Inland Steel Container Co.

National Labor Relations Board - Board Decisions

Aug 20, 1970

185 N.L.R.B. 1 (N.L.R.B. 1970)

INLAND STEEL CONTAINER CO.
Inland Steel Container Company and Raymond
Wells. Case 13-CA-9028
August 20, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On April 9, 1970, Trial Examiner Harold X. Sum-
mers issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had not engaged
in certain unfair labor practices and recommending
that the complaint be dismissed in its entirety, as
set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel and the Charging
Party filed exceptions to the Trial Examiner's Decision
and supporting briefs, the Respondent filed cross-
exceptions, a supporting brief, and a reply brief, and
the General Counsel filed a brief in answer to cross-
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the cross-excep-
tions, the briefs, and the entire record in this case,
and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner.
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 complaint be, and it hereby is, dismissed
in its entirety.
TRIAL EXAMINER'S DECISION
HAROLD X. SUMMERS , Trial Examiner: In this proceed-
ing, the General Counsel of the National Labor Relations
Board (hereinafter called the General Counsel and the
Board , respectively) issued a complaint ' alleging that Inland
Steel Container Company (herein, Respondent) had engaged
' The complaint was issued on August 21, 1969. The unfair labor
practice charge initiating the proceeding was filed on April 5, 1969
1
in and was engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the National Labor Relations
Act (the Act). The answer to the complaint admitted some
of its allegations and denied others; in effect, it denied
the commission of any unfair labor practices. Pursuant
to notice, a hearing was held before me at Chicago, Illinois,
on October 21, 22, and 23 and November 5 and 6, 1969;
all parties were afforded full opportunity to call, examine,
and cross-examine witnesses, to argue orally, and thereafter
to submit briefs.
Upon the entire record2 in the case, including my evalua-
tion of the reliability of the witnesses based upon my
observation of their demeanor, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is, and at all material times has been, an
Illinois corporation maintaining a plant at or near Chicago,
Illinois (sometimes referred to as the Chicago plant), where
it has been engaged in the manufacture of containers.
During the last calendar or fiscal year preceding the issuance
of the instant complaint, in the course and conduct of
its business operations at the Chicago plant, Respondent
shipped goods valued at in excess of $100,000 directly
to points outside the State of Illinois.
Respondent is an employer engaged in commerce within
the meaning of the Act.
II. THE UNION
Certain employees of Respondent at its Chicago plant,
including maintenance employees , are represented for the
purpose of collective bargaining by Local 1422, United
Steelworkers of America (herein called Local 1422). Local
1422 is a labor organization within the meaning of the
Act.'
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The General Counsel contends that Raymond Wells and
John Ward, electricians in the maintenance department
of the Chicago plant, were laid off on November 9, 1968,
because Wells had engaged in, or Respondent believed
he had engaged in, a number of activities, the exercise
of which is protected under the Act; Ward-the argument
runs-was an innocent victim; low man on the seniority
list, he was let go so that Wells, the next-low man, could
be "reached." Respondent, conceding that it indefinitely
laid off the two men, denies that this was for the reasons
attributed by the General Counsel; on the contrary, it
' On February 25, 1970, I issued an order to show cause why the
transcript of the hearing herein should not be corrected in specified
respects No good cause to the contrary having been shown, the corrections
indicated in the order to show cause (which is received in the record
as TX Exh 1) are hereby ordered made
' Local 1422 filed no appearance herein
185 NLRB No. 3
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
avers , these two were the electricians most recently hired
and the layoffs constituted a reduction in force based - solely
upon economic needs.
The issue to be decided , then , is whether the two men
were laid off because of lack of work or because of Wells'
protected activities.
B. Background and Setting
The Chicago plant , for some years, has been part of
a division of Respondent which manufactures metal con-
tainers . Until several years ago, the plant was located
on South Menard Street , but, in 1964 , it was decided
to move the operation to a new plant to be built on
West 170th Street , in the community of Alsip . (Although
first one, and then the other , constituted the Chicago plant,
the terms Menard plant and Alsip plant have often been
used herein to distinguish the old from the new Chicago
installation .) The move itself took place over a period
of time , between October 1967 and July 1968.
At least since 1939 , Local 1422 has represented nonsuper-
visory production and maintenance employees at the Chica-
go plant , and their working conditions have been governed
by a series of collective -bargaining agreements between
Respondent and Local 1422. The last -but-one of these agree-
ments was to expire, by its terms, on or about October
1, 1968 , and negotiations for a new agreement-both the
basic one covering a number of Respondent 's plants and
the supplemental one covering the Chicago plant-began
in June 1968 . Eventually , agreement as to the contract
covering this plant was reached on or about October 18.
In addition to the electricians , the maintenance depart-
ment of the Chicago plant , during the period in question,
consisted of machinists, machine repairmen B, diemakers,
sheet metal workers, carpenters , painters , oilers, and (until
October 1968) pipefitters.
At the beginning of +1968 , Raymond Wells and John
Ward were among Respondent 's electricians . Their employ-
ment having begun on March 6 and September 5, 1967,
respectively , they were the last 2 hired among the 12-
man force of electricians . No assertion having been made,
or evidence educed, that the quality of their work -perform-
ance was below the standard , I find that they were regarded
by Respondent as satisfactory employees.
C. Chronology of Events'
1. At the opening of the year 1968,5 as has been noted,
the Chicago plant was in the midst of its move from
Menard to Alsip.
As of that date , the Chicago plant was showing a loss
of $150,000 per month , a situation seriously affecting the
profit picture of the division as a whole One of Respondent's
reactions , consummated at the end of January, was to
transfer Jay Strickler, then plant manager for Respondent
' The details contained in this subsection shall not be repeated elsewhere
in this Decision ; later references to them will take the form of the
abbreviation "Chron." followed by the item number or numbers alluded
at Cleveland , to the position of plant manager at Chicago;
and he was followed several months later by Richard Wat-
son, who had been plant engineer at Cleveland and who
now assumed that position in Chicago.'
During the spring months , Strickler met with all personnel
in the plant , by department He told them of the seriousness
of the profit situation at the Chicago plant , and he solicited
their cooperation as "part of a team " to do something
about it.
2. At or around the middle of May , Richard Watson
called together the 10 to 12 maintenance employees who
were working on the third (midnight) shift . The purpose
of the meeting , as he put it , was to "get [the employees']
ideas" about combining the classifications of pipefitter and
machine repairman B. The word he used in connection
with the pipefitters ' job was "eliminate"; as proposed, their
function would be performed by the machine repairmen
B. There is no evidence , in this record , of the reactions
of the men as expressed at the meeting itself . But, immediate-
ly after the meeting ended , Raymond Wells (one of the
two alleged discriminatees herein ) approached Watson out-
side the maintenance department office and asked what
Respondent was "really " trying to do. The entire night
shift , he said , opposed combining the two jobs , and, for
that matter, so did the day shift ; continuing , he averred
that "we" were going to fight the move . In response,
Watson said , in effect , that that was the employees ' privilege.
On June 25 , in connection with a plan for future manning
needs which they formulated that day , Strickler and Watson
tentatively eliminated the classification of pipefitter. Among
other things , the plan , as prepared by them , envisaged
that the four pipefitters then employed should be converted
to machine repairmen B.
