P. A. Incorporated

P. A. INCORPORATED 833 P. A. Incorporated and Oil, Chemical and Atomic charging Joe Ross.' For the reasons given below I rec- Workers Union, Local 4-586, International ommend that the complaint be dismissed. Union, AFL-CIO. Case 16-CA-9248 Upon the entire record, my observation of the demea- nor of the witnesses, and the briefs filed by the General December 29, 1982 Counsel and the Respondent, 2 I make the following: DECISION AND ORDER FINDINGS OF FACT AND CONCLUSIONS OF LAW 3 BY MEMBERS JENKINS, ZIMMERMAN, AND I. ALLEGED UNFAIR LABOR PRACTICES HUNTER A. Background On July 15, 1981, Administrative Law Judge Almira A. Stevenson issued the attached Decision The Respondent is engaged, at its Odessa, Texas, plant in this proceeding. Thereafter, the General Counsel involved in this proceeding, in coating pipe for the oil- brief, and Re- drilling industry. Its operations consist of a tube shop filed exceptions and a supporting brief and Re- which is more or less an assembly-line type procedure; a spondent filed an answering brief. custom shop where pipe and joints are cleaned and Pursuant to the provisions of Section 3(b) of the coated by hand; and a yard used mainly for storage. The National Labor Relations Act, as amended, the Na- employee complement is approximately 50. At material tional Labor Relations Board has delegated its au- times, John Lubke was vice president of the western thority in this proceeding to a three-member panel. zone; William Anderson was Odessa area manager; Gary The Board has considered the record and the at- Richardson was plant manager; Dan Chew was custom tached Decision in light of the exceptions and shop section manager (foreman of the custom shop); and briefs and has decided to affirm the rulings, find- Dan Rimmer was operations manager of the yard depart- ings, and conclusions of the Administrative Law ment (foreman of the yard). I find that these individuals ings, and conclusions of the Administrative Law were supervisors and agents of the Respondent. Judge and to adopt his recommended Order. In a previous case involving the same parties, the Na- tional Labor Relations Board issued a Decision and ^KL/~ORDER .Order dated March 14, 1980, 4 finding that the Respond- Pursuant to Section 10(c) of the National Labor ent and the Union were parties to a collective-bargaining Relations Act, as amended, the National Labor Re- agreement effective from November 15, 1975, through lations Board adopts as its Order the recommended November 15, 1978, covering the following appropriate Order of the Administrative Law Judge and unit, for which the International Union was certified in hereby orders that the complaint herein be, and it 1966: hereby is, dimissed in its entirety. All production and maintenance employees em- ployed in the maintenance, yard, custom, and tube The General Counsel has excepted to certain credibility findings departments by the Company at its plant located at made by the Administrative Law Judge. It is the Board's established 300 W. 61st Street in Odessa, Texas, excluding all policy not to overrule an administrative law judge's resolutions with re- other employees including administrative, estimat- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry ing, sales, engineering, purchasing, office, technical, Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. payroll, quality control, inspection and reclamation 1951). We have carefully examined the record and find no basis for re- employees, and all foremen, guards, watchmen and versing his findings. supervisors as defined in the Act. DECISION In its Decision and Order, the Board concluded that the Respondent committed the following unfair labor prac- STATEMENT OF THE CASE tices: ALMIRA ABBOT STEVENSON, Administrative Law (1) Violations of Section 8(a)(l) of the Act: Plant Man- ager Aary Richardson, in July or August 1978, promised Judge: This case was heard in Odessa, Texas, on April ager Gary Richardson in July or August 1978, promised 14*16 1981' The' chareadUnion Committeeman Keith Eddings that the Respond- 14-16, 1981. The charge and amended charge were ent would give employee bonuses if the Odessa plant ent would give employee bonuses if the Odessa plant served on the Respondent on or about July 14 and went nonunion, in early October 1978 promised to give August 11, 1980, respectively. The complaint was issued employee Lee Shearman a promotion and a pay raise if August 29, 1980, and was duly answered by the Re- he would get out of the Union, on or about November spondent. The issues are whether or not the Respondent violated No issue is presented with respect to jurisdiction or labor organiza- Section 8(a)(1) of the National Labor Relations Act by tion status. Based on the allegations of the complaint and the admissions promising an employee a promotion if he discontinued of the answer, I find that the Respondent is an employer engaged in com- merce within Sec. 2(6) and (7), and that the Charging Party Union is a his activities on behalf of the Union and threatening em- labor organization within Sec. 2(5) of the Act. ployees for engaging in union activities; violated Section 2Certain errors in the transcript are hereby noted and corrected. 8(a)(5) of the Act by unilaterally discontinuing the issu- Except where credibility is specifically discussed, the facts are sub- ance of work gloves; and violated Section 8(a)(3) by dis- stantially undisputed 'P. A. Incorporated. 248 NLRB 491 (1980). 259 NLRB No. 111 P. A. INCORPORATED 833 P. A. Incorporated and Oil, Chemical and Atomic charging Joe Ross.' For the reasons given below I rec- Workers Union, Local 4-586, International ommend that the complaint be dismissed. Union, AFL-CIO. Case 16-CA-9248 Upon the entire record, my observation of the demea- nor of the witnesses, and the briefs filed by the General December 29, 1982 Counsel and the Respondent,2 I make the following: DECISION AND ORDER FINDINGS OF FACT AND CONCLUSIONS OF LAW3 BY MEMBERS JENKINS, ZIMMERMAN, AND I. ALLEGED UNFAIR LABOR PRACTICES HUNTER A. Background On July 15, 1981, Administrative Law Judge Almira A. Stevenson issued the attached Decision T h e Respondent is engaged, at its Odessa, Texas, plant in this proceeding. Thereafter, the General Counsel in v o lv e d in t h is proceeding, in coating pipe for the oil- filed exceptions and a supporting brief, and Re- drilling industry. Its operations consist of a tube shop filed exceptions and a supporting brief, and Re-\which is more or less an assembly-line type procedure; a spondent filed an answering brief. custom shop where pipe and joints are cleaned and Pursuant to the provisions of Section 3(b) of the coated by hand; and a yard used mainly for storage. The National Labor Relations Act, as amended, the Na- employee complement is approximately 50. At material tional Labor Relations Board has delegated its au- times, John Lubke was vice president of the western thority in this proceeding to a three-member panel. zone; William Anderson was Odessa area manager; Gary The Board has considered the record and the at- Richardson was plant manager; Dan Chew was custom tached Decision in light of the exceptions and shop section manager (foreman of the custom shop); and briefs and has decided to affirm the rulings, find- D a n R im m er was operations manager of the yard depart- ings,' and conclusions of the Administrative Law ment (foreman of the yard). I find that these individuals ings,' and conclusions of the Administrative Law pevsranaetsothRspdn. were supervisors and agents of the Respondent. Judge and to adopt his recommended Order. In a previous case involving the same parties, the Na- tional Labor Relations Board issued a Decision and ORDER^Order dated March 14, 1980, 4 finding that the Respond- Pursuant to Section 10(c) of the National Labor ent and the Union were parties to a collective-bargaining Relations Act, as amended, the National Labor Re- agreement effective from November 15, 1975. through lations Board adopts as its Order the recommended November 15, 1978, covering the following appropriate Order of the Administrative Law Judge and u n it, fo r w h ic h t he International Union was certified in hereby orders that the complaint herein be, and it 1966: hereby is, dimissed in its entirety. All production and maintenance employees em- ployed in the maintenance, yard, custom, and tube 'The General Counsel has excepted to certain credibility findings departments by the Company at its plant located at made by the Administrative Law Judge. It is the Board's established 300 W. 61st Street in Odessa, Texas, excluding all policy not to overrule an administrative law judge's resolutions with re- other employees including administrative, estimat- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry ing, sales, engineering, purchasing, office, technical, Wall Products, Inc., 91 NLRB 544 (1950), enld. 188 F.2d 362 (3d Cir. payroll, quality control, inspection and reclamation 1951). We have carefully examined the record and find no basis for re- employees, and all foremen, guards, watchmen and versing his findings. supervisors as defined in the Act. DECISION In its Decision and Order, the Board concluded that the Respondent committed the following unfair labor prac- STATEMENT OF THE CASE tices: ALMIRA ABBOT STEVENSON, Administrative Law (1) Violations of Section 8(a)(l) of the Act: Plant Man- Judge: This case washeard ABBOT O des nsatexastonve ril ager Gary Richardson, in July or August 1978, promised Judge: This case was heard in Odessa Texas, on April Union Committeeman Keith Eddings that the Respond- 14-16, 1981. The charge and amended charge were ent would give employee bonuses if the Odessa plant served on the Respondent on or about July 14 and went nonunion, in early October 1978 promised to give August 11, 1980, respectively. The complaint was issued employee Lee Shearman a promotion and a pay raise if August 29, 1980, and was duly answered by the Re- he would get out of the Union, on or about November spondent. The issues are whether or not the Respondent violated I No issue is presented with respect to jurisdiction or labor organiza- Section 8(a)(l) of the National Labor Relations Act by tion status. Based on the allegations of the complaint and the admissions promising an employee a promotion if he discontinued of the answer, I rind that the Respondent is an employer engaged in com- merce within Sec. 2(6) and (7), and that the Charging Party Union is a his activities on behalf of the Union and threatening em- labor organization within Sec. 2(5) of the Act. ployees for engaging in union activities; violated Section Certain errors in the transcript are hereby noted and corrected. 8(a)(5) of the Act by unilaterally discontinuing the issu- ' Except wher e credibility is specifically discussed, the facts are sub- ance of work gloves; and violated Section 8(a)(3) by dis- stan ti al l y undisputed. P. A. Incorporaied. 248 NLRB 491 (1980). 259 NLRB No. Ill P. A. INCORPORATED 833 P. A. Incorporated and Oil, Chemical and Atomic charging Joe Ross.' For the reasons given below I rec- Workers Union, Local 4-586, International ommend that the complaint be dismissed. Union, AFL-CIO. Case 16-CA-9248 Upon the entire record, my observation of the demea- nor of the witnesses, and the briefs filed by the General December 29, 1982 Counsel and the Respondent,2 I make the following: DECISION AND ORDER FINDINGS OF FACT AND CONCLUSIONS OF LAW3 BY MEMBERS JENKINS, ZIMMERMAN, AND I. ALLEGED UNFAIR LABOR PRACTICES HUNTER A. Background On July 15, 1981, Administrative Law Judge Almira A. Stevenson issued the attached Decision T h e Respondent is engaged, at its Odessa, Texas, plant in this proceeding. Thereafter, the General Counsel in v o lv e d in t h is proceeding, in coating pipe for the oil- filed exceptions and a supporting brief, and Re- drilling industry. Its operations consist of a tube shop filed exceptions and a supporting brief, and Re-\which is more or less an assembly-line type procedure; a spondent filed an answering brief. custom shop where pipe and joints are cleaned and Pursuant to the provisions of Section 3(b) of the coated by hand; and a yard used mainly for storage. The National Labor Relations Act, as amended, the Na- employee complement is approximately 50. At material tional Labor Relations Board has delegated its au- times, John Lubke was vice president of the western thority in this proceeding to a three-member panel. zone; William Anderson was Odessa area manager; Gary The Board has considered the record and the at- Richardson was plant manager; Dan Chew was custom tached Decision in light of the exceptions and shop section manager (foreman of the custom shop); and briefs and has decided to affirm the rulings, find- D a n R im m er was operations manager of the yard depart- ings,' and conclusions of the Administrative Law ment (foreman of the yard). I find that these individuals ings,' and conclusions of the Administrative Law pevsranaetsothRspdn. were supervisors and agents of the Respondent. Judge and to adopt his recommended Order. In a previous case involving the same parties, the Na- tional Labor Relations Board issued a Decision and ORDER^Order dated March 14, 1980, 4 finding that the Respond- Pursuant to Section 10(c) of the National Labor ent and the Union were parties to a collective-bargaining Relations Act, as amended, the National Labor Re- agreement effective from November 15, 1975. through lations Board adopts as its Order the recommended November 15, 1978, covering the following appropriate Order of the Administrative Law Judge and u n it, fo r w h ic h t he International Union was certified in hereby orders that the complaint herein be, and it 1966: hereby is, dimissed in its entirety. All production and maintenance employees em- ployed in the maintenance, yard, custom, and tube 'The General Counsel has excepted to certain credibility findings departments by the Company at its plant located at made by the Administrative Law Judge. It is the Board's established 300 W. 61st Street in Odessa, Texas, excluding all policy not to overrule an administrative law judge's resolutions with re- other employees including administrative, estimat- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry ing, sales, engineering, purchasing, office, technical, Wall Products, Inc., 91 NLRB 544 (1950), enld. 188 F.2d 362 (3d Cir. payroll, quality control, inspection and reclamation 1951). We have carefully examined the record and find no basis for re- employees, and all foremen, guards, watchmen and versing his findings. supervisors as defined in the Act. DECISION In its Decision and Order, the Board concluded that the Respondent committed the following unfair labor prac- STATEMENT OF THE CASE tices: ALMIRA ABBOT STEVENSON, Administrative Law (1) Violations of Section 8(a)(l) of the Act: Plant Man- Judge: This case washeard ABBOT O des nsatexastonve ril ager Gary Richardson, in July or August 1978, promised Judge: This case was heard in Odessa Texas, on April Union Committeeman Keith Eddings that the Respond- 14-16, 1981. The charge and amended charge were ent would give employee bonuses if the Odessa plant served on the Respondent on or about July 14 and went nonunion, in early October 1978 promised to give August 11, 1980, respectively. The complaint was issued employee Lee Shearman a promotion and a pay raise if August 29, 1980, and was duly answered by the Re- he would get out of the Union, on or about November spondent. The issues are whether or not the Respondent violated I No issue is presented with respect to jurisdiction or labor organiza- Section 8(a)(l) of the National Labor Relations Act by tion status. Based on the allegations of the complaint and the admissions promising an employee a promotion if he discontinued of the answer, I rind that the Respondent is an employer engaged in com- merce within Sec. 2(6) and (7), and that the Charging Party Union is a his activities on behalf of the Union and threatening em- labor organization within Sec. 2(5) of the Act. ployees for engaging in union activities; violated Section Certain errors in the transcript are hereby noted and corrected. 8(a)(5) of the Act by unilaterally discontinuing the issu- ' Except wher e credibility is specifically discussed, the facts are sub- ance of work gloves; and violated Section 8(a)(3) by dis- stan ti al l y undisputed. P. A. Incorporaied. 248 NLRB 491 (1980). 259 NLRB No. Ill P. A. INCORPORATED 833 P. A. Incorporated and Oil, Chemical and Atomic charging Joe Ross.' For the reasons given below I rec- Workers Union, Local 4-586, International ommend that the complaint be dismissed. Union, AFL-CIO. Case 16-CA-9248 Upon the entire record, my observation of the demea- nor of the witnesses, and the briefs filed by the General December 29, 1982 Counsel and the Respondent,2 I make the following: DECISION AND ORDER FINDINGS OF FACT AND CONCLUSIONS OF LAW3 BY MEMBERS JENKINS, ZIMMERMAN, AND I. ALLEGED UNFAIR LABOR PRACTICES HUNTER A. Background On July 15, 1981, Administrative Law Judge Almira A. Stevenson issued the attached Decision T h e Respondent is engaged, at its Odessa, Texas, plant in this proceeding. Thereafter, the General Counsel in v o lv e d in t h is proceeding, in coating pipe for the oil- filed exceptions and a supporting brief, and Re- drilling industry. Its operations consist of a tube shop filed exceptions and a supporting brief, and Re-\which is more or less an assembly-line type procedure; a spondent filed an answering brief. custom shop where pipe and joints are cleaned and Pursuant to the provisions of Section 3(b) of the coated by hand; and a yard used mainly for storage. The National Labor Relations Act, as amended, the Na- employee complement is approximately 50. At material tional Labor Relations Board has delegated its au- times, John Lubke was vice president of the western thority in this proceeding to a three-member panel. zone; William Anderson was Odessa area manager; Gary The Board has considered the record and the at- Richardson was plant manager; Dan Chew was custom tached Decision in light of the exceptions and shop section manager (foreman of the custom shop); and briefs and has decided to affirm the rulings, find- D a n R im m er was operations manager of the yard depart- ings,' and conclusions of the Administrative Law ment (foreman of the yard). I find that these individuals ings,' and conclusions of the Administrative Law pevsranaetsoteRspdn. were supervisors and agents of the Respondent. Judge and to adopt his recommended Order. In a previous case involving the same parties, the Na- tional Labor Relations Board issued a Decision and ORDER^Order dated March 14, 1980, 4 finding that the Respond- Pursuant to Section 10(c) of the National Labor ent and the Union were parties to a collective-bargaining Relations Act, as amended, the National Labor Re- agreement effective from November 15, 1975. through lations Board adopts as its Order the recommended November 15, 1978, covering the following appropriate Order of the Administrative Law Judge and u n it, fo r w h ic h t he International Union was certified in hereby orders that the complaint herein be, and it 1966: hereby is, dimissed in its entirety. All production and maintenance employees em- ployed in the maintenance, yard, custom, and tube 'The General Counsel has excepted to certain credibility findings departments by the Company at its plant located at made by the Administrative Law Judge. It is the Board's established 300 W. 61st Street in Odessa, Texas, excluding all policy not to overrule an administrative law judge's resolutions with re- other employees including administrative, estimat- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry ing, sales, engineering, purchasing, office, technical, Wall Products, Inc., 91 NLRB 544 (1950), enld. 188 F.2d 362 (3d Cir. payroll, quality control, inspection and reclamation 1951). We have carefully examined the record and find no basis for re- employees, and all foremen, guards, watchmen and versing his findings. supervisors as defined in the Act. DECISION In its Decision and Order, the Board concluded that the Respondent committed the following unfair labor prac- STATEMENT OF THE CASE tices: ALMIRA ABBOT STEVENSON, Administrative Law (1) Violations of Section 8(a)(l) of the Act: Plant Man- Judge: This case washeard ABBOT O des nsatexastonve ril ager Gary Richardson, in July or August 1978, promised Judge: This case was heard in Odessa Texas, on April Union Committeeman Keith Eddings that the Respond- 14-16, 1981. The charge and amended charge were ent would give employee bonuses if the Odessa plant served on the Respondent on or about July 14 and went nonunion, in early October 1978 promised to give August 11, 1980, respectively. The complaint was issued employee Lee Shearman a promotion and a pay raise if August 29, 1980, and was duly answered by the Re- he would get out of the Union, on or about November spondent. The issues are whether or not the Respondent violated I No issue is presented with respect to jurisdiction or labor organiza- Section 8(a)(l) of the National Labor Relations Act by tion status. Based on the allegations of the complaint and the admissions promising an employee a promotion if he discontinued of the answer, I rind that the Respondent is an employer engaged in com- merce within Sec. 2(6) and (7), and that the Charging Party Union is a his activities on behalf of the Union and threatening em- labor organization within Sec. 2(5) of the Act. ployees for engaging in union activities; violated Section Certain errors in the transcript are hereby noted and corrected. 