L. B. Foster Co.

National Labor Relations Board - Board Decisions

Jul 29, 1971

192 N.L.R.B. 319 (N.L.R.B. 1971)

L. B. FOSTER COMPANY 319
L. B. Foster Company and Shopmen's Local Union
No. 694 of the International Association of Bridge,
Structural and Ornamental Iron Workers,
AFL-CIO. Cases 23-CA-3734 and 23-RC-3493
July 29, ^ 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On March 29, 1971, Trial Examiner Stanley N.
Ohlbaum issued his Decision 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
attached'Trial Examiner's Decision, He further found
that the Respondent had -not engaged in certain other
unfair labor practices alleged in the complaint and
recommended that Such allegations be dismissed. He
also found that certain employees were eligible and
certain ' other employees were ineligible to vote in a
Board-conducted election held on October 16, 1970,
and recommended' that the ballots of the eligible
voters be opened and counted and that an appropriate
certification issue . Thereafter, the Respondent and
theGeneral Counsel filed exceptions to the Decision
and supporting briefs.
Pursuant to the` provisions of Section 3(b) of the
National Labor Relations Act, as amended; the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no-
prejudicial error was -committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision„ the exceptions and briefs,,and
the entimrecord in the proceeding, and hereby adopts
the findings, conclusions, and .recommendations of
the Trial Examiner with the following modifications: -
We agree with the- Trial Examiner that employees
Stuart, Williams, High, Claborn, and Knight were
terminated in, their employment because of their
union activities and not, as contended by Respon-_
dent, because economic -conditions dictated a, sub-
stantial, layoff at that particular time.1 , Having
discredited Respondent's economic defense, however,
the Trial Examiner still dismissed the allegation of the
' 1 We rely in part onithe credited testimony of Billy W. Perteet , a former
employee of Respondent who returned to pick up a paycheck a few days
after the layoff.' Observing that Knight and Claborn were not there, he
asked Supervisor McAlister where they were . McAlister told him "they had
been fired because of trying to get the Union in," and that "even your
brother-in-law got fired." (Both Williams and High were brothers-in-law of
Perteet.)
2 As noted by the Trial Examiner, the business conditions which
complaint that employees Carlisle , Wright, and
Qualls were terminated in violation of Section 8(a)(3),
finding . that it had not been , established that the
termination of these three employees was because of
union or concerted - activities on their 'part. The
General ' Counsel excepts to the conclusion .that,
because it was not proved that these three engaged in
concerted activities , their termination was legally
justified . We find merit in this exception . The Trial
Examiner found, in effect, that the layoff which
affected all eight employees on August 18, 1970,
would not have occurred had it , not been for the
organizing efforts on behalf of the Union that were
known to the Respondent in the earlypart of August.2
When the Respondent , engaged , in its layoff in
response to these efforts , that action, insofar as it
affected both prounion employees -and- employees
whose union sympathies were unknown, discouraged
union activities of all employees . Accordingly, we find
that the termination of Joel Allen ' Carlisle, Bill
Wright , and Charles Quail as part of the group layoff
on August 18, 1970, violated Section 8(a)(3) of the
Act.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, 'the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner as modified below and
hereby orders that the Respondent, - L. -B. Foster
Company, Houston, Texas, its officers, agents, suc-
cessors, 'and assigns, shall take the action set forth in
the Trial Examiner's ' recommended Order 'as` so
modified: '
1. ' Add to paragraph 2b of the Trial Examiner's
recommended Order, after the name Douglas O'Neal
Knight, the names "Bill Wright, and Charles Quail,"
and after the words "and make each. of them" add
"and Joel Allen Carlisle."
2. Substitute the attached notice for the Trial
Examiner's notice.
IT IS FURTHER ORDERED that Case 23-RC-3493 be,
and it hereby is, severed from this proceeding and
remanded to the Regional Director for Region 23 for
the purpose of opening and counting the challenged
ballots of Everett Claborn, William Claborn, James
High,, Douglas Knight, Kenneth R. Stuart, Jessie J.
allegedly- brought about the layoff were discussed within the Company as
early as May, yet, no action was taken at this plant until the -August
organizing efforts became known . We cannot rely, however, on the fact
that the layoff occurred on the same day the Company received
notification of a representation election, as there is no evidence that it was
received before the layoff decision was made.
3 O'Keeffe Electric Co., 158 NLRB 434, 438.
192 NLRB No. 45
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
West, -and James E, Williams and thereafter issuing
the appropriate certification .4
d The Regional Director is hereby directed to destroy, unopened, all
other challenged ballots. In the case of Joel Allen Carlisle, although we
have found that his termination on August 18, 1970, ,was in violation of
Section 8(a)(3), it is undisputed that before the October election he
declined-The Company's unconditional offer to restore him to his job. He
they f ,*.as not an eligible voter and the challenge to his ballot, is
sustaii d; along with the other challenges sustained by the Trial Examiner.
For the same reason, we shall not order him reinstated but only
compensated for any loss of pay he may have suffered.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After ' a trial in which both sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the law and
has ordered us to post this notice and we intend to
carry out the order of the Board -and abide by the
following:
The National Labor Relations Act gives you, as an
employee, these rights:
To engage in self-organization
To form, join, help, or be helped by unions
To bargain collectively through a representa-
tive of your own choice
To, act together with other -employees to
bargain collectively, or for other mutual aid or
protection and
If you wish, not to do any of these things. ,
WE WILL respect, all of your rights under the
National Labor Relations Act.
WE WILL NOT, in violation of the National
Labor Relations Act, question any employee
about whether he or any other employee has
joined or is thinking of joining a union, or,about
what he or any other employee is doing or thinking
of doing in the way of union activity.
WE WILL NOT discharge, lay off, terminate,
suspend, or take any other retaliatory or discrimi-
natory action against any employee because he has
joined or helped, or is thinking of joining or
helping, or trying lawfully to get other employees'
to join or help a union.
WE WILL NOT, in violation of the National
Labor RelationsAct, discourage membership in or
giving help to or' taking help from Shopmen's
Local Union No. 694 of the International Associa-
tion of Bridge, Structural and Ornamental Iron
, Workers, AFL-CIO, or any, other labor organiza-
tion of our employees or which our employees may
wish to join or to help or take help from.-
WE WILL NOT, in any other manner' interfere
with, restrain, or coerce you in the exercise of your
right to self-organization, to bargain collectively
through representatives of your own choosing, to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, or to refrain from any and' all such
activities.
WE WILL offer the'following persons immediate
and `full reinstatement to their former jobs or, if
those jobs'no longer exist, to substantially equiva-
lent jobs, without prejudice to their seniority and
other rights and privileges, and we will also pay
them backpay, with interest, for any wages lost by
them:- Kenneth R. Stuart, James E. Williams,
James L. High, William E. Claborn, Douglas
O'Neal Knight, Bill Wright,, and Charles (wall.
We will pay to Joel` Allen Carlisle, to whom-we
have already offered reinstatement, backpay with
interest.
All of you are free to join or not to join, to help or
not to help, or to be helped or not to be helped by
Shopmen's Local Union No. 694-of _the International
Association of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO, or any other union, as you
see fit , without any interference , restraint, coercion, or
retaliation from us. -
L. B. FOSTER COMPANY
(Employer)
Dated By
(Representative) - (Title)
We will notify immediately the above-named individ-
uals, if presently Serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service' Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the ,Board's
Office, Dallas-Brazos Building, Fourth Floor, 1125
L. B. FOSTER COMPANY 321
Brazos Street, Houston , Texas 77002, Telephone
713-226-4296.
TRIAL EXAMINER'S DECISION
PRELIMINARY STATEMENT
STANLEY N. OHLBAUM, Trial Examiner: This consolidat-
ed proceeding 1 under the National Labor Relations Act, as
amended, 29 U.S.C. Sec. 151, et seq., (Act) was tried before
me in Houston, Texas, on January 12-13, 1971, with all
parties participating throughout by counsel and afforded
full opportunity to adduce testimonial and documentary
proof, cross-examine, argue orally, propose findings and
conclusions, and submit briefs. Subsequent to trial and
after several extensions of time upon application of counsel,
briefs were received on March 8, 1971, which, together with
the record as made at the trial, have been carefully
considered.
The complaint alleges and the answer denies that
Respondent,Employer violated Section 8(a)(1) and (3) of
the Act through unlawful interrogatiom.-and discharge of
employees for union-related activity (Case 23-CA-3734).
Since the outcome of an October 16, 1970, Board-
conducted union - representation election hinges upon
resolution of some potentially related issues, that representa-
tion case (Case 23-RC-3493) was consolidated for hearing
with the foregoing complaint case, by December 4, 1970,
order of the Regional Director, and transferred to and
continued before the Board in accordance with applicable
provisions of the Board's Rules and Regulations. The
instant proceeding thus encompasses both of. those cases.
Upon the, entire record2 and my observation of the
testimonial demeanor of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. PARTIES; JURISDICTION
At all material times, Respondent L. B. Foster Company,
a Pennsylvania corporation with principal office in
Pittsburgh in that State, has conducted and conducts
business operations in various States, including Texas,
where in the city of Houston and as part of its Houston
Division it has maintained and maintains certain yards and
ancillary facilities for the fabrication or processing, storage,
and distribution of industrial pipe and related products.
During the 12-month period immediately antedating
issuance of the complaint, Respondent purchased and
delivered or caused to be delivered to its said Houston
facilities, directly in interstate commerce from places
outside of Texas, goods and materials valued in excess of
$50,000; during the same period, Respondent also sold and
shipped, from its said Houston facilities directly in
interstate commerce to customers outside of Texas,
products valued in excess of $50,000.
I find that at all material times Respondent has been and
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act; that the above Union
(Charging Party) has at all times been and is a labor
organization within the meaning of Section 2(5) of the Act;
and that jurisdiction is properly asserted in this proceeding.
II. ISSUES
The following chronology shows the basis issues here for
determination:
Date (1970 ) 1 Event or Alleged Event Issue
Aug. 14 Interrogation of employee
by Supervisor Bush
Aug. 18 Discharge of 8 employees
Oct. 16
Act, § 8 (a) (1)
'violated? (Case
23-CA--3,734)
Act, § 8(a)(3)
& 8(a)(1) vio-
lated? (Case
23--CA-3734)
Board-conducted repre- Validity of 14
sentation election challenged bal-
lots 4/ (Case
23--RC--3'493
1 In Case 23-CA-3734, the complaint of November 6, 1970, resulted
from a charge filed on the previous August 20 . In Case 23-RC-3493, an
election with uncertain outcome in view of 14 challenged ballots (sufficient
to affect the result) was held under Board auspices on October 16, 1970;
pursuant to the parties' stipulation for certification upon consent election
approved by the Board 's Regional Director for Region 23 on the previous
September 11.
Hereafter, unless otherwise specified , all dates are in 1970.
2 Trial transcript as, corrected in respect to obvious and typographical
errors listed in annexed "Appendix A." [Omitted from publication.]
3 Election conducted pursuant to Regional Director's September 1I
approval of parties' stipulation for certification upon consent election.
Election outcome: of 31 eligible voters, 5 ballots counted for and 6 against
Union, with 14 challenged and sufficient to affect outcome.
4 Makeup of 14 challenged ballots: 6 are alleged discrihinatorily
discharged employees, of 8 such involved in the unfair labor practices (i.e,
"complaint") case here; 8 are challenged by Union as supervisors not
included in proposed bargaining unit.
322, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
`III. ALLEGED UNFAIR LABOR PRACTICES themselves for collective action under the Act,8,T hereafter,
Stuart and another new yard employee (Williams) met with
a union representative at Stuart's home on August "5, and
after discussion received union -membership application
cards. On the following day (August 6), after contacting
senior old yard employee Knight (who had worked there
almost 20 years), five of the employees (Stuart, Williams,
and High of the new yard, and Knight and Claborn of the
old yard) met-at Williams'home, passed on the information
received - from' the Union; discussed organizing,, and
distributed union membership cards. Thereafter; the group
openly proceeded to solicit other employees to join the
Union .9
C. August 14: Alleged Unlawful Interrogation
It is alleged and denied that on, August 14- Respondent
through its supervisor, 'Donald Bush,1° interrogated an'
employee iii violation'of Section 8(a)(1) of the Act.
Williarii Claborn, the allegedobject of the interrogation,
was then employed as a crane operator at the old yard; of
which Bush' was office manager. Claborn testified that on
that day; after shutting his rig down` and returning to the
field office with leadman Billy Gates (who was returning his
walkie-talkie there), office Manager Bu§h"asked Claborn in,-,
the office, "what Union we were- trying to get in out here.
