Keco Industries, Inc.

KECO INDTJSTRIES, INC. 317 Keco Industries, Inc. and Local No. 183, International Associa- tion of Sheet Metal Workers, AFL-CIO. Case No. 9-CA-1012. June 26, 1957 DECISION AND ORDER On November 16, 1956, Trial Examiner Charles W. Schneider issued his Intermediate Report in the above-entitled proceeding finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief.' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Jenkins]. 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 affirnned. The Board has considered the Intermediate Report, the exceptions, the brief, and the entire record in the case 2 and hereby adopts, with minor modification,3 the findings, conclusions, and reconunendations of the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent Keco Industries, Inc., -Cincinnati, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Local No. 183, International Association of Sheet Metal Workers, AFL-CIO, or in any other labor The Respondent requested oral argument. The request is hereby denied because the record, the exceptions, and briefs adequately present the issues and positions of 'the parties. 2 After the close of the hearing the parties, on August 21, 1956, entered into a stipula- tion and motion to receive additional evidence marked "Appendices C, D, and E" of General Counsel's 'Exhibit No. 12. On August 22, 1956, the General Counsel moved that the hear- ing be closed. On August 27, 1956, the Trial Examiner issued an order making part of the record the August 21, 1956, stipulation and the said "Appendices C. D, and E." On September 26, 1956, the parties entered into a stipulation and motion to correct the record that was granted by the Trial Examiner in the Intermediate Report. The Board hereby makes the General Counsel's August 22, 1956, motion, the Trial Examiner's August 27, 1956, order, and the parties' September 25, 1956, stipulation part of the record in this case. ' The Trial Examiner found that the Respondent unlawfully discharged Heger on January 26, 1956, and the seven other discriminatees on January 27, 1956. We find upon the record, however, that the Respondent unlawfully discharged Charles Carter, Matthew Heeger, Charles Presswood, and Vernon Ridner on January 26, 1956, and Clarence Buck, Augustus Watson, Carson Goff, and James Thomas on January 27, 1956. 118NLRB No.46. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organization of its employees, by discriminatorily discharging em- ployees, or in any other manner discriminating in regard to hire or tenure of employment, or any term or condition of employment. (b) Threatening its employees with reprisals because of their union activities. (c) Threatening to engage in surveillance of union meetings. (d) Interrogating its employees concerning. their membership in, or activity in behalf of, Local No. 183, International Association of Sheet Metal Workers, AFL-CIO, or any other labor organization, in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Local No. 183, International Association of Sheet Metal Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Charles Carter, Matthew Heeger, Charles Presswood, Vernon Ridner, Clarence Buck, Augustus Watson, Carson Goff, and James Thbmas immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole in the manner set forth in the section. of the Intermediate Report entitled "The Remedy" for any loss of pay they may have suffered because of the discrimination against them. (b) Upon request, make available to the National Labor Relations Board and its agents, for examination and reproduction, all payroll records and other data necessary to analyze and compute the back pay and reinstatement rights due under the terms of this Order. . (c) Post at its plant at Cincinnati, Ohio, copies of the notice at- tached hereto marked "Appendix." 4 Copies of said notice, to be fur- nished by the Regional Director for the Ninth Region shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent for sixty (60) consecutive days thereafter in con- 41n the event that this Order is enforced by a decree of the United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." SECO INDUSTRIES, INC. 319 spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Ninth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, insofar as it alleges that the Respondent has violated the Act otherwise than as found herein. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in Local No. 183, Inter- national. Association of Sheet Metal Workers, AFL-CIO, or in any other labor organization of our employees, by discriminatorily discharging any of our employees, or in any other manner dis- criminating in regard to hire or tenure of employment, or any term or condition of employment. WE WILL NOT threaten our employees with reprisals because of their union activities. WE WILL NOT threaten to engage in surveillance of union meetings. WE WILL NOT interrogate our employees concerning their mem- bership in, or activity in behalf of, Local No. 183, International Association of Sheet Metal Workers, AFL-CIO, or any other labor organization, in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist Local No. 183, International Association of Sheet Metal Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. ° 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer to Charles Carter, Matthew 1-Ieeger, Charles Presswood, Vernon Ridner, Clarence Buck, Augustus Watson, Carson Goff, and James Thomas immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges pre- viously enjoyed, and make them whole for any loss of pay they may have suffered because of the discrimination against them. DECO INDUSTRIES, INC., Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges and amended charges timely filed by Local No. 183, International Association of Sheet Metal Workers, AFL-CIO, the Union herein, the General Counsel of the Board, by his Regional Director, issued a complaint on June 20, 1956, against Keco Industries, Inc., Cincinnati, Ohio, the Respondent herein. The complaint alleged that the Respondent had engaged in unfair labor practices af- fecting commerce, in violation of Section 8 (a) (1) and (3) of the National Labor Relations Act, 61 Stat. 136. More specifically, the complaint alleged that the Respondent discriminatorily discharged eight named employees on January 26 and 27, 1956, and thereafter failed and refused to reinstate all but one of them; and on various dates between November 15, 1955, and January 26, 1956, by various of- ficials and supervisors, threatened employees with discharge, threatened to close the plant, warned employees, engaged in surveillance of a union meeting, and interro- gated employees concerning union activities and affiliation. In due course the Respondent filed its answer denying the commission of unfair labor practices, and affirmatively averring that the Respondent had reduced its labor force, beginning in January 1956, pursuant to a reduction in production. Upon due notice and proper service a hearing was held at Cincinnati, Ohio, on August 15, 16, and 17, 1956, before the Trial Examiner. All parties were repre- sented at the hearing, participated therein, and were afforded full opportunity to present and to meet relevant evidence, to examine and cross-examine witnesses, to present oral argument, and to file briefs and proposed findings. The hearing was closed by order on August 27, 1956. Under date of September 25, 1956, the parties, by stipulation, moved to correct the transcript of record. The motion is hereby granted and the transcript ordered corrected in accordance there- with. On September 27, 1956, briefs were received from the General Counsel and the Respondent, and have been considered. A motion by the Respondent made at the hearing to dismiss the complaint, and taken under advisement, is now, after consideration of all the evidence, denied. Upon the entire record in the case, and from my observation of the witnesses, I make the following: - FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY Keco Industries, Inc., is now, and all times material hereto has been, an Ohio corporation, maintaining its principal office and place of business in Cincinnati, Ohio, where it is engaged in the development, manufacture, and sale of mobile air conditioners and refrigeration units. The Respondent's operations are principally devoted-either as a prime contractor or as a subcontractor-to the fulfillment of contracts with the Government of the United States of America, the Defense Depart- ment, and the various service branches thereof such as the Army, Navy, and Air ° Force. Substantially all the Respondent's products shipped to the Government ultimately come to rest outside the State of Ohio. KECO INDUSTRIES, INC. 321 During the 12-month period ending on or about April 30, 1956, the Respondent produced and caused to be shipped from its plants in Cincinnati, Ohio, products valued in excess of one million dollars pursuant to the contracts referred to above. It is conceded that the Respondent is now, and at all. times material hereto has been, engaged in commerce within the meaning of the Act. IT. THE LABOR ORGANIZATION INVOLVED Local No. 183, International Association of Sheet Metal Workers, AFL-CIO, is a labor organization admitting to membership employees of the Respondent. 111. THE UNFAIR LABOR PRACTICES The Issues In late 1955 and early 1956, upon the request of employees, the Union engaged in an organizational campaign among the Respondent's employees . On January 26 and 27, 1956, only a few days after the Union's first meeting on January 23-which the General Counsel asserts was kept under surveillance by the Respondent-the Respondent laid off the eight employees named in the complaint.' All eight had attended the union meeting; all had signed cards designating the Union as their bar- gaining representative ; several were leaders in the movement for union affiliation. According to the General Counsel, all eight had, prior to their layoff, either been the objects of, or witnesses to, declarations by asserted supervisors in the nature of interrogation as to union activities or threats of loss of employment, or both, if union activities were indulged in. The General Counsel further asserts that the layoffs actually constituted discharges of these eight employees because of their union activities. The Respondent denies that the eight employees were discharged, and affirmatively avers that they were temporarily laid off pursuant to a bona fide reduction in force because of production requirements . The Respondent likewise denies the allegations concerning the asserted declarations of the supervisors : as to most, though not all, on the ground that the individuals were not supervisors ; and additionally, as to most, though not all, on the grounds that the statements were not in fact made. The Respondent's Operations in General The Respondent's business is the development and production of special purpose refrigeration equipment, such as vehicular air conditioners, portable refrigeration units, and ground cooling aircraft devices, principally for the use of the defense forces of the United States. This work is pursuant to contract, sometimes as a prime contractor, sometimes as a subcontractor . The Respondent is not ordinarily a producer for the commercial market. The contracts under which the Respondent operates are comprehensive development -production contracts , that is, they include responsibility not only for the manufacture of the equipment , but its design and engineering as well. The Respondent's testimony, principally that of its preisdent , Robert G. Adair, is that its work force fluctuates with the ebb and flow of its contracts , that is, increases as a contract gets into production, decreases as it nears completion. President Adair's further testimony is that the maximum demand for labor is in the early and middle stages of the production cycle, essentially fabrication and subassembly, and that in the final stage work is largely reduced to assembly and adjustment of the fabricated parts. This testimony is discussed in more detail at a later point. Supervisory Capacity In addition to the allegations of discriminatory discharge , the complaint alleges that the Respondent engaged in violations of Section 8 (a) (1) of the statute, that is, interference, restraint, and coercion of employees . This it assertedly did through the conduct of certain officials and contended supervisors: Plant Manager David Hollender , former Production Manager Harry Passauer, and the following 'Charles Presswood, Carson Goff, Vernon Ridner, Augustus Watson, Matthew Heeger, Clarence Buck, James Thomas, and Charles Carter. 450553--58-vol. 118-22 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foremen: Ferdinand Schaefer (chief), Sanford Silvey, and Earl Dummitt.2 The supervisory capacity of Hollender and Passauer, at the time of the material events herein, is not disputed. However, the Respondent contests the assertion respecting Schaefer, Silvey, and Dummitt. Considerable of the testimony and examination in the record are directed to the question of their supervisory status. In early January 1956 the Respondent had four foremen in its -production opera- tions, each in charge of a different department: Schaefer in the sheetmetal' and welding department, Dummitt in the assembly department, Silvey in the refrigera- tion department, and William Rinehar[d]t in electrical and packaging. Rinehardt is not involved in any of the events herein, other than collaterally. The production operations at that time may be briefly described as follows. The sheetmetal department under Schaefer fabricated parts for equipment, which were assembled in assembly under Dummitt; the work was then passed on to Silvey's department where refrigeration piping and refrigerant were installed, and from there to Rinehardt's department for installation of electrical wiring and packing for shipment. The only supervisors above the foremen at that time were Production Manager Passauer, Plant Manager Hollender, and President Adair. In general the function and authority of the foremen is the direction of the em- ployees in their department. Depending upon the amount and flow of work the num- ber of employees under each foreman may vary from 6 to 15. At the time of the events in question the average would seem to be from 10 to 12. The foremen are immediately responsible for the proper functioning of the department. They pro- cure materials, instruct and assist employees, and oversee their performance. They are paid on an hourly basis, as are the rank-and-file employees, but at a substantially higher rate. At times the foremen work on the line, but they are not expected to do any production work. According to Plant Manager Hollender they are expected to help on the line only "if they were in any -kind of trouble or . . something wasn't exactly right." 