Electro Controls, Inc.

ELECTRO CONTROLS, INC. 307 unit complement. The Hearing Officer's contrary finding with respect to her unit placement is thus inconsistent with the parties' intention and would constitute a departure for their stipulation which was approved by the Regional Director. We find, therefore, that WTilcher is not included in the appropriate unit, and we sustain the challenge to her ballot. However, as we have adopted the Hearing Officer's recommenda- tions that we overrule the challenges to the ballots of Blades and Willi, ms,2 we shall direct that their ballots be opened and counted and that a revised tally of ballots be prepared. [The Board directed that the Regional Director for Region 17 shall, within 10 days from the date of this Direction, open and count the ballots of Eugene J. Blades and Louis Williams, and serve on the parties a revised tally of ballots and take such steps as may be necessary in accordance with Board Rules and Regulations, Series 8, as amended.] 2 See Snap - Out Banding & Folding, Inc., 160 NLRB 161. Electro Controls, Inc. and International Brotherhood of Electri- cal Workers, Local No. 354, AFL-CIO. Cases 27-CA-1843 and 1904. October 24,1966 DECISION AND ORDER On April 28, 1966, Trial 'Examiner Irving Rogosin issued, his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices and recommended that such allegations of the complaint be dismissed. Thereafter, the Gen- eral Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. 161 NLRB No. 26. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and rec- ommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Delete from the end of paragraph 1(c) of the Trial Examiner's Recommended Order, and from the end of the second paragraph of the Appendix the phrase beginning with "except to the extent ...." [2. The telephone number for Region 27, appearing at the bottom of the Appendix, is amended to read : Telephone 297-3551.] [The Board dismissed the complaint insofar as it alleges violations other than those found by the Trial Examiner.] DECISION OF TRIAL EXAMINER STATEMENT OF THE CASE This proceeding is based upon a consolidated amended complaint, issued Octo- ber 5, 1965 , alleging that Electro Controls , Inc.,' herein called Respondent, or the Company, has engaged in unfair labor practices within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the National Labor Relations Act, as amended (29 U S.C. Sec 151, et seq., 61 Stat 136) herein called the Act.2 Specifically, the consolidated amended complaint , hereinafter referred to as the complaint , alleges that ( 1) since on or about April 8, 1965, Respondent has engaged in specified acts of interference, restraint, and coercion, including threats to close the plant, creating the impression that it was engaging in surveillance, threats of loss of benefits , conditioning the recall of an employee on a promise to refrain from engaging in concerted activities , and a demand for and inspection of a copy of an affidavit by an employer to a Board agent; and (2) on or about speci- fied dates, discharged or laid off, and failed and refused to reinstate certain employ- ees because of their union or other protected concerted activities .3 Respondent's amended answer admits the jurisdictional allegations of the com- plaint, and the discharge of Michael Garside on June 4, 1965, but alleges that he refused reinstatement on July 2, 1965, and denies generally and specifically all other allegations. Hearing was held befoie Trial Examiner Irving Rogosin from November 8 to 13, both inclusive at Salt Lake City, Utah. The General Counsel 4 and Respondent were represented by counsel , afforded full opportunity to be heard , to examine and cross-examine witnesses , to introduce oral and documentary evidence relevant and material to the issues , to argue orally, and file briefs and proposed findings of fact and conclusions of law. Respondent's motion to dismiss the complaint, in whole or in part, at the close of the General Counsel's case-in-chief, was denied, with leave to renew before the close of the hearing . When renewed, ruling was reserved for disposition in this Decision . The motion is disposed of by the findings and conclu- 1 The corporate name as corrected at the hearing. 'The complaint , in Case 27-CA-1843, was issued July 27 , 1965, based on a charge filed June 15, 1965; the charge in Case 27-CA-1904, was filed September 9, 1965 , all duly served on Respondent. 3 The employees and the respective dates the action was taken are : Michael Garside--------------------------------------- On or about June 4, 1965 EiNora Greenhagen ------------------------------------ On or about June 7, 1965 Warren H. Hoskings----------------------------------- On or about June 7, 1965 Marlys Boldon---------------------------------------- On or about June 7, 1965 * Unless otherwise specified , all references to the General Counsel are to trial counsel. Likewise, all dates are in 1965. ELECTRO CONTROLS, INC. 309 sions hereinafter made. The General Counsel's motion to amend the complaint, made before the close of the hearing, to allege further incidents of interference, restraint, and coercion developed in the testimony, was granted. The General Counsel declined to argue orally , reserving the right to file a brief ; counsel for Respondent availed himself of the opportunity to argue orally . Both parties have filed briefs, the General Counsel, on December 23, counsel for Respondent, on December 27, 1965.5 No proposed findings of fact or conclusions of law have been received. Upon the entire record in the case, including the observation of the witnesses, and their attitude and demeanor on the stand , and the briefs of the parties, which have received careful consideration, the following findings are made: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Electro Controls , Inc., a corporation duly organized under the laws of the State of Utah, with its principal office and the place of business at Salt Lake City, Utah, is, and at all times material herein has been , engaged in the manufacture , sale, and distribution of specialty electrical products , including theatrical stage lighting equipment. During the 12-month period prior to the issuance of the complaint , a representa- tive period , Respondent manufactured , sold, and shipped from its plant, finished products valued in excess of $50,000 directly to points outside the State of Utah. During the corresponding period, Respondent purchased goods, materials , and sup- plies valued in excess of $50 ,000, which were transported to its plant directly from points outside the State of Utah. During this period, Respondent also purchased goods and materials valued in excess of $50,000, which were transported to its plant from business concerns located in the State of Utah, which had received said goods and materials directly from points outside the State of Utah. Upon the basis of the foregoing , and the admitted allegations of the complaint, it is found that Respondent is now, and at all times material, has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2 ( 6) and (7) of the Act.6 It. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, Local No. 354, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction Respondent or its predecessor , which was founded by Ariel Davis, has been engaged in the manufacture of laboratory electrical and stage lighting equipment. The laboratory equipment , consisting of a variety of electrical components mounted in small extruded aluminum housings , includes meters, variable voltage sources, supplies, rectifiers, and voltage doublers, and is manufactured under the trade name of AD-lab, derived from the initials of the founder 's name. The stage lighting equipment, composed of lighting units, the housings of which are manufactured from extruded aluminum, and the switchboards , requiring sheet metal, components, wiring, and painting , are supplied to theaters, colleges, universities , and schools. 5 An unopposed motion by the General Counsel to correct the record , filed December 23, 1965 is hereby allowed 6According to Respondent's president , William N Jones prior to Novembei 1, 1964, the Company was known as Ariel Davis Manufacturing Co , Inc, a stock company At about that time , Electro Controls , Inc was organized and acquired the "operating business assets," including the use of the name of the former company, the Company being piesently known as Ariel Davis Manufacturing Co , Inc, a division of Electro Controls, the latter constituting the corporate entity This explains the refeience by various witnesses to Respondent as "Ariel Davis " Jones, formerly general manager, has been associated with Respondent or its predecessor for 6 yeais. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Manufacturing operations are generally under the supervision of Robert A. Greenwall, plant manager, since November 1, 1964, and prior to that, assistant to the vice president of the predecessor. He has been employed a total of about 8 years. Respondent or its predecessor has had collective-bargaining relations with the Union for a number of years, at least since 1961, so far as the record discloses, when Greenwall was first invited by the Company to participate in negotiations with the, Union? ,The last collective-bargaining agreement, prior to the current contract, was for a term of 2 years from July 1, 1963, and expired on June 30, 1965.8 Since one of the issues involves the question of seniority, it may be well to men- tion the applicable provision, as it existed under this contract, and was presumably carried over in the one which expired on June 30, 1965. It reads: Sec. 19. SENIORITY. After sixty (60) days of cumulative service with the Company, all employees shall be credited with Company Seniority from the date they began work with the Company. All journeymen shall be credited with Journeyman classification seniority equal to their Company, seniority. Other employees shall be credited with classification seniority according to the length of time they have served in each classification. During his term of office the Shop Steward shall head the seniority list for the purpose of shift assignment. Sec. 20. LAY-OFFS AND RE-HIRES. When it becomes necessary for the Tompany (sic) to reduce the working force, employees with the least Com- pany seniority shall be laid off first. When it becomes necessary to increase the working force, employees with the most Company seniority shall be the first called back to work. In either case, the employee must be able to satis- factorily perform the available work. [Emphasis supplied.] 9 B. Events during the 1965 contract negotiations On about March 5, 1965, the Union, by its then Business Agent Darrel Tea, noti- fied Respondent that it was reopening the collective-bargaining agreement under the 60-day reopening provision.1e Thereafter, meetings were held between Respond- ent and the Union during the next 4 months, one each in March, April, and May, and several in June. Minutes of these meetings were maintained, but, although copies were apparently in the possession of the General Counsel at the hearing they were not introduced. Representing the Union at these bargaining conferences were ElNora Greenhagen, who acted as secretary and kept the minutes, Patricia ("Pat") 7 Events occurring prior to November 1, 1904, relate, of couise, to Respondent's pred- ecessor For consenience. however reference to Respondent is intended to include its predecessor as to events which occurred prior to the change in ownership 8 This finding is based upon the combined testimony of Ex-Business Manager and Finan- cial Secretary Darrel H. Tea and Plant Manager Greenwall. The printed form of contract, between Ariel Davis Manufacturing Company and the Union, introduced in evidence, is actually dated May 25, 1954 , and is of indefinite duration, subject to termination on 60 days' written notice prior to any anniversary date An appendix, effective July 1, 1963, providing for new wage scales , with 2 percent wage increases on January 1 and July 1, 1964, and the same increase on January 1, 1965, appears to establish the existence of a 2-year contract , expiring June 30, 1965. 6 As will presently be seen, under the current contract, entered July 1, 1965, these sec- tions were changed by substituting classification seniority for company seniority at the places underlined. The issue of which seniority governed in regard to the layoffs involved is discussed later. 