Metallic Building Co.

National Labor Relations Board - Board Decisions

Feb 29, 1952

98 N.L.R.B. 386 (N.L.R.B. 1952)

386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ConcLusIoNs of LAw
1. The Respondents Ben Weingart , Louis H. Boyar, and Aetna Construction,
Inc., are engaged in activities affecting commerce within the meaning of Section
2 (6) and ( 7) of the Act.
2. The Respondent Union , Local No. 300 , International Hod Carriers , Building
and Common Laborers Union of America , A. F. of L ., is a labor organization
within the meaning of Section 2 (5) of the Act.
3. By discriminating with respect to the hire and tenure of employment of
Wilbur F. Merrick , thereby encouraging membership in the Respondent Union,
Respondent Employers had engaged in and are engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
4. By interfering with , restraining , and coercing their employees in the exercise
of rights guaranteed by Section 7 of the Act, the Respondent Employers have
engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
5. By causing the Respondent Employers to discriminate against an employee
in violation of Section 8 (a) (3) of the Act, the Respondent Union has engaged
in and is engaging in unfair labor practices, within the meaning of Section 8 (b)
(2) of the Act.
6. By restraining and coercing employees in the exercise of rights guaranteed
by Section 7 of the Act, the Respondent Union has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (b) (1) (A ) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
[Recommendations omitted from publication in this volume.]
METALLIC BUILDING COMPANY (A PARTNERSHIP) and HUGO S. BAKER,
ET AL. Case No. 39-CA^59. February 09,195,0
Decision and Order
On March 20, 1950, Trial Examiner Hamilton Gardner issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices. Thereafter,
the Respondent and the General Counsel filed exceptions to the Inter-
mediate Report and supporting briefs.'
On June 13, 1950, the Board reopened the record and remanded the
case to the "trial Examiner for the limited purpose of a further hear-
ing to adduce additional evidence with regard to the commerce facts
involved. On December 26, 1951, a stipulation by the parties, con-
1 The Respondent ' s request for oral argument is hereby denied because the record and
the exceptions and briefs , in our opinion, adequately present the issues and the positions
of the parties.
98 NLRB No. 64.
METALLIC BUILDING COMPANY 387
taining the information required in the Board Order of June 13, 1950,
was filed with the Board.2 This stipulation is hereby made a part of
the record.
-Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Murdock and Styles].
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby af-
firmed. The Board has considered the Intermediate Report, the ex-
ceptions and briefs, the commerce stipulation of the parties, and the
entire record in the case, and hereby adopts the findings,3 conclusions,4
and recommendations of the Trial Examiner, with the following addi-
tions and modifications :
1. On the entire record and the stipulation of the parties, the Board
finds that the Respondent is engaged in commerce within the meaning
of the Act. The Respondent is a copartnership presently engaged in
the fabrication of steel and other building materials used in the erec-
tion of industrial structures. Among the Respondent's customers is
Brown and Root, Inc., which has offices in Houston, Texas. During
the calendar year 1949, the Respondent's sales to Brown and Root were
in excess of $50,000. The Board has already found that Brown and
Root is engaged in commerce within the meaning of the Act.'
The Board has announced in recent decisions that it would exercise
jurisdiction over those enterprises which affect commerce by virtue of
the fact that they furnish goods or services necessary to the operation
of other employers engaged in commerce, without regard to other
factors, where such goods or services are valued at $50,000 per annum
or more, and are sold to firms in certain categories, including those
"engaged in producing or handling goods destined for out-of-State
shipment, or performing services out of State, in the value of $25,000
per annum or more." 6 In the instant case, it is stipulated that during
' While the remand Order provided for a further hearing and supplemental findings of
fact, the stipulation contains the relevant facts, and thus obviates the need for a Supple-
mental Intermediate Report.
' Contrary to the Respondent ' s contention, we agree with the Trial Examiner ' s finding
that Houston Metal Trades Council, AFL, is a labor organization within the meaning of
Section 2 (5) of the Act. In addition to the cases cited by the Trial Examiner , see Olin
Industries , Winchester Repeating Arms Company Division, 85 NLRB 396 ; Dun & Brad-
street, Inc, 80 NLRB 56 ; J. S. Abercrombie Company, 83 NLRB 524.
" The Intermediate Report contains a misstatement of fact which does not affect the
Trial Examiner ' s ultimate conclusions or our concurrence therein Accordingly , we note
the following correction : The Trial Examiner states that Baker was never told that one
of the reasons for his discharge was that he talked too much. The record discloses that
Baker testified that one of the last statements Sternberg made to him when he was dis-
charged was that "the reason I fired you is because you talk too much." -
5 77 NLRB 1136.
'Hollow Tree Lumber Company , 91 NLRB 635; Walter G . Brix, Inc, 96 NLRB 519;
Stoll Lumber Company, 96 NLRB 682.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the year 1949, Brown and Root produced more than $25,000 worth of
goods for out-of-State shipment. Furthermore, the Respondent's
sales to Brown and Root during the same period exceeded the $50,000
requirement. Accordingly, on this basis alone, under our policy we
find in agreement with the Trial Examiner that it would effectuate
the purposes of the Act to assume jurisdiction in this case.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Metallic Build-
ing Company, Houston, Texas, and its officers, agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Houston Metal Trades Council,
AFL, or in any other labor organization of its employees, by discrimi-
natorily discharging, refusing to reinstate, or by discriminating in any
other manner in regard to their hire or tenure of employment, or any
term or condition of employment, except to the extent permitted by
Section 8 (a) (3) of the Act.
(b) Interrogating its employees concerning their union affiliations,
activities, or sympathies, or in any other manner interfering with,
restraining, or coercing its employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist Hous-
ton Metal Trades Council, AFL, or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities, for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of the
Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Hugo S. Baker immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority or other rights and privileges.
(b) Make whole Hugo S. Baker and L. B. Hightower for any loss
of pay they may have suffered by reason of the Respondent's discrimi-
nation against them, in the manner set forth in the section of the
Intermediate Report entitled "The Remedy."
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
METALLIC BUILDING COMPANY 389
ords necessary to analyze the amounts of back pay due and the right of
reinstatement under the terms of this Order, which shall be computed
in accordance with.the Board's-customary formula?
(d) Post at its plant in Houston, Texas, copies of the notice at-
tached hereto marked "Appendix A." 8 Copies of said notice, to be
furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof and maintained
by it for a period of sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER' ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent discriminated in
regard to the hire and tenure of employment of Benjamin E. Chester,
George H. Bonner, and Jesse L. Botello.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in HOUSTON METAL
TRADES COUNCIL, AFL, or in any other labor organization of our
employees, by discharging or refusing to reinstate any of our em-
ployees or in any other manner discriminating in regard to their
hire or tenure of employment, or any term or condition of their
employment.
WE WILL NOT interrogate our employees concerning their union
affiliations, activities, or sympathies or in any other manner inter-
fere with, restrain, or coerce our employees in the exercise of their
right to self-organization, to form labor organizations, to join
or assist HOUSTON METAL TRADES COUNCIL, AFL, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities
F. W. Woolworth Company, 90 NLRB 289. ,
In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
998666-vol . 98-53-26
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
WE WILL offer to-the employee named below immediate and full
reinstatement to his former or substantially equivalent position
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make him whole for any loss of pay suf-
fered as a result of the discrimination against hint :
Hugo S. Baker -
WE WILL offer to make the employee named below whole for any
loss of pay suffered as a result of the discrimination against him :
him :
L. B. Hightower
All our employees are free to become or remain members of the
above-named- union, or any other labor organization, or to refrain
from such activities except to the extent that such right may be af-
fected by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8 (a) (3) of
the Act. We will not discriminate in regard to hire or tenure of em-
ployment against any employees because of membership in or activity
on behalf of any such labor organization.
