Glar-Ban Corp.Download PDFNational Labor Relations Board - Board DecisionsSep 6, 1968172 N.L.R.B. 1861 (N.L.R.B. 1968) Copy Citation GLAR-BAN CORPORATION Glar-Ban Corporation and District Lodge 76, Local #1053, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 3-CA-13370 September 6, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On June 4, 1968, Trial Examiner David S. David- son issued his Decision in the above-entitled proceeding finding that the Respondent had_ en- gaged in and was engaging in certain unfair labor practices in violation of the National Labor Rela- tions Act, as amended, and recommending that it cease and desist therefrom and take certain affir- mative action, as set forth in the attached Trial Ex- aminer's Decision. He further found that Respon- dent had not engaged in certain other unfair labor practices alleged in the complaint and recom- mended that the allegations pertaining thereto be dismissed. Thereafter the General Counsel filed ex- ceptions to certain portions of the Decision of the Trial Examiner and a supporting brief. The Respon- dent filed cross-exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case 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 entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that Respondent, Glar-Ban Corporation, Buffalo, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. i Exceptions have been taken to some of the credibility findings of the Trial Examiner which were based to a large extent on demeanor of wit- nesses It is the Board's policy, however, not to overrule a Trial Examiner's 172 NLRB No. 222 1861 resolutions with respect to credibility unless , as is not the case here, the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Trial Examiner: Pursuant to charges filed on November 20, 1967, and amended on January 24, 1968, by District Lodge 76, Local # 1053, International Association of Machinists and Aerospace Workers, AFL-CIO, hereinafter referred to as the Union, a complaint issued Janua- ry 29, 1967, alleging that Respondent violated Sec- tion 8(a)(I) of the Act by interrogating employees, offering or promising benefits, threatening reprisals, and encouraging employees to form their own com- mittee to negotiate with Respondent. The com- plaint also alleges that Respondent violated Section 8(a)(3) and (1) of the Act by laying off or discharging Sylvester English, Dominic Tripoli, and John Hoffman on November 17, 1967, and that Respondent violated Section 8(a)(5) and (1) of the Act by refusing since November 7, 1967, to bargain with the Union as the representative of its produc- tion and maintenance employees. In its answer Respondent denies the commission of any unfair labor practices. A hearing was held before me in Buffalo, New York, on March 11 and 12, 1968. At the close of the hearing oral argument was waived and the parties were given leave to file briefs which have been received from the Respondent. Upon the entire record in this case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent, a New York corporation, maintains its principal office and place of business at Cheek- towaga, New York, where it is engaged in the manufacture, sale, and distribution of aircraft lighting and instrumentation systems and related products. During the year preceding issuance of the complaint, in the course of its operations Respon- dent manufactured, sold, and distributed products valued in excess of $200,000, of which products valued in excess of $100,000 were shipped from said plant directly to points located outside the State of New York. I find that Respondent is an employer engaged in commerce within the meaning of the Act and that assertion of jurisdiction herein is warranted. II. THE LABOR ORGANIZATIQN INVOLVED District Lodge 76, Local #1053, International Association of Machinists and Aerospace Workers, 1862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AFL-CIO, is a labor orgainzation within the mean- ing of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Violations of Section 8(a)(1) 1. The facts Some time before November 6, 1967, Sylvester English, an employee of Respondent at its Kennedy Road plant, the only plant here involved, contacted Union Representative Nelson Duerr and told him that the employees in the plant wanted to be or- ganized. Duerr explained that they would have to obtain signatures on authorization cards from more than 50 percent of the employees and that thereafter Duerr would call a meeting of the em- ployees. Duerr volunteered to deliver blank cards to English's home which he did. On Monday, November 6, English took the cards to work with him, and several employees signed cards that morn- ing. On that day in the late afternoon, John R. Burke, Jr., Respondent's general manager, called the em- ployees in the shop together and spoke to them.' Burke explained that Respondent had suffered some losses and had run up a deficit of $18,000 since the beginning of the current fiscal year in May. He told the employees that they would have to try to improve the Company's position. Burke described several improvements in fringe benefits but said that with two exceptions, they would not become effective until the Company started to show a profit and the board of directors approved them. These benefits were an income protection plan and group life insurance , and improved vaca- tion plan , paid death leave, and time and a half for time worked in excess of 8 hours in I day. All of these represented additions to existing benefits.2 Burke told the employees that there would be a projected trim in some areas where they were heavy with personnel but did not state any more specifically what he had in mind.3 He also told the employees that the rejection rate of Respondent's products by its customers had shown some im- provement but was still too high, that overtime work had been excessive, and that both were con- tributing to Respondent's deficit and would have to be eliminated or cut down as much as possible. Burke told the employees that if the Company con- tinued to operate at a deficit, the projected benefits would not become effective. After he finished speaking, a few questions were asked by employees about holidays and a Christmas bonus. As to the latter, Burke answered that he did not know whether there would be a Christmas bonus, although there had been one in the past.4 The Union was not mentioned by Burke at this meeting, and, according to Burke, he was not aware of the employees' organizational activities at the time of the meeting. During the week following this meeting em- ployees continued to sign authorization cards for the Union and by the end of the following Monday, November 13, as set forth more fully below, 14 of the 20 employees then on the payroll had signed cards. English collected all the signed cards and mailed them back to Union Representative Duerr with a letter which Duerr received on or about November 15, requesting a Friday night meeting of the em- ployees. After a telephone conversation with En- glish on November 15, Duerr set a meeting date for Friday, November 24. On the morning of November 15, Production Manager William McArthur approached employees John Wilson and Dominic Tripoli, who with English had been instrumental in contacting the Union, and told them that he wanted them and another em- ployee, Connie Nelson, who was also an early sup- porter of the Union, to come to Burke's office." As Nelson was not at work that day and McArthur had indicated that they wanted to talk with representa- tive employees, Wilson suggested that English be called to the office in her place. McArthur agreed, and the three employees went to the office where they met Burke and McArthur for the remainder of the morning and again for a while after a lunchbreak.s Burke became general manager on July 17 , 1967, and had spoken to the assembled employees once before , shortly after assuming that position The two benefits to take effect immediately were paid leave for death in an employee 's immediate family and payment of time and a half for time worked in excess of 8 hours in any I day As to the first , Burke explained that he had only recently been confronted for the first time with the need for death leave He had granted leave on that occasion and sought to make the policy uniform and bring it in line with other corporate policies As to the second he explained that he wished to bring Respondent 's policies in line with policies of other employers in the area Burke stated that he had in mind that Respondent could do without from three to six employees in several areas of the plant The evidence as to what Burke said at this meeting was not in substan- tial conflict , although witnesses differed in the extent to which they re- called Burke's remarks and were generally not in agreement as to the exact date of the meeting I have generally credited Burke whose recollection seemed most certain and complete and who was corroborated in most details by at least one other witness as to the content of his remarks and the date of this meeting Although two employees testified that Burke said they would get wage increases if the Company showed a profit, other employees did not mention wage increases among the benefits discussed at this time, and Burke and Tripoli both testified that wage increases were not discussed at this meeting I credit them in this regard ' Burke and McArthur testified that this meeting occurred on November 15 English, although less certain, placed it on the same date Tripoli testified that it occured on November 13, and Wilson placed it on November 13 or 14 I have credited Burke, McArthur , and English in this regard According to Burke, he had asked McArthur to bring a cross-section of the employees to his office from various groups in the plant to talk with them about employee gripes concerning wages and fringe benefits Accord- ing to Burke, there had been a lot of griping about these matters to him and McArthur and they wanted to know from the employees what their gripes and grievances were GLAR-BAN CORPORATION 1863 At the outset one of the employees asked why they were there, Burke replied that they were called in because work was not up to what it should be and was slow, there were a lot of employees griping , and he wanted to know their