L. B. Foster Co.

L. B. FOSTER COMPANY 319 L. B. Foster Company and Shopmen's Local Union No. 694 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. Cases 23-CA-3734 and 23-RC-3493 July 29, ^ 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On March 29, 1971, Trial Examiner Stanley N. Ohlbaum issued his Decision in the above-entitled proceeding, finding that the, Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached'Trial Examiner's Decision, He further found that the Respondent had -not engaged in certain other unfair labor practices alleged in the complaint and recommended that Such allegations be dismissed. He also found that certain employees were eligible and certain ' other employees were ineligible to vote in a Board-conducted election held on October 16, 1970, and recommended' that the ballots of the eligible voters be opened and counted and that an appropriate certification issue . Thereafter, the Respondent and theGeneral Counsel filed exceptions to the 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 proceeding 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 hereby affirmed. The Board has considered the Trial Examiner's Decision„ the exceptions and briefs,,and the entimrecord in the proceeding, and hereby adopts the findings, conclusions, and .recommendations of the Trial Examiner with the following modifications: - We agree with the- Trial Examiner that employees Stuart, Williams, High, Claborn, and Knight were terminated in, their employment because of their union activities and not, as contended by Respon-_ dent, because economic -conditions dictated a, sub- stantial, layoff at that particular time.1 , Having discredited Respondent's economic defense, however, the Trial Examiner still dismissed the allegation of the ' 1 We rely in part onithe credited testimony of Billy W. Perteet, a former employee of Respondent who returned to pick up a paycheck a few days after the layoff.' Observing that Knight and Claborn were not there, he asked Supervisor McAlister where they were . McAlister told him "they had been fired because of trying to get the Union in," and that "even your brother-in-law got fired." (Both Williams and High were brothers-in-law of Perteet.) 2 As noted by the Trial Examiner, the business conditions which complaint that employees Carlisle , Wright, and Qualls were terminated in violation of Section 8(a)(3), finding . that it had not been, established that the termination of these three employees was because of union or concerted - activities on their 'part. The General ' Counsel excepts to the conclusion .that, because it was not proved that these three engaged in concerted activities, their termination was legally justified. We find merit in this exception. The Trial Examiner found, in effect, that the layoff which affected all eight employees on August 18, 1970, would not have occurred had it , not been for the organizing efforts on behalf of the Union that were known to the Respondent in the earlypart of August.2 When the Respondent , engaged , in its layoff in response to these efforts, that action, insofar as it affected both prounion employees -and- employees whose union sympathies were unknown, discouraged union activities of all employees . Accordingly, we find that the termination of Joel Allen ' Carlisle, Bill Wright, and Charles Quail as part of the group layoff on August 18, 1970, violated Section 8(a)(3) of the Act.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, 'the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner as modified below and hereby orders that the Respondent, - L. -B. Foster Company, Houston, Texas, its officers, agents, suc- cessors, 'and assigns, shall take the action set forth in the Trial Examiner's ' recommended Order 'as` so modified: ' 1. ' Add to paragraph 2b of the Trial Examiner's recommended Order, after the name Douglas O'Neal Knight, the names "Bill Wright, and Charles Quail," and after the words "and make each. of them" add "and Joel Allen Carlisle." 2. Substitute the attached notice for the Trial Examiner's notice. IT IS FURTHER ORDERED that Case 23-RC-3493 be, and it hereby is, severed from this proceeding and remanded to the Regional Director for Region 23 for the purpose of opening and counting the challenged ballots of Everett Claborn, William Claborn, James High,, Douglas Knight, Kenneth R. Stuart, Jessie J. allegedly- brought about the layoff were discussed within the Company as early as May, yet, no action was taken at this plant until the -August organizing efforts became known. We cannot rely, however, on the fact that the layoff occurred on the same day the Company received notification of a representation election, as there is no evidence that it was received before the layoff decision was made. 3 O'Keeffe Electric Co., 158 NLRB 434, 438. 192 NLRB No. 45 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD West, -and James E, Williams and thereafter issuing the appropriate certification .4 d The Regional Director is hereby directed to destroy, unopened, all other challenged ballots. In the case of Joel Allen Carlisle, although we have found that his termination on August 18, 1970, ,was in violation of Section 8(a)(3), it is undisputed that before the October election he declined-The Company's unconditional offer to restore him to his job. He they f ,*.as not an eligible voter and the challenge to his ballot, is sustaii d; along with the other challenges sustained by the Trial Examiner. For the same reason, we shall not order him reinstated but only compensated for any loss of pay he may have suffered. APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After ' a trial in which both sides had the opportunity to present their evidence, the National Labor Rela- tions Board has found that we violated the law and has ordered us to post this notice and we intend to carry out the order of the Board -and abide by the following: The National Labor Relations Act gives you, as an employee, these rights: To engage in self-organization To form, join, help, or be helped by unions To bargain collectively through a representa- tive of your own choice To, act together with other -employees to bargain collectively, or for other mutual aid or protection and If you wish, not to do any of these things. , WE WILL respect, all of your rights under the National Labor Relations Act. WE WILL NOT, in violation of the National Labor Relations Act, question any employee about whether he or any other employee has joined or is thinking of joining a union, or,about what he or any other employee is doing or thinking of doing in the way of union activity. WE WILL NOT discharge, lay off, terminate, suspend, or take any other retaliatory or discrimi- natory action against any employee because he has joined or helped, or is thinking of joining or helping, or trying lawfully to get other employees' to join or help a union. WE WILL NOT, in violation of the National Labor RelationsAct, discourage membership in or giving help to or' taking help from Shopmen's Local Union No. 694 of the International Associa- tion of Bridge, Structural and Ornamental Iron ,Workers, AFL-CIO, or any, other labor organiza- tion of our employees or which our employees may wish to join or to help or take help from.- WE WILL NOT, in any other manner' interfere with, restrain, or coerce you in the exercise of your right to self-organization, to bargain collectively through representatives of your own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and' all such activities. WE WILL offer the'following persons immediate and `full reinstatement to their former jobs or, if those jobs'no longer exist, to substantially equiva- lent jobs, without prejudice to their seniority and other rights and privileges, and we will also pay them backpay, with interest, for any wages lost by them:- Kenneth R. Stuart, James E. Williams, James L. High, William E. Claborn, Douglas O'Neal Knight, Bill Wright,, and Charles (wall. We will pay to Joel` Allen Carlisle, to whom-we have already offered reinstatement, backpay with interest. All of you are free to join or not to join, to help or not to help, or to be helped or not to be helped by Shopmen's Local Union No. 694-of _the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, or any other union, as you see fit, without any interference, restraint, coercion, or retaliation from us. - L. B. FOSTER COMPANY (Employer) Dated By (Representative) - (Title) We will notify immediately the above-named individ- uals, if presently Serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service' Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the ,Board's Office, Dallas-Brazos Building, Fourth Floor, 1125 L. B. FOSTER COMPANY 321 Brazos Street, Houston, Texas 77002, Telephone 713-226-4296. TRIAL EXAMINER'S DECISION PRELIMINARY STATEMENT STANLEY N. OHLBAUM, Trial Examiner: This consolidat- ed proceeding 1 under the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., (Act) was tried before me in Houston, Texas, on January 12-13, 1971, with all parties participating throughout by counsel and afforded full opportunity to adduce testimonial and documentary proof, cross-examine, argue orally, propose findings and conclusions, and submit briefs. Subsequent to trial and after several extensions of time upon application of counsel, briefs were received on March 8, 1971, which, together with the record as made at the trial, have been carefully considered. The complaint alleges and the answer denies that Respondent,Employer violated Section 8(a)(1) and (3) of the Act through unlawful interrogatiom.-and discharge of employees for union-related activity (Case 23-CA-3734). Since the outcome of an October 16, 1970, Board- conducted union - representation election hinges upon resolution of some potentially related issues, that representa- tion case (Case 23-RC-3493) was consolidated for hearing with the foregoing complaint case, by December 4, 1970, order of the Regional Director, and transferred to and continued before the Board in accordance with applicable provisions of the Board's Rules and Regulations. The instant proceeding thus encompasses both of. those cases. Upon the, entire record2 and my observation of the testimonial demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. PARTIES; JURISDICTION At all material times, Respondent L. B. Foster Company, a Pennsylvania corporation with principal office in Pittsburgh in that State, has conducted and conducts business operations in various States, including Texas, where in the city of Houston and as part of its Houston Division it has maintained and maintains certain yards and ancillary facilities for the fabrication or processing, storage, and distribution of industrial pipe and related products. During the 12-month period immediately antedating issuance of the complaint, Respondent purchased and delivered or caused to be delivered to its said Houston facilities, directly in interstate commerce from places outside of Texas, goods and materials valued in excess of $50,000; during the same period, Respondent also sold and shipped, from its said Houston facilities directly in interstate commerce to customers outside of Texas, products valued in excess of $50,000. I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act; that the above Union (Charging Party) has at all times been and is a labor organization within the meaning of Section 2(5) of the Act; and that jurisdiction is properly asserted in this proceeding. II. ISSUES The following chronology shows the basis issues here for determination: Date (1970 ) 1 Event or Alleged Event Issue Aug. 14 Interrogation of employee by Supervisor Bush Aug. 18 Discharge of 8 employees Oct. 16 Act, § 8 (a) (1) 'violated? (Case 23-CA--3,734) Act, § 8(a)(3) & 8(a)(1) vio- lated? (Case 23--CA-3734) Board-conducted repre- Validity of 14 sentation election challenged bal- lots 4/ (Case 23--RC--3'493 1 In Case 23-CA-3734, the complaint of November 6, 1970, resulted from a charge filed on the previous August 20 . In Case 23-RC-3493, an election with uncertain outcome in view of 14 challenged ballots (sufficient to affect the result) was held under Board auspices on October 16, 1970; pursuant to the parties' stipulation for certification upon consent election approved by the Board's Regional Director for Region 23 on the previous September 11. Hereafter, unless otherwise specified , all dates are in 1970. 2 Trial transcript as, corrected in respect to obvious and typographical errors listed in annexed "Appendix A." [Omitted from publication.] 3 Election conducted pursuant to Regional Director's September 1I approval of parties' stipulation for certification upon consent election. Election outcome: of 31 eligible voters, 5 ballots counted for and 6 against Union, with 14 challenged and sufficient to affect outcome. 4 Makeup of 14 challenged ballots: 6 are alleged discrihinatorily discharged employees, of 8 such involved in the unfair labor practices (i.e, "complaint") case here; 8 are challenged by Union as supervisors not included in proposed bargaining unit. 322, DECISIONS OF NATIONAL LABOR RELATIONS BOARD `III. ALLEGED UNFAIR LABOR PRACTICES themselves for collective action under the Act,8,T hereafter, Stuart and another new yard employee (Williams) met with a union representative at Stuart's home on August "5, and after discussion received union -membership application cards. On the following day (August 6), after contacting senior old yard employee Knight (who had worked there almost 20 years), five of the employees (Stuart, Williams, and High of the new yard, and Knight and Claborn of the old yard) met-at Williams'home, passed on the information received - from' the Union; discussed organizing,, and distributed union membership cards. Thereafter; the group openly proceeded to solicit other employees to join the Union .9 C. August 14: Alleged Unlawful Interrogation It is alleged and denied that on, August 14- Respondent through its supervisor, 'Donald Bush,1° interrogated an' employee iii violation'of Section 8(a)(1) of the Act. Williarii Claborn, the allegedobject of the interrogation, was then employed as a crane operator at the old yard; of which Bush' was office manager. Claborn testified that on that day; after shutting his rig down` and returning to the field office with leadman Billy Gates (who was returning his walkie-talkie there), office Manager Bu§h"asked Claborn in,-, the office, "what Union we were- trying to get in out here. And I [Claborn] told him [Bush] I didn't know anything about a Union." Bush then added, "Well, I hear you are ringleader of the bunch." - Claborn did not deny this or otherwise respond. `Since I was favorably impressed With, the testimonial demeanor of - Claborn, and Respondent without explana- tion failed ' ,to call either Bush or Gates, to controvert Claborn's testimony," I creditClaborn's described testimo- ny and find that Respondent through its supervisor Donald Bush interrogated its employee William Claborn on August 14 concerning -protected union activity, in violation of Section 8(a)(1) of the Act. D. August 18: Alleged Unlawful Discharge of Employees It is further alleged and denied that on August 18 Respondent discharged eight employees in violation of Section 8(a)(3) and (1) of the Act. The employees in question are Joe Carlisle, William Claborn, James High, Douglas Knight, Charles Qualls, Kenneth Stuart, James E. Williams, and Bill Wright. Three of the employees in question (Claborn, Knight, Laden, Jr; the Houston Division consists not only of the two yards in Houston, but also the Company's New Orleans operation, its Houston Pipe Coating Company (a wholly-owned subsidiary), its Lubbock plant and sales office, and its Latin American Division. S According to Stuart , "the only reason we wanted a Union over there" was the abusive or otherwise improper treatment being received at the hands of Respondent's Foreman Manning. Manning did not testify. 