8(a)(5) of the Act by unilaterally discontinuing the issu- Except wher e credibility is specifically discussed, the facts are sub- ance of work gloves; and violated Section 8(a)(3) by dis- stan ti al l y undisputed. P. A. Incorporaied. 248 NLRB 491 (1980). 259 NLRB No. Ill P. A. INCORPORATED 833 P. A. Incorporated and Oil, Chemical and Atomic charging Joe Ross.' For the reasons given below I rec- Workers Union, Local 4-586, International ommend that the complaint be dismissed. Union, AFL-CIO. Case 16-CA-9248 Upon the entire record, my observation of the demea- nor of the witnesses, and the briefs filed by the General December 29, 1982 Counsel and the Respondent,2 I make the following: DECISION AND ORDER FINDINGS OF FACT AND CONCLUSIONS OF LAW3 BY MEMBERS JENKINS, ZIMMERMAN, AND I. ALLEGED UNFAIR LABOR PRACTICES HUNTER A. Background On July 15, 1981, Administrative Law Judge Almira A. Stevenson issued the attached Decision T h e Respondent is engaged, at its Odessa, Texas, plant in this proceeding. Thereafter, the General Counsel in v o lv e d in t h is proceeding, in coating pipe for the oil- filed exceptions and a supporting brief, and Re- drilling industry. Its operations consist of a tube shop filed exceptions and a supporting brief, and Re-\which is more or less an assembly-line type procedure; a spondent filed an answering brief. custom shop where pipe and joints are cleaned and Pursuant to the provisions of Section 3(b) of the coated by hand; and a yard used mainly for storage. The National Labor Relations Act, as amended, the Na- employee complement is approximately 50. At material tional Labor Relations Board has delegated its au- times, John Lubke was vice president of the western thority in this proceeding to a three-member panel. zone; William Anderson was Odessa area manager; Gary The Board has considered the record and the at- Richardson was plant manager; Dan Chew was custom tached Decision in light of the exceptions and shop section manager (foreman of the custom shop); and briefs and has decided to affirm the rulings, find- D a n R im m er was operations manager of the yard depart- ings,' and conclusions of the Administrative Law ment (foreman of the yard). I find that these individuals ings,' and conclusions of the Administrative Law pevsranaetsoteRspdn. were supervisors and agents of the Respondent. Judge and to adopt his recommended Order. In a previous case involving the same parties, the Na- tional Labor Relations Board issued a Decision and ORDER^Order dated March 14, 1980, 4 finding that the Respond- Pursuant to Section 10(c) of the National Labor ent and the Union were parties to a collective-bargaining Relations Act, as amended, the National Labor Re- agreement effective from November 15, 1975. through lations Board adopts as its Order the recommended November 15, 1978, covering the following appropriate Order of the Administrative Law Judge and u n it, fo r w h ic h t he International Union was certified in hereby orders that the complaint herein be, and it 1966: hereby is, dimissed in its entirety. All production and maintenance employees em- ployed in the maintenance, yard, custom, and tube 'The General Counsel has excepted to certain credibility findings departments by the Company at its plant located at made by the Administrative Law Judge. It is the Board's established 300 W. 61st Street in Odessa, Texas, excluding all policy not to overrule an administrative law judge's resolutions with re- other employees including administrative, estimat- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry ing, sales, engineering, purchasing, office, technical, Wall Products, Inc., 91 NLRB 544 (1950), enld. 188 F.2d 362 (3d Cir. payroll, quality control, inspection and reclamation 1951). We have carefully examined the record and find no basis for re- employees, and all foremen, guards, watchmen and versing his findings. supervisors as defined in the Act. DECISION In its Decision and Order, the Board concluded that the Respondent committed the following unfair labor prac- STATEMENT OF THE CASE tices: ALMIRA ABBOT STEVENSON, Administrative Law (1) Violations of Section 8(a)(l) of the Act: Plant Man- Judge: This case washeard ABBOT O des nsatexastonve ril ager Gary Richardson, in July or August 1978, promised Judge: This case was heard in Odessa Texas, on April Union Committeeman Keith Eddings that the Respond- 14-16, 1981. The charge and amended charge were ent would give employee bonuses if the Odessa plant served on the Respondent on or about July 14 and went nonunion, in early October 1978 promised to give August 11, 1980, respectively. The complaint was issued employee Lee Shearman a promotion and a pay raise if August 29, 1980, and was duly answered by the Re- he would get out of the Union, on or about November spondent. The issues are whether or not the Respondent violated I No issue is presented with respect to jurisdiction or labor organiza- Section 8(a)(l) of the National Labor Relations Act by tion status. Based on the allegations of the complaint and the admissions promising an employee a promotion if he discontinued of the answer, I rind that the Respondent is an employer engaged in com- merce within Sec. 2(6) and (7), and that the Charging Party Union is a his activities on behalf of the Union and threatening em- labor organization within Sec. 2(5) of the Act. ployees for engaging in union activities; violated Section Certain errors in the transcript are hereby noted and corrected. 8(a)(5) of the Act by unilaterally discontinuing the issu- Except wher e credibility is specifically discussed, the facts are sub- ance of work gloves; and violated Section 8(a)(3) by dis- stan ti al l y undisputed. P. A. Incorporaied. 248 NLRB 491 (1980). 259 NLRB No. Ill P. A. INCORPORATED 833 P. A. Incorporated and Oil, Chemical and Atomic charging Joe Ross.' For the reasons given below I rec- Workers Union, Local 4-586, International ommend that the complaint be dismissed. Union, AFL-CIO. Case 16-CA-9248 Upon the entire record, my observation of the demea- nor of the witnesses, and the briefs filed by the General December 29, 1982 Counsel and the Respondent,2 I make the following: DECISION AND ORDER FINDINGS OF FACT AND CONCLUSIONS OF LAW3 BY MEMBERS JENKINS, ZIMMERMAN, AND I. ALLEGED UNFAIR LABOR PRACTICES HUNTER A. Background On July 15, 1981, Administrative Law Judge Almira A. Stevenson issued the attached Decision T h e Respondent is engaged, at its Odessa, Texas, plant in this proceeding. Thereafter, the General Counsel in v o lv e d in t h is proceeding, in coating pipe for the oil- filed exceptions and a supporting brief, and Re- drilling industry. Its operations consist of a tube shop filed exceptions and a supporting brief, and Re-\which is more or less an assembly-line type procedure; a spondent filed an answering brief. custom shop where pipe and joints are cleaned and Pursuant to the provisions of Section 3(b) of the coated by hand; and a yard used mainly for storage. The National Labor Relations Act, as amended, the Na- employee complement is approximately 50. At material tional Labor Relations Board has delegated its au- times, John Lubke was vice president of the western thority in this proceeding to a three-member panel. zone; William Anderson was Odessa area manager; Gary The Board has considered the record and the at- Richardson was plant manager; Dan Chew was custom tached Decision in light of the exceptions and shop section manager (foreman of the custom shop); and briefs and has decided to affirm the rulings, find- D a n R im m er was operations manager of the yard depart- ings,' and conclusions of the Administrative Law ment (foreman of the yard). I find that these individuals ings,' and conclusions of the Administrative Law pevsranaetsoteRspdn. were supervisors and agents of the Respondent. Judge and to adopt his recommended Order. In a previous case involving the same parties, the Na- tional Labor Relations Board issued a Decision and ORDER^Order dated March 14, 1980, 4 finding that the Respond- Pursuant to Section 10(c) of the National Labor ent and the Union were parties to a collective-bargaining Relations Act, as amended, the National Labor Re- agreement effective from November 15, 1975. through lations Board adopts as its Order the recommended November 15, 1978, covering the following appropriate Order of the Administrative Law Judge and u n it, fo r w h ic h t he International Union was certified in hereby orders that the complaint herein be, and it 1966: hereby is, dimissed in its entirety. All production and maintenance employees em- ployed in the maintenance, yard, custom, and tube 'The General Counsel has excepted to certain credibility findings departments by the Company at its plant located at made by the Administrative Law Judge. It is the Board's established 300 W. 61st Street in Odessa, Texas, excluding all policy not to overrule an administrative law judge's resolutions with re- other employees including administrative, estimat- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry ing, sales, engineering, purchasing, office, technical, Wall Products, Inc., 91 NLRB 544 (1950), enld. 188 F.2d 362 (3d Cir. payroll, quality control, inspection and reclamation 1951). We have carefully examined the record and find no basis for re- employees, and all foremen, guards, watchmen and versing his findings. supervisors as defined in the Act. DECISION In its Decision and Order, the Board concluded that the Respondent committed the following unfair labor prac- STATEMENT OF THE CASE tices: ALMIRA ABBOT STEVENSON, Administrative Law (1) Violations of Section 8(a)(l) of the Act: Plant Man- Judge: This case washeard ABBOT O des nsatexastonve ril ager Gary Richardson, in July or August 1978, promised Judge: This case was heard in Odessa Texas, on April Union Committeeman Keith Eddings that the Respond- 14-16, 1981. The charge and amended charge were ent would give employee bonuses if the Odessa plant served on the Respondent on or about July 14 and went nonunion, in early October 1978 promised to give August 11, 1980, respectively. The complaint was issued employee Lee Shearman a promotion and a pay raise if August 29, 1980, and was duly answered by the Re- he would get out of the Union, on or about November spondent. The issues are whether or not the Respondent violated I No issue is presented with respect to jurisdiction or labor organiza- Section 8(a)(l) of the National Labor Relations Act by tion status. Based on the allegations of the complaint and the admissions promising an employee a promotion if he discontinued of the answer, I rind that the Respondent is an employer engaged in com- merce within Sec. 2(6) and (7), and that the Charging Party Union is a his activities on behalf of the Union and threatening em- labor organization within Sec. 2(5) of the Act. ployees for engaging in union activities; violated Section Certain errors in the transcript are hereby noted and corrected. 8(a)(5) of the Act by unilaterally discontinuing the issu- Except wher e credibility is specifically discussed, the facts are sub- ance of work gloves; and violated Section 8(a)(3) by dis- stan ti al l y undisputed. P. A. Incorporaied. 248 NLRB 491 (1980). 259 NLRB No. Ill P. A. INCORPORATED 833 P. A. Incorporated and Oil, Chemical and Atomic charging Joe Ross.' For the reasons given below I rec- Workers Union, Local 4-586, International ommend that the complaint be dismissed. Union, AFL-CIO. Case 16-CA-9248 Upon the entire record, my observation of the demea- nor of the witnesses, and the briefs filed by the General December 29, 1982 Counsel and the Respondent,2 I make the following: DECISION AND ORDER FINDINGS OF FACT AND CONCLUSIONS OF LAW3 BY MEMBERS JENKINS, ZIMMERMAN, AND I. ALLEGED UNFAIR LABOR PRACTICES HUNTER A. Background On July 15, 1981, Administrative Law Judge Almira A. Stevenson issued the attached Decision T h e Respondent is engaged, at its Odessa, Texas, plant in this proceeding. Thereafter, the General Counsel in v o lv e d in t h is proceeding, in coating pipe for the oil- filed exceptions and a supporting brief, and Re- drilling industry. Its operations consist of a tube shop filed exceptions and a supporting brief, and Re-\which is more or less an assembly-line type procedure; a spondent filed an answering brief. custom shop where pipe and joints are cleaned and Pursuant to the provisions of Section 3(b) of the coated by hand; and a yard used mainly for storage. The National Labor Relations Act, as amended, the Na- employee complement is approximately 50. At material tional Labor Relations Board has delegated its au- times, John Lubke was vice president of the western thority in this proceeding to a three-member panel. zone; William Anderson was Odessa area manager; Gary The Board has considered the record and the at- Richardson was plant manager; Dan Chew was custom tached Decision in light of the exceptions and shop section manager (foreman of the custom shop); and briefs and has decided to affirm the rulings, find- D a n R im m er was operations manager of the yard depart- ings,' and conclusions of the Administrative Law ment (foreman of the yard). I find that these individuals ings,' and conclusions of the Administrative Law pevsranaetsoteRspdn. were supervisors and agents of the Respondent. Judge and to adopt his recommended Order. In a previous case involving the same parties, the Na- tional Labor Relations Board issued a Decision and ORDER^Order dated March 14, 1980, 4 finding that the Respond- Pursuant to Section 10(c) of the National Labor ent and the Union were parties to a collective-bargaining Relations Act, as amended, the National Labor Re- agreement effective from November 15, 1975. through lations Board adopts as its Order the recommended November 15, 1978, covering the following appropriate Order of the Administrative Law Judge and u n it, fo r w h ic h t he International Union was certified in hereby orders that the complaint herein be, and it 1966: hereby is, dimissed in its entirety. All production and maintenance employees em- ployed in the maintenance, yard, custom, and tube 'The General Counsel has excepted to certain credibility findings departments by the Company at its plant located at made by the Administrative Law Judge. It is the Board's established 300 W. 61st Street in Odessa, Texas, excluding all policy not to overrule an administrative law judge's resolutions with re- other employees including administrative, estimat- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry ing, sales, engineering, purchasing, office, technical, Wall Products, Inc., 91 NLRB 544 (1950), enld. 188 F.2d 362 (3d Cir. payroll, quality control, inspection and reclamation 1951). We have carefully examined the record and find no basis for re- employees, and all foremen, guards, watchmen and versing his findings. supervisors as defined in the Act. DECISION In its Decision and Order, the Board concluded that the Respondent committed the following unfair labor prac- STATEMENT OF THE CASE tices: ALMIRA ABBOT STEVENSON, Administrative Law (1) Violations of Section 8(a)(l) of the Act: Plant Man- Judge: This case washeard ABBOT O des nsatexastonve ril ager Gary Richardson, in July or August 1978, promised Judge: This case was heard in Odessa Texas, on April Union Committeeman Keith Eddings that the Respond- 14-16, 1981. The charge and amended charge were ent would give employee bonuses if the Odessa plant served on the Respondent on or about July 14 and went nonunion, in early October 1978 promised to give August 11, 1980, respectively. The complaint was issued employee Lee Shearman a promotion and a pay raise if August 29, 1980, and was duly answered by the Re- he would get out of the Union, on or about November spondent. The issues are whether or not the Respondent violated I No issue is presented with respect to jurisdiction or labor organiza- Section 8(a)(l) of the National Labor Relations Act by tion status. Based on the allegations of the complaint and the admissions promising an employee a promotion if he discontinued of the answer, I rind that the Respondent is an employer engaged in com- merce within Sec. 2(6) and (7), and that the Charging Party Union is a his activities on behalf of the Union and threatening em- labor organization within Sec. 2(5) of the Act. ployees for engaging in union activities; violated Section Certain errors in the transcript are hereby noted and corrected. 8(a)(5) of the Act by unilaterally discontinuing the issu- Except wher e credibility is specifically discussed, the facts are sub- ance of work gloves; and violated Section 8(a)(3) by dis- stan ti al l y undisputed. P. A. Incorporaied. 248 NLRB 491 (1980). 259 NLRB No. Ill 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11, 1978, promulgated to Union Committeeman Eddings . . . where relevant evidence which would properly an overly broad no-solicitation rule, and, on November be part of a case is within the control of the party 21, 1978, threatened Eddings that the Respondent would whose interest it would naturally [serve] to produce withdraw announced wage increases if the employees it, and he fails to do so, without satisfactory expla- continued to fight for the Union; (2) violations of Section nation, the [the trier of fact] may draw an adverse 8(a)(5) of the Act: on and after November 9, 1978, refus- inference that such evidence would have been unfa- ing to recognize and bargain with the Union in the ap- vorable to him. propriate unit, and on November 21, 1978, announcing unilaterally determined wage increases to the bargaining Here, the Respondent's explanation for its failure to unit employees. The Respondent has apparently taken no produce Richardson and Rimmer seemed less than satis- action to comply with the Board's Order in that case factory, especially as to Rimmer.6 But while it is perhaps which is pending before the United States Court of Ap- the usual, it is not the invariable, practice to credit the peals for the Fifth Circuit. General Counsel's witnesses in such a situation,7 and other factors prevent me from crediting Whiteside. B. Alleged Violations of Section 8(a)(1) Whiteside was prone to exaggeration; he was inconsist- The complaint alleges in effect and the answer denies ent at times; and his demeanor did not create enough that, in February 1980, Plant Manager Gary Richardson confidence in his reliability to justify accepting his word promised employee L. B. Whiteside a promotion if he without dependable corroboration. Thus, Richardson discontinued his activities on behalf of the Union; and on may have actually intended only to indicate that the Re- or about August 4, 1980, Yard Foreman Don Rimmer in- spondent's foremen were not allowed to be union mem- formed Whiteside that he could not be promoted because bers, rather than to promise him a reward for abandon- of the Union and that Rimmer had been assigned to the ing the Union. The only other testimony as to any such yard department "to get rid of all the niggers and old remark by Richardson was given by Joe Ross whom I hands" and then the Company would be rid of the find below to be an undependable witness. Further, it Union. seems unlikely that Richardson would hold out the fore- L. B. Whiteside, a black, has been employed by the man's position described by Whiteside in view of Vice Respondent 15 years. He operates a forklift in the yard President Lubke's testimony, which I credit, that the Re- where 12 employees are employed. An officer of the spondent acquired the Ralph Lowe Company on Decem- union, he was one of the union negotiators of the last ber 28, 1979; that Richardson had no authority over the collective-bargaining agreement, negotiated in 1975. He newly acquired operation; and that there were no open- testified against the Respondent in the prior NLRB pro- ings in the yard of the new operation, contrary to White- ceeding. side's testimony that the Respondent hired a man off the Whiteside testified in this case that on February 4 or 5, street to fill the yard foreman's job there. 