Bayport Fabricating, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 516 (N.L.R.B. 1970)

516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bayport Fabricating , Inc. and Sheet Metal Workers'
International Association , Local Union No. 54,
AFL-CIO. Cases 23-CA-3121 and 23-CA-3202
August 27, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
MCCULLOCH AND JENKINS
On May 27, 1969, Trial Examiner James F. Foley
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in unfair
labor practices as alleged in the complaints, and rec-
ommending that the complaints be dismissed in their
entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel filed excep-
tions to the Trial Examiner's Decision and a support-
ing brief, and the Respondent filed cross-exceptions
and an answering brief to the General Counsel's
exceptions.
Pursuant to Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board has delegated its powers in connection
with these cases to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, cross-exceptions,
and briefs, and the entire record in this proceeding,
and hereby adopts the findings,' conclusions, and
recommendations of the Trial Examiner as modified
herein.
We adopt the Trial Examiner's conclusion that
the General Counsel has not established by a prepon-
derance of the evidence that the terminations of
employees Baker, Snell, and Eggleston, or the failure
to rehire Thomas, were discriminatorily motivated,
although certain testimony was adduced by the Gener-
al Counsel, which, if credited, might have caused
us to hold otherwise.
1. With respect to Baker, we deem it significant
that he had been reprimanded in the past for damaging
machinery and for poor workmanship, and was dis-
charged only after installing certain tray rings at
' The findings and conclusions of the Trial Examiner are based substan-
tially upon his credibility determinations , to which the General Counsel
excepts After careful review of the record herein , we conclude that
the Trial Examiner 's credibility resolutions , which, in turn , are based
largely upon his observation of the demeanor of the witnesses involved,
are not contrary to a clear preponderance of the relevant evidence
Accordingly, we hold that there is no basis for disturbing them Standard
Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3)
incorrect intervals in a large vessel under construction
for a customer in the petrochemical industry. Because
of this error in the construction of the vessel, which
was worth approximately $50,000, the Respondent
risked having the vessel rejected by the customer.
Baker's foreman, Hill, was discharged at the same
time and for the same reason.
2. We also adopt the Trial Examiner's conclusion
that Snell was discharged because he displayed a
provocative attitude toward the Respondent while
being addressed by President Moats concerning work
deficiencies and not for any reason violative of the
Act. The record shows that Snell had been reprimand-
ed on several occasions for poor production and for
idleness on the job. On or about October 29, 1968,
Snell was informed that he was being transferred
to the night shift as of the following evening. He
expressed displeasure with this arrangement, especially
as his request for an accompanying wage increase
was turned down. During the next 3-day period Snell
failed to report for work and, except for the second
day when he called in sick, failed to notify the Compa-
ny of his absence. On the fourth workday, November
4, Snell reported for work on the new shift. He
arrived 25 minutes early and began talking to a
working employee until reprimanded by President
Moats. At the conclusion of his regularly scheduled
shift that night, Snell refused to work overtime, as
requested by the shift foreman, claiming that he had
reached an understanding with Baletka, the plant
superintendent, that he would not be required to
work extra hours. The following day when Snell
reported for work he was summoned to Moats' office.
There, in the presence of the two men, Baletka denied
that he had granted Snell immunity from working
overtime. Moats confronted Snell with his unsatisfac-
tory work pattern, described above. According to
the credited testimony of Moats, Snell answered
Moats' question as to what should be done by saying
that that was Moats' problem and that "as far as
he [Snell] was concerned, I [Moats] could do any
damn thing I wanted to." Moats thereupon discharged
Snell.
3. In view of the Trial Examiner's credibility resolu-
tions, we find that Eggleston voluntarily quit the
Respondent's employ on Friday, September 20, 1968,
and was not discharged, as the General Counsel con-
tends, when he returned to the Respondent's plant
on Tuesday, September 24. The credited testimony
reveals that on Thursday, September 19, Eggleston
was reprimanded for improperly machining a flange
which then had to be discarded. On the following
day Eggleston asked his immediate supervisor, Van-
derhider, for a recommendation which he could use
in applying for another job. That same afternoon,
185 NLRB No. 43
BAYPORT FABRICATING, INC 517
at the conclusion of his shift and, after paychecks
were distributed, Eggleston told Carr, the maintenance
foreman, that he was quitting his job. He left the
plant that day carrying a 30-inch fan on a 5-foot
stand, having obtained a pass to carry this personal
property through the plant gate. He left behind,
unknown to the Respondent, personal tools weighing
between 70 and 90 pounds. On Saturday, September
21, Baletka and John Haygood, the Respondent's
vice president, were informed of the circumstances
surrounding Eggleston's departure and the same day
made arrangements to contract out his unfinished
work. On the following Monday, Eggleston requested
another employee to report him as sick. On Tuesday,
September 24, when he appeared for work, he was
turned out of the plant. On these facts, we conclude
that Eggleston voluntarily quit the Respondent's
employ on September 20, and that the Respondent's
subsequent action was governed by the information
it had received to that effect.
Further, we agree that the General Counsel has
not sustained his burden of proving that the Respond-
ent unlawfully denied Eggleston the opportunity to
work overtime during the period between his return
from vacation on August 19 and his departure on
September 20 The Respondent's assertion of economic
necessity is uncontroverted by the record. In this
respect, however, we find no basis for, nor do we
adopt, the Trial Examiner's finding that such overtime
included weekend work to make up regular time
lost during the week by Eggleston's presence at the
collective-bargaining sessions as a member of the
employees' bargaining committee. Nor do we adopt
the Trial Examiner's statement of his entrepreneurial
philosophy and its application to the Respondent's
decision to eliminate overtime, his speculation upon
the working arrangements the Respondent made with
outside machine shops following its decision, or his
interpretation of the Respondent's decision not to
require Eggleston to work overtime as a "silent repri-
mand" for unsatisfactory performance.
4. Finally, we agree with the Trial Examiner's
holding that former employee Thomas was denied
reemployment because the job which he sought was
eliminated for nondiscriminatory reasons by the
Respondent, and not because Thomas had previously
filed charges with the Board alleging that he had
been discriminatorily discharged some 2 months earli-
er.' In this respect, we deem it significant that a
general reduction in force had taken place at the
' Until July 26, 1968, Thomas was employed as an auto mechanic,
performing maintenance on 10 to 14 company cars and on a few units
of other mobile equipment On July 26, after the Respondent had reduced
the number of cars to two, upon which only minor maintenance was
to be performed, Thomas was laid off Thereafter, the Union filed a
Respondent 's establishment , that the duties assigned
to the employee who last held the job in question
were effectively transferred to other employees, and
that at no time was the job reinstated or the work
force augmented to allow for the performance of
those duties. Alternatively , the Trial Examiner held
that even if the Respondent had refused to reemploy
Thomas because the latter had filed charges with
the Board, he would not find that the Respondent
thereby violated Section 8(a)(4) and ( 1) of the Act,
because, in his view , the objective of those charges
was "obviously to harass Respondent by invoking
the processes of the Board against Respondent for
its doing something it had a right to do." We categori-
cally reject this holding of the Trial Examiner which
is, at best, gratuitous , unnecessary to a determination
of the issues here involved , and contrary to Board
precedent. See American International Aluminum
Corp, 149 NLRB 1205, 1210.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby adopts as its Order the Recom-
mended Order of the Trial Examiner, and orders
that the complaints herein be, and they hereby are,
dismissed in their entirety.
charge alleging that Thomas was discharged for discriminatory reasons
The Respondent contended that Thomas was terminated because his
services were not needed after it reduced the number of company vehicles
Ultimately, the Union abandoned its claim that Thomas was discharged
for discriminatory reasons
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES F. FOLEY , Trial Examiner These cases , 23-CA-
3121 and 23-CA-3202, were brought before the National
Labor Relations Board (herein called the Board) under
Section 10(b) of the National Labor Relations Act, as
amended (herein called the Act), 61 Stat 136, 76 Stat.
579, against Bayport Fabricating, Inc. (herein called
Respondent), by complaints issued on November 15, 1968,
in Case 23-CA-3121 and on January 10, 1969, in Case
23-CA-3202, and consolidated for hearing on January 10,
1969, and Respondent's answer filed November 25, 1968,
in Case 23-CA-3121, and its answer filed January 20,
1969, in Case 23-CA-3202, and General Counsel's bill
of particulars furnished on January 16, 1969, in Case 23-
CA-3121 pursuant to Respondent 's motion filed on Novem-
ber 25, 1968, and Trial Examiner 's order thereon issued
January 10, 1967. The complaints are premised on unfair
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practice charges filed by Sheet Metal Workers ' Interna-
tional Association , Local Union No. 54, AFL-CIO (herein
FINDINGS AND CONCLUSIONS
called the Union), against Respondent on September 3, I. THE BUSINESS OF RESPONDENT
1968, in Case 23-CA-3121, and amended on September
25 and November 4, 1968, and on unfair labor practice
charges the Union filed against Respondent on November
21, 1968, in Case 23-CA-3202.
It is alleged in the complaints that since on or about
July 18, 1968, Respondent, in violation of Section 8(a)(1)
of the Act, has threatened employees, reprimanded employ-
ees, and engaged in surveillance of them, in connection
with their employment, engaged in collective bargaining
with an employee and discharged Supervisor R. L Hill
on August 30, 1968, to interfere with rights of employees
guaranteed in Section 7 of the Act to engage in union
activity, assist the Union, bargain collectively through repre-
sentatives of their own choosing, and engage in other con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection.
It is also alleged that Respondent discharged employees
Roland Baker on August 30, 1968, Ellsworth Eggleston
on September 24, 1968, and John A. Snell on November
5, 1968, and denied overtime to Eggleston on August 19,
1968, and thereafter, because of their activities as members
of the employees' negotiating committee of the Union,
the certified union bargaining representative, and other
union acitvities, in violation of Section 8(a)(3) and (1)
of the Act; threatened on September 20, 1968, to refuse
reemployment to employee Gerald Thomas because he filed
an unfair labor practice charge against it in connection
with his layoff on July 26, 1968, and did refuse to rehire
him for this reason on September 20, 1968, in violation
of Section 8(a)(4) and (1) of the Act.
It is finally alleged in the complaints that Respondent,
by the above alleged conduct and engaging in individual
bargaining with an employee and threatening him because
of his absence from work while attending collective-bargain-
ing negotiations as a representative of the Union, rejected
the collective-bargaining principle, and refused and is refus-
ing to bargain collectively, in violation of Section 8(a)(5)
of the Act
Respondent denies the illegal conduct alleged in the
complaints It affirmatively pleaded in its answers that
Baker and Hill were discharged for cause on August 30,
1968, and Snell was discharged for cause on November
5, 1968, and that Eggleston voluntarily terminated his
employment on September 20, 1968
A hearing on the complaints , the bill of particulars,
and the answers was held before me in Houston , Texas,
on February 4, 5, 6, and 7, 1969 The parties were afforded
an opportunity to present evidence , make oral arguments,
and file briefs. Briefs were filed by General Counsel and
Respondent after the close of the hearing '
' The transcript consists of 848 pages Respondent's motion to correct
errors in the transcript filed March 13, 1969, is granted, and errors
are corrected . Respondent 's motion to strike par 8 (d) of the complaint
in Case 23-CA-3121 is granted
Respondent, a Texas corporation with office and place
of business located in Houston, Texas, is engaged in the
manufacture and sale of custom fabricated pressure vessels
(towers), tools, and other industrial equipment During
the 12-month period ending November 15, 1968, Respondent
and its predecessor, Shaffer-Bayport, a division of Shaffer
Tool Works (herein called Shaffer), purchased goods and
materials valued in excess of $50,000 which were transported
to the plant in Houston, Texas, operated by Respondent
and predecessor, directly from points outside the State
of Texas Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and assumption
of jurisdiction will effectuate the purposes of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act
III THE UNFAIR LABOR PRACTICES
A Undisputed Evidence
It is undisputed that on April 16, 1968, the Union
was certified by the Board as bargaining representative
of a unit of production and maintenance employees, the
Union and Respondent and predecessor Shaffer had 19
bargaining sessions in the period beginning with May 24,
1968, and ending January 20, 1969, and at the time of
the hearing, February 4 to 7, 1969, the Union and Respond-
ent had scheduled a meeting for February 11, 1969, the
Monday following the week of the hearing, since July
30, 1968, Respondent has been the employer participant
in 14 of the 19 bargaining sessions, and no charge or
representation has been or is made by the Union or its
representatives that Respondent's conduct at the bargaining
sessions has been less than what- good-faith bargaining
requires, in late April 1968 employees Baker, Eggleston,
Snell, and Hernandez were appointed by the Union to
be an employee bargaining committee, to assist Woodrow
Woodall, International organizer, Sheet Metal Workers'
International Association, AFL-CIO, and Warner Brock,
the Union's attorney, in the bargaining; the employees'
committee, along with Woodall and Brock, met in bargaining
sessions beginning on July 30, 1968, approximately 2 weeks
after Respondent acquired ownership on July 18, 1968,
with Nelson Wall, secretary of Respondent, and V. Scott
Kneese, an attorney, the representatives of Respondent;
Baker was discharged on August 29, 1968, Eggleston either
was discharged on September 24, 1968, or quit on September
20, 1968, and Snell was discharged on November 5, 1968;
Baker, Snell, and Eggleston ceased to serve on the employees'
committee when they ceased to be active employees, and
at the time of the heanng beginning February 4, 1968,
the committee consisted of employees Hernandez, Pate,
and Pond; Baker received reprimands between the time
he was appointed a member of the employees' committee
BAYPORT FABRICATING, INC 519
and July 18, 1968, when Respondent purchased Shaffer's
assets, and between the latter date and August 29, 1968,
the date of his discharge; Snell received reprimands between
his appointment to the employees' committee and the begin-
ning of Respondent's ownership on July 18, 1968, and
from this latter date to November 5, 1968, the date of
his discharge; and Eggleston was not given the opportunity
to work overtime after returning from vacation on August
19, 1968, and was reprimanded on September 19, 1968.
It is also undisputed that Foreman R L Hill, under
whose supervision Baker was working on a large pressure
vessel or tower, was discharged on August 29, 1968, the
same day Baker was discharged, and that Gerald Thomas,
a maintenance man who was terminated on July 26, 1968,
was not reemployed on September 20, 1968, although he
applied for the job of maintenance man on the second
shift, left vacant by the quitting of Pete Rodriguez who
held this job, after Thomas had been contacted by Mike
Carr, Respondent's foreman of maintenance, and told by
him he might have this job for him.
B. Contentions of the Parties
General Counsel contends that Baker, Snell, and Eggle-
ston were reprimanded and discharged, and Eggleston was
denied overtime, because, unlike employee Hernandez, they
actively participated in the collective-bargaining negotia-
tions. General Counsel also contends that Foreman Hill
was discharged along with Baker to give color to Respond-
ent's pretextual reasons for Baker's discharge. General Coun-
sel claims that the reprimands given Baker and Snell by
Baletka, the shop superintendent under Shaffer and
Respondent, in the period of Shaffer's ownership when
Baker was a member of the employees ' negotiating commit-
tee; testimony given by employee White that Baletka said
to him that he was going to get rid of Baker, Eggleston,
and Snell because of their union activity, and testimony
by Foreman Hill that Baletka said to him Snell was an
agitator , causing everybody trouble, and Respondent had
to get rid of him, and he was depending on him to do
it, showed Baletka 's union animus and an intention to
discriminate against these three employees which carried
over from Shaffer's ownership to the new ownership under
Respondent.
Respondent contends that Hill was discharged for making
a costly inexcusable error in the fabrication of the pressure
vessel or tower, which had a value of $50,000, and Baker
was discharged for the same error and for making other
mistakes in connection with the fabrication of the vessel;
Baker was reprimanded in the period following Respondent's
acquisition of ownership on July 18, 1968, for mistakes
made in the fabrication of the pressure vessel or tower,
and reprimanded during the prior period under Shaffer's
ownership for continuously violating a safety rule and for
poor production, Snell was discharged and reprimanded
after Respondent acquired ownership for poor attitude,
poor production, refusal to work overtime , and engaging
in union activity or interfering with employees' efforts to
work during working time , and reprimanded in the prior
period for poor production and poor attitude, and that
Eggleston quit his employment following a reprimand for
poor workmanship in the operation of an engine lathe
and was not discharged
General Counsel contends that Gerald Thomas, a mainte-
nance man terminated on July 26, 1968, was refused employ-
ment on September 20, 1968, when Pete Rodriguez, the
maintenance man on the second shift, quit, because his
termination on July 26, 1968, was claimed to be a discrimina-
tory discharge in an unfair labor practice charge filed
with the Regional Director by Thomas or the Union.
Respondent contends that when Rodriguez , maintenance
man on the second shift, quit on September 20, 1968,
it decided through John Haygood, vice president and plant
superintendent, and contrary to the thinking of Mike Carr,
the maintenance foreman , not to employ a maintenance
man on the second shift, but to make Carr subject to
call for any maintenance work required on the second
shift, and has so employed Carr, and has not hired anyone
to replace Rodriguez
General Counsel contends that, in a conversation he
had with Snell about a week before Snell's discharge, Presi-
dent Moats attempted to engage in individual bargaining
with Snell adverse to the collective bargaining taking place
between the Union and Respondent, and threatened Snell
for being absent from his job when participating in the
collective bargaining which was taking place during working
hours, and that such conduct constitutes a refusal to bargain
in good faith and a rejection of the collective-bargaining
principle.
C. Background Evidence
Respondent's business is the custom fabrication from
alloys and exotic metals of tools, pressure vessels, and
other industrial equipment for use in the oil and petrochemi-
cal industries. There are five or six general contractors
engaged in the construction of refineries and petrochemical
plants in the Houston-Harris County area, who may subcon-
tract the fabrication of equipment to Respondent, and in
turn supply the finished product to the industry for its
ultimate use. These general contractors and the ultimate
users, the approximately 35 operating petrochemical and
oil companies in the area, are Respondent's available custom-
ers.
Respondent's plant was originally built by the Offenhauser
Company (herein called Offenhauser) in September 1965
On March 7, 1966, it was purchased by Shaffer-Bayport,
a division of Shaffer Tool Works (herein called Shaffer).
