Weber Metal and Supply Co.

National Labor Relations Board - Board Decisions

Apr 30, 1973

203 N.L.R.B. 386 (N.L.R.B. 1973)

386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Weber Metals and Supply Company and Larry W.
Trantham . Case 21-CA-11043
April 30, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On January 2, 1973, Administrative Law Judge
James T. Rasbury issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and the Respondent
filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considercd the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
' The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions were incorrect . Standard Dry Wall Products, Inc, 91
NLRB 544, enfd . 188 F.2d 362 (C A 3) We have carefully examined the
record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was heard at Los Angeles, California, on October 17 and 18,
1972.' The original charge was filed by Trantham on June
19 and a copy thereof served on Respondent on the same
date. A first amended charge was filed by Trantham on July
14 and a copy thereof served on Respondent on the same
date. The complaint issued on August 25 and the
Respondent's answer is dated September 14.
' Unless otherwise indicated, all dates hereinafter are in the year 1972
The complaint alleged that on or about June 13, Respon-
dent discharged employee Trantham, the Charging Party
herein, and on or about June 16, Respondent discharged
employee Clarence R. Payne and failed to reinstate Trant-
ham and Payne until August I 1 because of Trantham's and
Payne's engagement in protected concerted union activities
which conduct on the part of Respondent is violative of
Section 8(a)(1) and (3) of the National Labor Relations Act,
as amended, herein referred to as the Act. Complaint fur-
ther alleges that the Respondent reduced the hours of work
and, consequently, the wages paid to the employees during
the month of June, because of protected concerted activities
on the part of the employees, thereby violating Section
8(a)(3) of the Act. The complaint further alleges that during
the month of June, Respondent granted increases in wages
paid to the employees as an inducement to said employees
to withdraw from and to discourage their support of the
Union in violation of Section 8(a)(3) of the Act. The com-
plaint further alleged that during the month of June, Re-
spondent through its owner and president, Edmund L.
Weber, did interrogate employees concerning their union
membership, sympathies, and activities; and did threaten
employees with loss of wages and other reprisals because of
their union membership, sympathies, and activities all in
violation of Section 8(a)(1) of the Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by General Counsel and the Respondent
Employer, I make the following findings of fact:
1 JURISDICTION
Weber Metals and Supply Company is a corporation en-
gaged in the business of manufacturing aluminum aero-
space forgings with its principal place of business located at
16646 Illinois Avenue, Paramount, California. In the nor-
mal course and conduct of its business operations, Respon-
dent annually purchases and receives goods, products, and
services valued in excess of $50,000 directly from points and
places located outside the State of California. In the course
and conduct of its business operations, Respondent annual-
ly sells goods, products, and services valued in excess of
$50,000 directly to customers located within the State of
California each of whom in turn either annually sells and
ships goods, products, and services valued in excess of
$50,000 directly to customers located outside the State of
California, or annually purchases and receives goods, prod-
ucts, and services valued in excess of $50,000 directly from
suppliers located outside the State of California. The Re-
spondent admits and I herewith find that it is an employer
engaged in commerce and in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
11 LABOR ORGANIZATION
The United Steelworkers of America , AFL-CIO, herein
called the Union, is and at all times material herein has been
a labor organization within the meaning of Section 2(5) of
the Act.
203 NLRB No. 65
WEBER METALS AND SUPPLY CO. 387
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges certain discriminatory conduct on
the part of Respondent toward two employees , Trantham
and Payne , and certain statements and conduct on the part
of the Respondent which , if true, are violative of the Nation-
al Labor Relations Act. The evidence presented by the Gen-
eral Counsel is comprised almost entirely of testimony from
two alleged discriminatees and two fellow employees which
is contradicted in every - material and relevant detail by the
witnesses for the Respondent . Thus, the real problem in this
case is simply one of resolving credibility and ascertaining
the truth . If the General Counsel 's witnesses are to be be-
lieved , clearly the Act has been violated . If Respondent's
witnesses are to be credited , the complaint should be dis-
missed.
B. Testimony of Witnesses Called
by General Counsel
Robert Lee Neal testified that he had been employed by
the Weber Metals and Supply Company for approximately
7 years. At the present time he is a press operator. Neal
testified that he passed out union authorization cards during
the months of May and June on behalf of the United Steel-
workers of America, AFL-CIO. According to Neal, he was
not only the leading union organizer but he was the union
observer at the election and he is the chairman of the negoti-
ating committee involved in negotiating a union contract
with Respondent since the Union won the election. Neal
testified that to the best of his knowledge the union organi-
zational campaign was a well-kept secret and no one at the
Company knew about it until the petition was filed. Neal
was shown his own union authorization card during his
testimony and acknowledged that it bears the date of May
26. Neal testified that Mr. Weber, the president of the Re-
spondent, stopped by the press a few days following the
release of Trantham and told Neal that he had had to let
him (Trantham) go because he was "no good to the Compa-
ny and that he wanted to put him in maintenance but he
didn 't feel that he was capable of handling the job." Neal
testified that Weber told him that he (Weber) had heard that
Trantham and Clarence Payne had attended a union meet-
ing. According to Neal, the week following the disputed quit
or discharge of Clarence Payne, Weber said to him "We
have got rid of all our main problem, Clarence Payne and
Buck Hodgins ." At another point in his testimony, Neal
stated : "He (Weber) said that Clarence Payne and Buck
Hodgins had quit and he said , isn't that nice . We got rid of
our main problem, that now we could open up full blast."