METALLIC BUILDING COMPANY ( a PARTNERSHIP),
Employer.
•
(Title ) ( Representative)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
These proceedings arose upon a charge filed on June 14, 1949, by Hugo S.
Baker, on behalf of himself and Benjamin E. Chester, L. B. Hightower, Jesse L.
Botello, and George H. Bonner against Metallic Building Company, a copartner-
ship. Upon the basis of such charge, the General Counsel of the National Labor
Relations Board, acting through the Regional Director for the Sixteenth Region
(Fort Worth, Texas), issued a complaint against the named Company on Sep-
tember 8, 19491 This alleged that the Company had engaged in and was engag-
ing in unfair labor practices affecting commerce within the meaning of Section
8 (a) (1) and 8 (a) (3) and Section 2 (6) and (7) of the Labor-Management
i References in this Report will be : Metallic Building Company as the Respondent or the
Company ; the General Counsel and his representative at the hearing as the General
Counsel ; Houston Metallic Trades Council, AFL , as the Union ; the National Labor
Relations Board as the Board ; the Labor Management Relations Act' as the Act. - .
METALLIC BUILDING COMPANY 391
relations Act, (61 Stat . 136). Copies of the complaint and of the charge upon
which it was based , together with notice of hearing thereon , were duly served
upon the Respondent and the charging parties.
The complaint alleged in substance that the Respondent engaged in unfair
labor practices : ( 1) On January 25, 1949, by discharging Hugo S. Baker and on
January 26, 1949, by discharging Benjamin E. Chester , L. B. Hightower, Jesse
L. Botello , and George H. Bonner and by refusing to reinstate them, except that
the Respondent reinstated L. B. Hightower on or about March 4, 1949 ; and (2)
on and since January 24, 1949, by interfering with, restraining , and coercing its
employees concerning their union affiliations and threatening and warning them
to refrain from union activities . Thereby, it alleged , the Respondent had
deprived its employees of the exercise of the rights guaranteed in Section 7 of
the Act.
The Respondent filed an answer to the complaint which , in substance and
effect, constituted a general and specific denial , but alleged affirmatively that it
discharged the six named employees "for good and sufficient cause," and admitted
the reinstatement of Hightower . Simultaneously with its answer , the Respond-
ent filed a "Motion for a More Definite Statement" demanding the names of its
employees against whom it is alleged to have violated Section 8 ( a) (1).
Pursuant to notice , a hearing was held in Houston , Texas, from September 20
through 29, 1949, before Hamilton Gardner, the undersigned Trial Examiner,
duly designated by the Chief Trial Examiner . At this hearing two of the
charging parties, Jesse L. Botello and George H. Bonner , were not present and no
proof was adduced concerning the facts of their discharge as alleged .in the
complaint. On the completion of the General Counsel's case in chief and again
at the conclusion of the hearing, counsel for the Respondent moved to dismiss
the complaint as to Botello and Bonner . The Trial Examiner took these
motions under advisement . They are now denied . On his part the General
Counsel affirmed in open hearing that he had endeavored to locate Botello and
Bonner and had not been able to do so. At the end of the hearing, the General
Counsel stated for the record that if he were unable to locate these two men
before October 25 , 1949, he would move to dismiss the case as to them, without
prejudice.
On October 25, 1949, the General Counsel filed a telegraphic application with
the Trial Examiner to reopen the hearing for the purpose of presenting proof as
to the discharge of Botello and Bonner and alleged that they were presently
available . Counsel for the Respondent resisted the motion . On November 21,
1949, the undersigned signed and entered an order reopening the hearing for
the purpose mentioned and set December 19, 1949, at Houston, Texas, as the date
and place of its reconvening . Thereupon counsel for the Respondent filed a
motion and supplemental motion to set aside the order of November 21, 1949.
Pursuant to such order the undersigned reopened and reconvened the hearing at
Houston, Texas , on December 19, 1949. The motion and supplemental motion of
the Respondent, mentioned above, were argued at length, considered by the
undersigned , and denied . Thereupon the hearing continued through December
19 and 20, 1949.
In their supplemental brief counsel for the Respondent present the argument
that the Trial Examiner committed error in denying their motions to set aside
the order of November 21, 1949, which reopened the' hearing. Cases from
several States are cited . But all these are interpretations of local statutes
dealing with motions for a new trial . In my opinion the present situation is
quite different . Section 203 .35 of -the Board's Rules and Regulations reads in
part:
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The trial examiner shall have authority, with respect to cases assigned
to him, between the time he is designated and transfer of the case to the
Board, subject to the Rules and Regulations of the Board and within its
powers : -
(h) . .. and to order hearings reopened prior to issuance of intermediate
reports (recommended decisions),
No conditions precedent to the issuance of such orders are otherwise enumer-
ated, nor has any decision of the Board applicable to the point been found. I
regard this contention of counsel as untenable.
At both phases of the hearing the General Counsel and the Respondent were
represented by counsel. and the Union by an authorized representative. Full
opportunity was afforded all parties to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. During the course
of the hearing, at the ending of the case in chief of the General Counsel, and at
the conclusion of the introduction of evidence, both the General Counsel and,the
Respondent made various motions as to the pleadings and the evidence (too
numerous to mention in the limited space in this Report). Some of these were
taken under advisement by the Trial Examiner. Except as such motions are
granted as made or as modified in this Report, they are hereby denied. At the
end of the hearing the undersigned granted a motion of the General Counsel, to
which no objection was made, to amend the pleadings in minor matters to con-
form to the proof.
Oral arguments were made at the beginning and at the end of the hearing by
both counsel. The parties were advised of their right to file proposed findings
of fact, conclusions of law, and briefs. The Respondent submitted a brief and a
supplemental brief. The General Counsel filed no brief.
On or about December 28, 1949, the Respondent filed its motion to reopen the
hearing again. An accompanying affidavit set forth that Jesse L. Botello, a
charging party and witness, had been convicted of forgery in a Texas court on
August 18, 1941. On January 27,19-50, the General Counsel filed a written state-
ment that the facts stated in the affidavit might be considered by the Trial
Examiner as true and correct. Accordingly on February 15, 1950, the under-
signed signed and entered an order denying the Respondent's motion to reopen
the hearing for the second time.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS of FACT
I 111E RUSI1Ehs OF' THE RESI-ONDENT
Metallic Building Company is a copartnership consisting of Brinkley B. Brown,
C R McDaniels , and Gilbert Leach , with its office and plant at Houston, Texas.
It has operated for about 2 years and employs approximately 60 people. Its
business consists of the manufacture , sale. erection , and distribution of steel
industrial buildings. Primarily the function of its Houston plant is to fabricate
steel and other building materials which go into the erection of industrial struc-
tures. It does not manufacture this steel and other materials but purchases
them, chiefly from warehousemen , wholesalers, brokers, and agents in Houston.
