Shovel Supply Co.

National Labor Relations Board - Board Decisions

Jun 20, 1957

118 N.L.R.B. 235 (N.L.R.B. 1957)

SHOVEL SUPPLY COMPANY 235
L. C. Ferguson and E. F. Von Seggern , d/b/a Shovel Supply Com-
pany and Local 96, International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths , Forgers & Helpers, AFL-CIO.
Case No. 16-CA--894. June 20,1957
DECISION AND ORDER
On December 5, 1956, Trial Examiner Albert P. Wheatley issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had .engaged in and was engaging in unfair labor
practices within the meaning of Section 8 (a) (1) and (3) of the Act,
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 alleged in the
complaint, and recommended that the complaint be dismissed with
respect thereto. Exceptions were thereafter filed only by the Re-
spondent, together with a brief.
The Board 1 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 brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.
The Trial Examiner found, and we agree for the reasons set forth in
the Intermediate Report, that the record viewed as a whole estab-
lishes that the Respondent independently violated Section 8 (a) (1)
of the Act, and also violated Section 8 (a) (3) and (1) by discrimina-
torily laying off seven named employees on April 26, 1956.2 The
Respondent, having threatened its employees with reprisals for union
membership, believed that these employees nevertheless were union
members, and selected them for layoff for that reason. Supervisor
Charles thereupon announced that the Union "had just gone out the
door." That evening Superintendent Kuhn admitted to Maxwell that
the Respondent had discharged everybody who signed a union card.
The next day Supervisor Don Ferguson told Maxwell that he was
sorry to see him go, but that was how his father, the Respondent's
managing partner, felt about the Union.
Although the Respondent reinstated three of these employees be-
fore the hearing, it did so in the apparent belief that they were no
longer union members, as revealed in interviews occurring before re-
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [,Chairman Leedom and Mem-
bers Be," and Jenkins].
2 C. J. Ferguson , Harold Boone , Dials, Neal , Maxwell, Gonzales, and Larry.
118 NLRB No. 30.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instatement. Thus, far from tending to disprove the original dis-
crimination, the Respondent confirmed its unlawful purpose by such
action.
We have carefully considered all the arguments made by the Re-
spondent in its exceptions and brief, and particularly that the layoffs
were caused by a curtailment of operations and not union membership.
We agree with the Trial Examiner that any curtailment of operations
was but a pretext for these particular discriminatory layoffs and not
the moving cause, especially in view of the fact that the Respondent at
the same time was working its remaining employees overtime and was
also hiring new employees in the very same departments where the
layoffs occurred.
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 Respondent L. C. Ferguson and
E. F. Von Seggern, d/b/a Shovel Supply Company, Dallas, Texas,
their agents, successors, and assigns :
1. Cease and desist from :
(a) Discouraging membership in Local 96, International Brother-
hood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers &
Helpers, AFL-CIO, or any other labor organization of its employees,
by laying off or in any other manner unlawfully discriminating in
regard to hire or tenure of employment or any term or condition of
employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Local 96, International Brother-
hood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers &
Helpers, AFL-CIO, or any other labor organization, to bargain col-
lectively 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 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 em-
ployment, 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 C. J. Ferguson, Harold W. Boone, C. R. Maxwell,
and Theodore Gonzales immediate and full reinstatement to their
former or substantially equivalent positions without prejudice to their
seniority or other rights and privileges.
(b) Make whole C. J. Ferguson, Harold W. Boone, Larry Dials,
C. R. Maxwell, Theodore Gonzales, Clark C. Neal, and Matthew
SHOVEL SUPPLY COMPANY 237
Larry, Jr., for any loss of pay suffered by reason of the Respondent's
discrimination against them, in accordance with the Board's customary
formula.
(c) Preserve and upon request make available to the National Labor
Relations Board or its agents, for examination and copying, all records
necessary to determine the amounts of back pay due under the terms
of this Order.
(d) Post at its place of business in Dallas, Texas, copies of the
notice attached to the Intermediate Report marked "Appendix A." 3
Copies of said notice, to be furnished by the Regional Director for
the Sixteenth Region, shall be duly signed by the Respondent and
posted by it immediately upon receipt thereof and maintained for sixty
(60) consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent 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 have
been taken to comply herewith.
AND IT is FURTHER ORDERED that the allegations of the complaint
that the.Respondent discharged William C. Landahl in violation of
the Act be, and they hereby are, dismissed.
a This notice shall he amended, however, by substituting the words "A Decision and
Order" for the words "The Recommendations of a Trial Examiner." In the event that
this Order is enforced by a decree of the United States Court of Appeals, there shall, be sub-
stituted 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."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The above-captioned proceeding concerns allegations that L. C. Ferguson and E. F.
Von Seggern, partners doing business as Shovel Supply Company, herein called Re-
spondent , unlawfully laid off certain employees ( Harold W. Boone, Larry Dials,
C. J. Ferguson, Matthew Larry, Jr., C. R. Maxwell, Clark C. Neal, and Theodore
Gonzales on April 26, 1956, and William C. Landahl on May 26, 1956), and allega-
tions that Respondent by the aforesaid conduct and by other enumerated conduct
interfered with, restrained , and coerced employees in the exercise of their rights
guaranteed in the National Labor Relations Act, as amended , herein called the Act.
