C. J. Glasgow Co.

98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD udice to his seniority or other rights and privileges , and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him, by making payment to him of the sum of money equal to the amount he would have earned from the date of the discrimination to the date of the offer of rein- statement,2' less net earnings during said periods to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth by the Board in Isis Plumbing & Heating Co., 138 NLRB 716.22 In this regard it is further recommended that the Respondent preserve and, upon request, make available to the Board or its agents, for examina- tion and copying, all payroll records, social security payment records , timecards, personnel records and reports , and all other records necessary to compute the amount of backpay. In view of the fact that the unfair labor practices committed are of the nature which strikes at the root of employee rights safeguarded by the Act, it is further recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Metals Engineering Corporation is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Electrical, Radio and Machine Workers, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By interfering with , restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, as above found, Respondent has en- gaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 4. By discriminating in regard to the hire and tenure of employment of James V. Luster, thereby discouraging membership in and activity on behalf of the above- named labor organization, the Respondent has engaged in and is engaging in un- fair labor practices within the meaning of Section 8(a)(3) and ( 1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 91 See A.P.W. Products Co, Inc., 137 NLRB 25. = See Reserve Supply Corporation of L.I , Inc. v. N.L.R.B., 317 F. 2d 785 (C.A. 2). C. J. Glasgow Co. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO. Case No. 13-CA-5200. -August 3, 1964 DECISION AND ORDER On May 20, 1963, Trial Examiner Morton D. Friedman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. He also found that Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of these allegations of the complaint. Thereafter, the Respondent and 148 NLRB No. 13. C. J. GLASGOW CO. 99 the General Counsel filed exceptions to the Intermediate Report and supporting briefs,' and the Charging Union filed exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the additions and modifications noted herein 2 1. The Trial Examiner found that the wage increases granted by the Respondent around September 4 were made in the normal course of business and as such were lawful. In reaching this conclusion the Trial Examiner relied on the testimony of the Respondent's president, Glasgow, inasmuch as Glasgow's testimony, according to the Trial Examiner, was partially substantiated by the Respondent's pay records. Glasgow testified that in June, well in advance of the Union's organizational campaign, the Respondent adopted a policy with regard to wage adjustments calling for employees in the laborer category to re- ceive a 5-cent wage adjustment after approximately 30 days' em- ployment and a further 5-cent wage adjustment after 60 days' employ- ment. He further testified that this policy was carried out in general but that the office employee who was in charge of such matters was incapacitated which caused the wage adjustment program to fall behind. However, according to Glasgow, as soon as this office employee 3 On June 26, 1963, the General Counsel timely filed its "Brief in Support of Excep- tions of General Counsel to Intermediate Report of the Trial Examiner ." However, the General Counsel included as part of his brief to the Board, a copy of the brief he had previously filed with the Trial Examiner . The Respondent moved to strike that portion of the General Counsel's brief which had been filed with the Trial Examiner on the grounds that it constitutes a reply to the Respondent 's brief contrary to the June 10, 1963, order of the Board , and contrary to the provisions of Section 102.46 ( a) of the Board's Rules and Regulations, 'Series 8, as amended. We hereby deny the Respondent's motion to strike. That portion of the General Counsel 's brief now objected to by the Respondent was submitted in support of the General Counsel 's exceptions and in support of those findings of the Trial Examiner with which the General Counsel is in agreement. Neither the Board's Rules and Regulations nor the June 10 order barred the submission of this brief The request of the Respondent for oral argument is hereby denied, as the record and briefs adequately , present the issues and the position of the parties. 2 In the absence of exceptions thereto , we shall adopt pro forma the Trial Examiner's recommendation that the alleged 8(a) (1) violation relating to the Walls-Hughes con- versation of September 6 be dismissed In adopting the findings of the Trial Examiner that the Union on August 13 possessed authorization cards signed by a majority of the employees in the unit , we need not count the authorization card of Studebaker which , although signed by Studebaker on August 13, was not turned over to the Union until "one or two days later." 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD returned to work the wage adjustments were brought up to date, which explains why so many employees received a wage increase on or about September 4. Both the Charging Union and the General Counsel except to the Trial Examiner's findings and contend that the Respond- ent's payroll records do not support Glasgow's testimony, and that the wage increases in question were unlawfully motivated and were granted for the purpose of inducing the employees to abandon their support of the Union.' We find merit in these exceptions. We have carefully examined those payroll records introduced in evidence, and find that the records, as contended by the General Coun- sel, specifically refute the findings of the Trial Examiner to the effect that before the advent of the Union the Respondent had established a policy of giving a 5-cent raise to employees in the laborer category after 30 days' employment and another 5=cent raise after 60 days' employment. The payroll records-show that the Trial Examiner im- properly relied on the wage pattern of Hobbs and Berogan as estab- lishing such a wage policy. Indeed, Respondent's payroll records reveal that Hobbs and Berogan were hired on May 11 and 12, respectively, rather than June 11 and 12, as found by the Trial Examiner, and received their first 5-cent wage increase after 60 days' employment, not 30 days, and did not receive their second 5-cent wage increase until they had worked for 120 days. These payroll records further establish that only one employee in the Respondent's plant received an automatic wage increase after 30 days' employment, but that he did not receive such increase until after the Union's demand for recognition. Accordingly, Glasgow's testimony regarding Re- spondent's wage policy receives no support from its own payroll records. Instead, the records introduced during the course of the hearing refute Glasgow's testimony., It further appears that Glasgow's explanation that. the wage policy was not implemented because of the illness of an office employee is also refuted by Respondent's payroll records. Thus, these records show that some 15 other wage changes were made during this em- ployee's absence. Moreover, it is undisputed that the alleged wage adjustment policy was never announced or communicated to the em- ployees. Accordingly, in view of Respondent's payroll records which have been herein introduced in evidence, we are unable to rely upon the self-serving testimony of Respondent's president, and we find that the reason given by the Respondent for granting the -wage in- creases on or about September 4 are not supported by the record. In view of the foregoing, and after carefully considering the entire record, particularly the timing of the wage increase, less than a month after the Union's recognition demand, and the matter of un- lawful conduct found elsewhere herein, we are persuaded that the motivating factor for instituting the wage increase was to persuade its C: J. GLASGOW CO. , 101 -employees to abandon their support of the Union. Accordingly, we find, contrary to the Trial Examiner, that the wage increase thereby violated Section 8 (a) (1) of the Act.' 2. On October 20, Leone, Respondent's secretary, engaged employee Jerry Staton in a conversation at, Staton's work station. Staton, a laborer, was engaged in on=the-job training to become a welder. Leone asked Staton what the latter was doing and Staton answered that he was welding. Leone then told Staton that if the Union were to come. in Leone did not know if Staton could continue to do welding unless the Union had an apprenticeship program; that if there were no ap- prenticeship program Staton would have to learn welding elsewhere.4 The Trial Examiner found that this incident did not contain a threat to Staton of reprisal for engaging in union activity and was not other- wise violative of the Act. We agree with the exceptions of the Gen- eral Counsel and the Union that, under all the circumstances, Leone's remarks were coercive and were intended not as a mere prediction of probable consequences of the unionization of the plant but as a threat to Staton's economic security. In our opinion, such remarks were clearly intended to -place -Staton on notice that if the plant were organized he would no longer be permitted to learn welding at the plant with the resultant loss of opportunity to improve his job status. Contrary to the Trial Examiner, we find, therefore, that the above conversation was violative of Section 8 (a) (1) of the Act.' ORDER Pursuant to-Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner, as modified herein, and orders that the Respondent, C. J. Glasgow Co., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order with the following modifications : 1. 