka then said again he was doing sloppy work and he could not give him more money, and answered yes to Snell's question whether he was still going to put him on the night shift Baletka answered that they had to put somebody on the night shift in answer to Snell's question why he should be placed on the night shift and not terminated if he was doing sloppy work and dragging around. When Snell asked Baletka what made him think he would do better on the night shift, Baletka did not answer Snell then said that Baletka figured Night Foreman Bates would get rid of him because of his union activities, which everybody knew about, and Baletka denied that this was the reason for the transfer.9 Snell testified he did not report for work the next day (Wednesday, October 30) because of a muscle spasm. He did not report he was sick He testified that he felt it would ease up before the time (3.30 p.m.) when he had to report for the night shift. Snell testified he had no knowledge of a plant rule that he was supposed to call in when he was ill He did not work the next day, but called in and talked to the clerk at the reception desk He said he was sick and was sick the night before, and asked her to relay this information to Foreman Bates. She said she would. Snell did not work on Friday and did not call in He testified that you just have to call in only one day. Snell reported for work on Monday, November 4. He entered the plant about 3 p.m. He obtained his card and set his lunch box at the desk Hill had when he worked there There was a vessel nearby which was turning A welder by the name of Buck was working on the vessel but was waiting for it to turn. According to Snell, Buck ° Baletka testified that he told Snell a man was needed on the second shift, and he felt that under Bates he would be getting better supervision and knew he had previously worked with Bates He also testified that Snell said that his wife was working days , he was working nights, and they would be unable to see each other, and he told him it was not a permanent setup , to try it for a few weeks , and, if it caused an undue hardship, he would bring him back to the day shift, and that he also said to Snell that if he worked satisfactorily with Bates, and he recommended him for a raise he would be more than happy to give it In connection with his decision to transfer Snell, Baletka testified that Bates needed some fitters on the second shift and he talked to Martin and other foremen about Bates' request He testified that Snell had the least seniority of the junior fitters , that Martin recommended him for the transfer, and that he discussed the transfer of Snell with Bates, and Bates wanted him said to him that he thought they had gotten rid of him, and he replied he was off sick. He talked to him about 5 minutes President Moats came around the end of the vessel and said to him, "Come here Dude, I want to talk to you" He said o k., and they walked 5 to 10 feet. Moats said that he came in the plant and talked to the men while they were working. He then said that if he wanted to get run off it was a good way to do it Snell replied, o.k. Buck's shift stopped working at 3 25 p.m. Snell testified that Buck was working and talking, and that Moats said nothing to Buck. At 3.25 p.m , Foreman Bates said that the second shift would not come in until 325 p m.10 Bates then assigned the work As he was taking Snell to his work assignment, Baletka stopped Snell and asked him why he did not call in on Wednesday, and he replied he felt he might come in later Baletka said there was a policy to call in the first day, and instructed him to call in the first day Snell talked to Bates at 10 p.m. He told him he was punching out at midnight. The shift ended at that time. He was not told he had to work overtime. Bates said it was his prerogative not to work overtime. Some employees told him they were working overtime until 2 a.m. No one from management gave him this information. According to Snell, Bates said at this time that he knew in his heart they put him on the night shift hoping he would get rid of him, but that as long as a man does his work, and he knew he could work, he was not going to run a man off. Snell then said to Bates that he thought they were setting him up, that he heard over the weekend they were supposed to get rid of him. Bates would get rid of him, and they would get rid of Bates Snell punched out at 12 o'clock midnight He reported for work on Wednesday, November 5, at 3:25 p.m Bates told him President Moats wished to see him in the front office. Snell started for the office and Baletka met him on the way They went into Moats' office. Haygood came in response to a telephone call from Moats' office Moats said to Snell that he had not called in when he did not report for work, and he refused to work overtime. Snell denied he refused to work overtime. He said he told Bates at 10 p.m., he was punching out at 12 o'clock and going home. Moats said Bates told him that he refused to work overtime. He said he never refused to work overtime because he had told Bates at 10 p.m., that he was punching out at 12 midnight, and he had not informed him they were working over 8 hours. Bates was sent for, and while waiting for him Moats said he heard he told Bates he was going to be fired Moats then said he did not think it was any of his business what they did with their superviso- ry personnel Snell said he felt that if he was going to be fired and somebody else knew about it he would want that person to tell him about it. Moats said that he would not want him to call but would like to have him in his presence where he could get his hands on him. Snell 10 Baletka testified that Respondent had a shop rule that the second- shift employees should not come into the working area until 3 25 p in and that the employees had knowledge of this rule He testified that the second-shift employees could stay in the restrooms or in clock alley 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stood up and said Moats was wanting to get his hands on somebody, that he had threatened to get hold of him, and Moats answered that he could get hold of him from the chair in which he was sitting. [See attached appendix ] Snell then said that if Moats' wanted to get hold of him he could come outside, and turned to Baletka and said that went for him too." Moats said no to Snell, and told him to sit down, in response to Snell's suggestion that he and Moats go outside. Moats asked Snell what he ought to do with him, and the latter replied that he was the boss. Moats answered that he was the boss, and for Snell not to forget it. Bates entered the office, and was asked by Moats or Baletka if he (Snell) had refused to work overtime, and he answered that he did Snell said that he told Bates at 10 p.m he was punching out at 12 midnight, that he would have his 8 hours, and that Bates never told him they were working over 8 hours. Bates then said he guessed that he never told Snell they were working more than 8 hours and that Snell told him at 10 p.m. he was punching out at 12 o'clock." Snell testified that he and Moats again began talking about getting hold of somebody, and Moats told Snell to go out to the reception room and wait for his check, that Haygood would have it made out But before he left the office, Moats said to him that he wanted him to be sure of the reasons why he was being fired, that they were failing to work overtime, talking to a guy during working hours, telling Bates he was going to be fired, and for not calling in the first day he was sick " b. Moat's testimony Moats gave testimony about his conversation with Snell on November 4, 1968, about 3 p in , when Snell entered the working area of the plant and talked to employee Buck when the latter was working on the first shift, and Snell was waiting for the beginning of the second shift at 3:30 p in. Snell's testimony is set out supra, along with " On cross-examination and redirect , Snell admitted he couched in obscene language the invitation to Moats and Snell to go outside and engage in a physical encounter " Baletka testified that in this conversation Snell said to Moats that he had told him (Baletka) that he would not work more than 8 hours and then admitted he had not talked to Baletka about working overtime, and Moats asked Snell if he was going to work overtime and he replied he did not know, that he would let him know sometime that night On cross-examination , Snell testified he may have been asked if he was going to work overtime that night , and that he might have said that when he got his 8 hours in he would go to his house " Snell testified on cross-examination that he did not regularly announce to the foreman during the shift that he was punching out at the end of 8 hours, although he did so on November 4 He said he had been punching out at the end of 8 hours for the previous 8 months and nothing had been said about it although the employees he had been working with had been working overtime He said that his wife worked during the daytime, and they liked to "communicate a little bit" He also testified that when he first went to work for Respondent he worked considerable overtime, but during the last year, when he was on the day shift, he worked very little, perhaps 1 day He testified that sometimes on Friday in weeks when he would not work 40 hours because he was negotiating, he would be asked if he wanted to work on Saturday straight time to make up the time he had lost , but that he did not work Then he testified he did not fail to work in every instance, just about 60 percent of the time testimony given by Baletka Moats' testimony corroborates the testimony of Snell and Baletka Moats testified that he visited the Bayport plant about 5 minutes before midnight on November 4 He walked into the shop where Bates, the night foreman, was standing. He asked him how everything was going, and he replied everything was smooth "About that time the whistle blew for everybody to get off " Snell walked by, and Moats said to Bates that everybody else in the shop was working that night "on this hot job," and asked "Why isn't Snell?", and Bates answered that he was not working overtime as he had made an agreement with Baletka not to work overtime Moats said "o.k " Bates said he had heard that he and Baletka were to be run off, and in response to Moats' question, who told him, said Snell did, and that he considered him a responsible person. Moats replied that if he was to be run off he would be the first to hear of it Bates also said at this time that Snell asked him to fire him 14 Moats talked with Haygood and Baletka about Snell during the first shift on November 5 They decided to talk to Snell, and Moats decided that he would be the one to talk to him He asked Baletka to bring Snell to his office when he came in at 3.30 for the second shift He testified that if Snell's attitude was right, the intention was to reprimand him and possibly suspend him for a day or two and then forget the matter. The meeting was held in Moats' office on November 5, at the beginning of the second shift as Snell testified. Snell, Moats, Haygood, and Baletka were present , and Bates came in during the conversation in response to a request from one of Respond- ent's representatives. Moats testified he said to Snell that they had a problem as matters were not running as smoothly as they should be, that several things had happened, and he wanted to go through them and get them straightened out. Moats said to Snell that he was off the prior Wednesday (October 30) and did not call in, and Snell answered that he was not near a telephone that he could use to call in When Moats asked him about being absent on Thursday and not calling in, Snell did not give any answer. Moats was about to ask him about his absence on Friday, when he discovered that he called in He asked him if he knew the rules, and he answered that he did.15 He asked Snell what he ought to do about a situation like the one being discussed and Snell answered that that was his problem. Moats asked him why he was talking to Buck on November 4, that he knew the company rule that he should not have been in the plant, and he answered that as he passed Buck the latter stopped him, and they passed the niceties of the day Moats told Snell that that was why the plant was running inefficiently and losing $50,000 a month, and he said that that was his problem Moats then asked Snell if he told Bates he was not going to work overtime and " This is the conversation Bates had with Snell at 10 p m on November 4 1, Moats testified that if an employee does not call in the first day he is subject to being fired , and if he does not call in the third day he is fired He said nothing about the second day so the rule for that day is the same as the one for the first day BAYPORT FABRICATING , INC 527 he answered that he did not say this to Bates. Moats asked Haygood to get Bates Bates came into the office, and Snell admitted he was not going to work overtime the night before and did not work overtime Moats asked him if he was going to work overtime that night, and he said he did not know, that he would give him an answer when he got ready Moats asked Snell if he asked Bates to fire him, and he denied he did, but when Bates said he did, he said he told Bates he could not make a living working for Respondent and his wife had to make a living for them, and Bates would be doing him a favor by firing him. Moats asked him if he intimidated Bates by telling him that he was going to be fired . He denied he intimidated Bates, but admitted he told him that Baletka and he were to be fired within 2 weeks. Moats asked him how he knew this, and he replied he heard a rumor on the telephone. In answer to Moats' question if he thought the rumor should have been passed around, Snell said he thought it should, and asked Moats if he would not like to hear a rumor about himself Moats answered no, he did not believe in rumors If somebody had something to say to him he would like them to say it to his face.16 Moats then asked what he thought he should do about this situation and Snell laughed and said it was his problem, that as far as he was concerned he could do anything he wanted to do. Moats replied that with his attitude the way it was, and it was a bad one, the only thing for him to do was to fire him. He said that he wanted to list the reasons so everybody would know what was happening He said Snell did not call in on Wednesday when he was supposed to call in. Snell said that was all he needed He needed only one reason Moats said they were going to list all of them . He then listed Snell's talking to Buck when he was working, intimidating a foreman by telling Bates that he and Baletka were going to be fired , asking Bates to fire him, and refusing to work overtime or to answer if he would work overtime . Moats testified it was 3.45 p.m, and that he said to Snell "today your time is terminated," they will get your check . Haygood got up to get his check Snell stood up and started to walk out, and about halfway turned and said in obscene terms that Moats had been trying to get him since he took over the plant , and he would be welcome to try it right then if he would come outside, and referring to Baletka by using his name and an obscene prefix said that he was included in the invitation Moats testified that he said he could probably get at him, using the obscene words Snell used, without getting out of the chair he was sitting in by reaching over and using the telephone . He said that the best thing for Snell to do was to sit out in the lobby and wait for his check. 