Respondent denies the unfair labor practices alleged and asserts that the layoffs
were "due to curtailment of operations under the exigencies of the business , including
the shortage of suitable steel and materials ." These issues were fully litigated at
a hearing before the Trial Examiner in Dallas, Texas , on September 18, 19, 20, and
21, 1956, at which all parties were represented. After the close of the hearing, briefs
were received from counsel for the General Counsel and counsel for Respondent
which have been considered in the preparation of this report.
There is no dispute concerning the following matters and the evidence reveals and
the Trial Examiner finds that : ( 1) Respondent is engaged in commerce or in a
business affecting commerce within the meaning of the Act; (2) Local 96, Interna-
tional Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths , Forgers &
Helpers, AFL-CIO, herein referred to as the Union, is a labor organization within
the meaning of. the Act; (3).Harold W. Boone, Larry Dials, C. J. Ferguson, Matthew
Larry, Jr., C. R. Maxwell, Clark C. Neal, and Theodore Gonzales were laid off on
April 26, 1956; (4) Clark C. Neal, Matthew Larry; Jr., and Larry Dials were re-
instated on May 3, July 3, and July 9, 1956, respectively; (5) William C. Landahl
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was laid off on May 26, 1956; and (6) Harold W. Boone, C. J. Ferguson, C. R_
Maxwell, Theodore Gonzales, and William C. Landahl have not been reinstated.
The disputed matters herein concern the reason for the aforementioned layoffs,
and the responsibility of Respondent for certain remarks allegedly made by alleged
officials of Respondent. Respondent denies that the remarks were made and further
asserts that the leadmen who allegedly made the remarks are not persons for whose
conduct Respondent is responsible.
L. C. Ferguson and E. F. Von Seggern, partners doing business as Shovel Supply
Company, engage in the manufacture and distribution of road construction equip-
ment and supplies in Dallas and Houston, Texas. The principal place of business is.
in Dallas, Texas, and the Dallas plant is the only one involved herein. L. C. Fergu-
son is the chief executive officer and operating head of the Dallas plant. Carl Kuhn
is the general superintendent of this plant. Next in authority below Kuhn are two
sons of L. C. Ferguson, namely, Don Ferguson and Lynn Ferguson. Each of these
individuals is a supervisor within the meaning of the Act and there is no dispute
herein concerning their status as such. However, various departments are headed
by persons called leadmen and there is an issue herein as to whether these leadmen
(Eugene C. Stoner, leadman in the machine shop, Isaac (A]) Whidden, leadman
in the 25-ton roller department, and Bill Charles, leadman in the 2- to 3- and 3- to
5-ton roller department) are supervisors. The duties and authority of these leadmen
are substantially equal. As indicated above, each of these leadmen heads up a
department. Each has other employees working under him for whose work the
leadman is responsible. The leadman directs the work in his department, making
assignments and reassignments as various phases of the operation and as the occasion
requires. Also, leadmen interview applicants ifor employment and effectively recom-
mend hiring, transfer, layoff, recall, or discharge. Leadmen are paid 10 cents per
hour more than regular production and maintenance employees. The Trial Ex-
aminer believes and finds that leadmen are supervisors within the meaning of
Section 2 (11) of the Act.'
This is one of those cases where the witnesses for the General Counsel are
thoroughly contradicted by the witnesses for Respondent and it is not possible to
reconcile the conflicting testimony of the two groups. Nevertheless, after observing
the witnesses and carefully analyzing the record, the Trial Examiner cannot conclude
that neither group should be relied upon and that the case should be dismissed for
failure to carry the burden of proof. To the contrary, the Trial Examiner believes
that the witnesses for the General Counsel should be credited. They appeared to be
truthful witnesses, the events narrated by them follow a sequence not unusual
during initial stages of union organizational efforts, 2 and their testimony is not self-
conflicting and contradictory. On the other hand, Respondent's witnesses contra-
dicted themselves and one another, and in instances their testimony on direct, and
in some instances on both direct and cross-examination left implications against the
General Counsel which upon further examination do not stand up.3 Respondent
takes the position that inasmuch as it was necessary to effect a reduction in force,
the employees involved herein, rather than other employees, were selected for layoff
because they were less desirable and Respondent undertook to establish that each
of the employees involved herein had certain deficiencies which made him less de-
sirable. In many instances the witnesses who testified for Respondent concerning
these deficiencies in their direct examination left an impression that the employee
involved was totally incompetent, but further examination of the same witness either
partially or wholly eradicated this impression. Furthermore, L. C. Ferguson appeared
to be of a temperament likely to make the statements attributed to him under the
circumstances revealed by this record.
'The facts concerning the duties, functions, and authority of leadmen are not largely
in dispute ; the controversy is as to the legal consequences which spring from then (whether
under the Act they are supervisors).
2 The layoffs occurred at a time when the above-named Union was engaged in organizing
Respondent's employees.
3Examples of this type of testimony are readily available, but the Trial Examiner be-
lieves the following examples are sufficient for illustrative purposes : (1) The testimony of
Plant Superintendent Kuhn with respect to the reasons for the.layoff of Gonzales is, self-
contradictory and contrary to that of partner L. C. Ferguson ; and (2) L. C. Ferguson, on
direct and cross-examination left an impression that Landahl was laid off because of com-
plaints from Respondent's insurance firm concerning injuries sustained by Landahl, but an
examination of the entire testimony of L. C. Ferguson and the entire record reveals there
were no complaints from the insurance firm directed specifically to Landahl.
