Camco, Inc.

CAMCO, INCORPORATED 361 York metropolitan area on the premises at which the picketing, herein found to be unlawful, has or is being engaged in by .the Respondent Union. (c) Notify the said Regional Director, in writing, within 20 days from its receipt of this Recommended Order, what steps the Respondent Union has taken to comply therewith.7 It is further recommended .that, unless the Respondent notifies said Regional Direc- tor within 20 days that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director , in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 140 BEDDING, CURTAIN & DRAPERY WORKERS UNION, UNITED FURNITURE WORKERS OF AMERICA, AFL-CIO Pursuant to the recommended order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify you: that: WE WILL NOT, under any conditions prohibited by Section 8(b)(7) of .the Act, picket or cause to be picketed, or threaten to picket or cause to be picketed The Waterbury Mattress Company or Sealy Greater New York, Inc., where an object thereof is to force or require them to bargain with us concerning the hiring or reinstatement of their employees, unless and until we be currently certified as the representative of such employees under the provisions of Section 9 of the National Labor Relations Act. WE WILL NOT by picketing, threaten, coerce, or restrain Jacob Davis d/b/a Jerome Furniture Co., Ralph L. Winston, Inc., Seymour Studin and Abraham Studin, d/b/a Madison Quilt and Mattress Shop, Mancuse Furniture Corpora- tion, Fleischer Brothers Furniture Corporation, Abraham & Straus, Inc., Major Furniture, Inc., or other retail establishments engaged in commerce, as defined in the Act, within the New York metropolitan area, where an object thereof is to force or require such employers to cease using, selling, or otherwise dealing in products manufactured and distributed by The Waterbury Mattress Company and Sealy Greater New York, Inc., or to cease doing business with such persons, or forcing or requiring such employers .to bargain with us concerning .the hiring or reinstatement of their employees, unless and until we be currently certified as the representative of such employees under the provisions of Section 9 of the National Labor Relations Act. LOCAL 140, BEDDING, CURTAIN & DRAPERY WORKERS UNION, UNITED FURNITURE WORKERS OF AMERICA, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 745 Fifth Avenue, New York 22, New York, Telephone No. Plaza .1-5500, if they have any question concerning this notice or compliance with its provisions. Camco, Incorporated and District Lodge No. 37, International Association of Machinists, AFL-CIO. Case No. 23-CA-1393. December 28, 1962 DECISION AND ORDER On August 9, 1962, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that 140 NLRB No. 27. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent had engaged in certain "technical violations" of the National Labor Relations Act, but that it had not engaged in other unfair labor practices as alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the Art, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and brief, and the entire record in the case, and finds merit in the exceptions of the General Counsel. We there- fore adopt the findings and conclusions of the Trial Examiner only to the extent that they are consistent herewith. 1. The complaint alleged that between February 9 and 16, 1962,1 the Respondent, by interrogating employees about their union activi- ties and by threatening employees that they would be discharged if they engaged in union activities, violated Section 8 (a) (1) of the Act. The Trial Examiner, while concluding that the Respondent made certain statements to employees which constituted "technical violations" of the Act, found that these violations did not warrant the issuance of a cease-and-desist order. We do not agree that a remedial order is not warranted under the circumstances of this case. As found by the Trial Examiner, on seven different occasions in a period of 3 days between February 13 and 15, Respondent's super- visors interrogated employees concerning their union activities. Thus, on February 15, Shop Superintendent Walter Theek asked employee Locke if he had attended the union meeting and mentioned the benefits that the Respondent had given the employees; on February 13, Foreman J. C. Cook asked Locke whether he had heard rumors "going around" about a union and he also told Locke "to keep his feet on the ground" and that it would be to Locke's benefit if he "stayed out of it"; and during this same period, Foreman Arthur O'Pry on separate occasions asked employees McCall, Clepper, Cox, Yeager, and Williams whether they had attended the union meeting. We find that by this extensive campaign of interrogation, coupled with promises of benefit and implied threats, the Respondent re- strained and coerced employees in violation of Section 8(a) (1) of the Act,' and that this coercive conduct warrants the issuance of a remedial order.' 1 Unless otherwise specified, all dates are in 1962 2 We deem it unnecessary to consider other conduct also alleged as violations of Sec- tion 8(a) (1) of the Act as any findings thereon would not affect the scope of the Order herein. s Alamo Linen Service, 136 NLRB 1127. CAMCO, INCORPORATED 363 2. The complaint further alleges that by discharging 11 employees between February 13 and 16 because they had joined or assisted the Union, the Respondent violated Section 8(a) (3) and (1) of the Act. The Trial Examiner found that the General Counsel failed to sus- tain his burden of proof and recommended dismissal of these allega- tions of the complaint. In the early part of February, the Respondent had approximately 120 production and maintenance employees at its Houston, Texas, plant. Approximately 95 of these employees worked in the machine shop and tooling departments.' Of these 95 machine shop and tool em- ployees, 16 attended a union organizing meeting on February 10. On February 13, 1 employee 5 was terminated 6 by the Respondent and, on February 16, 10 more employees' were terminated. No other production and maintenance employees were terminated by the Re- spondent during February,8 and all of the 11 terminated employees had attended the union meeting. The Trial Examiner found that the 10 employees terminated on February 16 were selected for discharge on a nondiscriminatory basis, as part of a reduction in force made necessary by a decline in the Re- spondent's business; that the 11th employee, McMen, Was discharged on February 13 because the Respondent was not satisfied with his work; that Irby, one of the employees laid off in the reduction in force, was terminated for the additional reason that there was a threatened garnishment against his wages; and that McCall, who Was also one of the employees selected for termination in the reduction in force, had quit his job before he was laid off. We disagree with the Trial Examiner and find that by terminating these 11 employees the Respondent violated Section 8 (a) (3) and (1) of the Act. In making this finding we shall assume, as the Trial Ex- aminer found, that there was in fact an economic justification for the Respondent's reducing its employee complement during February.' However, we are convinced that the particular employees who were terminated by the Respondent were selected for termination not be- 4 These employment figures are taken from a listing of maintenance and production employees prepared by the Respondent and admitted into evidence at the hearing. John McMen. e As the Respondent does not normally rehire employees who are laid off or terminated, such layoff or termination is equivalent to discharge. 7 William J. Locke, Jr., Harold C. Carrier , Dwain M. Irby, James L. Ledbetter, John W. Hughes, Robert S. Barnett, William M . Bownds, Jimmy Lynn Cox ( name corrected at the hearing ), Delbert G . Clepper, and Jeffrey L. McCall. 8 The Trial Examiner found that 15 employees were laid off in February . However, the record establishes that only 11 employees were terminated by the Respondent and that, in addition to these 11 terminations , 4 employees quit during February and 2 others went on leave of absence. 8 We note, however , that the record is not entirely clear as to whether in fact there was any economic basis for these terminations . Thus, two of the Respondent's employees terminated on February 16 had been working on the Respondent ' s automatic screw ma- chines, apparently doing the same type of work as that which was subcontracted out at approximately the same time. In addition , within 2 or 3 weeks after the February 16 terminations , the Respondent began to replace the terminated employees 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause of lawful considerations, but rather because of their union activity. In the first place, the record establishes, and we find, that the Re- spondent at the time of the discharges knew which of its employees had engaged in union activities. Foreman O'Pry, one of the Respond- ent's supervisors, admitted that he knew that a union meeting was go- ing to take place on February 10. We have also found that, just prior to the February 16 terminations, the Respondent had engaged in an extensive campaign of unlawfully interrogating employees as to whether they had attended the union meeting. In view of these facts, there is ample reason to infer that the Respondent had, as of that time, learned which of its employees had attended the meeting.1° We also regard as significant in this connection the timing of the discharge so soon after the union meeting. Thus, as noted, Foreman O'Pry ad- mitted that on February 9 he had heard of the union meeting scheduled for the next day. On February 10, 16 employees attended this meeting. On February 13, McMen, one of the leaders in the organizing attempt, was discharged, and, on the same day, the Respondent's supervisors began a 3-day campaign of interrogating employees about the union meeting. On February 16, 10 more of the employees who were at the union meeting, and no others, were terminated. The timing of the terminations of those who had attended the union meeting, so soon after that meeting and immediately after the Respondent had ascer- tained which employees had attended the meeting, is in itself persua- sive evidence that the terminations were related to the union activities of the employees. Finally, the Respondent has clearly manifested its hostility to the union organization. This animus is established by the Respondent's above-described unlawful interrogation of employees, which included explicit statements by the Respondent that employees would "benefit" if they rejected the Union and the suggestion that employees would suffer if they joined the Union." The foregoing facts establish, in our opinion, a strong prima facie case of discriminatory selection. The Respondent's defense, which the Trial Examiner accepted, is essentially that the 10 employees dis- charged on February 16 were selected for discharge on February 8, before the Union activity began, and hence the discharges could not have been based on the union activity of its employees.12 According to 10 In this connection, it is significant, we think, that of the six employees admittedly interrogated by the Respondent, five had attended the union meeting This fact is per- suasive evidence that at the time of the interrogation the Respondent was already in possession of information regarding the union meeting and that it selected for questioning those employees who it had reason to believe had attended the meeting. ' Thus, Foreman Cook admitted that on February 13 he told employee Locke that it would be to his "benefit" for Locke to stay out of the Union and that he should "keep his feet on the ground." 