Beaumont Steel Construction Co.

BEAUMONT STEEL CONSTRUCTION CO. 487 Beaumont Steel Construction Co. and Shopmen's Local Union No. 694 of the International Association of Bridge , Structural and Ornamental Iron Workers, AFL-CIO. Case 23-CA-3183 November 5, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA On June 12, 1969, Trial Examiner Fannie M. Boyls issued her Decision in the above-entitled proceeding, finding that the Respondent had engaged and was engaging in certain unfair labor practices alleged in the complaint, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of these allegations. Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendation of the Trial Examiner. ORDER Act, as amended, by discharging five of its employees and by various other acts of interference, restraint, and coercion. Respondent's answer denies that it engaged in any of the unfair labor practices alleged and pleads affirmative defenses to the alleged Section 8(a)(3) violations Subsequent to the hearing, the General Counsel and Respondent filed briefs, which have been carefully considered. Upon the entire record in this case and upon my observation of the demeanor of the witnesses as they testified, I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent is a Texas corporation having its principal office and place of business in Beaumont, Texas, where it is engaged in the construction of structural and miscellaneous steel fabrication. During the 12-month period preceding the issuance of the complaint, which is a representative period, Respondent, in the course and conduct of its business operations, purchased goods and materials valued in excess of $50,000, which goods and materials were transmitted to its facilities in Beaumont, directly from points outside Texas. On the basis of these admitted facts, it is found that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein II. THE LABOR ORGANIZATION INVOLVED Shopmen's Local Union No. 694 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES ALLEGED A Setting and Issues Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order, the Recommended Order of the Trial Examiner, and orders that the Respondent, Beaumont Steel Construction Co., Beaumont, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FANNIE M. BOYLS, Trial Examiner This case, based upon charges filed on October 28 and November 14, 1968, and a complaint issued on January 16, 1969, was tried before me in Beaumont, Texas, on March 11 through 14, 1969. The complaint alleges that Respondent violated Section 8(a)(3) and (1) of the National Labor Relations On October 22, 1968, the same day the Union started organizing Respondent's employees, one employee, Joe Daigle, was laid off and another, Walter J. Collins, was discharged. A charge alleging that their terminations were discriminatorily motivated was filed on October 28. On November 8, 1968, three more employees, McHenry Taylor, Robert G. Henderson, and John P. McClain, were discharged. On November 14 an amended charge was filed alleging that Respondent, by discharging all five of these employees and by other acts, had violated Section 8(a)(3) and (1) of the Act In addition to alleging that these five terminations were discriminatorily motivated, the complaint alleges numerous other acts of interference, restraint, and coercion by Respondent With respect to the individual acts of interference, restraint, and coercion alleged, Respondent contends that its personnel assertedly engaging in such conduct were not supervisors within the meaning of the Act and that, in any event, Respondent was not responsible for any such conduct because it was contrary to Respondent's expressed policy of neutrality which it had disseminated by letter to all its employees. 179 NLRB No. 77 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The questions to be decided are essentially factual. Difficult credibility issues are presented. B. The Supervisory Status of Personnel Allegedly Engaged in Acts of Interference, Restraint, and Coercion The Union filed a representation petition on November 1, 1968, in Case 23-RC-3221 and, at a preelection conference held on November 23, it was agreed by Respondent and the Union that Van Ratliff , Willie Butler, T. J Bernard , and George Garza were supervisors within the meaning of the National Labor Relations Act and that they should be excluded from the voting eligibility list. Although the position taken by Respondent in the representation proceeding , which was being processed simultaneously with much of the conduct alleged herein to constitute unfair labor practices , is entitled to some weight, it is not conclusive on the issue as to the supervisory status of these people . The issue as to their supervisory status was litigated herein. Van Ratliff, during the period here pertinent, was foreman over the Big Shop . He had about 30 employees under him . He assigned their work , transferred them from job to job, responsibly directed their work, and had authority effectively to recommend the discharge of employees . Indeed , there is credible and undenied evidence that he actually discharged employee Thibodeaux on one occasion. Willie Butler was the yard foreman and had about 20 employees under him. He assigned work to employees under him , transferred them from job to job, granted permission to employees to take time off, responsibly directed their work, and had authority to and did effectively recommend the discharge of employees. T J. Bernard , the brother of Respondent's vice president and production manager, Ronnie Bernard, was in charge of the Small Shop and had seven employees under him . He assigned work to them , transferred them from job to job, gave permission for employees to be absent, and effectively recommended the termination of employees he found unsatisfactory . He had an office and desk where he and his checker worked but he also assisted some in the physical work of the men under him. Although he referred to himself as a leader man, the employees called him their shop foreman. George Garza was in charge of the Detail Shop. He had three employees under him . He assigned work to them, talked to them about their work problems, decided whether overtime was necessary , and, after getting Ronnie Bernard' s approval, instructed the employees to work overtime ; he obtained replacements for employees when they were absent and he once sent a regular employee home when the latter showed up after Garza had already obtained a replacement ; he testified that he would fire an employee who refused to do a job as Garza instructed him and did it in an unsafe way instead . Although Garza referred to himself as a leader man, the employees referred to him as a shoe foreman. On the basis of all the evidence , only briefly summarized above, I find , in accordance with the stipulation of the parties in the representation case, that Ratliff, Butler, T J. Bernard , and Garza have the authority , in the interest of Respondent, and using their independent judgment , to transfer and assign employees, responsibly to direct employees , and effectively to recommend their discharges They are therefore supervisors within the meaning of Section 2(11) of the Act. C Acts of Interference, Restraint , and Coercion I Background, top management's initial response to the Union's organizational drive Respondent employs a total of only 65 or 70 employees Its president and general manager, W. H. Robinette, takes care of the office or front end of the business and its vice president and shop superintendent or production manager, Ronnie Bernard, is responsible for the production end Both of these men, prior to starting Respondent's business in about 1948, had been members of an Iron Workers union affiliated with the International of the Charging Party Since in business for themselves they have used union members exclusively in operating the outside steel erection and fabricating end of their business and are bound by contracts negotiated by Sabine Area Contract Contractors and Associated General Contractors The shop and yard employees, however, had never been organized and the organizational drive among them in October and November 1968 was the first experience Respondent had had in connection with an attempt to organize these employees. On October 18, 1968, when Union Representatives Garcia and Grayson visited President Robinette in his office at the plant to advise him of the Union's interest in organizing the shop employees, they had a friendly discussion. Robinette told them that he had no objection to their talking to the employees so long as this was done while the employees were not on the job. Garcia then explained that there were two methods of establishing the Union' s representative status, one by a card check against signatures of employees on W-4 forms and another by a means of an election conducted by the Board. Robinette expressed a preference for the election method. President Robinette soon thereafter consulted Respondent's counsel about the Union and he and Vice President Ronnie Bernard, with the assistance of said counsel, prepared and distributed to each employee on October 25 a letter signed by Bernard. In this letter, Respondent informed employees that they had a right under the National Labor Relations Act to join or refrain from j oining the Union and that, unless a majority of the employees joined the Union or voted for it in an election, Respondent would not recognize it as their bargaining representative It assured the employees that Respondent was taking a neutral position in regard to whether the shop should be organized and that no employee would be discriminated against if he chose to join the Union or engage in organizational activities off company premises. It stated that management did not intend to let union representatives enter the plant except to confer with management and that it would not allow union activities or organizational activities on company property.' 