In July, during negotiations for a new contract, Respond-
ent representatives raised the subject of the consolidation
of the two classifications with Local 1422 representatives.
Strickler, for Respondent , stressed the importance of the
proposed change ; it would provide flexibility , he said. When
union spokesmen expressed concern lest this be a device
which might be used to reduce the maintenance department,
Strickler disclaimed any such intentions; and he pointed
out that the move would provide an opportunity for the
pipefitters to upgrade their skills so that , for example,
they could perform the work of millwrights . "To be com-
pletely candid ," he added , he could not guarantee that
there would be no reductions unrelated to the consolidation;
for examples , he mentioned the possibility of layoffs among
the electricians and in the carpenter and the paint shops.
(The agreement eventually executed-in October-did
eliminate the pipefitters as an official job classification
at the plant and did incorporate their duties under those
of the machine repairman B.)
3. Late in May, Raymond Wells and two machinists
in the maintenance department , James Novak and John
Bian, met at the latter's home . There, with the clerical
to ' I find Strickler and Watson to be supervisors for, and agents of,
Unless otherwise indicated , dates referred to herein fall within 1968. Respondent
INLAND STEEL CONTAINER CO
assistance of Bian's wife, they prepared a document designed
to lead to the displacement of Local 1422 by the "Interna-
tional Brotherhood of Teamsters" as bargaining representa-
tive of the employees of the maintenance department at
the Chicago plant. The document took the form of a
Board petition-form which had been furnished by an office
of the Teamsters International,' appropriately filled in,
including an "X" in the decertification-box and two attached
sheets headed, "We, the undersigned members of United
Steelworkers Union, Local 1422, Department 51, Mainte-
nance Men wish to decertify ourselves and join the Interna-
tional Brotherhood of Teamsters Union."
Wells, Bian, and Novak, plus maintenance men Al Gregg,
Richard Wright, and John Ward (one of the two electricians
named as discriminatees herein) circulated the "petition"
among the maintenance employees throughout the three
shifts. Wells himself procured at least 11 of the 42 signatures
affixed.
(The petition was never filed with the Board. It was,
instead, turned over to the Teamsters union.)
Respondent disclaims any knowledge of the "decertifica-
tion petition," let alone the part played by Wells in its
development and circulation. The General Counsel contends
otherwise and, in support of this contention, presented
testimony, through Wells and Bian, as to a washroom
incident allegedly occurring late in May 1968, testimony
which was contradicted by that of Respondent' s agent
supposedly involved. My findings as to the incident are
based primarily upon the version of Bian, who most favora-
bly impressed me as a witness and whose story had the
ring of plausibility:
Unsuccessful in an attempt to persuade employee Frank
White (who was a union steward) to sign the petition,
Bian sought Wells' help. Later, in the washroom-
Bian and Richard Wright also present-White, at
Wells' urging, finally affixed his signature. As he did
so, Gilford Dancer, then second-shift maintenance fore-
man,' entered the room. He chuckled as he saw White
in the act of writing but went on to a urinal without
stopping; as he passed the group on his return trip,
he made a playful gesture as if to take the paper
away from White, said the men were wasting their
time, and continued out.'
I further find that, at or about this time , Dancer was
aware-he "had heard it" from several men on the second
' The record does not reveal the identity of the contact man for
the employees In the absence of testimony by Wells that he was the
one who procured the petition-form, I infer, and I find, that it was
not he, under the circumstances of this matter, I am sure that, if he
were the one, he would have so testified
I find Dancer to be a supervisor for, and agent of, Respondent
Thus, I reject Wells' testimony that Bian had solicited his help
in getting White's signature in the sight of, if not in the hearing of,
three supervisors, including Dancer, and that as Dancer, in the washroom,
made as if to take the petition from Wright, he asked what it was
and then said to Wells, "You are a glutton for punishment If you
think you are going to get this petition through, you are nutsl" On
the other hand, I reject the testimony of Dancer to the effect that
the only incident of this sort-an incident which took place in August,
not May-involved his running into Wells in the washroom appearing
to be distributing copies of the "Bucket Factory Story", while this incident
may have occurred-see infra-I regard it as a separate one
3
shift-that a "petition" in support of an outside union
was circulating (The sole defect in his intelligence was
that he understood a Machinists, not a Teamsters, union
was involved.) And I find that, under the circumstances,
he believed that the document he now saw being handled
in the washroom was the petition.
4. Between June and October, five "chapters" of what
came to be known as the "Bucket Factory Story" made
their appearance at the Chicago plant. Copies found them-
selves throughout the plant, but insofar as this record
reveals, no one knows who sponsored the chapters, who
wrote them, or even who distributed them.
The "Story" consists of more or less sarcastic denuncia-
tions of working conditions at the Chicago plant, biting
criticisms of more or less thinly disguised individuals who
represent Respondent and Local 1422, and, progressively,
more overtly hostile reflections upon the relations between
Respondent and the Union; in fact, a reading of the last
two chapters indicated that the sponsor(s) sought, if not
a change in bargaining representative, at least a change
in leadership of Local 1422.
I find that, with respect to the Bucket Factory papers,
both employees and members of management engaged in
speculation as to their authorship. I also find that, on
occasion, the subject came up in conversations between
Respondent's agents and employees.
On his own testimony, I find that Foreman Dancer
spoke to Wells about the Bucket Factory papers in August.
He entered the washroom to find Wells backing out of
a toilet stall with some copies in his hand. They looked
at each other, and Dancer said, "So yotlre the one!" Wells
merely said , "No, go into one of the stalls and get your
own copy." Dancer did, and the incident was at an end.
Early in September just after chapter 3 came out-
Ray Wells and Machinist Repairman B Al Gregg were
standing outside the barrel finishing office when Wayne
Glassman and Bob Roberts 10 approached them. Wells
asked Glassman if he had read chapter 3 yet. No, said
Glassman, but he would like to. Thereupon, Wells gave
a copy to Glassman, who, with Roberts, • went into the
office. They emerged a few minutes later , and Glassman
returned the copy to Wells and asked when the next chapter
was coming out."
I find also that, during the Bucket Factory period, Glass-
man and Wells had one or more additional conversations
on the subject. These conversations were jocular in nature
and consisted, in effect, of Glassman's asking when he
(Glassman) would be mentioned-the clear (but lightheart-
ed) implication being that any management representative
escaping mention might be suspect.
Wells testified that one day in September, at or about
the time chapter 4 was making its appearance, he ran
10 Wayne Glassman was assistant plant manager and Wilbert (Bob)
Roberts was general foreman of the maintenance department I find
them to be supervisors for and agents of Respondent
11 My findings as to this conversation generally follow Gregg's and
Glassman's testimony, which I credit According to Wells, Glassman
asked whether he was trying to run for political or for union office
by writing the Bucket Factory papers and, when Wells asked why he
thought that he (Wells ) was the author , Glassman "just smiled", I regard
this as embellishment of what happened
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into Plant Manager Strickler at the plant cafeteria entrance.
