Eldo-Craft Boat Co., Inc.

280 DECISIONS OF NATIONAL Eldo-Craft Boat Co., Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, Case 26-CA-2516 June 29,1967 DECISION AND ORDER BY MEMBERS BROWN , JENKINS, AND ZAGORIA On March 27, 1967, Trial Examiner Max Rosen- berg issued his Decision in the above-entitled proceeding, finding that the Respondent had not en- gaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General 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 Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following modifications. The Trial Examiner, inter alia, found that Respondent did not, as alleged in the complaint, violate Section 8(a)(1) by a statement made by Su- pervisor Swilley. The statement in issue was made after an employee, Sharp, had been asked by other employees whether their adherence to the Union would be helpful or harmful to them. Sharp ap- proached Swilley and put the question to him. At that time Swilley replied, "I don't know." About 45 minutes later, Swilley approached Sharp and re- marked, "I'll tell you one thing, Pat's [Pat Long, one of the owners] fixin' to make it rough on you all." The Trial Examiner grounded his recommen- dation of dismissal of this allegation, upon his find- ing that there is nothing in the record which as- sociates Pat Long with any such statement. We find merit in the General Counsel's exceptions concern- ing this recommendation of the Trial Examiner. The record clearly establishes that at the time Swilley made his remark he was Respondent's sole foreman and so regarded by Respondent's em- ployees. It is well settled that supervisors' state- ments of the nature of the one in question here which encompass a threat of reprisal if employees ' Aaron Brothers of California, 158 NLRB 1077; Hammond and Irv- ing, 154 NLRB 1071; Member Jenkins concurs in the dismissal of the LABOR RELATIONS BOARD persist in union activities are coercive and in viola- tion of Section 8(a)(1). Accordingly, contrary to the Trial Examiner, we find Respondent has thereby in- terfered with, restrained, and coerced his em- ployees in the exercise of their rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) thereof. While we have found Respondent to have vio- lated Section 8(a)(1), we do not consider this single act of misconduct sufficient to justify a further find- ing that Respondent's questioning the Union's majority was in bad faith and reflected a purpose to evade an obligation to bargain in violation of Sec tion 8(a)(5), and accordingly, adopt the Trial Ex- aminer's recommendation of dismissal here. I THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent occurring in connection with its operations have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing the free flow of commerce. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices we shall order it to cease and desist therefrom and take certain affirma- tive action to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent, by threatening employees with reprisals if they persisted in their union activi- ties, engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respond- ent, Eldo-Craft Boat Co., Inc., El Dorado, Arkan- sas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with economic reprisals because they engaged in protected Section 7 activities. 8(a)(5) allegation in the complaint herein on the basis of his concurring opinion in Aaron Brothers of California, supra. 166 NLRB No. 52 ELDO-CRAFT BOAT CO., INC. 281 (b) In any like or related manner interfering with, restraining, or coercing employees in the exer- cise of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its facilities in El Dorado, Arkansas, copies of the attached notice marked "Appendix."2 Copies of said notice, on forms provided by the Re- gional Director for Region 26, after being duly signed by the Respondent, shall- be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 26, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 2 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act by threatening them with economic reprisals because of their union support. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self- organization, to form, join, or assist Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of Amer- ica, AFL-CIO, or any other labor organiza- tion, to bargain collectively through represent- atives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such ac- tivities. ELDO-CRAFT BOAT Co., INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Employees may communicate. directly with the Board's Resident Office, 3507 Federal Bldg., 700 West Capitol Avenue, Little Rock, Arkansas 72201, Telephone Fr. 2-4361, if they have any question concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MAx ROSENBERG, Trial Examiner: With all parties represented, this case came on to be heard before me in El Dorado, Arkansas, on November 21 and 22, 1966, on complaint of the General Counsel of the National Labor Relations Board and answer of Eldo-Craft Boat Co., Inc., herein called the Respondent or the Company.' The is- sues raised by the pleadings are whether Respondent vio- lated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, by certain conduct to be detailed hereinafter. The parties waived oral argument at the conclusion of the hearing. Briefs have been received