'At the commencement of the hearing in connection with a prehearing discussion of the issues involved , the Trial Examiner called the attention of the parties to that part of the third paragraph of this letter which appears to forbid union organizational activities on company property and inquired whether that provision was going to be an issue in the case The Trial Examiner later requested the parties to state on the record their position in regard to this part of the letter Respondent , through its counsel, then stated that Respondent has never had any objection to the employees soliciting for or discussing the Union on nonworking time and that the rule was never applied to interfere with the union activities on the employees' own time The General Counsel stated that he had no information to the contrary and was not seeking to amend the complaint to allege any violation of Sec 8(a)(1) of the Act by reason of any statement in the letter Because of this assurance by the General Counsel early in the hearing and BEAUMONT STEEL CONSTRUCTION CO. Except for an appeal made to its employees in a preelection letter in November urging them to vote "No" in the election scheduled for November 26, Respondent's top management, so far as the record shows, never made any statements inconsistent with the policy of neutrality announced in its October 25 letter The appeal to its employees to vote "No" in the election was, of course, within Respondent's rights but was inconsistent with Respondent's previously announced policy of complete neutrality. The conduct of Respondent's supervisors who were closest to the employees in the chain of command was, however, far from neutral and, as shown below, much of it was of a clearly coercive nature I find that the October 25 letter distributed to Respondent's employees and posted on its bulletin board at the plant did not absolve Respondent of responsibility for the numerous acts of interference, restraint, and coercion engaged in, both before and after the issuance of the letter, by its supervisors and that Respondent is responsible for such coercive conduct. 2 Coercive conduct attributed to Yard Foreman Butler On October 22, Union Representatives Garcia and Grayson again came to the plant They at first presented themselves at the yard office to meet Vice President and Production Manager Bernard, but, finding him gone, informed Foreman Ratliff of their intent to attempt to organize the men During the lunch period that day Union Representative Garcia went to Moore's Cafe near the plant where he hoped to and did talk to some of Respondent's employees about the Union. He sat at a table where Yard Foreman Willie Butler was eating and engaged him and about 10 of Respondent's employees in a conversation about the Union. Garcia had seen Butler around the plant but did not then know that he was a supervisor Commencing on the same day, Butler engaged in a course of coercive and unlawful conduct designed to discourage employees from supporting or voting for the Union in the election which was held on November 26 On the afternoon of October 22 employee Daigle was laid off and employee Collins was discharged - the latter upon the recommendation of Butler Following the discharge, Butler warned employee Charles Dugas, "If you all knows what is good for you, you all ain't going to fool around with that union, period " On the evening of October 22, while having dinner at Moore's Cafe, Butler told four or more of the employees there that Production Manager Ronnie Bernard had terminated Daigle and Collins to "scare" the other employees from going for the Union Butler expressed confidence that, in view of the discharges, the other employees would not go for the Union 2 no intervening evidence showing any restriction against employees' union activities on their own time, the Trial Examiner later denied a motion by the General Counsel to amend the complaint to allege the statement in question to be a violation of the statute 'The above finding is based upon the credited testimony of Charles Dugas and Dallas Thibodeaux Butler testified that he did not tell employees on October 22 that he, Butler, had discharged two employees as a warning, adding that Daigle had not even been working under him, but he was not asked and did not testify whether he told them Bernard had discharged the two employees as a warning and the testimony of Dugas and Thibodeaux is therefore not expressly denied 489 Butler thereafter sought out practically all of the approximately 20 employees working under him and inquired how they felt about the Union and returned from time to time to argue with some of those who had expressed themselves as favoring the Union. After asking employee Taylor whether he thought the Union could help him and receiving a noncommittal answer, Butler asked Taylor, "[D]id you know that should the union go through, that you would be one of the first guys to be laid off?" When Butler asked McClain what he thought about the Union, McClain replied that one had to look at it from all angles. When Butler asked him what he could gain from the Union, McClain asked "What have I got to lose?" Butler commented, "Well, there's always a possibility of your fob " On another occasion Butler asked McClain how he would feel about the Union if Respondent offered him $2 an hour. McClain asked him why the Company had not made such an offer before the Union came in. Butler asked employees Williams and Thompson what they thought of the Union and what it would take to satisfy them Williams refused to commit himself but Thompson said he would take $2.50 an hour. Butler told them that if the Union "did not go through," a shop committee which Butler believed should be formed would try to get a beginning rate of $2 15 an hour and more for older employees He suggested to employee Dugas that if he asked Production Manager Bernard for a raise at that time, he would get it in order to keep the Union out. He asked employee Henderson how he would feel about the Union if Bernard offered him $2 15 an hour. Henderson replied that he would appreciate a raise but was "not for sale " Pursuant to a notice posted beneath the plant bulletin board near the timeclock, a meeting of all the employees was held across the street from the Big Shop about 4.30 p m. one day about a week or two after the Union started organizing Richard Malone, a fitter, presided and announced the purpose of the meeting was to see whether the employees might be interested in forming an intershop committee to act as the employees' representative instead of having an outside union to represent them In addition to the employees, Supervisors Butler, T. J Bernard, Ratliff, and Garza attended Butler expressed the view that the employees did not need the Union He told them that they could elect a representative from each shop and that these representatives could meet with Production Manager Ronnie Bernard to settle their problems. He suggested that the employees vote on whether they wanted the intershop committee, but no vote was taken after someone present commented that it would be illegal to take a vote at that time. On the following day, Butler sought out McClain and also two other employees and questioned them about how they felt about the shop committee' During the preelection campaign, Butler also made statements to some of the employees indicating that they would lose certain holidays or other benefits they then enjoyed if the Union became their bargaining agent. He told employees Williams and Holt that "with the union 'Although the circumstances appear suspicious , I do not believe that a preponderance of the evidence supports a finding that Respondent initiated the movement to form a shop committee and, except for Foreman Butler's active role, described above, in supporting the idea and his interrogation of employees about how they felt about it, I make no finding of unlawful conduct by Respondent arising out of the abortive attempt to form this shop committee 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business going on," the employees would not get paid for Thanksgiving He added that if the Union came in, the employees would not get paid for any holidays until after contract negotiations were completed and that the Christmas bonus which Respondent had been paying employees would be "completely out."' I find that by the conduct of Foreman Butler, in telling employees that Respondent had laid off or discharged employees Daigle and Collins to scare the remaining employees from going for the Union, interrogating employees as to how they felt about the Union and about the proposed shop committee, asking employees how much it would take to induce them to reject the Union and making veiled promises of wage increases if the employees rejected the Union, warning an employee that he would be the first to be laid off, and warning another employee that he might lose his job, if the Union were selected, predicting that the employees would lose certain holiday pay and their Christmas bonuses if the Union were selected; and urging employees to form a shop committee to settle their problems, Respondent has interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights. 3. Coercive conduct attributed to Foreman Van Ratliff Van Ratliff, who was foreman over the Big Shop during the period here pertinent, had left Respondent's employment and was working in the nearby town of Orange, Texas, at the time of the hearing He was not called to testify in this case and the evidence as to the statements attributed to him stands undenied According to the credited testimony of employee Foster, Ratliff had several conversations with him about the Union. On the first occasion, in October, he offered to bet Foster $10 that the Union would never organize the shop. Foster declined to bet, explaining that he was afraid to do so, because, if he did, Respondent would know how he voted and might discriminate against him. Ratliff told Foster that, if the Union became the employees' representative, Christmas bonuses would be cut and so would holidays. He also stated that hours would probably be cut to 40 a week and that Respondent would operate under two shifts, thereby enabling it to cut out all overtime. The employees were then working about 20 or 22 hours of overtime each week About a week before Thanksgiving, Ratliff told employee Johnson that, if the Union was voted in, the employees would get no more holidays or vacations because the Company would have no contract with the Union and would have no authority to grant holidays and vacations in the absence of a union contract. For the same reason, he stated, the employees would not get paid for Thanksgiving.' In similar vein, Ratliff approached employee Peltier shortly before Thanksgiving and told him that Respondent had a right to cut out paid vacations and paid holidays before negotiating with the Union and that the employees could lose their paid Thanksgiving, which would be only 2 days after the election. 