It was during this week of the disputed discharges that the
regular hours of work was reduced from 10 hours a day to
8 hours a day . According to Neal 's testimony , Weber told
him that, "he would try to stay pretty close to the-he didn't
know what the union scale was , but he tried to stay pretty
close , this way he would be able to keep them out." Neal
stated Weber said that, "they (meaning Clarence Payne and
Buck Hodgins) were union instigators . He said we don't
need guys like that with us." Mr . Neal had no recollection
of the presses , the manipulators or oven number 11 having
been broken or out of order any time near the week of June
12 when the regular workday was reduced from 10 hours a
d4y to 8 hours per day.
Lamar H. Trees testified that he is a heat treater and has
been employed by Respondent for approximately 1 year.
Trees was shown his union authorization card by the Gener-
al Counsel and acknowledged that the card was dated May
26. Witness testified that he received a raise of 10 cents an
hour during or very near the week of June 12 which was the
week Trantham and Payne were discharged . Witness had no
recollection of having been told by Weber in April or early
May that as soon as the books were closed and the profit
has been ascertained a wage increase would be granted.
Witness testified that during the week Larry Trantham was
terminated , Weber came into the lunchroom where there
were four employees-Trees, Bob Hamlin , Al Kowan, and
Clarence Payne-seated at one table . Weber walked up and
said, "He got a letter from the Union and he said he wasn't
going to mortgage his home or build a building until he sees
what happens , and he said if the Union got in, overtime
would be cut ." Later that same day , Weber told him he was
going on an 8-hour day. Trees testified that the 8-hour day
only lasted 3 days and thereafter they returned to their
normal 10 hours a day . Trees testified that while Clarence
Payne had discussed with him his desires to quit his job and
return to his home in Missouri because that was his wife's
wish , this was not told to him just prior to Payne going on
his vacation . Trees regarded Payne 's comments as being a
plan for the future . On cross-examination Trees was unable
to recall any conversation among the four employees-
Trees , Kowan, Hamlin and Payne-after being told by We-
ber that the overtime would be reduced and that there
would be no further expansion until the union matter was
settled . As best the witness could recall there was no discus-
sion or comment by any of the four who heard Weber's
statement . Trees was vague and uncertain about any equip-
ment breakdown, but so far as he was able to recall, he did
not know the presses were broken down. Trees was of the
opinion that Payne was not going to be leaving to go back
to his home in Missouri for perhaps a year , yet he admitted
that when he heard this information from Payne , he went
to Mr . Bierholm to tell him of Mr. Payne's plan so that
Bierholm could get an assistant and have him broken in on
the job.
Larry Trantham testified that he was first employed by
the Respondent on January 11, 1972. It appears from
Trantham 's testimony that he had no specific job, but he
worked in the general shop where assigned. Trantham testi-
fied that Bob Neal gave him a union card approximately 2
weeks before he was terminated . Trantham stated that he
took the card to the change room and signed the card and
then returned it to Neal. It was Trantham 's testimony that
he called in on the morning of Monday, June 12 , to advise
Weber that he was moving that day and that he wouldn't
be in . According to Trantham , Weber said : "We will need
somebody on the ring roller." Trantham then said : "I know.
That's why I called in, to let you know I wouldn't be in so
you could get someone in ." According to Trantham, Weber
then said that, "it was okay Larry, we will get someone else
to work. We will get Lamar in." Trantham testified that his
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision to move was made on Sunday , June 11 , when he
was talking to his father -in-law , Clarence Payne , who of-
fered to cut his rent in half if he moved in with them.
Trantham testified that he had never been counseled by his
supervisors for being late or absent from work . Tantham
contended that he was never away from his work or ma-
chine station without notifying his supervisor where he was
going or why he was away from the job . According to Trant-
ham, his only periods of absence from the job were due to
illness . On June 13, when he reported to work at approxi-
mately 6 : 45 in the morning , he found that his timecard had
been removed from the timecard rack . Shortly thereafter,
Mr. Weber came into the locker room and advised him that
his card was not in the rack because he had been discharged
due to his absence the previous day. Prior to Trantham's
discharge , he was making $2.90 an hour . During the period
of Trantham 's employment, he has received two 10-cent
raises . He started at $2.70 an hour . On cross-examination,
Trantham stated that he had not been active in the union
campaign and had never attended a union meeting nor did
he vote in the election . Trantham stated at the time he
received his last increase he was told by Weber that his
performance had not been good and that he was going to
have to do better . Trantham testified that he was anxious to
be moved on Monday , June 12 , because his rent was due on
either Tuesday or one day that week.
