Valley Steel Products Co.

National Labor Relations Board - Board Decisions

Mar 31, 1955

111 N.L.R.B. 1338 (N.L.R.B. 1955)

1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respective employers , where an object thereof is to force or require the Missouri
Pacific Railroad and the Missouri Pacific Freight Transport Company, or any
other employer or person , to cease doing business with Ira P . Hildebrand, d/b/a
Hildebrand Warehouse Company , or with any other employer or person, except
in accordance with Section 8 (b) (4) of the Act.
WE WILL NOT picket the Missouri Pacific Railroad station at Tyler, Texas,
and we withdraw any instruction , request, or appeal that any employee of the
Missouri Pacific Railroad and the Missouri Pacific Freight Transport Company,
or of any other employer, cease or otherwise refrain from dealing with said
Railroad in connection with our dispute with Hildebrand Warehouse Company.
GENERAL TEAMSTERS, CHAUFFEURS & HELPERS, LOCAL
745, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN & HELPERS OF
AMERICA, AFL,
, Labor Organization.
Dated---------------- By----------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
VALLEY STEEL PRODUCTS Co. and SHOPMEN'S LOCAL 536 OF THE INTER-
NATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL
IRON WORKERS, AFL. Case No. 16-CA-738. Mardi 31,1955
Decision and Order
On August 13, 1954, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging 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 In-
termediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Respondent's request for oral argument is denied, as the record,
including the exceptions and briefs, adequately sets forth the posi-
tions of the parties.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.'
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in this
case, and finds merit in the Respondent's exceptions.
The Trial Examiner found that the Respondent violated Section
8 (a) (1) by Manager Hill's remarks to employees Lloyd 2 and Cald-
well on February 23 and to Assistant Foreman Barber in the presence
of other employees on February 24 that the employees laid off on those
i We find no merit in the Respondent ' s contention that the Trial Examiner was biased
and prejudiced.
2 The Trial Examiner spelled this name "Loyd." However, from the tran6crlpt and
exhibits herein it appeals that the proper spelling is "Lloyd
111 NLRB No. 206.
VALLEY STEEL PRODUCTS CO. 1339
respective dates were being laid off because of the Union. He found
further that the Respondent violated Section 8 (a) (3) and (1) by
discriminatorily laying off Lloyd and Caldwell on February 23 and
by laying off the rest of the employees on February 24 3 The above
remarks attributed to Hill, which are crucial to the finding of 8 (a)
(1), are also crucial to the 8 (a) (3) finding, for it is upon these re-
marks that the unlawful motivation in the layoffs is largely bottomed.
The Respondent takes specific exception to the finding that these re-
marks were made, contending that the Trial Examiner's credibility
findings incidental thereto are erroneous. We shall, therefore, con-
sider the testimony seriatim.
The finding that the remark was made on February 23 was based on
the testimony of Caldwell and Lloyd. The finding that it was re-
peated on February 24 was based on the testimony of Assistant Fore-
man Barber and six other witnesses called by the General Counsel.
Although the Trial Examiner credited all these witnesses,' a review
of their testimony reveals conflicts and inconsistencies, not discussed
by the Trial Examiner, which raise doubts as to their credibility.
As to the evidence relating to the February 23 layoff, it is true that
there is testimony by Caldwell and Lloyd that after Hill informed
them of the layoff, Caldwell asked for the reason, and Hill replied that
it was because of the Union. However, we note that twice on cross-
examination, Caldwell described the exchange of remarks between Hill
and himself at the time of the layoff without any mention of Hill's
alleged remark attributing the layoff to the Union, but stating in each
instance that he had described everything that was said. Furthermore,
Caldwell testified that Hill first stated that they were being laid off
because of a telegram received from Crancer, the Respondent's presi-
dent in St. Louis, although it appears that the only telegram pertinent
to the layoffs was received by Hill the following morning. In addition,
the testimony of Caldwell and Lloyd conflicted as to the circumstances
under which they were called to the yard office to talk to Hill. Thus,
Caldwell testified that when he was called to the office, Lloyd was near
him and that they both went there together. On the other hand, Lloyd
testified that Caldwell was not near him and that they both went there
alone.
The setting in which the Trial Examiner found that Hill again
indicated on February 24 that the layoffs were because of the Union is
as follows :
3 On February 23, Adams and three other employees were also laid off . However, the
General Counsel does not contend that their layoffs were discriminatory
i The Trial Examiner specifically credited Caldwell and Lloyd while discrediting Hill.
He did not make specific credibility findings as to the others but found the credible evi-
dence "Overwhelming " that on Febiuaiy 24 Hill in answering a question of Barber In the
presence of the other employees attributed the discharges to the Union
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon his arrival at the plant shortly before 8 that morning, Hill
found a telegram from Crancer stating that, due to the failure of key-
men sent to Dallas to run the plant on an efficient basis, operations
were to be suspended until proper supervisory personnel could be fur-
nished.' Hill took the telegram and went into the yard office, where
the employees were gathered around a stove while waiting to start
work. He posted the telegram on a bulletin board near the time clock,
removed all timecards from the rack, went over to the group of men
standing around the stove, about 40 feet away, and informed them of
the shutdown. Assistant Foreman Barber asked Hill if he was free
to speak and Hill replied that he was. Barber then asked if the plant
was being closed because of the Union.
The testimony is in conflict as to exactly what words were used by
Hill in his reply. According to Barber and 2 witnesses for the Gen-
eral Counsel, Hill answered "that's right" or "yes"; according to the
4 other witnesses for the General Counsel, Hill answered "that's it" or
"that is it." Obviously the testimony of Barber, if accepted, supports
the allegation of the complaint. However, if the answer was "that's
it" or "that is it," it fits into the version of Hill as to what exactly
occurred. For, according to Hill, at the time of Barber's question he
had already answered similar questions several times in the negative
and he therefore merely pointed to the telegram and stated "that's it,"
meaning that the telegram contained the reason for the shutdown.
In deciding whether Barber is to be credited in this important re-
spect , we are impelled to give consideration to the contradictory and
confused nature of other related parts of Barber's testimony. Thus,
Barber first testified that Hill entered the yard office, went to the time
clock, pulled the timecards, posted the telegram on the bulletin board,
and then walked over to the group around the stove, at which time
Hill 's remark was allegedly made. On cross-examination he added
that Hill read the telegram aloud to the inen before he posted it. He
then stated that Hill did not necessarily read the telegram aloud be-
fore Barber asked the crucial question. Finally, he testified that, at
some point during the discussion around the stove, Hill held the tele-
gram up in his hand and stated, "This is it." In view of this apparent
confusion, it may well have been that Barber 's critical testimony was
itself a confused version of this latter remark.
In addition to these discrepancies, which the Trial Examiner passed
over, our doubts as to his resolution of the credibility issues are
strengthened by our disagreement with his treatment of Hill' s testi-
r The contents of the telegram were as follows :
It appears that the key men that we sent to Dallas to attempt to run that branch on
an efficient basis have failed Stop Consequently we ale forced to suspend operations
until such tune as we can furnish the proper supervisory personnel.
VALLEY STEEL PRODUCTS CO. 1341
mony.6 The Trial Examiner characterized Hill's testimony as "equiv-
ocal and inconsistent" in many particulars and gave a number of de-
tailed reasons in rejecting a great portion of it.