6. The termination of Eggleston a. Undisputed facts It has been found that Eggleston either quit on Friday, September 20, 1968, or was discharged on Tuesday, Septem- " Snell testified that Moats said he would want to have him face to face so he could get his hands on him Moats denied he made this statement- ber 24, 1968 It has been found that Eggleston was, like Baker, Snell, and Hernandez, members of the employees' bargaining committee which assisted Woodall and Brock, the chief bargaining representatives for the Union, in the collective-bargaining sessions the Union was having with Respondent Eggleston , a machinist for 15 years, began working for Shaffer at Bayport in April 1968 , and was on Respondent's payroll on July 18, 1968, when Respondent acquired the assets of Bayport. He was on vacation in the first weeks of August 1968 and returned to work on August 19, 1968 There was considerable work to be done on the engine lathe Eggleston was working when he went on vacation . The material to be worked on was located round the machine In the period prior to his vacation, Eggleston had been working 10 to 20 hours over- time. He worked the overtime at straight -time rates when he was making up the time lost during the day shift when he attended the collective -bargaining sessions and participated in them While Eggleston was on vacation, Respondent sent to a machine shop the work he left at his machine when he went on vacation . The area around the machine was clean when he returned Except for 2 hours on August 19, 1968, the day he returned to work , Eggleston was not given the opportunity to work overtime . The work to be done accumulated at his machine On Saturday , September 21, or Monday, Sep- tember 23, following Friday, September 20, when , according to Respondent , Eggleston quit , the work to be done, except work finishing some aluminum flanges, was sent to a machine shop . Eggleston was reprimanded by Haygood on the morning of September 19, in the presence of Baletka, for allegedly doing poor quality work in putting a finish on a flange and taking too long to do the work . Eggleston, on September 20, asked Vanderhider, his foreman, for a recommendation to be used in applying for a job some other place, and carried home with him , when he left the plant, a fan with a 30-inch diameter and a stand 5 feet high which was his property , and which he kept in the plant for his personal use while working . He asked Vanderhider for a pass that would permit him to carry the fan through the gate, and received one. He did not take his tools, weighing 70 to 90 pounds, locked in a toolbox, that were his personal property. He told Mike Carr, foreman of maintenance , when leaving at 3.30 a.m., Friday, September 20, either he was quitting (as contended by Respondent) or he ought to quit the place (as contended by the General Counsel) On Saturday , September 21, 1968, Mike Carr told Baletka what Eggleston said to him as he was leaving on Friday evening with his fan Vanderhider told Baletka about the same time that Eggleston had asked him for a job recommen- dation on Friday . The guard at the gate on Friday evening attached to his report for Friday the pass Eggleston received from Vanderhider to take the fan through the gate. On Saturday, Haygood, who received the report and the attached pass, asked Baletka what it was all about. Baletka told Haygood what had been told to him by Vanderhider and Carr. Haygood and Baletka decided to send the work assigned to Eggleston which was not finished to an outside machine shop. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eggleston did not report for work on Monday, September 23, but had Garza, an employee who rode with him to work, report him in as sick. Garza made this report to Vanderhider in the morning Haygood told Baletka to have Vanderhider put a quit slip in Eggleston's file, and Baletka gave this instruction to Vanderhider He reported for work on Tuesday morning at the scheduled time As stated, the material for the unfinished work, except the aluminum flanges, was gone Vanderhider said to him that he heard he had quit, he said that he had not Vanderhider gave him a work assignment. He was working on it at 7:30 a.m , when Baletka and Haygood appeared at his machine. Baletka said he heard he had quit, Eggleston denied that he had Haygood said to him that he had quit, which Eggleston denied, and Haygood again said that he quit, and asked him to get his tools and leave, that all of his business ended there on Friday. Eggleston put his tools in his tool box, and went to Vanderhider's office to return tool checks, badge, and safety glasses He returned them to Vanderhider. Baletka and Haygood were also present He again said he did not quit and Haygood said he had Baletka said he had bad mouthed Respondent on Friday when he was leaving, and gave it a bad time, and what was wrong with the place was that the employees were running it Haygood told him at this time that his work had been sent out, and Eggleston said that the aluminum flanges were there Eggle- ston left with his tools. b. Evidence in controversy" Eggleston started to put a finish on the flange about 12 30 p.m., on Thursday, September 18 Its diameter was 22 to 24 inches. The metal was thin It was difficult to fasten the flange firmly in the machine with the chucks (units with teeth) The result was that it vibrated when the machine was turning, and the tool with which the finishing is done, on being applied to the vibrating surface, dug into it, causing a chattering, and pock marks and holes on it To cut down vibration, and the resultant chatter and damage, Eggleston reduced the speed of the machine At 3 30 p.m, Eggleston was still working on it. The putting of a finish on this flange should have taken no more than an hour and a half. Moats, as he often did since Respondent took over on July 18, walked down the aisle between the machines, and noticed the work being done by Eggleston He apparent- ly heard the chatter made by the finishing tool when applied to the vibrating flange as it was turning. He watched Eggleston's work, and then talked to Vanderhider, Eggle- ston's foreman. Eggleston asked Vanderhider what he want- ed, and he told him that he wanted to know how long the job was in the machine and the reason for the rough finish. Later, Baletka and Haygood came to Eggleston's machine, and Baletka told Eggleston that the job was " These findings are based on the testimony of Eggleston, Baletka, Haygood, and Moats I have credited some parts of the testimony of these witnesses and rejected other parts I have made credibility resolutions in regard to conflicting testimony by evaluating the testimony of each of the witnesses in context taking too long, and the finish was too rough. Moats had told Haygood to look at the job Eggleston was doing, that it looked like something was wrong with it. Earlier when Eggleston inquired of Vanderhider what Moats want- ed, and Vanderhider told him, he said to Vanderhider that he would appreciate any suggestions or ideas he had, and Vanderhider replied that he would know what to do if anyone did. Between 3 30 p.m., on September 18, and the time Eggle- ston reported for work (7 p.m.) the next morning, pictures were taken of the flange which Eggleston was working on During that time, Haygood, Baletka, and Jessee Lorentz, an outside machinist, conferred about the condition of the flange and the way it was set up in the machine Haygood testified that the outer edges of the flange were not properly supported, and the flange vibrated when turn- ing Baletka told Haygood that the error could be corrected by tacking, a temporary welding, a piece of pipe across the back of the flange to support the outer edges. When Eggleston reported for work on September 19, Baletka told him that Haygood wished to see him, and he, accompa- nied by Baletka, went to Haygood's office. Haygood testified that the conversation began by his asking Eggleston if he was having any problems with work- ing his machine, and he answered no. He asked him about the condition of the flange and the 3 hours he had spent machining it. Eggleston answered by saying that he could not get the machine going right, and agreed that putting the finish on the flange was only an hour and a half job. Haygood asked him how long he had been a machinist and if he considered himself a good one. Eggleston answered that he had been a machinist for 15 years and considered himself a good machinist. Haygood said he should have known what he was doing. He instructed Baletka to show him what to do He said to Eggleston to come to them in the future when he had a problem, that they were the experts Haygood testified that he had asked Eggleston if he had consulted Vanderhider and Baletka, and he answered no. 'I Eggleston testified that Haygood asked him how long the flange was in the machine, and he answered approximate- ly 3 hours He agreed with Haygood that the job should not have taken more than an hour and a half. He said that he was getting vibration because of the thinness of the metal, and he needed four T-nuts to reinforce the chuck jaws in holding the flange in the machine. He also said that he had been trying to eliminate the vibration without the T-nuts.19 Haygood replied that the T-nuts were not needed, and that Eggleston should have come to them when he had trouble Eggleston then testified that Haygood instructed Baletka to tell him how to run the job, and the latter told him to have Vanderhider weld a piece " Eggleston testified that he had gone to Vanderhider and to Baletka about the way the job was progressing I find, however, that Eggleston's contact with Vanderhider about the job was when he asked what Moats wanted to know about it, and his contact with Baletka was when Baletka and Haygood came to his machine after Moats told Haygood to look at what Eggleston was doing " Eggleston had reduced the speed of the lathe Haygood denied that Eggleston said anything about T-nuts He said he needed wiping rags and he gave him a handful BAYPORT FABRICATING, INC of pipe on the back of the flange so he could chuck on it. Vanderhider had the pipe welded on the flange Eggleston then testified that the flange was so warped from the welding it could not be remachmed and it was scrapped 20 However, a short time later he testified that the temporary weld did not warp the flange, and the pipe attached to the flange did stop the vibration In any event, the flange had to be scrapped because of the pock marks and holes caused by the vibration Eggleston testified that Haygood said things were piling up around his machine and he was attending the negotia- tions' meetings, and continued by saying that he could attend the meetings if he had to, but they were going to have only one machinist, and were not going to have work piling up around the machine. They had a man working nights who could work the engine lathe, but were going to work him somewhere else Haygood admitted that he told Eggleston his production was low, but denied he said anything about the Union or the bargaining sessions. It is Eggleston's testimony that on September 20, after the flange was scrapped, he was given another job to do, and he suggested to Vanderhtder that on this particular job a piece of plywood be used to support the chucks. He testified that Moats watched him work for about 5 minutes He asked Vanderhtder what Moats said to him about his work, and Vanderhider replied that he asked what the job was It has been found that later on September 20, Eggleston asked Vanderhtder for a recommendation to use is seeking other employment He gave the conclusionary testimony, without objection by Respondent's counsel, that he figured that he was going to be fired after what they did to Baker and Hill. Eggleston also gave testimony to explain his taking home his fan at the end of his shift on the evening of Friday, September 20: He said that his window air-conditioner was broken He repaired the air-conditioner, but did not bring the fan back to the plant the following Tuesday because the weather was milder and he felt he did not need it while working. Eggleston testified that when he was leaving on Friday evening he ran into Mike Carr, maintenance foreman. He testified that it was near the restroom and in clock alley, where there were other employees. He asked Carr if Pete Rodriguez, a maintenance employee, had quit, and Carr said he had Carr also said that Rodriguez played right into their hands, that they wanted him to quit He asked Eggleston if he was quitting, and he said no, but he ought to quit. Carr then asked where he was going with his fan, and he answered that he was carrying it home. Carr told him not to quit, that they were trying to make everybody mad and quit, and to bust the wages back to lower rates, and if they got enough to quit they could hire in cheaper labor. Eggleston admitted he may have said that he ought to quit the damn place He was not sure whether he used the word damn or some similar word. Mike Carr testified that he had a conversation with Eggleston in clock alley on September 20, at the close '° Eggleston said that when he talked to Vanderhider he said the welding would warp the flange out of tolerance, and Vanderhider replied they had better do as instructed or they might be another Hill and Baker and be fired 529 of the first shift Eggleston was angry because the paychecks were late He said "Now they are bringing the checks out late " As they were proceeding along clock alley, Eggle- ston said he was quitting this "f--king" place Carr denied he asked Eggleston if he was quitting, and he denied he said anything about Rodriguez, or that Eggleston said anything to him about Rodriguez Carr testified that the next morning, which was Saturday, when Baletka said something to him about production, he said to him not to look for his machinist to come in as Eggleston had told him on Friday he was quitting this "f--king" place." Carr testified that after he had talked to Baletka, Haygood called him on the telephone and asked him to come to his office. Haygood asked him to put in writing what Eggleston said to him.22 In a memorandum for the file dated September 23, Carr wrote that on Friday, September 20, 1968, at the shift change at 3.30 p.m., he walked, with Eggleston at his side, from the shop proper to the maintenance shop, after receiving the paychecks for the men in his department, and Eggleston was complaining, although he did not recall what about, and Eggleston said he was quitting his job. On cross-examination he testified he told Haygood on September 25, for the first time, the actual language Eggleston used He also testified that he did not like to use obscene words in something he wrote. Haygood testified that Baletka told him on Satur- day, September 21, that Carr had told him that Eggleston said he was quitting, that he said, "F--k this place, I quit." Carr testified that on many occasions Eggleston said to him that he ought to quit his job, and on one of these occasions, while Shaffer was the owner, he said he ought to quit because he could make more money elsewhere, and he said to him that if he could make more money elsewhere why didn't he go there, and that a day or so later Eggleston said to him he gave