True Temper Corp.

TRUE TEMPER CORPORATION 839 True Temper Corporation and United Steelworkers of America,, AFL-CIO. Case No. 6-CA-1473. May 19, 1960 DECISION AND ORDER On December 9, 1959, Trial Examiner Arnold Ordman issued his. Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, counsel for the General Counsel filed exceptions to the Intermediate Report with a supporting brief, and the Respondent filed a brief in support of the Intermediate Report. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. [The Board dismissed the complaint.] CHAIRMAN LEEDOM and MEMBER FANNING took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding with all parties represented was heard before a Trial Examiner in Erie, Pennsylvania, on various dates from June 2 to September 16, 1959. The complaint of General Counsel, amended without objection at the hearing, alleges that Respondent , True Temper Corporation, had engaged in and was engaging in the violations of Section 8(a) (1), (3 ), and (5) of the National Labor Relations Act, as amended. More specifically, the amended complaint sets forth in substance that Respondent at its Union City, Pennsylvania, plant: (1) During the period between March and September 1958 interrogated its employees concerning union matters and requested employees to engage in sur- veillance of union activities; during the month of April 1958 announced and granted a wage increase to its employees to discourage their engaging in union or concerted activities ; and during May •1958 told an employee through its Foreman Millard King that the granting of two 10-cent per hour wage increases to its employees was because of the union activities of its employees. (2) Discharged six named employees on September 24, 1958, and refused to reinstate them because of their union membership and activities and because of their concerted activities for the purpose of collective bargaining and other mutual aid and protection , in order to discourage membership in the Union. (3) Refused and is refusing to bargain upon request with the Union which is the majority representative of Respondent's production and maintenance employees at the Union City plant. Respondent's answer denies that it engaged in any of the alleged unfair labor practices, admits that it terminated the employment of the six named employees on September 24, 1958, but asserts that these terminations resulted from a reduction in force necessitated by economic conditions. A motion - made by Respondent at; the , conclusion of General- Counsel's,case to dismiss the allegation of an unlawful refusal to bargain was denied. Following 127 NLRB No. .106. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the close of the hearing, General Counsel and counsel for Respondent filed briefs with the Trial Examiner which have been carefully considered. Upon the entire record and my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent is an Ohio corporation engaged in the manufacture, sale, and dis- tribution of tools, shovels, and other similar items. Respondent maintains its principal office in Cleveland, Ohio, and operates manufacturing plants in various States of the United States including a plant at Union City, Pennsylvania, which is directly involved in this proceeding. The parties stipulated, and I find, that Re- spondent is engaged in commerce within the meaning of the Act and is, subject to the jurisdiction of the National Labor Relations Board. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America , AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. General background Respondent purchased the Union City plant in November 1955. In the spring of 1957 Respondent closed down the plant for remodeling and enlarging and reopened it early in December 1957. Functionally, the Union City plant was one of several "captive handle" plants operated by Respondent. In other words, except for a small portion of scrap material, the entire product of the Union City plant, which manufactures wooden handles, was sent to other plants of Respondent for assembling into finished farm and garden tools.' The manufacturing process at the Union City plant begins with the purchase of ash logs which are scaled and cut into lengths for sawing. The logs are sawed into planks, then into squares, and then made into dowels. Thereafter the dowels are stored in kilns for drying, following which the dowels are graded for quality. Subject to production requirements, the dowels are then turned into handles which are subjected to further grading to determine their suitability for the different kinds and qualities of tools which Respondent manufactures. Until the middle of Septem- ber 1958 the Union City plant also worked on dowels which were purchased from outside mills. With respect to these dowels which were purchased in an undried ungraded state, the manufacturing was completed as already described. About a third of the total product at the Union City plant prior to the middle of September 1958 when the purchasing of dowels from outside mills was discontinued, came from that source. The general manager of the plant is S. A. Borer. The initial accumulation and preparation of logs for sawing in the Union City plant is done in the logyard which is under the supervision of Foreman William DeRemer. The sawing operations are performed under the supervision of Foreman Melvin Walton. Foreman Millard King is in charge of the grading work and the warehouse, including the drying kilns, and Ruel Franklin is foreman of the turning operations. Approximately 40 production maintenance employees were employed in these various operations throughout most of the period here involved. Organizational activities began among Respondent's employees at Union City in 1958. In January of that year the Union distributed leaflets at the plant gate. Apparently nothing further happened until April 1958 when at the instigation of employee James Reagle, an outspoken union adherent, an organizational meeting was held, attended by union representative and about a dozen employees. A number of union authorization cards were signed and union buttons were also