It also buys and sells a small amount of building materials without processing
it. The record indicates that-the steel , corrugated iron, asbestos , window sashes,
ventilators, paints , tools, welding machines and accessories , and other similar
materials used by the Company in its fabricating processes are manufactured
METALLIC BUILDING COMPANY 393
in States other than Texas, shipped to the middlemen mentioned in Houston and
sold by them to the Company. A minor proportion of such materials is purchased
by the Respondent directly from manufacturers outside of Texas. Total pur-
chases for 1948 were $803,900.82. Of these 80.38 percent was made in Texas and
19.62 percent in outside States. Total sales in 1948 equalled $1,136,181.79. The
evidence does not show the proportion of such sales made in Texas as compared
with those in other States . But numerous purchasers from the Company are
designated which are engaged in interstate commerce and proof was presented
that an undesignated proportion of completed fabricating jobs was shipped from
Houston to other States and in at least one instance to a foreign country.
The Respondent changed the nature of its business somewhat on January 1,
1949. Therefore it had erected industrial buildings from its fabricated mate-
rials. But on that date it went out of the erection business and confined itself
to fabricating exclusively except for the small amount of sales of building mate-
rials already mentioned. Since January 1, 1949, the Company has itself made
no shipments in interstate commerce. Its completed fabricating jobs are deliv-
ered-at its Houston plant to purchasers, whether contractors or owners of the
industrial buildings. From January 1, 1949, to June 30, purchases of raw mate-
rials-were 97.27 percent in Texas and 2.73 percent elsewhere; equipment pur-
chases were 46.52 percent in Texas and 51.48 percent from other States ; and total
purchases were 97.07 percent in Texas and 2.93 percent outside of that State.
The exact amounts in dollars do not appear. Evidence presented showed that a
proportion both of the raw materials and equipment so bought were originally
manufactured outside of Texas. What that exact proportion is does not appear
in the proof. As to sales in the first 6 months of 1949, the record is even less
satisfactory. It is undisputed that the Company sold an unspecified number of
fabricated buildings to contractors to be erected eventually in States other than
Texas. In one specific instance a sale of $234 was made to a company in Louisi-
ana. Neither exact amounts nor proportions were proved otherwise.
In their brief, counsel for the Respondent contend that due to the change in
type of business on January 1, 1949, and to the fact that the unfair labor prac-
tices complained about all occurred in 1949, the data concerning the Company's
business in 1948 should not be considered. Counsel cite no Board decisions on
this particular point nor have been found. As against this rather limited
contention, there remains the unchallenged, almost universal practice of the
Board in such cases to receive evidence of the employer' s business extending
back to a year before the alleged unfair labor practices. In the instant case
there exist special reasons for doing so. In the first place the fabricating part
of the Respondent's business continued on into 1949; only the erecting phase
was dropped. Secondly, it is a fair inference that the fabricating phase was
not diminished in 1949 from the 1948 status. It is true that neither party prof-
fered any data as to the relative proportions of the fabricating activities to
the erecting phase of the Company in 1948. But on the same point the record
is silent as to any reduction of maintenance force or managerial staff in 1949
because of the changeover. Finally the unfair labor practices complained of
all occurred in January 1949, which was the first month under the new method
of operation, thus leaving only an unappreciable period of history to consider,
if counsel's argument be accepted. I cannot concur in this contention. But
even if it might be granted, there still remains a substantial body of proof re-
lating to 1949 which points to interstate commerce.
On the over-all question of jurisdiction Respondent's counsel urge in their
brief that "the Trial Examiner should assert his discretion to refuse jurisdic-
tion . . . for the reason that the business of Respondent is essentially local, and
394 DECISIONS OF NATIONAL LABOR --RELATIONS BOARD
it would not effectuate the purposes of the Act to assert jurisdiction." In sup-
port of this thesis counsel cite 18 Board decisions where jurisdiction was re-
fused. Only 2 2 of the cited cases, however, deal with a business substantially
similar to that of the Respondent. Counsel assert that "it is difficult to analyze
these decisions. No set formula can be defined by which an employer will know
whether or not the Board will assert jurisdiction over his business."
The following tabulation of cases deals with types of manufacturing busi-
nesses the same as the Respondent's or very similar to it. The list is not all-
inclusive.
Title Typs of operations
Amount I Percent
Efficient Tool & Die Co , 79
NLRB 170.
Underwood Machinery Co,
79 NLRB 177
Binns Passaic Iron & Brass
Foundry, 77 NLRB 60
Johnston Mfg Co , 80 NLRB
084.
All Metal Pickling Corp, 85
NLRB 857.
Tools and dies -__--___
Machinery ____________
Iron and semisteel
castings.
Valves -----------
Removal of scale from
steel
Inflow
$100, 000
25, 000
22,163
50, 000
4, 000
50
30
50
2
$10, 000
2, 500
Percent
5
3, 500
(Customers included corporations doing a large scale interstate business)
Decision
on juris-
diction
Asserted
Do
Do
Do
Do5
Unique Ventilation Co, 75 Sheet metal novelties- ---------- -------- $42, 600 53 Asserted
NLRB 325.
Mississippi Tank Co, 82 Tanks ----------------- $50,000 100 2,000 2 Do
NLRB 1234.
U. S Trailer Mfg. Co, 82 Trailers--------------- 2,500 10 25,000 25 Do
NLRB 99.
(But see, inter alit, the following cases, contra )
abilan Iron & Machine Co , -Machine shop repairs $6,000 20 __________ ________ Refused
80 NLRB 820. and fabrication.
ower Tool and Die Co, 85 Tools anddies -------- 10,875 75 $53,200 95 Do
NLRB 127.
dvance Welding Works, 81 Tanks_________________ 6,180 6 1,900 1 Do
NLRB 199.
Crew Machine Products Co , Machine parts --------- 19,644 66 2,115 3 Do
85 NLRB 129.
o
T
A
S
As compared to this tabulation of decisions , several distinctive elements
stand out in the case at bar. The first is the volume of business of the Re-
spondent both in purchases and sales . They exceed corresponding figures in
all the cited cases, whether jurisdiction was asserted or rejected. Nearly all
of the equipment and raw materials bought by the Company were manufac-
tured out of Texas, even though purchased from local Houston dealers. Cor-
respondingly a substantial part of the buildings fabricated in Houston were
eventually erected in States other-than Texas. These statements apply both
to 1948 and 1949. The second characteristic is that part of the Respondent's
sales were to purchasers admittedly engaged in interstate commerce. Finally
the Respondent, under the cases, can hardly be denominated a purely local
business. Raw material and equipment manufactured elsewhere flowed into
Texas, were fabricated at the Houston plant, and in substantial part moved
Outflow
Amount
2 Advance Welding Worka, 81 NLRB 199 ; Gabilan Iron and Machine Company, SO
NLRB 820.
METALLIC BUILDING COMPANY 395
into other States. I am of the opinion that it would effectuate the purpose
of the Act to assert jurisdiction in this case. •
Accordingly, I find that the Respondent is engaged in commerce within the
meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
While the charges in the instant case were filed by five discharged employees
of the Respondent, the basic facts involved a labor union. This was the Hous-
ton Metal Trades Council, AFL. The complaint alleges it is a labor organi-
zation within the meaning of Section 2 (5) of the Act. The Respondent's
answer denies this allegation. In their-brief counsel for the Respondent
earnestly support such denial.
Testimony concerning the organization, functions, and membership of Houston
Metal Trades Council, AFL, was presented by Walter D. Wells, presently and
for several years previously, the secretary of the Council. It was not con-
troverted. According to the constitution of the Counci,, which is in evidence :
Membership in this organization shall be composed of correlated crafts
of the Metal Trades Department of the American Federation of Labor and
kindred organizations affiliated with the American Federation of Labor.
