Outboard Marine Corp.

LAWN-BOY DIVISION OUTBOARD MARINE CORP. 535 APPENDIX B PERSONS WHO RECEIVED LETTERS FROM RESPONDENT DATED AFTER JUNE 8, 1961 (Date letter was received is indicated after each name) Olen Ballard-----------June 28, 1961 Essie Rhodes ------ ----June 27, 1961 Alex Banning ---------- July 17, 1961 Mary Scholze---------- June 14, 1961 Audra Dustman 1-------June 27, 1961 Charles Spangler--------June 27, 1961 Martin Hatley---------- July 21, 1961 A. L. Spence----------Nov. 16, 1961 Jimmy Hix 2........... July 17 , 1961 Buster Whisenhunt------Sept. 21, 1961 Aline Petree----------- June 14, 1961 'Returned to work on December 26, 1961, as a new employee 2 Name spelled as amended at the hearing. Lawn-Boy Division Outboard Marine Corp. and International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America (UAW), AFL-CIO, and Local Union 683. Case No. 17-CA-2006. June 08, 1963 DECISION AND ORDER On April 1, 1963, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that, except for an isolated violation of Section 8 (a) (1) too minor in char- acter to warrant issuance of a remedial order, the Respondent had not engaged in unfair labor practices as alleged in the complaint. Ac- cordingly, he recommended that the complaint be dismissed in its en- tirety, as set forth in the attached Intermediate Report. Thereafter, the General Counsel, the Respondent, and the Charging Party filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman 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 Interme- diate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' [The Board dismissed the complaint.] 1 The Trial Examiner found, and we agree, that the Respondent did not refuse to fur- nish the Union with certain information which the Union requested during bargaining negotiations . In so finding, the Trial Examiner relied, in part, on testimony by W C James, Respondent's director of industrial relations , to the effect that the testimony of the Union's witnesses at the hearing "was his first knowledge that they questioned the correct- ness of any of the information which he supplied." As this testimony was stricken from the record, we do not rely on it in adopting this finding , which is supported by other evidence. 143 NLRB No 57. 536 DECISIONS OP NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136; 73 Stat. 519), was heard before Trial Examiner George A. Downing at Lamar, Missouri, on February 5, 6, and 7, 1962, pursuant to due notice. The complaint, issued on December 6, 1962, by the General Counsel of the National Labor Relations Board, upon a charge and an amended charge dated July 5 and December 4, 1962, respectively, alleged in substance (as amended on January 17, 1963) that Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) and (5) of the Act by refusing to bargain in certain specified re- spects with the Charging Unions as the duly certified bargaining representative of its employees in an appropriate unit. Respondent answered, denying the unfair labor practices as alleged. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent, Lawn-Boy Division Outboard Marine Corp., is engaged at its Lamar, Missouri, plant in the manufacture, sale, and distribution of lawnmowers and other products. It ships annually from its Lamar plant to extrastate destinations products, goods, and materials valued in excess of $50,000. Respondent is thus engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATIONS INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, and Local Union 683, herein jointly called the Union, are labor organizations within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LA13OR PRACTICES A. Introduction and issues Respondent presently employs some 300 employees in a production and mainte- nance unit in which the Unions jointly were certified by the Board on November 16, 1960 (amended on March 6, 1961). Following negotiations, a collective-bargaining agreement was reached dated May 8, 1961, to continue in effect until December 31, 1962, with a provision for reopening, after May 8, 1962, on 60 days' written notice, on base hourly wage rates. Following reopening notices given first by Respondent and later by the Union, negotiation meetings were held on March 20, May 1, and June 7 and 14, 1962,' and were broken off by the Union on the latter date. On October 26 Respondent gave notice of its intention to terminate the contract and filed a representation petition with the Board, and there followed in November and December an exchange of corre- spondence during which the Union made requests that Respondent furnish certain information and that it negotiate for a new agreement. Respondent refused. The complaint was directed to Respondent's conduct during the wage reopener negotiations, and the amendment to its subsequent refusals to furnish information and to negotiate in November and December. In brief, the complaint charged that Respondent refused to bargain by notifying the employees before it did the Union that it had reopened the contract, by disparaging the Union through the publication to the employees of certain notices on May 4, 18, and 25, by knowingly permitting circulation of a petition among the employees despite a rule prohibiting the discus- sion of union affairs during work hours, by unilaterally establishing new job classifi- cations and changing the wage rates of the employees, by refusing to furnish the Union with certain wage and other information, and by informing the employees that layoffs would become necessary if wages were raised. The amendment covered the matters previously stated. As to the wage reopener negotiations, Respondent denied all the conduct with which it was charged, with the issues turning in part on certain conflicting testimony. As to the amendment, the decisive issue is whether Respondent was entitled to assert an alleged good-faith doubt of the Union's majority status. 