handed out for distribution among the employees. Thereafter a number of union meetings were held in May and at less frequent occasions during the ensuing months. Several of these meetings were held in the American Legion hall at Union City. During this same period, employees were being individually solicited to sign union authori- zation cards and support the Union. A number of employees wore union buttons prominently displayed on their shirts while at work. On September 23, 1958, the Union sent a letter to Mr. Borer, plant manager of the Union City plant, advising him that a majority of the employees had signed 1 Most of Respondent's plants are unionized TRUE TEMPER CORPORATION 841 membership cards in the- Union and that they wanted the Union as their bargaining representative . Respondent received this letter on the following day, September 24. On that day Respondent terminated the employment of seven employees, six of whom were adherents of the Union . On September 25, the Union filed a repre- sentation petition with the Board requesting that it be certified as bargaining repre- sentative of the Union City employees . On September 26 the Union filed with the Board the first of a series of unfair labor practice charges which give rise to this proceeding. B. Findings and conclusions relating to interference , restraint, and coercion 1. Interrogation and requests for surveillance As already stated, the complaint alleges that during the period from March to September 1958 Respondent , particularly through its agents, Plant Manager Borer and Foreman DeRemer, interrogated its employees concerning union matters and requested its employees to engage in surveillance of the Union 's activities and to report back to management. As stated in General Counsel's brief to the Trial Examiner, these allegations deal with the alleged interrogation of employee Dewey by Foreman DeRemer and Plant Manager Borer and their alleged procurement of Dewey's services as an informer. According to Dewey, DeRemer in November 1957 recommended him for employ- ment as a truckdriver at the Union City plant. Dewey testified that DeRemer told him to be against the Union if that subject arose during the course of his employment interview with Borer. Dewey testified that the subject did arise and that he followed DeRemer's advice. He further testified that Borer in the course of this interview told him that Respondent wanted to operate without a union. Dewey began to work for Respondent on or about December 2, 1957. Shortly after his employment began, Dewey volunteered to Respondent's office manager, Goodell, that one of the employees , Carl McGee, was talking union to his fellow employees . According to Dewey, DeRemer approached him about a month later and purportedly pursuant to Borer's suggestion to recruit an informer, asked Dewey to perform that function and to report back to Respondent concerning union activities and the identity of the leading union adherents . Dewey testified that DeRemer in his presence also asked Richard Michaelson and Leroy Sexton to attend union meetings . Dewey further testified that starting right after this request was made and thereafter, he was frequently interrogated by DeRemer and Borer concerning union meetings and developments and concerning union adherents and that he furnished considerable information in that regard . According to Dewey, as late as the morning of September 24, 1958, the day on which Respondent discharged seven employees, six of them union adherents, he repeated to Borer in response to the latter's inquiry that Lynford Proper, Alex Michaelson , and James Reagle were the principal union advocates among the employees at the Union City plant. Borer and DeRemer denied generally having engaged in interrogation of em- ployees concerning union matters or having requested employees to engage in sur- veillance of union activities , and specifically denied having interrogated Dewey or having requested him to act as an informant. However, even apart from these denials, Dewey's testimony does not withstand scrutiny . Preliminarily, it should be noted that the original charge giving rise to this proceeding was filed and served on September 26, 1958 . Hence, under Section 10 (b) of the Act, incidents and conver- sations occurring more than 6 months prior to that date, i.e. March 26, cannot be deemed to constitute an unfair labor practice . Even assuming the accuracy of Dewey's testimony, therefore, DeRemer's referral of Dewey for employment, the employment interview with Borer, and DeRemer's solicitation of Dewey to act as an informer occurred before that date. Accordingly, the only probative evidence remaining for consideration is Dewey's testimony that he was interrogated thereafter on numerous occasions by DeRemer and Borer , up .to and including the morning of September 24, 1958 , as to union developments and the identity of union adherents. Even in this regard, however , the weight to be attached to Dewey's testimony is subject to question. Dewey testified that not only he but also Richard Michaelson and Leroy Sexton were asked by Respondent to attend union meetings . Richard Michaelson did not appear to testify , apparently without fault on the part of General Counsel , but General Counsel did introduce testimony from Leroy Sexton by way of deposition . The deposition of Sexton is silent, however, as to any request from Respondent that he, Michaelson , or Dewey attend union meetings. Moreover, if Dewey's testimony were accorded full credence, it would appear that Dewey, imme- diately upon his recruitment as an informer which , according to Dewey, occurred 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about a month after his employment began on or about December 2, 1959, started to make regular reports to DeRemer and Borer concerning the activities of the Union and the identity of the leading union protagonists. Yet the record clearly reveals that apart from the distribution of leaflets at the gates of the Union City plant early in January 1958, no union activity took place thereafter until April when the Union started to hold meetings