9 Stuart, for example, signed up at least two others, James and Brown, in addition to,-himself. 10 It will be recalled that. Bush is office manager of Respondent's Homestead Road (old) Yard under Don,Jones, superintendent of that yard I I I " I 11 Although 'Gates was called as a witness by the Union in connection with the representation case (infra) only, he was not called by Respondent and did not testify concerning the foregomg. Bush was not called to testify at all. A. Background Respondent, a- Pennsylvania corporation, engages at Houston, Texas, in fabricating or processing and distribut- ing industrial pipe and "related products (pile, Rail, and H- beams) at two separated yards-the only facilities involved in this'proceeding-known as (1) the Homestead Road Yard or old yard, consisting of some 20 acres and (2) the Langfield- Road Yard or new yard, consisting of 70 acres of which 35 are currently planned for development.'Essential- ly'the same kind of work is done in both yards,5 both yards being stilt in operation at the time of this hearing (January, 1971). Respondent does not engage in actual building or , construction work, but stores and furnishes industrial pipe utilized in that work. Such pipe may be as long as 40 feet and-as'-much as 30 inches in diameter. In. its operations, Respondent utilizes various heavy lifting and moving equipment-such as cranes, `drotts, and 'forklifts, requiring the' services-' off workcrews consisting of lifting-carrying equipment operators, riggers, and helpers .6 It also threads pipe, utilizing pipelhreading equipment and operators, and a ,welder or'welders; Central issues in this proceeding revolve around Respon- dent's 'admnitted' discharge on August' 18 of eight employees, three (Claborn;, Knight; and Carlisle) from its Homestead Road (old) yard and'five (Stuart, Williams, High, Wright, and Qualls) from its Langfield Road (new) yard. It will conduce to ,^understaiiding of matters to be desciili'e`d "to bear` in mind the persons comprising the managerial-supervisory hierarchy at Respondent's Houston Division: HOUSTON -DIVISION Head: C. R. Laden, Jr., vice president, in charge of Houston Division? Homestead (old) yard Superintendent : Don Jones O'ffice :manager: Donald Bush Pipe threadingdept. supervisor : Louis McAlister Langfield Road (new) yard Superintendent: Ralph Mullin '.- B.- August August 5-6: Commencement of Union Organizational Activity Around.August 5, Respondent's employees, through new yard employee, Stuart, established contact with and consulted a union official with a view toward organizing 5 As explained by old-yard crane operator Claborn, "in essence, it is the same type of work carried on at the two yards," although different equipment is utilizedand`waterwell and oilfield casing are handled only at the old .yard. Thus, "there are no pump columns at the old yard The 25-ton electric American "big rig" cranes utilized at the old yard are eight-wheeled and run on a railroad track, 'while the Pettibone carryhft or forklifts utilized at the new yard have four tires and run on the ground Although the loading (or unloading) operations would differ to an extent , depending upon which equipment was used, nevertheless "There ain't no way ... [to) operate, one-of,these yards without a crane operator." However, there is -no need for large crane equipment, but only for forklift equipment, at the new yard 6 The b of riggers and helpers, working with the lifting-carry ing' equipment operators, is to hook or otherwise secure and unhook or release material being moved by the lifting-carrying devices controlled by the operators. 7 As testified by Respondent's Vice President, Houston Division C. R L. B. FOSTER COMPANY 323 and Carlisle) were employed at Respondent's. Homestead Road (old) Yard and the remaining five (Stuart, Williams, High, Wright, and Qualls) at its Langfield Road (new) Yard. It is conceded 12 that Respondent received notification by mail on August 18 of the Board-scheduled union representa- tion election. On the same date (August 18), it concededly discharged the eight employees here in question. The circumstances of these discharges will now be considered separately under the eight employees involved, all of whom except Wright and Qualls testified as General Counsel's witnesses. 1. Kenneth R. Stuart It, will be recalled that Kenneth R. Stuart was the designee of his fellow-employees for making the initial contacts with the Union for organizational purposes. Stuart first entered Respondent's employ in 1964 and worked -therefor over 5 years until he left voluntarily. He reentered Respondent's employ around May 1970, as a drott 13 operator at the new yard. As has already been indicated, after meeting with and receiving union cards from a union representative at Stuart's home on August 5, the following day (August 6) Stuart and Williams contacted other employees and met with them-5 in all (Stuart, Williams and High of the new yard, and Knight and Claborn of the old yard)-at Williams' home. After discussing union organization, union membership cards were distributed dnot only for themselves but also for use in soliciting' other employees to join the Union. Solicitation of other employees was thereafter' carried on "openly," so that "everybody knew about it," including new yard Superintendent Mullin and Foreman Manning who were "around" while it was in process. At or around the same time, i.e., during the first week of August, a periodic meeting of all new yard employees was called by, new-yard Superintendent-Mullin, who discussed progress and among other things stated that "he [Mullin] knew we were short-handed and that ... he was going to set out and' hire more men." One of the men reminded Mullin that "he: was supposed to take-care of ... the insurance"; Mullin' announced a barbecue or beer party for August 14. Since one of the men was ill- on August 14, on that day (August 14, Friday) the party"was-postponed and took place after' work on the afternoon of the following day, Saturday, August 15. At the party (August 15), Mullin remarked to Stuart, "Ken [Stuart], you are due a raise. Your ninety days 14 are up and you have been doing a good job and if you will remind me, Monday morning [i.e., August 17 ], we will go over your record§ and I will see you get the raise." Stuart did not have the opportunity to see Mullin on the 1? Testimony of Respondent's Vice President Laden on cross- examination, , 13 The drott is a self-propelled cranelike machine, mounted on wheels, used to pick up and move, and also to load and unload , steel (such as pipes, beams, rail, and piles) into and from trucks and freight cars. 14 The 90 ' days apparently ' referred - to a pay-increase period since, according to uncontroverted testimony of Stuart , the initial probationary period was only 30 days and he was so informed by Superintendent Mullin when he reentered Respondent's employ around May 1970. 15 Although Mu" ultimately denied making ' this particular remark (i.e., about Mulim's being "next"), Mullin-a somewhat evasive witness following Monday (August 17) since Mullin was gone most of the day. On the next day, August 18 (Tuesday), Stuart was summoned by Foreman Manning into the office of new yard Superintendent Mullin, who abruptly fired him. Stuart had had no prior intimation that he was to be discharged, except that about a half-hour earlier he had received a telephone call from his brother-in-law Claborn, a crane operator at the old yard, who had alerted him that "Mullins just left here. He fired all of us. He found a union card here yesterday and he said he was on his way over there to get the rest of you. And you all will-be fired .... all you who signed union cards." Stuart relayed this message to some of his new yard fellow-employees. Stuart's termination by new yard Superintendent Mullin on August 18 took place in Mullin's office in the presence of Foreman Manning. As ,credibly. described -by Stuart;' "He [Mullin] told me to sit down. He wouldn't ever look at me in the eye, but he kept, looking at the- floor. He said, `Ken [Stuart ], I know I promised` you a raise; -and due to the economic situation here, things are slack, and I am going to have to let you go.' He said, I don't know if it's your, fault or what it is-' He wouldn't look at me, -he just kept looking- at-the floor. He said, `I don't know if it was your fault or not, but I have to do what I am told ... or I am going to be next.15 So I am going to have to terminate you.'" There was no mention of any possibility of Stuart's being recalled to Respondent's employ at any time 16 -- " ` - Stuart, strongly corroborated by other witnesses, testified that work at the new yard was not slack at the time he was discharged. He had at'no time in August experienced any lack- of work there; indeed, he, had been "working Saturdays,' acid lots of overtime" including overtime- the week before and the very week when fired.17 Even though he had worked overtime on Saturday, August 15 and a 12- hour day on Monday; August 17, there -remained -on the latter day some eight or nine gondola freight cars' awaiting unloading at the new yard., Normally, it would require-2-3 hours or longer for the drott operator and crew to unload each rail car, by -the track, not to speak _ of moving the unloaded Pipe or rail from that point. At the time here in question, there was only one drott machine at the new yard. There were also two Pettibone forklifts,' also used '-for unloading freight cars, and one Pettibone "cherry -picker" machine, not used for unloading freight cars, but principal- ly. for moving pipe or pile. Stuart was the only operator actually operating the drott machine at the time, although others there were also qualified to do so. There was one operator for each of the Pettibone forklifts--Williams and Davenport. Stuart testified credibly, and with-, credible corroboration and no established contradiction, that during his 6 years of employment with Respondent, there was no previous case of "anybody-laid-off for lack of work," even given, to what impressed me as excessive testimonial equivocation-had -at first testified that he was without "recollection " of it,. 16 The foregoing is based on, credited testimony of Stuart, who impressed me as a truthful witness, corroborated in part by other credited employee witnesses. 17 The , regular work week was, 40 hours, 8 a.m.-5 - p.m. weekdays Monday through Friday. Stuart and others had worked overtime on Saturday, August 15, as well as on Monday, August 17, when the workday was 12 hours long. The August 17 overtime was-apparently required so as to avoid payment of demurrage on gondola rail cars -awaiting unloading. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when, at times in` the old yard, there was nothing to do; at those times, while awaiting shipments on which to work, the men would keep busy policing up the yard. - - Further; according to Stuart-corroborated by others and even conceded by Respondent-on Friday, August,14 or Monday,- August 17, two new men were hired at the new yard: one commenced working there on Monday, August 17, and the other on Tuesday, August 18, the day Stuart and his 4 fellow-employees who had attended the, described union -organizational meetings at Stuart's and Williams' homes were discharged.ts- With regard to the foregoing, Respondent's new yard Superintendent Mullin testified that he not only told Stuart that- he was being terminated'foreconomic reasons but also because of "minor problems. we had had in relation to the drott experiences,.... warnings. ",Observing Mullin while so testifying, and in the frame of the-entire case, I do not believe that any lack of efficiency on Stuart's part i the operation of':the drott machine played; any role in his discharge, and I do not believe that Mullin toldhim-that, it did. On „cross-examination, Mullin conceded that at the Company barbecue on the Saturday afternoon (August 15) preceding Stuart's discharge, Mullin ,had' told Stuart yhe "would get a review [for a periodic raise] on, Monday, August 17." It is to be., noted that ,this was after Mullin, according-Jo-his own story, had already been instructed by his superior, Company Vice, President for Houston Division Laden, on ;the_,previous day (Friday, August 14),to effect a layoff.. Mullin's belabored and, unconvincing explanation for this is that he "did not interpret the urgency" of:Laden's instructions on, August 14, and that, therefore when,he (Mullin) "spoke to- Stuart at the barbeque [on August 15 ] with regard to' the, review that he [Stuart 1,, was due [on Monday, ,August,171, with regard to whether he would get a raise- or, not," Mullin at that time {i.e., August 15) did not "contemplate that Stuart might-.be included in the cutback [of August 17-181." It hardly seems, likely that (1),Mullin was dissatisfied with the performance of Stuart-or that (2) Mullin would tell Stuart on ,Saturday that he would be up for a raise on Monday,, if Mullin knew on Friday that Stuart would or might , be discharged . on Tuesday. , Mullin , conceded, finally, that after hep terminated Stuart on August 18,_he . assigned Davenport,.a new employee,"^,to operate the drott in place of Stuart. i9 2. James._E. Williams James, E. Williams, who with Stuart was a guiding leader in the employees' attempt, at union- affiliation in August, was likewise summarily discharged by new yard,Superin- tendent Mullin on August 18. He had, at that time,been in Respondent's employ continuously for over, 7_ years, since',' March, 1963. At the time of his August discharge, he was a Pettibone forklift operator at the new yard, to, which he had been transferred around April or May from thepld yard, where he had been a crane operator.zo 18 Stuart testified he was so informed by Foreman Manning, who'was unexplainedly not produced to controvert this. As will be shown , the hiring of these two new -employees on Augusts 14' is conceded by new yard Superintendent Mullin. 