12 The Respondent's additional defenses as to employees MeMen, Irby, and McCall are treated separately below. CAMCO, INCORPORATED 365 the Respondent, its business declined substantially during the latter part of 1961; and this resulted in the reduction of the number of em- ployees in the manufacturing departments during January 1962 by Tightly less than 15 percent, including retirements, resignations, and terminations. When business did not pick up in January, Respondent claims that it decided further to reduce its working force by 12 to 14 employees during February; that pursuant to this decision, on Febru- ary 2, Shop Superintendent Theek was instructed to give Vice Presi- dent Albert A. Hughes the names of employees selected for termina- tion; and that, on February 8, 2 days before the union meeting, Theek submitted a list with the names of the 10 employees to Hughes. Ac- cording to the Respondent's testimony, which the Trial Examiner credited, these 10 employees are the same 10 employees who were terminated on February 16. Unlike the Trial Examiner, we are unable to accept this explanation for the February terminations. As noted, the Respondent employs 95 employees in its machine and tooling departments; 16 of these employees attended a union meeting; and, of these, 11 employees, all of whom had attended the union meeting, were terminated during February. The Respondent contends in effect that it was by chance that all the terminated employees attended the February 10 meeting. While it may be theoretically possible that the Respondent should have fortuitously selected for termination only those employees active in the Union, commonsense and the laws of mathematical probability indicate that such fortuity was highly improbable.13 In addition to the mathematical improbabilities involved in the Respondent's argument that it selected these employees for discharge without refer- ence to their union activity, the Respondent's explanation as to why these particular employees were selected as part of the reduction in force is unpersuasive. Foreman O'Pry testified that he selected four employees for termination because he "had some trouble with them, keeping them working" and because he "couldn't handle these people as well as I could some of the others." Foreman Cook explained that lie selected four other employees for discharge because "they were away from the machine a lot" and because they did "too much walking around the shop." No explanation was offered for the selection of two other employees terminated February 16. Further, we note that the Respondent's explanation for the February 16 terminations leaves unexplained certain significant differences between the timing of its January reduction in force and the reduction in force that took place 13 On the basis of pure chance and eliminating all other factors , the probability of select- ing for termination , among 95 employees of whom 16 were union adherents , 11 union adherents and no others, computed on the basis of the applicable formula, would be 1 chance out of 17 9 billion. Uspensky, Introduction to Mathematical Probability ('McGraw-Hill, 1937), ch 1, cited in Syracuse Tank & Manufacturing Company, Inc, 133 NLRB 513, 525. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in February. Thus, when in January the Respondent determined to lay off employees for economic reasons, all but 2 of the 12 employees affected were terminated by January 5. However, in February, despite the fact that according to the Respondent the decision to terminate employees was made on February 2, and the names were selected by February 8, the terminations were not made until Feb- ruary 16. The Respondent offered no explanation why, in February, it took over a week to terminate the employees once they had been selected for termination and, also, why it took 16 days in February to effectuate terminations which in January were essentially com- pleted in 5 days. This discrepancy we believe is a further indication that the Respondent selected the particular employees to be terminated in February only after it learned which employees attended the union meeting on February 10. Where, as here, there is a showing of such great mathematical im- probability, and there is added independent evidence of employer hostility to union organization and of contemporaneous unlawful conduct designed to frustrate union organization, and particularly where, also as here, the terminations appear closely related in point of timing to a critical stage of union organization, and the explana- tions are unpersuasive and do Dot withstand independent scrutiny, these circumstances combine to provide very persuasive evidence of a discriminatory motive." As we have indicated, the Trial Examiner credited the testimony of the Respondent's witnesses that the Respondent had selected 10 employees for discharge on February 8, before it had learned of their union activity. However, we have already found that the record establishes that these employees were selected for discharge because they had attended the union meeting. In view of the foregoing, we find that the Trial Examiner's credibility resolutions are contrary to a clear preponderance of the relevant evidence and we shall therefore overrule them.15 We shall now turn to the Respondent's contentions that employees McMen and Irby were discharged for cause.l5 14 Syracuse Tank & Manufacturing Company, Inc., supra, and cases cited therein 15 Salant & Salant, Incorporated, 92 NLRB 417, 424; N L R B v. Pyne Moulding Corpo- ration, 226 F. 2d 818 ( CA 2), enfg 110 NLRB 1700; Standard Dry Wall Products, Inc., 91 NLRB 544 , 545, enfd . 188 F. 2d 362 (CA. 3). 19 The Respondent also contended , and the Trial Examiner found, that McCall, 1 of the 10 employees selected for discharge on February 8, had not been terminated by the Re- spondent but had quit his job While it is undisputed that, on February 15, McCall had applied for work at another plant and had indicated that lie was available to begin on February 19, McCall testified without contradiction that when he went to Respondent's office to get his final paycheck , he was told by Hughes that he was being laid off for eco- nomic reasons Although O'Pry testified that Mrs McCall called him on February 16 and told him that her husband had found a new job, both McCall and his wife denied that Mrs. McCall made this statement, and vice President Hughes admitted that , as late as April 6, the Respondent understood that McCall had been terminated and it was only CAMCO, INCORPORATED 367 The Respondent contended, and the Trial Examiner found, that the Respondent discharged employee McMen on February 13 because Vice President Hughes was dissatisfied with his work. We disagree. The Trial Examiner relied on Vice President Hughes' testimony that lie was responsible for McMen's discharge; that he had become dis- satisfied with the operation of the tool crib, where McMen worked, because of the too frequent reorders of expendable tools, and decided to "clean house"; 17 and that Hughes had heard complaints from foremen and had overheard employees complain about having to wait at McMen's tool crib window for tools and having received wrong tools. However, Hughes admitted that at no time did he complain to McMen about his work and, while Hughes testified that he mentioned his dissatisfaction with McMen to Logan, McMen's foreman,18 McMen's uncontradicted testimony was that neither Logan nor any other supervisor or employee complained to him about his operation of the tool crib. Moreover, the record shows that McMen was a leader in the union organizing campaign; that about the first of February, Logan told him that he had done a good job and that he had recommended him for a 20-cent raise; and that after Morgan went on a leave of absence, on February 9, Logan transferred McMen to the first shift at the tool crib which entailed added responsibilities, such as ordering of tools and the training of a new man for the crib. Under these circumstances, and in view of our findings, supra, of dis- criminatory selection, we are convinced that Hughes' dissatisfaction with McMen's work was a pretext and that McMen was discharged for union activity. The Respondent contended further, and the Trial Examiner found, that employee Irby, who was 1 of the 10 employees allegedly se- lected by the Respondent for termination on February 8, was dis- charged for cause on February 16 for the additional reason that there had been a threatened garnishment against his wages. We do not agree. As found by the Trial Examiner, the respondent had promul- gated a rule that employees who were subjected to garnishment were subject to immediate dismissal and that the Respondent had been notified by a local store that Irby was past due $68 on a credit account and garnishment was threatened. However, the Respondent received information of Irby's possible garnishment on the morning of February 14 and yet Vice President Hughes took no action to subsequently that it learned about his February 15 application for a new job In view of these facts, we find that McCall had not quit the Respondent 's employ prior to his termination on February 16. 11 The record shows that there were two employees in charge of the tool crib Morgan on the first shift and McMen on the second. Although Hughes admitted that he con- sidered both tool crib attendants responsible for the alleged faulty operations, so far as appears from the record , Morgan was not discharged. 11 Logan did not testify at the hearing. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge Irby until February 16,19 on the same day that nine other employees were unlawfully terminated for discriminatory reasons. Further, although the Respondent testified that it had enforced this rule, there is no evidence that this rule had been strictly applied in the past in all situations, such as this, where the Respondent had merely received a notification that an employee's wages might be garnisheed sometime in the future.20 Under these circumstances, and in view of our earlier finding that all 11 employees named in the complaint, including Irby, were selected for termination because of their union activity, we find, unlike the Trial Examiner, that the additional reason advanced by the Respondent for Irby's discharge was merely a pretext and that Irby was terminated for discriminatory reasons. In view of the foregoing, and on the record as a whole, we find that the Respondent discriminatorily discharged 11 employees on February 13 and 16, in violation of Section 8 (a) (3) and (1) of the Act. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in con- nection with the operations of Cameo, Incorporated, as set forth in section I of the Intermediate Report, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action in order to effectuate the policies of the Act. We have found that the Respondent discriminatorily selected 11 employees for termination in February 1962. However, as noted above, it appears from the record that the Respondent may have been economically justified in terminating some of its employees during February. While it is possible that some of the discriminatorily terminated employees might have been affected by such nondiscrimina- tory reduction of personnel, the record furnishes no basis for determin- ing the order in which they might have been terminated. Under these circumstances, we shall order the Respondent to offer, to the 16 While Hughes testified that he did not see the warning letter until February 16, it was stamped as being received at the Respondent 's office at 10:15 a m. on February 14. 21 In this connection , we note that the Respondent had a fund from which employees could borrow money, ostensibly for this type of emergency . There is no indication that the Respondent offered Irby any financial assistance from the fund , nor is there any evi- dence that Irby's wages had ever been garnisheed or had been subjected to garnishment before. CAMCO, INCORPORATED 369 hereafter named employees who were unlawfully terminated in Febru- ary and who have not been recalled for employment, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and, in the event that there is insufficient work for all such employees, to dismiss, if necessary, all persons who were newly hired after the discriminatory terminations in February. If there is not then sufficient work for the remaining employees and those to be offered reinstate- ment, all available positions shall be distributed among them without discrimination against any employee because of concerted activities, in accordance with a system of seniority or other nondiscriminatory basis. The Respondent shall place those employees, if any, for whom no employment is available after such distribution on a preferential list, with priority in accordance with a system of seniority or other nondiscriminatory basis, and thereafter offer them reinstatement as such employment becomes available and before other persons are hired for such work : John McMen Robert S. Barnett William J. Locke, Jr. William M. Bownds Dwain M. Irby Delbert G. Clepper James L. Ledbetter Jeffrey L. McCall John W. Hughes Harold C. Carrier Jimmy Lynn Cox We shall also order the Respondent to make whole the above-named employees, against whom it has discriminated, for any losses they may have suffered because of the Respondent's discrimination, by payment to each of them of a sum of money equal to the amount that he nor- inally would have earned as wages from the date of such discrimination to the date of the offer of reinstatement, or placement on a preferential list, as the case may be, less his net earnings during said period, the backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294, and shall include the payment of interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Pbumbing di Heating Co., 138 NLRB 716.21 As it is possible, however, that one or more of these employees might have been discharged in a reduction of the work force even if the Respondent had selected employees for discharge on a nondiscrimina- tory basis, this possibility will be taken into consideration in determin- ing the amounts of backpay due to these employees in compliance with our Order herein. In view of the nature of the unfair labor practices committed, the commission by the Respondent of similar and other unfair labor ' Member Leedom dissents from the inclusion of interest on the baekpay obligation for the reasons stated in the dissent in the Isis Plumbing case. 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices may be anticipated. We shall therefore order that the Re- spondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. CONCLUSIONS OF LAW 1. Cameo, Incorporated, the Respondent herein, is an employer within the meaning of Section 2 (2) of the Act and is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. District Lodge No. 37, International Association of Machinists, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of John McMen, William J. Locke, Jr., Harold C. Carrier, Dwain M. Irby, James L. Ledbetter, John W. Hughes, Robert S. Barnett, Wil- liam M. Bownds, Jimmy Lynn Cox, Delbert G. Clepper, and Jeffrey L. McCall because of their activity on behalf of District Lodge No. 37, International Association of Machinists, AFL-CIO, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) and (3) of the Act. 4. By the foregoing conduct, and by interrogating employees as to their concerted activities, Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed them in Section 7, in violation of Section 8(a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Cameo, Incorporated, Houston, Texas, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in District Lodge No. 37, Interna- tional Association of Machinists, AFL-CIO, or in any other labor organization of its employees, by discriminatorily discharging, ter- minating, or laying off any employee, or in any other manner discrim- inating against any employee in regard to hire, tenure, or any other term or condition of employment. (b) Interrogating employees concerning their membership in, or activities in behalf of, the above-named labor organization, or any other labor organization, in a manner constituting interference, re- straint, or coercion in violation of Section 8 (a) (1) of the Act. (c) 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 the above-named labor organiza- CAMCO, INCORPORATED 371 tion, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to John McMen, William J. Locke, Jr., Harold C. Car- rier, Dwain M. Irby, James L. Ledbetter, John W. Hughes, Robert S. Barnett, William M. Bownds, Jimmy Lynn Cox, Delbert G. Clepper, and Jeffrey L. McCall immediate and full reinstatement to their for- mer or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of earnings suffered by reason of the discrimination against him in the manner set forth in the section above entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records , social se- curity payment records, timecards, personnel records and reports, and all other reports necessary to analyze the amount of backpay due and the right to reinstatement. (c) Post at its plant at Houston, Texas, copies of the attached notice marked "Appendix." 22 Copies of such notice, to be furnished by the Regional Director for the Twenty-third Region, shall, after being duly signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 22 In the event that this Order is enforced by a decree of a 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." 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, we hereby notify our employees that : WE WILL NOT discourage membership in District Lodge No. 37, International Association of Machinists, AFL-CIO, or any other labor organization of our employees, by discharging, terminating, 681-492-63-vol. 140-25 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or laying off any employee or in any other manner discriminating in regard to their hire, tenure of employment, or any term or con- dition of employment. WE WILL NOT interrogate our employees concerning their mem- bership in, or activities on behalf of, the above-named labor organization, or any other labor organization, in a manner consti- tuting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. WE WILL offer John McMen, William J. Locke, Jr., Harold C. Carrier, Dwain M. Irby, James L. Ledbetter, John W. Hughes, Robert S. Barnett, William M. Bownds, Jimmy Lynn Cox, Del- bert G. Clepper, and Jeffrey L. McCall immediate and full re- instatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suf- fered as a result of the discrimination against them. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choos- ing, 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. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization. CADiCO, INCORPORATED, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) NoTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Serv- ice Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston 2, Texas, Telephone No. Capitol 8-0611, Extension 296, if they have any questions concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This is a proceeding under Section 10 (b) of the National Labor Relations Act, as amended, 29 U.S.C. 151 et seq., herein called the Act. CAMCO, INCORPORATED 373 On March 12, 1962, District Lodge No. 37, International Association of Machinists, AFL-CIO (hereinafter sometimes called District Lodge No. 37 or the Union), filed a charge against Camco, Incorporated (hereinafter sometimes called the Respondent or the Company), and on April 26, 1962, filed an amended charge against the Company, the charge and the amended charge each alleging that it had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. The General Counsel of the National Labor Relations Board, by the Regional Director for the Twenty-third Region, on April 27, 1962, issued a complaint against the Respondent in which it was alleged that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act; by interrogating certain employees concerning their union activities; by threatening them with discharge or plant shut- down because of their union activity; and by discharging 1 employee on February 13, and 10 employees on or about February 16, 1962, because those employees joined or assisted the Union or engaged in other union activities or concerted activities for the purpose of collective bargaining or other mutual aid or protection. In its answer to the complaint, the Respondent effectively denied the allegations of violations of the Act. Upon the issues framed by the complaint and the answer, this case came on to be heard before Trial Examiner Arthur E. Reyman at Houston, Texas, on June 11, 1962, and was closed on June 13. The General Counsel and the Respondent were represented by counsel and the Union by an International representative. Each party was afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, and to present oral argument on the record. Briefs have been submitted on behalf of the General Counsel and the Respondent and have been carefully considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF CAMCO, INCORPORATED The Respondent is, and has been at all times material hereto, a corporation duly organized under, and existing by virtue of, the laws of the State of Texas, having its principal place of business at 7010 Ardmore, Houston, Texas, where it is engaged in the manufacture and sale of precision valves, regulators, and controllers. During the 12-month period immediately preceding the issuance of the complaint herein, the Respondent received gross revenues in excess of $500,000. During said period, the Respondent also shipped, in the course and conduct of its business operations, products valued in excess of $50,000 directly to States of the United States other than the State of Texas. The Respondent is now and has been, at all times material hereto, engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED District Lodge No. 37, International Association of Machinists, AFL-CIO, is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The termination of employment of certain employees on February 13 and 16, 1962 Principally to be resolved herein is the question of whether the Company accom- plished a bona fide reduction in force by reason of a decline in its business or whether the decline in business was used as pretext or subterfuge to discharge 11 employees, 1 on February 13 and 10 on February 16, 1962, because they had joined or assisted the Union or engaged in other union activities or concerted activities for the purpose of collective bargaining or other mutual aid or protection.' Harold Edward McGowen, president of the Company, and Albert A. Hughes, its vice president in charge of production, conferred in November or December 1961 concerning the cutting of the cost of operations because of the declining volume of I The complaint alleges that John McMen was discharged on or about February 13, and that William J Locke, Jr, Harold C. Carrier, Dwain M. Irby, James L Ledbetter, John W. Hughes, Robert S. Barnett, William M. Bownds, James L. (Jimmy Lynn) Cox, Delbert G. Clepper, and Jeffrey L. McCall were discharged on or about February 16, 1962. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business of the Company at that time when usually it should be moving up instead of down. The decline in production was mainly due to damage caused by Hurricane Carla. At that time they reached a decision to reduce overhead and expenses, but postponed making a reduction in force until after the Christmas holidays. Between them, it was agreed that operating expenses in the amount of $12,000 should be trimmed from the manufacturing operations, and that $30,000 per month in expenses had to be reduced overall. On January 2, 1962,2 President McGowen gave Vice President Hughes instructions to immediately reduce personnel in the manufacturing department.3 At that time the decision for further reduction in personnel after the January reports of business were reviewed was made McGowen's instructions to Hughes were for him to proceed with a reduction in force to conform to the budgeted amount of reductions deemed necessary in the manufacturing department. McGowen testified that the January (and later February 1962) layoffs were similar and made under the same circumstances as prior layoffs within the Company occa- sioned by the oil industry crash which occurred in the year 1957. Employees I. Thomas, E. Alexander, and V. Morris were retired with full retire- ment benefits effective January 5. Four persons were terminated on January 4, six employees were terminated on January 5; and one employee was terminated on January 8. These terminations, together with resignations, resulted in a total of 18 terminations in the manufacturing departments in January. Reductions in force also occurred in January in the Company's engineering, sales, office personnel, field per- sonnel, inspection, and accounting departments. The standard used in determining who was to be terminated, other than voluntary quits, was that ability and attitude came first and, everything else being equal, seniority was then considered In February, after a review of the sales figure for January, another reduction in force occurred in the various departments. The advertising department was abolished. It was then decided that the working force should be reduced by 12 to 14 employees. Thereupon, Hughes instructed his department heads to furnish him with the names of employees that could be laid off with the least interference to the opera- tions of the Company. On February 1 or 2, he instructed Walter Theek, the shop superintendent, to let him have as soon as possible the names of employees to be laid off. On February 8, Theek reported to him the names of the employees selected for termination. Hughes acted on Theek's recommendation; 15 employees were laid off in February, 11 of them being those named in the complaint herein as having been discriminated against by the Company. McMen was first employed by Camco in the year 1960 and left his employment during the year 1961. Later, in September 1961, he was reemployed and put to work on the second shift. He said that his foreman, Dean Logan, on February 13, told him that he apparently was not happy with his work-"I can't get you as much money as you want." McMen was terminated on that day. Locke, who said he had arranged for the meeting at the union hall on February 10, testified that on the following Tuesday, J. C. Cook, turret lathe foreman on the first shift, asked him if he had heard anything about the Union and told him that the Company had the names of all who had been at the meeting. Later, Locke said Cook talked to him about the Union and on the following Thursday, February 15, Theek, the shop superintendent, told him he did not want "to see him get hurt," and that McGowen did not want the Union and would close the plant if the Union was successful in getting in. Locke had worked under Cook on the first shift for 4 or 5 months. He said his basic reason for going to the Union was because of the prior layoffs-"we were seeking job security." Locke testified further to a speech made by President McGowen on October 13, 1961,4 in which he said McGowen was more or less generally talking about the Union; that "the way I took it, he would close it down and lock it up before he would let the Union come in." Locke said that Cook told him that he (Cook) had been a union official and that Cook had asked him, "Wouldn't it be better for me to ask the Company for a raise rather than ask some- body to do my bargaining for me?" He said that during the course of his conversa- tion with Theek, after Theek asked him what he thought about the Union, he replied that he did not know but that he was looking for another job because he "just can't make it." 2 All dates mentioned hereinafter shall be for the year 1962 unless otherwise specifically noted 3 A monthly sales report generally is available to McGowen and Hughes on the first day of a month following the month covered by the report, so that at their meeting on Janu- ary 2 they had before them the report for December 1961. 4 This speech is discussed below under section III, B. CAMCO, INCORPORATED 375 According to Charles E. Howard, general manager of Barrett Machine Works, Jeffrey Lynn McCall started to work for that firm on February 19, after having filled out his application for employment on February 15, McCall stating thereon that he would be available to start work on February 19. McCall, who had been employed by the Company since April 1961, worked continuously for the Company until he was terminated on February 16. He said that about the middle of January 1962 he be- came more or less dissatisfied with some of the conditions and called a union rep- resentative to inquire about the Union, and was told that the Union had attempted to organize the plant once before without success but "if enough people would be interested or enough people would come down to talk to them about it, they might discuss it with us further." McCall discussed the matter with some of the other men and later, in February, talked to one Williams, a union representative , and told him that he thought they might have enough employees interested to discuss union organization. On Friday, February 9, Locke arranged for a meeting at the union hall to be held on the following day, Saturday; the word was spread, and some 16 em- ployees met at the union hall on Saturday, when they signed authorization cards and formed an organizing committee comprised of McMen, Locke, Bownds, Baggett, and McCall McCall said that on the Tuesday following the Saturday, February 10, union meet- ing, he had asked Arthur O'Pry, a shift foreman, why McMen had been fired, and O'Pry told him that McMen was a troublemaker and further that O'Pry said that some men would be fired before Saturday which "would bring the Union to a screeching halt." He said that on the next day, February 14, O'Pry asked him if he had attended the union meeting; that he asked O'Pry if that meant he would lose his job after he had said that he had attended the meeting; and that O'Pry said, "I really don't know. I would imagine." McCall said at that time he had already secured another job when he asked O'Pry, "Does that mean I will be gone?" McCall did not work on Friday, February 16; he called for his paycheck on the following Monday, called at Hughes' office when he said that Hughes told him that "this is just a reduction in work force . . . and can't be helped," and asked McCall what he thought the reason "for all this was," to which McCall replied that he thought it was because quite a few people were dissatisfied with wages and some working conditions. His wife had re- ported him sick on Friday, February 16, although in fact she and he were engaged in taking their baby to a doctor. McCall was aware of rumors prior to his seeking other employment to the effect that there would be further layoffs at Camco. Clepper was employed from December 31, 1959, to February 16, 1962. On February 16, after being discharged by Cook, he saw Vice President Hughes, who told him that the Company had decided to lay off a number of men, including him. Before that, he said that O'Pry on Tuesday, February 13, asked him if he had heard about McMen being let go because of the Union and that O'Pry asked him if he had attended the union meeting on the prior Saturday or if he knew anything about the Union; later that evening he gave O'Pry as a reason for attending the union meeting that he was "just curious"; and on the following day, Thursday, he said O'Pry asked him for the names of those present at the meeting and asked him to check off the names of those not present at the meeting in order to save their jobs, which he refused to do; that he heard O'Pry ask Carrier on February 16, if he attended a meeting and why he had attended the meeting and that Carrier had replied that he thought he was underpaid and that the Union could get him more wages. He said that O'Pry told him and Carrier that nothing would be done until McGowen returned to town, and also told them that those who did not have a good excuse as to where he had been the pre- vious Saturday morning (the morning of the union meeting), "He wouldn't be there Monday " Clepper said he thought that the reason the men started talking about the Union in January was because of the rumors prevalent in the plant after the retire- ment of the three employees in January. He testified that the employees started talk- ing to the Union in January or February as a result of these retirements . He said that no official or supervisor of the Company other than O'Pry had ever discussed union activity with him, that O'Pry had not threatened him or anyone else that he knew concerning union activities; that when he was laid off he was told by Vice President Hughes that due to reduction in sales he had been "toying around with a layoff list for 2 or 3 weeks, and he had finally determined who was to be laid off and I was one of them. He said it was no reflection on my work and he would give me a reference to another job " Subsequent to February 16, Clepper gave as the reason for his leav- ing, in an application to the Texas Employment Commission, "Reduction in force." Carrier said that he heard O'Pry ask Clepper if he had attended the union meeting and that he himself was asked by O'Pry whether he had attended the meeting, to which he said that he did not think it any of O'Pry's business or Hughes ' business or for that matter anybody's business and that he told O'Pry that he had attended the meeting; that O'Pry, on February 14 or 15, asked him if he would give him the names 376 DECISI('YS OF _N_ATIO`:.1L LABOR RF, 1,ATIO-,,-5 BOARD of the people who attended the February 10 meeting and he refused . He said that O'Pry said there would be a number of employees laid off who had not attended the meeting if he was unable to get a list of the names of those who actually had attended. He said on Wednesday, February 14, O'Pry asked him three times who was present at the meeting. He said that February 13 was the first time he had talked to O'Pry about the Union and that on that day he had told O'Pry that he was neutral as far as the Union was concerned . He said that he did not at any time talk to any other supervisor of the Company about the Union. Carrier was employed from June 26, 1961, to February 16, 1962. Barnett was employed from December 3, 1959, to November 11, 1961. From that date until February 5, 1962, he was on military leave . He was discharged on February 16, 1962. He, too, attended the union meeting and signed an authorization card and distributed three cards to other employees for signature. He said he was questioned by O'Pry on February 3 as to whether he attended the union meeting, to which he replied that he had not. He said that in reply to his question, O'Pry said that McMen had been fired because he was a union agitator . He testified that no supervisor other than O'Pry discussed the Union with him; that the reason be and his fellow employees were interested in the Union was to protect their jobs (they had heard rumors of a layoff), and that he also wanted more money. Bownds worked for the Company after August 1959. He testified concerning the November 1961 speech made by McGowen and with respect to the February 10 meeting and the formation of the organi7mg committee of employees of which be was made a member.5 Bownds testified that Cook, the turret lathe foreman, on the Tuesday morning following the Saturday union meeting, asked him about the meeting, told him to keep his nose clean, and that it would be better for him if he stayed out of the Union. He said that on February 14 or 15, he was told by Cook, Locke being present, that he (Cook ) had been a union organizer for 12 years and he knew how well "the union big shots had it" but that he was no longer a union organizer because "it got too corrupt for him." He testified that on Thursday evening, just before quitting time, O'Pry came to his machine and told him that he did not expect to see him there the next day, that he asked O'Pry why, to which O'Pry said, "Well, because you were at the Union meeting " He said that he asked O'Pry how he knew he was at the union meeting, that O'Pry answered "they had ways to find out things like that" On the day his employ- ment was termniated, he was told by Vice President Hughes that he (Hughes) did not know the kind of stories he had been hearing about the layoff, but that it was due to slack work and low sales and a consequent necessity for reduction in labor force; that his layoff was no reflection on his work. Ledbetter was employed from December 31, 1959, until February 16, 1962. He also attended the Saturday meeting of the Union and signed an authorization card. On the following Tuesday he said that Cook asked him if he had heard of any union talk to which he replied that he had not; said that on Wednesday he asked Shop Superintendent Theek "what the scoop was in regard to the Union talk" and that Theek replied that the Company did not know much about union talk, asked him if he knew anything about a meeting, and whether or not he had attended a union meeting; that he replied that he had and that later the same day, Cook asked him if he had attended a union meeting and when he told Cook he had, the latter asked why, to which he had replied that he was curious to find out if the Union would benefit the employees; that that was the extent of the con- versation except that Cook said "that the Company feels that any man that attends a union meeting is leaning toward a union," to which he replied that if that was the way they felt that possibly he must be leaning toward the Union. Previously, he said, Cook had admonished him to keep both feet on the ground and stay out of the Union and not to get involved and that he would be taken care of. When he was given his final check he was told by Hughes that production had been slack, that sales were bad, they were forced to a cutback, and he was one of the ,unfortunate ones. Irby was employed from November 20, 1961, to February 16, 1962. He was present at the union meeting and signed an authorization card. He said that on the following Wednesday, February 14, Cook asked him if he knew anything about the Union and that if Irby did he was sure that he would tell him. but that Irby saic no, he knew nothing about the Union; that on February 15, Cook told him r The speech of McGowen Is discussed later herein , section III , B. According to the testimony of Bownds , he first said that McGowen had stated that he was against the Union and would do everything he could to keep it out , including shutting down , if neces- sary, but later he said that while McGowen did not use those exact words, that is what he thought McGowen meant. CANICO, INCORPORATED 377 and Crawford, a machinist, that he had worked with a union at some prior time and "that any man that had any dealings with the Union didn't give a damn about his family." He said that on Wednesday of that week, he had asked O'Pry what had happened to McMen, to which O'Pry replied that he had been laid off because he was a union agitator. Jimmy Lynn Cox, who was employed from December 26, 1961, to February 16, 1962, was 1 of the 16 who had attended the union meeting on February 10. He solicited two employees to sign union cards. He testified that O'Pry, on February 13, asked him if he had attended the meeting and that he replied that he had not; that later on February 16, after he was notified of his layoff, he then told O'Pry that he had attended the union meeting. Richard Baggett, employed since October 1961, testified that he attended the meeting of the employees at the union hall on Saturday, February 10, and was elected one of the organizing committee. He said that the first time he heard any member of management say anything about the Union was on February 9, when O'Pry passed by a machine where he and Ed Williams were working, and when Williams asked O'Pry if he was going to attend the meeting on the following day, O'Pry told him, "No, he was not invited." He said that on that day O'Pry later asked him if he was on the union list and he told him, "No, that he had never worked for a union before and didn't know that he was going to start now.:: He said O'Pry talked to him "a little about company benefits and then went on." He said that on that day he heard Jack Villagomez, a foreman, when employees were gathered around a caterer's lunch wagon that evening. say, when someone "yelled across the crowd and asked Jack if he was going to the meeting tomorrow," "Yes, I'm going out there and take names." He said that O'Pry offered him a job in the toolroom, saying that McMen was no longer there, that he was a trouble- maker, "and he is gone." Baggett did not take the job. He said that he knew of a rumor existent in the plant in late January and early February that there was going to be a layoff; that the general rumor was that there was going to be a layoff of 22 people and the employees had expected this general layoff in January or February 1962; and that the employees' action in regard to union organization was the direct result of the January layoff and the rumor that there was going to be an additional layoff in February. Floyd Yeager, employed since December 26, 1961, testified that on February 13, O'Pry told him that there was some talk of a union and to ignore it; and that on Thursday of that week O'Pry asked him if he had attended the union meeting to which he replied that he had not. Yeager had in fact attended the meeting on February 10. He said he was aware of the rumor in January and early February that there would be further layoffs and for that reason attended the meeting. He said that it was a matter of common knowledge in the plant, before that meeting, that there would be such a meeting ; that he thought the men in attendance there were primarily interested in what the Union could accomplish for them in the way of job security. Michael J. Koscianski, a witness called by the General Counsel and now em- ployed by the Company, testified that he had engaged in union activities during the course of his employment, had attended the union meeting on February 10, and had signed an authorization card. No member of management of the Com- pany had ever said anything to him about the Union. Through him it was brought out on cross-examination that Richard Baggett, Billy Long, Floyd Yeager, William Patterson, and he, who all attended the meeting on February 10, are still em- ployed by the Company. William Glenn Patterson testified that he is employed by the Company; had en- gaged in union activities, and attended the union meetings on February 10; and that no supervisor had ever mentioned the Union to him or asked any other person in his presence about having gone to a union meeting. No substantial facts have been interposed to the defense of the Company re- garding the discharge of McMen. There is no proof that any of company man- agement had knowledge of McMen 's attendance at the union meeting or of his activities on behalf of the Union. The charge that he was a troublemaker, as stated by the Company, is not refuted nor has it been attempted to refute this charge. General Counsel says that on the date the Respondent fired McMen "it commenced a course of relentless interrogation" and 3 days later it fired all other employees who admitted attending the meeting of February 10. From this, I as- sume, I am expected to infer that McMen was discharged , not for cause, but be- cause of his interest in the Union. This I will not do. There is a failure of proof that he was discharged because he joined or assisted the Union or engaged in other union activities or concerted activities for the purpose of collective bargaining or other aid or protection. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In selecting the 10 men it did on February 8 for discharge or termination the following week, the Respondent followed the same standard or measure it had adopted in choosing individuals for termination in January; that is, mainly ability. then attitude, then, all else being equal, seniority.6 The proof clearly shows that McCall had quit his job, having found another one prior to February 16, and had undertaken to enter upon it on February 19. It cannot be said that he was laid off, terminated, or discharged. In regard to McMen, as I have pointed out above, he was discharged for cause. Vice President Hughes testified, without contradiction: I am more or less responsible for the discharge of Mr. McMen. Mr. McMen worked in the tool crib previous to the time he was working with us last. For about the past 3 or 4 months before all this took place-the tool crib is real dear to my heart, for we spend a bulk of $8,000 a month in expendable supplies, consisting of end mills, grills, milling cutters, different items-I haven't been particularly interested in the way the tool crib has been run since I have been with Cameo, and I finally made up my mind that we were going to clean house in the tool crib. And that is the reason Mr. McMen was refused a raise and dis- charged. And to add a little further to that, the reason I know no one was keeping an eye on it is because I sign every requisition that is ordered from the tool crib and there was far too frequent reorders of expendable tools? A third man, Dwain M. Irby, was included in a February 16 list because the Company had received a notice of impending garnishment of his wages from a creditor on February 14. He had already been selected on February 8 as one of those to be terminated, so that, even though Irby was scheduled for termination on February 16, he was discharged under the company rule that any person who is subjected to garnishment of their wages is subject to immediate dismissal. The rule was stated on the employment application blank used by the Respondent. The dismissal of Irby was yin accordance with this policy and as applied in previous cases. The Company makes available financial assistance to employees who become in- debted or faced with unusual expenses, but its plan was not taken advantage of by Irby. Consequently, here, counsel for the Respondent apparently felt it sufficient to show only the violation of the rule as the reason for Irby's discharge and did not deem it necessary to go further to show why Irby's name appeared on the February 8 list. There is no proof that any official of the Company had knowledge that Irby attended the union meeting of February 10, and, in fact, Cook had remarked that he felt that if Irby knew anything about the Union he was sure Irby would tell him. In these circumstances, I find a failure of proof of discrimination against Irby be- cause of his union interest or activities, and find that he was discharged for the reason stated by the Employer. In January, there were approximately 150 employees in the manufacturing depart- ment. Vice President Hughes summarized the layoffs of January and February as follows: In January 1962, a total of 34 employees were laid off, which included 15 employees in the manufacturing departments, 7 in the sales department, 8 in the accounting and general offices, and 4 in the engineering and inspection department. There were 29 additional employees laid off in February, which included 18 employees in manufacturing departments, 4 employees in the sales department, 6 in the general offices, and I in the engineering and inspection department. A total of 63 employees were laid off in January and February, 33 having been employees in the manu- facturing department. Shop Superintendent Walter Theek is under the direct supervision of Hughes and supervises the departments in the machine shop. Two foremen work under Theek- 6 The General Counsel contends that seniority was departed from in effecting the Feb- ruary 16 layoffs "to an extremely significant degree." An analysis of the layoffs, by seniority dates , was offered in evidence in the form of a written exhibit at the hearing and was rejected by me At the time of the rejection, I was under the Impression that the information was derived from sources other than the records of the Respondent. Apparently I was In error. Therefore, I reverse my ruling In connection with that exhibit (General Counsel's Exhibit No 3) and receive it into evidence for the purposes of this case After having considered the list, the dates thereon being true and correct as stipu- lated by the parties, nevertheless, I find that on the basis of the record herein, the question of seniority was immaterial since the employer never reached that point where It considered other things being equal so as to rely upon seniority as a basis for retention as against termination of any particular employee 'Counsel for the General Counsel first proved and then it was stipulated between the counsel that an employee named Winters quit voluntarily on February 16 I have yet to determine the materiality of that fact to this case but mention it for what It is worth. CAMCO, INCORPORATED 379 Cook, foreman of the turret lathes on the first shift, and O'Pry, foreman of ,the turret lathes on the second shift. Fifteen turret lathes are operated on both the first and second shifts with approximately 18 men employed on each shift. No employee em- ployed on the turret lathes was laid off in the January 1962 reduction in force. It was on February 1 or 2 that Theek was told by Hughes to further reduce forces by 12 or 14 .employees. Theek instructed Cook to make a list of four people for layoff and gave the same instructions to O'Pry. Other employees to be laid off were in the automatic engine lathe section to bring the figure to a total of 10 employees to be terminated. Cook and O'Pry reported to Theek on February 8, who on that day reported to Hughes that the men under Cook slated for termination were Locke, Irby, Ledbetter, and Bownds, that the four under O'Pry were Carrier, Cox, Clepper, and McCall, and that the two who worked in the automatic lathe section were John W. Hughes and Barnett. Theek said that he had no knowledge on February 7 or 8 of any union meeting slated for February 1d; .that there was a rumor extant in the plant yin January to the effect that there would be some 22 additional people laid off. Regarding interrogation or alleged interrogation of employees, Theek testified that on or about February 15, he had a discussion with Locke during which he asked Locke if he had attended the union meeting and mentioned the benefits the Company had given the employees. He said that no other questions were asked of Locke regarding the Union or of any activities in connection with the Union. Theek testified that he did not at any time engage in any discussion about the Union with Barnett or with Ledbetter or with Carrier or with Irby regarding union activities. He denied that he at any time made any statement to any employee that the plant would be closed down before the Company would recognize or bargain with the Union and that the only person he asked about attending the union meeting was Locke. Cook testified that he asked Locke on February 13, whether he had heard the rumors "going around" about a union but that he had asked nothing else about the Union, denied that he has even been an official in any union or that he had ever told anybody he had been an organizer for any union. He denied that he had ever made any statement that he had a list of names of employees who attended any union meetings. He said that Hughes had told Irby in his presence that there was a garnishment pending against him, that this was against company policy, and that was the reason he was being terminated. He said that Hughes handed Irby a letter from Day's store to the Company regarding possible garnishment proceedings against Irby, which under State law would have made the Company equally responsible for payment of the debt. Cook said that he had heard during January the rumor that 22 men would be laid off; that he first heard rumors of union activity on February 12 and 13; and that at the time he heard these rumors of union activity, and thereafter, he made no change in the employees selected by him to be laid off, but adhered to the criteria used for selecting Bownds, Locke, Irby, and Ledbetter. He said that he at no time solicited any employee to make a report on union activities of any other employee, did not threaten any employee with discharge for participating in any union activity, and did not question any employee about union activities on February 15. Arthur O'Pry said that at the time he made his report to Theek on February 7, naming for layoff Cox, Carrier, Clepper, and McCall he had no knowledge of a union meeting to be held on February 9. He said he had heard the rumors in January concerning the layoff of approximately 22 employees to be made and that the rumors continued on into February. He said that he asked McCall on February 13 whether he had attended any meeting, to which McCall replied in the affirmative, and on that day he also asked Clepper whether or not he had attended any meeting, that he told Clepper about his experience with a union but did not at any time ask Clepper to tell him who had attended the meeting He said he had not asked Carrier whether or not he had attended the union meeting, but that he did make a statement on February 14 to Clepper and Carrier that if he were they he would try to go out and get another job because he knew that they were going to be laid off. He denied telling Carrier that anybody would get hurt if the names of those attending the union meeting were not turned in or that he had any discussion with Barnett about any union rumors. He said he did tell Barnett that McMen was ,terminated because he was a troublemaker, but that was all that he said. He denied that he had any discussion with Bownds regarding a union meeting, or that he had told Irby that McMen was terminated because he was a union agitator. He said he had no discus- sion with Irby regarding McMen; that his only discussion with Cox regarding any union was that he asked Cox on February 13 whether or not he attended the union meeting and Cox told him that he had not. He ,said his only discussion with Baggett was that McMen had been terminated because he was a troublemaker. He said ,that he did not know whether or not McMen attended a union meeting or whether he had participated in union activity. He denied that he stated to Baggett that several of the 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men would be let go because they were troublemakers. He asked Yeager on Febru- ary 13 or 14, whether he had attended a union meeting and Yeager replied in the affirmative. He asked Williams whether he had attended a union meeting and Williams said that he had. O'Pry denied making any threat at any time to any of the men regarding attending any union meeting. The alleged interrogation, as set forth in the complaint, then resolves into a con- versation between Theek and Locke; a question by Cook directed to Locke on February 13, as to whether he had heard rumors about a union; and questions by O'Pry directed to McCall, Clepper, Cox, Yeager, and Williams as to whether or not they had attended any union meeting. O'Pry was a refreshingly frank witness. I believe him when he says that he made no threats in regard to what might happen because employees he talked to had evi- denced an interest in the Union or had attended a union meeting. It is quite clear that he was conscientious in preparing the list of names of men to be terminated in his department on February 16, and, as a matter of fact, he told Theek that if it were possible he would like to retain Carrier, the last man listed by him for layoff. In an effort to understand why O'Pry had asked employees whether or not they had attended the union meeting, he was asked what his purpose was. O'Pry testified: The WITNESS: I had been foreman 6 weeks and I was still reasonably close to the men, and these seven-there were three on one side of the shop and four on the other-and they were always together, and I just asked them. I was still reasonably close to them. I felt like one of them really. Q. (By Mr. CLINTON.) What specific purpose did you have-I believe that is what the Trial Examiner is trying to get at-in asking them? A. I felt like in the short time I had been foreman, undoubtedly if they wanted to attend a meeting I had failed in some way in being a foreman, and if I could help them in any way, I would like to do so. If they felt the union could help them, maybe I could too. Q. Did you make any such statement to any of these men? A. Yes, sir. In answer to a question as to what formed the basis on which he made the selection of Carrier, Cox, Clepper, and McCall, O'Pry said that Cox had been on the machine for about 2 weeks; "He had no skill whatsoever, so naturally, I chose him." He said: Carrier and Clepper and McCall were the three men I felt I couldn't handle. I had some trouble with them, keeping them working. They congregated quite often since their three machines were together. I felt I couldn't handle these people as well as I could some of the others. He also said that the amount of production that they did get out and the amount of scrap entered into his consideration as to their ability to do the job. Cook said that he selected the four men that he did to be laid off on the basis of the following: Ability to put the iron on the floor, their attitude toward their job, their attitude toward their foreman, and the fact that they were away from their machine a lot, they couldn't do work if they were across the shop, here, there, and yonder, too much walking around the shop. He said he had admonished them previously that they should stay closer to their jobs and told them they had to be at the machine to perform their duty. ,It seems that technical violation of Section 8(a) (1) of the Act are clearly proven on the admissions of Theek, Cook, and O'Pry. The other side of the case shows just as clearly that the Respondent discharged, or terminated the employment of, each of 11 men for good cause or for substantial economic reasons, and for both reasons. I do not believe it would effectuate the policies of the Act to enter a cease-and-desist order against the Respondent considering the whole record herein. Therefore, no such recommendation will be made. B. The speech of President McGowen to employees made on October 13, 1961 A few days after a stockholders' meeting, Harold Edward McGowen, president of the Respondent since the year 1957, read to the assembled employees of the Company a statement he had prepared for delivery at the stockholders' meeting. The statement is quoted as written: During the past year, Cameo produced and sold $6,955,000 worth of goods and services. On these sales, the profit was $424,000 after taxes. This is a 13% increase in sales and a 9% increase in earnings over 1960, and gives $1.10 per share earned on the 385,700 outstanding shares of stock. CAMCO, INCORPORATED 381 The Camco plan for growth in past years included the location of manufac- turing plants in foreign countries. The first of these was the plant in Northern Ireland. The location in the United Kingdom was made attractive by several features: 1) A low rent Government-owned plant was provided. 2) A ready work torce of trained labor was available. 3) A common language: common measurements. 4) The sterling market. 5) Availability of raw materials. 6) And now, the plant is in the common market. All of these things have worked to our credit. In addition, the cooperation and enthusiasm of the people of Ireland for the success of the Cameo operation cannot be over emphasized. This plant will sell to Europe, Asia, Africa, and South America. To speed the development of foreign sales for this plant, we now have a trained, multi-lingual English engineer based in Belfast, Northern Ireland, and working in Europe, Asia and Africa. He is a Cameo man, for he has worked for Camco in Canada for five years. As a further sales stimulus, Mr. Pearce, Tony Binning, (a multi- lingual English engineer who has been with us for over a year) and Mr. Winkler, our chief sales engineer, are conducting seven schools in Indonesia and Pakistan. These men will be gone for about two months. Tony Binning will then be trans- ferred to Belfast in February to work and live. This will give us two trained, multi-lingual sales engineers in Belfast. Camco agents in Europe and Asia and Africa have schooled themselves and their men in our products and services and an increased training program is under way. We expect the Northern Ireland plant to be increasingly valuable in the coming years as the consumption of petroleum increases in Europe, North Africa, Asia, and South America. The plant in Mexico is an 8,200 square-foot structure. It is leased, has a good location, and is equipped to furnish Pemex with the oil production tools required. The Mexican Government encourages the use of goods manufactured in Mexico, in keeping with its program of National Development. The manager in Mexico is J. Fred Schnars and he and his family live in Mexico City. We will employ over 20 Mexicans in this plant before the year is over. This plant is to serve Mexico only. We have just selected a building contractor to construct a new addition to our Houston facilities. This addition will consist of a 28,000 square-foot manu- facturing plant and will bring our total plant in Houston up to 66,000 square feet. This space is needed for anticipated increased sales and the addition of new product lines such as our new packer and our new orifice valve. This means an investment of $4,500 ,000 for plant and machinery. An architect's rendering of this building is on display. 1) Plant located where tin building is. 2) Machinery 3) Personnel to be added 4) Third shift-temporary only 5) We will rent temporary space for central warehouse and storage- the green building south of our property. I can now announce the purchase of the oil center tool packer line. This product was introduced in 1957, by Oct. but was shelved when their manage- ment discovered it was not compatible with their products. We think it fits Camco and is compatible in all ways with our products and service. This tool will demand more space for manufacture than our present facilities afford More about packers-major diversification-you will see many parts coming through plant in near future. In addition to Cameo's increased sales efforts and expanded sales coverage, and its foreign manufacturing plants, part of Cameo's plan has been an in- tensified and increased research and development program. For the growth Cameo needs, new products must furnish a good part of the material. En- gineering facilities have been increased to supply men and tools for new product development. From their efforts have come the improved controllers, the sliding sleeves, the concentric valve, the pilot valve, new plungers, and miscellaneous wireline tools. The wireline skid unit has been carefully packaged so that it has become a good item for sale The wireline truck capsule is a product for sale to other service companies anywhere in the world. The new magnaset series has met with enthusiastic reception from oil production people and we have great hopes for its market potential. All these new and improved products insure the growth of Cameo. During the last year, we purchased the plunger division of the National Supply Company. To this we added the Camco plunger and its improvements and increased our dominance in this field. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Now being introduced at the A.I.M.E. meeting in Dallas and Lafayette, is the latest major tool development of Cameo. It is a tubing caliper with a downhole tape recorder. The recorder has fourteen channels and will run for three hours to record the information produced by an electronic caliper that scans and measures the amount of corrosion and erosion of metal from inside the tubing walls. Obviously, this tool has possible applications outside the petroleum industry, or anywhere where there are piping problems. Profit Sharing Plan-this plantakes 8% of the profits of Camco and with the 5% invested by the employee, it could accumulate so that a man who goes to work at the age of 20 and retires at the age of 60 could have $40,000.00 or over. During this time, he should have his home bought and paid for. Our medical plan is one of the best in the city and compares with the one that Humble has. This means that a man who works for Cameo has security as far as the health of he and his family are concerned, and a good savings plan for when he retires, plus social security of approximately $150.00 per month, so that he should be able to live in comfort. I can't speak too strongly or emphasize too much that you should be in this plan and you should continue to participate. Union-as you know, some 31/2 years ago, we had a union election in this plant. This was defeated and since then, we have had absolutely no trouble in this respect. This Company is of the very firm opinion that we will not have a union here. We are against the union in all respects and will do our best to see that it does not come to this plant. If any man feels otherwise, we invite him to leave and go to another plant. This is the American way of life. We believe this is one of the best companies to work for in Houston, if not the best. We keep our wages at the level of industry in Houston, whether union or non-union, our working conditions are better than most union plants, and we have an excellent profit sharing plan and medical plan to afford the em- ployee security for himself and his family. According to President McGowen, he read the same statement to the employees that he had made to the stockholders of the corporation with an addendum at the close which, according to his longhand notes, read: Close-thank everyone for their loyalty and work-we will continue to make this the best company to work for in Houston. McGowen testified that he read exactly from the prepared speech; that he had recognized the danger of the president of the Company talking to a group in such a situation and had researched and himself wrote and dictated the speech before de- livery to the stockholders and then to the employees. He denied that at any time during the making of his speech to the employees did he state that he would close the plant before he would have a union. I have adverted above to the recollected content of McGowen's remarks to the employees as stated by two or three em- ployees present, whose memory, I have decided, was inaccurate insofar as their impressions of what really was said. The testimony of McGowen was more precise than the testimony offered through witnesses called by the General Counsel. I accept the speech or statement as made by McGowen, as shown by his testimony, against that of the apparent faulty recollection of the other witnesses. Counsel for the General Counsel, in his brief submitted to me, dwells particularly on the following extract from the speech: This Company is of the very firm opinion that we will not have a union here We are against the unions in all respects and would do our best to see that it does not come to this plant. If any man feels otherwise, we invite him to leave and go to another plant. As counsel says in his brief: Such a threat is ordinarily enunciated in connection with union animus of a degree set forth above and, the witness who testified they recalled such a threat are credible; on the other hand, Respondent's witnesses are not credible .. . A finding that the threat was uttered is supported by the record. It would seem, at the time McGowen made his statement to the assembled em- ployees, that he was stating the position of the Respondent in regard to overall background and plans, and could not have been gifted with foresight against the contingencies of business which occurred beginning 2 or 3 months later, resulting in layoffs or terminations of employment for business reasons. Had the statement of McGowen been in the least connected with the terminations made in January CAMCO, INCORPORATED 383 and those complained of in February, following, I could place some reliance on the claim that the speech was coercive in nature and intended to interfere with the rights of employees to join or assist a union, or to engage in other concerted activities. I cannot make such a finding on inference only. Consequently, the uncontradicted testimony of McGowen concerning the circumstances of the speech, taken against that of the faulty memory of witnesses who gave their version of a "threat to close the plant," as alleged in the complaint, is accepted. Concluding Findings It is argued on behalf of the General Counsel that the Respondent has defended its actions solely on the basis that, for economic reasons, it selected certain individuals on February 8 for discharge the following week; that pretext only is obvious because it has been shown that the Respondent also attempted to defend its case on the basis that two of the discriminatees, Irby and McCall, were terminated because of events that occurred on February 16; and that the pretext is further exemplified by the pur- ported reason for the inclusion of Bownds in the layoff because he had no tools to work with. It is argued further that the entire basic reason assigned for effecting a layoff, only 1 week after the union meeting, is exemplified as pretext by the fact that the Respondent contracted out his machine shop work at the time of the layoff, and the fact that it hired replacements 2 weeks thereafter. Were it shown by the record that the testimony could fully support the argument made, I would do so. However, the testimony given in these respects is so vague that I cannot in good conscience make the findings that have been suggested .8 For the reason set forth above, I find that the General Counsel has failed to sustain the burden of proof herein, and on the whole record the complaint herein should be dismissed. Upon the basis of the foregoing findings of fact, and upon the entire record, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1 Cameo, Incorporated, the Respondent herein, is an employer within the mean- ing of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2 District Lodge No. 37, International Association of Machinists, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Although the record herein establishes certain technical violations of the Act, principally interrogation of employees, it will not effectuate the purpose of the Act to enter a cease-and-desist order against the Respondent herein. 4. The record does not establish that the violations complained of in the violations technically proved required such an order. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this proceeding, it is recommended that the Board enter an order dismissing the complaint in its entirety. The brief filed on behalf of the General Counsel is quoted literally: Once the Trial Examiner had determined that Respondent's defense is a mere pre- text, borderline credibility resolutions become obvious Respondent's witnesses not only testified In support of the pretext-they necessarily agreed to so testify, In ad- vance of the trial. They thereafter agreed to suborn the truth or to "tell the same story," as related to the selection for discharge, purportedly on February 8, 1962, of the 10 discriminatees In short, they agreed to perjure This type of organized perjury renders the remaining testimony of each of Respondent' s witnesses completely discredible This Trial Examiner observed the witnesses as they testified and observed their demeanor. I see no suggestion of any kind to be found at bearing or in the record herein, which would even suggest perjury or the subornation thereof. It seems to me that if General Counsel or his counsel had notice or evidence of such fact, it should have been stated in open hearing rather than in a brief filed subsequent to bearing, to which other counsel can have no recourse.