At the time of the hearing these were the constituent union members: (1)
boilermakers, (2) pipefitters, (3) electricians, (4) carpenters, (5) sheet metal
workers, (6) three locals of operating engineers, (7) teamsters, (8) hodcarriers
and common laborers, (9) painters, and (10) sign and pictorial painters. Each
of these member unions elects or appoints delegates to the Council. No in-
dividual union member belongs to the Council: Employees of a plant in the
Houston area may belong to the particular local union of his craft, which
in turn sends representatives to the Council. Among its other functions the
Council acts as bargaining agent in collective negotiations for its member
unions and for others seeking union recognition. In the present case it had
filed a petition with- the Board for a representation election in the Respondent's
plant, which, however, was withdrawn when the charges of unfair labor
practices were filed.
In short the contention of the Respondent is that, since individual employees
cannot become members of the Council, it is not empowered under the Act to
represent them in collective bargaining.
The Board has consistently held to the contrary. Local or county union
councils with the same setup as the Houston Metal Trades Council, AFL, have
been uniformly held to be recognized as labor organizations under the Act.
The following Board decisions in unfair labor practice cases (not including any
representation cases), illustrate the rule: Denver Building and Construction
Trades Council, at al. (Grauman Company);' Building and Construction
Trades Council of Orange County and Orange County District Council of Car-
penters; ' Building and Construction Trades Council of Pittsburgh and Car-
penters District Council of Pittsburgh, et al. (Petredis) ;' and Los Angeles
Building and Construction Trades Council, AFL at al. (International Associa-
tion of Machinists) e
Accordingly I find that Houston Metal Trades Council, AFL, is a labor organi-
zation within the meaning of Section 2 (5) of the Act.
3 87 NLRB 755.
4 Lumber and Sawmill Workers Union, et al . (Santa Ana Lumber Company), 87 NLRB
937.
85 NLRB 241.
6 83 NLRB 477.
396 DECISIONS OF NATIONAL LABOR RELATIONS ' BOARD
III. THE UNFAIR LABOR PRACTICES
A' The over-all background
1. Identity of persons involved
It will be helpful to identify the actors participating in the events pertinent
to the issues in this case.
a. The discharged employees
The dischargees herein were Hugo S. Baker, Benjamin E. Chester, L. B. High-
tower, Jesse L. Botello, and George H. Bonner. Baker was fired on January 25,
1949; the others on the following day.
b. Respondent
For the Metallic Building Company Brinkley B. Brown was general manager ;
C. R. McDaniels, chief engineer; and Gilbert Leach, sales manager. These were
the three copartners copstituting the firm. Only Brown testified. Thomas E.
Sternberg acted as superintendent of plant. The connection of other witnesses
with the Respondent will be discussed in considering their testimony.
c. Union
Walter D. Wells, a witness for the General Counsel, was secretary of Houston
Metal Trades Council, AFL.
2. Union drive
The attempt to unionize the Respondent's plant was limited to a period of
less than 2 weeks in the latter part of January 1949. Primarily it was the
effort of Hugo S. Baker, one of the five men discharged, and will be discussed in
that connection. No union meetings were held and no contacts with the
Company either as to collective bargaining were attempted
B. Discriminatory discharges
The complaint alleges that the Respondent violated Section 8 (a) (3) of the
Act by discharging the five men mentioned on January 25 and 26, 1949, "for the
reason that they joined or assisted the Union or engaged in other concerted
activities for the purpose of collective bargaining or other mutual aid or
protection" and refused to reinstate them. The Respondent answered that they
were discharged "for good and sufficient cause" or voluntarily quit. Inasmuch
as the circumstances surrounding the discharge of each man differed from the
others, they will be discussed separately.
1. Hugo S. Baker
a. The dischargee
Baker, one of the complainants, was employed by the Respondent as a welder
on January 10, 1949, and discharged on January 25. Omitting Saturdays and
Sundays, he worked 111/2 days only. His experience in welding extended back
to 1923.
b. Baker's union activities
That Baker assumed the lead in the effort to unionize the Respondent's plant
and was by far the most active employee in that campaign was not disputed.
His own testimony to that effect was fully corroborated by two witnesses for
the General Counsel and seven witnesses for the Respondent.
METALLIC BUILDING COMPANY 397
Baker testified that a few days after he started to work for the Company he
was approached by several of his fellow employees as to the necessary steps to
take in order to organize a union. Substantial proof is lacking that Baker
made the initial moves himself. But he very readily fell in with the over-all
idea and telephoned to Walter D. Wells, secretary of the Houston Metal Trades
Council, AFL, whom he had previously known, and requested that the latter
send him some application cards. In return Wells forwarded him 50 such cards.
On direct examination Baker asserted this request was probably made on
Wednesday, January 12, 1949, and that he received the cards on the following
Friday. But on cross- and redirect examination he admitted the date was
probably 1 week later, on Wednesday, January 19. This is likely correct because
by stipulation all the cards signed were dated January 21 or later. On Friday,
January 21, Baker began the distribution of cards. Some were handed to mem-
bers of a group at lunch time ; most others he delivered to employees directly
during working hours, and in several instances other employees received several
cards with the request that they be handed on Cases in the last category were
J. L. Botello, Howard E. Tate, Carl R. King, C. D. Hefner, and Ed Cain. The
last two were brothers-in-law of Sternberg, plant superintendent. Both Baker
and Hefner testified that the brothers- in-law's passing of the cards might be less
likely to draw suspicion. All agreed the campaign should be kept as secret as
possible. Some of the men who were supposed to pass out cards did not do so
and a number of refusals were encountered. By Tuesday, January 25, Baker
had received 23 signed applications which he transmitted to Wells of the Union.
c. Respondent's knowledge of Baker's union activities
Testimony concerning this matter was conflicting It is not disputed, however,
that when Baker was hired by Sternberg on January 10, 1949, he told the latter
that he belonged to a union. According to Baker, he had a conversation with
Sternberg on the reason for his discharge about noon of January 25 while they
were on the way to the company office to pick up Baker's final pay check when
he was fired. Baker asserted that Sternberg then said:
"I think that was a ______ ______ thing to do." I said, "What?" He
said, "Trying to organize this plant and get a union in here." I said, "Well,
I don't think so. When I came here I had no intentions of doing anything
like that. It never crossed my mind. But these boys approached me,
and knew I was a union man and asked me how about seeing if we could
get the information to start." And he said, "I don't believe that."
Sternberg denied making any such statement. He further insisted that he
never knew of any union activity in the plant until he was told about it by
Botello on the afternoon of January 26 after the latter had been fired. As
against that is the testimony of E. G. Kelly, a witness for the Respondent, who
testified that a short time before the first discharge he found a union application
card in his pocket and "might have" told Sternberg and definitely did tell
Brown, manager, about it. Moreover, Sternberg admitted having talked to
Hightower, before the latter was discharged. Hightower wanted higher pay
and said he would join the Union if it was not forthcoming. Sternberg also
made some remarks about Hightower being the new steward of the Union. He
explained that the remarks about the steward were made "jokingly " As will
be pointed out later in the Report (under consideration of Section 8 (a) (1) ),
Sternberg discussed the Union with several employees before the date of Baker's
discharge. Both Sternberg and his brother-in-law, Hefner, testified that the
latter never disclosed anything about the union drive until after Baker's
discharge. No proof was adduced to the contrary.
398 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
On the question of credibility in the contradiction between Baker and Sternberg
I accept Baker 's version and similarly accept the remaining testimony of
Sternberg 's knowledge of union activities in the plant . Accordingly I find that
the Respondent was informed of Baker's activities on behalf of the Union.
d. Respondent 's defense of "good and sufficient cause"
In the opening statement of counsel and by the evidence adduced the Respond-
ent sought to prove that Baker was discharged because of inefficient welding and
of talking too much during working hours. Sternberg, plant superintendent,
gave the reason as "for poor workmanship, talking too much on the job."