10 The finding as to the date of reopening is based on the recital in the Union's 30-day notice, dated May 28, 1965, to the Federal Mediation and Conciliation Service, FRCS herein, as required by the Act, copies of which were sent to President Jones, as a repre- sentative of Ariel Davis Manufacturing Co., the local representative of the FMCS, and the Industrial Commission, State Capital The notice specifies the date of reopening as more than 60 days prior to May 25, 1965, apparently using the date of the underlying con- tract (May 25, 1954 ), rather than July 1, 1963, the effective date of the renewal of the contract, which was subject to reopening. The notice to the FMCS, after stating that several meetings had been held since March 5, to no avail, sets forth that the notice was being given in compliance with the Act, and stated that the Union intended to conduct a strike ballot after July 1, 1965, unless a satisfactory contract was negotiated by that date. ELECTRO CONTROLS, INC. 311 Landers, Dennis Daniels, Raymond W. ("Ray") Homer, and Michael Garside; rep- resenting the Company were Jones and Greenwall . These negotiations ultimately resulted in a contract by the end of June , effective for a 2-year term. Among other modifications , section 19, dealing with "Seniority," and section 20, covering "Lay-offs and Re-hires," were rewritten to substitute classification for company seniority in the previously quoted sections. According to Business Manager Tea, Garside , Greenhagen, and Daniels were the most active members of the negotiating committee , Garside and Daniels engaging in research at the State university library and by the use of newspapers , periodicals, and journals and other union contracts , in preparation for the negotiations. During this period, meetings of the employees were held at the union hall. In the latter part of May or June, a meeting was held in a vacant lot south of the Company's parking lot. The purpose of the meeting was to reassure the employees that the contract negotiations had not been impaired , to "quell" problems which had arisen in the plant following a previous meeting, to persuade the employees not to "push the panic button ," as well as to take a strike vote." Tea and Garside spoke at this meeting. Nearly all the employees , numbering about 48, attended. A strike vote was taken , all but one voting in favor of the strike action. Tea was in frequent communication with the company representatives during the period of negotiations . On this occasion, Greenwall crossed the parking lot and engaged Tea in general conversation but discussed no labor matters . Several days later, Tea sent the Company the copy of the 30-day notice to the FMCS. Upon receipt of the notice, President Jones, who had never received such a notice before , and mistakenly assumed that it was a strike notice , telephoned Tea and questioned him as to the reason for the notice , and the number of employees who supported the threatened strike. Jones asked whether the members of the negotiating committee were responsible for "creating the problems " Tea was vague about whether Jones mentioned Garside or any of the other members of the committee specifically by name, but testified that he did not reveal the names of any individuals. While negotiations were in progress , Plant Manager Greenwall spoke to various members of the negotiating committee at the plant . In May, after about the third bargaining meeting, Greenwall spoke to Raymond W. Homer , production shop rep- resentative of the negotiating committee , at his work station. Greenwall told him that he was disappointed at the progress of the negotiations, and asked Homer to use his influence with the members of the committee to achieve a reasonable settle- ment. Greenwall said that the Company could not grant an excessive wage increase because it might "go broke" if it did . He told Homer that Garside had been "push- ing a little too hard ," and that he failed to understand Garside 's attitude in regard to the negotiations. Just about then, Garside passed the two men, and Greenwall remarked, "Well, he's not going to be with the company very long," without elabo- rating further. During the same period, according to committeeman Daniels, he had a conver- sation with Greenwall in the latter's office . Greenwall told him that he had had a discussion with Garside, presently related , and wanted to acquaint Daniels with the points he had discussed with Garside . Greenwall spoke of the attitude of some members of the committee , referring to Garside and Daniels, in particular, criti- cising them for being too drastic-and having a "bull by the horns,"-and urging that the committee consider the Company 's position, as well as their own. Green- wall told Daniels that he regarded the wages then being paid as "fair," and that management's proposals were likewise "fair," especially as to the female employees, who were receiving "what they were worth." Greenwall produced a list of employ- ees, including Garside, Daniels himself, and Don Baldridge, who were slated for merit wage increases, which, Greenwall said, could not then be granted because of the pending negotiations . Daniels quoted Greenwall as saying that Daniels was too deeply involved in the negotiations "because (sic) my name was on the list and 11 There is some indication that the employees , especially Garside, had become disaffected toward Tea because of what they regarded his dereliction in giving notice of intention to reopen the contract , and his dilatoriness in notifying the appropriate agencies of the possibility of a strike. Tea himself, a reluctant witness for the General Counsel, testified that he had learned that Garside had consulted a representative of the Teamsters Union. Tea was not reelected business manager , and all these factors may have accounted for his hazy memory regarding some of the events about which he testified. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I would be getting a raise directly after negotiations." The merit increases, which were in addition to the wages ultimately agreed on, were, in fact, granted after the contract was signed.12 Also, in May, Greenwall assembled the employees of the SCR Department.i3 Deploring the state of negotiations, the consequent unrest in the plant, and his concern over production, Greenwall said that he would be glad when it was all over. He observed that management and the employees had been "a happy family" until then, and expressed hope that this would continue after the dispute was set- tled. He reminded them of favors management had granted them, such as issuing paychecks to employees ahead of time, and, as in Greenhagen's case, permitting repairs of personal automobiles on company property on their own time. Manage- ment, he said, wanted to continue these favors. During this discussion, according to Greenhagen, Gieenwall referred to committeeman Garside as "somewhat of an agitator " Greenhagen, as well as other employees who testified, conceded that Greenwall did not on this, or similar occasions, explicitly threaten that the Company would withdraw these benefits unless negotiations were satisfactorily concluded, although other witnesses apparently inferred that this was what he meant. During the second or third negotiation meeting, Jones summarized the Com- pany's financial condition, observing that it had not been doing too well, and was "in a bind." Garside grinned evincing skepticism, and Jones rejoined that he did not think it was "at all funny," and that he did not like his attitude. Derek Adams, a wiring department employee under Foreman John Miller, testi- fied that in about mid-May, Greenwall also spoke to the employees in that depart- ment in a group. Greenwall called upon them to regard the negotiations "with an open mind," and "not to be swayed one way or the other." Adams quoted Green- wall as saying that "if the union got tough the company could get tough." Adams testified, at first, that he interpreted this to mean that privileges, such as those already mentioned, would be discontinued. Later, he testified that Greenwall actu- ally made such a statement. Adams testified that he was uncertain whether Green- wall actually specified what benefits or privileges he was referring to but that he indicated generally that the Company could withdraw such benefits.14 While it is undisputed that, in his various discussions with groups of employees during this period, Greenwall reminded them of the privileges they enjoyed, the evidence that he threatened that the Company would withdraw these privileges unless the Union acceded to its terms, or agreed to a satisfactory settlement, is not convincing. An employer's reminder of existing privileges, coupled with a plea for restraint in the union's bargaining demands, falls far short, in light of the entire bargaining history disclosed by the record, of an implicit threat to withdraw such privileges unless negotiations were satisfactorily concluded. I am not persuaded, in view of Greenwall's denial that he uttered such a threat, and the conflicting and inconclusive evidence of the witnesses who testified as to his statements, that Greenwall, either expressly or impliedly, threatened that Respondent would withdraw these privileges. 12 There is no allegation or contention that the withholding of the merit increases pend- ing negotiations constituted an unfair labor practice, nor that the disclosure was deiigned to influence the attitude of these employees in derogation of their bargaining agent 13 There were five female employees, Connie White, Vivian Ellingsworth, "Pat" Landers. "Jackie" Burton, Greenhagen, and Foreman Joseph Nelson The designation SCR stands for Silicone Controlled Rectifier The foreman apparently left soon after Greenwall arrived on the scene. i4 Adams' testimony was generally corroborated by George Heltman and Daniel C. Grundvig. The latter testified that, although lie had thought he was in this group, there may have been two groups, the other, probably consisting of Steve Rleinlein, Eric Ohlson and himself He, too, could not recall whether Greenwall specified the type of privileges he meant. Grundvig, incidentally, had been an officer and member of the negotiating com- mittee of another union for 7 years, and testified that he found the situation " amusing" because he had been in similar "predicaments" before. Obviously, a sophisticated union- man, Grundvig was not intimidated by Greenwall's remarks, although this, of course, is not the criterion in deciding whether the remarks were coercive Grundvig admitted that Greenwall began the discussion by urging the men to attend and participate in the union meetings, though this could have been to persuade the employees to counsel a less in- transigent attitude on the part of the negotiating committee Grundvig further testified that Greenwall was not trying to undermine the Union, and, as far as Grundvig was aware, had never done so. ELECTRO CONTROLS, INC. 313 It is, therefore, found that these allegations have not been sustained by a pre- ponderance of the credible and reliable testimony. 1. Creating an impression of surveillance Committeewoman Greenhagen was elected to the negotiating and grievance committees sometime in April. At an unspecified time before that,15 Assembly Foreman James P Daniels questioned her in the silver plating department in another building, in the presence of employee Ann Albenese, about what occurred at the union meeting. She put him off with some inconsequential remark, and told him that employees had been instructed not to divulge to anyone what occurred "inside the union hall." Daniels rejoined that he "knew more about what went on in that union meeting and he didn't need to go to those union meetings, that ten minutes after he got to work he had the whole lowdown on everything that went [on] in those union meetings." Although he did not reveal his source, he indicated to her that someone had volunteered the information to him. Daniels did not categorically deny this conversation, and admitted that he learned what took place at union meetings from "talk throughout the shop," which he "pieced together" from various conversations he overheard. It does not appear that he actually eavesdropped on such conversations. 17 In view of Daniels' failure to deny the conversation with Greenhagen, and in light of her credible testimony, it is found that Daniels did in fact question her about what had taken place at the union meeting, and did make the remark which she attributed to him. Such interrogation, without any legitimate purpose, in the circumstances disclosed by the record, warrants a finding of interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. The evidence offered in support of the allegation, that Respondent created the impression that it was maintaining surveillance of the union activities of its employees, appears to be little more than the idle boast of a relatively minor supervisor, probably prompted by his chagrin at being rebuffed by the employee. At any rate, the evi- dence is insufficient to support an affirmative finding that Respondent engaged in such proscribed conduct. 2. The demand to inspect Greenhagen's affidavit to a Board agent On about June 23, following Garside's discharge, and her own layoff as related below, Greenhagen was interviewed at the plant by an employee of the Regional Office of the Board, who obtained a sworn statement from her. The interview took place in the front office of the plant, but no company representative was present. As she left the office after the interview, with a copy of the statement, Plant Manager Greenwall engaged her in conversation in the reception room, and asked her whether the document she had was a copy of her affidavit. She acknowledged that it was, and he asked to read it. She refused, asserting that it was "confidential." Greenwall tried to cajole her into letting him see it but she remained adamant. He then told her that he had seen "Monty" Summers' statement, and had approved of it, and wanted to know why he could not look at hers. Addressing him familiarly as "Bob," she protested that she did not "particularly" want to let him see her 15 Greenhagen was unable to fix the date with any greater certainty , except to testify that it occurred after a meeting of the employees at the union hall . She testified that she was under a mental strain at the time of the hearing due to personal problems and that this had affected her recollection as to certain details Her testimony in other respects did not appear to be otherwise impaired. 11 Not to be confused with union negotiating committeeman Dennis Daniels i' Daniels testified that he even commented about this to employee Kurt Dludrow , during a rest period while the negotiations were under way. According to Daniels , Mudrow told him that it looked as if the Union had Jones "over the barrel " Daniels said lie doubted that, adding, "I don ' t like to move to Canada , but that's what will happen ," continuing, "He'll just move all the assembly work up there, so I don't think you guys got him over the barrel . . . [ because] they can do the same work up there as we're doing here." Daniels testified that he had not been so advised by management but made the statement on the spur of the moment to show this employee that the Union did not actually have the advantage of the Company . This conversation is adverted to later, in a discussion of the allegation of the complaint, that Jones threatened to close the plant if employees con- tinued to press certain demands. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statement. Greenwall persisted, repeating his request several times. While they were walking toward the lunchroom in the plant, Greenhagen finally relented, observing that although it contained "nothing but the truth," he probably would not like it. She gave him the statement, which he read, and returned with the comment, "It's all right." Greenwall candidly admitted that he asked Greenhagen to let him read the copy of her statement to the Board agent, without realizing that this was objectionable and that he acted out of naivete. This, of course, is no justification for his action, and Respondent's counsel concedes that this constituted a violation of the Act. It is, therefore, found that, by Greenwall's request that Greenhagen permit him to read her copy of the statement furnished to a Board agent, and by his reading of the statement, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7.10 It is, of course, immaterial that the supervisor found nothing objectionable in the employee's statement. 3. The alleged threat to move the plant to Canada During the course of the hearing, the General Counsel moved to amend the complaint, by alleging, in substance, that President Jones had threatened to move the plant to Canada because of the frustrations in attempting to reach agreement with the Union. The motion was granted without objection. The circumstances on which this allegation is based are substantially as follows. According to Jones, Foreman Daniels had related to him the conversation in which Mudrow had boasted that the Union had the Company "over a barrel." Jones told Daniels that he would take up the subject when he met with the negotiating committee. During the next meeting, Jones, referring to the fact that the strike notice was the first the Company had ever received, told the committee that he had consulted counsel, and that in the event of a strike, the Company would attempt to operate the plant to the best of its ability. He stated, in effect, that the Company would utilize its foremen and draftsmen, who were capable of "wir[ing] boards, and would con- tinue manufacturing at its plant in Canada, and have the products shipped to its customers in the United States, but that as far as moving the plant to Canada, that was out of the question." 19 He pointed out, however, that in view of import duties which shipments from Canada would entail, amounting to a 22-percent tax, this course would not be economical, but would be resorted to in an extreme emergency such as a strike. Jones testified in a candid, forthright, and convincing manner, and his version of the remarks attributed to him is more credible than that of those who quoted him as categorically threatening to move the plant to Canada 20 Moreover, Jones' remarks serve the additional purpose of clarifying, if not dissipating, the effect of Daniels' remarks to Mudrow on the subject. Furthermore, in the context of bar- gaining sessions with a union, especially one such as that under consideration, following receipt of a strike notice, a statement by an employer that he would make every effort to maintain production by utilizing supervisors or other nonunit employees, and by resorting to other available plant facilities in order to continue in operation, can scarcely be equated with a threat to close the plant or transfer a portion of its operations as a means of retaliation against the Union. At most, Jones' remarks amounted to no more than a prediction of the possible conse- quences of a strike rather than a threat to resort to that expedient as a medium for reprisal. The statement is more properly regarded as a tactical maneuver in countering the Union's strike threats. It is, therefore, found that Respondent did not, either by the statements of President Jones or Foreman Daniels, threaten to close or move its plant to Canada, because of the Union's bargaining demands, and has not in this regard engaged in unfair labor practices within the meaning of Section 8(a)(1). i8 Braswell Motor Freight Lines, Inc., 156 NLRB 671, and authorities cited. 19 It is not clear from Jones' testimony, whether the latter part of his remark was in- cluded in his statement to the committee or was merely his own comment at the hearing. 20 As will later be seen, Respondent did, in fact, order aluminum extrusions through its subsidiary in Canada when these products became unavailable due to a strike at a plant of its regular supplier. ELECTRO CONTROLS, INC. 315 C. Discrimination in regard to-hire and tenure of employment 1. Michael Raymond Garside Garside was employed by Respondent on September 6, 1964,21 and discharged, under circumstances presently related, on June 4, 1965.22 During the period of his employment, he worked in the sheet metal department under the supervision of Foreman Summers. In the latter part of February, or early in March, Garside was elected union steward, succeeding Evan ("Red") Williams. He was also chairman of the negotiating committee which bargained and reached agreement with the Company following the contract reopening in March. He was probably the most voluble, if not vociferous, member of the committee, participating in the bargain- ing meetings with management over a period of several months, commencing in the latter part of March, and culminating in the execution of the contract, the latter part of June. In May, Greenwall summoned Garside to his office, and, in a conversation last- ing more than 2 hours, according to Garside, asked him why he was "pushing the negotiations so hard," and why he was so dedicated to a union. Greenwall told him that the Company had always taken care of its employees, and that if the Company were treated fairly, the employees would be treated similarly. Questioning Garside as to why he believed the wages were unfair, he showed him a sheet of paper setting forth the wages of the employees, and discussed the wage rate of each employee, commenting that he certainly considered their wages fair. According to Garside, President Jones came in during the latter part of the conversation, and he, too, asked Garside why he was "pushing so hard," remarking that he, Jones, had played college football and he also knew how to "fight on the defensive." Garside asked Greenwall if rumors he had heard in the plant, that Greenwall had referred to him as an "agitator" were true. According to Garside, Greenwall acknowledged that this was so. Garside also testified that he apologized to Jones on this occasion for his cynicism about Jones' wage proposal at an earlier negotiation meeting, as previously related. Several days later, Garside testified, Greenwall approached him at his work sta- tion and told him that some deserving employees would receive increases but that he would not be able to grant them at the time because of the pending negotiations. The Circumstances Culminating in Garside's Discharge On June 3, an election was held for business manager of the Local Union. Earlier that afternoon or the night before, Clark Cushing, a candidate for the office, contacted Evan Williams, former union steward, to arrange to visit the plant to solicit support for his candidacy as business manager. Cushing went to the plant the afternoon of the day of the election, and asked the receptionist for Williams. Williams was paged over the public address system, and appeared soon afterward. According to Cushing, Williams invited him to the rear of the shop to meet the employees. It is undisputed that neither of these men had obtained permission from anyone in authority for Cushing to enter the working area. Williams accom- panied Cushing about half way into the shop, where Cushing spoke to two or three employees. Williams told Cushing that he was no longer shop steward, and, after introducing him to a few of the employees, including Ohlson, excused himself and went back to work. According to Williams, Cushing had phoned him the night before the election, and asked him if he could "come out to campaign." Williams told him that the employees were entitled to "breaks" and a lunch period, and that "it would be all right for him to come to the plant the next day." When Cushing arrived, Williams testified, he escorted him into the shop, where he introduced him to Eric Ohlson, unit chairman for the Union at the plant, and then left for the stockroom where he worked. Admittedly, Williams did not request permission of anyone in authority to bring Cushing into the plant. 21 The transcript of the proceedings inadvertently gives the year as 1965. The record is hereby corrected accordingly. 22 It was stipulated at the hearing that Garside was offered unconditional reinstatement, by letter dated June 30, and received July 2, 1965, which he refused . The charge, alleging his discriminatory discharge, was formally filed on June 15, 1965. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ohlson testified that he was with Cushing only long enough to "renew acquaint- ance," accompany him from the wiring department to the metal fabricating depart- ment, and introduce him to'Garside, the shop steward. Ohlson admitted that he did not question Cushing's right to be there, although he knew that his purpose was to campaign among Respondent's employees. According to Ohlson, he introduced Cushing to Garside, and then left. He was not reprimanded by any management representative for his part in the incident. Garside, himself, testified that Ohlson escorted Cushing to Garside's work area, and told him that Cushing was a candidate for business agent of the Union, and wanted to talk to the employees who were union members. According to Garside, Ohlson told him that he would have introduced Cushing to the employees himself, but-that he did not have the time, and requested Garside to do so. Garside com- plied, and introduced him to several of the employees over,a period lasting, accord- ing to him, no more than 15 or 20 minutes. Garside testified that he asked Cushing whether he had obtained permission to visit the employees in the plant, and Cush- ing told him that he had "cleared with the front office." According to Cushing, who generally corroborated Garside as to the length of time they spent together-no longer than half an hour-no mention was made by either of them about whether Cushing had been granted permission to go into the shop and talk to the employees. Altogether, Cushing testified, he talked to between 15 and 20 employees, some of whom were working, others, just "standing around talking." His purpose accomplished, Cushing left the plant. Later that afternoon, upon learning what had occurred, Jones went into the shop to find out who "the stranger" was. When he spoke to Foreman Summers, the latter raised the question of whether Cushing had been "cleared." After looking for Cush- ing and Garside, who had apparently left the area, Jones returned to the front office,. and, after making further inquiries, learned that Cushing had not identified himself to anyone there. Later, discovering that Williams had been with Cushing, Jones sent for him and questioned him about the identity of the man. Williams told him that he was a "union fellow." Asked whether he had been "cleared," what he had been doing "walking around our plant," and what Garside was doing, "walk- ing him around the plant," Williams said he did not know. Jones told him, "Well, you don't have any right to do that, you know that," reminding him that he was not a supervisor, and had no authority to grant such permission. Williams agreed, but said that he had not thought about it, that he should have known better and ascertained whether Cushing had permission to be there. Jones warned, "Well, that had better not happen again. We've just had a discussion about taking unauthor- ized persons through our plant some few week before that with all of the people in inventory and purchasing," as well as with Williams. Except for this reprimand, Williams was not otherwise disciplined. Jones then told Foreman Summers that this was "the last straw," as far as Gar- side was concerned, that "floating around the plant" had been the subject of fre- quent discussions, and that Garside's conduct constituted grounds for discharge. He told him, however, that he would "double check it with the union business agent," testifying elsewhere that he realized he had "a hot potato" on his hands. Jones telephoned Business Manager Tea, notified him of what had occurred, and told him that he intended to terminate Garside because he had left his work area with a union member, who had come to the plant, taking up his time, and causing loss of production. Tea told him that, if the facts were as he represented, Jones was justified in terminating Garside. According to Tea, Jones told him that his primary objection to Garside's conduct was that he had been away from his work area without permission. Next day, June 4, Garside was discharged, to quote him, for "conducting union business on company time without permission of the supervisor." About 4:15 p.m. that day, Jones summoned him to his office, questioned Garside in some detail, and elicited the facts already related. Garside testified that Jones asked him if the man, identified as Cushing, had told him that he had permission to go through the plant. According to Garside, Jones then "just made clear" the reason Garside was being discharged, and offered him some gratuitous advise. He said that he wanted to "tell [him] a few things that he thought would help [him] in . . . life." Garside quoted to the effect that he thought, Garside was "pushing things too hard, that [he] should try to get along with people better." Garside rejoined that he believed he was "doing the right thing . . . and . . . would do it that way again" if the occa- sion arose. According to Garside, Jones told him that he believed Garside had gen- erated an atmosphere of "mob hysteria" throughout the plant, and that if matters ELECTRO CONTROLS, INC. 317 between the Union and the Company continued in the same manner, he "could close down the plant here and move his operations to Canada." 