'Butler did not specifically deny most of the interrogation and statements attributed to him and set forth above in this subsection Moreover, he tended to give equivocal answers to many questions and was not a frank witness I do not credit his testimony insofar as it may be considered inconsistent with the above accounts 'The employees, however, did in fact receive a paid Thanksgiving holiday It is found that Respondent, through the conduct of Supervisor Van Ratliff, in threatening loss of paid holidays, vacations, Christmas bonuses, and overtime should the employees select the Union to represent them, interfered with, restrained, and coerced the employees in the exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act 4 Coercive conduct attributed to Foreman T. J. Bernard According to the credited testimony of employee Gore, shortly before Thanksgiving and after hearing rumors that the employees might not get paid for Thanksgiving, he questioned his foreman, T. J. Bernard (a brother of Vice President and Production Manager Ronnie Bernard), about the matter. Foreman Bernard attributed the rumors to Van Ratliff, stating, "you know how Van feels about the union " He told Gore that it was possible the employees would not get paid for holidays, starting with Thanksgiving, and said that they probably would not get a Christmas bonus on account of the Union In similar vein, when employee Tousha heard Foreman Bernard talking to employee Foster about the Union and benefits and inquired of Bernard about what would happen if the Union came in, Bernard told Tousha that, in his opinion, the Company would not have to pay any benefits and could cut the employees' salary if it wanted to He added that he had worked in a union shop and that Respondent was paying more than any other shop in the area. Foreman Bernard conceded that he told some of the employees that in his opinion they probably would get a cut in their hourly pay if the Union came in and gave his opinion as to what would happen to the Christmas bonuses Although Bernard's statements may well have been phrased in terms of his opinion about what would happen if the Union succeeded in organizing the shop, he was a supervisor and the brother of Respondent's vice president and production manager, and his opinions would reasonably be considered by the employee as based on strong probabilities. They were, I find, of an unlawfully coercive nature 5. Coercive conduct attributed to Foreman Garza In late October, according to the testimony of employee Foster, Foreman Garza asked him if he was going to the union meeting and get some free beer. Foster replied that he was and Garza asked if the Union was trying to buy his vote. Garza made predictions similar to those made by Foreman Ratliff, that, if the Union became the employees' representative, holidays and overtime work would be cut. Another employee, Peltier, testified that shortly before the election, Foreman Garza came to him and asked how he would like to work less hours for less money Peltier stated that he would not like that, whereupon Garza said he knew how Peltier was voting When Peltier asked for an explanation, Garza stated that, if the plant went Union, the hours would be cut to 8 a day from the 9 1/2 or 10 hours the employees were then working Garza categorically denied making any of the statements attributed to him by Foster and Peltier. I do not consider Garza a frank or convincing witness. The testimony of Foster and Peltier, on the other hand, was given in convincing detail and had a ring of truth I credit their accounts of what Garza said to them. It is found that Respondent, through Foreman Garza, by BEAUMONT STEEL CONSTRUCTION CO. 491 interrogation designed to elicit the union sympathies of two of the employees and by predicting the loss of holidays and overtime should the Union be selected as the employees' bargaining representative, interfered with, restrained, and coerced employees in the exercise of their Section 7 rights. D The Terminations of Daigle and Collins on October 22 Toward the end of the workday, October 22, after Union Organizers Garcia and Grayson had made their first contacts with employees at noon that day, employee Joe Daigle was laid off and employee Walter Collins was discharged As already noted, about 10 minutes after the discharge occurred, Foreman Butler, who participated in the decision to discharge Collins, told employee Charles Dugas that the two men had been discharged and warned. "If you all knows what is good for you, you all ain't going to fool around with that union " Also, as herembefore found, that same evening while having dinner with employees Dugas, Thibodeaux, and several other employees at a nearby cafe, the subject of the Union was discussed and Foreman Butler mentioned that Production Manager Ronnie Bernard had discharged Daigle and Collins that day He further stated, according to the undenied and credited testimony of Dugas "Mr. Bernard had us like he wanted to, because they had discharged two of the employees, that he just knew that we wouldn't go for the union, then. . . He said that the reason why they let them go, the two guys go, is to scare us from - for going for the union." By indicating to the employees with whom he was having dinner that Bernard had discharged Daigle and Collins to scare the other employees from going for the Union, was Butler merely expressing his own views or was he reflecting those of Bernard as well? Butler, of course, was in a position to know why Collins was discharged since he directly supervised Collins and participated in the decision to discharge him And, in connection with the decision to discharge Collins, Bernard might well have revealed to him the true reason for laying off Daigle. Bernard, however, denied that the Union had anything to do with the action taken in regard to Daigle and Collins and asserted that he had no way of knowing that these employees or any other employees were participating in the Union's organizational drive. Bernard had been out of his office on the morning of October 22 when Union Representatives Garcia and Grayson had come to his office and the union representatives had talked to Foreman Ratliff (Daigle's supervisor) instead about their desire to organize the employees. Bernard had been told by Respondent's president, Robinette, prior to October 22, that union representatives would be around to try to organize, and he saw them around the shop or yard on October 22, but did not know their names and did not know for sure until that afternoon, when Ratliff told him, that they were union organizers. Daigle credibly testified that during the lunch period on October 22 Bernard drove by and observed him just as he was accepting a union authorization card from Union Representative Grayson on the side of the road near the shop and that Bernard parked his truck, then stood and watched Daigle and Grayson for a couple of minutes. This was just before Grayson left to join Union Representative Garcia at Moore's Cafe on the corner The evidence that Respondent knew of Collins' interest in the Union is based on Collins' testimony that after he and six or seven other employees had returned from lunch at Moore's Cafe on October 22, the two union representatives waved and Collins waved back at them, while Bernard was standing in the machine shop, looking in their direction. Bernard did not specifically deny that he saw Collins wave at the organizers. Also, according to Collins, a few minutes later and just before the starting whistle blew, Foreman Butler passed within about 2 feet of Collins as he was telling a fellow employee, his brother-in-law, how he felt the Union might help the employees Although Butler testified that at the time Collins was discharged Butler "had no way of knowing whether he was in the Union or not" and that he did not conduct any surveillance or follow the employees around to see what they were doing after he left the cafe that day at lunchtime, his testimony is not inconsistent with that of Collins. It is possible that Bernard and Butler did learn of Collins' union sympathies in the manner described by him, but I am convinced, in any event, that in view of the evidence outlined below, Collins' discharge was deliberately timed and executed in such a way as to cause other employees to believe that the advent of the Union was responsible. Let us now turn to a consideration of the detailed evidence regarding the layoff of Daigle and the discharge of Collins and Respondent's explanation for each. 1. Daigle's layoff and subsequent recall Daigle was hired by Ronnie Bernard about January 26, 1967, and, after working under Bernard in the yard about a week, was transferred to the shop where he was assigned to swamping on a crane under Foreman Ratliff 6 About 4 months before Daigle's layoff, Respondent acquired a third crane and Daigle became a crane operator. The cranes operated on a track running from one end of the Big Shop to the other. Daigle operated the crane nearest to the north or front end of the shop where, during October and thereafter, Respondent was in the process of enlarging the shop It was about ready to have electric wiring and lighting installed in the front end when Daigle was laid off. Bernard testified that there was not enough crane operating work available to keep a third crane operating full time after Respondent acquired the third crane and this fact, plus the fact that Bernard had promised the use of a crane to the electrical contractor when the electricians started installing the wiring in the new part of the building, caused him to decide that he would not need Daigle to operate his crane until the front end of the shop was fully operational There is undisputed