And I [Claborn] told him [Bush] I didn't know anything
about a Union." Bush then added, "Well, I hear you are
ringleader of the bunch." - Claborn did not deny this or
otherwise respond.
`Since I was favorably impressed With, the testimonial
demeanor of - Claborn, and Respondent without explana-
tion failed ' ,to call either Bush or Gates, to controvert
Claborn's testimony," I creditClaborn's described testimo-
ny and find that Respondent through its supervisor Donald
Bush interrogated its employee William Claborn on August
14 concerning -protected union activity, in violation of
Section 8(a)(1) of the Act.
D. August 18: Alleged Unlawful Discharge of
Employees
It is further alleged and denied that on August 18
Respondent discharged eight employees in violation of
Section 8(a)(3) and (1) of the Act. The employees in question
are Joe Carlisle, William Claborn, James High, Douglas
Knight, Charles Qualls, Kenneth Stuart, James E. Williams,
and Bill Wright.
Three of the employees in question (Claborn, Knight,
Laden, Jr; the Houston Division consists not only of the two yards in
Houston, but also the Company's New Orleans operation, its Houston Pipe
Coating Company (a wholly-owned subsidiary), its Lubbock plant and
sales office, and its Latin American Division.
S According to Stuart , "the only reason we wanted a Union over there"
was the abusive or otherwise improper treatment being received at the
hands of Respondent 's Foreman Manning. Manning did not testify.
9 Stuart, for example, signed up at least two others, James and Brown,
in addition to,-himself.
10 It will be recalled that. Bush is office manager of Respondent's
Homestead Road (old) Yard under Don,Jones , superintendent of that
yard I I I " I
11 Although 'Gates was called as a witness by the Union in connection
with the representation case (infra) only, he was not called by Respondent
and did not testify concerning the foregomg. Bush was not called to testify
at all.
A. Background
Respondent, a- Pennsylvania corporation , engages at
Houston, Texas , in fabricating or processing and distribut-
ing industrial pipe and "related products (pile, Rail, and H-
beams) at two separated yards-the only facilities involved
in this'proceeding-known as (1) the Homestead Road
Yard or old yard, consisting of some 20 acres and (2) the
Langfield - Road Yard or new yard, consisting of 70 acres of
which 35 are currently planned for development .'Essential-
ly'the same kind of work is done in both yards,5 both yards
being stilt in operation at the time of this hearing (January,
1971). Respondent does not engage in actual building or ,
construction work, but stores and furnishes industrial pipe
utilized in that work. Such pipe may be as long as 40 feet
and-as '-much as 30 inches in diameter . In. its operations,
Respondent utilizes various heavy lifting and moving
equipment -such as cranes , `drotts, and ' forklifts , requiring
the' services -' off workcrews consisting of lifting-carrying
equipment operators , riggers, and helpers .6 It also threads
pipe, utilizing pipelhreading equipment and operators, and
a ,welder or'welders;
Central issues in this proceeding revolve around Respon-
dent's 'admnitted' discharge on August ' 18 of eight employees,
three (Claborn;, Knight; and Carlisle) from its Homestead
Road (old) yard and'five (Stuart, Williams, High, Wright,
and Qualls) from its Langfield Road (new) yard.
It will conduce to ,^understaiiding of matters to be
desci ili'e`d "to bear̀ in mind the persons comprising the
managerial-supervisory hierarchy at Respondent 's Houston
Division:
HOUSTON -DIVISION
Head: C. R. Laden, Jr., vice president , in charge of
Houston Division?
Homestead (old) yard
Superintendent : Don Jones
O'ffice :manager: Donald Bush
Pipe threadingdept . supervisor : Louis McAlister
Langfield Road (new) yard
Superintendent: Ralph Mullin
'.- B.- Augustugust 5-6: Commencement of Union
Organizational Activity
Around .August 5, Respondent's employees , through new
yard employee, Stuart, established contact with and
consulted a union official with a view toward organizing
5 As explained by old-yard crane operator Claborn, "in essence, it is the
same type of work carried on at the two yards," although different
equipment is utilizedand`waterwell and oilfield casing are handled only at
the old .yard. Thus, "there are no pump columns at the old yard The 25-ton
electric American "big rig" cranes utilized at the old yard are eight-wheeled
and run on a railroad track, 'while the Pettibone carryhft or forklifts
utilized at the new yard have four tires and run on the ground Although
the loading (or unloading) operations would differ to an extent , depending
upon which equipment was used, nevertheless "There ain't no way ... [to)
operate, one-of,these yards without a crane operator." However, there is -no
need for large crane equipment, but only for forklift equipment, at the new
yard
6 The b of riggers and helpers, working with the lifting-carry ing'
equipment operators, is to hook or otherwise secure and unhook or release
material being moved by the lifting-carrying devices controlled by the
operators.
7 As testified by Respondent's Vice President, Houston Division C. R
L. B. FOSTER COMPANY 323
and Carlisle) were employed at Respondent's. Homestead
Road (old) Yard and the remaining five (Stuart, Williams,
High, Wright, and Qualls) at its Langfield Road (new)
Yard.
It is conceded 12 that Respondent received notification by
mail on August 18 of the Board-scheduled union representa-
tion election. On the same date (August 18), it concededly
discharged the eight employees here in question. The
circumstances of these discharges will now be considered
separately under the eight employees involved, all of whom
except Wright and Qualls testified as General Counsel's
witnesses.
1. Kenneth R. Stuart
It, will be recalled that Kenneth R. Stuart was the
designee of his fellow-employees for making the initial
contacts with the Union for organizational purposes.
Stuart first entered Respondent's employ in 1964 and
worked -therefor over 5 years until he left voluntarily. He
reentered Respondent's employ around May 1970, as a
drott 13 operator at the new yard.
As has already been indicated, after meeting with and
receiving union cards from a union representative at
Stuart's home on August 5, the following day (August 6)
Stuart and Williams contacted other employees and met
with them-5 in all (Stuart, Williams and High of the new
yard, and Knight and Claborn of the old yard)-at
Williams' home. After discussing union organization, union
membership cards were distributed dnot only for themselves
but also for use in soliciting' other employees to join the
Union. Solicitation of other employees was thereafter'
carried on "openly," so that "everybody knew about it,"
including new yard Superintendent Mullin and Foreman
Manning who were "around" while it was in process. At or
around the same time, i.e., during the first week of August,
a periodic meeting of all new yard employees was called by,
new-yard Superintendent-Mullin, who discussed progress
and among other things stated that "he [Mullin] knew we
were short-handed and that ... he was going to set out and'
hire more men." One of the men reminded Mullin that "he:
was supposed to take-care of ... the insurance"; Mullin'
announced a barbecue or beer party for August 14. Since
one of the men was ill- on August 14, on that day (August
14, Friday) the party"was-postponed and took place after'
work on the afternoon of the following day, Saturday,
August 15. At the party (August 15), Mullin remarked to
Stuart, "Ken [Stuart], you are due a raise. Your ninety
days 14 are up and you have been doing a good job and if
you will remind me, Monday morning [i.e., August 17 ], we
will go over your record§ and I will see you get the raise."
Stuart did not have the opportunity to see Mullin on the
1? Testimony of Respondent's Vice President Laden on cross-
examination, ,
13 The drott is a self-propelled cranelike machine , mounted on wheels,
used to pick up and move, and also to load and unload , steel (such as
pipes, beams, rail, and piles) into and from trucks and freight cars.
14 The 90 ' days apparently ' referred - to a pay-increase period since,
according to uncontroverted testimony of Stuart , the initial probationary
period was only 30 days and he was so informed by Superintendent Mullin
when he reentered Respondent's employ around May 1970.
15 Although Mu" ultimately denied making ' this particular remark
(i.e., about Mulim's being "next"), Mullin-a somewhat evasive witness
following Monday (August 17) since Mullin was gone most
of the day. On the next day, August 18 (Tuesday), Stuart
was summoned by Foreman Manning into the office of
new yard Superintendent Mullin, who abruptly fired him.
Stuart had had no prior intimation that he was to be
discharged, except that about a half-hour earlier he had
received a telephone call from his brother-in-law Claborn, a
crane operator at the old yard, who had alerted him that
"Mullins just left here. He fired all of us. He found a union
card here yesterday and he said he was on his way over
there to get the rest of you. And you all will-be fired ....
all you who signed union cards." Stuart relayed this
message to some of his new yard fellow-employees. Stuart's
termination by new yard Superintendent Mullin on August
18 took place in Mullin's office in the presence of Foreman
Manning. As ,credibly. described -by Stuart;' "He [Mullin]
told me to sit down. He wouldn't ever look at me in the eye,
but he kept, looking at the- floor. He said, `Ken [Stuart ], I
know I promised` you a raise; -and due to the economic
situation here, things are slack, and I am going to have to let
you go.' He said, I don't know if it's your, fault or what it
is-' He wouldn't look at me, -he just kept looking- at-the
floor. He said, `I don't know if it was your fault or not, but
I have to do what I am told ... or I am going to be next.15
So I am going to have to terminate you.'" There was no
mention of any possibility of Stuart's being recalled to
Respondent's employ at any time 16 -- " ` -
Stuart, strongly corroborated by other witnesses, testified
that work at the new yard was not slack at the time he was
discharged. He had at'no time in August experienced any
lack- of work there; indeed, he, had been "working
Saturdays,' acid lots of overtime" including overtime- the
week before and the very week when fired.17 Even though
he had worked overtime on Saturday, August 15 and a 12-
hour day on Monday; August 17, there -remained -on the
latter day some eight or nine gondola freight cars' awaiting
unloading at the new yard., Normally, it would require-2-3
hours or longer for the drott operator and crew to unload
each rail car, by -the track, not to speak _ of moving the
unloaded Pipe or rail from that point. At the time here in
question, there was only one drott machine at the new yard.
There were also two Pettibone forklifts,' also used '-for
unloading freight cars, and one Pettibone "cherry -picker"
machine, not used for unloading freight cars, but principal-
ly. for moving pipe or pile. Stuart was the only operator
actually operating the drott machine at the time, although
others there were also qualified to do so. There was one
operator for each of the Pettibone forklifts--Williams and
Davenport. Stuart testified credibly, and with-, credible
corroboration and no established contradiction, that during
his 6 years of employment with Respondent, there was no
previous case of "anybody-laid-off for lack of work," even
given , to what impressed me as excessive testimonial equivocation-had -at
first testified that he was without "recollection " of it,.
16 The foregoing is based on, credited testimony of Stuart, who
impressed me as a truthful witness, corroborated in part by other credited
employee witnesses.
17 The , regular work week was, 40 hours, 8 a.m.-5 - p.m. weekdays
Monday through Friday. Stuart and others had worked overtime on
Saturday, August 15, as well as on Monday, August 17, when the workday
was 12 hours long. The August 17 overtime was-apparently required so as
to avoid payment of demurrage on gondola rail cars -awaiting unloading.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when, at times in` the old yard, there was nothing to do; at
those times, while awaiting shipments on which to work, the
men would keep busy policing up the yard. - -
Further; according to Stuart-corroborated by others
and even conceded by Respondent-on Friday, August,14
or Monday,- August 17, two new men were hired at the new
yard: one commenced working there on Monday, August
17, and the other on Tuesday, August 18, the day Stuart
and his 4 fellow-employees who had attended the, described
union -organizational meetings at Stuart's and Williams'
homes were discharged.ts-
With regard to the foregoing, Respondent's new yard
Superintendent Mullin testified that he not only told Stuart
that- he was being terminated'foreconomic reasons but also
because of "minor problems. we had had in relation to the
drott experiences,.... warnings. ",Observing Mullin while
so testifying, and in the frame of the-entire case, I do not
believe that any lack of efficiency on Stuart's part i the
operation of':the drott machine played; any role in his
discharge, and I do not believe that Mullin toldhim-that, it
did. On „cross-examination, Mullin conceded that at the
Company barbecue on the Saturday afternoon (August 15)
preceding Stuart's discharge, Mullin ,had' told Stuart yhe
"would get a review [for a periodic raise] on, Monday,
August 17." It is to be., noted that ,this was after Mullin,
according-Jo-his own story, had already been instructed by
his superior, Company Vice, President for Houston Division
Laden, on ;the_,previous day (Friday, August 14),to effect a
layoff.. Mullin's belabored and, unconvincing explanation
for this is that he "did not interpret the urgency" of:Laden's
instructions on, August 14, and that, therefore when,he
(Mullin) "spoke to- Stuart at the barbeque [on August 15 ]
with regard to' the, review that he [Stuart 1,, was due [on
Monday, ,August,171, with regard to whether he would get a
raise- or, not," Mullin at that time {i.e., August 15) did not
"contemplate that Stuart might-.be included in the cutback
[of August 17-181." It hardly seems, likely that (1),Mullin
was dissatisfied with the performance of Stuart-or that (2)
Mullin would tell Stuart on ,Saturday that he would be up
for a raise on Monday,, if Mullin knew on Friday that Stuart
would or might , be discharged . on Tuesday., Mullin ,
conceded, finally, that after hep terminated Stuart on August
18,_he . assigned Davenport,.a new employee,"^,to operate
the drott in place of Stuart. i9
2. James._E. Williams
James, E. Williams, who with Stuart was a guiding leader
in the employees' attempt, at union- affiliation in August,
was likewise summarily discharged by new yard,Superin-
tendent Mullin on August 18. He had, at that time,been in
Respondent 's employ continuously for over, 7_ years, since','
March, 1963. At the time of his August discharge, he was a
Pettibone forklift operator at the new yard, to, which he had
been transferred around April or May from thepld yard,
where he had been a crane operator.zo
18 Stuart testified he was so informed by Foreman Manning, who'was
unexplainedly not produced to controvert this. As will be shown , the hiring
of these two new -employees on Augusts 14' is conceded by new yard
Superintendent Mullin.