1980, Richardson told him, in another employee's pres- The remark Whiteside attributed to Rimmer about get- ence, "that if I got out of the Union, he would make me ting rid of the Union by "firing the niggers and the old a boss of the Ralph Low[e] Yard . ..a new yard just union men" is corroborated only by testimony by Ross, acquired by the Company"; that Whiteside responded he and by testimony given by Darrell Taylor of similar re- would take the job "if the Union would come along with marks "continuously" made by Richardson, whom he al- me"; but that Richardson told him, "I had to get out of leged also referred specifically to Whiteside as a "prime the union, period, in order to get the job." Whiteside problem causer for the union" he was going to fire. also testified that on August 4, 1980, he asked Yard However, Taylor's credibility was undermined by his ad- Foreman Rimmer why he had never been promoted to mission that he has served a prison term for felony, by general operator (one of the highest paid nonsupervisory his obvious exaggerations, and by the bias against the classifications in the plant) and that Rimmer told him, on Respondent he revealed in a letter written after he quit this and several other occasions before and afterwards, the Respondent's employ. "that I couldn't make general operator because I was in Other factors which mitigate against Whiteside are the the union," and that Rimmer had been assigned as fore- dubiousness of his qualifications for the job of general man of the yard "to get rid of all the niggers and old operator featured in his testimony, and his acknowledge- union men [and] if he got rid of the niggers, he'd get rid of the union." * The fact that Rimmer was discharged does not establish, by itself, As the General Counsel points out, this testimony is that he is no longer within the Respondent's control as meant by the rule. inasmuch as neither Richardson nor Rimmer Thus, the Respondent does not assert that it does not know Rimmer's unrebutted inasmuch as neither Richardson nor Rimmer whereabouts or that it tried unsuccessfully to serve a subpea on him. As was called to the witness stand, Richardson because he to Richardson, the Respondent appears to know his whereabouts but did was hired by a Saudi Arabian company not affiliated not, as far as the record shows, apply for permission to take a deposition with the Respondent and left this country in February from him under Sec. 102.30 of the Board's Rules and Regulations, Series 1981, and Rimmer because he has been discharged and, as amended. On the other hand, I note that Richardson did not leave 1981, and Rimmer because he has been discharged and, this country until February 1981, 6 months after the charge was served as the Respondent's counsel stated, is "no longer under on the Respondent and 5 months after the complaint was issued. In these [the Respondent's] control." The General Counsel's reli- circumstances it is not clear that I would be justified in presuming that ance doubtless is on the "missing witness rule" which the Richardson would not have been available and would not have been Board has defined as follows:5 called as a witness had the hearing been scheduled during the 5-month Board has defined as follows:s period between the time the complaint was issued and the time he left the country. Martin Luther King Sr. Nursing Center, 231 NLRB 15, fn. 1 (1977). See, e.g., Delta Metals, Inc., 236 NLRB 1665, 1669 (1978). 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11, 1978, promulgated to Union Committeeman Eddings ... where relevant evidence which would properly an overly broad no-solicitation rule, and, on November be part of a case is within the control of the party 21, 1978, threatened Eddings that the Respondent would whose interest it would naturally [serve] to produce withdraw announced wage increases if the employees it, and he fails to do so, without satisfactory expla- continued to fight for the Union; (2) violations of Section nation, the [the trier of fact] may draw an adverse 8(a)(5) of the Act: on and after November 9, 1978, refus- inference that such evidence would have been unfa- ing to recognize and bargain with the Union in the ap- vorable to him. propriate unit, and on November 21, 1978, announcing unilaterally determined wage increases to the bargaining Here, the Respondent's explanation for its failure to unit employees. The Respondent has apparently taken no produce Richardson and Rimmer seemed less than satis- action to comply with the Board's Order in that case factory, especially as to Rimmer.1 But while it is perhaps which is pending before the United States Court of Ap- the usual, it is not the invariable, practice to credit the peals for the Fifth Circuit. General Counsel's witnesses in such a situation,' and other factors prevent me from crediting Whiteside. B. Alleged Violations of Section 8(a)(l) Whiteside was prone to exaggeration; he was inconsist- The complaint alleges in effect and the answer denies e nt at t i m es ; an d h is demeanor did not create enough that, in February 1980, Plant Manager Gary Richardson confidence in his reliability to justify accepting his word promised employee L. B. Whiteside a promotion if he without dependable corroboration. Thus, Richardson discontinued his activities on behalf of the Union; and on may have actually intended only to indicate that the Re- or about August 4, 1980, Yard Foreman Don Rimmer in-_ spondent's foremen were not allowed to be union mem- formed Whiteside that he could not be promoted because b ers, rath e r than to promise him a reward for abandon- of the Union and that Rimmer had been assigned to the ing the Union. The only other testimony as to any such yard department "to get rid of all the niggers and old remark by Richardson was given by Joe Ross whom I hands" and then the Company would be rid of the find below to be an undependable witness. Further, it Union. seems unlikely that Richardson would hold out the fore- L. B. Whiteside, a black, has been employed by the man's position described by Whiteside in view of Vice Respondent 15 years. He operates a forklift in the yard President Lubke's testimony, which I credit, that the Re- where 12 employees are employed. An officer of the spondent acquired the Ralph Lowe Company on Decem- union, he was one of the union negotiators of the last ber 28, 1979; that Richardson had no authority over the collective-bargaining agreement, negotiated in 1975. He newly acquired operation; and that there were no open- testified against the Respondent in the prior NLRB pro- ings in the yard of the new operation, contrary to White- ceeding. side's testimony that the Respondent hired a man off the Whiteside testified in this case that on February 4 or 5, street to fill the yard foreman's job there. 1980, Richardson told him, in another employee's pres- The remark Whiteside attributed to Rimmer about get- ence, "that if I got out of the Union, he would make me ting rid of the Union by "firing the niggers and the old a boss of the Ralph Low[e] Yard ... a new yard just union men" is corroborated only by testimony by Ross, acquired by the Company"; that Whiteside responded he and by testimony given by Darrell Taylor of similar re- would take the job "if the Union would come along with marks "continuously" made by Richardson, whom he al- me"; but that Richardson told him, "I had to get out of leged also referred specifically to Whiteside as a "prime the union, period, in order to get the job." Whiteside problem causer for the union" he was going to fire. also testified that on August 4, 1980, he asked Yard However, Taylor's credibility was undermined by his ad- Foreman Rimmer why he had never been promoted to mission that he has served a prison term for felony, by general operator (one of the highest paid nonsupervisory his obvious exaggerations, and by the bias against the classifications in the plant) and that Rimmer told him, on Respondent he revealed in a letter written after he quit this and several other occasions before and afterwards, the Respondent's employ. "that I couldn't make general operator because I was in Other factors which mitigate against Whiteside are the the union," and that Rimmer had been assigned as fore- dubiousness of his qualifications for the job of general man of the yard "to get rid of all the niggers and old operator featured in his testimony, and his acknowledge- union men [and] if he got rid of the niggers, he'd get rid of the union."*I The fact that Rimmer was discharged does not establish, by itself, As the General Counsel points out, this testimony is that he is "° longer within t he Respondent's control as meant by the rule. unrebutted inasmuch as neither Richardson nor Rimmer Thug, the Respondent does not assert that it does not know Rimmer's unrebuted inasuch asneitherRicharson norRimmer whereabouts or that it tried unsuccessfully to serve a subpe" on him. As was called to the Witness Stand, Richardson because he to Richardson, the Respondent appears to know his whereabouts but did was hired by a Saudi Arabian company not affiliated not, as far as the record shows, apply for permission to take a deposition with the Respondent and left this country in February from him under Sec. 102.30 of the Board's Rules and Regulations, Series 1981, and Rimmer because he has been discharged and, , as amended. On the other hand, I note that Richardson did not leave 1981, nd Rimer beause h has ben dicharge and, this country until February 1981, 6 months after the charge was served as the Respondent's counsel Stated, is "no longer under on the Respondent and 5 months after the complaint was issued. In these [the Respondent's] control." The General Counsel's reli- circumstances it is not clear that I would be justified in presuming that ance doubtless is on the "missing witness rule" which the Richardson would not have been available and would not have been Board has defined as follows:6 ca lled a s a w itn ess ha d the he aring b een sc hedule d during th e 5-month Board has defined as follHows~speriod between the lime the complaint was issued and the time he left the country. ' Martin Luther King Sr. Nursing Center, 231 NLRB 15, fn. 1 (1977). See, e.g., Delta Metals, Inc., 236 NLRB 1665. 1669 (1978). 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11, 1978, promulgated to Union Committeeman Eddings ... where relevant evidence which would properly an overly broad no-solicitation rule, and, on November be part of a case is within the control of the party 21, 1978, threatened Eddings that the Respondent would whose interest it would naturally [serve] to produce withdraw announced wage increases if the employees it, and he fails to do so, without satisfactory expla- continued to fight for the Union; (2) violations of Section nation, the [the trier of fact] may draw an adverse 8(a)(5) of the Act: on and after November 9, 1978, refus- inference that such evidence would have been unfa- ing to recognize and bargain with the Union in the ap- vorable to him. propriate unit, and on November 21, 1978, announcing unilaterally determined wage increases to the bargaining Here, the Respondent's explanation for its failure to unit employees. The Respondent has apparently taken no produce Richardson and Rimmer seemed less than satis- action to comply with the Board's Order in that case factory, especially as to Rimmer.1 But while it is perhaps which is pending before the United States Court of Ap- the usual, it is not the invariable, practice to credit the peals for the Fifth Circuit. General Counsel's witnesses in such a situation,' and other factors prevent me from crediting Whiteside. B. Alleged Violations of Section 8(a)(l) Whiteside was prone to exaggeration; he was inconsist- The complaint alleges in effect and the answer denies e nt at t i m es ; an d h is demeanor did not create enough that, in February 1980, Plant Manager Gary Richardson confidence in his reliability to justify accepting his word promised employee L. B. Whiteside a promotion if he without dependable corroboration. Thus, Richardson discontinued his activities on behalf of the Union; and on may have actually intended only to indicate that the Re- or about August 4, 1980, Yard Foreman Don Rimmer in-_ spondent's foremen were not allowed to be union mem- formed Whiteside that he could not be promoted because b ers, rather than to promise him a reward for abandon- of the Union and that Rimmer had been assigned to the ing the Union. The only other testimony as to any such yard department "to get rid of all the niggers and old remark by Richardson was given by Joe Ross whom I hands" and then the Company would be rid of the find below to be an undependable witness. Further, it Union. seems unlikely that Richardson would hold out the fore- L. B. Whiteside, a black, has been employed by the man's position described by Whiteside in view of Vice Respondent 15 years. He operates a forklift in the yard President Lubke's testimony, which I credit, that the Re- where 12 employees are employed. An officer of the spondent acquired the Ralph Lowe Company on Decem- union, he was one of the union negotiators of the last ber 28, 1979; that Richardson had no authority over the collective-bargaining agreement, negotiated in 1975. He newly acquired operation; and that there were no open- testified against the Respondent in the prior NLRB pro- ings in the yard of the new operation, contrary to White- ceeding. side's testimony that the Respondent hired a man off the Whiteside testified in this case that on February 4 or 5, street to fill the yard foreman's job there. 1980, Richardson told him, in another employee's pres- The remark Whiteside attributed to Rimmer about get- ence, "that if I got out of the Union, he would make me ting rid of the Union by "firing the niggers and the old a boss of the Ralph Low[e] Yard ... a new yard just union men" is corroborated only by testimony by Ross, acquired by the Company"; that Whiteside responded he and by testimony given by Darrell Taylor of similar re- would take the job "if the Union would come along with marks "continuously" made by Richardson, whom he al- me"; but that Richardson told him, "I had to get out of leged also referred specifically to Whiteside as a "prime the union, period, in order to get the job." Whiteside problem causer for the union" he was going to fire. also testified that on August 4, 1980, he asked Yard However, Taylor's credibility was undermined by his ad- Foreman Rimmer why he had never been promoted to mission that he has served a prison term for felony, by general operator (one of the highest paid nonsupervisory his obvious exaggerations, and by the bias against the classifications in the plant) and that Rimmer told him, on Respondent he revealed in a letter written after he quit this and several other occasions before and afterwards, the Respondent's employ. "that I couldn't make general operator because I was in Other factors which mitigate against Whiteside are the the union," and that Rimmer had been assigned as fore- dubiousness of his qualifications for the job of general man of the yard "to get rid of all the niggers and old operator featured in his testimony, and his acknowledge- union men [and] if he got rid of the niggers, he'd get rid of the union."*I The fact that Rimmer was discharged does not establish, by itself, As the General Counsel points out, this testimony is that he is "° longer within t he Respondent's control as meant by the rule. unrebutted inasmuch as neither Richardson nor Rimmer Thug, the Respondent does not assert that it does not know Rimmer's unrebuted inasuch asneitherRicharson norRimmer whereabouts or that it tried unsuccessfully to serve a subpe" on him. As was called to the Witness Stand, Richardson because he to Richardson, the Respondent appears to know his whereabouts but did was hired by a Saudi Arabian company not affiliated not, as far as the record shows, apply for permission to take a deposition with the Respondent and left this country in February from him under Sec. 102.30 of the Board's Rules and Regulations, Series 1981, and Rimmer because he has been discharged and, , as amended. On the other hand, I note that Richardson did not leave 1981, nd Rimer beause h has ben dicharge and, this country until February 1981, 6 months after the charge was served as the Respondent's counsel Stated, is "no longer under on the Respondent and 5 months after the complaint was issued. In these [the Respondent's] control." The General Counsel's reli- circumstances it is not clear that I would be justified in presuming that ance doubtless is on the "missing witness rule" which the Richardson would not have been available and would not have been Board has defined as follows:6 ca lled a s a w itn ess ha d the he aring b een sc hedule d during th e 5-month Board has defined as follHows~speriod between the lime the complaint was issued and the time he left the country. ' Martin Luther King Sr. Nursing Center, 231 NLRB 15, fn. 1 (1977). See, e.g., Delta Metals, Inc., 236 NLRB 1665. 1669 (1978). 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11, 1978, promulgated to Union Committeeman Eddings ... where relevant evidence which would properly an overly broad no-solicitation rule, and, on November be part of a case is within the control of the party 21, 1978, threatened Eddings that the Respondent would whose interest it would naturally [serve] to produce withdraw announced wage increases if the employees it, and he fails to do so, without satisfactory expla- continued to fight for the Union; (2) violations of Section nation, the [the trier of fact] may draw an adverse 8(a)(5) of the Act: on and after November 9, 1978, refus- inference that such evidence would have been unfa- ing to recognize and bargain with the Union in the ap- vorable to him. propriate unit, and on November 21, 1978, announcing unilaterally determined wage increases to the bargaining Here, the Respondent's explanation for its failure to unit employees. The Respondent has apparently taken no produce Richardson and Rimmer seemed less than satis- action to comply with the Board's Order in that case factory, especially as to Rimmer.1 But while it is perhaps which is pending before the United States Court of Ap- the usual, it is not the invariable, practice to credit the peals for the Fifth Circuit. General Counsel's witnesses in such a situation,' and other factors prevent me from crediting Whiteside. B. Alleged Violations of Section 8(a)(l) Whiteside was prone to exaggeration; he was inconsist- The complaint alleges in effect and the answer denies e nt at t i m es ; and h is demeanor did not create enough that, in February 1980, Plant Manager Gary Richardson confidence in his reliability to justify accepting his word promised employee L. B. Whiteside a promotion if he without dependable corroboration. Thus, Richardson discontinued his activities on behalf of the Union; and on may have actually intended only to indicate that the Re- or about August 4, 1980, Yard Foreman Don Rimmer in-_ spondent's foremen were not allowed to be union mem- formed Whiteside that he could not be promoted because b ers, rather than to promise him a reward for abandon- of the Union and that Rimmer had been assigned to the ing the Union. The only other testimony as to any such yard department "to get rid of all the niggers and old remark by Richardson was given by Joe Ross whom I hands" and then the Company would be rid of the find below to be an undependable witness. Further, it Union. seems unlikely that Richardson would hold out the fore- L. B. Whiteside, a black, has been employed by the man's position described by Whiteside in view of Vice Respondent 15 years. He operates a forklift in the yard President Lubke's testimony, which I credit, that the Re- where 12 employees are employed. An officer of the spondent acquired the Ralph Lowe Company on Decem- union, he was one of the union negotiators of the last ber 28, 1979; that Richardson had no authority over the collective-bargaining agreement, negotiated in 1975. He newly acquired operation; and that there were no open- testified against the Respondent in the prior NLRB pro- ings in the yard of the new operation, contrary to White- ceeding. side's testimony that the Respondent hired a man off the Whiteside testified in this case that on February 4 or 5, street to fill the yard foreman's job there. 1980, Richardson told him, in another employee's pres- The remark Whiteside attributed to Rimmer about get- ence, "that if I got out of the Union, he would make me ting rid of the Union by "firing the niggers and the old a boss of the Ralph Low[e] Yard ... a new yard just union men" is corroborated only by testimony by Ross, acquired by the Company"; that Whiteside responded he and by testimony given by Darrell Taylor of similar re- would take the job "if the Union would come along with marks "continuously" made by Richardson, whom he al- me"; but that Richardson told him, "I had to get out of leged also referred specifically to Whiteside as a "prime the union, period, in order to get the job." Whiteside problem causer for the union" he was going to fire. also testified that on August 4, 1980, he asked Yard However, Taylor's credibility was undermined by his ad- Foreman Rimmer why he had never been promoted to mission that he has served a prison term for felony, by general operator (one of the highest paid nonsupervisory his obvious exaggerations, and by the bias against the classifications in the plant) and that Rimmer told him, on Respondent he revealed in a letter written after he quit this and several other occasions before and afterwards, the Respondent's employ. "that I couldn't make general operator because I was in Other factors which mitigate against Whiteside are the the union," and that Rimmer had been assigned as fore- dubiousness of his qualifications for the job of general man of the yard "to get rid of all the niggers and old operator featured in his testimony, and his acknowledge- union men [and] if he got rid of the niggers, he'd get rid of the union."