The position of counsel was that they did not challenge Baker's experience and
ability as a welder generally, but that his welding performance for the Respondent
was unsatisfactory.
The evidence as to the efficiency of Baker's welding work, offered by both
parties, was extensive, largely technical, and generally contradictory. Five
witnesses, including Baker, for the General Counsel and 13 witnesses for the
Respondent, testified concerning it at greater or lesser length. Several of the
Respondent's witnesses, according to their own statements, had little oppor-
tunity and less reason to observe Baker's work. Some witnesses on both sides
demonstrated only questionable capacity to pass judgment on the subject.
It would serve no useful purpose to detail this mass of proof. Attention should
be called, however, to the testimony of Williams for the Respondent. He stated
that at the request of Fritzsching, a "layout" man, he gave a demonstration of
proper welding to Baker and then asked Baker to make a weld in the same
fashion which he did. Kelly, another "layout man," and Fritzsching were present,
according to the witness. On cross-examination Williams admitted that he had
not informed Baker of the purpose of his demonstration ; that he had not asked
Baker to make an imitative weld ; and that in fact Baker did not do so. Kelly,
Respondent's witness, gave no testimony concerning the demonstration. Baker
denied that such an incident ever occurred. Neither Williams, Kelly, nor
Fritzsching made any comment to Baker about this demonstration later, nor
did they ever point out any bad welding to Baker, although they all claimed
to have seen some. Fritzsching and Williams testified they reported Baker's
inferior workmanship to Sternbeig. The latter asserted as a witness that he
had observed several bad welds by Baker, but had never said anything to him
about it. On the whole I credit the testimony of the General Counsel's witnesses
in this disputed area.
The most significant fact about all this testimony concerning Baker's alleged
poor welding was that neither Sternberg, plant superintendent, nor any of the
men under him, ever called Baker's attention to defects in his welding. The
record is silent that Baker was ever criticized or reprimanded on account
of his work. Not one such word was ever said to him. When Baker was
discharged on January 25, 1949, Sternberg told him the reason was that he
was "not satisfactory." Notwithstanding all this purported inefficiency by
Baker , he was assigned on the morning of his discharge to do welding on trusses
for the Weingarten building, which Sternberg admitted was a "very important
job."
In view of the foregoing I find that Baker was not discharged on account of
inferior workmanship.
The second reason for Baker 's discharge assigned by the Respondent was that
lie talked too much during working hours. A succession of 11 witnesses
testified that they had observed him talking to other employees while on the job.
The length and frequency of such conversations varied with the several
METALLIC BUILDING COMPANY 399
witnesses. But each one, when interrogated on the matter, admitted that
he too talked on the job to some extent . All testified that they had not heard
of any company rule against such conversations. The testimony showed that
when 2 men were teamed together their work required them to converse with
each other, and that there were occasional idle periods. Sternberg admitted that
a certain amount of such talk was necessary to carry the shop work forward
and that there was no rule against it. Baker admitted talking to his fellow
workmen occasionally, including the subject of the Union, but denied that such
discussions were extensive or that they interfered with his work. He also
testified that at no time was he ever criticized or warned that he talked too
much on the job. Nor was that ever stated to him as a ground for his discharge.
I find that Baker's discharge was not due in part or at all to his talking on-
the job.
e. Facts of discharge
During the noon period while Baker was eating his lunch with several employees
on Tuesday, January 25, 1949, Sternberg came to him and told him to accompany
the former to the office. While en route, the conversation concerning the Union
previously discussed occurred. Upon arrival at the office Baker observed that
a clerk was already making out his check. Sternberg thereupon told Baker
he was fired because he was "unsatisfactory." Baker never applied for rein-
statement nor did the Respondent offer to reemploy him.
f: Discrimination for union activities
It is clear from the recital of facts set forth above that Baker did engage in
union activities while employed by the Respondent and that the latter knew
of such course of conduct by him. It is equally apparent that his alleged
inefficiency and talking on the job were not the real reasons for his discharge,
but only a subterfuge . What actually motivated the Respondent in firing Baker
was the union drive in its plant which Baker spearheaded . I find that the
proof shows such discharge to be discriminatory under the Act.
This rule has long been applied, both by the Board and the Federal courts.
A recent case from the I+ourth Circuit is illustrative.?
Conclusion
I find that the Respondent, by discharging Hugo S. Baker under the circum-
stances obtaining in this case, violated 'Section 8 (a) (3) of the Act.
2. L. B. Hightower
Hightower's testimony indicated that he had worked for the Respondent
31/2 years. In January 1949, he was classified as a nonspecialist laborer and
did "everything around there, anything that comes up, no special job." At the
time of the hearing he was residing at the home of Brinkley B. Brown, manager
of the Company, for whom he did extra work.
Union activity by Hightower consisted of little more than signing an appli-
cation card on Monday, January 24. He had inquired of Hefner about the
Union who referred him to Sternberg's other brother-in-law, Ed Cain, who handed
him the card. After signing it Hightower gave it to Bonner, one of the five
dischargees, for delivery to Baker.
The Respondent's knowledge of Hightower's union affiliation was derived
primarily from conversations between him, and Sternberg, plant superintendent.
7 N. L. R. B. v. Dixie Shirt Co , Inc., 172 F. 2d 969, 973 (C A 4).
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(These will be elaborated in the discussion under Section 8 (a) (1).) On
Monday, January 24, according to Hightower, Sternberg asked him if he had a
union card, and upon an affirmative answer, added that he had better not give
it to anybody because nobody could get anything out of the Union. Sternberg
did not testify about this conversation. The next day, Tuesday, January 2a,
the two talked again. Sternberg remarked that Hightower was to be the
union steward, but the latter remarked that he wanted to be the treasurer
"where the money was." Sternberg did not specifically deny this conversation,
but intimated it was all said jokingly. He admitted that on Wednesday,
January 26, he had again asked Hightower if he was still going to join the
Union and received the reply that he would do so to secure as much pay as
Cain. From this evidence it is apparent that the Respondent was advised of
Hightower's union activities.
The reason given by the Company for firing Hightower was that he com-
plained too much about not receiving as much pay as Ed Cain and 'thereby
neglected his work. Hightower admitted that he "griped" to "a few of the
boys," but "not all the time, every once in a while." A succession of six witnesses
for the Respondent testified that Hightower had "griped" to them about his
wages as compared to Cain. He insisted that Sternberg had never criticized
him because of these complaints. To the contrary Sternberg testified that he
had warned Hightower not to mention Cain's pay to him any more. In this
connection Sternberg said on direct examination :
A. I told him if he didn't hush up about Ed I would fire him.
Q. Did he say anything more about Ed Cain?
A. Not that I remember.
He also stated that at the time of this conversation he had no intention of firing
Hightower and that nothing additional had intervened until he did discharge
Hightower on January 26. According to Hightower, Sternberg told him at the
time his check was delivered that he was fired for "neglecting his work." He
replied that "I was fired on account of this union business." Sternberg gave
no testimony as to this conversation. From the foregoing it is evident that High-
tower was not really fired because of his "griping."
At the time of Hightower's discharge Sternberg suggested that he talk to
Walter Craft, another employee. The latter told him that "as soon as this deal
here blows over," possibly in 2 or 3 weeks, he would be reemployed. Accordingly,
he wrote a letter to the Company requesting reinstatement. Sorrels, a layout
man, came to his home and requested him to return to his job. He was rein-
stated March 4, 1949, and remained continuously with the Respondent to the
time of the hearing. When he was reinstated nothing was said about his pre-
vious "griping."