Included in the purchase agreement between Offenhauser
and Shaffer was an agreement that former employees could
not leave Shaffer to return to Offenhauser for 3 years
(until March 7, 1969) unless they were discharged or laid
off. On or about July 18, 1968, Respondent purchased
the assets of Shaffer The agreement between Offenhauser
and Shaffer regarding the reemployment of former Offenhau-
ser employees by Offenhauser became an agreement between
Offenhauser and Respondent
Shaffer, Respondent's predecessor, lost approximately
$1 5 million for the fiscal year preceding Respondent's
acquisition It had a reputation in the industry for poor
quality workmanship. Because of this reputation and its
own experience, Brown and Root , Inc., one of the major
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
customers in the industry , had completely ceased placing
business with Shaffer However, when Respondent acquired
the plant, Brown & Root once again started placing business
with it . Brown and Root was of the opinion that Respondent,
with Bruce Moats as majority stockholder and chairman
of the board, would produce high quality products. Its
opinion was based on its experience with Houston Fabricat-
ing Inc ., another fabricating facility operated by Moats,
and the opinion of its chief inspector Prior to selling
the plant to Respondent , Shaffer, to reduce its losses, and
to improve the plant's saleability , employed an efficiency
engineer to look into the plant 's production and delivery
problems, mistakes , and low employee morale. When
Respondent acquired ownership it immediately began an
effort to correct the problems and create a profitable situa-
tion disclosed by the efficiency engineer and its own observa-
tions On the second day of its ownership , Respondent
reduced the number of office and production employees,
reduced overhead by $20,000 and did away with 11 of
the 13 company vehicles The number of employees in
the bargaining unit were reduced to approximately 80,
and the office force was reduced from 40 to 8 employees.
President Moats, 35 years of age, became an employee
in the industry at 17 years of age On the list of jobs
he held is that of estimator This job requires a knowledge
of costs, or a method for obtaining costs, of plant operations
and equipment , and a capacity for estimating prices in
relation to costs for a contract job Moats divided his
time between Houston Fabricating and Respondent At
Respondent 's plant, he watched the various plant operations
including the operation of machines by employees. He
would walk down an aisle of the plant and stop and
look at a machine operation He watched the operation
of a machine in terms of time and quality of work and
product Moats knew the names of the four members of
the Union 's employees ' negotiating committee from about
the time Respondent acquired ownership , and about 30
days later learned the identity of these employees, the
machines they worked , or the locations at which they
worked
D Evidence of Conduct in Controversy
1 Reprimands prior to July 18, 1968
Employee Baker, a fitter and layout man, was reprimand-
ed by Foreman Hill on May 10, 1968, at the request
of Shop Superintendent Baletka for not wearing a hard
hat Baker worked under Hill in Department C Written
notice of the reprimand was made by Hill and approved
by Baletka and placed in Baker's personnel file. Baletka
had seen Baker on a number of occasions without his
hard hat while working and signaled to him to put it
on The May 10 notice of reprimand showed a mark
of good for Baker 's ability, conduct , attendance , and produc-
tion The other available marks were "Excellent ," "Fair,"
and "Poor." Shortly after May 10, Baletka personally repri-
manded Baker for not wearing his hard hat and for poor
production Baletka testified that on each occasion Baker
was told to wear his hard hat he was not wearing it,
and at the time of the last reprimand which was also
for poor production, Baker 's production was poor Baker
testified that the day following the day he was reprimanded
by Baletka he saw seven employees without hard hats,
and that when he received this reprimand he had taken
off his hat to put on his helper's welding mask. There
is no testimony that either Hill or Baletka saw the other
employees without the hard hats There is a plant safety
rule that hard hats and glasses be worn when working.
Hill testified that the May 10 reprimand to Baker was
deserved . He and Baker testified that they had no recollec-
tion of a notice of reprimand being previously prepared
for neglecting to wear a hard hat
On June 19, 1968, Shop Superintendent Baletka repri-
manded employee Snell, a junior fitter Baletka warned
him that his production was very poor and that he was
doing entirely too much talking to other employees during
working hours . A notice of reprimand was written by
Baletka and placed in Snell 's personnel file The place
on the notice form for marking Snell's record at the time
of the reprimand was not filled in Snell's foreman at
the time was Hill He was foreman of Department C
Hill was not aware that Baletka had reprimanded Snell
Snell testified that he was informed by Foreman Hill
that the office, presumably Baletka, had informed Hill that
he (Snell) was "goofing off," that he was walking around
and shirking his duties , and not doing his work According
to Snell, Hill reported to him that he received one to
two complaints a week about Snell for a period of 4
weeks starting in June 1968 Snell testified that he had
to go to the toolroom to obtain the rods made of the
same metal that was to be tacked or temporarily welded,
and to go about the plant (approximately 300 yards long)
and look in the bays to find a come-along or air hoses
for the grinder, and when assigned to do a job at a specific
location or to assist a fitter he would have to go to the
location of the job or of the fitter he was assisting. Hill
testified that Snell was a good worker Baletka testified
he told Hill around June 15 that Snell's production was
poor, and that Snell would have to work whether he belonged
or did not belong to the Union
Employee W A White, a fitter and layout man like
Baker, who knew Baker, testified that on or about June
1, 1968, Baletka told him he would have to get rid of
Snell because he was devoting too much of his time to
union activities , and about 2 weeks later told him that
Eggleston and Baker thought they were intelligent with
union activities , and he would have to get rid of them
White also testified that after the June 15 conversation
he had with Baletka, Hill told him that Baletka said to
him he was out to get Snell , and that he had informed
him to get rid of Snell because he was devoting too much
time to union activities and was not able to perform his
duties
White, on cross-examination , admitted that on June 14,
1968, he told Baletka he was joining the Union, and that
Baletka said he could not tell him what to do or not
to do, that it was his business Baletka testified that the
only thing he said to White in connection with union
activity was his statement to him that it was his prerogative
to join the Union in response to White's statement to
him that he was joining the Union . Baletka denied he
BAYPORT FABRICATING, INC
said anything to White about Baker's, Eggleston's, or Snell's
union activity or that he would have to get rid of them
for engaging in it. Baletka testified that he told Hill around
June 15 that Snell's production was poor and that Snell
would have to work whether he belonged or did not belong
to the Union He denied he said anything to Hill about
getting rid of Snell because he was devoting too much
time to union activities
2 Reprimands given Baker after July 18, 1968
Baker testified that after Respondent acquired the assets
of Shaffer on July 18, 1968, he was reprimanded twice
by Baletka and once by Moats The reprimands were in
connection with the construction of a pressure vessel of
stainless steel, 15 to 17 feet in diameter and 80 feet in
height, being built for Monsanto Company. The pressure
vessel was being built of circular sections 8 to 10 feet
in length The sections or cans were permanently welded
together to form the completed vessel. It was laid out
horizontally on the plant floor Baker was building this
vessel under the direct supervision of Foreman Hill and
with the assistance of employees on the day and night
shifts. Baker testified that the night shift got two of the
cans crooked, and to straighten them out he had his welder
or tacker join them with a temporary weld He lifted
them with a crane The force from the crane was exerted
at the outer ends of the cans with the result that the
temporary weld joining the inner ends split, and the cans
being unsupported at these ends fell and broke. The force
from the crane should have been evenly distributed across
the cans or at least balanced Baker testified that the
night shift and his tacker were responsible and not him
Baletka testified he observed the lifting and the breakage,
and instructed Foreman Hill to reprimand Baker He did
not talk to Baker about the incident He did, however,
consider this incident along with two other incidents involv-
ing this pressure vessel in recommending Baker's discharge
to Vice President Haygood on August 29, 1968.
Baker testified that about the same time after July 18
Baletka said to him that he wanted to talk to him about
President Moats' statement to him that he, Baker, was
ruining a set of rubber turning rolls Baker told him that
someone else had burned off the rubber from the rolls,
and that someone had put a ring on the section of the
tower being turned which made a groove in the rubber
3 or 4 inches wide. Vice President Haygood testified that
Baker had incorrectly positioned two sections or cans of
the pressure vessel or tower on the turning rolls so that
the fit-up lugs which hold the sections together until they
are welded bit into the turning rolls. The turning rolls
turn the cans while they are being welded The fit-up lugs
jut out from the places holding the sections or cans together.
Baker testified that about August 8, 1968, 3 weeks before
he was discharged, he had to affix some spray nozzles
to the interior of the vessel or tower, and his helper had
gone for some welding rods for this job. When he was
standing next to the tower waiting for the helper to return,
Moats came by, and said that he could not fix the "dam
thing" by looking at it, and that he replied, "I sure as
hell can't." There is no evidence that he explained to
521
Moats that he was waiting for the helper to return with
the welding rods.
3 Reprimands given Snell after July 18, 1968
Foreman Hill testified that he attended a supervisor's
meeting on July 20, 1968, at which President Moats, Vice
President and Plant Manager Haygood, Shop Superintend-
ent Baletka, and Foreman Vanderhider were present, and
that Baletka stated to Hill in the presence of the others
that Snell was no good, was an agitator, caused everybody
trouble, and had to be gotten rid of, and instructed Hill
to get rid of him immediately Baletka denied he made
this statement to Hill Hill testified he disclosed Baletka's
instructions to Snell, but refused to discharge him, as he
was satisfied with his work. Hill testified that he was
told at the July 20 meeting that every employee had to
receive three reprimands in writing before they could be
discharged. Haygood testified that he told those present
at the supervisors' meetings that the plant did not make
money under Shaffer because not enough control of employ-
ees was exercised by management. He told the supervisors
that when an employee did something wrong a warning
slip should be issued
On July 21, 1968, Hill reprimanded Snell about being
idle and visiting during working hours A notice of the
reprimand was prepared by Hill and approved by Baletka.
The space on the notice form for the record of the employee
reprimanded was marked fair for ability and attendance,
and poor for conduct and production. Hill testified that he
marked Snell's production poor, but that it was fair to good
and he would have marked it fair, but was of the opinion
Baletka would not approve the mark unless it was "poor "Z
Snell testified that shortly after July 18, 1968, his foreman,
apparently Hill, told him that some vessels located at
the back door of the plant ready to be shipped had to
have Respondent's name, Bayport Fabricating, welded on
them, and he went to the back of the plant and asked
an employee there where the nameplates were to be welded
on the vessels He was told that Inspector Angele would
have to tell him. About an hour and a half later, Angele
appeared and showed him the place on the vessels where
he thought the nameplates should be located While he
was welding, Baletka appeared with Hill and said to him
in Hill's presence that he had been doing nothing and
if he did not get busy he would have to run him off.
Snell had made no attempt to find Angele during the
hour and a half, but just waited until he appeared at
the location near the back door where the vessels were.
' Hill's credibility as a witness is in issue not only for the reason
he was discharged by Respondent, and his testimony contradicts his
opinion in writing of Snell's and Baker's work that he gave at a time
when it was under scrutiny, but because of the evidence that in making
application for employment to Offenhauser he stated on the application
form he left Pan Am Steel and B A Reisner, two prior employers,
to obtain a better job, and his admission on cross-examination that
he was discharged by one employer, namely, Pan Am Steel, and then
his subsequent admission on cross-examination he had been discharged
by Reisner Counsel for the General Counsel elicited an explanation
from Hill for the false statements, but the fact remains that he made
them
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In August 1968, Baletka transferred Snell from Depart- 4. The discharges of Baker and Hill
ment C to Department D under Roger Martin. This was
also a day-shift job. According to Snell, Baletka told him
at the time of the transfer that he did not believe that
Foreman Hill was taking advantage of what he could
do. When he had been 2 weeks under Martin, Baletka
complimented him on the good work he was doing After
Snell said to him he probably would not think so if he
knew about the mistake that he had just made, Baletka
replied that everybody made small mistakes. Snell testified
that when Baletka found out later what the mistake was
he said nothing one way or the other. Hill testified that
Baletka told him that Snell was doing better work under
Martin's supervision than he did under his.
General Counsel questioned Baletka on cross-examination
about two notices of reprimand that Baletka made out
on October 4, 1968. One states that he warned Snell about
talking about union activities during working hours. Baletka
completed the space for the employees' record at the time
of the reprimand by marking Snell's ability, conduct, and
attendance fair and his production poor. The second notice
states that Baletka told Snell that the time from 3:20
to 3.30 p.m. was time for shop cleanup and putting tools
away and "not for talking and Union Negotiations." Baletka
did not mark Snell's record on this notice.
Baletka testified that on October 4, 1968, he saw Snell
at the time the whistle blew for cleanup talking to five
or six other employees, and he told him that the time
was for cleanup and not for talking and union negotiations.
He explained that he apparently made out the second
notice because it had slipped his mind that he had already
made one out, and that while the foreman, which was
Martin in this instance, usually makes out the notice of
reprimand, he made out the notice because he was the
one who saw what Snell was doing and gave the reprimand.
When Snell testified in rebuttal, he did not deny he was
engaged in union activity at the time he was reprimanded.
Baletka testified that Snell did fine work after being
transferred to Martin's department for about 30 days, but
then his production became poor and remained that way,
and that Martin talked to him about Snell's poor production
and said there was nothing he could do with him. The
transfer from Hill's department to Martin's was in August
some weeks before Hill's discharge on August 30, 1968
Snell testified that a day or so before Martin notified
him he was being transferred to the night shift, Martin
asked him if he could speed up his production, and he
replied he could not do so because he was working alone,
and there was just so much a person could do Snell
also testified that Martin told him that Baletka had said
to Martin that Snell's production was poor Martin notified
him in the morning of October 29 that he was being
transferred to the night shift effective October 30,' and
that another fitter would possibly be transferred with him.
' A repnmand to Snell on November 4, 1968, by President Moats
is discussed in connection with his discharge on November 5, 1968
A reprimand to Eggleston by Vice President and Plant Manager Haygood
on September 19, 1968, is discussed in connection with his discharge
on September 24 or his voluntary termination on September 20, 1968
As previously found, Baker and Hill were discharged
on August 29, 1968. It has also been found that Baker,
under Foreman Hill, was fabricating for Monsanto Company
a pressure vessel or tower about 80 feet in length and
15 to 17 feet in diameter It was a 3-month project. About
1 month had been spent on it when Respondent took
over from Shaffer, another month was spent on it from
the date of July 18, when Respondent acquired the plant,
and August 30 when Baker and Hill were discharged,
and about a month's work remained to be done following
the discharge.
An essential part of the vessel or tower are process
trays. The trays rest on tray rings or tray bars which
are welded to the inside walls of the vessel or tower.
The trays, which are also installed by Respondent, are
made by another manufacturer The spacing between the
trays is of critical importance. The liquids and semi-liquids
build up and flow from one tray to another. The type
of liquid it is when drawn off depends on the level at
which the liquid is when drawn off and the delay-and-
cooling process which affects the liquid as it travels between
trays and rests at the tray levels. The spacing between
trays varies with the intended use of the custom-fabricated
vessel. The customer specifies the spacing in line with
the intended use of the vessel While the spacing may
vary between vessels, it is usually the same in one vessel
Thus, if the first tray is 2 inches from the reference line,
the seoncd tray will be 4 inches from the reference line.
If the spacing is to vary between trays, a notice will
be placed on the shop drawing pointing out the departure
from the customary situation In any event, if there is
a fraction in the measurement for the space between the
first tray and the reference line, the fraction is the same
in the other space measurements except where a variance
is brought to attention by a note on the drawing.4 Monsanto
supplied the original tracing and specifications for the design
of the vessel Respondent reworked certain portions of
the Monsanto tracing in accordance with the specifications
supplied by Monsanto, and Respondent's Engineering
Department made up shop prints to be used in the fabricating
of the vessel.
General Counsel offered in evidence a portion of a shop
print showing measurements of the distance of each of
12 tray bars of rings from the reference line Each of
the measurements has a fraction Nine of them clearly
have the fraction of one-half inch. The other three fractions
are not clear, and looking at them without reliance on
background or expertise can be read as one-eighth inch
as well as one-half inch. The correct measurement is one-
half. Hill's and Baker's testimony is that they asked Baletka
what the fraction was in each of the three measurements,
and he said it was one-eighth, and they relied on his
statement and installed the three tray rings or bars with
a distance for each of them from the reference line that
included the fraction of one-eighth instead of one-half.
' This is the testimony of an expert witness who testified for Respondent
I credit his testimony and his qualifications The testimony of Baker,
Hill, Baletka , and Haygood corroborates the expert 's testimony.
BAYPORT FABRICATING, INC 523
Baletka disagrees. He testified he told them the fraction
was one-half, but to check it with the Engineering Depart-
ment to make sure
On August 29, 1968, when 70 percent of the vessel
was completed, Hill informed Baker that in error the fraction
of one-eighth for three of the measurements was used
instead of the fraction of one-half. Hill asked Baletka what
he was going to do. The latter said he would find out.
Baletka conferred with Vice President and Plant Manager
Haygood They decided to telephone the inspector for Mon-
santo who visited Respondent's plant and checked the
progress of the work. Haygood talked to him by telephone
on the afternoon of August 30, 1968, about the matter,
and he said he would talk to his superiors and then let
Haygood know what he should do On August 29, 1968,
Haygood and Baletka decided to discharge Hill and Baker.
Hill was notified of his discharge by Haygood on August
29 before leaving the plant. Baker left early, but was notified
the same date by Haygood by telephone to pick up his
check and hand in his tool checks. Baker said he would
do so the following day Subsequently, the Monsanto inspec-
tor notified Haygood that Monsanto would accept the
vessel upon its completion without any correction of the
error
The resolution of the credibility issue whether Hill and
Baker, contrary to Baletka's opinion that the fraction in
each of the 12 tray bar dimensions was one-half, decided
the fraction was one-eighth and acted accordingly, is critical
to the determination of whether the discharges of Baker
and Hill were discriminatory. The testimony of Baker,
Hill, Baletka, and Haygood is set out below Baker testified
that the measurements for the spacing of three of the
tray rings appeared to him to include the fraction of one-
eighth instead of the fraction of one-half included in the
measurements for the spacing of the other nine tray rings.
He consulted Foreman Hill and the latter agreed that
the fraction in the three measurements being examined
looked like one-eighth Baker testified that Hill and he
went to see Baletka about the measurements, and Baletka,
after looking at them, said the fraction was one-eighth.