*I The fact that Rimmer was discharged does not establish, by itself, As the General Counsel points out, this testimony is that he is "° longer within t he Respondent's control as meant by the rule. unrebutted inasmuch as neither Richardson nor Rimmer Thug, the Respondent does not assert that it does not know Rimmer's unrebuted inasuch asneitherRicharson norRimmer whereabouts or that it tried unsuccessfully to serve a subpe" on him. As was called to the Witness Stand, Richardson because he to Richardson, the Respondent appears to know his whereabouts but did was hired by a Saudi Arabian company not affiliated not, as far as the record shows, apply for permission to take a deposition with the Respondent and left this country in February from him under Sec. 102.30 of the Board's Rules and Regulations, Series 1981, and Rimmer because he has been discharged and, , as amended. On the other hand, I note that Richardson did not leave 1981, nd Rimer beause h has ben dicharge and, this country until February 1981, 6 months after the charge was served as the Respondent's counsel Stated, is "no longer under on the Respondent and 5 months after the complaint was issued. In these [the Respondent's] control." The General Counsel's reli- circumstances it is not clear that I would be justified in presuming that ance doubtless is on the "missing witness rule" which the Richardson would not have been available and would not have been Board has defined as follows:6 ca lled a s a w itn ess ha d the he aring b een sc hedule d during th e 5-month Board has defined as follHows~speriod between the lime the complaint was issued and the time he left the country. ' Martin Luther King Sr. Nursing Center, 231 NLRB 15, fn. 1 (1977). See, e.g., Delta Metals, Inc., 236 NLRB 1665. 1669 (1978). P. A. INCORPORATED 835 ment that other blacks and union supporters prospered at D. Alleged Violation of Section 8(a)(3) the Respondent's plant before the charge was filed in this T c a t t casesuchasRo Bron , an r m e The complaint alleges that the Respondent discharged case, such as Roy Brown, another member of the 1975 Joe Ross on January 21, 1980, because he joined or as- negotiating team, promoted in October 1979 and Febru- sisted the Union or engaged in union or protected con- ary 1980; Harrison Stewart, a black man who also testi- certed activities. The Respondent contends Ross was dis- fied against the Respondent in the prior unfair labor charged for cause practice proceeding, promoted to general operator in April 1980; and Adam Hignojos, a union committeeman 1. Facts in 1978, promoted to general operator in the custom shop in 1978 and foreman of the custom shop in April Joe Ross was employed at this plant for 17 years. 1980. Around 1972 Ross was assigned to the custom shop as a Accordingly, I find that these allegations are not sup- sandblaster. He progressed to operator and in 1975 or ported by credible evidence, and I conclude that they 1976 was appointed general operator.1 At the time of must be dismissed. Ross' discharge on January 21, 1980, the custom shop complement consisted of Dan Chew who had been fore- C. Alleged Violation of Section 8(a)(5) man since 1978; Adam Hignojos employed 3 years and a general operator for 2 years; Arthur Gonzales, an opera- The complaint alleges, and the answer denies, that in tor; and Richard French and one other employee (Joe) July 1980 the Respondent refused to bargain with the who were sandblasters. Dan Chew was a member of the Union by unilaterally discontinuing its prior practice of Union until appointed to his first supervisory position in issuing work gloves to employees in the yard depart- 1974. Adam Hignojos was a union committee member in ment. 1978 and as such participated in the contract negotiations The complaint alleges and the Board made a finding in of October and November that year; he attended the its Decision and Order at 248 NLRB 491, which is bind- hearing held in the prior NLRB proceeding in April and ing on me, that the Union is the exclusive bargaining June 1979 relating to those negotiations, sitting with the representative of an appropriate unit of all production General Counsel and union officials. Richard French was and maintenance employees at this plant. a member of the Union in September and October 1978. It has long been the Respondent's practice to issue Joe Ross resigned his union membership in September rubber-like chemical-covered fabric gloves costing about 1969 and has never rejoined, nor has he attended any $5 a pair to its employees, including its yard employees meetings of the Union. who received a pair a week. In late July 1980, Wayne Ross was considered by management and employees to Hale, who had become plant manager the preceding be an experienced, skilled, and knowledgeable employee. April, noticed gloves strewn about the premises includ- Ross received no discipline or reprimands until the ing the yard, and issued instructions to all supervisors to events involved in this case. During the summer of 1979, "attempt to control the use of gloves and stop the Ross received an award for 15 years' service with the waste." Hale did not intend to stop the distribution of gloves entirely but one of his supervisors, Dan Rimmer, I "The function of the custom shop is to clean steel pipe used by the oil drilling industry and coat it with plastic to retard rust and corrosion. foreman of the yard, informed the yard employees that Whereas the tube shop deals only with straight pipe and pipe joints, the Hale had forbidden him to issue any gloves because they custom shop does more difficult work with fabrications, crooked joints, were too expensive. The Union was not notified of or vessels, valves, and collars of various shapes and sizes. The pipe is blown out to remove sand and dirt and then burned to remove grease, oil, and bargained with about Rimmer's action. parsfin; it is then wheelabrated (thrown into a spinner and cleaned with In early August, Vice President Lubke informed Hale steel grit), sandblasted with a hose, primed, and coated. that a complaint had been made to the NLRB (the perti- ": A general operator is usually an experienced employee who is capa- nent charge was served on the Respondent August 12). ble of doing any type of coating and is paid about 20 cents an hour more than an operator who is skilled in only one type. Hale thereupon investigated and, upon discovering that 1 I cannot credit any of Ross' testimony regarding coercive remarks Rimmer had quit issuing gloves altogether, ordered Plant Manager Richardson allegedly made to him during 1978 and 1979. Rimmer "to start issuing gloves, like we had been doing that he was going to get rid of the old hands, old folks, the niggers, Ross, before." 8 Whiteside, and anybody that was with the Union; that Richardson of- D~~bef ~o~re~~.f~"'s~ ^fered Ross a bonus and a foreman's job if he would help get a petition In my opinion, Rimmer's conduct did not amount to started to get rid of the Union; nor Ross' testimony about starting to talk "a material, substantial [or] significant" unilateral change about being interested in joining the Union. This testimony was vague in working conditions.9 On the contrary, it was a simple and inconsistent as to what Richardson allegedly said, when he said it. and how it affected Ross' relationship with Richardson; and it conflicted mistake with minimal effect on only a few employees for with other testimony by Ross that Richardson was praising his work and a brief period of time, rectified immediately upon being telling him "not to let those damn Mexicans get the best of me," appar- brought to the plant manager's attention. ' I therefore ently during the same period. Ross did not say he told Richardson or any conclude that this allegation should be dismissed. other member of management he was interested in joining the Union nor was there any statement to that effect in his pretrial affidavit. Nor can I credit Darrell Taylor that once in August 1979, and approximately 25 'Based on Hale's credited testimony. I cannot credit Whiteside that no times after that during Taylor's last 2 months of employment, he recom- gloves were issued for a period of 3 months. mended that Richardson promote Ross to foreman and Richardson re- 'See Peerless Food Products, Inc., 236 NLRB 161 (1978). plied, "Hell, no, he's not going to promote that union-loving son of a 'O Peerless Food Products, Inc., supra; Bureau of National Affairs. Inc., bitch; he'd get rid of him." In addition to other considerations relevant to 235 NLRB 8 (1978). 1 find it unnecessary to rule on additional grounds Taylor's unreliability set forth above, this testimony is also inconsistent advanced by the Respondent for dismissing this allegation with testimony by Ross heretofore recited. P. A. INCORPORATED 835 ment that other blacks and union supporters prospered at D. Alleged Violation of Section 8(a)(3) the Respondent's plant before the charge was filed in this T c ae t t R discarge ' n n .1. u ri. imc ~~~~~The comp amnt a leges that the Respondent discharged case, such as Roy Brown, another member of the 1975 J January 21, 1980, because he joined or as- n ego tiating team, p romo t ed in O c t o ber 19 79 an d F eb r u - sisted the Union or engaged in union or protected con- ary 1980; Harrison Stewart, a black man who also testi- certed activities. The Respondent contends Ross was dis- fied against the Respondent in the prior unfair labor charged for cause. practice proceeding, promoted to general operator in April 1980; and Adam Hignojos, a union committeeman 1. Facts in 1978, promoted to general operator in the custom shop in 1978 and foreman of the custom shop in April Joe Ross was employed at this plant for 17 years. 1980. Around 1972 Ross was assigned to the custom shop as a Accordingly, I find that these allegations are not sup- sandblaster. u He progressed to operator and in 1975 or ported by credible evidence, and I conclude that they 19 7 6 w a s appointed general operator." At the time of must be dismissed. R o ss ' discharge on January 21, 1980, the custom shop complement consisted of Dan Chew who had been fore- C. Alleged Violation of Section 8(a)(5) m a n si n c e 19 7 8; A d a m Hignojos employed 3 years and a general operator for 2 years; Arthur Gonzales, an opera- The complaint alleges, and the answer denies, that in tor; and Richard French and one other employee (Joe) July 1980 the Respondent refused to bargain with the who were sandblasters. Dan Chew was a member of the Union by unilaterally discontinuing its prior practice of Union until appointed to his first supervisory position in issuing work gloves to employees in the yard depart- 1974. Adam Hignojos was a union committee member in ment. 1978 and as such participated in the contract negotiations The complaint alleges and the Board made a finding in of October and November that year; he attended the its Decision and Order at 248 NLRB 491, which is bind- hearing held in the prior NLRB proceeding in April and ing on me, that the Union is the exclusive bargaining June 1979 relating to those negotiations, sitting with the representative of an appropriate unit of all production General Counsel and union officials. Richard French was and maintenance employees at this plant. a member of the Union in September and October 1978. It has long been the Respondent's practice to issue J o e Ross resigned his union membership in September rubber-like chemical-covered fabric gloves costing about 19 6 9 a n d h a s n e v e r rejoined, nor has he attended any $5 a pair to its employees, including its yard employees meetings of the Union." who received a pair a week. In late July 1980, Wayne Ross was considered by management and employees to Hale, who had become plant manager the preceding be an experienced, skilled, and knowledgeable employee. April, noticed gloves strewn about the premises includ- Ross received no discipline or reprimands until the ing the yard, and issued instructions to all supervisors to e v e n t s involved in this case. During the summer of 1979, "attempt to control the use of gloves and stop the Ross received an award for 15 years' service with the waste." Hale did not intend to stop the distribution of gloves entirely but one of his supervisors, Dan Rimmer, " T he f unction of the c ustom shop is to clean steel pipe used by the oil drilling industry and coat it with plastic to retard rust and corrosion. foreman Of the yard, informed the yard employees that Whereas the tube shop deals only with straight pipe and pipe joints, the Hale had forbidden him to issue any gloves because they custom shop does more difficult work with fabrications, crooked joints, were too expensive. The Union was not notified of or v essels, v a lves, an d c o llars o f va rio us shapes and sizes. T h e pipe is b lo wn out to remove sand and dirt and then burned to remove grease, oil, and bargained With about Rimmer's action. parafin; it is then wheelabrated (thrown into a spinner and cleaned with In early August, Vice President Lubke informed Hale steel grit), sandblasted with a hose, primed, and coated. that a complaint had been made to the NLRB (the perti- " A general operator is usually an experienced employee who is capa- nent charge was served on the Respondent August 12). ble of doing any type of coating and is paid about 20 cents an hour more than an operator who is skilled in only one type. Hale thereupon investigated and, Upon discovering that 1I cannot credit any of Ross' testimony regarding coercive remarks Rimmer had quit issuing gloves altogether, ordered Plant Manager Richardson allegedly made to him during 1978 and 1979. Rimmer "to start issuing gloves, like we had been doing t ha t he w as going to get rid of the old hands, old folks, the niggers, Ross, .„for 8 ,,gWhiteside, and anybody that was with the Union; that Richardson of- be fore."' fered Ross a bonus and a foreman's job if he would help get a petition In my Opinion, Rimmer's conduct did not amount to started to get rid of the Union; nor Ross' testimony about starting to talk "a material, substantial [or] significant" unilateral change about being interested in joining the Union. This testimony was vague in working conditions.9 On the contrary, it was a simple and inconsistent as to what Richardson allegedly said, when he said it, and how it affected Ross' relationship with Richardson; and it conflicted mistake With minimal effect on only a few employees for with other testimony by Ross that Richardson was praising his work and a brief period of time, rectified immediately upon being telling him "not to let those damn Mexicans get the best of me," appar- brought to the plant manager's attention. 10 I therefore e"'ly during the same period. R oss did no t say h c to ld Richardson or any -onclude .hat .. is , llegation ... uld ,. ,.smisd , -other member of management he was interested in joining the Union nor conclude that this allegation should be dismissed. was there any statement to that effect in his pretrial afidvit. Nor can I credit Darrell Taylor that once in August 1979, and approximately 25 'Based on Hale's credited testimony. I cannot credit Whiteside that no times after that during Taylor's last 2 months of employment, he recom- gloves were issued for a period of 3 months. mended that Richardson promote Ross to foreman and Richardson re- "Sec Peerless Food Products, Inc., 236 NLRB 161 (1978). plied, "Hell. no, he's not going to promote that union-loving son of a 10 Peerless Food Products, Inc.. supra; Bureau of National Affairs. Inc., bitch; he'd get rid of him." In addition to other considerations relevant to 235 NLRB 8 (1978). 1 find it unnecessary to rule on additional grounds Taylor's unreliability set forth above, this testimony is also inconsistent advanced by the Respondent for dismissing this allegation.with testimony by Ross heretofore recited. P. A. INCORPORATED 835 ment that other blacks and union supporters prospered at D. Alleged Violation of Section 8(a)(3) the Respondent's plant before the charge was filed in this T c ae t t R discarge ' n n .1. u ri. imc ~~~~~The comp amnt a leges that the Respondent discharged case, such as Roy Brown, another member of the 1975 J January 21, 1980, because he joined or as- n ego tiating team, p romo t ed in O c t o ber 19 79 an d F eb r u - sisted the Union or engaged in union or protected con- ary 1980; Harrison Stewart, a black man who also testi- certed activities. The Respondent contends Ross was dis- fied against the Respondent in the prior unfair labor charged for cause. practice proceeding, promoted to general operator in April 1980; and Adam Hignojos, a union committeeman 1. Facts in 1978, promoted to general operator in the custom shop in 1978 and foreman of the custom shop in April Joe Ross was employed at this plant for 17 years. 1980. Around 1972 Ross was assigned to the custom shop as a Accordingly, I find that these allegations are not sup- sandblaster. u He progressed to operator and in 1975 or ported by credible evidence, and I conclude that they 19 7 6 w a s appointed general operator." At the time of must be dismissed. R o ss ' discharge on January 21, 1980, the custom shop complement consisted of Dan Chew who had been fore- C. Alleged Violation of Section 8(a)(5) m a n si n c e 19 7 8; A d a m Hignojos employed 3 years and a general operator for 2 years; Arthur Gonzales, an opera- The complaint alleges, and the answer denies, that in tor; and Richard French and one other employee (Joe) July 1980 the Respondent refused to bargain with the who were sandblasters. Dan Chew was a member of the Union by unilaterally discontinuing its prior practice of Union until appointed to his first supervisory position in issuing work gloves to employees in the yard depart- 1974. Adam Hignojos was a union committee member in ment. 1978 and as such participated in the contract negotiations The complaint alleges and the Board made a finding in of October and November that year; he attended the its Decision and Order at 248 NLRB 491, which is bind- hearing held in the prior NLRB proceeding in April and ing on me, that the Union is the exclusive bargaining June 1979 relating to those negotiations, sitting with the representative of an appropriate unit of all production General Counsel and union officials. Richard French was and maintenance employees at this plant. a member of the Union in September and October 1978. It has long been the Respondent's practice to issue J o e Ross resigned his union membership in September rubber-like chemical-covered fabric gloves costing about 19 6 9 a n d h a s n e v e r rejoined, nor has he attended any $5 a pair to its employees, including its yard employees meetings of the Union." who received a pair a week. In late July 1980, Wayne Ross was considered by management and employees to Hale, who had become plant manager the preceding be an experienced, skilled, and knowledgeable employee. April, noticed gloves strewn about the premises includ- Ross received no discipline or reprimands until the ing the yard, and issued instructions to all supervisors to e v e n t s involved in this case. During the summer of 1979, "attempt to control the use of gloves and stop the Ross received an award for 15 years' service with the waste." Hale did not intend to stop the distribution of gloves entirely but one of his supervisors, Dan Rimmer, " T he f unction of the c ustom shop is to clean steel pipe used by the oil drilling industry and coat it with plastic to retard rust and corrosion. foreman Of the yard, informed the yard employees that Whereas the tube shop deals only with straight pipe and pipe joints, the Hale had forbidden him to issue any gloves because they custom shop does more difficult work with fabrications, crooked joints, were too expensive. The Union was not notified of or v essels, v a lves, an d c o llars o f va rio us shapes and sizes. T h e pipe is b lo wn out to remove sand and dirt and then burned to remove grease, oil, and bargained With about Rimmer's action. parafin; it is then wheelabrated (thrown into a spinner and cleaned with In early August, Vice President Lubke informed Hale steel grit), sandblasted with a hose, primed, and coated. that a complaint had been made to the NLRB (the perti- " A general operator is usually an experienced employee who is capa- nent charge was served on the Respondent August 12). ble of doing any type of coating and is paid about 20 cents an hour more than an operator who is skilled in only one type. Hale thereupon investigated and, Upon discovering that 1I cannot credit any of Ross' testimony regarding coercive remarks Rimmer had quit issuing gloves altogether, ordered Plant Manager Richardson allegedly made to him during 1978 and 1979. Rimmer "to start issuing gloves, like we had been doing t ha t he w as going to get rid of the old hands, old folks, the niggers, Ross, ,eore8 ,,gWhiteside, and anybody that was with the Union; that Richardson of- be fore."' fered Ross a bonus and a foreman's job if he would help get a petition In my Opinion, Rimmer's conduct did not amount to started to get rid of the Union; nor Ross' testimony about starting to talk "a material, substantial [or] significant" unilateral change about being interested in joining the Union. This testimony was vague in working conditions.9 On the contrary, it was a simple and inconsistent as to what Richardson allegedly said, when he said it, and how it affected Ross' relationship with Richardson; and it conflicted mistake With minimal effect on only a few employees for with other testimony by Ross that Richardson was praising his work and a brief period of time, rectified immediately upon being telling him "not to let those damn Mexicans get the best of me," appar- brought to the plant manager's attention. 