and credited evidence that Daigle and other employees had been working 6 or 7 days a week and 9-1/2 and 10 hours a day except for only 8 hours on Saturday and Sunday for some time before Daigle's layoff and that the other employees continued to work those long hours after his layoff, some of them working even harder than before because of having to perform Daigle's work in addition to their own. It is also undisputed that, although Daigle's crane was not in constant use after Daigle's layoff, it was used a large part of the time by other employees and the electricians. According to the undenied and credited testimony of Daigle, at about 3.20 p.m. on October 22, his foreman, Ratliff, handed him his paycheck ' Daigle asked him what 'Butler had not yet become the yard foreman 'This was on a Tuesday Paychecks were not normally given out until Friday 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it was for and Ratliff replied that he would have to lay Daigle off, that the crane had "nothing to do " Ratliff did not offer to transfer him to any other type of work, as was customary when work on one operation was slack. When Daigle inquired whether he could receive his vacation check, Ratliff took him to Bernard's office to discuss the matter Bernard told Daigle that he had to lay Daigle off because he was "short of work " He gave Daigle his vacation check although it was not quite due. Daigle told Union Representative Garcia about his lav off shortly thereafter when Garcia came to his home The Union filed charges in behalf of Daigle and Collins on October 28 Thereafter, during the evening of Friday, November 8 (the day when employees Henderson, McClain, and Taylor were discharged, as shown infra), Foreman Butler called Daigle's home and left word for Daigle to call. Instead of calling, Daigle reported to the plant early Monday morning, November 11. Butler stated that he would like for Daigle to work for him in the yard. Daigle asked if he would receive his same pay and seniority, and Butler took him to Bernard's office to ascertain the answer Bernard assured him that he would receive his regular rate of pay and not lose his seniority. Daigle thereupon started working under Butler, swamping on a cherrypicker, and continued on that job until transferred back to his regular job of crane operator in the Big Shop several weeks later Respondent has not contended that Daigle's work was in any way unsatisfactory. He had never received any complaint about his work and in addition to a 20-cent general increase given all the employees, he had received a 5-cent merit increase during his almost 2 years' tenure with Respondent The record is clear, moreover, that layoffs for lack of work at Respondent's plant are rare. Employee Foster, during his 4 years with Respondent, had never heard of a reduction in force or layoff for lack of work Respondent's business was a rapidly expanding one and, as Bernard explained, it had been Respondent's practice when work had been slack on one operation or in one department to transfer employees to another job or another department in order to keep them busy His explanation for laying Daigle off and failing to transfer him was that Daigle was junior in service to the other two crane operators; that the work of crane operator's helper, which Daigle had performed during most of his tenure with Respondent, was slack and that Foreman Ratliff had informed Bernard that Daigle had refused to work under Foreman Butler in the yard As already noted, I have credited Daigle's testimony that he was not offered a transfer to yard work under Butler. His willingness to work under Butler is, moreover, shown by the fact that he did in fact accept the offer of yard work under Butler when, after unfair labor practice charges were filed, he was offered that job and he continued to work under Butler until transferred back to his regular work of operating a crane. I am convinced, too, that Ratliff did not tell Bernard that Daigle had refused an offer of transfer to work under Butler Bernard admittedly did not mention this alleged unwillingness of Daigle to transfer when Bernard talked to him on the day of his layoff. Instead, Bernard merely told Daigle that he had to lay Daigle off because he was "short of work," that the layoff was temporary, and that he would be recalled when the shop was activated Furthermore, nothing had occurred between the date of the layoff and Bernard's instructions to Butler to offer Daigle work in the yard which could have given Bernard any reason to believe that Daigle would then accept work under Butler if he had been unwilling to accept it on the day of his layoff I am persuaded that the intervening events which caused Respondent to offer Daigle the yard work on or about November 8 were, first, the unfair labor practice charge filed on October 28 and Respondent's wish to curtail the amount of backpay for which it might be held responsible, and, second, the fact that Respondent needed to hire an additional yard employee after discharging employees Henderson, McClain, and Taylor on November 8.8 I find, as indicated by Foreman Butler's statement to the employees at Moore's Cafe, that Bernard, by laying Daigle off within a few hours after observing him accept a union card from Union Representative Grayson, hoped to scare the other employees into rejecting the Union and thereby nip the organizational campaign in the bud. I need not and do not decide whether, in the absence of such discriminatory intent, Respondent would have removed Daigle from his crane operator's job on that date, for I am convinced that, even if the decision to relieve Daigle temporarily of those duties was motivated solely by economic considerations, Respondent, except for a desire to nip the organizational activities in the bud, would have transferred Daigle to other work, in accoidance with its usual practice. 2 The discharge of Collins Collins had been employed only a short time prior to his discharge on October 22, probably about 3 weeks ' He worked in the yard under Foreman Butler at various labor tasks, but mostly at grinding and reaming holes In its answer to the complaint, Respondent asserts that it discharged Collins because he was an unsafe employee in its steel fabrication plant and because he was incompetent According to Butler's credited testimony, he told Collins that he was laying him off because he was afraid Collins was going to get hurt 10 In support of its asserted reasons for Collins' discharge, Respondent called one of its hoisting engineers, William Karr, who credibly testified that upon one occasion 2 or 3 weeks before learning of Collins' discharge, Collins had been assigned to help unload steel from a railroad boxcar and appeared constantly to be getting in the way of the steel beams as they were being moved Karr testified that, 'At one point in his testimony , in response to the question as to how long it was before Daigle was taken back , Bernard explained , "We [saw] that we needed another man in the outside , and Willie [Butler] called Joe Daigle l would say that it was approximately two weeks afterwards, and he - he offered him a job " 'Collins testified that he had been employed by Respondent for "better than a month", Butler estimated that it was about 2 weeks but not more than 3 weeks , Bernard testified that he believed Collins worked only about 2 weeks Respondent did not see fit to produce any personnel records to show the exact date of hire and apparently does not regard this evidence as too important ''Collins' account of what was said to him at the time of his discharge is not entirely consistent and did not sound convincing Collins at first testified that Butler told him that his work was good but that Butler was having to lay him off "because he said it had something to do with the union " Collins' next version was that Butler told him "I am going to have to cut you loose" , that, before leaving the plant and upon the advice of a fellow employee, he went back and asked Butler , "Why you fire me9", and that Butler then replied that "Mr Ronnie [Bernard ] said it was something to do with the union out there and the insurance", his final version of the conversation did not include any mention of insurance, although Respondent's counsel specifically inquired as to what was said about insurance BEAUMONT STEEL CONSTRUCTION CO. 493 although Collins appeared to be willing to work and was trying, he did not pay sufficient attention to his safety on this dangerous type of work and that Karr, fearing that he would be hurt, asked Ronnie Bernard and the labor foreman to transfer him from the unloading job and that Collins was transferred after a half day at that work. This incident apparently occurred during the first few days of Collins' employment Thereafter a steel beam fell on one of his feet and he was off from work 1 day When he returned he assured Foreman Butler that he was feeling fine and did not want to go to a doctor. Respondent did not consider the accident sufficiently serious to warrant a report on the injury for its files and no report was made to the Industrial Accident Board. Production Manager Bernard, moreover, did not mention it in listing the reasons he considered Collins an unsafe worker Bernard listed only the report of Hoisting Engineer Karr and a report that Collins had been seen working barefooted in the steel yard Foreman T J Bernard credibly testified that he once saw Collins standing in the steel yard in his stocking feet Foreman Bernard reported what he had seen to his brother, Production Manager Ronnie Bernard Foreman Butler also received a report that Collins was working with one shoe off and barefooted. Neither of them, however, had personally observed him working barefooted, though Ronnie Bernard had made a point to watch him after receiving this report." Nor does it appear that Bernard, Butler, or any other management representative spoke to Collins about his working without his shoes on or sought to warn him that this was not a safe practice. The report to Production Manager Bernard about Collins working without his shoes on occurred, according to Bernard, about a week after Collins had been employed. No other incident occurred, so far as the