"When is the next one coming out?" asked Strickler. Wells
asked what Strickler was talking about, to which Strickler
said , "You know what I mean ." At this (Wells' testimony
continues), Wells asked what made Strickler think that
he was the author; and Strickler replied that Respondent
had made an investigation and had decided the stories
were coming from the maintenance department and that
Wells was "very capable" of writing them. Strickler testified
that, although he scarcely knew Wells prior to this hearing,
it was entirely possible that, in his wanderings through
the plant, he might have exchanged some remarks with
Wells, as he did with others, either in general greeting
or about the job; but he emphatically denied being involved
in the conversation to which Wells testified or in any
conversation like it. On the basis of Wells' and Strickler's
respective impressiveness, and of the plausibilities inherent
in their respective versions, I credit Strickler and find
that the conversation in question never took place
I find, on the other hand, that there was a related
conversation between Wells and Roberts In late September,
in the presence of several other employees, Roberts told
Wells, "If we find out who is writing the Bucket Factory
stories, Ray, the company is going to prosecute."12
I have already found that there was speculation, on
the part of both employees and management , as to the
authorship of the Story. I find, in addition, that Roberts,
by his own testimony, believed that Wells was the writer
of the chapters. Further, it strains my credulity to be
asked to believe that members of management did not
consult with each other as to the source of the papers;
I find that they did. Finally, on what I believe is a fair
preponderance of the evidence, I find that Respondent,
through its agents, suspected that Wells played a part
in the Bucket Factory project.
5. Ray Wells, Al Gregg, and two others who worked
on Saturday, October 19, went out of the plant for lunch
and, without having called in, returned one hour late.
They were thereupon told that they were under suspension,
a status which continued through the following workday,
Monday.
By Tuesday morning , Wells had decided to file a grievance
over the suspension. Because the regular union steward
for the maintenance department was on vacation, Wells
asked Ernest Rose, president of Local 1422, through whom
he should act, and he suggested the temporary appointment
of Al Gregg, who had once before acted as substitute
steward. Rose said that this suggestion would be adopted.
On Tuesday, Gregg was designated to act as temporary
maintenance department steward. Wells first heard of the
designation , he testified, through a conversation with Plant
Engineer Watson. According to this testimony, he was
working outside the receiving office that morning, when
Watson and Roberts came out. "Just because you're a
rotten son-of-a-bitch," Watson is supposed to have told
Wells, "that's no sign you have to put Al [Gregg] in
the same classification." Watson denied that any such con-
versation took place. I find that the remark was not made.
" Emphasis supplied, as in credited testimony
I am persuaded particularly by the fact that Gregg was
no stranger to grievance handling and that Wells was
the beneficiary of some of the grievances he had handled;
I see no plausible reason why Watson would say what
he did.
At any rate, Gregg did that day file a grievance on
Wells' and his own behalf, concerning their day-and-a-
half suspensions. This record contains no evidence as to
the disposition thereof, except that it went to the second
step of the grievance machinery.
6. The record contains evidence as to certain other activi-
ties of Wells."
While still at the Menard plant, Wells was once sent
home for sleeping on the job. Suspended 3 days, he filed
a grievance, which grievance was denied."
On two occasions-dates unspecified-Wells was "spoken
to" about wearing a T-shirt and about leaving for a coffee-
break 20 minutes early.
On September 20, Wells was given a "penalty point"
for a more-than-5-minute tardiness This culminated in a
grievance (filed by Gregg) which, on October 2, went
to the third step-consideration by the personnel manager.
The written appeal at this point stated that Wells had
been punished despite his having had a reasonable excuse
and added, "The Union requests that this point be dismissed
and stricken from the record, and that the discriminatory
tactics used against said employee in issuing point be discon-
tinued immediately."
(Eventually-on February 26, 1969, long after Wells'
layoff-Respondent decided to void the penalty point. This
decision, which was applied to a number of like grievances,
resulted from a company review of its policy on employee
absenteeism and tardiness as a result of which a new
approach was decided upon.)
During his tenure at the Chicago plant, Wells had, on
occasion, acted as a union steward; moreover, he was
active in politics and, at the time of his layoff, held office
as a township inspector of some kind. Respondent-through
Roberts, for example-was aware of these activities.
Just to round out the picture, Roberts testified, and
I find, that he had, on unspecified occasions, referred
to the combination of Ray Wells, Al Gregg, and Richard
Wright as the "unholy three."
7. Shortly after the signing of the latest collective-bargain-
ing agreement in mid-October, William Whitfield, an
employee of Respondent and vice president of Local 1422,
quit his job and, consequently, his union office. Although
Wells was ineligible to hold office," he made no effort
to disabuse anyone of his interest in and qualifications
" Respondent makes no claim that the matters covered by the testimony
in this subsection (or that any of Wells' attributes or actions) contributed
to his layoff, the testimony was received in connection with the General
Counsel's contention that who he was and what he did brought about
Wells' termination.
" Not having been notified of the duration of the grievance, he
reported back to work early. Because of the lack of notification, he
was given 4 hours' report-in pay, but this was not in response to the
grievance
" Among other things, 2 years of membership was required He
had lastioined the Local 1422 in the spring of 1967
INLAND STEEL CONTAINER CO. 5
for filling the vacancy; as a matter of fact, he engaged
in campaigning among his fellow-employees.
According to Wells, at one point in the campaign , Assist-
ant Plant Manager Glassman approached him at his work
area. Glassman said one of two things (depending on which
part of Wells' testimony one is examining), "Looks like
you'll win" or "You finally made it," either of which
remarks Wells took as referring to the vice-presidency.
Glassman denied that any such conversation took place;
and I credit his denial.
Among other things, Wells testified that he had some
sort of understanding with another aspirant to the office,
one Robert Pulliam , a paint sprayer employed by Respond-
ent. The details of the understanding are vague, but Wells
referred on the witness stand to the existence of a "coalition."
Pulliam, who conceded that he had solicited the support
of Wells among many others, denied the existence of any
understanding or coalition. I find that there was none.
The subject assumes significance in the light of an (alleged)
conversation between Wells and Roberts which followed
by a week the (alleged) conversation between Wells and
Glassman discussed above. According to Wells, Roberts
came up to him alongside the Monostress machine on
which he was working and said that, in response to a
company inquiry as to what Wells' chances were to become
vice president, he (Roberts) had reported his belief that
Wells would win if he ran The conversation continued-
Wells testified-with Roberts' reporting that he had made
a survey and "search" of the campaign and that he was
well aware of a coalition between Wells and Pulliam. (Wells'
contribution to the conversation-according to Wells-was
his admission that there was a coalition.)
While I credit Roberts' denial that the conversation took
place, I find that another conversation did occur during
the campaign, in which Al Gregg told Roberts that he
thought Wells had a good chance to become vice president
of Local 1422.16
In summary, I find that, as of the 3- or 4-week period
immediately preceding his layoff, Wells had aspirations
to hold union office. Moreover, in view of the overt airing
of these aspirations, the publicity attendant upon the cam-
paign, and, for example, the Gregg-Roberts conversation
found supra, I find that management was aware of Wells'
efforts to become union vice president.
(Early in December, subsequent to Wells' layoff, Pulliam
was elected vice president of Local 1422. Wells had in
fact been nominated from the floor at the nominating
meeting held on or about November 17, but his name
did not appear on the final ballot; presumably, his lack
of eligibility had meanwhile disqualified him.)