1e Although Davenport was allegedly hired on March 27, he had been
operating one of the, two Pettibone forklifts at the new yard . But Williams,
Williams, a straightforward witness , credibly corroborat-
ed Stuart's testimony concerning, the ;employees' union
organizational endeavors in August preceding their dis-
charge. It was Williams who contacted old yard employee,
Knight to arrange for old yard employees' attendance at the
August 6 union organizational meeting in Williams' home.
He -also arranged to have new yard employee High, who is
Williams' brother-in-law, there.
Williams also corroborated Stuart's account regarding.
Mullin's meeting with the new yard employees in August,
Williams having been the person who, raised the query
regarding insurance. Williams also recalled that, specifical-
ly, Mullin there "talked about hiring some more men. He
[Mullin] said he was going to get Ernie [a.helper ] . . . to put
a sign out in front so they could hire some more men."
Indeed, shortly- prior thereto, around July, Williams had
spoken to the yard, superintendent about the job for
Williams' brother-in-law. High. The superintendent had-,
then also informed him that "they were needing some men
... they weren't going to send any men to the new, yard,
they said they had sent all they could and they were going
to have to hire some new men." It was thereupon that High
applied for a job (in July) and was hired.
Williams also, as Stuart , had worked overtime not only,
on Saturday, August 15, but also on Monday, August X17,
the day, before he and his associates were `summarily'
discharged without notice. Williams' first intimation that-he
would' or might be fired was on Tuesday-morning, August
18, when Stuart "came by and told me his brother-in-law
[Le.,' Gaborn ] called and said; Mr. Mullinr was on his, way
over to fire us," Soon thereafter, old yard Superintendent
Mullin and Foreman Manning arrived. After Stuart had
been called into and left old yard Superintendent Mullin's
office, it was Williams' ; turn. In Mullin's office, with
Foreman, Maanning.,there (as in Stuart' s case), Mullin stated,
that "On account of the economical expenses they were
going-to have to let us off.-And.that he [Mullin] thought
when I [Williams] went towork for the company that I-was
going- to be a ball of fire ' for the company,,'that they had
planned for me. He said they just hadn't worked, out that
way. He, said he didn't know whether he was right in doing
what, he was doing, but he had, to do, it. "He ,said he was
going, to have to terminate, me." As in Stuart' s case, there
was no mention of. the possibility of return or recall, nor
anything about alternative or,'otherjobs. ,
The testimony of Williams;also, as well as that of Stuart
and the other employees, shows, that not only was there no
indication, of any economic or work problem prior to their
precipitate discharge on August 18 following their, unioni
zation, activities, but that, , on the contrary, Mullin had
stated to, the employees at his , meeting with them shortly
prior thereto earlier in August, that moremen were needed
and would be hired.
Relative ' to ' the foregoing, Respondent's new yard
Superintendent Mullin again attempted, unconvincingly as
in the case' o _SStuart, to indicate that"when he,discharged
who (as will be shown) also figured in the August 18 discharges , after over
7years of continuous employment since March 1963, was the operator of
the only other , Pettibone forklift at the new yard.
' 20 The crane which Williams had operated at the old yard runs on
railroad track. The Pettibone' forklift or carry=lift is also used to load and
unload freight cars and trucks , as well as for general heavy yard,haulage.
L. B. FOSTER COMPANY 325
Williams on August 18, he mentioned not only the alleged
"economic" basis but also that Williams' work performance
was not up to par. (Manning was not called to testify.)
Based in part on testimonial demeanor as observed, I
utterly reject this alleged justification as being the real
reason . Williams had worked-steadily for Respondent-since
March, 1963, a :period of over 7 years. According to Mullin,
he told Williams on August 18 that although Williams
"came in extremely strong" and that Mullin "literally
thought he would be one of our best operators," he had
"suddenly deteriorated to where he was not doing his job at
all." The nature of this alleged sudden deterioration is
undescribed and, unestablished. Asked whether he had ever
previously mentioned-this to • Williams, Mullin's _response
was, "We had general discussions, sir, not specific at all."
According to Mullin, after he thus fired Williams on
August 18, under the circumstances indicated, he assigned
one Chenoweth=an "expediter" in the office, who had
been hired in 1970-to operate the Pettibone- forklift in
Williams' place. However, Mullin conceded that Chenow-
eth was returned to his office job around November 1 when
it was found he was needed there; and that somebody else
(Morgan) is now operating the Pettibone forklift from
which Williams was removed.-
3. James L. High
James L. High had worked for Respondent on two
occasions prior to early July, when, as has already been
indicated, his brother-in-law Williams was instrumental in
securing a job for him at the new yard , where he became a
rigger on ' Stuar-t's drott machine crew . As Will also be
recalled, he was among the five who attended the Union
organizational meeting at Williams ' home in August which
preceded the discharge of all five.
As Stuart and' Williams , High also worked overtime on
both Saturday, August 15 and Monday , August 17. As
Stuart and Williams, High, likewise an impressively truthful
witness, convincingly testified that at the time of his
discharge not only was'there no shortage of work but a
superabundance with a shortage of men-in High's word's,
"I was doing the work of two men ." This work consisted
not only of handling items from the old yard but also of
unloading merchandise coming in from ships, as well as
unloading and loading inbound and outbound trucks.
As in ' the cases of Stuart and Williams, , High's first
intimation that he was to be discharged , notwithstanding all
of the usual work on hand , came on the morning of-August
19 when Stuart alerted him to the information just received
fromClaborn of the old yard , that Mullin[ was on his way
over to fire the ' employees . at the new yard. Thereafter,
Mullin told him also that "on account of economics he
[Mullin ] was going to have to terminate me [High] . I asked
him was it my work, and he -said no it wasn tt " 21
Concerning High, Mullin testified that he was only a
21 High admitted that Mullin made mention to him about
"maintain[ing] proper safety precautions." I find that this was not the
reason for High's discharge; nor was it claimed, or established that it was.
22 High is the only one of the dischargees here in question who was not
a crane or other machine operator
23 The latter episode, undisputed by Mahan, is not charged in the
"probationary employee, just a general helper," which is
"pretty much" only -a "common laborer."22 However,
Mullin conceded that although High was discharged as
such on August 18, Mullin, had put two, new,general
laborers to work on August 17. I do not credit Mullin's
testimony that in addition to "general economic factors" he
was not "completely satisfied" with High's work perform-
ance, no persuasive or specific evidentiary showing in that
regard having been made. -
4. William Claborn
William Claborn, like High, had also worked for
Respondent- on two occasions (originally as „ a pipe-
threadiing ,machine operator and each time as_ a; Ieadman)
prior to= his latest hire 3 or, 4, years ago, when (while
elsewhere employed) he accepted an invitation from
Respondent (who contacted him)•to return to its employ, as
a leadman or crane-, operator at the,old yard. -He there
operated a 25-ton electric American crane, a large rig with
railroad track wheels running on ,railroad trackage, with a
45-foot boom, used to unload pipe, piling, and rail from
freight cars. Claborn,, a plain-speaking and .highly credible
witness , explainedthat-the old yard also has, in addition to
cranes of that variety, a-smaller railroad-track crane known
as a "Brown Horse." There were-two crane operators at the
old yard-Claborn and Knight.°(Claborn's brother Everett
Claborn, a -maintenanceman at'the old yard, was also able
to operate these crazies and -"did - so when either of the
regular crane operators was absent.) Claborn explained that
for 4 or 5 years there has also been a night shift in operation
at the old. ,yard, where the men, working in crews, are
dispersed as required--over the old yard acreage( an
expanse, as indicated above, of some 20 acres). Claborn has
also operated rigs at the new yard. '
As will be recalled, Claborn was one of the five
employees who attended and engaged in union organiza-
tional discussions at Williams' home in early August. And,
as has been shown and found, it, was Claborn who- was
interrogated by old yard Office Manager Bush on August
14 concerning those activities. On the same day (August
14),: Leo Mahan, from whom Claborn 'took.- all orders,"
also asked Claborn in the field-house, "Bill [Claborn], what
Union are you trying to get in this yard?".23
On Tuesday, August 18, after -working overtime on
Monday, August 17, as well as on Saturday, August. 15,
Claborn reported to work as usual. As he was readying
himself for operations and had lowered and raised the
boom 'of his rig,• he and the other old yard employees were
summoned to the dressing, room to, see Mullin -(the
Superintendent of the _ new yard). There, with himself
(Claborn) and his fellow-crane operator Knight, -as -well as
fellow employees Carlisle (a slotting machine operator at
complaint as unlawful interrogation . It bears, however, on' Respondent's
denial of knowledge of union activity , discussed infra as well as its true
motive in discharging Claborn.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the old Yard)' and several others including two pipethread-
ing,(oilfield casing)' machine -operators24 who had'been
"just-,hired, as -well. as old yard Office Manager Bush25
Mullin statedthat he "hated to do it, he [Mullin] said that
thework was slack and I [Claborn] knew it-wasn't because I
had loaded out twelve trucks the day before and I had
turned some trucks away." As in the case of the other
employees who credibly testified to- the same effect,
Claborn also had not experienced any work slackness;
indeed, work was so plentiful that "for a long time" he and
the other crane operator,, Knight, had been taking only 15
minutes for lunch-"we were running as hard as we could,
loading trucks .... We would take pipe off the truck, put
pipe on the truck, take pipe-off the threading rack, load the
threading rack up, unload cars, come back to the truck; and
it kept us busy switching back and forth all the time." " As
other employees who testified credibly to the same effect, in
all of his past experience with Respondent, Claborn had
never` seen.a man laid,off there, even during a slack period
(in'the distant,past), at which-time the employees policed up
the 20=acre yard. - - `
At the August 18,-discharge-session, after Mullin-said, "I
hate to do this ..: [I have] to let [you] gg, there [isn't I no
work," according to Claborn, Knight remarked, ""I have
been here nineteen and,a half years. I can run any kind,of
rig you've got." Mullin, however, replied, "I can't help that.
I still , have, to let you ga." Thereupon Claborn or- Knight
said to Mullin, "Why don't you quit your, lying and tell us
the truth that we are fired?" Mullin said, "That is what it
boils down to, you are fired." When, as will be shown in
connection with, the discharge of employee Knight, infra,
Knight asked whether it was their union card signing
activity that had cost the discharged, employees their" jobs
and Mullin" denied - any knowledge of it, Claborn called
Mullin a "lying son of a bitch." " In response to a question
about the employees in the other (i.e., new) yard, Mullin
said, "I am going over there when F leave here." Claborn
thereupon- called' his brother-in-law Stuart, the drott
operator at the .new yard, and informed him of what had
happened and that Mullin was on'his way over there.
Claborn corroborated other testimony that there' has
been a nightshift as well as dayshiftat the "Old" yard for 4
or 5 years.
Claborn's testimony is undisputed, and credited, that as
of the time, of the instant hearing (January, 1971) the, "Old"
yard is still in operation- "I [Claborn],went by there just
last, about a week ago, and they had twenty-nine cars of
pipe in the yard to unload They had two rigs [i.e., cranes ] in
the yard to unload them .... [I saw people working there ]
running the rigs in that yard."
-Testifying regarding the foregoing. as Respondent's
witness, ,, its new yard Superintendent Mullin stated that at
2i These operators threaded pipes on both ends by machine and affixed
a collar.`There were two or ' three shifts of employees doing this. The two
men indicated above had been hired in addition to the other employees
already employed there. '
25 Bush "takes ... John's [i.e., "Old " Yard Superintendent Jones]
place , when±he leaves the yard. You can get orders from him ." Claborn had
seen Bush , give orders to employees, as well as hire employees . Claborn
himself has taken orders from Bush. The foregoing is undisputed by Bush.