'All events herein occurred in 1962 unless otherwise specified LAWN-BOY DIVISION OUTBOARD MARINE CORP. 537 Before turning to the merits of the case, I reject preliminarily certain technical defenses which relate to the fact that the original charge asserted a refusal to bargain only as to Local 683, whereas the amended charge as filed on December 4 asserted a refusal as to both the International and the local. Claiming that the amended charge injected a new cause of action, Respondent pleaded that most of the events oc- curred outside the Section 10(b) limitation period. Respondent's contentions are plainly without merit. The evidence established that the local and the International were certified jointly as the bargaining representative of the employees; the contract was signed by representatives of both and contained Respondent's recognition of both as the representative of its employees, and all negotiations were conducted jointly by both with Respondent. B. The negotiations and related conduct Respondent's chief officials at Lamar were Robert Floersch, division manager, Richard Chancellor, plant superintendent, Cecil Smith, master mechanic, and W. C. James, director of industrial relations. Its negotiators consisted of James, Dorsey Johnston, personnel and safety manager, Chancellor, and sometimes others. James was in direct charge of all matters concerning the negotiations and was the dominant spokesman for Respondent. The Union's negotiators consisted of an International Representative (John W. Vinson on March 20 and May 1, and David Hutchison on June 7 and 14) and of a committee from the local, consisting in part of Oswald Bishop, president, and Reed Adams, committeeman. The chief spokesmen for the Union were the International representatives. They and James and Chancellor were also the principal witnesses concerning the negotiations, though Bishop and Adams also testified for the General Counsel. Though most of the conduct which the General Counsel relies upon concerned positions which Respondent took during the course of the negotiations, there were other items of conduct away from the bargaining table which are also claimed to constitute unfair labor practices. Those were the alleged acts of notifying the em- ployees before it did the Union of Respondent's intention to reopen the contract, of permitting the circulation of the petition, and of informing employees that layoffs would become necessary if wages were raised. Those matters are covered in sections 1, 2, and 3, below, and the negotiations in sections 4 and 5. 1. The notice of wage reopening Respondent's letter of reopening was written and mailed to Vinson at the latter's address in Springfield, Missouri, on March 7, with a copy simultaneously to President Bishop, of the local, at his Lamar, R F.D., address Vinson's letter was received at his office on the morning of March 8, and was read to him over the telephone that morning. Bishop's was receipted for by his wife on the R.F.D. route around 9.30 a.m. Witnesses for the General Counsel testified that Respondent posted, on the after- noon of March 7, a notice to the employees concerning its wage reopener, along with a copy of its letter to Vinson and of its wage proposal. However, Dorsey, Johnston and James gave mutually corroborative testimony that Johnston posted the notice at James' direction around 1:30 p in. on the afternoon of March 8. I credit that mutually corroborative testimony, which received further corroboration from Bishop's testimony that James called him in and talked with him about the notice after he saw it posted on the bulletin board and afer his wife had received his copy. The Union's representatives at no time complained during the course of the negotiations that Re- spondent had notified the employees before it had the Union. 2. The circulation of the petition The General Counsel's position that Respondent knowingly permitted the circula- tion during working hours of a petition expressing a desire to accept Respondent's proposed wage increase rested largely on the contention that John Singer, who held the job of tool crib coordinator and who was active in soliciting and procuring sig- natures on the petition, was a supervisor. However, the evidence established to the contrary that Singer was an hourly paid employee within the bargaining unit and that he was without supervisory power or authority The evidence is undisputed that rumors concerning the petition reached manage- ment. Plant Superintendent Chancellor heard them and renorted to James, who had already heard the rumors and who had already instructed some of the supervisors not to permit circulation of the petition on working time. Indeed, James testified 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD without denial that Bishop was the one who reported to him that the petition was being circulated and that it was for the "opposition," but that Bishop refused to identify those who were responsible. Though James informed Bishop he proposed to drop the matter unless Bishop became more specific, he thereafter went through the plant checking with the supervisors, none of whom had seen anything unusual, though some of them also reported having heard the rumor. James' instructions to the supervisors were that though management could not stop employees from such activity during coffee breaks and rest periods, it certainly did not want it going on during working hours. Aside from the foregoing, Donald Veir testified that during the time the petition was being circulated, his supervisor, Ray Clark, remarked to him, "You must not need the money or you would sign the petition," and Harold Wynn testified that while he was in possession of one copy of the petition for the purpose of obtaining signatures, he inquired of Supervisor William Hardman if the Company knew about the petition and were in agreement with it. Hardman replied that he would find out, and he later returned and stated that, "[T]hey knew and they didn't know," and that "[Y]ou know what I mean." Hardman was not Wynn's supervisor, nor did Wynn claim to have shown Hardman the petition. Hardman's statement is thus reconcilable with the other testimony that Respondent's supervisors had heard rumors about the petition. 