They put in each of the three tray rings with a spacing
measurement from the line of reference that included the
fraction of one-eighth According to Baker, 2 days before
the vessel was finished, Baletka said they were wrong,
and he was going to check them. Then on August 29,
Haygood told him by telephone to pick up his check,
and to bring the tool checks he had with him. He said
he would do so the following day and also pick up his
tools.,
Hill testified that after the cans or sections that made
up the vessel were welded together, the tray rings were
laid out. Baker checked the dimensions on the shop print
he was using for the spacing of the rings, and said to
him that two of them had a fraction which he could
not make out, that he did not know whether it was one-
half or one-eighth. Hill looked at them, and said to Baker
that the fraction looked like one-eighth They discussed
' Tool checks are given to a mechanic for use in checking out of
the toolroom tools owned by Respondent.
it with Baletka. Baletka agreed that the fraction looked
like one-eighth and said to put in the tray rings with
the space dimensions to include the fraction of one-eighth
and not one-half After the three tray bars or rings were
installed, being tacked in, Hill talked to Dave Brock, a
draftsman in the Engineering Department, about the spacing
measurement for the third tray ring Brock was that depart-
ment's contact with Department C, Hill's department, on
the pressure vessel job for Monsanto. Brock told Hill there
were no dimensions for the tray bars on the drawings
with a one-eighth fraction, that all the fractions were one-
half. Brock said that the drawings were very poor. Hill
testified he got hold of Baletka and told him that three
tray rings were in wrong. Hill had stopped all welding
on the vessel Baletka said he would find out what to
do About 3.20 or 325 pm, Plant Manager Haygood
came to his desk and said to bring his drawings into
the office, that there had been a $15,000 mistake, and
they had to get to the bottom of it Haygood also said
that it would take 18 to 20 hours to correct the error.
Haygood also said that Baker's presence would not be
needed.
Hill testified he went to Haygood's office. A conversation
ensued The participants were Hill, Haygood, and Baletka.
Haygood asked Hill how many towers he had built, and
he answered about 50. Haygood asked him if he had
seen any drawings prior to the drawing for the vessel
for Monsanto with a one-eighth fraction in the tray dimen-
sions, and he answered no, but was satisfied that the
drawing provided dimensions for three of the tray rings
that had a one-eighth fraction in them, and that Baletka
agreed that the fraction in these three dimensions was
one-eighth. Baletka denied that he agreed the fraction was
one-eighth. He said that he told Baker that if he had
a problem he should see Brock. Hill testified that Baker
had said to him that Baletka said to Baker to come to
him when he had a problem and he would find out the
answer and would contact Brock if necessary. Baletka said
in this meeting that he could read the prints plain and
thought the fractions were one-half. He was standing facing
Haygood, who was at his desk, and the prints were on
the desk in front of Haygood Baletka had Hill's magnifying
glass and was looking at the fractions through it. Baletka,
from the place where he was standing, was reading the
print from bottom to top instead of the customary way
to read it, that is from top to bottom. Hill also testified
that at this time President Moats walked in and asked
if they were about to get to the bottom of the mistake,
and sitting down by the door told Hill to return to the
shop, and they would figure out what to do about the
mistake. Hill returned to his desk, and 30 or 40 minutes
later, Baletka came to his desk and told him they were
going to have to let him go He said to him to get his
tools together, and they would have his check ready in
a few minutes.
Baletka, the shop superintendent, and Hill's superior,
testified that Baker and Hill came to him at the layout
stage of the vessel or tower, and asked him what he
considered the fraction to be in the dimensions of two
of the tray bars, that they thought it was one-eighth.
He said he could tell they were one-half but if they had
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any doubt to check with Dave Brock of the Engineering
Department About 2 weeks later, they came in his office
questioning the fraction in a third tray ring dimension
He told Hill to call Brock. Hill called Brock on the telephone
in Baletka's office. Hill told him later Brock said that
all of the tray ring dimensions had the fraction of one-
half None was one-eighth Shortly after Hill called Brock,
the latter brought new prints that had dust been run off
and presented them to Baletka for their use A week or
10 days later, Hill informed him that the three tray bars
were put in with the one-eighth fraction in the space
dimensions for each of them instead of the fraction of
one-half He asked Hill why he had done this when he
had checked with, Brock and knew the fraction was one-
half. Hill did not answer
Baletka testified he went to Haygood's office and discussed
the matter with Haygood. About 3 p.m., Haygood asked
him to bring Hill to his office He asked him in the
presence of Haygood why he had put in the three tray
bars with the fractional dimension of one-eighth instead
of one-half He replied that as far as he was concerned'
the dimensions for each of the three bars had a one-
eighth fraction Haygood asked him if he had ever seen
tray bar dimenions which varied by three-eighths of an
inch, and Hill said no. He also asked him if he had
built a tower before, and he said he had ° Haygood then
sent him back to the shop Baletka testified that Haygood
and he discussed the matter and decided to terminate
Hill because he should have had all the information since
he "was working right with Engineering on it," and also
decided to terminate Baker for the mistake and for other
errors he made when working on the vessel ' Baletka testified
that Respondent learned from Monsanto the Tuesday or
Wednesday after Hill's discharge (September 3 or 4, 1968)
that it would accept the vessel with the error in it. He
saw Baker the next day, about the middle of the morning,
and started to tell him why he was discharged, but Baker
interrupted to say the tray bars had been questioned Baletka
replied that he and Hill had been told the fractions were
one-half inch and they had access to the Engineering Depart-
ment Baker then said that Baletka had been forced to
run him off, and that when "these sons-of-bitches" got
through with him they would also run him off Baletka
also testified he said to Baker that he should have fired
him for the way he lifted the cans or sections of the
vessel which caused them to come apart, fall, and break,
and that about a year before the discharge Baker told
him that he wished to be discharged so he could go back
to Oppenhauser
Haygood testified that when Baletka reported the error
to him, he had Inspector Angele check the vessel and
when Angele had checked it, he reported to him that
the error was present as Baletka stated it. Haygood's testimo-
ny corroborates Baletka's testimony except in one substantial
' As previously stated the variation between the 12 tray bar dimensions
is 2 feet The fraction of one-half remains constant Between the dimensions
for the sixth and seventh tray bars is a variation of 4 feet to allow
for a manway or entrance to the vessel for work therein during fabrication,
or for repair or maintenance after it is completed and placed in operation
' These errors are discussed supra
respect Baletka expressed the opinion that Respondent
was informed by Monsanto's inspector the following Tues-
day or Wednesday that Monsanto would accept the vessel
with the error in it, while Haygood testified that he called
the inspector the morning of Friday, August 30, apprised
him of the error, and asked what should be done, and
was informed by him that afternoon that the vessel would
still be accepted Haygood also testified that if the error
had to be corrected the shell of the vessel would have
been weakened by additional shrinkage due to the gouging
out of the welded tray rings, smoothing the surface, and
rewelding them in at the correct locations. He testified
that there would have been shock corrosion of the shell
of the vessel during its use due to the pressure against
the weakened surface Haygood also testified that the mis-
take could have cost Respondent $50,000, the full value
of the tower as Monsanto was not required to accept
the vessel with the error in it or in a corrected condition
It could also give Respondent a black eye with Monsanto,
one of its best customers. The least possible cost if Monsanto
required the error to be corrected would be a couple of
hundred dollars to move the tray rings or bars plus a
severe blow to Respondent's reputation as fabricators.
5 The discharge of Snell
It has been found that Snell was reprimanded a number
of times from his appointment in April 1968 to the employ-
ees' bargaining committee to October 4, 1968. The evidence
of these reprimands, in support of and against General
Counsel's case, has been stated supra General Counsel
contends that the reprimands were to harass Snell because
of his activity on the employees' bargaining committee.
Stated below is the evidence of a reprimand Moats gave
Snell on November 4, for conduct he engaged in when
he entered the plant at 3 p.m. to report for the first
time for the night shift which began at 3:30 p.m.; Snell's
conversations with Night Foreman Bates and Baletka shortly
before his discharge about his transfer to the night shift,
Moats' conversation with Snell on November 5, in the
course of which Snell was discharged, and in footnote
10 a conversation between Moats and Snell in the last
part of September which included a discussion initiated
by Snell dealing with the bargaining taking place between
Respondent and the Union in which Snell participated
as a member of the employees' bargaining committee. Gener-
al Counsel contends that the evidence shows that Snell's
discharge was discriminatory, and that Respondent, by
Moats, attempted to engage in individual bargaining with
Snell on matters that could be discussed only in the collec-
tive-bargaining negotiations! Respondent contends the dis-
charge was for cause and denies individual bargaining.
The only testimony dealing with the events that occurred in the
collective-bargaining between the Union and the Respondent is the conclu-
sionary testimony of Baker, Snell , and Eggleston that they actively partici-
pated in the collective bargaining while Hernandez , the other member
of the employees' bargaining committee , did not actively participate
Woodall and Brock, the chief negotiators for the Union, did not testify
and neither did Hernandez Hernandez was retained by the Union as
one of the Union's employee bargaining representatives after Baker and
Snell were discharged, and Eggleston either quit or was discharged
BAYPORT FABRICATING, INC 525
a. Snell's testimony
Snell testified that about 20 minutes before 12 noon
on October 29 he went to Baletka's office and had a
conversation with him. He told Baketka he had to have
more money if he was going on the night shift. Baletka
said he could not give him more money, that it was up
to the foreman to turn him in for a raise. He asked
Snell how he could give him more money when he had
been complaining about his work being sloppy and his
dragging around. Snell asked him who complained, and
Baletka replied that Martin had to chew him out that
morning. Snell answered that Martin did not chew him
out. He merely asked him if he could work faster, and
he answered that he could only do so much working
alone with the heavy stuff. Baletka then said again he
was doing sloppy work and he could not give him more
money, and answered yes to Snell's question whether he
was still going to put him on the night shift Baletka
answered that they had to put somebody on the night
shift in answer to Snell's question why he should be placed
on the night shift and not terminated if he was doing
sloppy work and dragging around. When Snell asked Baletka
what made him think he would do better on the night
shift, Baletka did not answer Snell then said that Baletka
figured Night Foreman Bates would get rid of him because
of his union activities, which everybody knew about, and
Baletka denied that this was the reason for the transfer.9
Snell testified he did not report for work the next day
(Wednesday, October 30) because of a muscle spasm. He
did not report he was sick He testified that he felt it
would ease up before the time (3.30 p.m.) when he had
to report for the night shift. Snell testified he had no
knowledge of a plant rule that he was supposed to call
in when he was ill He did not work the next day, but
called in and talked to the clerk at the reception desk
He said he was sick and was sick the night before, and
asked her to relay this information to Foreman Bates.
She said she would. Snell did not work on Friday and
did not call in He testified that you just have to call
in only one day.
Snell reported for work on Monday, November 4. He
entered the plant about 3 p.m. He obtained his card and
set his lunch box at the desk Hill had when he worked
there There was a vessel nearby which was turning A
welder by the name of Buck was working on the vessel
but was waiting for it to turn. According to Snell, Buck
° Baletka testified that he told Snell a man was needed on the second
shift , and he felt that under Bates he would be getting better supervision
and knew he had previously worked with Bates He also testified that
Snell said that his wife was working days , he was working nights, and
they would be unable to see each other, and he told him it was not
a permanent setup , to try it for a few weeks , and, if it caused an
undue hardship, he would bring him back to the day shift, and that
he also said to Snell that if he worked satisfactorily with Bates, and
he recommended him for a raise he would be more than happy to
give it In connection with his decision to transfer Snell, Baletka testified
that Bates needed some fitters on the second shift and he talked to
Martin and other foremen about Bates' request He testified that Snell
had the least seniority of the junior fitters , that Martin recommended
him for the transfer, and that he discussed the transfer of Snell with
Bates, and Bates wanted him
said to him that he thought they had gotten rid of him,
and he replied he was off sick. He talked to him about
5 minutes President Moats came around the end of the
vessel and said to him, "Come here Dude, I want to
talk to you" He said o k., and they walked 5 to 10
feet. Moats said that he came in the plant and talked
to the men while they were working. He then said that
if he wanted to get run off it was a good way to do
it Snell replied, o.k. Buck's shift stopped working at 3 25
p.m. Snell testified that Buck was working and talking,
and that Moats said nothing to Buck.
At 3.25 p.m , Foreman Bates said that the second shift
would not come in until 325 p m.10 Bates then assigned
the work As he was taking Snell to his work assignment,
Baletka stopped Snell and asked him why he did not
call in on Wednesday, and he replied he felt he might
come in later Baletka said there was a policy to call
in the first day, and instructed him to call in the first
day Snell talked to Bates at 10 p.m. He told him he
was punching out at midnight. The shift ended at that
time. He was not told he had to work overtime. Bates
said it was his prerogative not to work overtime. Some
employees told him they were working overtime until 2
a.m. No one from management gave him this information.
According to Snell, Bates said at this time that he knew
in his heart they put him on the night shift hoping he
would get rid of him, but that as long as a man does
his work, and he knew he could work, he was not going
to run a man off. Snell then said to Bates that he thought
they were setting him up, that he heard over the weekend
they were supposed to get rid of him. Bates would get
rid of him, and they would get rid of Bates Snell punched
out at 12 o'clock midnight He reported for work on
Wednesday, November 5, at 3:25 p.m Bates told him
President Moats wished to see him in the front office.
Snell started for the office and Baletka met him on the
way They went into Moats' office. Haygood came in
response to a telephone call from Moats' office
Moats said to Snell that he had not called in when
he did not report for work, and he refused to work overtime.
Snell denied he refused to work overtime. He said he
told Bates at 10 p.m., he was punching out at 12 o'clock
and going home. Moats said Bates told him that he refused
to work overtime. He said he never refused to work overtime
because he had told Bates at 10 p.m., that he was punching
out at 12 midnight, and he had not informed him they
were working over 8 hours. Bates was sent for, and while
waiting for him Moats said he heard he told Bates he
was going to be fired Moats then said he did not think
it was any of his business what they did with their superviso-
ry personnel Snell said he felt that if he was going to
be fired and somebody else knew about it he would want
that person to tell him about it. Moats said that he would
not want him to call but would like to have him in
his presence where he could get his hands on him. Snell
10 Baletka testified that Respondent had a shop rule that the second-
shift employees should not come into the working area until 3 25 p in
and that the employees had knowledge of this rule He testified that
the second-shift employees could stay in the restrooms or in clock
alley
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stood up and said Moats was wanting to get his hands
on somebody, that he had threatened to get hold of him,
and Moats answered that he could get hold of him from
the chair in which he was sitting. [See attached appendix ]
Snell then said that if Moats' wanted to get hold of him
he could come outside, and turned to Baletka and said
that went for him too." Moats said no to Snell, and
told him to sit down, in response to Snell's suggestion
that he and Moats go outside. Moats asked Snell what
he ought to do with him, and the latter replied that he
was the boss. Moats answered that he was the boss, and
for Snell not to forget it. Bates entered the office, and
was asked by Moats or Baletka if he (Snell) had refused
to work overtime, and he answered that he did Snell
said that he told Bates at 10 p.m he was punching out
at 12 midnight, that he would have his 8 hours, and
that Bates never told him they were working over 8 hours.
Bates then said he guessed that he never told Snell they
were working more than 8 hours and that Snell told him
at 10 p.m. he was punching out at 12 o'clock."
Snell testified that he and Moats again began talking
about getting hold of somebody, and Moats told Snell
to go out to the reception room and wait for his check,
that Haygood would have it made out But before he
left the office, Moats said to him that he wanted him
to be sure of the reasons why he was being fired, that
they were failing to work overtime, talking to a guy during
working hours, telling Bates he was going to be fired,
and for not calling in the first day he was sick "
b. Moat's testimony
Moats gave testimony about his conversation with Snell
on November 4, 1968, about 3 p in , when Snell entered
the working area of the plant and talked to employee
Buck when the latter was working on the first shift, and
Snell was waiting for the beginning of the second shift
at 3:30 p in. Snell's testimony is set out supra, along with
" On cross-examination and redirect , Snell admitted he couched in
obscene language the invitation to Moats and Snell to go outside and
engage in a physical encounter
" Baletka testified that in this conversation Snell said to Moats that
he had told him (Baletka ) that he would not work more than 8 hours
and then admitted he had not talked to Baletka about working overtime,
and Moats asked Snell if he was going to work overtime and he replied
he did not know, that he would let him know sometime that night
On cross-examination , Snell testified he may have been asked if he
was going to work overtime that night , and that he might have said
that when he got his 8 hours in he would go to his house
" Snell testified on cross-examination that he did not regularly announce
to the foreman during the shift that he was punching out at the end
of 8 hours, although he did so on November 4 He said he had been
punching out at the end of 8 hours for the previous 8 months and
nothing had been said about it although the employees he had been
working with had been working overtime He said that his wife worked
during the daytime, and they liked to "communicate a little bit" He
also testified that when he first went to work for Respondent he worked
considerable overtime, but during the last year, when he was on the
day shift, he worked very little, perhaps 1 day He testified that sometimes
on Friday in weeks when he would not work 40 hours because he
was negotiating , he would be asked if he wanted to work on Saturday
straight time to make up the time he had lost , but that he did not
work Then he testified he did not fail to work in every instance, just
about 60 percent of the time
testimony given by Baletka Moats' testimony corroborates
the testimony of Snell and Baletka
Moats testified that he visited the Bayport plant about
5 minutes before midnight on November 4 He walked
into the shop where Bates, the night foreman, was standing.
He asked him how everything was going, and he replied
everything was smooth "About that time the whistle blew
for everybody to get off " Snell walked by, and Moats
said to Bates that everybody else in the shop was working
that night "on this hot job," and asked "Why isn't Snell?",
and Bates answered that he was not working overtime
as he had made an agreement with Baletka not to work
overtime Moats said "o.k " Bates said he had heard that
he and Baletka were to be run off, and in response to
Moats' question, who told him, said Snell did, and that
he considered him a responsible person. Moats replied
that if he was to be run off he would be the first to
hear of it Bates also said at this time that Snell asked
him to fire him 14
Moats talked with Haygood and Baletka about Snell
during the first shift on November 5 They decided to
talk to Snell, and Moats decided that he would be the
one to talk to him He asked Baletka to bring Snell to
his office when he came in at 3.30 for the second shift
He testified that if Snell's attitude was right, the intention
was to reprimand him and possibly suspend him for a
day or two and then forget the matter. The meeting was
held in Moats' office on November 5, at the beginning
of the second shift as Snell testified. Snell, Moats, Haygood,
and Baletka were present , and Bates came in during the
conversation in response to a request from one of Respond-
ent's representatives. Moats testified he said to Snell that
they had a problem as matters were not running as smoothly
as they should be, that several things had happened, and
he wanted to go through them and get them straightened
out.