from the General Counsel and the Respondent which have been duly considered.2 Upon the entire, record in this proceeding and my ob- servation of the witnesses, including their demeanor while testifying on the stand, I hereby make the follow- ing: FINDINGS OF FACT AND CONCLUSIONS I. THE RESPONDENT'S BUSINESS Respondent, an Arkansas corporation, is engaged in the manufacture of aluminum boats at its plant in Smackover, Arkansas. During the annual period material to this proceeding, Respondent purchased and received at its Smackover operation directly from points located outside the State of Arkansas products and materials valued in excess of $50,000, and sold and delivered from its Smackover plant directly to points outside the State of Arkansas products valued in excess of $50,000. The complaint alleges, 'the answer admits, and I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile , Aerospace and Agricultural Implement Workers of America, AFL-CIO, herein called the Union, is a labor organiza- tion within the meaning of Section 2(5) of the Act. ' The complaint, which issued on September 30, 1966, is based upon charges and amended charges filed and served on August 15 and 17 and September 30, 1966, respectively. 2 The General Counsel's unopposed motion to correct the transcript in certain respects is hereby granted. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE , ALLEGED UNFAIR LABOR PRACTICES The General Counsel contends that Respondent vio- lated Section 8(a)(1) of the Act by engaging in the surveil- lance of its employees ' union activities and by threatening them with unspecified reprisals if they selected the Union as their collective-bargaining representative. He further alleges that Respondent violated Section 8(a)(3) by laying off 15 employees on August 5, 1966 , for having joined or assisted the Union .3 Finally, the pleadings charge that Respondent rejected the Union's demand for recognition and bargaining on August 16, 1966 , in violation of Sec- tion 8(a)(5), because it did not harbor a good-faith doubt of the Union's majority status in an appropriate unit of Respondent's employees at the time of the rejection.4 For its part, Respondent denies the commission of any unfair labor practices. The Respondent manufactures aluminum fishing boats at its plant in Smackover , Arkansas . The president of the Company is Charles Long, and his brother, Pat Long, is the secretary-treasurer. The parties stipulated that James Greer was a foreman during the times material herein and that his duties satisfied the statutory definition of a super- visor.5 The supervisor status of Calvin Swilley during the companion period is in dispute . Sometime in June 1966,6 employee Bruce Sharp and certain of his fellow employees discussed the prospect of collective represen- tation by a labor organization and Sharp undertook to im- plement this discussion by contacting a representative of the Union in Little Rock , Arkansas. This contact was made with Bernard Menge, who in turn requested that Union Representative Ed House look into the matter. House called on Sharp either on July 31 or August 1 and arranged for a union meeting to be held after work on Au- gust 3 at a ballpark in Smackover . Meanwhile , on August 1, Sharp and several employees met and discussed their working conditions . As a result of these deliberations, they decided to quit their employment unless they ob- tained a pay raise from Respondent and unless Respond- ent supplied additional help in cutting out parts for the boats.7 Sharp approached Calvin Swilley, who was con- cededly a supervisor within the meaning of the Act on this date," registered the employees' complaint, and requested that they be permitted to speak with Secretary- Treasurer Pat Long about the subject. Events abided until the end of the 2 p.m. break. At the conclusion of the rest period, the men refused to comply with Swilley's order to return to work, again requesting that they be al- lowed to present their grievances to Pat Long. Where- upon, Swilley telephoned President Charles Long and the employees were invited to the latter's office. After con- veying their complaints to Charles Long, and according to Sharp 's testimony , Long told the men that he could not foresee any prospect of wage increases in the near future because Respondent had not yet received the expected customer orders and because Respondent was then in its slack season.9 However, Long assured the employees that he hoped to increase production to 80 boats per day in 2 weeks if, as he anticipated , he received renewed customer contracts.10 Long also remarked that he would correct the employees' complaint concerning the cutting of parts when production was increased by the assign- ment of new employees to perform that function, thus freeing the complainants for more remunerative produc- tive work. The meeting then broke up. While at work on August 3, employee Sharp made the rounds of the men and informed them that a union meet- ing would be held at the local ballpark when the workday ended. Pursuant to this notice, approximately 30 em- ployees attended, in addition to Foremen Greer and Swil- ley. Union Representatives Menge and House spoke to the men and explained the extent of the Union 's repre- sentative endeavors in this industry . Concerning the presence of