10 I therefore e"'ly during the same period. R oss did no t say h c to ld Richardson or any -onclude .hat .. is , llegation ... uld ,. ,.smisd , -other member of management he was interested in joining the Union nor conclude that this allegation should be dismissed. was there any statement to that effect in his pretrial afidvit. Nor can I credit Darrell Taylor that once in August 1979, and approximately 25 'Based on Hale's credited testimony. I cannot credit Whiteside that no times after that during Taylor's last 2 months of employment, he recom- gloves were issued for a period of 3 months. mended that Richardson promote Ross to foreman and Richardson re- "Sec Peerless Food Products, Inc., 236 NLRB 161 (1978). plied, "Hell. no, he's not going to promote that union-loving son of a 10 Peerless Food Products, Inc.. supra; Bureau of National Affairs. Inc., bitch; he'd get rid of him." In addition to other considerations relevant to 235 NLRB 8 (1978). 1 find it unnecessary to rule on additional grounds Taylor's unreliability set forth above, this testimony is also inconsistent advanced by the Respondent for dismissing this allegation.with testimony by Ross heretofore recited. P. A. INCORPORATED 835 ment that other blacks and union supporters prospered at D. Alleged Violation of Section 8(a)(3) the Respondent's plant before the charge was filed in this T c ae t t R discarge ' n n .1. u ri. imc ~~~~~The comp amnt a leges that the Respondent discharged case, such as Roy Brown, another member of the 1975 J January 21, 1980, because he joined or as- n ego tiating team, p romo t ed in O c t o ber 19 79 an d F eb r u - sisted the Union or engaged in union or protected con- ary 1980; Harrison Stewart, a black man who also testi- certed activities. The Respondent contends Ross was dis- fied against the Respondent in the prior unfair labor charged for cause. practice proceeding, promoted to general operator in April 1980; and Adam Hignojos, a union committeeman 1. Facts in 1978, promoted to general operator in the custom shop in 1978 and foreman of the custom shop in April Joe Ross was employed at this plant for 17 years. 1980. Around 1972 Ross was assigned to the custom shop as a Accordingly, I find that these allegations are not sup- sandblaster. u He progressed to operator and in 1975 or ported by credible evidence, and I conclude that they 19 7 6 w a s appointed general operator." At the time of must be dismissed. R o ss ' discharge on January 21, 1980, the custom shop complement consisted of Dan Chew who had been fore- C. Alleged Violation of Section 8(a)(5) m a n si n c e 19 7 8; A d a m Hignojos employed 3 years and a general operator for 2 years; Arthur Gonzales, an opera- The complaint alleges, and the answer denies, that in tor; and Richard French and one other employee (Joe) July 1980 the Respondent refused to bargain with the who were sandblasters. Dan Chew was a member of the Union by unilaterally discontinuing its prior practice of Union until appointed to his first supervisory position in issuing work gloves to employees in the yard depart- 1974. Adam Hignojos was a union committee member in ment. 1978 and as such participated in the contract negotiations The complaint alleges and the Board made a finding in of October and November that year; he attended the its Decision and Order at 248 NLRB 491, which is bind- hearing held in the prior NLRB proceeding in April and ing on me, that the Union is the exclusive bargaining June 1979 relating to those negotiations, sitting with the representative of an appropriate unit of all production General Counsel and union officials. Richard French was and maintenance employees at this plant. a member of the Union in September and October 1978. It has long been the Respondent's practice to issue J o e Ross resigned his union membership in September rubber-like chemical-covered fabric gloves costing about 19 6 9 a n d h a s n e v e r rejoined, nor has he attended any $5 a pair to its employees, including its yard employees meetings of the Union." who received a pair a week. In late July 1980, Wayne Ross was considered by management and employees to Hale, who had become plant manager the preceding be an experienced, skilled, and knowledgeable employee. April, noticed gloves strewn about the premises includ- Ross received no discipline or reprimands until the ing the yard, and issued instructions to all supervisors to e v e n t s involved in this case. During the summer of 1979, "attempt to control the use of gloves and stop the Ross received an award for 15 years' service with the waste." Hale did not intend to stop the distribution of gloves entirely but one of his supervisors, Dan Rimmer, " T he f unction of the c ustom shop is to clean steel pipe used by the oil drilling industry and coat it with plastic to retard rust and corrosion. foreman Of the yard, informed the yard employees that Whereas the tube shop deals only with straight pipe and pipe joints, the Hale had forbidden him to issue any gloves because they custom shop does more difficult work with fabrications, crooked joints, were too expensive. The Union was not notified of or v essels, v a lves, an d c o llars o f va rio us shapes and sizes. T h e pipe is b lo wn out to remove sand and dirt and then burned to remove grease, oil, and bargained With about Rimmer's action. parafin; it is then wheelabrated (thrown into a spinner and cleaned with In early August, Vice President Lubke informed Hale steel grit), sandblasted with a hose, primed, and coated. that a complaint had been made to the NLRB (the perti- " A general operator is usually an experienced employee who is capa- nent charge was served on the Respondent August 12). ble of doing any type of coating and is paid about 20 cents an hour more than an operator who is skilled in only one type. Hale thereupon investigated and, Upon discovering that 1I cannot credit any of Ross' testimony regarding coercive remarks Rimmer had quit issuing gloves altogether, ordered Plant Manager Richardson allegedly made to him during 1978 and 1979. Rimmer "to start issuing gloves, like we had been doing t ha t he w as going to get rid of the old hands, old folks, the niggers, Ross, ,eore8 ,,gWhiteside, and anybody that was with the Union; that Richardson of- be fore."' fered Ross a bonus and a foreman's job if he would help get a petition In my Opinion, Rimmer's conduct did not amount to started to get rid of the Union; nor Ross' testimony about starting to talk "a material, substantial [or] significant" unilateral change about being interested in joining the Union. This testimony was vague in working conditions.9 On the contrary, it was a simple and inconsistent as to what Richardson allegedly said, when he said it, and how it affected Ross' relationship with Richardson; and it conflicted mistake With minimal effect on only a few employees for with other testimony by Ross that Richardson was praising his work and a brief period of time, rectified immediately upon being telling him "not to let those damn Mexicans get the best of me," appar- brought to the plant manager's attention. 10 I therefore e"'ly during the same period. R oss did no t say h c to ld Richardson or any -onclude .hat .. is , llegation ... uld ,. ,.smisd , -other member of management he was interested in joining the Union nor conclude that this allegation should be dismissed. was there any statement to that effect in his pretrial afidvit. Nor can I credit Darrell Taylor that once in August 1979, and approximately 25 'Based on Hale's credited testimony. I cannot credit Whiteside that no times after that during Taylor's last 2 months of employment, he recom- gloves were issued for a period of 3 months. mended that Richardson promote Ross to foreman and Richardson re- "Sec Peerless Food Products, Inc., 236 NLRB 161 (1978). plied, "Hell. no, he's not going to promote that union-loving son of a 10 Peerless Food Products, Inc.. supra; Bureau of National Affairs. Inc., bitch; he'd get rid of him." In addition to other considerations relevant to 235 NLRB 8 (1978). 1 find it unnecessary to rule on additional grounds Taylor's unreliability set forth above, this testimony is also inconsistent advanced by the Respondent for dismissing this allegation.with testimony by Ross heretofore recited. 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD company, and was told at that time by Foreman Chew return, Chew posted a notice dated October 26, 1979, de- that he "did a good job," and by Executive Vice Presi- scribing Ross' and Hignojos' duties in another attempt to dent Ward that "we appreciate your work." resolve the conflict between them. The notice put Ross Ross was disappointed that Chew was designated fore- in charge of equipment maintenance and Hignojos in man of the custom shop instead of him and he was charge of coating operations. 1 6 "hurt" that Hignojos was promoted to the same level of In December 1979 a large quantity of 10-inch pipe and general operator occupied by Ross when Hignojos had pup joints which the Company had coated for Gulf Oil so much less experience than Ross. Although Chew des- Company was returned to be checked for improper coat- ignated Ross the ranking general operator, because, he ing and for recoating if necessary. Chew assigned the said, Ross was the senior employee in the shop and testing, or sparking, job to Ross. On December 30, Ross Chew looked up to and respected him, conflict neverthe- borrowed a lift from the yard, carried the pipe to the air- less developed between Ross and Hignojos. Hignojos hose, and blew the sand and grit out of it. On December said the conflict was caused by Ross' favoring short cuts 31, Ross did the sparking and reported that some of the in the work and refusing to do his share. Richard French pipe had holidays (flaws in the coating) but the pups confirmed that Ross "slacked off" during his last 2-1/2 were holiday free. Chew and Richardson, in Ross' pres- or 3 years and particularly during his last 6 months when ence, checked Ross' work and found some of the pipe "you wouldn't be able to find him, when you needed Ross had marked good had holidays and some of the pup him." Chew agreed, reciting an occasion in August 1979 joints were not holiday free. Chew wrote this incident when the shop was engaged in a special assignment and up in a memo to Richardson on January 7, 1980. When Ross refused to work overtime and left without telling Chew discussed the incident with Ross, Ross denied tell- Chew. ing Chew that the pups were holiday free, so Chew In late August or early September 1979 while Chew wrote another memo to Richardson, with copies to Vice was on vacation, the conflict between Ross and Hignojos President Lubke and Area Manager Anderson, on Janu- came to a head when Hignojos refused Ross' order to ary 8, affirming his January 7 report despite Ross' denial. load some pipe because he felt Ross should load them Chew added that some of the pipe that Ross had marked himself and shortly thereafter Hignojos needed Ross to bad had no holidays and some he had marked good were help shoot (coat) couplings and found Ross in the plant bad when he and Richardson resparked them. Chew's bathroom shaving. Hignojos took the matter to Richard- memo continued: son who talked with the two of them separately. In his interview, Hignojos complained that Ross did not do his He is irresponsible. This man interferes with pro- share and encouraged the employees to do slipshod duction and the morale of the employees. He was work. Richardson told him to continue doing his own transferred to the tube shop because he could not work the way it was supposed to be done and not to work with the employees at the custom shop. worry about Ross. Ross testified that Richardson was Within two weeks he had cuased [sic] the same fric- only "trying to create trouble between us" by telling tion in Tube Shop. He was put back in the custom each of them he was a boss. When Chew returned from shop. He has been a problem for a long time. I am vacation, Richardson informed him that Hignojos had requesting his transfer or termination. 7 complained about Ross' not doing his share of the work, On January 15, Ross was summoned to Richardson's and Chew responded that something should be done office where, in the presence of Chew and Area Man- about the conflict between them. Richardson promised to ager William Anderson, Richardson confronted Ross think about it. A few weeks later Chew complained with his poor performance, and asked if there was a again about the problem and Richardson sent for Ross reason for it as they were all there to help him. Ross re- and offered him the job of coupling coordinator in the tube shop and Ross accepted it. Ross testified that Rich- the custom shop could not keep up. I find that this was not the reason for ardson told him at this interview, "I was creating prob- Ross' return to the custom shop. lems up there at the Custom Shop."'4 ' I cannot believe Ross' testimony that Richardson told him at that Things went smoothly in the custom sp w e Rs time he put him in charge of maintenance because it would give him a Things went smoothly the custom shop whie Ross wage increase and Ross would "be above the other guy." Ross did not was in the tube shop, but after about 2 weeks Richardson receive an increase. told Chew he had to transfer Ross back because "he got 1 The facts with regard to this incident are based on the credited testi- to visiting the working hands down there [in the tube mony of Chew supported by documentary evidence. I consider Chew, shop] too much and the supervisors were throwing a fit who is no longer employed by the Respondent and whose demeanor was about it." Ross testified Richardson told him he was cre- very impressive, generally the most credible of the witnesses. Ross' ac- ,,ing prob the tube shop, , but Ross denied it on count was too inconsistent and improbable to be believed. Thus, he said ating problems in the tube shop, but Ross denied it on he reported some of the pup joints bad and some holiday free; that he the grounds that he could not even communicate with also agreed with Chew that he reported all the pup joints holiday free the employees in the tube shop, much less create prob- and denied he ever told Chew he had not done so. Ross also testified that lems, because he could not speak Spanish with them and the pipe which sparked did so because it was full of sand and debris which he wanted to blow out but was refused a lift to carry it to the they could not speak English with him.15 Upon Ross' which he wanted to blow out but when Chew and Richardson tested it because, although still full of sand and grit, they "had the ground off' so " At another point, Ross testified that neither Richardson or Chew dis- the test could not produce sparks. At another point, Ross indicated that cussed his transfer to the tube shop with him. the pipe he reported he had did not spark when Chew and Richardson " Ross testified at another point that he was transferred back to the tested it because they blew the sand and grit out of it before they sparked custom shop because he turned out so many collars in the tube shop that it, which they had not allowed him to do. 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD company, and was told at that time by Foreman Chew return, Chew posted a notice dated October 26, 1979, de- that he "did a good job," and by Executive Vice Presi- scribing Ross' and Hignojos' duties in another attempt to dent Ward that "we appreciate your work." resolve the conflict between them. The notice put Ross Ross was disappointed that Chew was designated fore- in charge of equipment maintenance and Hignojos in man of the custom shop instead of him and he was charge of coating operations. 16 "hurt" that Hignojos was promoted to the same level of In December 1979 a large quantity of 10-inch pipe and general operator occupied by Ross when Hignojos had pup joints which the Company had coated for Gulf Oil so much less experience than Ross. Although Chew des- Company was returned to be checked for improper coat- ignated Ross the ranking general operator, because, he ing and for recoating if necessary. Chew assigned the said, Ross was the senior employee in the shop and testing, or sparking, job to Ross. On December 30, Ross Chew looked up to and respected him, conflict neverthe- borrowed a lift from the yard, carried the pipe to the air- less developed between Ross and Hignojos. Hignojos hose, and blew the sand and grit out of it. On December said the conflict was caused by Ross' favoring short cuts 31, Ross did the sparking and reported that some of the in the work and refusing to do his share. Richard French pipe had holidays (flaws in the coating) but the pups confirmed that Ross "slacked off' during his last 2-1/2 were holiday free. Chew and Richardson, in Ross' pres- or 3 years and particularly during his last 6 months when ence, checked Ross' work and found some of the pipe "you wouldn't be able to find him, when you needed Ross had marked good had holidays and some of the pup him." Chew agreed, reciting an occasion in August 1979 joints were not holiday free. Chew wrote this incident when the shop was engaged in a special assignment and up in a memo to Richardson on January 7, 1980. When Ross refused to work overtime and left without telling Chew discussed the incident with Ross, Ross denied tell- Chew. ing Chew that the pups were holiday free, so Chew In late August or early September 1979 while Chew wrote another memo to Richardson, with copies to Vice was on vacation, the conflict between Ross and Hignojos President Lubke and Area Manager Anderson, on Janu- came to a head when Hignojos refused Ross' order to ary 8, affirming his January 7 report despite Ross' denial. load some pipe because he felt Ross should load them Chew added that some of the pipe that Ross had marked himself and shortly thereafter Hignojos needed Ross to bad had no holidays and some he had marked good were help shoot (coat) couplings and found Ross in the plant bad when he and Richardson resparked them. Chew's bathroom shaving. Hignojos took the matter to Richard- memo continued: son who talked with the two of them separately. In his interview, Hignojos complained that Ross did not do his H e is irresponsible. This man interferes with pro- share and encouraged the employees to do slipshod duction and the morale of the employees. He was work. Richardson told him to continue doing his own transferred to the tube shop because he could not work the way it was supposed to be done and not to work with the employees at the custom shop. worry about Ross. Ross testified that Richardson was Within two weeks he had cuased [sic] the same fric- only "trying to create trouble between us" by telling tion in Tube Shop. He was put back in the custom each of them he was a boss. When Chew returned from shop. He has been a problem for a long time. I am vacation, Richardson informed him that Hignojos had requesting his transfer or termination. 1T complained about Ross' not doing his share of the work, On January 15, Ross was summoned to Richardson's and Chew responded that something should be done office where, in the presence of Chew and Area Man- about the conflict between them. Richardson promised to ager William Anderson, Richardson confronted Ross think about it. A few weeks later Chew complained with his poor performance, and asked if there was a again about the problem and Richardson sent for Ross reason for it as they were all there to help him. Ross re- and offered him the job of coupling coordinator in the tube shop and Ross accepted it. Ross testified that Rich- the custom shop could not keep up. I find that this was not the reason for ardson told him at this interview, "I was creating prob- Ross' return to the custom shop. lems Up there at the Custom Shop."" 1 I cann o t be lie v e R oss' testimony that Richardson told him at that _,ings . ent .„oothly .n .,e .ustom .hop ,.,le ioss time he put him in charge of maintenance because it would give him a Things went smoothly in the custom shop while Ross wage increase and ROss would "be above the other guy." Ross did not was in the tube shop, but after about 2 weeks Richardson receive an increase. told Chew he had to transfer Ross back because "he got „ The facts with regard to this incident are based on the credited lesti- to Visiting the working hands down there [in the tube mony of Chew supported by documentary evidence. I consider Chew, Shop] too much and the Supervisors were throwing a fit who is no longer employed by the Respondent and whose demeanor was about it." Ross testified Richardson told him he was cre- very impressive, generally the most credible of the witnesses. Ross' ac- ,,ing ...blems ,, the tube shop, i_^ R>ss _nied * t o1 * count was too inconsistent and improbable to be believed. Thus, he said ating problems in the tube shop, but Ross denied it on ,he reported some of the pup joints bad and some holiday free; that he the grounds that he could not even communicate With also agreed with Chew that he reported all the pup joints holiday free the employees in the tube Shop, much less create prob- and denied he ever told Chew he had not done so. Ross also testified that lems, because he could not speak Spanish with them and the pipe w hich sparked did so b ec au se it w as fu ll o f san d a nd de bris , , , ,ould „ot ,.eak ,nglish ...h ,im.'" <i on Ro' rwhich he wanted to blow out but was refused a lift to carry it to the they could not Speak English with him.15 Upon Ross' airhose; and that it did not spark when Chew and Richardson tested it because, although still full of sand and grit, they "had the ground off' so " At another point, Ross testified that neither Richardson or Chew dis- the test could not produce sparks. At another point, Ross indicated that cussed his transfer to the tube shop with him. the pipe he reported he had did not spark when Chew and Richardson "1 Ross testified at another point that he was transferred back to the tested it because they blew the sand and grit out of it before they sparked custom shop because he turned out so many collars in the tube shop that it, which they had not allowed him to do. 