213 Some 2 or 3 months after his August 18 discharge and subsequent to
the filing of the charge herein , Claborn, who had been receiving $4.05 per
hour, received an offer of a job from Respondent as a "trainee" at $2.20
the August - 18 - termination episode Claborn remarked,
"This is all because of the Unio'n," to which, according to
Mullin, he (Mullin) "thinks" heindicated that he "had no
knowledge of it." Mullin also testified that after " he
terminated Claborn on August 18 as a crane operatorin.the
old yard; Everett Claborn-the maintenanceman in the old
yard-was assigned to operate the crane there.26
5. Douglas O'Neal Knight
Douglas O'Neal Knight had been continuously and
uninterruptedly in Respondent's employ- since May 1951;
over-19 years; when he was summarily discharged without
notice on August 18, 1970, with the other employees who
have been- mentioned. Except for old yard Superintendent
Jones and' Office Manager Bush, Knight -exceeded all
others at the old as well as, the new yard in seniority.
Knight, who is 50, was the top seniority rank-and-fife
employee of the entire described Houston operation. At his
discharge on August 18, he was a crane operator of one of
the locomotive cranes in the old yard. It will be recalled
that Claborn operated the other.)
Knight, an upstanding and most impressive witness
whose testimony I fully credit, testified that after attending
a union organizational meeting with fellow-employees at
the home of new yard employee Williams on August 6, the
following morning (i.e., August 7) Mahan (a supervisory
employee of Respondent at its old yard) "asked , me
[Knight] what kind of Union we was going to get in,
Hoisting Engineers, and I told him I didn'tknow,anything
about it." ?? -
On August 18, as Knight was readying himself for his
usual day's work, old yard Office Manager Bush instructed
Knight's leadman, Quinn, to release all laborers, with 4
hours pay for the day. Bush then called the ,others,
including Knight, to a meeting in the dressing,=room.
Present were Knight, Claborn (the other crane operator),
Carlisle (a slotting machine operator), and two- newly-hired
pipethreader machine operators (Wright and Qualls)„ as
well, as new yard Superintendent Mullin and - old yard
Office Manager Bush, Mullin tersely announced that for
economical reasons [you are] terminated." To' Knight's
question, "You mean we are fired because we signed the
Union card'' Mullin answered, "I don't "know anything
about ',the Union card . " Knight replied, "Mr. Mullinyou
are lying and you know it. That is the reason you are firing
us, because we joined the'Union."28 Claborn then spoke up
and a free-for-all discussion ensued.- -
The foregoing occurred at around 8:30 a.m., on, as has
been mentioned, August 18, a Tuesday, without any
previous notice, and the indicated employees-all five who
had attended the Union organizational meetings plus three
per hour. Claborn did not take it.
27 While not charged in the complaint as unlawful, interrogation, this
episode, as in the' case of employee Claborn ( supra,. fn. 23} is of
significance in relation to Respondent 's claim of unawareness of union
activity , particularly in the light of Respondent's unexplained failure to call
Mahan as a witness to deny or dispute it; and also as bearing on
Respondent's true motive in discharging Knight.
2s' Although Mullin at first denied that Knight said this, be later' testified
that he was unable , to "recall :. '. that exactly." I discredit' Mullut's denial
as well as his allegedly faulty recollection
L. B. FOSTER COMPANY 327
others-were then and there summarily discharged, with no
mention of the possibility of recall, rehire, or transfer to
other jobs. Respondent's workweek ends for pay purposes
on Wednesday, with'payday on Friday.
Testifying consistently with the other employee witnesses,
Knight testified credibly that he knows of no occasion in his
1-9 years of continuous employment with Respondent when
Respondent laid anybody off for "lack of work," even when
there was little to do-at such times, the employees would
police and, clean up the yard (20 acres) and collect and
organize scrap materials.
Also consistently with the other employees, Knight
confirmed that at the time of his discharge on August 18 the
workload was indistinguishable from that on the day
"before, when there was, as usual, a "pretty full schedule."
Concerning the foregoing, Respondent's new yard
Superintendent Mullin testified that after he had dis-
charged Knight on August 18 he assigned Travis
Quinn-who, it elsewhere appears (infra), describes himself
as "Leadman on Track 3" and had been in Respondent's
employ for only 4 years as distinguished from Knight's 19
years-to operate Knight's crane. Mullin's explanation for
terminating Knight-an employee of 19 years' standing
with the Company-rather than Quinn .(who there is no
indication had engaged in any union organizational
activity) is, in Mullin's terse way of. putting it, simply that
"Mr. Quinn fit very strongly into our long-range plans, and
I am afraid that Mr. Knight didn't fit,into the long-range
plans," adding that "there is quite a, difference in salary
too." However, Mullin later conceded that Everett Claborn,
the former maintenanceman who is now operating one of
the cranes at the old yard, receives around $4.50 per
hour-which is more than Knight's $4.05 per hour.
Mullin additionally claims that prior to his discharge
Knight had worked a few Saturdays at the new yard and
was unable because of his size (he is around 6'S" or 6'6" and
weighs 275 pounds) as well as a "knee problem" to operate
the Pettibone forklift. Knight concedes that he encountered
some difficulty in , operating the Pettibone at that time
because of a postsurgical knee condition, but that he had no
such difficulty with the drott, which he can operate without
problems of any kind. As to this, Mullin conceded that
Knight is indeed capable of operating the drott, but claims
that the drott was or is not operated "on a full-time basis."
Mullin further concedes that Knight "express[ed] an
interest in operating the drott machine," but that the reason
he was not permitted to do so was that the Company "did
not [have an interest in Knight's doing so] at'that time."
Knight persuasively swore that he had been assured by
"Old" Yard Superintendent Jones earlier during the
summer of 1970 that the "Old" yard employees were to be
"transferred"" to the new yard with their seniority "the same
as we had over here" (i.e., at the old yard). It is to be noted
that the foregoing is uncontroverted by Superintendent Jones,
who without explanation was not produced to testify. And on
cross-examination the concession was elicited from Mullin
that he, too, had told "Knight sometime around June or
July of 1970, that all the employees- at the old yard were
being transferred to the new yard," this being "the intent "
Finally, Mullin also conceded that as of the date of the
instant hearing (mid-January, 1971), both locomotive
cranes at the old yard-which had been operated by Knight
and Claborn-are still in operation there, one by Everett
Claborn (at the rate of pay higher than that of Knight) and
the other by Travis Quinn.29
6. Joel ("Joe") Allen Carlisle
With the assistance of his, uncle Knight (Respondent's
former crane operator just discussed), Joel Carlisle
obtained employment with Respondent on May 4,1970, at
its old yard. Although on starting he merely assisted
maintenanceman Everett Claborn, when thereafter Res-
pondent completed the setting up of its newly acquired
slotting machine, Carlisle became Respondent's only
slotting machine operator or machinist at the old yard. The
slotting machine makes slots in 40- or 44-foot, 16-inch
diameter pipe used such as for water wells and water
screens, the slots serving to filter incoming water. At that
time, work of this type was being done exclusively'at the old
yard, the Company's only slotting equipment being then
located there. To Carlisle's knowledge,, the pipes he slotted
were not transferred or conveyed from the old to the new
yard, but were either stored at the old yard or shipped from
the old yard to Respondent's plant or facility in Lubbock,
whence sold and shipped elsewhere as slotted pipe:
Carlisle was included in the described summary group
discharge of August 18, along with his uncle Knight.
Carlisle concedes that he attended no Union or other
organizational-meeting, signed no union card, solicited no
employee to affiliate with the Union, and in no way
participated in any union or organizational activity.3 ,
Carlisle also concedes that in early July he had informed
old yard Superintendent Jones that -he had applied for
another job elsewhere. Carlisle further concedes that a few
days after his August 18 discharge, he was offered-a job by
Respondent's. old yard Office Manager Bush at,the same
rate of pay he had been receiving (i.e., $2.55 per hour), but
without seniority "benefits," as a pipethreading machine
operator. This offer was received from Bush by telephone,
and Carlisle told Bush he would let him know on the
following day. When Carlisle spoke' to Bush the next day,
Carlisle asked Bush about the "benefits" again, and this
time Bush indicated that his seniority would be preserved.
Carlisle 'again told Bush he would let him know. That same
night-still during the same week he was discharged in
August--Carlisle "told him [Sushi I [Carlisle] didn't
believe I would be interested in the job because I had found
a job with better benefits." Carlisle' s employment is as an
electrician apprentice.
Mullin testified-that Carlisle was terminated because he
had indicated that he had applied for other work and was
waiting to be placed elsewhere as an apprentice electrician.
However, with regard to the slotting machine which
29 As did Claborn (fn. 26, supra ), several months after his August 18
discharge and subsequent to the filing of the-charge herein Knight received
a job offer from Respondent as a pipethreader "trainee" at $2.20 per hour.
Knight, who after over A9 years of continuous employment with
Respondent had been- receiving $4.05 per hour, did not respond to this
offer.
30 Although he had on several occasions earlier in August been
approached by Knight-and Claborn to sign a union card , as of the date of
his discharge with ' the others on August 18 he had not yet decided whether
to do so.
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carlisle had been operating, Mullin testified that upon
Carlisle's termination -employee Gates "should have, been"
assigned to that machine if it was operating that day.
7. Bill Wright
Bill Wright, a pipethreading machine operator at the old
yard, who was included in the mass discharge of'August 18,
did not testify. No proof has been adduced that he was in
any way active or involved in union or other protected
activity prior to his discharge.
8.' Charles Qualls
Charles 'Qualls, likewise an old yard' pipethreadin9
machine operator who figured in the August 18 discharges,
also did not testify; nor has any proof been adduced at he
was in any way 'active or involved in union or' other
protected activity prior to his discharge.
Recapitulation
To recapitulate, then, on August 18, a Tuesday and not a;
payday or pay period ending date, without prior notifica-
tion, Respondent summarily discharged eight of its
employees. These included its only two, crane operators at
its old yard (Knight, and Clabom), of whom one (Knight)
had been in its employ continuously for over 19 years, and
its only slotting machine operator (Carlisle),who was the
nephew of, one of the crane :operators (Knight) who had
gotten him this job, there; three employees at its new yard
(Stuart, its only drott operator; Williams, one, of its two
Pettibone forklift operators; and High, a general helper and
the brother-inL-law of Williams, who bad gotten him his job
there); and two pipethreading machine operators (Wright
and Qualls) at -the old yard. All five employees who had
shortly before, that in August commenced - engaging in
union ; organizational' activity (Stuart,, Williams, High,
Claborn, and Knight) were included in the summary
discharge, which Respondent asserted was for. "economic"
reasons . 'Respondent's .contentions in this regard will now
be examined.
Respondent's Contentions
Respondent's principal, defense revolves around its
contention that the discharges in question had no
connection with, the employees' union organizational
activities but were, on the contrary, "economically"
motivated. Respondent sought to establish its defense
through the testimony of, three of its officials-C.R. Laden
31 Laden testified that even though the two railroad cranes have been
sold, one in "the latter part of August or the first part of September" and
the other subsequently, they are still at the old yard and; "still in use there
occasionally." Laden further testified ,that itis now planned to "rent a
crane" for use as requited at the old yard.
32 Laden testified this is because a crane [i.e ., railroad crane at , the' old
yard] crew is five, whereas a Pettibone forklift crew [i.e., at the new yard] is
only three. This, however, totally ignores (1) the number of Pettibone
forklifts required, which may so far exceed the number of locomotive
cranes that the resulting total crew personnel could outnumber the railroad
crane crew personnel; (2) the comparative lifting capacity; speed, and, other
characteristics, and capabilities of a single Pettibone forklift vis-a-vis a
single railroad crane; (3) the existence of drott equipment at the new yard
(its vice president, Houston Division), Kenneth L. Kilpa-
trick (its regional comptroller and administrator), and
Ralph J. Mullin (its,new yard superintendent).