1e Although Davenport was allegedly hired on March 27, he had been operating one of the, two Pettibone forklifts at the new yard. But Williams, Williams, a straightforward witness, credibly corroborat- ed Stuart's testimony concerning, the ;employees' union organizational endeavors in August preceding their dis- charge. It was Williams who contacted old yard employee, Knight to arrange for old yard employees' attendance at the August 6 union organizational meeting in Williams' home. He -also arranged to have new yard employee High, who is Williams' brother-in-law, there. Williams also corroborated Stuart's account regarding. Mullin's meeting with the new yard employees in August, Williams having been the person who, raised the query regarding insurance. Williams also recalled that, specifical- ly, Mullin there "talked about hiring some more men. He [Mullin] said he was going to get Ernie [a.helper ] . . . to put a sign out in front so they could hire some more men." Indeed, shortly- prior thereto, around July, Williams had spoken to the yard, superintendent about the job for Williams' brother-in-law. High. The superintendent had-, then also informed him that "they were needing some men ... they weren't going to send any men to the new, yard, they said they had sent all they could and they were going to have to hire some new men." It was thereupon that High applied for a job (in July) and was hired. Williams also, as Stuart, had worked overtime not only, on Saturday, August 15, but also on Monday, August X17, the day, before he and his associates were `summarily' discharged without notice. Williams' first intimation that-he would' or might be fired was on Tuesday-morning, August 18, when Stuart "came by and told me his brother-in-law [Le.,' Gaborn ] called and said; Mr. Mullinr was on his, way over to fire us," Soon thereafter, old yard Superintendent Mullin and Foreman Manning arrived. After Stuart had been called into and left old yard Superintendent Mullin's office, it was Williams' ; turn. In Mullin's office, with Foreman, Maanning.,there (as in Stuart's case), Mullin stated, that "On account of the economical expenses they were going-to have to let us off.-And.that he [Mullin] thought when I [Williams] went towork for the company that I-was going- to be a ball of fire ' for the company,,'that they had planned for me. He said they just hadn't worked, out that way. He, said he didn't know whether he was right in doing what, he was doing, but he had, to do, it. "He ,said he was going, to have to terminate, me." As in Stuart' s case, there was no mention of. the possibility of return or recall, nor anything about alternative or,'otherjobs. , The testimony of Williams;also, as well as that of Stuart and the other employees, shows, that not only was there no indication, of any economic or work problem prior to their precipitate discharge on August 18 following their, unioni zation, activities, but that, , on the contrary, Mullin had stated to, the employees at his , meeting with them shortly prior thereto earlier in August, that moremen were needed and would be hired. Relative ' to ' the foregoing, Respondent's new yard Superintendent Mullin again attempted, unconvincingly as in the case' o _SStuart, to indicate that"when he,discharged who (as will be shown) also figured in the August 18 discharges, after over 7years of continuous employment since March 1963, was the operator of the only other ,Pettibone forklift at the new yard. ' 20 The crane which Williams had operated at the old yard runs on railroad track. The Pettibone' forklift or carry=lift is also used to load and unload freight cars and trucks , as well as for general heavy yard,haulage. L. B. FOSTER COMPANY 325 Williams on August 18, he mentioned not only the alleged "economic" basis but also that Williams' work performance was not up to par. (Manning was not called to testify.) Based in part on testimonial demeanor as observed, I utterly reject this alleged justification as being the real reason. Williams had worked-steadily for Respondent-since March, 1963, a :period of over 7 years. According to Mullin, he told Williams on August 18 that although Williams "came in extremely strong" and that Mullin "literally thought he would be one of our best operators," he had "suddenly deteriorated to where he was not doing his job at all." The nature of this alleged sudden deterioration is undescribed and, unestablished. Asked whether he had ever previously mentioned-this to • Williams, Mullin's _response was, "We had general discussions, sir, not specific at all." According to Mullin, after he thus fired Williams on August 18, under the circumstances indicated, he assigned one Chenoweth=an "expediter" in the office, who had been hired in 1970-to operate the Pettibone- forklift in Williams' place. However, Mullin conceded that Chenow- eth was returned to his office job around November 1 when it was found he was needed there; and that somebody else (Morgan) is now operating the Pettibone forklift from which Williams was removed.- 3. James L. High James L. High had worked for Respondent on two occasions prior to early July, when, as has already been indicated, his brother-in-law Williams was instrumental in securing a job for him at the new yard, where he became a rigger on ' Stuar-t's drott machine crew. As Will also be recalled, he was among the five who attended the Union organizational meeting at Williams ' home in August which preceded the discharge of all five. As Stuart and' Williams , High also worked overtime on both Saturday, August 15 and Monday, August 17. As Stuart and Williams, High, likewise an impressively truthful witness, convincingly testified that at the time of his discharge not only was'there no shortage of work but a superabundance with a shortage of men-in High's word's, "I was doing the work of two men." This work consisted not only of handling items from the old yard but also of unloading merchandise coming in from ships, as well as unloading and loading inbound and outbound trucks. As in ' the cases of Stuart and Williams, , High's first intimation that he was to be discharged , notwithstanding all of the usual work on hand, came on the morning of-August 19 when Stuart alerted him to the information just received fromClaborn of the old yard ,that Mullin[ was on his way over to fire the ' employees. at the new yard. Thereafter, Mullin told him also that "on account of economics he [Mullin ] was going to have to terminate me [High] . I asked him was it my work, and he -said no it wasn tt " 21 Concerning High, Mullin testified that he was only a 21 High admitted that Mullin made mention to him about "maintain[ing] proper safety precautions." I find that this was not the reason for High's discharge; nor was it claimed, or established that it was. 22 High is the only one of the dischargees here in question who was not a crane or other machine operator 23 The latter episode, undisputed by Mahan, is not charged in the "probationary employee, just a general helper," which is "pretty much" only -a "common laborer."22 However, Mullin conceded that although High was discharged as such on August 18, Mullin, had put two, new,general laborers to work on August 17. I do not credit Mullin's testimony that in addition to "general economic factors" he was not "completely satisfied" with High's work perform- ance, no persuasive or specific evidentiary showing in that regard having been made. - 4. William Claborn William Claborn, like High, had also worked for Respondent- on two occasions (originally as „ a pipe- threadiing ,machine operator and each time as_ a; Ieadman) prior to= his latest hire 3 or, 4, years ago, when (while elsewhere employed) he accepted an invitation from Respondent (who contacted him)•to return to its employ, as a leadman or crane-, operator at the,old yard. -He there operated a 25-ton electric American crane, a large rig with railroad track wheels running on,railroad trackage, with a 45-foot boom, used to unload pipe, piling, and rail from freight cars. Claborn,, a plain-speaking and .highly credible witness, explainedthat-the old yard also has, in addition to cranes of that variety, a-smaller railroad-track crane known as a "Brown Horse." There were-two crane operators at the old yard-Claborn and Knight.°(Claborn's brother Everett Claborn, a -maintenanceman at'the old yard, was also able to operate these crazies and -"did - so when either of the regular crane operators was absent.) Claborn explained that for 4 or 5 years there has also been a night shift in operation at the old. ,yard, where the men, working in crews, are dispersed as required--over the old yard acreage( an expanse, as indicated above, of some 20 acres). Claborn has also operated rigs at the new yard. ' As will be recalled, Claborn was one of the five employees who attended and engaged in union organiza- tional discussions at Williams' home in early August. And, as has been shown and found, it, was Claborn who- was interrogated by old yard Office Manager Bush on August 14 concerning those activities. On the same day (August 14),: Leo Mahan, from whom Claborn 'took.- all orders," also asked Claborn in the field-house, "Bill [Claborn], what Union are you trying to get in this yard?".23 On Tuesday, August 18, after -working overtime on Monday, August 17, as well as on Saturday, August. 15, Claborn reported to work as usual. As he was readying himself for operations and had lowered and raised the boom 'of his rig,• he and the other old yard employees were summoned to the dressing, room to, see Mullin -(the Superintendent of the _ new yard). There, with himself (Claborn) and his fellow-crane operator Knight, -as -well as fellow employees Carlisle (a slotting machine operator at complaint as unlawful interrogation . It bears, however, on' Respondent's denial of knowledge of union activity, discussed infra as well as its true motive in discharging Claborn. 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the old Yard)' and several others including two pipethread- ing,(oilfield casing)' machine -operators24 who had'been "just-,hired, as -well. as old yard Office Manager Bush25 Mullin statedthat he "hated to do it, he [Mullin] said that thework was slack and I [Claborn] knew it-wasn't because I had loaded out twelve trucks the day before and I had turned some trucks away." As in the case of the other employees who credibly testified to- the same effect, Claborn also had not experienced any work slackness; indeed, work was so plentiful that "for a long time" he and the other crane operator,, Knight, had been taking only 15 minutes for lunch-"we were running as hard as we could, loading trucks .... We would take pipe off the truck, put pipe on the truck, take pipe-off the threading rack, load the threading rack up, unload cars, come back to the truck; and it kept us busy switching back and forth all the time." " As other employees who testified credibly to the same effect, in all of his past experience with Respondent, Claborn had never` seen.a man laid,off there, even during a slack period (in'the distant,past), at which-time the employees policed up the 20=acre yard. - - ` At the August 18,-discharge-session, after Mullin-said, "I hate to do this ..: [I have] to let [you] gg, there [isn't I no work," according to Claborn, Knight remarked, ""I have been here nineteen and,a half years. I can run any kind,of rig you've got." Mullin, however, replied, "I can't help that. I still, have, to let you ga." Thereupon Claborn or- Knight said to Mullin, "Why don't you quit your, lying and tell us the truth that we are fired?" Mullin said, "That is what it boils down to, you are fired." When, as will be shown in connection with, the discharge of employee Knight, infra, Knight asked whether it was their union card signing activity that had cost the discharged, employees their" jobs and Mullin" denied - any knowledge of it, Claborn called Mullin a "lying son of a bitch." " In response to a question about the employees in the other (i.e., new) yard, Mullin said, "I am going over there when F leave here." Claborn thereupon- called' his brother-in-law Stuart, the drott operator at the .new yard, and informed him of what had happened and that Mullin was on'his way over there. Claborn corroborated other testimony that there' has been a nightshift as well as dayshiftat the "Old" yard for 4 or 5 years. Claborn's testimony is undisputed, and credited, that as of the time, of the instant hearing (January, 1971) the, "Old" yard is still in operation- "I [Claborn],went by there just last, about a week ago, and they had twenty-nine cars of pipe in the yard to unload They had two rigs [i.e., cranes ] in the yard to unload them .... [I saw people working there ] running the rigs in that yard." -Testifying regarding the foregoing. as Respondent's witness, ,, its new yard Superintendent Mullin stated that at 2i These operators threaded pipes on both ends by machine and affixed a collar.