Considered as a whole, these facts show that Hightower did carry out union
activities ; the Respondent was advised of such action by him ; he was not fired
for "griping"; and was really discharged because of his union affiliation. This
constituted the sort of discrimination which the Act prohibits. The conclusion
is strengthened by his prompt reinstatement in the manner described.
Conclusion
I find that by discharging Hightower in the manner above set forth the Re-
spondent violated Section 8 (a) (3) of the Act.
3. Benjamin E. Chester -
Chester was employed by the Respondent on September 4, 1948, and worked
for it until his discharge on January 26, 1949. He described his duties as
METALLIC BUILDING COMPANY 401
"helper and acetylene burner, all around work. I had no particular job ; I did
a little tacking occasionally ; helped the layout men."
As to Chester's union activity, the record is extremely meager. In evidence is
an application card signed by him on a blank date in January 1949. No proof is
found that he ever solicited' anyone to join the Union. According to his own
testimony, he had lunch with Baker at noon on Wednesday, January 26. Baker
gave him four application cards. It does not appear whether he signed one of
these. He stated he delivered one to Farrar, who never signed it. He also
claimed to have presented cards to two painters, whose names he could not re-
member nor did he know whether they ever signed. It is worthy of note that
within a very short time after lunch Chester was fired
Even more doubtful than the matter of Chester's limited and belated union
activities is the question whether the Respondent had knowledge of them. Con-
cerning this the General Counsel, in his closing oral argument, admitted :
Now, we come to the question of Chester. Now, I am going to concede
at the outset-because I know my colleague, l\lr. Lyne, will certainly point it
out-I don't think I have been able to prove direct knowledge by Sternberg
or any supervisor of the Company that Chester had signed a union card.
I make that concession because it appears to be the facts and I don't believe
in concealing facts... .
The record fully confirms this admission. In fairness to the General Counsel,
however, it should be stated that he contended such knowledge on the part of
the Respondent might be inferred from the "sequence of events." This argument
deserves consideration.
On his own cross-examination Chester could point only to four fellow employees
whom he had told of signing a union card : Farrar, Cain, Yates, and Baker.
None of these was a supervisor or officer of the Company within the meaning
of the Act. No proof was presented that either of them ever informed any
supervisor of such knowledge. To the contrary, there is testimony that Cain
did not talk to his brother-in-law, Sternberg, about the Union until after the
five complainants had been fired. The record, as admitted by the General Coun-
sel, is completely silent that the Respondent knew anything about Chester's con-
nection with the Union. Nor can a logical inference be predicated on the evi-
dence at hand that they possessed such information. Consequently I find that the
Respondent did not know of Chester's union membership or activities.
This finding alone is sufficient for determination of Chester's case, 9 but in
order to present a complete picture the reason for his discharge should be con-
sidered The Respondent assigned such ground to be that Chester drank liquor
on the job and was intoxicated during working hours, in spite of warnings given
to him by his supervisor and more particularly was drunk on the day he was
fired.
Chester testified about his own drinking habits. On direct examination he
asserted that Sternberg called him to the Company's office about 6 weeks before
his discharge and told him, "I better not catch you with any bottle around here
or I will have to let you go." On cross-examination he was asked whether he
was a "heavy drinker" ; he replied : "I wouldn't say unusually heavy." He ad-
mitted that he drank on the job "a couple of times" and then detailed three
separate occasions when he imbibed liquor or beer while on duty. He further
,conceded that he drank six bottles of beer ytbe night before, his discharge, but
conceded that in a previous hearing before the Texas Employment Commission,
(in evidence ), he had fixed the number at eight bottles. He admitted he drank
Salant d Salant, Inc, 87 NLIIB 215.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considerable beer at home in the evenings and that Kelly, an employee, had also
warned him not to drink on the job. He stated he had never laid off work be-
cause of drinking, but would not deny that he had testified in the Texas Employ-
ment Commission hearing : "I've taken quite a bit of time off and went out and
drank and went on parties. . . . The longest [time] I lost was about ten days ;
previous to that it was one, two, and three days at a time. . . . These things
[would] happen . . . approximately every two or three weeks." On Christmas
Day, 1948, he received a present of a bottle of whiskey and Sternberg told him :
"Now, don't get drunk."
Testimony of other witnesses added to the details in the over-all picture. Ten
employees of the Respondent testified they had smelled liquor on Chester's bi eath
at various times while he was working. None of this was refuted directly, al-
though three witnesses for the General Counsel presented purely negative testi-
mony that they had never seen Chester drink or be under the influence of alcohol
during duty hours. Farrar, for the Respondent, testified that Chester and one
other employee worked together in the forenoon of Wednesday, January 26, 1949.
They were installing some power lines on a 'monorail, under the roof of a shop
building, which was used to operate a crane. Farrar and Chester worked di-
rectly on the monorail. Farrar noticed Chester almost fall from their station
and asked him if he was dizzy. Chester replied that "he just had too much to
drink the night before" and "I am too dizzy and drunk to be up here." Farrar
then sent him to work on the ground. Chester's explanation of this incident
in the General Counsel's rebuttal, together with the impression he gave during
all the time he occupied the witness stand, was most unconvincing and I discredit
it. Two other witnesses gave testimony that they had heard Sternberg warn
Chester about his drinking, but they place the time closer to the date of discharge.
Sternberg himself insisted that he personally smelled liquor on Chester's breath
on the morning of January 26 and thereupon fired him. Other testimony is
merely cumulative to the same effect.
At some unspecified time after his discharge Chester applied in writing to the
Company for reinstatement but nothing came of it.
Considering all the facts of record in Chester's case, I find that he was dis-
charged because he drank liquor and was under its influence on numerous oc-
casions and not because of his union activities. The Board reached this result
under almost the same facts.'
Conclusion
I find that the Respondent, in discharging Chester under the circumstances
of record, did not violate Section 8 (a) (3) of the Act. I shall recommend that
the portion of the complaint relating to him be dismissed.
4. George H. Bonner
Bonner was employed by the Respondent from September 1948 to January
.26, 1949. He worked partly as a welder , but also performed other kinds of
metal-working jobs.
Bonner gave no testimony whatsoever concerning his membership or activities
in the Union except as to one conversation with a group at lunch time which
included Baker . But among the exhibits on file is an application card (tecilni-
cally. "Authorization for Representation under the National Labor Relations
Act") signed by him on Monday , January 24 , 1949. He stated it was received
from Baker . As previously mentioned , Hightower testified that he gave his
signed card to Bonner for delivery to Baker.
Shawnee Milling Co, 82 NLRB 1266.
METALLIC BUILDING COMPANY 403
Not one word may be found in the record that the Respondent knew Bonner
was a member of the Union or active in its behalf. Both Brown, manager, and
Sternberg, plant superintendent, expressly denied it. I find myself unable to
infer such knowledge, as the General Counsel suggested in his oral argument,
from the "sequence of events" or "the overall background." Some substantial
proof concerning it must be adduced. The burden of such proof rested on the
General Counsel ; he failed to discharge it. Suspicion and insinuation are not
proper evidentiary substitutes for proof. I find, therefore, that the Respondent
had no knowledge of Bonner's union activities, such as they were.