3 Though they may occasionally be given a direction by the plant manager, the em- ployees generally take their orders only from the foremen. Necessary information as to daily production requirements are given the foremen by the plant manager in the morning of each day. These broad directives, sometimes implemented ,by spe- cific instructions as to procedures and utilization of manpower, are then translated into a program of action by the foreman who assigns and directs his crew accordingly. The testimony is that the employees look to the foreman for direction, which he is expected and required to give them, that the employees in general regard him as the "boss," and that, in sum, he has general responsibility, under the supervision of the plant manager, for the proper operation of his department and the quality of the work produced therein. The foremen attend foremen's meetings called by President Adair. Present at such meetings, in addition to the foremen and President Adair, may be the plant man- ager, the production manager, and perhaps other officials, such as the chief engineer, the vice president, and the office manager. Both production and personnel matters are discussed at these meetings, and foremen make recommendations as to which employees should receive wage increases. The foremen also attend dinner parties given by the Respondent, attendance at which seems to be restricted to those identified with management. The foremen have no authority to hire or to discharge employees, or to grant them promotions or increases in pay. However, the evidence establishes, in my opinion, authority-in the foremen, which they exercise, to make effective recom- mendations respecting employment conditions of employees within their depart- ments. Thus, foremen make recommendations with respect to wage increases and promotions. While, not binding, these recommendations carry weight and appear generally to be followed? In the only specific instances in the record where wage Dummitt , a witness for the Respondent, described himself in his testimony as a "lead- man." On previous occasions , however, Dummitt had identified himself as a foreman. Plant Manager Hollender 's testimony is that Dummitt is a foreman , with the same ca- pacity as Silvey. 3 Dummitt' s estimate that he spent from half to two-thirds of his time working on the line, seems quite excessive . It is contrary to the testimony of employee witnesses and Hollender . The latter testified that Dummitt "didn't have a standard duty on the as- sembly line. He was their [ the Respondent 's? the employees'?] good right hand and it kept him pretty busy." As a witness Dummitt gave the impression of seeming to min- imize unduly the responsibilities of his position. 4 Because of cost control requirements only President Adair has authority to grant wage increases. KECO INDUSTRIES, INC. 323 increase recommendations were made by foremen, the increases were granted. While Foreman Silvey testified that increases are not always awarded, he gave as the reason therefor, not the futility of recommendations, but the timing of the request: "Men ask for raises when we are not too busy and you couldn't hardly expect to get a raise right then." The record reveals other instances of the exercise of supervisory authority by the foremen . On occasions when employee timecards have been incorrect, or otherwise have required validation, Foremen Silvey' and Dummitt have signed them for em- ployees. Schaefer, Silvey, and Dummitt have assigned employees to different jobs within their departments, Silvey once taking employee Augustus Watson off the line and assigning him to assist a truckdriver. They have also assigned employees to work overtime. Dummitt gave employee Charles Carter permission to be off from work on several occasions when Carter wished to be absent for personal reasons. Dummitt once asked Plant Manager Hollender to take a man out of his department who had come in drunk. Hollender complied. In December 1955 employee James Thomas told Foreman Silvey that he was quitting his job to go to California. Silvey told Thomas that he would hold his job open for 2 weeks in case Thomas changed his mind. When employee Watson appeared ill at work Silvey sent him home. Watson was out for several days. When he returned he brought in a medical certificate, which he gave to Silvey. Silvey's testimony was that, although he "could not make [Plant Manager Hollender] do anything," he could recommend that employees be discharged -if they were not doing a good job.5 On the basis of the above facts, it is my conclusion that the foremen are super- visors within the meaning of the Act. Section 2 (11) defines as a supervisor: Any individual having authority, in the interest of his employer, to hire, transfer, suspend, lay off, 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. In my judgment the evidence here establishes that the foremen have authority to responsibly direct employees in their departments. In addition it discloses actual authority in the foremen-which they exercise-to assign employees to different duties within the department. It further establishes, in my opinion, that they make effective recommendations concerning transfer out of the department, respecting the elimi- nation of employees from their crews, and recommendations for the discharge of employees who, in their judgment, are not performing their work properly. In addi- tion, foremen make effective recommendations concerning the granting of wage increases and promotions. They validate employee timecards and assign employees to overtime work, thus directly affecting employee earnings; and they may grant or withhold permission to be absent from work. In my view these are substantial super- visory functions. Their exercise here is manifestly not of a routine or clerical nature, but requires the use of independent and genuine judgment. It is consequently found that Ferdinand Schaefer, Sanford Silvey, and Earl Dummitt were, at all times material herein, supervisors of the Respondent within the meaning of the Act. Interference, Restraint, and Coercion In addition to an allegation of surveillance of a union meeting, and the allegations of discriminatory discharges-matters later discussed-the General Counsel contends that the Respondent engaged in acts of interference, restraint, and coercion by certain conduct of Plant Manager Hollender, former Production Manager Passauer, and Foremen Schaefer, Silvey, and Dummitt. We turn first to the allegations concerning Schaefer. ' Schaefer Four witnesses, former employees, testified to conduct by Schaefer in the nature of threats or warnings concerning unionization. These witnesses were Matthew Heeger, Augustus Watson, Charles Carter, and Edward Hughes. Heeger's testimony is that sometime after he was hired in September 1955, Heeger observed, in response to a comment by Schaefer, that perhaps the plant needed a union. Schaefer replied, according to Heeger, "For Christ's sakes, don't mention that. The man don't work here that mentions unions." Augustus Watson testified 5 Silvey subsequently testified that no one had been discharged in his department since he became a foremen. His testimony, however, indicates his understanding of the extent of his duties and authority. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that in October 1955 Schaefer made a similar remark to Heeger in the presence of Charles Glacking and himself. Watson further testified that on the occasion of his own hiring in the fall of 1955, he told Schaefer that he belonged to the 1. U. E. Union and showed Schaefer his union card. Schaefer replied, according to Watson, that he belonged to a union too, that he had permission (from the Union) to work at the plant, "but that anybody that talked about the union at Keco didn't work there." The testimony of Charles Carter is that sometime prior to January 23, 1956, he asked Schaefer why there was no union in the plant, and he received the reply that "if you want to stay you hadn't better mention union." Schaefer further said, according to Carter, that "one or two guys had been fired for that back before I came there." Edward Hughes testified that he had a number of conversations with Schaefer about the Union, at sometime around the time of the union meeting of January 23. Schaefer told him, according to Hughes, that an employee "upstairs" had passed out union cards previously and "he don't work here any more." Schaefer, a witness for the Respondent, testified that he engaged in some union activity at the plant. Schaefer's testimony is that he had a withdrawal card from the Carpenters' union, and that when he ascertained that there was sentiment among the employees in favor of a union, he sought to interest them in the Carpenters, but without success. In that connection Schaefer's testimony is that sometime before Christmas 1955 he asked President Adair whether he could organize a union among the employees, and Adair told him that he could. Schaefer then questioned employees about a union, and found some for it, some against it. Schaefer denied warning any employee that he could not belong to a union and still work for the Respondent. His testimony is that he told employees that he had no objection to their having a union, Schaefer further testified that he once asked employee Edward Hughes for an application card in the Charging Union and subsequently received one from Matthew Heeger. It is apparent that, from his own testimony, Foreman Schaefer's actions in questioning employees as to their union preferences and his attempt to interest them in designating another union constituted interference by a supervisor in employee or- ganizational matters. However, that aside, there remains for resolution the question as to whether he made the statements attributed to him by the General Counsel's wit- nesses. On that issue it must be concluded that he did. As has been seen, four different witnesses, none demonstrably unworthy of belief, testified to a number of incidents of substantially similar import, which Schaefer denies. While it is conceivable that the testimony of the four is concocted or mis- taken, and Schaefer's correct, that likelihood is more remote than the probability that Schaefer is in error. And the possibility of error or perjury becomes increasingly less likely the more witnesses testify to the event. From my observation of the witnesses, I am persuaded that the testimony of Heeger, Carter, Watson, and Hughes as to Schaefer's conduct is substantially accurate and is to be credited. I so find. Sanford Silvey A number of instances of conduct assertedly constituting unfair labor practices are attributed to Foreman Silvey. The General Counsel's testimony as to these incidents, a large part of it undenied, is as follows: On January 23, 1956, a union meeting was held in the vicinity of the plant. On the following day, according to Charles Carter, Foreman Silvey, meeting Carter in the plant, asked Carter whether he had signed a union card. Silvey further asked Carter how the Union was "coming along," and said that he had heard that Carter was "going to be a committeeman or something if [the Union] goes in." Carter merely responded that he had been at'the union meeting and avoided further discussion. On several occasions Silvey asked Carter whether he had a union card. Carter usually did not answer because he had "had orders not to"; a reference to Foreman Schaefer's warning to Carter, referred to heretofore.6 Edward Hughes testified that on several occasions after the union meeting Silvey spoke to him about the Union. Thus, he asked Hughes how many persons u Thus Carter testified ". . . the bosses told us if we ever mentioned the Union in the shop we would be fired . That is what the chief told me. So I never talked about the Union in the factory." KECO INDUSTRIES, INC. 325 were at the meeting, and when there would be another. Hughes responded tartly that if Silvey wanted to know he should have gone to the meeting. According to Hughes, Silvey also said that employees would be laid off because of their union activities. On another day Silvey asked Hughes why he did not drop the Union. He further asked Hughes for a union card, and said that President Adair would close the plant before he would accept a union. At another time Silvey told Hughes that if President Adair had to pay union wages he would let go the men with little education. According to Matthew Heeger, Silvey made substantially the same statement to him on January 26. James Thomas' testimony is that he over- heard part of the conversation in which Silvey asked Hughes about the union meeting and asked for a union card. According to Charles Presswood, Silvey asked him whether he had gone to the union meeting. When Presswood answered in the affirmative Silvey, indicating that he was opposed to the Union, said that he was "afraid" that the employees would "get nowhere with it." Augustus Watson testified that on the day after the January 23 union meeting, as he passed Silvey and a welder in the welding department, he heard Silvey say that there was going to be a layoff of "union agitators." On the day after the union meeting, January 24, Silvey asked Matthew Heeger, according to Heeger, whether he had any union cards, and when Heeger replied that he did, Silvey asked for one. Heeger responded, with evident sarcasm, that he would give one to Silvey after working hours if Silvey would "fill it out." Heeger was laid off on January 26. On the morning of that day Silvey again asked Heeger, according to the latter's testimony, whether he had any union cards, and when Heeger said that he did, Silvey told him that he was going to be laid off or discharged that evening because of his union activities. On the next day, the 27th, Silvey told Clarence Buck, in the presence of several other employees, according to Buck, that more employees would be laid off "if they kept talking about the Union." Some of the above testimony was denied by Silvey, but in large part it is uncontradicted. Silvey conceded that he had a "friendly conversation" with Heeger on the day after the union meeting, in which if he "remember led it] right" he asked Heeger "how many they got signed up" and Heeger asked him in turn whether he wanted a card. Queried on cross-examination as to whether he had not in fact inquired whether Heeger had a union card and asked Heeger to give him one, Silvey responded that he had asked Heeger whether he had a card; and "possibly" he asked Heeger to give him one-as "a joke or something." On redirect examina- tion Silvey definitely resolved the uncertainty as to his motive when he became positive that it was all a joke. Concerning Buck's testimony, Silvey's testimony was that he had no conversation with Buck about union activity or the layoff that he knew of or could remember. Nor could he remember having any conversation with anyone regarding the layoff. Silvey admitted speaking to Hughes about the Union on several occasions. Silvey's testimony in that connection was that Hughes asked him what he thought about the Union, Silvey replying that he had nothing against it, but that he did not see that it could do the employees any good; that it would in fact prevent their transfer to other departments when work got slack. Silvey denied asking Hughes why he did not drop the Union. This is the extent of Silvey's denials or explanations of the above related testimony. The remainder of the testimony recounted above by General Counsel witnesses concerning Silvey's conduct is not denied. As against the overwhelming testimony to the contrary, I cannot accept Silvey's denials. Upon consideration of the evidence and observation of the witnesses I am persuaded that the testimony of Carter, Thomas, Presswood, Watson, Heeger, Buck, and Hughes is entitled to substantial credit. I so find. Earl Dummitt Testimony concerning conduct by Foreman Earl Dummitt was given by General Counsel witnesses Clarence Buck, Charles Presswood, and Edward Hughes. Buck and Dummitt were personal friends. Buck's testimony is that after hearing Foreman Silvey's statement on January 27 to the effect that there would be more employees laid off if they "kept talking about the Union," Buck went to Dummitt and asked him about it. Dummitt told him, Buck says, "If you want to keep your job, keep your mouth shut about the Union and you won't be laid off." Dummitt's 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony, in sum, is that he "couldn't remember" having any conversation with Buck concerning unions or union activities.? Charles Presswood rode to and from work with Dummitt in the latter's 'auto- mobile, in which Dummitt's wife and an employee of the Respondent's, Foch Smith, were also passengers. Presswood's testimony is that as they were riding to work on January 24, 1956, the day after the union meeting, in the course of a discussion initiated by Smith, Dummitt said that he believed that before President Adair would "stand for a union he would move the Company." Asked on direct examination whether he ever had any conversations with Presswood concerning unions or union activities, Dummitt first responded with a definite, "No, sir." Asked later whether he, Presswood, and Smith ever had any such conversations while riding back and forth to work, Dummitt's testimony was that he could not recall.8 Later, Dummitt's testimony, still on direct examination, was that he and Smith might have "said a few words . . . about a union, but so far as just having a conversation about unions why, no." Still later, and still on direct examination, Dummitt was asked whether he had ever had any conversation with an employee in which he made the statement that President Adair would close the plant before he would permit a union to organize. This time Dummitt responded that he "might have said it," though he could not recall to whom, "maybe Smitty" in the car; but it was not to Carson Goff, Vernon Ridner, or Augustus Watson; and he was "pretty sure" it was not to Presswood. Questioned as to what prompted him to make such a 'statement (which, it is to be noted, he had not yet definitely admitted making) Dummitt answered, "I don't know. I just thought he [President Adair] was that kind of a man." Asked on cross-examination whether Presswood was in the car at the time he might have made such a statement to Smith, Dummitt said that he could not recall. Clarence Buck was laid off on Friday, January 27. On the following Sunday he had a conversation with Foreman Dummitt at the latter's home. It is undenied that in the course of that discussion Dummitt told Buck that he thought that the "main" leaders of the Union were Charles Carter, Charles Presswood, Matt Heeger, and Ed Hughes. Hughes' testimony is that sometime in November 1955, on the day he began to give out union cards, as he passed Dummitt and Plant Manager Dave Hollender in the plant, they said: "There is one of the guys that has a card." That testimony is uridenied. The impression of elusiveness and indefiniteness apparent in the above excerpts from Dummitt's testimony was more pronounced in his demeanor while testifying. It was, and is, difficult to ascertain whether he was denying statements attributed to him or not. The only definite denial he made he subsequently modified. Under the circumstances I must accept the testimony of Buck, Presswood, and Hughes as to Dummitt's statements. Hollender and Passauer At the time of the events herein Harry Passauer was the Respondent's production manager and the immediate superior of Plant Manager David Hollender. Three employees or former employees, Ronald G. Coleman, Charles Presswood, and Vernon Ridner, testified as to asserted conduct by Passauer and Hollender said to constitute unfair labor practices. Coleman's testimony is as follows: On January 23, 1956, the Company operated 2 plants about 3 blocks apart, one on Spring Grove Avenue, the other on Colerain Avenue. Coleman worked in the Colerain Avenue plant. In the afternoon of the day in question between 3 and 4 p. m. Production Manager Passauer came up to Coleman and told him that Plant Manager Hollender wished to see him. Passauer then drove Coleman to the Spring Grove plant where Hollender had his office. There he was questioned about the union meeting to be held that afternoon. Present were Hollender, Passauer, and one Howard Stephens, who is unidentified. According to Coleman, Hollender told him that he (Hollender) had "heard something about a union meeting today" and asked Coleman where it would be held. Coleman replied that all that he knew was what he had seen in a notice sent by the Union to some of the employees. Hollender asked what that was. Coleman 7Q. Now, (lid you at any time ever have any conversation with Clarence Buck con- cerning unions or union activities ?-A. Well, I just couldn't remember that I did. Q. You say you don't remember that you did'?-A. I don't think I did. I can't remem- ber it if I did. 8. I just can't recall. I can't recall that we did or didn't. Q. You don't know whether you did or not?-A. No, sir, I just can't recall that. KECO INDUSTRIES, INC. 327 told him what he remembered . Hollender, Passauer, and Stephens then began discussing between themselves the fact that union cards had been passed out in the plant in November or December . Hollender asked Coleman whether he knew anything about that, or had gotten a card . Coleman responded that he had not got one, although in fact he had received a card in the mail. Hollender, Passauer, and Stephens , then resumed their discussion . Much of that discussion , Coleman testified, he did not understand : it was "way over [his ] head." However, Hollender did say to Passauer at one point , "We'll catch them some way, driving around the block or parking or something, and just sit there and take the names as they come in." After a while Hollender turned to Coleman and said "That is all"; but as Coleman started out the door Hollender said , "There is just one more thing. What we have talked about here is just between us." Coleman went back to the Colerain Avenue plant, washed up , and went home . He did not go to the union meeting. .Of the other three participants in this discussion , only Hollender testified. He denied having any knowledge at any time on January 23 that there was to be a union meeting that night, although admitting that he had heard prior to that time that cards had been passed out in the plant. Hollender's further testimony was that he might have talked to Coleman in his office at about the time of the union meeting, but he could not "recall ever talking to him about any union activities." Hollender also denied having Passauer bring Coleman to his office on the day of the meeting . Passauer and Stephens did not testify. Though Hollender did not specifically and unequivocally deny that he spoke to Coleman on this occasion , Hollender's testimony is obviously inconsistent with Coleman's. In view of the nature of the conflict in testimony , there is little possibility of mistake or misconstruction on the part of Coleman . His testimony must there- fore be either a complete fabrication or else substantially true. If Hollender 's testi- mony is accepted Coleman was fabricating. But Coleman did not so impress me while testifying. On the contrary, he gave every outward appearance of being worthy of credence . No reason or bias is apparent or suggested as to why Coleman should invent a story damaging to the Respondent . He has no evident interest in the outcome of the litigation . Passauer and Stephens were not called as witnesses by the Respondent. While Passauer is no longer employed by the Respondent, he continues to live in the Cincinnati area, and there is no showing that he was not available as a witness . T'here is no explanation as to Stephens . Under the cir- cumstances I am impelled to credit the testimony of Coleman and to reject that of Hollender. Charles Presswood testified to a conversation with Hollender following the union meeting on January 23 . After that meeting , according to Presswood , he returned to work. Near Hollender's office in the plant he met the plant manager , who asked him "What is this I hear about you men are strong for the Union ?" Presswood in- dicated that it was true. Hollender then asked what Presswood expected to get out of the Union . Presswood responded that he did not know yet , that such things took time. Hollender observed that Presswood probably "Got a few beers and sandwiches" and, according to Presswood , "seemed mighty interested in what I had done." Hollender finally said, with a laugh, that he had heard that Presswood was "going to be fired over having anything to do with the Union ," a remark which Presswood did not take seriously at the time. However, 4 days later, on January 27, Presswood was laid off. According to Hollender's testimony the decision as to who to lay off had been made sometime between January 15 and 20, which would have been in the week previous to this conversation. Plant Manager Hollender denied having any discussion with Presswood concern- ing unions or union activities . Asked specifically concerning the conversation about which Presswood testified Hollender's testimony was that he had no recollection of that. According to Hollender, the only conversation he could remember with Press- wood about the Union was one several weeks after the layoff, when Presswood came to him and said that if he were given his job back he would have nothing further to do with the Union ; Hollender responding that Presswood 's layoff had nothing to do with his union activities. As in the case of Coleman , Hollender's denial that he had any conversation with Presswood about the Union prior to the layoff makes it difficult to say that Press- wood's testimony is mistaken or the result of misconstruction of an actual conver- sation . Presswood's testimony must therefore be substantially accepted , or else the conclusion drawn that he was deliberately fabricating a story. I think that if he were fabricating here his testimony would have been considerably more hurtful to the Respondent than it is; particularly do I not think that he would have described as humorous Hollender's remark that Presswood would be fired . I have found minor confusion in some points of Presswood's testimony: He was unsure about the date 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he signed union cards, about the date of his discharge, and about the date of the union meeting. But these are substantially nonessentials . Upon observation I judged Presswood a witness anxious to be truthful ; incapable , 1 am persuaded, of deliberate falsification. I therefore credit his testimony as to this conversation with Hollender. Vernon Ridner also testified to a conversation with Plant Manager Hollender concerning the Union. The incident is as follows: President Adair's testimony is that it is the Respondent 's common practice to transfer employees to other departments and work in order to avoid laying them off. Ridner was among the employees laid off on January 26 . On February 7, following a number of requests by Ridner for reemployment , he was rehired by Hollender. Sometime after Ridner returned to work, according to Ridner , Hollender asked him what he thought about the Union, Ridner replying that he did not know. Hollender asked Ridner whether he had sent in a card; Ridner replied in the affirmative . Hollender then told Ridner that if the Union came in and work ran out in his department , he would not be able to take another job in the plant , but would have to be laid off. This is the substance of Ridner 's testimony as to the incident. Asked on cross-examination whether he had such a conversation with Ridner, Hollender at first could not recall, but added that if he did it was Ridner who initiated it. He was "almost absolutely sure" that he did not ask Ridner whether the latter had signed a union card. After some further questioning , however, he recalled that there may have been a conversation , brought up by Ridner, in which he (Hollender) said that the Union made no difference "one way or the other," but that if the Union came in "we would be less flexible ." After some further reflection by Hollender this possibility became a certainty , and he finally testified that he "did say the operation would be less flexible if the Union came in, because if you can't change those people around from one job to another and if you are on spot welding suppose that is the only thing you can do, if you don't have a job for him you can't keep him on." Upon consideration of the testimony, and observation of the wit- nesses, I credit the testimony of Ridner. Surveillance The complaint alleges, and the Respondent denies, that Plant Manager Hollender and Production Manager Passauer kept the Respondent 's employees under surveil- lance during the union meeting of January 23, 1956. At the time of that meeting the Respondent operated a plant on Spring Grove Avenue, and another on Colerain Avenue, approximately 3 blocks apart. Spring Grove and Colerain are adjacent and parallel streets running in a north-south direction , Colerain being the more easterly of the two . The Spring Grove plant is on the east side of the street in the middle of the block . The Colerain plant is likewise in the middle of the block , but on the west side of Colerain Avenue, and south from the Spring Grove plant . Two east-west streets lie between the Spring Grove plant and the Colerain plant . The union meeting was held in the Mahogany Bar, which is a building on the east side of Colerain Avenue in the block immedi- ately north of the Colerain plant and immediately south of the Spring Grove plant. It as not uncommon for Plant Manager Hollender and Production Manager Pas- sauer to shuttle between the two plants in the Respondent's station wagon. At the time of this event the Respondent was engaged in moving some operations to the Colerain plant. There are two direct routes by which to go from the Spring Grove plant to the one on Colerain. The first route would be to go south on Spring Grove one-half block to the first east-west street, Marshall , turn left (eastward), go I block to Colerain, turn right and go 11/2 blocks to the Colerain plant . This route passes the Mahogany Bar, which lies a short distance south of the intersection of Marshall and Colerain, on the east side of the street. The other way would be to go south on Spring Grove 11/2 blocks to the next east-west street south of Marshall, turn left, go 1 block to Colerain, turn right on Colerain and go one -half block to the Colerain plant. The latter route does not pass the Mahogany Bar. The evidence is that these passages are equally acceptable. The union meeting was held at 5 p. m., at the end of the day shift. At sometime during the meeting Plant Manager Hollender and Production Man- ager Passauer drove slowly by the Mahogany Bar in a company station wagon , looked in the direction of the bar, saw a number of employees there, and drove on toward the Colerain Avenue plant . About 10 minutes later they returned along the same route, going in the direction of the Spring Grove plant. KECO INDUSTRIES, INC. 329 These facts are undisputed . Hollender's explanation is that this was a routine trip between the two plants. He denied any purpose of, or suggestion that he was engaging in, surveillance. I do not think the evidence substantial enough under the circumstances to support the conclusion that Hollender and Passauer were engaging in surveillance. It is quite conceivable that the occurrence was purely fortuitous , and in my judgment the evidence does not justify a contrary inference. I have not overlooked the fact that employee Coleman was questioned about the union meeting by Hollender in the presence of Passauer and Stephens , and that some of that discussion indicated a purpose in Hollender-and Coleman in fact so interpreted it-to observe the union meeting in order to ascertain the names of the employees who attended . The voicing of such a purpose by the plant man- ager, in the circumstances here present , would inevitably tend to restrain the employee in whose presence it was made from attending union meetings or engaging in other union activity. A threat to keep the employees' union activities under surveillance has no perceivable legitimate purpose, and none is here suggested. However, the expression of an intent to engage in surveillance does not establish the surveillance itself. There must be an overt act in furtherance of the purpose. Here slower passage along a public street past the location of a union meeting, and interested glances in that direction , are not so clearly conduct of the character' of espionage as to warrant the inference that it is an act of surveillance . I shall consequently recommend that this allegation of the complaint be dismissed. Conclusions as to Section 8 (a) (1) An employer's expression of view, argument , or opinion is protected both by the Constitution and by Section 8 (c) of the Statute . He is free to declare to his employees his noncoercive beliefs on the subject of unionism , and he may seek to .persuade them to his views by argument . He may not, however, lawfully employ threats of reprisal or promises of benefit in such connection, and if he does so, he commits unfair labor practices. Similarly, interrogation of employees concerning the fact or extent of union activity, where casual, moderate, noncoercive, and not illegitimately purposed, is legal. However statements coercive in themselves , and interrogation related to evidence indicating that employees might consider the inquiries indicative of pos- sible reprisals are unfair labor practices . N. L. R. B . v. Columbus Marble Works, 233 F. 2d 406 (C. A. 5); Blue Flash Express Inc., 109 NLRB 591. And where the conduct is by a supervisor and is such as, had the employer himself engaged in it, would constitute unfair labor practices, the employer is equally responsible , unless the incident is isolated or the circumstances affirmatively disclose that the employee could not reasonably construe the action as reflecting the views of management. In the instant case I find Production Manager Passauer , Plant Manager Hollender, and Foremen Schaefer, Dummitt, and Silvey to be supervisors of such status as to make the Respondent responsible , under the existing circumstances , for their conduct in the nature of unfair labor practices . The following conduct falls into such category: (1) Foreman Schaefer's statements to employees Heeger, Watson, and Carter to the effect that employees could not mention unions and remain in the Respondent's employ; and his statement to employees Carter and Hughes to the effect that em- ployees had been discharged for such action and for passing out union cards. These declarations would inevitably tend to restrain and coerce employees from discussing unions and engaging in union activity, under fear that they would be discharged for so doing . Carter's testimony , quoted in footnote 6 supra, demon- strates that it produced precisely that effect . I think the declaration plainly coercive under the circumstances . In the context of these threats Schaefer 's action in ques- tioning employees about a union also constituted interference, restraint , and coercion. Whether any organizational activities were actually in progress at the time of the threats or interrogation is immaterial . Equally so is the fact that there was a period of about 2 weeks in late January 1956 when Schaefer was not in the Respondent's employ. The relevant question is whether he was a supervisor at the time of his conduct-which he was. . ( 2) Silvey's statements to employees that there would be layoffs or other reprisals because of union activities. Thus , he told Hughes that employees would be laid off because of the union activities ; he told a welder that there would be a layoff of "union agitators"; he told Heeger that the latter would be discharged because of his union activities ; he told Buck after the January layoffs that more would follow if the employees "kept talking abou the Union"; he told Hughest that President Adair 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would close the plant before he would accept the Union; and he told Hughes and Heeger, in sum, that if Adair had to pay union wages he would let go the men with the least education. These were all outright threats of reprisal in employment . In that context Silvey's contemporaneous interrogation of employees as to their union activities , occur- rences at union meetings , and his asking employees for union cards, were likewise coercive . That Silvey was not Heeger's foreman does not dissipate the restraining effect of his conduct . Whether Silvey's statements were true is beside the point. Whether true or false they were coercive and restraintful. (3) Foreman Dummitt's advice to Buck, when the latter asked him about Silvey's disquieting declaration to the effect that more employees would be laid off if they continued to talk about the Union , that Buck would not - be laid off if he "kept his mouth shut about the Union." Also Dummitt's statement to Presswood and Smith to the effect that President Adair would move the company before he would stand for a union . That Dummitt has the undoubted right to express his noncoercive opinion on labor or on any other subject in his automobile-or anywhere else-does not meet the issue. When a supervisor expresses to an employee his belief-whether well-founded or not-that engagement in union activities by employees will meet with reprisals in employ- ment, employees will inevitably be restrained in the exercise of their organizational rights. . A threat of reprisal under such circumstances does not acquire an immunity merely because of the form in which it is cast. (4) The interrogation of employee Coleman by Plant Manager Hollender, in the presence of Passauer and Stephens on January 23 concerning the union meet- ing, and the suggestion made therein that the meeting would be kept under sur- veillance. It is immaterial that there is no evidence that this occurrence was com- municated to other employees. There is no requirement that an employee who is subjected to intimidatory or coercive conduct must communicate the incident to other employees -before it can become an unfair labor practice. Also coercive was Hollender 's questioning of employee Presswood concerning the Union following the union meeting on January 23 . However, since Hollender's remark that Presswood was going to be fired because of the Union was ostensibly jocular, and so regarded by Presswood at the time . I do not find an unfair labor practice in that declaration. Also unfair labor practices were Hollender's interrogation of employee Ridner concerning the Union, and Hollender's statement to Ridner that if the Union came in and work ran out in his departnient, Ridner would not be able to take another job in the plant, as was the practice , but would be laid off instead. If this were merely an isolated incident, the latter statement might be susceptible of a nonsinister interpretation-as Hollender insisted in his testimony that it was-but in the context of the other threats of reprisals made to employees in connection with the union activity, it is to be construed as a similar threat, and not as a mere objective prediction of consequences beyond the Respondent 's or Hollender's control. Interrogation of employees by an employer concerning union matters is not per se an unfair labor practice. It must be judged in the light of the totality of the em- ployer's conduct . Blue Flash Express Co., 109 NLRB 591; N. L. R. B. v. Armco Drainage & Metal Products, Inc., 220 F. 2d 573 (C. A. 6). However , as has been previously indicated , where the interrogation is related to evidence indicating that there may be reasonable apprehension of reprisals , the interrogation takes on an inherent threat . N. L. R. B . v. Columbus Marble Works, 233 F. 2d 406 (C. A. 5). Here the principal immediate supervisors of the affected employees all made threats of reprisal in employment if the employees should continue to engage in union activity. Against such a background , inquiries by the supervisors as to whether the employees were engaging in the activity, and the extent of it, could not help but be coercive , for a confession of participation would make one eligible for the repri- sal. Whether the threats were true, or to the knowledge of the supervisor adequately founded, is not of critical significance when the question is whether the declaration was coercive . Unless the prophecy is patently ungenuine or unreliable ( as in the case of the remark of Hollender to Presswood , previously referred to) the employee is as coerced by a supervisor's false or unfounded warning of discharge for union activities, as by a correct one. It is consequently found that the interrogation under the presented circumstances was coercive. It is found that by the conduct above found the Respondent , in violation of Section 8 (a) (1) of the Act , interfered with , restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act. Other litigated conduct of the Respondent not specifically found to be violative of the statute does not, in my judgment, constitute unfair labor practices. KECO INDUSTRIES, INC. 331 The Section (8) (a) (3) Allegations On January 26, 1956, 3 days after the union meeting, the Respondent laid off Matthew Heeger, and on January 27 it laid off Clarence Buck, Charles Carter, Carson Goff, Charles Presswood, Vernon Ridner, James Thomas, and Augustus Watson. These layoffs were without prior notice to employees, and were effective on the day they were announced.' All eight of the employees had attended the union meeting, and had signed cards designating the Union as their bargaining.representa- tive. The group included leaders in the union activity. The General Counsel con- tends that the employees were in fact discharged. The Respondent's Defense The Respondent's contention, and its testimony-principally that of President Adair and Plant Manager Hollender-is to the effect that the eight employees were not discharged but were laid off, and that the reason therefore was a nondiscrimina- tory reduction in force pursuant to business necessity and previous plan. The