`There were two or' three shifts of employees doing this. The two men indicated above had been hired in addition to the other employees already employed there. ' 25 Bush "takes ... John's [i.e., "Old " Yard Superintendent Jones] place ,when±he leaves the yard. You can get orders from him." Claborn had seen Bush, give orders to employees, as well as hire employees. Claborn himself has taken orders from Bush. The foregoing is undisputed by Bush. 213 Some 2 or 3 months after his August 18 discharge and subsequent to the filing of the charge herein, Claborn, who had been receiving $4.05 per hour, received an offer of a job from Respondent as a "trainee" at $2.20 the August - 18 - termination episode Claborn remarked, "This is all because of the Unio'n," to which, according to Mullin, he (Mullin) "thinks" heindicated that he "had no knowledge of it." Mullin also testified that after " he terminated Claborn on August 18 as a crane operatorin.the old yard; Everett Claborn-the maintenanceman in the old yard-was assigned to operate the crane there.26 5. Douglas O'Neal Knight Douglas O'Neal Knight had been continuously and uninterruptedly in Respondent's employ- since May 1951; over-19 years; when he was summarily discharged without notice on August 18, 1970, with the other employees who have been- mentioned. Except for old yard Superintendent Jones and' Office Manager Bush, Knight -exceeded all others at the old as well as, the new yard in seniority. Knight, who is 50, was the top seniority rank-and-fife employee of the entire described Houston operation. At his discharge on August 18, he was a crane operator of one of the locomotive cranes in the old yard. It will be recalled that Claborn operated the other.) Knight, an upstanding and most impressive witness whose testimony I fully credit, testified that after attending a union organizational meeting with fellow-employees at the home of new yard employee Williams on August 6, the following morning (i.e., August 7) Mahan (a supervisory employee of Respondent at its old yard) "asked , me [Knight] what kind of Union we was going to get in, Hoisting Engineers, and I told him I didn'tknow,anything about it." ?? - On August 18, as Knight was readying himself for his usual day's work, old yard Office Manager Bush instructed Knight's leadman, Quinn, to release all laborers, with 4 hours pay for the day. Bush then called the ,others, including Knight, to a meeting in the dressing,=room. Present were Knight, Claborn (the other crane operator), Carlisle (a slotting machine operator), and two- newly-hired pipethreader machine operators (Wright and Qualls)„ as well, as new yard Superintendent Mullin and - old yard Office Manager Bush, Mullin tersely announced that for economical reasons [you are] terminated." To' Knight's question, "You mean we are fired because we signed the Union card'' Mullin answered, "I don't "know anything about ',the Union card . " Knight replied, "Mr. Mullinyou are lying and you know it. That is the reason you are firing us, because we joined the'Union."28 Claborn then spoke up and a free-for-all discussion ensued.- - The foregoing occurred at around 8:30 a.m., on, as has been mentioned, August 18, a Tuesday, without any previous notice, and the indicated employees-all five who had attended the Union organizational meetings plus three per hour. Claborn did not take it. 27 While not charged in the complaint as unlawful, interrogation, this episode, as in the' case of employee Claborn ( supra,. fn. 23} is of significance in relation to Respondent's claim of unawareness of union activity, particularly in the light of Respondent's unexplained failure to call Mahan as a witness to deny or dispute it; and also as bearing on Respondent's true motive in discharging Knight. 2s' Although Mullin at first denied that Knight said this, be later' testified that he was unable , to "recall :. '. that exactly." I discredit'Mullut's denial as well as his allegedly faulty recollection L. B. FOSTER COMPANY 327 others-were then and there summarily discharged, with no mention of the possibility of recall, rehire, or transfer to other jobs. Respondent's workweek ends for pay purposes on Wednesday, with'payday on Friday. Testifying consistently with the other employee witnesses, Knight testified credibly that he knows of no occasion in his 1-9 years of continuous employment with Respondent when Respondent laid anybody off for "lack of work," even when there was little to do-at such times, the employees would police and, clean up the yard (20 acres) and collect and organize scrap materials. Also consistently with the other employees, Knight confirmed that at the time of his discharge on August 18 the workload was indistinguishable from that on the day " before, when there was, as usual, a "pretty full schedule." Concerning the foregoing, Respondent's new yard Superintendent Mullin testified that after he had dis- charged Knight on August 18 he assigned Travis Quinn-who, it elsewhere appears (infra), describes himself as "Leadman on Track 3" and had been in Respondent's employ for only 4 years as distinguished from Knight's 19 years-to operate Knight's crane. Mullin's explanation for terminating Knight-an employee of 19 years' standing with the Company-rather than Quinn .(who there is no indication had engaged in any union organizational activity) is, in Mullin's terse way of. putting it, simply that "Mr. Quinn fit very strongly into our long-range plans, and I am afraid that Mr. Knight didn't fit,into the long-range plans," adding that "there is quite a, difference in salary too." However, Mullin later conceded that Everett Claborn, the former maintenanceman who is now operating one of the cranes at the old yard, receives around $4.50 per hour-which is more than Knight's $4.05 per hour. Mullin additionally claims that prior to his discharge Knight had worked a few Saturdays at the new yard and was unable because of his size (he is around 6'S" or 6'6" and weighs 275 pounds) as well as a "knee problem" to operate the Pettibone forklift. Knight concedes that he encountered some difficulty in , operating the Pettibone at that time because of a postsurgical knee condition, but that he had no such difficulty with the drott, which he can operate without problems of any kind. As to this, Mullin conceded that Knight is indeed capable of operating the drott, but claims that the drott was or is not operated "on a full-time basis." Mullin further concedes that Knight "express[ed] an interest in operating the drott machine," but that the reason he was not permitted to do so was that the Company "did not [have an interest in Knight's doing so] at'that time." Knight persuasively swore that he had been assured by "Old" Yard Superintendent Jones earlier during the summer of 1970 that the "Old" yard employees were to be "transferred"" to the new yard with their seniority "the same as we had over here" (i.e., at the old yard). It is to be noted that the foregoing is uncontroverted by Superintendent Jones, who without explanation was not produced to testify. And on cross-examination the concession was elicited from Mullin that he, too, had told "Knight sometime around June or July of 1970, that all the employees- at the old yard were being transferred to the new yard," this being "the intent " Finally, Mullin also conceded that as of the date of the instant hearing (mid-January, 1971), both locomotive cranes at the old yard-which had been operated by Knight and Claborn-are still in operation there, one by Everett Claborn (at the rate of pay higher than that of Knight) and the other by Travis Quinn.29 6. Joel ("Joe") Allen Carlisle With the assistance of his, uncle Knight (Respondent's former crane operator just discussed), Joel Carlisle obtained employment with Respondent on May 4,1970, at its old yard. Although on starting he merely assisted maintenanceman Everett Claborn, when thereafter Res- pondent completed the setting up of its newly acquired slotting machine, Carlisle became Respondent's only slotting machine operator or machinist at the old yard. The slotting machine makes slots in 40- or 44-foot, 16-inch diameter pipe used such as for water wells and water screens, the slots serving to filter incoming water. At that time, work of this type was being done exclusively'at the old yard, the Company's only slotting equipment being then located there. To Carlisle's knowledge,, the pipes he slotted were not transferred or conveyed from the old to the new yard, but were either stored at the old yard or shipped from the old yard to Respondent's plant or facility in Lubbock, whence sold and shipped elsewhere as slotted pipe: Carlisle was included in the described summary group discharge of August 18, along with his uncle Knight. Carlisle concedes that he attended no Union or other organizational-meeting, signed no union card, solicited no employee to affiliate with the Union, and in no way participated in any union or organizational activity.3 , Carlisle also concedes that in early July he had informed old yard Superintendent Jones that -he had applied for another job elsewhere. Carlisle further concedes that a few days after his August 18 discharge, he was offered-a job by Respondent's. old yard Office Manager Bush at,the same rate of pay he had been receiving (i.e., $2.55 per hour), but without seniority "benefits," as a pipethreading machine operator. This offer was received from Bush by telephone, and Carlisle told Bush he would let him know on the following day. When Carlisle spoke' to Bush the next day, Carlisle asked Bush about the "benefits" again, and this time Bush indicated that his seniority would be preserved. Carlisle 'again told Bush he would let him know. That same night-still during the same week he was discharged in August--Carlisle "told him [Sushi I [Carlisle] didn't believe I would be interested in the job because I had found a job with better benefits." Carlisle's employment is as an electrician apprentice. Mullin testified-that Carlisle was terminated because he had indicated that he had applied for other work and was waiting to be placed elsewhere as an apprentice electrician. However, with regard to the slotting machine which 29 As did Claborn (fn. 26, supra ), several months after his August 18 discharge and subsequent to the filing of the-charge herein Knight received a job offer from Respondent as a pipethreader "trainee" at $2.20 per hour. Knight, who after over A9 years of continuous employment with Respondent had been- receiving $4.05 per hour, did not respond to this offer. 30 Although he had on several occasions earlier in August been approached by Knight-and Claborn to sign a union card, as of the date of his discharge with 'the others on August 18 he had not yet decided whether to do so. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carlisle had been operating, Mullin testified that upon Carlisle's termination -employee Gates "should have, been" assigned to that machine if it was operating that day. 7. Bill Wright Bill Wright, a pipethreading machine operator at the old yard, who was included in the mass discharge of'August 18, did not testify. No proof has been adduced that he was in any way active or involved in union or other protected activity prior to his discharge. 8.' Charles Qualls Charles 'Qualls, likewise an old yard' pipethreadin9 machine operator who figured in the August 18 discharges, also did not testify; nor has any proof been adduced at he was in any way 'active or involved in union or' other protected activity prior to his discharge. Recapitulation To recapitulate, then, on August 18, a Tuesday and not a; payday or pay period ending date, without prior notifica- tion, Respondent summarily discharged eight of its employees. These included its only two, crane operators at its old yard (Knight, and Clabom), of whom one (Knight) had been in its employ continuously for over 19 years, and its only slotting machine operator (Carlisle),who was the nephew of, one of the crane :operators (Knight) who had gotten him this job, there; three employees at its new yard (Stuart, its only drott operator; Williams, one, of its two Pettibone forklift operators; and High, a general helper and the brother-inL-law of Williams, who bad gotten him his job there); and two pipethreading machine operators (Wright and Qualls) at -the old yard. All five employees who had shortly before, that in August commenced - engaging in union ; organizational' activity (Stuart,, Williams, High, Claborn, and Knight) were included in the summary discharge, which Respondent asserted was for. "economic" reasons. 'Respondent's .contentions in this regard will now be examined. Respondent's Contentions Respondent's principal, defense revolves around its contention that the discharges in question had no connection with, the employees' union organizational activities but were, on the contrary, "economically" motivated. Respondent sought to establish its defense through the testimony of, three of its officials-C.R. Laden 31 Laden testified that even though the two railroad cranes have been sold, one in "the latter part of August or the first part of September" and the other subsequently, they are still at the old yard and; "still in use there occasionally." Laden further testified ,that itis now planned to "rent a crane" for use as requited at the old yard. 32 Laden testified this is because a crane [i.e ., railroad crane at ,the' old yard] crew is five, whereas a Pettibone forklift crew [i.e., at the new yard] is only three. This, however, totally ignores (1) the number of Pettibone forklifts required, which may so far exceed the number of locomotive cranes that the resulting total crew personnel could outnumber the railroad crane crew personnel; (2) the comparative lifting capacity; speed, and, other characteristics, and capabilities of a single Pettibone forklift vis-a-vis a single railroad crane; (3) the existence of drott equipment at the new yard (its vice president, Houston Division), Kenneth L. Kilpa- trick (its regional comptroller and administrator), and Ralph J. Mullin (its,new yard superintendent). The testimony of Laden and Mullin relates to, two different facets of Respondent's "economic" defense. First, their testimony indicates that at some time well prior, to the August, 1,970 discharges here in issue-perhaps,as early as 1968 or 1969-Respondent decided to attempt to sell its old yard and to obtain a larger but less valuable property elsewhere. Accordingly, the new yard was acquired in mid- 1969. In connection with the foregoing, it is noteworthy that: (1) Although the old yard is around 20 acres, the new yard is 70 acres, of which 35 are presently planned' for development; (2) Notwithstanding, the August, 1970 group discharge, here in question, itis-conceded that as of the date of this hearing, - some 5 months later, the' old yard with its equipment (including the railroad cranes31 was, and presumably still is, -in operation, and 'inventories are still concededly maintained' there, with new employees having been hired 'to work there as well as in the new' yard; (3) Despite the far larger acreage of the new yard, Respon- dent's official Laden contends that fewer employees will be required there even at such time as it may wholly replace the old yard 32 ; Respondent's official Mullin,` however, who is the operational head ("Superintendent") of the new yard, concedes that "the totality of the work that was done at the old yard and the new yard, when those two were at peak operations, were ,approximately equivalent to that which is being done at the new yard at the present time ..." 