SHOVEL SUPPLY COMPANY 239
The April 26 , 1956 , Layoff 4
In June 1955 C . J. Ferguson was interviewed for employment by partner L. C.
Ferguson ( these Fergusons are not related ). On this occasion these individuals dis-
cussed the ability of C. J . Ferguson to operate the machines which Respondent
uses and the rate of pay which C. J. Ferguson sought and then L. C. Ferguson asked
C. J. Ferguson whether he was a union member. After C. J. Ferguson replied he was
not, he was told to go talk to Eugene Stoner ( leadman in the machine shop ) further
about the work.5 Stoner questioned C. J. Ferguson about his experience and inquired
whether he (C. J. Ferguson ) was a union member. When Ferguson replied that
he was not , Stoner informed him that "Mr. Ferguson [ partner L . C. Ferguson]
was very muchly against the Union and it would be best for me to forget all about
the Union if I intend to go to work there ." Stoner also said that Respondent's
employees had tried to get a union once before and "Mr. Ferguson had fired the men
involved. " Immediately after this conversation , C. J. Ferguson was hired by Lead-
man Stoner . He went to work as a general machinist. Stoner categorically denied
making the statements attributed to him by C . J. Ferguson.
For reasons heretofore noted, the Trial Examiner credits the testimony of C. J.
Ferguson . More particularly , with respect to Stoner , the record reveals the follow-
ing: The general tenor of Stoner 's testimony is that C. J. Ferguson , for several
months prior to April 26, 1956, had been a very unsatisfactory employee because
he was too slow and that he ( Stoner ) had reprimanded Ferguson about this matter
several times . Yet, close analysis of Stoner 's testimony reveals that Stoner did not
tell Ferguson he (Stoner ) was "dissatisfied with his [Ferguson 's] work" and that
there was nothing different about what Stoner said to Ferguson than what he said
to other employees working with Ferguson and that Stoner's remarks were more
in the nature of prodding than in the nature of complaints about slowness. Also,
the general tenor of Stoner 's testimony is that William C. Landahl had been a very
unsatisfactory employee in that he was inefficient at operating Respondent 's equipment
and his workmanship was very poor and that Landahl was discharged because of too
many accidents and poor workmanship . Nevertheless , Stoner testified that he did
not talk to Landahl about these matters and the only reason he (Stoner ) gave Landahi
for laying him off was "too many accidents ." Stoner denied having any knowledge
or suspicion prior to the layoff on April 26, that "union activity was going on out there
in the Plant ." He testified , "I didn't hear anything about the Union even being con-
nected or even talked about it until a day or so after that [after the layoff]." Stoner
further testified he did not remember talking to C. J. Ferguson about the Union on
several occasions prior to the layoff and that he did not ever recall discussing the
Union in the presence and hearing of an employee named Owen and that he
did not "discuss the Union with any other leadman." The testimony of employees
C. J. Ferguson and Clark C . Neal and of Leadman Jessie L. Boone is directly to
the contrary of that given by Stoner concerning these matters.
Two or three weeks prior to April 26 , 1956, a general wage increase was made
effective at the plant involved herein . C. J. Ferguson , C. R. Maxwell, Clark C.
Neal, and Harold W. Boone were "disappointed in the raises " they received and began
considering , among themselves , the advisability of joining a union. On the morning
of April 16 , 1956, C. J. Ferguson telephoned J. M. Scott, general organizer for the
Union involved herein, and told him the employees of Respondent were interested
in a union and wanted a meeting to discuss the matter . Scott agreed to meet with
the employees after working hours that day and a meeting was scheduled for that
evening at the Four Brothers Cafe, which is located about a block from Respondent's
plant. C. J. Ferguson then talked to Clark Neal , Stanley Mason, Harold Boone,
Jessie Lee Boone , and C. R. Maxwell and "several other fellows " and advised them
of the meeting to be held that night . The meeting was held as scheduled and was
attended by C. J. Ferguson , Clark Neal, Stanley Mason , Harold Boone, Jessie Lee
Boone, and C. R. Maxwell. While these individuals were assembled in the Four
Brothers Cafe, Don Ferguson , son of partner L. C. Ferguson , came into the cafe.
4 The ' findings of fact are based upon - a consideration of the entire record and observa-
tions of witnesses . All evidence on disputed points is not set forth so as not to burden.•
unnecessarily this report . However, all has been considered and where required , resolved.
In determining credibility the Trial Examiner has considered inter alia ; the demeanor and
conduct of witnesses , their candor or lack thereof ; their apparent fairness , bias or
prejudice ; their interest or lack thereof : their ability to know , comprehend , and understand
the matters about which they have testified ; whether they have been contradicted or other-
wise impeached ; and consistency and inherent probability of the testimony.
L. C. Ferguson did not testify with reference to this conversation.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The employees left the cafe and continued their meeting at a nearby parking lot.
Following this initial meeting and up to April 26, 1956, Organizer Scott met on sev-
eral different occasions with groups of Respondent's employees. The employees at
the meeting on April 16 signed union authorization cards that date. The other em-
ployees involved herein signed such cards on the dates indicated below:
Larry Dials____________ The record does not reveal the date Dials signed such
card but does infer that he signed such a card prior
to April 26.
Matthew Larry, Jr.----- April 25, 1956.