Respondent's evidence is that it has no policy of any kind with respect to unions. President Adair's testimony, in sum, is that in December 1955, the Respondent was approaching completion of two contracts known respectively as M-A-1 and F-6, and that in that month Production Manager Passauer and Plant Manager Hollender were instructed to begin reducing force after the first of the year, at the rate of about 10 percent of the complement per month until total employment was about 50 per- cent. At a dinner party for company officials and supervisors around Christmas- time President Adair said that completion of the M-A-1 contract would require a reduction in force. The Respondent's operations, as described by President Adair, are susceptible of "peaks and valleys," the peaks representing the periods of production of contracts, and the valleys representing periods between contracts and the period of engineering and development of models after the contract has been secured. This situation arises, according to the evidence, because of the unique character of the subjects of each contract. The gist of President Adair's testimony is that there are roughly three stages in the execution of a contract: (1) the development stage, primarily an engineering operation; (2) a preassembly stage in which, once a unit is approved for production, a substantial force is required for cutting of steel, parts fabrication and subassembling; and (3) the final assembly and shipping stage, requiring a lesser force. These divisions are, of course, approximations only, for as President Adair also testified, delivery requirements often necessitate fabrication and assembly on a day-to-day basis. In April 1955, President Adair's testimony continues, the Respondent had two major contracts, the M-A-1 and the F-6, which were substantially engineered and ready for production. The exhibits disclose that at that time the Respondent had about 50 shop employees. From then until late December 1955, the number of such employees steadily increased, month by month, until it reached a peak of 103 on December 31, 1955. Sometime in the fall of 1955 the hours of work were cut from 48 to 40 hours per week. After the first of the year 1956 the number of employees began to decrease, as the result of normal attrition. Thus, during the week ending January 7 there was a total of 96 shop employees on the payroll, on January 14 it was 94, on January 21, 93, and on January 28, 91. This reduction resulted solely from quits. After the layoff on January 26 and 27 (reflected in the payroll of the week ending February 4) shop employment stabilized for some weeks at 86, and in the month' of March attrited to 81. By early May, due to attrition, 2. disciplinary discharges in March, and 18 layoffs in April, employment was down to 58, and by June 28 to 51, which is about what it was at the time of hearing. During the period of these changes the value of unperformed contracts on hand was undergoing a corresponding diminution. Thus in April 1955, the value of such nonproduced contracts was $1,300,000. On December 31, 1955, the unper- formed dollar value was approximately $200,000. By April 1, 1956, this figure had declined to $75,000, and by late April or early May the M-A-1 and F-6 contracts were fully produced. As of that latter time the Respondent had two additional con- tracts, one secured in January 1956 and the other May 1, 1956, which were under- going development but were not yet in production. The above figures as to employment and the stated values of the contracts are not disputed by the General Counsel. Nor does there appear to be substantial ground to doubt the general accuracy of President Adair's• testimony concerning the Respondent's methods of operation, despite some skepticism manifested in the General Counsel's brief. Whether those methods were followed here is another matter, discussed later. There have been layoffs before in the Respondent's history, 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sometimes for substantial periods. At the time of the January 1956 layoffs the Respondent was moving into the Colerain Avenue plant and production was, to some extent, down, but only temporarily. On the basis of these facts the conclusion appears warranted that there was plausible operational ground for contraction of personnel sometime in 1956. I find no substantial evidentiary basis for concluding that the eight employees were discharged, as the General Counsel asserts. That finding, however, is not disposi- tive of the entire issue, for the layoff of employees because of union activities is as much an unfair labor practice as their discharge for such reason. And neither is my opinion that there was plausible operational ground for con- traction of personnel in 1956 necessarily dispositive of the case. Reductions in force are sometimes achieved by normal attrition. Moreover, even if legitimate ground existed for layoffs that does not establish that it was the substantial reason for them. If,, even though inevitable, the terminations were hastened by the progress of the union activity, or timed to coincide with significant developments in it, or influenced in any substantial degree by it, they would be unlawful. Inquiry into the circumstances and justification of the layoffs is consequently necessary. Apart from his general instruction in late 1955 to reduce the force by approxi- mately 50 percent by May 1956, President Adair's testimony does not indicate that he participated to any extent at all in the January layoffs, either as to time of or the manner in which they should be made, the number of employees to be laid off, or their identity. Thus he testified that he had "no particular knowledge" that a group would be laid off around January 27, nor who they were. In sum, the im- pression left by President Adair's testimony is that after the general instruction of late 1955, the matter was left entirely to the discretion of Hollender and Passauer (principally the former) and that he (Adair) was not consulted until April, when there were further layoffs. His testimony is that he first learned about the January layoff when he received notice that an unfair labor practice charge had been filed-February 8. As to the policy which the Respondent followed in layoffs, President Adair testified, in sum, that in general the Respondent follows a policy of seniority subject to considerations of competency .9 Plant Manager Hollender's testimony is that he and Production Manager Passauer selected the individuals to be laid off. Passauer did not testify. Hollender's testimony, in substance, is that with the exception of the cases of James Thomas and Matthew Heeger the selections were made on the basis of competency. Thomas and Heeger were chosen because of seniority; Watson was selected on both competency and seniority grounds. The actual reasons given by Hollender for selection in each case will be later discussed. But at this point it may be said that the evidence of the Respondent as to the need for and the timing of the layoffs, the places where they should be made, and the selection of individuals to be laid off, is not consistent, nor consonant with other known facts. Whether the Layoffs Were Consistent With the Respondent's Operational Situation In the first place the layoffs do not appear to be in harmony with the Respondent's description of its operational procedures and its production situation in January 1956. Thus the Respondent's assertions are to the effect that the unperformed operations on the contracts then in production were substantially assembly in character; that is to say, fabrication and subassembly were largely completed. At such a stage in production, the Respondent's testimony is, its operations are largely, though not exclusively, concentrated on final assembly. That, in fact, is one of the grounds urged in justification of the January layoffs months in advance of the completion of the contract obligations. But if such were the situation, one would expect to find fewer layoffs in the assembly department. The record, however, reveals the exact opposite. Of the 8 laid off in January 5 (Ridner, Buck, Carter, Watson, Presswood) were in the assembly department. The other three were respectively in refrigeration (Thomas), electrical (Goff), and sheetmetal (Heeger). P Thus, he testified : "I think that [policy] can probably be deduced from our present employment roster. The men who are on there now have uniformly been there a much longer time." And later: Q. If I understand you correctly now, what you are saying is that the records in evidence here should disclose that the people who were laid off were those with less seniority?-A. I think you will find that that is the case. Q. . . . then I would not be in error if I were to draw the conclusion, if I fol- lowed your record, that you followed the seniority in general?-A. That is correct. KECO INDUSTRIES, INC. 333 It is of doubtful plausibility that the Respondent would voluntarily reduce staff by the greatest percentage in precisely the department where, by its assertions, it should at that particular time have had the greatest need of employees. One of the Respondent's policies, as President Adair testified, was to maintain "our work force at a level consistent with our production requirements." Apropos of the likelihood of the presumed necessity of layoffs at the time and in the manner chosen, several other facts must be observed parenthetically: (1) After January 27, there were no further mass layoffs until April 6 and 13 when 14 employees were laid off in 2 days, but of these only 3 were in assembly, 1 in electrical, 4 in spot welding, and 1 in sheetmetal; none in refrigeration. It is thus seen that the layoffs in those categories were little more severe at that late date, when the contracts were virtually completed, than they had been in January, months before. For by April 30 these contracts had been completed. Moreover, both the Respondent's answer and its testimony suggest that the actual completion was a month in arrears of expectation or obligation. Thus, the answer states that the contracts were to be produced in an approximate 12-month period from March 31, 1955. President Adair's testimony is substan- tially to the same effect. But the practical result of the January action appears to have been to retard the completion of the contracts to no apparent purpose. This conclusion seems confirmed by the Respondent's answer and by President Adair's testimony. These are to the effect that as of December 31, 1955, the dollar value of production contracts on hand was $200,000; on April 1, 1956, it was $75,000; and by April 30, 1956, were fully produced. It is thus seen that in April the Respondent produced at the rate of $75,000 per month, but in January, February, and March at a rate only slightly in excess of $40,000 per month. There is no explanation for these facts, and no persuasive indication as to why it was apparently deemed preferable to delay completion of the contracts to April 30, when it might have been done much earlier, and within the 12-month time period. The results of the layoff thus do not seem reconcilable with a policy of maintaining a work force at a level consistent with production requirements or contractual commitments. (2) On the basis of the Respondent's rate of turnover as of the end of 1955 it is not apparent why, if a reduction in force was desired in January, it was thought that a layoff was necessary to achieve it. For in 1955 the Respondent's quit rate was averaging in excess of 10 percent per month. General Counsel's Exhibit No. 12, a summary of payroll information, discloses that between April 1 and December 31, 1955, a 9-month period, 98 persons quit the Respondent's employ. In 1955 the Respondent's weekly employment varied from a low of 50 in April to a high of 103 in late December, with an average employment of 81. If the quit figures are confined to electrical, assembly, sheetmetal, welding, refrigeration, and soldering, personnel losses were 78 in the period, an average of over 8 per month. It is thus seen that on the basis of the Respondent's experience record, normal turnover could have been expected to reduce employment 10 percent in January-which is what the Respondent supposedly desired. It is improbable that the Respondent was not aware of, and did not ordinarily operate by, its experience. Furthermore, during the period from January 1 to February 27, 1956, the Respondent actually lost by quits 3 electricians, 4 cleaners and janitors (Presswood had done such work for the Respondent), I sheetmetal man, 2 welders (Ridner was a welder), 3 assemblers, and 1 refrigeration man. Looking at the problem prospectively as of late December 1955, therefore, it is not evident why it should have been thought that layoffs would be required in order to reduce force in January. Whether the Force Was in Fact Reduced In the second place, the record discloses that no real reduction was achieved in the affected departments by reason of the layoff, for the Respondent promptly hired men to replace those who had been laid off, or transferred men-some junior in seniority-from' other jobs. Thus, in the assembly department there were 20 employees as of January 27. Five were laid off. Less than a week later, on February 1, the Respondent hired Robert Greenwald and Bennett Allen in assembly. On February 7 it rehired Vernon Ridner, and on February 19 it hired Stephen Boggs. At around the same time Foreman Dummitt of assembly also asked Plant Manager Hollender to rehire Clarence Buck, for the reason that he was under- staffed. Instead of recalling Buck, however, Hollender, without credible explana- tion, transferred Alden Mobley-who had been hired on January 12, 2 weeks before the layoff. Mobley was a cleaner who had no prior experience in assembly. That the layoff achieved only a temporary reduction in the assembly department is confirmed by-the testimony of Foreman Dummitt. Asked whether he "wound up 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with less people" after the layoff, Dummitt testified, "Well, right at the time but it wasn't long until we had about the same crew." to The electrical department was not reduced at all by reason of the layoff. Carson Goff was laid off on Friday, January 27. On Monday, January 30, the first regular workday thereafter, the Respondent rehired Ronald Sexton, who, it asserts now, had been on a leave of absence since August 27, 1955. Carson Goff's testimony is un- denied, however, that when Sexton left the Respondent's employment in 1955 he told his foreman Rinehardt that he was quitting his job. On February 3 Raymond Schoster, and on February 27 James Murphy, quit. On March 13 the Respondent hired George Lindsey. It is thus seen that the reduction eventually achieved in the department was by reason of quits, and not by reason of the layoff. In the refrigeration department employment increased after the layoff. Here General Counsel's Exhibit No. 12 shows six employees 11 on January 27, the day James Thomas was laid off. On the following day Charles Chilcote quit, leaving four in the department. The undenied testimony of Vernon Ridner is, however, that after his rehiring on February 7, the Respondent hired 3 new employees as silver solderers, leaving the refrigeration department with a net gain of 1 employee. In the sheetmetal department there was also a net increase in employment after January 27. There were seven employees in that department when Matthew Heeger was laid off (Howard Young, Fusco Young, Charles Glacking, Ed Hughes, Matthew Heeger, Arthur Steele, and Joseph Sargent). In the week after the layoff Chief Schaefer, needing additional help in the model shop, asked Production Manager Passauer to hire Heeger back. Instead, Passauer assigned to the job Charles Gay, a cleaner who had been hired only I1 days before the layoff.12 On February 17, 1956, Richard Stacy, a new employee, was hired in the sheetmetal department. Vernon Ridner's undenied testimony is that after his return to work two employees were transferred to the brakes on which Heeger had worked in the sheetmetal shop: Daniel Fairchild, and-'on March 16 when Ed Hughes quit-Edward Moneyham. Thus, even if the model shop is not considered to be a part of the sheetmetal de- partment (though its work is exclusively sheetmetal ) within 3 weeks after the layoff the sheetmetal department was back to its prior strength by the hiring of Stacy, and with the transfer of Fairchild had increased its complement to 8. It is thus seen that in each of the departments where employees were laid off, within several weeks the department had as many or more employees than before. Nor is this explainable as the result of transfers, for in the period between the layoffs and mid-March, while the total shop employment remained relatively con- stant (86 in the week of February 4; 86 in the week of March 17; and varying from 84 to 85 in the weeks between), the Respondent was losing 12 employees by quits. The difference it made up by hiring. Meanwhile the Respondent was not following its asserted projected policy of reducing force by about 10 percent each month until it reached the neighborhood of 55 percent-nor even permitting attrition to do it. In fact its rate of hirings during January 1956 does not indicate any such policy at all. For in that month the Respondent hired 10 employees. It is scarcely - conceivable that an organization planning a cutback of 10 percent within days would hire that many additional employees. In any event the months between January and April show no sub- stantial reduction in force. Between January 28 and April 2 there was 1 layoff- Ronald Coleman, a utility man. During that period total shop employment de- creased by quits and 2 disciplinary discharges from 86 in the week ending February 4 to 81 in the week ending April 7-as contrasted with the projected reduction in that period of 20 percent. There is no explanation for the failure to reduce force in February and March in accordance with the claimed policy. Indeed, the Re- 1° The suggestion is made that this resulted from the transfer of the night crew to days. It is seen from the above-stated facts, however, that the only transferred employee was the inexperienced Mobley. The other additions to the assembly crew were the result of hir- ings after January 27. 11 James Thomas, Harold Roberts, Robert \Vesterkamp, Charles Crouch, Charles Chilcote, and John Galloway. Galloway is described as a torch solderer, which is the same type of work that Thomas did. 12 Schaefer testified that Gay had worked for the Respondent before, but did not indi- eato when or in what capacity. General Counsel's Exhibit No. 12, however, gives his hiring date as January 16, 19511. The 1955 payroll does not contain his name . At one point in his testimony Schaefer said that he did not think that Heeger "would have cared for" the job that lie had in mind , a declaration scarcely reconcilable with his suggestion to Hollender that Heeger be rehired for the job. KECO INDUSTRIES, INC. 335 spondent's actions after January 27 indicate that it was affirmatively striving to maintain its force-not to reduce it. Other factors militate against the plausibility of the defense. In December 1955 James Thomas, then the senior employee in the refrigeration department in terms of the date of original employment, told his foreman, Sanford Silvey, that he was going to quit, saying that he expected to go to California. When Thomas ultimately left on December 31, 1955, Foreman Silvey told him that he would hold Thomas' job open for him for several weeks, saying "You will be back." Thomas responded, "1 probably will." Silvey proved a sound prophet. Thomas shortly changed his. mind about going to California. Within the next 2 weeks he telephoned Plant Manager Hollender from Rockwood, Tennessee, some 200 or more miles from Cincinnati, and asked for his job back, explaining that he had just got married. Hollender told him to report for work. On January 16 Thomas returned to Cincinnati and to his job. He worked for 10 days and then was laid off with the others. At no time did Hollender suggest to Thomas that the job was temporary or that a cutback was planned. Hollender's actions in this matter do not to me reflect those of a man intending or expecting to lay off 10 percent of his force within the next 2 weeks. Hollender testified that he decided upon the individuals to be laid off sometime between January 15 and 20; but that the decision as to the time of the January layoff had been made by him and Passauer a week prior to selecting the individuals. Indeed, according to Hollender, the decision to make the layoffs in January had been made even earlier; and the time of effecting them was delayed about 21/2 weeks because of complications connected with moving into the Colerain Avenue plant. If that were so, Hollender knew before he talked to Thomas that layoffs were imminent, probably had already made his selections, and was merely waiting for the moving difficulty to be straightened out before executing them. Thus, if the testimony of Hollender is accepted, when he rehired Thomas the January layoff, the number and substantial identity of the employees involved, and the time it would occur had already been decided upon: leading to the somewhat curious conclusion that it probably had been decided to terminate Thomas even before he reported for work. Following the layoffs three new employees were hired to solder-the kind of work that Thomas performed. There is no satisfactory explanation for the hiring of these employees or for the failure to recall Thomas for any of these jobs. Under the circumstances I cannot give credence to Hollender's testimony. Whether Seniority Was a Factor It has been seen that the Respondent asserts that it follows a seniority policy in layoffs. In addition, according to President Adair, the Respondent has a policy of transferring employees in order to avoid layoffs, turnover, and to take advantage of their experience. The January layoffs, however, do no reflect any such policies. In- deed an analysis of the situation in each department indicates quite the contrary. In the assembly department there were 20 employees at the time of the January layoff. If Ridner is included in this department (General Counsel's Exhibit No. 12 so carries him), 5 were laid off (Ridner, Buck, Presswood, Carter, and Watson). In the order of seniority, measured by date of original employment, these men were respectively 1, 3, 10, 15, and 18 in the department. If Ridner is classified as a welder (which he was according to Hollender) he was second in seniority among 11. In the electrical department there were 18 employees at the time of the January layoff. One-Carson Goff-was laid off. In seniority Goff was No. 5 in the department.13 In the sheetmetal department of 7 employees Matthew Heeger was No. 5 in seniority. In refrigeration of 5 employees James Thomas was No. 3 on the basis of accumu- lated service; No. I on the basis of date of original employment. A check of the Respondent's payroll information summarized in General Counsel's Exhibit No. 12 discloses, as I analyze it, a total of 41 shop employees in comparable categories who had less experience, service, and seniority with the Respondent than those laid off in January, but who were retained in preference to the latter. Some of those retained had been in the Respondent's employ as little as 10 days-scarcely long enough to have enabled the supervisors to have evaluated their performance, '- Donald Steinhaus, hired May 14, 1951, quit August 19, 1955, and rehired December 9, 1955, has been rated No. 1 in seniority in the electrical department, on the basis of ac- cumulated service and date of original employment, though he would have been No. 7 on the basis of date of most recent hiring. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD much less their potential. Nevertheless, they were preferred over their seniors. A reduction in force in which half of the employees retained are junior to those laid off is hardly one along the lines of seniority. I think it significant that in not one of the affected departments was the junior employee laid off. It is therefore apparent that the January layoffs followed no seniority policy. 11 The Asserted Grounds for Selection of Individuals Plant Manager Hollender testified as to the reasons for selection of the eight em- ployees laid off. His testimony is, in substance, that competency was the basis for selection, save where performance was equal-in which case he followed seniority. His testimony as to the basis for selection cannot be credited. Thomas: In the refrigeration department Hollender testified, he chose Thomas, even though Thomas' work was "pretty good," because Thomas was "the newest man." It has been noted, however, that, in terms of date of original employment Thomas was the first man in the department, and in terms of accumulated service he was No. 3. Only if Thomas' seniority is dated from the date of his most recent hiring (a practice which the Respondent's evidence does not indicate it followed with respect to any other employee), could it be asserted that Thomas was the "newest man." It is difficult to fathom why if competency was sound ground for ignoring length of service in other departments, it should not have been so considered in the refrigeration department. And it has already been seen that Silvey promised to hold Thomas' job open for several weeks. Hollender further testified that while Thomas was gone he had hired a replacement for him. General Counsel's Exhibit No. 12 shows no hiring in the refrigeration department during the period of Thomas' absence except Thomas himself. Under the circumstances the explanation that Thomas was let go, even though competent and of long service, because he was the "newest man," or because he had been replaced, is not credible. Ridner: Hollender's testimony is that he was at that time employed in the spot- welding department. The reason for this selection, according to Hollender, was that Ridner's work was "not as good as the other men that we had in this department, so I had to choose him as the one to go"; and especially because there were "men in that department with longer service than Mr. Ridner." However, contrary to Hol- lender's testimony, Ridner was the senior employee if classified as as assembler, senior employee if classified as a spot welder, and second in seniority if classified simply as a welder. Hired on August 12, 1952, he had never before been laid off, even in periods of low production. When he was let go in January 1956 there was not another employee in spot welding whose service preceded 1955. Five of the eight em- ployees in that category had been hired since October 1, 1955-1 in fact only 3 weeks before the layoff. The total service of all 5 amounted to 11 months, as contrasted with Ridner's almost 31/2 years. Yet all were preferred over Ridner. There is no claim that the quality of Ridner's work suddenly fell below his previous standard; nor persuasive explanation as to why, if he survived all previous reductions in force, he should have been caught in this one. As soon as he was laid off, Ridner began returning to the plant and asking for reemployment. After some 2 or 3 talks with Hollender, Ridner was rehired. As has been seen, Hollender, after rehiring Ridner, spoke to him about the Union, asking what Ridner thought about the Union and whether he had sent in a card. In addition, Hollender gave Ridner a not-too-oblique warning that the Union might cost him a chance to transfer if there was another layoff-a moral which was not likely to be lost on Ridner after his recent experience. Among the spot welders retained in January in preference to Ridner were Claude Fugate, Luciano Ciambelli, and Wayne Parker- all junior in service. It has been noted that an asserted reason for Ridner's layoff was that his work was not as good as that of the men retained. However, in April 1956 Fugate, Ciambelli, and Parker were laid off, but Ridner retained. There is no explanation for this reversal. It seems strange that in January Ridner was not con- sidered as competent a workman as any of this trio, but in April he apparently had become superior to all of them. The most persuasive conclusion to be drawn is that if the criteria for selection in January had been either seniority or competency Ridner would not have been laid off. In explaining Ridner's layoff Hollender also suggested that work had fallen off: "We were slack in that department and he was the one I picked." That statement is to be contrasted with his explanation for the rehiring of Thomas only 10. days before: "We were in full scale production on the 16th and I took him back in"; and his testimony that the reason he rehired Ridner on February 7 was that production "picked up a little bit." It does not seem reasonable that 8'employees were indefinitely laid off for a production hiatus of 2 weeks. KECO INDUSTRIES, INC. 337 Presswood: The reason given by Hollender for selecting Presswood for layoff was that he was "the least valuable," he "had to be led more than the rest," and he "wasn't really adapted to his work." Foreman Dummitt, however, recommended Presswood for a raise, and he was given it, presumably with the concurrence of the plant manager. It will also be noted that at the time of his layoff Presswood was working overtime doing janitorial work for the Respondent in addition to his regular duties on the assembly line. This job had been offered to Presswood by Earl Spaul- ding and Plant Manager Hollender because Presswood had a large family and a lot of illness in it, and Spaulding and Hollender thought that he "needed" the extra work. The need for janitorial services continued after Presswood's layoff. On January 12 the Respondent hired 1 cleaner, on January 16 it hired 2 more, and on February 20 a janitor. The Respondent's evident-and laudible-concern for Press- wood in early January cannot be reconciled with his abrupt layoff later in the month, while men junior to him were retained, and new employees hired to do his work. Heeger: Hollender's explanation for the selection of Heeger is demonstrably incorrect. Hollender's testimony is that Heeger was "the newest man in the de- partment, and so he was the one I decided should go . " General Counsel's Exhibit No. 12 discloses, however, that Heeger was fifth in seniority among seven in the department. The two employees junior to him were Arthur Steele, hired October 17, 1955, and Joseph Sargent, hired November 22, 1955. That this selec- tion was not the result of mistake as to seniority is evident from other facts: Thus, when Foreman Schaefer asked Hollender to rehire Heeger to fill a vacancy in the model shop Hollender transferred Charles Gay instead, even though Gay had been hired only 10 days before the layoff. If seniority had been Hollender's reason for Heeger's selection, he would scarcely have chosen a new employee in preference to rehiring Heeger, in view of the Respondent's normal policy of taking advantage of the experience of employees. It has already been seen that another new employee, Richard Stacy, was hired on February 17 and that two other employees were trans- ferred to the sheetmetal department to operate brakes-Heeger's job. Heeger's competence is not questioned. He received a raise in pay upon the recommenda- tion of Schaefer who also, as has been seen, asked that he be rehired. Goff: Hollender's testimony as to the selection of Goff was that Goff had gone "A. W. O. L.," that is, had left the Respondent's employment without notice in August or September 1955, and had been later rehired by the then Production Manager Johnston over the opposition of Hollender, who testified: "If it had been up to me he wouldn't have got his job back." Later evidence establishes that this testimony is erroneous. At the time that Hollender testified, General Counsel's Exhibit No. 12, a summary of payroll information supplied by the Respondent pursuant to subpena, showed Goff as having quit on September 10, rehired on October 12, quit again on October 13, and rehired on October 17. Hollender's testimony is consistent with that information. Goff, however, had previously unequivocally denied having gone "A. W. O. L." Prior to the introduction of General Counsel's Exhibit No. 12 Goff testified that he had received permission from his foreman, William Rinehardt, to be off for some time in September or October to enable him to go to Kentucky to handle some business matters in connection with his mother's death. Testifying without benefit of the records, his testimony was that he was gone "approximately a week." Goff flatly denied having quit then or later. When General Counsel's Exhibit No. 12 was subsequently introduced into evidence, it became apparent either that Goff's testimony was completely incredible, if not indeed knowingly false, or else the record was grossly in error. When Hollender testified, his testimony supported that of the summary. Following the close of the hearing, however, further check of the Respondent's original records, pursuant to agreement of counsel, elicited facts demonstrating apparent inadvertent error in General Counsel's Exhibit No. 12, and tending to establish the truth of Goff's testimony, and the untrust- worthiness of Hollender's. Thus the Respondent's original payroll records for Goff show that he was absent 1 full week-October 8 to 15-and part of the next. The records disclose him at work all other weeks of the year from July to December. There is no indication anywhere in these records that he had ever quit. Goff's further undenied testimony was that upon his return Production Manager Johnston had told him that he was entitled to a 10-cent-per-hour raise which Johnston had "forgot" to tell him about previously. The original payroll record shows a 10-cent raise for Goff in the week of October 1. It is thus seen that the original records corroborate the testimony of Goff, establish the error in General Counsel's Exhibit No. 12, and contradict the testimony of Hollender. The conclusion that must be drawn is that Hollender's testimony, 450553-58-vol. 118-23 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conforming as it does to the demonstrably erroneous documentary evidence, is not to be relied upon. In this connection I have also noted that Foreman Rinehardt was not called as a witness to refute Goff's testimony.14 There is other reason to question the legitimacy of Goff's layoff. General Counsel's Exhibit No. 12 shows that over a dozen employees quit the Respondent's employ in 1955 and 1956 and were rehired, some multiple times, without evident resentment by Hollender or prejudice to their status. Goff's layoff cannot be justi- fied either on the basis of competence or seniority. Seniority-wise he was No. 5 among 18 employees in his department. His competency is indicated by the fact that he received 3 wage increases between June 25 and October 1, 1955, the last increase being an award for having, with another employee, devised a new wiring system in the control boxes. On the evidence there is no discernible credible legiti- mate ground for the laying off of Goff. As has been seen after his termination Ronald Sexton was hired, although Sexton had told Rinehardt in August, when leaving, that he was quitting. In March 1951 George Lindsey was hired. Goff was not recalled for either vacancy. Watson: The ground assigned by Hollender in his testimony for Watson's selection was that Watson was "the newest man over there," "his work . . . was sloppy," and he "wasn't-up to his job." Watson was not, however, the "newest man" in the assembly department. He and Leo Trueworthy had been hired on the same day. Another assembler, Edward Ingram, hired on November 29, 1955, was junior in service. Both Trueworthy and Ingram were retained in preference to Watson. Both later quit: Trueworthy in February, Ingram in March. There is no corroboration from any of the foremen as to Watson's asserted deficiencies; indeed, no concrete specification. I regard Hollender's testimony in that respect as vague and unreliable. If Watson was "sloppy" and "not up to his job," I think that the Respondent would have discharged him long before; particularly when, as Hollender's testimony indicates, the Re- spondent's vendees have resident inspectors in the plant. Carter: Hollender's testimony is that Carter was chosen, despite his seniority, because his attendance record was spotty, and production was down at the time. It has already been noted that on January 16, according to Hollender, the Re- spondent was in "full scale production," and on February 7 production had "picked up." As a matter of fact, on February i Hollender hired Bennet Allen is assembly, Carter's department; on February 7 he rehired Ridner, and on the 9th he hired Stephen Boggs. If the production lull were as temporary as Hollender's testimony and these hirings suggest, no adequate reason is ascribed for not so informing the laid-off employees, and for not recalling them when production picked up again, instead of hiring replacements, as the Respondent did. Carter was also a welder. If so classified he would have been No. 4 in seniority in a list of 12. If Ridner is not considered among the welders Carter was third out of 11. There is no corroboration of Hollender's testimony as to Watson's attendance record, though such evidence was surely available if the testimony were true. Clarence Buck : Like Ridner, Buck was among the Respondent's senior employees. In fact, out of the 116 nonsupervisory employees listed in General Counsel's Exhibit No. 12 as employed during 1956, Buck was the ninth oldest in terms of original em- ployment. He was not employed by the Respondent during the period from Novem- ber 1953 to June 1955. Ridner was seventh oldest. Among assemblers Buck was, on the same basis, third among 20. Ridner was first. If only total service is con- sidered, Buck was fifth in seniority, Ridner first. Hollender's explanation for Buck's selection was "the same reason I laid the other ones off. I had to evaluate the men, the job they did, and the ones that we could use the least were the ones we laid off." I cannot tell whether this is an assertion that Buck was not as valuable an employee as those retained, or exactly how it is to be construed . There is no specific attack on Buck's competency. Indeed, in view of Dummitt's request that Hollender rehire him, there could scarcely be. The supposition is not persuasive that the Respondent considered it more efficient to put a new and inexperienced employee in Buck's place rather than rehire Buck, when it had a seniority policy, as well as a policy of transferring employees in order to avoid turnover and to take advantage of their experience. 141 have considered that fact that Goff, a young man, spent a period of several weeks in jail at some time prior to the hearing. I have weighed this matter along with the other circumstances , and have concluded that it does not overcome the evidence support- ing the above findings, or outweigh the objective evidence corroborating Goff's testimony. KECO INDUSTRIES, INC. 339 Conclusions as to the Section 8 (a) (3) Allegations As has been seen, the first union meeting was held on January 23, 1956. As the foregoing findings disclose, Plant Manager Hollender and Production Manager Passauer were aware of this meeting, questioned employee Coleman about it prior to its being held, passed by the Mahogany Bar twice during the course of the meeting, and saw a number of the approximately 30 to 40 employees there in attendance. Summaries of payroll information in evidence indicate that in the week of the union meeting the Respondent had about 116 employees, of whom about 86 would appear from their classifications to be in the category of nonsupervisory production and maintenance employees. Within 4 days after the union meeting 8 employees were laid off. The eight in- cludes a number of those most active in distributing union cards. All had attended the union meeting and had signed cards designating the Union to act as their collective-bargaining agent in dealing with the Respondent on their behalf. Matthew Heeger, one of the most active of the union group, was laid off on January 26; the others on the following day, January 27. All were told that it. was because of a reduction in force and work. There was no advance notice; the layoffs were effective immediately. As has also been seen, the layoffs were preceded by conduct by supervisors in the nature of interference and restraint and threats to employees concerning the union activity. Thus, Foreman Schaefer warned employees Heeger, Carter, Hughes, and Watson, in substance, that they could not continue in their employment with the Respondent if they evinced an interest in the Union, underscoring his observations with references to the cases of other employees who, he asserted, had been dis- charged for union activity. Schaefer also questioned employees about their union preferences. Foreman Silvey interrogated employees Carter, Hughes, Heeger, and Presswood about their participation in union activities, such as to whether they had signed cards or had gone to union meetings, or had union cards. He told Hughes that employees would be laid off because of their union activities, and on the day of the union meeting predicted that there would be a layoff of "union agitators." On January 26 Silvey told Heeger that the latter was going to be laid off that evening because of his union activities. On the following day, January 27, Silvey told Clarence Buck that more employees would be laid off if they "kept talking about the Union." When Buck, disquieted by that statement, asked his friend Foreman Dummitt about it, Dummitt told Buck that if he wanted to keep his job he should "keep [his] mouth shut about the Union." On the day after the union meeting Dum- mitt told employees Smith and Presswood that he did not believe that President Adair would "stand for a union," and would move the Company. Plant Manager Hollender questioned employee Coleman in the presence of Production Manager Passauer and Stephens on the afternoon of January 23 concerning the extent of Coleman's union activity and the impending union meeting, and indicated his interest in identifying who attended the meeting. After the meeting Hollender questioned employee Presswood about the Union. After rehiring Ridner in February 1956 Hollender questioned him as to what he thought about the Union and had done about it, and further told Ridner that with the advent of the Union Ridner would no longer be able to transfer to another job in the plant in the event of a work shortage, but would have to be laid off. Thus it is seen that every supervisor over these employees below the rank of President Adair participated in unfair labor practices, and save Passauer, warned employees that union activity would, and was going to, result in the loss of employ- ment or be met with other reprisal: In view of the widespread interrogation of employees, Hollender's and Passauer's passage by the location of the union meeting where they saw employees, the fact that each of the laid-off employees had signed a union-designation card and had attended the union meeting, and the unconcealed nature of the employee's union activity, it is concluded that the Respondent had knowledge as to which of them attended the union meeting and signed cards. More- over Foreman Dummitt told Clarence Buck after the layoffs that he judged Carter, Presswood, Heeger, and Hughes to be the union leaders. Some employees, such as Presswood, Heeger, Buck, and Carter, upon inquiry by supervisors indicated their union interest and activity; Goff, Heeger, and Buck passed out union cards among the employees. It is concluded that the Respondent was aware of the degree of union activity of each of the laid-off employees. Under circumstances such as here present, an em- ployer is chargeable with knowledge of union activities acquired by a supervisor, and the supervisor's statements are probative evidence of the motivation for the discharge of employees. Montgomery Ward & Co., 115 NLRB 645; Drico Industrial Corpo- 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ration, 115 NLRB 931. Disproportion in the percentage of layoffs as between union adherents and others, when accompanied by substantial supporting evidence, may be persuasive evidence of discrimination. Otis L. Broyhill Furniture Company, 94 NLRB 1452. ' Equally so may be inequality in rehiring as between union adherents and those not. N. L. R. B. v. Somerset Classics, Inc., etc., 193 F. 2d 613 (C. A. 2). Disproportion may also indicate knowledge of union activities of employees. Con- necticut Chemical Research Corporation, 98 NLRB 160. In fact, it has been held that the failure of an employer to offer proof concerning the percentage of its employees who were union members justified an inference of discrimination in the discharge of a disproportionate number of union adherents. N. L. R. B. v. Dinion Coil Co., Inc., 201 F. 2d 484 (C. A. 2); and see N. L. R. B. v. Shedd-Brown Mfg. Co., 213 F. 2d 163 (C. A. 7); Harold W. Baker Co., 71 NLRB 44, 59. Were it will be noted that approximately half the production and maintenance em- ployees did not attend the union meeting. Yet 100 percent of those whose were laid off had done so. How many production and maintenance employees had signed union-designation cards is not disclosed-but it was obviously not 100 percent. .Indeed, there is no evidence that the Union secured the designations of a majority of employees in any conceivable unit. Nevertheless, among those laid off, 100 per- cent had signed designation cards. The likelihood is remote that a selection of em- ployees on the basis of production needs would catch only those who had attended the union meeting, and only those who had signed union cards.15 However, an inference of discrimination should not be lightly, conclusively, or automatically drawn from the mere fact of disproportion. The possibility of coin- cidence is ever present. The disproportion should be considered as an item of, and not a substitute for, evidence. It has been so considered here. Here, when viewed against the record of union opposition, interference, inter- rogation, and threats of reprisal in employment by supervisors, and the timing of the layoffs with relation to the first union meeting, the fact that each of those laid off had attended the union meeting and had signed a union card, acquires significance. The whole congeries of fact establish a prima facie case of layoff for union reasons which, if not dispelled by explanation, would require a conclusion of discrimination. This is not to say that the Respondent is required to disprove that it committed unfair labor practices. It is under no such obligation. The burden of proof is, and remains always, on the General Counsel. Where, however, his evidence is, on its face, persuasive and convincing, a rational explanation is required to refute it. ,But, as we have seen, the Respondent's explanations are not only not plausible, they are contradicted by the evidence and inconsistent with the Respondent's own testimony. Thus, the January layoffs apparently retarded the completion of the Respondent's contractual commitments. They hindered production. They left some crews short handed. They did not result in a reduction of force. They did not follow seniority, they did not follow competency; though the Respondent nor- mally considers both. After the layoffs the Respondent hired new employees in categories which the discriminatees were qualified to fill. No discriminatees other than Ridner have been rehired, although they continued to request reemployment. Indeed, supervisory requests for the rehire of the discriminatees were ignored and new employees put in the places. None of the discriminatees was transferred, al- though the Respondent has a transfer policy to avoid layoffs, and used it in the case of other employees. In sum, in none of its aspects does the January layoff reflect the action to be expected under the circumstances, the action normally followed by the Respondent, or the course which, according to the Respondent's testimony, it actually did follow. The only persuasive conclusion that can be drawn from the whole record is that the layoff was decided upon because of the union activity and, as the supervisors' statements set out heretofore indicate, to discourage and checkmate it. In this respect the timing of the layoff and the identity of the individuals selected are signi- ficant. The layoff began 3 days after the first union meeting-the first indication of definite progress in the union effort after several months of organizing. It has been seen with what concern and unfavorable interest the Respondent's supervisors 15 Even if statistical comparison is confined to the groups in which the layoffs fell rather than-as seems more proper-production and maintenance employees, the disproportion is excessive. Thus General Counsel's Exhibit No. 12 shows, as of January 26, the following number of employees in the affected departments : 20 in assembly, 18 in electrical, 5 in refrigeration, 7 in sheetmetal, and 11 in welding-a total of 61. If 40 employees attended the union meeting, chance should have resulted in the layoff of some who did not. For authorities and it discussion of statistical improbabilities in this kind of situation see the Harold 1V. Baker Company case, 71 NLRB 44, 59. KECO INDUSTRIES, INC.. 341 regarded this meeting. Although only 30 to 40 of the approximately 86 employees then listed on the Respondent's payroll as nonsupervisory production and main- tenance employees attended the union meeting, all 8 of the employees laid off had done so. In addition the eight included most of those active in distributing union cards. In the existing factual circumstance, the likelihood that a chance selection of eight employees to layoff would result in picking only among those who had at- tended the union meeting and had signed union designation cards, and most of those who distributed union cards, becomes too remote for serious acceptance, and must be discarded.16 In view of the rather conclusive fact that the Respondent did not actually reduce its complement of employees in the affected departments by the January layoffs, and for the other reasons heretofore set out, it must be found that reduction in force for bona fide economic reasons was not the motivating cause for the layoff. As has been said, the timing and the selections indicate a purpose to checkmate the union activity. This is not to say that a layoff may not have been ultimately necessary. As has been seen, there was one in April when the M-A-1 contract was completed. But it is as much an unfair labor practice to hasten a layoff for the purpose of in- fluencing or forestalling union activity as it is to engage in any other form of dis- crimination. In either case employees are deprived of employment as a conse- quence of union activity (whether their own activity or that of others) resulting in the discouragement of membership in a labor organization. it is found that in the instant case the January layoffs were so motivated. I have not overlooked other considerations raised by the Respondent, considera- tions which, in factual contexts other than those here present, might be weighty, perhaps decisive; but which lose much of their significance in the pattern of substan- tial and weightier evidence indicating discrimination. Thus, Watson was hired even though he informed Chief Schaefer at the time that he was a member of a union. President Adair's testimony is that he once declined to discharge a newly hired em- ployee when he learned that the employee had gone on strike at another plant in the community. Neither of these incidents occurred at a time of significant union activity, nor do they indicate or pose a threat of successful union activity at the Respondent's own plant. At a foremen's meeting, sometime in February 1956, President Adair told the foremen that he did not think that the Union would hurt him, because he was practically paying union wages already. And at a dinner meeting in March he said that the matter of a union was "entirely a subject for the men's own choice." Assertions of such character lose much of their force when, as here, they come after the layoff and the filing of charges (the charge was filed on February 7). Equally not controlling is the fact, as testified to by President Adair, that the Company has never established any policy with respect to the employment of union labor; nor has President Adair ever issued any instructions to the plant or produc- tion managers concerning the employment of union labor. The failure of the Company or President Adair to formally establish or enunciate a policy in that respect does not overcome substantial evidence of unfair labor practices. Point is also made of the fact that none of the discriminatees were actually union members. All eight, however, had engaged in union activity, all had signed cards designating the Union as their bargaining representative. The complaint alleges discrimination against the eight because of their "membership in," "affiliation with, "sympathy for" and "activities on behalf of" the Union. It is found that the evidence substantiates all those allegations other than "membership in" the Union. It is consequently concluded that for the reasons indicated above, and in order to interfere with and checkmate the union activity, the Respondent laid off Matthew Heeger on January 26, 1956, and on January 27, 1956, laid off Clarence Buck, 36 The only other employee who, so far as the record discloses, engaged in any union activity, attended the union meeting, and was not laid off in January, was Edward Hughes, in the sheetmetal department, Hughes took over some of Chief Schaefer's duties in the Sheetmetal shop when Schaefer quit for a short period in mid-January. Hughes himself finally quit in Jlarch. The Respondent points to these facts as negating any con- elusion of discrimination against the eight. It does not follow, however, that because the Respondent did not terminate one partic- lar union adherent, or all such adherents, that the layoff was not motivated by the union activity. Nor does it tend to indicate that among the employees selected the degree of their activity was not a factor in their selection. When Schaefer left, the Respondent had to have someone responsible in charge in the sheetmetal department, and Hughes was that man. Hughes' retention is therefore more indicative of the necessity for main- taining operations than of anything else. 342 DECISIONS OF " NATIONAL LABOR RELATIONS BOARD Charles Carter, Carson Goff, Charles Presswood, Vernon Ridner, James Thomas, and Augustus Watson. It is further found that by these layoffs and by its failure and refusal to reinstate said employees, the Respondent discriminated in respect to hire and tenure of employment of employees, discouraged membership in the Union, and interfered with; restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom, and take certain affirmative and remedial action designed to effectuate the policies of the Act. It will be recommended that the Respondent offer Matthew Heeger, Clarence Buck, Charles Carter, Carson Goff, Charles Presswood, Vernon Ridner, James Thomas, and Augustus Watson immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights or privileges, and make them whole for any wage losses incurred as a result of the discrimination against them, in accordance with the Board's usual remedial policies. Whether the eight employees would be presently employed if the Respondent had followed nondiscriminatory reduction-in-force policies, and if not for how long they would have continued to be employed by the Respondent nondiscriminatorily, are questions to be determined at the compliance stage of proceedings-if the parties are unable to reach agreement thereon. See J. S. Brown, et al., 115 NLRB 594; cf. East Texas Steel Castings Company, Inc., 116 NLRB 1336. Provision is made for the reinstatement of Ridner because it is not clear whether his rehiring included restoration of all his rights and privileges. Upon the basis of the foregoing findings of fact, and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local No. 183, International Association of Sheet Metal Workers, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By discriminating in regard to the hire and tenure of employment of the em- ployees named above, and discouraging membership in a labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent did not engage in surveillance of the union meeting of January 23, 1956. [Recommendations omitted from publication.] Warehouse & Distribution Workers' Union Local 207 of the In- ternational Longshoremen's and Warehousemen's Union and Mitchell Pierce Waterway Terminals Corporation and Mitchell Pierce. Cases Nos. 15-CB-160 and 15-CA-882. June 26,1957 DECISION AND ORDER On October 8, 1956, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding finding that the 118 NLRB No. 52.