what he said to him some thought. Manford Williamson, foreman in charge of Department D and assistant shop superintendent, testified for Respondent He had been foreman of the Aluminum Department at the time Eggleston quit. He testified that the Wednesday or Thursday before Friday, September 20, while in Eggleston's department, Eggleston said to him that if it were not for his union involvement he would have quit Respondent long before that time 2' Haygood testified that he did not receive word until late in the afternoon of Monday, September 23, that Eggle- ston had sent word in by Gaza that he was sick, and by that time the decision to send out the work unfinished by Eggleston, evidenced by the pile-up around Eggleston's machine, had not only been made, but the objects around the machine had been picked up Haygood also testified " Baletka testified that Carr said to him that Eggleston said he was quitting this "f--king" place, and he told this to Haygood " Carr did not give testimony for what he said to Haygood regarding what Eggleston said to him It has been found supra that Baletka informed Haygood what Carr told him and also what Vanderhtder had said to him about Eggleston's request for a recommendation to be used in appl}mg for other employment " Baker, Hill, and Eggleston were employed by Offenhauser at the time of the hearing Baker, who was terminated on Friday, was working for Offenhauser by the middle of the next week Hill started work the day after Baker did 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that when Eggleston came to Vanderhider's office, when he was present there on Tuesday, September 24, to return the tool checks, badge, and safety glasses, and said he had not quit on Friday, September 20, he said to him "that at any time a guy had to ask his foreman for a job recommendation for another job and he carries his personal property out of the plant, and says `F--k this place, I quit,' then he doesn't show up for work the next day, as far as I am concerned he has quit." Eggleston replied that he was just mad at the time and was not really serious. Haygood answered that it was too late, that they had already farmed out his work 24 Haygood testified that Baletka and he decided to send everything out that was piled up near Eggleston's machine except the aluminum flanges which had to have a finish on them. They were not needed for 30 days Baletka corroborated this testimony. Haygood also testified that Eggleston was replaced 6 weeks later. President Moats testified that Eggle- ston was a good machinist but quit on Friday, September 20. There is no testimony as to whether Moats was informed by Haygood, Baletka, or Vanderhider prior to the time Eggleston left on the morning of September 24, about the events that occurred on Friday, September 20, Saturday, September 21, or earlier on Tuesday, September 24. 7 The alleged refusal to rehire Gerald Thomas Pete Rodriguez, maintenance man on the second shift quit on Friday, September 20, 1968, and Mike Carr, mainte- nance foreman, telephoned Gerald Thomas at the Southern Machinery Company where he was working, and talked to him about the possibility of his replacing Rodriguez Rodriguez had the classification of electrician at the rate of $3.50 per hour and had worked under Carr about 1-1/2 years when he quit. Thomas had been employed by Respondent under Carr on two different occasions prior to Carr's telephone call. The first time he received $2.50 per hour He was laid off in a reduction in force. He was recalled as an auto mechanic, and laid off in July 1968 At the time of the last layoff, he was doing automotive maintenance on 10 to 14 company cars and a few units of other mobile equipment He received $2 75 per hour. The number of company cars was reduced to two The two are given service such as changing spark plugs and work of that nature Anything major is done by a service garage. General Counsel contends Thomas was refused reemployment because an unfair labor practice charge was filed against Respondent in which it was alleged that Thomas was discriminatorily discharged. Respondent contends Thomas' discharge was for the reason there was no need for him when the number of vehicles Respondent was operating was reduced to two Thomas testified that Carr telephoned him and said he could give him a job back with Respondent, that he knew he was not making much money where he was. " Baletka testified that when he saw Eggleston at the engine lathe on Tuesday morning, he said to him that when one says he quits, he quits According to Baletka, Eggleston had just said that he was mad Friday afternoon because the checks were late, and that he had changed his mind He would be making $3 an hour, and Respondent could guarantee him 7 days a week, 12 hours a day. He told Carr he would like the job as he would like to get back to making money again. He was not positive if he said to Carr he would come out to see him or he asked him to come out and see him About 2 or 3 p.m., 35 to 40 minutes later, he went out to Respondent's plant and saw Carr He was in the guardhouse inside the gate. Carr asked how he had been doing, and then said he had him lined up to go back to work, but went to the office and someone in there said he could not hire him because he had a suit against them Carr then said he had put a foot in his mouth, and was sorry. Thomas testified he was employed the first time by Respondent as an electrician at $2.50 per hour Carr testified that Thomas was employed the first time as a trainee for maintenance man on the third shift. He denied that he was employed as an electrician. Carr testified that Rodriguez told him he was quitting as he had found a job that paid more money. After trying unsuccessfully to talk him out of quitting, he telephoned Thomas. He told him he might have a job for him. He may have said at that time the day shift was working 7 days a week and the second shift 6 and each shift 10 hours, and that some shifts were working 12 hours. Thomas said he would like to come back. Thomas came out to the plant. Between the time he talked to Thomas and the time the latter arrived at the plant, he talked to Baletka about hiring Thomas Baletka said he would talk to Haygood. Haygood called Carr on the intercom to come to his office He asked him if he needed a mainte- nance man on the second shift and he replied he always had one. Haygood asked him if there were many major breakdowns on the second shift that warranted a full- time maintenance man. He answered "not really." In reply to his inquiry as to what the maintenance man did on the second shift he answered that he went around welding leads, turning off machinery, and replacing light bulbs. He asked him if he had a company car, and he said yes. Haygood then asked if he could come out to the plant if some major breakdown occurred at night, and he answered "sure" Haygood then said that they would try getting along without a man for a while, that it would be fine if it worked out, and if not he would get him a man. Carr further testified that when Thomas came out to the plant they talked it over He said to Thomas he was going to try to get along without a man for a while. He was of the opinion that it was at that time he mentioned the number of days and hours they were working. Thomas said he could not come to work right away anyway, that maybe he could come the following week. Carr denied he said anything to him about his having filed charges against Respondent or having a lawsuit against it. He testified that at this time he did not know Thomas had filed charges against Respondent, that he first learned of the charges later from a Mr Jones of the Board who mentioned them to him when he was at Respondent's plant He denied Haygood said anything to him about charges Carr testified that Respondent had not hired a maintenance man for the second shift He testified on February 6, 1969. He had gone to the plant between three BAYPORT FABRICATING, INC and six times since Rodriguez left Schmidt, the night foreman, calls him on the telephone if something is wrong with a machine playing an important part in production,, and sometimes they work the problem out on the telephone On one or two occasions he had his maintenance man go to the plant during the second shift. Haygood corroborat- ed Carr's testimony of the conversation they had on Septem- ber 20, 1968, in regard to the replacement of Rodriguez He testified that Rodriguez had not been replaced Haygood denied anything was said during the conversation he had with Carr about a charge or lawsuit filed by Thomas He said that Carr told him that Thomas was available, and he said to Carr that he did not think they needed a night maintenance man, that he had a vehicle and could dust jump into it and come out The Union filed a charge against Respondent in Case 23-CA-3121 on September 3, 1968, in which it alleged, among other things, that Thomas was discriminatorily dis- charged on June 26, 1968. The date was obviously an error as Thomas was laid off on July 26, 1968. A second amendment to the charge, filed November 4, 1968, dropped the allegation of a discriminatory discharge of Thomas There was added a new allegation relating to Thomas that Thomas was refused reemployment on October 4, 1968, because the Union had filed charges on his behalf, and because of his membership in the Union, and activity on behalf of it The evidence shows that Respondent decided not to fill Rodriguez' job on September 20, 1968, and Carr so informed Thomas after telling him that he might have a job for him There is no evidence that Carr is a member of the Union or that he engaged in union activity on behalf of the Union The complaint in Case 23-CA-3121 alleges that Respondent by Mike Carr told an employee (Thomas) on or about October 4, 1968,15 that he would not be hired because he had filed charges under the Act The complaint was issued on November 15, 1968 The only legal action which on September 20,1968, could be said to have a color of a lawsuit by Thomas against Respondent was in charge in Case 23-CA-3121 containing, among other things, the allegation of the discrim- inatory discharge of Thomas, filed by the Union on Septem- ber 3, 1968 The Union, however, abandoned the allegation that Thomas was discriminatorily discharged on September 25, 1968, when it amended the charge filed on September 3. Apparently the Union found it could not be supported. It can be argued by Respondent that it knew it had no merit as a lawsuit on September 20, 1968, when Carr allegedly said to Thomas that Haygood said to him that he could not be rehired because he had a lawsuit against Respondent. Analysis, Credibility Resolutions , Findings, and Conclusions The theory of the General Counsel's case is that Respond- ent and Shaffer, its predecessor, harassed employees Baker, Snell, and Eggleston by reprimands and threats, and =5 At the hearing General Counsel was permitted to amend the date of October 4, 1968, to September 20, 1968 531 Respondent discharged them, because of their union activity and their active participation, as members of the employees' bargaining committee, in the collective bargaining from May 24, 1968, until the dates of their discharges, between the Union, on the one hand, and Respondent and Shaffer, its predecessor, on the other General Counsel contends that the evidence also shows that Foreman Hill was dis- charged to support the pretextual defense that Baker was discharged for cause, that Respondent refused to rehire Gerald Thomas because the Union filed an unfair labor practice charge against Respondent in which it was alleged that Thomas was previously discriminatorily discharged, and that the harassment and discharge of Baker, Snell, and Eggleston, and the refusal to rehire Thomas, together with an alleged attempt to engage in individual bargaining with Snell, by Respondent is a rejection of the collective- bargaining principle and a refusal to bargain. This conduct, argues General Counsel, violates Section 8(a)(1), (3), and (5) of the Act. General Counsel argues that while reprimands given Baker and Snell, and threats directed to them and Eggleston prior to July 18, 1968, when Shaffer, the predecessor of Respondent, operated the plant, is not conduct violative of the Act for which Respondent can be held accountable; it is background evidence against which conduct engaged in by Respondent after July 18, 1968, is to be appraised The Union, the certified bargaining representative for Respondent's production and maintenance employees, and Respondent from July 18, 1968, to January 20, 1969, and Shaffer, its predecessor, from May 24, 1968, to July 18, 1968, have had 19 bargaining sessions. The Union has been represented by International Organizer Woodall and its attorney, Warner Brock, and an employees' bargaining committee comprised of Baker, Snell, and Eggleston, and Hernandez, and Hernandez, Pate, and Pond after Baker, Snell, and Eggleston were no longer on Respondent's payroll. Respondent was represented by Nelson Wall, secretary of Respondent, and its attorney, Scott Kneese. There is not a scintilla of evidence of any statements, conduct, or anything else occurring at the bargaining ses- sions from which an inference could be drawn that Baker, Snell, and Eggleston actually participated in presenting proposals of the Union, receiving counterproposals of Respondent, and discussing proposals and counterproposals, while Hernandez remained negative Neither Woodall nor Brock were called as witnesses to give testimony of state- ments and conduct of Baker, Snell, and Eggleston at the bargaining sessions, and of silence by Hernandez when he could well have spoken or acted. The only evidence offered by General Counsel was the conclusionary selfserving statements of Baker, Snell, and Eggleston, the employees no longer on the payroll, that they actually participated in the sessions while Hernandez did not. I do not consider this conclusionary, selfserving testimony to have any probative value, when testimony by them of statements made and conduct engaged in, if there were any, could have been given by them, and particularly by Woodall and Brock. Since probative evidence was not offered, I conclude and find that if Baker, Snell, Eggleston, Woodall, Brock, and Hernandez were asked to give it as witnesses, they would not have been able to do so. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Therefore, there is no evidence related to the bargaining sessions themselves that support the General Counsel's theo- ry that Respondent has been hostile to Baker, Snell, and Eggleston because of their active participation in the bargain- ing sessions. On the other hand, the fact that there were 19 bargaining sessions, and at the time of the hearing, from February 4 to 7, 1969, a bargaining session for Febru- ary 11, 1969, had been scheduled, and not the slightest criticism has been raised by the Union about the conduct of Respondent at the bargaining sessions, buttress the pre- sumption that Respondent's bargaining has been in good faith Between May 10 and July 18, 1968, Baker was reprimand- ed by Shop Superintendent Baletka or Foreman Hill. Baker was reprimanded on two occasions for failure to wear a hard hat as required by a plant safety rule, and in one instance for poor production A notice of the May 10 reprimand was placed in his personnel file Baker did not wear the hard hat when he should have done so. Snell was reprimanded a number of times by Baletka, and on one occasion by Foreman Hill for poor production and doing too much talking to other employees. I find from Baletka's testimony, and the absence of credible testi- mony from Baker and Snell, that Baker's and Snell's produc- tion was poor and that Snell was talking too much to other employees during working time Although reprimands were reasonable on their faces, testimony offered by General Counsel if credited would show an illegal motive behind the reprimands This testimo- ny would also disclose illegal threats under the Act against Baker, Snell, and Eggleston The testimony is comprised of testimony by employee White that about June 1, 1968, Baletka told him that he would have to get rid of Snell because he was devoting too much of his time to union activities, and about June 15, 1968, told him that Eggleston and Baker thought they were involved with union activities, and he would have to get rid of them, and after June 15, 1968, Foreman Hill told him that Baletka said to him he was out to get Snell, and instructed him to get rid of Snell because he was devoting too much time to union activities On cross-examination White admitted that on June 14, 1968, he told Baletka he decided to join the Union, and Baletka replied that it was his right to join the Union. Baletka denied he made the statements to White regarding Snell's, Baker's, and Eggleston's union activity that White testified he did He testified that the only statement he made to White involving or related to union activity was his reply to him when he said he decided to join the Union, that it was his right to join the Union. Baletka also denied he made the statement to Hill that Hill allegedly told White Baletka made to him. If Baletka had made the statement on June 1 to White about Snell and his union activity, and had threatened to fire Snell, White would not have disclosed to Baletka on June 14, that he had decided to join the Union. Moreover, in view of White's disclosure on June 14 that he had decided to join the Union, Baletka would never have made the statements hostile to Eggleston and Baker because of their union activity that White testified he made after June 15. From evaluation of the demeanor and oral testimo- ny of Baletka, White, and Hill, in context, I consider Baletka a more credible witness than White and Hill. In addition, no foundation was laid by General Counsel to give credence to testimony by a rank-and-file employee that a shop superintendent would make to him disclosures highly damaging to an employer wham he represented and acted for in a highly responsible capacity For these reasons, I do not credit the testimony of White with respect to illegal statements Baletka made to him about Baker, Eggleston, and Snell, and the statement Hill allegedly made to him about a statement Baletka made to Hill that he was out to get Snell and an instruction he gave Hill to fire Snell The evidence of record shows that a foreman did not have the authority to discharge an employee. The alleged instruction to Hill by Baletka would have been ridiculous. Baletka did not make ridiculous statements or do ridiculous things I find no substantial evidence of record that the reprimands given to Baker and Snell between May and July 18 had any illegal motive or union animus behind them or that Respondent, by Baletka in that period, illegally threatened Baker, Snell, Eggleston, and other employees under the Act The evidence discloses that Baker and Snell received reprimands between July 18, 1968, and the dates they were discharged. They are August 29 and November 5, 1968, respectively. Baker was working on the 80-foot vessel with a 15- to 17-foot diameter that he had started under Foreman Hill about the prior June 18. This continued to be his project until his discharge on the following August 29. Shortly after July 18, Baker lifted with a crane two sections of the vessel, which Baker claimed had been made crooked by the night shift, to straighten them out. The temporary weld joining the inside ends of the sections broke, and the sections fell and were damaged, because the force from the crane had been placed on the outside ends of the sections by the improper placing on them of the lines or slings by which they were attached to the hook of the crane The setup for lifting the sections was wrong. Baker should have been aware it was wrong and should have forseen the consequences. Baletka, who saw the incident and the damage, merely told Foreman Hill to talk to Baker. About the same time Baletka said to Baker that he would like to talk to him about Moats' statement to him that he was ruining a set of rubber turning rolls. The turning rolls on which the sections or cans are turned while being welded are expensive equipment I credit Hay- good's testimony that Baker had improperly positioned the sections or cans on the turning rolls so that the fit- up lugs which lut out from the sections or cans, and hold them together while being welded, bit into the rubber and damaged it as the cans were being turned. Baker testified that someone else had damaged the rubber rolls and had placed a ring around the cans which bit into the rubber The responsibility for the job was Baker's Baker testified he did not consider as a reprimand Baletka's discussion with him about the damage to the turning rolls. About August 8, 1968, Moats passed Baker as he was waiting for his welder to return with welding rods needed in the welding of spray nozzles to the interior of the vessel. As Moats passed him, he said to him he could BAYPORT FABRICATING. INC not fix it by looking at it Baker said "you sure as hell can't," without bothering to explain why he was standing idle In this instance, Moats saw Baker standing idle, and was entitled to the explanation Baker did not bother to give him I find from this evidence that the conduct of Respondent on its face does not constitute harassment of Baker or disclose an illegal motive under the Act Respondent appears to have acted reasonably in each set of circumstances. It did what an employer would or could be expected to do It remains for independent evidence, if any, to show illegal motive behind this conduct of Respondent There is no independent evidence involving Baker. So this evidence, if it exists, must lie in Respondent's conduct involving Snell. General Counsel argues that there is inde- pendent evidence involving Snell, who like Baker, was a member of the bargaining committee, that discloses a dis- criminatory motive behind the reprimands not only to Snell but also to Baker. About July 18, 1968, Baletka in the presence of Foreman Hill, told Snell he was not doing any work, and if he did not get busy he would terminate him An hour and a half earlier, Hill had assigned Snell the job of welding nameplates on a number of vessels at a back entrance to the plant Snell went to this location and asked an employee there where on the vessels the nameplates were to be welded The employer replied that Inspector Angele would have to tell him. Snell made no effort to find Angele, and idled away the time until Angele came by that location an hour and a half later As he was finally doing the welding assignment that Hill gave him an hour and a half earlier, Baletka and Hill came along. It was then that Baletka reprimanded Snell for not working. Snell was reprimanded by Hill on July 21, 1968, for idleness and poor production. A notice of reprimand was prepared by Hill and approved by Baletka The notice showed a mark of fair for ability and attendance and poor for conduct and production. On October 4, 1968, he was reprimanded by Baletka who prepared two notices of reprimand covering the one reprimand. One stated that Baletka warned Snell about talking about union activities during working hours, and the second notice stated that Baletka told Snell that the time from 3:20 p.m, to 3.30 p m., the last 10 minutes of the first shift, was for shop cleanup and putting tools away, and not for talking and union negotiations On the first notice, Snell's record was marked fair for ability, conduct, and attendance and poor for production On October 29, 1968, Foreman Martin, in whose depart- ment Snell was then working, asked Snell if he could step up his production, and Snell replied he could not do so because of the heavy equipment he was working with. On November 4, 1968, the day before he was dis- charged, and the first working day he was on the night shift, Snell appeared at the working area of the plant at 3 p m , a half hour before the night shift began, and a half hour before the day shift ended, and talked to Buck, a day-shift employee who was working, for about 5 minutes. President Moats was watching him. He called to him and they talked Moats told him that he had come into the plant and talked to a man while he was 533 working. He then said that if he wanted to be fired it was a good way to do it General Counsel did not offer any substantial evidence to show Snell was not idling or talking to employees while they were working He relies on the theory that Snell's appointment to the employees' bargaining committee in April 1968, and his participation in the bargaining since May 24, 1968, plus a disclosure by Hill of what happened at the supervisors' meeting on July 20, 1968, show the discriminatory motive for the reprimands Hill testified that at this meeting President Moats, Vice President and Shop Manager Haygood, Shop Superintendent Baletka, Foreman Vanderhider, himself, and other foremen were present Baletka, in the presence of Moats, Haygood, Van- derhider, and the others said Snell was no good, was an agitator, caused everybody trouble, and had to be gotten rid of, and instructed Hill to get rid of him immediately. Baletka denied he made this statement. Hill also testified that someone of management said that an employee had to have three reprimands and notices of the reprimands prepared before he could be fired. I have found that I consider Baletka a more credible witness than Hill, the foreman discharged on August 30, 1968, for what I consider an inexcusable error. Hill's admis- sion that he made false statements on an application to Offenhauser for employment was taken into consideration in my determination that he was less likely to tell the truth than Shop Superintendent Baletka. I have determined that on evaluation of Baletka's demeanor testimony and his testimony on substantive matters that he was a highly credible witness, and more so than Hill. As I have previously stated, the evidence discloses that Baletka did not engage in ridiculous conduct or make ridiculous statements. Baletka could not discharge an employee or instruct a foreman to discharge an employee. Haygood handled that responsibil- ity Baletka would not have ordered Hill to discharge Snell as neither Hill nor himself had the authority to take that action Hill testified that he refused to fire Snell, but told Snell what Baletka instructed him to do. This alleged action by Hill, which would have been contrary to Baletka's order had he made it, it also unbelievable. I do not credit Hill's testimony Foreman Mike Carr, who attended the July 20 meeting, denied any mention was made of Snell at the meeting. I find no denial in the record of Hill's testimony that at the July 20 meeting it was stated that an employee to be discharged had to be reprimanded three times and notices of reprimand prepared for each reprimand Assuming this was stated by Moats, Haygood, or other representative of Respondent having the responsibility to speak for it in such a matter, I find nothing discriminatory in the statement. On its face, it is reasonable. There is nothing to identify it as referring only to employees who were union members or engaged in union or other concerted activity There is no evidence that it brought about a change in the then working conditions which required that it be discussed with the Union before being followed. In the first part of August 1968, Baletka transferred Snell from Department C under Foreman Hill to Depart- ment D under Foreman Martin. He told Snell at the time he believed that Martin could make better use of 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his ability. He also told this to Foreman Hill There was no change in shifts. At the end of 2 weeks, Baletka compli- mented Snell on the good work he was doing under Martin. I credit Baletka's testimony that Snell did good work for about a month, but then returned to the same attitude and indifference to production that he had before the trans- fer. I credit Baletka's testimony that Martin reported to him Snell's production was poor, and said to him that he did not know what to do with Snell I credit Baletka's testimony that on October 4, 1968, he saw Snell talking to five or six employees between 3.20 and 3 30 p m They were sitting on the floor and were passing something to each other, when they should have been cleaning up the shop and putting tools away Baletka assumed they were discussing union activity. I find nothing wrong or unreasona- ble in Baletka's reprimand to Snell on October 4 for this conduct I credit his testimony that his making out two notices of reprimand was an oversight. I credit Baletka's testimony that there had been in effect for about a year prior to November 4, a shop rule requiring employees entering the plant for the night shift, beginning at 3:30 p.m, to remain in the restroom or in clock alley and away from the working area until 3:25 p.m I also credit Baletka's testimony that all the employees had been made aware of the rule. Moat's warning on November 4 to Snell for coming into the working area of the plant at 3 p.m, preparatory to going on the night shift at 3:30 p m, and talking to employee Buck while he was working was a reasonable reprimand. I conclude and find that Respondent has advanced sub- stantial economic reasons for the reprimands to Snell and Baker, while General Counsel has failed to show by prepon- derance of the evidence on the record as a whole that Respondent's reprimands had an illegal motive under the Act. At the stage of the fabrication of the vessel for Monsanto calling for the layout of the tray rings, which was about July 30, Hill and Baker asked Baletka what the fraction was in the spacing measurements on the shop print for two of the rings. They told Baletka that the fraction appeared to be one-eighth. Baker had brought these measurements to the attention of Hill. He said they looked like one- eighth. Hill agreed. There were on the shop print 12 tray rings and 12 spacing measurements for them. The fraction in nine of them was clearly one-half. Baletka looked at the shop print, and said he could tell that the fraction was one-half," but if they had any doubt they should check with Dave Brock in the Engineering Department. Brock was the draftsman familiar with the measurements on the prints. The fraction in the spacing measurements for the two tray rings and one other, in isolation, could be read as one-eighth instead of the fraction of one-half clearly in the nine other spacing measurements However, from the testimony of the expert who testified for Respondent, and the corroboration 'of his testimony by Baker, Hill, Buck, and Baletka, I read the fraction to be one-half. Hill and 16 I have credited Baletka's testimony and not Hill's or Baker's where there is a conflict All credibility resolutions have been made upon evaluation of conflicting testimony and demeanor