The testimony of Laden and Mullin relates to, two
different facets of Respondent's "economic" defense. First,
their testimony indicates that at some time well prior, to the
August, 1,970 discharges here in issue-perhaps,as early as
1968 or 1969-Respondent decided to attempt to sell its old
yard and to obtain a larger but less valuable property
elsewhere. Accordingly, the new yard was acquired in mid-
1969. In connection with the foregoing, it is noteworthy
that: (1) Although the old yard is around 20 acres, the new
yard is 70 acres, of which 35 are presently planned' for
development; (2) Notwithstanding, the August, 1970 group
discharge, here in question, itis-conceded that as of the date
of this hearing, - some 5 months later, the' old yard with its
equipment (including the railroad cranes31 was, and
presumably still is, -in operation, and 'inventories are still
concededly maintained' there, with new employees having
been hired 'to work there as well as in the new' yard; (3)
Despite the far larger acreage of the new yard, Respon-
dent's official Laden contends that fewer employees will be
required there even at such time as it may wholly replace
the old yard 32 ; Respondent's official Mullin,` however, who
is the operational head ("Superintendent") of the new yard,
concedes that "the totality of the work that was done at the
old yard and the new yard, when those two were at peak
operations, were ,approximately equivalent to that which is
being done at the new yard at the present time ..." 33 -in
other words, the totality of work output or production of
both yards is unchanged, regardless of whether the work is
done in both yards or, only in the new yard; and (4) The
foregoing in no way accounts'for Respondent's discharge of
its needed Pettibone forklift operator (Williams) and drott
operator (Stuart) at its new yard. Further in, connection
with Respondent's as yet unconsummated plan to dispose
of its old,yard,'it is of interest to note that, when Laden was
asked at `the instant hearing when the old :yard will be
closed down, his answer (on direct examination)' was'that
"it's problematical' as to when we can complete the final
move-over and do all the things we intended to do.,'t`he
easiest way to answer that is when we sell the old plant and
get our money, from it,, then we can move." It is further of
interest to note, in connection with Respondent's indica-
tions that unlike its old ,yard it seems to 'have no need for
railroad cranes or large rigs of similar capability at its new
yard, that, new yard Superintendent Mullin was careful to
testify, (also on direct examination) that there . are no such
cranes at the new yard."now." 34
only; (4)' the total tonnage or quantity of work at each yard,' and the
projected total tonnage ore quantity of,work at the new yard if and when it
serves as Respondent's, only yard at Houston.
33 I.e "except for the [pipe ] threading operation ," -which still continues
to be done exclusively at the old yard -
34 At one point ''during ' cross-examination , however, Mullin conceded
that "a mobile crane" has been placed in operation in the new yard. Mullin
likewise conceded that the moving of material in the yards , including the
new yard, requires use of lifting and carrying equipment. It is clear that the
nature of that equipment in turn depends upon - its capabilities in terms of
the weight , configuration„and other characteristics of,the'loads to , be lifted
and moved. No showing was made by Respondent that the nature or
characteristics of the materials and- products handled by it in its yards has
L. B. FOSTER COMPANY 329
The second facet of Respondent's "economic" defense is
independent of its alleged plan to dispose of or discontinue
its old yard (it will be recalled that the first facet of
Respondent's "economic" defense dealt with Respondent's
plan, as yet 'uncorisummated, to close the old yard and shift
operations from there to the new yard); it is to be found in
dovetailing testimony of - Laden and Mullin allegedly
accounting for the summary nature of the group discharges
on August 18. According to Laden, for "economic" reasons
he ordered Mullin to effect a layoff, without specifying
names , on August 18; according to Mullin, he carried out
those orders. To begin with, it is clear that neither Laden's
assertion that he gave the order for "economic" reasons nor
Mullin's assertion that he carried out the order establishes
that the discharges were in fact for "economic" reasons,
that being no more than Respondent's own conclusionary
claim and defense here. A defense is not established
through its mere assertion. It is accordingly necessary to
analyze Respondent's contentions in this regard.
Laden starts out with the broad assertion that 1970 was
generally a poor,year in the steel industry. He then points to
some other isolated "layoffs" by 'Respondent at other
locations.35 He indicates that Respondent's own sales have
allegedly fallen off' while, its expenses have increased.
Asked, however, to produce Company records or factual
data showing actual tonnages of merchandise processed
through the yards here in question-since it is presumable
these which would afford a clue as to the work levels for the
employees here in question 36 -Laden indicated he had no
such figures with him at the hearing, although they were
available.
In justification of the summary nature of the discharges
on August 18, Laden offered a memorandum (Resp. Exh. 3-
Id., hereby- received) from Company President Milton
Porter, which Laden .states required the retrenchments in
question. It is to be noted that the memorandum is undated.
Laden, however, claims he received it "to the best of my
recollection; during May-[19701." Although it seems strange
that a: memorandum of such importance in an organization
of such, size would bear no transmission or receipt date,
nevertheless, accepting Laden's testimony of its receipt date
characteristics of the - materials, and products handled by it in its yards has
in any way changed.
.`is Thus; Laden cites 'the termination of a salesman at Lubbock, under
undisclosed_ 'circumstances , not, to be "replaced . . . at this time"; the
reduction of its "workforce" from 21 in July to 1.9 in August at a nearby
wholly-owned subsidiary, also with the circumstances of the alleged
reduction , as well as the nature of the "workforce" (e.g., casual laborers?)
undisclosed ; the ' "release" - of a sales engineer in September; and the
"release" of a file clerk at an -unspecified date under undisclosed
circumstances. These alleged incidents, even if true , hardly establish that
Respondent's summary discharge of the five employees here under the
circumstances shown was not because of their immediately antecedent
union organizational activity.
36, It is to be noted that, with a single exception (High), all of the
employees here in question who were terminated on August 18 were lifting-
carrying or other equipment operators , as distinguished from general' or
casual laborers . As shown by the testimony of various witnesses , including
new;yard Superintendent Mullin , most of the employees in the yards (old
and new) consisted of general or casual laborers , who were, assigned to
work ,crews related to the lifting-'carrying equipment . The supply of these
general or casual laborers was readily expanded or contracted as the
volume of work (e.g., 'unloading incoming `ships, freight cars; Or, trucks)
required. Mullin described the bulk of the help at the yards as "just general
labor, basically" or "labor pool ... temporary help." In supervisory
as true, Laden was asked why he delayed until mid-August,
some 3-1/2 months, to effectuate it if indeed it related to
such employees, as those here in question.' Laden's
somewhat incomprehensible words of explanation were,
"We had probably, our particular move down here brought
up a rear in the overall action-which started.the overall,
action." He then added that a heart attack in the "latter
part of May" kept him from the office until after July 4.
Laden was asked on cross-examination what prompted him
to the precipitate discharge action on August 18-the very
day he received notification of the union representation
election to be conducted under Board' auspices. His
explanation was, "numerous phone calls, perhaps three or
four times a week," from the president of the Company.
Asked thereupon why -he did not so testify on direct
examination, Laden's explanation was, "Because I didn't,
think it was relevant." Before leaving this particular aspect
of Respondent's "economic" defense,,it is to be noted that
the allegedly undated memorandum-in question, from the
company president at its Pittsburgh home office, in .any
event refers only to "a sizeable -cut in our Headquarters
staff," as to which it further indicates that "many of these
people can transfer to openings in the region." (Emphasis
supplied.)
Laden further avers that what he calls the mid-August
"layoff" decision-but' what Mullin, who executed Laden's
order, concedes was an action with no contemplation ever
to recall any of the particular employees here involved 37
-was reached by him and , his immediate superior
Anderson38 after reviewing the July figures at "the end of
the second week in August." (More will be said -directly
concerning those "July figures," in connection with the
testimony of Respondent's witness Kilpatrick, its regional
comptroller and administrator, infra.) According to Laden,
he thereupon on August- 14 (Friday) instructed new yard
Superintendent Mullin to decide between himself (i.e.,
Mullin) and old yard Superintendent Jones (then on
vacation) whom to weed out 39
Laden's testimony (as well as that of Mullin) shows that
both the old and the new Yards are still in active operation,
with replacement and added employees. As testified by
employee Mahan 's words, "We get new ones every day ... from the
Labor Pool"; according to supervisory employee Quinn, "You didn't know
from day to day who was going to be there." However, the same cannot be
said for the permanent or regular cadre of lifting-carrying equipment
operators, unless yard operations were to be brought to a standstill, which
they concededly have not been.
37 It will be recalled that nevertheless some of the dismissed employees
here were subsequently offered "reinstatement' in other jobs. Queried as to
why (particularly in view of Mullin's testimony-which I have
unequivocally rejected-that some of them were "unsatisfactory'.'.). Mullin's
response was, "I was not consulted . . _ . But this is in the old yard, sir. I
am not responsible over there ." (It will nevertheless be recalled that it was
Mullin who effected the August 18 discharges in the old yard.) Mullin
finally blurted out, "Well, sir, I only go by the rules given to me : I'm sorry
I don't make them:'
38 Anderson is Respondent's vice president and regional manager, and a
member of its board of directors . His office adjoins that of Laden. He did
not testify.
39 Contrary to Laden's testimony, Mullin swore that he and Laden
"discussed names" of employees to be laid off, but not 'in detail." Lest this
be considered an inadvertence on Mullin's part, Mullin thereafter
reiterated-contrary to Laden-that he (Mullin) "mentioned -names to him
[i.e., Laden] on Friday [August 14]."
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laden, "We have changed our classifications and retained
our method of handling, but the crane operator is now a
fork-lift operator, what was a rigger is now a : . .-material
man." According to Laden , two "fork-lift, operators" have
been hired since the termination of , the two "crane
operators" and others on August 18; and new hires have
been for the new yard , except for pipethreaders , for whom
"we ... still have need" at the old yard "at this time" (i.e.,
January 12, 1971). Laden conceded that as many as eight
new employees were hired by Respondent in August-"We
were on a construction program in the yard"; and that his
"best estimate" was that seven new employees were hired at
both yards in September-i.e., shortly after the termina-
tions here in question ; the foregoing being exclusive of new
employees hired in June and July . From the trial transcript
(pp. 205-207):
TRIAL EXAMINER: I understood you to testify awhile
ago that of the eight released on August -18 of 1970, two
were recalled in- the capacity of threaders in- the old
yard., ' J
THE WITNESS [Laden] : Yes, sir.
TRIAL EXAMINER: That .would leave six of the eight.
THE WITNESS: That's right.
TRIAL EXAMINER : And one or two fork-lift operators
have been hired since August 18 of 1970 in the new yard
,in the classification of fork-lift operators as distin-
guished from what you call the old classification of
crane operators?
THE WITNESS : That's correct.
TRIAL EXAMINER : That reduces the six - to five or four?
THE WITNESS: Yes.
TRIAL EXAMINER: And further, since August 18 of
1970, two or three were hired in a -new classification
called material man: as distinguished from the old
classification called rigger , and also for the new yard?
THE WITNESS : That's right.
TRIAL EXAMINER : That would be a total of either five
to seven, is that correct?
THE WITNESS : I don't see your notes. ,
,TRIAL EXAMINER : No, you ,don't have to look at my
notes . One or two, for-k-lift operators, two or three
material men, that's three to five . The two threaders
increases the three to five ' to seven.
THE WITNESS : It has nothing to do with rates of the
ones we hired,, of those we reduced. ,
TRIAL EXAMINER : Are certain types of material still
being received in the old yard which are being removed
by the old locomotive crane?
THE, WITNESS : , Material to be threaded in the
threading machine.
TRIAL EXAMINER : That is true even today?
THE WITNESS: Yes.
TRIAL EXAMINER : How' do you propose to do that
work when the delivery of these cranes are made tothe
purchasers? -
THE WITNESS: `We will rent a crane . Our intent has
been to move the machines over.
' ; Q. (by Mr . Wheat) Are you going to rent a
locomotive crane?
-A.A No. ' We are goingato rent fork-lifts and we have
one 15-ton Brown Hoist.
Q. In addition to the Brown Hoist you are going to
use rented apparatus in order to be able to continue to
thread the pipe at the old yard?
A. That's right. And we have surplus equipment at
our Houston Pipe Coating that is owned by us, and idle
a considerable time which can be used.
Laden conceded that he knows of no previous occasion
during his 20 years with Respondent when eight employees
were simultaneously terminated in midweek or mid-pay
period. He admitted that overtime was "worked immediate-
ly, -prior to , the separations of the 18th," with no
discontinuance of that policy . In Laden's words, "if you
have a ship in, when you have a ship come into the dock
and unload carloads by a hundred or so, you have to have
overtime ." Indeed, Laden acknowledged that even
"immediately before the discharges" Respondent, had
encountered such "difficulty in getting incoming shipments
unloaded" that it "had steel in alternate storage in several
places in the city" and that it "incur[red considerable ]
additional expense in the terms of fines or storage fees
because of this difficulty in getting shipments unloaded."
He further conceded that even as of the date of the instant
hearing (January 12, 1971); shipments "at the oldyard.,
are unlaoded by locomotive crane," while "at the new yard
they are operated by a drott machine and Pettibone fork-
lift." Pointing out that "When you get a ship in,' there is a
tremendous surge of inbound, tonnage," Laden acknowl-
edged that this "can occur at any time ,"-indeed that"It can
occur tomorrow."