record shows, between that date and Collins' discharge about 2 weeks later which would indicate that Collins was an unsafe worker or that he was incompetent. Butler testified that he tries to develop good workers in the yard It is his practice to try to find out what a man can do by changing him from one job to another If he forms an opinion that a man is not a safe worker, he warns the man several times and tells him what he is doing wrong, and it is only when the employee does not improve that he recommends his discharge However, Respondent does not contend that Butler warned Collins about anything he was doing which was considered unsafe and Collins credibly testified that he was never given any such warning. Normally, as Ronnie Bernard testified, even when Respondent has decided not to keep a man in its employment, it waits until the weekly payday, on Friday, to give him his final paycheck and discharge him It was convenient from a payroll standpoint to do this since time for the week goes to the payroll clerk on Thursday Collins, however, was discharged on a Tuesday. Bernard's only explanation for failure to follow the normal practice in Collins' case was that he was afraid that if Collins "Foreman Garza gave a rather confused account of seeing Butler working barefooted with both shoes off and no socks on Garza testified, however, that he did not report what he had seen to anyone and what he saw could not therefore have had anything to do with Collins ' discharge Collins testified that he had never worked with his shoes off but says that after getting hurt, he went to the bathroom and pulled off his shoes to rest his feet when they were swollen Despite his denial, I am convinced that he did upon at least one occasion have one or both shoes off while in the steel yard stayed there much longer he was going to hurt himself or hurt someone else This explanation does not sound plausible in view of the fact that the last example of Collins' alleged unsafe manner of working - the shoeless incident - occurred about 2 weeks before Collins' discharge and one or more Fridays had already passed since the incident In the circumstances outlined above, the precipitate discharge of Collins on a Tuesday, dust a few hours after the union organizers made their initial contact with Respondent's employees, points strongly to a discriminatory motivation. Foreman Butler participated in the decision to discharge Collins and was in a position to know when he told a group of employees at dinner that evening that Bernard had discharged Collins and Daigle to scare the others from going for the Union I find that Respondent's discharge of Collins on October 22 was for the purpose of discouraging membership in the Union and was in violation of Section 8(a)(3) and (1) of the Act. In concluding that the discharge of Collins on the day the union representatives began their organizational drive was discriminatorily motivated, I do not, of course, purport to find that Collins was a safe worker or that he would not have been terminated later as an insurance risk. I find only that he would not have been terminated at that particular time but for Respondent's desire to scare other employees from supporting the Union E The Discharges of McClain, Henderson, and Taylor The Union filed an unfair labor practice charge against Respondent on October 28 as a result of the layoff of Daigle and the discharge of Collins and it filed a representation petition on November 1. Respondent was aware, as Production Manager Bernard explained, that it might face more unfair labor practice charges if it discharged anyone else during the preelection period Bernard discussed the matter with President Robinette, who sought the advice of Respondent's counsel It was after receiving advice that Respondent should attempt to refrain from discharging any of its older employees during this critical period but that it could discharge the newer employees whom it would discharge if the Union were not in the picture, that Respondent decided to terminate its three least senior yard workers On Friday, November 8, John P. McClain, Jr., Robert G. Henderson, and McHenry Taylor, all working under Foreman Butler, were discharged. All were relatively new employees, the least senior of the yard employees then working In addition to these three and Collins, whose discharge Butler had recommended less than 3 weeks earlier, Butler testified that he had effectively recommended the discharge of four or five other yard workers during the period of a little more than a year since he has been yard foreman. Although the discharges within a 3-week period during the Union's organizational campaign of almost half of the total discharges in more than a year appears to be a disproportionate number, this fact, in itself, is not necessarily significant As Bernard testified, none of these three was separated because of any necessity to reduce the work force, and Respondent continued to require employees to work a great deal of overtime Nevertheless, the volume of work in the yard was such that, after recalling shop employee Daigle from layoff to do yard work, Respondent did not find it necessary to hire any new employees for several months after the discharges. Although one of the 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees, Taylor, was told that Respondent was letting him go because there was not enough work for him and "a reduction in force" was mentioned In Respondent's amended answer as one of the reasons for his termination, Bernard and Butler, at the hearing, expressly disclaimed that factor as a reason. This brings up a matter which has troubled me greatly in deciding credibility issues and trying to determine the motivation for the three discharges. The ultimate explanations of Respondent's representatives, Production Manager Bernard and Foreman Butler, for the discharges do not correspond very closely to the reasons alleged in the amended answer I am inclined to believe that Respondent listed in its amended answer all the shortcomings of these employees it could assemble, dating from the inception of their employment to the period following its decision to terminate them, then sought, frequently in response to leading questions, to present these shortcomings as reasons for, rather than as possible justifications for, the discharges An outstanding example of this technique is the emphasis placed upon a drinking episode observed by Production Manager Bernard shortly after the lunch period on November 8. The amended answer alleged as one of the reasons for discharging both McClain and Henderson that they had been drinking on the job Bernard testified that, at some time between 12.30 and 1:30 p.m. on November 8, he stood in the doorway of the toolroom and watched these two employees for 20 minutes as they stood about 25 yards away beside a fire in the yard (it being a cold day) and that during 15 minutes of this time, they took two drinks each from a half pint bottle of whiskey, then threw the bottle away." Bernard, after discharging the men later that afternoon, retrieved the whiskey bottle and preserved it as evidence against the men. Bernard further testified that later that afternoon Foreman Butler reported to him that he had heard that these two employees and Taylor were drinking on the job. In response to a leading question from his counsel he stated that he had taken the drinking into consideration in effecting the discharges. During cross-examination, however, Bernard testified that he could not remember exactly when he had made up his mind to discharge these employees and that it could have been as early as Wednesday or as late as Thursday of that week rather than on Friday when he discharged them Later he testified as follows on this matter TRIAL EXAMINER Had you already made up your mind to fire them before you saw them drinking? THE WITNESS Yes, ma'am, I think so * TRIAL EXAMINER: I want to know whether you had already made up your mind, or whether the drinking was the final straw, so to speak, that made you make your mind up THE WITNESS No, ma'am, our mind was more or less made up before this. On the basis of this testimony, I infer that the drinking which Bernard observed just after lunch on November 8 and the reports about drinking received from Foreman "McClain and Henderson emphatically denied that they had ever consumed any intoxicating liquor on company time it is possible that they consumed it during their lunch period, between 12 and 12 30 p in , or believed that they were still on their lunch period when they drank from the bottle However, for the purposes of this decision, I accept Bernard's testimony that he observed them drinking at some time between 12 30 and 130 pm Butler later in the afternoon had nothing to do with the decision to discharge the three men, that decision having already been made." Another factor urged by the General Counsel as significant in evaluating Respondent's motivation in discharging these three employees is a statement made by Butler to each when handing him his final paycheck. Butler concededly told each of these three at that time that he was not discharging him because of the Union. This was an unsolicited statement and might well be construed as an indication that Butler had the union sympathies of each of the three in mind in connection with the decision to discharge him. Butler testified that he made this statement to each because it had been rumored that these employees had said they were going to be laid off on account of the Union. I think it more likely that Butler, aware of the Section 8(a)(3) charges filed after he told a group that Bernard had discharged Daigle and Collins to scare the other employees from going for the Union, was consciously hoping to ward off unfair labor practice charges in connection with the discharge of Henderson, McClain, and Taylor. I do not regard his statement to these employees that he was not discharging them because of the Union as significant either in showing or in not showing a discriminatory motivation After a careful evaluation of all the evidence, I have concluded that only one of the three, Henderson, would have been discharged by Respondent on or about November 8 even if the