33 -in other words, the totality of work output or production of both yards is unchanged, regardless of whether the work is done in both yards or, only in the new yard; and (4) The foregoing in no way accounts'for Respondent's discharge of its needed Pettibone forklift operator (Williams) and drott operator (Stuart) at its new yard. Further in, connection with Respondent's as yet unconsummated plan to dispose of its old,yard,'it is of interest to note that, when Laden was asked at `the instant hearing when the old :yard will be closed down, his answer (on direct examination)' was'that "it's problematical' as to when we can complete the final move-over and do all the things we intended to do.,'t`he easiest way to answer that is when we sell the old plant and get our money, from it,, then we can move." It is further of interest to note, in connection with Respondent's indica- tions that unlike its old ,yard it seems to 'have no need for railroad cranes or large rigs of similar capability at its new yard, that, new yard Superintendent Mullin was careful to testify, (also on direct examination) that there . are no such cranes at the new yard."now." 34 only; (4)' the total tonnage or quantity of work at each yard,' and the projected total tonnage ore quantity of,work at the new yard if and when it serves as Respondent's, only yard at Houston. 33 I.e "except for the [pipe ] threading operation ," -which still continues to be done exclusively at the old yard - 34 At one point''during' cross-examination, however, Mullin conceded that "a mobile crane" has been placed in operation in the new yard. Mullin likewise conceded that the moving of material in the yards , including the new yard, requires use of lifting and carrying equipment. It is clear that the nature of that equipment in turn depends upon -its capabilities in terms of the weight, configuration„and other characteristics of,the'loads to ,be lifted and moved. No showing was made by Respondent that the nature or characteristics of the materials and- products handled by it in its yards has L. B. FOSTER COMPANY 329 The second facet of Respondent's "economic" defense is independent of its alleged plan to dispose of or discontinue its old yard (it will be recalled that the first facet of Respondent's "economic" defense dealt with Respondent's plan, as yet 'uncorisummated, to close the old yard and shift operations from there to the new yard); it is to be found in dovetailing testimony of - Laden and Mullin allegedly accounting for the summary nature of the group discharges on August 18. According to Laden, for "economic" reasons he ordered Mullin to effect a layoff, without specifying names, on August 18; according to Mullin, he carried out those orders. To begin with, it is clear that neither Laden's assertion that he gave the order for "economic" reasons nor Mullin's assertion that he carried out the order establishes that the discharges were in fact for "economic" reasons, that being no more than Respondent's own conclusionary claim and defense here. A defense is not established through its mere assertion. It is accordingly necessary to analyze Respondent's contentions in this regard. Laden starts out with the broad assertion that 1970 was generally a poor,year in the steel industry. He then points to some other isolated "layoffs" by 'Respondent at other locations.35 He indicates that Respondent's own sales have allegedly fallen off' while, its expenses have increased. Asked, however, to produce Company records or factual data showing actual tonnages of merchandise processed through the yards here in question-since it is presumable these which would afford a clue as to the work levels for the employees here in question 36 -Laden indicated he had no such figures with him at the hearing, although they were available. In justification of the summary nature of the discharges on August 18, Laden offered a memorandum (Resp. Exh. 3- Id., hereby- received) from Company President Milton Porter, which Laden .states required the retrenchments in question. It is to be noted that the memorandum is undated. Laden, however, claims he received it "to the best of my recollection; during May-[19701." Although it seems strange that a: memorandum of such importance in an organization of such, size would bear no transmission or receipt date, nevertheless, accepting Laden's testimony of its receipt date characteristics of the - materials, and products handled by it in its yards has in any way changed. .`is Thus; Laden cites 'the termination of a salesman at Lubbock, under undisclosed_ 'circumstances, not, to be "replaced . . . at this time"; the reduction of its "workforce" from 21 in July to 1.9 in August at a nearby wholly-owned subsidiary, also with the circumstances of the alleged reduction, as well as the nature of the "workforce" (e.g., casual laborers?) undisclosed; the ' "release" - of a sales engineer in September; and the "release" of a file clerk at an -unspecified date under undisclosed circumstances. These alleged incidents, even if true, hardly establish that Respondent's summary discharge of the five employees here under the circumstances shown was not because of their immediately antecedent union organizational activity. 36, It is to be noted that, with a single exception (High), all of the employees here in question who were terminated on August 18 were lifting- carrying or other equipment operators, as distinguished from general' or casual laborers. As shown by the testimony of various witnesses, including new;yard Superintendent Mullin , most of the employees in the yards (old and new) consisted of general or casual laborers , who were, assigned to work ,crews related to the lifting-'carrying equipment . The supply of these general or casual laborers was readily expanded or contracted as the volume of work (e.g., 'unloading incoming `ships, freight cars; Or, trucks) required. Mullin described the bulk of the help at the yards as "just general labor, basically" or "labor pool ... temporary help." In supervisory as true, Laden was asked why he delayed until mid-August, some 3-1/2 months, to effectuate it if indeed it related to such employees, as those here in question.' Laden's somewhat incomprehensible words of explanation were, "We had probably, our particular move down here brought up a rear in the overall action-which started.the overall, action." He then added that a heart attack in the "latter part of May" kept him from the office until after July 4. Laden was asked on cross-examination what prompted him to the precipitate discharge action on August 18-the very day he received notification of the union representation election to be conducted under Board' auspices. His explanation was, "numerous phone calls, perhaps three or four times a week," from the president of the Company. Asked thereupon why -he did not so testify on direct examination, Laden's explanation was, "Because I didn't, think it was relevant." Before leaving this particular aspect of Respondent's "economic" defense,,it is to be noted that the allegedly undated memorandum-in question, from the company president at its Pittsburgh home office, in .any event refers only to "a sizeable -cut in our Headquarters staff," as to which it further indicates that "many of these people can transfer to openings in the region." (Emphasis supplied.) Laden further avers that what he calls the mid-August "layoff" decision-but' what Mullin, who executed Laden's order, concedes was an action with no contemplation ever to recall any of the particular employees here involved 37 -was reached by him and , his immediate superior Anderson38 after reviewing the July figures at "the end of the second week in August." (More will be said -directly concerning those "July figures," in connection with the testimony of Respondent's witness Kilpatrick, its regional comptroller and administrator, infra.) According to Laden, he thereupon on August- 14 (Friday) instructed new yard Superintendent Mullin to decide between himself (i.e., Mullin) and old yard Superintendent Jones (then on vacation) whom to weed out 39 Laden's testimony (as well as that of Mullin) shows that both the old and the new Yards are still in active operation, with replacement and added employees. As testified by employee Mahan's words, "We get new ones every day ... from the Labor Pool"; according to supervisory employee Quinn, "You didn't know from day to day who was going to be there." However, the same cannot be said for the permanent or regular cadre of lifting-carrying equipment operators, unless yard operations were to be brought to a standstill, which they concededly have not been. 37 It will be recalled that nevertheless some of the dismissed employees here were subsequently offered "reinstatement' in otherjobs. Queried as to why (particularly in view of Mullin's testimony-which I have unequivocally rejected-that some of them were "unsatisfactory'.'.). Mullin's response was, "I was not consulted . . _ . But this is in the old yard, sir. I am not responsible over there." (It will nevertheless be recalled that it was Mullin who effected the August 18 discharges in the old yard.) Mullin finally blurted out, "Well, sir, I only go by the rules given to me: I'm sorry I don't make them:' 38 Anderson is Respondent's vice president and regional manager, and a member of its board of directors. His office adjoins that of Laden. He did not testify. 39 Contrary to Laden's testimony, Mullin swore that he and Laden "discussed names" of employees to be laid off, but not 'in detail." Lest this be considered an inadvertence on Mullin's part, Mullin thereafter reiterated-contrary to Laden-that he (Mullin) "mentioned -names to him [i.e., Laden] on Friday [August 14]." 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laden, "We have changed our classifications and retained our method of handling, but the crane operator is now a fork-lift operator, what was a rigger is now a : . .-material man." According to Laden , two "fork-lift, operators" have been hired since the termination of , the two "crane operators" and others on August 18; and new hires have been for the new yard, except for pipethreaders, for whom "we ... still have need" at the old yard "at this time" (i.e., January 12, 1971). Laden conceded that as many as eight new employees were hired by Respondent in August-"We were on a construction program in the yard"; and that his "best estimate" was that seven new employees were hired at both yards in September-i.e., shortly after the termina- tions here in question; the foregoing being exclusive of new employees hired in June and July . From the trial transcript (pp. 205-207): TRIAL EXAMINER: I understood you to testify awhile ago that of the eight released on August -18 of 1970, two were recalled in- the capacity of threaders in- the old yard., ' J THE WITNESS [Laden] : Yes, sir. TRIAL EXAMINER: That.would leave six of the eight. THE WITNESS: That's right. TRIAL EXAMINER : And one or two fork-lift operators have been hired since August 18 of 1970 in the new yard ,in the classification of fork-lift operators as distin- guished from what you call the old classification of crane operators? THE WITNESS : That's correct. TRIAL EXAMINER: That reduces the six-to five or four? THE WITNESS: Yes. TRIAL EXAMINER: And further, since August 18 of 1970, two or three were hired in a -new classification called material man: as distinguished from the old classification called rigger, and also for the new yard? THE WITNESS: That's right. TRIAL EXAMINER: That would be a total of either five to seven, is that correct? THE WITNESS : I don't see your notes. , ,TRIAL EXAMINER: No, you ,don't have to look at my notes. One or two, for-k-lift operators, two or three material men, that's three to five . The two threaders increases the three to five 'to seven. THE WITNESS : It has nothing to do with rates of the ones we hired,,of those we reduced. , TRIAL EXAMINER : Are certain types of material still being received in the old yard which are being removed by the old locomotive crane? THE, WITNESS : , Material to be threaded in the threading machine. TRIAL EXAMINER: That is true even today? THE WITNESS: Yes. TRIAL EXAMINER: How' do you propose to do that work when the delivery of these cranes are made tothe purchasers? - THE WITNESS: `We will rent a crane . Our intent has been to move the machines over. ' ; Q. (by Mr. Wheat) Are you going to rent a locomotive crane? -A. A. No. ' We are goingato rent fork-lifts and we have one 15-ton Brown Hoist. Q. In addition to the Brown Hoist you are going to use rented apparatus in order to be able to continue to thread the pipe at the old yard? A. That's right. And we have surplus equipment at our Houston Pipe Coating that is owned by us, and idle a considerable time which can be used. Laden conceded that he knows of no previous occasion during his 20 years with Respondent when eight employees were simultaneously terminated in midweek or mid-pay period. He admitted that overtime was "worked immediate- ly, -prior to , the separations of the 18th," with no discontinuance of that policy . In Laden's words, "if you have a ship in, when you have a ship come into the dock and unload carloads by a hundred or so, you have to have overtime." Indeed, Laden acknowledged that even "immediately before the discharges" Respondent, had encountered such "difficulty in getting incoming shipments unloaded" that it "had steel in alternate storage in several places in the city" and that it "incur[red considerable ] additional expense in the terms of fines or storage fees because of this difficulty in getting shipments unloaded." He further conceded that even as of the date of the instant hearing (January 12, 1971); shipments "at the oldyard., are unlaoded by locomotive crane," while "at the new yard they are operated by a drott machine and Pettibone fork- lift." Pointing out that "When you get a ship in,' there is a tremendous surge of inbound, tonnage," Laden acknowl- edged that this "can occur at any time,"-indeed that"It can occur tomorrow." As has-been indicated, Respondent's ' new yard Superin- tendent Mullin testified that he carried out 'Laden's instructions resulting- in the discharges here in question. Although , Mullin denies knowledge of the union activity or who° was involved in it, I reject his denials. As has, been shown,. -various supervisory personnel of Respondent (specifically Bush and Mahan) were aware of it and they have - not disputed that they interrogated some of the employees here discharged (Claborn and Knight) concern- ing it. It is not to be assumed that their knowledge was not transmitted, to their superiors ; rather, their knowledge will be imputed to Respondent . Texas Aluminum Company, Inc. v. N.L.R.B., 435 F.2d 917, 919 (C.A. 5); N.LR:B.