As has-been indicated , Respondent's ' new yard Superin-
tendent Mullin testified that he carried out 'Laden's
instructions resulting- in the discharges here in question.
Although , Mullin denies knowledge of the union activity or
who° was involved in it, I reject his denials. As has, been
shown,. -various supervisory personnel of Respondent
(specifically Bush and Mahan) were aware of it and they
have - not disputed that they interrogated some of the
employees here discharged (Claborn and Knight) concern-
ing it. It is not to be assumed that their knowledge was not
transmitted, to their superiors ; rather, their knowledge will
be imputed to Respondent . Texas Aluminum Company, Inc.
v. N.L.R. B., 435 F .2d 917 , 919 (C.A. 5); N.LR:B.- v.
Transport Clearings, Inc., 3I1 F.2d 519, 523 (C ,A. 5). `Such
knowledge on the part of the Employer may even' be
circumstantially inferred . A., J. Krajewski- Manufacturing
Co . "v. N.LRB., 413 F.2d 673, 676 (C.A. 1); N.LR.B. v. Mid
State Sportswear,, Inc., 412 F.2d 537, 539 (C.A. 5); N L:R.B.
v. Schill Steel Products, Inc., 340 F.2d 568 , 572 (C.A. 5). It is,
of interest in this connection , in view of Mullin's claim of
lack of awareness in this area, that Laden `conceded' on
cross-examination that around late July Mullin made
known to him that "Mullin had a report there might :be
[union ] activity in -one end or the other of the plant"
Mullin himself stated, in his distinctive testimonial style, "I
[Mullin] had knowledge of a little ruckus stirred up,,but
actually , the word 'union,' no. The comment was made to
me somewhere that I better be careful that the people` were
stirring up a little bit of a ruckus and'ifI wasn't careful the
latter part of July, they would stir up a ruckus
Somebody in' the new yard [told me that]." Much later in
his testimonial performance, during - cross-examination,
L. B. FOSTER COMPANY 331
after again specifically denying he had "any knowledge
there was any union activity," Mullin acknowledged that he
did have "general indications they were threatening to
organize back in July," -one of the employees having "told"
him so . And Mullin thereupon finally conceded that
although he expressed no "particular" interest in this,
nevertheless "I [Mullin] mentioned this to Mr. Laden."
Pressed further on this, Mullin later added: "The general
statement that was made was that something was going on.
But specifically,, I_don't know these people well enough to
know-what their thoughts are . . . . We were bound to have
some each way. What the outcome would be, I would have
no way of knowing, sir .... I know it's inevitable."
Mullin's testimony shows that he hired two new
employees on Friday, August 14, who started to work on
Monday, August 17. Questioned as to why he hired them
since the discharge of the others on August 18 was
imminent-Mullin having received Laden's instructions to
do so on August 14-Muffin's explanation was, "I was not
aware of the urgency of the timing" for the discharges, and
that economy was achieved by paying the new men less
than the men being discharged. As to his "economy"
reason , however, Mullin conceded that at the time he hired
these two men he was unaware of ally "economy" drive and
claimed that he was even unaware of any decision to
discharge any employees.
Mention has already been made of Muffin's attempts to
suggest that some of the employees were discharged on
August 18 for work inefficiency. I have rejected this as a
credible basis for any of those discharges, and I again
emphasize that rejection, based upon my adverse impres-
sion of Mullin's testimonial demeanor, as well as his failure
to establish such a contention by factual showing, and,
finally, based upon his own admissions. Thus, for example,
Mullin himself conceded on cross-examination that Stuart
is a "qualified machine operator ." 40 It impresses me as
highly unlikely that if the work performance of these
employees was significantly deficient, Respondent would
have tolerated them in its employ as long as it did, or that it
could not persuasively establish the same through records
or other factual proof. I believe, rather, that Laden summed
it up accurately in testifying that with the August 18
terminations "we lost some very good men."
40 After so testifying, Mullin later unconvincingly attempted to
backtrack by stating that Stuart was only such during his initial 30 days of
employment (i.e., April-May, 1970), but that "questionable areas" (Mullin's
idiom) thereafter developed or became aggravated, including heedless
driving and a tire blowout. (With regard to the latter, Mullin acknowledged
that another employee who blew out a tire on the drott drew a mere
reprimand, as did still another employee who blew out a tire on a Pettibone
forklift.
41 According to supervisory employee Gates, in September-October
there were 12-14 employees in the old yard. The figure of "40 or 45
People," supplied by supervisory employee Quinn as being in the old yard
at that time, presumably includes casual laborers.
42 it is noted in passing, however, that when 1970 (Resp . Exh. 4) is
compared to 1969 (Reap. Etch. 5)-when the employees here, or many of
them , were also in Respondent's employ-the "actuai'<" as distinguished
from the "planned," sales and rentals show a seemingly large increase in
the "deal" sale category (2460.8 in 1970 as compared to only 872.4 in
1969), with somewhat of a drop in "stock" sales (3896.7 to 3264.1); and
that it is perhaps only because the "planned" sales were seemingly so
hugely overprotected (4496.4 in 1970 as compared to 3649 . 1 in 1969) that
the 1970 "variance" between "actual sales" and "planned sales" is
seemingly so "unfavorable ." Actually, these reports show that the total
Mullin acknowledged that on the 2 days preceding the
August 18 terminations, the discharged employees had
worked overtime at both the old and the new yards. He
claimed not to have the "slightest idea" as to whether-as
credibly sworn by one of the employees-there were "any
cars remaining to be unloaded at the premises of the old
yard on August 18." Also acknowledging that at the time' of
the discharges in question Respondent observed a seniority
policy and that the old yard still continues in operation 5
months after those discharges, Mullin further conceded
that of the 15 current new yard employees only 6 were
working there on August 15. It follows that 9 of the 15 who
are employed in the new yard now (i.e., at the time of the
hearing of this case in mid-January, 1971), have either
replaced others or have been added. Finally, Mullin
concedes that "at the time 'these eight 'were being
terminated" he was "in the process of hiring new
employees," and that seven new employees were hired in
September, 41 and he speaks of a buildback of manpower, in
the fall of 1970 following on the heels of the discharges. -
Respondent's Regional Comptroller and Administrator
Kilpatrick identified certain of Respondent's business
records, which were produced by Respondent in-an attempt
to bolster its "economic-defense. To'the extent these may
be considered to be potentially material, they will be briefly
commented upon.
Respondent produced its record of operating revenue
and expense for the Houston District for July, as well as
cumulatively from January through July, for the years 1970
and 1969 (Resp. Exhs. 4 and 5). These also show projected
as well as actual sales for the same periods. Kilpatrick
conceded that these do not show the amount of work on
hand. It is clear that they do not in themselves account for
Respondent's action taken on August 18 which is here in
issue 42
There have also been produced comparative July 1970
and July 1969, and cumulative January 1-July 31, 1970 and
1969, summary reports for plant operations of Respon-
dent's various plants including Houston, showing inbound
and outbound carloads (Resp. Exhs. 6 and 7). These
likewise do not in themselves account for Respondent's
August 18 action here at issue.43
It is to be noted that, although available, Respondent has
gross profit from sales in the comparative 1969 and 1970 periods covered
(i.e., through July 31 of each year) was greater in 1970 (747.6) than in 1969
(702.9), and that the difference in "operating income" between those years
(520.6 in 1970 as compared to 538 .4 in 1969), off 17.8 in 1970, is more than
doubly accompanied by the rise in "selling " (not manufacturing) expenses
(201.0 in 1970 as compared to 159 .2 in 1969), up 41.8 in 1970. (The figures
referred to are in thousands of dollars .) The foregoing , which are
Respondent's own data, compare 6-month periods of only 2 years. And, of
course-to bring it down to terms that are meaningful here -corporate
profits do not necessarily reflect the amount of work done by- crane and
other equipment operators in Respondent's yards. Factors too numerous to
mention go into the calculation of corporate profits, including , to name but
a few, administrative costs, interest, and allocations and writeoffs of all
sorts. Respondent also produced profit and - loss data for its entire
"Houston Division ," which includes its New Orleans District , its Lubbock
District, its Latin American District , and its Coating and Wrapping'
Operation (Reap. Exhs. 8 and 9). However, Respondent produced no data
concerning the tonnages lifted at its fields in 1970 as compared to previous
years-the work of the crane operators and their crews.
43 It is again, however, noted that with respect to the Houston
operation , the carloads "mbounded" increased 'in the 1970 period over the
corresponding -1 969 period reflected in Respondent 's data (i.e., January 1
(Continued)
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also failed to produce its records, showing the level of
employment at the old and new yards for,the past few
years.,
Testimony of Billy W. Perteet
Billy W.. Perteet, called as a witness by General Counsel,
testified-that he was formerly in Respondent's employeas a
crane leadman 44 in the pipe,department at the old yard. On
August 8" he quit this job and moved to Fort Worth.
On Saturday, August 22, Perteet returned to ther, old yard
to pick up'pay due him. He saw old yard Pipe-Threading
House Supervisor McAlister and maintenanceman Everett
Claborn there. Having observed Knight and other oldtime
old yard employees not to be'there, Perteet asked McAlister
where they were. McAlister told him they had been `,`fired. "
Perteet asked him why. McAlister replied that "they had
been fired' because of trying to get the Union in ... Even
your [i.e., Perteet's] brother-in-law [i.e., Williams and High
got fired;" At this time (August 22) former- maintenance-
man Everett Claborn was working as "a crane operator at
the old yard.
Disputing Perteet's, testimony, Respondent's, Supervisor
McAlister testified that on the occasion in-question he only
told Perteet that he was glad he had found a job and asked
him how he and his family liked it at Fort Worth. McAlister
claimed not to be able to recall whether Everett Claborn
was present.45
Without explanation, Everett Claborn was not produced
to dispute Perteet's testimony. Having kept Perteet and
McAlister under close observation as they testified, f have
no hesitation in clearly preferrmg the testimony' of Perteet
tog ` that of McAlister. Perteet testified forthrightly and
forcefully and his tone and manner carried conviction.46 I
am unable to say the same for McAlister. Everett Claborn,
who might have resolved the issue, was not produced by
Respondent although in its employ. I cannot assume that
had `Everett Claborn been produced, he, would' have
testified that he, was not there or that he would otherwise
have disputed Perteet's'version. Under the circumstances, I
credit the described testimony of Perteet.
to July 31 in each case), from 381 m,1969 to 544, or up 163 in 1970; and
that cars "outbounded" likewise increased, front, 57 to 171, or up 114, a
trebling, in 1970; for a total increase of carload handling from 438 in 1969
to 715, up 277 or approximately 63 percent in 1970. Although truckloads
handled in 1970 declined from 2225 to 1817, total LTL (i.e., less-than-
truckload loads) handled in 1970 increased from 1296 to 2035. Likewise,
July 1970 inbound carloads increased from 64 to 82 and outbound carloads
increased from 8 to 55, fora total of carloads handled in July, 1970 of 137
as against only'72 in July, 1969' This indicates the opposite! of the 1970
decline claimed by Respondent in work to be done at the yards in
question
Although, according to Respondent's data, pipethreading units in 1970
decreased to 64,942 from 91,441 in 1969, and cutting of construction piling
and reclaiming decreased to 7957, from 11,826 in the same period,
pipecutting in 1970 increased to 5100 units from 3274 in 1969 and rail
fabrication, likewise increased to 2896 from 2298 in the same period.
The data, presented by Respondent cover only 2 years--hardly a
sufficiently representative period (It may be, for example, that 1969 was, an
exceptionally busy year, in which event 1970 was not necessarily a "poor"
one comparatively speaking, but may even have been a "gold" one.) It is
again emphasized that Respondent failed to produce data showing
comparative tonnages lifted-i.e., the work of the crane operators, and
other lifting equipment , personnel-at ,its Houston yard(s) over an
established representative period, notwithstanding this being pointed out to
it at the hearing and its indication that it maintains such statistics.