8. On October 15 (over 19 months after he went to
work at the Chicago plant), Respondent sent inquiries
about Wells' past employment history to three of the four
employers for whom he had worked prior to coming to
Respondent. The replies, all received within the next 2
weeks," were placed in Wells' personnel files.
Respondent explains that the sending out of these inquiries
was sparked by Wells' grievance over having received a
penalty point for tardiness, which grievance is described
at Chron. 6, supra. As there noted, the incident took
place on September 20. On Octc,ber 2, the grievance arrived
at the third step of the grievance machinery, where Personnel
Manager and Supervisor of Industrial Relations W. E.
Reilly was to consider it. Reilly (according to his testimony)
called for Wells' job-application file as well as the file
in which were recorded his penalty points-the latter in
order to find out about Wells' past history of disciplinary
incidents with Respondent and the former for the additional
light which might be shed by such things as Wells' attend-
ance record with other employers His testimony continued:
In Wells' personnel file, Reilly noted that (1) Wells' original-
contact application and his immediately-prehire applica-
tion-prepared 8 days apart-contained some discrepancies
as to dates worked for prior employers and (2) contrary
to company practice, no reference checks of Wells' prior
employers had ever been made. Thereupon-Reilly testi-
fied-he directed his secretary to contact Wells' former
employers, and she sent out the inquiries in question on
forms used for that purpose.
9. As of Saturday, November 9, Ward was still the
most recently hired among Respondent's electricians, and
Wells had next-to-lowest seniority.
On that day, Wells worked the day shift and John
Ward was scheduled to work the second shift. Just after
4 p.m., both were called to the maintenance office over
the intercom system. Ward, arriving first, found Pete Wier1e
and Bob Roberts. They waited for Wells. When the latter
arrived, Wier-who fidgeted nervously-spoke first, saying
he had bad news for them: They were being laid off
as of the end of their respective work shifts that day.
Roberts took over, explaining that the "termination" was
necessitated by an austerity program and a cutback in
project work. Wells, surprised and shocked about the lack
of advance notice, said, "You've got to be kidding." Roberts
assured him that he was not and, in response to a query
from Wells, said that the layoff was "indefinite."
(I find that Respondent did not normally give advance
notice of an impending layoff. I also find that Respondent
took simultaneous action as to both Wells and Ward and
thereafter let Ward work out his shift because, having
determined to lay them off the same day, Respondent's
agents knew of no method of effectuating the decision
(without appearing to deviate from the seniority principle
which, I find, was the usual and contractual basis for
making layoffs) other than notifying the two at the same
time.)
At the end of the conversation, or shortly thereafter,
Wells asked Roberts if he could have extra time in order
" In so finding, I credit Gregg's general testimony, as opposed to
Roberts' denial that any such conversation took place But I do not
adopt that part of Gregg's version in which he testified that Roberts
had opened the conversation or that, having been told that Wells might
win the election, Roberts said he wouldn't win if Respondent had anything
to say about it
" One of the inquiries, returned with the comment, "No record of
employment," was re-sent to a corrected address, once again, the inquiree
responded that it had no record of Wells' employment at its plant
But I pursue this no further since, according to Respondent, the information
thus furnished played no part in Wells' layoff
19 Then electrical supervisor and (I find) an agent of Respondent
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to gather his tools. Roberts gave the requested permission;
later, at Roberts' suggestion, the two of them, plus Ward,
went to the plant canteen for a farewell cup of coffee.
In the canteen-others were also present, but they did
not participate-Roberts bought the coffee, and Wells and
he resumed where they had broken off earlier. Wells-
by now, extremely angry about the turn of events-com-
plained bitterly about the layoff. He emphasized the lack
of notice; he said that he "didn't buy" the austerity reason;
and he characterized the action as a "dirty tnck"-making
Ward an innocent victim of the Respondent's attempt to
get rid of him, Wells. The whole affair, he said, "stinks."
Roberts insisted that the layoff was for the reason he
had given and was not directed at Wells. "The only thing
about it which stinks," he said, "is the timing."
(Subsequent to the layoff, Wells (along with Ward) filed
his final grievance, a grievance concerning the layoff itself.
He was never notified of, and he did not participate in,
any step of the procedures involving this grievance. Subse-
quently, he heard that the grievance went to the fourth
step, just short of arbitration. The parties herein stipulated,
and I find, that, at this step, Local 1422, without objection
from Respondent, "dropped" the grievance.)
10. The parties stipulated, and I find, that Al Gregg
did not work for Respondent from November 7, 1968,
to February 12, 1969.
Several days after his return, Gregg testified, he com-
plained to Roberts about tfte shortage of electricians (he
himself was a machine repairman B, but he worked along
with electricians), and he asked when Wells and Ward
would be recalled. According to his further testimony,
Roberts' answer was that Wells would never be called
back to work there.
Gregg also testified to another similar incident occuring
in late March 1969: In his presence, Roberts was complain-
ing to Dancer about the fact that the necessary electrical
work on the second and third shifts was not being completed
in time (to permit normal first-shift processing). Gregg
interrupted to ask why the two electricians on layoff were
not being called back. Thereupon, Roberts asked Gregg
when he was going to get it through his head that Wells
would never work there again . Roberts, conceding candidly
(and against Respondent's interest) that he did complain
about work uncompleted and complain about the shortage
of help, denied that either of the above conversations took
place; and Dancer, to the extent that he was allegedly
involved, corroborated his testimony.
I find that in neither instance did Roberts tell Gregg
that Respondent would never recall Wells
11. Late in June 1969, Wells and Dancer met by chance.
At a traffic light, Dancer noticed that the occupant of
the car ahead of him was Wells. He attracted his attention,
both of them pulled off to the side of the road, and
they got out of their cars. After they shook hands and
exchanged greetings , Wells asked how things were going
at the plant (Dancer's answer-"We're having our usual
troubles") and Dancer asked what Wells was doing (con-
struction work) and if he was still in politics (he was).
Then Dancer brought up the subject of the unfair labor
practice charge which Wells had filed and in the investiga-
tion of which Dancer had been questioned; he expressed
surprise and, when Wells asked him why, he said he was
referring to the "lies" Wells had told." Wells' answer
was that he had given a statement to the Labor Board,
that he was represented by a good lawyer, and that he
was willing to let ajudge decide the matter. 10
12. The number of electricians employed at the Chicago
plant after Wells and Ward were laid off remained at
nine until September 13, 1969, on which date one of them
voluntarily quit. As of the opening of this hearing, he
had not been replaced; the number of electricians stands
at eight.
D. The Economic Basis for the Layoffs
As noted at Chron. 1, the plant was suffering losses
at the rate of $150,000 per month at the opening of 1968,
and Strickler, late in January, took command. During the
spring months, he held a series of meetings with employees
at which he explained the profit picture.
In June, Strickler sent Watson, lately transferred from
Cleveland, to Respondent's Jersey City plant to gather
ideas for cutting maintenance costs. On or about the 25th,
the two of them met and constructed a "maintenance
manning plan," a plan purporting to crystallize their objec-
tives with respect to the number of individuals to be
employed-at some future, unspecified date-in each classi-
fication within the maintenance department.