23 Finally, Garside testified, Jones said that Garside "possibly was not the only . . . person that was causing this discontent with the company, and that they were being watched also." 24 Garside was thereupon discharged, and, although subsequently offered reinstate- ment, declined the offer. Contentions and Conclusions Concerning Garside's Discharge As must be readily apparent, the General Counsel contends, in substance, that Garside was discharged because of his aggressive and militant role as chairman of the negotiating committee during the bargaining conferences which culminated in the contract, which became effective July 1, 1965. Aside from its contention that Garside was offered unconditional reinstatement, which he declined, Respondent contends that he was discharged because (1) despite repeated warnings about being away from his work area without permission, he persisted in this conduct; and (2) on June 3, he left his work area without per- mission in connection with Cushing's visit to the plant. As to the latter aspect of its defense, Respondent concedes that its objection to Garside's conduct was based, not on the fact that Cushing failed to obtain permission to enter the working area, and, presumably, that Garside had not ascertained whether Cushing had obtained such permission, but on the fact that Garside had not obtained permission to leave his working area. It is too well-established to require extended discussion or citation of authorities, that mere union membership, or other protected concerted activities, however aggressive or militant, will not insulate an employee against discharge for just cause or legitimate reasons. By the same token, it is equally well established that, valid grounds for discharge will not absolve an employer from a finding of dis- crimination, if the discharge was actually motivated by a purpose to discourage or encourage union or other protected concerted activities, and the ostensible grounds are merely resorted to as a pretext for eliminating a militant union pro- tagonist. Moreover, if an employee is discharged , in part, because of his union or concerted activities , and, in part, because of some dereliction, the discharge is, nevertheless, violative of the Act. Finally, if an employee is actually discharged, or otherwise disciplined for valid and legitimate reasons, untainted by motives proscribed by the Act, there is no violation merely because he was engaged in union activity and "the employer sheds no tears at his loss." 25 The record generally establishes that , following his election as shop steward, Garside frequently absented himself from his work area without the permission of his supervisor, often to'go to other departments These absences were apart from those arising out of his duties in the plant or his responsibilities as shop steward.26 With due allowance for routine requirements, such as drawing parts and supplies from the stockroom, discussions with employees or supervisors regarding his work, or restroom needs, it is evident that Garside was away from his work area without n This alleged threat, discussed in another context elsewhere, was not categorically denied. The qualified admission , to which the General Counsel refers, was made within the context of the same discussion of what action might be taken in the event of a strike. It is found that Jones did not actually threaten to move the plant, but made substantially the same statement as lie made to the negotiating committee on his subject. u The General Counsel relies, in part, on this alleged remark, as evidence that Respond- ent created the impression that the union activities of the employees were being kept under surveillance Since, as will later appear , even if Jones made the remark, it could be equally attributed to Respondent's dissatisfaction regarding the excessive time members of the negotiating committee were devoting to union activities during working hours, the remark is regarded as too vague and nebulous to support an affirmative finding of purported surveillance. i N L R.B. v. Park Edge Sheridan Meats, Inc., 341 F.2d 725, 728 (C.A. 2), and cases cited 28 The existing union contract , as well as the current one, provided that a member of the shop committee , designated as shop steward , and the members , "shall be allowed time off to attend meetings with management and to confer with any employee in any depart- ment at reasonable times in order to transact the legitimate business of the Committee," provided they first obtain permission of the department heads, in which case they shall be paid at straight time for the time so spent during regular working hours , not to exceed a total of 4 hours for the entire committee. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD permission more frequently than other employees in the shop. Summers, his fore- man, testified credibly that this conduct prompted him to warn Garside three or four times not to leave the work area without his permission. The first warning, according to Summers, occurred shortly after Garside became shop steward; the last, about 3 weeks before his discharge. On one occasion, which fellow employee Don Baldridge places as 2 weeks before Garside's discharge, Baldridge heard Summers issue such a warning. Baldridge also tesitfied that he observed Garside away from his work area more frequently than other employees. In his direct testimony, Garside denied that he had ever been warned about these infrac- tions, but, under rebuttal, admitted that Summers had warned him twice. According to Summers, these warnings proved futile, and the unauthorized absences continued. Summers took this up with Plant Manager Greenwall on two occasions; the last, some 3 weeks before Garside's discharge, recommending such action unless Garside's deportment improved. Foreman Daniels, assembly department supervisor, at the opposite end of the plant, also testified that he observed Garside in his department on a number of occasions, and that finally, in May, he discussed this with Greenwall twice. Dennis Daniels, a crating department employee, and member of the union negotiating committee, testified that also during this month, while he was talking to Garside in the crating department, Foreman Miller, of the wiring department, told them to "clear with him," before engaging in any discussions, to "avoid any more con- fusion or problems." Daniels testified that, over a period of 4 months prior to Garside's discharge, he engaged in a half-dozen or dozen conversations with Garside in the crating department. Although it was not shown whether any of these conversations related to their work, on an occasion when Miller approached them, Garside had a handtruck with him Daniels could not specifically recall what was discussed in this conversation. Daniels did, however, testify that employ- ees from the paint and sheet metal shops came to his department and engaged in brief conversations with him, not always in connection with work, nearly as fre- quently as Garside 2'r, On at least some of these occasions, the foreman came over and asked what business they had in the department, or what they were talking about, although Daniels could not recall Foreman Miller doing so on the occasion of Daniels' conversation with Garside. Garside himself conceded, under rebuttal, that on an occasion, the date of which he could not recall, Miller told him to "clear with him before speaking to people in his department about union business," or words to that effect. As a witness for the' General Counsel, Union Representative Tea testified, under cross-examination, that in May, after Garside had become shop steward, both Jones and Greenwall complained to him that Garside had been away from his work area, and that, while they did not object to Garside's being away on union business, they protested that he was spending too much time on those duties. _ At a meeting in the early stages of the negotiations, according to Tea, Jones reiterated this complaint, adding that Garside's union duties were consuming more time than necessary.28 Greenwall, too, who participated in this discussion, reiterated that employees were not to leave their working areas without permission from their supervisors. According to Tea, Garside was not singled out for reprimand during this meeting, but "the point was made clear." Tea, himself, advised the committee, "if you've ever worked harder, you stay at your post, you work, you leave union business out (sic) during the negotiations, . . . keep it right down, do your work, behave yourself, don't use company time for union time (sic), et cetera, . . . 1129 27 The flow of products is from the sheet metal department, in which Garside worked, to the painting department, then to the wiring department, and on to the crating department. According to Daniels , none of the products on which Garside worked was routed directly to the crating department. 20 There appears to be some disagreement as to whether these remarks were directed specifically at Garside or at the activities of the shop or negotiating committee in general. It is unnecessary to resolve this conflict . The significant fact is that all witnesses agree that the subject of employees leaving their work areas without permission was discussed, and that the committee was put on notice that the Company objected to this practice. 20 Tea testified that prior to Garside's discharge, Jones had complained to him about Garside's "spending *more time than allotted for union activities, and also . . . felt that he was seeking grievances, and just [engaging in] general agitation with some of the members." ELECTRO CONTROLS, INC. 319 Regarding the Cushing incident on June 3, aptly described in Respondent's brief, as "the capstone" to Garside's conduct, it is undisputed that none of the persons involved in the incident had obtained permission to escort Cushing through the shop, or-Respondent's principal objection-for Garside to leave his work station to do so. While it is true that, of the others involved in this incident, only Williams was disciplined, and he only by a reprimand, the fact remains that Garside was the most serious offender in this respect, having spent between 15 and 30 minutes of working time on this errand, to say nothing of the time of the employees to whom Garside introduced Cushing. It is no justification or mitigation of Garside's offense that Cushing assumed, iii view of his earlier conversation with Williams, that he had permission to visit the employees in his campaign for union office. For that matter, on the basis of Wil- liams' testimony, it is reasonable to conclude that he had clearly implied that Cushing confined his visit to rest and lunch periods. Neither Jones nor Garside was present when Cushing arrived at the plant.30 The fact that a receptionist paged Williams over the public address system, and undoubtedly observed Williams escorting Cushing into the shop, does not establish that she had authority to grant such permission, or that she did so. Nor for that matter, does the fact that Sum- mers admittedly observed the two men together inside the shop, without question- ing either Cushing's right to be there or Williams' right to leave his post, consti- tute permission or condonation for this conduct. It is idle to speculate on the reason for Summer's failure to challenge the men. It should be borne in mind that Respondent is not relying, in justification for Garside's discharge, on Cushing's failure to obtain permission to enter the plant and campaign among the employees. Its sole ground for discharge, on this aspect, is that, once again, and in flagrant disregard of company policy, Garside had absented himself from his work area without permission. It may be noted, however, that Garside admittedly did not ask Cushing whether he had received permission to visit at the plant until after he began escorting him on his tour. Cushing, on the other hand, testified that Garside did not ask him the the question until just before he left the plant. The only possible relevance of this fact to Garside's discharge lies in the fact that, if Cushing had actually obtained such permission, this might have extended, by implication, to the right of the shop steward to escort him through the shop, hence, to absent himself from his work area. Admittedly, however, Cushing had not obtained such permission. Hence, there is no basis for inferring that Garside had tacit permission to leave the plant area. The existence of a plant rule or policy prohibiting employees from leaving their work areas without permission, except in the performance of their duties, is clearly established. It is equally clear that Garside was aware of this policy. He was warned on at least three occasions prior to his discharge by his immedaite foreman. The policy was effectively brought to his attention, as well as to that of the negotiating committee. This was corroborated by the business agent, who took pains to stress the importance of complying with the company policy. Garside himself testified that he was discharged for conducting union business on company time31 Respondent's sincerity in regard to the reasons advanced for Garside's discharge is attested by its action in notifying Union Representative Tea, in advance, after outlining the events which had occurred, of its intention, and obtaining Tea's prior approval. The fact that Respondent was fully cognizant of the risk of being sub- jected to an unfair labor practice charge, in view of Garside's admitedly promi- nent role in the negotiations, does not detract from this opinion. For the purpose, of these deliberations, it has been assumed that Garside was probably the leading union protagonist and the most aggressive and militant nego- tiator.32 Various disparaging references about Garside, attributed to Jones or 80 Greenwall was actually out of town in Milwaukee on that date. ai His exact testimony : "Yes, Mr. Jones discharged me on June 4th for participating in union-conducting union business on company time without permission of the super- visor." [Emphasis supplied ] Assuming Garside merely intended to quote Jones, it is clear that Garside was not actually engaged in union business, in the sense contemplated by the contract, on that occasion. The union business in which Garside engaged related strictely to internal union affairs. 