Clarence R. Payne testified as follows . He has been em-
ployed by Respondent for approximately 11 years and
works in the heat-treating department . Payne had resigned
in the summer of 1971 , but, after being off for 2 months, had
asked Weber to be reinstated . (This will be considered more
fully below.) He has also worked in the machine shop and
generally helps wherever he is needed . He signed the union
card the latter part of May which he received from Bob
Neal, but otherwise was not active in the union organiza-
tional campaign . Payne testified that on the day of
Trantham 's discharge, June 13, Weber said to Payne, "I
hear you want the shop to go union." According to Payne,
he responded by saying that, "he had signed a union card
if that's what was meant ." Weber then indicated that they
didn't need any outsiders and that Payne must have prob-
lems. Payne asked if there were others and he responded
that he had given his word and would not break it. That
terminated the conversation . Later that same day, Payne
testified that Weber came over to the table in the lunchroom
occupied by Robert Hamlin , Lamar Trees , Al Kowan, and
Payne , whereupon "Weber started talking and said that he
had a letter from Clarence 's union and he says, 'If this is
what the men want, then they can have it , but I am not
putting my house up for mortgage , depriving my wife and
trying to expand if this is what they want.' " That same day,
Payne learned that the plant was going on a rcgular 8-hour
shift instead of the 10 hours they had been working.
Payne testified that his vacation was to have begun on
June 19, and that the date had been set sometime back in
April or May. The testimony of Payne concerning the cir-
cumstances surrounding his leaving work on June 16 is
something less than crystal clear . Apparently Weber con-
tacted him approximately 3 p.m. on June 16 and said , "Clar-
ence , I have had all your time made up for you including
your vacation up to 4 : 30. You can pick it up and do any-
thing about it you want to." This statement , according to
Payne , was confusing because he expected only one check.
Normally , I week 's work would be held back which he
would receive after returning to work following his vaca-
tion . Payne testifies that he was confused when Weber said,
"pick it all up ." He testified "I figured I would get ev-
erything . To be honest , I thought I was fired ." But he did
not ask Weber what he had meant . Payne testified that
about 4:30 on the same afternoon he turned in his keys to
Weber and told him that all of the rings had been finished
and were ready for him to ship . On the following Monday,
he called Bob Neal and asked if Weber has said that he had
quit . According to Payne , Neal said "Yes , he is telling ev-
erybody that you quit , just walked out on him." On June 19,
Payne wroter Weber a letter requesting clarification of his
status (see G .C.'s Exh . 6). Payne was advised by letter, dated
June 28, that his employment had been terminated. (See
G.C.'s Exh. 5.) Payne was reinstated on August 11, but
testified that he had not received any increases since return-
ing to work. He was making $4.22 an hour . October 1971
was the date of his last increase.
On cross-examination , Payne denied that he had prom-
ised Weber that he would work for him at least a year if he
was reinstated . Payne testified that he was reinstated by
Weber as if he had not been away from the job and had not
quit for a period in excess of 2 months , but that nothing was
said by Weber concerning any commitment to stay any
specific period to time . Under cross -examination, Payne
denied that he told Kowan on June 16, that , I am going to
quit and I am going to turn in my keys to Weber and I'm
going to quit . On cross-examination , Payne indicated that
he had had conversations with Weber concerning
Trantham 's poor performance when Trantham was in the
heat-treating department with Payne.
C. Testimony of Respondent's Witnesses
Miss Nona Newberry testified that she is the manager of
the apartments at 8710 East Rosencrans , a position she has
held for about the last 1 -1/2 years. She is acquainted with
Larry Trantham as a former tenant at the apartment where
she is manager . Testifying with the aid of the records, she
normally keeps to record the payments of rent due, she
testified that Larry Trantham advised her on May 24 of his
intention of moving within 30 days and that his rent was
paid through June 20 . Miss Newberry further testified that
Trantham actually moved on June 14. (See Resp .'s Exh. 1.)
On cross-examination , Miss Newberry stated that the date
of June 14 was the date that the keys were returned to her
and that it was possible that Trantham had actually moved
on a different date.
Edmond L. Weber testified as follows : He is the owner
and president of Weber Metals and Supply Company, a
small company which he started 26 years ago . There are
approximately 42 employees in the bargaining unit; that he
is largely in charge of the production operations within the
plant , but he does have an assistant named Frank Chavez.
Weber explained that considerable overtime is worked in
his plant because it is a small job shop dependent upon
prompt delivery of finished products in a short period of
time.
WEBER METALS AND SUPPLY CO.
Weber said he had hired Larry Trantham at the sugges-
tion of his father-in -law, Clarence Payne , and that he, We-
ber, had also fired Larry Trantham . On Thursday or Friday,
prior to June 12, Trantham had indicated to him that he was
moving on Saturday and Sunday and asked if he could be
an hour or hour and one -half late on Monday in the event
he had not quite finished his moving . According to Weber,
Trantham was due to work at 6 a .m. on June 12. The record
is not clear as to whether or not permission to be a little late
was granted , but in crediting Weber's version of the tele-
phone conversations on June 12 , it is of no consequence.