Moats said to Snell that he was off the prior Wednesday
(October 30) and did not call in, and Snell answered that
he was not near a telephone that he could use to call
in When Moats asked him about being absent on Thursday
and not calling in, Snell did not give any answer. Moats
was about to ask him about his absence on Friday, when
he discovered that he called in He asked him if he knew
the rules, and he answered that he did.15 He asked Snell
what he ought to do about a situation like the one being
discussed and Snell answered that that was his problem.
Moats asked him why he was talking to Buck on November
4, that he knew the company rule that he should not
have been in the plant, and he answered that as he passed
Buck the latter stopped him, and they passed the niceties
of the day Moats told Snell that that was why the plant
was running inefficiently and losing $50,000 a month, and
he said that that was his problem Moats then asked Snell
if he told Bates he was not going to work overtime and
" This is the conversation Bates had with Snell at 10 p m on November
4 1,
Moats testified that if an employee does not call in the first day
he is subject to being fired , and if he does not call in the third day
he is fired He said nothing about the second day so the rule for
that day is the same as the one for the first day
BAYPORT FABRICATING , INC 527
he answered that he did not say this to Bates. Moats
asked Haygood to get Bates Bates came into the office,
and Snell admitted he was not going to work overtime
the night before and did not work overtime Moats asked
him if he was going to work overtime that night, and
he said he did not know , that he would give him an
answer when he got ready
Moats asked Snell if he asked Bates to fire him, and
he denied he did, but when Bates said he did, he said
he told Bates he could not make a living working for
Respondent and his wife had to make a living for them,
and Bates would be doing him a favor by firing him.
Moats asked him if he intimidated Bates by telling him
that he was going to be fired . He denied he intimidated
Bates, but admitted he told him that Baletka and he were
to be fired within 2 weeks. Moats asked him how he
knew this, and he replied he heard a rumor on the telephone.
In answer to Moats' question if he thought the rumor
should have been passed around, Snell said he thought
it should , and asked Moats if he would not like to hear
a rumor about himself Moats answered no, he did not
believe in rumors If somebody had something to say to
him he would like them to say it to his face.16 Moats
then asked what he thought he should do about this situation
and Snell laughed and said it was his problem , that as
far as he was concerned he could do anything he wanted
to do. Moats replied that with his attitude the way it
was, and it was a bad one, the only thing for him to
do was to fire him. He said that he wanted to list the
reasons so everybody would know what was happening
He said Snell did not call in on Wednesday when he
was supposed to call in. Snell said that was all he needed
He needed only one reason Moats said they were going
to list all of them . He then listed Snell's talking to Buck
when he was working , intimidating a foreman by telling
Bates that he and Baletka were going to be fired , asking
Bates to fire him, and refusing to work overtime or to
answer if he would work overtime . Moats testified it was
3.45 p . m, and that he said to Snell "today your time
is terminated ," they will get your check . Haygood got
up to get his check Snell stood up and started to walk
out, and about halfway turned and said in obscene terms
that Moats had been trying to get him since he took
over the plant , and he would be welcome to try it right
then if he would come outside, and referring to Baletka
by using his name and an obscene prefix said that he
was included in the invitation Moats testified that he
said he could probably get at him , using the obscene words
Snell used , without getting out of the chair he was sitting
in by reaching over and using the telephone . He said
that the best thing for Snell to do was to sit out in
the lobby and wait for his check.
6. The termination of Eggleston
a. Undisputed facts
It has been found that Eggleston either quit on Friday,
September 20, 1968, or was discharged on Tuesday, Septem-
" Snell testified that Moats said he would want to have him face
to face so he could get his hands on him Moats denied he made
this statement-
ber 24 , 1968 It has been found that Eggleston was, like
Baker , Snell, and Hernandez , members of the employees'
bargaining committee which assisted Woodall and Brock,
the chief bargaining representatives for the Union, in the
collective-bargaining sessions the Union was having with
Respondent Eggleston , a machinist for 15 years, began
working for Shaffer at Bayport in April 1968 , and was
on Respondent 's payroll on July 18, 1968, when Respondent
acquired the assets of Bayport . He was on vacation in
the first weeks of August 1968 and returned to work
on August 19, 1968 There was considerable work to be
done on the engine lathe Eggleston was working when
he went on vacation . The material to be worked on was
located round the machine In the period prior to his
vacation , Eggleston had been working 10 to 20 hours over-
time . He worked the overtime at straight -time rates when
he was making up the time lost during the day shift
when he attended the collective -bargaining sessions and
participated in them While Eggleston was on vacation,
Respondent sent to a machine shop the work he left at
his machine when he went on vacation . The area around
the machine was clean when he returned
Except for 2 hours on August 19, 1968, the day he
returned to work , Eggleston was not given the opportunity
to work overtime . The work to be done accumulated at
his machine On Saturday , September 21, or Monday, Sep-
tember 23, following Friday, September 20, when , according
to Respondent , Eggleston quit , the work to be done, except
work finishing some aluminum flanges, was sent to a
machine shop . Eggleston was reprimanded by Haygood
on the morning of September 19, in the presence of Baletka,
for allegedly doing poor quality work in putting a finish
on a flange and taking too long to do the work . Eggleston,
on September 20, asked Vanderhider , his foreman, for a
recommendation to be used in applying for a job some
other place , and carried home with him , when he left
the plant , a fan with a 30-inch diameter and a stand
5 feet high which was his property , and which he kept
in the plant for his personal use while working . He asked
Vanderhider for a pass that would permit him to carry
the fan through the gate, and received one. He did not
take his tools, weighing 70 to 90 pounds , locked in a
toolbox, that were his personal property . He told Mike
Carr , foreman of maintenance , when leaving at 3.30 a.m.,
Friday, September 20, either he was quitting (as contended
by Respondent) or he ought to quit the place (as contended
by the General Counsel)
On Saturday , September 21, 1968, Mike Carr told Baletka
what Eggleston said to him as he was leaving on Friday
evening with his fan Vanderhider told Baletka about the
same time that Eggleston had asked him for a job recommen-
dation on Friday . The guard at the gate on Friday evening
attached to his report for Friday the pass Eggleston received
from Vanderhider to take the fan through the gate. On
Saturday, Haygood , who received the report and the
attached pass, asked Baletka what it was all about. Baletka
told Haygood what had been told to him by Vanderhider
and Carr. Haygood and Baletka decided to send the work
assigned to Eggleston which was not finished to an outside
machine shop.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eggleston did not report for work on Monday, September
23, but had Garza, an employee who rode with him to
work, report him in as sick. Garza made this report to
Vanderhider in the morning Haygood told Baletka to have
Vanderhider put a quit slip in Eggleston's file, and Baletka
gave this instruction to Vanderhider He reported for work
on Tuesday morning at the scheduled time As stated,
the material for the unfinished work, except the aluminum
flanges, was gone Vanderhider said to him that he heard
he had quit, he said that he had not Vanderhider gave
him a work assignment. He was working on it at 7:30
a.m , when Baletka and Haygood appeared at his machine.
Baletka said he heard he had quit, Eggleston denied that
he had Haygood said to him that he had quit, which
Eggleston denied, and Haygood again said that he quit,
and asked him to get his tools and leave, that all of
his business ended there on Friday.
Eggleston put his tools in his tool box, and went to
Vanderhider's office to return tool checks, badge, and safety
glasses He returned them to Vanderhider. Baletka and
Haygood were also present He again said he did not
quit and Haygood said he had Baletka said he had bad
mouthed Respondent on Friday when he was leaving, and
gave it a bad time, and what was wrong with the place
was that the employees were running it Haygood told
him at this time that his work had been sent out, and
Eggleston said that the aluminum flanges were there Eggle-
ston left with his tools.
b. Evidence in controversy"
Eggleston started to put a finish on the flange about
12 30 p.m., on Thursday, September 18 Its diameter was
22 to 24 inches. The metal was thin It was difficult
to fasten the flange firmly in the machine with the chucks
(units with teeth) The result was that it vibrated when
the machine was turning, and the tool with which the
finishing is done, on being applied to the vibrating surface,
dug into it, causing a chattering, and pock marks and
holes on it To cut down vibration, and the resultant
chatter and damage, Eggleston reduced the speed of the
machine At 3 30 p.m, Eggleston was still working on
it. The putting of a finish on this flange should have
taken no more than an hour and a half.
Moats, as he often did since Respondent took over on
July 18, walked down the aisle between the machines,
and noticed the work being done by Eggleston He apparent-
ly heard the chatter made by the finishing tool when
applied to the vibrating flange as it was turning. He watched
Eggleston's work, and then talked to Vanderhider, Eggle-
ston's foreman. Eggleston asked Vanderhider what he want-
ed, and he told him that he wanted to know how long
the job was in the machine and the reason for the rough
finish. Later, Baletka and Haygood came to Eggleston's
machine, and Baletka told Eggleston that the job was
" These findings are based on the testimony of Eggleston, Baletka,
Haygood, and Moats I have credited some parts of the testimony of
these witnesses and rejected other parts I have made credibility resolutions
in regard to conflicting testimony by evaluating the testimony of each
of the witnesses in context
taking too long, and the finish was too rough. Moats
had told Haygood to look at the job Eggleston was doing,
that it looked like something was wrong with it. Earlier
when Eggleston inquired of Vanderhider what Moats want-
ed, and Vanderhider told him, he said to Vanderhider
that he would appreciate any suggestions or ideas he had,
and Vanderhider replied that he would know what to
do if anyone did.
Between 3 30 p.m., on September 18, and the time Eggle-
ston reported for work (7 p.m.) the next morning, pictures
were taken of the flange which Eggleston was working
on During that time, Haygood, Baletka, and Jessee Lorentz,
an outside machinist, conferred about the condition of
the flange and the way it was set up in the machine
Haygood testified that the outer edges of the flange were
not properly supported, and the flange vibrated when turn-
ing Baletka told Haygood that the error could be corrected
by tacking, a temporary welding, a piece of pipe across
the back of the flange to support the outer edges. When
Eggleston reported for work on September 19, Baletka
told him that Haygood wished to see him, and he, accompa-
nied by Baletka, went to Haygood's office.
Haygood testified that the conversation began by his
asking Eggleston if he was having any problems with work-
ing his machine, and he answered no. He asked him about
the condition of the flange and the 3 hours he had spent
machining it. Eggleston answered by saying that he could
not get the machine going right, and agreed that putting
the finish on the flange was only an hour and a half
job. Haygood asked him how long he had been a machinist
and if he considered himself a good one. Eggleston answered
that he had been a machinist for 15 years and considered
himself a good machinist. Haygood said he should have
known what he was doing. He instructed Baletka to show
him what to do He said to Eggleston to come to them
in the future when he had a problem, that they were
the experts Haygood testified that he had asked Eggleston
if he had consulted Vanderhider and Baletka, and he
answered no. 'I
Eggleston testified that Haygood asked him how long
the flange was in the machine, and he answered approximate-
ly 3 hours He agreed with Haygood that the job should
not have taken more than an hour and a half. He said
that he was getting vibration because of the thinness of
the metal, and he needed four T-nuts to reinforce the
chuck jaws in holding the flange in the machine. He also
said that he had been trying to eliminate the vibration
without the T-nuts.19 Haygood replied that the T-nuts were
not needed, and that Eggleston should have come to them
when he had trouble Eggleston then testified that Haygood
instructed Baletka to tell him how to run the job, and
the latter told him to have Vanderhider weld a piece
" Eggleston testified that he had gone to Vanderhider and to Baletka
about the way the job was progressing I find, however, that Eggleston's
contact with Vanderhider about the job was when he asked what Moats
wanted to know about it, and his contact with Baletka was when Baletka
and Haygood came to his machine after Moats told Haygood to look
at what Eggleston was doing
" Eggleston had reduced the speed of the lathe Haygood denied
that Eggleston said anything about T-nuts He said he needed wiping
rags and he gave him a handful
BAYPORT FABRICATING, INC
of pipe on the back of the flange so he could chuck
on it. Vanderhider had the pipe welded on the flange
Eggleston then testified that the flange was so warped
from the welding it could not be remachmed and it was
scrapped 20 However, a short time later he testified that
the temporary weld did not warp the flange, and the
pipe attached to the flange did stop the vibration In any
event, the flange had to be scrapped because of the pock
marks and holes caused by the vibration
Eggleston testified that Haygood said things were piling
up around his machine and he was attending the negotia-
tions' meetings, and continued by saying that he could
attend the meetings if he had to, but they were going
to have only one machinist, and were not going to have
work piling up around the machine. They had a man
working nights who could work the engine lathe, but were
going to work him somewhere else Haygood admitted
that he told Eggleston his production was low, but denied
he said anything about the Union or the bargaining sessions.
It is Eggleston's testimony that on September 20, after
the flange was scrapped, he was given another job to
do, and he suggested to Vanderhtder that on this particular
job a piece of plywood be used to support the chucks.
He testified that Moats watched him work for about 5
minutes He asked Vanderhtder what Moats said to him
about his work, and Vanderhider replied that he asked
what the job was
It has been found that later on September 20, Eggleston
asked Vanderhtder for a recommendation to use is seeking
other employment He gave the conclusionary testimony,
without objection by Respondent's counsel, that he figured
that he was going to be fired after what they did to
Baker and Hill. Eggleston also gave testimony to explain
his taking home his fan at the end of his shift on the
evening of Friday, September 20: He said that his window
air-conditioner was broken He repaired the air-conditioner,
but did not bring the fan back to the plant the following
Tuesday because the weather was milder and he felt he
did not need it while working.
Eggleston testified that when he was leaving on Friday
evening he ran into Mike Carr, maintenance foreman. He
testified that it was near the restroom and in clock alley,
where there were other employees. He asked Carr if Pete
Rodriguez, a maintenance employee, had quit, and Carr
said he had Carr also said that Rodriguez played right
into their hands, that they wanted him to quit He asked
Eggleston if he was quitting, and he said no, but he ought
to quit. Carr then asked where he was going with his
fan, and he answered that he was carrying it home. Carr
told him not to quit, that they were trying to make everybody
mad and quit, and to bust the wages back to lower rates,
and if they got enough to quit they could hire in cheaper
labor. Eggleston admitted he may have said that he ought
to quit the damn place He was not sure whether he
used the word damn or some similar word.
Mike Carr testified that he had a conversation with
Eggleston in clock alley on September 20, at the close
'° Eggleston said that when he talked to Vanderhider he said the
welding would warp the flange out of tolerance , and Vanderhider replied
they had better do as instructed or they might be another Hill and
Baker and be fired
529
of the first shift Eggleston was angry because the paychecks
were late He said "Now they are bringing the checks
out late " As they were proceeding along clock alley, Eggle-
ston said he was quitting this "f--king" place Carr denied
he asked Eggleston if he was quitting, and he denied
he said anything about Rodriguez, or that Eggleston said
anything to him about Rodriguez Carr testified that the
next morning, which was Saturday, when Baletka said
something to him about production, he said to him not
to look for his machinist to come in as Eggleston had
told him on Friday he was quitting this "f--king" place."
Carr testified that after he had talked to Baletka, Haygood
called him on the telephone and asked him to come to
his office. Haygood asked him to put in writing what
Eggleston said to him.22 In a memorandum for the file
dated September 23, Carr wrote that on Friday, September
20, 1968, at the shift change at 3.30 p.m., he walked,
with Eggleston at his side, from the shop proper to the
maintenance shop, after receiving the paychecks for the
men in his department, and Eggleston was complaining,
although he did not recall what about, and Eggleston
said he was quitting his job. On cross-examination he
testified he told Haygood on September 25, for the first
time, the actual language Eggleston used He also testified
that he did not like to use obscene words in something
he wrote. Haygood testified that Baletka told him on Satur-
day, September 21, that Carr had told him that Eggleston
said he was quitting, that he said, "F--k this place, I
quit."
Carr testified that on many occasions Eggleston said
to him that he ought to quit his job, and on one of
these occasions, while Shaffer was the owner, he said he
ought to quit because he could make more money elsewhere,
and he said to him that if he could make more money
elsewhere why didn't he go there, and that a day or
so later Eggleston said to him he gave what he said to
him some thought. Manford Williamson, foreman in charge
of Department D and assistant shop superintendent, testified
for Respondent He had been foreman of the Aluminum
Department at the time Eggleston quit. He testified that
the Wednesday or Thursday before Friday, September 20,
while in Eggleston's department, Eggleston said to him
that if it were not for his union involvement he would
have quit Respondent long before that time 2'
Haygood testified that he did not receive word until
late in the afternoon of Monday, September 23, that Eggle-
ston had sent word in by Gaza that he was sick, and
by that time the decision to send out the work unfinished
by Eggleston, evidenced by the pile-up around Eggleston's
machine, had not only been made, but the objects around
the machine had been picked up Haygood also testified
" Baletka testified that Carr said to him that Eggleston said he was
quitting this "f--king" place, and he told this to Haygood
" Carr did not give testimony for what he said to Haygood regarding
what Eggleston said to him It has been found supra that Baletka informed
Haygood what Carr told him and also what Vanderhtder had said to
him about Eggleston's request for a recommendation to be used in appl}mg
for other employment
" Baker, Hill, and Eggleston were employed by Offenhauser at the
time of the hearing Baker, who was terminated on Friday, was working
for Offenhauser by the middle of the next week Hill started work
the day after Baker did
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that when Eggleston came to Vanderhider's office, when
he was present there on Tuesday, September 24, to return
the tool checks, badge, and safety glasses, and said he
had not quit on Friday, September 20, he said to him
"that at any time a guy had to ask his foreman for a
job recommendation for another job and he carries his
personal property out of the plant, and says `F--k this
place, I quit,' then he doesn't show up for work the next
day, as far as I am concerned he has quit." Eggleston
replied that he was just mad at the time and was not
really serious. Haygood answered that it was too late,
that they had already farmed out his work 24 Haygood
testified that Baletka and he decided to send everything
out that was piled up near Eggleston's machine except
the aluminum flanges which had to have a finish on them.
They were not needed for 30 days Baletka corroborated
this testimony. Haygood also testified that Eggleston was
replaced 6 weeks later. President Moats testified that Eggle-
ston was a good machinist but quit on Friday, September
20. There is no testimony as to whether Moats was informed
by Haygood, Baletka, or Vanderhider prior to the time
Eggleston left on the morning of September 24, about
the events that occurred on Friday, September 20, Saturday,
September 21, or earlier on Tuesday, September 24.