The one portion of Hill's testimony specifically labeled "equivocal"
by the Trial Examiner was his description of the content of his tele-
phone conversation with Crancer prior to the layoff of Caldwell,
Lloyd, and Adams on February 23. He found that Hill's testimony
that "Crancer said he wanted to shut down gradually, and that he
wanted to lay off about six men a day, and gradually shut things
down" was an "equivocal modification" of his testimony that Crancer
told him "he wanted to shut down the operation at Dallas." The rec-
ord reveals that the quoted statements appear consecutively, in answer
to a single question.' Furthermore, it is undisputed that Hill did
lay off exactly six men that day, and the plant was not shut down until
a further instruction was received from Crancer. The Trial Exam-
iner's stated reasons for this finding were that the record was barren
of any explanation why Crancer later altered his instruction and that
the language of the telegram was inconsistent with gradual shut down.
However, as to the first, as we note below, the record indicates that
the cancellation by the Lone Star Steel Company of its order for
reconditioned thread protectors, of which Hill and Crancer learned
after this phone conversation, had sufficient impact on the Respond-
ent's operations to explain Crancer's change of plans. As to the sec-
ond, as the telegram was sent after the change in instructions, there
is no reason apparent to us why it should have been consistent with
the instruction for gradual shutdown. We can accept neither the
Trial Examiner's conclusion that this testimony was equivocal, nor
his reasons therefor. No other instances of equivocation were set
forth by the Trial Examiner, nor do any appear to us from our ex-
amination of Hill's testimony.
Moreover, we believe that the inconsistencies found by the Trial
Examiner in Hill's testimony may be satisfactorily explained when all
of Hill's testimony is taken into consideration. Thus, we cannot agree
that Hill's testimony that the shutdown was caused in part by a pro-
9 There were also other conflicts in the testimony of the General Counsel 's witnesses as
to the Februaiy 24 incident These pertained to whether the telegram was posted before
Hill entered the yard office, whether the telegram was discussed by the men standing
around the stove while waiting foi Hill, and the content of discussion with Union Repre-
sentative Cook at a meeting directly after the shutdown We do not agree with the Trial
Examiner that all the disagreements between these witnesses can be dismissd as "a not
uncommon phenomenon when honest men attempt later to reconstruct precisely what each
has seen and heard "
7 The question and answer occurred on Hill's cross -examination and were as follows .
Q. What did Mr. Crancer tell you about these three employees [Adams, Caldwell,
and Lloyd]?
A We didn't talk about specific employees. He said he wanted to shut down the
operation at Dallas He said that he wanted to shut down gradually and that lie
wanted to lay off about six amen a day, 'nd gradually shut things down
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duction decrease must be rejected because, as the Trial Examiner
found, Hill's testimony revealed that there had been an increase rather
than a decrease during the month prior to the shutdown. It is clear
that the Trial Examiner considered Hill's testimony only as to tonnage
figures for December 1953, January and February 1954, and the 3
months prior to the shutdown 8 and gave no consideration to other
testimony of Hill pertinent to this factor. However, Hill's uncontro-
verted testimony revealed that the tonnage figures for October and
November 1953,9 were substantially higher than those for the months
cited by the Trial Examiner. In addition Hill, again without contra-
diction, explained the source of the apparent February increase and
testified that it was wiped out at the time of the shutdown. He testi-
fied that, around the first of the year, the Respondent began install-
ing equipment in the Dallas plant for reconditioning thread protectors,
used by shippers of threaded pipe, in the hope of offsetting sagging
pipe sales. This operation went into production around February 1.
The bulk of the thread protectors produced were shipped to the Lone
Star Steel Company, and these accounted for substantially the entire
increase in tonnage of February over January. However, on Febru-
ary 23, Lone Star Steel Company notified Hill that the reconditioned
thread protectors were unsatisfactory and canceled its order. This
cancellation, in effect, cut off the outlet for the reconditioned thread
protectors and, as this operation had, since its inception, required the
services of at least half the Respondent's work force, it left the Re-
spondent without productive tasks for these men. Furthermore, dur-
ing the week prior to the shutdown, even with the thread protector
reconditioning business, Hill testified that he had not been able to
keep all the employees busy with necessary work and was forced to
create tasks, such as painting the office and cleaning the yard, to keep
some of them from standing around idle. At the close of work on
February 23 there were only 1 or 2 small orders on hand in the amounts
of $150 or $200. Taking into account all of this additional testimony
of Hill, which is uncontradicted on the record, we must reject the Trial
Examiner's finding that Hill's testimony was inconsistent with his
statement that there had been a decrease in production which contrib-
uted to the shutdown.'°
While the Trial Examiner failed to consider the relationship of the
Lone Star Steel cancellation to the Respondent's production, he did
consider separately Hill's testimony that the cancellation contributed
to the shutdown. He rejected this testimony, however, because; as he
8 The figure for December was 1,439 tons, for January, 1,198 tons, and for February
(through the 23rd when the plant shut down), 1,605 tons.
These figures were 2,215 and 2,177 tons, respectively.
io In this connection, a further factor supporting this conclusion is Hill's uncontradicted
testimony that at the time of the Dallas shutdown three other Texas branches of the Re-
spondent had been closed or were being closed, and at the time of the hearing an Oklahoma
bianch had just been closed, all for economic reasons.
VALLEY STEEL PRODUCTS CO. 1:343
found, Crancer told Hill on February 23 to shut down the plant im-
mediately, and because Crancer 's telegram failed to mention the Lone
Star Steel cancellation . While we have already indicated above that
we cannot agree with the Trial Examiner 's reasons for finding that
Crancer's first instruction was for immediate shutdown, we note fur-
ther that the Trial Examiner 's reasoning in this connection is circular.
His reason for rejecting Hill's testimony that the first instruction was
for gradual shutdown was that the record was barren of any expla-
nation why Crancer later altered his instructions . Yet, in considering
the Lone Star Steel cancellation , a possible explanation , the reason
given for rejecting it is that the order to shut down had already been
given. Thus each finding is based upon the other.
Turning to the telegram , contrary to the Trial Examiner , we believe,
and find, that it can only be interpreted in the light of the record as
referring to the thread protector cancellation . The telegram attributes
the shutdown to the failure of "keymen " sent to Dallas to run the plant
on an efficient basis. The only men , key or otherwise, sent to Dallas
were Hill, who replaced Bullock as manager , and Reichard , who came
in to supervise the thread protector operations . Thus the reference to
keymen must include both Hill and Reichard , and their failure to run
the plant on an efficient basis must include Reichard's failure to turn
out satisfactory thread protectors . We perceive no inconsistency be-
tween the telegram and Hill 's testimony.1'
Nor do we concur in the Trial Examiner 's characterization of Hill's
testimony pertaining to difficulties with ex-Manager Bullock as "so
confused to raise doubt as to its accuracy ." Not only is Hill's testi-
mony in this regard clear and straightforward , but it is in part cor-
roborated by Barber 's testimony when called by the Respondent.12
Their combined testimony clearly shows that Bullock , although indi-
cating acquiescence , resisted the Respondent 's attempts to replace him
as manager of the Dallas plant and made it difficult for Hill to exercise
his authority in attempting to alter methods of operation at that plant.