'Substitute the following for paragraph 1(b) : (b) Threatening its employees Was plant closure or loss of job opportunity should the Union win the election; inducing its em- ployees in the context of threats to abandon their union member- ship and to form and join an independent union; discharging 8 See Admiral Linen Service, 138 NLRB 361, 378. Cf. Derby Coal & Oil Co., Inc., et al., 139 NLRB 1485, 1486. The Trial Examiner also found that in this same conversation , as detailed in his Intermediate Report, Leone made references to Staten 's "leader" and remarks were inter- changed as to the merits of the union . The record shows, however, that this latter con- versation took place a few days later rather than in the same conversation . The latter conversation was considered in connection with the above incident as evidence that Leone knew of Staten 's interest in the Union. 5 See Plaskolite, Inc., 134 NLRB 754, 760, 761 ; Sachs & Sons and Helen Sachs, Inc., 135 NLRB 1199, footnote 1. 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees for engaging in union activity or other protected ac- tivities; or granting wage increases in order to induce its em- ployees to abandon their union membership or activity. 2. Substitute the following for the last paragraph : It is further recommended that paragraphs VI (a) and (b) and paragraph VII of the complaint be dismissed. The notice is hereby modified by deleting the second indented para- graph and substituting the following therefor : WE WILL NOT threaten our employees with plant closure or loss of job opportunity should the Union win the election; nor will we induce our employees in the context of threats to abandon their union membership or to form and join an independent union; nor will we discharge employees for engaging in union activity or other protected activities; nor will we grant wage increases in order to induce our employees to abandon their union member- ship or activity. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed October 12, 1962, by International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, herein called the Union , the General Counsel for the National Labor Relations, Board, herein called the Board, by the Regional Director for Region 13, issued his complaint dated November 30, 1962, against C. J. Glasgow Co., herein called the Respondent or the Company, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sec- tion 8 (a)(1),' (3), and (5 ) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended (61 Stat. 136), herein called the Act. The Respondent's. answer to the complaint denied the allegations of statutory violations therein. Copies of the complaint, the charge, and the notice of hearing were duly served upon all of the parties. Pursuant to notice, a hearing was held at Sterling, Illinois, on February 6, 7, and 8, 1963, before Trial Examiner Morton D . Friedman . All parties were repre- sented by counsel. Full opportunity to be heard , to examine and cross-examine witnesses, and to introduce evidence was afforded all parties . The parties waived oral argument. After the close of the hearing all of the parties filed briefs which have been duly considered. Upon the entire record in the case, and from my observation of the witnesses,2 I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT During the year 1962, the Respondent, in the course and conduct of its business operations, sold and shipped goods valued in excess of $50,000 from its Dixon, ]The complaint was amended at the hearing to allege additional 8(a)(1) violations. The Respondent denied generally these additional allegations. 2 Unless specifically indicated to the contrary, any credibility evaluation I make of the testimony of any witness appearing before me is based, at least in part, upon his de- meanor as I observed it at the time the testimony was given. Cf. Retail Clerks Inter- national Association, AFL-CIO, Local 219 (National Food Stores, Inc ), 134 NLRB 1680, footnote 3; Bryan Brothers Packing Company, 129 NLRB 285 To the extent that I in- dicate that I do not rely upon or reject in part or entirely the testimony of any given witness, it is my intent thereby to indicate that such part or whole of the testimony, as the case may be, is discredited by me Jackson Maintenance Corporation, 126 NLRB 115, 117, footnote 1, enfd. 283 F. 2d 569 (C.A. 2). C. J. GLASGOW CO. 103 Illinois, plant directly to customers in States other than the State of Illinois. Dur- ing the same period, the Respondent received goods and materials valued in excess of $50,000, which goods and materials were shipped directly to its plant in Dixon, Illinois, from points outside the State of Illinois. It is admitted and I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, the Union herein, is conceded to be a labor organization within the meaning of the Act, and I so find. III. THE UNFAIR LABOR PRACTICES A. The issues The complaint, as amended at the hearing, alleges, in substance, that the Re- spondent by its officers and supervisors made threats of discharge or other reprisal to its employees for their union activities; engaged in interrogation into its em- ployees' union desires and activities; made promises of benefit to induce employees to refrain from becoming or remaining members of the Union; discharged an em- ployee for engaging in union activity; told its, employees to abandon the Union and form their own labor union and granted unilateral wage increases to 'discourage union membership and activity, all of the foregoing in violation of Section 8(a)(1) of the Act. The complaint further alleges that the Respondent laid off most of its employees for the purpose of discouraging membership in the Union or activity in its behalf in violation of Section 8(a)(3) of the Act. Additionally, the complaint alleges that the Union, as majority representative of the Respondent's employees, requested the Respondent to recognize and bargain with it but the Respondent has continually refused to do so and at the same time has committed the acts set forth above for the purpose of undermining the Union and destroying its majority among the Re- spondent's employees in violation of Section 8(a) (5) of the Act. The Respondent's answer generally denies the violation while admitting certain acts. Thus the answer denies that certain remarks alleged by the complaint to constitute threats were made. At the same time it contends that admitted utter- ances and acts were either protected or otherwise innocent in purpose and devoid of discriminatory motivation. With regard to the alleged refusal to bargain with the Union, the answer contends that the Respondent had and still has a good-faith doubt as to the Union's majority status, arising in part from the Union's failure to follow up its single request for recognition and bargaining with any other action aside from filing a representation petition with the Board within a few days after the request to bargain was made. The Respondent also contends that with regard to the Union's claimed majority, the cards cannot be relied upon because they were obtained by misrepresentation. B. Background The Respondent has, in the past, been engaged in structural steel fabrication and in the welding and manufacturing of heavy steel equipment. This manufac- turing was carried out at a plant in Highland Park, Michigan, near Detroit, and some years before that at Adrian, Michigan. The Adrian plant has been closed down about 5 years. In early 1962 the Respondent decided to devote its manufacturing to only one product, shock mounted, pressurized, shipping containers. To this end, it was decided to lease an additional plant at Dixon, Illinois, for the fabrication of a certain model container known as TX-200 for the Allison Division of General Motors Corporation, to be used by Allison for the overseas shipping of automotive transmissions. These containers are described as coffinlike, divided in two parts longitudinally with a gasket, or 0-ring, between the two halves which insures that air and moisture will not enter; this in turn insures that the transmissions shipped in such containers will not rust or corrode. The principal manufacturing process in the fabrication of the containers is welding and the containers must undergo a test whereby when completely assembled and fastened together they must withstand or be able to retain an air pressure of approximately 5 pounds in much the manner that an automobile tire retains air. Thus, it is clear that the welding must be done so skillfully that all of the seams must be completely closed by the welding proc- ess so that no air can escape or air or moisture enter once the container is closed. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This container is 24 inches long, 36 inches wide, and 36 inches high and weighs about 200 pounds empty. As stated before the container is the only product fabricated at Dixon and the entire production at all material to this, proceeding was destined for Allison. In early May 1962, Allison agreed to purchase 1,100 con- tainers and later for the same month this order was'increased to.1,600 containers. The Respondent began recruiting prospective , employees for its Dixon plant in May and June 1962, and by the end of June the plant became operational. Thus in July and August production of the containers was in process. C. The facts Toward the end of July 1962, employee Walter McSparen, a welder, wrote to -the Union and arranged for a meeting to be held at a motel near Dixon on July 31. At that meeting, the Union was represented by Carl Shier , International representative. Attending the meeting were employees McSparen , William Marine, Cecil Kearns, Jerry Staton, Norman Peterson, Lyle Evans, and Robert Peska. All of the employees who attended that meeting signed cards that night . McSparen and Marine took additional cards from Shier and distributed them in the plant. A num- ber of these cards were given to employee Richard Hughes who also was active in distributing the cards on the night shift. Most of the cards were distributed at the plant and a number of them during working hours. During this period of time the employees ranged in number from approximately 31 to 34 . By August 9, approxi- mately 19 employees had signed cards. During this ' organization period there were discussions concerning ,the Union at- the plant itself and in the parking lot during work' hours,- during breaks, and at lunch time. According to the testimony of McSparen , on August 10, Walls' came up to the position where McSparen was working as a welder and asked McSparen why the latter did not quit, saying that McSparen would be better off, Walls would be better -off, and the Company would be better off. Walls denied this. I credit Walls .3 On Monday, August 13 , Shier had in his possession 18 of the 19 cards that were ultimately signed .4 On the basis of these cards , he caused to have a telegram -sent to the Respondent, which in pertinent part read as follows: The . . . Union . represents a majority of the production and maintenance employees in your plant.. To set up a meeting for the purpose of collective bargaining, please contact International Representative Carl Shier .. . . 