3. The alleged threat of layoff Reed Adams and Earl Williams, both electricians, testified that James and Super- visor Louis E. Hebenstiet informed them on June 7 and 8, respectively, that if the electricians insisted on getting more money in the negotiations, the Company would or might be forced to lay off one (of the five). Hebenstiet admitted that he informed Williams (who was junior in seniority) that, there was a possibility that if the Union persisted in trying to secure additional money for the electricians, the Company might plan a reduction, but added that that was his personal opinion James testified that his conversation with Adams occurred against the background of negotiations (in which Adams had participated) for an increase in pay for the electricians, coupled with a further union demand that the electricians should be used only on electrical work, rather than helping out on maintenance work as they had in the past. The Company had consistently met the latter demand with the suggestion that if electricians were to do only electrical work, then there were too many of them and that two or three (instead of five) would be sufficient James testified that his conversation with Adams on June 7 resulted from a report that Adams had been caught loafing on the job, and that when Adams expressed dissatis- faction with the progress of the negotiations as concerned the electricians, James repeated the Company's position in the negotiations as stated above, and suggested that Adams' loafing was a "bad example" to support Adams' demand for more money for the electricians Adams admitted on cross-examination that his conversation with James covered both the loafing on the job and the matter of electricians doing maintenance work as well as electrical work. He admitted further that the conversation was adverted to during the course of the negotiation meeting on June 14, and he affirmed the sub- stance of a portion of a tape transcription which tended to corroborate James' version of the conversation.2 I therefore credit James' testimony. 2 Respondent operated a 'tape recorder throughout the negotiations, without objection from the Union, and it also prepared from the tapes typewritten transcripts of portions of each meeting. The transcriptions were used extensively in cross-examining the General Counsel's witnesses, with the ultimate result that in many instances one or more of the witnesses agreed that the portions which were read correctly reflected either what was said or the substance of what was said To the extent that denials or qualifications were made, the tran'scriptions were corroborative of the testimony of Respondent's witnesses. I therefore now receive in evidence those portions of the transcriptions which were quoted to the witnesses on cross-examination, and I reject all other portions sf the transcriptions, as well as all of the tapes. The tapes, of course, would be valueless without extrinsic evid !nce to identify each speaker Aside from that, the transcriptions were confined to selected excerpts as chosen by James, and even those showed frequent omissions where transcription was impossible. Under all the circumstances, including the fact that witnesses were present who could and did testify directly concerning the course of the negotiations, I reject Respondent's offer of the tape's and the transcriptions independently of the testimony which was given by, or available from, the witnesses themselves. LAWN-BOY DIVISION OUTBOARD MARINE CORP. 539 4. Wages and job classifications; disparagement and unilateral action Respondent submitted to the Union along with its wage reopener notice a copy of its proposal for increasing the base hourly wage rates of all employees. The base rate of pieceworkers was to be raised 4 cents per hour. Increases to employees on hourly rated jobs ranged from 5 cents an hour to 20 cents an hour, and a new classifi- cation of machinist-helper was proposed. The Union submitted on March 29 its counterproposal calling for a different scale of increases mostly higher than Re- spondent's, though in some instances lower. During the negotiations on March 20 and May 1, Respondent made a number of concessions. It agreed to increase its wage offer for setup men and electricians, it agreed to a separate classification of janitor, with an increase, and it increased its offer on salvage men. There was also discussion of the job classifications of janitor, machinist-helper, product repair, salvage men, and salvage and material helper. As the May 1 meeting began, there was agreement on some 11 out of 19 classifications, and at the end of the meeting agreement had apparently been reached both on the wage increases and the classifications. Indeed, Vinson and James "recapped," item by item, what had been agreed to, with ultimate concluding remarks that there was agreement. Though Bishop, Adams, and Vinson insisted at various points in their testimony that no agreement was reached, that testimony cannot be credited over James' and Chancellor's testimony to the contrary since admissions by the former on cross- examination substantially confirmed portions of the tape transcriptions which were read to them (see footnote 2, above) and which plainly showed that the parties were in agreement and that all that remained was for Respondent to reduce the agreement to writing and for the Union to call a meeting of employees at which it would submit the agreement for ratification (though without recommendation). Vinson and Bishop, for example, confirmed the substantial correctness of the following excerpt, Mr. VINSON: Now, on the ratification. Bishop gets a place to hold a meeting so we can get it ratified, well then it will be done. I'll say ratified and when he notifies you, you have my word, I'll sign it. Mr. JAMES: Well, we would like to make it effective next Monday. Mr. VINSON: All right, we'll- Vinson and Adams admitted the substantial correctness of the following excerpt: Mr. JAMES: I'll write up something for you guys. Let me know if the people do or don't ratify it. Mr. VINSON. As far as the Company is concerned, this is an agreement? Mr. JAMES: Yes, the things that we talked about. Mr. VINSON: Then we've settled. Mr JAMES: We don't see any reason to withhold this increase from them any longer, we've got it agreed to .. . Vinson also confirmed the accuracy of the following excerpt: Mr. VINSON- Now, I say this, when the membership takes action, you write this up and IT sign it. Mr. JAMES: I'll send ah, I'll get enough copies, and mail them to you. Mr. VINSON: We'll do like we did the last time. Mr. JAMES: Yeah. Okay.3 On May 2, Vinson and Bishop wrote Respondent informing it of the membership's refusal to accept "the negotiated wage proposal" and requested it not to put the in- creases into effect. On May 4, Respondent posted a notice to employees, the first in a series of three upon which the General Counsel bases his claims of disparage- ment. After informing the employees (in material part) that following negotia- tions with the Union, a tentative agreement was reached on May 1 and that it was further agreed the wage increases would become effective on May 7, the notice continued: We have since been informed by the Union that this agreement was turned down at a so-called ratification meeting held by them at which only 15 union members (approximately 5% of our employees) were permitted to vote on the offer. $ Though a further excerpt Indicated that Vinson promised to recommend the agreement to the employees, he explained credibly that his statement to that effect was conditioned on insertion of a checkoff provision which the Company refused to agree to. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Our attorneys advise us that limiting voting on a wage offer to only members of the union is unlawful and therefore voids the vote at this meeting. This is due to the fact that the Union, under the terms of our agreement as well as under Federal Labor Law, is required to represent all employees-therefore all employees are entitled to vote. Yesterday, we advised the president of the Local Union of this fact. This morning Mr. Bishop advised the Company that he had contacted the members of the Committee and that the Union had refused to change their position. We have received a letter signed by the Union requesting the Company not to put the increases into effect as planned. At present there is some doubt in our mind as to whether we can put the in- creases into effect since the Union has specifically asked us not to do so. There- fore, the increases that had been agreed to will not be put into effect on Monday, as we had hoped. As we have previously advised the Union, these increases will not be retro- active We deeply regret this development On May 18, Respondent reported to the employees the receipt of a petition signed by a majority of the employees expressing the wish to accept the wage increases which the Company had proposed, stated its opinion that the Union "was not acting in the best interests of the employees" when it failed to ratify and refused to honor the agreement reached during the negotiations, and informed the employees that it would have to seek legal advice before taking action on the petition On May 22, Respondent wrote Vinson outlining the course of the prior negotia- tions, it referred to the rejection of the proposal at the membership meeting on May 2, and stated that in its opinion the meeting was unlawfully conducted because, in re- stricting attendance to members only, the Union had violated its obligation to repre- sent all of the employees. Adverting then to the Union's letter of May 2, the letter continued: Three weeks have now elapsed and we have had no further word from you. This lapse of time, and consideration of other facts as set forth above, cause us to believe that nothing can be gained by further prolonging the placing into effect of the increases, etc., which were agreed to on May 1st. Accordingly we wish to advise you of our intention to place into effect on May 28th the increases and other wage matters which were agreed to on May 1st with you and your committee. We ask that you honor this agreement with us in the interest of promoting harmonious relations between your Union, the Company and our employees. In any event, we ask that you do not misinterpret our intentions in the action we propose to take. If you are of the opinion that further negotiations should be held, our action should not be interpreted as restricting those negotiations in any way. Vinson neither acknowledged nor made reply to that letter. However, James testified, without denial, that around May 22 he discussed the contents of the letter with Bishop and that Bishop voiced no objection to putting the increases into effect, though they discussed the possibility of further meetings. On May 25, Respondent Hosted a notice to the employees that it proposed to put the increases into effect on May 28 On May 25, Bishop served on James a request for a meeting "to talk of wages." Following further correspondence concerning a suitable date, negotiations were re- sumed by agreement on June 7 and were concluded on June 14. Though the increases were not actually reflected in the employees' pay until after June 7, the Union at no time during the course of the resumed negotiations voiced objection to the fact that Respondent was putting the increases into effect James' testimony to that effect received corroboration from Adams, who also confirmed on cross-examination por- tions of the tape transcriptions which corroborated James' further 4 on the point that what was in issue was the Union's requests for more money for some five classifica- tions. In view of Adams' admissions on cross-examination I do not credit his testimony on redirect examination that he in fact did object, as a union representative, to the Company putting the wage increases into effect LAWN-BOY DIVISION OUTBOARD MARINE CORP. 541 5. Requests for information Two main items of information which figured in the testimony concerned Re- spondent's incentive plan and employees who were being paid in excess of the base hourly rates. There is no substance to contentions made by the General Counsel's witnesses that Respondent refused to furnish information concerning the plan itself. Thus the evidence established that Vinson in fact had a copy of the plan (which had been in effect since 1957), that he quoted from it at the March 20 meeting, that he and Chancellor discussed it, and that he was assured that the same plan continued in effect without change. Vinson admitted that he was so informed, but testified that he did not believe the Company's representations. However, he did not inform the Company of his doubts. Hutchison renewed an inquiry about the incentive plan when he came into the negotiations on June 7, and James informed him that Vinson had a copy of the plan and had read from it during an earlier meeting. Hutchison stated that he would check with Vinson, and he did not pursue the matter further. As to employees who were being paid above the base hourly rates (i.e , "red circle rates"), Vinson inquired on March 20 how many there were, and James replied that there were some six or eight of them. Vinson did not pursue the matter further, and testified that though he thought James was "lust guessing," he took James' statement at face value. On June 14 Hutchison inquired again how many employees were paid at rates in excess of the base hourly rates and James replied that there were "some" or "several," that he did not recall at the moment the exact number, but that he had given the information to Vinson previously. There was also confused testimony by Adams concerning an inquiry of James on June 14 whether James would furnish him, if he came to the office, the names of employees who were being paid more than the current rates for their classifications. At one point Adams testified that James refused, stating that it was none of his business, but elsewhere he testified that James informed him that he "could come to the office at any time and get the names of any individuals." Furthermore, Adams affirmed on cross-examination excerpts from tape transcriptions which showed (cor- roborative of James' testimony) that Adams so inartificially phrased his request that it related to attempts by "a member" of the Union (rather than by himself in his capacity as a representative of the Union) to obtain such information from the office and that it was in that sense which James understood and answered the question. Although Hutchison's testimony appeared to corroborate Adams' first version that James refused to furnish information to Adams, that testimony must be evaluated in the light of Adams' acceptance of the tape transcription as substantially correct. I therefore find that there was no request by the Union as such and no re- fusal to furnish to the Union the information which Adams inquired about in the June 14 meeting. The Union's remaining requests for information related to classifications, rates of pay by classifications, names of employees, and average incentive earnings, which Vinson testified he asked for in the March meeting The evidence established that Respondent furnished the number of employees in each classification and the wage rates for each classification, that the parties worked from those, and that in fact the Union's counterproposal was based on and incorporated that information. Though Vinson contended that Respondent did not furnish the information on in- centive earnings, he affirmed excerpts from the tape transcriptions which showed that James supplied across-the-table incentive earnings on a variety of items, and that in instances where James was unable to supply the precise information requested, there was no request or suggestion from the Union that negotiations be suspended until the information was furnished.5 To the contrary the negotiations proceeded throughout Vinson's participation with the Union indicating its apparent satisfaction with such information as James was able to supply on the spot Certainly at the conclusion of the May 1 meeting there was no indication that there remained any items on which the Union desired additional information which would require postponement of ratification or the signing of the contract. As for the June meetings, Hutchison testified that on June 7 he asked Resnondent for a breakdown of all incentive workers by individual and by classification and G Testimony by Vinson and other union representatives showed that although they questioned (mentally) the authenticity or accuracy of some of the information which James supplied them, they did not inform Respondent of their doubts at any time during the course of the negotiations. Indeed, James testified that their testimony at the hear- ing was his first knowledge that they questioned the correctness of any of the informa- tion which he supplied. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that James explained that that would be a difficult task because Respondent did not keep its records in a manner which would easily reflect the information sought. Hutchison testified, however, that when he asked James to breakdown the average earnings by classifications James stated he could not supply that information. James testified that Hutchison asked for a breakdown of the earnings of employees by classification and that when he replied he did not have such information with him but did have information by occupational groups, Hutchison replied that that would be satisfactory and that Hutchison seemed to be content because he did not renew his request again. Hutchison admitted that the Company supplied him on request with the average earnings of the employees and he admitted further that Respondent informed him that six classifications listed on its wage schedule were those of the incentive workers, though he, like other witnesses for the General Counsel, testified to doubts as to the accuracy of the information. Though Hutchison also testified that he requested information as to minimum and maximum hire rates, it was apparent from his entire testimony, particularly on cross- examination, that what he was requesting was that those rates be incorporated into the contract. Though Hutchison also testified that the Union asked James for the names of employees who were being paid above the base rates, it was apparent from his entire testimony that the latter request related to Adams' exchange with James in which Adams inquired whether "a member" could come to the office and obtain the information. To the extent that conflicts exist in the testimony concerning the June meetings, I credit James' testimony, which was again corroborated by the excerpts from the tape transcriptions on which the General Counsel's witnesses were examined. C. The subsequent conduct covered by the amendment The existing contract provided that it should continue in effect until December 31, 1962, and from year to year thereafter unless either party should give 60 days' written notice prior to December 31, 1962, that it wished to amend, modify, or change the agreement. On October 26 Respondent notified the Union of its intent to terminate the contract and to file a representation petition with the Board because of its doubt of the Union's majority. On November 12, the Union wrote Respondent requesting that it supply certain information as listed in 10 separate items, as "necessary for the preparation and presentation of a proposal and negotiations" with the Company. Respondent replied on November 23, referring the Union to its letter of October 26 and to the status of its representation petition before the Board and informed the Union that it dis- puted the bargaining obligation which the Union assumed to exist. Respondent also informed the Union that until both its representation petition and the Union's pending charge against the Company were resolved, it deemed the Union's request to be premature, but that if the Board should determine that Respondent was obligated to continue bargaining, it would supply the information On December 18 the Union sent Respondent a wire and a letter in which it re- quested a meeting to negotiate a modification of the current agreement or the con- summation of a new one prior to December 31. Respondent replied on December 20 rejecting the request and questioning the Union's sincerity in view of Respondent's termination notice and the unresolved matters pending before the Board. In support of its asserted good-faith doubt of the Union's majority status, Re- spondent relies upon the following evidence: At the time of the September 1960 election there were approximately 215 em- ployees in the unit, of whom 112 voted for the Union and 99 against. In early February 1962, Vinson expressed to James in a telephone conversation doubt that the Union would reopen the contract, because it had only about 18 to 30 members, and stated that unless more of the employees should support the Union, it "might just forget the whole thing" Vinson not only did not deny that testimony, but there was other evidence which confirmed the Union's weakness regarding member- ship. Thus on February 2, the local distributed to employees a notice which stated in part, "About half of us joined and paid dues and then started dropping off and not supporting the local. Others failed to join." The ratification meetings of May 2 were limited in attendance to members only. Though an exact count is not possible from the record, the evidence showed plainly that at the outside not over 25 or 30 attended. The foregoing facts were known to Respondent and were commented on in its notice of May 4 to the employees. In addition, comments were made during the negotiation meetings on the Union's membership problems and the consequent weakness of its bargaining position. LAWN-BOY DIVISION OUTBOARD MARINE CORP. 543 There was no evidence that the Union put on a membership drive between May 1 and December 31 or that it made any other effort to increase its following among the employees. D. Concluding findings I conclude from my findings of fact under section B, 1 and 2, supra, that the General Counsel did not establish by a preponderance of the evidence that Respond- ent notified the employees before it did the Union that it was reopening the contract and did not establish that Respondent knowingly permitted the circulation of the petition during working hours. Despite Bishop's refusal to give James specific infor- mation concerning the petition, James instructed the supervisors not to permit its circulation during working hours. The only evidence which indicated that Respond- ent was in any way sponsoring the petition was Supervisor Clark's comment to Vier concerning Vier's apparent failure to sign. However, I do not find that that single isolated statement is sufficient to establish Respondent's responsibility for the cir- culation of the petition. I also reject contentions of the General Counsel and the Union, respectively, that Respondent, by posting the notice of May 18, "sanctioned" or "adopted or ratified" the petition. To acknowledge receipt of a petition from employees is plainly not the equivalent of sanctioning or ratifying it or ackowledging responsibility for its circulation. As to the alleged threat of layoff (section, B 3, supra), I find that James' statement to Adams was no more than a repetition of Respondent's position on the elections issue in the bargaining negotiations, with which Adams was thoroughly familiar as a participant. The Hebenstiet-Williams conversation, on the other hand, bore no rela- tion to Respondent's bargaining position, nor was there indication that either super- visor or employee was aware of Respondent's position in the negotiations Though I credit Williams' version of the conversation (being unimpressed with Hebenstiet's attempts to qualify and sterilize it) and though I find that Hebenstiet's statement was coercive and a violation of Section 8(a)(1), I do not find that it constituted a refusal to bargain. Turning now to the negotiations proper (section B, 4 and 5. supra), and considering first those in which Vinson participated, I conclude and find that the General Counsel did not establish by a preponderance of the evidence that Respondent refused to bargain in the respects alleged in the complaint during the course of the March 20 and May 1 meetings. Indeed, an agreement was reached in the latter meeting which was assumed to be a final one, as ratification was plainly anticipated; and though submission was to be without recommendation from the Union, it was clear from Vinson's testimony that his withholding of recommendation was due solely to the fact that Respondent did not choose to pay his price, i.e., inclusion of a checkoff clause. Insofar as requests for information were concerned, Respondent had supplied such data as it had available, though James was not always able to supply the precise information which the questioner sought. In no case, however, did the union repre- sentatives express dissatisfaction with what James furnished or express the doubts of authenticity or accuracy which they testified as witnesses they actually entertained, nor did they at any time suggest that the negotiations be suspended while James procured more detailed information. Thus, even if James' responses did not always fully meet the Union's inquiries, it made no point concerning any deficiencies and it proceeded without objection and without impediment, so far as the evidence showed, to negotiate to a settlement of all issues. As for the June meeting, Hutchison's requests were directed in part to informa- tion which James had previously furnished to Vinson, and in some other respects Hutchinson's requests were met across-the-board. As for the remaining requests, Hutchison either indicated satisfaction with what James was able to supply on the spot or indicated no desire to put James to the burdensome task of supplying other information which was not readily available from Respondent's records. Thus I conclude and find on the entire evidence that to the extent the Union made a point of specific items of information, its requests were met across the bargaining table during the course of the negotiations. As to the alleged unilateral actions, the record showed that Respondent proposed to make the wage increases effective immediately after the anticipated ratification of the agreement but that, yielding to the Union's request of May 2, it refrained from putting the increases into effect. On May 22, after hearing nothing from the Union for 3 weeks, Respondent notified the Union it proposed to put the increases into effect as of May 28, asked the Union to honor the agreement of May 1, but informed it that if the Union desired further negotiations, Respondent's actions would not in any way be restrictive of those negotiations. The Union made no reply; and Bishop, the local's president, made no objection to Respondent's proposed action 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when apprised of it by James around May 22 and his written notice to James deliv- ered on May 25 likewise stated no objection. Similarly on June 7, though the in- crease had not yet reached the employees, the union negotiators did not request Respondent to withhold it. Though the bargaining situation after May 2 was not such that it can be termed an "impasse," it seems doubtful that Respondent's act can properly be called unilateral. To the contrary, the Union's actions (or its failure to act) and its failure to object, despite ample notice and repeated opportunities, seemed plainly to indicate acqui- escence in Respondent's proposed action. Certainly the Union was not entitled to stand mute on its request of May 2 after Respondent gave formal notice of its inten- tion to act. In any event this is not a case of "Unilateral action by an employer without prior discussion with the union" which would "amount to a refusal to negotiate" and would "of necessity obstruct bargaining." N.L.R.B. v. Benne Katz, etc., d/b/a Williams- burg Steel Products Co., 369 U.S. 736, 747. The Supreme Court there distinguished the situation before it from "one wherein an employer, after notice and consulta- tion, `unilaterally' institutes a wage increase identical with one which the union has rejected as too low," citing N.L.R.B. v. Bradley Wash fountain Co., 192 F. 2d 144, 150-152 (C A. 7) , and N.L.R.B. v. Landis Tool Company, 193 F. 2d 279 (C.A. 3). Furthermore, as the Court observed in N.L.R.B. v. Crompton-Highland Mills, Inc., 337 U.S. 217, 224: ... [A] unilateral grant of an increase in pay made by an employer after the same proposal has been made by the employer in the course of collective bar- gaining . . . left unaccepted or even rejected in those negotiations . . . might well carry no disparagement of the collective bargaining proceedings. Instead of being regarded as an unfair labor practice, it might be welcomed by the bargaining representative, without prejudice to the rest of the negotiations .... The evidence here showed neither welcome nor objection, but acquiesence by the Union, and the later negotiations proceeded, without prejudice, with the Union simply asking for higher increases in some five classifications. What has been said concerning wages applies as well to the alleged unilateral establishment of job classifications. By the end of the May 1 meeting, no issue remained between the parties concerning the additional, or changed, job classifica- tions which had been proposed either by the one or the other. All had been discussed at length, and the concluding colloquies showed that agreement had been reached on all bargaining issues. I therefore conclude and find from all the evidence that though there was no impasse in bargaining, there was acquiescence by the Union in Respondent's act of putting into effect both the wage increase and the job classifications in the manner and form as previously negotiated. We turn now to the notices to the employees and the issue of disparagement. The notice of May 4 was for the most part a factual communication to the employees concerning the negotiation of the agreement with the Union, its rejection in a union meeting, the receipt of the Union's request not to put the increase into effect and of Respondent's intention to honor that request. Such communications by an em- ployer direct to employees regarding the status of bargaining negotiations have many times been held not to be violative of the Act. See, e g, Anchor Rome Mills Inc., 86 NLRB 1120, 1137-1138, 1163; Harcourt and Company, Inc., 98 NLRB 892, 894; The Elwell-Parker Electric Company 75 NLRB 1046, 1056; E. P. Jacobs, Sr., et al., d/b/a Jacobs Manufacturing Company, 94 NLRB 1214, 1225; Joseph E. Cote, d/b/a J. E. Cote, et al., 101 NLRB 1486, 1489. The paragraph to which the brunt of the General Counsel's and the Union's attack is directed is the following: Our attorneys advise us that limiting voting on a wage offer to only members of the union is unlawful and therefore voids the vote at this meeting. This is due to the fact that the Union, under the terms of our agreement as well as under Federal Labor Law, is required to represent all employees-therefore all employees are entitled to vote. The General Counsel contends that thereby Respondent went "far beyond merely truthfully advising the employees of the course of the negotiations" and thereby undermined and disparaged the Union. The Union urges that Respondent falsely accused it of conducting an unlawful and void vote. Respondent argues on the other hand that it simply informed the employees of the opinion of its attorneys that the ratification meeting, being limited to union members, was unlawful, and that it was not unlawful so to inform them, whether the opinion was right or wrong. LAWN-BOY DIVISION OUTBOARD MARINE CORP. 545 Under the circumstances here, I do not find that Respondent's communication to the employees of the opinion of its attorneys constituted disparagement or under- mining of the Union. Cf. Armco Drainage & Metal Products, Inc., Fabricating Di- vision, etc., 106 NLRB 725, 742, enfd. 220 F. 2d 573, 578-580 (C.A. 6). See also S. W. Evans & Sons, 81 NLRB 161, 170, where a much stronger case was presented for derogation from the union's status than the present one. There, after strongly criticizing a decision of the Board as wrong and unfair, the company notified the employees it did not intend to allow the union which represented only a small number of the employees to decide the wages, hours, and working conditions of the great majority and that it did not intend to abide by the Board decision, because of its unfairness, until ordered to do so by the courts. The Board held that that notice did not derogate from the union's status and, further, that even assuming arguendo that it did, it constituted the company's opinion or interpretation of the Board's decision and stated its views regarding its future dealings with the union. As for the May 18 notice, the General Counsel points to the statement that in the Company's opinion the petition "clearly indicates that the Union was not acting in the best interests of the employees when the Union refused to honor the agreement they had reached with the Company during the last negotiations," and he urges further that by it Respondent took official notice of and sanctioned the