- v. Transport Clearings, Inc., 3I1 F.2d 519, 523 (C ,A. 5). `Such knowledge on the part of the Employer may even' be circumstantially inferred. A., J. Krajewski- Manufacturing Co . "v. N.LRB., 413 F.2d 673, 676 (C.A. 1); N.LR.B. v. Mid State Sportswear,, Inc., 412 F.2d 537, 539 (C.A. 5); N L:R.B. v. Schill Steel Products, Inc., 340 F.2d 568, 572 (C.A. 5). It is, of interest in this connection, in view of Mullin's claim of lack of awareness in this area, that Laden `conceded' on cross-examination that around late July Mullin made known to him that "Mullin had a report there might :be [union ] activity in -one end or the other of the plant" Mullin himself stated, in his distinctive testimonial style, "I [Mullin] had knowledge of a little ruckus stirred up,,but actually, the word 'union,' no. The comment was made to me somewhere that I better be careful that the people` were stirring up a little bit of a ruckus and'ifI wasn't careful the latter part of July, they would stir up a ruckus Somebody in' the new yard [told me that]." Much later in his testimonial performance, during -cross-examination, L. B. FOSTER COMPANY 331 after again specifically denying he had "any knowledge there was any union activity," Mullin acknowledged that he did have "general indications they were threatening to organize back in July," -one of the employees having "told" him so. And Mullin thereupon finally conceded that although he expressed no "particular" interest in this, nevertheless "I [Mullin] mentioned this to Mr. Laden." Pressed further on this, Mullin later added: "The general statement that was made was that something was going on. But specifically,, I_don't know these people well enough to know-what their thoughts are . . . . We were bound to have some each way. What the outcome would be, I would have no way of knowing, sir .... I know it's inevitable." Mullin's testimony shows that he hired two new employees on Friday, August 14, who started to work on Monday, August 17. Questioned as to why he hired them since the discharge of the others on August 18 was imminent-Mullin having received Laden's instructions to do so on August 14-Muffin's explanation was, "I was not aware of the urgency of the timing" for the discharges, and that economy was achieved by paying the new men less than the men being discharged. As to his "economy" reason, however, Mullin conceded that at the time he hired these two men he was unaware of ally "economy" drive and claimed that he was even unaware of any decision to discharge any employees. Mention has already been made of Muffin's attempts to suggest that some of the employees were discharged on August 18 for work inefficiency. I have rejected this as a credible basis for any of those discharges, and I again emphasize that rejection, based upon my adverse impres- sion of Mullin's testimonial demeanor, as well as his failure to establish such a contention by factual showing, and, finally, based upon his own admissions. Thus, for example, Mullin himself conceded on cross-examination that Stuart is a "qualified machine operator." 40 It impresses me as highly unlikely that if the work performance of these employees was significantly deficient, Respondent would have tolerated them in its employ as long as it did, or that it could not persuasively establish the same through records or other factual proof. I believe, rather, that Laden summed it up accurately in testifying that with the August 18 terminations "we lost some very good men." 40 After so testifying, Mullin later unconvincingly attempted to backtrack by stating that Stuart was only such during his initial 30 days of employment (i.e., April-May, 1970), but that "questionable areas" (Mullin's idiom) thereafter developed or became aggravated, including heedless driving and a tire blowout. (With regard to the latter, Mullin acknowledged that another employee who blew out a tire on the drott drew a mere reprimand, as did still another employee who blew out a tire on a Pettibone forklift. 41 According to supervisory employee Gates, in September-October there were 12-14 employees in the old yard. The figure of "40 or 45 People," supplied by supervisory employee Quinn as being in the old yard at that time, presumably includes casual laborers. 42 it is noted in passing, however, that when 1970 (Resp. Exh. 4) is compared to 1969 (Reap. Etch. 5)-when the employees here, or many of them, were also in Respondent's employ-the "actuai'<" as distinguished from the "planned," sales and rentals show a seemingly large increase in the "deal" sale category (2460.8 in 1970 as compared to only 872.4 in 1969), with somewhat of a drop in "stock" sales (3896.7 to 3264.1); and that it is perhaps only because the "planned" sales were seemingly so hugely overprotected (4496.4 in 1970 as compared to 3649 .1 in 1969) that the 1970 "variance" between "actual sales" and "planned sales" is seemingly so "unfavorable." Actually, these reports show that the total Mullin acknowledged that on the 2 days preceding the August 18 terminations, the discharged employees had worked overtime at both the old and the new yards. He claimed not to have the "slightest idea" as to whether-as credibly sworn by one of the employees-there were "any cars remaining to be unloaded at the premises of the old yard on August 18." Also acknowledging that at the time' of the discharges in question Respondent observed a seniority policy and that the old yard still continues in operation 5 months after those discharges, Mullin further conceded that of the 15 current new yard employees only 6 were working there on August 15. It follows that 9 of the 15 who are employed in the new yard now (i.e., at the time of the hearing of this case in mid-January, 1971), have either replaced others or have been added. Finally, Mullin concedes that "at the time 'these eight 'were being terminated" he was "in the process of hiring new employees," and that seven new employees were hired in September, 41 and he speaks of a buildback of manpower, in the fall of 1970 following on the heels of the discharges. - Respondent's Regional Comptroller and Administrator Kilpatrick identified certain of Respondent's business records, which were produced by Respondent in-an attempt to bolster its "economic-defense. To'the extent these may be considered to be potentially material, they will be briefly commented upon. Respondent produced its record of operating revenue and expense for the Houston District for July, as well as cumulatively from January through July, for the years 1970 and 1969 (Resp. Exhs. 4 and 5). These also show projected as well as actual sales for the same periods. Kilpatrick conceded that these do not show the amount of work on hand. It is clear that they do not in themselves account for Respondent's action taken on August 18 which is here in issue 42 There have also been produced comparative July 1970 and July 1969, and cumulative January 1-July 31, 1970 and 1969, summary reports for plant operations of Respon- dent's various plants including Houston, showing inbound and outbound carloads (Resp. Exhs. 6 and 7). These likewise do not in themselves account for Respondent's August 18 action here at issue.43 It is to be noted that, although available, Respondent has gross profit from sales in the comparative 1969 and 1970 periods covered (i.e., through July 31 of each year) was greater in 1970 (747.6) than in 1969 (702.9), and that the difference in "operating income" between those years (520.6 in 1970 as compared to 538.4 in 1969), off 17.8 in 1970, is more than doubly accompanied by the rise in "selling " (not manufacturing) expenses (201.0 in 1970 as compared to 159.2 in 1969), up 41.8 in 1970. (The figures referred to are in thousands of dollars .) The foregoing, which are Respondent's own data, compare 6-month periods of only 2 years. And, of course-to bring it down to terms that are meaningful here-corporate profits do not necessarily reflect the amount of work done by- crane and other equipment operators in Respondent's yards. Factors too numerous to mention go into the calculation of corporate profits, including , to name but a few, administrative costs, interest, and allocations and writeoffs of all sorts. Respondent also produced profit and - loss data for its entire "Houston Division," which includes its New Orleans District, its Lubbock District, its Latin American District, and its Coating and Wrapping' Operation (Reap. Exhs. 8 and 9). However, Respondent produced no data concerning the tonnages lifted at its fields in 1970 as compared to previous years-the work of the crane operators and their crews. 43 It is again, however, noted that with respect to the Houston operation, the carloads "mbounded" increased 'in the 1970 period over the corresponding -1969 period reflected in Respondent's data (i.e., January 1 (Continued) 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also failed to produce its records, showing the level of employment at the old and new yards for,the past few years., Testimony of Billy W. Perteet Billy W.. Perteet, called as a witness by General Counsel, testified-that he was formerly in Respondent's employeas a crane leadman 44 in the pipe,department at the old yard. On August 8" he quit this job and moved to Fort Worth. On Saturday, August 22, Perteet returned to ther, old yard to pick up'pay due him. He saw old yard Pipe-Threading House Supervisor McAlister and maintenanceman Everett Claborn there. Having observed Knight and other oldtime old yard employees not to be'there, Perteet asked McAlister where they were. McAlister told him they had been `,`fired. " Perteet asked him why. McAlister replied that "they had been fired' because of trying to get the Union in ... Even your [i.e., Perteet's] brother-in-law [i.e., Williams and High got fired;" At this time (August 22) former- maintenance- man Everett Claborn was working as "a crane operator at the old yard. Disputing Perteet's, testimony, Respondent's, Supervisor McAlister testified that on the occasion in-question he only told Perteet that he was glad he had found a job and asked him how he and his family liked it at Fort Worth. McAlister claimed not to be able to recall whether Everett Claborn was present.45 Without explanation, Everett Claborn was not produced to dispute Perteet's testimony. Having kept Perteet and McAlister under close observation as they testified, f have no hesitation in clearly preferrmg the testimony' of Perteet tog ` that of McAlister. Perteet testified forthrightly and forcefully and his tone and manner carried conviction.46 I am unable to say the same for McAlister. Everett Claborn, who might have resolved the issue, was not produced by Respondent although in its employ. I cannot assume that had `Everett Claborn been produced, he, would' have testified that he, was not there or that he would otherwise have disputed Perteet's'version. Under the circumstances, I credit the described testimony of Perteet. to July 31 in each case), from 381 m,1969 to 544, or up 163 in 1970; and that cars "outbounded" likewise increased, front, 57 to 171, or up 114, a trebling, in 1970; for a total increase of carload handling from 438 in 1969 to 715, up 277 or approximately 63 percent in 1970. Although truckloads handled in 1970 declined from 2225 to 1817, total LTL (i.e., less-than- truckload loads) handled in 1970 increased from 1296 to 2035. Likewise, July 1970 inbound carloads increased from 64 to 82 and outbound carloads increased from 8 to 55, fora total of carloads handled in July, 1970 of 137 as against only'72 in July, 1969' This indicates the opposite! of the 1970 decline claimed by Respondent in work to be done at the yards in question Although, according to Respondent's data, pipethreading units in 1970 decreased to 64,942 from 91,441 in 1969, and cutting of construction piling and reclaiming decreased to 7957, from 11,826 in the same period, pipecutting in 1970 increased to 5100 units from 3274 in 1969 and rail fabrication, likewise increased to 2896 from 2298 in the same period. The data, presented by Respondent cover only 2 years--hardly a sufficiently representative period (It may be, for example, that 1969 was, an exceptionally busy year, in which event 1970 was not necessarily a "poor" one comparatively speaking, but may even have been a "gold" one.) It is again emphasized that Respondent failed to produce data showing comparative tonnages lifted-i.e., the work of the crane operators, and other lifting equipment , personnel-at ,its Houston yard(s) over an established representative period, notwithstanding this being pointed out to it at the hearing and its indication that it maintains such statistics. - Recapitulation of Respondent's Principal Contentions . - To recapitulate again at this point; .Respondent-' claims chiefly that the true reasons for-the August 18 terminations here at issue were (l),its phasing out of its old yard and (2) an "economic" cutback imposed by its,home office. With regard to the first, the stark and uncontested fact is that 5 months after the discharges, the old yard, including the equipment there operated by the discharged employees, 'still continues in operation. Furthermore, . credited- testimony establishes, that Respondent's old yard employees were promised that they would be transferred to the new yard upon the eventuality of cessation of operations at the old yard. -It is further established,- that at the time of the discharges there was no "slack," but rather a'superabun- dance of work on hand, with the necessity for even overtime. It is conceded that Respondent observed