7 The alleged refusal to rehire Gerald Thomas
Pete Rodriguez, maintenance man on the second shift
quit on Friday, September 20, 1968, and Mike Carr, mainte-
nance foreman, telephoned Gerald Thomas at the Southern
Machinery Company where he was working, and talked
to him about the possibility of his replacing Rodriguez
Rodriguez had the classification of electrician at the rate
of $3.50 per hour and had worked under Carr about
1-1/2 years when he quit. Thomas had been employed
by Respondent under Carr on two different occasions prior
to Carr's telephone call. The first time he received $2.50
per hour He was laid off in a reduction in force. He
was recalled as an auto mechanic, and laid off in July
1968 At the time of the last layoff, he was doing automotive
maintenance on 10 to 14 company cars and a few units
of other mobile equipment He received $2 75 per hour.
The number of company cars was reduced to two The
two are given service such as changing spark plugs and
work of that nature Anything major is done by a service
garage. General Counsel contends Thomas was refused
reemployment because an unfair labor practice charge was
filed against Respondent in which it was alleged that Thomas
was discriminatorily discharged. Respondent contends
Thomas' discharge was for the reason there was no need
for him when the number of vehicles Respondent was
operating was reduced to two
Thomas testified that Carr telephoned him and said
he could give him a job back with Respondent, that he
knew he was not making much money where he was.
" Baletka testified that when he saw Eggleston at the engine lathe
on Tuesday morning, he said to him that when one says he quits,
he quits According to Baletka, Eggleston had just said that he was
mad Friday afternoon because the checks were late, and that he had
changed his mind
He would be making $3 an hour, and Respondent could
guarantee him 7 days a week, 12 hours a day. He told
Carr he would like the job as he would like to get back
to making money again. He was not positive if he said
to Carr he would come out to see him or he asked him
to come out and see him About 2 or 3 p.m., 35 to
40 minutes later, he went out to Respondent's plant and
saw Carr He was in the guardhouse inside the gate. Carr
asked how he had been doing, and then said he had
him lined up to go back to work, but went to the office
and someone in there said he could not hire him because
he had a suit against them Carr then said he had put
a foot in his mouth, and was sorry. Thomas testified he
was employed the first time by Respondent as an electrician
at $2.50 per hour Carr testified that Thomas was employed
the first time as a trainee for maintenance man on the
third shift. He denied that he was employed as an electrician.
Carr testified that Rodriguez told him he was quitting
as he had found a job that paid more money. After trying
unsuccessfully to talk him out of quitting, he telephoned
Thomas. He told him he might have a job for him. He
may have said at that time the day shift was working
7 days a week and the second shift 6 and each shift
10 hours, and that some shifts were working 12 hours.
Thomas said he would like to come back. Thomas came
out to the plant. Between the time he talked to Thomas
and the time the latter arrived at the plant, he talked
to Baletka about hiring Thomas Baletka said he would
talk to Haygood. Haygood called Carr on the intercom
to come to his office He asked him if he needed a mainte-
nance man on the second shift and he replied he always
had one. Haygood asked him if there were many major
breakdowns on the second shift that warranted a full-
time maintenance man. He answered "not really." In reply
to his inquiry as to what the maintenance man did on
the second shift he answered that he went around welding
leads, turning off machinery, and replacing light bulbs.
He asked him if he had a company car, and he said
yes. Haygood then asked if he could come out to the
plant if some major breakdown occurred at night, and
he answered "sure" Haygood then said that they would
try getting along without a man for a while, that it would
be fine if it worked out, and if not he would get him
a man.
Carr further testified that when Thomas came out to
the plant they talked it over He said to Thomas he was
going to try to get along without a man for a while.
He was of the opinion that it was at that time he mentioned
the number of days and hours they were working. Thomas
said he could not come to work right away anyway, that
maybe he could come the following week. Carr denied
he said anything to him about his having filed charges
against Respondent or having a lawsuit against it. He
testified that at this time he did not know Thomas had
filed charges against Respondent, that he first learned of
the charges later from a Mr Jones of the Board who
mentioned them to him when he was at Respondent's
plant He denied Haygood said anything to him about
charges Carr testified that Respondent had not hired a
maintenance man for the second shift He testified on
February 6, 1969. He had gone to the plant between three
BAYPORT FABRICATING, INC
and six times since Rodriguez left Schmidt, the night
foreman, calls him on the telephone if something is wrong
with a machine playing an important part in production,,
and sometimes they work the problem out on the telephone
On one or two occasions he had his maintenance man
go to the plant during the second shift. Haygood corroborat-
ed Carr's testimony of the conversation they had on Septem-
ber 20, 1968, in regard to the replacement of Rodriguez
He testified that Rodriguez had not been replaced Haygood
denied anything was said during the conversation he had
with Carr about a charge or lawsuit filed by Thomas
He said that Carr told him that Thomas was available,
and he said to Carr that he did not think they needed
a night maintenance man, that he had a vehicle and could
dust jump into it and come out
The Union filed a charge against Respondent in Case
23-CA-3121 on September 3, 1968, in which it alleged,
among other things, that Thomas was discriminatorily dis-
charged on June 26, 1968. The date was obviously an
error as Thomas was laid off on July 26, 1968. A second
amendment to the charge, filed November 4, 1968, dropped
the allegation of a discriminatory discharge of Thomas
There was added a new allegation relating to Thomas
that Thomas was refused reemployment on October 4,
1968, because the Union had filed charges on his behalf,
and because of his membership in the Union, and activity
on behalf of it The evidence shows that Respondent decided
not to fill Rodriguez' job on September 20, 1968, and
Carr so informed Thomas after telling him that he might
have a job for him There is no evidence that Carr is
a member of the Union or that he engaged in union
activity on behalf of the Union The complaint in Case
23-CA-3121 alleges that Respondent by Mike Carr told
an employee (Thomas) on or about October 4, 1968,15
that he would not be hired because he had filed charges
under the Act The complaint was issued on November
15, 1968 The only legal action which on September 20,1968,
could be said to have a color of a lawsuit by Thomas
against Respondent was in charge in Case 23-CA-3121
containing, among other things, the allegation of the discrim-
inatory discharge of Thomas, filed by the Union on Septem-
ber 3, 1968 The Union, however, abandoned the allegation
that Thomas was discriminatorily discharged on September
25, 1968, when it amended the charge filed on September
3. Apparently the Union found it could not be supported.
It can be argued by Respondent that it knew it had no
merit as a lawsuit on September 20, 1968, when Carr
allegedly said to Thomas that Haygood said to him that
he could not be rehired because he had a lawsuit against
Respondent.
Analysis, Credibility Resolutions , Findings, and
Conclusions
The theory of the General Counsel's case is that Respond-
ent and Shaffer, its predecessor, harassed employees Baker,
Snell, and Eggleston by reprimands and threats, and
=5 At the hearing General Counsel was permitted to amend the date
of October 4, 1968, to September 20, 1968
531
Respondent discharged them, because of their union activity
and their active participation, as members of the employees'
bargaining committee, in the collective bargaining from
May 24, 1968, until the dates of their discharges, between
the Union, on the one hand, and Respondent and Shaffer,
its predecessor, on the other General Counsel contends
that the evidence also shows that Foreman Hill was dis-
charged to support the pretextual defense that Baker was
discharged for cause, that Respondent refused to rehire
Gerald Thomas because the Union filed an unfair labor
practice charge against Respondent in which it was alleged
that Thomas was previously discriminatorily discharged,
and that the harassment and discharge of Baker, Snell,
and Eggleston, and the refusal to rehire Thomas, together
with an alleged attempt to engage in individual bargaining
with Snell, by Respondent is a rejection of the collective-
bargaining principle and a refusal to bargain. This conduct,
argues General Counsel, violates Section 8(a)(1), (3), and
(5) of the Act.
General Counsel argues that while reprimands given
Baker and Snell, and threats directed to them and Eggleston
prior to July 18, 1968, when Shaffer, the predecessor of
Respondent, operated the plant, is not conduct violative
of the Act for which Respondent can be held accountable;
it is background evidence against which conduct engaged
in by Respondent after July 18, 1968, is to be appraised
The Union, the certified bargaining representative for
Respondent's production and maintenance employees, and
Respondent from July 18, 1968, to January 20, 1969, and
Shaffer, its predecessor, from May 24, 1968, to July 18,
1968, have had 19 bargaining sessions. The Union has
been represented by International Organizer Woodall and
its attorney, Warner Brock, and an employees' bargaining
committee comprised of Baker, Snell, and Eggleston, and
Hernandez, and Hernandez, Pate, and Pond after Baker,
Snell, and Eggleston were no longer on Respondent's payroll.
Respondent was represented by Nelson Wall, secretary of
Respondent, and its attorney, Scott Kneese.
There is not a scintilla of evidence of any statements,
conduct, or anything else occurring at the bargaining ses-
sions from which an inference could be drawn that Baker,
Snell, and Eggleston actually participated in presenting
proposals of the Union, receiving counterproposals of
Respondent, and discussing proposals and counterproposals,
while Hernandez remained negative Neither Woodall nor
Brock were called as witnesses to give testimony of state-
ments and conduct of Baker, Snell, and Eggleston at the
bargaining sessions, and of silence by Hernandez when
he could well have spoken or acted. The only evidence
offered by General Counsel was the conclusionary selfserving
statements of Baker, Snell, and Eggleston, the employees
no longer on the payroll, that they actually participated
in the sessions while Hernandez did not.
I do not consider this conclusionary, selfserving testimony
to have any probative value, when testimony by them
of statements made and conduct engaged in, if there were
any, could have been given by them, and particularly by
Woodall and Brock. Since probative evidence was not
offered, I conclude and find that if Baker, Snell, Eggleston,
Woodall, Brock, and Hernandez were asked to give it
as witnesses , they would not have been able to do so.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Therefore, there is no evidence related to the bargaining
sessions themselves that support the General Counsel's theo-
ry that Respondent has been hostile to Baker, Snell, and
Eggleston because of their active participation in the bargain-
ing sessions. On the other hand, the fact that there were
19 bargaining sessions, and at the time of the hearing,
from February 4 to 7, 1969, a bargaining session for Febru-
ary 11, 1969, had been scheduled, and not the slightest
criticism has been raised by the Union about the conduct
of Respondent at the bargaining sessions, buttress the pre-
sumption that Respondent's bargaining has been in good
faith
Between May 10 and July 18, 1968, Baker was reprimand-
ed by Shop Superintendent Baletka or Foreman Hill. Baker
was reprimanded on two occasions for failure to wear
a hard hat as required by a plant safety rule, and in
one instance for poor production A notice of the May
10 reprimand was placed in his personnel file Baker did
not wear the hard hat when he should have done so.
Snell was reprimanded a number of times by Baletka,
and on one occasion by Foreman Hill for poor production
and doing too much talking to other employees. I find
from Baletka's testimony, and the absence of credible testi-
mony from Baker and Snell, that Baker's and Snell's produc-
tion was poor and that Snell was talking too much to
other employees during working time
Although reprimands were reasonable on their faces,
testimony offered by General Counsel if credited would
show an illegal motive behind the reprimands This testimo-
ny would also disclose illegal threats under the Act against
Baker, Snell, and Eggleston The testimony is comprised
of testimony by employee White that about June 1, 1968,
Baletka told him that he would have to get rid of Snell
because he was devoting too much of his time to union
activities, and about June 15, 1968, told him that Eggleston
and Baker thought they were involved with union activities,
and he would have to get rid of them, and after June
15, 1968, Foreman Hill told him that Baletka said to
him he was out to get Snell, and instructed him to get
rid of Snell because he was devoting too much time to
union activities
On cross-examination White admitted that on June 14,
1968, he told Baletka he decided to join the Union, and
Baletka replied that it was his right to join the Union.
Baletka denied he made the statements to White regarding
Snell's, Baker's, and Eggleston's union activity that White
testified he did He testified that the only statement he
made to White involving or related to union activity was
his reply to him when he said he decided to join the
Union, that it was his right to join the Union. Baletka
also denied he made the statement to Hill that Hill allegedly
told White Baletka made to him.
If Baletka had made the statement on June 1 to White
about Snell and his union activity, and had threatened
to fire Snell, White would not have disclosed to Baletka
on June 14, that he had decided to join the Union. Moreover,
in view of White's disclosure on June 14 that he had
decided to join the Union, Baletka would never have made
the statements hostile to Eggleston and Baker because of
their union activity that White testified he made after
June 15. From evaluation of the demeanor and oral testimo-
ny of Baletka, White, and Hill, in context, I consider
Baletka a more credible witness than White and Hill. In
addition, no foundation was laid by General Counsel to
give credence to testimony by a rank-and-file employee
that a shop superintendent would make to him disclosures
highly damaging to an employer wham he represented
and acted for in a highly responsible capacity
For these reasons, I do not credit the testimony of
White with respect to illegal statements Baletka made to
him about Baker, Eggleston, and Snell, and the statement
Hill allegedly made to him about a statement Baletka
made to Hill that he was out to get Snell and an instruction
he gave Hill to fire Snell The evidence of record shows
that a foreman did not have the authority to discharge
an employee. The alleged instruction to Hill by Baletka
would have been ridiculous. Baletka did not make ridiculous
statements or do ridiculous things I find no substantial
evidence of record that the reprimands given to Baker
and Snell between May and July 18 had any illegal motive
or union animus behind them or that Respondent, by
Baletka in that period, illegally threatened Baker, Snell,
Eggleston, and other employees under the Act
The evidence discloses that Baker and Snell received
reprimands between July 18, 1968, and the dates they
were discharged. They are August 29 and November 5,
1968, respectively. Baker was working on the 80-foot vessel
with a 15- to 17-foot diameter that he had started under
Foreman Hill about the prior June 18. This continued
to be his project until his discharge on the following August
29. Shortly after July 18, Baker lifted with a crane two
sections of the vessel, which Baker claimed had been made
crooked by the night shift, to straighten them out. The
temporary weld joining the inside ends of the sections
broke, and the sections fell and were damaged, because
the force from the crane had been placed on the outside
ends of the sections by the improper placing on them
of the lines or slings by which they were attached to
the hook of the crane The setup for lifting the sections
was wrong. Baker should have been aware it was wrong
and should have forseen the consequences. Baletka, who
saw the incident and the damage, merely told Foreman
Hill to talk to Baker.
About the same time Baletka said to Baker that he
would like to talk to him about Moats' statement to him
that he was ruining a set of rubber turning rolls. The
turning rolls on which the sections or cans are turned
while being welded are expensive equipment I credit Hay-
good's testimony that Baker had improperly positioned
the sections or cans on the turning rolls so that the fit-
up lugs which lut out from the sections or cans, and
hold them together while being welded, bit into the rubber
and damaged it as the cans were being turned. Baker
testified that someone else had damaged the rubber rolls
and had placed a ring around the cans which bit into
the rubber The responsibility for the job was Baker's
Baker testified he did not consider as a reprimand Baletka's
discussion with him about the damage to the turning rolls.
About August 8, 1968, Moats passed Baker as he was
waiting for his welder to return with welding rods needed
in the welding of spray nozzles to the interior of the
vessel. As Moats passed him, he said to him he could
BAYPORT FABRICATING. INC
not fix it by looking at it Baker said "you sure as hell
can't," without bothering to explain why he was standing
idle In this instance, Moats saw Baker standing idle, and
was entitled to the explanation Baker did not bother to
give him
I find from this evidence that the conduct of Respondent
on its face does not constitute harassment of Baker or
disclose an illegal motive under the Act Respondent appears
to have acted reasonably in each set of circumstances.
It did what an employer would or could be expected
to do It remains for independent evidence, if any, to
show illegal motive behind this conduct of Respondent
There is no independent evidence involving Baker. So this
evidence, if it exists, must lie in Respondent's conduct
involving Snell. General Counsel argues that there is inde-
pendent evidence involving Snell, who like Baker, was a
member of the bargaining committee, that discloses a dis-
criminatory motive behind the reprimands not only to
Snell but also to Baker.
About July 18, 1968, Baletka in the presence of Foreman
Hill, told Snell he was not doing any work, and if he
did not get busy he would terminate him An hour and
a half earlier, Hill had assigned Snell the job of welding
nameplates on a number of vessels at a back entrance
to the plant Snell went to this location and asked an
employee there where on the vessels the nameplates were
to be welded The employer replied that Inspector Angele
would have to tell him. Snell made no effort to find Angele,
and idled away the time until Angele came by that location
an hour and a half later As he was finally doing the
welding assignment that Hill gave him an hour and a
half earlier, Baletka and Hill came along. It was then
that Baletka reprimanded Snell for not working.
Snell was reprimanded by Hill on July 21, 1968, for
idleness and poor production. A notice of reprimand was
prepared by Hill and approved by Baletka The notice
showed a mark of fair for ability and attendance and
poor for conduct and production. On October 4, 1968,
he was reprimanded by Baletka who prepared two notices
of reprimand covering the one reprimand. One stated that
Baletka warned Snell about talking about union activities
during working hours, and the second notice stated that
Baletka told Snell that the time from 3:20 p.m, to 3.30
p m., the last 10 minutes of the first shift, was for shop
cleanup and putting tools away, and not for talking and
union negotiations On the first notice, Snell's record was
marked fair for ability, conduct, and attendance and poor
for production
On October 29, 1968, Foreman Martin, in whose depart-
ment Snell was then working, asked Snell if he could
step up his production, and Snell replied he could not
do so because of the heavy equipment he was working
with. On November 4, 1968, the day before he was dis-
charged, and the first working day he was on the night
shift, Snell appeared at the working area of the plant
at 3 p m , a half hour before the night shift began, and
a half hour before the day shift ended, and talked to
Buck, a day-shift employee who was working, for about
5 minutes. President Moats was watching him. He called
to him and they talked Moats told him that he had
come into the plant and talked to a man while he was
533
working. He then said that if he wanted to be fired it
was a good way to do it
General Counsel did not offer any substantial evidence
to show Snell was not idling or talking to employees while
they were working He relies on the theory that Snell's
appointment to the employees' bargaining committee in
April 1968, and his participation in the bargaining since
May 24, 1968, plus a disclosure by Hill of what happened
at the supervisors' meeting on July 20, 1968, show the
discriminatory motive for the reprimands Hill testified
that at this meeting President Moats, Vice President and
Shop Manager Haygood, Shop Superintendent Baletka,
Foreman Vanderhider, himself, and other foremen were
present Baletka, in the presence of Moats, Haygood, Van-
derhider, and the others said Snell was no good, was
an agitator, caused everybody trouble, and had to be gotten
rid of, and instructed Hill to get rid of him immediately.