testimony in context Baker had built many vessels of the type being fabricated for Monsanto, and should have known from their experience that the fraction that was in doubt to them was very likely one-half instead of one-eighth, absent a shop notice that it was one-eighth, and they should have checked with Brock before using the fraction of one-eighth instead of the fraction of one-half. Baletka told them it looked like one-half, and if they had any doubt to check with Brock. The vessel had an estimated value when completed of $50,000 Monsanto furnished the material and the plans and specifications Respondent furnished the labor and other fabrication costs These were about 50 percent of the costs If the rings were welded in the wrong places and had to be removed, and then reinstalled at the correct locations, there would be shrinkage in the walls of the vessel both from degouging the erroneously placed rings, and from rewelding them in the correct locations Then the walls would be further weakened by shock corrosion when the resistance arising from the operation of the process in the vessel and the liquids used met a wall strength less than the wall strength required by the specification Monsan- to, under its contract with Respondent as the successor of Shaffer, would not be required to accept delivery. Even if Monsanto accepted delivery with an error of this type built in it, the reputation of Respondent would suffer at a time when, as a new owner, it was attempting to establish itself as a good quality fabricator. Hill and Baker installed the two tray rings with spacing measurements with one-eighth fraction instead of one-half, without consulting Brock Two weeks later Hill and Baker came into Baletka's office and questioned the fraction in the spacing measurement for the third tray ring The told Baletka that the fraction in the spacing measurement appeared to be one-eighth. He told them to check with Brock Hill called Brock from Baletka's office. Brock told Hill that the spacing measurements for all the tray rings had in them the fraction of one-half." But the tray ring was installed by Hill and Baker with the one-eighth fraction in the spacing measurement. On the morning of August 29, 1968, a week or 10 days later, Hill informed Baletka that the three tray rings were installed in error with the fraction of one-eighth in their spacing measurements.28 Hill had stopped all welding on the vessel Baletka discussed the matter with Haygood, including the communications he had with Hill and Baker about the spacing measurements for the three tray rings Haygood had Inspector Angele check the vessel He reported to Haygood that the three tray rings had spacing measurements with the fraction of one-eighth. Later that day, shortly after 3 p.m., Haygood asked Baletka to bring Hill into his office, but apparently also went to Hill's desk Haygood asked him to come to his office, and bring his drawings as there had been a $50,000 mistake that would take 18 to 20 hours to correct, and they wanted to get to the bottom of it. Haygood also said that it would not " This is Brock's testimony In addition, Baletka testified that a short time later Hill told him Brock said that all the fractions were one- half 3° Brock testified that after Hill's call to him from Baletka's office Hill visited him in his office, and he told Hill that the fraction in the measurements for all the tray rings was one-eighth BAYPORT FABRICATING, INC be necessary for Baker to be present Hill and Baletka met with Haygood in the latter's office Haygood asked Hill how many vessels he had built, and he replied around 50 He then asked him whether prior to the drawing for the Monsanto vessel he had ever seen a drawing with spacing measurements for tray rings with a fraction of one-eighth in them, or with fractional variations of three-eights of an inch, and he answered no Hill also answered that he was satisfied that the Monsan- to drawing had three tray spacing measurements with the fraction of one-eighth in them, and that Baletka agreed that the fraction was one-eighth Baletka denied he agreed the fraction was one-eighth. He said he read the fraction to be one-half. The conversation lasted about 15 minutes. At the end of the conversation President Moats entered Haygood's office, sat down near the entrance door, and asked if they had gotten to the bottom of the mistake. Hill was told by Haygood or Baletka to return to his desk and they would figure out what to do about the mistake I credit Baletka's and Haygood's testimony that they discussed the error and the consequences it might have with respect to the order for it, from Monsanto, and also with respect to the reputation of Respondent They agreed that Monsanto had to be contacted and informed about the error They testified they decided to discharge Hill as he had access to Brock in the Engineering Department, and should have known the fraction was one-eighth. They also testified they considered the part Baker played in the error, and reviewed his record since Respondent began operating the plant. Baletka informed Haygood of the dam- age Baker had caused in the latter part of July when he improperly lifted with a crane two sections of the vessel and the temporary weld holding them broke and they fell to the floor of the plant, and when he improperly positioned two sections of the vessel on the turning rolls leaving the fit-up lugs on the sections to gouge the rubber on the turning rolls. They testified they decided to discharge Baker on this record. It is undisputed that Baletka notified Hill he was discharged when he was at his desk at the plant on the afternoon of August 29, and that Haygood in a telephone call to Baker's home that afternoon notified him he was discharged. Haygood telephoned Inspector Arnold of Monsanto in the morning of August 30, and informed him of the error Arnold was the Monsanto inspector who was checking the fabricating of the vessel. He told Haygood that he would inform his supervisors of the error, and let him know what they wanted done He notified Haygood on the afternoon of August 30, that Monsanto would accept the vessel with the error in it. When Baker returned to the plant on the morning of August 30 to obtain wages due him and to pick up his tools and return tool checks he had, Baletka and he had a conversation. I credit Baletka's testimony that he started to tell Baker why he was discharged and was referring to the error made in the fraction in the spacing measurements for the three tray rings when Baker interrupted to say that the fraction had been ques- tioned, and Baletka replied that he and Baker were told the fraction was one-half and they had access to the Engi- neering Department, and Baker then said that Baletka 535 had been forced to run him off and he would be run off himself when they were through with him. Management can discharge for good cause, bad cause, or no cause at all provided that a motivating purpose behind the discharge is not to do what the Act forbids." Respondent has furnished substantial evidence of business or economic reasons for the discharges of Baker and Hill, and to meet the General Counsel's contention that the reasons were pretextual It is to be noted that the decision to discharge Hill preceded the decision to discharge Baker.30 On the other hand, no substantial evidence was presented by General Counsel of statements made or conduct engaged in, or of independent circumstances, in connection with the fabrication of the vessel, the inquiry following Hill's disclosure of the error to Baletka, or the actual discharging of Baker and Hill, which shows a discriminatory motive for the discharges or from which a discriminatory motive can be infered. Assuming arguendo, contrary to the evidence, that Baletka did agree with Hill and Baker that the fraction was one-eighth, but denied he did so to Haygood as well as to Baker and Hill, the evidence would then show he was trying to shed responsibility for the mistake rather than taking action against Baker and Hill that had a discriminatory motive under the Act On the record in this case, the reprimands given Snell by Respondent, including the reprimand Moats gave him about 3 p in on November 4, 1968, were reasonable and were given for business or economic reasons and did not reflect a discriminatory motive or an intent to interfere with rights of employees under the Act Snell was discharged at the beginning of the second shift on November 5, 1968, after he had a conversation with Moats in the presence of Baletka, Haygood, and Bates The conversation was triggered by events that occurred during the second shift on November 4. Snell was transferred by Baletka in August from Depart- ment C under Foreman Hill to Department D under Fore- man Martin to see if Snell's production would improve under Martin Both of these jobs were on the first shift, which ran from 7.30 a m. to 3 30 p.m. Snell's production improved during the first 30 days under Martin, but lapsed back to what it was when he was under Hill Martin, pursuant to Baletka's instruction, notified Snell on the morning of October 29 that, effective October 30, he was transferred to the second shift. This shift began at 3:30 p.m Snell went to Baletka's office dust before noon on October 29 and told him he had to have more money if he had to work on the night shift. Baletka said it vas up to his foreman to recommend him for a raise, and that he could not give him more money when he was complaining about his work being sloppy and his idling when he should be working He also said, however, that if Night Foreman Bates was pleased with his work, and recommended him for a raise, he would be pleased to grant it. Snell accused Baletka of transferring him to the second shift so that Bates, the second-shift foreman, " NLRB v McGahey, 233 172d 406, 412-413 (CA 5), enfg as modified 111 NLRB 1162 J0 N.L.R.B v Great Dane Trailers, 388 U S 26, 34, 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could get rid of him for his union activities Baletka denied this was so He told him that somebody had to be placed on the second shift I credit Baletka's testimony that a request had been made by Bates, the second-shift foreman, for a fitter, and Snell was selected because he had less seniority than the other fitters on the first shift. Foreman Martin recommended that Snell be transferred, and Foreman Bates wanted him Snell did not report for work on the second shift on Wednesday, October 30, as instructed Nor did he report for work on Thursday, October 31, or Friday, November 1 He did not call in on Wednesday, but did call in on Thursday He did not call in on Friday In his Thursday telephone call he notified Bates through the clerk at the reception desk that he was ill and was ill the prior Wednes- day evening Snell testified he had a muscle spasm on Wednesday and did not call in because he believed that he would be over it by the time the second shift began. Respondent had a shop rule that required an employee not reporting for work to call in the first day he was to be absent. As found, Snell reported for work on the second shift for the first time on Monday, November 4 When Foreman Bates was assigning him to the work he was to do, Baletka stopped them and asked Snell why he did not call in on Wednesday, October 30, when he was to be absent, and Snell replied that he thought he would be able to come in by the time the shift began. Baletka reminded him of the shop rule which required him to call in the first day. About 10 p.m., on November 4, Snell came to Bates and told him he was punching out at 12 o'clock. The second shift ended at midnight. Snell told Bates that he and Baletka had an agreement about his not working over- time. At this time neither Bates nor Baletka had asked him to work overtime. He had learned from the other employees under Bates that they were working overtime until 12 a m on November 5. Snell left the plant at midnight when the regular time for the second shift ended He admitted he may have been the only member of Bates' crew who left. Baletka denied he had any agreement with Snell about not working overtime, and I credit his denial. On October 29, when Snell talked to Baletka about his transfer to the second shift,he told Baletka his wife worked days, and if he worked the night shift they would not be able to see each other Baletka said the transfer was not necessarily a permanent thing, and if it worked an undue hardship on him he would bring him back to the first shift This was not an agreement that Snell did not have to work overtime For the year prior to November 4, Snell refused to work overtime on weekends at straight- time rates to make up time lost during the week by his attendance at bargaining sessions . Snell's announcement to Bates at 10 p.m. on November 4 that he was punching out at midnight, in these circumstances, was a refusal to work overtime Snell told Bates in this conversation that he thought Respondent was going to get rid of him and Baletka, that he heard a rumor to that effect over the weekend Bates would get rid of him, and they would get rid of Bates. Snell also said that he would be doing him a favor by firing him, that he could not make a living working for Respondent, and his wife had to help him making a living for them. Snell was bothered by his wife working when he was off, and by his working when she was off Moats visited Respondent's plant about 5 minutes before midnight on November 4, when the regular time for the second shift ended He walked to where Foreman Bates was standing, and asked him how things were going. Bates answered that things were running smoothly As the whistle blew, Snell walked by, on his way out to an exit from the plant Moats said to Bates that everybody else was working "on this hot job," and asked why Snell was not working. Bates replied that Snell told him that he and Baletka had an agreement that he did not have to work overtime, and Moats said ` o.k " As previously stated, Balet- ka did not have such an agreement with him. Bates said to Moats that he had heard that he and Baletka were to be run off, and when Moats asked him who told him, he said that Snell did, and that he considered him a responsible person Moats replied to Bates that if he was to be run off he would be the first to hear of it Moats, Haygood, and Baletka had a conversation during the first shift on November 5, about Snell, as a result of Moats' conversation with Bates at the end of regular or straight time on the second shift on November 4. They decided to talk to Snell, and Moats decided he would be the one to do the talking Moats asked Baletka to bring Snell to the office when he reported for the second shift Moats testified that if Snell had the right attitude, the intention was to reprimand him, possibly give him a day or two off, and forget the matter I have no reason to discredit this testimony Baletka brought Snell to the office at the beginning of the second shift on November 5, 1968 Moats was there and Haygood came in During the conversation between Moats and Snell , Bates was called in and remained for the rest of the conversation. Moats opened the conversation by saying that several things had happened, and he wanted to straighten them out. He asked Snell why he did not telephone the plant on Wednesday, October 30, when he did not intend to report for the second shift. Snell replied that he was sick, and was not near a telephone. He asked him