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD company, and was told at that time by Foreman Chew return, Chew posted a notice dated October 26, 1979, de- that he "did a good job," and by Executive Vice Presi- scribing Ross' and Hignojos' duties in another attempt to dent Ward that "we appreciate your work." resolve the conflict between them. The notice put Ross Ross was disappointed that Chew was designated fore- in charge of equipment maintenance and Hignojos in man of the custom shop instead of him and he was charge of coating operations. 16 "hurt" that Hignojos was promoted to the same level of In December 1979 a large quantity of 10-inch pipe and general operator occupied by Ross when Hignojos had pup joints which the Company had coated for Gulf Oil so much less experience than Ross. Although Chew des- Company was returned to be checked for improper coat- ignated Ross the ranking general operator, because, he ing and for recoating if necessary. Chew assigned the said, Ross was the senior employee in the shop and testing, or sparking, job to Ross. On December 30, Ross Chew looked up to and respected him, conflict neverthe- borrowed a lift from the yard, carried the pipe to the air- less developed between Ross and Hignojos. Hignojos hose, and blew the sand and grit out of it. On December said the conflict was caused by Ross' favoring short cuts 31, Ross did the sparking and reported that some of the in the work and refusing to do his share. Richard French pipe had holidays (flaws in the coating) but the pups confirmed that Ross "slacked off' during his last 2-1/2 were holiday free. Chew and Richardson, in Ross' pres- or 3 years and particularly during his last 6 months when ence, checked Ross' work and found some of the pipe "you wouldn't be able to find him, when you needed Ross had marked good had holidays and some of the pup him." Chew agreed, reciting an occasion in August 1979 joints were not holiday free. Chew wrote this incident when the shop was engaged in a special assignment and up in a memo to Richardson on January 7, 1980. When Ross refused to work overtime and left without telling Chew discussed the incident with Ross, Ross denied tell- Chew. ing Chew that the pups were holiday free, so Chew In late August or early September 1979 while Chew wrote another memo to Richardson, with copies to Vice was on vacation, the conflict between Ross and Hignojos President Lubke and Area Manager Anderson, on Janu- came to a head when Hignojos refused Ross' order to ary 8, affirming his January 7 report despite Ross' denial. load some pipe because he felt Ross should load them Chew added that some of the pipe that Ross had marked himself and shortly thereafter Hignojos needed Ross to bad had no holidays and some he had marked good were help shoot (coat) couplings and found Ross in the plant bad when he and Richardson resparked them. Chew's bathroom shaving. Hignojos took the matter to Richard- memo continued: son who talked with the two of them separately. In his interview, Hignojos complained that Ross did not do his H e is irresponsible. This man interferes with pro- share and encouraged the employees to do slipshod duction and the morale of the employees. He was work. Richardson told him to continue doing his own transferred to the tube shop because he could not work the way it was supposed to be done and not to work with the employees at the custom shop. worry about Ross. Ross testified that Richardson was Within two weeks he had cuased [sic] the same fric- only "trying to create trouble between us" by telling tion in Tube Shop. He was put back in the custom each of them he was a boss. When Chew returned from shop. He has been a problem for a long time. I am vacation, Richardson informed him that Hignojos had requesting his transfer or termination. 1T complained about Ross' not doing his share of the work, On January 15, Ross was summoned to Richardson's and Chew responded that something should be done office where, in the presence of Chew and Area Man- about the conflict between them. Richardson promised to ager William Anderson, Richardson confronted Ross think about it. A few weeks later Chew complained with his poor performance, and asked if there was a again about the problem and Richardson sent for Ross reason for it as they were all there to help him. Ross re- and offered him the job of coupling coordinator in the tube shop and Ross accepted it. Ross testified that Rich- the custom shop could not keep up. I find that this was not the reason for ardson told him at this interview, "I was creating prob- Ross' return to the custom shop. lems Up there at the Custom Shop." 4 " I cann o t be lie v e R oss' testimony that Richardson told him at that _,ings . ent .„oothly .n .,e .ustom .hop ,.,le ioss time he put him in charge of maintenance because it would give him a Things went smoothly in the custom shop while Ross wage increase and ROss would "be above the other guy." Ross did not was in the tube shop, but after about 2 weeks Richardson receive an increase. told Chew he had to transfer Ross back because "he got „ The facts with regard to this incident are based on the credited lesti- to Visiting the working hands down there [in the tube mony of Chew supported by documentary evidence. I consider Chew, Shop] too much and the Supervisors were throwing a fit who is no longer employed by the Respondent and whose demeanor was about it." Ross testified Richardson told him he was cre- very impressive, generally the most credible of the witnesses. Ross' ac- ,,ing ...blems ,, the tube shop, i_^ R>ss _nied * t o1 * count was too inconsistent and improbable to be believed. Thus, he said ating problems in the tube shop, but Ross denied it on ,he reported some of the pup joints bad and some holiday free; that he the grounds that he could not even communicate With also agreed with Chew that he reported all the pup joints holiday free the employees in the tube Shop, much less create prob- and denied he ever told Chew he had not done so. Ross also testified that lems, because he could not speak Spanish with them and the pipe w hich sparked did so b ec au se it w as fu ll o f san d a nd de bris , , , ,ould „ot ,.eak ,nglish ...h ,im.'" <i on Ro' rwhich he wanted to blow out but was refused a lift to carry it to the they could not Speak English with him.15 Upon Ross' airhose; and that it did not spark when Chew and Richardson tested it because, although still full of sand and grit, they "had the ground off' so " At another point, Ross testified that neither Richardson or Chew dis- the test could not produce sparks. At another point, Ross indicated that cussed his transfer to the tube shop with him. the pipe he reported he had did not spark when Chew and Richardson "1 Ross testified at another point that he was transferred back to the tested it because they blew the sand and grit out of it before they sparked custom shop because he turned out so many collars in the tube shop that it, which they had not allowed him to do. 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD company, and was told at that time by Foreman Chew return, Chew posted a notice dated October 26, 1979, de- that he "did a good job," and by Executive Vice Presi- scribing Ross' and Hignojos' duties in another attempt to dent Ward that "we appreciate your work." resolve the conflict between them. The notice put Ross Ross was disappointed that Chew was designated fore- in charge of equipment maintenance and Hignojos in man of the custom shop instead of him and he was charge of coating operations. 16 "hurt" that Hignojos was promoted to the same level of In December 1979 a large quantity of 10-inch pipe and general operator occupied by Ross when Hignojos had pup joints which the Company had coated for Gulf Oil so much less experience than Ross. Although Chew des- Company was returned to be checked for improper coat- ignated Ross the ranking general operator, because, he ing and for recoating if necessary. Chew assigned the said, Ross was the senior employee in the shop and testing, or sparking, job to Ross. On December 30, Ross Chew looked up to and respected him, conflict neverthe- borrowed a lift from the yard, carried the pipe to the air- less developed between Ross and Hignojos. Hignojos hose, and blew the sand and grit out of it. On December said the conflict was caused by Ross' favoring short cuts 31, Ross did the sparking and reported that some of the in the work and refusing to do his share. Richard French pipe had holidays (flaws in the coating) but the pups confirmed that Ross "slacked off' during his last 2-1/2 were holiday free. Chew and Richardson, in Ross' pres- or 3 years and particularly during his last 6 months when ence, checked Ross' work and found some of the pipe "you wouldn't be able to find him, when you needed Ross had marked good had holidays and some of the pup him." Chew agreed, reciting an occasion in August 1979 joints were not holiday free. Chew wrote this incident when the shop was engaged in a special assignment and up in a memo to Richardson on January 7, 1980. When Ross refused to work overtime and left without telling Chew discussed the incident with Ross, Ross denied tell- Chew. ing Chew that the pups were holiday free, so Chew In late August or early September 1979 while Chew wrote another memo to Richardson, with copies to Vice was on vacation, the conflict between Ross and Hignojos President Lubke and Area Manager Anderson, on Janu- came to a head when Hignojos refused Ross' order to ary 8, affirming his January 7 report despite Ross' denial. load some pipe because he felt Ross should load them Chew added that some of the pipe that Ross had marked himself and shortly thereafter Hignojos needed Ross to bad had no holidays and some he had marked good were help shoot (coat) couplings and found Ross in the plant bad when he and Richardson resparked them. Chew's bathroom shaving. Hignojos took the matter to Richard- memo continued: son who talked with the two of them separately. In his interview, Hignojos complained that Ross did not do his H e is irresponsible. This man interferes with pro- share and encouraged the employees to do slipshod duction and the morale of the employees. He was work. Richardson told him to continue doing his own transferred to the tube shop because he could not work the way it was supposed to be done and not to work with the employees at the custom shop. worry about Ross. Ross testified that Richardson was Within two weeks he had cuased [sic] the same fric- only "trying to create trouble between us" by telling tion in Tube Shop. He was put back in the custom each of them he was a boss. When Chew returned from shop. He has been a problem for a long time. I am vacation, Richardson informed him that Hignojos had requesting his transfer or termination. 1T complained about Ross' not doing his share of the work, On January 15, Ross was summoned to Richardson's and Chew responded that something should be done office where, in the presence of Chew and Area Man- about the conflict between them. Richardson promised to ager William Anderson, Richardson confronted Ross think about it. A few weeks later Chew complained with his poor performance, and asked if there was a again about the problem and Richardson sent for Ross reason for it as they were all there to help him. Ross re- and offered him the job of coupling coordinator in the tube shop and Ross accepted it. Ross testified that Rich- the custom shop could not keep up. I find that this was not the reason for ardson told him at this interview, "I was creating prob- Ross' return to the custom shop. lems Up there at the Custom Shop." 4 " I cann o t be lie v e R oss' testimony that Richardson told him at that _,ings . ent .„oothly .n .,e .ustom .hop ,.,le ioss time he put him in charge of maintenance because it would give him a Things went smoothly in the custom shop while Ross wage increase and ROss would "be above the other guy." Ross did not was in the tube shop, but after about 2 weeks Richardson receive an increase. told Chew he had to transfer Ross back because "he got „ The facts with regard to this incident are based on the credited lesti- to Visiting the working hands down there [in the tube mony of Chew supported by documentary evidence. I consider Chew, Shop] too much and the Supervisors were throwing a fit who is no longer employed by the Respondent and whose demeanor was about it." Ross testified Richardson told him he was cre- very impressive, generally the most credible of the witnesses. Ross' ac- ,,ing ...blems ,, the tube shop, i_^ R>ss _nied * t o1 * count was too inconsistent and improbable to be believed. Thus, he said ating problems in the tube shop, but Ross denied it on ,he reported some of the pup joints bad and some holiday free; that he the grounds that he could not even communicate With also agreed with Chew that he reported all the pup joints holiday free the employees in the tube Shop, much less create prob- and denied he ever told Chew he had not done so. Ross also testified that lems, because he could not speak Spanish with them and the pipe w hich sparked did so b ec au se it w as fu ll o f san d a nd de bris , , , ,ould „ot ,.eak ,nglish ...h ,im.'" <i on Ro' rwhich he wanted to blow out but was refused a lift to carry it to the they could not Speak English with him.15 Upon Ross' airhose; and that it did not spark when Chew and Richardson tested it because, although still full of sand and grit, they "had the ground off' so " At another point, Ross testified that neither Richardson or Chew dis- the test could not produce sparks. At another point, Ross indicated that cussed his transfer to the tube shop with him. the pipe he reported he had did not spark when Chew and Richardson "1 Ross testified at another point that he was transferred back to the tested it because they blew the sand and grit out of it before they sparked custom shop because he turned out so many collars in the tube shop that it, which they had not allowed him to do. P. A. INCORPORATED 837 plied he thought the pups were good and did not know French must do the job assigned to him as both jobs had why they were bad, that he might have forgotten to look to be completed by the end of the shift. Sixteen of the at the other end of them and that his eyesight was not all couplings coated by Ross had to be burned out and re- that good. Anderson directed Richardson to check the coated. 22 Chew reported these events in a January 19 equipment and the lighting to make sure they were in memo to Richardson, which he ended with, "Joe has a working order though other employees were having no bad attitude which is hurting the attitude of the employ- problems with them. " ees in the Custom Shop and their production." Meanwhile, Chew set up a second shift because of an On January 22, Chew was called into Vice President overload of work in the custom shop and assigned Ross Lubke's office and, in the presence of Lubke, Chew, and and Richard French to it. On January 16, the day after Anderson, Richardson discharged him. 23 The discharge Ross' meeting with management, Chew directed them to slip made out on Ross and signed by Vice President coat some pups which Hignojos had sandblasted and Lubke states: primed, coat some couplings, and sandblast and prime some fabricated pieces for coating by the day shift. The After several warnings by supervisor and managers day shift discovered, however, that all the pups had not of the Odessa Plant, this action had to be taken be- been coated and those which were had to be reworked cause of the following reasons: unable to work with because the coating was blistered and had holidays in it, his co-workers and supervisors, poor production, and a fab piece had been primed with sand in it and had poor-quality, bad attitude and work habits.24 to be burned out, reblasted, and reprimed before it could be recoated. Chew reported this to Richardson in a 2. Conclusions memo dated January 17, adding that he asked Ross if he To establish the alleged discriminatory nature of Ross' forgot to blow the sand out of the pipe and Ross told discharge, the General Counsel relies on the union him he did blow it out and did not know how the sand animus of the Respondent and of Plant Manager Rich- got in it. Chew ended his memo with a recommendation, ardson as revealed in the prior unfair labor practice pro- "You need to have a talk with him." ' ceeding; Ross' recognized status as the most experienced, On January 17, Ross and French again failed to cor- skilled, and knowledgeable employee in the custom shop; plete the work assigned to the night shift, and again did the alleged abruptness of his discharge after 17 years an unacceptable job coating the pups. In his memo to employment; and the absence of progressive discipline. Richardson dated January 18, Chew recommended that Ross "needs to be talked to about his job." 0 It might seem that the Respondent's management was Ross "needs to be talked to about his job ." ° On January 18, Richard French told Foreman Chew inept in dealing with the failings of an old and thereto- On January 18, Richard French told Foreman Chew that he did not want to work the second shift with Ross fore valued employee. However, it was established by ta he . ~ did not., want ,credible, corroborative testimony that Ross' performance any longer because Ross did not do his share of the any longer because Ross did not do his share of the ibegan to deteriorate sometime after he mfssed out on the work, and Chew told them both to return to the day shift the next day.2 1 Meanwhile, Chew left instructions shift the next day .21 Meanwhile, Chew left instructions 2 Based on Chew's credited testimony. Ross testified he was the one for French to coat some couplings with 519 that night assigned to coat with 519, and in his telephone conversation with Chew and for Ross to coat some other couplings which were a he told Chew about his difficulties applying the 519 and he wanted rush job. During the shift Ross telephoned Chew at French to help him, but Chew refused and told him to have the cou- home that he could not do the job assigned to him and plings coated with 519 by the end of the shift even if he had to paint it on with a brush. Ross was not suprised, he said, when many of the cou- that Chew should direct French to do it. Chew said no, plings were found to be defective. Chew credibly testified that in any event 519 is applied as a spray and he denied ever telling Ross to put it " This account of the interview represents my best estimate of what on with a brush. most likely took place based chiefly on the testimony of Chew, supple- Based on Anderson's and Lubkes credited accounts, corroborated in mented by that of Anderson. Ross' testimony to the effect that, after he the main by Chew. Ross testied that, when Richardson informed him he gave his version as set forth in the footnote above, he told the supervi- was discharged, he told Richardson he "didn't want to hear nothing sors, "that I would like to know if I could get in the union . .. As long about it" and Richardson gave him no reason for the discharge that he as [Richardson was with P. A. that I wanted to be a union memberred for "straghtenng up some of [Rhardso's] That I would love to be in it and be treated like everybody else," was meses there in LaMesa and seminole," or for abuse of the Company's credibly denied by Chew and Anderson and was inherently improbable. credibly dented by Chew and Anderson and was inherently improbable. credit card for buying gasoline because, he said, "the gas was pouring out when asked to etpain what he meant by wanting to be in the Union so of my car," but then he said, "I was using [the] gasoline to clean the he would be treated like everybody else, Ross said he was hurt because coating, so I could recoat his mess." On crossxaminaion Ross testified Hignojos was in the same classification as he even though Hignojos had that at the discharge interview he asked for his bonus, a reference to Ri- less seniority; but he then said that was not the reason, as the reason was hardson's alleged promise of a bonus if he would help get the Union that Richardson was creating trouble between himself and Hignojos "so ou although he had not siged the decertification petition or otherwise he could get a reason to kick me out." he said "I wanted them to know that I s Based on Chew's credited testimony. Although Ross remembered helped t o ge t the Union outher sid, on cross-examination, that about little about this incident, he