Based on Bonner's testimony alone, the real reason for his discharge is ap-
parent. On January 26 the Company was performing some adjustment work on
a building outside its plant which it had fabricated for a man named Schlum-
berger. A foreman named Rogers, who did not testify, was in charge of such
outside jobs. Fritzsching, a layout man, suggested to Sternberg that Bonner
be sent out to do some welding and cutting because he had been on such work
previously. Bonner reported to Rogers with the necessary tools. By his own
statement he adopted an attitude of doing nothing until specifically instructed
by Rogers. As a result he and Rogers became involved in an altercation. Bon-
ner several times mentions : "We were still arguing." Finally Rogers told him
to return to the office and net his check. This was a clear case of insubordina-
tion and the Respondent was entitled to fire Bonner on that basis. The Board
has consistently so held 1°
Nothing in the record shows any discriminatory discharge of Bonner because
of his union activity.
Bonner stated that he had never applied for reinstatement and did not wish
to work for the Company except "under certain circumstances" which he did not
define.
Conclusion
I find that the Respondent did not violate Section 8 (a) (3) by discharging
Bonner. I shall recommend that such portion of the complaint as pertains to
him be dismissed.
5. Jesse L. Botello
Botello worked for the Respondent from August 20, 1948, to January 26, 1949,
first as a combination electric and gas welder and later as a layout man and
welder.
He testified he first heard about the union campaign in the Company's shop
between January 21 and 23 from Ed Cain. Two or three days before his dis-
charge on January 26 he stated that Baker gave him two union cards, one of
which he handed on to Bonner. This conflicts with Bonner's testimony that his
card came from Baker. No proof is found that Botello solicited any employees
to join the Union.
Proof of knowledge by the Respondent of Botello's union affiliation and activi-
ties rests on his own testimony. On direct examination he asserted that on the
morning he was discharged Sternberg came to his place of work ; asked him
"had I heard anything going on about the union there in the shop" to which he
replied that he had "heard some of the boys talking about it"; asked him if
he had signed one of the cards and received an affirmative reply. He further
testified that while he was,waiting for his discharge check in the office Stern-
berg "told me he sure hated to see me go because he liked my work and every-
10 Lloyd A . Fry Roofing Co , 85 NLRB 1222 See also Joanna Cotton M1118 v . N. L R. B ,
176 F. 2d 749 (C A. 4).
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thing, but he just had to let me go because I was a union member." He insisted
further that Sternberg repeated substantially the same remarks several times
later-once while Botello was on the way to his car after being fired and twice
in conversations in downtown Houston several days later. These statements,
according to the witness, included a promise to reemploy him within 2 or 3
weeks when the "trouble" had blown over. Sternberg's version of the part of
these conversations he admitted having differs entirely from Botello's. The
question of credibility will be discussed shortly.
The Respondent's defense to Botello's charge of discriminatory discharge was
that he quit voluntarily and was never fired. Fritzsching, for the Respondent,
testified he asked Botello in the office while the latter was waiting for his check
"why he was quitting" and received the reply, "I just want to quit while the
trouble blows over " Craft asserted he was present and heard this conversation.
Sternberg claimed Botello told him at the time of discharge, "You are having a
little trouble. I am going to have to quit." Brown, manager, testified that a
conversation, at Botello's request, was held between them on January 27 at a
Houston drive-in. Sternberg was present. Botello gave some information con-
cerning the possibility of his signing a statement for a Board representative and
then added, "Do you understand, Mr. Brown, that I quit, and the reason I quit
was I am a union man and I would either have to work for the union and against
you or for you and against the union. It is a bad condition for me So there
wasn't anything for me to do except quit." Sorrels, on the witness stand for the
Company, gave testimony that on Monday, January 24, Botello told him he was
leaving the Respondent to work for the Southwestern Fabricating Company, a
statement he made several times previously. J. C. Peterson and King told the
same story. Farrar stated that Botello tried to borrow money from him early
on January 26 because "he was fixing to quit that day." Farrar did not lend
him the money but Brown did. On cross-examination Botello said he could not
remember whether he ever told anyone he was going to quit the Respondent, but
denied the conversations testified to by Fritzsching, Sorrels, Peterson, and
Farrar; admitted he quit just before Christmas, 1948, to accept a job with South-
western, but returned to the Respondent when he slid not receive it, and claimed
that he had talked several times with Sternberg after his discharge about the
possibility of reinstatement. In fact he was never rehired.
Thus the record as to Botello's alleged discharge is one largely of contradic-
tion. Botello asserted he was discharged for union activities. All the witnesses
for the Respondent insisted he quit voluntarily and denied the element of dis-
crimination. The pertinent issues must be decided on the basis of credibility of
those who appeared on the witness stand. Botello's testimony varied in several
instances from that of other witnesses for the General Counsel ; e. g, Botello
stated he gave Bonner a union card whereas Bonner's statement was that he
received it from Baker ; and Botello repeated several times that Baker was fired
just before lunch, while all other witnesses fixed the event as occurring during
the lunch period; and finally where Baker testified he had been working alone
on the critical forenoon, Botello averred he worked with Baker. Moreover, his
testimony in several instances was contradictory in and of itself: (1) He first
stated that when he was fired he "got in the car and drove home," but shortly
thereafter said he "kept lagging around the plant there until the rest of the
boys got straightened out so we could leave together"; (2) he first gave infor-
mation that, on the morning of January 26 he ,was working on trusses and then
changed that- to columns; (3) initially he-,designated Farrar as his "leaderman"
and later switched to Sorrels, saying "I get Mr. Farrar and Mr. Sorrels mixed
up'"; (4) originally he testified lie attempted to borrow money from Farrar on
METALLIC BUILDING COMPANY 405
January 26 and thereafter fixed the time as before Christmas; (5) at one time
he said his wife was then in the hospital and subsequently stated 'she "was sick,
but not in bed"; (6) he stated the reason for quitting his job with the Respond-
ent just before Christmas was, "I wanted to have a good time and spend my
money," yet he had already testified his wife was then sick and he tried to bor-
row from Farrar; (7) he gave as another reason for so quitting at Christmas
that he intended to go to work for Southwestern, then asserted he did not "try
to get a job anywhere else during that time." Other such instances could be cited.
Botello, as a witness, did not give an impression of forthrightness, straight-
forwardness, -and dependability. Instead his demeanor reflected trickiness,
improvisation, and general unreliability. To all this may be added the stipulated
fact that he was convicted in a Texas court of forgery in 1941. In view of all
the circumstances I do not credit Bbtello's testimony as to any matters dis-
puted or contradicted-and that includes all the pertinent issues as to his alleged
discharge.
Conclusion
I find that the Respondent did not violate Section 8 (a) (3) of the Act by
reason of Botello's separation from its service I shall therefore recommend
that such portion of the complaint be dismissed.
Conclusion as to Discrimination
To summarize, I find that the Respondent, by discharging Hugo S. Baker and
L. B. Hightower under the circumstances appearing in this case, violated Section
8 (a) (3) of the Act.
C. Interference, restraint, and coercion
The complaint alleges eight coercive statements by supervisors of the Re-
spondent in violation of Section 8 (a) (1) of the Act. Proof was presented
bearing on these and on several others as well Most of these declarations were
by Sternberg, plant superintendent.
1. Sternberg to Hightower
Some of this testimony has already been discussed in connection with High-
tower's discharge.
The latter testified that on Monday, January 24, 1949, in the company rest
room, Sternberg asked him if he "got one of them cards " To an affirmative
reply Sternberg continued, "You better not give that to anybody . . . What do
they think they are going to get out of the union?"