83 Though not exceptionally more so than committeeman Daniels (who was not dis- charged or laid off) and Greenhagen (who was), in the opinion of some witnesses for the General Counsel. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD G-reenwall-such as "agitator"-resentment toward Garside for "pushing so hard" in the negotiations, and metaphorical allusions to him by management as "a big balloon floating up in the air and [wanting] everyone to look up at (to) him," have not been ignored in assaying Respondent's motNation.33 Since Respondent contends that it discharged Garside for leaving his'working area without permission rather than because of Cushing's failure to obtain permis- sion to enter the plant, the 'General Counsel's position, that the policy against permitting strangers to go through the plant without permission was, in effect, discriminatorily applied as regards Cushing's visit, is irrelevant. It may be noted, in passing, however, that as to the General Counsel's contention that candidates for political office were permitted to enter the plant and campaign among the employ- ees, in the November 1964 national election, this was done with the permission of management, and generally during rest and lunch periods. One such candidate was a former general manager of the Company, who was accompanied by Jones on that occasion. Another was his opponent who was granted equal time 34 It is, therefore, obvious that these circumstances afford no basis for a claim of discriminatory application of the company policy. The record leaves no doubt that Garside had violated company policy against leaving his work area without permission. It is clear that he did so to a greater extent than the other employees. He was aware of the company policy, and had been warned on a number of occasions by his immediate foreman, as well as by management officials. The occasion when he escorted Cushing through the shop was 'a flagrant example of this conduct. Admittedly, he made no effort to ascertain whether Cushing had received permission for this errand. That Garside was well' aware of the company policy is manifest not only from his own testimony, that it was his practice to obtain permission before discussing union business with employ- ees at the plant, but also from his admission that after Cushing left, Garside asked Foreman Summers how Cushing had obtained permission to go through the plant. The importance which the Company attached to observance of its policy is under- scored by the fact that during a negotiation meeting, management officials took occasion to raise the problem with the committee and business agent Moreover, the business agent himself admonished the members of the committee to give strict observance to company policy. Despite this, Garside took it upon himself to be absent from his work area for nearly a half-hour to introduce the union candidate to some 17 employees in various departments, with consequent loss of production time. Under these circumstances, it would require a preponderance of the credible and reliable evidence to establish that Garside was discharged, not for a flagrant dis- regard of a company rule or policy, but because of his avowedly vigorous, aggres- sive, and militant attitude during negotiations, which, incidentally, culminated in the execution of a contract35 Two further episodes should be mentioned in respect to Garside's discharge. Committeeman Daniels, who, with Greenhagen, was described as one of the most active members of the negotiating committee, testified that early in October (about a month before the hearing in this proceeding), Foreman Miller told him that at the time Garside was discharged, he, Daniels, was also being considered for dis- charge "because of the negotiations," but that Miller was "instrumental" in having Daniels retained. Although Miller testified on behalf of Respondent, he was not questioned about, and, therefore, did not deny this conversation. The only explana- tion offered by Daniels as to how the subject came up was that Miller was "curious" 88 Garside, a personable, well-spoken young man, testified forth-rightly and candidly, and his credibility is not to any appreciable degree in issue. His manner was self-confident, aggressive, militant, and, apparently, rigid, though admittedly not "obnoxious," during the bargaining conferences This could well have led some, particularly those viewing him as an adversary, to regard him as opinionated, dogmatic, and arbitrary, and perhaps in- flated with his own sense of importance. Nevertheless, however much as Jones and Green- wall might have resented Garside, and found bargaining with him as chairman of the negotiating committee frustrating, these factors do not appear to have been a substantial consideration in Respondent's ultimate decision to discharge him. 84 There had apparently been no previous instance of a candidate for union office visiting the plant for the purpose of campaigning. According to foimer Shop Steward Williams' undisputed testimony, during his tenure, when the business agent came to the plant to- discuss union business , he was sent to Jones to obtain permission in advance. 86 That agreement was reached after a threatened strike is not extraordinary, and does not detract from the fact that the Company ultimately concluded an agreement. ELECTRO CONTROLS, INC. 321 about the hearing which ' had been scheduled in this proceeding, and questioned him about it. After carefully •weighing Daniels' uncontradicted testimony about this alleged conversation, in light of the realities of the situation , and the fact that, despite his active role as committeeman , he was not discharged or otherwise dis- criminated against, Daniels' testimony as to the conversation seems less than per- suasive. It seems doubtful , if management had been determined to eliminate Daniels, that it would have heeded its foreman's attempt to intercede on his behalf. Moreover, the fact that Miller did not mention the subject to Daniels until a month before the hearing raises suspicion as to the reliability of Miller's alleged statement, if not Daniels' testimony concerning it. The fact that Miller did not deny this testi- mony does, of course, create misgivings about rejecting Daniels' testimony . It does not, however, furnish a sufficient basis for concluding that Garside was actually dis- criminatorily discharged even if Miller may have believed so himself. Due consideration has also been given to the testimony of committeeman Homer (who had been asked by Greenwall to use his influence to persuade the committee to take a reasonable approach in the negotiations ), regarding Greenwall's remark to the effect that Garside was not "going to be with the company very long." Since the record establishes that this incident occurred during the period in which com- plaints were being made about Garside's frequent unauthorized absences from his work areas, Greenwall's remark could have been directed as much to Garside's derelictions in this regard as to his union activities. There has also been considered in this connection Greenhagen's testimony, dis- cussed later, that, in a telephone conversation with Greenwall about her proposed reinstatement, Greenwall questioned her about her sentiments toward Garside, and presumably, his discharge . In view of the ultimate resolution of the issue of Gar- side's discharge , these incidents are not regarded as having sufficient probative value to overcome the more positive evidence concerning the actual reasons for the discharge. It remains to be decided whether Garside's misconduct was the actual cause of his discharge or whether a factor was in realty his aggressive espousal of the Union's position and his excessive zeal in representing the employees ' economic interests. In evaluating Respondent's motivation, it is appropriate to consider whether, at the time of the discharge , it harbored a union animus or hostility toward the Union or the organizational activities of its employees , which would have impelled it to eliminate one of its most active advocates . In other words, whether, in discharging Garside, Respondent was motivated by a purpose to discourage membership in, or to undermine the Union . The objective evidence does not support such a conclusion. Respondent (or its predecessor ) had recognized the principle of collective bar- gaining, at least, since 1954, when it executed a contract with the selfsame Union. The first contract of which there is any evidence in this record , it appears to have been renewed or extended , with successive wage increases , until July 1965, when it was extended for a period of 2 years . While it is true that the negotiations which culminated in the latest contract engendered some heat (chiefly, it might be observed, on the part of the union advocates ), and was reached under threat of a strike, this may be properly viewed as indicia of arms-length bargaining . There is no intimation that Respondent resorted to such conduct to forestall agreement or undermine the Union . The issues between the parties were almost entirely eco- nomic. Moreover, there was no showing that the discharge *of_ Garside resulted in impairing the effectiveness of the negotiating committee or the lessening of its bar- gaining demands. Except for the relatively minor incidents, previously found, there was no showing of other acts of interference , restraint, or coercion. When Garside's conduct in disregarding company policy and instructions, despite repeated warnings, coupled with his conduct in the Cushing episode , is considered, in light of the absence of anti-union background , the relatively insignificant inci- dence of interference , and the history of harmonious contractual relations between the parties , it becomes evident that Respondent's motivation in discharging Garside was not tainted by considerations of his union activities or his aggressive and mili- tant attitude during bargaining negotations . The comment made in the Park Edge Sheridan case,36 that, if an employee is disciplined for valid and legitimate reasons, there is no violation of the Act merely because he was engaged in union activity and "the employer sheds no tears at his loss," seems decidedly appropos. 80 See footnote 25. 264-188-67-vol. 161-22 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is, therefore, found, upon the basis of the foregoing, and upon the entire rec- ord, that Respondent did not discharge Garside on June 4, 1965, because of his union or other concerted activities, and has not thereby discriminated in regard to his hire and tenure of employment, to discourage membership in a labor organization in violation of Section 8(a) (3) of the Act.37 2. The alleged discriminatory layoffs of Greenhagen, Hoskings, and Boldon On June 7, 1965, 3 days after the discharge of Garside, Respondent laid off Edna ElNora Greenhagen, generally referred to in the record as ElNora Green- hagen, a production employee, Warren H. Hoskings, a wireman, and Marlys Boldon, an assembly worker. Of the three, only Greenhagen was an active member of the Union and its negotiating committee, and she was reinstated on June 21, 1965. The General Counsel contends that these employees were laid off because of their union affiliation or adherence, and, in the case of Greenhagen, because of her advocacy of the economic interests of the employees while a member of the negotiating committee. Respondent maintains that these employees were laid off for purely economic reasons without regard to their union status. Specifically, Respondent asserts that their layoffs were caused by a shortage or unavailability of Ward Leonard firing circuits, an integral part of a dimming sys- tem, manufactured for theatrical stage lighting. Additionally, Respondent asserts, the unavailability of aluminum extrusions required in the manufacture of lighting equipment, resulting from a strike of its principal supplier, necessitated the layoffs. This is not to say that there had not been layoffs in the past for lack of work, but in this instance Respondent attributed the layoffs to shortages of critical materials. Respondent had formerly manufactured its own firing circuits but because of engi- neering problems decided to purchase them from the Ward Leonard Electric Com- pany, another manufacturer in the East. On April 30, as shown by purchase orders introduced in evidence, Respondent ordered 70 units, described in the order as "pre amplier" kits. The record does not indicate how long this supply would normally last. Anticipated deliveries were: 1 unit on May 14; 30 on June 10, and the remain- ing 39 by June 28. Actual deliveries were made as follows: 4 on May 25; and 32 on June 22. The balance of 34 was presumably shipped on some later unspeci- fied date, not shown in the record, presumably because subsequent to the critical events involved. With respect to aluminum extrusions essential to its production, Respondent has purchased this commodity from Harvey Aluminum, Torrance, California.38 During May and June, Respondent experienced a shortage of aluminum extrusions. On May 11, according to pertinent purchasing documents received in evidence, Respond- ent placed an order with Harvey for 250 units of top and bottom die aluminum extrusions for estimated shipping date of July 23. It was not until August 17, how- ever, that Respondent received its first shipment under this purchase order, consist- ing of 19 pieces, the delay being attributed to a prolonged strike at the Harvey plant, which terminated, according to a circular mailed to its customers, on about August 23. An additional 47 pieces were shipped on September 30, and received 37 Although Garside was offered unconditional reinstatement on June 30, 1965, which he refused, I have attributed no weight to this factor in evaluating Respondent 's conduct, in view of the fact that the offer was made after the filing of the unfair labor practice charge with respect to him. The General Counsel urges as a factor in establishing the discrimina- tion against Garside that he was not given a 5-day written warning provided for in the contract. President Jones testified that it was not his practice or his foremen's to issue written warnings for misconduct, although in some instances written warnings had been given. Admittedly, Garside was not given a written warning. The provision on which the General Counsel apparently relies reads: "Sec. 31. WARNING TO EMPLOYEES FOR INEFFICIENCY. In cases of inefficiency, the employee will be given by the Company, a five (5) day written warning, with a copy to the Shop Steward. If employee is not dis- charged, such warning will be invalid'after thirty (30) days" [Emphasis supplied ] This provision is clearly inapplicable. There is no contention that Garside was discharged for inefficiency. On the contrary, Jones conceded that during the discharge interview, he acknowledged that Garside was a fine, capable worker, that he had no complaint about his work, and would not hesitate to give him a reterence 38 This supplier's California plant and general offices are located in Torrance ; its dis- trict office, to which Respondent's purchase orders were directed, and which conducted the correspondence with Respondent, is located in Berkeley. ELECTRO CONTROLS, INC. 323 by Respondent on October 4; 47 pieces, shipped the same date, were received on October 20, and a total of 66 pieces, shipped on October 26, was. received on November 3.39 In view of the uncertainty of shipments from Harvey, Respondent made efforts to obtain aluminum extrusions from other manufacturers, notably Alcoa Aluminum and Reynolds Aluminum. This, however, would have entailed the manufacture by those companies of special dies at Respondent's expense. Respondent, therefore, with considerable reluctance because of the increased cost due to import duties, placed an order with The Daymond Company, Ltd., Chatham, Ontario, Canada, on May 25, for 350 pieces of aluminum extrusion 40 The first delivery from this source, shipped on August 6, was made on August 13. Unavailability of aluminum extrusions during May and June, according to Plant Manager Greenwall, had its impact on the production department, where the aluminum is cut, straightened, and fabricated. The impact, however, Greenwall testified, was most acute in the assembly department, where all types of lighting equipment requiring aluminum extrusions are produced. According to Assembly Department Foreman Daniels, at the time of the layoffs, presently discussed, the only supply of aluminum on hand was "what had already [been] cut ready for assembly." The shortage of Ward Leonard firing circuits and aluminum extrusions was a subject of concern to management. In a weekly meeting with his foremen during this period, Greenwall brought up the problem of these shortages. According to SCR Department Foreman Nelson in May, and shortly before the layoffs in June, the workload in his department was below normal, and had declined to the point where Jackie Burton, one of his employees, was assigned to the mailroom. On several occasions, Nelson sent some of his employees to the paint shop "to keep them busy." At least twice, he discussed the problem of lack of work with Green- wall, the last time, some 3 weeks before the layoff. Both agreed that something would have to be done. Foreman Daniels, too, spoke to Greenwall about this twice, the last time before the layoffs, and made recommendations for layoff of a specific employee (Boldon, whose case is considered below). According to him, at the time of the layoffs, there was about a week's work in the assembly department, and "work was real light." Foreman Miller, of the wiring department, testified that the workload in his department at the time had declined by 25 to 35 percent. That the employees were not unaware of these conditions is manifested by the testimony of Greenhagen, that work was slack, and that Foreman Nelson apprised her and others in her department of that fact. Sharon Covington, whose work sta- tion was adjacent to Boldon's, testified that about this time, "there wasn't a whole lot to do, but there was enough to keep myself and [others] busy ... in the depart- ment," although "[T]here [were] days occasionally when we had to look for something to do." Again, she testified, "I've . . . always just kept busy doing what I was told, and I didn't pay a heck of a lot of attention, except I-you could see that production was slowing down. I don't know whether it was because of lack of parts or what." 41 Harvey Lloyd, whose job consisted primarily of cutting plastic by saw, also -worked on aluminum, copper, and brass, and had the task of sawing the 20-foot aluminum extrusions into required lengths. In March and April, he went to another building of the Company several times to cut aluminum extrusions . During May, Lloyd testified, the Company's supply began to dwindle. From June until about October, when the Company received its only shipment from Canada, Lloyd did not cut aluminum to any appreciable extent because no aluminum extrusions were available. 3e The total shipments apparently fell short of the initial order. During this period, Plant Manager Greenwali was in communication with Harvey 's sales manager in an effort to -expedite deliveries , but was informed that shipments would be unavoidably delayed. 40 The actual purchase order was directed to Ariel Davis Manufacturing Company, Ltd., Calgary, Alberta, Canada , a subsidiary of Respondent , mentioned earlier in another con- text, which had purchased merchandise from this manufacturer in the past , and arranged for shipment of this order direct to Respondent . The record indicates that some 18 lengths of this aluminum , amounting to 365 feet , proved defective. A report of damage inspection by the carrier on August 23, concludes that these goods were not damaged in transit. a Covington was no longer in the employ of Respondent at the time of the hearing, hav- ing left voluntarily to accept other employment, and presumably would have no reason to slant her testimony. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The situation confronting Respondent during this period of May and June was somewhat akin to the adage, "for want of a nail." The Ward Leonard firing cir- cuits are integral components of the modules, which are assembled to form the SCR dimmers, which comprise 40 percent of Respondent's business. Since the SCR Department, which consists of production and assembly employees, assembles the modules for the dimmers, work in this department was materially affected. Inas- much as the final phase in the production of the dimmer bank is the electrical wiring, the inability to obtain the Ward Leonard firing circuits similarly affected work in the wiring department.42 It is against this, background that the layoffs of the three employees were effected on June 7. The basis for the selection, namely, classification, rather than company seniority, is the principal factor in Greenhagen's layoff, which will be considered first It will be recalled that the actual language of the collective-bargaining agreement, in force at the time, expressly provided that with respect to reductions in force, com- pany seniority should prevail. Respondent contends, and former Union Representative Tea, in effect, conceded, that, despite the contract language, in actual practice, classification seniority has been followed when layoffs became necessary. The record adequately establishes that the Union (i e., both Business Agent Tea and his predecessor), acquiesced in if it did not actually agree to the Company's basis for selection In any case, there is no affirmative evidence that the Union protested this departure from the unam- biguous terms of the contract, and, as Respondent obviously relied on the Union's conduct, the Union is, at the very least, estopped from asserting that the language of contract precluded Respondent from relying on classification seniority as a basis for selection43 It is, however, unnecessary to invoke any such technical or legalistic principles as modification by parol, or estoppel. The issue is not whether the parties modified, or could have modified the written contract by oral agreement, or whether the Company had a reasonable right to rely on the practice which was at variance with the contract. In the final analysis, the issue is whether, in apply- ing classification , rather than company seniority in Greenhagen's layoff, Respond- ent was acting out of discriminatory motives based on union adherence or concerted activity. The evidence adequately establishes that Respondent (or its predecessor) had experienced seasonal spring layoffs for business or economic reasons, each year until about 1959. Since then, Respondent has effected two significant layoffs, one in 1959, the other in 1963. In each instance, the selection was made on the basis of classification seniority, without objection or protest by the Union.44 The layoffs with which we are now concerned were in the classifications of production worker, assembly worker, and wireman, the precise classifications which were affected in the 1963 layoff. We turn then to the specific, layoffs involved in this proceeding. a. Edna ElNora Greenhagen Greenhagen was initially employed by Respondent from October 1960, to Sep- tember 1962, when she left voluntarily for personal reasons. She returned to "On June 3, Jones telephoned Greenwall in Milwaukee, that the Ward Leonard circuits had not yet been shipped, and delivery of aluminum extrusions had been delayed by the strike at Harvey. During this conversation , it was decided on the layoffs, the selection of employees having been previously decided on in the event of this contingency. is It is a familiar principle of law that a written contract may under certain circum- stances be altered by an oral agreement, certainly when that oral agreement is executed. "It Is also competent for the parties to a contract to vary its terms by a subsequent course of dealing. A written contract may be modified by an oral agreement which has been accepted and acted upon by the parties in such a manner as would work a fraud on either party to refuse to enforce it." 17 Am. Jur. 2 S 466. "s Although the reasonableness of Respondent 's policy in utilizing classification, rather than company, seniority is not, of course, controlling, it is not inappropriate to 'note, in judging whether the Union had consented to the company practice, that Respondent main- tains that the nature of its operation requires that classification, rather than company or plantwide, seniority prevail. Otherwise, it might necessitate the layoff of all employees in a particular job classification , with the result that the overall operation could be brought to a halt. The modification of the applicable provision in the current contract is a mani- festation of the Union's recognition that the language of the previous contract was in- consistent with the actual practice. ELECTRO CONTROLS, INC. 325 Respondent's employ in March 1964, and worked until June 4, 1965, when she was laid off under circumstances giving rise to these proceedings 45 As will later appear, she was reinstated on June 21, and was still employed by Respondent as of the date of the hearing. Greenhagen was a member of the negotiating committee, acting as secretary and recording minutes of the bargaining, meetings . She attended all but one of these meetings, the one of June 18, following her layoff. At a union meeting on about June 2, attended by some 28 employees, the negotiating committee reported on management's offer, and canvassed the member- ship to determine whether it would support the committee . Greenhagen took the floor and, in a talk lasting , according to her, five minutes, exhorted the members to "stand together" and "fight" to "get more money," mentioning, in passing that she, too, "would like to have a new boat, even a car." The remark was prompted by the fact that it had been rumored at the plant that President Jones had pur- chased a boat costing $4,000-$50,000, according to some46 Greenhagen con- trasted this with the Company's rejection of a demand for a 12-percent raise. On about June 16 or 17, Plant Manager Greenwall phoned