Union had not been in the picture. I am persuaded that Respondent discharged Henderson because it considered him an insurance risk as the result of an excessive number of accidents which he had recently suffered and its belief that he was faking injury, that it discharged McClain because of his outspoken and eloquent support of the Union, and that Taylor, the least senior of the three, was included in the group in order to create confusion as to Respondent's motivation by injecting the suggestion that employees were selected for layoff on the basis of their seniority in connection with a reduction in force There is set forth below a brief summary of the evidence relating to each of the three and my explanations for reaching the conclusions just stated 1 The discharge of Robert G. Henderson In its amended answer to the complaint, Respondent asserted that Henderson was discharged "because his work was unsatisfactory, he was not doing his work, and was drinking intoxicating liquor on the job in violation of Company rules Further, this employee was likewise discharged for deliberately pulling a beam over on his foot." Henderson was employed by Respondent in March 1968 as a helper in the yard. In addition to a 15-cent general increase in pay, he received a merit increase in August when he was moved to a sand blasting operation At that time Butler told him his work was good. There is little in the record to indicate that Henderson was active in support of the Union or that Respondent "This is not to say that Respondent knowingly permitted its employees to drink on the job As Bernard explained, although Respondent had no written rule against drinking on the job and had not orally informed employees that this would not be permitted, he assumed that all the employees would know better Foreman Butler had, prior to the advent of the Union's organizational campaign, seen employee Henderson during working time take a drink in the postman's car and had warned him that he would be fired if he did it again BEAUMONT STEEL CONSTRUCTION CO. had reason to believe he was Upon one occasion, about 2 days before his discharge, Butler asked what Henderson would do about the Union if the Company gave him $2.15 an hour and Henderson replied that he would appreciate the raise but was not for sale. Upon another occasion Henderson told Butler about fringe benefits the Union was offering Henderson was also present at a union meeting which Butler attended However, Henderson testified that in talking to Butler he never committed himself in any way about his union or voting intentions About 3 p m. on November 8 Butler, in the presence of Foreman Ratliff, gave Henderson his final paycheck and told Henderson he would have to let him go According to Butler's credited testimony, he told Henderson that he "wasn't giving him his check on account of the Union" but "was letting him go because he wasn't doing his work " Henderson replied that Butler "might as well say that [he] was giving [Henderson] his check on account of the Union, because that is what [Henderson] was going to accuse [Butler] of " The reasons asserted by Foreman Butler and Production Manager Bernard at the hearing for discharging Henderson are not too clear This circumstance, I believe, is due to the fact already mentioned that in attempting to show that Henderson was not a satisfactory employee, they tended to list each of his shortcomings whether or not they had anything to do with his discharge, particularly his drinking on November 8 and on a previous occasion, then answered in the affirmative when asked by Respondent's counsel whether that was one of the factors taken into consideration in deciding to discharge him Elsewhere in their testimony, however, each made it clear that they had decided to discharge Henderson sometime before the November 8 drinking incident and for reasons unrelated to drinking The true reasons for Henderson's discharge, I am convinced, were related to his excessive number of injuries within the preceding 2 months, his absences from work due at least in part to those injuries, the belief of Butler and Bernard that he had deliberately pulled a steel beam over on one of his feet to cause or aggravate one of those injuries, and their belief that he was faking injury In September he injured a foot when it was cut with sand while he was working and was off from work about 9 days, as he explained, due to that injury and a "bad stomach " On October 3 he suffered another accident when a beam fell on his left leg below the knee and still another accident about October 6 when a beam fell on one of his feet He had been back at work only a half day when the last accident happened Employee Goodman, who witnessed it, testified that Henderson had apparently not tried to get out of the way of the beam and he reported to Foreman Butler that Henderson had deliberately pulled the beam over on his foot Butler told Henderson to go to the Company's doctor When Henderson returned to work after an absence because of the last injury he told Butler that he had gone to his own doctor instead of to the company doctor because he could not get paid if he went to the company doctor 1d Butler credibly testified that he made up his mind to discharge Henderson when he observed him walking straight as he approached the plant, then start hopping when he reached the plant. This indicated to Butler that No evidence was adduced to show the exact amount of time Henderson lost from work because of the last accident but employee Goodman testified that Henderson had been back at work about a week when he was discharged 495 Henderson was faking discomfort from his claimed injuries He further testified that, in recommending to Bernard that Henderson be discharged, he took into consideration the fact that Henderson had said he thought he was going to be laid off and had gotten himself "prepared" by hiring a lawyer Butler's account is substantially corroborated by that of Bernard The latter testified that in deciding to discharge Henderson he took into consideration the fact that Henderson would not go to a company doctor "because he couldn't get the money and that he had prepared himself by getting a lawyer " Bernard further credibly testified that he had wanted to discharge Henderson for sometime before the actual discharge and even prior to the commencement of the Union's organizational drive but that Respondent has a policy against discharging an employee while he is under a doctor's care and, pursuant to this policy, he waited until Henderson was back at work before discharging him I am satisfied on the basis of all the evidence that, in discharging Henderson, Respondent was not motivated by antiunion considerations 2 The discharge of John P McClain, Jr In its answer to the complaint, Respondent asserts that McClain "was discharged because of unsatisfactory work and because he was drinking on the job in violation of a company rule." McClain was employed by Respondent about June 4, 1968, to work in the yard as a general laborer under Foreman Butler After working about 2 months in the yard, he was sent to Production Manager Bernard's farm to assist in the construction of a home for Bernard He was transferred back to the yard work during the last week in October and had worked there the second time only 2 or 3 weeks at the time of his discharge. McClain joined the Union shortly after the organizational campaign commenced and talked to just about every other yard employee, when off company premises, about the Union, explaining the better working conditions and fringe benefits which he expected from the Union Judging from his performance on the witness stand, I have no doubt that he was an articulate and forceful union advocate He and Foreman Butler had many conversations about the Union. When first approached by Butler and asked what he thought about the Union, he told Butler that one had to look at it from a positive and negative angle Butler asked, "What can you gains", and McClain replied, "What have I got to lose" Butler suggested, "Well, there's always a possibility of your job," reminding McClain that he had been bringing home $100 a week. McClain responded that he was having to work 62 to 72 hours a week and that he could earn the same amount working only 40 hours a week under a union contract Later, at the meeting at which an abortive effort was made to form a shop committee to handle the employee problems, McClain had openly opposed the idea He remained firm in his opposition to it on the next day when Butler sought to persuade him that a shop committee would be a good idea At a union meeting attended by Foreman Butler on November 6, and after Butler addressed several questions to the chair about a Look Magazine article on black and white unions, McClain, who was sitting directly in front of Butler, told him. "Man, you have explained this over and over and over again . The man has answered your 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD question If you don't have anything suggestive to say, get the hell out of here "" Butler concedes that he took the Look Magazine to the plant and showed it to McClain several times McClain credibly testified that, on the day before his discharge, Butler came to him several times as he was working, asked McClain to read the Look Magazine article, and engaged in lengthy discussions with him in an attempt to persuade him that the Union was not a good thing for the black man 16 Being unable to change McClain's mind, he finally told McClain, "You are a hard man, Mr McClain," and gave up attempting to persuade him About 2 45 p m. on November 8, Butler, in the company of Foreman Ratliff, called McClain off the truck which he was helping to unload, gave him his final paycheck and said "McClain, first of all, I want to let you know that this is not because of the union, but I am going to have to let you go " McClain asked why and Butler explained, "You are just not putting out " McClain responded, "You and I know better than that Man, you are joking." According to Bernard and Butler, Respondent's complaints about McClain as a workman date back to the very beginning of his employment They testified that in June, on the first day of his