Thus, according to Barber , prior to Hill's arrival , Bullock warned
the amen that Hill was coming to take their jobs away from them and
made other statements which could have had the effect only of turning
the employees against Hill. According to both Hill and Barber, after
Hill 's arrival Bullock continued to assert his authority to give orders
to the employees and interfered with Hill's attempts to manage yard
operations . While we might pause before finding that these difficulties
11 We cannot comprehend the Trial Examiner 's reasoning in concluding that further dis-
credit was cast upon Hill's testimony by virtue of the fact that the Respondent is still
doing business with Lone Star Steel . It is tine that Lone Star Steel never stopped doing
business with the Respondent , but it did transfer its business from the Dallas plant to
another of the Respondent 's plants producing new thread protectors , because it would not
accept reconditioned thread protectors produced at Dallas.
v The Trial Examiner stated that the record contained only Hill's account of these diffi-
culties , although elsewhere he referred indirectly to this testimony of Barber.
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alone caused the shutdown, this was only one of several factors which
according to Hill's testimony led to the shutdown, and we perceive no
inconsistency or defect in Hill's description of those difffculties.i3
Turning to Hill's testimony concerning the circumstances surround-
ing the layoff on February 23 and the shutdown the following morn-
ing, Hill testified that he did not mention the Union at the time lie
notified Caldwell and Lloyd that they were laid off, and also that he
had no knowledge at that time that they were members of the Union.
He explained that they were chosen with Adams for layoff because
they had the least seniority in the plant. Lloyd corroborated Hill in
this respect, testifying that he and Caldwell had returned to work
about 3 weeks before and were treated as new employees.14 The Trial
Examiner did not discuss Hill's explanation of the choice of these
three employees, but discredited his denial that the Union was men-
tioned, relying on his rejection of Hill's testimony in other respects,
as discussed throughout our decision.
As to the February 24 events, Hill denied the statement which Bar-
ber attributed to him and which we have discussed above. In dis-
crediting this denial and Hill's version of the events, the Trial Exam-
iner relied on a portion of Hill's testimony in which he found that
Hill expressed a doubt as to whether the Union was mentioned at all on
that occasion." Apart from the fact that this testimony occurred on
direct examination, and not on cross-examination as the Trial Exam-
iner stated, we do not believe that the Trial Examiner's interpretation
is warranted. Taken in the context of surrounding testimony, it ap-
pears that Hill was only emphasizing that if he mentioned the Union
at all, it was in answer to questions from employees. However, he
expressed thereby no doubt that other employees mentioned the Union
at that time.'6
13 The Trial Examiner also found that Hill also attributed the shutdown to difficulties
with Foreman Sickels and found this inconsistent with Hill's testimony which indicated
that the Sickels problem had been substantially solved at the time of the shutdown. We
agree that Hill's testimony revealed that the problem had been solved, but we do not agree
that Hill stated that this was a factor contributing to the shutdown
14 There was no dispute that Adams was the least senior employee in the plant.
15 The sequence of questions and answers to which the Trial Examiner refers is as follows :
Q. Did you on February 24 afer you posted the notice ever say anything like, "The
old man wasn 't going to have a union?"
A. The best I remember I did not say anything like that.
Q. Did you say anything about a union on February 24?
A. Not that I know of. I don't remember saying anything like that . May I clarify
that statement?
Q. Yes, go ahead.
A. I was asked at different times by, I would say , two or three men-if the Union
was even mentioned , it was in such a way ; I tried to make them understand that the
work stoppage did not have anything to do with the Union . The Union was the least
of our problems , and if I mentioned the Union, it was in that connection and it was
not in any other way [ Emphasis supplied J
19 The Trial Examiner also regarded Hill's denial that Caldwell or Lloyd asked questions
about the Union as inconsistent with his testimony that he had answered several such
questions . 1?owever, as they were laid off on the previous day and were not present at
the time of the shutdown , there is no inconsistency
VALLEY STEEL PRODUCTS CO. 1345
In summary, our analysis of Hill's testimony not only fails to dis-
close the specific inconsistencies and defects adverted to by the Trial
Examiner," but in our opinion it reveals that Hill was clear, unequiv-
ocal, and internally consistent in all material respects.
In Standard Dry Wall Products, Inc.,"' the Board said, "[I]t is our
policy to attach great weight to a Trial Examiner's credibility find-
ings insofar as they are based on demeanor. Hence we do not overrule
a Trial Examiner's resolutions as to credibility except where the clear
preponderance of all the relevant evidence convinces us that the Trial
Examiner's resolution was incorrect."
This policy is grounded in the fact that, unlike the Board, the Trial
Examiner, by virtue of his direct observation of witnesses at the hear-
ing, has the opportunity to observe and evaluate factors of appearance
and demeanor of witnesses. However, as we also stated in Standard
Dry Wall Products, in contested cases, "[T]he Act commits to the
Board itself, not to the Board's Trial Examiner, the power and re-
sponsibility of determining the facts as revealed by a preponderance
of the evidence," and the Board is not bound by the Trial Examiner's
findings of facts, but bases its findings upon a de novo review of the
entire record. Therefore, insofar as credibility findings are based
Upon factors other than demeanor, in consonance with the policy set
forth in Standard Dry Wall Products, the Board will proceed with an
independent evaluation.19
As already noted, the Trial Examiner has recited numerous objec-
tive reasons and general characterizations to support his rejection of
one of the conflicting versions of testimony. He has also made numer-
ous omissions of relevant testimony from the Intermediate Report.
In these circumstances, therefore, the importance of the demeanor
factor is greatly diminished, and we are impelled to substitute our
own credibility findings for those of the Trial Examiner.
Accordingly, in view of the conflicts and inconsistencies in the testi-
mony of the General Counsel's witnesses, the general lack of evidence,
apart from the testimony as to the disputed statements, of antiunion
animus, Lloyd's corroboration of Hill's testimony that the employees
laid off on February 23 were the least senior in the plant, the lack of
any evidence to show that Caldwell and Lloyd had engaged in union
17 An additional finding of the Trial Examiner with which we cannot agree is that Hill's
testimony was further disciedited by his stated reason for the reopening of the Dallas
plant. Contrary to the Trial Examiner's finding, Hill did not testify that lie told Crancei,
"I had moved my family down here and I did not want to go anywhere else." Hill testified
that he told Crancer that he liked Dallas and thought he could make a go of it. He also
added that the plant was reopened on representations by him and Bullock that they could
run it successfully.
18 91 NLRB 544
19 See Salant & Salant, 92 NLRB 343, at 357-359. E-Z Dlills, Inc , 101 NLRB 979, at
981-983; Hadley Manufacturing Corporation, 108 NLRB 1641
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities or that Hill had knowledge or belief of such activities, the
inherent improbability that Hill would have given the Union as the
reason for the personnel action taken under these circumstances, and
the fact that Hill's testimony appears to contain none of the defects
attributed to it by the Trial Examiner and is clear, straightforward,
and unequivocal, we are persuaded that the evidence pertinent to each
of the credibility issues clearly preponderates against the Trial Ex-
aminer's resolution . We therefore credit Hill's denial that on either
occasion the employees were told that they were being discharged be-
cause of the Union and discredit the contrary versions of the witnesses
called by the General Counsel.20
There remains the question whether the February 23 layoff and
the February 24 shutdown were discriminatory. Looking first at the
layoff, it appears that the timing of the layoff with respect to the
union organization is entitled to some weight in assessing the alleged
discrimination . Apart from this, however, the record fails to show
that Hill or Crancer had any knowledge or belief that Caldwell and
Lloyd were union adherents. In fact, it affords only scant basis for
finding that they were aware of the union activities in general at the
time of Crancer's instruction which resulted in the layoff. Further
more, the General Counsel does not contend that Adams, who was
informed of his layoff with Caldwell and Lloyd, or the other three
employees laid off that day were discriminatorily laid off. Hill's
testimony that these employees were chosen by seniority finds support
in Lloyd's testimony and is not overcome by any other evidence.21
Finally, there is complete absence of any evidence of antulnion animus
of the Respondent .22 Accordingly, we conclude that the General
Counsel failed to prove by a preponderance of the evidence that the
discharges of Caldwell and Lloyd were discriminatory.