3 McSparen was unable to testify how the conversation started or the circumstances under which it was made . His lack of memory as to this important element which could have clarified the rather equivocal alleged statement by Walls leads me to conclude, when considered in the light- of my personal observation - of MeSparen on the witness stand, that he was an'unreliable witness and I credit only those portions of his testimony which =are corroborated by others. * From the credited testimony of Shier as corroborated by the testimony of employees Cecil Kearns, Robert E Machen, Vernon C. Dewey, Harold E Smith , Richard Barnes, Otis Horner, Norman A Peterson, Vivian William Marine, , Marty B. Hunter, Russell Slater, Leo E Bushman, Robert K. Peska , Lyle M. Evans, Richard Hughes, Walter McSparen , Larry Ege, Jerry Staton, and Fred M Thurm Each of these employees -credibly testified that he signed the card on the date appearing thereon , that he read the card before he signed, and that the signature thereon was genuine The cards signed -except for dates and personal data were the same , and read as follows: AUTHORIZATION TO UAW Fill in Blanks Date I, the undersigned employee of (Name of Company) _ authorize the UAW to represent me in collective bargaining. Signature of employee Name of employee-please print Home address ' City State Class of Work Shift Telephone No. Badge or Clock No This is not an application for membership. This card is for use in support of the demand of (UAW), American Federation of Labor and Congress of Industrial Organi- zations (AFL-CIO) for recognition or for an NLRB election. C. J. GLASGOW CO. 105, This telegram was addressed to Respondent at its Dixon, Illinois, address and was received at approximately 4:45 p.m. over the telephone by James Leone, the Re- spondent's secretary, who was at the Dixon plant at the time. Leone immediately telephoned Charles J. Glasgow, the Respondent's president, who at that time was in Detroit. Leone conveyed to Glasgow the general content of the telegram. The next morning, August 14, Leone physically received the telegram at the Dixon plant and that afternoon Glasgow drove to Dixon and saw the telegram for the first time late that evening. Both Leone and Glasgow testified that prior to the receipt of the tele- graphic message from the Union, neither had any idea that the Union was active in trying to organize the Respondent's plant. Leone and Glasgow also both testified that neither of them, in their discussion concerning the telegram and the Union's demand, believed that-the Union had a majority in the plant. Leone, who had actually been supervising the work of the plant in its initial stages, testified that he knew of nothing that had occurred in the plant before that time which would have given the Respondent and its officers any reason to believe that, the Union was organizing the plant. According to Glasgow, when the latter asked Leone about any possible union activity Leone stated that he did not know of any and that he did not believe that the Union represented a majority of the Respondent's employees. In any event neither Leone nor Glasgow nor anyone else on behalf of the Respondent made any response to the Union's telegram. On August 16, Shier filed a petition for a representation election with the Board's Regional Office. The Respondent received notice of this representation petition in due course several days later. When the notice of the petition was received, Glas- gow decided that he would do nothing further with regard to the Union's demand and would wait for the outcome of the representation proceeding.5 On the same day that the Union's representation petition was filed, Glasgow, Leone, and Elmer Berger, general manager of the Respondent's Dixon plant, met and dis- cussed the feasibility of closing down the plant for a period of 2 weeks. According to the testimony of all three, the need for taking some such action was brought about by several factors. In the first place, early in June 1962 the Respondent had received a letter from Allison in which it was explained that Allison would not be in a posi- tion to receive any merchandise, including the type of shipping containers manufac- tured by the Respondent at its Dixon plant, for the period from August 22 to Septem- ber 4 for the reason that Allison would be taking inventory during that period. A second factor which' entered into the consideration' and which caused Leone especially to urge the closedown was the fact that of the approximately 750 containers shipped against the order from Allison hereinaibove mentioned over 250 were rejected by Allison as having leaks and other defects which rendered them useless for the purpose for which they were manufactured. According 'to Leone, Berger, and Glasgow, it was necessary, therefore, to stop production for a period to check up, on manufacturing methods and especially on welding processes to find out why the Respondent was producing so many faulty containers 6 'A third factor, according to Leone and Glasgow, was the necessity to reorganize the plant and to install certain equipment in order to facilitate manufacturing processes and bring about a more- efficient flow of work from intake to output: In any event, the Respondent, without warning to any of the employees or without any advance'notice,-on August 17 posted a notice which stated that effective as of the end of the working shift on that day, all the employees other than those who were notified to the contrary were to be laid off' until further noitce. It further' stated that when work was to be resumed, those- employees in required categories would be recalled as needed. Nine employees were- retained and all other employees were laid off for a period of at least 1 week. There was no explanation to the employees as to the reason for the closedown. Moreover, not even the foremen explained the reason for the closedown. With regard to the statistics of the layoff, of the 19 employees who ultimately signed union cards before the date of the layoff, 17 were selected for layoff. Of the nine employees notified to return to work on Monday, August 20, and who thus were not laid off, only two had signed cards. Neither McSparen nor Marine, who were 5 From the testimony of Charles Glasgow. With regard to the initial difficulties in meeting the delivery schedules provided under its contract with Allison, the Respondent subcontracted the partial fabrication of 1,000 containers to Conco Engineering Works However, Conco was engaged in June and part of July with a strike and no Conco deliveries were made to the Respondent until the- Respondent's closedown during which containers from Conco began to arrive. Aside from the Conco contract, the Respondent also had over 200 containers fabricated at its Detroit plant. Of the 750 containers delivered to Allison before the closedown, about 500 were- fabricated at Dixon and the balance at Detroit 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .chief union adherents and who Leone and Berger admitted were the two best welders, were retained for work during that period. They were laid off along with the others. Further breaking down the statistics with regard to the layoff, the record shows that retained were the first two employees hired by the Respondent when it opened the Dixon plant, Walter J. Hobbs and Leonard D. Berogan, both of whom were in .laborer classifications and were nonunion. The next employee who was retained in point of view of seniority was James Kessel who later became a supervisor, and who, as of the time of the layoff, was in the classification of welder-A. Kessel was preferred over an employee named Ronald A. Toot, also a welder-A, who was made a class A welder about the same time that Kessel was and who was not one of the employees who signed cards. The next two employees retained in point of view of seniority were Otis B. Horner and Harold E. Smith both of whom had signed cards. Horner was a laborer and on the seniority list he followed Berogan as a laborer. Smith was a painter and the first painter on the seniority list. The next employee retained was Scott W. Smith, a laborer. Smith was the next laborer in line in point of seniority after Otis B. Horner. Smith was not a union supporter. The seventh employee retained was Stanley P. Wolfe, a maintenance man and the first maintenance man on the seniority list. He had not signed a union card. The eighth employee retained was Rudy Schwitters who was a stenciler. He was the first stenciling employees on the seniority list. He also had not signed a union card. The ninth employee retained was Chester Brooks, a nonunion laborer who was hired on August 6, 7 days before the closedown; Brooks was preferred over Henry Groth, Jerry E. Staton, Robert E. Machen, Lyle Evans, and John Grossman, all laborers and all of whom except Groth and Grossman had signed cards designating the Union as their bargaining representative and were senior to Brooks. During the second week of the closedown, a number of the employees both union and otherwise were called back to work. Thus, on August 27 Vivian W. Marine, a welder, Norman Peterson, a welder, Fred M. Thurm, a painter, Richard D. Barnes, a laborer, Russell Slater, a welder, Walter L. McSparen a welder, Robert Peska, a welder, Jerry Staton, a laborer, Robert E. Machen, a laborer, Lyle Evans, a laborer, and John Grossman, a laborer, were called back to work. All of these employees, with, the exception of Grossman, were individuals who had