Theodore Gonzales----- April 17, 1956.
William C. Landahl_____ April 17 or 18, 1956.
On April 23, 1956, Isaac (Al) Whidden, leadman in the 25-ton roller department,
told Theodore Gonzales that "one of the men that we trusted the most knew what
was going on and was taking Mr. Ferguson [partner L. C. Ferguson] all the infor-
mation about the Union, that he [Ferguson] knew the time of the meetings and
who signed the cards."
On April 24, 1956, Gonzales remarked to Whidden that he (Gonzales) "hated to
.see a Union come in because it would knock out a lot of overtime" and Whidden
replied that if he (Whidden) "had anything to do with it the Union wouldn't
.come in.,,
During the forenoon on April 25, 1956, Whidden told Gonzales that he (Whidden)
.and his brother, George Whidden, were going to try their best to keep the Union
from coming in even if it meant telling L. C. Ferguson about it and that L. C. Fergu-
son had told him (Whidden) about having a list of 12 men that signed cards for
the Union, and he (Gonzales) was one of them, and he (Gonzales) "had better
start hunting for another job," because he was going to get "run off" the next day.
That afternoon (about 4:30 p. m. on April 25) L. C. Ferguson and Whidden con-
ferred in the 25-ton roller department for about 15 minutes and at the conclusion
.of this conversation Whidden came to Gonzales and told him to forget about what
he (Whidden) had told Gonzales that morning because he (Whidden) was just
joking about it.
As noted elsewhere in this Report, Gonzales was laid off on April 26, 1956.
Whidden categorically denied making the statements noted above, which were
.attributed to him by Gonzales. According to Whidden, Gonzales had been a good
worker (so good in fact that at Whidden's request he was transferred from another
.department to the 25-ton roller department around the first part of 1956), but about
a month before he was laid off he got to where he would not hold up his end of
the work-did a lot of "fooling around" and talking-and for the last 2 weeks he
was there, he was warned about such conduct (by Whidden) "at least twice and
maybe three times a week," and a couple of days before April 25, he was told
(by Whidden) that if he "didn't straighten out and start doing his work like he
should" he "just might as well look for another job because we wouldn't put up
with him messing around back there and half doing his work like he had been doing."
-Gonzales was not interrogated about "fooling around" or about "warnings." Whid-
den also denied that prior to April 26, he was aware of activity on behalf of the
Union. However, Jessie Lee Boone testified without contradiction that on or about
April 25, 1956, and before the layoffs, Whidden remarked to him (Boone) and
"to the Howard boy," while the three of them were talking about the Union, that
he (Whidden) "was going to do everything he could to keep a union out [of
Respondent's plant] even [if] it meant trying to get somebody fired." The Trial
Examiner credits Gonzales' testimony and finds that Whidden made the remarks
attributed to him and noted above.
Clark C. Neal testified that about noon on April 26 Leadman Stoner was invited
to eat lunch with 'him (Neal), "the Mason boy and another guy by the name of
.Jim" and that on this occasion the following occurred:
Q. What was said?-A. Well, Gene [Stoner] he wasn't sitting exactly over
there where we were. He was over there eating by himself and I asked him
what was wrong today and he wouldn't talk or nothing. He had his head down
and he raised up and said, No, he was just studying." He got up and came
over to where we were at.
Q. Did he say what he was studying about?-A. He didn't at that time. He
came.over where we was eating and he sat down and he said he was studying
about that union deal. I said, "what union deal.". And he said, "don't let on
that you don't know anything about it," and he started talking. He said he
didn't think a union would ever work there. He said if they did anything they
had better do it fast., that there would be some that would be fired. That was
.all that was said durig that time.
SHOVEL SUPPLY COMPANY 241
Neither "the Mason boy" nor the "guy by the name of Jim" testified herein . Stoner
did not "recall" or "remember anything like that." The Trial Examiner notes that
the conduct and statements attributed to Stoner by Neal are similar in kind to that
attributed to Stoner by other employees and in this light and on the basis of observation
of witnesses and the entire record herein credits Neal's testimony and finds the facts
to be as noted above.
On April 26, 1956, the Union involved herein filed a petition for certification
with the Sixteenth Regional Office of this Agency ( the Fort Worth office of the
National Labor Relations Board ). The time stamp of the Regional Office reveals
that this petition was filed at 12:30 p. m. This matter is referred to as Case No.
16-RC-1888.
When C. J. Ferguson , C. R. Maxwell, Harold W. Boone, Jessie L. Boone, Matthew
Larry, Jr., Larry Dials, Clark C. Neal, and Theodore Gonzales went to the time
clock to punch out at quitting time on Thursday , April 26, 1956, they found in
place of their timecards their final paychecks and a notice stating:
Due to curtailment of operations , we will not be able to use you after today.
Should we need you in the future , we will be glad to call you.
Thank you for your service.
Yours very truly,
L. C. FERGUSON.
Thursday was not the regular payday and these employees had no prior warning,
except as indicated in this report , that their jobs were in jeopardy . These were the
only employees laid off on April 26, 1956, and there have been no layoffs since that
date "because of shortages."
After receiving the layoff notice mentioned above, C. J. Ferguson "stayed around
a little bit and then went to the washroom to clean up and go home ." At that time
there were approximately 20 persons gathered in the washroom and Bill Charles,
leadman in the 2 - to 3- and 3- to 5-ton roller department , referring to the layoffs
"hollered out loud for everybody to hear" that "the union had just gone out the door."
Charles was not called as a witness in this matter.
During the early evening on April 26, 1956, C. R. Maxwell and his wife went
into a cafe where they had coffee with Cark Kuhn, plant superintendent . Maxwell
asked Kuhn the reason he and the other employees were "fired " and Kuhn told
him "well, Ray, I understand that Mr. Ferguson fired everybody that signed a union
card." Kuhn further stated that partner L . C. Ferguson had a man at the labor
temple giving him information and that he (L. C. Ferguson ) was letting every-
body go that had signed a union card . Kuhn told Maxwell that he (Kuhn) had
suggested to L. C. Ferguson that Maxwell and another employee not be laid off
because laying them off would put Kuhn "in a bind" and that L. C. Ferguson re-
fused to abide by this suggestion and was "letting them all go." When Maxwell
was employed in 1953 or 1954 ( the record is not clear when Maxwell was hired)
he was told by Kuhn that L. C. Ferguson did not like unions and that Maxwell
was "to understand we didn't have a union out there ." During the conversation on
April 26 , 1956, Kuhn stated to Maxwell "I believe I told you and everybody I hired
that Mr. Ferguson didn 't go for the union ." Kuhn also told Maxwell that L. C.
Ferguson had said, "that if men would stay with him that had been with him a long
time" before he would go union, he "would close the gate and lock the trucks up"
and go somewhere else and start over , that he (L. C. Ferguson ) "had built it up
from nothing, and before he would have anybody come in and tell him what to
do, he would quit." 6
G The above findings of fact are based upon the testimony of Maxwell which the Trial
Examiner credits . Kuhn denied that he ever made any attempts in connection with hiring
employees to determine whether they belong to a union or didn't belong to a union , denied
that at the time he hired Maxwell (or any other employee ) he told him ( or them) that
Mr. Ferguson did not approve of unions or would not go for unions or anything of that
sort, and denied that prior to the layoff he was aware of any union activities at the plant
or of activities on behalf of the Union by any of the employees involved herein. Kuhn
categorically denied that at the meeting with Maxwell and his wife he (Kuhn ) said "I
understand Mr. Ferguson fired every man who signed a union card," that he (Kuhn ) stated
"I believe I told you and every other man I hired that Mr. Ferguson did not go for unions"
and testified he (Kuhn ) did not tell Maxwell that he (Kuhn ) had suggested that Maxwell
and another man be retained and that L . C. Ferguson had rejected this suggestion and did
not tell Maxwell that L . C. Ferguson had said that before he ( L. C. Ferguson ) would allow
a union to come into the plant he would lock the gate and close it down . Kuhn further
testified he did not remember all of the conversation , that Maxwell asked why he had been
450553--58-vol. 118-17
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The day following the layoff , Maxwell went to the plant to get his tools. He met
Don Ferguson (son of L. C. Ferguson ) who remarked that he was sorry to see
Maxwell go, "but you know how the old man feels about the Union." 7 Maxwell
then talked to L. C. Ferguson . He asked L . C. Ferguson why he was fired and
L. C. Ferguson indicated that he had not been fired , that his ( Maxwell's ) work had
been "excellent" and that if he could use him again , he would call him. During
this conversation Maxwell volunteered that he (Maxwell ) was not promoting the
Union and L . C. Ferguson asked him who was promoting it. Maxwell stated he
did not know.8
On direct examination Theodore Gonzales testified that on April 27 partner L. C.
Ferguson told him that "the shop was really too small to try to get the Union in,"
that "in a shop of over 200 it would pay to bring a Union in, but the shop was too
small." On cross -examination and leading questions Gonzales, in reconstructing
this meeting , failed to allude to the above -quoted statements . L. C. Ferguson did
not testify with reference . to this matter . The Trial Examiner believes it of little
or no value to the issues herein whether L. C. Ferguson made these statements and
the undersigned makes no findings with respect thereto.
On or about May 2 , 1956 , C. J. Ferguson went to the plant to pick up his tools.
Stoner asked Ferguson if he was working and when Ferguson answered in the af-
firmative , Stoner remarked that he (Ferguson ) knew what was going to happen
because he ( Stoner ) had warned him (Ferguson ) about union activities . Stoner also
told Ferguson that partner L. C. Ferguson had talked to him (Stoner ) and to Plant
Superintendent Kuhn and told them that rather than have a union , Respondent would
"just close the doors and start all over again ." Stoner asked C. J. Ferguson whether
Clark Neal had signed a union card and upon receiving a negative reply stated that
he (Stoner ) "was going to try to" reemploy Neal.
Stoner denied making these statements to C. J . Ferguson . However, he did not
deny asking C. J. Ferguson whether Neal had signed a union card or telling Ferguson
that he ( Stoner ) was going to try to reemploy Neal. As noted above, Neal was re-
employed on May 3, 1956. He works under Leadman Stoner. Stoner did not give
his version of the May 2 meeting with C. J. Ferguson.
L. C. Ferguson denied that in talking to any "rank and file employees" he made
the statement that he would "close the plant down before " he would "let a union
come in ." He did not deny making such a statement to Stoner or to Kuhn. Kuhn
did not testify with reference to such statement.
The week following the layoff Neal asked Leadman Stoner "about me coming
back" and was told to see partner L. C. Ferguson . Neal went to Ferguson's office
and asked him about coming back to work. Ferguson criticized Neal for absenteeism
and for excessive use of alcoholic beverage , but agreed to take Neal back because he
was "a good hand." In the course of this conversation Ferguson asked Neal if he
"belonged to a union," and Neal answered "No, Sir." Ferguson also told Neal
that Respondent 's business started as a small shop and had been built up to a pretty
nice shop and that he (Ferguson ) did not want a union in the shop and "before
he would have a union in there he would close it down." 9
During the week following the layoff Leadman Bill Charles sent for Matthew
Larry and after getting Larry's assurance that he (Larry) was no longer connected
with the Union told him ( Larry ) that he (Charles ) would try to get him "back
on"-that he would talk to L. C . Ferguson about reemploying Larry and send
him (Larry ) word. In July, Charles again sent word to Larry to see him (Charles)
"about a job ." Larry did and was reinstated on July 3, 1956. When Larry reported
for work there was another employee in his job who was transferred to "the other
side of the shop," to make room for Larry-10
fired and he (Kuhn) told Maxwell he bad not been fired but had been laid off and that his
notice of layoff was self-explanatory as to why. Kuhn testified that Maxwell inquired
whether his layoff was "on account of the Union" and lie (Kuhn) told him so far as he
(Kuhn) "knew, the Union had nothing to do with it." Kuhn testified there may have been
further comments about the Union but he did not recall anything else that was said about
the Union.
7 Don Ferguson did not deny this statement which was attributed to him by Maxwell.
L. C. Ferguson did not testify concerning this conversation.
9 L. C. Ferguson categorically denied that he told Neal or any "rank and file employees"
that "before he would let. a union come into the plant" he "would close it down." The Trial
Examiner credits the testimony of Neal and finds the facts to be as noted above.
10 These findings of fact are based upon the testimony of Matthew Larry, J r. Leadman
Charles did not testify in this proceeding.
SHOVEL SUPPLY COMPANY 243
At the time of the April 26 layoffs, Respondent had in operation 9 departments
(a department that manufactured rubber tired rollers of the nonpropelled type, a
department that manufactured self-propelled rollers, a department that manufactured
tamping rollers, a department that manufactured cutting edges, a department that
manufactured drill steel, a department that manufactured 2- to 3- and 3- to 5-ton
rollers, a department that manufactured 5- to 8- and 8- to 12-ton rollers, a depart-
ment that manufactured 25-ton rollers, and a general machine shop which manu-
factured parts for all of the other departments). In February or March 1956 these
departments began working 50 hours and continued this work schedule until the
steel strike about July 1, 1956, at which time the overtime hours were eliminated.
Also, the 5- to 8- and 8- to 12-ton roller and the 25-ton roller had only been in
production for a few months prior to April 26, 1956, and Respondent had not reached
its peak of production of these rollers by April 26. The layoff was made effective
primarily, if not exclusively, among employees in the 2- to 3- and 3- to 5-ton roller
department, the 5- to 8- and 8- to 12-ton roller department, the 25-ton roller depart
ment, and the machine shop-departments where employees active on behalf of the
Union worked. During the months immediately prior to and immediately after
April 26, 1956, employees were hired in each of the departments affected by the
layoffs and the total complement of employees increased. In the machine shop
where 2 of the laid-off employees worked (C. J. Ferguson and Clark Neal), 21
employees were hired after April 26 and there was a net increase since March 1,
1956, of 4 employees.
In the manufacture of its products Respondent uses large quantities of steel plate,
ship channel, shafting, bearings, castings, engines of various kinds, torque converters,
clutches, and component parts, including tires, wheels, and rims. As noted elsewhere
in this report, Respondent contends that the layoff on April 26 was "due to curtail-
ment of operations" because of "shortage of suitable steel and materials." In con-
nection with this contention Respondent introduced into the record certain testimony
and exhibits of an economic nature which it contends establishes a shortage of prac-
tically everything which Respondent uses began in mid-1955 and grew progressively
worse from January 1, 1956, to April 26, 1956. However, the evidence adduced is
insufficient to make a comparison of steel and materials on hand on a month-by-
month basis or to compare the situation in April with that existing in the preceding
months and, thus, insufficient to determine whether the layoffs were with or without
economic justification. Records from which comparisons could be made were avail-
able, but neither the records themselves nor pertinent summaries thereof were made
a part of the record herein. Possibly an inference may be drawn that such evidence,
if -adduced, would not have been favorable to Respondent (see N. L. R. B. v.
Wallick and Schwalm Company, 198 F. 2d 477 (C. A. 3) ), but it is not necessary to
draw such an inference herein. Assuming, arguendo, that Respondent's economic
situation in April 1956 was such that it would justify layoffs, the undersigned is not
persuaded that business reasons motivated the layoffs on April 26. A justifiable
ground for dismissal is no defense if it is a pretext and not the moving cause. (See
N. L. R. B. v. Solo Cup Co., 237 F. 2d 521 (C. A. 8).)
Several factors, in addition to the evidence of Respondent's hostility towards the
Union and its desire not to operate with it (noted above), lend persuasive support
to the contention that. the layoffs were not motivated by business conditions but were
because of Respondent's hostility toward the Union. If there was, in fact, a critical
and progressively worse shortage of materials, why had Respondent recently under-
taken the manufacture of the 5- to 8- and 8- to 12-ton rollers and the 25-ton rollers,
which required substantial amounts of steel and materials? Why was a layoff
necessary on April 26 when hours had not yet been cut, when there was no other
layoff and only hours were cut, even during the steel strike (which began about
July 1, 1956)? All departments were affected, if any were, by the steel shortages.