Nor is the case any stronger with respect to the shutdown the follow-
ing day. The shutdown resulted basically from the same decision
which caused the layoffs, altered by virtue of the intervening circum-
stance of the Lone Star Steel cancellation. Moreover, all employees,
with the exception only of those conceded not to have been discrinuna-
torily discharged, were recalled to work when the plant reopened 3
weeks after the shutdown. Under all the circumstances we conclude
that the General Counsel also failed to prove that the shutdown was
° In this connection , we also reject the Trial Examiner 's inference that by calling Barber
as its own witness to testify as to other facts within his knowledge , the Respondent ad-
mitted the credibility of Barber 's testimony as to Hill 's remarks
21 Although Caldwell testified that his absence was caused by illness, lie did not con-
tradict Lloyd's testimony that both were treated as new employees upon their return to
work around February 1.
,a We therefore find it unnecessary to decide what the Respondent's initial motive was
which led to its decision to shut down
VALLEY STEEL PRODUCTS CO. 1347
discriminatory.23 Accordingly, as we find that none of the charged
unfair labor practices has been proved, we shall dismiss the complaint.
[The Board dismissed the complaint.]
MEMBER MURDOCZK, dissenting :
I dissent from my colleagues' reversal of the Trial Examiner's find-
ings that the Respondent violated Section 8 (a) (1) by Manager
Hill's remarks to employees Lloyd and Caldwell on February 23, and
to Assistant Foreman Barber in the presence of other employees on
February 24, that the employees laid off on those respective dates were
being laid off because of the Union ; and that the Respondent vio-
lated Section 8 (a) (3) and (1) by discriminatorily laying off Lloyd
and Caldwell on February 23 and the rest of the employees on Feb-
ruary 24.
As stated by the majority, the above remarks attributed to Hill are
not only crucial to the findings of 8 (a) (1), but are also crucial to
the 8 (a) (3) finding, for it is upon these remarks that the unlawful
motivation in the layoffs is largely bottomed. The majority, how-
ever, reverses the Trial Examiner's credibility findings in connection
with these remarks, finds that the remarks were not made, and there-
fore concludes that there was no violation of Section 8 (a) (1) or
8 (a) (3). I find no justification for reversing the Trial Examiner's
credibility findings, or his resulting findings that there were viola-
tions of Section8 (a) (1) and8 (a) (3).
The Trial Examiner's finding that the remark was made on Febru-
ary 23 was based on the testimony of Caldwell and Lloyd, and his
finding that it was repeated on February 24 was based on the testi-
mony of Assistant Foreman Barber and six other witnesses. The
majority's findings that the remarks were not made are based on the
uncorroborated denials of Hill alone. At the outset, therefore, it is
significant to note that the Trial Examiner's credibility findings on
this crucial factual issue are supported by fully corroborated testi-
mony, while the majority's credibility findings are based on the un-
corroborated testimony of only one witness.24 Also significant in sup-
port of the finding that the remark was made on February 24, which
in turn lends support to the testimony that it was also made on Feb-
ruary 23, is the testimony that the remark was made on February 24
given by Assistant Foreman Barber, a supervisor whose interests are
23 About 3 weeks after the shutdown the plant was reopened , and all the employees who
were laid off on February 24, as well as Caldwell and Lloyd , were reinstated . Thereafter,
the Respondent filed a representation petition with the Board and entered into a stipula-
tion for consent election , which the Union won The Union is now the certified bargain-
ing representative for the Respondent ' s employees.
24 See Dixie Cnlvei t J7anufacta + ing Company , 87 NLRB 554, 555
344056-55-vol . 111-86
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
allied with management, and who would, therefore, be unlikely to
testify falsely against the Respondent's interests.
The majority attacks the credibility of Caldwell and Lloyd on the
ground that their testimony reveals conflicts and inconsistencies
which raise doubts as to their credibility. Thus, while admitting that
there is testimony by both Caldwell and Lloyd that Hill said that the
February 23 layoff was made because of the Union, the majority notes
that twice on cross-examination Caldwell in describing the incident
made no mention of this remark by Hill, and stated in each instance
that he had described everything that was said. I note, however, that
in further cross-examination Caldwell repeated his earlier testimony
that the remark was made. Clearly, therefore, Caldwell's omission
of the remark in part of his testimony was one of mere temporary
oversight rather than one affecting his credibility. Moreover, the
rest of the majority's attack on the credibility of Caldwell and Lloyd
is based only on minor conflicts and inconsistencies concerning other
circumstances at the time the remark was made, which, in my opinion,
are hardly sufficient to impeach their credibility with respect to the
remark in issue.
The majority's attack on the credibility of Assistant Foreman Bar-
her and the six other witnesses who testified that the remark was
repeated by Hill on February 24 is based first on an alleged conflict
In their testimony as to exactly what words were used by Hill in his
reply to Barber's query whether the plant was being closed because
of the Union. As stated by the majority, according to Barber and 2
other witnesses, Hill answered "that's right" or "yes"; and according
to 4 other witnesses, Hill answered "that's it" or "that is it." It is too
obvious for argument that all seven of these witnesses testified iii
accord as to the substance of Hill's answer to the query. viz, that he
gave an afflr7native answer. It is also too obvious for argument that
there is insufficient basis for discrediting such testimony simply be-
cause there were slight variations in their testimony as to the exact
words used by Hill in a conversation which occurred almost 5 months
before such testimony was given. The majority then contends that if
the exact answer by Hill was "that's it" or "that is it," it fits into Hill's
version as to what occurred, for, according to Hill, at the time of Bar-
ber's question he had already answered similar questions several times
in the negative and he therefore merely pointed to a telegram and
stated "that's it," meaning that the telegram contained the reason for
the shutdown. In making this contention, however, the majority com-
pletely ignores the fact that at least six witnesses for the General
Counsel, if not Barber, did not testify that Hill pointed to any tele-
gram when he answered Barber's question.25 How then does the testi-
m In fact, Barber testified only that at some point during the discussion Hill held up
the telegram and stated, "This is it."
VALLEY STEEL PRODUCTS CO. 1349
uuony of the General Counsel's witnesses "fit into" Hill's version as to
what occurred, when their testimony was that the "that's it" or "that
is it" was an affirmative reply to Barber's query as to whether the
layoff was because of the Union, and Hill's version was that he pointed
to and was referring to a telegram?
The majority attacks Barber's credibility because of the alleged
contradictory and confused nature of other related parts of his testi-
mony. This attack is based on the fact that Barber first testified that
Hill did six things in certain sequence at the time in question, that on
cross-examination Barber added something else Hill did in the middle
of this sequence, that Barber then stated that this action was not neces-
sarily taken in that sequence, and finally that Barber added still an-
other action taken by Hill at some point during this sequence of events.