Greer and Swilley at the ballpark, Sharp testified that, midway during the meeting, Swilley posed a question to the representatives about the financial benefits which the Union could extract from the Com- pany and, for the first time, the representatives became aware that these foremen were present. According to Sharp, Swilley was notified of the meeting by employee Bob Sweet and Swilley remarked that he had come to the convocation "to find out how the Union worked." Swil- ley testified that his attendance was prompted solely by an invitation from employees and by his belief that, in- asmuch as he was hourly rated, he was eligible for mem- bership in that labor organization . Swilley further testified without contradiction that none of Respondent's officials knew that he had attended the meeting, and that he did not report his attendance or the events which transpired to them. Union Representative House testified that he learned of Swilley's identity as a foreman when the latter inquired whether the Union might garner higher wages for himself and the other employees. Following this inquiry, an employee in attendance remarked to Swilley, "Well, you shouldn't be worried because you're already a foreman and making more than anybody else." House averred that he told Swilley at this juncture that the Union could not represent him because of his supervisory status, and that Swilley should not have attended the meeting. According to House's testimony, Swilley then replied, "Well, I was told to come down here. They told me." [Emphasis supplied.] House then admitted that "I don't know who he [Swilley] was referring to as `they."' The General Counsel darkly hints that House's 3 In his complaint, the General Counsel asserted that James McAllister was an employee of Respondent who was also unlawfully laid off on this date, which would bring the number of alleged discnminatees to 16 ac- cording to his original calculations At the hearing , however, the General Counsel discovered that McAllister had never been employed by Respondent and, with the consent of all parties, moved to delete his name from the pleadings I granted the motion 4 The parties stipulated that all production and maintenance employees at the Respondent's plant, excluding clerical employees , guards, and all supervisors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act, and I so find. ' The complaint alleges that "At all times herein , James Greer occupied the position of foreman of Smackover Manufacturing Company, and has been, and is now . . a supervisor [of Respondent] within the meaning of Section 2( 11) of the Act " For the reasons set forth hereinafter, I find that Greer became a supervisor at Respondent's plant for the first time on Au- gust 8, 1966. 8 All dates herein fall in 1966, unless otherwise indicated 7 The employees were guaranteed an hourly wage rate . However, they received incentive pay on a piecework basis, depending upon the number of boats they constructed daily. Their assignment to the ancillary task of cutting parts for the crafts caused them to devote less time to production, with a consequent loss of piecework pay. 8 The General Counsel takes the position that Swilley was demoted by Respondent to a rank-and-file employee on or about August 10 9 Bruce Sharp testimonially acknowledged that all the employees knew that Respondent was experiencing a slack period at this time. 10 Jesse Hays , a witness called by the General Counsel, testified that the daily boat production at the time averaged between 60 and 75. ELDO-CRAFT BOAT CO., INC. 283 testimony in this regard not only suggests but indeed establishes that Swilley was dispatched to the meeting as an emissary of Respondent in order to spy upon the em- ployees' engagement in protected , concerted activities. In light of Sharp's testimony that Swilley was informed of the meeting by employee Sweet, and Swilley's uncon- tradicted testimony that he went to the ballpark solely on his own to join in common cause with other employees to ascertain whether the Union could enhance their collec- tive terms and conditions of employment with Respond- ent, coupled with the fact that there is no evidence in this record to establish that Respondent was in any way responsible for Swilley's presence at the meeting or in any manner learned from Swilley of the events which transpired , I find no merit in the General Counsel 's asser- tion that Swilley's reference to "they" is susceptible to the inevitable or even reasonable conclusion that he was dispatched to the ballpark at the behest of the Respond- ent. Nor am I persuaded that Swilley's appearance at the meeting , at a time when he occupied the status of a statutory supervisor, constituted, under the circum- stances of this case, the type of surveillance which is proscribed by Section 8(a)(1) of the Act. The presence of supervisors at union meetings is generally deemed by the Board to be illegal because it inhibits employees in the ex- ercise of their statutory right to join or assist labor or- ganizations of their choice. However, in the instant case, Foreman Swilley was not only invited to the union meet- ing by the employees themselves, but his presence could hardly have had an inhibitory effect upon their assisting or joining the Union in view of the testimony of Menge and House that they procured 10 signed cards at this union meeting, and obtained an additional 11 on various 'dates thereafter. Viewing this espisode against the backdrop of the record as a whole, I find and conclude that the General Counsel has failed to sustain his burden of showing that Respondent violated Section 8(a)(1) of the Act by Swilley's appearance at the union meeting on August 3. 11 Regarding the presence of Greer at the union meeting, the record is silent as to the reason for his being there. However, it is clear that, on the date of the meeting, Greer was not in Respondent's employ but was bound over as a foreman to the Smackover Manufacturing Com- pany which, although wholly owned by the family of Charles and Pat Long, is concededly a corporation separate and distinct from Respondent. On August 8, five days after the meeting, Greer succeeded to the superviso- ry position which Swilley held in the production depart- ment at Respondent's plant and Swilley was transferred to the Smackover Manufacturing Company parts depart- ment. The evidence discloses that Greer's services were enlisted from the Smackover operation because of Swil- ley's inability to supervise adequately the number of men under him in Respondent's production department. The General Counsel has seized upon Greer's succession to Swilley's job as indicative of Respondent's liability for Greer's attendance at the local ballpark on August 3. As in the case of Swilley, there is nothing in the evidence which remotely suggests'that Greer was present at the meeting at the instigation or direction of any official of Respondent, or that he reported on the meeting to any such official. Accordingly, I find and conclude that Respondent did not engage in an illegal act of surveillance by Greer's appearance at the union meeting. After their speeches to the assembled employees, and during the course of a question-and-answer period, the union representatives distributed union authorization cards to the men. On the reverse side appears the legend- "This card will be used to secure recognition and collective bargaining for the purpose of negotiating wages, hours, and working conditions ." Menge testified that he advised the employees in attendance that the signed authorization cards could be used in alternate ways in order to obtain exclusive recognition from the Respondent. According to Menge, he explained that, de- pending upon the attitude of the Company, he would first seek recognition on the basis of a card showing and that, if Respondent was unwilling to deal with the Union, he would then utilize the Board's processes and seek an elec- tion. Various employees, called to the stand by both the General Counsel and Respondent to testify concerning the use to which they were advised the signed cards would be put, gave their versions of Menge's instructions. Bruce Sharp , the most active union adherent , testified on behalf of the General Counsel that the employees were informed by Menge to sign the cards and return them if they were interested in the Union. He then conceded that the men were told that the Union "had to have a majority of them to have an election; that you sign the cards, get a majority of them and then we could have an election to see if the union come in." Sharp also stated that, during his solicitation of employees on behalf of the Union, he repeated the latter statement to more than half of them.12 Jimmy Brian, another General Counsel witness, related that he was told that the purpose for signing a card was to "get the majority and get the Union in ," and no mention was made of an election. Edwin Keeling reported that Menge and House advised the employees to read the card before they executed it, an advice which he followed. However, Keeling could not recall any further statements made by the union representatives in this regard. Wesley Harper recounted that he signed his card, after reading it, and that the sole stated purpose for his doing so was "to see how many people was for a union at the company, and I thought that they was also to see if they would get enough, if they would bring a vote to see exactly how many people wanted to be union ." Jesse Hays testified that, when he was proffered a card by Bruce Sharp for signature, Sharp simply said, "Here is a card you need to sign to go union," and Hays signed it. On Respondent's side, James McAllister testified that he was solicited to sign a card by Sharp and that the latter told McAllister that the purpose for this act was "to have a vote on the union coming into" the plant. Charles Scoggins and Jimmy Dennis similarly testified that they returned their signed authorization cards to the Union on the sole representation that the cards would be utilized to obtain a Board election. While not critical to my resolution of the issue of whether Respondent unlawfully refused to bar- gain with the Union on the salient date, I am persuaded and find that at least some of the employees, i.e., James McAllister, Scoggins , Dennis, and Harper, were in- formed by the union solicitors that their signatures on the 11 In this connection, I would note that the General Counsel, while proclaiming that Swilley was a secret agent of Respondent on August 3, nevertheless relies upon Swilley's signed authorization card, procured on' August 12, after his alleged demotion to a rank-and-file employee on Au- gust 8, to support the Union's majority representational claim 12 Sharp obtained signed authorization cards from 12 employees. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authorization cards were being procured solely to obtain a Board election to determine the Union's majority representative status. On the day following the Union's organizational meet- ing, namely, on August 4, Sharp testified that he engaged Foreman Swilley in a conversation at the plant concern- ing the Union. It is Sharp's testimony that he had been asked by some employees whether their adherence to the Union would be helpful or harmful to them. Sharp ap- proached Swilley and put the question to the latter. Ac- cording to Sharp, Swilley grinned and stated, "I don't know." About 45 minutes later, Swilley came to Sharp's worktable and remarked, "I'll tell you one thing, Pat's [Pat Long] fixin' to make it rough on you all. -13 When pressed about this remark by Swilley, Sharp conceded that Swilley did not say that Pat Long had so informed him, and there is nothing in this record which associates Pat Long with any such statement. I therefore find that Swilley's comment to Sharp was a voluntary opinion ex- pressed by the former in response to a question posed by Sharp as to whether unionization of the plant would be tolerated by Respondent. The General Counsel relies upon Swilley's utterance in this regard to support his con- tention that Respondent violated Section 8(a)(1) of the Act by threatening its employees with unspecified reprisals if they joined the Union. In light of the unique role which Swilley occupied in this litigation, i.e., having attended the union meeting at the behest of the employees to inquire into the benefits which could collectively be forthcoming and to determine his eligibility for member- ship in that labor organization, and having joined the Union approximately a week after his remark to Sharp when, as the General Counsel insists, he was a statutory employee, I am not convinced that Swilley's observation, even if it be construed as a threat of reprisal, should be at- tributed to and binding upon Respondent. I therefore find and conclude that Respondent did not violate Section 8(a)(1) by Swilley's statement to Sharp on August 4. At the rest break on the afternoon of August 5, the em- ployees had fulfilled their production quota of boats. Sharp testified that the men then asked Swilley whether they could go home at this point in the day, because it was Respondent's practice to release the men before quitting time if their production quota had been reached. Swilley conveyed this request to Pal Long and, while he was doing so, Sharp noticed that Long handed some papers to Swilley. These documents, which Swilley posted on the bulletin board, announced that a layoff would take place on that date and that all employees who had been hired after October 1, 1965, would be separated from Respond- ent's employ because of lack of production orders. It is undisputed that the employees who were selected for ter- 13 Edwin Keeling testified that he heard Swilley make a similar remark. 14 Sharp testified that between two and four employees who were ter- minated had not signed union cards If I correctly understand the layoff notice, which is G.C. Exh. 16, 22 employees were laid off on August 5, a figure which includes the 15 alleged discriminatees. This would seem to establish that seven nonunion adherents were caught in the reduction in force. is Bruce Sharp corroborated Long's testimony in this regard when he testified that a layoff occurred in the summer of 1965 Swilley testified that, to his knowledge, the largest number of employees who had been laid off prior to 1966 was five, and these were students. In light of Charles Long's testimony, based upon the Company's payroll records, which stands unchallenged by the General Counsel's cross-examination, I find that Swilley was mistaken in his numerical estimate. is On direct examination, Swilley testified that, about 2 weeks prior to August 5, Pat Long asked Swilley to inform the employees that it might be mination were listed in order of their seniority, and I so find. It is also uncontroverted that several employees who were destined for separation had never joined or sup- ported the Union.14 Finally, it is undenied that the em- ployees had not been forewarned, prior to August 5, that a layoff would occur on this exact date. The General Counsel contends that the Respondent was discriminatorily motivated in separating the 15 al- leged discriminatees. In support of this contention, he re- lies on the circumstances that the layoff fell hard on the heels of the Union's organizational meeting on August 3; on the circumstance that Respondent had not given any prior notice to the employees that a layoff was about to occur on August 5; and, finally, that this was the first oc- casion on which Respondent placed a layoff notice on its bulletin board to announce a reduction in force. The General Counsel urges that this combination of circum- stances leads to the unalterable conclusion that Respond- ent selected the 15 individuals named in the complaint because it was bent on ridding itself of the union ad- herents. I find that the recorded facts are not prepon- derantly supportive of