and engaged in active organizational efforts. Dewey also testified in another connection that on the day after the September 24 dis- charges he worked with Foreman King at the plant whereas the record demonstrates conclusively that Foreman King was hospitalized throughout this period. Under all these circumstances , I find that Dewey's testimony is not entitled to full credence. I believe, however, that Dewey in fact gave information to officials of Respondent concerning union activities and the identity of union adherents. Dewey testified that he was wholly opposed to the Union and "on the company's side" until September 24, 1958, when the discharges occurred.2 Moreover, it affirmatively appears that right after he was employed, he volunteered the information to Goodell, apparently without inquiry on the latter's part, that McGee was talking union to his fellow employees. The nature of Dewey's duties as truckdriver gave him ample time to observe the activities of his fellow employees and to communicate with his foreman, DeRemer, and with Borer. I believe, therefore, that Dewey, guided by his initial antiunion sympathies, did convey information concerning the Union and the union attitudes of his fellow employees to management . However, on the basis of Dewey's testimony and the surrounding evidence, I am unable to conclude that the transmittal of such information arose from unlawful interrogation by Respondent 's officials or that Respondent sought to recruit Dewey as an informer . I find, therefore , that the preponderance of the evidence in the record does not support a finding that Respond- ent engaged in interrogation and surveillance as alleged in the complaint.3 2. The wage increase The complaint alleges that during the month of April 1958, Plant Manager Borer announced and granted a wage increase to its employees for the purpose of dis- couraging union activities . It is stipulated that on April 21, 1958, Plant Manager Borer assembled the employees at a meeting and announced a 10-cent per hour wage increase effective that day. At the same time he announced that the employees would receive an additional paid holiday which the employees could select, that there would be a 10-minute break or rest period each morning and afternoon , and that vending machine companies were being contacted to install vending machines in the plant. Borer also told the employees at this meeting that if production continued to improve, there would be an additional 10-cent per hour increase as of July 21, 1958. The additional 10-cent increase was granted on the date indicated . On April 23, in individual letters to the employees , Respondent pointed out, inter alia, that the April 21 raise was because of their improved work performance and that further improvement would result in further increases. Respondent, however, was admittedly aware at the time of the April 21 meeting that an organization campaign by the Steelworkers was in progress at the Union City plant. Accordingly, General Counsel argues that the wage increases were intended to frustrate that organizational campaign and in support thereof cites evidence that C. A. Austin, labor relations director for True Temper Corporation, came to the April 21 meeting, and that Respondent also granted fringe benefits, such as an additional paid holiday, rest periods, and made arrangements for the installa- tion of vending machines . General Counsel also points to the fact that in its April 23 2 Dewey testified , however, that he had signed a union authorization card during the summer of 1958. "There is considerable testimony in the record indicating that various officials of Re- spondent made statements to employees indicating their opposition to unionization. There is also testimony in the record that during the period when the Union was con- ducting meetings at the American Legion hall , Borer visited that hall and on one occa- sion made inquiries concerning union meetings and the identity of union adherents from John Lambros , manager of the American Legion hall Much of this testimony refers to incidents or conversations occurring prior to March 26, 1958, and much of it also falls within the protection of Section 8(c) of the Act Moreover, inasmuch as General Counsel in its brief . disclaims any reliance upon these matters as Section 8(a) (1) violations and relies on them only as evidence of Respondent's hostility to the Union , they are men- tioned only to the extent that they may be relevant to other issues in this proceeding See Crookston Times Printing Company, 125 NLRB 304 TRUE TEMPER CORPORATION 843 letters to its employees reminding them of the wage increases announced at the April 21 meeting Respondent emphasized that continued operation of the Union City plant, like the continued operation of Respondent's other plants, was dependent on the efficiency and cost of the operation.4 Respondent, on the other hand, adduced evidence to establish that the wage scale at the Union City plant when Respondent purchased that plant in 1955 was very low, and that its April and July increases were part of an overall plan, in effect long before organizational activities began, to bring the wage scale at Union City in line with comparable "captive handle" plants operated by Respondent as produc- tion and efficiency improved at the newly remodeled and enlarged Union City plant.5 Respondent likewise adduced testimony to establish that the granting of fringe benefits in the way of paid holidays, rest periods, and installation of vending machines was merely designed to, and had the effect of, equating the working conditions at the newly remodeled and enlarged Union City plant to the working conditions at plants of Respondent which had already been established for some time.6 Upon careful consideration of all the relevant evidence, I am satisfied and I find that the announcement and granting of the wage increases on April 21 and July 21 was an implementation of an overall wage program for the Union City plant which had been in effect long before the union activities began, and was not for the purpose of undermining the Union's organizational campaign. I find also the granting of the fringe benefits was attributable to Respondent's desire to bring the working condi- tions at the newly reopened Union City plant to a par with the working conditions at Respondent's other plants and to do so as quickly as the physical and operating conditions of the plant permitted Nevertheless, the fact remains that Respondent did make changes in wages and working conditions at a time when it knew an organizational campaign, however preliminary in nature,7 was in progress. The question to be determined, therefore, is whether such conduct constitutes, per se, a violation of Section 8 (a)( I) of the Act. The Board has frequently held to the contrary. For example, in Hudson Hosiery Company, 72 NLRB 1434, 1437, the Board said: It is fundamental that the Act precludes employers from utilizing their economic power in any manner for the purpose of discouraging their employees from becoming or remaining members of a labor organization, or of interfering with their selection of bargaining representatives. By this we do not mean that an employer is foreclosed from announcing or granting economic benefits during a union's organizational campaign or during the pendency of a Board- ordered election. What is unlawful under the Act is the employer's granting or announcing such benefits (although previously determined upon bona fide) for the purpose of causing the employees to accept or reject a representative for collective bargaining. [Emphasis in original.] The doctrine here enunciated serves the purpose of immunizing employees from economic coercion in their choice of a bargaining representative. At the same time, it avoids the otherwise paradoxical result of compelling employees to forfeit benefits which would otherwise accrue merely because they are seeking to exercise their statutory right to select a bargaining representative. A recent decision of the Board, however, might appear to cast doubt on the continuing validity of this doctrine. In American Freightways Co., Inc., 124 NLRB 146, the Board held that the unilateral change by the employer of wages and working 4 General Counsel disclaims any suggestion that the April 23 letter was independently violative of Section 8(a) (1) of the Act. 'General Counsel sought to adduce evidence that the wage rates at Respondent's Geneva plant, which was not a "captive handle" plant but had some similar jobs to the Union City plant, were even higher than those at the comparable plants which Respond- ent used as its standard In my view such evidence would not affect the resolution of the issues here presented 'About the time these changes were being made, Respondent also announced a change in the vacation policy applicable only to the Union City plant The usual requirements imposed by the Company as a precondition for vacations, such as duration of employ- ment, would have precluded vacations for any Union City plant employees in 1958 because of the fact that the plant had been closed down for remodeling and repairing. Respond- ent, therefore, relaxed the usual requirements to permit the granting of vacations at the Union City plant 7In September of 1958, when the Union made its bargaining request and filed a repre- sentation petition and an unfair labor practice charge, Respondent discontinued the granting of wage raises at Union City. 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conditions during the course of an organizational campaign was a violation of Section 8(a) (1) of the Act. In this connection the Board reversed the Trial Examiner who found no violation because the General Counsel "had failed to prove that the Respondent had been motivated by a desire to cause the employees to accept or reject a bargaining representative." The Board said: We do not agree with the test applied by the Trial Examiner. It is well settled that the test of interference, restraint, and coercion under Section 8 (a)( I) of the Act does not turn on the employer's motive or on whether the coercion succeeded or failed. The test is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act. Applying this test, we find that . . . the Respondent violated Section 8(a) (1) of the Act On its face this broad language would seem to overrule, at least sub sdentio, the rulings in cases like Hudson Hosiery. However, it is an elementary principle of Anglo-American jurisprudence that a judicial or quasi-judicial tribunal normally passes only on the case before it and, absent cogent indication to the contrary, the tribunal should not be taken as having laid down a broad new principle of law or as having overruled, sub silentio, a prior line of authority. I do not believe the Board has done so in the American Freightways case. It is significant, it seems to me, that in that case some of the changes made were unexplained departures from company policy not previously contemplated or in effect. Moreover, in that case the changes were announced a month and a half after a petition for representation was filed with the Board. Under these circumstances the Board could reasonably conclude as it did that Respondent's conduct necessarily tended to interfere with the free exercise of employee rights under the Act and that the employer's lack of an antiunion motive was immaterial Viewed from another perspective, the Board could conclude that under the circumstances of the American Frerghtways case, the employees there involved, on the basis of their knowledge, would be restrained in the exercise of their organizational rights. This is a far cry, it appears to me, from saying that under any set of facts and at any stage of an organizational campaign, "it may reasonably be said" that a change in wages or working conditions "tends to interfere with the free exercise of employee rights under the Act." American Freightways, supra. I do not read the cited case as so holding. In the instant case where the changes in wages and working conditions were made at the preliminary stages of an organizational cam- paign, where they were made pursuant to company policy and pattern which had been established before the organizational