Weber said he received a call from Trantham at or about
8:30 in the morning explaining that he had not come to
work because he was still moving and asked if he could have
another hour (which would have made it about 9 : 30 a.m.)
to report to work . Weber said he tried to explain the urgency
of his being at work , stating that we had a lot of work for
the machine . At approximately 9:30 or 9 : 45, Trantham
called again and advised Weber that he would definitely be
in at 10:30. Weber stated that he was furious and told
Trantham, "Larry, you are going to have to come in. We are
not going to play games with you ." Trantham advised that
,,he would definitely be in . According to Weber , he told
Larry in this conversation that if he was not there by I
o'clock that he would be let go . Weber explained that Trant-
ham did not appear on June 12 , and he removed his time-
card from the timecard rack . The following morning at
approximately 7 o'clock when he first saw Trantham, he
advised him that he was terminated. Frank Chavez wit-
nessed the discharge and it was also heard by Payne. Fol-
lowing the discharge , Weber explained to Payne that he had
given Trantham all the chances that anyone could possibly
give him and that Trantham had not performed satisfacto-
rily. Trantham had not responded to the personal warnings
which he had received . According to Weber , Trantham did
not deny or attempt to refute Weber's statements in any way
and offered no excuses for his conduct . Weber testified that
the absence on June 12 was merely the last of a series of
events-Trantham had not been trainable in the heat treat-
ment department and frequently wandered away from his
jobs and had been warned on several occasions; Trantham
failed to stay on the job ; Trantham had a habit of clocking
out early without permission . Trantham 's record of absenc-
es were checked by Weber and Respondent 's Exhibit 2
reflects that on March 26 , he worked only 5 hours , having
clocked out at 12:06 p .m.; on April 24 , he worked only 5-1/4
hours; on May 12 , he worked only 3-1/4 hours ; on May 13,
he did not work at all; June 1 , he worked only 5 hours and
on June 12 , he did not show up for work at all. Weber
explained that May 13 was a Saturday , but a scheduled
workday and following Trantham 's failure to report, he
(Weber) discussed with Trantham his job responsibility,
,.and I tried to point out that he had to be more on the ball
if he wanted to keep it , that we couldn't run a company like
that ." Weber testified that he knew other leadmen had had
problems with Trantham staying on thejob . Weber categor-
ically denied having any knowledge of the Union or their
organizational activities among his employees at the time
Trantham was fired.
Weber testified that he had first hired Clarence Payne
approximately 10 or I I years ago, and that he had been
389
employed continuously except for a short time in 1971 when
he quit his job and returned to some place in the Midwest
(Weber was of the opinion that it was Kansas City ). On that
occasion , Payne had given him several months' notice and
had told him that he had saved his money and was returning
to the Midwest where he had bought some farmland. After
Payne had been gone for approximately 2 months, Payne
called him and said , "He made a terrible mistake and his
wife was homesick and wanted to get back to the children
and would I try to find a place for him." Weber said he told
Payne that with his experience he could place him in one of
several departments as a trainer , but that they had already
placed a man in his old job . In this conversation , according
to Weber , Payne asked if would be allowed to retain his
seniority and Weber responded , yes, provided Payne would
assure him that he would stay at least for a year or two.
When Payne returned to work , he was reinstated as if there
had been no break in his service record-which meant that
Payne would be entitled to 2 weeks' vacation in 1972.
Weber testified that after rehiring Payne, he learned in
February that Payne was again considering returning to his
farm in the Midwest . This information came to Weber from
Lamar Trees who spoke to Weber concerning the necessity
of an assistant to take Payne 's place , because he understood
that Clarence Payne would be leaving . When Weber ques-
tioned Payne at that time concerning his plans to return to
the farm in the Midwest, Payne, indicated that he intended
to return someday , but that he was going to stay at least a
year and work for Mr . Weber . Weber testified that on June
16, the day he contends Payne quit , he learned from Al
Kowan and from Frank Chavez that Payne intended to quit
that day. At approximately 8 a.m., he talked to Mr. Payne
and said to him, "Clarence , it is sort of hearsay that you are
going to be leaving at the end of your vacation , if that's what
you want I have agreed to give you the two weeks and I am
going to give you the two weeks' pay , but I have got to know
before 4 : 30 or whatever time you leave tonight 4 or 4:30."
According to Weber , Payne said he didn't know yet, but
that he would let Weber know before 4 o'clock that day.
According to Weber, he spoke to Payne again about 4:15
and said, "Clarence, I am taking the initiative. I think you
are very unfair at this point . I am going to take the initiative
and I am making both checks up and you can make up your
mind either way, but I want to know either way before you
go." At approximately 10 minutes to 5, Payne delivered his
keys to Weber and told him that he was not coming back
after his vacation ; that he was leaving.
Weber testified that he told a number of the employees
in April that he intended to grant an increase just as soon
as the books were closed for the fiscal year and a determina-
tion made concerning the profits of the Company . The par-
ties stipulated that if the company auditor , Miss Lois
Brockett , were called to testify, she would testify that it was
the custom of Weber to call her to ascertain the profit
percentage prior to completion of the P and L statement and
audit reports for the fiscal year and that Miss Brockett
called Weber on June 10, and gave him a preliminary esti-
mate of the profit. Weber , after receiving the preliminary
report from his accountant, told the employees of their wage
increase on June 12, the next regular working day.