employment, after McClain told Butler he was a truckdriver, he was assigned to make a delivery to a school construction job and that the foreman on the job reported to Bernard that McClain had torn the transmission out of the truck On another occasion when McClain was assigned to drive a tractor truck to the port at Port Arthur, the superintendent on that job informed Bernard that, if he wanted a truck with a transmission and clutch in it, he had better pull the driver off McClain was then taken off truckdriving. He was thereafter assigned to various jobs in the yard This was pursuant to Respondent's policy to try new employees out at different work in an attempt to fit them into the type of work for which they are best qualified. At the conclusion of McClain's approximately 3 months' work at Bernard's farm, assisting in the construction of a home there, the foreman on that job, according to Bernard's account, reported to Bernard that, if McClain was typical of the workers employed by Respondent at its plant, Respondent was badly in need of some laborers and that if the home construction job had lasted a week longer either he or McClain would have had to leave. Nevertheless, Bernard transferred him back to the yard work under Butler during the last week of October. It is apparent, therefore, that whatever complaints Respondent may have had about McClain's performance as a laborer prior to the last week in October, they were not considered sufficiently serious to deter Bernard from returning McClain to his old job in the yard under Butler. It would seem that, if McClain's work as a yard laborer had been considered unsatisfactory, the occasion of the completion of his work at the farm would have been a logical time to terminate his services What then happened during the period of less than 3 weeks before the day of his discharge which caused Butler to recommend his discharge and Bernard to concur in the recommendation? It was not the drinking episode observed by Bernard just after lunch on the Friday of his discharge, for, as already pointed out, Bernard conceded that he and Butler had already made up their minds possibly as early as the preceding Wednesday or as late as the preceding Thursday to discharge McClain and that the drinking episode was not even a final straw Moreover, McClain's alleged drinking was not mentioned to him at the time of his discharge Nor, as Bernard concedes, was Respondent motivated by any desire to effect a reduction in force among the yard workers at that time Employees were then working 6 or 7 days a week and 9-1/2 or 10 hours a day except on weekends and continued to do so after November 8. In an attempt to explain McClain's discharge, Butler testified that he had warned McClain several times that if he planned to stay with Respondent he would have to shape up and do better Butler did not recite any specific occasion on which he gave such an admonition to McClain and I credit McClain's testimony that he never received any complaint about his work Moreover, other than his reference to McClain's rough treatment of trucks during the first period of his employment with Respondent, Butler could cite no specific complaint against him prior to November 8 except that "he talked a lot He would stand around and talk, and he was a great talker " I have no doubt that McClain was "a great talker " As he demonstrated on the witness stand in describing his arguments with Butler about the Union, he talked loudly, clearly, and eloquently It was Butler himself, however, who initiated much of this talking in an effort to induce McClain to abandon his support of the Union. Butler concedes that he showed McClain the Look Magazine article several times during the period of McClain's last employment with Respondent and told him about the Union's discrimination against the black man. I credit as substantially accurate, McClain's accounts, told in convincing detail, of his numerous conversations with Butler about the Union and, despite Butler's denials, I am satisfied that most of these conversations were initiated by Butler himself. McClain's talking, I am convinced, was not found objectionable by Butler until he was finally convinced that he could not convert McClain to his side of the union issue and realized that McClain, because of his forceful defense of the Union, would undoubtedly influence others to vote for the Union It was only on the day before McClain's discharge that Butler had asked him, "If the company would haul off and offer you two dollars an hour, what would be your position on the union then?" This question, which McClain reasonably considered as a veiled promise of an increase if he abandoned his support of the Union, appears inconsistent with an intent to discharge McClain for not performing his work. I am convinced that this was one last attempt to convert McClain before finally deciding to recommend termination of his services I find on the basis of a preponderance of the credible evidence that Respondent discharged McClain to rid the plant during the critical preelection period of a very ardent and effective union advocate. "The finding regarding this incident is based upon the credited testimony of McClain, corroborated in substantial respects by the testimony of Henderson and Taylor I do not credit Butler's denial that McClain made this statement to him and that he could prove by other witnesses that McClain did not say this Respondent produced none of the persons named by Butler as able to substantiate Butler 's account "About 50 percent of Respondent's working force, including Foreman Butler and the employees whose discharges he recommended , are Negroes 3 The discharge of McHenry Taylor Respondent alleges in its amended answer that Taylor was discharged "because of unsatisfactory work habits and a reduction in force He was absent from work on October 12, 20 and 21, and was sent home on the 21st BEAUMONT STEEL CONSTRUCTION CO. because he reported late for work '117 Taylor was hired in about September 1968 to work under Foreman Butler" He worked part time as a truckdriver and performed various tasks in the yard when not driving. There is a paucity of evidence to indicate that Taylor was an ardent union supporter or that Respondent had any reason to believe that he was He signed a union card and attended the union meeting about November 6, at which Butler asked some unfriendly questions about the Union's racial policies, but he did not expressly commit himself about how he felt regarding the Union In response to Butler's inquiry about November 4 or 6 as to whether he thought the Union would help Taylor any, Taylor merely replied that he did not know About 3 p m. on November 8, Butler handed him his final paycheck and, according to Taylor's credited testimony said, "I am sorry, Mac, but I will have to let you go . We don't have enough work for you. It is not because of the union." Butler, who originated the recommendation to discharge Taylor, testified, contrary to the allegation in Respondent's amended answer and to the explanation made to Taylor at the time of his discharge, that a lack of work had nothing to do with Taylor's discharge and that he and Bernard did not even discuss any slack in work at the time it was decided to discharge Taylor and the other two yard workers on November 8 1 have therefore eliminated as a possible reason for Taylor's discharge the only reason given to him. Bernard confirmed that there was plenty of work for Taylor to do and that his discharge was not pursuant to a reduction in force Butler at first testified that he fired Taylor "[b]ecause he wasn't doing his work . . That's the only reason that I know of." When asked again about the reason, he added, "and he had been drinking." Butler explained that he had not seen Taylor drinking but that it had been reported to him by employee Wilson on the afternoon of the discharge that Taylor and McClain had been drinking and that he smelled liquor on Taylor's breath when handing him his final paycheck Both Butler and Wilson, in testifying, at first confused the identity of the person Wilson allegedly saw drinking wine on the morning of November 8 Both at first said Henderson and McClain were drinking, then each testified that they meant that it was Taylor and McClain I need not decide whether Taylor in fact participated in drinking wine on the job on November 8 for I am convinced that any alleged drinking had nothing to do with his discharge. This factor was not mentioned to Taylor at the time of his discharge, it was not alleged in Respondent's amended answer as a contributing reason, and it was not mentioned as a reason by Bernard whose final decision it was to discharge Taylor Moreover, as already pointed out, the decision to discharge Taylor as well as Henderson and McClain had been made prior to November 8 The drinking factor, too, will therefore be eliminated as a possible reason for the decision to discharge Taylor Although, as shown above, Respondent's amended answer indicates that absenteeism on Saturday, October 12 and Sunday, October 20, and tardiness on Monday, October 21 had something to do with his discharge, "The answer was further amended at the hearing to change the dates of the alleged absences to October 12 and 20 "Respondent's amended answer alleges the date to be September 16 but Respondent adduced no evidence as to the exact date Taylor testified that he believed he was hired in late September or early October The precise date does not appear important 497 neither Butler nor Bernard, in their testimony, mentioned this as a contributing cause for his discharge Taylor testified that he was absent only on one Saturday when he was not told that he would have to work on Saturday and denied that he reported to work late on October 21 and was sent home, as alleged in the complaint. But even assuming, as Butler testified, that Taylor was absent "some" and was sent home once when he reported to work late, it is clear that Taylor's attendance record was not bad and had nothing to do with his discharge Neither Butler nor Bernard testified that Taylor's attendance record contributed to the decision to discharge him. There remains for consideration Respondent's contention that it discharged