claimed he was not familiar with "519" coat- the management repre- the time he walked out of the interview, he told the management repre- ing which was designated for this job, as it had seldom been used by the sentatives "Well, let's just wait a minute about my firing. I want to ask Company. Chew credibly testified that 519 had been used in the custom you about me joining the union. Before you re me, I want you to know, you about me joining the union. Before you fire me, I want you to know, shop since before he arrived there. I would love o be in the union." Ross' pretral affdavit contains no ref- o Ross blamed his low production and his difficulties with the coating erence to Ross' asking for a bonus or saying he wanted to join the Union on the poor condition of these pipes and his unfamiliarty with 519. and the three management witnesses credibly denied that he did " Based on the corroborative testimony of Chew and French. I do not credit Ross, who was not corroborated, that Chew told him they were ' I accept as reasonable Foreman Chew's testimony that French was being returned to the day shift because Chew said French was drinking not disciplined for the unsatisfactory performance of the night shift be- on the job, although Ross protested that he himself did not say French cause he did not bear the responsibility borne by Ross as a general opera- was drinking. tor. P. A. INCORPORATED 837 plied he thought the pups were good and did not know French must do the job assigned to him as both jobs had why they were bad, that he might have forgotten to look to be completed by the end of the shift. Sixteen of the at the other end of them and that his eyesight was not all couplings coated by Ross had to be burned out and re- that good. Anderson directed Richardson to check the coated." Chew reported these events in a January 19 equipment and the lighting to make sure they were in memo to Richardson, which he ended with, "Joe has a working order though other employees were having no bad attitude which is hurting the attitude of the employ- problems with them." ees in the Custom Shop and their production." Meanwhile, Chew set up a second shift because of an On January 22, Chew was called into Vice President overload of work in the custom shop and assigned Ross Lubke's office and, in the presence of Lubke, Chew, and and Richard French to it. On January 16, the day after Anderson, Richardson discharged him. 23 The discharge Ross' meeting with management, Chew directed them to slip made out on Ross and signed by Vice President coat some pups which Hignojos had sandblasted and Lubke states: primed, coat some couplings, and sandblast and prime some fabricated pieces for coating by the day shift. The After several warnings by supervisor and managers day shift discovered, however, that all the pups had not of the Odessa Plant, this action had to be taken be- been coated and those which were had to be reworked cause of the following reasons: unable to work with because the coating was blistered and had holidays in it, his co-workers and supervisors, poor production, and a fab piece had been primed with sand in it and had poor-quality, bad attitude and work habits." to be burned out, reblasted, and reprimed before it could be recoated. Chew reported this to Richardson in a 2. Conclusions memo dated January 17, adding that he asked Ross if he To establish the alleged discriminatory nature of Ross' forgot to blow the sand out of the pipe and Ross told discharge, the General Counsel relies on the union him he did blow it out and did not know how the sand animus of the Respondent and of Plant Manager Rich- got in it. Chew ended his memo with a recommendation, ardson as revealed in the prior unfair labor practice pro- "You need to have a talk with him." g9ceeding; Ross' recognized status as the most experienced, On January 17, Ross and French again failed to com- skilled, and knowledgeable employee in the custom shop; plete the work assigned to the night shift, and again did the alleged abruptness of his discharge after 17 years' an unacceptable job coating the pups. In his memo to employment; and the absence of progressive discipline. Richardson dated January 18, Chew recommended that Ross "needs to be talked to about his job."0 .It might seem that the Respondent's management was On January 18,oRichard French told Foreman Chew inept in dealing with the failings of an old and thereto- On January 18, Richard French told Foreman Chew , . 1 u* ri 1i that he did not want to work the second shift with Ross fore valued employee. However, it was established by any longer because Ross did not do his share of the credible, corroborative testimony that Ross' performance any longer because Ross did not do his share of the . * . i r i . .1 work, and Chew told them both to return to the day began to deteriorate sometime after he mfssed out on the work, and Chew told them both to return to the day° shift the next day.21 Meanwhile, Chew left instructions -" -- _ .. , shift the next day .21 Meanwhile, Chew left * instruction 22 Based on Chew's credited testimony. Ross testified he was the one for French to coat Some Couplings With 519 that night assigned to coat with 519, and in his telephone conversation with Chew and for Ross to coat some Other couplings which were a he told Chew about his difficulties applying the 519 and he wanted rush job. During the shift Ross telephoned Chew at French to help him, but Chew refused and told him to have the cou- home that he could not do the job assigned to him and plings co ate d w it h 5 19 by t he en d o f t he shi ft e v en i f h e h ad to paint it on with a brush. Ross was not suprised, he said, when many of the cou- that Chew should direct French to do It. Chew said no, plings were found to be defective. Chew credibly testified that in any event 519 is applied as a spray and he denied ever telling Ross to put it " This account of the interview represents my best estimate of what on with a brush. m o st like l y look place based chiefy on t h e testimony of Chew, supple- 1 Based on Anderson's and Lubke's credited accounts, corroborated in mented by that of Anderson. Ross' testimony to the effect that, after he the main by Chew. Ross testifed that, when Richardson informed him he gave his version as set forth in the footnote above, he told the supervi- was discharged, he told Richardson he "didn't want to hear nothing sors, "that I would like to know if I could get in the union ... As long about it" and Richardson gave him no reason for the discharge; that he as [Richardson) was with P. A. that I wanted to be a union member... thought he was being fired for "straightening up some of [Richardson's] That I would love to be in it and be treated like everybody else," was messes there in LaMesa and Seminole," or for abuse of the Company's credibly denied by Chew and Anderson and was inherently improbable. credit card for buying gasoline because, he said, "the gas was pouring out When asked to expain what he meant by wanting to be in the Union so of my car," but then he said, "I was using [the] gasoline to clean the he would be treated like everybody else, Ross said he was hurt because coating, so I could recoat his mess." On cross-examination. Ross testified Hignojos was in the same classification as he even though Hignojos had that at the discharge interview he asked for his bonus, a reference to Ri- less seniority; but he then said that was not the reason, as the reason was chardson's alleged promise of a bonus if he would help get the Union that Richardson was creating trouble between himself and Hignojos "so out; although he had not signed the decertification petition or otherwise he could get a reason to kick me out." helped to get the Union out, he said, "I wanted them to know that I * Based on Chew's credited testimony. Although Ross remembered knew about it." Ross further testified, on cross-examination, that about little about this incident, he claimed he was not familiar with "519" coat- t t h we o o t ineve, h t the management repre- ing which was designated for this job, as it had seldom been used by the sentatives. "Well, let's just wait a minute about my firing. I want to ask Company. Chew credibly testified that 519 had been used in the custom you about me joining the union. Before you fire me, I want you to know, shop since before he arrived there. I would love to be in the union." Ross' pretrial affidavit contains no ref- » Ross blamed his low production and his difficulties with the coating erence to Ross' asking for a bonus or saying he wanted to join the Union on the poor condition of these pipes and his unfamiliarity with 519. and the three management witnesses credibly denied that he did. "1 Based on the corroborative testimony of Chew and French. I do not credit Ross, who was not corroborated, that Chew told him they were I accept as reasonable Foreman Chew's testimony that French was being returned to the day shift because Chew said French was drinking not disciplined for the unsatisfactory performance of the night shift be- on the job, although Ross protested that he himself did not say French cause he did not bear the responsibility borne by Ross as a general opera- was drinking,.tor. P. A. INCORPORATED 837 plied he thought the pups were good and did not know French must do the job assigned to him as both jobs had why they were bad, that he might have forgotten to look to be completed by the end of the shift. Sixteen of the at the other end of them and that his eyesight was not all couplings coated by Ross had to be burned out and re- that good. Anderson directed Richardson to check the coated." Chew reported these events in a January 19 equipment and the lighting to make sure they were in memo to Richardson, which he ended with, "Joe has a working order though other employees were having no bad attitude which is hurting the attitude of the employ- problems with them." ees in the Custom Shop and their production." Meanwhile, Chew set up a second shift because of an On January 22, Chew was called into Vice President overload of work in the custom shop and assigned Ross Lubke's office and, in the presence of Lubke, Chew, and and Richard French to it. On January 16, the day after Anderson, Richardson discharged him. 23 The discharge Ross' meeting with management, Chew directed them to slip made out on Ross and signed by Vice President coat some pups which Hignojos had sandblasted and Lubke states: primed, coat some couplings, and sandblast and prime some fabricated pieces for coating by the day shift. The After several warnings by supervisor and managers day shift discovered, however, that all the pups had not of the Odessa Plant, this action had to be taken be- been coated and those which were had to be reworked cause of the following reasons: unable to work with because the coating was blistered and had holidays in it, his co-workers and supervisors, poor production, and a fab piece had been primed with sand in it and had poor-quality, bad attitude and work habits." to be burned out, reblasted, and reprimed before it could be recoated. Chew reported this to Richardson in a 2. Conclusions memo dated January 17, adding that he asked Ross if he To establish the alleged discriminatory nature of Ross' forgot to blow the sand out of the pipe and Ross told discharge, the General Counsel relies on the union him he did blow it out and did not know how the sand animus of the Respondent and of Plant Manager Rich- got in it. Chew ended his memo with a recommendation, ardson as revealed in the prior unfair labor practice pro- "You need to have a talk with him." g9ceeding; Ross' recognized status as the most experienced, On January 17, Ross and French again failed to com- skilled, and knowledgeable employee in the custom shop; plete the work assigned to the night shift, and again did the alleged abruptness of his discharge after 17 years' an unacceptable job coating the pups. In his memo to employment; and the absence of progressive discipline. Richardson dated January 18, Chew recommended that Ross "needs to be talked to about his job."0 .It might seem that the Respondent's management was On January 18,oRichard French told Foreman Chew inept in dealing with the failings of an old and thereto- On January 18, Richard French told Foreman Chew , . 1 u* ri 1i that he did not want to work the second shift with Ross fore valued employee. However, it was established by any longer because Ross did not do his share of the credible, corroborative testimony that Ross' performance any longer because Ross did not do his share of the . * . i r i . .1 work, and Chew told them both to return to the day began to deteriorate sometime after he mfssed out on the work, and Chew told them both to return to the day° shift the next day.2' Meanwhile, Chew left instructions -" -- _ .. , shift the next day .21 Meanwhile, Chew left * instruction 22 Based on Chew's credited testimony. Ross testified he was the one for French to coat Some Couplings With 519 that night assigned to coat with 519, and in his telephone conversation with Chew and for Ross to coat some Other couplings which were a he told Chew about his difficulties applying the 519 and he wanted rush job. During the shift Ross telephoned Chew at French to help him, but Chew refused and told him to have the cou- home that he could not do the job assigned to him and plings co ate d w it h 5 19 by t he en d o f t he shi ft e v en i f h e h ad to paint it on with a brush. Ross was not suprised, he said, when many of the cou- that Chew should direct French to do It. Chew said no, plings were found to be defective. Chew credibly testified that in any event 519 is applied as a spray and he denied ever telling Ross to put it " This account of the interview represents my best estimate of what on with a brush. m o st like l y look place based chiefy on t h e testimony of Chew, supple- 1 Based on Anderson's and Lubke's credited accounts, corroborated in mented by that of Anderson. Ross' testimony to the effect that, after he the main by Chew. Ross testifed that, when Richardson informed him he gave his version as set forth in the footnote above, he told the supervi- was discharged, he told Richardson he "didn't want to hear nothing sors, "that I would like to know if I could get in the union ... As long about it" and Richardson gave him no reason for the discharge; that he as [Richardson) was with P. A. that I wanted to be a union member... thought he was being fired for "straightening up some of [Richardson's] That I would love to be in it and be treated like everybody else," was messes there in LaMesa and Seminole," or for abuse of the Company's credibly denied by Chew and Anderson and was inherently improbable. credit card for buying gasoline because, he said, "the gas was pouring out When asked to expain what he meant by wanting to be in the Union so of my car," but then he said, "I was using [the] gasoline to clean the he would be treated like everybody else, Ross said he was hurt because coating, so I could recoat his mess." On cross-examination. Ross testified Hignojos was in the same classification as he even though Hignojos had that at the discharge interview he asked for his bonus, a reference to Ri- less seniority; but he then said that was not the reason, as the reason was chardson's alleged promise of a bonus if he would help get the Union that Richardson was creating trouble between himself and Hignojos "so out; although he had not signed the decertification petition or otherwise he could get a reason to kick me out." helped to get the Union out, he said, "I wanted them to know that I * Based on Chew's credited testimony. Although Ross remembered knew about it." Ross further testified, on cross-examination, that about little about this incident, he claimed he was not familiar with "519" coat- t t h we o o t ineve, h t the management repre- ing which was designated for this job, as it had seldom been used by the sentatives. "Well, let's just wait a minute about my firing. I want to ask Company. Chew credibly testified that 519 had been used in the custom you about me joining the union. Before you fire me, I want you to know, shop since before he arrived there. I would love to be in the union." Ross' pretrial affidavit contains no ref- » Ross blamed his low production and his difficulties with the coating erence to Ross' asking for a bonus or saying he wanted to join the Union on the poor condition of these pipes and his unfamiliarity with 519. and the three management witnesses credibly denied that he did. "1 Based on the corroborative testimony of Chew and French. I do not credit Ross, who was not corroborated, that Chew told him they were I accept as reasonable Foreman Chew's testimony that French was being returned to the day shift because Chew said French was drinking not disciplined for the unsatisfactory performance of the night shift be- on the job, although Ross protested that he himself did not say French cause he did not bear the responsibility borne by Ross as a general opera- was drinking,.tor. P. A. INCORPORATED 837 plied he thought the pups were good and did not know French must do the job assigned to him as both jobs had why they were bad, that he might have forgotten to look to be completed by the end of the shift. Sixteen of the at the other end of them and that his eyesight was not all couplings coated by Ross had to be burned out and re- that good. Anderson directed Richardson to check the coated." Chew reported these events in a January 19 equipment and the lighting to make sure they were in memo to Richardson, which he ended with, "Joe has a working order though other employees were having no bad attitude which is hurting the attitude of the employ- problems with them." ees in the Custom Shop and their production." Meanwhile, Chew set up a second shift because of an On January 22, Chew was called into Vice President overload of work in the custom shop and assigned Ross Lubke's office and, in the presence of Lubke, Chew, and and Richard French to it. On January 16, the day after Anderson, Richardson discharged him. 23 The discharge Ross' meeting with management, Chew directed them to slip made out on Ross and signed by Vice President coat some pups which Hignojos had sandblasted and Lubke states: primed, coat some couplings, and sandblast and prime some fabricated pieces for coating by the day shift. The After several warnings by supervisor and managers day shift discovered, however, that all the pups had not of the Odessa Plant, this action had to be taken be- been coated and those which were had to be reworked cause of the following reasons: unable to work with because the coating was blistered and had holidays in it, his co-workers and supervisors, poor production, and a fab piece had been primed with sand in it and had poor-quality, bad attitude and work habits.2 1 to be burned out, reblasted, and reprimed before it could be recoated. Chew reported this to Richardson in a 2. Conclusions memo dated January 17, adding that he asked Ross if he To establish the alleged discriminatory nature of Ross' forgot to blow the sand out of the pipe and Ross told discharge, the General Counsel relies on the union him he did blow it out and did not know how the sand animus of the Respondent and of Plant Manager Rich- got in it. Chew ended his memo with a recommendation, ardson as revealed in the prior unfair labor practice pro- "You need to have a talk with him." g9ceeding; Ross' recognized status as the most experienced, On January 17, Ross and French again failed to com- skilled, and knowledgeable employee in the custom shop; plete the work assigned to the night shift, and again did the alleged abruptness of his discharge after 17 years' an unacceptable job coating the pups. In his memo to employment; and the absence of progressive discipline. Richardson dated January 18, Chew recommended that Ross "needs to be talked to about his job."0 .It might seem that the Respondent's management was On January 18,oRichard French told Foreman Chew inept in dealing with the failings of an old and thereto- On January 18, Richard French told Foreman Chew , . 