a seniority policy, but notwithstanding this less senior employees were given the jobs of the discharged employees and new employees have since been hired. General Counsel has ,made a prima facie showing of violation of the Act through the suspicious summary, discharge, for the first time in Respondent's known history, of so many employ- ees, holding key production jobs, without notice, in the middle of the week and pay period, the five employees who were engaged in protectedorganizational activity all being fired together. Upon the record presented, Respondent' has failed,through substantial credible evidence to overcome General Counsel's prima facie showing. Respondent's contentions as to its alleged reasons for, the simultaneous summary discharge of those, five employees on August 18 under the circumstances described "fail[s] to stand under scrutiny" (N.L.R.B. v. Dant, 207 F.2d 165, 167 [C.A. 9]). Upon the record- as a whole, including. , testimonial demeanor, as closely observed and compared, I do, not credit those explanations as here advanced,by Respondent and find that they are pretextuous. I find that, Respondent's true reason for the discharge of those five employees was their described lawful concerted organizational activities, which are'protected by the Act's guarantees against such In any event, as ' shown above, the data produced by Respondent establish that inbound as well as outbound carloads in various categories increased substantially in July as well as in the first 6 months of 1970 over 1,969, As conceded by Respondent's Regional Comptroller and Administrator Kilpatrick, these carloads (whether inbound or outbound) required unloading or loading-that is to say, handling by the cranes-and other lifting apparatus operators and their crews here in question. (Although this allegedly included some movements from the old to the new yard, the alleged extent thereof was unexplamedly not shown even' though assertedly "available"; and at any rate it is handling work nonetheless, or, in Mullin's words, "It's work performed.") Moreover, Respondent's own figures for July, 1970 show that in that month at, Houston the net manhours worked (6148) were lower than the standard manhours allowed for that work (7053) by 905 manhours or 12.8 percent'; constituting, according to Mullin, a "plus performance" there. This likewise' indicates the opposite of a dearth of work there. 44 The crane leadman "makes "sure that everything, when he gets his orders, he makes sure everything got on the trucks: They tell me 1Perteet, as leadman ] what to do and I make sure they are done." 45 Joe Godfrey, who was concededly present -at the time, called by Respondent as a witness, testified that he did 'not bear the entire conversation since he was not "really listening." He also' claimed not to remember whether Everett Claboru was there. 46 In so stating, I have taken ` into consideration his relationship, to Williams and High. L. B. FOSTER COMPANY 333 retaliation'. The coupling of Respondent's receipt on August 18 of notification from the Board of an upcoming union representation election,- with the mass discharge on the same day of the union adherents, is strongly suggestive of design on Respondent's part to rid itself of those union adherents so as to insure avoidance of an otherwise feared certification of the Union as collective-bargaining agent for the employees through the Board's election process, and therefore of design to thwart the operation of the Act. ,Upon the record as a whole, it is accordingly found that Respondent's termination of the employment of Kenneth R. Stuart, James E. Williams, James L. High, William E. Claborn, and Douglas O'Neal Knight, on August 18, 1970, and its, failure to reinstate them to their former or substantially equivalent positions, was and is because they joined , or assisted the Union and engaged in lawful concerted activities for the purpose of collective bargaining or other mutual aid or, protection, as alleged in the complaint. It is further found that it has not been established by substantial credible evidence that Respon- dent's termination of the employment on said date of Joel ("Joe") Allen Carlisle, Bill Wright, .and Charles Quails was because of union or concerted activities on their part, as alleged in the complaint.47 The Representation Case As has been indicated, representation Case 23-RC-3493 has been consolidated for hearing with complaint Case 23-CA-3,734 here.. The representation case involves 14 challenged ballots cast at the Board-conducted election of October 16, 1970. Since, excluding the 14 challenged ballots, only 11 other ballots were cast (5 for and 6 against the Union),48 the challenged ballots could be sufficient to determine the outcome of the election and therefore the challenges require determination. ,Of the 14 challenged ballots, 6 are those cast by employees Carlisle, William E. Claborn, High, Knight, Stuart, and Williams, of whom all but Carlisle have herein been found to have been discharged in violation of the Act 49 In view of the determination herein that these five employees were unlawfully discharged, it is clear that the challenges to their ballots should be and they are hereby overruled, and that their ballots, should be opened and counted; with the exception of that of Joel ("Joe") Allen Carlisle who the evidence does not only not establish to have been unlawfully discharged but who conceded at the hearing that in August, 1970, a few days after his discharge but long before the October election, that he declined the Company's unconditional offer to restore him to his job, for the reason that he desired to, remain in another and "better" job he had obtained. The remaining eight challenged ballots are those cast by 47 At the Charging Party's request, unopposed by Respondent, official notice has been taken of various other proceedings involving Respondent, who is no stranger before the Board. 48 There were 31 eligible voters in the unit. 49 In view of the undetermined nature of their status at the time of the election, these six were permitted to cast ballots which were impounded by the Regional Director subject to determination of their status in the instant "C" case. Employees Bill Wright and Charles Qualls are not involved in the "r' case. 50 Act, sec. 2(11) provides: employees Broz, Everett Claborn, Evans, Gates, Mahan, McAlister, Quinn, and West, all of whom 'were challenged by the Union as supervisory employees not within the agreed bargaining unit excluding such personnel. In considering the status of' these eight employees challenged as supervisory, it is of course essential to give effect to the well-understood proposition, frequently reiterated by the Board, that it is not - the job -title, or classification of an employee (N.L.R.B. v. Quincy- Steel Casting Co., Inc., 200 F.2d 293, 296 [C.A. I p; but what'he actually does or is authorized to do (N.LJtB. v. Southern Bleachery & Print Works, Inc., -257 F.2d235, 239 [C.A. 4], cert. denied, 359 U.S. 911) which is determinative of whether or not he' is -a supervisor, the basic touchstone factor -under the statute being whether he has either actual or effective recommendatory power over'or with regard to other employees 50 Square Binding and Ruling Co., Inc., 146 NLRB 206, 210 and cases there cited. Within- this basic legal frame of reference, then, we proceed to consideration of whether or not each of the eight employees challenged by the Union was or was not a supervisory employee. Each of the eight employees challenged by the Union as supervisory is still in the Company's employ and each was called as a witness by the challenging Union. i (1) Broz Adolph R. Broz, who has been in the Company's employ for about 10 years, testified that -at and around the time of the election (October, 1970) he was a crane "rigger and helper," in which capacity he had "three men . . . working with me." According to Broz's testimony, Broz told these three men what to'do, translating general work instructions received by him from the Company office into specific work "requirements- and tasks for those three as well as himself. Broz -further testified that he would report unsatisfactory workers to personnel management in the office, and that Broz possessed the--authority effectively to recommend the-discharge of employees. While the level of Broz' authority may be relatively low in the Company's hierarchy, it nevertheless seems clear that in- view of the fact that he 'responsibly directs work crews and may effectively recommend discharge, he has been vested with supervisory authority by the Company and satisfies the Act's definition of a supervisor. For these reasons the Union's challenge to his ballot should be sustained and the ballot destroyed unopened. (2) Everett Claborn Everett Claborn, who has been in the Company's employ for over 16 years, testified that in October, 1970 he was a The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, layoff; recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection-with-the foregoing-the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. [Emphasis supplied.]. - Possession of any of these powers constitutes its possessor a supervisor. NL.RB. v. Elhott-Williams Co., 345 F.2d 460, 463 (C.A. 7); N.--B: v. City Yellow Cab Company, 344 F.2d 575, 580 (C.A. 6). 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "mechanic" or "maintenance" man working directly under old yard Superintendent, Jones. His duties were, in his own words, "A`machine breaks down ... whatever breaks down you just fix it.is- the best I can describe it." According to Claborn, he has never had any other employee under his direction, except for rare occasions (once or twice a year) when he needed help. No, countervailing evidence having been adduced on this subject, and there being no persuasive reason for discredit- ing Claborn's testimony, upon the record presented I find that it has not,been established, that Everett Claborn was a supervisory employee of the Company within the meaning of the Act. Accordingly, the Union's challenge, to his ballot should be and is hereby overruled, and his ballot should be opened and counted, but not in such a way as to indicate or disclose how he voted. (3) Evans -John Evans, also (as all other challengees) called by the Union, testified that in October, 1970 he operated a pipethreading machine on the Company's night shift (3-11 p.m.), but that he additionally "check[ed] the other operators ,at night to see if they are doing,all right, the machines,"'checking not only the men .and their machines but also "the product." According to Evans' testimony, if the work of any of the`" other nightshift threading machine operators was improper, Evans would have him "correct" it. Since higher supervisory personnel Jones (yard superin- tendent) and Bush (identified as "Personnel Manager" by witness Mahan) leave then old yard between 5 and 6 p.m., Foreman McAlister -having left at 4:30 p.m., and the "office"- is closed during' the night- shift, for practical purposes Evans remains in charge. Indeed, Evans himself testified that Foreman McAlister expressly authorized him that "if something happened [on the night shift] that they [i.e., the employees] weren't doing properly, to send them home." Evans also takes Foreman McAlister's place when McAlister is away for "any length of time." Evans conceded that he is responsible for the general performance of the men on the, job with him; that he is vested with authority,to, excuse men desiring time off from work; and, indeed, that if another nightshift threader makes a work mistake it is Evans' who is called to account since "I [Evans] have to look out for them." Upon the record presented, I find that at the times here material Evans was a supervisory employee within the meaning of the Act. Accordingly, the challenge to his ballot should be and is sustained, and the ballot should be destroyed unopened. (4) Gates Billie Boy Gates, who has been in the Company's, employ for-, about 15 years, describes himself as now a mere "rigger" 51 (as well as slotting machine operator) who, although not himself operating a crane, saw that the work was "done properly." He testified that although he has never had occasion to take disciplinary action against a .crane operator and, could not himself directly remove an unsatisfactory crane operator from a job, he (Gates) in such a situation would go directly-to Superintendent Jones, who is in charge- of the entire operation at the 'old yard, who would rely on Gates' recommendation and order the crane operator off.