views as to how they could improve output and morale.' He mentioned that the Company had sustained a loss that year of $18,000 up to that point and that they would have to increase their efforts to improve the Company's status. The employees indicated that they were primarily dissatisfied over wages which they wanted in- creased immediately. Tripoli stated that his gripe was that he had been promised a raise 2 months earlier , but still had not received it. Burke stated that he could actually get along with five or six less employees at that time and that he could not con- ceive of how he could give a wage increase then. One of the employees asked how many Burke was planning to do without and who would be affected. Burke replied that he did not know. One of the em- ployees suggested that in view of the amount of work John Hoffman performed, Burke could lay Hoffman off and split his wages among the three employees present. Burke replied that this was not the way to get wage increases and that any prospect of wage increases would depend on improvement in Respondent's finances and profitability. He stated that Respondent could not afford a wage increase at that time which would only add to Respondent's costs and deficit. The employees did not take issue with Burke's statement that Respondent could stand a reduction in force and agreed that it could obtain the same production with several less em- ployees. McArthur asked English his opinion about em- ployee gripes. English replied that he had a gripe about another employee who was making more money than English despite the fact that English was teaching and showing him the job. Burke told English that the other man was hired for his background and education and was likely in the fu- ture to design products for the Company. Burke also told English that he was producing substan- tially less than the newer man, was not carrying his load, and had been reprimanded. English agreed that the amount of work described by Burke was what he was turning out, but said that the reason for his lower production was perhaps that he was doing his work properly and that his foreman said that most of the new man's work was wrong. After Burke and English argued for a while over English's work, McArthur broke in to say that the matter of English's work had been straightened out. During the course of the morning session, Wilson asked Burke to come to the point, stop throwing him curves, and tell him the real reason for the meeting. Burke replied that the real reasons for the meeting were those he had already explained. At the usual lunchtime the meeting recessed, and the same persons returned after the lunchbreak to continue the discussion along the same lines as in the morning.' The afternoon meeting lasted for about an hour. During the afternoon English mentioned that Burke was beating around the bush and reiterated Wilson's earlier remark about throwing them curves. English asked whether the reason they were there was not the Union. Burke replied by asking, "What Union?" This was the first mention of a union by the employees, and according to Burke, it was the first time he was aware of any union activi- ty.' Burke said that Respondent could not afford a union and did not want one.10 During the meetings with the three employees Burke did not suggest that employees form a com- mittee to negotiate with Respondent or that they form an independent union. No threats of reprisal were made to the employees based on their union activities. Burke did not offer or promise the em- ployees a wage increase or any other benefits, apart from those mentioned to the employees on November 6.11 After the employees left Burke's office, Burke and McArthur discussed briefly what had been said during the meetings with the three employees. They discussed the mention of a union by the employees and also what kind of a reaction they expected the people to have with respect to some of the proposals they had made on November 6. They de- cided that they wanted to explain further some of the programs they had been talking about between ' As is to be expected in testimony as to a meeting of this length , not all witnesses recalled and recounted the same details , and there are some vari- ances, mostly minor, as to some of the things that were said Unless other- wise indicated , my findings as to this meeting are based on a composite of the testimony of Burke, Wilson, English , and Tripoli McArthur who was present was not asked to testify in any detail as to this meeting ' According to Tripoli, who placed the meeting on November 13, during the lunchbreak between the morning and afternoon sessions , a foreman, Ronald Krzyzan , approached him and said that Burke knew they were try- ing to start a union and had known it for a month Krzyzan denied that he discussed union matters with Tripoli , but conceded that he became aware of the union organizational campaign at the plant through rumors during the week of November 13, when he overheard others talking about it He testified that he spoke to no one about them He then testified that Wilson had told him that they were thinking of starting a union He stated that he asked Wilson no questions and was not interested in it Although mere in- accuracy as to dates does not necessarily indicate an otherwise inaccurate recollection or lack of veracity Tripoli 's testimony as to the sequence of events which followed is also at variance in some respects with that of other witnesses , and I have concluded that he is not to be credited as to this con- versation in the face of Krzyzan's denial +t Wilson testified that this exchange occurred during the morning ses- sion Burke placed it during the afternoon and testified that during the morning he had not grasped the import of W ilson's remarks about throwing him curves According to Tripoli , the Union was not mentioned at all dur- ing the meetings McArthur's testimony as to the conversation between himself and Burke immediately after the afternoon session , set forth below, and the other events which followed this session tend to corroborate Burke whom I credit in this regard 10 Wilson and English so testified without contradiction 11 Although these benefits were discussed during the meetings with the three employees , the content of that discussion is not indicated in the record 1864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD themselves and felt that Wilson could communicate to some of the employees the things they wanted explained , assuming that he would talk to the other employees about what they told him. Accordingly, McArthur went out into the plant and called Wil- son back into Burke's office.12 During this meeting , Burke and McArthur told Wilson that they would attempt to give the em- ployees a wage increase and had been working on a plan to fit the employees in the plant into nine clas- sifications and to devise a scale of wages with progressions based on length of service.13 McArthur told Wilson that they had been working on the plan for some time because many employees had griped to him and Burke about wages.14 They referred to a handwritten document lying on Burke's desk but did not show it to Wilson." Wilson asked for something concrete and said that he would talk it over with English and Tripoli to see whether they wanted to go along with it. Burke and McArthur told Wilson what increases most of the employees would receive under the plan, but added that the increases were contingent upon Respondent's showing a profit and approval of its board of directors. Wilson told Burke that he believed the increases were equitable and would be acceptable to a majority if they were implemented. He asked Burke if he could tell the other employees about the increases and was told that he could take time to do so." As he left Burke's office, Wilson said he believed that the plan was all right and that he could get the Union off his back. Burke said he appreciated that very much.'? After Wilson left Burke's office, he went to En- glish and told him about the wage increases of which he had just learned. English expressed dis- pleasure with the increases and expressed doubt as to why Burke would have told Wilson about it. What happened next is the subject of conflicting testimony. According to Wilson, he told English that if English did not believe him, English should go to Burke's office and ask Burke. Wilson testified "These findings are based on the testimony of McArthur Burke testified on cross-examination that he did not know how it came about that Wilson returned to his office with McArthur and that he did not recall that it was at his request I have concluded that McArthur was more candid than Burke in recounting what happened after the end of the meeting with the three employees This testimony of Burke as well as additional testimony set forth below persuades me that whatever candor Burke may have dis- played in describing events up to this point, he was not candid in his testimony with respect to later events 13 Unless otherwise indicated my findings as to this meeting are based on a composite of the testimony of Wilson, Burke, and McArthur " The principal complaint identified on the record was that older em- ployees complained because new employees were hired at the same or higher rates of pay than those of experienced employees "The document, which contained a schedule of classifications and rate progressions, showed how each employee would fit in the schedule and its effect on his present wages. McArthur testified it was prepared on November 7, after some earlier discussion about wage inequities Accord- ing to McArthur, he worked on the document for about a week before finishing it IS Burke testified that he did not tell Wilson that he could make an offer for Respondent but agreed that Wilson could explain to the employees that English then went to Burke's office where Wil- son did not hear what was said because Wilson did not go with him. According to English, Wilson left him temporari- ly, returned after a brief absence, and said that Burke wanted to see him in his office. English testified that he went to Burke's office with Wilson and a conversation ensued between English and Burke with Wilson present. English's version of the conversation was as follows: Burke asked English if Wilson had told him what Burke had said. English told Burke what Wilson had told him about the in- creases, and Burke confirmed it. English laughed and said he did not think it was fair. Burke said that it was and that he had just shown Wilson the figures. Burke then said, "I know all about it. En- glish, I know all about it." English asked about what, and Burke said a union. English asked Burke how he knew, and Burke replied from hearsay around the shop. English said that the proposed in- crease was good for him but that since Burke knew about the Union, how did Burke think the others who had signed cards would feel about it. English asked if it was all right for them to tell the other employees. Burke said it was, and English asked if it was all right for him to give Burke a report the next day. English specifically denied that Burke said anything about approval of the board of directors as a condition of the increase. According to English during this conversation after he described the raises, Burke said, "I'd like to get this damn union off my back" and also, "If the Union comes in here, I'll lose my job plus the plant would be closed down." Burke denied that the conversation occurred at alI and also specifically denied that he ever told any employee that the plant would be closed. The credibility issue raised by the conflicting ver- sions has two aspects. One is veracity and the other is accuracy of recollection. As to the first, while Wilson and English were in disagreement as to Wil- son's presence in Burke's office with English, Wil- what was under consideration as a projection " Burke testified that he could not recall whether or not Wilson men- tioned the Union at this time When shown an affidavit. he had previously given, Burke testified that his affidavit referred to the end of the earlier meeting at which time he testified that "the statement was made, if those things were to go into effect, we would not be bothered by a union" refer- ring "to the wage projection and fringe benefits , improvement and so forth " Although Burke in further explanation testified that there had been general discussion of a wage increase before that at the earlier meeting, the evidence, including testimony of McArthur, predominates that up to that point Burke's comments about wages had been negative and not affirma- tive Moreover, in clarifying this testimony Burke also explained "The statement was that is , if we were to implement the new wage system, adjust the pay scales and fringe benefits and income protection and so forth, that they would, collectively, the three of them would not bother us with union " Although Burke continued to assert that this statement was made at the end of the meeting with the three employees , all witnesses , including Burke, agree that no new wage system had been mentioned up to that point I am satisfied that the statement described by Burke is the same as the statement described by Wilson as having been made at the end of his later private meeting with Burke and McArthur GLAR-BAN CORPORATION son's testimony supports English's testimony that English went to Burke's office. Although there is reason to believe that Wilson's relations with Tripoli and English became strained shortly after these events, and Wilson was employed by Respon- dent at the time of the hearing, Wilson impressed me as both truthful and accurate in his recollection, particularly of this event. Accordingly, I credit Wil- son that he did not return to Burke's office with En- glish , but based on his testimony and that of En- glish , as well as my conclusion that Burke was not candid with respect to events following the meeting with the three employees,"' I find that English spoke to Burke in his office shortly after Wilson was given information about the wage increases.19 As for the content of English's conversation with Burke, although I find Burke's denials entitled to lit- tle weight, the question remains whether English's version should be credited. English's testimony that Wilson was present, as well as comparison of his testimony concerning the November 6 meeting to that of other employees, makes it clear that English was not always an accurate reporter of what he ob- served and heard. However, in the face of Burke's denial that he told any employee that the plant would be closed, there is support for English's con- trary testimony in the testimony of employees Lan- dowski and Keller that English told them shortly after leaving Burke's office while polling their senti- ments that if the Union came in the plant would be closed. The value of their testimony, which I credit, establishing statements consistent with English's testimony as support for his testimony, of course, depends on English 's accuracy in repeating what Burke had told him and the likelihood that English in repeating it did not invent or embroider upon what Burke had told him. As for the latter, it is clear that English was suprised by Wilson's report that Burke had told him about possible wage in- creases so soon after Burke had indicated that in- creases were not possible and was sufficiently dubi- ous to determine the truth of Wilson's report directly from Burke. Although English stood to benefit personally if and when the increases became effective, I find it doubtful that English, who was instrumental in the organizing campaign, would have invented a threat for attribution to Burke on short notice in the excitement of the time 's See fns 12 and 15, above Also supportive of this finding is the fact that English 's testimony is un- contradicted that on the next day he sought to report back to Burke and spoke to McArthur about the employees ' reaction to the wage increases, consistent with his testimony that he had told Burke he would "According to English , a supervisor , Helen Johns , was present in the area and probably heard what they said He also testified that Burke and McArthur were standing in the lunch area looking into the shop while they spoke to the employees Tripoli testified that from his work station he could see the gathered employees with two supervisors in the group He testified that he saw McArthur come in the lunch area and watch the grouped employees. Burke denied that he observed the employee gatherings and McArthur was not asked about them Wilson testified that he did not observe Burke , McArthur, or any other supervisor in the area at 1865 in order to induce acceptance of Burke's proposal by the other employees without Burke having con- veyed to him the essence of the threat in their con- versation. As for English's accuracy, lacking any elucidation from Burke as to what he might have said of a nonthreatening nature which might have been misunderstood by English as a threat to close the plant, I credit English's version of his conversa- tion with Burke. After English left Burke's office, Wilson spoke to other employees in two groups relaying to them the information about wage increases that Burke had given him. No supervisors participated in the group discussions.20 However, before speaking to the em- ployees, Wilson spoke to at least one of the super- visors of the employees involved and told her that he was going to talk to them about a proposal he had gotten from the office. English spoke to one employee individually about Burke's offer, and then joined Wilson in telling the employees what Burke had offered. Wilson told the employees that if they would forget about the Union they would get raises depending upon how long they had been there. On the following day, English went to Burke's of- fice. As Burke was not there, English spoke to McArthur and told him that the employees had said they would rather have a union represent them and would not go along with Burke's proposal.21 2. Concluding findings The complaint alleges that Respondent promised or offered certain improved benefits to employees on November 6 and 15, 1967, if they refrained from becoming or remaining members of the Union or giving assistance or support to the Union or in order to induce them to do so.22 With respect to November 6, the General Coun- sel relies on the speech made by Burke to the as- sembled employees. The General Counsel concedes that no express mention of the Union was made by Burke at this time but contends that in the context of the union activities which had just commenced at the plant and other surrounding circumstances, the unlawful purpose alleged in the complaint is to be inferred. Respondent contends, to the contrary, that no purpose beyond that to which Burke the time I do not credit Tripoli's testimony that the supervisors joined the grouped employees Whether or not Burke , McArthur , or the other super- visors were in a position to observe the groups , I find the evidence insuffi- cient to establish that they heard what was said or participated in any discussion However, it is clear that Burke , McArthur, and at least one of the supervisors were aware that Wilson and English were going to discuss the increases with the other employees L1 English so testified without contradiction ix The complaint also alleges that Respondent violated Sec 8 ( a)(1) by the conduct of David Holmes in interrogating employees concerning their union activities on or about November 16, 1967 No evidence was in- troduced to support this allegation , and I will accordingly recommend that it be dismissed 354-126 O-LT - 73 - pt. 2 - 46 1866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified may be inferred because there is no evidence that Respondent's management became aware of the union activities at the plant until November 15. There is evidence to support the General Coun- sel's contention. Although Burke denied awareness of employee union activities at the time and em- ployees conceded that they were trying to keep their union activities secret, the small size of the employee complement in the plant, the relatively large ratio of supervisors to employees, and the tim- ing of Burke's speech in relation to the beginning of the card signing campaign by the employees would supply a basis to infer that Burke's denial was not truthful.23 Moreover, the nature of Burke's remarks would tend to indicate that they were prompted by something other than normal considerations, for despite the fact