this contention. Charles Long, the Company's president, testified without contradiction that the plant subsists primarily on orders which are received from Montgomery Ward, a na- tional retail chain, and that his business is seasonal in na- ture. It is Long's undisputed testimony that the seasonal slump occurs annually after the first of July and continues into August. With the exception of the year 1964, when the Company was awarded its first contract by Mont- gomery Ward, a layoff had occurred during the summer months in each year since the Respondent was organized in 1960. Thus, Respondent's payroll records show that, during the seasonal slump in the summer of 1965, 14 em- ployees were laid off due to lack of work." Long's testimony is uncontroverted that the slack period in 1966 commenced around the middle or end of July because the orders for boats had been fulfilled and the Company had not received definite word from Montgomery Ward con- cerning the receipt of a new contract. Because of lack of sales, as well as the fact that Respondent was in the process of installing new dies with which to cut out boat parts more feasibly and economically, it was decided to lay off all those employees who were not needed to pour concrete and move machinery to the new parts produc- tion facility in line with Respondent's established system of seniority. According to Charles Long, he and his brother, Pat, discussed the prospect of a layoff about 2 or 3 weeks prior to August 5, and Pat instructed Swilley to inform the men who were junior from the standpoint of seniority that they should search for other work in order to cushion their prospective unemployment. 16 On August to their advantage to search for other employment because operations would be curtailed, although Swilley was not told the date on which the layoff would take place. Swilley testified that he brought this suggestion to the attention of some of the newer employees because he knew that they would be caught in any reduction in force On cross-examination by the General Counsel, Swilley was shown an affidavit which he had given to a Board agent in which he stated that "I had absolutely no knowledge, indi- cation or idea that a layoff was coming prior to seeing the layoff notice. It had not been mentioned to me by anyone " At first glance, Swilley's state- ment appears contrary to his spoken testimony However, employee James Primm, a witness called on behalf of the General Counsel, testified that, prior to the layoff, Swilley informed him that "If you have any chance to go to work elsewhere, you'd better take it." In light of Primm's testimony, a fair appraisal of Swilley's statement which was given to the Board persuades me that Swllley had reference to the date of layoff rather than thefact of a reduction in force, and I so find. ELDO-CRAFT BOAT CO., INC. 285 5, a layoff notice was posted on the company bulletin board indicating that all those employees who were hired after October 1, 1965, would be terminated based solely upon their seniority."' Charles Long further testified without contradiction that late in August, he received word from the home office of Montgomery Ward that the latter would formally award another contract to Respond- ent in the near future, in consequence of which Long mailed to each employee in layoff status a letter dated September 2 advising him to report for work on Sep- tember 6. According to Long, the formal contract from Ward was received around October 10. While Long ad- mitted that he did not advise the employees prior to Au- gust 5 that a layoff would occur on the latter date, there is nothing in this record to indicate that such was his prac- tice in effecting layoffs in prior years. To be sure, an employer may not discharge or lay off employees in order to discourage their membership in or adherence to a labor organization, and when an employer takes such action he runs afoul of the provisions of Sec- tion 8(a)(3) of the Act. But proof that a discriminatory motive impelled the terminations must be clear and con- vincing. Evidence that an employer effected a reduction in force just 2 days after his employees attended a union meeting and signed authorization cards, and that the reduction occurred without affording prior notice thereof to the individuals involved, may be probative and even dispositive of the issue of discrimination, absent counter- vailing evidence. In my opinion, however, Respondent has adequately advanced such countervailing evidence in this proceeding. I have found that, ever since the cor- porate inception of Respondent in 1960 with but one ex- ception, Respondent annually experienced a slack season during the months of July and August which necessitated a reduction in force. Based upon uncontroverted evidence, I have also found that, in the summer of 1965, Respondent severed approximately 14 employees from its payroll because it had fulfilled its contract with Mont- gomery Ward and other customers and there was no productive need for their services. In the middle or at the end of July 1966, a similar situation prevailed and Respondent at that time decided to cut back its work force. I find that, in addition to the fulfillment of its or- ders, Respondent also embarked upon the task of relocat- ing its parts equipment and chose to retain only those