him because he was a poor worker Neither Bernard nor Butler complained of Taylor's work as a driver Both testified, however, that, when he was assigned to other tasks, he was a "poor worker " Butler testified that he observed Taylor "several times" just standing beside his assigned task, sometimes 5 or 10 minutes at a time He further testified that on one occasion Taylor was gone about 30 minutes when sent to the shop for a clamp and that, when Butler went in search of him, he had dust left every place where Butler looked. Bernard testified that Taylor, when not driving the truck, on many occasions would look up everybody's coffee bottle in the shop Butler testified that he told Taylor that if he planned to stay with Respondent, "he would have to improve himself" but Butler did not indicate what conduct on Taylor's part precipitated such an admonition or at what point in Taylor's approximately 6 weeks of employment this alleged admonition took place. I do not credit Butler's testimony in this regard and credit, instead, Taylor's testimony that he had never received any complaint about his work I have no doubt that Taylor, like most laborers who perform arduous physical work, may have paused to rest from time to time and that he may on occasions have stopped for a drink of coffee. Any such work habits during the time when Taylor was not engaged in truckdriving - about which Respondent expressed no dissatisfaction - were not, in my view, considered by Respondent as sufficiently serious to warrant discharge and were advanced at the hearing as afterthoughts in an attempt to justify what it had done If Taylor's work habits had in fact been the reason for his discharge, I see no reason why Respondent would not have mentioned them to him at the time of the discharge instead of telling him, as it did, that there was not enough work for him Although, as already indicated, Taylor was not an outstanding union advocate, as was McClain, and he never expressly committed himself as for or against the Union when Butler inquired how he felt about the Union, Butler could well have surmised from Taylor's guarded response to his inquiry, as well as Taylor's attendance at the union meeting which Butler also attended, that Taylor was among the employees who would likely vote for the Union. There is ample evidence on the basis of the entire record to support an inference that, in assigning to Taylor a false reason for his discharge, Butler was attempting to cover up the real reason which was Respondent's desire to eliminate from its employment another employee who would be likely to vote for the Union. I am convinced upon the basis of all the evidence, however, that Respondent selected Taylor, who had been silent about his union sympathies, along with McClain, who had been vociferous in expressing his sympathies, in an attempt to confuse the issues and make it appear, at 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD least preliminarily, that it was merely effecting an economic layoff and selecting the three least senior employees for layoff With an inordinate amount of overtime being performed by its yard employees both before and after the discharges, however, it later became apparent that it could not successfully urge as a defense that a reduction in force was necessary It therefore abandoned any such defense at the hearing Respondent's discharge of Taylor is nevertheless proscribed under Section 8(a)(3) and (I) of the Act, for Taylor would not have been discharged except as a part of Respondent's design to cover up its motivation for eliminating McClain Accordingly, whether Respondent's selection of Taylor for discharge on November 8 was pursuant to an express purpose to rid the plant of one more probable voter for the Union or was merely part of a design to cover up its motivation for eliminating McClain, his discharge was in violation of Section 8(a)(3) and (1) of the Act Cf Sieves Sash & Door Company v. NLRB , 401 F.2d 676, 681 (C A 5), in which it was held that an employee had been "unlawfully discharged because he was discharged by an employer in order to lend credence to the pretextual discharge of a fellow employee unionist . ' CONCLUSIONS OF LAW I By interfering with, restraining, and coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. By laying off Joe Daigle between October 22 and November 11, 1968, by discharging Walter James Collins on October 22, and by discharging John P McClain, Jr , and McHenry Taylor on November 8, 1968, to discourage support for the Union, Respondent discriminated against them in violation of Section 8(a)(3) and (1) of the Act 3 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 4 A preponderance of the evidence does not support the allegation of the complaint that Respondent's discharge of Robert G Henderson was in violation of Section 8(a)(3) and (1) of the Act. THE REMEDY It having been found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, my Recommended Order will require that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act To remedy the discrimination against employees Collins, McClain, and Taylor, my Recommended Order will require that Respondent offer each of them reinstatement to his former or substantially equivalent employment, without prejudice to his seniority or other rights and privileges, and make each whole for any loss of pay suffered by reason of the discrimination against him by paying to each a sum of money equivalent to the amount he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings during such period. The backpay shall be computed on a quarterly basis in the manner prescribed by the Board in F W Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent as ascertained by the formula adopted in Isis Plumbing & Heating Co, 138 NLRB 716 Since Respondent has already reinstated employee Daigle without loss of seniority and other benefits and he was at the time of the hearing again working at his former regular job, the remedial order, as to him, will provide only that he be made whole in the manner above described, for any loss of pay suffered by him between October 22, the date of his layoff, and November 11, the date he was reinstated. RECOMMENDED ORDER Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby ordered that Respondent, Beaumont Steel Construction Co , its officers, agents, successors, and assigns, shall: I Cease and desist from. (a) Coercively interrogating employees regarding their union sympathies or activities (b) Urging employees to form a shop committee instead of selecting the Union to handle their problems (c) Making veiled promises of wage increases if the employees rejected the Union (d) Threatening loss of paid holidays, paid vacations, Christmas bonuses, or overtime if the employees selected the Union. (e) Threatening loss of jobs or a reduction in pay in reprisal for the employees' selection or support of the Union (f) Laying off, discharging, or otherwise discriminating in regard to the hire or tenure of employment of employees because of their union support or activities (g) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act 2 Take the following affirmative action designed to effectuate the policies of the Act (a) Offer to Walter James Collins, John P. McClain, Jr., and McHenry Taylor reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make each of them and Joe Daigle whole for any loss of pay each may have suffered by reason of Respondent's discrimination against him, in the manner described in the section of the Trial Examiner's Decision entitled "The Remedy " (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (c) Notify those employees listed in paragraph 2(a) of this Order, if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces (d) Post at its plant in Beaumont, Texas, copies of the attached notice marked "Appendix "" Copies of said ''In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order " shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board ' s Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " BEAUMONT STEEL CONSTRUCTION CO. 499 notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered. defaced, or covered by any other material (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith 20 Insofar as the complaint alleges violations of the statute not specifically found herein, it is hereby dismissed. "In the event that this Recommended Order is adopted by the Board this provision shall be modified to read "Notify said Regional Director, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that WE WILL offer to Walter James Collins, John P McClain, Jr , and McHenry Taylor full reinstatement to their old jobs and will give each of them whatever backpay he has lost because of his discharge If any of these employees is presently in the Armed Forces of the United States, we will notify him of his right to reinstatement upon application after discharge from the Armed Forces WE WILL give to Joe Daigle whatever backpay he may have lost because of his layoff on October 22, 1968 WE WILL NOT question our employees in regard to their union sympathies or activities WE WILL NOT urge our employees to form a shop committee instead of selecting Shopmen's Local Union No 694 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, to handle their problems WE WILL NOT promise wage increases to induce employees to reject the Union WE WILL NOT threaten loss of paid holidays, paid vacations, Christmas bonuses, or overtime as a result of our employees' selection of the Union to represent them WE WILL NOT threaten loss of jobs or a reduction in pay as punishment for the employees' selection or support of the Union. WE WILL NOT lay off, discharge, or otherwise discriminate against our employees because of their union support or activities WE WILL NOT in any other way interfere with our employees' rights, guaranteed under the law, to organize, to form, join, or assist a union, to bargain through the Union they have chosen, to act together for their mutual aid or protection, or to refuse to do any of these things BEAUMONT STEEL CONSTRUCTION CO (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office , 6617 Federal Office Building, 515 Rusk Avenue, Houston , Texas 77002, Telephone 713-226-4296