- Recapitulation of Respondent's Principal
Contentions . -
To recapitulate again at this point; .Respondent-' claims
chiefly that the true reasons for-the August 18 terminations
here at issue were (l),its phasing out of its old yard and (2)
an "economic" cutback imposed by its,home office. With
regard to the first, the stark and uncontested fact is that 5
months after the discharges, the old yard, including the
equipment there operated by the discharged employees, 'still
continues in operation. Furthermore, . credited- testimony
establishes, that Respondent's old yard employees were
promised that they would be transferred to the new yard
upon the eventuality of cessation of operations at the old
yard. -It is further established,- that at the time of the
discharges there was no "slack," but rather a'superabun-
dance of work on hand, with the necessity for even
overtime. It is conceded that Respondent observed a
seniority policy, but notwithstanding this less senior
employees were given the jobs of the discharged employees
and new employees have since been hired. General Counsel
has ,made a prima facie showing of violation of the Act
through the suspicious summary, discharge, for the first
time in Respondent's known history, of so many employ-
ees, holding key production jobs, without notice, in the
middle of the week and pay period, the five employees who
were engaged in protectedorganizational activity all being
fired together. Upon the record presented, Respondent' has
failed,through substantial credible evidence to overcome
General Counsel's prima facie showing. Respondent's
contentions as to its alleged reasons for, the simultaneous
summary discharge of those, five employees on August 18
under the circumstances described "fail[s] to stand under
scrutiny" (N.L.R.B. v. Dant, 207 F.2d 165, 167 [C.A. 9]).
Upon the record- as a whole, including. , testimonial
demeanor, as closely observed and compared, I do, not
credit those explanations as here advanced,by Respondent
and find that they are pretextuous. I find that, Respondent's
true reason for the discharge of those five employees was
their described lawful concerted organizational activities,
which are'protected by the Act's guarantees against such
In any event, as ' shown above, the data produced by Respondent
establish that inbound as well as outbound carloads in various categories
increased substantially in July as well as in the first 6 months of 1970 over
1,969, As conceded by Respondent 's Regional Comptroller and
Administrator Kilpatrick, these carloads (whether inbound or outbound)
required unloading or loading-that is to say, handling by the cranes-and
other lifting apparatus operators and their crews here in question.
(Although this allegedly included some movements from the old to the new
yard, the alleged extent thereof was unexplamedly not shown even' though
assertedly "available"; and at any rate it is handling work nonetheless, or,
in Mullin's words, "It's work performed.") Moreover, Respondent's own
figures for July, 1970 show that in that month at, Houston the net
manhours worked (6148) were lower than the standard manhours allowed
for that work (7053) by 905 manhours or 12.8 percent'; constituting,
according to Mullin, a "plus performance" there . This likewise' indicates
the opposite of a dearth of work there.
44 The crane leadman "makes "sure that everything, when he gets his
orders, he makes sure everything got on the trucks: They tell me 1Perteet, as
leadman ] what to do and I make sure they are done."
45 Joe Godfrey, who was concededly present -at the time, called by
Respondent as a witness, testified that he did 'not bear the entire
conversation since he was not "really listening." He also' claimed not to
remember whether Everett Claboru was there.
46 In so stating, I have taken ` into consideration his relationship, to
Williams and High.
L. B. FOSTER COMPANY 333
retaliation'. The coupling of Respondent's receipt on
August 18 of notification from the Board of an upcoming
union representation election,- with the mass discharge on
the same day of the union adherents, is strongly suggestive
of design on Respondent's part to rid itself of those union
adherents so as to insure avoidance of an otherwise feared
certification of the Union as collective-bargaining agent for
the employees through the Board's election process, and
therefore of design to thwart the operation of the Act.
,Upon the record as a whole, it is accordingly found that
Respondent's termination of the employment of Kenneth
R. Stuart, James E. Williams, James L. High, William E.
Claborn, and Douglas O'Neal Knight, on August 18, 1970,
and its, failure to reinstate them to their former or
substantially equivalent positions, was and is because they
joined , or assisted the Union and engaged in lawful
concerted activities for the purpose of collective bargaining
or other mutual aid or, protection, as alleged in the
complaint. It is further found that it has not been
established by substantial credible evidence that Respon-
dent's termination of the employment on said date of Joel
("Joe") Allen Carlisle, Bill Wright, .and Charles Quails was
because of union or concerted activities on their part, as
alleged in the complaint.47
The Representation Case
As has been indicated, representation Case 23-RC-3493
has been consolidated for hearing with complaint Case
23-CA-3,734 here.. The representation case involves 14
challenged ballots cast at the Board-conducted election of
October 16, 1970. Since, excluding the 14 challenged
ballots, only 11 other ballots were cast (5 for and 6 against
the Union),48 the challenged ballots could be sufficient to
determine the outcome of the election and therefore the
challenges require determination.
,Of the 14 challenged ballots, 6 are those cast by
employees Carlisle, William E. Claborn, High, Knight,
Stuart, and Williams, of whom all but Carlisle have herein
been found to have been discharged in violation of the
Act 49 In view of the determination herein that these five
employees were unlawfully discharged, it is clear that the
challenges to their ballots should be and they are hereby
overruled, and that their ballots, should be opened and
counted; with the exception of that of Joel ("Joe") Allen
Carlisle who the evidence does not only not establish to
have been unlawfully discharged but who conceded at the
hearing that in August, 1970, a few days after his discharge
but long before the October election, that he declined the
Company's unconditional offer to restore him to his job, for
the reason that he desired to, remain in another and "better"
job he had obtained.
The remaining eight challenged ballots are those cast by
47 At the Charging Party's request, unopposed by Respondent, official
notice has been taken of various other proceedings involving Respondent,
who is no stranger before the Board.
48 There were 31 eligible voters in the unit.
49 In view of the undetermined nature of their status at the time of the
election, these six were permitted to cast ballots which were impounded by
the Regional Director subject to determination of their status in the instant
"C" case. Employees Bill Wright and Charles Qualls are not involved in
the "r' case.
50 Act, sec. 2(11) provides:
employees Broz, Everett Claborn, Evans, Gates, Mahan,
McAlister, Quinn, and West, all of whom 'were challenged
by the Union as supervisory employees not within the
agreed bargaining unit excluding such personnel.
In considering the status of' these eight employees
challenged as supervisory, it is of course essential to give
effect to the well-understood proposition, frequently
reiterated by the Board, that it is not - the job -title, or
classification of an employee (N.L.R.B. v. Quincy- Steel
Casting Co., Inc., 200 F.2d 293, 296 [C.A. I p; but what'he
actually does or is authorized to do (N.LJtB. v. Southern
Bleachery & Print Works, Inc., -257 F.2d235, 239 [C.A. 4],
cert. denied, 359 U.S. 911) which is determinative of
whether or not he' is -a supervisor, the basic touchstone
factor -under the statute being whether he has either actual
or effective recommendatory power over'or with regard to
other employees 50 Square Binding and Ruling Co., Inc., 146
NLRB 206, 210 and cases there cited.
Within- this basic legal frame of reference, then, we
proceed to consideration of whether or not each of the eight
employees challenged by the Union was or was not a
supervisory employee.
Each of the eight employees challenged by the Union as
supervisory is still in the Company's employ and each was
called as a witness by the challenging Union.
i
(1) Broz
Adolph R. Broz, who has been in the Company's employ
for about 10 years, testified that -at and around the time of
the election (October, 1970) he was a crane "rigger and
helper," in which capacity he had "three men . . . working
with me." According to Broz's testimony, Broz told these
three men what to'do, translating general work instructions
received by him from the Company office into specific
work "requirements- and tasks for those three as well as
himself. Broz -further testified that he would report
unsatisfactory workers to personnel management in the
office, and that Broz possessed the--authority effectively to
recommend the-discharge of employees.
While the level of Broz' authority may be relatively low
in the Company's hierarchy, it nevertheless seems clear that
in- view of the fact that he 'responsibly directs work crews
and may effectively recommend discharge, he has been
vested with supervisory authority by the Company and
satisfies the Act's definition of a supervisor. For these
reasons the Union's challenge to his ballot should be
sustained and the ballot destroyed unopened.
(2) Everett Claborn
Everett Claborn, who has been in the Company's employ
for over 16 years, testified that in October, 1970 he was a
The term "supervisor" means any individual having authority, in the
interest of the employer, to hire, transfer, suspend, layoff; recall,
promote, discharge, assign , reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances , or effectively to
recommend such action, if in connection-with-the foregoing-the exercise
of such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment . [Emphasis supplied.]. -
Possession of any of these powers constitutes its possessor a supervisor.
NL.RB. v. Elhott-Williams Co., 345 F.2d 460, 463 (C.A. 7); N.--B: v.
City Yellow Cab Company, 344 F.2d 575, 580 (C.A. 6).
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"mechanic" or "maintenance" man working directly under
old yard Superintendent, Jones. His duties were, in his own
words, "A`machine breaks down ... whatever breaks down
you just fix it.is- the best I can describe it." According to
Claborn, he has never had any other employee under his
direction, except for rare occasions (once or twice a year)
when he needed help.
No, countervailing evidence having been adduced on this
subject, and there being no persuasive reason for discredit-
ing Claborn's testimony, upon the record presented I find
that it has not,been established, that Everett Claborn was a
supervisory employee of the Company within the meaning
of the Act. Accordingly, the Union's challenge, to his ballot
should be and is hereby overruled, and his ballot should be
opened and counted, but not in such a way as to indicate or
disclose how he voted.
(3) Evans
-John Evans, also (as all other challengees) called by the
Union, testified that in October, 1970 he operated a
pipethreading machine on the Company's night shift (3-11
p.m.), but that he additionally "check[ed] the other
operators ,at night to see if they are doing,all right, the
machines,"'checking not only the men .and their machines
but also "the product." According to Evans' testimony, if
the work of any of the`" other nightshift threading machine
operators was improper, Evans would have him "correct"
it. Since higher supervisory personnel Jones (yard superin-
tendent) and Bush (identified as "Personnel Manager" by
witness Mahan) leave then old yard between 5 and 6 p.m.,
Foreman McAlister -having left at 4:30 p.m., and the
"office"- is closed during' the night- shift, for practical
purposes Evans remains in charge. Indeed, Evans himself
testified that Foreman McAlister expressly authorized him
that "if something happened [on the night shift] that they
[i.e., the employees] weren't doing properly, to send them
home." Evans also takes Foreman McAlister's place when
McAlister is away for "any length of time." Evans
conceded that he is responsible for the general performance
of the men on the, job with him; that he is vested with
authority,to, excuse men desiring time off from work; and,
indeed, that if another nightshift threader makes a work
mistake it is Evans' who is called to account since "I [Evans]
have to look out for them."
Upon the record presented, I find that at the times here
material Evans was a supervisory employee within the
meaning of the Act. Accordingly, the challenge to his ballot
should be and is sustained, and the ballot should be
destroyed unopened.
(4) Gates
Billie Boy Gates, who has been in the Company's, employ
for-, about 15 years, describes himself as now a mere
"rigger" 51 (as well as slotting machine operator) who,
although not himself operating a crane, saw that the work
was "done properly." He testified that although he has
never had occasion to take disciplinary action against a
.crane operator and, could not himself directly remove an
unsatisfactory crane operator from a job, he (Gates) in such
a situation would go directly-to Superintendent Jones, who
is in charge- of the entire operation at the 'old yard, who
would rely on Gates' recommendation and order the crane
operator off.-Gates' testimony further indicates that-he has
effectively recommended the hiring and firing of employ-
ees, has assigned work to employees, and responsibly
directs employees.
Under subsequent questioning by Company counsel,
Gates endeavored to equivocate concerning some of the
foregoing testimony delivered by him when he was
questioned by counsel for.,the Petitioner (Union). Thies,
under questioning by Company counsel, Gates `became
vague about dates ("I am' not too good at remembering
months"), attempting to convey the impression that
although prior to the election he was a "leadman," shortly
before the election his status had in some way changed to
that of "more or less just a rigger," although "didn't ,nobody'
tell me that." He then claimed that during his 15 years with
the Company there, was never anything in writing as to his'
job title. Gates' attempts at testimonial equivocation- as
observed by me closely while he was on the witness stand
impressed me-adversely, leaving me with' a poor impression
as to his credibility in these respects.
It is apparent from credited portions of Gates' own
testimony that he possessed authority effectively to
recommend the hiring and disciplining of employees, and
that he effectively directed them. Under these circum-
stances, he satisfies the statutory definition of asupervisor,
and I therefore find him such. Accordingly, the challenge to
his ballot should be-and is sustained, and the ballot which
he cast in the election should be destroyed unopened.
(5) Mahan
Under examination by the Petitioner (Union) who called
him as a witness, Leo Mahan described himself as the
Company's "material checker," checking incoming and
outgoing pipe, rail, and piling, working directly under
Superintendent Jones and' Bush, the latter identified by
Mahan as the "Personnel Manager." According' to, his
testimony, he h4s working with him at times a crew of three
or four, ordering them what to do;-and he also makes trips
out of town to check piling for the Company. Mahan
further testified that he has warned and reported personnel
for lateness or absence, and that he"has removed an
employee from the job for insobriety or other reason.