Weber testified that it was necessary to curtail the amount
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of overtime work during the week of June 12, because one
of the presses , two of the manipulators , and the number 11
oven were down for repairs . The breakdown of the press, the
manipulators , and the number 11 oven meant that the work
in the entire plant would be slow and no overtime would be
available for the employees . Weber denied having ques-
tioned any employee concerning attendance at a union
meeting or having questioned employees concerning signing
a union card. Weber testified that work on the addition to
the plant had continued throughout the critical period of
this case and that other than the 3 days during the week
ending June 17, the employees had continued to work their
normal amount of overtime . Weber testified that there had
been a previous effort to organize the plant and at that time
the primary organizer was Claude Butler who is currently
employed in the plant . Weber categorically denied ever hav-
ing made the statement that he had gotten rid of the union
instigators-Mr. Payne and Mr. Hodgins . Weber testified
that normally wage increases are granted on an individual
basis . On cross-examination , Weber acknowledged having
heard Payne remark to another rank-and-file employee,
Dave Rush, "that the employees were 94 percent signed up
in the machine shop," but denied having any definitive
knowledge as to whether or not Payne was interested in the
Union. This statement was overheard during the week We-
ber received the letter from the Union requesting recogni-
tion . Weber acknowledged having asked Payne on June 13,
after he had received the letter from the Union requesting
recognition , whether or not Payne knew of any problems in
the plant and having stated to Payne "After 10 years, you
being so experienced in the plant for 10, years, I thought you
could come to me ." Weber testified that Payne replied, "It
is my duty not to say anything to you or discuss it with you.
I am sorry." Weber acknowledged , on cross-examination,
that it was during the week of June 12, that he told most of
the employees about their individual wage increases.
John Bierholm testified that he was employed by the
Weber Metals and Supply Company and had been so em-
ployed as a metallurgist for approximately 15 years, that he
is a leadman or in charge of the ring rolling operation and
is not a member of the bargaining unit . Bierholm testified
that Trantham was scheduled to work for him beginning at
6 a.m., on the morning of June 12 , but that he learned from
Fred Joshua that Trantham would not be coming in until
later in the morning . Bierholm testified that he requested
Lamar Trees to work with him that morning but denied that
he told Trees that Trantham was not coming to work that
day. In response to a direct question, Bierholm stated he
told Trees, "I told him exactly what Mr. Joshua told me,
that he wouldn't be in right away and we would have to
make other arrangements , and I asked him if he would have
time to help me at that time and he said yes and we went
on and worked from there ." Bierholm testified that Joshua
told him that he had received his information concerning
Trantham not coming in until later in the day by way of a
telephone call from Trantham that morning at approxi-
mately 6: 30 a.m.
Fred Joshua testified that he is the press foreman and has
been employed by the Company for 25 years. Joshua con-
firmed the testimony of Bierholm and stated that he re-
ceived a call from Trantham on the morning of June 12 at
or about 6 : 30 a.m . and thereafter advised Bierholm that
Trantham would be coming in later that morning . Joshua
testified that Trantham had worked under his supervision
and that on several occasions he had wandered away from
his work area and that it had been necessary to discuss this
shortcoming with him . Joshua also testified that it had been
necessary to discuss with Trantham on at least one occasion
when he had punched out early and gone home without
asking permission from his supervisor.
The witness testified that the week ending June 17 was the
week that the employees worked only an 8-hour day instead
of the usual 10-hour day. Witness testified that this shorter
workday stemmed from the necessity of repairing the mani-
pulators on the presses and the number 11 oven . Witness
testified that he had no knowledge of Weber ever threaten-
ing to reduce overtime hours of the employees because of
their activities for or on behalf of the Union. Mr. Joshua
stated that in April of 1972, Weber had made the comment
to a number of the employees in the lunchroom that he
intended to grant everyone an increase just as soon as the
auditors completed the financial report for the fiscal year.
Joshua stated that there were 10 or 12 people in the lunch-
room , but he could not state how many of them heard what
Weber had said. Joshua testified he had talked to one other
employee about the forthcoming wage increase and that he
had heard other employees talking about it. In his opinion
it was common knowledge among the employees that a
wage increase was to be granted as soon as the books were
closed . Joshua stated that , normally , when an employee
goes on vacation , he keeps his keys in his possession; how-
ever , if the relief man did not have the necessary keys, it
would be permissible and a normal procedure to give him
the keys during the employee's vacation absence.
Alfred Kowan testified that he had been employed as a
leadman in the machine shop for 3-1/2 years by Weber
Metals and Supply Company. Kowan testified that on June
16, the day Payne left to go on his vacation, that he (Payne)
told him "This was his last day; that he was leaving." Kow-
an testified that he asked Payne , "How come you 're work-
ing so hard? Why don't you take it easy?" to which Payne
responded, "I will give him an honest day's work right up
to the end ." Witness testified that he had heard Payne say
that he intended to return to his farm and that he had heard
other people talking in the plant about Payne planning to
return to his farm in the Midwest . Kowan testified that it
is his practice to give his keys to the person who is relieving
him unless the relief man has keys of his own . During the
3-1/2 years that he has been with the Weber Metals and
Supply Company he has never seen anyone turn in their
keys at vacation time to Weber . Kowan denied that he had
ever heard Weber come into the lunchroom waving a letter
saying "I have Clarence 's letter" and indicated that he was
not going to mortgage his house or that he was going to cut
overtime because of union activities . Witness testified that
he recalls the time when employees were cut back to 8 hours
a day and that it was due to a series of breakdowns in the
plant and the orders were slow getting out and things were
just generally slow. Kowan testified that Larry Trantham
had performed some work for him in the machine shop and
that it had been necessary to speak to him concerning leav-
ing his machine without permission or without notifying
WEBER METALS AND SUPPLY CO. 391
anyone that the machine would be idle for a period of time.