about not calling on Thursday, and Snell did not answer He began to ask about Friday, but has informed that Snell called in on Friday. He asked Snell what he should do about this situation There was a plant rule that an employee not intending to report for work should call in the first day. Failure to call made him subject to discipline, including discharge. Snell answered that that was his problem. Moats asked why he was talking to employee Buck at 3 p.m., on November 4. The first shift had 30 minutes to run, and Snell who was reporting for the second shift should not have been in the working area of the plant until 3 25 p.m He talked to Buck for 5 minutes Snell replied that he was passing, Buck stopped him and they passed the niceties of the day, Moats said this was the reason the plant was running inefficiently and losing $50,000 a month. Snell said it was Moats ' problem . Moats asked him if he told Bates he was not going to work overtime, and Snell said he did not refuse to work overtime Haygood brought Bates in, at Moats' instruction , and Bates said he did refuse Moats asked him if he was going to work BAYPORT FABRICATING, INC that night and Snell said he did not know, that he would let him know later. Snell asked him if he asked Bates to fire him, and Snell denied he had Bates said he did, and then Snell said he told Bates that he could not make a living out there, and his wife had to make a living for them, and that he would be doing him a favor by firing him Moats next asked him if he intimidated one of the foremen by telling him he and Baletka were going to be fired. Snell denied he intimidated a foreman, but he admitted he told Bates that he and Baletka would be fired within 2 weeks. Snell said that he had heard a rumor about the firings on the telephone Moats asked him if he thought it was "the best thing" to pass such a rumor around, and he said he thought it was, and asked Moats if he would not want to know about a rumor going around about him Snell said he did not want to hear a rumor, that if someone had something to say, he would like them to say it to his face. Moats denied that he, as Snell testified, said he would like to get his hands on those spreading such a rumor. I credit Moats' denial Moats asked Snell what he should do about him, and Snell replied it was his problem, and that as far as he was concerned he could do anything he pleased Moats replied that with his attitude there was only one thing to do and that was to fire him Moats then started to state the reasons why he was being discharged. He said that Snell did not call in on Wednesday when he should have As he was about to list the others Snell said that all he needed was one reason Moats said he would list them all He then listed Snell's talking to Buck on November 4, telling Bates on November 4 that he and Baletka were going to be fired, asking Bates to fire him, refusing to work overtime, and refusing to give an answer as to whether he would work overtime. Moats then said to Snell that he was terminated and Haygood would get his check. It was about 3:45 p.m Snell started for the door of the office and, when about halfway there, turned and said to Moats in earthy terms that Moats had been trying to get him since he took over the plant, and he would welcome a fistfight with him if he stepped outside with him. Snell turned to Baletka, and addressing him by his last name and an obscene adjective prefix, invited him to engage in the same type of confrontation Moats said in the same earthy terms Snell used that he could get him by reaching over and using the telephone. He was referring to communicating with the plant guards or the outside police. He then said to Snell that the best thing he could do was to sit out in the lobby and wait for his check Snell left the office, and Haygood obtained his check for him It is not for me to decide whether I would have discharged Snell for his attitude in the conversation of November 5 against the background of his conduct for which he was reprimanded from July 20 to November 4, 1968, and for his conduct during the second shift of November 4, 1968 Snell's conduct, and his arrogance during the Novem- ber 5 conversation, provided adequate business or economic reasons for his discharge, absent a discriminatory motive. It is for me to decide whether the evidence of record contains substantial evidence of a discriminatory motive behind the discharge 537 General Counsel argues that a discriminatory motive behind the discharge is shown by the discharges of Hill, Baker, and Eggleston, the alleged derogatory things Baletka said about Snell, and Baletka's alleged order given to Hill to discharge Snell, in the July 20, 1968, supervisors' meeting, the alleged intimidating conversation Moats had with Snell in the latter part of September or early October 1968; the alleged threat of physical punishment Moats made against anonymous spreaders of rumors that Foreman Bates and Baletka were to be fired, and Bates' alleged statement to Snell in their November 4 conversation that he felt that Respondent transferred Snell to the second shift with the hope that he would get rid of him. I have found in this decision that there is no substantial evidence before me that Respondent discharged Hill, Baker, or Eggleston for any discriminatory motive violative of the Act I have refused to credit the testimony of Hill that in the supervisors' meeting of July 20, Baletka made derogatory statements about Snell and ordered Hill to dis- charge Snell, and have credited Baletka's denial that he made the statements or gave the order. I have refused to credit the testimony of rank-and-file employee White that Baletka threatened Baker, Eggleston, and Snell with reprisals for their union activity, and have credited Baletka's denial that he made these threats Both Snell and Moats gave testimony about the conversa- tion they had in late September or early October 1968. The testimony discloses that the conversation consisted of two parts. The first part dealt with inquiries being made by President Krzesienski about Moats' family, and Moats' fear that some injury to his family was being contem- plated by the Union, and Moats' threats of physical retalia- tion to Snell and Hernandez, as ones representing the Union who were closest to him, and to other representatives of the Union, including Krzesienski, for any injury done to his family, and Snell's reply to the threats, and his offer in the conversation to engage in physical combat with Moats of the type that Moats said he would engage in if the injury to his family occurred The testimony is set out, in appendix It is not necessary to repeat it Moats was apprised of the inquiries by Carl Hanel, a welder employed by Houston Fabricating and a friend of both Moats and Krzesienski. Since Moats' testimony is hearsay, although corroborated to some extent by Krzes- ienski, I credit Krzesienski's testimony At the time, Moats talked to Snell he had heard only what Hanel told him As he was a young father of small children, and as the inquiries could be construed to be the forerunner of harm to his family, Moats could not be expected to have the objectivity at the time he talked to Snell that the counsel for General Counsel argues he should have had His emo- tional condition was not unreasonable in view of the circum- stances The threat he made could be expected from a person in Moats' emotional condition It is excusable I therefore, find no evidence adverse to Respondent in the first part of the conversation Since Snell's offer to give Moats a physical beating followed the threat by Moats to give him and the other union representatives a physical beating if his family was harmed, I do not find Snell's offer as evidence mitigating any remedy against Respondent if one is called for by the other evidence. Snell told Moats 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Union was looking for his background. This expla- nation could not be expected to satisfy anyone in Moats' emotional condition Apparently, Snell believed that all the Union wanted was his background, and was angry at Moats' thinking otherwise. It could be argued that Snell should have had more understanding But it can also be argued that Snell is a young man with the impetuousness of the young and, like Moats, is lacking in the maturity that comes with age. In regard to the second part of the conversation, I find that Snell initiated it, and that Moats, because of the emotional condition he was in, cannot be held accounta- ble for what he said in reply to Snell's statements to him about the bargaining going on between the Union and Respondent To do so would make the Respondent a victim of entrapment. In any event, I credit Moats' testimony that in response to Snell's question why he did not attend the bargaining sessions he said he did not have time, and had capable people handle the matter for him I find no evidence of bad-faith bargaining or animus against Baker, Eggleston, or Snell in this statement. Nelson Wall, the secretary of Respondent, and V. Scott Kneese, Respond- ent's attorney, were assigned the responsibility of bargaining with Respondent. They attended all the sessions. No evi- dence of any impropriety in their bargaining was even suggested. I am in accord with Moats' testimony that as the president of Respondent, a new ownership that had lost considerable money under the prior owner, his presence was required elsewhere. A contract which Moats personally negotiated would hardly be worth much if Respondent could not be placed on a business basis that would bring about a financial condition which permitted the parties to enjoy the benefits of the collective-bargaining contract. I credit Moats' denial that he did not say he had not read the Union's contract proposal. Moats testified that he discussed the Union's proposal with his representa- tives, and Respondent made contract proposals that would cost Respondent considerable additional money. I credit Moats' denial that he said anything about Snell having a short paycheck. I credit Moats' denial that he said anything that related to pay increases or refusing to sign a contract. Respondent's participation in bargaining and willingness to bargain support Moats' denial. I find that Moats did not say that if Snell remained at the plant instead of attending the bargaining sessions they could have worked out something between them for Snell's benefit Moats testified that he did not have to bribe anybody. Respondent's willingness to bargain collectively, and its bargaining collec- tively, supports this finding. I credit Moats' denial that he did not say to Snell in the November 5, conversation that he did not like to hear rumors over the telephone but would like to have the person spreading the rumor in his presence so he could get his hands on him. I credit his testimony he said that if he was to be fired, and a person knew about it, he would want that person to tell him about it I do not credit Snell's testimony that Bates said he believed that Martin was transferred to the night shift hoping he would get rid of him. I credit Baletka's testimony that Bates told Baletka he wanted him, that Foreman Martin recommended the transfer, that Bates requested a fitter, and that Snell had the least seniority of the junior fitters on the first shift. General Counsel argues that Moats' testimony about this conversation should not be credited because he denied to him when he investigated the charge in the case that he had a conversation with Snell in the latter part of September or early October. Moats testified in a forthright manner under oath at the hearing about this conversation The hearing is the place where testimony is given Moats testified that he considered the conversation to be a personal matter involving his family, and not one involving the issues in the case. He did not consider the part where Snell attempted to involve him in a discussion about the Union to be a part of the conversation. He also testified that he was afraid of Tilley, the counsel for General Counsel. He said he was afraid of all "Feds." There is no showing that Moats was told he could contact his attorney and have him present during the interview The subject of the conversation was highly sensitive, and Moats said things in the conversation he wished he did not say, and would not have said if he had not been in the emotional condition he was in There is a reasonable basis for his thinking that what took place in the conversation was not relevant to the issues involved in the case I find Moats' credibility to be equal to that of Snell. As I have evaluated Snell's testimony, I have evaluated Moats' testimony in contest, and in accordance with his demeanor as a witness On the above findings, I conclude and find that the preponderance of the evidence on the record as a whole does not support the allegations of the complaint that Snell was discharged for a discriminatory motive violative of the Act. The evidence relating to Respondent's alleged failure for a discriminatory motive to give Eggleston the opportuni- ty to work overtime when he returned from a vacation on August 19, 1968, in contrast to his working 10 to 20 hours' overtime before he left on his vacation, and the evidence relating to Respondent's alleged discriminatory discharge of Eggleston on September 24, 1968, are set out in section III, D, 6, of this Decision The evidence includes Respondent's defense as well as the evidence in support of the allegations that Respondent engaged in dis- criminatory conduct. The evidence discloses that even though Eggleston worked 10 to 20 hours a week overtime prior to his vacation which ended August 19, he was behind in his work. The overtime included weekend work to make up regular time lost during the week by his presence at the collective-bargaining sessions as a member of the employees' bargaining committee Respondent had to send the unfinished work to a machine shop after Eggle- ston went on vacation. Respondent's testimony that it was finished promptly by the machine shop and returned to Respondent is unrebutted. The record does not show that Eggleston reached an understanding with Respondent about his unfinished work before leaving on vacation or even contacted management about it. Eggleston was the only machinist employed by Respondent and Respondent had to make an arrangement with a machine shop to do the unfinished work assigned to Eggleston It is apparent that Respondent was displeased by the cavalier conduct of Eggleston The Act does not BAYPORT FABRICATING, INC require an employer to operate a business in a competitive industry as a social institution rather than as a medium for making and merchandising products to bring a return that will cover costs, including labor costs, and provide a profit. When Eggleston returned he started to work overtime and worked overtime 2 hours. Then the overtime ceased I find that Vanderhider, Eggleston's foreman, was instructed by Baletka, Haygood, or Moats not to ask Eggle- ston to work overtime, that is to work hours beyond the regular workhours from Monday through Friday. When Eggleston asked Vanderhider for the reason he was not permitted to work overtime, Vanderhider said he no longer had control of assigning overtime Respondent apparently began a working arrangement with the machine shop to handle the machinist's work not taken care of by Eggleston after it engaged it to handle the work left by