Yet, the layoffs were made effective primarily, if not exclusively, in departments
where employees active on behalf of the Union worked. These facts, taken together
with the timing of the layoffs (during the initial stages of organizational efforts),
the sequence of events, the abruptness of the layoffs without prior warning, and the
revealing remarks noted above, make it apparent that the layoffs were not for business
reasons, but for the purpose of eliminating the Union from the scene. It stretches
credulity too far to believe that there was only coincidental connection between the
union activities then current, and the abrupt terminations of employment.
On the basis of the entire record the Trial Examiner is not persuaded that the
layoffs on April 26, 1956, were motivated by economic considerations and believes
and finds that they were because of activity on behalf of the Union. Accordingly,
the Trial Examiner finds that Respondent discriminatorily laid off Harold W. Boone,
Larry Dials, C. J. Ferguson, Matthew Larry, Jr., C. R. Maxwell, Clark C. Neal,
and Theodore Gonzales.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Landahl
Landahl was hired by Stoner in April 1956 as a partially experienced turret lathe
operator . A few days after he started working, he mashed the index finger on his
left hand, but the only loss of time occasioned thereby was the amount required going
back and forth to the doctor that day." On May 22, 1956 , Landahl smashed "the
little finger" on his left -hand and again lost only such time as was required to visit
the doctor that day.
Landahl signed the union authorization card on April 17 or 18, 1956 , but was not
active on its behalf prior to the layoff on April 26. However, after the layoff he
became Organizer Scott's contact man and was very active in promoting the Union's
cause. On May 26 ( not a regular payday ) Landahl was discharged by Stoner and
given a notice from partner L. C. Ferguson stating:
Due to your high accident rate and that we are compelled to reduce forces,
your services will be terminated as of noon today.
Thank you for your services.
Landahl testified that about a couple of hours before he was discharged:
He (Stoner ) come around and told me that, he said he hated to have to let
me go, but he said the old man is getting hot on me, that I had had too many
•accidents and that he was going to have to let me go because of it. He had
already had one insurance cancelled on account of accidents, so after that I
told him, I said, "at least I know it's not your fault ." I said, "It is probably
just as well because I would probably be let go anyway because I was trying
to get the Union in." '
Stoner acted like he didn't know anything about it and I said , "Maybe one
thing will be accomplished anyway, maybe the fellows will get a chance to
vote for it."
He said, "They won't ever get a chance to vote for it. They won 't ever get
a union in here to start with because the old man will shut down the plant first."
I said, "At least they will get a chance to vote for it whether they vote or not."
He said, "They won't ever get to vote anyway; where do you think I have
been all morning ," and then he offered to bet me any amount of money I wished
to bet that they wouldn 't have a vote out there.
L. C. Ferguson first testified Landahl was laid off because of his accident record
and left the impression that Respondent's insurance company had "raised Cain" about
this record . L. C. Ferguson 's later testimony indicates he (Ferguson ) did not know
whether the insurance company had complained specifically about Landahl's accident
record.12 Still later, L. C. Ferguson indicated Landahl had a poor performance (he
was very inaccurate ) and that this plus his accident record was the cause of his
discharge . Ferguson did not give a satisfactory explanation of what "reduction in
forces" (see notice given Landahl ) was contemplated at the time of Landa h l's dis-
charge and indicated that the reduction of forces did not have anything to do with
Landahl's discharge.
Kuhn first indicated shortage of materials played a part in Landahl 's discharge, but
later testified that Landahl was laid off solely because "he couldn 't produce and every
time he done a job, he got hurt" (was laid off solely because of "too many mistakes
and too much hurt" ). Kuhn testified that Landahl had several injuries (such as
cut fingers requiring first-aid treatment ) in addition to the two injuries noted above.
Kuhn also testified that there were several complaints about Landahl 's work. The
nature and extent of these complaints are not revealed by this record.
Stoner testified that in addition to the two injuries noted above, Landahl "had
several other little accidents that we took care of there at the shop" and that Landahl
was discharged because of "too many accidents" and at the time of his discharge he
told Landahl he was being discharged because he had too many accidents. Later
in his testimony , Stoner indicated that Landahl 's workmanship was not satisfactory
and that this played a part in the discharge of Landahl . However , Landahl was not
told about these deficiencies.
Concerning the statements attributed to him by Landahl and noted above, Stoner
testified:
Q. I see. All right . What did you tell him was the reason he was being
terminated?-A. I told him I was letting him go because he had too many
accidents.
11 Respondent's records revealed that this accident occurred on April 3 or 5, 1956.
'2 The record indicates there was no complaint from the insurance firm directed spe-
cifically at Landahl.
SHOVEL SUPPLY COMPANY 245
Q. What did he say to you about that?-A. He said that was all right. If
that's the way it was, that's the way it was.
Q. All right. Did he or not at that time tell you that it was just as well
because he had been trying to get a union in the plant?-A. I believe he men-
tioned something about it. I don't recall exactly what it was.
Q. All right. Now, did you tell him in response to his statement that he
had been active in trying to get a union in the plant, that they would never
get a union in the plant?-A. No.