Moreover, Mahan testified that he takes the place' of
supervisors-including Foreman 'McAlister, conceded
herein by the Employer to be a supervisor =during, their
absences, for several weeks at a time; and that on these
occasions he responsibly directs the employees. '
As in the ,case of Gates, when Mahan came under the
examination of Company counsel, he began to attempt-to
equivocate and to a degree to water down his previous
testimony; for example, by attempting to picture himself
such as a mere rigger, crane relief operator, or "Jack of all
trades" during the critical period including election -day.
These attempts at equivocation under my close observa-
tions of his testimonial demeanor, particularly in view of
the Company's totally unexplained failure to-present any
51 Asked what his job was in-October, 1970, his answer was "Long about
that time I was riggin." (Emphasis supplied.)
L. B. FOSTER COMPANY
supporting documentation or even testimonial corrobora-
tion from Company superiors or others, left me with a poor
impression of this aspect of this witness' testimony.
General Counsel witness William Claborn, who im-
pressed me as a person worthy of belief, testified credibly
during cross-examination in the "Complaint" case phase of
the trial that it was Mahan who hired him or told him to
return to work with Respondent when Claborn left` his
other employment in order to do so 3 or 4 years ago; and
that it was Mahan (as well as old yard Office Manager
Bush) _ who gave him and other employees their work
assignments-it is Mahan who "walk[s ] the yard with a
[walkie-talkie radio on [his] hips and tell[s] you what to
do"; and that it was ' Mahan who, upon receipt of teletyped
orders in the, yard office, wrote down or told the yard
employees "what he [Mahan] wants [the employees] to do
that morning, what, pipe to be loaded and what rack needs
pipe on it." Claborn insisted that it was "Mahan [who] give
me my orders out in the yard. There were nobody there
except him." I credit this testimony of Claborn.
Since it is apparent from credited portions of Mahan's
own testimony that he responsibly directs and recommends
discipline of employees, and further established by
Claborn's .-credited testimony that Mahan responsibly
directs employees, I find that Mahan satisfies the Act's
definition of a supervisor. Accordingly, the challenge to'his
ballot should be sustained, and that ballot should be
destroyed unopened. '
(6) McAlister
At the hearing before me, the status of Louis McAlister as
a supervisor _ was conceded by the Company upon the
record, and it was stipulated that petitioner's (Union's)
challenge to his ballot should be sustained. Accordingly, I
find that McAlister was a supervisor, and that the challenge
to the ballot which he cast- in the election should be
sustained and that ballot destroyed unopened.
(7) Quinn
335
Travis Quinn, who has been in the Company's employ for
about 4 years, identifies himself as the "Leadmanon Track
3," a railroad track in the Company warehouse. Quinn
testified that in this capacity "he has from three to seven
employees with him, generally directing -them what `to do
and what not to do; and that, since Quinn has the
"responsibility" to get "the job done," in the event of an
unsatisfactory, worker' Quinn would correct him or
recommend him for discharge and his recommendation
would be relied upon by management (i.e., Bush, the
"Personnel Manager"). Further according to Quinn's
testimony, he has also effectively recommended employees
for raises.
Crediting the foregoing testimony of Quinn, since he
satisfies the statutory definition of a supervisor I find him
to be such. Accordingly, petitioner's challenge to his ballot
should be sustained and the ballot destroyed unopened.
(8) West
The testimony of Jessie J. West establishes that his job
and function here under question consisted ' of being a
dayshift threading machine operator without assistants or
helpers. There is nothing in the -evidence adduced,
consisting solely of testimony by West himself (which I
credit), to indicate that West in any way satisfies the
statutory definition of-a supervisor.
Upon the record presented, I find that West's supervisory
status has not been established . Petitioner's challenge to his
ballot should accordingly be overruled, and his ballot
should be opened and counted, but not in such a way as to
compromise the anonymity of his vote.
Recapitulation Concerning Challenges to -Ballots
The following is a recapitulation of the end result of the
determinations here made concerning the challenged
ballots:
Name
Adolph R. Broz
Joel Allen Carlisle ("Joe Carlisle";
"Joe Carlisle")
Everett Claborn
William E., Claborn ("William Claborn")
John Evans
Billy Boy Gates ("Billy B . Gates")
James L. High ("James High")
Douglas O'Neal Knight ("Douglas Knight";
"D.C. Knight)
Leo Mahan
Louis McAlister
Travis Quinn
Kenneth R. Stuart ("Kenneth Stuart")
Jessie J. West
James E . Williams
Totals . . . . . . . . . . . . . . . . . . .
Outer f Challenge
Sustained -Overruled
x
x
x
x
X
X
X
7
X
X
X
X
X
X
7
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings and the entire record, I state
the following:
CONCLUSIONS OF LAW
1. At_ all material times, .L B. Foster Company,
Respondent herein, has been and is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
,of the Act.
2. At all material times, Shopmen's, Local Union No.
694 of the International Association of Bridge, Structural
and Ornamental Iron Workers, AFL-CIO, Charging Party
herein, has been' and is a labor organization within the
meaning of Section 2(5) of the Act. ,
3. ' Jurisdiction is properly asserted in this proceeding.
4. On August 14, 1970, Respondent through its
Supervisor Donald Bush interrogated its employee William
E. Claborn concerning its employees"union and protected
concerted organizational actiRities, , thereby interfering
with, restraining, and coercing its employees in the exercise
of rights guaranteed to them by Section 7, constituting an
unfair labor practice in violation of Section 8(a)(1) of the
Act.
5. On August 18, 1970, Respondent terminated 'the
employment of, and has since failed, to reinstate to their
former or substantially equivalent positions, its employees
Kenneth R. Stuart, James E. Williams, James, L. High,
William E. Claborn, and Douglas O'Neal Knight, because
they joined or assisted the, Union .and engaged in lawful
concerted activities for the purpose of collective bargaining
or ' other;_ mutual aid or protection in exercise of rights
guaranteed to them by Section 7, thereby discriminating
against them in regard to the hire, tenure, and terms and
conditions of their employment and thereby discouraging
membership in a labor organization, and, further, thereby
interfering with, restraining,, and coercing, its ,employees,
constituting unfair labor practices in violation of Section
8(a)(3) and (1) of the Act. ,
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. It has not been established by substantial credible
evidence, that-Respondent's, termination of the employment
of Joel ("Joe")' Allen Carlisle, Bill Wright, and Charles
Qualls On August 18,1970, was for union or other protected
organizational activity or otherwise in violation of the Act.
THE REMEDY
With regard to remedying the unfair labor practices
comprising the violations of Section 8(a)(1) and (3) which
have been found, I shall recommend the usual cease-and-
desist order and affirmative relief customarily ordered in
cases of this nature, involving interference, restraint, and
52 Cf. N.L.RB. v. Entwistle Mfg Co., 120 F.2d 532, 536 (C.A.4).
ss In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
coercion, and discriminatory discharges and failures to
reinstate. ,The recommended Order will, accordingly,
require Respondent to cease and desist from the unfair
labor, practices found; ,and to offer the discriminatorily
discharged employees immediate and full reinstatement ,to
their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and to make them whole for any loss of earnings they may
have suffered in consequence of their unlawful termination
on August 18, 1970, by payment to them of a sum of money
equal to that which they normally would have earned as
wages from August 18, 1970, to the date of Respondent's
offer to reinstate them to their former or substantially
equivalent positions, less their'net.earnings if any during
such period, backpay and interest to be computed in the
manner prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing& Heating Co.,`
138 NLRB 716. Respondent shall also be requiredto make
available necessary records for computation of backpay.
In view of the fact that Respondent's discharges. under
the circumstances-described are unfair labor practices of'a
character striking at the fundamental roots of the rights
guaranteed to employees by the , Act,52 L shall also
recommend inclusion in the. Order of a requirement that
Respondent cease and desistfrom infringing in any manner
upon the rights of employees under Section 7 of the Act.
The Order shall also provide for the usual notice posting
and for appropriate notification- to any affected employee
who may be in the Armed Forces of the United States._
My recommendations concerning disposition of the
challenged ballots in the Board-conducted election of
October 16, 1970, are set forth in "The Representation
Case," supra.
Upon the, basis , of the foregoing findings of fact,
conclusions of law, and the entire record in'this consolidat-
ed proceeding, and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended 53
ORDER
It is hereby ordered that L. B. Foster Company, its
officers, agents, successors , and assigns, shall:
1. Cease and desist from:
a. Interrogating any employee concerning his or other
employees' union or other lawful organizational member-
ship, affiliation, activity, sympathy, or desire' , 'so as to
interfere with, restrain, or coerce him or them in the
exercise or pursuit of the right of self-organization , the right
to bargain collectively, or any other right secured by the
National Labor Relations Act, a amended.
b. Discouraging membership in or lawful activity on
behalf of Shopmen's Local Union No. 694 of the
International Association of Bridge, Structural and Orna-
Section 102.48 of the Rules and Regulations , be adopted by the Board and
become its findings , conclusions , and Order, and all objections thereto
shall be deemed waived for all purposes.
L. B. FOSTER COMPANY 337
mental Iron Workers, AFL-CIO, or any other labor
organization, by discharging, terminating, laying off, or
suspending, or by failing or refusing to reinstate to his
former or substantially equivalent job, any employee
because he joined or assisted a labor organization or
engaged in concerted activity for the purpose of collective
bargaining or other mutual aid or protection.
c. In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization; to form, join, or assist any labor organiza-
tion; to bargain collectively through representatives of their
own choosing; to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or
protection; or to refrain from any and all such activities.
2. Take the following affirmative actions which are
necessary to effectuate the policies of the Act:
a. Post at its old yard (Homestead Road) and at its new
yard (Langfield Road) in Houston,, Texas, copies of the
notice attached hereto marked "Appendix B." 54 Copies of
said notice, on forms provided by the Board's Regional
Director for Region 23, shall, after being signed by
Respondent's authorized representative, be posted in each
of said yards by Respondent immediately upon receipt
thereof and , maintained by it for 60 consecutive days
thereafter-, in conspicuous places, including all places in
each of said yards where notices to employees are
customarily posted. Reasonable steps shall be taken, to
insure that said notices are not altered, defaced, or covered
by any other material
b. Offer to Kenneth R. Stuart, James E. Williams,
James L. High, William E. Claborn, and Douglas O'Neal
Knight immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges; and make each
of them whole, for any loss, of pay suffered in consequence
of the discrimination against him, in the manner set forth in
the "Remedy", supra. In the event that any of said
employees is presently serving in the Armed Forces of the
United States, immediately notify him of his right to full
reinstatement, upon application after discharge from the
54 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the Notice reading
"POSTED BY ORDER OF THE 1ATIONAL LABOR RELATIONS
BOARD" shall be changed to read "POSTED PURSUANT TO A
JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELA-
Armed Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
c. Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all ' other records
necessary to determine the amounts of backpay due and the
extent of compliance with the terms-of this-Order.
d. Notify the Regional Director for Region 23, in
writing, within 20 days from receipt of this Decision, what
steps have been taken to comply herewith.55 -
IT IS HEREBY FURTHER ORDERED, that the complaint
herein, dated November 6, 1970, be and the same is hereby
dismissed insofar as it pertains to Joel ("Joe") Allen
Carlisle, Bill Wright, and Charles Qualls. ,
IT IS RECOMMENDED that with relation to Case
23-RC-3493, consolidated for trial with the foregoing Case
23-CA-3734, th National Labor Relations Board issue an
order:
A. Sustaining the challenges to the ballots cast by the
following -persons in the October 16, 1970, representation
election, and directing that said ballots be destroyed
unopened: Adolph R. Broz, Joel Allen Carlisle ("Joel
Carlisle'; "Joe Carlisle"), John Evans, Billy Boy Gates
(Billy B. Gates"), Leo Mahan, Louis McAlister, and
Travis Quinn.
B. Overruling the challenges to the ballots cast by, the
following persons in the-October 16, 1970, representation
election, and directing that said ballots be opened and
counted, in such a manner as not to compromise the
secrecy of the ballot cast by each said person: Everett
Claborn, William'E. Claborn ("William Claboru'), James
L. 'High ("James High"), Douglas O'Neal Knight
("Douglas Knight"; "D. O. Knight"), Kenneth R. Stuart
("Kenneth Stuart"), Jessie J. West, and James E. Williams.
C. Certifying or directing the certification-of the result
of the balloting in said October 16, 1970, representation
election, upon the basis of a tally consisting of the valid
ballots cast and already counted, together with the-ballots
as to which challenges have-hereby been overruled as
specified in paragraph B hereof.
TIONS BOARD.'
55 In the event that this recommended Order is adopted by the Board
after, exceptions have been filed , this provision shall be modified to read:
"Notify the Regional Director for Region 23, in writing, within 20 days
from the date of this Order, what steps have been taken to comply
herewith."