that insurance and vacation benefits had not been formulated or approved Burke took this occasion to announce them at this time. Burke's testimony explaining his reasons for calling the meeting and announcing the benefits at this time is not persuasive in rebutting the inference the General Counsel seeks to have drawn, but to the contrary lends some support to it. Although Burke testified that he sought employee coopera- tion at this time in reducing overtime, rejection rate, and other costs, the evidence shows that over- time costs, which had been at their highest in July, August, and September, were lower in October than they had been for the previous 12 months. Burke also testified that the rejection rate had im- proved since he had taken over as manager. Burke did not explain why if his concern over costs was well founded he chose that moment to announce changes in employee benefits which would result in increased costs to Respondent. The November 6 meeting, of course, cannot be viewed in isolation from the entire chain of events and particularly those of November 15, also under attack in the complaint. Here again Burke denied awareness of the union activities at the time he asked to meet with a cross-section of the employees in the plant. Burke's explanation that he sought to meet with a cross-section of employees to answer employee gripes and his denial that he was aware of the union activities until they were mentioned dur- ing the meetings raise further doubts. It would seem that the gripes could have been dealt with more directly with the employees making them at the time they were made than with a cross-section of employees. The gripes apparently were not new but had continued for some time. The employees who were called in were three of the early card signers in the plant.24 However, if, as the General Counsel contends, the November 6 meeting and the meetings with Tripoli, English, and Wilson were motivated by a desire to interfere with union activities, it is difficult to understand why Burke and McArthur did not reveal the projected wage plan to all three em- ployees during their lengthy meetings occasioned by employee complaints about wages, but to the contrary stated at that time that wage increases were not possible and waited until later in the day to unveil the plan to Wilson. This sequence of events becomes more readily understandable if Burke's testimony as to when he became aware of the union activities is accepted. For then it appears consistent with McArthur's testimony that after Burke and McArthur became aware during the second session of their meeting with the three em- ployees that employee dissatisfaction was being manifested in union organizational efforts, they discussed their prior efforts to overcome employee dissatisfaction in the light of this additional knowledge which led them to decide to call Wilson back to Burke's office to unveil their previously un- disclosed plan for dealing with employee com- plaints about wages. I have concluded that the inference is stronger and more easily drawn that, during the second ses- sion of their meeting with the three employees on November 15, Burke and McArthur became aware of the union activities which motivated their sub- sequent actions that day than that they were aware of and motivated by the employee union activities in their earlier actions. Accordingly, I conclude that the allegations of the complaint based on the November 6 meeting with all employees in the plant and on the November 15 meeting with the three employees have not been sustained. The evidence leaves little doubt, however, that the disclosure of the projected wage increases to Wilson was motivated by the desire of Burke and McArthur to induce the employees to give up their organizational efforts. McArthur's testimony makes it clear that the information that the employees were seeking a union was discussed between him and Burke before they recalled Wilson and told him about the increases, and indeed it appears that this was the only significant new information they had learned as a result of the earlier meetings to explain the reason for the recall of Wilson. Whether or not they directly presented the wage plan to Wilson as an alternative to selecting the Union, it is clear from Wilson 's parting remarks to Burke that he un- derstood that to be the purpose for which the wage increases were proposed, and Burke's response to those remarks supported that understanding. The evidence is even more direct that when English went to Burke to verify what Wilson had told him about the increases , Burke raised the topic of the Union and threatened that the plant would close if the Union came in . Moreover, McArthur's Ventre Packing Co , Inc., 163 NLRB 540 24 Nelson, Tripoli, and Wilson English was suggested as a substitute for Nelson by Wilson and Tripoli GLAR-BAN CORPORATION 1867 testimony establishes that he and Burke intended that Wilson communicate word of the increases to the other employees and that their purpose in dis- closing the wage plan was not simply to influence Wilson but to induce all the employees to abandon their organizational efforts. Accordingly, I conclude that Respondent vio- lated Section 8(a)(1) of the Act by the conduct of Burke and McArthur on November 15, 1967, in in- forming Wilson and English of their plan for in- creasing wages which was tantamount to a promise of benefit design to induce the employees to aban- don self-organization . 25 I also conclude that Burke's threat to English that the plant would be closed if the Union came in further violated Section 8(a)(1) of the Act.26 B. The Alleged Violations of Section 8(a)(3) 1. The facts On November 17, at the end of the workday, McArthur called English, Tripoli, and John Hoff- man into his office. McArthur told them that all three did good work but he had to lay them off because Respondent was short of work.27 The three employees then went to Burke's office and obtained layoff slips.26 None of the laid-off employees was replaced. Tripoli's work was performed by his foreman who absorbed it along with his other duties. The work of English was absorbed by others in his department, and insofar as the record shows Hoffman's work was substantially unneeded at the time of his layoff. Hoffman was recalled to work on December 27. As of the time of the hearing, English and Tripoli had not been recalled.29 Burke testified that layoffs by Respondent were not rare and that during 1967, approximately seven employees were laid off. According to him, the number of employees in the-plan-t- varied with the workload. According to Burke, the reasons for the November 17 layoff were the deficit, a slowdown in receipt of raw materials being used for a contract with Cessna Aircraft, and the fact that they were starting to maintain schedules for that contract. According to McArthur, as early as mid-October, he and Burke discussed the possibility of laying off some employees because they did not have enough work in certain areas to keep everyone as busy as they should be. They discussed the areas where they could reduce employment without hurting productivity and the possibility of laying off some employees unless orders increased. McArthur testified that there was no formal policy with respect to selection of employees for layoff, and that Respondent considered any factor they felt relevant within the bounds of good judgment and ethics. Burke also testified that while they tried to adhere to a departmental type of seniority, there was no seniority system in the plant and it was not a primary factor in the decision to lay off. Burke testified that the company policy with respect to layoffs was to rely on any factor it felt relevant within its discretion. According to McArthur and Burke the decision to lay off the three employees was made during the week preceding the layoff. McArthur testified that there was preliminary discussion of the three em- ployees ultimately selected early in the week before the November 15 meetings in Burke's office and that the final decision was made after the meetings.30 Tripoli and Hoffman, two of the three employees selected for layoff, performed work directly related to a Cessna contract. Tripoli primarily silk screened and painted panels. Hoffman sheared and cut extru- sions relating to this contract. According to Burke, Respondent had a decreasing backlog of work on this contract and was experiencing difficulty in getting materials for this job. He testified that he and McArthur decided to lay off Tripoli because his foreman could assume Tripoli's duties along with his other work and they selected Hoffman 28 Assuming that the wage plan was a "projection " subject to approval by the board of directors and showing of a profit rather than a "proposal" as testified by Burke, it is clear from the testimony of Burke, McArthur, and Wilson that the plan was presented to Wilson as something that Burke would attempt to put into effect subject to satisfaction of the conditions Thus, Burke and McArthur intended to convey to the employees , contrary to their earlier discouraging remarks , that if the employees refrained from their union activities they would seek to implement the plan at the ap- propriate time This was a clear promise of additional benefits Copeland Oil Co , Inc , etc , 157 NLRB 126, 135- 136 See also Eagle-Picker Indus- tries, Inc , 171 NLRB No 44 English's testimony which I have credited of course makes the promise even clearer 28 In view of these conclusions, I find it unnecessary to decide whether, as the General Counsel contended at the hearing , Wilson and English became agents of Respondent so that Respondent was responsible for their state- ments to employees on November 15 The complaint also alleges that on November 15, Burke suggested to its employees that they form their own committee to negotiate with Respondent , encouraged them to do so, and/or encouraged them to bypass the Union as their collective -bargaining representative In view of my findings above and the fact that the Union had made no request to bargain at that time , I conclude that these allega- tions have not been sustained and will recommend their dismissal 2' English and Tripoli so testified without contradiction 28 Immediately after receiving their layoff