In my opinion, this is not testimony of a contradictory and confused
nature so as to cast doubt on the reliability of a witness. Barber was
reconstructing a series of events which had occurred almost 5 months
before. He displayed an excellent memory, better than most, probably,
by first reciting six different actions which Barber took in certain se-
quence. At that point his recollection was exhausted, which is per-
fectly understandable. Later in his testimony he remembered that
hill did 2 other things at the time, but could not recall exactly when
in a series of 8 events, which is also understandable. For the majority
i o say that such testimony is contradictory and confused is to ignore
the normal and reasonable frailties of the human memory. In fact, I
A•, ould say that Barber displayed a better than average memory which
is fully entitled to credence. Had he displayed any better memory on
so many events occurring together, it might be attributed to "memo-
rizing" rather than honest memory. The majority, without specifying,
also alludes to "other" conflicts in the testimony of the General Coun-
sel's witnesses as to this series of events on February 24. Like the Trial
Examiner, I consider such disagreements as there were between these
witnesses as "a not uncommon phenomenon when honest men attempt
later to reconstruct precisely what each has seen and heard."
The majority also disagrees with the Trial Examiner's treatment
of Hill's testimony. The Trial Examiner discredited Hill's testimony
concerning Hill's telephone conversation with Crancer prior to the
layoff of February 23 on the ground that Hill's testimony that
"Crancer said he wanted to shut down gradually, and that he wanted
to lay off about six men a day, and gradually shut things down" was
an "equivocal modification" of his testimony that Crancer told him
"he wanted to shut down the operation at Dallas." The Trial Exam-
iner's stated reasons for this finding were that the record is barren
of any explanation why that same evening Crancer sent Hill a wire
to shut down at once and completely, and the reason set out in the wire
is wholly inconsistent with a gradual shutdown. The majority con-
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tends that this is all explained by the cancellation of a large order by
a customer in the period between the telephone conversation and the
sending of the wire; that the cancellation was the reason for the sud-
den change in plans from a gradual shutdown to a complete shutdown.
This is sheer speculation in view of the fact that Crancer did not so
testify," and in view of the further fact that Crancer's wire assigns
the inefficient operation of the plant as the reason for the complete
shutdown and does not mention the cancellation. I therefore believe
that the Trial Examiner was correct in finding that Hill's testimony
in this connection was equivocal and not credible.
The majority also disagrees with the Trial Examiner that Hill's
testimony that the shutdown was caused in part by a production
decrease must be rejected, because Hill's testimony revealed that there
had been an increase rather than a decrease during the month prior
to the shutdown. The majority does not dispute that there was an
increase in production during the month prior to the shutdown,27 but
contends that the Trial Examiner should have considered the produc-
tion figures for October and November 1953, and not just those for
December 1953 and January and February 1954, because the produc-
tion figures for October and November were substantially higher than
they were for the months cited by the Trial Examiner. This conten-
tion, however, fails to take into account that the production of 1 ,605
tons was for only 3 weeks in February, that on a 4-week basis produc-
tion for that month would have been 2,140 tons, and such production
was therefore comparable to the production of 2,215 and 2,177 tons,
respectively, for the months of October and November. Thus, even
if the production figures for October and November are considered,
Hill's testimony on production figures is inconsistent with his claim
that there had been a decrease in production which contributed to the
shutdown. The majority appears to argue further that the cancella-
tion of the large order by a customer also supports Hill's claim that
a decrease in production contributed to the shutdown. I fail to see
how the cancellation lends any support to this claim of Hill in view
of the fact that the decision to shut down was made before the can-
cellation was received.
Moreover, for this reason, and for the further reason that Crancer's
wire failed to mention the cancellation, it is clear, as found by the
Trial Examiner, that there is no support for Hill's further claim that
the cancellation itself contributed to the shutdown. The majority
contends that the Trial Examiner's reasoning is "circular" in reject-
ing Hill's testimony that Crancer's first instruction was for gradual
shutdown because of the absence of any explanation why Crancer
Crancer did not appear as a witness at the hearing
As stated by the Trial Examiner , during February 1 954, although the plant operated
only 3 weeks instead of 4, production increased by about 30 percent over the preceding
month
VALLEY STEEL PRODUCTS CO. 1351
that same evening changed the instruction to a complete shutdown,
and then in considering the cancellation, a possible explanation, re-
jected it because the order for a complete shutdown had already been
given. There might be some merit to this contention if the possible
explanation had some support in the record. However, as already
indicated, Crancer's wire giving the second instruction failed to men-
tion the cancellation as a reason for the complete shutdown. And
here again, in the absence of any supporting testimony by Crancer,
and in view of the fact that Crancer's wire specifically mentions only
the inefficient operation of the plant as the reason for the complete
shutdown, the majority engages in pure speculation in concluding,
on the basis of "inference piled upon inference," that the wire im-
pliedly referred to the cancellation.
The majority states that it perceives no inconsistency or defect in
Hill's testimony that lie had difficulties with Vice-President Bullock
at the plant, and that this was another contributing factor to the
shutdown. In support thereof, the majority points to testimony of
both Hill and Barber that there were such difficulties. However, the
majority completely ignores the defects in Hill's claim that such al-
leged difficulties were a contributing factor to the shutdown. Thus,
as pointed out by the Trial Examiner, no credible reason was ad-
vanced as to why all production workers had to be laid off in order to
settle an executive quarrel, and in March the plant reopened with no
change in Bullock's status except the placement of a sign over his
door saying "Sales Office Only."
The Trial Examiner found that Hill also attributed the shutdown
to difficulties with Foreman Sickles, and found this inconsistent with
Hill's testimony which indicated that the Sickles problem had been
substantially solved at the time of the shutdown. The majority agrees
that Hill's testimony revealed that the problem had been solved,
but disagrees that Hill stated that this was a factor contributing to
the shutdown. Although Hill may not have specifically stated that the
Sickles problem was one of the reasons for the shutdown, it is cer-
tainly implicit in his testimony. Moreover, the Respondent in its
brief gives page references to testimony concerning difficulties with
Sickles, and appears to urge the Sickles problem as one of the con-
tributing factors to the shutdown in the same manner as its other
alleged reasons for the shutdown. I believe the Trial Examiner was,
therefore, correct in finding that Hill also attributed the shutdown to
difficulties with Sickles and, as admitted by the majority, that this
testimony was inconsistent with the solution of the problem by the
time of the shutdown.
The majority attacks the Trial Examiner's finding that Hill, in
describing the February 24 layoff, was inconsistent in his testimony
as to whether the Union was mentioned at all on that occasion.
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Whether inconsistent or not, I regard Hill's testimony in this connec-
tion as so ambiguous and evasive as to be unworthy of credence 28 The
majority also disagrees with the Trial Examiner's alleged finding that
Hill's denial that Caldwell or Lloyd asked questions about the Union
is inconsistent with his testimony that he had answered several such
questions, because Caldwell and Lloyd were laid off on the previous
day and were not present at the time of the shutdown. So far as I
can discover, however, the Trial Examiner makes no such finding.