Baletka denied he made this statement. Hill also testified
that someone of management said that an employee had
to have three reprimands and notices of the reprimands
prepared before he could be fired.
I have found that I consider Baletka a more credible
witness than Hill, the foreman discharged on August 30,
1968, for what I consider an inexcusable error. Hill's admis-
sion that he made false statements on an application to
Offenhauser for employment was taken into consideration
in my determination that he was less likely to tell the
truth than Shop Superintendent Baletka. I have determined
that on evaluation of Baletka's demeanor testimony and
his testimony on substantive matters that he was a highly
credible witness, and more so than Hill. As I have previously
stated, the evidence discloses that Baletka did not engage
in ridiculous conduct or make ridiculous statements. Baletka
could not discharge an employee or instruct a foreman
to discharge an employee. Haygood handled that responsibil-
ity Baletka would not have ordered Hill to discharge
Snell as neither Hill nor himself had the authority to
take that action Hill testified that he refused to fire Snell,
but told Snell what Baletka instructed him to do. This
alleged action by Hill, which would have been contrary
to Baletka's order had he made it, it also unbelievable.
I do not credit Hill's testimony Foreman Mike Carr,
who attended the July 20 meeting, denied any mention
was made of Snell at the meeting.
I find no denial in the record of Hill's testimony that
at the July 20 meeting it was stated that an employee
to be discharged had to be reprimanded three times and
notices of reprimand prepared for each reprimand Assuming
this was stated by Moats, Haygood, or other representative
of Respondent having the responsibility to speak for it
in such a matter, I find nothing discriminatory in the
statement. On its face, it is reasonable. There is nothing
to identify it as referring only to employees who were
union members or engaged in union or other concerted
activity There is no evidence that it brought about a
change in the then working conditions which required
that it be discussed with the Union before being followed.
In the first part of August 1968, Baletka transferred
Snell from Department C under Foreman Hill to Depart-
ment D under Foreman Martin. He told Snell at the
time he believed that Martin could make better use of
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his ability. He also told this to Foreman Hill There was
no change in shifts. At the end of 2 weeks, Baletka compli-
mented Snell on the good work he was doing under Martin.
I credit Baletka's testimony that Snell did good work for
about a month, but then returned to the same attitude
and indifference to production that he had before the trans-
fer. I credit Baletka's testimony that Martin reported to
him Snell's production was poor, and said to him that
he did not know what to do with Snell I credit Baletka's
testimony that on October 4, 1968, he saw Snell talking
to five or six employees between 3.20 and 3 30 p m They
were sitting on the floor and were passing something to
each other, when they should have been cleaning up the
shop and putting tools away Baletka assumed they were
discussing union activity. I find nothing wrong or unreasona-
ble in Baletka's reprimand to Snell on October 4 for this
conduct I credit his testimony that his making out two
notices of reprimand was an oversight. I credit Baletka's
testimony that there had been in effect for about a year
prior to November 4, a shop rule requiring employees
entering the plant for the night shift, beginning at 3:30
p.m, to remain in the restroom or in clock alley and
away from the working area until 3:25 p.m I also credit
Baletka's testimony that all the employees had been made
aware of the rule. Moat's warning on November 4 to
Snell for coming into the working area of the plant at
3 p.m, preparatory to going on the night shift at 3:30
p m, and talking to employee Buck while he was working
was a reasonable reprimand.
I conclude and find that Respondent has advanced sub-
stantial economic reasons for the reprimands to Snell and
Baker, while General Counsel has failed to show by prepon-
derance of the evidence on the record as a whole that
Respondent's reprimands had an illegal motive under the
Act.
At the stage of the fabrication of the vessel for Monsanto
calling for the layout of the tray rings, which was about
July 30, Hill and Baker asked Baletka what the fraction
was in the spacing measurements on the shop print for
two of the rings. They told Baletka that the fraction appeared
to be one-eighth. Baker had brought these measurements
to the attention of Hill. He said they looked like one-
eighth. Hill agreed. There were on the shop print 12 tray
rings and 12 spacing measurements for them. The fraction
in nine of them was clearly one-half. Baletka looked at
the shop print, and said he could tell that the fraction
was one-half," but if they had any doubt they should
check with Dave Brock in the Engineering Department.
Brock was the draftsman familiar with the measurements
on the prints.
The fraction in the spacing measurements for the two
tray rings and one other, in isolation, could be read as
one-eighth instead of the fraction of one-half clearly in
the nine other spacing measurements However, from the
testimony of the expert who testified for Respondent, and
the corroboration 'of his testimony by Baker, Hill, Buck,
and Baletka, I read the fraction to be one-half. Hill and
16 I have credited Baletka's testimony and not Hill's or Baker's where
there is a conflict All credibility resolutions have been made upon
evaluation of conflicting testimony and demeanor testimony in context
Baker had built many vessels of the type being fabricated
for Monsanto, and should have known from their experience
that the fraction that was in doubt to them was very
likely one-half instead of one-eighth, absent a shop notice
that it was one-eighth, and they should have checked with
Brock before using the fraction of one-eighth instead of
the fraction of one-half. Baletka told them it looked like
one-half, and if they had any doubt to check with Brock.
The vessel had an estimated value when completed of
$50,000 Monsanto furnished the material and the plans
and specifications Respondent furnished the labor and other
fabrication costs These were about 50 percent of the costs
If the rings were welded in the wrong places and had
to be removed, and then reinstalled at the correct locations,
there would be shrinkage in the walls of the vessel both
from degouging the erroneously placed rings, and from
rewelding them in the correct locations Then the walls
would be further weakened by shock corrosion when the
resistance arising from the operation of the process in
the vessel and the liquids used met a wall strength less
than the wall strength required by the specification Monsan-
to, under its contract with Respondent as the successor
of Shaffer, would not be required to accept delivery. Even
if Monsanto accepted delivery with an error of this type
built in it, the reputation of Respondent would suffer at
a time when, as a new owner, it was attempting to establish
itself as a good quality fabricator.
Hill and Baker installed the two tray rings with spacing
measurements with one-eighth fraction instead of one-half,
without consulting Brock Two weeks later Hill and Baker
came into Baletka's office and questioned the fraction in
the spacing measurement for the third tray ring The told
Baletka that the fraction in the spacing measurement
appeared to be one-eighth. He told them to check with
Brock Hill called Brock from Baletka's office. Brock told
Hill that the spacing measurements for all the tray rings
had in them the fraction of one-half." But the tray ring
was installed by Hill and Baker with the one-eighth fraction
in the spacing measurement. On the morning of August
29, 1968, a week or 10 days later, Hill informed Baletka
that the three tray rings were installed in error with the
fraction of one-eighth in their spacing measurements.28 Hill
had stopped all welding on the vessel
Baletka discussed the matter with Haygood, including
the communications he had with Hill and Baker about
the spacing measurements for the three tray rings Haygood
had Inspector Angele check the vessel He reported to
Haygood that the three tray rings had spacing measurements
with the fraction of one-eighth. Later that day, shortly
after 3 p.m., Haygood asked Baletka to bring Hill into
his office, but apparently also went to Hill's desk Haygood
asked him to come to his office, and bring his drawings
as there had been a $50,000 mistake that would take
18 to 20 hours to correct, and they wanted to get to
the bottom of it. Haygood also said that it would not
" This is Brock's testimony In addition, Baletka testified that a short
time later Hill told him Brock said that all the fractions were one-
half
3° Brock testified that after Hill's call to him from Baletka's office
Hill visited him in his office, and he told Hill that the fraction in
the measurements for all the tray rings was one-eighth
BAYPORT FABRICATING, INC
be necessary for Baker to be present Hill and Baletka
met with Haygood in the latter's office
Haygood asked Hill how many vessels he had built,
and he replied around 50 He then asked him whether
prior to the drawing for the Monsanto vessel he had ever
seen a drawing with spacing measurements for tray rings
with a fraction of one-eighth in them, or with fractional
variations of three-eights of an inch, and he answered
no Hill also answered that he was satisfied that the Monsan-
to drawing had three tray spacing measurements with the
fraction of one-eighth in them, and that Baletka agreed
that the fraction was one-eighth Baletka denied he agreed
the fraction was one-eighth. He said he read the fraction
to be one-half. The conversation lasted about 15 minutes.
At the end of the conversation President Moats entered
Haygood's office, sat down near the entrance door, and
asked if they had gotten to the bottom of the mistake.
Hill was told by Haygood or Baletka to return to his
desk and they would figure out what to do about the
mistake
I credit Baletka's and Haygood's testimony that they
discussed the error and the consequences it might have
with respect to the order for it, from Monsanto, and also
with respect to the reputation of Respondent They agreed
that Monsanto had to be contacted and informed about
the error They testified they decided to discharge Hill
as he had access to Brock in the Engineering Department,
and should have known the fraction was one-eighth. They
also testified they considered the part Baker played in
the error, and reviewed his record since Respondent began
operating the plant. Baletka informed Haygood of the dam-
age Baker had caused in the latter part of July when
he improperly lifted with a crane two sections of the vessel
and the temporary weld holding them broke and they
fell to the floor of the plant, and when he improperly
positioned two sections of the vessel on the turning rolls
leaving the fit-up lugs on the sections to gouge the rubber
on the turning rolls. They testified they decided to discharge
Baker on this record. It is undisputed that Baletka notified
Hill he was discharged when he was at his desk at the
plant on the afternoon of August 29, and that Haygood
in a telephone call to Baker's home that afternoon notified
him he was discharged.
Haygood telephoned Inspector Arnold of Monsanto in
the morning of August 30, and informed him of the error
Arnold was the Monsanto inspector who was checking
the fabricating of the vessel. He told Haygood that he
would inform his supervisors of the error, and let him
know what they wanted done He notified Haygood on
the afternoon of August 30, that Monsanto would accept
the vessel with the error in it. When Baker returned to
the plant on the morning of August 30 to obtain wages
due him and to pick up his tools and return tool checks
he had, Baletka and he had a conversation. I credit Baletka's
testimony that he started to tell Baker why he was discharged
and was referring to the error made in the fraction in
the spacing measurements for the three tray rings when
Baker interrupted to say that the fraction had been ques-
tioned, and Baletka replied that he and Baker were told
the fraction was one-half and they had access to the Engi-
neering Department, and Baker then said that Baletka
535
had been forced to run him off and he would be run
off himself when they were through with him.
Management can discharge for good cause, bad cause,
or no cause at all provided that a motivating purpose
behind the discharge is not to do what the Act forbids."
Respondent has furnished substantial evidence of business
or economic reasons for the discharges of Baker and Hill,
and to meet the General Counsel's contention that the
reasons were pretextual It is to be noted that the decision
to discharge Hill preceded the decision to discharge Baker.30
On the other hand, no substantial evidence was presented
by General Counsel of statements made or conduct engaged
in, or of independent circumstances, in connection with
the fabrication of the vessel, the inquiry following Hill's
disclosure of the error to Baletka, or the actual discharging
of Baker and Hill, which shows a discriminatory motive
for the discharges or from which a discriminatory motive
can be infered. Assuming arguendo, contrary to the evidence,
that Baletka did agree with Hill and Baker that the fraction
was one-eighth, but denied he did so to Haygood as well
as to Baker and Hill, the evidence would then show he
was trying to shed responsibility for the mistake rather
than taking action against Baker and Hill that had a
discriminatory motive under the Act
On the record in this case, the reprimands given Snell
by Respondent, including the reprimand Moats gave him
about 3 p in on November 4, 1968, were reasonable and
were given for business or economic reasons and did not
reflect a discriminatory motive or an intent to interfere
with rights of employees under the Act Snell was discharged
at the beginning of the second shift on November 5, 1968,
after he had a conversation with Moats in the presence
of Baletka, Haygood, and Bates The conversation was
triggered by events that occurred during the second shift
on November 4.
Snell was transferred by Baletka in August from Depart-
ment C under Foreman Hill to Department D under Fore-
man Martin to see if Snell's production would improve
under Martin Both of these jobs were on the first shift,
which ran from 7.30 a m. to 3 30 p.m. Snell's production
improved during the first 30 days under Martin, but lapsed
back to what it was when he was under Hill Martin,
pursuant to Baletka's instruction, notified Snell on the
morning of October 29 that, effective October 30, he was
transferred to the second shift. This shift began at 3:30
p.m Snell went to Baletka's office dust before noon on
October 29 and told him he had to have more money
if he had to work on the night shift. Baletka said it
vas up to his foreman to recommend him for a raise,
and that he could not give him more money when he
was complaining about his work being sloppy and his
idling when he should be working He also said, however,
that if Night Foreman Bates was pleased with his work,
and recommended him for a raise, he would be pleased
to grant it. Snell accused Baletka of transferring him to
the second shift so that Bates, the second-shift foreman,
" NLRB v McGahey, 233 172d 406, 412-413 (CA 5), enfg as
modified 111 NLRB 1162
J0 N.L.R.B v Great Dane Trailers, 388 U S 26, 34,
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could get rid of him for his union activities Baletka denied
this was so He told him that somebody had to be placed
on the second shift I credit Baletka's testimony that a
request had been made by Bates, the second-shift foreman,
for a fitter, and Snell was selected because he had less
seniority than the other fitters on the first shift. Foreman
Martin recommended that Snell be transferred, and Foreman
Bates wanted him
Snell did not report for work on the second shift on
Wednesday, October 30, as instructed Nor did he report
for work on Thursday, October 31, or Friday, November
1 He did not call in on Wednesday, but did call in
on Thursday He did not call in on Friday In his Thursday
telephone call he notified Bates through the clerk at the
reception desk that he was ill and was ill the prior Wednes-
day evening Snell testified he had a muscle spasm on
Wednesday and did not call in because he believed that
he would be over it by the time the second shift began.
Respondent had a shop rule that required an employee
not reporting for work to call in the first day he was
to be absent. As found, Snell reported for work on the
second shift for the first time on Monday, November 4
When Foreman Bates was assigning him to the work he
was to do, Baletka stopped them and asked Snell why
he did not call in on Wednesday, October 30, when he
was to be absent, and Snell replied that he thought he
would be able to come in by the time the shift began.
Baletka reminded him of the shop rule which required
him to call in the first day.
About 10 p.m., on November 4, Snell came to Bates
and told him he was punching out at 12 o'clock. The
second shift ended at midnight. Snell told Bates that he
and Baletka had an agreement about his not working over-
time. At this time neither Bates nor Baletka had asked
him to work overtime. He had learned from the other
employees under Bates that they were working overtime
until 12 a m on November 5. Snell left the plant at midnight
when the regular time for the second shift ended He
admitted he may have been the only member of Bates'
crew who left. Baletka denied he had any agreement with
Snell about not working overtime, and I credit his denial.
On October 29, when Snell talked to Baletka about his
transfer to the second shift,he told Baletka his wife worked
days, and if he worked the night shift they would not
be able to see each other Baletka said the transfer was
not necessarily a permanent thing, and if it worked an
undue hardship on him he would bring him back to the
first shift This was not an agreement that Snell did not
have to work overtime For the year prior to November
4, Snell refused to work overtime on weekends at straight-
time rates to make up time lost during the week by his
attendance at bargaining sessions . Snell's announcement
to Bates at 10 p.m. on November 4 that he was punching
out at midnight , in these circumstances , was a refusal
to work overtime
Snell told Bates in this conversation that he thought
Respondent was going to get rid of him and Baletka,
that he heard a rumor to that effect over the weekend
Bates would get rid of him, and they would get rid of
Bates. Snell also said that he would be doing him a favor
by firing him, that he could not make a living working
for Respondent, and his wife had to help him making
a living for them. Snell was bothered by his wife working
when he was off, and by his working when she was off
Moats visited Respondent's plant about 5 minutes before
midnight on November 4, when the regular time for the
second shift ended He walked to where Foreman Bates
was standing, and asked him how things were going. Bates
answered that things were running smoothly As the whistle
blew, Snell walked by, on his way out to an exit from
the plant Moats said to Bates that everybody else was
working "on this hot job," and asked why Snell was not
working. Bates replied that Snell told him that he and
Baletka had an agreement that he did not have to work
overtime, and Moats said ` o.k " As previously stated, Balet-
ka did not have such an agreement with him. Bates said
to Moats that he had heard that he and Baletka were
to be run off, and when Moats asked him who told him,
he said that Snell did, and that he considered him a
responsible person Moats replied to Bates that if he was
to be run off he would be the first to hear of it
Moats, Haygood, and Baletka had a conversation during
the first shift on November 5, about Snell, as a result
of Moats' conversation with Bates at the end of regular
or straight time on the second shift on November 4. They
decided to talk to Snell, and Moats decided he would
be the one to do the talking Moats asked Baletka to
bring Snell to the office when he reported for the second
shift Moats testified that if Snell had the right attitude,
the intention was to reprimand him, possibly give him
a day or two off, and forget the matter I have no reason
to discredit this testimony Baletka brought Snell to the
office at the beginning of the second shift on November
5, 1968 Moats was there and Haygood came in During
the conversation between Moats and Snell , Bates was called
in and remained for the rest of the conversation.