slips, English and Tripoli went to Wilson and reminded him that they had an agreement that if one of them was laid off they would all request layoff At their urging , Wilson went with English and Trioloi to Burke's office and asked Burke to lay him off Burke refused to do so and told W ilson that if Wilson left he would be considered a quit Later that afternoon he telephoned Burke and told him he was under duress when he requested the layoff slip W ilson continued to work thereafter 29 English 's wife started to work for Respondent at the same time as En- glish and was working at the time of the hearing 30 As set forth above, Burke mentioned to the assembled employees on November 6 a projected trim in areas where they were heavy with person- nel without being more specific Again on November 15, in response to the request of English , Tripoli, and Wilson for wage increases , Burke stated that he could get along without five or six employees . At that time when asked how many and whom Burke was planning to let go, Burke said that he did not know 1868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because they were more or less on schedule with the materials on which Hoffman worked.31 English, the third employee laid off, was originally hired to work in the machine shop on the shear. Later at his request he was transferred to work in the special production department on a contract for internally lighted instruments and clocks for a contract with the R. C. Allen Aircraft Instrument Division. That contract started in Oc- tober 1966 and terminated in September 1967. En- glish also worked on clocks for another customer in the special production department. According to Burke, the backlog of orders for this customer had diminished at the time of the layoff and was dif- ficult to project from month to month. Apart from English, Connie Nelson and Terry Lukowski worked on the clocks in the special production de- partment along with the leadman, David Holmes, and a new technician, Dan Wisniewski, who was being trained in that area to give him some background. According to Burke, English was selected for layoff because his skills were below those of Nelson and Lukowski and he had previ- ously been reprimanded for his attitude and his work. Burke and McArthur both testified that they had experienced a great deal of poor work by English in the clock department, and that English's attitude had been poor in that he spent too much time walk- ing around the plant talking to other employees rather than working.32 According to Burke, English had been reprimanded several times about his poor production, and, as set forth above, this subject was raised at the November 15 meeting between Burke, McArthur, English, Tripoli, and Wilson, in connec- tion with discussion of the possibility of laying off some employees. According to Burke, in late October he had con- sidered discharging English but had been dissuaded by McArthur who believed that English could become a good employee with proper handling. McArthur spoke to English at that time. McArthur testified that he had received several complaints from English's leadman about the quali- ty of English's work and English's general attitude. On or about October 30, McArthur and Holmes, the leadman, decided to talk with English about these complaints and did so. In response to mention of his attitude, English told McArthur that he had been promised a raise by previous management which he had never received and stated that he felt this was why he did not care about his work. Ac- cording to McArthur, English admitted that his at- s' Hoffman testified that he knew of no material shortage However, ab- sent effort to obtain greater detail from Burke , Hoffman , or Respondent's records, I am not persuaded that his testimony raises any basic conflict as to the availability of work for Hoffman, particularly in the light of the discussion on November 16 between Burke, McArthur, English, Tripoli, and Wilson ' Burke conceded that on one occasion English had been complimented for a suggestion he had made to overcome a production problem, but titude was not what it should be. McArthur and Holmes agreed that, if English had been promised a raise which he did not receive, it would affect En- glish's attitude. McArthur told English he would give him a 10-cent hourly increase then and review it in January 1968, to determine whether he should be given an additional 10 cents at that time. Ac- cording to McArthur, in the time which followed until English was laid off, he observed English on the job and found no appreciable change in his at- titude or productivity, but had no further discus- sions with English about it. English's rate of pay at the time he was hired was around $2 an hour. With the October 30 increase he was earning $2.40 an hour at the time of his layoff. At least part of his increase was due to an across-the-board increase given to all employees. Both Burke and McArthur testified that English's rate of pay was a factor in their decision to lay off English, in that they felt that they could get as much work out of others who earned less than En- glish. English was not offered the opportunity to work at a lower rate of pay or told that he had priced himself out of his job. McArthur testified also, however, that they did not offer English a chance to transfer to a lower paying job because he had no place to put any of the laid-off employees.33 During English's term of employment he had quit once in October 1966 without notice. When he returned shortly thereafter to ask for his job again, he was rehired. Burke was not manager at the time, but testified that he understood that English was rehired because he had some experience in the shearing operation and they needed help in that de- partment at the time of his return. 2. Concluding findings Although I am not persuaded that Burke was aware that employee discontent had ripened into self-organizational efforts until he learned this fact during the meetings with Wilson, English, and Tripoli on November 15, there is substantial basis to infer that at the time the decision to lay off was made after those meetings, Respondent was aware that English and Tripoli were among the active union adherents in the plant. Burke's statement to English on the afternoon of November 15 that he knew all about the Union from hearsay in the shop, Krzyzan's admission that he had heard about the Union from Wilson during the week of November 13, and the small size of the shop with its large ratio of supervisors to employees support the inference testified that his workmanship had nonetheless continued to be poor - 3 He testified that in October they had transferred English from the spe- cial department into the machine shop in mid -October for a short time because they had work to do in the machine shop and work was slow in the special production department McArthur did not know whether or not En- glish had been transferred before that as McArthur was not at the plant until September 1967 GLAR-BAN CORPORATION 1869 that once Burke learned that the employees were trying to organize, the details of their efforts were easily come by. That Wilson and Tripoli were al- ready viewed as leaders of employee opinion was indicated by their invitation to come to Burke's of- fice on November 15 and by solicitation of their views as to how employee morale might be im- proved. That English was a part of the leadership group in the plant also appeared from the fact that Wilson and Tripoli suggested English to replace the absent Nelson at the meetings . English's role fol- lowing the meeting , including his report to McArthur the following day, and an otherwise unexplained warning to Tripoli not to talk to Wil- son following the meetings34 support the inference that Burke and McArthur were aware that English and Tripoli were active union supporters at the time of the layoffs, despite Burke's denial.35 By showing a substantial basis to infer Respon- dent's knowledge of the union activities of English and Tripoli, Respondent's unfair labor practices on November 15, and the effectuation of the layoffs 2 days after November 15 and 1 day after English told McArthur that the employees still wanted a union , the General Counsel established prima facie that the decision to lay off was based on discrimina- tory reasons. The burden of going forward to rebut the General Counsel's proof thus shifted to Respon- dent.36 Much of Respondent's evidence stands uncon- tradicted on the record. There can be no doubt on this record that Respondent was operating at a deficit and was beset with production problems for which it was seeking to find solutions. At least some of these problems, however, the deficit, excessive overtime, and excessive rejection rate, had existed for some time and botk the excessive overtime and rejection rate had decreased. It appears that among the solutions Respondent was exploring was the possibility of a layoff. Indeed , on November 6, Burke projected trim in areas where Respondent was heavy with personnel without being more specific. On November 15, he told Wilson, Tripoli, and English , in response to their request for wage increases , that he could do with five or six less em- ployees, but it is significant that in response to their inquiry he stated that he did not know who would be affected and did not indicate that he was con- sidering Hoffman for layoff even when the em- ployees suggested it. There Is no evidence to suggest any intervening circumstance other than the union activities which might independently explain the conclusion of Respondent's deliberations and the timing of the decision after the November 15 meetings. The testimony of Burke as to the decrease in backlog and the material shortage is vague as to timing and detail and gives no indication that any of the factors to which he attributed the decision became more acute or clearly defined after November 15 than they had been for some weeks before. Of course evolution of a decision such as this need not be as- cribed to occurence of a specific triggering change, but where the record suggests the presence of an unlawful trigger the absence of any other new development must leave motivation in doubt. Respondent's defense is thus not without its weaknesses . However, it has