Hightower also related two statements made to him by Sternberg on the fol-
lowing day, January 25, the first near a crane in the shop. It was: "I hear you
are the steward," to which Hightower replied : "I am not going to be the steward,
I am going to be the treasurer." The second occurred in or near the rest room :
"That's the steward coming ; he may be on the union job but he don't know what
I have in store for him." Hightower then said he was going to join the Union
in order to secure higher wages to equal those of Cain. A fellow employee,
Walter Craft, testifying for the General Counsel, was present at these con-
versations and confirmed Hightower's story. Sternberg admitted generally
what was said, as appears above, but insisted that the references to "steward"
were make jokingly.
I find Sternberg's characterization unconvincing. I credit the testimony of
Hightower and Craft, which is, indeed, largely corroborated by Sternberg him-
998666--vol 98--53--27
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
self. These remarks and questions amount to interrogation of an employee
regarding his union membership or activities . Such questioning has been uni-
formly held to be violative of Section 8 (a) (1) of the Act"
2. Sternberg to Botello
i'Botello'testified, as previously discussed, that on January 25 shortly after
lunch Sternberg asked him,
. how I was doing.... I told him . . . pretty good, and he said
had'I heard anything going on about the union there in the shop. I told
-' him I heard some of the boys talking about it. He asked me if I had signed
one of the cards, and I said yes. ..' . He said, "Well, if I can help it, there
won't be a union in the shop....
Sternberg denied making the, statement.
For the reasons previously stated in this Report I discredit this testimony by
Botello and shall disregard this incident.
3. Sternberg to Farrar
On Monday, January 24, Farrar had a short conversation with Sternberg on
the way to work, according to Farrar. At first he denied any such conversation
but when his recollection was refreshed by reading a statement previously given
to a Board field examiner, he continued :
Q. I ask you whether or not you said this in your statement : " Sternberg,
on Monday before these men were fired, asked me if I had signed a union
card. I answered no and that was all." Did you so state and swear to that
statement?
A.Idid. ...
Q. 'I am asking you whether or not Sternberg ever questioned you about the
union? .. .
A. He did, yes.
I credit this testimony, which constitutes"another instance of interrogation
regarding union affiliation.
4. Sternberg to Baker
This conversation between Sternberg and Baker while they proceeded to the
company office to obtain Baker's check on January 25, 1949, has already been
detailed in connection with Baker's discharge and need not be repeated here. I
find it to be coercion under Section 8 (a) (1).
5. Sorrels to Baker, Botello, and others
This conversation is alleged in the complaint and some evidence was received
concerning it upon the condition that proof should later be offered that Sorrels
was a supervisor within the meaning of the Act.
Brown testified that the only supervising officials of the Company were himself
as manager, Sternberg as plant superintendent, and Rogers as foreman for work
outside the plant. He insisted there were no other foremen. Sternberg
acquiesced. Some evidence was received as to Sorrells' functions. Various wit-
nesses designated him with different names, but in general it amounted to
"leaderman" or "layout man." His actual duties were to lay out on the steel
the places where the welders made their welds or other workmen drilled holes
in the metal. He had no authority to hire or fire or in general to instruct men
what to do except specifically under Sternberg's directions. Hence I find that
11 N. L. R. B. v. La Salle Steel Co., 178 F. 2d 829 (C. A. 7).
METALLIC BUILDING COMPANY 407
Sorrels was not a supervisor within the meaning of the Act. So I shall strike
from the record all evidence of conversations about the Union by Sorrels to
Baker, Botello , or other employees.
6. Sternberg to Sorrels
In view of the finding made in the last numbered paragraph that Sorrels was
not a supervisor, it is relevant to consider a conversation he testified having
with Sternberg on January 24. He was the Respondent's witness. At first
he could not recall any such conversation. When he had read a statement,
however, which he admitted having signed previously, he stated: "I remember
Sternberg asking me did I know anything about the union and I told him I
didn't." Coming as this statement does from a reluctant witness, I credit the
testimony. Here is more interrogation.
7. Sternberg to Kelly
Sorrells testified he heard Sternberg and Kelly talk as follows :
Sternberg asked Kelly did he know anything about the union. Kelly said
he did, he had a card and he asked Kelly did he sign the card and Kelly said
no he didn't.
Neither Kelly nor Sternberg denied this conversation. I credit it.
8. Sternberg to Hefner
Hefner; Sternberg's brother-in-law, mentioned during his testimony for the
the Company, that on January 27, 1949, 1 day after the last discharge, he had
talked to Sternberg about the Union. The General Counsel thereupon moved
to amend the complaint by adding subparagraph (i) to paragraph IX, alleging
this conversation. This motion was taken under advisement by the Trial Ex-
uminer. It is hereby granted and the complaint is so amended.
According to Hefner, Sternberg asked him if he had signed a card and who
else had similarly signed. I believe Hefner's story.
9. Sorrels to Kelly
The General Counsel also moved to amend the complaint by adding subpara-
graph (j) to paragraph LX to show alleged comments about the Union made
by Sorrels to Kelly. In view of the previous finding that Sorrels was not a
supervisor, such evidence would not be admissible. The motion to amend the
complaint is therefore denied.
10. Cain, Hefner, Fritzsching, and others to Pritchett
Some evidence was adduced that Cain, Hefner, Fritzsching, and other em-
ployees had made antiunion comments to Pritchett and other workmen. No
substantial, credible proof is in the record from which a finding could logically
be made that any of these employees are supervisors within the meaning of the
Act. Such statements will therefore be disregarded.
11. Other alleged coercive actions
At the hearing the General Counsel several times intimated through his own
statements and by questions which were primarily accusations that the Re-
spondent had engaged in coercive actions other than by the statements just
discussed. These were (1) that Sternberg had searched the men's lockers and
automobiles for union cards; (2) that Brown had installed a listening device in
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the rest room and elsewhere to overhear the conversations of his employees ;
and (3) that the Company hired detectives to follow Baker after he was dis-
charged. The only real proof in the record is Brown's admission that shortly
before the hearing the Respondent employed detectives to find out where Baker
worked, but the contents of such reports were not presented. The rest is mere
suspicion and innuendo . It will be disregarded.
Conclusion as to Interference, Restraint, and Coercion
Under the facts set forth I find that the Respondent, beginning on or about
January 24, 1949, interfered with, restrained, and coerced its employees in viola-
tion of Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
It is found that the activities of the Respondent set forth in Section III, above,
occurring in connection with the operations of the Respondent described in Sec-
tion I, above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead to labor disputes
-burdening and obstructing commerce and the free flow of commerce.
v. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, the Trial Examiner will recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate the purpose of the Act.
It has been found that the Respondent discriminatorily discharged Hugo S.
Baker and L. B. Hightower because of their union activities, but later rein-
stated L. B. Hightower. It will therefore be recommended that the Respondent
offer to Hugo S. Baker immediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority or other rights
and privileges, and make both employees whole for any loss of pay they may
have,suffered by reason of the Respondent's discrimination against them, by
payment to them of a sum of money equal to that which they normally would
have earned as wages from the date of their discharge to the Respondent's
offer of reinstatement, less their net earnings during such period.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, I make the following:
CONCLUSIONS OF LAW
1. Houston Metal Trades Council, AFL, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Hugo
S. Baker and L. B. Hightower, thereby discouraging membership in Houston
Metal Trades Council, AFL, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering- with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act. -
4. Said unfair labor practices are unfair labor practices within the meaning
of Section 2 (6) and (7) of the Act.
5. The Respondent, by discharging Benjamin E. Chester, George H. Bonner,
and Jesse L. Botello, did not violate Section 8 (a) (3) of the Act.
[Recommendations omitted from publication in this volume I