Moats opened the conversation by saying that several
things had happened, and he wanted to straighten them
out. He asked Snell why he did not telephone the plant
on Wednesday, October 30, when he did not intend to
report for the second shift. Snell replied that he was sick,
and was not near a telephone. He asked him about not
calling on Thursday, and Snell did not answer He began
to ask about Friday, but has informed that Snell called
in on Friday. He asked Snell what he should do about
this situation There was a plant rule that an employee
not intending to report for work should call in the first
day. Failure to call made him subject to discipline, including
discharge. Snell answered that that was his problem. Moats
asked why he was talking to employee Buck at 3 p.m.,
on November 4. The first shift had 30 minutes to run,
and Snell who was reporting for the second shift should
not have been in the working area of the plant until
3 25 p.m He talked to Buck for 5 minutes Snell replied
that he was passing, Buck stopped him and they passed
the niceties of the day, Moats said this was the reason
the plant was running inefficiently and losing $50,000 a
month. Snell said it was Moats ' problem . Moats asked
him if he told Bates he was not going to work overtime,
and Snell said he did not refuse to work overtime Haygood
brought Bates in, at Moats ' instruction , and Bates said
he did refuse Moats asked him if he was going to work
BAYPORT FABRICATING, INC
that night and Snell said he did not know, that he would
let him know later. Snell asked him if he asked Bates
to fire him, and Snell denied he had Bates said he did,
and then Snell said he told Bates that he could not make
a living out there, and his wife had to make a living
for them, and that he would be doing him a favor by
firing him Moats next asked him if he intimidated one
of the foremen by telling him he and Baletka were going
to be fired. Snell denied he intimidated a foreman, but
he admitted he told Bates that he and Baletka would
be fired within 2 weeks. Snell said that he had heard
a rumor about the firings on the telephone Moats asked
him if he thought it was "the best thing" to pass such
a rumor around, and he said he thought it was, and
asked Moats if he would not want to know about a rumor
going around about him Snell said he did not want to
hear a rumor, that if someone had something to say,
he would like them to say it to his face. Moats denied
that he, as Snell testified, said he would like to get his
hands on those spreading such a rumor. I credit Moats'
denial Moats asked Snell what he should do about him,
and Snell replied it was his problem, and that as far
as he was concerned he could do anything he pleased
Moats replied that with his attitude there was only one
thing to do and that was to fire him Moats then started
to state the reasons why he was being discharged. He
said that Snell did not call in on Wednesday when he
should have As he was about to list the others Snell
said that all he needed was one reason Moats said he
would list them all He then listed Snell's talking to Buck
on November 4, telling Bates on November 4 that he
and Baletka were going to be fired, asking Bates to fire
him, refusing to work overtime, and refusing to give an
answer as to whether he would work overtime. Moats
then said to Snell that he was terminated and Haygood
would get his check. It was about 3:45 p.m Snell started
for the door of the office and, when about halfway there,
turned and said to Moats in earthy terms that Moats
had been trying to get him since he took over the plant,
and he would welcome a fistfight with him if he stepped
outside with him. Snell turned to Baletka, and addressing
him by his last name and an obscene adjective prefix,
invited him to engage in the same type of confrontation
Moats said in the same earthy terms Snell used that he
could get him by reaching over and using the telephone.
He was referring to communicating with the plant guards
or the outside police. He then said to Snell that the best
thing he could do was to sit out in the lobby and wait
for his check Snell left the office, and Haygood obtained
his check for him
It is not for me to decide whether I would have discharged
Snell for his attitude in the conversation of November
5 against the background of his conduct for which he
was reprimanded from July 20 to November 4, 1968, and
for his conduct during the second shift of November 4,
1968 Snell's conduct, and his arrogance during the Novem-
ber 5 conversation, provided adequate business or economic
reasons for his discharge, absent a discriminatory motive.
It is for me to decide whether the evidence of record
contains substantial evidence of a discriminatory motive
behind the discharge
537
General Counsel argues that a discriminatory motive
behind the discharge is shown by the discharges of Hill,
Baker, and Eggleston, the alleged derogatory things Baletka
said about Snell, and Baletka's alleged order given to Hill
to discharge Snell, in the July 20, 1968, supervisors' meeting,
the alleged intimidating conversation Moats had with Snell
in the latter part of September or early October 1968;
the alleged threat of physical punishment Moats made
against anonymous spreaders of rumors that Foreman Bates
and Baletka were to be fired, and Bates' alleged statement
to Snell in their November 4 conversation that he felt
that Respondent transferred Snell to the second shift with
the hope that he would get rid of him.
I have found in this decision that there is no substantial
evidence before me that Respondent discharged Hill, Baker,
or Eggleston for any discriminatory motive violative of
the Act I have refused to credit the testimony of Hill
that in the supervisors' meeting of July 20, Baletka made
derogatory statements about Snell and ordered Hill to dis-
charge Snell, and have credited Baletka's denial that he
made the statements or gave the order. I have refused
to credit the testimony of rank-and-file employee White
that Baletka threatened Baker, Eggleston, and Snell with
reprisals for their union activity, and have credited Baletka's
denial that he made these threats
Both Snell and Moats gave testimony about the conversa-
tion they had in late September or early October 1968.
The testimony discloses that the conversation consisted
of two parts. The first part dealt with inquiries being
made by President Krzesienski about Moats' family, and
Moats' fear that some injury to his family was being contem-
plated by the Union, and Moats' threats of physical retalia-
tion to Snell and Hernandez, as ones representing the
Union who were closest to him, and to other representatives
of the Union, including Krzesienski, for any injury done
to his family, and Snell's reply to the threats, and his
offer in the conversation to engage in physical combat
with Moats of the type that Moats said he would engage
in if the injury to his family occurred The testimony
is set out, in appendix It is not necessary to repeat it
Moats was apprised of the inquiries by Carl Hanel, a
welder employed by Houston Fabricating and a friend
of both Moats and Krzesienski. Since Moats' testimony
is hearsay, although corroborated to some extent by Krzes-
ienski, I credit Krzesienski's testimony At the time, Moats
talked to Snell he had heard only what Hanel told him
As he was a young father of small children, and as the
inquiries could be construed to be the forerunner of harm
to his family, Moats could not be expected to have the
objectivity at the time he talked to Snell that the counsel
for General Counsel argues he should have had His emo-
tional condition was not unreasonable in view of the circum-
stances The threat he made could be expected from a
person in Moats' emotional condition It is excusable I
therefore, find no evidence adverse to Respondent in the
first part of the conversation Since Snell's offer to give
Moats a physical beating followed the threat by Moats
to give him and the other union representatives a physical
beating if his family was harmed, I do not find Snell's
offer as evidence mitigating any remedy against Respondent
if one is called for by the other evidence. Snell told Moats
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Union was looking for his background. This expla-
nation could not be expected to satisfy anyone in Moats'
emotional condition Apparently, Snell believed that all
the Union wanted was his background, and was angry
at Moats' thinking otherwise. It could be argued that Snell
should have had more understanding But it can also be
argued that Snell is a young man with the impetuousness
of the young and, like Moats, is lacking in the maturity
that comes with age.
In regard to the second part of the conversation, I
find that Snell initiated it, and that Moats, because of
the emotional condition he was in, cannot be held accounta-
ble for what he said in reply to Snell's statements to
him about the bargaining going on between the Union
and Respondent To do so would make the Respondent
a victim of entrapment. In any event, I credit Moats'
testimony that in response to Snell's question why he did
not attend the bargaining sessions he said he did not have
time, and had capable people handle the matter for him
I find no evidence of bad-faith bargaining or animus against
Baker, Eggleston, or Snell in this statement. Nelson Wall,
the secretary of Respondent, and V. Scott Kneese, Respond-
ent's attorney, were assigned the responsibility of bargaining
with Respondent. They attended all the sessions. No evi-
dence of any impropriety in their bargaining was even
suggested. I am in accord with Moats' testimony that
as the president of Respondent, a new ownership that
had lost considerable money under the prior owner, his
presence was required elsewhere. A contract which Moats
personally negotiated would hardly be worth much if
Respondent could not be placed on a business basis that
would bring about a financial condition which permitted
the parties to enjoy the benefits of the collective-bargaining
contract. I credit Moats' denial that he did not say he
had not read the Union's contract proposal. Moats testified
that he discussed the Union's proposal with his representa-
tives, and Respondent made contract proposals that would
cost Respondent considerable additional money. I credit
Moats' denial that he said anything about Snell having
a short paycheck. I credit Moats' denial that he said anything
that related to pay increases or refusing to sign a contract.
Respondent's participation in bargaining and willingness
to bargain support Moats' denial. I find that Moats did
not say that if Snell remained at the plant instead of
attending the bargaining sessions they could have worked
out something between them for Snell's benefit Moats
testified that he did not have to bribe anybody. Respondent's
willingness to bargain collectively, and its bargaining collec-
tively, supports this finding.
I credit Moats' denial that he did not say to Snell
in the November 5, conversation that he did not like
to hear rumors over the telephone but would like to have
the person spreading the rumor in his presence so he
could get his hands on him. I credit his testimony he
said that if he was to be fired, and a person knew about
it, he would want that person to tell him about it I
do not credit Snell's testimony that Bates said he believed
that Martin was transferred to the night shift hoping he
would get rid of him. I credit Baletka's testimony that
Bates told Baletka he wanted him, that Foreman Martin
recommended the transfer, that Bates requested a fitter,
and that Snell had the least seniority of the junior fitters
on the first shift.
General Counsel argues that Moats' testimony about
this conversation should not be credited because he denied
to him when he investigated the charge in the case that
he had a conversation with Snell in the latter part of
September or early October. Moats testified in a forthright
manner under oath at the hearing about this conversation
The hearing is the place where testimony is given Moats
testified that he considered the conversation to be a personal
matter involving his family, and not one involving the
issues in the case. He did not consider the part where
Snell attempted to involve him in a discussion about the
Union to be a part of the conversation. He also testified
that he was afraid of Tilley, the counsel for General Counsel.
He said he was afraid of all "Feds." There is no showing
that Moats was told he could contact his attorney and
have him present during the interview The subject of
the conversation was highly sensitive, and Moats said things
in the conversation he wished he did not say, and would
not have said if he had not been in the emotional condition
he was in There is a reasonable basis for his thinking
that what took place in the conversation was not relevant
to the issues involved in the case I find Moats' credibility
to be equal to that of Snell. As I have evaluated Snell's
testimony, I have evaluated Moats' testimony in contest,
and in accordance with his demeanor as a witness
On the above findings, I conclude and find that the
preponderance of the evidence on the record as a whole
does not support the allegations of the complaint that
Snell was discharged for a discriminatory motive violative
of the Act.
The evidence relating to Respondent's alleged failure
for a discriminatory motive to give Eggleston the opportuni-
ty to work overtime when he returned from a vacation
on August 19, 1968, in contrast to his working 10 to
20 hours' overtime before he left on his vacation, and
the evidence relating to Respondent's alleged discriminatory
discharge of Eggleston on September 24, 1968, are set
out in section III, D, 6, of this Decision The evidence
includes Respondent's defense as well as the evidence in
support of the allegations that Respondent engaged in dis-
criminatory conduct. The evidence discloses that even
though Eggleston worked 10 to 20 hours a week overtime
prior to his vacation which ended August 19, he was
behind in his work. The overtime included weekend work
to make up regular time lost during the week by his
presence at the collective-bargaining sessions as a member
of the employees' bargaining committee Respondent had
to send the unfinished work to a machine shop after Eggle-
ston went on vacation. Respondent's testimony that it was
finished promptly by the machine shop and returned to
Respondent is unrebutted.
The record does not show that Eggleston reached an
understanding with Respondent about his unfinished work
before leaving on vacation or even contacted management
about it. Eggleston was the only machinist employed by
Respondent and Respondent had to make an arrangement
with a machine shop to do the unfinished work assigned
to Eggleston It is apparent that Respondent was displeased
by the cavalier conduct of Eggleston The Act does not
BAYPORT FABRICATING, INC
require an employer to operate a business in a competitive
industry as a social institution rather than as a medium
for making and merchandising products to bring a return
that will cover costs, including labor costs, and provide
a profit. When Eggleston returned he started to work
overtime and worked overtime 2 hours. Then the overtime
ceased I find that Vanderhider, Eggleston's foreman, was
instructed by Baletka, Haygood, or Moats not to ask Eggle-
ston to work overtime, that is to work hours beyond
the regular workhours from Monday through Friday. When
Eggleston asked Vanderhider for the reason he was not
permitted to work overtime, Vanderhider said he no longer
had control of assigning overtime Respondent apparently
began a working arrangement with the machine shop to
handle the machinist's work not taken care of by Eggleston
after it engaged it to handle the work left by Eggleston
when he left on vacation, and received it back promptly
in a finished condition. It could be sure that the work
would be done promptly, and Respondent would not have
to be concerned with Eggleston working overtime hours,
but still not completing the work When Eggleston resumed
working after returning from vacation, work done by him
was behind schedule, and the objects he was to work
on began piling up around his machine
The lack of opportunity to work overtime and to earn
the additional compensation it provided bothered Eggleston.
This is apparent from the evidence, including the demeanor
of Eggleston as a witness He did not exercise the care
he could have exercised when he began machining the
flange on September 18. The flange was not secured in
the lathe so that it would be rigid and not vibrate When
he started the lathe, and the flange vibrated, all he did
was to reduce the speed of the machine The application
of the tool by which the finish is obtained when applied
to the revolving flange caused a chattering because the
flange was vibrating . Moats heard the chattering and saw
the machine was not operating properly, when he walked
down the aisle on a routine observation to watch the
operation of the machines in an effort to improve the
quality of machine operations as well as other plant opera-
tions. He asked Vanderhider what was wrong, and asked
Haygood to check it out. Haygood and Baletka consulted
Vanderhider, and came to Eggleston 's machine and watched
the work and looked at the flange. Baletka told Eggleston
the finish was rough and the job was taking too long.
The job should have taken 1-1/2 hours at the most, and
had taken 3 hours by the end of Eggleston's workday
on September 18, and was still unfinished. Moreover, the
application of the finishing tool to the vibrating flange
had left the flange with pock marks and holes.
Vanderhider, according to Eggleston, did not reprimand
him, but told him that if anyone knew how to handle
the problem he did. Haygood and Baletka thought otherwise
I find their decision that the matter should be discussed
with Eggleston to be reasonable However, they reached
this decision only after a conference on the evening of
September 18, in which Haygood , Baletka, and the outside
machine shop operator participated Photographs of the
flange were taken in connection with their consideration
of the problem. Respondent wanted to be sure the reprimand
was justified. Eggleston was a member of the employees'
539
bargaining committee , and the Union had filed a charge
alleging that Baker was discriminatonly discharged The
consensus was that the flange was set up wrong in the
machine. Haygood asked what could be done to remedy
it, and Baletka said a piece of pipe could be tack welded
to the back of the flange to hold it rigid while it was
being machined
In the conversation Haygood had with Eggleston on
the morning of September 19, in the presence of Baletka,
he talked to Eggleston about the condition of the flange
and the way it was machined. They agreed that the flange
vibrated in the lathe, and there was chattering when the
finishing tool was applied to the vibrating flange, and
that the job should have been finished in an hour and
a half instead of being unfinished after 3 hours. It is
undisputed that both were aware of the condition of the
flange. Haygood at this time believed it could be salvaged
by proper machining . Haygood asked Eggleston how long
he had been a machinist and he answered 15 years, and
asked whether he considered himself a machinist and he
answered that he did Haygood told him he should have
known better than to have run the machine the way he
did, and to have permitted the damage -to the flange.
He told him he should have come to his supervisors when
he say he had a problem, that they were the experts
He instructed Eggleston to find out from Baletka what
to do to stop the vibration and the chattering . Baletka
told him that a piece of pipe should be tack welded to
the back of the flange. Vanderhider had this done. Then
the flange did not vibrate when machined , but after the
machining it was below the tolerance allowed due to the
previous machining, and had to be scrapped Eggleston
testified at first that the flange became warped as a result
of the tack welding of the pipe on it, but later testified
that it did not warp, but had to be scrapped anyway
I consider the reprimand to have been reasonable, and
justified by Eggleston's failure to machine the flange proper-
ly. Eggleston testified he told Vanderhider that T-nuts
were required to reinforce the chucks in holding the flange
rigid in the machine, and told the same thing to Haygood
in the conversation he had with him on September 19.
Haygood denied Eggleston said anything about T-nuts.
Whether reference was made to T-nuts is immaterial. The
evidence shows that Eggleston continued machining the
flange after he was aware of the vibration and chattering,
and the damage being done to the flange, and the time
the job was taking Haygood's complaint was that Eggleston
failed to consult his supervisors when he found the job
was going wrong, instead of continuing the machining
and aggravating the original damage. Baletka could have
told him what the remedy was if he had been consulted
and had an opportunity to consider the problem. The
fact that Baletka and Haygood looked at Eggleston's work
and the condition of the flange, after Moats noticed the
way Eggleston was doing the work, did not absolve Eggleston
of the responsibility he had to avoid the damage, and
the undue length of time on the job, or justify a transfer
of the responsibility to Respondent Haygood denied that
he said to Eggleston that the work was piling up around
his machine , and that he could attend the bargaining sessions
if he felt he had to do so, but Respondent was not going
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to have more than one machinist even though there was
another employee who could operate the engine lathe as
he was needed elsewhere. Haygood testified that he said
only that Eggleston's production was low I find no need
to pass on this credibility issue. I find no evidence of
discriminatory motive in the statement allegedly made by
Haygood in the context of this case.
It is clear from the oral testimony and Eggleston's demean-
or that Eggleston resented the reprimand he received from
Haygood. He testified that on Friday, September 20, after
the flange was scrapped and he was given another job
by Vanderhider, Moats watched him working and talked
to Vanderhider. He admitted, however, that Vanderhider
told him that Moats merely asked him what job he was
working on. On September 20, Eggleston asked Vanderhider
for a job recommendation he could use in seeking other
employment, and Vanderhider said he would give him
one but could not do so at that time I credit Foreman
Williamson's testimony that on Wednesday, September 18,
or Thursday, September 19, Eggleston said he would have
quit the job long before if it had not been for his involvement
with the Union Toward the end of the first shift at 3.30
p m., on Friday, September 20, Eggleston obtained a written
permit from Vanderhider to take his fan from the plant.
This fan had a 30-inch diameter, and rested on a stand
5 feet in height with a large flange for a base. It was
something one did not carry around with him like a lunch-
box. Eggleston used the fan when he was working, and
had it chain locked so it could not be moved. At the
close of the shift Eggleston proceeded to clock alley to
punch out. He had his fan with him This area of the
plant was close to the restroom Foreman Mike Carr had
received the paychecks for himself and the four employees
who worked under him in the maintenance department
and was on the way to that department from the work
area proper to distribute the checks Eggleston and Carr
walked along together. They had had many conversations
in the past I credit Carr's testimony that Eggleston was
complaining, and said, "Now they are bringing the checks
out late." The checks had been late. I also credit Carr's
testimony that Eggleston said he was quitting the "f--
king" place. Eggleston went through the exit with his
fan after giving the permit Vanderhider gave him to the
guard He did not bring with him a toolbox containing
70 to 90 pounds of tools which he kept locked near his
work station.