its strengths as well. The laid-off employees were not replaced by others. There is nothing to indicate that there was sufficient work to keep Tripoli and Hoffman busy in their accustomed jobs or that there were other employees doing similar work who were more logi- cal candidates for selection for layoff. Likewise, there is nothing to indicate that the reduced work force in the special production department was unable to handle its workload. The possibility of layoffs had been mentioned by Burke twice, as I have found, before he became aware of the union activities. While the evidence indicates that the conditions on which the layoff was based had ex- isted for some time and that excessive overtime and rejection rates had decreased, insofar as the evidence shows the deficit had not, and the decrease in overtime and rejection rate could sup- port a finding that fewer employees were needed as well as that excessive production costs were reduced. On this state of the record I find the evidence in equipoise as to Respondent's motivation for its decision to lay off employees. While the General Counsel's evidence supports an inference of dis- criminatory motivation for the decision, Respon- dent's evidence equally supports an inference that Respondent for valid reasons was about to lay off some employees before it became aware of the union activities in the plant. Further evidence might well have tipped the balance either way. For exam- ple, the record discloses the amounts of overtime worked for a 13-month period ending in November 1967 but no evidence of overtime worked thereafter. A showing that overtime was. or was not substantial thereafter in the special products de- partment or on the part of the foreman performing Tripoli's duties would have had significant effect but was not adduced. More concrete evidence as to the material shortage and Respondent's backlog of orders might also have shed light on whether Respondent could have usefully employed the laid- off employees, but it was not offered. While it is 34 According to Tripoli , on November 16, he went to Wilson in connec- tion with his work , and Luczak, a foreman , approached him Luczak told him not to talk to Wilson Tripoli asked why and explained that he was talk- ing to him about work Luczak told him to go back to his area and not talk to Wilson Tripoli asked, "Why' Are you going to fire me " Luczak replied, "Maybe I will or maybe I won 't " Wilson advised Tripoli to leave and he left Luczak did not testify , and Tripoli 's testimony in this regard was unde- med " Ventre Packing Co , Inc , supra Hoffman had signed a union authoriza- tion card but there is no indication that he otherwise engaged in union ac- tivities 36 Heck's Inc., 156 NLRB 760, 762-763, enfd as modified 386 F 2d 317 (C A 4), LTV Electrosystems, Inc, 169 NLRB 532 See also Materials Transportation Company and Cement Trucking Company, 170 NLRB 997. 1870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD true that Respondent's witnesses could have been less vague as to details and could have supported their testimony with business records, they were available for cross-examination and production of significant business records could have been required by counsel for the General Counsel. I con- clude that on this state of the record the burden shifted back to the General Counsel to rebut Respondent's defense as to its motivation for the decision to lay off and that the General Counsel has not sustained that burden. The question still remains , however, whether Respondent was motivated by the employees' union activities in selecting any or all of the employes to be laid off. Considering English first, it was English who initiated the contract with the Union, brought the cards to the plant, solicited signatures , and col- lected the cards At the November 15 meetings between Burke, McArthur, English, Tripoli, and Wilson, it was English who directly questioned whether the meeting was brought about by the union activities. It was English who expressed skep- ticism over the willingness of the employees to ac- cept the wage plan in lieu of the Union, and it was English who reported back that the employees still wanted the Union after he and Wilson told them about the wage plan. Despite English's work record which Burke criticized on November 15, when Burke was asked who would be laid off, Burke an- swered that he did not know and gave no indication that English's job was in jeopardy. English per- formed work similar to that performed by other employees in the special production department. While the workload in his department may have decreased to the point at which it could be per- formed with one less employee, there were still full- time jobs left in the department to be performed after the layoff. Of the other two employees in the department, one, Connie Nelson, had been em- ployed substantially longer than English, and the other, Terry Lukowski, had been employed sub- stantially less.37 I conclude that a clear prima facie case has been made with respect to the selection of English. The reasons advanced by Respondent for select- ing English for layoff, his poor work record and his high wage rate, do not withstand close scrutiny. At the very time that McArthur testified that he and Burke began to consider a reduction in force, one of the contracts performed by the special produc- tion department had terminated, decreasing the available work for that department. Despite Respondent's dissatisfaction with English's work and its other problems, after Burke and McArthur had begun to consider a reduction in force even " Holmes, who was the leadman and stipulated to be a supervisor, was the oldest man in the department Wisniewski who was also identified as performing similar work was not considered to be a production employee and was performing this work as training for technical duties The evidence does not indicate how long he remained in a training status though Burke assertedly favored English's discharge, McArthur persuaded Burke that efforts should be made to salvage English, granted English an immediate increase, and promised him a further increase in January conditioned on improvement in his work. Certainly it would seem that at that time neither Burke nor McArthur contemplated laying off English. When McArthur drew up the wage plan, only a week after English was given an in- crease, he placed English in a separate classifica- tion occupied only by English and assigned him a rate which would have resulted in a further increase for him above the rate contingently promised to him to be effective in January. On November 15, when the topic of English's work was raised in discussion of employee complaints about wages, McArthur terminated the discussion with the re- mark that the problems with English's work had been straightened out. Later that day when the wage plan was unveiled, English was told that he would receive a 20-cent increase under the plan, and no indication was given him that he would not be around to receive the increase because of an im- minent layoff. Even at the time he was informed of the layoff, English, along with Tripoli and Hoffman, was assured that his work was good and not the cause of his layoff. In these circumstances, I am convinced that, but for English's role in the union activities and his re- port back to McArthur that the employees still wanted the Union, McArthur's efforts to salvage English as an employee would not have been abruptly terminated by his layoff, and Respondent would not have selected him rather than some other employee for layoff at that time. Some of the factors which support this conclu- sion as to English also apply to Tripoli. But there are also significant differences. Although Tripoli appears to have been among the group of em- ployees who instigated the union activities as in- dicated by his pact with Wilson and English, there is little evidence of overt union activity by Tripoli other than his signing of the card. Unlike English, Tripoli was the only employee in the plant who per- formed silk screening and spray painting work, and the evidence is unchallenged that after Tripoli was laid off, his foreman performed that work in a few hours each day along with his other duties. There is no evidence that the foreman worked excessive overtime or that any of his other duties were reshuffled after Tripoli's layoff in order to conceal a continuing need for Tripoli's services.311 Although the unexplained instruction to Tripoli not to talk to Wilson on the day before his layoff raises suspicion that Respondent was motivated by union hostility in 's Uncontradicted testimony by Tripoli that on the day of his layoff he was told by a supervisor that he would have to finish what he was working on or work overtime the following day is inconclusive There is no evidence to indicate whether or not Tripoli finished the work he was doing before his layoff at the end of the workday GLAR-BAN CORPORATION 1871 dealing with Tripoli, I have concluded that the evidence supporting an inference that Tripoli's selection for layoff was motivated by union activi- ties has been met by Respondent 's evidence in- dicating an economic basis for Tripoli's selection and that doubt must be resolved against a finding that the selection of Tripoli was unlawful. The evidence as to Hoffman in support of the complaint is the weakest. There is no evidence that he engaged in any union activities other than sig- ning a card , an activity shared by a majority of Respondent's employees. Not only is the evidence as to the lack of need for Hoffman's services at the time of the layoff substantially uncontradicted,but the view that his service could be dispensed with 2. The Union's majority As of November 7, 1967, there were 20 em- ployees in the appropriate unit . Except for the layoffs of English, Tripoli, and Hoffman at the end of the day on November 17, 1967, the composition of the unit remained unchanged through November 25, 1967. From November 6 through 13, 14 of the em- ployees in the bargaining unit , including English, Tripoli, and Hoffman signed union authorization cards. Of these, seven signed cards on November 6, five signed on November 7, and two signed on November 13. The cards, all identical in form, con- tained the following