signed union designation cards. Two days later, August 29, Ronald A. Toot, a welder, Marty B. Hunter, a welder, Cecil A. Kearns, a welder, and Vernon C. Dewey, a welder, were called back to work. Of these, only Toot was not a signer of a union designation card. With regard to this closedown, Berger, Leone, and Glasgow all testified that the men were retained, as nearly as possible, in order of seniority commensurate with the skills in the various classifications which were needed during the closedown. They also testified that the men were called back to work as needed on the same basis. All of the remaining employees who were not called back during the week beginning August 27 were called back to work the week beginning September 4.7 On September 4, the Respondent gave wage increases approximating 5 cents per hour to all of the employees who were not receiving the Respondent's maximum wage of $2 per hour. The record shows that most of these increases were given to em- ployees in the laborer classification and in those classifications which did not concern welding. The record shows that in two instances-the cases of Walter J. Hobbs and Leonard D. Berogan-the Respondent had given increases of 5 cents per hour to these individuals on July 10, before the advent of the Union. In all other instances except in those cases where an individual's classification was changed from laborer to welder or from welder-B to welder-A there were no prior raises given. The Respondent's president, Glasgow, testified that the raises given on September 4 were normal, cus- tomary wage increases the provisions for which were established by the Respondent at the time the plant was established , and that they were to be given to the employees in 30- and 60-day periods after hiring. However, he further testified that the per- son in the office, a bookkeeper, who was to have automatically given these wage increases, was incapacitated due to an accident some time before the wage increases were due in the normal course of events and that, therefore, the automatic increases were not given until this individual was able to make the necessary record changes which did not occur until around September 4. 7 Although not alleged as a violation , McSparen testified , along with others, that upon his return to work after the closedown he found his work station changed so that he was virtually isolated . However, I find as sufficient Respondent's explanation that the change in work station was solely a result of the rearrangement of the plant accomplished during the closedown C. J. GLASGOW CO. 107 On September 6, Supervisor Walls told employee Richard Hughes that Glasgow wanted an independent union in the plant. This conversation began with Hughes ask- ing Walls why there had been a layoff. When Walls could or would not answer, Hughes told Walls that he thought that the employees should have some type of union representation and it was in this context that Walls said that Glasgow thought that they should have union representation too, but that they should form their own personal union instead of paying dues- to an outside organization .8 The following day, on September 7, Hughes had a conversation with James Kessel, who by this time had been raised to a supervisory position. Hughes was working on the night shift and Kessel was the night-shift foreman. About 7 p.m., Hughes told Kessel that he thought that the men ought to have some type of union representation from the outside, that he did not think anyone among the employees had enough experience or knowledge to represent the employees in negotiations with the Respondent. Kessel answered Hughes, "Well the Union won't be here to repre- sent you anyway," according to Hughes .9 - About midnight on September 10, Kessel handed Hughes an envelope containing the latter's check, and said that Hughes was through. When Hughes asked the rea- son, Kessel told him that there was not enough quality and not enough quantity of production from Hughes. Kessel told Hughes that Hughes should finish the shift and punch out. This action came without any prior warning by Kessel. The next morning Hughes returned to the plant to speak to Elmer Berger, the Respondent's plant manager. Before speaking to Berger, Hughes spoke to Walls, the day fore- man, and asked Walls if the latter knew anything about his being fired the night before. Walls said that he did not and that Hughes would have to speak to Berger about it. Finally Hughes spoke to Berger. Berger said that he would check into .the matter, and that Hughes was to come back that afternoon at 3 o'clock. Hughes returned at 3 o'clock, and found Berger, Kessel, and Walls sitting in Berger's office discussing the matter. They asked Hughes to wait outside until he was called in. When Hughes was finally called in, he was told that he was discharged because-he was wandering around and talking too much. Then Berger asked Kessel if it would be all right if Hughes would come back to work; Kessel said that he didn't have any objection, but he thought Hughes could do more work than he was doing. Berger then reinstated Hughes to his job and sent him back to work with the admonition that he stay at his work and not wander around the plant. He told Hughes that if the latter would stop loitering around the shop, the quality of his work would auto- matically pick up.10 He further warned Hughes that if this matter came up again, he would be discharged." On September 28, the Respondent called its employees to a meeting which was held at the plant about 3:30 p m. This time was fixed for the convenience of the employees of both shifts, inasmuch as there was a shift change at 4 o'clock. The meeting was called by Glasgow at the request of employee Peska. Peska had told Glasgow that a number of men in the shop wanted the meeting to be held. At the outset of the meeting, Glasgow made an announcement to the effect that insurance policies would be ready for the men after the meeting, which policies had been ,decided on and adopted at an earlier July meeting between Respondent and the ,employees before the union organizational campaign began.12 Glasgow then read Section 8(a) and (c) of the Act to the employees assembled. He then gave the men some history of the Glasgow Company and spoke about a plant at Adrian, Michigan, which had been closed for some years. He said that the Glasgow Com- pany had been a part owner of that plant, and that the plant had been operated under contract with the Union. He stated, however, that the demands made by the Union finally rendered the operation of the plant at Adrian impossible, and they were forced to close it down. He then made a remark to the effect- that some of the middle-aged men who had been employed at the Adrian plant were still out of work At the same time he referred to an International Harvester Company plant and a Reynolds Company wire plant which had closed down for the same reason. 8 From the credited testimony of Richard Hughes. Walls remembered having the con- versation with Hughes but could not remember telling Hughes of Glasgow 's wishes. I find Hughes to be the more reliable witness in this instance. e From the credited testimony of Hughes . Kessel did not directly deny this conversa- tion, merely saying that he could not recall it. 10 From the credited portions of the testimony of Hughes and Kessel. 11 Hughes voluntarily left the Respondent's employ on November 7, 1962. "During the entire meeting Leone held a tape recorder microphone up in a position to receive Glasgow's words and the entire meeting was tape recorded . No attempt to get this tape recording into evidence was made. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Glasgow further told the men at that meeting that if they so desired they could form an independent union . However, he further stated that he would negotiate with any union having proper jurisdiction whether it was the Union, an independ- ent union, or any other union . Someone asked a question about wages during the meeting, and Glasgow told the men that he could not go into that matter at that time for that was a matter for negotiation . The question of seniority also came up, and he told the men also that this was a matter for negotiation with the Union, and that he could not speak about it at that time. He further told the men that it was not the Union that paid their salaries and enabled the men to feed their families. At some time during the meeting employee Scott Smith asked Glasgow what was being done about the plans to move additional machinery to the Dixon plant from Detroit, as the Company had announced that it would when it first started up. Glasgow told them that it was still their plan , but that he was not stupid enough to close down two plants.is On October 20, Leone, Respondent's secretary, engaged employee Jerry Staton in a conversation at Staton's work station . Staton, a laborer, was engaged in on-the-job, training to become a welder. Leone asked Staton what the latter was doing and Staton answered that he was welding. Leone then told Staton that if the Union. were to come in Leone did not know if Staton could continue to do welding unless the Union had an apprenticeship program; that if there was no apprenticeship pro- gram Staton would have to learn his welding elsewhere . Leone then said to Staton, "I see your leader quit" (evidently referring to McSparen who had just left the Respondent's employ ). Staton asked Leone what the latter meant and Leone an- swered that Staton knew what he meant. In rejoinder , Staton told Leone that if he was referring to McSparen, he, Staton, did not need a leader because he could speak for himself. He also told Leone that if Leone was referring to the Union, that the Union had good ideas. Leone asked , "For what?" and Staton answered„ "For one thing, wages ; we don't get enough to support our families right." 14 D. Analysis-concluding findings 1. As to the alleged coercion, unlawful layoff, and discharge The General Counsel contends that the Respondent , having gained knowledge in early August of the Union's organizational activity within the plant, embarked on a course of conduct designed to discourage union activity and membership and to. destroy the Union's majority status. He further contends that each of the acts set forth above constituted a part of the overall plan and that each was linked to the other and to the Respondent 's determination not to bargain with the Union, not be- cause of a good-faith doubt as to the Union's majority status, but because of the- Respondent's complete resistance to unionization and for the purpose of thwarting his employees' desires to bargain collectively through a majority representative freely chosen. Since the disposition of the question of Respondent 's good faith or lack of good faith depends in large measure upon the determination of the lawfulness or the un- lawfulness of the Respondent's conduct other than its failure to bargain with the Union, it will be determined first whether such conduct was, in fact , coercive and discriminatory. As heretofore set forth, I have refused to find that the alleged incident of August 10, between Day Foreman Walls and employee Walter McSparen occurred . The next occurrence, which the General Counsel contends is evidence of the Respondent's bad faith, and which, in itself, would constitute violative action on the Respondent's. part, is the 2-week closedown commencing August 17. The General Counsel con- tends that this Respondent action was discriminatorily motivated as demonstrated' by the fact that although the letter from Allison Division of General Motors notify- ing that no deliveries were to be made to Allison during the last 2 weeks in August 13 From the credited testimony of employees Scott Smith, James McSparen, Richard Hughes, Larry Ege, Jerry Staton, and Fred Thurm as corroborated by the testimony and admissions of Charles Glasgow 14 From the credited testimony of Staton as modified by the testimony of Leone, who admitted most of the conversation Staton testified with regard to the portion referring to the welding, that Leone said only, "You won't be welding if the Union gets in " Al- though I believe Staton was an otherwise credible witness, I also believe that he took this statement out of context and that Leone's fuller version is the more accurate one. It should be noted in connection with this conversation that Leone and Staton had been friendly for about 5 years and that Leone's remarks, as testified by Leone and uncontro- verted by Staton, were made in a jocular vein. C. J. GLASGOW CO. 109 was dated early in June, the discussion and decision to close down the Respondent's Dixon plant did not take place until August 16, 3 days after the Union's demand for recognition and only 1 day before the actual closedown. In further support of this contention, General Counsel also points up the undeniable fact that out of 9 employees retained during the first week of the layoff only 2 were union card signers and that of the 19 employees laid off 17 had signed union cards. Moreover, although Glasgow, Leone, and Berger all testified that one of the primary purposes for closing down the plant was to perform experimental welding to seek a satisfactory welding process and to repair and reweld a large number of rejected containers, both Walter McSparen and William Marine, by Secretary Leone's own admission the only good welders in Respondent's employ at that time, were among those laid off. Finally, the General Counsel maintains that the economic reasons for the closedown, herein below discussed, given by Plant Manager Berger, Secretary Leone, and President Glasgow were fabricated after the fact to screen the Respond- ent's unlawful purposes. As indicated above, Berger, Leone, and Glasgow all testified that the reasons for the closedown were twofold. In the first place Respondent had had difficulty in fabricating the shipping containers in that competent welders were almost im- possible to obtain. Thus the leaks in the containers due to inadequate welding which brought about the large number of rejections presented a problem which had to be overcome. Secondly the plant had to be rearranged so that production would flow more efficiently. This required not only the moving of work stations but also the installation of an overhead monorail crane to assist in the movement of work from one station to another. Glasgow testified that the closedown came as a result of the foregoing and that the period from August 17 to September 4 was selected because he had ascertained that the deliveries to -Allison were current according to the- schedule set up by Allison and that, therefore, the period when Allison would not accept deliveries was ideally suited to the purpose of accomplishing the plant changes and the weld- ing work detailed above. He further stated that the Union's demand telegram was not a factor in the decision to close down. The Respondent's claim that it was having production difficulties is uncontroverted on the record. Also, there is no doubt that Allison wanted no deliveries during the period chosen by the Respondent for the closedown. Thus it would seem that the Respondent's action in closing down at the chosen time was one that could logi- cally be laid,to good business judgment and motivated purely by economic consid- -erations. However, the Respondent's,defense must be analyzed in the light of the -factors cited by the General Counsel in support of the latter's contention that the .closedown was discriminatorily motivated. First, the General Counsel cites the fact that although the Respondent knew as early as the first week in June that Allison was not going to accept deliveries .during the weeks of August 17-to September 4, it did nothing about this matter until 3 days after the Union's demand, at which time it decided to close down without .advance notice or explanation to the employees. The answer to this argument would seem to be that in June the Dixon plant was just starting up. Hence there was no necessity for the Respondent to plan for the closedown because it could not at that ,early date determine how successfully it could produce containers. That Respond- ent had doubts as to its own ability to live up to delivery schedules is borne out of the making of 'the subcontract with Conco and the production of over 200 units :at the Respondent's Detroit plant. It was not unreasonable, therefore, for the Respondent to wait until the last possible moment to ascertain whether its ship- ments were current to determine whether or not a shutdown to iron out production problems was feasible, because it could not very well make such determination at an -earlier date under the circumstances. With regard to the fact that McSparen and Marine, the two best welders and leading union adherents, were included in the closedown at a time when welding was to be performed, the record shows that only one welder, Kessel, who was soon to be made a foreman and whose lengthi of employment was greater than, both McSparen's and Marine's, was retained the first week of the closedown-a period of 5 working days. Thus no nonunion welders junior to Marine and McSparen were preferred. When, however, the Respondent had progressed far enough to require additional welders on the first day of- the second week of the closedown, both- McSparen and Marine were called back along with other individuals who had signed union cards.'5 Under these circumstances, I credit the Respondent's con- tention that as soon as there was work for McSparen and Marine, and the other. .employees they were called back to work. 15 Marine did not return. 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lastly, although the number of prounion employees (determined by those who' signed designation cards) outnumbered the nonunion employees who were laid off, inherent in this situation is the fact that out of 31 employees, 19 had signed cards. Thus, if only nine were to be retained during the first week of the closedown, mathematically a majority of those laid off would have had to be individuals who signed cards unless the Respondent went out of its way to choose only card signers for retention. Additionally, fui ther study of the seniority roster shows that of the nine employees retained five were laborers, one was a welder (Kessel), one was a stenciler (Schwit- ters), one was a maintenance man (Wolfe), and one was a painter (H. E. Smith). Kessel was junior to only one other welder and he was not a union adherent. Schwitters, Wolfe, and H. E. Smith, a card signer, were the senior employees in each of their respective classifications. Of the five laborers who were retained, the first two on the seniority list were Hobbs and Berogan who were the first two em- ployees hired by the Respondent at the Dixon plant. Next in point of seniority in the laborer classification was Homer, a union designation card signer, and he was the third laborer retained. The next laborer on the seniority roster was Scott W. Smith who was the fourth laborer retained. Thus, in the case of eight out of the nine employees retained there would seem to be no basis for an inference of dis- crimination. Only in the case of the ninth employee retained, Chester Brooks, a laborer, is there any evidence from which discrimination may be inferred. Brooks, who had been employed only for about 1 week before the closedown was preferred over laborers Barnes, Staton, Machen, and Evans, all of whom had greater seniority and had signed union cards. The Respondent has not explained this apparent deviation from the normal seniority practice applied in the other eight cases except to state that ability to per- form as well as seniority were considered. Since the record does not show that Brooks was more skilled than the four laborers over whom he was preferred, determination as to whether he was in fact more skilled cannot be made. However, I cannot find, on the basis of all of the evidence applicable to this problem, that the case of one out of nine men proves that the entire closedown was discriminatorily motivated or that the four laborers passed over in favor of Brooks were discriminated against for antiunion reasons . Accordingly, I find that the Respondent closed down its Dixon plant from August 17 to September 4 solely for business reasons and not for the reasons alleged in the complaint. The next allegedly unlawful act in point of time was the general wage increases beginning about September 4 and following closely the Union's demand for recog- nition. These raises averaged 5 and 10 cents per hour and were given to all em- ployees hired as late as August 6, 1962, who were in classifications other than that of welder. The General Counsel argues that the proximity of the wage raises to the advent of the Union and the Union's telegraphic demand of August 13, demon- strates that the raises were clearly intended to show the employees that they did not need the Union to obtain better wages and working conditions and to induce the employees to abandon their support of the Union. The Respondent's president, Glasgow, testified that in June, well in advance of the advent of the Union, the Respondent adopted a policy with regard to wage adjustments calling for employees in the labor category to receive a 5-cent wage adjustment after approximately 30 days and a further 5-cent adjustment after 60 days' employment. • As heretofore stated, he further testified that this policy was carried out in general but that the office employee who was in charge of these matters-was incapacitated, which caused the program to fall behind; as soon as the disability was removed, the matter was brought up to date which, according to Glasgow, explains why so many raises were given-at one time.is The only other evidence on this issue is the list of employees and their rate changes from June 2 to October 1, 1962, made up by the Respondent in answer to a subpena by the General Counsel and introduced by the General Counsel as an exhibit in support of his argument. This list shows that before the advent of the Union, two wage increases that did not involve change in classification were given to Hobbs and Berogan, the Respondent's oldest laborer employees. They were 19 No other testimony was offered on this issue , the General Counsel did not produce any witness to either refute or affirm Glasgow's testimony ; in fact, not a single witness other than Glasgow was asked any questions whatsoever with regard to the wage increases or, whether any employee knew of the existence of the wage policy as outlined by Glasgow or whether any employee was told of the same when he was hired. - C. J. GLASGOW CO. ill hired on June 11 and 12, respectively, at the rate of $1.75 per hour. On July 10 each was raised to $1.80 per hour. Thus there appears to be some evidence that the Respondent did inaugurate an automatic wage adjustment plan. As the ex- planation by Glasgow as to why the other wage increases were not given in the regular course of time, but were all given soon after the Union's demand telegram, is self-serving and without substantiation except for the two July raises to Hobbs and Berogan, I hesitate to accept it. By the same token, all the General Counsel has shown is the fact that a large number of wage increases did come at one time soon after the Union's demand. Thus I am confronted with a situation where I am forced to choose between the inference suggested by the General Counsel and a self-serving but nevertheless par- tially substantiated explanation offered by the Respondent. In these circumstances, I believe I have no choice but to conclude that the inference is overcome by the explanation, which I credit, and I find that the General Counsel has failed to prove the alleged unlawfulness of the incident by' a preponderance of the credible evi- dence. Accordingly, I find that the wage increase given around September 4 was a wage adjustment made in the normal course of business and as such was lawful.17 The Walls-Hughes conversation of September 6 was the next incident alleged in the complaint as violative. As stated above, it was in the context of Supervisor Walls' inability or refusal to explain to Hughes the reason for the closedown, that Hughes told Walls that the employees should have some type of union representa- tion. Walls said that Mr. Glasgow, the Respondent's president, agreed but thought the men should form their own union rather than pay dues to an outside union. I consider this a mere statement of expression of preferment made without threat of reprisal or promise of benefit or other attempt at persuasion. I therefore find it privileged and nonviolative.18 As heretofore set forth, on September 28 President Glasgow had a meeting with the employees at the request of employee Peska and others who wished to hear the Respondent's views on the subject of union representation.19 This meeting was the subject of three subparagraphs of the complaint in which it is alleged that Presi- dent Glasgow threatened employees with discharge and other reprisals, offered wage increases and other benefits, and coerced and restrained the employees from joining the Union. Both the General Counsel's witnesses and the Respondent's witnesses were in marked agreement on what transpired at that meeting. While the witnesses generally concurred on the context of what was said at the meeting, the sequence is not.clear. As nearly as I can reconstruct, after Glasgow told the assembled employees that the meeting was being tape recorded, he made a statement considering the choice of unions. He emphasized that if the men so de- sired, they could form an independent union. However, at the same time, he told them that he would negotiate with any union of their choosing. Then Glasgow related to the men the history of Respondent. During this portion of the speech, he told the men of a plant in which the Respondent had an interest in Adrian, Michigan, at which the employees had been represented by the Union. Glasgow told the men that the Union's demands became so excessive that the Adrian com- pany could not meet them financially and that it became necessary therefore to close down the plant. This had occurred some years before and Glasgow added that there were some men over 40 who were still out of work at Adrian. He then also told the men of the closedown of two other plants of other companies in the area in which union demands which could not be met were the main causes for the termination of operations. At sometime during the meeting, Scott Smith, an employee who had not signed a union card, asked Glasgow why the Company had not moved all of the equipment that it said it would move into the Dixon plant. Glasgow, evidently referring to the closedown at the Adrian plant, answered to the effect that it had been the Re- 17 Indeed, if the granting of periodic wage increases is an established practice , refusal to grant the same upon the advent of a Union could be considered a violative withholding. See McCulloch Corporation, 132 NLRB 201, 213. is The complaint alleged this incident as one involving interrogation by Walls of Hughes. There is nothing in Hughes' testimony which supports the averment in the complaint Hughes merely referred to the incident as a conversation and did not testify that any questions were asked by Walls. 19 It may be presumed that this request by the employees was prompted by the Board's ordering an election to be held on October 23, 1962 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's plan to move additional machinery to the Dixon plant from Detroit and that it was still the Company's plan but that he was not stupid enough to close down two plants.20 Someone then asked about wage increases and Glasgow advised that he could not discuss wages directly with the employee and would not answer that question be- cause that was a matter for negotiation with the union which would eventually rep- resent the employees. A similar question was asked and a similar answer was given with regard to seniority. Richard Hughes, one of the General Counsel's chief witnesses, admitted during his examination that there were no promises of increase in wages made at the meeting. He admitted that it was perfectly clear that Glasgow was not making promises of any kind at that time. Also, at sometime during the meeting, a question was asked about possible picketing. Glasgow stated that a union could call its members out on strike and require them to walk the picket line. He told the men that if they walked the picket line at the Dixon plant, it would be at the main gate which was a great distance from the plant itself. In substance, the foregoing constitutes the matters of which the General Counsel complains with regard to the meeting. In assessing whether all or some of these remarks were violative, it should be noted that all of the remarks were made by the same individual to the same group of employees about the same time. Ac- cordingly, they cannot be considered in isolation but should be considered as inter- related and as parts of the same event. Therefore, what must be judged is the total impact of these remarks upon the assembled employees Thus had the statement with regard to the independent union, been made by itself at another time in another context, I probably would have found it noncoercive as I have heretofore found a similar remark. But here it was preceded and followed by remarks which in and of themselves might be considered coercive. Thus, the recital of the Company's history including the closedown of the Adrian plant and the resulting protracted un- employment of men over 40 coupled with Glasgow's statement that he would not be stupid enough to close down two plants tended to instill in the minds of the em- ployees fear of economic suffering which would result if the employees chose the Union as their bargaining representative. I conclude that in totality Glasgow im- pliedly threatened that if the employees voted the Union in, the Dixon plant would be closed down.21 This conclusion is bolstered by Glasgow's gratuitous reference to the closing of two other plants in the area where the employers could not meet the demands of their employees' representatives. The fact that Glasgow's statements were based on facts and to that extent were truthful does not make them privileged. Even though true, if a statement is uttered in such a manner as to con- stitute a threat,-it does not have the protection of Section 8(c) of the Act.22 Nor does the reference by Glasgow to the men's forming an independent union constitute free speech. Uttered as it was in a context of threats it was more than a mere in- formational statement. It was instead part of the choice given to the employees on one hand to have no union or on the other to choose the Union and risk economic disaster and unemployment.' - - Therefore I find that the overall effect of Glasgow's statements at this meeting was one of coercive impact. With regard to the. individual allegations of the com- plaint, I find that by reference to the independent union the Respondent through Glas- gow restrained and coerced its employees from joining the Union by telling them to form their own plant union inferentially and to abandon their efforts on behalf of the Union. By telling the employees' about the closedown of the Adrian plant' and by further telling them that men over 40 were still out of work in the Adrian area, by discussing the closedown of other plants because of union demands, and by the statement to the' effect that he was not stupid enough to close down two plants, Glasgow threatened employees with discharge, .layoff, and other reprisals if they became or remained members of the Union or gave assistance or support to it. However, I do not find that there was in Glasgow's conduct on September 28 any- thing which could be construed to be a promise of wage increase or other benefit to Respondent's employees if they would refrain from becoming or remaining mem- bers of the Union. Nor do I find any violation in Glasgow's statement to the em- 20 At the hearing Glasgow 'was- asked about labor problems at the'Detrolt plant. - He stated that there were no current labor problems 'at 'the Detroit plant with the union representing the'Detroit employees. This would seem to eliminate the fact that Glasgow was referring to the Detroit plant when he stated that he did not want to close down two plants. See Remington Rand Corporation, 141 NLRB 1050. 2a See T. R. Mercer Trucking Co., 134 NLRB 859, 862-863; Willard'a Shop Rite Markets, Inc, 132 NLRB 1146, 1150-1151. C. J. GLASGOW CO. 113 ployees that if the Union came in and would strike the employees would be called on to form a picket line outside of the plant gates. On September 6, employee Hughes had a discussion with Supervisor Walls con- cerning Glasgow's preference for an independent union. This has been related to above as the incident which I failed to find a violation. The next day Hughes and Kessel, the night foreman, had a similar conversation in which Kessel also expressed Glasgow's preference for an independent union. On the night of September 10, Kessel, without any prior warning, discharged Hughes. As related above, Hughes asked Kessel why he was being discharged and Kessel said, "Not enough quality and not enough quantity of work." The next day as related above, after some dis- cussion between Walls, Kessel, and Berger, the plant manager, Hughes was rein- stated to his job. Since he worked at night and was able to finish the night shift on the night he was discharged and because he was reinstated before the beginning of the night shift on the following day, Hughes, in fact, lost no time or pay. When he was reinstated, Hughes was told by Berger that he was originally discharged by Kessel because he too frequently wandered away from his work for lengthy periods of- time. At the hearing Hughes explained this so-called wandering by stating that the men's room was a great distance away from his work station and that he was forced to be away for a long time from his work station whenever he had to use the men's room facilities. When Hughes was reinstated he was also told that if he had to be warned again about being absent from his work station or not producing enough work, which seemed to be the reason why he was ultimately discharged according to Berger, he would be discharged and not reinstated. The General Counsel contends that this incident constituted a retaliatory measure against Hughes taken because of the latter's union activity and to discourage Hughes and the other employees from their support of the Union. The General Counsel further alleges that the only reason that Hughes was reinstated was because the Re- spondent was worried that the Union might take action against them through the Board. In view of the fact that Kessel, Walls, and Berger knew of the Respondent's opposition to the Union and because Kessel was possibly annoyed with the fact that Hughes did leave his work station probably to talk about union matters, I find that Kessel, if not Walls and Berger, did discharge Hughes, at least in part, because of the latter's union activity. I make this inference not alone from the discharge but because of the fact that Hughes had never been warned by either of the three supervisors of the plant that he was not producing enough work of sufficient quality or was spending too much of his time away from his work station. Thus, this dis- charge coming without warning at the height of the union campaign and on the eve of the election and being visited upon one of the most voluble and enthusiastic union adherents would seem to indicate that the discharge was for antiunion reasons. Accordingly, I find that by discharging Hughes on the night of September 10 the Respondent, through Supervisor Kessel, coerced and restrained Hughes and other employees in the exercise of their Section 7 rights. The last allegedly coercive incident of which the General Counsel complains is the Leone-Staton conversation of October 20. As found heretofore, Leone asked Staton what he was doing and Staton answered that he was welding. Then, Leone told Staton that he did not believe that if the Union came in Staton could learn welding at the plant because unless the Union had an apprenticeship program Staton would have to learn his welding elsewhere. Then Leone told Staton that he saw that Staton's leader had quit. When Staton asked Leone if this meant McSparen, Leone told Staton that the latter knew what was meant. Then Staton said that he thought that the men needed a union. I do no find that this incident contained a threat to Staton or the employees of reprisal for engaging in union activity. Accordingly, I find that this incident was not violative of the Act. 2. With regard to the unlawful refusal to bargain a. The request for recognition and bargaining On August 13, the Union sent a telegram to the Respondent in which the Union informed the Respondent that it represented a majority of the latter's employees and requested recognition as the bargaining agent of the Respondent's production and maintenance employees. The Respondent through Secretary Leone received this telegram telephonically-on August 13. The next morning, August 14, Leone physi- cally received the actual telegram. I find that the telegram constituted an un- equivocal request for bargaining and recognition and I further find that this request was served upon the Respondent and that the Respondent received the same and was duly notified of the Union's position with regard thereto. 760-577-65-vol. 148-9 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. The Union's majority and the appropriate unit ' The Union's telegram to the Respondent of August 13 demanded recognition in a unit consisting of the production and maintenance employees in the Respondent's plant. The Respondent's records, introduced at the bearing, showed that there were 32 employees in the Respondent's plant on August 13 and 14 who were engaged in production and maintenance work. As set forth hereinabove as of August 13, 19 of the Respondent's 32 employees had signed authorization cards for the Union. The Respondent contends that the cards were obtained through misrepresentation on the part of the Union. The Respondent sought to elicit from each employee, at the hearing, why he had signed the union card. Each of the witnesses, almost without variation, testified that he understood and intended that the signing would authorize the Union to represent him. Some of the witnesses also stated that they thought that this would assist the Union in getting an election. It is patent from a reading of the signed cards that the form used clearly stated that the signer authorized the UAW to represent him in collective bargaining. The card also had a note at the bottom to the effect that it was not an application for membership and was to be used in support of the demand of the Union for recognition or for an NLRB election. There was no testimony to the effect that any union official stated to any employee as an inducement to sign the card that the card was merely for the purpose of obtaining an election . Although the Respondent sought to elicit such testimony from each of the card signers it was unsuccessful in its attempt. Accordingly, I find that on August 13, 1962, the day that the Union demanded recognition of the Respondent, the Union represented a majority of the employees of the Employer in a unit of production and maintenance employees , which unit I find to be appropriate.23 c. The Respondent's refusal to bargain As heretofore set forth, when Leone received the telephonic communication to the effect that the Union was requesting bargaining, he called Glasgow at the latter's home in Detroit and Glasgow the next day, the 14th, proceeded to Dixon. According to Glasgow when he got to Dixon he asked all of the supervisors, Leone, Berger, and Walls, if they thought the Union represented a majority of the employees in the plant. He further testified that each- told him that he had never heard any- thing about the Union in the plant. In any event, the Respondent never responded to the Union's telegram and, on August 16, the Union filed its petition for a repre- sentation election with the Board's Regional Office. The General Counsel contends that the Respondent unlawfully refused to bargain in that upon receiving the request by the Union for recognition and bargaining, it embarked upon a course of conduct designed to destroy the Union's majority; that the Respondent did not have a good-faith doubt as to the Union's majority but avoided answering the Union in order to gain time to destroy 'the majority as afore- said. On the other hand, the Respondent contends that as testified by Glasgow, he asked Leone and the others whether they thought the Union represented a majority of the employees and they informed him that they knew nothing about union organizing in the plant. Therefore, according to the