In relevant part, the plan21 envisaged a reduction of
electricians (by layoff or transfer) from its 12 on June
25 to an eventual 8. It would also make changes in other
classifications, including the conversion of the four pipefit-
ters to machine repairmen B22 and a contemplated increase
among the machine repairmen B. (The total in the mainte-
nance department, according to the plan, would fall from
57 to 56.)
" At this hearing, Dancer explained that he had drawn inferences,
from questions put to him by the Board agent, that Wells had not
told the truth about two incidents in which Dancer had reprimanded
Wells (see Chron 6, supra) and about the nature of the justification
for his layoff
10 My findings as to this conversation are based, generally, on Wells'
version, as substantially corroborated by Dancer I do not credit Dancer's
additional testimony that, as to his telling lies to the Labor Board,
Wells said he knew they were lies and Dancer knew they were lies,
but the company would have to prove they were lies, that he had
a secret "bomb" or witness who could win the case, and that Wells
was going to "get" several people at the plant no matter how much
it cost
By now, it should be evident that I was not fully impressed by Wells
as a witness In a number of instances, supra, I have rejected certain
of his testimony as embellishments But, with respect to the statements
attributed to him, in the context of this conversation, I do credit Wells
As Judge Learned Hand put it in N.LR B. v Universal Camera Corp.,
179 F 2d 749, 754
It is no reason for refusing to accept everything that a witness
says, because you do not believe all of it, nothing is more common
in all kinds of judicial decisions than to believe some and not
all
The plan, as it was introduced into this record, contains an inked
correction which, if unexplained, would seriously reflect upon its authentic-
ity. I am satisfied that an arithmetical error was made when the plan
was first put to paper, that the correction, subsequently made, constitutes
a bona fide attempt to conform the document to its original design,
and that, in short, the exhibit, as corrected, is authentic
" See Chron 2, supra.
INLAND STEEL CONTAINER CO.
The basis for the determination as to future changes
was the amount of available work ahead, in Strickler's
and Watson's opinion. As for the allocation of eight electri-
cians , as compared with the seven who had worked regularly
at Menard, Strickler and Watson computed that the addi-
tional man would provide 2,000 additional hours, plus
available overtime, for electrical work.
It is clear, and I find, that the Strickler/ Watson manning
plan was not fixed and inflexible. In addition to the fact
no dates in the future were set for implementation, I
find that neither Strickler nor Watson ruled out changes
as a result of events to come. As a matter of fact, the
planned figure for machine repairmen B was subsequently
revised still further upward.
By the end of June, most if not all of the machinery
which was to be moved from the old plant had in fact
been moved. Only certain projects related to further auto-
mating (such as the completion of a "cascading" system
to avoid jam-ups on the conveyor belts) and "de-bugging"
remained.
The extra expenses involved in moving from Menard
to Alsip, from a practical standpoint, could not have been
absorbed in the routine monthly expenditure accounts,
whether processing or maintenance in nature . In the plan-
ning stages , major capital appropriations had been requested
and approved; and, thereafter, new capital accounts were
set up to which such expenses were charged Now, on
or about July 2, considering that, for all practical purposes,
the move was completed, Respondent closed out its capital
accounts related to the move, as of June 30.
At or about the same time , the company treasurer, in
a memorandum addressed to division officials, complained
of the Chicago plant's current "high maintenance costs"
and of its "pre-production expenses" thus far in 1968.
As for the latter, the memo noted, two-thirds of the June
costs ($96,000) were represented by "outside maintenance
expenses."
It was in July (as has been noted at Chron. 2, supra)
that Strickler mentioned to union representatives, in the
course of contract negotiations , that there was a possibility
of layoffs among the electricians and in the carpenter and
paint shops. On the other hand, there was no written
correspondence, either at this time or later in the year,
concerning any reduction in force.
In his monthly (August) report dated September 17,
the Chicago plant's accountant emphasized the drastic
increase for August over July ($3,400 to $55,600) of the
cost of maintenance labor; and he noted that the overtime
hours attributable to maintenance constituted 31 percent
of those worked in the whole plant.
The profit picture at the plant did not improve as the
summer waned . The monthly loss from August (through
November) ran between $150,000 and $200,000. The loss
was occasioned, I find, (1) by the lingering (but progressively
decreasing) costs of construction of the new plant, (2)
by the extra maintenance costs which accompanied the
(also decreasing) equipment installation , startup, and de-
bugging requirements , and (3) by the drop in productivity,
not so much because of the interruption by the moving
of machinery (a process which, to the extent possible,
was confined to weekends) but due rather to unresolved
problems arising out of the newness of certain equipment.
Beginning late in August, throughout September, and
into October, Strickler chaired a number of "budget meet-
ings" attended by upper officials of the plant and, one
by one, supervisors of the respective departments. The
topics of discussion were projected numbers of employees
and hours worked.
At the Menard plant, seven electricians had been regularly
employed. Prior to the actual move to Alsip, and in prepara-
tion for it, their number had increased to 12. This was
the number employed at the time of the move itself, and
the number still on board in October 1968.
In addition to utilizing its own electricians, Respondent,
throughout the startup period, had engaged the services
of Tri-City Electric Co., an electrical contractor. From
time to time during this period, from 30 to 40 of Tri-
City's electricians were at work on one or another project
at the new plant. Finally, by letter dated October 4, Respond-
ent notified Tri-City of the cancellation of various projects
upon which its electricians were working, effective immedi-
ately. Thereafter, the work remaining on the projects-
projects arising out of the installation and de-bugging of
processing equipment and conveyors-was assigned to one
or another of Respondent's own electricians. Two of these
projects were completed by the end of October; one was
finished on November 10; and the remaining one was
abandoned as being deemed (by Respondent's engineers)
impractical.
On October 12, one of Respondent's electricians was
discharged for cause. This left the I1 electricians who
were in Respondent's employ at the time of the layoffs
in question.
By memorandum dated November 1, 1968, Strickler
sought to explain to the vice president of operation "How
Budget Assumptions were Established." Among other
things, he told about the holding of daily performance
review meetings. My attention was specifically called by
Respondent to the following paragraph:
5. Manning and Man-Hours-More attempts will be
made to reduce manning to levels below budgeted
levels. Now that the agonies of the Alsip start are
behind us, overtime control has begun. Sunday double
time has been stopped except on rare occasions.
Attempts will be made to control overtime in all areas.
In all candor, I find that this three-page memo has slight
probative value herein. While I recognize that Respondent
had a "profit problem"-see infra-the language of this
document strikes me as that of an individual who, on
the one hand, seeks to reassure his superior that he is
"taking steps" and, on the other, is temporizing. For example
(referring to the quoted paragraph), the evidence herein
does not indicate that budgeted manning levels had been
achieved; what meaning should be given to an assertion
that more attempts would be made to reduce manning
to below-budgeted levels? And, contrary to the assertion,
Sunday double time had not been "stopped except on rare
occasions."
$ DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The plant accountant's October report to Strickler came
out on November 18.23 The report recited that "increased
material variances (the largest of the year) and higher
maintenance costs more than offset continued improvements
in labor costs" and that "maintenance labor and supplies
contributed most of the increase [in variable manufacturing
expenses]. . . . Most of the labor increase is due to three
more working days in the month plus the labor rate increase.