Witness testified that he was told by Weber that there would
be a general increase for employees as soon as the books
were closed. Witness testified that in his opinion it was
common knowledge throughout the plant that a wage in-
crease would be given as soon as the books were closed if
there was a profit.
Robert Hamlin testified that he had worked at various
times for the Company over the past 15 years. Hamlin stat-
ed that he had voted in the union election which had been
held on August 1. Witness stated that he was informed in
April that Weber was going to give a raise when the Compa-
ny closed out its books if it had a profit. Witness testified
that a Mr. Wheeler who was employed as an ultrasonic
technician was present when Weber made the statement
that a raise would be given. In Hamlin's opinion it was
common knowledge among the employees that the Compa-
ny intended to grant a raise as soon as the books had been
audited. Hamlin testified that the week of the 8 hours of
work instead of the usual 10 hours of work had occurred the
week the large press, two of the manipulators, and the num-
ber 11 oven were shut down for repairs. Hamlin testified he
works in quality control and as such goes throughout the
'plant to pick up the jobs and that, in his opinion, production
was practically at a standstill the week the overtime was
curtailed. Hamlin, who was alleged by Payne and Lamar
Trees to have been present at the time Weber walked into
the lunchroom holding a letter and purportedly stated to the
four employees that he had just received a letter from the
Union, and that he did not intend to mortgage his home, or
to go ahead with any expansion until such time as the union
matter had been settled, denied that he had ever heard
Weber make such a statement. Hamlin testified that so far
as he knew, work had continued on the expansion of the
plant. Hamlin testified that he had worked alongside Payne
for several years in the heat-treating department and that
when Payne went on vacation, Payne gave his gate key to
him. Hamlin also testified that when he went on vacation,
if it was necessary, he gave his keys to Payne. He recalled
that on one occasion he gave Payne the key to his toolbox.
Hamlin testified that prior to Payne leaving work on June
16, that he (Payne) had told him on several occasions that
he intended to go back to Missouri. On cross-examination,
Hamlin was not able to fix any specific time as to when
Payne spoke to him about his return to Missouri. "....he
told me several times after he came back that he was just
trying to talk his wife into going back there and that's where
he wanted to live."
James Silva testified that he has been employed for 1 year
by the Weber Metal and Supply Company and works as a
machinist in the machine shop. Witness testified that he had
voted in the union election held on August 1 and that Cha-
vez had told him that Weber was going to give a raise in
wages right after he closes the books and if there is a profit.
Silva testified that he recalled the week in which the employ-
ees were permitted to work only 8 hours a day and that he
had been told by Frank Chavez that it was due to the
breakdown of two of the manipulators and one of the ovens.
Silva indicated the work in the plant had been slow that
week. On cross-examination, witness testified that to the
best of his recollection that was the only week in which he
has not worked overtime. Normally, he works a 56-hour
week.
John Jeffery testified that he works in the maintenance
department of the Company and has done so for the past
10 months. Witness testified he recalled a week in June
when employees worked only 8 hours for several days and
that he had worked on the machinery that was broken
down. Witness testified that Dave Rush, Ray Woods, and
Haines worked on the manipulators to get them repaired.
Witness testified that he had never heard Weber threaten to
reduce overtime hours because of the Union and that he was
informed in April of 1972 that all employees were going to
get a wage increase as soon as the company books were
closed, provided they determined that there had been a
profit. Witness testified that he received this information
from Weber and from Frank Chavez. Jeffery testified that
Payne had told him that he was going to back to Missouri,
but so far as he was concerned he (Jeffery) did not hear
Payne say just when he planned to return.
Norman Haines testified that he had been employed for
the past 8 or 9 months by the Weber Metals and Supply
Company and had voted in the union election . Haines testi-
fied that he had asked about a raise and Weber had told him
in April that as soon as the books were closed and they
determined how much money the Company made, he was
going to give everybody a raise . Haines testified that he
recalled the week of the short hours, but that he did not
work directly on the repair of the equipment. However, he
worked in the machine shop repairing a part from the bro-
ken equipment which had been taken to the machine shop
for repair.
Dave Rush testified that he worked in the machine shop
as a machinist and had been with the Company for about
13 months. Rush testified that he recalled the week in June
when the employees only worked 8 hours a day; and that
he had assisted in the repair of the press and the manipula-
tors; and he knew that there was something wrong with the
number l l oven. Rush testified that he had discussed with
Payne, Payne's desire to return to Missouri, but he did not
know of any specific date or specific plans.
Raymond Woods testified that he had been employed by
the Company for the past 11 months, that he works in the
machine shop and that he had voted in the union election.