Business Agent Tea to inquire whether Greenhagen wished to return to work. Later, the same day, Tea relayed the message to Greenhagen. He told her that she would either hear from Greenwall or could get in tough with him herself. According to her, Tea advised her "not to go back with a chip on my shoulder and cause any more fuss." Next day, in a telephone conversation, Greenwall asked her whether she would like to return to work. When she said that she would, Greenwall said, according to her, that she could do so "on a couple of conditions." Asked what they were, he told her that the first, was that she call him on Friday (June 18) by 4 o'clock, to. ascertain whether the circuit boards had arrived because they might be in by then. She agreed to do so. As to the second condition, she testified, Greenwall began by asking her how she felt about Garside, "-what's going on?" Greenhagen replied, "I don't know very much about it, Bob. All I know is by hearsay that Mike was supposed [to] be taking too much time for the union." Then, according to Green- hagen, Greenwall said "something to the effect that I wouldn't come back and-I guess and start the same old trouble over- again or work the people up . He never stated exactly what he meant, just that-the way I took it was that he didn't want me to go . . . around telling everybody at the plant that Mike got a bad break and this and that, ... I never intended to do this." 47 Under cross-examination, she testified that when Greenwall asked her how she felt about the Garside situation, 46 The complaint alleges she was laid off on June 7 June 4, a Friday, would have been her last regular working day before her layoff. Greenhagen testified that she was absent due to illness on that day, and when she reported for work the following Monday, dis- covered that her timecard had been removed 4e According to Jones, the boat was actually an outboard speed boat costing $1,900, a fact which he had disclosed to an employee and a union member , who was interested in acquiring a similar boat through the Company's contacts It is evident that the purchase of the boat had been the subject of comment among the employees Jones testified, how- ever, that he did not learn of Greenhagen's reference to the boat at the union meeting until at least a week after the layoff. 4' The General Counsel relies on this conversation in support of the allegation in the complaint that Respondent "conditioned the recall of [Greenhagen ] on her promise to refrain from any activity that would cause the Respondent any trouble because of [Garside's] discharge . . " According to Greenwall, who corroborated her testimony about the offer of reinstatement , Greenhagen asked him , "what about Mike Garside?" He said he could not answer that. Whereupon, she said, "Well, gee, I don't want to get involved in any more of this. I want to stay clear of it, don 't want anything to do with it" Greenwall replied, "E1Nora , that's entirely up to you " Greenwall and Greenhagen dis- agreed in their testimony as to which of them first broached the subject of Garside. If, as Greenwall testified , she first brought up the subject, possibly in the hope of accomplish- ing his reinstatement , it seems doubtful that she would have dropped the subject so abruptly. On the other hand, it is not unreasonable to believe that she might have wearied of the contentiousness generated by the labor dispute, and , despite her concern over Garside, decided that her first duty was to herself. Be that as it may, the evidence, even based on Greenhagen's own version of the conversation , is too vague, indefinite, and un- certain, amounting to no more than her subjective impression of his remarks,-to con- stitute probative support for this allegation of the complaint. As has already been indicated elsewhere , it is , for the same reasons , insufficient to substantiate a finding of discriminatory motive with regard to Garside's discharge 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she told him that she did not know too much about Garside's side of the case, that all she knew was what she had heard about management's complaints about his leaving his work area, "so I would have no reason to give you any trouble on Mike Garside's case." Greenhagen called Greenwall Friday , as directed, and was told that the circuit boards had not yet arrived but that she could report for work the following Mon- day, June 21. She returned to work on that day. According to Greenhagen, on June 23 or 24, following her reinstatement, she went to Greenwall's office "to have a talk with him about [her] layoff." She told him that she wanted to be reclassified as an assembly worker. He said that it would be "a little senseless " to do so at that time 48 Greenhagen replied that she realized that, but wanted to be placed at "the bottom of the assembly line," adding, "I don't want to be recalled out of my department ." He told her that he could not reclassify her then but that as soon as the new contract was signed he would do so. She said that that was what she wanted. Greenhagen testified that she then volunteered, "I know perfectly well what hap- pened that Mr. Jones got mad at me because it came back from the union that I said something about the boat . . . He don't like me." Greenwall objected, "Don't talk like that ElNora." She concluded, "If you don't know, he don't. He fired me for just that reason." According to her, Greenwall made no denial or protest but "shrugged his shoulders and turned red in the face" and nodded affirmatively. Despite the fact that this testimony, elicited for the first time on rebuttal, was not subsequently denied, no weight can be attributed to her self-serving statement as to the reason for her termination, and, what Greenhagen sought to establish as, .a tacit admission by Greenwall. Apart from the fact that it has no probative value, the conduct which she ascribed to Greenwall in this conversation is wholly out of character on the basis of observation of his attitude and demeanor on the witness stand. Contentions and Conclusions When Greenhagen returned to work in March 1964, she was hired as an assembler, at the rate of $1.25, less than the rate she was receiving when she left in 1962. As assembler, her duties entailed "stacking" dimmers and studio lighting, and assembling equipment, as well as some silver plating. She continued in this job for 4 months under the supervision of Foreman Daniels receiving the production rate, though not the classification. At the end of the 4-month period, she was advanced to the classification of pro- duction worker, with a 25-cent-an-hour increase to $1.50. Her duties remained the same, only her classification being changed. In about March or April, as a result of bidding successfully on a vacancy, she was transferred at her own request from the assembly, to the SCR Department. Her classification as production worker remained the same. Her job involved wiring, soldering , etching, and silk screening printed circuits, and assembling modules to be installed in dimmer cabinets. As a result of the Company's practice of applying classification, rather than company seniority, Greenhagen's transfer from the assembly department to the SCR Department placed her next to last on the seniority list in the latter depart- ment. For reasons presently appearing , she was laid off instead of the employee with the lowest classification seniority in that department. It was, in effect, conceded by Jones that if Greenhagen had not previously requested , and been granted, a change in classification from that of assembler to that of production worker in the SCR Department, she would not have been laid off on June 7. The business necessity for the layoffs occasioned by the shortages of firing cir- cuits and aluminum extrusions has already been detailed and found. When Foreman Nelson notified Greenhagen of her layoff on June 7, he gave as the reason that "she was low in classification seniority." Under this basis for senior- ity, Greenhagen was the most junior employee in the production worker classifica- tion, with the exception of Florence Buckley, who had been hired on September 23, as an engraver. The engraver has been regarded by Respondent as indispensable, and has not been laid off, even during slack periods, but because of her special skills, is assigned to other duties until work in her own field becomes available. 48 Greenhagen offered no further explanation of this cryptic remark, ELECTRO CONTROLS, INC. 327 Admittedly, Greenhagen did not possess the requisite skills to perform this work 49 As to why, in contrast to other female employees, who were temporarily assigned to the mailroom or paint shop, Greenhagen was laid off, it is evident that they had more classification seniority than Greenhagen. In a conversation with Greenwall outside the plant on June 11, Greenhagen protested her layoff, and, complained because she had not been transferred back to the assembly department rather than been laid off. She testified that Greenwall said he had been out of town when the layoffs occurred, adding "let me see what I can do, and we'll take care of everything." 50 That he actually fulfilled his prom- ise is evident from the fact that he arranged for her reinstatement on June 21. Greenhagen's union activity and militancy as a member of the negotiating com- mittee (though perhaps no more so than Daniels), her exhortations to the employees to stand firm; her support of the strike, her outspoken resentment at the Com- pany's refusal to grant the employees a 12-percent wage increase (while its presi- dent indulged himself in the purchase of an expensive boat)-all these facts may be granted. They merely establish that Respondent may have had a motive for eliminating an active and militant union adherent, if it were bent on doing so. However, as has already been stated, there was no showing that Respondent was opposed to union representation of its employees; (on the contrary, the parties appear to have enjoyed a satisfactory and harmonious bargaining relationship for more than 10 years); had manifested union animus; had engaged in conduct calculated to undermine the Union; or had regarded the conduct of the union negotiators so oppressive, unreasonable, or arbitrary as to impede or prevent a mutually satisfactory agreement. As to the layoffs, Respondent presented a well-documented case, substantiated by the uncontradicted and credited testimony of its managing officials, for the necessity for layoffs due to the unavailability of essential materials of production. Equally convincing is the testimony relating to company policy in applying classi- fication, rather than company seniority (despite contrary language in the contract), with the acquiescence, if not express consent, of the Union. The events culminating in the offer of reinstatement to Greenhagen furnish further support for the conclusion that the reason for her layoff was actually busi- ness necessity. If Respondent had, in fact, been bent on eliminating what it regarded as an excessively zealous union advocate, it seems unreasonable to believe that it would have offered her reinstatement within 2 weeks of her layoff, especially since settlement of the contract dispute was not reached until some 10 days after her reinstatement. On the basis of the foregoing, and upon the entire record, a finding that Green- hagen was laid off because of her union activity, cannot be sustained. In reaching this conclusion, Greenhagen's testimony that several months earlier Foreman Daniels had questioned her about what went on at union meetings, and sought to create the impression that the union activities of the employees were being kept under surveillance, has not been overlooked. Nor, has her testimony, during her reinstatement interview, that there was some discussion regarding Garside's dis- charge, been disregarded. This evidence, even if true, is insufficient to overcome the more credible and persuasive evidence that Greenhagen's layoff was due to business necessity. It is, therefore, found that Greenhagen was not laid off on June 7, because of her union or concerted activities. It is further found that Respondent did not con- dition her reinstatement on June 21, on her promise to refrain from any activity as alleged in the complaint. '° Buckley was hired to fill a vacancy in the job of engraver, after the job was posted. None of the employees was qualified for the job, and no one bid on it. Buckley, incidentally, according to Respondent, had been hired from another engraving firm in the area. The job of engraver was classified as a production job because of the limited number of classifica- tions under the contract.' 60 If Greenwall actually sought to evade responsibility for her layoff on the ground that he had been out of town (he did not deny making the remark), it is probable that he did so only to placate her. It is obvious, of course, that he had previously discussed the layoffs with Jones by phone. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. Warren S. Hoskings Hoskings was hired on April 16, 1965, as a wireman, and worked in that job under Foreman James Miller until the date of his layoff on June 7. At the time of his layoff, he was still a probationary employee. The department in which he worked built the cabinets and panels in which the firing circuits were installed. On the Friday before his layoff, a regular payday, he had been absent due to ill- ness, and his wife picked up his paycheck. When he reported for work the following Monday, he discovered that his time- card had been removed. He started working, and then decided to seek out his supervisor. He encountered two men talking together, one of whom, Jess Elgan, a salesman or engineer, told him "both bosses" were out of town, that he had been instructed to give him his termination papers; and that there was nothing personal involved but that the Company was "low on work." Elgan also advised Hoskings to return in 2 months to see if work was available. Foreman Miller appeared later, and when he saw Hoskings in the cafeteria told him that there were no hard feelings. Hoskings asked him why Steve Kleinlein, who had been hired after Hoskings, was being retained. Hoskings admitted that Miller said that Hoskings had been "going good for a while but then slowed down." When Hoskings asked him to be more specific, Miller replied, according to Hoskings, that "maybe it was his [Miller's] fault for not being around to help [him] get started." Hoskings testified that he had never received any complaints from Miller about his work. Hoskings was not notified when work became avail- able, did not communicate with Respondent, and was never recalled. Hoskings was not a member of the Union at the time of his layoff, although he had attended union meetings, and, according to him, the Company had started making deductions for union dues from his wages. He admitted that Miller had told him previous to his layoff that work had been slacking off and that there would be another layoff in a couple of weeks. According to Plant Manager Greenwall, although he had notified his foremen several times during weekly meetings of a possible layoff due to the shortage of aluminum extrusions resulting from the strike at their supplier, and the delay in shipments of SCR firing circuits, this possibility was not communicated to employ- ees because, as a matter of company policy, it was considered unwise to alarm the employees. With regard to Hoskings, he testified that Foreman Miller had been critical of Hoskings' work, and he was terminated because of the shortage of firing circuits, as well as his probationary status. President Jones corroborated Greenwall, testifying that, although Hoskings was not the lowest wireman in seniority, he was terminated for the same reasons given by Greenwall. Foreman Miller testified that the quality of Hosking's work was "poor;" that he used power tools in "poor fashion;" and that he spoke to Hoskings about it twice, the first time, about a month before the layoff. On June 3, according to Miller, he recommended that Hoskings be dismissed. Although the wiring department does not work directly on SCR modules, they are components of the panels or boards and cabinets in which they are installed. Between the last week of May until at least June 4, the workload had declined some 25 to 35 percent, and Hoskings was the only wireman out of a complement of six or seven who was laid off. According to Jones, Hoskings had been working only on manual dimmers, of the "old fashioned" type, which did not require Ward Leonard firing circuits. Hoskings had not performed work on dimmers requiring modules, but, Jones testi- fied, a more competent wireman should be capable of performing work on both types. Hoskings, according to Jones, was capable of performing work on only one type. According to Foreman Miller, Steve Kleinlein, the wireman with less seniority than Hoskings, was a very satisfactory and efficient employee. Significantly, Ohlson, a wireman, and, incidentally, former union steward who was often asked by his foreman to give a new man a hand testified that he observed Hoskings' work, and that, in his opinion, although he was a capable worker, he did not appear to have "an interest in his work," although he doubted that the quality of his work was "reproachable." Ohlson testified that he had inquired once or twice of Foreman Miller how Hoskings was "working out" and whether he was progressing satis- factorily. Ohlson did not indicate Miller's response. According of Ohlson, Klein- lein, who was a relatively new employee in the wiring department, demonstrated an interest in his job and this was reflected in his work. ELECTRO CONTROLS, INC. 329 On the basis of this showing, the General Counsel contends that Hoskings was terminated because of his union or concerted activities. There is nothing in the record to justify a finding that Hoskings distinguished himself in any manner as a union adherent. On the contrary, the evidence estab- lishes that he had not actually become a member of the Union, and that his dues were checked off under the union security provisions of the contract. On the other hand, Respondent has advanced reasonable and plausible grounds for his layoff. The only possible basis for a claim of discrimination, urged by the General Coun- sel, is that Hoskings was laid off to lend credence to the layoff of Greenhagen and the other employees involved. No probative evidence was introduced to substantiate this contention. Contrasted with the layoff of Greenhagen, which has been found not to have been discriminatorily motivated, the evidence as to Hoskings does not approach a scintilla. It is found that Hoskings was terminated not because of his union membership or adherence, but for valid and legitimate reasons, and that the allegations of discrimination have not been sustained. c. Marlys Boldon Boldon was also hired on April 5, 1965, in the assembly department, where she worked under the supervision of Foreman Daniels until June 7, when she was laid off. Her job consisted of wiring lights and "plug-ins." As in the case of Hoskings, when she reported for work on Monday, June 7, her timecard had been removed. When she took this up with her foreman, he told her to repot t to the front office. She returned with an envelope containing her layoff notice According to her, she was not told the reason for her layoff, and her foreman acted surprised. However, he told her to keep in touch with the girls. She had never been warned, reprimanded, or criticized about her work. She had worked on aluminum extrusions which had been painted black, but did not work with firing circuits or on the firing boards. She had not been recalled. According to her, even if aluminum extrusions were not available, there was wiring for her to do. Although Boldon testified that she did not know and was not told the reason for her layoff and that she believed that there was work for her to do at the time, she admitted that her termination slip gave as the reason for her discharge reduc- tion in force. Respondent defends Boldon's layoff on the ground of necessity stemming from the shortage of materials, and her lack of seniority, since she was the last employee to be hired in her classification-assembly department. Although four employees were hired in August and September 1965, Boldon was not recalled, and there is no contention that her work was unsatisfactory or that she was an undesirable employee. Respondent's principals testified, however, that in the case of layoffs, the employees were told to keep in touch with the Company, and that, although, in some instances, as in the case of Greenhagen, where the employees possesses good skills and has otherwise performed satisfactorily, the Company may endeavor to recall the employee, there is no established policy. It is evident that, while Boldon was a satisfactory employee during the relatively short duration of her employment, her job in assembly was fairly routine, and neither the job nor her skills were exceptional. At any rate, Respondent did not recall her and she made no attempt to ascertain whether an opening was available for which she was qualified after the layoff. At the time of the hearing, she was employed at a local restaurant, and this may have accounted for her failure to contact her former employer. Like Hoskings, Boldon was not a union member at the time of her layoff, although she had attended union meetings, and half of her membership fee had been deducted from her wages as of the time she left. She was not an active par- ticipant in the union activities or contract negotiations, and, although she apparently supported the strike action, did not in any way distinguish herself in the union cause. As in the case of Hoskings, the General Counsel rationalizes his contention of discriminatory layoff on the basis that it was perpetrated to furnish greater credence to the alleged discriminatory layoff of Greenhagen. For reasons already stated, it is found that the evidence does not support this contention. It is found that the layoff of Boldon was motivated by economic conditions, and not reasons proscribed by the Act. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in con- nection with the operations of Respondent , described in section I, above, have a close, intimate, and substantial relation to trade , traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. -THE REMEDY It has been found that Respondent has engaged in certain unfair labor practices, within the meaning of Section 8(a)(1), specifically , interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act by interrogating employees concerning their union affairs and activities, and demanding or requiring that employees permit Respondent's management repre- sentatives to read copies of statements obtained from said employees by Board agents. It will, therefore, be recommended that Respondent be ordered to cease and desist therefrom,'and take certain affirmative action"designed to-,effectuate-the policies 'of the Act. It has also been found that Respondent has not discriminated in regard to the hire and tenure of employment of named employees to discourage membership in a labor organization. It will, therefore, be recommended that these allegations of the complaint be dismissed. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Electro Controls, Inc., a Utah corporation, Respondent herein, is, and at all times material has been, an employer within the meaning of Section 2(2), and is, and has been, engaged in commerce and a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Workers, Local No. 354, AFL-CIO, is, and at all times material herein has been, a labor organization within the mean- ing of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7, as found above, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 5. Respondent has not discriminated in regard to the hire and tenure of employ- ment of its employees to discourage membership in a labor organization, in viola- tion of Section 8(a)(3) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is hereby recommended that Electro Controls, Inc., its officers, agents, successors, and assigns, shall. 1. Cease and desist from: (a) Interrogating its employees concerning their union affairs and activities, or other concerted activities, in any manner proscribed by the Act. (b) Demanding or requiring that employees permit management representatives to read copies of statements obtained from said employees by Board agents. (c) In any like or similar manner, interfering with, restraining, or coercing ,employees in the right to 'self-organization, to form, join, or 'assist any -labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section '8(a)(3) of the Act. 2. Take the following affirmative action which, it is found, will effectuate the policies of the Act: ELECTRO CONTROLS, INC. 331 (a) Post at its plant and place of business in Salt Lake City, Utah, copies of the attached notice marked "Appendix A." 51 Copies of this notice, to be furnished by the Regional Director for Region 27, after being duly signed by Respondent or its duly authorized representative, shall be posted immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (b) Notify said Regional , Director,, in-writing, within 20 -days from the date of this Decision, what steps Respondent has taken to comply therewith 52 IT IS FURTHER RECOMMENDED that the allegations of the complaint that Respond- ent has discriminated in regard to the hire and tenure of named employees to dis- courage membership in a labor organization , or has engaged in other unfair labor practices not herein found , be dismissed. IT IS FURTHER RECOMMENDED that , unless on or before 20 days from the date of receipt of this Decision , Respondent notifies said Regional Director that it will comply with the foregoing recommendations , the Board issue an order requiring Respondent to, take the action ^,aforesaid. 51 In the event that this Recommended Order is 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 is 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." 52 In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read : "Notify the said Regional Director , in writing, within 10 days from the date of this Order , what steps Respondent has taken to comply herewith." APPENDIX A 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 Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate our employees concerning their union affairs or activities or other concerted activities ; demand or require that our employees permit our representatives to read copies of statements obtained from said employees by agents of the National Labor Relations Board. WE WILL NOT, in any like or similar manner, interfere with, restrain, or coerce our employees in-the right to self-organization , to ,form, join, or_ assist International Brotherhood of Electrical Workers,'-Local No. 354, AFL-CIO, or any other labor organization , to bargain-collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in it labor organization as a condition of employment in conformity with Section 8(a)(3) of the Act. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named or any other labor organization. ELECTRO CONTROLS, INC., 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. If employees have any question concerning this notice or complaince with its provisions, they may communicate directly with the Board's Regional Office, 609 Railway Exchange Building, 17th and Champa Streets, Denver, Colorado 80202, Telephone 683-5850.