Maintenance hours worked increased from 11,819 to 13,366
but the average per working day (excluding Sundays) went
up only slightly-from 492 to 495."
On November 6, at the close of one of the daily production
meetings, Strickler asked Watson to step into his office.
Saying that the question of reducing maintenance costs
was a pressing one, he asked whether the electricians could
not now be cut back to 8 from the present complement
of 11. Watson said this was impossible and, pressed for
reasons, cited that, although a major project would be
completed that weekend, there was a substantial amount
of mopup and cleanup work connected with plant installa-
tions and de-bugging. Pressed further, he said he might
be able to spare (i.e., lay off) two, but not three, electricians.
The possibility of cutting overtime hours was not discussed
at this meeting-although it had often been discussed before.
Nor did the identities of electricians to be laid off enter
into the discussion.
Wells and Ward were laid off on the following Saturday,
under circumstances described at Chron. 9. Insofar as is
revealed by this record, these were the only layoffs effectuat-
ed at this time.
The operating losses referred to earlier "began to lessen
toward the end of [1968], but it was a serious condition."24
We have no evidence as to the 1969 profit picture.
According to a manning record prepared for this trial
by Respondent's accounting department,25 the total work
force at the Alsip plant-including top management, super-
visors, and clerical employees-numbered 428 at the begin-
ning of 1968. It slowly, and irregularly, fell to a low
of 329 in November, and the year closed with 332. I
assume that Strickler's oral testimony to the effect that
the entire complement fell "by 100" during the year from
"over 300" was intended to be an approximation of the
figures in this report. But Strickler also gave a parallel
figure with respect to October 21, 1969, a date not covered
by the above report: He testified that the plant complement
that day was "somewhere in the vicinity of 360." This
means that the complement had increased substantially
since the close of 1968.26
The accountant's report referred to above contains infor-
mation as to numbers of nonsupervisory maintenance
employees during 1968. It shows that their number fell
from 60 to 53 during 1968.37 But pinpointing is not assisted
by the exhibit, since it is unclear whether the figure given
for any month is that of employment on a representative
" Strickler testified he "discussed its contents" with the accountant
on or about November 5
" From testimony of Plant Superintendent Strickler Further details
are lacking
" Resp Exh 16
" I find, though, that reference to numbers of non-maintenance employ.
day of that month or is the average employment during
the month. For example, the figure for June is 55, whereas
the Strickler/Watson manning plan of June 25-supra-
shows 57 actually employed.
And there is still another set of Respondent's periodic
reports (not especially prepared for this hearing)" which
compound rather than dispel confusion. Throughout 1968-
and thereafter, in slightly different form-Strickler received
first weekly, then 4-weekly, reports prepared by the plant's
industrial engineering department. (Although these reports,
headed "Plant Manning," purported to show the number
of employees budgeted for and the actual number of employ-
ees working in each department during the period in ques-
tion, Strickler, according to his testimony, did not regard
them as valid or, consequently, as useful: The number
of "actuals," he said, tended to be understated because,
for example, there were not allowances for vacationers
and other absentees.) According to these reports the budget/
actual ratios and the variances from budget for the mainte-
nance department over a pertinent period were as follows:
As of 11/4/68-Budget 56-Actual 57-Overstaffed by 1
As of 11/11/68-Budget 56-Actual 55-Understaffed by 1
As of 11/18/68-Budget 56-Actual 51-Understaffed by 5
As of 12/2/68-Budget 56-Actual 51 -Understaffed by 5
As of 12/16/68-Budget 56-Actual 52-Understaffed by 4
As of 12/23/68-Budget 56-Actual 52-Understaffed by 4
As of 12/30/68-Budget 56-Actual 54-Understaffed by 2
As of 1/6/69-Budget 57-Actual 55-Understaffed by 2
As of 1/13/69-Budget 57-Actual 55-Understaffed by 2
As of 1/20/69-Budget 57-Actual 56-Understaffed by 1
As of 1/27/69-Budget 57-Actual 55-Understaffed by 2
As of 3/3/69-Budget 57-Actual 57-No variance
As of 3/10/69-Budget 57 -Actual 57-No variance
As of 3/17/69-Budget 57-Actual 58-Overstaffed by 1
As of 4/14/69-Budget 57-Actual 57-No variance
As of 5/19/69-Budget 57-Actual 49-Understaffed by 8
As of 6/16/69-Budget 57-Actual 57-No variance
As of 7/14/69-Budget 57-Actual 50-Understaffed by 8
As of 8/18/69-Budget 57-Actual 61-Overstaffed by 4
As of 9/15/69-Budget 57-Actual 62-Overstaffed by 5
As of 10/20/69-Budget 57-Actual 61-Overstaffed by 4
A comparison of the figures on the two sets of reports
(to the extent they cover overlapping periods) reveals that,
for November 1968, the accounting department reported
54 maintenance employees working while the engineering
department (for the weeks therein) reported 57, 55, and
51; and, for December 53 on the one hand, and 51, 52,
52, and 54 on the other.
ees is of slight relevance herein. According to the credible testimony,
the number of production employees used-dunng 1969, for example-
fluctuated upward and downward upon short notice It depended on
the available orders week by week, an extra shift or extra shifts could
be added (or subtracted) at will, without affecting the need for maintenance
employees, who worked all shifts in any event
" The same exhibit shows that the production/porter/guard total fell
from 313 to 234
11 G C Exh. 10(a)-(w).
INLAND STEEL CONTAINER CO
In order to round out the census figures, I here draw
together my findings as to the number of electricians
employed by Respondent. The regular complement at the
Menard plant had been seven. Toward the latter days
there, to meet the need to train for the move to the
new plant, the figure rose to 12, at which level it stayed,
through the move and until October 1968,29 at which time
a discharge reduced the figure to 11. Then, on November
9, Wells and Ward were laid off. The level thereupon
remained at nine until September 13, 1969, at which time
one electrician voluntarily quit.
There have been no hirings or recalls of electricians
since the layoffs.
As for the maintenance department other than electri-
cians, the record of accessions and terminations follows.