He testified that he was told by Weber in April that the
Company intended to grant a wage increase as soon as the
books were closed, if there was a profit. At the time he
received this information, there were four or five other em-
ployees present and it was on a Sunday. Witness testified
that he had worked with the maintenance guys during the
week the big press and the manipulators were down for
repairs. Witness testified that Payne had shown him some
pictures of his house in Missouri about 3 weeks before his
vacation and he (Payne) said, "We may not come back. He
didn't say he wouldn't or wasn't for sure. He said he may
not." Witness testified that he had not heard Weber make
any threats to reduce hours or cut overtime because of the
Union.
Frank Chavez testified that he had been employed by the
Company for 7-1/2 years and that he was the production
leadman, an assistant to Weber. He testified that he had
voted in the union election in August without being chal-
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lenged. Chavez testified that it was company policy for a
man never to leave his job without informing his supervisor
or asking permission when he recalled at least two specific
occasions when Trantham was guilty of leaving the job.
Chavez indicated he had checked or looked for Trantham's
timecard on one occasion in an effort to locate him because
Al Kowan had complained that Trantham was missing from
the job. Chavez said he had also received complaints from
Fred Joshua and John Bierholm concerning Trantham leav-
ing his job. Chavez testified that he had warned Trantham
that he was not to be away from the job and that Trantham
had said, "Okay, I won't let it happen again ." Chavez stated
he had informed Weber of the shortcomings of Trantham.
Chavez said on the second occasion after he had reported
to Weber, that Weber spoke to Trantham and that he had
heard the conversation. Chavez testified that Weber had
told him on June 12 of the phone call from Trantham and
that Weber had told him (Chavez) that if Trantham wasn't
in by 1 o'clock that he would be terminated. Chavez stated
that he was present on the early morning of June 13, when
Weber terminated Trantham and Chavez corroborated the
testimony of Weber by testifying that, "He said that he had
already told him about terminating him, not only for that
reason but for various other reasons that had been happen-
ing." Chavez testified that Trantham did not deny the state-
ments made by Weber and just said okay and walked out.
Chavez testified that Payne was also in the dressing room,
and to the best of his recollection did not say anything.
Chavez was talking to Weber on the late afternoon of Fri-
day, June 16, when Payne came up to Weber and handed
him his keys and said, "Well, I am leaving." Mr. Weber
asked him, "Are you coming back?" Payne said "No, I am
not." Chavez testified that he had formerly worked with
Payne and that he recalled on one occasion that Payne had
given his keys to him when he had left on vacation and that
during his 7-1/2 years as an employee, he had never, seen
anyone turn in his keys to Weber at the time they were
beginning their vacation. Chavez testified that he had
knowledge that Payne intended to leave at some future date,
but didn't know the exact date. This information had come
to him from Lamar Trees because Lamar had asked for a
replacement to be trained for the heat- treating department.
Chavez had told Weber of this information. Chavez testified
that the week in June when the employees were cut from a
regular 10-hour day to an 8-hour day, it was due to the
breakdown of the manipulators, the press, and the number
11 oven. Chavez testified that he had knowledge of the
impending wage increase in April because some of the em-
ployees had asked him about the possibility of a raise and
that he had gone to Weber and had been told that all em-
ployees would get a raise as soon as the books had closed
provided there had been a substantial profit. Chavez said he
had furnished this information to a number of the other
employees.
Chavez testified that on two occasions he had found
Trantham sleeping on a bench in the restroom. Chavez
testified, in contradiction of Trantham's testimony, that it
was too late in the day to have been during a lunch hour.
D. Evaluation of the Evidence
There is very little objective, uncontroverted evidence
lending substantial support to either the Respondent's de-
fense or the General Counsel's case. Through some theoreti-
cally omnipotent power, or use of a "mystical ball,"
however, the trier of the facts is obligated to discern the
truth and rule accordingly. In a most conscientious effort to
fulfill this obligation, I have reflected on the demeanor of
each witness and have scrutinized the entire testimony care-
fully. I shall recommend dismissal of the complaint in its
entirety.
1. As to Trantham
Trantham's case is the least difficult. By his own testimo-
ny he took absolutely no part in the union campaign, other
than to quietly and surreptitiously sign a union card. There
is a paucity of evidence in the record to indicate Weber or
any other supervisor knew anything about the Union until
the mail delivery on June 13, after Trantham was dis-
charged. There is a dearth of evidence as to union animus
on the part of the Respondent. But there is not a scintilla
of evidence linking Trantham's discharge to protected /
union or concerted activity. Section 8(a)(3) of the Act de-
clares that it is an unfair labor practice for an employer "by
discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or dis-
courage membership in any labor organization." An em-
ployer may discharge for poor cause or no cause and there
is no violation of Section 8(a)(3) unless the employer's pur-
pose is to encourage or discourage union membership.2 This
record is void of any evidence to indicate that Trantham's
discharge was related to the encouragement or discourage-
ment of union membership.
Moreover the testimony of Miss Newberry, the only com-
pletely disinterested impartial witness to testify, seriously
impugns the accuracy, if not the creditability, of Trantham's
testimony. Even the testimony of Trantham's father-in-law,
Payne, tends to support Weber's stated position that Trant-
ham was something less than a satisfactory employee. On
this basis I credit the testimony of Weber-as supported by
Chavez, Hamlin, Bierholm, and Joshua-and find that
Trantham was discharged for good cause, culminating in his
failure to appear for work on June 12, after having been
warned by Weber that he would be discharged if he failed
to show up for work by 1 p.m.