printed matter: YES, I WANT THE IAM I, the undersigned, an employee of (Company) hereby authorize the International Association of Machinists and Aerospace Workers (IAM) to act as my collective bargaining agent with the company for wages, hours and working conditions. It is my understanding that I will be invited to join the IAM. NAME (print) DATE ADDRESS (print) CITY DEPT SHIFT PHONE Classification SIGN HERE X NOTE: This authorization to be SIGNED and DATED in EMPLOYEE'S OWN HANDWRITING. YOUR RIGHT TO SIGN THIS CARD IS PROTECTED BY FEDERAL LAW. was advanced during the November 15 meeting in support of tthe employees' request for a wage in- crease . I conclude that the General Counsel has failed to establish that the selection of Hoffman was motivated by employees ' union activities. Accordingly, I conclude that the General Coun- sel has established by a preponderance of the evidence that English was laid off because of the employees' union activities but has failed to establish that the layoffs of Tripoli and Hoffman were unlawful. C. The Alleged Refusal To Bargain 1. The appropriate unit The parties agreed and I find as alleged in the complaint that the following employees of Respon- dent at its Kennedy Road plant constitute an ap- propriate unit for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees, excluding all office clerical employees , profes- sional employees , guards and supervisors as defined in the Act. Most of the signatures on the cards were ob- tained by English and Wilson. Both testified on cross-examination that in soliciting employees to sign cards, they mentioned to them that there would be an election. English, in attempting to ex- plain what he had said in this regard, showed con- siderable confusion in his own mind between an election and a meeting to be called by the Union after a majority had signed cards at which contract proposals would be voted upon. However, in at- tempting to clarify what he had said he testified that he had told employees they would have to vote for the Union if they wanted one and that he be- lieved Union Representative Duerr had told him that. English's readiness in initially conceding that he mentioned an election coupled with his obvious confusion in his subsequent testimony in this regard convinces me that English was not seeking to con- ceal something which he believed might be damag- ing to the Union's cause but that he was simply confused and uncertain as to what he said relating to an election in obtaining signatures on the cards. Wilson testified that he solicited only two signa- tures, but handed cards to other employees who came to him to ask for them. According to Wilson, 1872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he told the employees, " Here 's the card and decide whether you want a union or not. If you want a union sign the card. You're not being pressured into it, now, if there are enough of us that want a union, then there will be a meeting and there will be a vote taken on the-whether the Union is com- ing in ." Wilson testified further that he formed the impression that there would be a vote from infor- mation received from English. He testified that he told the employees basically what English had told him and did not know in any greater detail what or where the election would be. Although 10 witnesses, apart from English and Wilson, testified to identify the cards they had signed, none of them were asked what they were told at the time their signatures were solicited. I am satisfied that the 14 cards received in evidence constitute valid authorizations of the Union to represent the signers. This is not a case in which reluctant employees were induced to sign authorization cards on the basis of a representation that the card was designed only to secure an elec- tion in which they would have a chance to make an independent decision as to whether or not they desired a union, thus giving them a reasonable basis to believe that the cards would be used only for the purpose of securing a Board election and not to ob- tain union recognition . Here , as both English and Wilson testified without contradiction, a number of those who signed cards approached them and asked for cards. All the cards were obtained by employee volunteers. Union Representative Duerr had no role except to supply the cards to English who had initiated the contact between them. English's testimony leaves in substantial doubt just what he said to employees about an election but as Wilson testified that he told other employees what English had told him, and no other employees were asked about English's statements to them when he sol- icited signatures, I can only conclude that English's statements did not differ in their significance from the remarks which Wilson testified he made to other employees. Wilson told employees that there would be a vote taken on whether the Union would be coming in, without being more specific or know- ing specifically what kind of a vote he was referring to. But Wilson also told employees that they should sign a card if they wanted a union . He said nothing to indicate that signing of the card, contrary to what it indicated, would not have the effect of authorizing the Union to represent the signer. In these circumstances, I conclude that the signers of the cards intended their signatures to have the ef- fect indicated on the face of the cards. Accordingly, I conclude that at all times material after November 7, 1967, the Union represented a J° By the end of the day on November 7, 12 employees had signed cards, and 2 more signed cards on November 13 Even after English , Tripoli, and Hoffman were laid off , the Union had a majority of I I out of 17 employees majority of the employees in the unit found ap- propriate above.39 3. The Union's request for recognition On November 20, 1967, several days after receiving the signed cards sent him by English, Union Representative Duerr sent Burke a letter containing the following text: Please be advised that a majority of your Production and Maintenance employees have requested Local Lodge 1053, District 76, of the International Association of Machinists and Aerospace Workers, AFL-CIO, to represent them in matters pertaining to wages, hours and working conditions. An early conference is requested for the pur- pose of discussing formal recognition of the Union and the terms of a collective bargaining agreement. Look forward to a pleasant and mutually amicable relationship and with kindest regards, I am, Very truly yours, Nelson Duerr BUSINESS REPRESENTATIVE On the same day, Duerr filed the original charge in this case alleging that Respondent had violated Section 8(a)(1), (3), and (5) of the Act. The charge was served on Respondent on November 22. On November 24, 1967, Burke replied to Duerr as follows: Receipt of your letter of November 20, 1967 is acknowledged. This was the first communi- cation of any sort received from your organiza- tion . On the same day, your organization filed a charge against Glar-Ban Corporation alleging that the Corporation had refused to bargain collectively . Apparently there has been some error made in as much as no time to commu- nicate with you would be available under the circumstances. Since receipt of your letter , the Corporation has come to the opinion that your organization does not now and never did represent a majori- ty of the Corporation 's production and main- tenance employees . Under the circumstances, the Corporation could not legally give recogni- tion to your organization as the bargaining agent of its production and maintenance em- ployees. Insofar as appears, there has been no further communication between the Union and Respon- dent. remaining in the plant , and in view of my findings as to the selection of En- glish for layoff, the Union had a majority of 12 out of 18 employees for pur- poses of determining Respondent's bargaining obligation GLAR-BAN CORPORATION 4. Concluding findings Although it is clear that the Union represented a majority of Respondent's employees at all times material after November 7, the burden remains on the General Counsel to establish that Respondent's refusal to recognize the Union was not in good faith, but was motivated by a desire to gain time to undermine the Union or rejection of the collective- bargaining principle.40 As I have found, the first mention of the Union to Burke and McArthur came during the second ses- sion of their meeting with English, Tripoli, and Wil- son. After that meeting, they discussed between themselves the meeting that had just ended, includ- ing the information they had just received about the Union. In lengthy meetings which had just ended they had not seen fit to mention the proposed plan for wage increases which was under consideration but had discouraged any expectation of wage in- creases which were a principal cause of employee complaints. Nonetheless, after conferring they re- called Wilson and presented to him the wage plan with the expectation that he would communicate it to other employees. They gave Wilson permission to speak to other employees about it on working time, and Wilson left assuring them that he thought it would get the Union off their backs. Whether or not they left it to Wilson to infer that their purpose in presenting the plan to him was to persuade the employees to abandon the Union, the conclusion is inescapable that this was their purpose. Force was added to their efforts by the more explicit conver- sation that the plant would close if the Union came in. After English reported back the next day that the employees still wanted a union , he, as I have found, was selected for layoff because of the union activities. The fact that Respondent's unfair labor practices preceded the Union's request for recognition does not detract from their relevance to the issue of good faith. Unlawful opposition to organization may evidence rejection of the collective-bargaining principle whether it follows a bargaining request or occurs as soon as the prospect for a recognition request or election appears.41 Similarly, the filing of charges by the Union on the same day that it sent its request for recognition did not relieve the Respondent of any obligation to bargain with the Union. Whether or not the Union's charges that Respondent