Finally, the majority attacks the Trial Examiner's finding that
Hill's testimony was further discredited by his stated reason for the
reopening of the Dallas plant on March 15, 1954. The basis for this
attack is that, contrary to the Trial Examiner's finding that Hill testi-
fied that he only told Crancer, "I had moved my family down here
and I did not want to go anywhere else," Bill testified that he told
Crancer that he liked Dallas and thought he could make a go of it-
and also added that the plant was reopened an representations by him
and Bullock that they could run it successfully. Even this testimony,,
however, has serious flaws. Crancer's wire directing the shutdown
stated that "we are forced to suspend operations until such time as
we can furnish the proper supervisory personnel." Three of the
reasons given by Hill for the shutdown were Hill's troubles with Bul-
lock, decreased production, and the loss of a big customer. Yet the
plant reopened only 3 weeks later with the same supervisory per-
sonnel,'9 with the same background of Hill's alleged troubles with
Bullock and the alleged decreased production, and the still outstand-
ing loss of a big customer." Under such circumstances, I find it
difficult to believe, as claimed by Hill, that the Respondent reopened
the plant just because he told Crancer that he liked Dallas and thought
he could make a go of it, and he and Bullock said they could run
the plant successfully.`
In summary, my analysis of Hill's testimony does disclose the in-
consistencies and defects adverted to by the Trial Examiner, and in
my opinion it reveals that Hill was unclear, equivocal, and inconsistent
in many material respects. Accordingly, I would, like the Trial
Examiner, discredit Hill's testimony.
Moreover, I note, as the Trial Examiner did, that Crancer who gave
the orders for the shutdown and was thus in the best position to know
the reasons for the shutdown, was not called as a witness, and no
showing was made that he was not available to testify. "All evi-
dence," as Lord Mansfield said in Blatch v. Archer (Cowper, 63, 65),
"is to be weighed according to the proof which it was in the power
2s See footnote 15, sups a, foi the text of Hill's testimony in this connection
29 As already indicated , the only change was the placement of a sign over Bullock's door
saying "Sales Office Only "
3O As stated by the majority, this customer transferred its business from the Dallas
plant to another of the Respondent 's plants.
VALLEY STEEL PRODUCTS CO. 1353
of one side to have produced and in the power of the other side to
have contradicted." See Kirby v. Tallmadge, 160 U. -S. 379, 383.
Consequently, "The failure under the circumstances to call as wit-
nesses those . . . who were in a position to know . . . is itself per-
suasive that their testimony, if given, would have been unfavorable
. . ." Interstate Circuit, Inc. v. U. S., 306 U. S. 208, 226; cf. N. L. B. B.
v. Ohio Calcium Co., 133 F. 2d 7211727 (C. A. 6).
Finally, I note, as the majority does, that the Board's policy is "not
to overrule a Trial Examiner's resolutions as to credibility except
where the clear preponderance of all the relevant evidence convinces
us that the Trial Examiner's resolution was incorrect." 31 Clearly,
for the reasons already stated, this policy does not permit a reversal
of the Trial Examiner's credibility findings in this case.
Accordingly, I would affirm the Trial Examiner's findings that on
February 23 and February 24 Hill told the employees that they were
being laid off because of the Union; that these statements constituted
violations of Section 8 (a) (1) ; that these statements also represented
the real reason for the layoffs, in view of the confused, inconsistent,
unsupported, and thus incredible testimony by Hill as to the alleged
reasons for the layoff; and therefore that the layoffs of Caldwell and
Lloyd on February 23 and the rest of the employees on February 24
were discriminatory in violation of Section 8 (a) (3) and (1).32
Standard Dry Wall Products, Inc, 91 NLRB 5-14
While I consider the reasons stated by the Tiial Examiner clearly sufficient to support
his finding that the layoffs were discriminatorily motivated , the following additional facts
also support that finding * ( 1) Testimony by Assistant Foreman Barber that before the
layoffs on February 23, upon hearing that Barber knew of the union organization, Hill
stated that "if the boys had talked with him and let him know about this he might have
been able to straighten it out " , ( 2) the lack of any notice to the laid-off employees , and
(3) the fact that the layoffs took place only 3 and 4 days after union organization began
in the Respondent ' s plant
Intermediate Report
STATEMENT OF THE CASE
Charges having been duly filed and served, a complaint and notice of hearing
thereon having been issued and served by the General Counsel of the National Labor
Relations Board, and an answer having been filed by the above-named Respondent
C6mpany, a hearing involving allegations of unfair labor practices in violation of
Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended (61
Stat. 136), herein called the Act, was held in Dallas, Texas, on July 13 and 14, 1954,
before a duly designated Trial Examiner.
In substance the complaint, as amended at the hearing, alleges and the answer
denies that the Respondent: (1) Discriminatorily and to discourage membership in the
Charging Union, on February 23 and 24, 1954, laid off and refused to reinstate until
March 15, 1954, the employees named on Appendix A, attached hereto; (2) interro-
gated, threatened, and warned employees concerning their activities on behalf of the
Union; and (3) by such conduct interfered with, restrained, and coerced employees
in the exercise of rights guaranteed by Section 7 of the Act.
At the hearing all parties were represented and were afforded full opportunity to
be heard, to examine and cross-examine witnesses, to introduce evidence pertinent
to the issues, to argue orally upon the record, and to file briefs and proposed findings
of fact-and conclusions of law. General Counsel argued orally upon the record. A
brief has been received from counsel for the Respondent.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Disposition of the motion to dismiss, made by the Respondent at the close of the
hearing and upon which ruling was then reserved, is made b5' the following findings,
conclusions, and recommendations.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Valley Steel Products Co. is a Missouri corporation, having its principal office and
place of business in St. Louis, Missouri, and maintains and operates a plant and
warehouse in Dallas, Texas, with which this case is concerned At its Dallas plant
it is engaged in the manufacture, sale, and distribution of steel pipe and related prod-
ucts. During the 12-month period ending March 30, 1954, the Respondent at its
Dallas plant purchased raw materials and equipment, consisting principally of steel
pipe and tubing, valued at more than $200,000, of which more than 95 percent was
shipped in interstate commerce to the Dallas plant from points outside Texas. Dur-
ing the same period, it sold products valued at more than $200,000, of which more
than 95 percent was shipped in interstate commerce from its Dallas plant to points
outside Texas.
The Respondent is engaged in commerce within the meaning of the Act.
II THE LABOR ORGANIZATION INVOLVED
Shopmen's Local 536 of the International Association of Bridge, Structural and
Ornamental Iron Workers, AFL, is a labor organization admitting to membership
employees of the Respondent at its Dallas plant.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
The major issue here stems from the Respondent's admittedly precipitate layoff
of all employees on February 23 and 24, 1954, and refusal to reinstate them until
March 15, 1954 It is General Counsel's claim, in short, that this layoff, or lockout,
was in violation of the Act in that it was designed to discourage union membership
and activity, knowledge of which the top management official admittedly gained a
few hours before the layoffs began. The Respondent, on the other hand, claims that
the layoffs were for other and legitimate reasons
B. The lockout
Organization of the Respondent's approximately 22 employees began about Febru-
ary 20, 1954. Most of them signed union authorization cards that day. Plant Man-
ager Charles E. Hill became aware of these self-organizational activities, according to
his own testimony, by February 23. He testified: "I suppose I knew it but it was not
important to me " That Hill was concerned about it, and so expressed himself, is
established by the uncdntradicted testimony of Assistant Foreman M. W. Barber,
a witness first called by General Counsel and later by the Respondent. Early in the
afternoon of February 23, in Hill's presence, Foreman Sickels asked his assistant,
Barber, if he knew anything about this Union "deal." Barber admitted it. Hill said,
according to Barber, that "if the boys had talked with him and let him know about
this, he might have been able to straighten it out." From his own testimony it is
also reasonably inferred that Hill and Vice-President Bullock, at the Dallas plant,
conferred on February 23 about the Union. The pertinent quotation is.
Q. You did discuss it with Mr. Bullock on the 23rd of February that the men
were joining the union?
A. I did not discuss it. He told me. I verified it It might have been some-
body else; I think he verified it. I don't know.
After learning of the union activity, Hill communicated with the president of the
company, L. A. Crancer, in St. Louis. Although the record contains no direct testi-
mony on the point, it is reasonable to infer that Hill informed Crancer of the organi-
zational efforts. According to his own testimony, he was in the habit of thus talking
with Crancer "five and six times a day," and he specifically testified having talked
VALLEY STEEL PRODUCTS CO. 1355
with Crancer shortly before 5 o'clock on February 23 Crancer told him, according
to Hill, that "he wanted to shut down the operation at Dallas." 1
Soon after his conversation with Crancer, Hill laid off three men: W. Z. Adams,
Otis Caldwell, and L. L. Loyd. Based upon the credible testimony of Caldwell and
Loyd, the Trial Examiner finds that Hill told them, in substance, that he had to lay
them off because of orders from St. Louis, and that when Caldwell asked why, Hill
added that it was because of the Union 2
When Hill came to the plant early the next morning, as other employees were re-
porting for work, he found a wire sent the night before from Crancer. That wire
stated,
It appears that the key men that we sent to Dallas to attempt to run that branch
on an efficient basis have failed Stop Consequently we are forced to suspend
operations until such time as we can furnish the proper supervisory personnel.
Although the testimony of several witnesses is not in entire agreement as to certain
details of steps then taken by Hill (a not uncommon phenomenon when honest men
attempt later to reconstruct precisely what each has seen and heard) it appears that
Hill went to the bulletin board near the time clock and posted the wire, telling some
men gathered near what it said. Shortly thereafter he approached an assembly of
most of the employees, warming themselves at the shop stove, and told them that the
plant was to be shut down. Finally Assistant Foreman Barber asked if he could
speak freely. Hill agreed. In the presence of the other men Barber then asked,
"Did you close us down on account of the Union?" Hill replied, "That's right." 3
The entire force, including Barber, was then laid off. The Union promptly with-
drew its petition for certification, and later the same day filed charges of unfair labor
practices. Two days later each of them made formal and written requests for rein-
statement. On March 13 the Respondent wired each of those laid off (with the ex-
ception of two not here involved) instructing them to report for work on March 15.
On that day they returned and resumed work.
It has been found that, among other reasons, Hill told the employees that they
were being laid off because of the Union. Whatever the real reason for the sum-
mary action, then the manager's stated reason plainly constituted a violation of Sec-
i The Trial Examiner cannot find credible Hill's equivocal modification of his testimony
regarding his instructions from Crancei He said, in addition to the quotation noted above,
that Crancer "said that he wanted to shut down gradually, and that he wanted to lay off
about six nien a day, and gradually shut things down" If Ciancer did instinct him to
lay the men off "giadually," then the record is barren of an explanation why, that same
evening, Ciancer sent hint a wiie to shut down at once and completely Furthermore, the
reason set out in the later wire, which is quoted in full hereinafter, is wholly inconsistent
with a "gradual" shutdown
i The Trial Examiner is unable to place credence in Hill's denial that he said anything
about the Union on this occasion As noted elsewhere in this ieport, many particulars of
his testimony aie equivocal and inconsistent And although Adams, the third employee to
be laid off, when called as a witness for the Respondent said that he did not hear anything
said about the Union, he also admitted that he could not recall all that was said Fui-
thermorc, as found hereinafter, the credible evidence is overwhelming that Hill, in reply
to a question put by Assistant Foreman Barbel (whom the Respondent appaiently con-
sidered credible since he was later called as its witness), when all other employees were
laid off the first thing the next morning, gave a similar reply.
i As a witness, Hill admitted that Barber asked him this question, but claimed that in
reply he pointed to the posted telegram and said, "That is it," and explained this evasive
answer by saying that he had "explained it to everybody " "I had answered 'No' at various
times," he said, "I had answered 'No' in various forms, I had said, 'No, we are short of
work, and because Bullock and I are having trouble, and our order from Lone Star Steel
has been cancelled' I gave several different reasons but in the negative each time , but
when Mr Baiber asked me, I thought I had answered the question enough times " Hill
identified no individual, however, who had asked him the same question put to hint by
Barber-indeed, he flatly denied that any 1 of the 3 lie laid off the night before asked luny
that question On cross-examination, in contradistinction to his original claim that he
had "explained it to everybody," and had said "no" in various "forms" and at various
"times," he said, "I was asked at different times, by I would say, two or three men-if the
Union was ever mentioned, it was in such a way " Thus, even in the few minutes between
direct and cross-examination, Hill appaiently had acquired a doubt as to whether the
Union was even mentioned The Trial Examiner is unable to place reliance upon Hill's
testimony
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 8 (a) (1) of the Act in that it might reasonably be considered by the employees
as coercive, and designed to discourage them in continued union membership.
The Trial Examiner believes it reasonable to conclude that Hill's stated reason
was the actual motive for the sudden layoff, unless other credible evidence negates
that conclusion. The individual-Crancer-who apparently gave the order for the
action was not called as a witness. No showing was made that he was not available
to testify, directly, as to his own motive. The record contains only the testimony of
one management witness, Hill, who was merely the recipient of the order. Hill made
no claim, as a witness, that he recommended a complete shutdown of the plant, al-
though he was the one person who, according to his testimony, had been sent down
from St. Louis early in February to "economize in every way possible."
In an attempt to comb from Hill's confused testimony the reason or reasons he
wished to have believed as to why Crancer gave the order for layoff, the following
are identified: (1) His trouble with Bullock, a vice president of the Company and
manager until he came to Dallas early in February; (2) falling off in production;
(3) his difficulties with Foreman Sickels; and (4) a customer's dissatisfaction with
certain products.
As to Hill's troubles with Bullock, the record contains only Hill's account of
them, which is so confused as to raise doubt as to its accuracy. Even if it may be
reasonably inferred from his testimony that he, the manager, and Bullock, the vice
president , were not in entire accord on policies and procedures, no credible reason was
advanced as to why all production workers had to be laid off in order to settle an
executive quarrel. And the merit of the claim is erased completely by the fact that
in March the plant reopened, the employees were recalled, and production was re-
sumed, with no change in Bullock's status except the placement of a sign over his
door saying "Sales Office Only," while Bullock continued on the job for many weeks
thereafter. It is concluded and found that the quarrel between Hill and Bullock, if
it existed was not a factor in the general layoff of February 23 and 24.
Nor is there reasonable merit in point (2) concerning production. The only com-
parative evidence offered by the Respondent were oral claims by Hill. According
to him, the tonnage figures for December 1953 were 1,439; for January 1954, 1,198;
and for February 1954, 1,605. It is clear from Hill's figures, if they are to be be-
lieved, that during February, the month Hill came to take charge, although the plant
operated only 3 weeks, instead of 4, the tonnage production increased by about 30
percent over the preceding month.