Q. He further states that at that time, and that's at the termination time,
after he had told you that he was active in the Union and it was just as well that
he was being let go, did you tell him that the old man would shut down the
plant before he would let a union come in?-A. Oh, no, Sir.
Q. Did you tell him anything remotely resembling that statement?-A. No,
Sir, I don't remember telling him anything like that.
Q. All right. He further states that at that time and as a part of that same
conversation, that you offered to bet him any amount that he wanted to bet
that they would never even have an opportunity to vote on the Union.-A. No,
Sir.
Q. That didn't occur?-A. No, Sir.
While there are certain flaws in Respondent's evidence concerning Landahl and
the entire evidence adduced raises a suspicion as to Respondent's real motive in
discharging Landahl, the Trial Examiner is not persuaded that the discharge was
because of union membership or activity. The suddenness of the discharge without
prior warning, approximately a week after Landahl's most recent accident, the
evidence of Respondent's hostility toward the Union, and the inconstant explanations
for the discharge offered by Respondent, raise a suspicion that Respondent became
aware of Landahl's union activities and discharged him for the purpose of eliminating
from the scene a union protagonist. Suspicion, however, is not proof. The burden
is on the General Counsel to prove by a preponderance. of the credible evidence that
Respondent's conduct toward Landahl was motivated by antiunion considerations.
In the opinion of the Trial Examiner, he has not sustained this burden. Notwith-
standing a suspicion of discrimination, the Trial Examiner is unable to find that the
discharge of Landahl was without economic justification and the Trial Examiner
believes and finds that the record lacks a preponderance of evidence that it was
motivated by antiunion considerations. Accordingly, the Trial Examiner recom-
mends that the allegations of the complaint with respect to this matter be dismissed.
ULTIMATE FINDINGS AND CONCLUSIONS
In summary, the Trial Examiner finds and concludes:
1. The evidence adduced in this proceeding satisfies the Board's requirements for
the assertion of jurisdiction herein.13
2. Local 96, International Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers & Helpers, AFL-CIO, is a labor organization within the mean-
ing of the Act.
3. The evidence adduced establishes that leadmen are supervisors within the
meaning of the Act.
4. The evidence adduced establishes that Respondent on April 26, 1956, discrim-
inatorily laid off Harold W. Boone, Larry Dials, C. J. Ferguson, Matthew Larry, Jr.,
C. R. Maxwell, Clark C. Neal, and Theodore Gonzales and thereby violated Section
8 (a) (1) and (3) of the Act.
5. The evidence adduced established that Respondent interfered with, restrained,
and coerced employees in the exercise of the rights guaranteed in the Act and thereby
violated Section 8 (a) (1) of the Act.
6. The aforesaid activities are unfair labor practices affecting commerce within
the meaning of Section 2 (6) and (7) of the Act.
7. The evidence adduced does not establish that Respondent discharged William C.
Landahl for the reason that he joined or assisted the Union or engaged in concerted
activities for the purpose of collective bargaining or other mutual aid or protection.
[Recommendations omitted from publication.]
13 Respondent Is engaged in Texas in the manufacture and distribution of road-construc-
tion equipment and supplies and in the course of conduct of its business annually receives
from points and places outside of Texas materials having an approximate value of $350,000
and annually ships finished products having a value in excess of $50,000 in interstate com-
merce to points and places outside of Texas.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in, or activities on behalf of , Local 96,
International Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths,
Forgers & Helpers, AFL-CIO, or in or on behalf of any other labor organization
of our employees , by discriminating in any manner in regard to terms or
conditions of employment.
WE WILL offer to Harold W. Boone, C. J. Ferguson , C. R. Maxwell, and
Theodore Gonzales immediate and full reinstatement to their former positions
without prejudice to any rights previously enjoyed.
Clark C. Neal, Matthew Larry, Jr., and Larry Dials were reinstated on May 3,
July 3, and July 9, 1956, respectively.
WE WILL make whole Harold W. Boone, Larry Dials, C. J. Ferguson, Matthew
Larry, Jr., C. R. Maxwell, Clark C. Neal, and Theodore Gonzales for any loss
of earnings suffered as a result of the discriminations against them.
WE WILL NOT in any manner interfere with, restrain , or coerce our employees
in the exercise of their right to engage in, or refrain from engaging in, union
or concerted activities for the purpose of collective bargaining or other mutual
aid or protection.
All employees are free to become , remain , or to refrain from becoming or remain-
ing members of Local 96, International Brotherhood of Boilermakers , Iron Ship
Builders, Blacksmiths , Forgers & Helpers, AFL-CIO, or any other labor organization.
L. C. FERGUSON AND E . F. VON SEGGERN
d/b/a SHOVEL SUPPLY COMPANY,
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.
California Date Growers Association and United Packinghouse
Workers of America, AFL-CIO, Local Union No. 73.1 Case No.
21-CA-2130. June 21, 1957
DECISION AND ORDER
On February 20, 1956, Trial Examiner William E. Spencer 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 Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not violated the Act in certain other respects.
Thereafter, the General Counsel and the Respondent filed exceptions
to the Intermediate Report and supporting briefs. The Respondent
also filed a reply brief 2
1 Herein called the Union.
2 The Respondent 's request for oral argument is hereby denied as the record , exceptions,
and briefs , in our opinion , adequately present the issues and positions of the parties.
118 NLRB No. 29.