had refused to bargain as of November 20 were well founded, the charges like the request for recognition asserted the Union's 40 Aaron Brothers Company of California, 158 NLRB 1077 " Post Houses , Inc , 161 NLRB 1159, enfd 384 F 2d 463 (C A 3) °R No evidence was offered by Respondent in support of the opinion as- serted in the letter that the Union did not then and never did represent a majority of its employees To the contrary, the only evidence as to Respon- dent 's knowledge of the Union 's majority appears in English 's uncon- tradicted testimony that he reported to McArthur on November 16 that the employees still wanted a union 1873 majority status and were not inconsistent with its majority claim. It is well settled that the filing of charges does not relieve an employer from his bar- gaining obligation under the Act. Respondent's unfair labor practices were neither peripheral nor minor. The disclosure of the wage plan was not irrelevant to the source of employee discontent but a deliberate measured response to employee complaints which Respondent had theretofore declined to make despite its concern over the complaints. The layoff of English occurred only after the more constructive effort to discourage the employees had seemingly failed. Respondent's response to its learning of the union activities was thus clearly calculated to undermine whatever support the Union enjoyed and directly evidenced rejection of the collective-bargaining principle. In these circumstances I conclude that the General Counsel met his burden of proving that Respondent's refusal to bargain on November 24, 1967, was not in good faith and therefore violated Section 8(a)(l) and (5) of the Act.42 Apart from the above, even assuming that it were found that Section 8(a)(5) was not violated, I would find in any event that a bargaining order would be warranted to remedy the violations of Section 8(a)(1) and (3) which occurred after the Union acquired its majority and were clearly designed to frustrate that majority.43 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, occurring in connection with the operations of Glar-Ban Corporation, described in section I, above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, as alleged in the complaint, I shall recommend that Respondent be ordered to cease and desist therefrom and take cer- tain affirmative action. As I have found that Respondent's violations included a discriminatory layoff and reflected a purpose to evade the obliga- tion of collective bargaining , I am of the opinion that there exists a danger of commission of other °3 Irving Air Chute Co , Inc , 149 NLRB 627, enfd 350 F 2d 176, 182 (C A 2) Cf Flomatic Corp , 147 NLRB 1304, enfd in part 347 F 2d 74, 77-79 (C A 2) Although the court in Flomatic denied enforcement to the Board 's bargaining order, unlike the facts in that case , here the evidence shows that Respondent 's unfair labor practices were more than "a somewhat overstated reply" to charges by the Union, but went directly toward remedying known employee complaints and culminated in the layoff of English 1874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and further unfair labor practices and shall recom- mend that Respondent be ordered to cease and de- sist from infringing in any other manner upon rights guaranteed by Section 7 of the Act. As I have found that Respondent discriminatorily selected Sylvester English for layoff, I shall recom- mend that Respondent be ordered to offer him im- mediate and full reinstatement to his former or a substantially equivalent position , without prejudice to his seniority and other rights and privileges, and to make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to the amount he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement , less his net earnings , to which shall be added interest at the rate of 6 percent per annum , in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the above findings of fact and the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. Respondent , Glar-Ban Corporation , is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. District Lodge 76 , Local # 1053, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All production and maintenance employees at Respondent's Kennedy Road plant , Cheektowaga, New York, excluding all office clerical employees, professional employees , guards and supervisors as defined in the Act constitute an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since November 7, 1967, the Union has been , and now is , the exclusive represen- tative of the employees in the said unit for the pur- pose of collective bargaining within the meaning of Section 9 ( a) of the Act. 5. By promising employees wage increases and threatening to close Respondent's plant in order to interfere with , restrain , and coerce them in the ex- ercise of rights guaranteed by Section 7 of the Act, by selecting Sylvester English for layoff because of the employees ' union activities, and by refusing to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit set forth above, all as found above, the Respondent has engaged in and is engaging in un- fair labor practices affecting commerce within the meaning of Section 8 ( a)(1), (3), and ( 5) and Sec- tion 2 ( 6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby recommend that Glar- Ban Corporation, Cheektowaga, New York, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Promising employees wage increases in order to interfere with, restrain, and coerce them in the exercise of rights guaranteed by Section 7 of the Act. (b) Threatening to close its plant if the em- ployees choose to be represented by a union. (c) Discouraging membership in District Lodge 76, Local #1053, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, by discriminating in regard to the hire and tenure of employees or any term or condition of their employment. (d) Refusing to bargain collectively in good faith concerning rates of pay, hours of employment, and other conditions of employment with District Lodge 76, Local #1053, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of the employees in the appropriate unit described in paragraph 3 of the section of the Decision entitled "Conclusions of Law." (e) In any other manner interfering with, restraining, or coercing its employees in the exer- cise of their rights to self-organization, to form labor organizations, to join or assist District Lodge 76, Local #1053, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which is necessary to effecuate the policies of the Act: (a) Offer Sylvester English immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss he may have suffered by reason of the discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (b)Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (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, GLAR-BAN CORPORATION and all other records necessary to analyze the amount of backpay due under the terms of this -Recommended Order. (d) Upon request, bargain collectively with the above-named Union as the exclusive representative of-all employees in the appropriate unit , and em- body in a signed agreement any understanding reached. (e) Post at its Kennedy Road, Cheektowaga, New York, place of business, copies of the attached notice marked "Appendik."94 Copies of said notice, on forms provided by the Regional Director for Re- gion 3 , after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places , including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.45 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges unfair labor prac- tices not found herein. 14 In the event that this Recommended Order is adopted by the Board, the words " a Decision and Order " shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " u In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read " Notify said Regional Director, in writing , within 1 0 days from the date of this Order , what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to eftectuate the policies of the Na- tional Labor Relations Act, as amended, we hereby notify our employees that: WE WILL bargain collectively, upon request, with District Lodge 76, Local #1053, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, as the exclu- sive representative of all the employees in the bargaining unit described below with respect to rates of pay, wages , hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance em- ployees at our Kennedy Road, Cheek- towaga, New York, plant, excluding all of- 1875 fice clerical employees, guards and super- visors as defined in the Act. WE WILL offer Sylvester English reinstate- ment to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and we will make him whole for any loss he may have suffered as a result of his layoff. WE WILL NOT promise our employees wage increases in order to interfere with, restrain, and coerce them in the exercise of rights guaranteed by Section 7 of the Act. WE WILL NOT threaten to close our plant if our employees choose to be represented by a union. WE WILL NOT refuse to bargain collectively with District Lodge 76, Local #1053, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, as the exclu- sive representative of all the employees in the bargaining unit described above. WE WILL NOT discourage membership in Dis- trict Lodge 76, Local #1053, International As- sociation of Machinists and Aerospace Wor- kers, AFL-CIO, or any other labor organiza- tion, by discriminatorily laying off and refusing to reinstate any of our employees or by dis- criminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Dis- trict Lodge 76, Local #1053, International As- sociation of Machinists and Aerospace Wor- kers, AFL-CIO, or any other labor organiza- tion, to bargain collectively through represen- tatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. Dated By GLAR-BAN CORPORATION (Employer) (Representative ) (Title) Note: We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Ser- 1876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vice Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered , defaced , or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Fourth Floor , The 120 Building, 120 Delaware Avenue, Buffalo , New York 14202, Telephone 842-3100. Copy with citationCopy as parenthetical citation