senior employees who were needed to facilitate the move. Approximately 2 weeks prior to the layoff on August 5, and before the Union entered the picture, I find that Charles and Pat Long had finally decided upon a layoff and conveyed this information to Swilley with the instruc- tion that the latter advise the employees to seek other em- ployment to cushion their loss of work. Based, upon the credited testimony of Charles Long and Swilley, as cor- roborated by Primm, I find that Swilley imparted this ad- vice to the newer employees at the plant prior to the layoff. Respondent thereupon drafted a list of those em- ployees to be laid off based solely on considerations of seniority and, of the 22 men who were selected for severance, 7 had not joined or supported the Union. When Montgomery Ward renewed its purchase contract with Respondent at the end of August, which was formal- ized by a written document some weeks later, Respond- ent recalled the employees in layoff status on September 2. In light of the demonstrated economic justification for a layoff in August 1966, the established pattern of similar layoffs during this month in prior years, the selection of employees for severance on the basis of seniority, and the absence of independent evidence of overt animosity by Respondent toward unionization,"' I am convinced and find that Respondent laid off the 15 employees whose names are set forth in the complaint, not because they joined the Union, but because their services became un- necessary on August 5 due to a recession in business. Ac- cordingly, I find and conclude that the General Counsel has failed to sustain the burden of showing, by prepon- derant proof, that Respondent violated Section 8(a)(3) when it separated the 15 individuals from its employ on that date On August 8, Foreman Greer was transferred from the Smackover Manufacturing Company to replace Swilley as the foreman of Respondent's production department, and Swilley was relegated to the parts department of Smackover.19 On August 9, the Union, believing that it possessed a majority of signed authorization cards in the appropriate unit, dispatched a letter to the Respondent demanding exclusive recognition and bargaining concern- ing wages, hours, and other terms and conditions of em- ployment. This letter was received by the Company on August 15. On August 16, the Company responded that it did not recognize the Union as the bargaining agent of its employees. In his complaint, the General Counsel al- leged that, at all times since August 4, the Union represented a majority of Respondent's employees in an appropriate unit; that, on August 9, the Union made a valid demand for recognition; and, that on August 16, Respondent, without harboring a good-faith doubt as to 17 Charles Long credibly testified that, due to an increase in business over the years as a result of the Ward contracts, he increased his work complement annually to handle the added volume of orders. Con- sequently, during the slack period in 1966, it was necessary to separate a greater number of employees 18 I have heretofore found that Respondent did not violate Section 8(a)(1) by engaging in acts of surveillance of its employees' union activi- ties, or by threatening them with reprisals for joining or assisting the Union. In an apparent attempt to shore up his contention that Respondent was illegally motivated when it accomplished its reduction in force in 1966, the General Counsel relies upon an episode which Bruce Sharp testimonially related. According to Sharp, he visited the plant about 2 weeks after the layoff to speak to some of his friends who were still employed by Respond- ent. While he was conversing with them, Charles Long approached, placed his hand on Sharp's shoulder, and maneuvered the latter toward the door, stating that Sharp should leave the employees to their work When Sharp questioned Long about this action, Long is reported to have remarked, "I don't want you interfering with these boys at work. I want you to go on and leave them alone." Although Sharp testified that Respond- ent had permitted visitors in the plant in the past, there is nothing in the record to indicate whether such visitations took place during working hours or whether the need for complete devotion to duty by employees on those occasions paralleled the situation on this occasion in August 1966. This is indeed a slender reed for the General Counsel to seek to grasp, and I attach no probative significance to this episode in establishing that the Respondent separated the 15 employees for discriminatory reasons. 11 Considerable evidence was presented by the parties to define Swil- ley's status after August 8, with Respondent contending that Swilley remained a foreman after that date and the General Counsel urging that he became a rank-and-file employee thereafter. I find it unnecessary to resolve this issue for, even assuming that Swilley became an employee after August 8 whose authorization card, which he signed at a union meet- ing on August 12, should be counted to determine the Union's majority, I have hereinafter found that the Respondent did not unlawfully refuse to bargain with the Union although the latter might have come into posses- sion of a majority card showing the salient date. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union's majority representative status, unlawfully refused to recognize the Union. At the hearing, and again in his brief, the General Counsel contended that, on August 5, there were 31 em- ployees in the appropriate unit and, of these, the Union possessed 16 valid authorization cards. He further con- tended that, on August 15, the date of Respondent's receipt of the Union's demand for recognition, the unit consisted of 29 employees, of whom 19 had executed valid cards. He therefore argues that, on August 16, the date on which Respondent rejected the Union's recogni- tory demand, the latter was in possession of a clear majority. On the other hand, Respondent asserts that, on August 15, only 16 employees were in the appropriate unit and that the Union had only 5 signed cards to support its majority demand in this unit. In arriving at these figures, the Respondent takes the position that the 15 al- leged discriminatees should not be included in the unit, and their cards should not be counted, because they had been permanently laid off on August 5. Respondent also contends that, even if the Union possessed 19 out of 29 cards on the critical demand date, 11 of those cards should not be considered because they had been obtained by Bruce Sharp under the misrepresentation that they would be utilized solely for the purpose of obtaining a Board election to determine whether the employees desired to be represented by the Union. I deemed it un- necessary to resolve the issues raised by these conflicting contentions for, in my opinion, the General Counsel has failed to establish, assuming arguendo, that the Union did represent a majority of the employees on August 16, that Respondent rejected the Union's demand on that date without entertaining a good-faith doubt as the latter's majority. In John P. Serpa, Inc.,20 the Board expressed the cau- tion that "Where the General Counsel seeks to establish a violation of Section 8(a)(5) on the basis of a card show- ing, he has the burden of proving not only that a majority of employees in the appropriate unit signed cards designating the union as bargaining representative, but also that the employer in bad faith declined to recognize and bargain with the union. This is usually based on evidence indicating that respondent has completely re- 20 155 NLRB 99, 100 21 158 NLRB 1077, 1079 22 Even were I to find that the presence of Foremen Swilley and Greer at the Union's meeting on August 3 constituted unlawful surveillance within the purview of Section 8(a)(1), and/oi that Swilley's statement to Sharp on August 4 that Secretary -Treasurer Pat Long was "fixin'to make it rough on you all" if the employees went Union was similarly unlawful, I would nevertheless adhere to my conclusion that the General Counsel jected the collective-bargaining principle or seeks merely to gain time within which to undermine the union and dis- sipate its majority." In Aaron Brothers Company of California,21 the Board expanded on this caution by ex- plaining that "Whether an employer is acting in good or bad faith in questioning the union's majority is a deter- mination which of necessity must be made in-the light of all the relevant facts of the case, including any unlawful conduct of the employer, the sequence of events, and the time lapse between the refusal and the unlawful conduct." The Board also said at p. 1078 that "Absent an affirma- tive showing of bad faith, an employer, presented with a majority card showing and a bargaining request, will not be held to have violated his bargaining obligation under the law simply because he refuses to rely upon cards, rather than an election, as the method for determining the union's majority." I have heretofore found that the Respondent had not engaged in any misconduct contemporaneous with the Union's organizational campaign or with its demand for recognition, and the General Counsel has not evidentially pointed to any statutory transgressions in which the Respondent indulged after its rejection of the Union's de- mand. In my opinion the facts in this proceeding fall squarely within the mold of Serpa and Aaron and justify the same legal conclusion as that reached in those cases. Accordingly, I find that the General Counsel has failed to come forward with evidence which affirmatively establishes the existence of bad faith by Respondent's refusal to bargain with the Union on August 16, and I find and conclude that Respondent's denial of recognition to the Union did not offend the provisions of Section 8(a)(5) of the Act.22 I shall therefore dismiss the complaint in its entirety. RECOMMENDED ORDER Upon the basis of the findings heretofore made and the conclusions heretofore drawn, and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby recommended that the com- plaint herein be, and it hereby is, dismissed in its entirety. uas faded to spell out a bad-faith refusal to bargain on Respondent's part As the Board noted in Hercules Packing Corporation, 163 NLRB 264, and reiterated in Aaron, "not every act of misconduct necessarily vitiates a respondent's good faith in questioning a union's majority and requesting a Board election." In my view, these acts, occurring under the peculiar circumstances chronicled hereinabove, are not of such a nature or gravity to reflect a purpose to evade an obligation to bargain.