6/28/68 Painter Quit
7/1 Machine repairman B Hired
7/5 Tool crib attendant Quit
7/14 Machine repairman A Quit
7/21 Machine repairman A Hired
7/22 Machine repairman B Hired
7/31 Machine repairman A Retired
8/10 Machine repairman B Quit
8/19 2 Machine repairmen B Hired
8/26 Machine repairman B Hired
9/16 Machine repairman B Hired
9/21 Tool & Die maker Quit
9/27 Machine repairman B Discharged
9/30 Machine repairman B Quit
10/16 Machine repairman B Hired
10/30 Machine repairman B Quit
11/4 Machine repairman B Quit
11 /25 Tool & die maker Hired
12/2 Machine repairman B Hired
12/3 Machine repairman B Quit
1/3/69 Machine repairman B Hired
1/6 Machine repairman B Hired
1/15 Machine repairman B Hired
1/24 Carpenter Laid off
1/27 Machine repairman B Hired
1/31 Machine repairman B Discharged
(hired 1/3)
2/10 Machme repairman B Hired
3/3 Machine repairman B Hired
4/7 Machine repairman B Quit
4/15 Machine repairman B Discharged
4/25 2 Machme repairmen B Quit
5/5 Machine repairman B Hired
6/2 Machine repairman B Hired
6/23 Oiler Hired
7/12 Machine repairman B Quit
9
8/4 2 Machine repairmen B Quit
8/6 Machine repairman B Hired
8/11 Machine repairman B Hired
8/20 Oiler Quit
(hired 6/23)
8/22 Oiler Quit
9/2 Machme repairman B Quit
9/11 Oiler Discharged
(hired 8/20)
9/11 Oiler Hired
10/7 Oiler Transf.to
porter
10/29 Machine repairman B Quit
The hours worked, and the nature of those hours, loom
as important here as the number of workers. On the basis
of the credited testimony, I find that Respondent's electri-
cians at the Chicago plant were scheduled to work, and
did work, at least an average of 12 hours per day 6-
1/2 days per week (i.e., every other Sunday) at or about
Apn1 1968; six 10-hour days beginning in May; six 9-
hour days beginning in September; six 8-hour days beginning
early in 1969; and five 8-hour days starting during October
1969. During the same period, they worked, in addition
and on a voluntary basis, a number of "assigned" overtime
hours-i.e. extra hours on short notice, occasioned by
breakdowns and other emergencies.
A record prepared by the plant accountant demonstrates,
and I find, that the number of hours-regular and over-
time-worked by the electricians during the 11 months
following Wells' and Ward's layoffs was substantially below
that of the 11 preceding months.3° And close examination
of the record reveals that the turning-point, the date of
the most precipitous drop, was at or about early November.
An overtime "bulge" in January and February 1969 is
explained by the fact that a study of processing equipment
"jam" problems in the drum department resulted in a
major overhaul which meant taking equipment and process
lines out of service, work which was most feasibly under-
taken over weekends.
(The credible testimony reveals also that overtime hours,
of electricians as well as other maintenance employees,
decreased "drastically" at or about the time the instant
hearing was being held. This resulted from orders passed
down to supervision from Strickler.)
The total wage cost of all hours worked (regular, time-
and-a-half, and double-time) by the electricians roughly
accords with the profile of the number of hours worked:"
the 11 months prior to the layoffs-especially from January
through April-far exceeding that of the next 11 months
" It was during this period, as previously noted, that Tn-City's up-
to-30-or-40 electricians also performed services for Respondent.
'0 Regular, 15,000/19,500; overtime, 4,700/7,200 There is no break-
down as between time-and-a-half overtime and double-time (Sunday)
overtime
" All electricians got the same pay They received $3 64-1 /2 per
hour until August 1, 1968 In October, retroactive to August 1, they
:ach received a 28-cent increase
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The fact remains, however, that the electricians left after they regarded as an inadequate work force and that they
Wells and Ward were laid off, although in a lesser scale also expressed themselves in this respect.J2
than prior to the layoffs, have been working a substantial
number of overtime hours-scheduled and assigned-not
only in emergency situations but to fill in for electricians
absent due to vacations or other reasons.
The Alsip plant was built to produce the same products,
in about the same amount , as had been produced at Menard,
but there the resemblance ends Menard had been obsolete
and inefficient, its layout was faulty and its material flow
outdated; it was no longer "competitive." Alsip, on the
other hand, was a modern, efficient plant; although both
plants were automated, Alsip was much more so: it was
designed, for example, to equal the output of Menard
with one less major production line, and a substantial
number of other processing/manufacturing jobs were elimi-
nated by the substitution of mechanical devices.
I find that much, if not most, of the differential in
automation was achieved by means of additional electrical
control circuits, eyes, motors, and other electrically powered
devices, the maintenance of which called for the services
of electricians. (It was the installation of such equipment
which, during the move, required the services of an augment-
ed group of electricians employed by Respondent, plus
others furnished by an outside contractor.) And not only
were there more such devices at Alsip, they were, on
the whole, much more complicated and sophisticated.
*
The record is replete with testimony of discontent among
electricians concerning their working conditions. The discon-
tent centered itself particularly upon the number of days
and hours of work-either scheduled or assigned. Among
other things, the electricians resented Sunday work-
requests for volunteers to come in for such work were
often rejected, and management had to go "down the
list" with such requests-and they were unhappy about
having to work added hours as substitutes for electricians
out on vacations or for other reasons, a circumstance necessi-
tated by the fact that their numbers made no allowances
for such gaps.
This discontent, I find, evidenced itself both before and
after the layoffs of Wells Sand Ward, but I find that it
was greater after the layoffs. The testimony as to the
electricians' complaints made subsequent to November 9,
1968, far outweighed that of those made earlier. In the
words of one witness, " [The electricians' workload] was
more after [Wells and Ward] left, naturally. . . . We
had the same amount of work with less men."
I find that management was aware of the electricians'
discontent. I credit testimony to the effect that individual
electricians specifically called the attention of supervisors
to their gripe about overwork and the long workweek,
I find, indeed, that supervisors felt the pinch of what
*
E. Discussion-Conclusions
I have set forth the circumstances surrounding Wells'
and Ward's layoffs in extended detail because, after careful
consideration, I find the respective weights of parties' posi-
tions to be so close that the balance can be tipped by
a single element.
The General Counsel contends that the reason given
for Wells' layoff-lack of work-was pretextual; that he
was really laid off because he had engaged in or was
suspected of having engaged in certain protected activities:
the part he played in the circulation of the decertification
petition, his supposed involvement in the matter of the
Bucket Factory papers, and his seeking union office. As
background, the General Counsel introduced testimony
designed to demonstrate that Wells was regarded by supervi-
sors to be "a glutton for punishment" and was known
as one of an "unholy three," and that he was, or was
regarded by Respondent to be, a "complainer"; a thorn
in its side with respect to its employees' working conditions,
and a caustic critic of the labor organization with whom
Respondent dealt as agent of its employees, because, presum-
ably, that organization did not press hard enough for the
improvement of working conditions.
Ward, according to the General Counsel, was an innocent
victim of Respondent's determination to get rid of Wells;
having decided to use lack of work as a pretext to lay
Wells off, Respondent had to lay off Ward as well because
of the requirement in the collective-bargaining agreement
that selections for layoff inversely follow seniority.
In support of his thesis, the General Counsel questions
the plausibility, if not the very existence, of the basis
for Respondent's assigned reasons for its action. He regards
the timing as overwhelmingly suspicious, both by reason
of the surrounding circumstances (e.g., the belated contact
with Wells' previous employers and the precipitousness
of the termination) and by reason of the (alleged) admissions
of Respondent's agent most closely involved in the layoffs,
made immediately thereafter; assuming Respondent's
employment needs to be as pictured by Respondent at
this hearing, he questions the reasonability of Respondent's
responses thereto; and he points to the ( alleged) admission
of an agent of Respondent, made months after the layoff,
that-despite the preferential status Respondent assertedly
accords to Wells-Wells would never be recalled.
Respondent submits that the General Counsel's burden
has not been sustained by the required quantum of proof.