Eggleston when he left on vacation, and received it back promptly in a finished condition. It could be sure that the work would be done promptly, and Respondent would not have to be concerned with Eggleston working overtime hours, but still not completing the work When Eggleston resumed working after returning from vacation, work done by him was behind schedule, and the objects he was to work on began piling up around his machine The lack of opportunity to work overtime and to earn the additional compensation it provided bothered Eggleston. This is apparent from the evidence, including the demeanor of Eggleston as a witness He did not exercise the care he could have exercised when he began machining the flange on September 18. The flange was not secured in the lathe so that it would be rigid and not vibrate When he started the lathe, and the flange vibrated, all he did was to reduce the speed of the machine The application of the tool by which the finish is obtained when applied to the revolving flange caused a chattering because the flange was vibrating . Moats heard the chattering and saw the machine was not operating properly, when he walked down the aisle on a routine observation to watch the operation of the machines in an effort to improve the quality of machine operations as well as other plant opera- tions. He asked Vanderhider what was wrong, and asked Haygood to check it out. Haygood and Baletka consulted Vanderhider, and came to Eggleston 's machine and watched the work and looked at the flange. Baletka told Eggleston the finish was rough and the job was taking too long. The job should have taken 1-1/2 hours at the most, and had taken 3 hours by the end of Eggleston's workday on September 18, and was still unfinished. Moreover, the application of the finishing tool to the vibrating flange had left the flange with pock marks and holes. Vanderhider, according to Eggleston, did not reprimand him, but told him that if anyone knew how to handle the problem he did. Haygood and Baletka thought otherwise I find their decision that the matter should be discussed with Eggleston to be reasonable However, they reached this decision only after a conference on the evening of September 18, in which Haygood, Baletka, and the outside machine shop operator participated Photographs of the flange were taken in connection with their consideration of the problem. Respondent wanted to be sure the reprimand was justified. Eggleston was a member of the employees' 539 bargaining committee , and the Union had filed a charge alleging that Baker was discriminatonly discharged The consensus was that the flange was set up wrong in the machine. Haygood asked what could be done to remedy it, and Baletka said a piece of pipe could be tack welded to the back of the flange to hold it rigid while it was being machined In the conversation Haygood had with Eggleston on the morning of September 19, in the presence of Baletka, he talked to Eggleston about the condition of the flange and the way it was machined. They agreed that the flange vibrated in the lathe, and there was chattering when the finishing tool was applied to the vibrating flange, and that the job should have been finished in an hour and a half instead of being unfinished after 3 hours. It is undisputed that both were aware of the condition of the flange. Haygood at this time believed it could be salvaged by proper machining . Haygood asked Eggleston how long he had been a machinist and he answered 15 years, and asked whether he considered himself a machinist and he answered that he did Haygood told him he should have known better than to have run the machine the way he did, and to have permitted the damage -to the flange. He told him he should have come to his supervisors when he say he had a problem, that they were the experts He instructed Eggleston to find out from Baletka what to do to stop the vibration and the chattering . Baletka told him that a piece of pipe should be tack welded to the back of the flange. Vanderhider had this done. Then the flange did not vibrate when machined , but after the machining it was below the tolerance allowed due to the previous machining, and had to be scrapped Eggleston testified at first that the flange became warped as a result of the tack welding of the pipe on it, but later testified that it did not warp, but had to be scrapped anyway I consider the reprimand to have been reasonable, and justified by Eggleston's failure to machine the flange proper- ly. Eggleston testified he told Vanderhider that T-nuts were required to reinforce the chucks in holding the flange rigid in the machine, and told the same thing to Haygood in the conversation he had with him on September 19. Haygood denied Eggleston said anything about T-nuts. Whether reference was made to T-nuts is immaterial. The evidence shows that Eggleston continued machining the flange after he was aware of the vibration and chattering, and the damage being done to the flange, and the time the job was taking Haygood's complaint was that Eggleston failed to consult his supervisors when he found the job was going wrong, instead of continuing the machining and aggravating the original damage. Baletka could have told him what the remedy was if he had been consulted and had an opportunity to consider the problem. The fact that Baletka and Haygood looked at Eggleston's work and the condition of the flange, after Moats noticed the way Eggleston was doing the work, did not absolve Eggleston of the responsibility he had to avoid the damage, and the undue length of time on the job, or justify a transfer of the responsibility to Respondent Haygood denied that he said to Eggleston that the work was piling up around his machine, and that he could attend the bargaining sessions if he felt he had to do so, but Respondent was not going 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to have more than one machinist even though there was another employee who could operate the engine lathe as he was needed elsewhere. Haygood testified that he said only that Eggleston's production was low I find no need to pass on this credibility issue. I find no evidence of discriminatory motive in the statement allegedly made by Haygood in the context of this case. It is clear from the oral testimony and Eggleston's demean- or that Eggleston resented the reprimand he received from Haygood. He testified that on Friday, September 20, after the flange was scrapped and he was given another job by Vanderhider, Moats watched him working and talked to Vanderhider. He admitted, however, that Vanderhider told him that Moats merely asked him what job he was working on. On September 20, Eggleston asked Vanderhider for a job recommendation he could use in seeking other employment, and Vanderhider said he would give him one but could not do so at that time I credit Foreman Williamson's testimony that on Wednesday, September 18, or Thursday, September 19, Eggleston said he would have quit the job long before if it had not been for his involvement with the Union Toward the end of the first shift at 3.30 p m., on Friday, September 20, Eggleston obtained a written permit from Vanderhider to take his fan from the plant. This fan had a 30-inch diameter, and rested on a stand 5 feet in height with a large flange for a base. It was something one did not carry around with him like a lunch- box. Eggleston used the fan when he was working, and had it chain locked so it could not be moved. At the close of the shift Eggleston proceeded to clock alley to punch out. He had his fan with him This area of the plant was close to the restroom Foreman Mike Carr had received the paychecks for himself and the four employees who worked under him in the maintenance department and was on the way to that department from the work area proper to distribute the checks Eggleston and Carr walked along together. They had had many conversations in the past I credit Carr's testimony that Eggleston was complaining, and said, "Now they are bringing the checks out late." The checks had been late. I also credit Carr's testimony that Eggleston said he was quitting the "f-- king" place. Eggleston went through the exit with his fan after giving the permit Vanderhider gave him to the guard He did not bring with him a toolbox containing 70 to 90 pounds of tools which he kept locked near his work station. On Saturday morning, September 21, 1968, Foreman Mike Carr reported to Baletka that at the close of the first shift on September 20, Eggleston told him he was quitting. Foreman Vanderhider reported to Baletka that Eggleston had asked him for a recommendation for use in looking for another job. Haygood received the gate guard's report on Saturday morning, September 21, of what happened at the gate on September 20. It was reported that Eggleston left with his fan. The pass for the fan which Vanderhider gave Eggleston was attached to the report. Haygood asked Baletka about Eggleston taking his fan home. Baletka told him that Eggleston told Mike Carr he was quitting at the close of the business on Friday, and had asked Vanderhider for a job recommendation. Haygood talked to Mike Carr, and the latter told Haygood that Eggleston said he was quitting. A quit notice was placed in Eggleston's file. In response to Haygood's request of Carr on September 21, that he reduce to writing what Eggleston said on September 20, Carr made a written memorandum the following Wednesday, September 25, of what occurred He stated therein that Eggleston said he was quitting. On Monday, September 23, Eggleston sent word by employee Garza that he was ill. Garza rode to and from the plant with Eggleston before and after the first shift The notice from Eggleston by Garza was received in the plant in the morning I find, however, that Haygood did not receive this information until late in the afternoon. Prior to this notice, arrangements had been made with the machine shop to do Eggleston's unfin- ished work, with the exception of placing a finish on about 40 flanges They were not needed for 30 days The material to be worked on which was around Eggleston's machine had been picked up by the machine shop before Haygood received notice that Eggleston had called in Eggleston reported for work on the first shift, Tuesday morning, September 24. He was at his machine when Van- derhider saw him Vanderhider said to him that he heard he quit, and replied he had not. Vanderhider gave a work assignment, and he was working at it about 7:30 a.m. when Baletka and Haygood came to his machine Baletka said he heard he quit, and Eggleston denied he had. Haygood said he quit Eggleston denied he had, and Haygood said he had, and asked him to get his tools and leave Baletka said to him that when you quit, you quit Later that morning when Eggleston went to Vanderhider's office to return his tool checks, he again told Haygood he did not quit. Haygood replied that when an employee asks his foreman for a job recommendation for another job, carries his personal property out of the plant, and says he quit, that as far as he was concerned he quit Eggleston said he had lost his temper, but was not senous. Haygood said it was too late, that his work had been sent out. At this time, Baletka said that he had bad mouthed the company when he was leaving Friday, and gave it a bad time General Counsel argues that he did not quit, that he merely said he ought to quit. President Moats testified that Eggleston was a good machinist, but quit. There is no evidence that Moats participated in the events that resulted in the end of Eggleston's employment General Counsel represents that, as Eggleston testified, Eggleston took the fan home because his window air-conditioning unit had broken down Eggleston testified he had a stomach virus on Monday, September 23. On cross-examination, Carr testified that he did not tell Haygood what actual words Eggleston used on Friday, September 20, until the day, September 25, he made a memorandum of what he said. In the memorandum he stated that Eggleston said he was quitting, but made no reference to any swear word that Eggleston used to describe the place he was quitting But on direct examination he testified that Eggleston said he was quitting the "f--king" place. Moreover Baletka said that was what Carr told him, and what he told Haygood Haygood testified that Carr told him that Eggleston said he quit, and used the earthy obscene word to describe the place he was quitting. The General Counsel then argues BAYPORT FABRICATING, INC that in view of the conflict between Carr's testimony on cross with his testimony on direct, the words of his memo- randum, and the testimony of Baletka and Haygood, Eggle- ston's testimony and not Carr's should be credited. Namely, that he said he ought to quit the "damn" place However, I am presuaded that Carr's testimony on direct should be credited. It is corroborated by the testimony of Baletka and Haygood I credit Carr's statement that in writing the memorandum he was reluctant to include swear or obscene words on paper that he would disclose in an oral statement or oral testimony The variation between Carr's testimony on cross from his testimony on direct in my opinion was accomplished by the skill of the cross- examiner The testimony of Carr on both direct and cross, and the corroborating testimony of Baletka and Haygood, is that Eggleston said he was quitting. It does not matter whether he described it as a "damn" place or used a more earthy term to describe the place. I credit Carr's testimony that many times in the past Eggleston had said to him he ought to quit, and he finally said to Eggleston that is he thought he could do better elsewhere he ought to quit, and Eggleston admitted later that he may have been overdoing it In these circumstances, the words "I ought to quit," as between Eggleston and Carr, had become an "old saw," and it is unlikely that Eggleston repeated them on this occasion I do not consider Eggleston's failure to take his tools with him on Friday as well as the fan as showing he did not intend to quit The fan had a 5-foot stand and a 30-inch blade It was about all he could take He could not have taken the 70 to 90 pounds of tools in addition to the fan I consider the decision of Respondent on or about August 19, not to request Eggleston to work overtime to be a silent reprimand, but, under the circumstances, given for business or economic reasons. I consider the reprimand of September 19 to have been given for business or economic reasons. I do not find in the record substantial evidence of a discriminatory motive behind either reprimand. To hold, on this state of the record, that Eggleston took the fan home on September 19, only because of a breakdown in his window air-conditioning unit at home, without more evidence than his mere statement that this was so, would put a premium on the incredulous, and represent that a happenstance or coincidence occurs much more frequently than it actually does Eggleston could well have had a stomach upset on Monday due to nervous tension ansing from the realization of what he had done on Friday Eggle- ston quit on Friday, September 20, and over the weekend changed his mind and decided he did not want to quit, and returned to his job on Tuesday. Respondent, however, on Saturday, September 21, took him at his word It decided to go along with his decision of Fnday Obviously, Respond- ent was not displeased by it. There is no substantial evidence that