campaign started, where information concerning that policy and pattern was made available to the employees, and where there is no probative evidence that the changes were made "for the purpose of" coercing the employees in their choice of a bargaining representative, I perceive no basis for concluding that Respondent's action tended to interfere with the free exercise of employee rights under the Act. Accordingly, I find that Respondent did not, by granting the wage raises of April 21 and July 21, and by granting fringe benefits during that period, violate Section 8 (a) (1) of the Act. 3 Foreman King's statement to Lynford Proper Employee Lynford Proper testified that in May, shortly after Respondent granted the first 10-cent raise, he had a conversation with Foreman King. According to Proper, King said that he "thought" or "felt" that the raise was based on the fact that the Union was organizing. Foreman King specifically denied making such a statement I deem it unnecessary to resolve the credibility issue here posed for assuming that King made the statement attributed to him, such a statement, phrased at best in terms of a conjecture, would not in my view warrant a finding, urged by General Counsel, of interference, restraint, and coercion in violation of Section 8(a)(I) of the Act. C. Findings and conclusions relating to discrimination General Counsel alleged in his cotnplaint that Respondent on September 24, 1958, discharged and refused to reinstate six employees, James Reagle, Lynford Proper, Alex Michaelson, George Holland, Raymond Gilmore, and Melvin Allen, because of their membership and activities in the Union, because of their concerted activities for the purpose of collective bargaining and other mutual aid and protection, and in order to discourage membership in the Union. Respondent in its answer admitted that it terminated the employment of the six employees on September 24, 1958, but TRUE TEMPER CORPORATION 845 affirmatively alleged that the terminations "resulted from a reduction in forces necessitated by economic conditions of Respondent Company." 8 It is clear that the six above-named employees were adherents of the Union al- though the extent of their activities varied considerably. All of them signed authori- zation cards and all wore union buttons although Raymond Gilmore wore his but- ton only 1 day. James Reagle, Alex Michaelson, and Lynford Proper were quite active and outspoken in their support of the Union. George Holland, Melvin Allen, and Raymond Gilmore were less active and outspoken in that regard. However, the record in my view would support a finding that Respondent was aware of the union activities and sympathies of all six of these individuals .9 In addition to such direct knowledge as was available to Respondent, the small size of Respondent's plant and the small complement of its employees affords a further basis for in- ferring company knowledge as to the union activities and sympathies of its em- ployees. Bituminous Material & Supply Co., 124 NLRB 1007 and cases there cited. For the same reasons, I find that Respondent also knew of the union sympathies and activities of other employees in the plant who were more or less active in the organizational campaign but who were not discharged. However, it does not follow from the fact that Respondent was aware of the union activities and sympathies of the six employees here involved and the fact that they were subsequently discharged that the discharge was because of their union activities. Indeed, along with the discharge of these six, Respondent discharged a seventh employee, John Trojak, who was concededly not a union adherent. Critical here is the reason for the discharge. As to this issue the evidence is virtually undisputed that there was economic justification for a reduction in personnel at Union City at the time here in question. During 1958 Respondent because of excessive inventory and a gloomy sales forecast was making companywide readjustments in its operations. Thus, in May 1958 Respondent closed down all ash-sawing operations at its Bowling Green, Kentucky, plant. On September 15, 1958, Respondent closed down its St. Johnsbury, Ver- mont, plant, and during August and September of 1958 substantially reduced the working complement and working hours at its Saybrook, Ohio, plant. Concurrently with these measures, Respondent about the middle of September 1958 stopped the shipment into the Union City plant of dowels purchased from outside producers and in the same month reduced the workweek at Union City from 5 days to 3. As al- ready indicated, the stoppage of the outside dowel shipments reduced the output of the Union City plant by one-third and correspondingly diminished the need for employees particularly in the operations starting with the storing of dowels in the kilns for drying. Except for Alex Michaelson, all the employees discharged on September 24 worked in the adversely affected departments. Upon the foregoing ,evidence I find that there was economic justification for terminating employees in the Union City plant in September 1958. Such a finding would normally be dispositive of the issue posed herein. However, General Counsel in his brief to the Trial Examiner argues that "[c]onceding arguendo that some layoff may have been necessary, the disproportionate selection of union members discloses the real basis for such selection." While a dispropor- tionate selection of union adherents for discharge is significant in an otherwise ambiguous situation when the motive for discharge is in issue, I deem it of relatively little significance here where the selection was not made on a plantwide basis but was made almost entirely from small departments in which curtailment of operations was dictated Eby economic necessity.io General Counsel also makes much of the fact that the discharges took place ap- proximately 2 hours after Respondent received the Union's letter of September 23 requesting recognition and collective bargaining. Implicit in the argument is that this demand prompted Respondent to get rid of the leading union adherents forth- with. However, I find it difficult to believe that such action on the part of Respond- s In its brief to the Trial Examiner, Respondent urged also that a prerequisite for a finding of unlawful discrimination here is proof that the six employees were actually members of the Union, and that this prerequisite was not established. I deem it un- necessary to pass upon this issue inasmuch as the contention is patently based on an unduly truncated reading of the allegations of the complaint which refers not only to union membership but also to union and concerted activities D In this respect I discount to a considerable extent Plant Manager Borer's testimony that he attached no particular significance to the wearing of a union button as indicatile ,of the wearer's union sympathies "The record affords insufficient evidence to show the relative numbers of union or antiunion adherents in the affected departments. 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent including the selection of the employees to be dismissed , the preparation of termination slips, and other pertinent details could have been consummated within 2 hours. On the contrary , I credit the testimony proffered by Respondent that the selection of, and the arrangements for, the dismissal of the employees in question had been made earlier. General Counsel also seeks support for a finding of unlawful discrimination on a claim that Respondent has advanced inconsistent reasons for the termination. Thus, General Counsel argues, Respondent predicated the dismissals , on the one hand, on the ground of economic necessity for a reduction in force, and on the other, on a history of derelictions and inefficiency on the part of the particular employees. Gen- eral Counsel argues further that if the discharges were in fact due merely to the need for a reduction in force, the termination slips would not have contained the notation "not subject to recall ." Contrariwise, if the discharges were actually due to inefficiency or derelictions , the discharges would have taken place as the in- efficiency or derelictions occurred and there would have been no mass discharge. The alleged inconsistency is more apparent than real . As I have already found, the record amply substantiates the economic justification for a reduction in force. Under the circumstances it was quite natural for Respondent to evaluate the work performance of its various employees to determine which employees to retain and which to release . Nor is it unreasonable in my view that an employer confronted with the need for a reduction in force might deem shortcomings in performance adequate for discharge which he might not deem adequate for discharge if he were retaining a full working force. The reasons assigned by Respondent, set forth hereunder, should in my judgment be appraised from this point of view. In the case of Melvin Allen , the evidence establishes , and Allen himself admits, that he was unable to meet the qualifications of a grader and was transferred with his consent to a less taxing job at lower pay. In addition , Allen suffered from rheu- matic fever and a heart condition and was frequently absent from work on that ac- count.ll Similarly, George Holland acknowledged that he had had difficulty in breathing while working at a conveyor and had asked to be transferred back to an easier job . Lynford Proper, a grader , denied that his work had ever been criticized. On the other hand Foreman King credibly testified that he had told Proper on several occasions that the latter would have to improve his grading and get out more production . King also testified that he had discussed Proper's failings with Plant Manager Borer a few months prior to the discharge . Borer confirmed his testimony . The situation with James Reagle, also a grader, was like that of Proper. Reagle's testimony was equivocal as to whether his work had ever been criticized .12 However, Foreman King credibly testified that he had spoken to Reagle about the necessity of improving the quality and quantity of his grading, that his work had to be regraded on occasion by supervisory employees , and that he, King, had discussed Reagle's work performance with Plant Manager Borer. Raymond Gilmore was only a grader 's helper. Foreman King testified that he never complained to Borer about Gilmore's work . However, Borer credibly testified that he had personally observed that Gilmore was repeatedly absent from his work station visiting around with other employees at other jobs 13 The case of Alex Michaelson varies somewhat from the others . Michaelson worked in the sawing department which was only indirectly affected by the September changes in the Union City plant operations . However, this indirect effect was "There was conflicting evidence as to whether Respondent knew of Allen's ailments when it initially hired him. I do not think it necessary to resolve this conflict inasmuch as I believe the need for a reduction in force would justify consideration of Allen's ail- ments as a basis for dismissal even if such consideration might under other circumstances be suspect. 17 Reagle testified as follows Q Did he [ Mr Kingl ever criticize your work*' A You mean as a person's Q. I mean as a supervisor. A As a person , no, but I mean it was his job to find fault with our work and correct us if we got off base or anything in our grading 14 Foreman King was hospitalized about 10 days before the discharges and because of this circumstance Borer spent more time and had more opportunity to observe the em- ployees under King 's supervision . Part of the total picture here , moreover, is the fact that Gilmore , even on his own testimony , was among the least active of the union ad- herents and even that limited activity had virtually ceased several months before his discharge. TRUE TEMPER CORPORATION 847 sufficient to warrant dismissal of one of two swing employees in that department. These two employees were Roy Hayes and Alex Michaelson . Credible testimony proffered by Respondent's witnesses established that Hayes had more experience both with Respondent and with the previous owner of the Union City plant than did Michaelson , that Hayes was a more versatile operator , and that Michaelson did not keep pace with Hayes with whom he worked as a team on a ripsaw. There was also testimony that Michaelson would throw planks on the floor, walk away from his machine, and otherwise slow down production on the machine . 14 Michaelson was selected for discharge and his work was thereafter performed by Robert Merkle who was likewise a versatile employee, who had previously done the kind of work Michaelson was doing , and whose job as a gripturner was discontinued when produc- tion was cut back. On the basis of the foregoing, I conclude that Respondent made its selection for the September 24 reduction in force on the basis of nondiscriminatory considerations relating to comparative work performance and not on the basis of the union affiliation, sympathies, or activities of the employees involved. Whether Respondent's selections would be considered sound or unsound as a matter of business judgment is not germane here . The evidence establishes that a reduction in force was required, that among the employees fired on September 24 was one employee who was admittedly not a union adherent , that there was a wide variance in the degree of union activity among those selected for discharge , that many employees known to be union ad- herents were not discharged , and that in several instances , at least, the testimony of those selected for discharge tends to invalidate any claim that antiunion motivation on the part of Respondent entered into their selection . Under these circumstances I find that General Counsel had not sustained the burden of establishing by the pre- ponderance of the evidence that the discharges of September 24 were discriminatorily motivated in violation of Section 8(a)(3) and (1) of the Act . For the same reasons I attribute no significance to the fact that the termination slips indicated that the employees selected for the reduction in force were "not subject to recall." Respond- ent, having made its selections on the basis of its evaluation of comparative work performance and confronted with the possibility of continued operation with reduced personnel could well conclude , as the testimony proffered in its behalf indicates, that the released employees would not be competent or satisfied employees in the future, and that it would be better, if it should prove necessary , to fill their jobs, several of which were highly skilled operations, from existing personnel or newly hired per- sonnel who could be trained for such jobs. D. Findings and conclusions relating to the refusal to bargain The complaint alleges and the answer denies that on or about September 23, 1958, and at all times thereafter Respondent refused to bargain collectively with the Union in violation of Section 8 (a) (5) of the Act. C. A. Austin, Respondent's director of labor relations , admitted , and I find, that the production and maintenance employees of Respondent 's Union City plant con- stituted an appropriate unit for purposes of collective bargaining . The parties stip- ulated that during the period here relevant , the bargaining unit consisted of 41 employees . At the hearing Respondent introduced into evidence authorization cards signed by 23 of these 41 employees which read, in part, "I hereby request and accept membership in the UNITED STEELWORKERS OF AMERICA, and of my own free will hereby authorize the United Steelworkers of America , its agents or repre- sentatives, to act for me as a collective bargaining agency in all matters pertaining to rates of pay, wages , hours of employment, or other conditions of employ- ment .. ." 15 Respondent argues that inasmuch as 11 of these cards were undated and inasmuch as the signature of a twelfth employee, Robert Young ( see footnote 15), appeared only on the back of the card, the checkoff portion, these cards should be excluded from consideration and that the remainder of the cards do not establish the majority status of the Union at the time the Union made its bargaining request, i.e., September 23, 1958 . However, in each of the challenged instances, the testimony 14 Dlichaelson admitted throwing planks on the floor, explaining that he would do so if the cart in which the planks were to be deposited was full or if there were no cart there. 11 One of these twenty-three employees, Robert E. Young, did not sign the front of the union authorization card which contained the quoted language but signed the back of the card which was a checkoff authorization in favor of the Union. However, lie testified credibly that he had signed the card in August 1958 at a union meeting and that he in- tended thereby to become a member of the Union and designate the Union as his collective-bargaining agent. 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the individuals concerned or other adequate evidence establishes that the cards in dispute were signed by the employees concerned during the course of the organiza- tional campaign preceding the Union's request for recognition and collective bargain- ing.16 Accordingly, I find, as did the Board in Irving Taitel et al., d/b/a 1. Taitel & Son, a partnership, 119 NLRB 910, 919, footnotes 3 and 4, enfd. 261 F. 2d 1, 4 (C A. 7), cert. denied 359 U.S. 944, that the union authorization cards here chal- lenged are valid designations and that the Union represented a majority of the employees in the appropriate unit at the time the Union made its bargaining request.17 As already indicated, the Union made its request for collective bargaining by letter dated September 23, 1958. This letter was received by Respondent between 1 and 2 p.m. the following day, September 24. On the very next day, September 25, 1958, the Union filed a petition with the Board requesting that it be certified as bargaining representative of the Union City employees and on the following day filed unfair labor practice charges against Respondent. Respondent made no reply to the letter of September 23, 1958, and the Union for its part made no effort apart from the filing of the petition and the unfair labor practice charge herein to press its ,claim for recognition or to demonstrate to Respondent its majority status as bar- gaining representative of the employees in the appropriate unit. Labor Relations Director Austin testified that Respondent at the time of its receipt of the letter of September 23 had no evidence or knowledge as to whether the Union had "a true representative amount of the employees at our Union City plant." According to Austin, Respondent was in the process of discussing the union "letter with Plant Manager Borer when it was advised of the filing of the representa- tion petition and unfair labor practice charge. Accordingly, Respondent concluded xthat there was no necessity for answering the September 23 letter, "as any attempts at negotiations would be held in abeyance pending the decision regarding the unfair labor practice charge." Certain basic principles applicable here are too well settled to require citation of .authority. Neither the filing of a representation petition nor the filing of an unfair labor practice charge is a defense to a refusal to bargain where an employer does ,not entertain a good-faith doubt as to the Union's majority status in an appropriate bargaining unit. On the other hand, an employer is not guilty of an unlawful re- fusal to bargain where he does entertain such a good-faith doubt. Here, Respondent's ,testimony that it had no knowledge as to the Union's majority status stands unre- -futed and the Union made no effort, so far as Respondent was concerned, to document or establish its claim of such status until the hearing in the instant case. Inasmuch as .the Union filed its representation petition and unfair labor practice charge on the 2heels of its bargaining demand, Respondent could reasonably conclude that the representation question raised would be duly resolved by the Board and that an -answer to the Union's letter of September 23 was unnecessary. Indeed, General Counsel does not appear to argue the contrary. Its position is based rather on the view that Respondent did in practical effect answer the letter of September 23 and that its answer was the discriminatory discharge on the heels ,of the bargaining request of six union adherents, thereby dissipating the Union's majority. Had this been the situation, then a violation of the statutory bargaining obligation would be clearly established. General Counsel correctly argues that where an employer upon a refusal to bargain with a union which in fact has majority support thereafter engages in coercive tactics to dissipate the Union's majority, he violates Section 8(a)(5) of the Act and is properly subject to a bargaining order. However, as I have previously found, Respondent did not engage in such unlawful conduct here. The premise of General Counsel's case therefore falls. Accordingly, I find and conclude that Respondent entertained a good-faith doubt as to the Union's majority status, that it was entitled to await a Board resolution of -that disputed issue, and that it did not refuse to bargain with the Union within the meaning of Section 8(a)(5) of the Act. 1G Dewey',; designation of the Union as his bargaining representative in the summer of 1958 might he open to question in view of his testimony at the hearing that he'sas on the Company's side until September 24, 1955 In any event, however, even if his authoriza- tion were invalidated, a majority, 22 out of 41, would still exist 14 Respondent's reliance on d Nernian it Sons, Inc, 114 NLRB 629, and Jefferson Csty ,Cabinet Co, Case No 10-ItC-3600, 39 LRRM 1160, is misplaced. The Board in those cases was concerned merely with the failure of the parties concerned to meet an ardminis- t,ative reryuireuicnt imposed by the Board in representation cases that a petition for ,certification be accompanied by proof of interest in the form of dated authorization cards. THE WRIGHT LINE, INC. 849 CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not violated Section 8(a)(1) of the Act as alleged in the complaint. 4. Respondent has not violated Section 8 (a)(3) of the Act as alleged in the complaint. 5. Respondent has not violated Section 8 (a) (5) of the Act as alleged in the complaint. [Recommendations omitted from publication.] The Wright Line, Inc.' and United Steelworkers of America, AFL-CIO, Petitioner. Case No. 1-RC-5917. May 19, 1960 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Francis V. Paone, hearing officer. His rulings made at the hearing are free from prejudicial error and are affirmed? Upon the entire record, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act.' 2. The labor organization named below claims to represent certain employees of the Employer.4 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within Section 9 (c) (1) and Section 2(6) and (7) of the Act. 4. The following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within Section 9(b) of the Act: .All production and maintenance employees of the Employer at its 160 Gold Star Boulevard, Worcester, Massachusetts, plant, including i The name of the Employer appears as corrected at the hearing. 2 At the hearing, the hearing officer refused to permit the Employer to litigate the ques- tion whether or not the Petitioner had complied with the requirements of the Labor Management Reporting and Disclosure Act of 1959. He referred to the Board the Employer's motion to dismiss the petition on the ground that there is no showing that the Petitioner had so complied . We affirm the hearing officer's ruling and the motion is hereby denied . Neither the Labor-Management Reporting and Disclosure Act of 1959 nor the Labor Management Relations Act, as amended at the same time , requires compliance with any of the requirements of the former Act as a condition precedent to the filing of a petition. 3 As the Employer's out-of-State purchases and sales each are valued in excess of $50,000, the Board finds that it will effectuate the policies of the Act to assert jurisdiction herein. Siemens Mailing Service, 122 NLRB 81. 4 We find upon the record that the Petitioner is a labor organization within the mean- ing of the Act. 127 NLRB No. 104. 60940-61-vol. 127=55