2. As to Payne
Disposition of the dispute as it relates to Payne is more
difficult than the case of Trantham. The Respondent con-
tends Payne quit, the General Counsel contends Payne was
discharged for union motivated reasons. While a number of
witnesses testified that Payne had indicated he intended to
quit "sometime" and return to his home in Missouri and one
witness-Alfred Kowan-testified that Payne told him on
June 16, "that was his last day," I am persuaded most by
2 Associated Press v N LR B, 301 U.S 103 ( 1937), see also N.L R.B. v.
Ogle Protection Service, Inc, 375 F 2d 497 (C A 6), cert. denied 389 U S. 843.
WEBER METALS AND SUPPLY CO
the statements and conduct of Lamar Trees, who testified
on behalf of Payne. Why was Trees so concerned about a
replacement for Payne, unless Payne had revealed to him
his true intentions to quit in February 1972? Admittedly the
timing of the disputed "quit-discharge", causes one to be
suspect. But why did Payne turn in his keys to Weber,
president of the Company? This conduct-it seems to me-
was most unusual for an employee just going on vacation,
but not too unusual if one intended to quit the job. On
balance, I am forced to credit the testimony of Weber,
Chavez, and Kowan and conclude that on June 16, Payne's
conduct gave every indication of his intentions to quit his
employment with Weber Metals and Supply Company,
even though he may have had a change of mind over the
weekend. The General Counsel has failed to establish by a
preponderance of the creditable evidence that Payne was
discharged by the Respondent in violation of Section 8(a)(3)
of the Act.
3. Remaining issues
There is abundant testimony in the record, much of which
was presented by rank-and-file employees, that participated
in the union election, supporting the reason advanced by
Respondent for the brief period of curtailing overtime. I
find that the hours of work were shortened from 10 hours
each day to 8 hours each day for a short period in June
because two of the press manipulators and the number 1 I
oven were not in good working order and for the period of
time necessary for repairs the volume of work was substan-
tially lessened. The General Counsel contends that Weber's
pretrial affidavit referring to an interruption in the "flow of
work" is inconsistent with Respondent's reasons advanced
at the trial-namely the breakdown of certain equipment.
I find nothing inconsistent. The breakdown of critical
equipment, such as the presses, would certainly interrupt the
"flow of work."
I credit the testimony of the numerous witnesses that
testified they had been told a wage adjustment would be
forthcoming as soon as the books for the fiscal year were
closed, provided there was a profit. There is abundant testi-
mony that long prior to any established union knowledge on
the part of Respondent that Weber and other supervisors
had told employees they might expect a wage increase after
the auditors had completed their work. I find the granting
of the wage adjustment was in keeping with commitments
made to the employees by Respondent prior to any union
knowledge and not in violation of the Act.
The alleged incident in the lunchroom wherein Weber is
supposed to have made threatening and coercive remarks
about the Union to Payne, Trees, Hamlin, and Kowan
shortly after Weber received the letter demanding recogni-
393
tion from the Union simply does not ring true. Weber,
Hamlin, and Kowan deny that the incident occurred. Nei-
ther Trees nor Payne had any recollection of any further
conversation by anyone in the group after Weber's alleged
tirade. It seems inconceivable that no one would have com-
mented after having their wages and even their job security
threatened, if in fact, it did occur. The complete failure of
either Trees or Payne to relate any follow-up to the alleged
remarks convinces me that it never occurred.
The only incident which in my opinion has some weak
relationship to an 8(a)(l) violation of the Act occurred dur-
ing the conversation which took place between Payne and
Weber on the morning of June 13. According to Payne,
during this conversation, Weber asked, "Well, if that's the
way it is, how many others?" (Meaning how many other
employees wanted the Union.) This conversation would be
violative of the Act, if it is true. Weber acknowledged initi-
ating a conversation relating to the Umon's letter with
Payne following the discharge of Trantham, but, according
to Weber, Payne's response was that he had given his word
and couldn't discuss it. Weber's version of the conversation
is not totally inconsistent with Payne's version, there is just
less of it. In any event, this lone isolated incident, if it did
occur, could not possibly have interfered with, restrained, or
coerced anyone and does not warrent a corrective remedy.
As indicated above, the problem in this case was one of
resolving creditability. Upon careful review of all the evi-
dence adduced before me in this case, I am of the opinion
that the witnesses called by Respondent were more credible
and that their testimony' was more reliable. Accordingly, I
shall recommend that the complaint in this case be dis-
missed in its entirety.
CONCLUSIONS OF LAW
General Counsel has failed to prove that the Respondent
has violated Section 8(a)(1) and (3) of the Act as alleged in
the complaint.3
Upon the foregoing and the entire record, and pursuant
to Section 10(c) of the Act, I hereby issue the following
recommended • °
ORDER
The complaint is dismissed in its entirety.
i The record is corrected as ordered.
In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec . 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings , conclusions, and Order , and all objections thereto shall be deemed
waived for all purposes