On Saturday morning, September 21, 1968, Foreman
Mike Carr reported to Baletka that at the close of the
first shift on September 20, Eggleston told him he was
quitting. Foreman Vanderhider reported to Baletka that
Eggleston had asked him for a recommendation for use
in looking for another job. Haygood received the gate
guard's report on Saturday morning, September 21, of
what happened at the gate on September 20. It was reported
that Eggleston left with his fan. The pass for the fan
which Vanderhider gave Eggleston was attached to the
report. Haygood asked Baletka about Eggleston taking his
fan home. Baletka told him that Eggleston told Mike Carr
he was quitting at the close of the business on Friday,
and had asked Vanderhider for a job recommendation.
Haygood talked to Mike Carr, and the latter told Haygood
that Eggleston said he was quitting. A quit notice was
placed in Eggleston's file. In response to Haygood's request
of Carr on September 21, that he reduce to writing what
Eggleston said on September 20, Carr made a written
memorandum the following Wednesday, September 25, of
what occurred He stated therein that Eggleston said he
was quitting. On Monday, September 23, Eggleston sent
word by employee Garza that he was ill. Garza rode
to and from the plant with Eggleston before and after
the first shift The notice from Eggleston by Garza was
received in the plant in the morning I find, however,
that Haygood did not receive this information until late
in the afternoon. Prior to this notice, arrangements had
been made with the machine shop to do Eggleston's unfin-
ished work, with the exception of placing a finish on
about 40 flanges They were not needed for 30 days The
material to be worked on which was around Eggleston's
machine had been picked up by the machine shop before
Haygood received notice that Eggleston had called in
Eggleston reported for work on the first shift, Tuesday
morning, September 24. He was at his machine when Van-
derhider saw him Vanderhider said to him that he heard
he quit, and replied he had not. Vanderhider gave a work
assignment, and he was working at it about 7:30 a.m.
when Baletka and Haygood came to his machine Baletka
said he heard he quit, and Eggleston denied he had. Haygood
said he quit Eggleston denied he had, and Haygood said
he had, and asked him to get his tools and leave Baletka
said to him that when you quit, you quit Later that
morning when Eggleston went to Vanderhider's office to
return his tool checks, he again told Haygood he did
not quit. Haygood replied that when an employee asks
his foreman for a job recommendation for another job,
carries his personal property out of the plant, and says
he quit, that as far as he was concerned he quit Eggleston
said he had lost his temper, but was not senous. Haygood
said it was too late, that his work had been sent out.
At this time, Baletka said that he had bad mouthed the
company when he was leaving Friday, and gave it a bad
time
General Counsel argues that he did not quit, that he
merely said he ought to quit. President Moats testified
that Eggleston was a good machinist, but quit. There is
no evidence that Moats participated in the events that
resulted in the end of Eggleston's employment General
Counsel represents that, as Eggleston testified, Eggleston
took the fan home because his window air-conditioning
unit had broken down Eggleston testified he had a stomach
virus on Monday, September 23. On cross-examination,
Carr testified that he did not tell Haygood what actual
words Eggleston used on Friday, September 20, until the
day, September 25, he made a memorandum of what he
said. In the memorandum he stated that Eggleston said
he was quitting, but made no reference to any swear word
that Eggleston used to describe the place he was quitting
But on direct examination he testified that Eggleston said
he was quitting the "f--king" place. Moreover Baletka said
that was what Carr told him, and what he told Haygood
Haygood testified that Carr told him that Eggleston said
he quit, and used the earthy obscene word to describe
the place he was quitting. The General Counsel then argues
BAYPORT FABRICATING, INC
that in view of the conflict between Carr's testimony on
cross with his testimony on direct, the words of his memo-
randum, and the testimony of Baletka and Haygood, Eggle-
ston's testimony and not Carr's should be credited. Namely,
that he said he ought to quit the "damn" place
However, I am presuaded that Carr's testimony on direct
should be credited. It is corroborated by the testimony
of Baletka and Haygood I credit Carr's statement that
in writing the memorandum he was reluctant to include
swear or obscene words on paper that he would disclose
in an oral statement or oral testimony The variation between
Carr's testimony on cross from his testimony on direct
in my opinion was accomplished by the skill of the cross-
examiner The testimony of Carr on both direct and cross,
and the corroborating testimony of Baletka and Haygood,
is that Eggleston said he was quitting. It does not matter
whether he described it as a "damn" place or used a
more earthy term to describe the place. I credit Carr's
testimony that many times in the past Eggleston had said
to him he ought to quit, and he finally said to Eggleston
that is he thought he could do better elsewhere he ought
to quit, and Eggleston admitted later that he may have
been overdoing it In these circumstances, the words "I
ought to quit," as between Eggleston and Carr, had become
an "old saw," and it is unlikely that Eggleston repeated
them on this occasion I do not consider Eggleston's failure
to take his tools with him on Friday as well as the fan
as showing he did not intend to quit The fan had a
5-foot stand and a 30-inch blade It was about all he
could take He could not have taken the 70 to 90 pounds
of tools in addition to the fan
I consider the decision of Respondent on or about August
19, not to request Eggleston to work overtime to be a
silent reprimand, but, under the circumstances, given for
business or economic reasons. I consider the reprimand
of September 19 to have been given for business or economic
reasons. I do not find in the record substantial evidence
of a discriminatory motive behind either reprimand. To
hold, on this state of the record, that Eggleston took
the fan home on September 19, only because of a breakdown
in his window air-conditioning unit at home, without more
evidence than his mere statement that this was so, would
put a premium on the incredulous, and represent that
a happenstance or coincidence occurs much more frequently
than it actually does Eggleston could well have had a
stomach upset on Monday due to nervous tension ansing
from the realization of what he had done on Friday Eggle-
ston quit on Friday, September 20, and over the weekend
changed his mind and decided he did not want to quit,
and returned to his job on Tuesday. Respondent, however,
on Saturday, September 21, took him at his word It decided
to go along with his decision of Fnday Obviously, Respond-
ent was not displeased by it. There is no substantial evidence
that for a discriminatory motive Respondent provoked
Eggleston into quitting, and his quitting amounted to a
constructive discharge when Respondent did not rehire
him on Tuesday There is no substantial evidence of union
animus by Respondent against Eggleston that required
Respondent, on Tuesday, September 24, to overlook Eggle-
ston's decision on Fnday to quit, and the manner in which
he gave notice he was quitting, and his pretextual conduct
541
on Tuesday, September 24, to cover up his quitting and
the notice of it, and reemploy him Respondent did not
violate Section 8(a)(3) or (1) with respect to Eggleston."
The evidence relating to the decision by Respondent
on September 20, not to rehire Thomas to replace Rodriguez,
the night maintenance man who resigned on that date,
is set out supra, Sec III, D, 7. General Counsel contends
that Thomas was not rehired because the Union filed 8(a)(3)
charges against Respondent for its alleged discharge of
Thomas on July 26, 1968 Prior to September 20, Thomas
had worked as a trainee maintenance man, and had been
laid off in a reduction in force, and had been rehired
later as an automobile mechanic He was laid off again
on July 26, 1968.
Shortly after it took over from Shaffer, Respondent
reduced the number of company operated automobiles from
13 to 2, and had the two remaining automobiles serviced
by a garage except for minor things such as changing
spark plugs. On July 26, 1968, Respondent was laid off
The layoff was part of a general reduction in force that
included many administrative as well as production and
maintenance employees. Obviously, there was no need for
a full-time automobile mechanic. Thomas' layoff, on its
face, was for business or economic reasons No evidence
is present in the record that Thomas was a member of
the Union, or engaged in union activity. The Union alleged
that Thomas' layoff was discriminatory in its omnibus
charge of September 3, 1968, but struck this allegation
from the charge on November 4, 1968. From the evidence,
it is apparent that Thomas knew the layoff was for business
or economic reasons, and the Union had no basis for
alleging in its September 3 charge that the layoff on July
26, 1968, was discriminatory.
When Rodriguez resigned on September 20, Foreman
Carr, the maintenance foreman, telephoned Thomas at the
place he was working, and told him he might have a
job for him He told him what the wages and hours of
work, including overtime, were Thomas came to the plant
shortly afterwards and talked to Carr. Between the time
Carr first talked to Thomas and the second talk at the
plant, Carr talked to Baletka and then to Haygood about
hiring a replacement for Rodriguez. Haygood discussed
with Carr the need for a maintenance man on the second
shift, and decided that one would not be hired for a
time so Respondent could see if it could do without one.
Carr had a company car, and was told he should be
on hand to handle maintenance problems on the night
shift if any occurred. Carr testified on February 6, 1969,
that a maintenance man for the second shift had not
been hired, and that he had gone to the plant three to
six times , and on one or two occasions had sent the day
maintenance man
Thomas testified that when Carr talked to him the second
time on September 20, Carr said that someone in the
office said to him that Thomas could not be rehired because
he had a lawsuit against Respondent. Foreman Carr denied
he made any reference to a lawsuit or the filing of charges
in the second conversation He testified he said that
" Cargill, Nutrena Mills Division , 172 NLRB No 24
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent was going to try to get along without a mainte-
nance man for a while. Haygood denied that he made
any reference to a lawsuit or the filing of charges in
his conversation with Carr about replacing Rodriguez. On
evaluation of the oral testimony of Thomas, Carr, and
Haygood, and their demeanor as witnesses I credit Foreman
Carr and Haygood, and do not credit Thomas. On this
evidence I find no violation of Section 8(a)(4) or (1) of
the Act Assuming arguendo, and contrary to my ruling,
that Carr did say to Thomas he could not be rehired
because he had a lawsuit against Respondent, and refused
to rehire him for that reason, I would not find that in
these particular circumstances Respondent violated Section
8(a)(4) or (1) by such a statement or by a refusal to
rehire Thomas because a charge had been filed by the
Union It was known to Thomas that he was laid off
for a business or economic reason, and not for a discrimina-
tory reason. The Union had no basis for alleging in its
September 3 charge that Thomas was discriminatorily dis-
charged It struck this allegation from the charge on Novem-
ber 4 There is no evidence that Thomas was a member
of the Union or engaged in union activity. The Union
had knowledge that there was a general reduction in force
about this time. The objective of the September 3 charge
insofar as it referred to Thomas was obviously to harass
Respondent by invoking the precesses of the Board against
Respondent for its doing something it had a right to do.
To hold that Respondent in these circumstances violated
the Act by a refusal to rehire Thomas for filing charges,
and because it stated it would not rehire him for this
reason, would be to place a premium on the abuse of
the Board's processes, and to invite this abuse as reprisal
against an employer for doing something it has a legal
right to do
On the above evidence, and my findings thereon, I con-
clude and find that the preponderence of the evidence
on the record as a whole does not support the allegation
of the complaint that Respondent engaged in conduct viola-
tive of Section 8(a)(5) and (1) of the Act.
In sum , for the above reasons, findings, and conclusions,
I conclude and find that the preponderence of the evidence
on the record as a whole does not support the allegations
of the complaint that Respondent violated Section 8(a)(1),
(3), (4), and (5) of the Act.
CONCLUSIONS OF LAW
1. Respondent Bayport Fabricating , Inc., is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act, and Sheet Metal Workers ' International Associa-
tion , Local Union No. 54, AFL-CIO, is a labor organization
within the neaning of the Act.
2 Respondent did not interfere with , coerce, or restrain
employees in violation of Section 8(a)(1) of the Act.
3. Respondent did not discriminate against employees
Baker , Snell, and Eggleston to discourage membership in
the above Union in violation of Section 8(a)(3) and (1)
of the Act
4. Respondent did not interfere with, coerce, or restrain
employees in violation of Section 8(a)(1) of the Act with
respect to rights guaranteed them in Secticn 7 of the Act
by discharging Foreman Hill
5 Respondent did not violate Section 8(a)(1) or (4)
of the Act in connection with its decision not to rehire
former employee Thomas
6. Respondent did not refuse to bargain with the above
Union, the certified bargaining representative of Respond-
ent's production and maintenance employees, in violation
of Section 8(a) (5) of the Act by rejecting the collective-
bargaining principle by interference with, and coercion,
or restraint of employees with respect to their rights under
Section 7 of the Act, by discriminating against employees
to discourage membership in the above union , or by discrimi-
nating against an employee because the above Union filed
charges under the Act against Respondent on his behalf.
7. The complaint should be dismissed in its entirety.
RECOMMENDED ORDER
It is recommended that the Board issue an order dismiss-
ing the complaint against Respondent Bayport Fabricating,
Inc.
APPENDIX
This appendix contains the testimony of Snell and Moats
regarding Moats' alleged threat to get hold of Snell.
Snell testified that in the latter part of September during
the first shift, Moats had called him to his office and
said to him it looked like he was running the show (Baker
and Eggleston were no longer on the payroll.), and then
said that Krzesienski had been inquiring about his family,
and he did not want his family harmed. Krzesienski is
president of the Union. He was at the council table when
Snell and Moats testified about this incident. Snell replied
that Krzesienski believed Moats had formerly lived in the
area where he lived, and that he knew him through little
league baseball, that Moats' name came up, and Krzesien-
ski's wife had made inquiries. Moats said he did not want
any dirty fighting, that if Krzesienski wanted to fight dirty
he had a million dollars, and a lot could be done with
that money Snell said he probably could do a lot with
it Moats said that if anything happened to his family
he was going to get hold of somebody, and Snell would
probably be the first since he was the closest one. Moats
said he had done the type of work Snell was doing, that
he used to be a roughneck, and liked to fight, drink beer and
engage in sexual relations. Snell used the four letter word
that describes this last activity, and which he said Moats
used. Snell replied to Moats by saying he had not been a
roughneck, but that he fought, drank and did the other
thing Moats said he did, and not to let anything hold him
back from trying to get hold of him. Moats said he beat a
good man out when he bought Respondent, that Murphy of
Murphy Industries wanted in badly, but he decided he
wanted it and flew out to California (the location of the
principal office of Shaffer) and bought it, that he had
another place (Houston Fabricating Company) that paid
him five hundred thousand dollars a year, but that he could
only get fifty thousand dollars a year out of Respondent.
BAYPORT FABRICATING , INC. 543
Snell testified that he and Moats discussed the proposed
collective -bargaining contract the Union and Respondent
were negotiating He asked Moats why he did not attend
the bargaining sessions , and Moats replied he did not have
time, and that Snell did not have the time either Moats
said he drew a short paycheck the prior week and would
draw one that week , but had he been at the plant talking
to him instead of attending the meetings, they could possibly
have gotten something accomplished . Snell said there were
somethings in the contract the Union was requesting which
did not cost anything , and Moats replied he did not know
what was in the contract , that he had not read it. Moats
kept asking what he was referring to when he mentioned
things in the contract that did not cost anything. He
said to Moats that there were things in the contract that
cost money such as increases in wages, and Moats said
"You will never get a contract ," that he would not sign
it, that his main concern was money, and as far as money
was concerned they would not get it They discussed insur-
ance as Snell was going out the door Snell testified that
at this time he referred to Moats' statement he was running
the show, and asked him,"What about Eggleston9", and
he said , "That's hell about him quitting ." In answer to
his question "Who did he tell he quit?", Moats said that
he told several guys.
Moats testified that in the last part of September he
was walking th, ough Houston Fabricating , and Carl Hanel,
a welder , and friend of long standing , stopped him and
said Krzesienski was inquiring about his family . He wanted
to know what kind of a car his wife drove, where his
kids went to school , and how old they were, what his
wife was like, where she bought her groceries , and everything
about their family and where they lived . Moats testified
Hanel said he told Krzesienski nothing Moats testified
that the only thing he could think of was that some foul
play was going on. When he arrived at Respondent Bayport
that day, he walked out to the shop and told Snell he
wanted to talk to him in Haygood's office Moats then
testified in regard to what he told Snell about the inquiries
Krzesienski was making about his family. Snell, according
to Moats, said they were trying to get a history of him.
Moats' testimony corroborates the remainder of Snell's
testimony dealing with the inquiries . Krzesienski testified
that he believed that several years ago his boy and Moats'
boy were in the same little league team or played at
the same ball park in the Cypress -Fairbanks area, that
Moats was the assistant manager of the team, and he
was also working with the management. He agreed he
talked to Carl Hanel about Moats He asked Hanel if
he was the same Moats that lived in the area he lived
in, and he said he was, and he then said he had come
up in the world since he lived in his neighborhood. He
denied he made any inquiries about Moats ' wife or his
family, where Moats' children went to school or where
they bought their groceries He testified that his wife may
have made inquiries about Moats of Hanel 's wife, as they
visited each other , and his and Hanel 's children played
together practically every day He testified that his immedi-
ate reaction to inquiries by someone about his family would
probably be to "whip their ass "
Moats affirmed Snell's testimony that Snell had asked
him why he did not come to the negotiations sessions,
that he would learn a lot from them, and testified that
he replied to Snell that he did not have the time and
had capable people handle the matter for him . He denied
he told Snell that he (Snell ) did not have the time to
attend the sessions either He testified he first told Snell
they were not there to discuss anything about the Union,
that he had brought him in there to talk about "this
Krzesienski deal." He testified that as the conversation
ended Snell started walking out and stopped outside the
door and said , "Well, you guys made one mistake. The
biggest dam mistake you made was firing Eggleston," and
he replied that "Mr. Eggleston was not fired . He quit."
Moats denied that anything was said about insurance in
the conversation or than he said he had not read the
Union's contract proposal . He testified that he had read
the Union 's contract proposal , that he went over it with
Respondent 's representatives , including Wall, its chief nego-
tiator and that Respondent had made several collective-
bargaining proposals He denied anything was said about
a short paycheck, or not signing a contract , or pay increases
Moats admitted that he denied to Tilley, counsel for
General Counsel , that he had this conversation with Snell,
when Tilley visited the plant and interviewed him when
he was investigating and preparing the case for trial. He
testified he was scared , and believed that the conversation
had nothing to do with issues in the case but involved
something personal At the hearing, Tilley questioned Moats
about a part of the conversation he had with him in
which Tilley made reference to the mounting of a Mouton
lamb hanging in Moats' office , and Moats answered that
a hunting lease Respondent had was stocked with these
animals and invited Tilley to hunt on the lease. I consider
this colloquy about the animal and the lease to be purely
social communication . I do not consider Tilley's reference
to the lamb to be an angling for an invitation to hunt
on the lease, or Moats ' invitation to be an offer of benefit
to Tilley Obviously , Tilley was resorting to pleasant conver-
sation before starting the business of the visit , namely
to question Moats about the case, and Moats was responding
in order to be cooperative Obviously , Moats' invitation to
use the hunting lease was the kind of invitation that carries
on its face the notice that it is not to be accepted