Respondent, from this informa- tion Glasgow had a good-faith doubt as to the Union's majority. The Respondent goes beyond this and also contends that regardless of whether the Union had a majority on the 13th, when it filed its petition on August 16 it abandoned its claim of majority and that thereafter the Respondent was under no obligation to bargain with the Union until the majority question was resolved in a Board-conducted election. With regard to the Respondent's position that when the Union filed the petition for an election, the Respondent was relieved of its obligation to bargain with the majority representative employees, it is well established that the Union's filing of representation petition does not of itself suspend an employer 's bargaining obliga- tion, absent evidence of a good-faith doubt 24 Therefore, the principal issue to be z I find inapposite the cases of Morris & Associates, Inc., 138 NLRB 1160, and Engle- wood Lumber Co , 130 NLRB 394, cited by the Respondent as authority in support of its contention that the cards could not be relied upon to arrive at a finding that the Union represented a majority of the Respondent's employees Both of the cited cases deal with misrepresentation in the inducement to sign cards There is no evidence in this record of any such inducement 24 Galloway Manufacturing Corporation, 136 NLRB 405, 409, and cases cited therein. C. J. GLASGOW CO. 115 decided here is whether the Respondent did in fact possess a good-faith doubt as to the Union's majority or whether, on the contrary, it embarked upon a course of conduct designed to destroy the Union's majority. The Board has long held that an employer may .in good faith insist on a Board election as proof of the Union's majority but that it unlawfully refuses to bargain if its insistence on such an election is motivated not by'any bona fide doubt as to the Union's majority, but rather by a rejection of the collective-bargaining principle or by a desire to gain time within which to undermine the Union. In cases such as the instant one the issue of whether an employer is acting in good or bad faith when he refuses to bargain is one which must be resolved in the light of all other relevant facts, including any unlawful conduct of the employer; the sequence of events and the time lapse between the refusal and the unlawful conduct 25 In the instant case, the Respondent's president, Glasgow, elected not to answer the Union's request for recognition. While it is true that the Union's petition was filed within 3 days after. the telegraphic request for recognition, and although an employer in a situation similar to Glasgow's could require more than 3 days to determine in his own mind whether the Union has a majority, it nevertheless is incumbent upon him during the period of time from the request for recognition until such time as the question of majority is disposed of, either in the employer's mind or by Board election, to refrain from committing unfair labor practices which in and of themselves indicate a disregard for collective-bargaining principles. With- out ever communicating with the Union in response to the latter's request to bargain, Glasgow held the meeting of September 28. During that meeting, as set forth above, Glasgow threatened and coerced the employees and inferentially promised economic retaliation for their union adherence by reminding the men that there were ex-employees of the Adrian plant who were still out of work, by telling them that he would not be fool enough to bring down all of the equipment to Dixon from Detroit because he would not be stupid enough to close down two plants and, at the same time, reminding the men that he would like them to have an independent union This speech occurred within a month before the Board-ordered election was to be held. And then almost on the eve of the election Hughes was unlaw- fully discharged. On the basis of precedent,26 I have no choice but to find that this conduct on the part of the Respondent was engaged in for the purpose of defeating the Union's majority. Certainly, no election could have been held in this atmos- phere which would have reflected the free desires of the employees. In short, the Respondent transgressed the bounds of permissible conduct to a sufficient extent for me to conclude that the Respondent's refusal to bargain, or in the instant case, its failure to answer the Union's request to bargain, was as ill intentioned as its other actions, and that the Respondent did not have a good-faith doubt as to the Union's majority. Accordingly, I find that from August 13, 1962, the Respondent has failed and refused unlawfully to bargain with the Union as the bargaining representative of the Respondent's employees in the unit heretofore found to be appropriate. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The conduct of Respondent set forth in section III, above, occurring in con- nection with the operations described in section•I, above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act, it is recommended that the Respondent cease and desist therefrom and that it take certain affirmative action in order to effectuate the purposes of the Act. It having been found that from August 13, 1962, and thereafter the Respondent has refused to bargain collectively with the Union as the exclusive representative of the Respondent's employees in an appropriate unit, it will be recommended that the Respondent, upon request, bargain collectively with said Union. It having been found that the Respondent has engaged in certain acts of interfer- ence, restraint, and coercion, it will be recommended that the Respondent cease and desist therefrom. a Joy Silk Mills, Inc., 85 NLRB 1263; Laabs, Inc, 128 NLRB 374. 'Joy Silk Mills, Inc, supra. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. C. J. Glasgow Co. is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America, AFL-CIO, is a labor organization as defined in Sec- tion 2(5) of the Act. 3. All production and maintenance employees, excluding office clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein the Union has been, and now is, the exclusive rep- resentative of all the employees in the appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about August 13, 1962, and at all times thereafter to bar- gain collectively with the Union as the exclusive representative of all its employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this proceeding, I recommend that C. J. Glasgow Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, as the exclusive representative of all its employees in the following appropriate unit: All production and maintenance employees employed at the Respondent's Dixon, Illinois, plant, excluding office clerical employees, guards, and super- visors as defined in the Act. (b) Threatening its employees with plant closure should the Union win the elec- tion; inducing its employees in the context of threats to abandon their union member- ship and to form and join an independent union; and discharging employees for engaging in union activity and other protected activities. (c) In any like or related manner interfering with, restraining, or coercing em- ployees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to engage in other concerted activities for purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. 2 Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request bargain collectively with International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, as the exclusive representative of all its employees in the aforesaid unit, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Dixon, Illinois, plant, copies of the attached notice marked "Appendix." 27 Copies of said notice, to be furnished by the Regional Director for Region 13, shall, after being signed by an authorized representative of the Respond- a7 In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." C. J. GLASGOW CO. 117 ent, be posted immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the said Regional Director, in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith 28 It is further recommended that unless on or before 20 days from the date of re- ceipt of this Intermediate Report and Recommended Order the Respondent notify said Regional Director, in writing, that it will comply with the above Recommended Order, the National Labor Relations Board issue an order requiring it to take such action. It is further recommended that paragraphs VI(a), (b), (e), and (f) and para- graph VII of the complaint be dismissed. 28 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 EMPLOYEES 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, as amended, we hereby notify our employees that: WE WILL, upon request, bargain with International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America, AFL- CIO, as the exclusive representatives of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, em- body such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees of the Dixon, Illinois, plant, excluding office clerical employees, guards, and supervisors as defined in the Act. WE WILL NOT threaten our employees with discharge or other reprisals in order to induce them to abandon their union membership or other union activi- ties, nor will we discharge any of our employees for engaging in any of such activity. WE WILL NOT in any like or related manner interfere with, restrain, or co- erce our employees in the exercise of their rights to self-organization; to form, join, or assist any labor organization; to bargain collectively through repre- sentatives of their own choosing; to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection; or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended. All our employees are free to become, remain, or to refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be affected by an agreement conforming to the provisions of Section 8(a) (3) of the National Labor Relations Act, as amended. C. J. GLASGOW CO., Employer. 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 with the Board's Regional Office, Midland Build- ing, 176 West Adams Street, Chicago, Illinois, Telephone No. Central 6-9660, if they have any question concerning this notice or compliance with its provisions.