circulation of the petition. As it has been found that Respondent was not responsible for the circulation of the petition, it cannot be found that it sanctioned its circulation, after the fact, simply by informing the employees that it had been received. Respondent was also entitled to remind the employees that the increases which they sought had been rejected in a union meeting and to express its opinion that such action was not in the best interests of the employees. The notice neither expressed nor implied a desire to deal directly with the employees, and it was thereafter to the Union that Respondent gave formal notice on May 22, that it proposed to put the increases into effect I therefore conclude and find that the notice of May 18 did not constitute either disparagement or undermining of the Union The General Counsel objects that the notice of May 25 did not mention the Union or state that the increases were the result of any bargaining with the Union How- ever, that information was contained in the earlier notices of May 4 and 18 The employees were therefore fully informed that the increases they were to receive were those which the Union had previously negotiated Furthermore, Respondent had previously notified Vinson, formally, and Bishop informally, of its intention and had heard no objection from either. I therefore find no disparagement or undermining of the Union through the posting of the May 25 notice. Turning now to the amendment (section C, supra), the issue whether Respondent refused to bargain as there alleged turns on the question whether it was entitled to assert a good-faith doubt of the Union's majority. That question depends in turn on whether Respondent was guilty of unfair labor practices as charged in the original complaint and whether any loss of majority by the Union was attributable to those prior unfair labor practices. I have found above that Respondent did not refuse to bargain during the period of the negotiations, and I have also found that it engaged in no other unfair labor prac- tices save for a single isolated violation of Section 8(a) (1). I find further that that single violation (which is too minor to require a remedial order) could have had no substantial effect on the Union's following among the employees. Furthermore, the evidence showed that the loss of the Union's following had antedated the wage re- opener and was so pronounced as to cause the International's representative to con- sider abandoning the contract.6 No evidence was offered that the Union took any steps to increase its membership save for its notice of February 2, in which it com- plained of its lack of support and in which it called for a special meeting of em- ployees to consider the question whether to reopen the contract. There was no showing, however, that the Union attracted additional following from that activity. To the contrary, the later results at the ratification meetings indicated plainly that there had been no substantial accretions The normal presumption of the continuing majority of a certified union will not override the evidence here, emanating mainly from the union side, that the Union was in fact without a substantial following Indeed, the General Counsel apparently con- cedes the actual loss of majority, for he argues at one point in his brief that, "the loss of the Union's majority in the instant case is due, at least in part, to the various unfair labor practices committed by the Respondent." 9 Whether from neglect, lack of leadership, or other reason neither appears from the evidence nor is relevant in view of the finding herein that the loss was in no wise at- tributable to any unfair labor practices committed by Respondent. 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, regardless of the Union's actual majority status, the evidence upon which Respondent relied plainly furnished reasonable grounds for doubting the Union's majority; and concurrently with giving notice of termination of the contract, it initi- ated a representation proceeding in which the issue could be determined by the Board. I therefore conclude and find that the Respondent was entitled to assert its doubt of majority in refusing to furnish the information requested by the Union on Novem- ber 12, and in refusing to meet and bargain for a new contract as requested on December 18. Because of those conclusions I do not reach the argument of the parties concerning the proper type of remedial order to be entered assuming that unfair labor practices were found which did not contribute to the Union's loss of majority. Cf. Midwestern Instruments, Inc., 133 NLRB 1132; Mission Manufac- turing Company, 128 NLRB 275. However, it is to be noted that the Union's loss of its following occurred before the conduct with which Respondent is charged. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By informing an employee that a layoff would be necessary if the electricians persisted in their efforts to obtain a wage increase , Respondent engaged in interfer- ence, restraint, and coercion within the meaning of Section 8 (a) (1). 4. Except as stated in conclusion of law No. 3, supra, Respondent has not en- gaged in unfair labor practices as alleged in the complaint. RECOMMENDATION As I find that the single isolated violation of Section 8(a) (1) was too minor in character to warrant the issuance of a remedial order,? I recommend that the comr plaint be dismissed in its entirety. 7 Cf. Middletown Manufacturing Company, Inc., 141 NLRB 234. Ideal Baking Company of Tennessee, Inc. and American Bakery and Confectionery Workers International Union , AFL-CIO Ideal Baking Company of Tennessee, Inc. and American Bakery and Confectionery Workers International Union , AFL-CIO. Cases Nos. f26-CA-1167 and 26-RC-1663. June 28, 1963 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On April 20, 1962, Trial Examiner Frederick U. Reel issued his Intermediate Report in the above-entitled consolidated proceeding, finding that the Respondent had not engaged in certain unfair labor practices alleged in the complaint and recommending that the com- plaint be dismissed. He recommended, however, as more fully set forth in the attached Intermediate Report, that the representation election held on October 18, 1961,1 in Case No. 26-RC-1663, be set aside and a new election held. Thereafter, the General Counsel, American Bakery and Confectionery Workers International Union, 1 Unless otherwise indicated, all events described herein occurred in 1961. 143 NLRB No. 14.