" Roberts, for example, received employees' complaints along this
line, and he voiced his own. According to his own testimony, he complained
about "tardy work"-i e., jobs not completed on schedule-and he "prob-
ably" complained , on occasion , about the shortage of electricians, among
others
i
INLAND STEEL CONTAINER CO
As for the circulation of the decertification petition,
Respondent denies (1) that it was aware of its existence
or (2) that, at any rate, it was opposed to the implications
of the movement. As for the Bucket Factory papers,
Respondent, conceding that its agents were curious about
the identity of their author, contends that, even if this
were the basis for Wells' termination, the action would
be for lawful cause rather than for an activity protected
by the Act, considering the contents of the papers. And,
finally, Respondent denies that its agents made the remarks
attributed to them which might show aversion to Wells'
seeking union office.
Likewise, Respondent disputes both the truth of the
General Counsel's "background" evidence and the meaning
he would attach to it. It denies that its agents made
statements tending to show animosity toward Wells' because
of his extracurricular activities, if any, in the plant. And
it contends that it has satisfactorily explained such "suspi-
cious" elements as the untimely inquiries sent former
employers and the without-advance-notice layoff action
simultaneously accorded to Wells and to Ward.
Affirmatively, Respondent contends that Wells and Ward
were laid off because the move was dictated by business
considerations. It argues that the evidence herein clearly
shows that there was a decrease in the work available
for electricians and that the layoffs were Respondent's
timely and proper response to the problem. Far from basing
the layoffs upon any real or suspected acts or attributes
of Wells-Respondent points out-it regards him as being
the first slated for recall should a vacancy occur among
the electricians.
I have found that Respondent, through an agent or
agents, was aware that Wells was involved in the circulation
of the decertification petition; suspected that he played
a part in the Bucket Factory affair; and knew that he
was making efforts to become union vice president. Without
hesitation, I would conclude that, if Respondent laid off
Wells and Ward because of any of these activities of Wells,
it thereby violated Section 8(a)(1) and (3) of the Act."
And, absent any other explantion, I would conclude, on
the available evidence here, that all three factors did play
a part in Respondent's actions.30
But it is the burden of the General Counsel to show,
by a preponderance of the evidence, that these activities,
or one or several of these activities, motivated Respondent
in its action, rather than the lack of work which is assigned
by Respondent as the basis for the layoffs.
In essence, the General Counsel has mounted a two-
pronged attack upon Respondent's explanation: He raises
questions as to the very existence of a need for layoffs
generally; and, assuming without conceding a need, he
questions nonetheless that Wells and Ward would have
been laid off when they were. But his basic position is
" Contrary to Respondent's contention, I find that, in context, the
Bucket Factory papers were a compendium of complaints about working
conditions at the Chicago plant, the compilation or circulation of which
is activity protected under the Act.
11
that, if Respondent had the profit-problem it claims to
have had, it was meeting the challenge with a peashooter.
It is not for me (even if I were able) to substitute
my business judgments for those of Respondent. The most
I can do is to examine the circumstances surrounding
the asserted business judgments to determine whether,
in the light of all these circumstances, they did in fact
exist.
A number of doubts immediately rear their heads here.
Have the discrepancies between the various records as
to numbers employed been satisfactorily explained? If the
maintenance department manning plan of June 25 represent-
ed an actual situation , why the delay in effectuation-
no one in the department was laid off before Wells and
Ward were-particularly in view of top management's
urgent pleas for economy which inundated Strickler's office?
Why layoff two men instead of cutting substantial overtime?
How can one reconcile the industrial engineering depart-
ment 's estimate of employment needs with the rest of
the picture here painted by Respondent? In determining
whether or not a need for employees (electricians) existed,
what weight should be given to complaints of employees/
supervisors about overwork/undermanning?
My estimate of the situation is that Respondent, during
most of 1968, did have a profit-problem and that top
management , having installed new plant management, exert-
ed pressures throughout the period to cut costs; and that
Plant Superintendent Strickler was caught between these
pressures and his desire to maintain an even course. I
believe that he hoped that the goals of the June 25 plan,
purposely left flexible, might be achieved by routine attri-
tion." Going into the latter half of the year, as the workload
decreased, he terminated the use of an outside contractor's
electricians, thereby augmenting the work of Respondent's
own. And, finally, as work projects gave out, he gave the
order which resulted in the layoffs. Subsequently, there
were no electrician replacements; and, assertedly, the two
on layoff status have preferential recall rights.
" This conclusion would be based upon the clear implication arising
from the facts heretofore found-Respondent's awareness that Wells was
involved in the circulation of the decertification petition, close on the
heels of his expressed opposition, on behalf of the maintenance department,
to the elimination of the classification of pipefitter, Respondent's suspicions
that Wells played a part in the Bucket Factory affair, a movement
clearly critical of and repugnant to Respondent, and Respondent's knowl-
edge that Wells was making efforts to become union vice president-
all viewed in the light of the facts that (I here find) Respondent did
regard Wells as a chronic complainer about working conditions, as a
caustic critic of a bargaining relationship with which Respondent was
satisfied, and, along with two other employees, as one of an "unholy
three " Nor would I accept Respondent's explanation of the belated
inquiries sent Wells' former employers, in view of the undue delay
(October 2 to 15) between the alleged occasion for the action and
the action itself, and in view of the fact that, the sending of the inquiries
having supposedly been motivated in part by certain discrepancies in
Wells' representations as to his work history, nothing further was done
despite the fact that the responses appeared to compound the discrepancies
(On the other hand, I perceive nothing suspicious about the timing
of the simultaneous notices of layoff given Wells and Ward, I accept
Respondent 's explanation )
" As a matter of fact, except with respect to the machine repairmen
B (who were to be increased in number) there were a number of unreplaced
voluntary quits.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This does not add up to an inherently implausible story.36
I cannot , on this record , reject Respondent 's defense.
In sum , I find and conclude that , although the matter
is not free from doubt , the General Counsel has not demon-
strated by a preponderance of the evidence that Respondent
laid off Raymond Wells and John Ward because of Wells'
activities protected by Section 7 of the Act or to encourage
or discourage membership in a labor organization.
Upon the foregoing factual findings and conclusions,
I come to the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Local 1422 is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has not engaged in any unfair labor prac-
tices as alleged in the complaint.
RECOMMENDED ORDER
I recommend that the complaint be dismissed in its
entirety.
J6 In the absence of cogent opposition , I accept Respondent 's explanation
(1) of the desirability of cutting the staff even though substantial overtime
work continued, (2) of the discrepancies between different company
records as to the numbers of individuals actually employed , t and (3)
of the apparent conflict between the staffing needs as reported by the
engineering department and the picture painted herein by Respondent As
for (I ), most machine overhauls were ordinarily performed over weekends by
electricians assigned to service these machines during the production week, a
necessity which could not be avoided by having more hands on board As for
(2) and (3), I am convinced that, rightly or wrongly, Strickler had no faith in
and did not use the industrial engineering department 's actual/ideal
employment figures because he was convinced that the basis for the figures
was erroneous
As for the manpower shortages which have apparently existed from
time to time in 1969, 1 am convinced , and I find, that , unrelated to
Wells' situation , Strickler, using his best business judgement, believed
that having employees work long hours is the appropriate way to run
this plant , and, when the actual number of electricians, late in 1969,
reached the figure for which he had planned, he was determined to
operate with that figure , come what may.