1 u* ri 1i that he did not want to work the second shift with Ross fore valued employee. However, it was established by any longer because Ross did not do his share of the credible, corroborative testimony that Ross' performance any longer because Ross did not do his share of the . * . i r i . .1 work, and Chew told them both to return to the day began to deteriorate sometime after he mfssed out on the work, and Chew told them both to return to the day° shift the next day.21 Meanwhile, Chew left instructions -" -- _ .. , shift the next day .21 Meanwhile, Chew left * instruction 22 Based on Chew's credited testimony. Ross testified he was the one for French to coat Some Couplings With 519 that night assigned to coat with 519, and in his telephone conversation with Chew and for Ross to coat some Other couplings which were a he told Chew about his difficulties applying the 519 and he wanted rush job. During the shift Ross telephoned Chew at French to help him, but Chew refused and told him to have the cou- home that he could not do the job assigned to him and plings co ate d w it h 5 19 by t he en d o f t he shi ft e v en i f h e h ad to paint it on with a brush. Ross was not suprised, he said, when many of the cou- that Chew should direct French to do It. Chew said no, plings were found to be defective. Chew credibly testified that in any event 519 is applied as a spray and he denied ever telling Ross to put it " This account of the interview represents my best estimate of what on with a brush. m o st like l y look place based chiefy on t h e testimony of Chew, supple- 1 Based on Anderson's and Lubke's credited accounts, corroborated in mented by that of Anderson. Ross' testimony to the effect that, after he the main by Chew. Ross testifed that, when Richardson informed him he gave his version as set forth in the footnote above, he told the supervi- was discharged, he told Richardson he "didn't want to hear nothing sors, "that I would like to know if I could get in the union ... As long about it" and Richardson gave him no reason for the discharge; that he as [Richardson) was with P. A. that I wanted to be a union member... thought he was being fired for "straightening up some of [Richardson's] That I would love to be in it and be treated like everybody else," was messes there in LaMesa and Seminole," or for abuse of the Company's credibly denied by Chew and Anderson and was inherently improbable. credit card for buying gasoline because, he said, "the gas was pouring out When asked to expain what he meant by wanting to be in the Union so of my car," but then he said, "I was using [the] gasoline to clean the he would be treated like everybody else, Ross said he was hurt because coating, so I could recoat his mess." On cross-examination. Ross testified Hignojos was in the same classification as he even though Hignojos had that at the discharge interview he asked for his bonus, a reference to Ri- less seniority; but he then said that was not the reason, as the reason was chardson's alleged promise of a bonus if he would help get the Union that Richardson was creating trouble between himself and Hignojos "so out; although he had not signed the decertification petition or otherwise he could get a reason to kick me out." helped to get the Union out, he said, "I wanted them to know that I * Based on Chew's credited testimony. Although Ross remembered knew about it." Ross further testified, on cross-examination, that about little about this incident, he claimed he was not familiar with "519" coat- t t h we o o t ineve, h t the management repre- ing which was designated for this job, as it had seldom been used by the sentatives. "Well, let's just wait a minute about my firing. I want to ask Company. Chew credibly testified that 519 had been used in the custom you about me joining the union. Before you fire me, I want you to know, shop since before he arrived there. I would love to be in the union." Ross' pretrial affidavit contains no ref- » Ross blamed his low production and his difficulties with the coating erence to Ross' asking for a bonus or saying he wanted to join the Union on the poor condition of these pipes and his unfamiliarity with 519. and the three management witnesses credibly denied that he did. "1 Based on the corroborative testimony of Chew and French. I do not credit Ross, who was not corroborated, that Chew told him they were I accept as reasonable Foreman Chew's testimony that French was being returned to the day shift because Chew said French was drinking not disciplined for the unsatisfactory performance of the night shift be- on the job, although Ross protested that he himself did not say French cause he did not bear the responsibility borne by Ross as a general opera- was drinking,.tor. 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD customshop foreman's job and Hignojos was promoted cast his lot with the Union at his counseling session of to his level, both of which incidents he admittedly re- January 15 was totally incredible. But even if he had ex- sented. It was doubtless this resentment which was pressed such an intent, it is impossible to believe that behind Ross' conflicts with Hignojos and his tendency management would have fired him for it, when there during his last months of employment to do less than his were other employees known to be union leaders, offi- share of the work. By the fall of 1979, Ross' conduct in- cials, and advocates who were tolerated and even ad- terfered with the work of the custom shop so much that vanced. Moreover, Foreman Chew, who initially recom- Richardson and Chew felt required to transfer him to the mended termination and was responsible for the reports tube shop and, then, when that failed even though he of unsatisfactory performance which eventually resulted had been informed of the problems he was causing, to in termination, had himself been a union member; and assign him and Hignojos to separate areas of responsibili- two of the employees who complained about the difficul- ty in the custom shop. None of these steps had the de- ties of working with Ross were Richard French who sired effect, however, and then in late December 1979 had also been a union member and Adam Hignojos who Ross turned in such a poor performance on an important was a prominent and well-known union leader. job that Chew recommended his transfer or termination Accordingly, in all the circumstances, including the but instead he was counseled both by Foreman Chew in- , e cu t s dividually and by Chew, Richardson, and Anderson to- absence of credible evidence currenthostty towa gether on January 15, 1980. Nonetheless, Ross turned in the Union, the absence of reble evidence that Ross poor performances the rest of the week. It is clear, there- was an advocate or supporter of the Union or that the fore, that Ross' discharge was not abrupt, but was based Respondent had reasonable grounds for suspecting that on his deteriorating performance over a considerable he was, Ross' job performance deterioration over a period of time, culminating in his disregard of manage- period of several months during which he was cautioned ment's efforts to turn him around at the beginning of his and counseled culminating in a week of less than satisfac- last week. Although no progressive discipline was tory performance, all of which interfered with the effi- handed out in the form of written warnings or suspen- ciency of the Respondent's operations, and the absence sion, it was not shown that it was the Respondent's prac- of disparate treatment, I find that a preponderance of the tice to follow such a disciplinary procedure at this plant. credible evidence fails to establish that the reason ad- In any event, as Ross was told that his transfers were vanced for Ross' discharge was a pretext or that his dis- made because of the problems he caused in both shops, charge was to any extent motivated by discriminatory and as he was counseled by his foreman and by manage- considerations. I conclude that this allegation should be ment as a group, it cannot be said that he was not fore- dismissed. warned that his conduct had become unacceptable. Upon the foregoing findings of fact, conclusions of With regard to the alleged antiunion motivation, the law, and the entire record, I hereby issue the following record shows that Ross had not been a member of the recommended: Union during the last 10 years of his employment, since long before the Respondent's unfair labor practices of ORDER 25 1978. Although the Respondent revealed hostility toward the Union at that time, it had no reason, except for the The complait is dismissed entirely. absence of Ross' signature on the decertification petition, to believe that he was one of the Union's advocates or " In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by supporters. Nothing that happened subsequently would Order of the National Labor Relations Board" shall read "Posted Pursu- reasonably lead management to suspect anything differ- ant to a Judgment of the United States Court of Appeals Enforcing an ent. Ross' attempt to establish an expression of intent to Order of the National Labor Relations Board." 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD customshop foreman's job and Hignojos was promoted cast his lot with the Union at his counseling session of to his level, both of which incidents he admittedly re- January 15 was totally incredible. But even if he had ex- sented. It was doubtless this resentment which was pressed such an intent, it is impossible to believe that behind Ross' conflicts with Hignojos and his tendency management would have fired him for it, when there during his last months of employment to do less than his were other employees known to be union leaders, offi- share of the work. By the fall of 1979, Ross' conduct in- cials, and advocates who were tolerated and even ad- terfered with the work of the custom shop so much that vanced. Moreover, Foreman Chew, who initially recom- Richardson and Chew felt required to transfer him to the mended termination and was responsible for the reports tube shop and, then, when that failed even though he of unsatisfactory performance which eventually resulted had been informed of the problems he was causing, to i, termination, had himself been a union member; and assign him and Hignojos to separate areas of responsibili- two of the employees who complained about the difficul- ty in the custom shop. None of these steps had the de- ties of working with Ross were Richard French who sired effect, however, and then in late December 1979 had also been a union member and Adam Hignojos who Ross turned in such a poor performance on an important was a prominent and well-known union leader. job that Chew recommended his transfer or termination' Accordingly, in all the circumstances, including the but instead he was counseled both by Foreman Chew in- a o ceil e n o c h .t.t towar dividually and by Chew, Richardson, and Anderson to- a b se n c e o f credibl e evid e n ce t ha t R o ss gether on January 15, 1980. Nonetheless, Ross turned in twa an a o cat e ors upre o f the Union or t h a t the poor performances the rest of the week. It is clear, there- w a i a " advocate or supporter of the Union or that the fore, that Ross' discharge was not abrupt, but was based Respondent had reasonable grounds for suspecting that on his deteriorating performance over a considerable h e w a s , R o s s' job performance deterioration over a period of time, culminating in his disregard of manage- period of several months during which he was cautioned ment's efforts to turn him around at the beginning of his and counseled culminating in a week of less than satisfac- last week. Although no progressive discipline was tory performance, all of which interfered with the effi- handed out in the form of written warnings or suspen- ciency of the Respondent's operations, and the absence sion, it was not shown that it was the Respondent's prac- of disparate treatment, I find that a preponderance of the tice to follow such a disciplinary procedure at this plant. credible evidence fails to establish that the reason ad- In any event, as Ross was told that his transfers were vanced for Ross' discharge was a pretext or that his dis- made because of the problems he caused in both shops, charge was to any extent motivated by discriminatory and as he was counseled by his foreman and by manage- considerations. I conclude that this allegation should be ment as a group, it cannot be said that he was not fore- dismissed. warned that his conduct had become unacceptable. Upon the foregoing findings of fact, conclusions of With regard to the alleged antiunion motivation, the law, and the entire record, I hereby issue the following record shows that Ross had not been a member of the recommended: Union during the last 10 years of his employment, since long before the Respondent's unfair labor practices of ORDER 25 1978. Although the Respondent revealed hostility toward T c i d i etrl. the Union at that time, it had no reason, except for the T h e complaint is dismissed entirely. absence of Ross' signature on the decertification petition, to believe that he was one of the Union's advocates or '"n th e ev e nt th at this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by supporters. Nothing that happened subsequently would Order of the National Labor Relations Board" shall read "Posted Pursu- reasonably lead management to suspect anything differ- ant to a Judgment of the United States Court of Appeals Enforcing an ent. Ross' attempt to establish an expression of intent to Order of the National Labor Relations Board." 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD customshop foreman's job and Hignojos was promoted cast his lot with the Union at his counseling session of to his level, both of which incidents he admittedly re- January 15 was totally incredible. But even if he had ex- sented. It was doubtless this resentment which was pressed such an intent, it is impossible to believe that behind Ross' conflicts with Hignojos and his tendency management would have fired him for it, when there during his last months of employment to do less than his were other employees known to be union leaders, offi- share of the work. By the fall of 1979, Ross' conduct in- cials, and advocates who were tolerated and even ad- terfered with the work of the custom shop so much that vanced. Moreover, Foreman Chew, who initially recom- Richardson and Chew felt required to transfer him to the mended termination and was responsible for the reports tube shop and, then, when that failed even though he of unsatisfactory performance which eventually resulted had been informed of the problems he was causing, to i, termination, had himself been a union member; and assign him and Hignojos to separate areas of responsibili- two of the employees who complained about the difficul- ty in the custom shop. None of these steps had the de- ties of working with Ross were Richard French who sired effect, however, and then in late December 1979 had also been a union member and Adam Hignojos who Ross turned in such a poor performance on an important was a prominent and well-known union leader. job that Chew recommended his transfer or termination' Accordingly, in all the circumstances, including the but instead he was counseled both by Foreman Chew in- a o ceil e n o c h .t.t towar dividually and by Chew, Richardson, and Anderson to- a b se n c e o f credibl e evid e n ce t ha t R o ss gether on January 15, 1980. Nonetheless, Ross turned in twa an a o cat e ors upre o f the Union or t h a t the poor performances the rest of the week. It is clear, there- w a i a " advocate or supporter of the Union or that the fore, that Ross' discharge was not abrupt, but was based Respondent had reasonable grounds for suspecting that on his deteriorating performance over a considerable h e w a s , R o s s' job performance deterioration over a period of time, culminating in his disregard of manage- period of several months during which he was cautioned ment's efforts to turn him around at the beginning of his and counseled culminating in a week of less than satisfac- last week. Although no progressive discipline was tory performance, all of which interfered with the effi- handed out in the form of written warnings or suspen- ciency of the Respondent's operations, and the absence sion, it was not shown that it was the Respondent's prac- of disparate treatment, I find that a preponderance of the tice to follow such a disciplinary procedure at this plant. credible evidence fails to establish that the reason ad- In any event, as Ross was told that his transfers were vanced for Ross' discharge was a pretext or that his dis- made because of the problems he caused in both shops, charge was to any extent motivated by discriminatory and as he was counseled by his foreman and by manage- considerations. I conclude that this allegation should be ment as a group, it cannot be said that he was not fore- dismissed. warned that his conduct had become unacceptable. Upon the foregoing findings of fact, conclusions of With regard to the alleged antiunion motivation, the law, and the entire record, I hereby issue the following record shows that Ross had not been a member of the recommended: Union during the last 10 years of his employment, since long before the Respondent's unfair labor practices of ORDER 25 1978. Although the Respondent revealed hostility toward T c i d i etrl. the Union at that time, it had no reason, except for the T h e complaint is dismissed entirely. absence of Ross' signature on the decertification petition, to believe that he was one of the Union's advocates or '"n th e ev e nt th at this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by supporters. Nothing that happened subsequently would Order of the National Labor Relations Board" shall read "Posted Pursu- reasonably lead management to suspect anything differ- ant to a Judgment of the United States Court of Appeals Enforcing an ent. Ross' attempt to establish an expression of intent to Order of the National Labor Relations Board." 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD customshop foreman's job and Hignojos was promoted cast his lot with the Union at his counseling session of to his level, both of which incidents he admittedly re- January 15 was totally incredible. But even if he had ex- sented. It was doubtless this resentment which was pressed such an intent, it is impossible to believe that behind Ross' conflicts with Hignojos and his tendency management would have fired him for it, when there during his last months of employment to do less than his were other employees known to be union leaders, offi- share of the work. By the fall of 1979, Ross' conduct in- cials, and advocates who were tolerated and even ad- terfered with the work of the custom shop so much that vanced. Moreover, Foreman Chew, who initially recom- Richardson and Chew felt required to transfer him to the mended termination and was responsible for the reports tube shop and, then, when that failed even though he of unsatisfactory performance which eventually resulted had been informed of the problems he was causing, to i, termination, had himself been a union member; and assign him and Hignojos to separate areas of responsibili- two of the employees who complained about the difficul- ty in the custom shop. None of these steps had the de- ties of working with Ross were Richard French who sired effect, however, and then in late December 1979 had also been a union member and Adam Hignojos who Ross turned in such a poor performance on an important was a prominent and well-known union leader. job that Chew recommended his transfer or termination' Accordingly, in all the circumstances, including the but instead he was counseled both by Foreman Chew in- a o ceil e n o c h .t.t towar dividually and by Chew, Richardson, and Anderson to- a b se n c e o f credibl e evid e n ce t ha t R o ss gether on January 15, 1980. Nonetheless, Ross turned in twa an a o cat e ors upre o f the Union or t h a t the poor performances the rest of the week. It is clear, there- w a i a " advocate or supporter of the Union or that the fore, that Ross' discharge was not abrupt, but was based Respondent had reasonable grounds for suspecting that on his deteriorating performance over a considerable h e w a s , R o s s' job performance deterioration over a period of time, culminating in his disregard of manage- period of several months during which he was cautioned ment's efforts to turn him around at the beginning of his and counseled culminating in a week of less than satisfac- last week. Although no progressive discipline was tory performance, all of which interfered with the effi- handed out in the form of written warnings or suspen- ciency of the Respondent's operations, and the absence sion, it was not shown that it was the Respondent's prac- of disparate treatment, I find that a preponderance of the tice to follow such a disciplinary procedure at this plant. credible evidence fails to establish that the reason ad- In any event, as Ross was told that his transfers were vanced for Ross' discharge was a pretext or that his dis- made because of the problems he caused in both shops, charge was to any extent motivated by discriminatory and as he was counseled by his foreman and by manage- considerations. I conclude that this allegation should be ment as a group, it cannot be said that he was not fore- dismissed. warned that his conduct had become unacceptable. Upon the foregoing findings of fact, conclusions of With regard to the alleged antiunion motivation, the law, and the entire record, I hereby issue the following record shows that Ross had not been a member of the recommended: Union during the last 10 years of his employment, since long before the Respondent's unfair labor practices of ORDER 25 1978. Although the Respondent revealed hostility toward T c i d i etrl. the Union at that time, it had no reason, except for the T h e complaint is dismissed entirely. absence of Ross' signature on the decertification petition, to believe that he was one of the Union's advocates or '"n th e ev e nt th at this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by supporters. Nothing that happened subsequently would Order of the National Labor Relations Board" shall read "Posted Pursu- reasonably lead management to suspect anything differ- ant to a Judgment of the United States Court of Appeals Enforcing an ent. Ross' attempt to establish an expression of intent to Order of the National Labor Relations Board."