for a discriminatory motive Respondent provoked Eggleston into quitting, and his quitting amounted to a constructive discharge when Respondent did not rehire him on Tuesday There is no substantial evidence of union animus by Respondent against Eggleston that required Respondent, on Tuesday, September 24, to overlook Eggle- ston's decision on Fnday to quit, and the manner in which he gave notice he was quitting, and his pretextual conduct 541 on Tuesday, September 24, to cover up his quitting and the notice of it, and reemploy him Respondent did not violate Section 8(a)(3) or (1) with respect to Eggleston." The evidence relating to the decision by Respondent on September 20, not to rehire Thomas to replace Rodriguez, the night maintenance man who resigned on that date, is set out supra, Sec III, D, 7. General Counsel contends that Thomas was not rehired because the Union filed 8(a)(3) charges against Respondent for its alleged discharge of Thomas on July 26, 1968 Prior to September 20, Thomas had worked as a trainee maintenance man, and had been laid off in a reduction in force, and had been rehired later as an automobile mechanic He was laid off again on July 26, 1968. Shortly after it took over from Shaffer, Respondent reduced the number of company operated automobiles from 13 to 2, and had the two remaining automobiles serviced by a garage except for minor things such as changing spark plugs. On July 26, 1968, Respondent was laid off The layoff was part of a general reduction in force that included many administrative as well as production and maintenance employees. Obviously, there was no need for a full-time automobile mechanic. Thomas' layoff, on its face, was for business or economic reasons No evidence is present in the record that Thomas was a member of the Union, or engaged in union activity. The Union alleged that Thomas' layoff was discriminatory in its omnibus charge of September 3, 1968, but struck this allegation from the charge on November 4, 1968. From the evidence, it is apparent that Thomas knew the layoff was for business or economic reasons, and the Union had no basis for alleging in its September 3 charge that the layoff on July 26, 1968, was discriminatory. When Rodriguez resigned on September 20, Foreman Carr, the maintenance foreman, telephoned Thomas at the place he was working, and told him he might have a job for him He told him what the wages and hours of work, including overtime, were Thomas came to the plant shortly afterwards and talked to Carr. Between the time Carr first talked to Thomas and the second talk at the plant, Carr talked to Baletka and then to Haygood about hiring a replacement for Rodriguez. Haygood discussed with Carr the need for a maintenance man on the second shift, and decided that one would not be hired for a time so Respondent could see if it could do without one. Carr had a company car, and was told he should be on hand to handle maintenance problems on the night shift if any occurred. Carr testified on February 6, 1969, that a maintenance man for the second shift had not been hired, and that he had gone to the plant three to six times, and on one or two occasions had sent the day maintenance man Thomas testified that when Carr talked to him the second time on September 20, Carr said that someone in the office said to him that Thomas could not be rehired because he had a lawsuit against Respondent. Foreman Carr denied he made any reference to a lawsuit or the filing of charges in the second conversation He testified he said that " Cargill, Nutrena Mills Division, 172 NLRB No 24 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent was going to try to get along without a mainte- nance man for a while. Haygood denied that he made any reference to a lawsuit or the filing of charges in his conversation with Carr about replacing Rodriguez. On evaluation of the oral testimony of Thomas, Carr, and Haygood, and their demeanor as witnesses I credit Foreman Carr and Haygood, and do not credit Thomas. On this evidence I find no violation of Section 8(a)(4) or (1) of the Act Assuming arguendo, and contrary to my ruling, that Carr did say to Thomas he could not be rehired because he had a lawsuit against Respondent, and refused to rehire him for that reason, I would not find that in these particular circumstances Respondent violated Section 8(a)(4) or (1) by such a statement or by a refusal to rehire Thomas because a charge had been filed by the Union It was known to Thomas that he was laid off for a business or economic reason, and not for a discrimina- tory reason. The Union had no basis for alleging in its September 3 charge that Thomas was discriminatorily dis- charged It struck this allegation from the charge on Novem- ber 4 There is no evidence that Thomas was a member of the Union or engaged in union activity. The Union had knowledge that there was a general reduction in force about this time. The objective of the September 3 charge insofar as it referred to Thomas was obviously to harass Respondent by invoking the precesses of the Board against Respondent for its doing something it had a right to do. To hold that Respondent in these circumstances violated the Act by a refusal to rehire Thomas for filing charges, and because it stated it would not rehire him for this reason, would be to place a premium on the abuse of the Board's processes, and to invite this abuse as reprisal against an employer for doing something it has a legal right to do On the above evidence, and my findings thereon, I con- clude and find that the preponderence of the evidence on the record as a whole does not support the allegation of the complaint that Respondent engaged in conduct viola- tive of Section 8(a)(5) and (1) of the Act. In sum, for the above reasons, findings, and conclusions, I conclude and find that the preponderence of the evidence on the record as a whole does not support the allegations of the complaint that Respondent violated Section 8(a)(1), (3), (4), and (5) of the Act. CONCLUSIONS OF LAW 1. Respondent Bayport Fabricating, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and Sheet Metal Workers ' International Associa- tion , Local Union No. 54, AFL-CIO, is a labor organization within the neaning of the Act. 2 Respondent did not interfere with , coerce, or restrain employees in violation of Section 8(a)(1) of the Act. 3. Respondent did not discriminate against employees Baker, Snell, and Eggleston to discourage membership in the above Union in violation of Section 8(a)(3) and (1) of the Act 4. Respondent did not interfere with, coerce, or restrain employees in violation of Section 8(a)(1) of the Act with respect to rights guaranteed them in Secticn 7 of the Act by discharging Foreman Hill 5 Respondent did not violate Section 8(a)(1) or (4) of the Act in connection with its decision not to rehire former employee Thomas 6. Respondent did not refuse to bargain with the above Union, the certified bargaining representative of Respond- ent's production and maintenance employees, in violation of Section 8(a) (5) of the Act by rejecting the collective- bargaining principle by interference with, and coercion, or restraint of employees with respect to their rights under Section 7 of the Act, by discriminating against employees to discourage membership in the above union, or by discrimi- nating against an employee because the above Union filed charges under the Act against Respondent on his behalf. 7. The complaint should be dismissed in its entirety. RECOMMENDED ORDER It is recommended that the Board issue an order dismiss- ing the complaint against Respondent Bayport Fabricating, Inc. APPENDIX This appendix contains the testimony of Snell and Moats regarding Moats' alleged threat to get hold of Snell. Snell testified that in the latter part of September during the first shift, Moats had called him to his office and said to him it looked like he was running the show (Baker and Eggleston were no longer on the payroll.), and then said that Krzesienski had been inquiring about his family, and he did not want his family harmed. Krzesienski is president of the Union. He was at the council table when Snell and Moats testified about this incident. Snell replied that Krzesienski believed Moats had formerly lived in the area where he lived, and that he knew him through little league baseball, that Moats' name came up, and Krzesien- ski's wife had made inquiries. Moats said he did not want any dirty fighting, that if Krzesienski wanted to fight dirty he had a million dollars, and a lot could be done with that money Snell said he probably could do a lot with it Moats said that if anything happened to his family he was going to get hold of somebody, and Snell would probably be the first since he was the closest one. Moats said he had done the type of work Snell was doing, that he used to be a roughneck, and liked to fight, drink beer and engage in sexual relations. Snell used the four letter word that describes this last activity, and which he said Moats used. Snell replied to Moats by saying he had not been a roughneck, but that he fought, drank and did the other thing Moats said he did, and not to let anything hold him back from trying to get hold of him. Moats said he beat a good man out when he bought Respondent, that Murphy of Murphy Industries wanted in badly, but he decided he wanted it and flew out to California (the location of the principal office of Shaffer) and bought it, that he had another place (Houston Fabricating Company) that paid him five hundred thousand dollars a year, but that he could only get fifty thousand dollars a year out of Respondent. BAYPORT FABRICATING , INC. 543 Snell testified that he and Moats discussed the proposed collective-bargaining contract the Union and Respondent were negotiating He asked Moats why he did not attend the bargaining sessions , and Moats replied he did not have time, and that Snell did not have the time either Moats said he drew a short paycheck the prior week and would draw one that week , but had he been at the plant talking to him instead of attending the meetings, they could possibly have gotten something accomplished . Snell said there were somethings in the contract the Union was requesting which did not cost anything, and Moats replied he did not know what was in the contract, that he had not read it. Moats kept asking what he was referring to when he mentioned things in the contract that did not cost anything. He said to Moats that there were things in the contract that cost money such as increases in wages, and Moats said "You will never get a contract," that he would not sign it, that his main concern was money, and as far as money was concerned they would not get it They discussed insur- ance as Snell was going out the door Snell testified that at this time he referred to Moats' statement he was running the show, and asked him,"What about Eggleston9", and he said, "That's hell about him quitting ." In answer to his question "Who did he tell he quit?", Moats said that he told several guys. Moats testified that in the last part of September he was walking th, ough Houston Fabricating , and Carl Hanel, a welder, and friend of long standing , stopped him and said Krzesienski was inquiring about his family . He wanted to know what kind of a car his wife drove, where his kids went to school , and how old they were, what his wife was like, where she bought her groceries , and everything about their family and where they lived . Moats testified Hanel said he told Krzesienski nothing Moats testified that the only thing he could think of was that some foul play was going on. When he arrived at Respondent Bayport that day, he walked out to the shop and told Snell he wanted to talk to him in Haygood's office Moats then testified in regard to what he told Snell about the inquiries Krzesienski was making about his family. Snell, according to Moats, said they were trying to get a history of him. Moats' testimony corroborates the remainder of Snell's testimony dealing with the inquiries . Krzesienski testified that he believed that several years ago his boy and Moats' boy were in the same little league team or played at the same ball park in the Cypress-Fairbanks area, that Moats was the assistant manager of the team, and he was also working with the management. He agreed he talked to Carl Hanel about Moats He asked Hanel if he was the same Moats that lived in the area he lived in, and he said he was, and he then said he had come up in the world since he lived in his neighborhood. He denied he made any inquiries about Moats ' wife or his family, where Moats' children went to school or where they bought their groceries He testified that his wife may have made inquiries about Moats of Hanel's wife, as they visited each other, and his and Hanel 's children played together practically every day He testified that his immedi- ate reaction to inquiries by someone about his family would probably be to "whip their ass " Moats affirmed Snell's testimony that Snell had asked him why he did not come to the negotiations sessions, that he would learn a lot from them, and testified that he replied to Snell that he did not have the time and had capable people handle the matter for him . He denied he told Snell that he (Snell) did not have the time to attend the sessions either He testified he first told Snell they were not there to discuss anything about the Union, that he had brought him in there to talk about "this Krzesienski deal." He testified that as the conversation ended Snell started walking out and stopped outside the door and said, "Well, you guys made one mistake. The biggest dam mistake you made was firing Eggleston," and he replied that "Mr. Eggleston was not fired . He quit." Moats denied that anything was said about insurance in the conversation or than he said he had not read the Union's contract proposal . He testified that he had read the Union's contract proposal , that he went over it with Respondent's representatives, including Wall, its chief nego- tiator and that Respondent had made several collective- bargaining proposals He denied anything was said about a short paycheck, or not signing a contract , or pay increases Moats admitted that he denied to Tilley, counsel for General Counsel , that he had this conversation with Snell, when Tilley visited the plant and interviewed him when he was investigating and preparing the case for trial. He testified he was scared , and believed that the conversation had nothing to do with issues in the case but involved something personal At the hearing, Tilley questioned Moats about a part of the conversation he had with him in which Tilley made reference to the mounting of a Mouton lamb hanging in Moats' office, and Moats answered that a hunting lease Respondent had was stocked with these animals and invited Tilley to hunt on the lease. I consider this colloquy about the animal and the lease to be purely social communication . I do not consider Tilley's reference to the lamb to be an angling for an invitation to hunt on the lease, or Moats' invitation to be an offer of benefit to Tilley Obviously , Tilley was resorting to pleasant conver- sation before starting the business of the visit, namely to question Moats about the case, and Moats was responding in order to be cooperative Obviously , Moats' invitation to use the hunting lease was the kind of invitation that carries on its face the notice that it is not to be accepted