Beaumont Steel Construction Co.

National Labor Relations Board - Board Decisions

Nov 5, 1969

179 N.L.R.B. 487 (N.L.R.B. 1969)

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