The claim as to difficulties with Foreman Sickels, point (3), is as devoid of merit
as that concerning Bullock. According to Hill's own testimony, Sickels' authority
had been taken from him shortly after February 8, when Hill came to Dallas. Ac-
cording to Hill, he knew within a day or two after February 8 that he had to "get rid"
of Sickels. He offered no reason for not exercising his own judgment and discharg-
ing him at once. The fact is he did not discharge him, but kept him on until after
the general layoff, and then, at Sickels' own request, permitted his transfer to an-
other of the Respondent's plants. Clearly the Sickels factor was not involved in the
layoff of all employees.
As to point (4), customer's dissatisfaction with the quality of certain products, it
does appear, from Hill's testimony, neither supported nor refuted, that sometime late
on February 23, a customer complained to Bullock, and that he and Bullock con-
ferred about it that same night. If Hill is to be believed on this point, then the record
is without reasonable explanation as to why Crancer told him, earlier in the day,
to start suspending operations. (For before the plant closed that day, Hill laid off
three men upon Crancer's orders, according to his testimony.) Hill further ex-
plained that after his conference with Bullock, the night of February 23, he called
Crancer about it, and was then told to suspend operations "until we could decide
what to do with Bullock and what to do about" the customer. The Trial Examiner
is unable to accept, as credible, Hill's account of these events. If l?is testimony is to
be accorded face value, then on three separate occasions on February 23 Hill received
instructions from Crancer to "suspend" operations: in the afternoon before laying
off three men, at night after his conference with Bullock, and by a telegram sent that
same night. Had the customer's complaint been, as Hill quoted Crancer as saying,
"the straw that broke the camel's back," then it was a weak straw indeed, for it is
not mentioned in the telegram thereafter sent by Crancer.
Casting further discredit upon the various reasons advanced by Hill for the layoff
is his own testimony to the effect that the one reason the plant was reopened on
March 15 was his request to Crancer. He told Crancer, he said, that "I had moved
VALLEY STEEL PRODUCTS CO. 1357
down here and had my family here and I did not want to go anywhere else " And
the only change made, according to his own testimony, was the placement of a sign
over Bullock's door. Furthermore, it appears that the Respondent is still doing busi-
ness with the complaining customer.
Out of the confused inconsistent and unsupported claims advanced by Hill as the
reasons why Crancer ordered the shutdown the Trail Examiner is persuaded of but
one fact-that there is no merit in any or all of them.
The real reason, the Trial Examiner is convinced, is to be found in Hill's candid
admission to the men laid off on February 23, and to Barber on the morning of
February 24, in the presence of those then laid off. Since, as Hill said, he talked
with Crancer 5 or 6 times each day, it is reasonable to infer that he informed the
president of the union activity and petition, and from him received orders to sus-
pend operations. Such inference is especially reasonable in view of the fact, found
above on the basis of undisputed testimony, that Hill expressed to two supervisors,
during the afternoon of February 23, his concern about the organizing of the em-
ployees In any event, whether acting upon instructions from Crancer or Bullock,
or upon his own judgment, Hill locked out the employees listed on Appendix A, at-
tached hereto, the Trial Examiner concludes and finds, because of and to discourage
union activity. The inference reasonably follows that the cessation of the Com-
pany's operations was a temporary expedient for the purpose of dislodging a labor
organization and evading the statutory obligations to bargain collectively. (See
N L. R B v Cape County Milling Co, 140 F. 2d 543 (C. A. 8)) The lockout
was discriminatory, and interfered with, restrained, and coerced employees in the
exercise of rights guaranteed by the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section 1, 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 com-
merce and the free flow of commerce
V THE REMEDY
It has been found that the Respondent has engaged in and is engaging in unfair
labor practices. It will be recommended that it cease and desist therefrom and take
certain affirmative action in order to effectuate the policies of the Act.
Since it has been found that all employees here involved were reinstated, or offered
reinstatement, as of March 15, 1954, affirmative remedy will be limited to the recom-
mendation that all individuals named on Appendix A, with the exception of Barber,
be made whole for any loss of pay they may have suffered, by reason of the dis-
criminatory layoff, between February 23, 1954, and March 15, 1954. (Although
the actual layoff of most of the employees was on February 24, none of them were
permitted to work that day ) Barber is excluded from this remedy, since the evi-
dence is convincing that on February 24 he was a supervisor within the meaning
of the Act, with authority to hire and to fire, and at the hearing General Counsel
made it clear that, if his status as a supervisor were thus established, he made no
claim that he was entitled to back pay, under the terms of the amended Act. Each
of the others listed is to be made whole by payment to him of a sum of money equal
to that which he would have normally earned during the layoff period, less net
earnings during that period It will also be recommended that the Respondent make
available to the Board, upon request, payroll and other records to facilitate the
checking of the amount of back pay due
In the Trial Examiner's opinion, the commission of unfair labor practices gen-
erally is reasonably to be anticipated from the Respondent's unlawful conduct found
above. It will, therefore, be recommended that the Respondent cease and desist
from in any manner infringing upon the rights of the employees guaranteed in Section
7 of the Act
Upon the basis of the above findings of fact and upon the entire record in the
case, the Trial Examiner makes the following'
CONCLUSIONS OF LAW
1. Shopmen's Local 536 of the International Association of Bridge , Structural
and Ornamental Iron Workers, AFL, is a labor organization within the meaning of
Section 2 (5) of the Act.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By discriminating in regard to the hire and tenure of employment of employees
listed in Appendix A, thereby discouraging membership in a labor organization, 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. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication ]
Appendix A
M. W. Barber Abess Williams Frank Lujan
W. D. Caldwell O. C Skyler E. L. Mash
Otis Caldwell Bobby D. Lusk Lee Roy Howard
V. M. Hodkinson Dale G. Koenig Willie Pryor
Alfred Shaw W. L. Thompson Robert Shipp
D. F. Spivey J. A Sheldon E. B. Williams
George Smith Sherman Moore L. L Loyd
Appendix B
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board and in order to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify you that:
WE WILL NOT discourage membership in Shopmen's Local 536 of the Inter-
national Association of Bridge, Structural and Ornamental Iron Workers, AFL,
or in any other labor organization of our employees, by discriminatorily lock-
ing out , laying off, discharging, and refusing to reinstate any of our employees,
or in any other manner discriminating in regard to their hire and tenure of
employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor organi-
zations, to join or assist the above-named 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 bargaining or other
mutual aid or protection, or to refrain from any or all of such activities except
to the extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
WE WILL make whole the following employees for any loss of pay suffered
as a result of the discrimination against them.
W. D. Caldwell O. C. Skyler E. L. Mash
Otis Caldwell Bobby D. Lusk Lee Roy Howard
V. M. Hodkinson Dale G. Koenig Willie Pryor
Alfred Shaw W. L. Thompson Robert Shipp
D. F. Spivey J. A. Sheldon E. B. Williams
George Smith Sherman Moore L L. Loyd
Abess Williams Frank Lujan
All our employees are free to become or remain members of the above-named
union or any other labor organization . We will not discriminate in regard to their
hire or tenure of employment or any term or condition of employment because of
their membership in or activity on behalf of any such labor organization.
VALLEY STEEL PRODUCTS CO.
Employer
Dated---------------- By----------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced , or covered by any other material.