-Gates' testimony further indicates that-he has effectively recommended the hiring and firing of employ- ees, has assigned work to employees, and responsibly directs employees. Under subsequent questioning by Company counsel, Gates endeavored to equivocate concerning some of the foregoing testimony delivered by him when he was questioned by counsel for.,the Petitioner (Union). Thies, under questioning by Company counsel, Gates `became vague about dates ("I am' not too good at remembering months"), attempting to convey the impression that although prior to the election he was a "leadman," shortly before the election his status had in some way changed to that of "more or less just a rigger," although "didn't ,nobody' tell me that." He then claimed that during his 15 years with the Company there, was never anything in writing as to his' job title. Gates' attempts at testimonial equivocation- as observed by me closely while he was on the witness stand impressed me-adversely, leaving me with' a poor impression as to his credibility in these respects. It is apparent from credited portions of Gates' own testimony that he possessed authority effectively to recommend the hiring and disciplining of employees, and that he effectively directed them. Under these circum- stances, he satisfies the statutory definition of asupervisor, and I therefore find him such. Accordingly, the challenge to his ballot should be-and is sustained, and the ballot which he cast in the election should be destroyed unopened. (5) Mahan Under examination by the Petitioner (Union) who called him as a witness, Leo Mahan described himself as the Company's "material checker," checking incoming and outgoing pipe, rail, and piling, working directly under Superintendent Jones and' Bush, the latter identified by Mahan as the "Personnel Manager." According' to, his testimony, he h4s working with him at times a crew of three or four, ordering them what to do;-and he also makes trips out of town to check piling for the Company. Mahan further testified that he has warned and reported personnel for lateness or absence, and that he"has removed an employee from the job for insobriety or other reason. Moreover, Mahan testified that he takes the place' of supervisors-including Foreman 'McAlister, conceded herein by the Employer to be a supervisor =during, their absences, for several weeks at a time; and that on these occasions he responsibly directs the employees. ' As in the ,case of Gates, when Mahan came under the examination of Company counsel, he began to attempt-to equivocate and to a degree to water down his previous testimony; for example, by attempting to picture himself such as a mere rigger, crane relief operator, or "Jack of all trades" during the critical period including election -day. These attempts at equivocation under my close observa- tions of his testimonial demeanor, particularly in view of the Company's totally unexplained failure to-present any 51 Asked what his job was in-October, 1970, his answer was "Long about that time I was riggin." (Emphasis supplied.) L. B. FOSTER COMPANY supporting documentation or even testimonial corrobora- tion from Company superiors or others, left me with a poor impression of this aspect of this witness' testimony. General Counsel witness William Claborn, who im- pressed me as a person worthy of belief, testified credibly during cross-examination in the "Complaint" case phase of the trial that it was Mahan who hired him or told him to return to work with Respondent when Claborn left` his other employment in order to do so 3 or 4 years ago; and that it was Mahan (as well as old yard Office Manager Bush) _ who gave him and other employees their work assignments-it is Mahan who "walk[s ] the yard with a [walkie-talkie radio on [his] hips and tell[s] you what to do"; and that it was ' Mahan who, upon receipt of teletyped orders in the, yard office, wrote down or told the yard employees "what he [Mahan] wants [the employees] to do that morning, what, pipe to be loaded and what rack needs pipe on it." Claborn insisted that it was "Mahan [who] give me my orders out in the yard. There were nobody there except him." I credit this testimony of Claborn. Since it is apparent from credited portions of Mahan's own testimony that he responsibly directs and recommends discipline of employees, and further established by Claborn's .-credited testimony that Mahan responsibly directs employees, I find that Mahan satisfies the Act's definition of a supervisor. Accordingly, the challenge to'his ballot should be sustained, and that ballot should be destroyed unopened. ' (6) McAlister At the hearing before me, the status of Louis McAlister as a supervisor _ was conceded by the Company upon the record, and it was stipulated that petitioner's (Union's) challenge to his ballot should be sustained. Accordingly, I find that McAlister was a supervisor, and that the challenge to the ballot which he cast- in the election should be sustained and that ballot destroyed unopened. (7) Quinn 335 Travis Quinn, who has been in the Company's employ for about 4 years, identifies himself as the "Leadmanon Track 3," a railroad track in the Company warehouse. Quinn testified that in this capacity "he has from three to seven employees with him, generally directing -them what `to do and what not to do; and that, since Quinn has the "responsibility" to get "the job done," in the event of an unsatisfactory, worker' Quinn would correct him or recommend him for discharge and his recommendation would be relied upon by management (i.e., Bush, the "Personnel Manager"). Further according to Quinn's testimony, he has also effectively recommended employees for raises. Crediting the foregoing testimony of Quinn, since he satisfies the statutory definition of a supervisor I find him to be such. Accordingly, petitioner's challenge to his ballot should be sustained and the ballot destroyed unopened. (8) West The testimony of Jessie J. West establishes that his job and function here under question consisted ' of being a dayshift threading machine operator without assistants or helpers. There is nothing in the -evidence adduced, consisting solely of testimony by West himself (which I credit), to indicate that West in any way satisfies the statutory definition of-a supervisor. Upon the record presented, I find that West's supervisory status has not been established. Petitioner's challenge to his ballot should accordingly be overruled, and his ballot should be opened and counted, but not in such a way as to compromise the anonymity of his vote. Recapitulation Concerning Challenges to -Ballots The following is a recapitulation of the end result of the determinations here made concerning the challenged ballots: Name Adolph R. Broz Joel Allen Carlisle ("Joe Carlisle"; "Joe Carlisle") Everett Claborn William E., Claborn ("William Claborn") John Evans Billy Boy Gates ("Billy B . Gates") James L. High ("James High") Douglas O'Neal Knight ("Douglas Knight"; "D.C. Knight) Leo Mahan Louis McAlister Travis Quinn Kenneth R. Stuart ("Kenneth Stuart") Jessie J. West James E . Williams Totals . . . . . . . . . . . . . . . . . . . Outer f Challenge Sustained -Overruled x x x x X X X 7 X X X X X X 7 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings and the entire record, I state the following: CONCLUSIONS OF LAW 1. At_ all material times, .L B. Foster Company, Respondent herein, has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) ,of the Act. 2. At all material times, Shopmen's, Local Union No. 694 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, Charging Party herein, has been' and is a labor organization within the meaning of Section 2(5) of the Act. , 3. ' Jurisdiction is properly asserted in this proceeding. 4. On August 14, 1970, Respondent through its Supervisor Donald Bush interrogated its employee William E. Claborn concerning its employees"union and protected concerted organizational actiRities, , thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed to them by Section 7, constituting an unfair labor practice in violation of Section 8(a)(1) of the Act. 5. On August 18, 1970, Respondent terminated 'the employment of, and has since failed, to reinstate to their former or substantially equivalent positions, its employees Kenneth R. Stuart, James E. Williams, James, L. High, William E. Claborn, and Douglas O'Neal Knight, because they joined or assisted the, Union .and engaged in lawful concerted activities for the purpose of collective bargaining or ' other;_ mutual aid or protection in exercise of rights guaranteed to them by Section 7, thereby discriminating against them in regard to the hire, tenure, and terms and conditions of their employment and thereby discouraging membership in a labor organization, and, further, thereby interfering with, restraining,, and coercing, its ,employees, constituting unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. , 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. It has not been established by substantial credible evidence, that-Respondent's, termination of the employment of Joel ("Joe")' Allen Carlisle, Bill Wright, and Charles Qualls On August 18,1970, was for union or other protected organizational activity or otherwise in violation of the Act. THE REMEDY With regard to remedying the unfair labor practices comprising the violations of Section 8(a)(1) and (3) which have been found, I shall recommend the usual cease-and- desist order and affirmative relief customarily ordered in cases of this nature, involving interference, restraint, and 52 Cf. N.L.RB. v. Entwistle Mfg Co., 120 F.2d 532, 536 (C.A.4). ss In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in coercion, and discriminatory discharges and failures to reinstate. ,The recommended Order will, accordingly, require Respondent to cease and desist from the unfair labor, practices found; ,and to offer the discriminatorily discharged employees immediate and full reinstatement ,to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of earnings they may have suffered in consequence of their unlawful termination on August 18, 1970, by payment to them of a sum of money equal to that which they normally would have earned as wages from August 18, 1970, to the date of Respondent's offer to reinstate them to their former or substantially equivalent positions, less their'net.earnings if any during such period, backpay and interest to be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing& Heating Co.,` 138 NLRB 716. Respondent shall also be requiredto make available necessary records for computation of backpay. In view of the fact that Respondent's discharges. under the circumstances-described are unfair labor practices of'a character striking at the fundamental roots of the rights guaranteed to employees by the , Act,52 L shall also recommend inclusion in the. Order of a requirement that Respondent cease and desistfrom infringing in any manner upon the rights of employees under Section 7 of the Act. The Order shall also provide for the usual notice posting and for appropriate notification- to any affected employee who may be in the Armed Forces of the United States._ My recommendations concerning disposition of the challenged ballots in the Board-conducted election of October 16, 1970, are set forth in "The Representation Case," supra. Upon the, basis , of the foregoing findings of fact, conclusions of law, and the entire record in'this consolidat- ed proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended 53 ORDER It is hereby ordered that L. B. Foster Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: a. Interrogating any employee concerning his or other employees' union or other lawful organizational member- ship, affiliation, activity, sympathy, or desire', 'so as to interfere with, restrain, or coerce him or them in the exercise or pursuit of the right of self-organization , the right to bargain collectively, or any other right secured by the National Labor Relations Act, a amended. b. Discouraging membership in or lawful activity on behalf of Shopmen's Local Union No. 694 of the International Association of Bridge, Structural and Orna- Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. L. B. FOSTER COMPANY 337 mental Iron Workers, AFL-CIO, or any other labor organization, by discharging, terminating, laying off, or suspending, or by failing or refusing to reinstate to his former or substantially equivalent job, any employee because he joined or assisted a labor organization or engaged in concerted activity for the purpose of collective bargaining or other mutual aid or protection. c. In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization; to form, join, or assist any labor organiza- tion; to bargain collectively through representatives of their own choosing; to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities. 2. Take the following affirmative actions which are necessary to effectuate the policies of the Act: a. Post at its old yard (Homestead Road) and at its new yard (Langfield Road) in Houston,, Texas, copies of the notice attached hereto marked "Appendix B." 54 Copies of said notice, on forms provided by the Board's Regional Director for Region 23, shall, after being signed by Respondent's authorized representative, be posted in each of said yards by Respondent immediately upon receipt thereof and , maintained by it for 60 consecutive days thereafter-, in conspicuous places, including all places in each of said yards where notices to employees are customarily posted. Reasonable steps shall be taken, to insure that said notices are not altered, defaced, or covered by any other material b. Offer to Kenneth R. Stuart, James E. Williams, James L. High, William E. Claborn, and Douglas O'Neal Knight immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; and make each of them whole, for any loss, of pay suffered in consequence of the discrimination against him, in the manner set forth in the "Remedy", supra. In the event that any of said employees is presently serving in the Armed Forces of the United States, immediately notify him of his right to full reinstatement, upon application after discharge from the 54 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the Notice reading "POSTED BY ORDER OF THE 1ATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELA- Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. c. 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 determine the amounts of backpay due and the extent of compliance with the terms-of this-Order. d. Notify the Regional Director for Region 23, in writing, within 20 days from receipt of this Decision, what steps have been taken to comply herewith.55 - IT IS HEREBY FURTHER ORDERED, that the complaint herein, dated November 6, 1970, be and the same is hereby dismissed insofar as it pertains to Joel ("Joe") Allen Carlisle, Bill Wright, and Charles Qualls. , IT IS RECOMMENDED that with relation to Case 23-RC-3493, consolidated for trial with the foregoing Case 23-CA-3734, th National Labor Relations Board issue an order: A. Sustaining the challenges to the ballots cast by the following -persons in the October 16, 1970, representation election, and directing that said ballots be destroyed unopened: Adolph R. Broz, Joel Allen Carlisle ("Joel Carlisle'; "Joe Carlisle"), John Evans, Billy Boy Gates (Billy B. Gates"), Leo Mahan, Louis McAlister, and Travis Quinn. B. Overruling the challenges to the ballots cast by, the following persons in the-October 16, 1970, representation election, and directing that said ballots be opened and counted, in such a manner as not to compromise the secrecy of the ballot cast by each said person: Everett Claborn, William'E. Claborn ("William Claboru'), James L. 'High ("James High"), Douglas O'Neal Knight ("Douglas Knight"; "D. O. Knight"), Kenneth R. Stuart ("Kenneth Stuart"), Jessie J. West, and James E. Williams. C. Certifying or directing the certification-of the result of the balloting in said October 16, 1970, representation election, upon the basis of a tally consisting of the valid ballots cast and already counted, together with the-ballots as to which challenges have-hereby been overruled as specified in paragraph B hereof. TIONS BOARD.' 55 In the event that this recommended Order is adopted by the Board after, exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith."