Gabel Tank Co.

902 DECISIONS OF NATIONAL Herman Gabel, d/b/a Gabel Tank Company and Local 496, Sheet Metal Workers International Union, AFL-CIO. Case 18-CA-2299 July 28, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA On April 5, 1967, Trial Examiner Leo F. Lightner issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that it was unneces- sary to resolve other unfair labor practices alleged in the complaint since they were, at most, cumula- tive to other violations of the Act. Thereafter, the Respondent filed exceptions to the Trial Ex- aminer'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, as modified below. i AMENDED CONCLUSIONS OF LAW Delete the Trial Examiner's Conclusions of Law 5, 6, and 7, the present Conclusion of Law 8 being renumbered as 5. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, Herman Gabel, d/b/a Gabel Tank Company, Sioux Falls, South Dakota, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Delete from the Trial Examiner's Recom- mended Order paragraph I (a), and reletter the remaining paragraphs thereof. 2. Delete paragraph 2(b) from the Trial Ex- aminer's Recommended Order and substiti,ite the following therefor: LABOR RELATIONS BOARD "(b) Restore to all of its employees the paid cof- feebreaks withdrawn from them on October 21, 1966." 3. De!ete from the Appendix of the Trial Ex- aminer's Decision the first indented paragraph. 4. Add the following as the last indented para- graph of the Appendix of the Trial Examiner's Decision: WE WILL restore to all of our employees the paid coffeebreaks withdrawn from them on Oc- tober 21, 1966. IT IS FURTHER ORDERED that those portions of the amended complaint as to which no violations have been found are hereby dismissed. I In view of the General Counsel's assurances at the heanng that he was not seeking a "bargaining order," and because the acts of Respondent prior to the certification which are alleged to be violative of Section 8(a)(5) are herein found violative of other provisions of the Act, and are, in our opinion, adequately remedied in our Order, we deem it unnecessary to pass on the Trial Examiner's finding that Respondent also violated Sec- tion 8(a)(5) by such conduct Accordingly, we are dismissing the 8(a)(5) allegations of the amended complaint TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LEO F. LIGHTNER, Trial Examiner. This proceeding was heard in Sioux Falls, South Dakota, on December 15, 1966, and January 5, 1967, on the complaint of General Counsel, as amended, and the answer, as amended, of Herman Gabel, d/b/a Gabel Tank Com- pany,' herein called the Respondent.2 The amended com- plaint alleges violations of Sections 8(a)(5), (3), and (1) and 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, 61 Stat. 136, herein called the Act The parties waived oral argument and briefs filed by the General Counsel and Respondent have been carefully considered. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is an individual proprietorship with its principal place of business at Sioux Falls, South Dakota, where he is engaged in the manufacture and sale of fabricated steel tanks. During the 12-month period ending August 31 1966, a representative period, Respondent sold and shipped, to points outside the State of South Dakota, products valued in excess of $50,000. The com- plaint alleges, the answer admits, and I find Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act Amended at opening of hearing, to correctly reflect identity of Respondent 2 The charge herein was filed on September 23, 1966, and amended on December 19, 1966 A complaint was issued on November I, 1966, amended, at the opening of the hearing herein, and an amended complaint was issued on December 20, 1966 166 NLRB No. 108 GAB EL TANK CO. 903 II. THE LABOR ORGANIZATION INVOLVED Local 496, Sheet Metal Workers International Union, AFL-CIO, herein referred to as the Union , is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES THE ISSUES The principal issues raised by the pleadings and litigated at the hearing are: (1) whether the Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1), by (a) the removal of a telephone and a wall clock from the plant area on Sep- tember 13, 1966, or (b) threats of discharge and reduc- tion in work hours by Herman Gabel on or about October 12, 1966, or (c) efforts by Herman Gabel to coerce in- dividual employees, relative to the union election, on or about November 1, 1966, or (d) threats of layoff, uttered by Herman Gabel, on or about November 9, 1966; or (2) whether Respondent was discriminatorily motivated and thus engaged in conduct violative of the provisions of Section 8(a)(3) by (a) discharging John T. Fluit and James J. Smythe on September 20, 1966, or (b) reducing the hours of work of employees Magnus C. Homes, Lancelot Lunde, Floyd Matthies, and Ronald Poppenga on Oc- tober 14, 1966, and on October 21, 1966, or (c) the elimination of coffeebreaks for its employees on October 21, 1966, or (d) the layoff of Hoines, Lunde, and Matthies on November 10, 1966, or (e) the layoff of Ronald Poppenga on November 17, 1966; or (3) whether on and after September 9, 1966, Respondent instituted unilateral changes in working conditions, without notice to or bargaining with the Union, and whether such con- duct was violative of the provisions of Section 8(a)(5) of the Act in the following respects, by (a) the discharge of Fluit and Smythe on September 20, 1966, or (b) the removal of the wall clock and telephone on September 13, 1966, or (c) the reduction of work hours of unit em- ployees on October 14 and 21, 1966, or (d) the elimina- tion of two coffeebreaks on October 21, 1966, or (e) the layoff of employees on November 10 and 17, 1966. Respondent, by answer, denies commission of any unfair labor practices, acknowledges the discharges, but asserts they were for good cause. While the occurrence of the events, complained of as constituting violations of Sec- tion 8(a)(3) and (5) are not disputed, Respondent urges that its conduct was not violative of the Act. tember 7, 1966, when the assistance of the Union was ini- tially sought, and November 22, 1966, when the Union was certified as the result of a Board election. Herman Gabel commenced operations as Gabel Tank Company on an unspecified date in 1951. At all times pertinent herein his three sons, Richard, as office manager, Dale, as general plant supervisor, and Wayne, as leadman in the general shop area, have been associated with him. At lunchtime, on September 7, 1966, John T. Fluit, al- leged discriminatee herein, went to the union office, con- ferred with John McMahon, business representative for Local 496, and was advised how to proceed in an effort to organize Respondent's employees. The same after- noon, with the assistance of James J. Smythe and Lance Lunde, fellow employees, Fluit obtained the names and addresses of the Respondent's production and main- tenance employees. The following day, September 8, a meeting of these employees was held at the union hall, at 6 p.m., at which nine employees were present, and at which all of those present signed union authorization cards. 4 On Friday, September 9, 1966, McMahon mailed a petition for election, which was received and filed at the Regional Office on September 12, and docketed as Case 18-RC-6925. On the same date, McMahon, by letter, ad- vised Respondent that it represented a majority of the employees and requested bargaining, as more fully set forth infra. This communication was received by Richard Gabel on Monday, September 12. Subsequently, without communication with the Union relative thereto: on September 20, 1966, Respondent discharged Fluit and Smythe, under circumstances con- sidered infra, on October 14, and again on October 21, 1966, Respondent reduced the work hours of Hoines, Lunde, Floyd Matthies, and Poppenga; on October 21 Respondent eliminated the coffeebreaks previously al- lowed its employees; on November 10 Respondent laid off Hoines, Lunde, and Floyd Matthies; and on November 17 he laid off Poppenga; under circumstances considered infra. A hearing, on the petition for election, was held on Oc- tober 5, 1966, and pursuant to a Direction of Election, is- sued by the Regional Director, on October 12, an elec- tion was held, on November 9, 1966. Thereafter, the Union was certified as the exclusive bargaining repre- sentative of the employees in the unit involved, on November 22, 1966. B. Interference , Restraint, and Coercion Supervisory Personnel and Agents It is undisputed that Herman Gabel, owner, Dale Gabel, plant superintendent, and Richard Gabel,3 office manager, are supervisors within the meaning of Section 2(11) of the Act, and, the latter two are agents of the Respondent. A. Background and Sequence of Events There is no dispute as to the sequence of events herein set forth. The principal events occurred between Sep- 3 Referred to in the record as Dick. 4 Identified as James J. Smythe, John T. Fluit, Lancelot (Lance) D. Lunde, Magnus C. Hoines, Floyd A. Matthies, Ronald Poppenga, Ken- neth H. Thorson, Roger A. Vant Hul, and James Edwards Croisant. The It is alleged that Herman Gabel: (a) On or about Oc- tober 12, 1966, threatened an employee with discharge and reduction in work hours if the Union won the election or was voted in; (b) on or about November 1, 1966, called employees into his office, individually, to coerce them not to vote for the Union, at the time of the election; and (c) on or about November 9, 1966, threatened an em- ployee with a layoff if he continued to support the Union. The evidence relative to these events is next set forth. Lunde, a welder who also did some testing, was em- ployed from March 1, 1964, until his layoff on November tenth full-time employee, that particular week, according to Respondent's employment records was Wayne Gabel , son of the owner. In addition, A J. Mattlues appears as a part-time employee, having worked 15 hours. 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 10, 1966, the day after the election. Lunde worked primarily in the backroom with Poppenga, and others, until an unspecified date in early September 1966, when he was moved to the eastroom, where Smythe was lead- man. Lunde credibly related that, about 2 or 3 weeks prior to the election, which was held November 9, Richard Gabel took him to the office where a conversa- tion with Herman Gabel ensued. Herman Gabel advised him, "If you want more money, why don't you go some place else and work, why don't you go out to Hausen- steins, they've got a union out there " Lunde inquired if Herman Gabel wanted him to quit. Herman Gabel responded, "No, that isn't what I mean " Herman Gabel then advised Lunde that the Gabel Tank Company was too small a company to have a union , that he felt the union wages were too high for him to afford, that they were not making enough money on the tanks to be able to afford union wages.5 Floyd Matthies, a nephew of Herman Gabel, by affini- ty, was employed by Respondent from mid-August 1964 until his layoff on November 10, 1966, initially as a painter and later as a welder and tester Matthies credibly related that he had a conversation with Herman Gabel, approximately 2 weeks prior to his November 10 layoff. He was uncertain if Richard Gabel was present. Matthies asserted that Herman Gabel advised him that Herman Gabel did not want a union in the plant, that the plant was not big enough for a union , and that if he did not have enough work Matthies would be out in the snowbank, also. In contrast, Lunde related a conversation, in the summer of 1965, at which time Richard Gabel advised Poppenga and Lunde that Respondent intended to try to keep the same number of men working the same hours, including overtime, so that they would have steady work. Magnus C. Homes credibly related that he was advised by one of the Gabels to go to the office of Herman Gabel, on approximately November 5, and at that time Richard Gabel was also present. Herman Gabel advised Hoines that he understood the employees wanted a union and inquired as to what Hoines "thought" about it. Homes responded that he thought it was a good deal. Hoines re- lated that he thought it was Richard Gabel who asserted that the plant was too small for a union Herman Gabel then advised Hoines that Herman Gabel did not have to sign a contract, and that he could require the employees to stand up for their coffeebreaks, that, if someone called up and requested a reference for an employee, Herman Gabel could advise the caller that the employees were "rabble rousers and troublemakers." Hoines credibly re- lated that subsequently, the same day, Herman Gabel came to his work station and advised him, "You stick with us and I will make it worth your while " Poppenga credibly related that, about 2 weeks before the election, he was advised by either Richard Gabel or Dale Gabel that Herman Gabel wished to see him. Richard Gabel was present during his subsequent conver- sation with Herman Gabel. At that time Herman Gabel advised Poppenga that they felt the Company was not big enough to have a union, that he did not have to sign a con- tract, that he would see the employees out in the snow- bank before he would sign one, and that if an employer called for a reference he could refer to the employees either with a good reference or say they were rabble rousers. Herman Gabel also advised Poppenga that if the Union was successful Respondent would stop making the smaller tanks, because he was not making enough money on them. Herman Gabel also asserted that the Union was making promises to the employees, of benefits, which the employees would never obtain. Poppenga asserted that he had a further conversation with Herman Gabel on the morning of the election, November 9. At that time, Her- man Gabel asked Poppenga if he had changed his mind about the Union. Poppenga responded that he had not. Herman Gabel then advised Poppenga there was a circle cutter which was broken, which they could send away for a month. Herman Gabel advised Poppenga that, as a result, he could either put Poppenga to work or lay him off, "it is up to you." Poppenga responded, "You will have to lay me off." Poppenga asserted that the circle cutter had been broken for 2 or 3 months, previous to this conversation. Herman Gabel did not appear as a witness, and no ex- planation was offered for his failure to appear. Richard Gabel, who did appear as a witness, did not dispute the recitations of General Counsel's witnesses, relative to the statements of Herman Gabel at the meetings during which he was present. It is alleged that the removal of a wall clock, from the eastroom, and the removal of a telephone booth, in the plant area, constituted interference, restraint, and coer- cion. It is undisputed that these removals occurred on ap- proximately September 13, 1966. This was the day after Richard Gabel received the letter from the Union, requesting recognition. The evidence relative to these items is next set forth. Smythe described an electric kitchen clock, which was located in the eastroom, where Smythe, Fluit, and Lunde had their work stations. The clock was described as 5 or 6 inches square, having a red face and white numerals It was used by the employees in the eastroom to determine break periods and lunch periods. Smythe and Lunde as- serted that the clock belonged to Paul Erickson.6 Wayne Gabel, at variance with Smythe and Lunde, as- serted that the clock belonged to him, not to Paul Erickson. Wayne asserted he placed the clock in the plant, in 1960 or 1961, when he was running a test, to determine how fast he could weld different types of tanks. He described it as a kitchen clock Wayne Gabel asserted there was a clock "in the old building" on the front wall, whether this refers to the main plant room is obscure. Wayne Gabel acknowledged removing the clock, assert- ing that his wife called, she advised him that his son had broken a clock at home, so he took the clock home. While there is an obvious coincidence in the removal of the clock the day after Respondent received McMahon's letter relative to the Union representing Respondent's employees, and on the same day the telephone was removed, in view of the other events herein, I find the clock removal was at most cumulative to the other viola- tions of the Act, by Respondent, and I therefore find it unnecessary to determine Respondent's motive in remov- ing the clock. Smythe, Fluit, and Lunde, each, related there was a' telephone extension in the eastroom which was used oc- 5 While Lunde was vague about Herman Gable's reference to see:ng the employees in a snowbank "this winter," I find that such a remark was made to Lunde, on the basis of similar remarks, by Herman Gabel, to other employees at approximately the same time 6 Paul Erickson did not appear as a witness, however Respondent's em- ployment records reflect that he was employed from February 1964 until approximately October 9, 1964 GABEL TANK CO. casionally by employees, and which was removed on Sep- tember 13. It appears undisputed that Respondent had only one telephone line into the plant , with extensions in the office, as well as the extension in the plant. Richard Gabel, by way of explanation, asserted that on two occa- sions, inferentially either on September 12 or September 13, someone lifted the telephone extension in the plant and was listening to his conversation with Respondent's attorney, and related that it was at the suggestion of the attorney that he had the telephone removed. Richard Gabel asserted he did not want anyone to listen to his conversation and this was his only motive in removing the telephone. Under the circumstances, as more fully explicated rela- tive to the wall clock, I find it unnecessary to determine if the removal of the telephone constituted interference, restraint, and coercion.7 C. The Discharges of Smythe and Fluit It is undisputed that Smythe and Fluit were discharged substantially simultaneously, at approximately the end of the workday, on September 20, 1966. Respondent con- tends the discharges were for cause, while General Coun- sel asserts the reasons assigned were pretextuous. Respondent's plant, as distinguished from the office, is divided into three rooms, described as the eastroom, the general shop area, and the backroom. During the period, in September 1966, between the advent of the Union and September 20, Smythe, Fluit, and Lunde assembled, and the first two named tested, what are variously referred to as 265-gallon oval oil storage tanks and 300-gallon tanks, in the eastroom. Floyd Matthies and Wayne Gabel, as leadman, assembled and tested what are described as pickup tanks, used by construction companies to haul diesel oil, of 120-gallon capacity, in the general shop area. Ronald Poppenga, as leadman, Roger A. Vant Hul, Ken- neth H. Thorson, and previously Lunde, were employed in the backroom, where tanks ranging in size from 1,000 gallons up to 10,000 gallons, or larger, including silos, were assembled and tested . Magnus C. Hoines was main- tenance man, both in the plant and with relation to Respondent's trucks. While James Edward Croisant is described as a welder his work location is obscure. It ap- pears undisputed that, about June or July 1965, Smythe was designated as leadman in the eastroom, and at the same time Poppenga was designated leadman in the backroom and Wayne Gabel was designated leadman in the general shop area. All of the employees named were under the general supervision of Dale Gabel. Smythe, who was initially employed in May 1962, at a rate of $1.40 an hour, was receiving $1.90 per hour at the time of his discharge, while Fluit, who was initially employed on August 1, 1965, at a starting rate of $1.60 I find no merit in General Counsel 's contention that the members of the Gabel family, individually and collectively, exhibited less than a friendly attitude toward the employees, and, as testified to by General Counsel 's witnesses, confined their conversations with employees to mat- ters of business , after receipt of McMahon's letter, while previously they exhibited their friendliness and carried on numerous conversations unre- lated to work. While General Counsel would advance the change as an ex- hibition of union animus , I find Richard Gabel's explanation reasonable and credible Richard Gabel related that he was advised by the attorney that he and his brothers should not discuss the Union, not threaten the em- ployees, not make promises , and that the attorney thought it best that they refrain from talking to the employees , inferentially beyond the necessities of carrying on work activity. 905 per hour, was earning $1.75 per hour at the time of his discharge. Smythe described the procedure followed in the eastroom as the assembly of the tanks, by welding. The tanks were then placed in a pretest area, and sub- sequently Smythe and Fluit would test the tanks for leaks, by placing 5 tons of air in each tank and running soapy water around the welding areas, when leaks ap- peared the tank was patched.8 The tanks were then placed in a posttest area at the rear of the general shop area, preparatory to painting. While Fluit corroborated the assertions of Smythe, there does not appear to be any dispute as to the procedure. It is undisputed that, over an unspecified period of time, a number of tanks were returned to Respondent's plant because of leaks, while some of the larger tanks, with similar problems, were repaired in the field. Obsten- sibly to reduce the number of defective tanks being shipped out, Respondent instituted a system of assigning a specific number, between one and nine, to each tester, and posted a notice on the bulletin board, in the eastroom, which reflected the numbers assigned and instructed the testers to punch their respective number, followed by the number of the calendar month, followed by the number of the year, on each tank. One set of numbers was paced under the notice, in a box, in the eastroom, and a second set of numbers was placed in the backroom. There were no numbers in the general shop area, and it is reasonable to infer, and I find, that Wayne Gabel and Floyd Matthies borrowed numbers, when needed from either the east- room or the backroom. The stamps were steel stamps, which caused.an impression on the tank when hit with a hammer. It is patent that the stamps were used for at least 1 year, if not longer.9 Smythe credibly related that, on an average, three or four tanks a month would be returned from customers because of leaks, would be patched, repainted, and then returned to the customers. The only warning given by Dale Gabel, was that they should check them over close- ly the next time. Smythe's assertions were substantially corroborated by Fluit. Smythe credibly related that on September 20 he, Fluit, and Lunde, starting at 7 a.m., welded tanks and stacked them. After finishing about half the tanks, Smythe and Fluit, separately, started testing, but did not stamp the tanks as stamp 6, needed for the year, and was the number assigned to Fluit, which was also inverted and used as the figure nine for the month, was missing from the box. After testing, 11 tanks were placed in the post- test area. Smythe and Fluit asserted they intended to stamp them later. About 9:30 a.m., Dale Gabel discovered that the tanks were not being stamped, went to Smythe and Fluit, and inquired why the tanks had not been stamped. Smythe responded that the stamps were not in the place where they should have been. Gabel ad- It is patent that an employer can freely express his opposition to unions and union organization, provided such expressions are not coupled with threats or promises . No claim appears herein that any of the three sons en- gaged in conduct constituting an independent violation of Section 8(a)(1), as distinguished from a derivative finding. 8 Smythe asserted one man could test about 40 tanks a day, and between one-fourth and one-third would initially reveal a leak. It is ob- scure if the figure stated relates to a full day's work. 9 Smythe asserted that the notice was initially posted either 2 or 2-112 years prior to his testimony, in December 1966, while Dale Gabel as- serted variously that the use of the stamps went into effect in December 1964, and also that it was December 1965. 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vised Smythe to read the bulletin Smythe responded that he knew what the bulletin read. Gabel repeated his state- ment, and Smythe took the bulletin down and read it. Shortly thereafter Dale Gabel advised Smythe and Fluit to stop testing, because he would have to test them all over because they were not stamped. Thereupon Smythe and Fluit spent the balance of the day welding. Fluit cor- roborated Smythe's version of these events, and asserted that he did not stamp any tanks that morning because No. 6 was missing from the box. I credit Fluit's undisputed statement that he had always, previously, stamped the tanks. I credit Smythe and Fluit.10 Dale Gabel related that he had a business appointment at 10:30 a.m., attended a funeral in the afternoon, and returned to the plant between 3 and 3:30 p.m , at which time he and Richard Gabel tested the 15 tanks. Dale Gabel asserted that he had given Wayne Gabel strict or- ders if anyone "monkeyed" with the tanks they should be fired on the spot. The retesting was done in the original test area, in the eastroom, within sight of Smythe, Fluit, and Lunde, who, nevertheless, at times would have weld- ing shields over their heads, while welding. Dale Gabel asserted that the 4 tanks which were stamped did not have leaks but that 3 of the 1 i which were not stamped did have leaks. Dale Gabel asserted, "the last tank, the last one we found, it was roughly getting close to quitting time then, and my conclusion, or my opinion was that they deliberately had allowed these leakers to get by. I called them over on the last leaker and showed it to them and I told them to pick up their stuff, that they were fired." It is thus patent, as related by Smythe and Fluit, that they were shown only one tank containing a leak. i i Smythe credibly related the reason he had not stamped the tanks was that the stamps were not in the box where they should have been. Fluit corroborated this assertion of Smythe. Smythe advised Dale Gabel that he had not passed a leaker purposely. He described the leak he was shown as a "seeper," or minor leak. Smythe advised Richard Gabel that if he had wanted to leave leaks on purpose he would have to put his number on them, and they would have not been rechecked Dale Gabel acknowledged that Smythe stated that he had not deliberately missed any leaks. Dale Gabel gave as a reason for firing Smythe the fact that he and Fluit had assembled a 300-gallon tank with skids, and placed the skids on incorrectly, on July 28, 1966. He asserted that he had advised Smythe, at that time , "one more mistake from him and he was going to lose his job." Smythe placed the time of this reprimand, asserting that it was the only reprimand he ever received, as a week or 2 weeks prior to his discharge. Smythe as- serted that Gabel advised him, at that time, "if you can't do any better work than this, you had better find another job."i2 Floyd Matthies asserted that when he reported for work on September 20 he began testing pickup tanks, in the general shop area, testing some 10 or 15 between starting time, at 7 a.m., and 9 or 9:30 a.m., but did not stamp any of them. He asserted that he moved the tanks to the work station where Wayne Gabel was double test- ing them. Matthies acknowledged that he also moved some of the tanks back to the posttest area. Matthies credibly related that about 9:30 Dale Gabel asked him if he had been stamping his tanks and he responded that he had not been and inquired if he should stamp them. Matthies asserted that Dale Gabel advised him to just let them sit because they were going to retest them. Matthies asserted that Wayne was stamping them, after Wayne tested them. Matthies explained that he continued testing until about 3 p.m., that he was not stamping because Wayne was double testing, and applying the stamp after the completion of the test.13 Matthies asserted that he did have a further conversa- tion with Dale Gabel, just before quitting time, on Sep- tember 20, in which Dale Gabel advised him, "Since you did not stamp your tanks, they retested them. They did not find no leaks " Matthies asserted that Gabel then ad- vised him the next time he had to stamp them, and if they had found a leak, they would have fired him. Gabel added the caution, "In the future also make sure you stamp them " I find this testimony in conflict with Matthies' as- sertion that the pickup tanks were always double tested 10 Dale Gabel asserted that five or six tanks a month were being returned as leakers pnor to the institution of the identification system, and thereafter only four or five leakers were returned, inferentially in the first 9 months of 1966 Gabel asserted that he found 1 1, not 11, tanks in the posttest area, 2 of which had Fluit's number stamped on them and the others were not stamped Gabel as3erted that when he questioned Smythe relative to Smvthe's failure to stamp the tanks, Smythe responded. "so I miss one once in awhile," and shrugged his shoulders Gabel asserted that he went back to the posttest area, checked the remainder of the 13 tanks, and found a second one containing Fl.iit's number then returned and asked Fluit why he had not stamped the majority of the tanks, and as- serted that Fluit responded, identical to the statement of Smythe, "so I miss one once in awhile " Gabel acknowledged that Smythe advised him the reason Smythe had not stamped the tanks was that "the numbers aren't here " Gabel asserted that he advised Smythe that the numbers were there, and that there were nine numbers in the rack Gabel asserted that Smythe advised him that Matthies or Wayne had borrowed the stamps and had just put them back Gabel asserted that while he was checking the remainder of the tanks Flint and Smythe each comp:eted the testing of an additional tank which was imprinted with their respective numbe._ c Dale Gabel asserted that he checked with Floyd Matthtes, who advised him that he did not have the numbers At 9 30 breaktime, Dale Gabel checked with Wayne Gabel who asserted he obtained his numbers from the backroom, that morning Dale Gabel related that, at the end of the break period, he advised Smythe and Fluit that he could not trust them to test tanks and that until he had time to retest the tanks they should con- tinue assembling To the extent the testimony of Dale Gabel is at variance with that of Smythe and Fluit, I credit the latter two, particularly as to whether the stamps were in the box , in the eastroom, prior to Dale Gabel's appearance, at approximately 9 30 a m 11 Later, at variance with his earlier testimony, Dale Gabel asserted they did not finish retesting these tanks before quitting time a,sd stayed tnere after quitting time in order to finish them , and that they had not finished testing all of them when he showed the one leaky tank to Smythe and Fluit. Dale Gabel did not assert that he advised Smythe and Fluit that there had been three leaky tanks in the group , although he asserted that he had discovered a total of three such leaks, prior to exhibiting the one leak to these two employees 12 1 find it unnecessary to determine credibility on Smythe's assertion that the repair of this error required only I hour, while Dale Gabel as- serted that it required 4-1/2 hours However, since Dale Gabel used the singular pronoun in describing his advice to Smythe , I am unable to credit Dale Gabel's assertion that Fluit was involved in the incorrect application of the skids I credit Fluit's assertion, to the contrary, that he had never received any reprimand or warning, pnor to his discharge , because of de- fective work 13 In contrast, Matthies asserted that ordinarily he would stamp the tanks after he tested them , he was unable to ascribe any particular reason why he did not stamp the tanks on September 20, acknowledging that Wayne Gabel had not so instructed him, and asserting that Wayne Gabel did not know that he was not stamping them, but asserting that Dale Gabel did advise him to go on testing, that they were going to retest his tanks after he had tested them GABEL TANK CO. 907 and it was the normal procedure for the man who con- ducted the second test to stamp the tank. Matthies also asserted that, on September 20, he was doing only the ini- tial testing and Wayne was doing the double testing and stamping. Matthies acknowledged that , on September 20, he had moved some tanks to the posttest area, without a stamp , which had not been retested by Wayne, explaining that he had tested them twice but had not stamped them. Matthies was unable to state any reason why he had dou- ble tested "probably 10" and had failed, to stamp them.14 I find it unnecessary to resolve a conflict between the testimony of Dale Gabel and Wayne Gabel. Wayne Gabel asserted that the tanks that he retested , on Sep- tember 20, had been tested by Flcyd Matthies the day be- fore , approximately 10, when he found they were not stamped and so advised Dale. I also find it unnecessary to resolve the credibility of Wayne, who asserted that he obtained his stamp from the backroom when he retested the tanks , and did not know if anyone took the stamps from the eastroom. However, I do not credit Wayne Gabel's assertion that Matthies should not have taken stamps from the eastroom , as it is patent that Matthies was testing pickup tanks, on September 20, and it is. reasonable to infer that some of these should have been stamped by Matthies. Poppenga credibly related that he had been repri- manded by Dale Gabel, on September 21, 1966, the day after Smythe and Fluit were discharged. At that time Dale Gabel advised him that all tanks had to be stamped. Poppenga acknowledged that in the past there were a number of tanks which he had tested and not stamped.15 Poppenga also acknowledged that large tanks, which he had inspected, had required repairs. Poppenga asserted that Herman Gabel advised him that Herman Gabel had made a trip to Missouri to repair a tank which had a leak near the top , in October 1966 . Herman Gabel also ad- vised Poppenga that one of the tanks that had been made for Engineering Equipment Company had a leak near the top, that the purchaser had hired someone to repair it, and that Respondent would have to reimburse the purchaser. 16 D. The October 14 and 21, 1966, Reduction in Scheduled Work Hours and Elimination of Coffeebreaks It appears undisputed, and Lance Lunde credibly re- lated, that Respondent's employees, prior to October 14, 1966, with certain exceptions set forth hereafter, worked a scheduled 10-hour day, and from 7 a.m. to noon on Saturdays, or 55 hours a week. On October 14, 1966, a notice was posted on the bulletin board , asserting that due to a shortage of work the hours , which previously had been from 7 am. to 5:30 p.m., with a one-half hour lunch period, were being changed to 8 to 12 and 1 to 5, 5 days a week, or 40 hours a week, with Saturday work eliminated. The employees continued to have a 15-minute break period in the morning and a similar break period in the afternoon , which were paid coffeebreak periods. The following Thursday, October 20, another notice ap- peared, stating that due to a shortage of work , commenc- ing the following day, Friday , October 21, the hours were being further reduced and the scheduled hours were 8:30 a.m. to noon and 1 p .m. to 4 :30 p.m. or 7 hours a day and 35 hours a week, and at the same time coffeebreaks were eliminated. Absent any dispute relative to these facts, I find it unnecessary to set forth the corroborative evidence of other witnesses. It appears that , at least during the period of 1964, 1965, and 1966 , prior to the discharges of Smythe and Fluit, Respondent's normal scheduled workday approximated 10 hours, with 5 hours on Saturday or a 55-hour week, with some exceptions , when for several weeks the work- week would be increased to approximately 58 and 64 hours,17 or reduced to approximately 47 hours.18 The normal work force appears to have been on the order of 8 to 10 employees, with a notable exception , covering a period of 2 or 3 months, in early 1964 , when Respondent sought to make use of a partial night shift , inferentially comprised of employees engaged elsewhere, who did some moonlighting, by working short hours for Respond- ent, on a night shift. During this unrepresentative period the work force was increased to as many as 17 employ- ees."' It is patent that there were no layoffs for lack of work, and only seven prior occasions , in the period specified, when the scheduled workweek was reduced to 40 hours.20 Poppenga credibly related a conversation he had with Dale Gabel , in mid-summer 1965 , during which Dale Gabel asserted, in the presence of Lunde, that Respond- ent was going to keep the men they had working 55 hours, and not hire additional men, in order to permit the employees to continue working 55 hours a week on a year-round basis. E. The Layoffs ofHoines, Lunde, and Floyd Matthies, on November 10, 1966, and Poppenga , on November 18, 1966 It is undisputed that, on November 10, 1966, Hoines, Lunde, and Floyd Matthies were advised, by letter, 14 1 have set forth, supra, that Matthies' father is the brother of the wife of Herman Gabel, owner of Respondent. Dale Gabel acknowledged hav- ing a conversation with Floyd Matthies, on September 20, after he discharged Smythe and Fluit. Dale asserted that he advised Matthies that he (Dale) and Wayne had tested the tanks previously tested by Matthies and had not found a leak in them , that he would not fire him at that time. Dale then related he gave Matthies a warning, asserting if he had found a leak he would have been fired, also. Dale asserted that Wayne had advised him that Matthies had failed to stamp some tanks and that Wayne was rechecking his tanks. In view of Dale Gabel's testimony that he worked beyond quitting time, to complete the test of the tanks tested by Smythe and Fluit, I do not credit his testimony that he and Wayne tested the tanks which had been tested by Matthies is Dale Gabel denied the assertion of Poppenga that he had, at previous times, reprimanded Poppenga for not stamping tanks, denying knowledge of such failure Yet, Dale Gabel acknowledged cautioning Poppenga the day following the discharges, of Flint and Smythe, to make certain he stamped all tanks. This precaution would appear to be a needless exercise if Dale Gabel's recitation was accurate I credit Poppenga on this conflict 16 I have noted, supra, that Herman Gabel did not appear as a witness, and this testimony of Poppenga stands undisputed. 17 Respondent's records reflect 38 such weeks: ending March 6 to July 3, 1964, both dates inclusive, April 30 to June 25, 1965, both dates inclu- sive; and April 8 to June 24, 1966, both dates inclusive , excluding the week endingJune 3, 1966. 18 The 13 weeks ending January 3, July 10, October 16 and 23, November 20 and 27, 1964, February 12 and 19, and November 19, 1965, and J anuary 7, March 4 and 11, and J my 8, 1966. 19 A composite of the testimony of Lunde, Homes , Poppenga, and Smvthe, and Respondent's records 20 These exceptions were the weeks ending September 11, November 13, and December 4 and 31, 1964, January 8, 1965, and June 3 and Sep- tember 8, 1966. 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed by Respondent , that due to "slack business condi- tions" they were being !aid off as of the end of that work- day. Respondent's letter recites that these conditions had existed in excess of 2 weeks, but the layoffs were not ef- fectuated previously "for fear it might have been con- strued" as being motivated as an effort to interfere with the election , which was held the prior day, November 9. The letter also asserts that the layoffs were being made in the order of seniority , "even though we have not at any prior time recognized seniority." The letter then recites that the employees would be recalled on the basis of seniority and that no new employees would be employed as long as laid-off employees were available for work. Respondent's letter to Poppenga, on November 18, 1966, contained the same representations. F. The Refusal to Bargain The Appropriate Unit-The Union's Majority Status The complaint alleges, the answer admits, and the Board has previously found, in Case 18-RC-6925, the following employees of the Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act All production and maintenance employees of the Respondent at its Sioux Falls , South Dakota, location; excluding office clerical employees , all other employees, guards, and supervisors as defined in the Act. There is no prior collective-bargaining history. I have found supra. under Background , that on September 8, 1966, a total of 9 production and maintenance em- ployees signed union authorization cards , at a time when the unit described was compromised of 10 full-time em- ployees, and I part-time employee. There is no evidence, or claim, of revocation. It follows, and I find, that the Union , at all times since September 9, 1966 , has been the duly designated representative, for the purpose of collec- tive bargaining , of the employees in the unit described, and pursuant to the provisions of Section 9(a) of the Act, has been and is the exclusive representative of all of the employees in said unit for the purpose of collective bar- gaining with respect to rates of pay , wages, hours of em- ployment , and other conditions of employment. It is undisputed that on Friday, September 9, 1966, John J. McMahon, business representative, advised Respondent, by letter, as follows: Sheet Metal Local Union No 496 of Sioux Falls, So. Dak. represents a majority of the employees working for your company. This is an appropriate unit under the collective bargaining act, and will in- clude all production employees at your Sioux Falls location . Excluded from the bargaining unit is management, supervisory, office clerical, and guards. In the very near future the above stated union request a meeting for the purpose of collective bar- gaining or a labor agreement covering these em- ployees. It is undisputed that the foregoing communication was received by Richard Gabel on Monday, September 12, 1966. During the morning of September 12, Richard Gabel called McMahon , and explained to McMahon that he did not know that the employees were represented by a union. McMahon responded that the employees had signed authorization cards. Richard Gabel then asserted that his father was out of town, that he could not do anything until the return of his father, which he asserted would be approximately October 1. McMahon offered to prove, to a neutral party, that he had authorization cards signed by a majority of the employees. It is undisputed that subsequently, to and including the date of certifica- tion, on November 22, 1966, and prior to December 5, 1966, McMahon met with the representatives of Re- spondent on only two occasions; i.e., on October 5, at a Board representation hearing, and on November 9, at a preelection conference. It is undisputed that, after receiv- ing the certification, and pursuant to a new request of the Union, the parties did meet for the purpose of collective bargaining on December 6, 1966. By agreement, no further meetings were held prior to the closing of the record in the instant case on January 5, 1967. It is undisputed that Respondent's actions, set forth in the complaint, of discharging Smythe and Fluit, on Sep- tember 20, 1966, removing the wall clock and telephone from the plant area, on September 13, 1966; reducing the scheduled hours of work of unit employees, on October 14 and again on October 21, 1966; elimination of two cof- feebreak periods, on October 21, 1966; and the layoffs of identified employees on November 10 and 18, 1966; were , in each instance, unilateral actions of Respondent, without bargaining with or notification to the Union.21 Respondent's Defenses Respondent urges that the discharges of Smythe and Fluit were not discriminatonly motivated, and it is not contended that the failure of these employees to stamp the tanks was the reason for their discharge. Rather, ac- cording to Dale Gabel the reason for the discharges was that he believed that they deliberately allowed three leaky tanks to pass their inspection. These contentions are further considered infra Respondent's defense relative to the shortening of hours, the termination of the coffeebreaks, and the layoff of various employees, is an assertion that these modifica- tions were required by reason of economic conditions, specifically a reduction in anticipated workload and pend- ing orders. The record evidence fails to support these contentions, as of the time the modifications were made. Dale Gabel related that the large silos, which were produced in the backroom , on occasions would require a week or more, each, to produce. Richard Gabel described as two large customers for Respondent's tanks Tryco Manufacturing of Decatur, Il- linois, and Engineered Equipment , of Waterloo , Iowa. He asserted that Tryco has been purchasing tanks for 4 years, and normally purchased liquid fertilizer tanks of 2,000 or 1,500-gallon capacity and also applicator tanks of 440-gallon capacity. He further described the normal order as on the order of 15 to 20 of the 2,000-gallon tanks, 75 to 125 1,500-gallon tanks, and 75 to 90 440-gallon tanks. The Respondent normally begins fabricating these tanks upon a verbal order, normally received in the latter part of October or early part of November, although 11 It is not contended that the Union was not advised of these actions, by employees involved , after the actions were taken GABEL TANK CO. 909 delivery is in the following February and March.22 Richard Gabel asserted they had received no order in the fall of 1966, from Tryco, by reason of the pendency of a Federal Government tax suit relative to a Federal Government claim that an excise tax applies under trucking and automotive regulations , the claim amounting to more than $125,000. Richard Gabel asserted that he first learned of Tryco's difficulty, and Tryco's intent not to place an order, when he placed a telephone call to Tryco about the middle of November 1966.23 Richard Gabel related that Engineered Equipment purchased seven silos, in 1965, used for storage of dry ce- ment. Richard Gabel asserted that each silo represented 265 man hours of work. On October 3, 1966, Engineered Equipment advised Respondent that a silo, which had been resold and delivered to an Arkansas firm had developed a crack, in the roof seam, allowing water to enter the silo, and caus- ing certain losses and repair costs. Respondent's atten- tion was directed to the problem in order that it could ad- vise its insurance carrier. Subsequent correspondence, under date of December 22, 1966, indicated that the claim relative to this silo would exceed $39,000, and further called attention to a different claim in the amount of $2,000. Richard Gabel acknowledged that Respondent had received no order from Engineered Equipment in the year of 1964. He asserted the order received from this firm in 1965 represented approximately 5 to 8 weeks' work for 8 or 9 employees. Richard Gabel asserted that Respond- ent does not maintain a sales force, does not conduct mail solicitation, and relies for business on orders which are received. Richard Gabel asserted no order, in 1966, had been received from Engineered Equipment. Richard Gabel asserted that commencing on an un- specified date in September 1966, he undertook a system of cost accounting, to determine if they were losing money on the production of any of the particular tanks produced, and ascertained that they were losing an average of $3.80 a tank, on the 265-gallon oval basement tanks and on the 300-gallon tanks. These were the tanks previously produced in the eastroom by Smythe, Fluit, and Lunde. As a result, Respondent, on November 18, 1966, advised Farmland Industries, Inc., and some 9 or 11 other major customers, for these particular tanks, that effective December 1, 1966, a price increase of approxi- mately 10 percent would become effective, that the Respondent was in the process of working out new price sheets, which would be forwarded upon completion. Richard Gabel asserted that Farmland Industries, a cou- ple of days after November 18, called and canceled their pending orders on both the oval basement tanks and the 300-gallon tanks. Richard Gabel described Farmland In- dustries normal yearly purchases as "400 or 500 or 300" of the basement tanks, and approximately the same number of 300-gallon tanks. Richard Gabel described the pending order which was canceled as including 64 oval basement tanks and sixty 300-gallon tanks. Thereafter, Richard Gabel acknowledged that the order of Farmland Industries constituted approximately 15 days' work for two men in the eastroom. Richard Gabel did not relate any other cancellations by reason of the price increase. Richard Gabel asserted that Respondent's past prac- tice was to keep 2 to 4 weeks ahead in terms of workload, and this had been standard for the past several years. He asserted there was a peak season in the spring and another in the fall, with low seasons toward the end of the year and during the summer. The latter assertion is questionable in view of Richard Gabel's assertion that the Tryco order was normally received in November and would provide sufficient work for the entire work force for the months of December and January.24 Richard Gabel asserted that, on the day of his testimony, January 5, 1967, the pending workload con- stituted 1 week's work for two employees and his brother Dale.25 Richard Gabel's assertion that the reason for the reduc- tion of the workweek, misstated by him as having been in November, and for the layoffs, was due to the failure to receive orders from Tryco and Engineered Equipment, and the cancellation by Farmland Industries, is patently erroneous and incredible. These events were unknown to Respondent, in October, at the time of the reduction of the work hours, of an already reduced labor force, since Smythe and Fluit were not replaced, and also at the time of the layoff of Hoines, Lunde, and Floyd Matthies, on November 10, and the cancellation by Farmland Indus- tries was patently after the layoff of Poppenga. Concluding Findings 1. Interference, restraint, and coercion I have found, supra, that the Union, by letter, advised Respondent that it represented a majority of the em- ployees in the production and maintenance unit, and it is undisputed that this letter was received by Richard Gabel on September 12, 1966. Thereafter, while Respondent had made no meaningful reply to the Union's request for bargaining, and after the Direction of Election, issued by the Regional Director, on October 12, Herman Gabel en- gaged several of the employees in a series of interviews, which I find constituted unlawful interrogation, threats, and promises of benefit, and were an effort by the Respondent to undermine the efforts of the employees to organize. The evidence relative to these events was not disputed by Richard Gabel, who assertedly was present on several of the occasions, and the failure of Herman Gabel to ap- pear as a witness stands unexplained in this record. A 22 Richard Gabel estimated that the Tryco order would be the equivalent of 6 to 8 weeks of work for a crew of eight, and was normally completed in the months of December and January 23 Pressed for more specificity relative to the date of his telephone call, Richard Gabel was certain that it was before his letter of November 18, relative to price increases , set forth infra, then asserted that it might have been approximately November 11. It is thus patent that Tryco's intent was unknown to Respondent at the time of the events herein, other than the layoff of Poppenga. 24 In addition , I have found from Respondent's records: a scheduled 55- hour workweek in 4 of the 5 weeks in January 1964, 6 of 9 weeks in December 1964 and January 1965; and a schedule of 50 or 55 hours in each week of December 1965 and January 1966, except the week ending December 3 25 The two employees are identified as his brother Wayne and A. J. Matthies. It is obscure if A. J. Matthies is related to the Gabel family, or to Floyd Matthies. It is undisputed that Floyd Matthies is a nephew of Herman Gabel While Respondent's records do not permit a conclusion relative to the seniority of A. J. Matthres, it is noted that he was, at times, a part-time em- ployee, working 25 or less hours per week in many of the weeks when other employees were working a substantial amount of overtime. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recapitulation of these events reflects that Lunde was ad- vised that if he wished to make more money he should work elsewhere, that Respondent was too small a com- pany to have a union , and that Respondent would see the employees in a snowbank "this winter"; Floyd Matthies was similarly advised by Herman Gabel that Herman Gabel did not want a union in the plant , that the plant was not large enough for a union, that if Respondent did not have enough work Matthies would be out of work (in the snowbank); Homes was interrogated as to what he "thought" about the Union, was advised by either Richard Gabel or Herman Gabel that the plant was too small for a union , Herman Gabel advised Homes that he did not have to sign a contract, that he could require the employees to stand up for their coffeebreaks, and that if a potential employer called for a reference he could refer to the applicants as "rabble rousers and troublemakers," later the same day, Herman Gabel advised Homes, "you stick with us and I will make it worth your while"; Pop- penga was advised by Herman Gabel that Respondent was not large enough to have a union, that he did not have to sign a contract, that he would see the employees in the snowbank before he would sign a contract, that if a poten- tial employer called for a reference he would refer to the applicants with either a good reference or classify them as rabble rousers, Herman Gabel also advised Poppenga that if the Union won the election Respondent would stop making the smaller tanks, Herman Gabel also asserted that the Union was making promises to the employees of benefits, which the employees would never obtain, in a separate interview, on the morning of the election, Her- man Gabel inquired if Poppenga had changed his mind about the Union, and when advised that Poppenga had not, Herman Gabel advised Poppenga that he could either continue his employment or lay him off Prior to the Blue Flash case26 all interrogation, by em- ployers, was held to be per se unlawful. I n the decision in Johnnie's Poultry case27 that holding has been modified to permit legitimate inquiry, where legitimate inquiry is essential and proper safeguards are established. Legiti- mate inquiry is warranted to verify a union's claim of majority status, to determine whether recognition should be extended, and in the investigation of facts concerning issues raised in a complaint where such interrogation is necessary in preparing an employer's defense for the trial of a case. Neither situation was established as the motive herein. The Board and courts uniformly have held, and Section 8(c) provides, that an employer may express a view, argu- ment, or opinion, indicating his opposition to unions, or union organization, or the employees need for a union, however such expression is violative when it contains a threat of reprisal or promise of benefit. Absent requisite safeguards or purpose, and having found the interrogation complained of was coercive, I find each of the acts of interrogation, threats of economic reprisals, and promises of benefit, constituted inter- ference, restraint, and coercion, and were, in each in- stance, violative of the provisions of Section 8(a)(1) of the Act. 2. The discharges of Smythe and Fluit The single question to be resolved , under this section, is whether the discharges were for cause, as contended by Respondent , or were discriminatorily motivated , as con- tended by General Counsel. It is undisputed that , on September 20, Smythe and Fluit had inspected tanks and placed them in the posttest area, without placing thereon the stamps which would permit identification of the inspector , as required by Respondent ' s bulletin .26 While Dale Gabel asserted that he found three tanks containing leaks, in the group he and Richard Gabel retested , it is patent the dischargees were shown only one tank containing a "seeper ," and it is un- disputed that Smythe and Fluit were not, at that time, ad- vised by Dale Gabel that other leaks had been found in the tanks inspected up to that time. I find it reasonable to conclude that Dale Gabel did not ascribe the failure to affix identification stamps as the reason for the discharges . This is specifically reflected by his subsequent conversations with Floyd Matthies and Poppenga, with particular reference to his advice to Matthies , that Matthies was not being discharged , in spite of his failure to stamp some 10 tanks, "because no leakers were found." It may also be inferred from the fact that Smythe protested immediately , to both Dale Gabel and Richard Gabel , that if he had wanted to pass a leaker deliberately , and not be caught , he could have avoided such a result by stamping them , and no reinspection would have ensued. We are concerned here, however , not with the adequa- cy of the reason assigned for the discharge , but rather the motive underlying such action . It is undisputed that a number of tanks, inferentially of all sizes , had been returned to Respondent because of leaks, and large tanks inspected by Poppenga, had required repair in the field, by reason of leaks. It is reasonable to assume that a number of these tanks bore identification numbers. It is undisputed that at no time had Respondent ever fired, or threaten to fire, an employee by reason of his having passed a leaky tank through inspection , as distinguished from cautioning them to use more care in inspecting. Twelve days prior to these discharges , Fluit, with the aid of Smythe and Lunde , instituted the union activity. Dale Gabel denied that he was upset by reason of the em- ployees having sought the aid of a union , asserting "It didn't bother me any." I find this assertion improbable. This is particularly true in view of Dale Gabel's assertion, immediately thereafter, when asked if he agreed with his father and his brother Richard that it was a small plant and they did not need a union , he responded, "I don't be- lieve a union would really help us any." The Supreme Court in Universal Camera Corp v. N.L.R.B ., 340 U.S. 474, 477, defined the "evidence" required by Section 10 (e) of the Act as: Such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Ac- cordingly , it must do more than create a suspicion of the fact to be established, it must be enough to justi- fy, if the trial were to a jury , a refusal to direct a ver- dict when the conclusion sought to be drawn from it is one of fact for the jury. The abruptness of a discharge, and its timing, have been found to be persuasive evidence as to motivation. 26 Blue Flash Express, Inc , 109 NLRB 591 27 Johnnie's Poultry Co, 146 N LRB 770, 775 28 Contrary to the assertions of Dale Gabel, 1 have found that I i un- stamped tanks had been so placed, while Dale Gabel asserted there were 13 of which 2 bore the identifying number of Fluit GABEL TANK CO. 911 N.L.R.B. v. Montgomery Ward & Co., 242 F.2d 497, 502; N.L.R.B. v. Southern Desk Co., 246 F.2d 53, 54. The Board has found a discharge discriminatorily motivated by reason of the unconvincing character of the reasons adduced to support the discharge , including the timing of the discharge . Pacemaker Corporation, 120 NLRB 987, 991. In numerous cases the Board and courts have held that direct knowledge of an employee's union activities is not a sine qua non for finding that an employee had been discharged because of such activities , but may be inferred from the record as a whole. The small number of em- ployees, the abruptness and timing of the discharge are among the factors considered. Wiese Plow Welding Co., Inc., 123 NLRB 616. ... the unexplained coincidence of time with respect to the principal events was really no coin- cidence at all, but rather part of a deliberate effort by management to scotch the lawful measures of the employees before they had progressed too far toward fruition. . . If employees are discharged partly because of their participation in a campaign to establish a union and partly because of some neglect or delinquency, there is nonetheless a violation of the National Labor Relations Act. N.L.R.B. v. Jamestown Sterling Corp., 211 F. 2d 725. In view of the above facts, and upon the entire record as a whole, I believe and find that Respondent's pur- ported reasons for discharging Smythe and Fluit were pretextuous , and the real reason and "moving cause" was the known union activities of said employees, and said discharges constitute discrimination to discourage mem- bership in the Union, in violation of the provisions of Sec- tion 8(a)(3) and (1) of the Act. 3. The reductions in scheduled work hours and elimination of coffeebreaks I have found supra, from undisputed evidence, that on October 14, 1966, Respondent reduced the workweek from 55 hours to 40 hours, and on October 21, 1966, Respondent further reduced the workweek to 35 hours, with the elimination of a 15-minute morning and after- noon coffeebreak, on the latter date. I have set forth supra, that Richard Gabel asserted that Respondent's slack season was in the summer and winter of each year. Obviously October is not commonly so characterized. It is also patent, from the testimony of Richard Gabel that the intentions of Tryco, Engineered Equipment, and Farmland Industries, relative to placing orders, were unknown to Respondent on these dates. Respondent produced no evidence herein which reflects comparable workloads, either at the time in question or in other comparable periods. A review of Respondent's employees work records reflect that in the 5 weeks ending October 2 to 30, 1964, the scheduled workweeks were between 50 and 55 hours, with a slight modification in the week of October 23. In the 5 weeks ending October 1 to 29, 1965, the scheduled workweek appears to have been on the order of 55 hours in each week. Thus, it is reasonable to find, on the basis of 1964 and 1965, that October was not normally a low- production month. In view of the antiunion campaign undertaken by Her- man Gabel, set forth supra under Interference , Restraint, and Coercion, including advice that the employees would be in the snowbank , and that he could require them to stand up for their coffeebreaks, and that he did not have to sign a contract with the Union , in view of the other un- fair labor practices found herein, and absent any effort by Respondent to show a reduction in pending work, I find it reasonable to conclude that the reduction in work hours and elimination of the coffeebreak , as contended by General Counsel , was solely a part of Respondent's cam- paign to retaliate against the employees and to destroy the Union's majority status, and such conduct is obviously discriminatorily motivated and violative of Section 8(a)(3) and (1) of the Act. I so find. 4. The layoffs of November 10 and 18, 1966 I have found supra, and it is undisputed, that Hoines, Lunde, and Floyd Matthies, were each advised by Respondent, on November 10, 1966, that their layoffs were due to "slack business conditions ," and a similar notice was given to Poppenga , a leadman, on November 18, 1966. The layoffs must be considered in the light of the fact that the election was conducted on November 9, and it is reasonable to infer that Respondent was apprised of the result on that date, even though certification did not issue until thereafter. It is patent from the testimony of Richard Gabel that he was not advised of Tryco's intent not to place an order until November 11, at the earliest. While it is true that Engineered Equipment advised Respondent of a substan- tial claim against the Respondent by one of its customers, on October 3, 1966, there was no further correspondence relative to this matter until December 22, 1966, after the hearing in the within matter commenced . There is no af- firmative evidence, by Respondent, that it was advised by Engineered Equipment relative to the latter's intent with respect to further orders, on or prior to November 18, 1966. The cancellation by Farmland Industries, accord- ing to the testimony of Richard Gabel, was between several days and a week after Respondent's notice of a contemplated price increase , which notice was not mailed until November 18, 1966. Thus, I find no evidence to support a claim of reduced workload on or before November 18. The attitude of Respondent is undoubtedly revealed by the recitation of Richard Gabel that he was not exactly happy when he learned that the employees had sought the assistance of the Union, and his acknowledgement that he felt the employees were disloyal as a result of this activi- ty. The reaction of Herman Gabel, owner, is manifest from his conduct , set forth supra, which he did not deign to dispute. Dale Gabel acknowledged that it was his intent to re- call the laid-off employees , if available , as needed, in the order of seniority. Absent any evidence reflecting economic justification for the layoffs it must be concluded, in the light of the en- tire record herein, that these layoffs were discriminatorily motivated, and thus were violative of the provisions of Section 8(a)(3) of the Act. I find accordingly. 5. The refusal to bargain General Counsel correctly urges that the undisputed evidence reflects that the Union represented an un- coerced majority of the employees, in an appropriate unit, on September 8, 1966, and appropriately requested recognition and bargaining on September 12, 1966, offer- 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing proof of its majority status, through a card check by an independent third party. General Counsel correctly urges that Respondent did not at any time assert a good- faith doubt as to the Union's majority status, and, ac- cordingly, was not free to unilaterally modify wages, hours of employment, or other working conditions. General Counsel correctly urges that the Board and courts have uniformly held that there is no absolute right vested in an employer to demand an election. While it is true if an employer has a good-faith doubt as to the Union's majority, he may, without violating the Act, refuse to recognize the Union until its claim is established by a Board election, the doubt must be genuine, and the Act does not require an election before an employer may bargain with the Union. 29 It is patent that the Respondent made no effort to ap- prise the Union of the enumerated and contemplated modifications of work hours, working conditions, and the layoffs. The Board has held such conduct violative of Section 8(a)(5) and (1) of the Act. Evans Products Com- pany, 160 NLRB 1822. The Board has held that where, as here, Respondent unilaterally discharges its employees, without notice to the Union, it not only violates Section 8(a)(3), but also Section 8(a)(5) of the Act. Northwestern Publishing Company, 144 NLRB 1069,107 1. It has been held that the unilateral layoffs, under the circumstances indicated herein, without prior notice to or consultation with the Union is violative of Section 8(a)(5) of the Act. Exchange Parts Company, 139 NLRB 710, 711, enfd. 339 F.2d 829. The unilateral reduction of work hours of employees under these circumstances, has been held violative of Section 8(a)(5) of the Act Nelson B. Al- len, 149 NLRB 229. It follows, and I find, that the unilateral acts of Re- spondent, enumerated herein, without notice to the Union, constituted a refusal to bargain and, in each in- stance, was violative of the provisions of Section 8(a)(5) and (1) of the Act.30 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occuring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce and the free flow o^'commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that he cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Respondent having discharged John T Fluit and James J. Smythe, because of their union activities, I recommend that Respondent offer to each immediate and full rein- statement to the former or substantially equivalent posi- tion of each, without prejudice to the seniority and other rights and privileges of each, and make each whole for any loss of pay each may have suffered by reason of Respondent's discrimination against each, by a payment to each of a sum of money equal to that which each nor- mally would have earned as wages from the date of the discharges , September 20, 1966 , to the date when, pur- suant to the Recommended Order herein contained, Respondent shall offer reinstatement , less the net earnings of each during said period . Said backpay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Respondent having reduced the hours of employees Magnus C. Homes, Lancelot Lunde , Floyd Matthies, and Ronald Poppenga , on October 14, 1966 , and again on October 21 , 1966, and having eliminated paid cof- feebreak periods on October 21, 1966 , and having laid off the first three named employees , on November 10, 1966, and having laid off Ronald Poppenga , on November 18, 1966, in each instance because of the union activities of the named employees , I recommend that Respondent offer each immediate and full reinstatement to his former or substantially equivalent position , without prejudice to the seniority and other rights and privileges of each, and make each whole for any loss of pay each may have suf- fered by reason of Respondent 's discrimination against each , by a payment to each of a sum of money equal to that which each normally would have earned as wages, during the period the hours of each was reduced com- mencing October 14 , 1966, to the date of the respective layoff of each , said sums to include payment for cof- feebreaks on and after October 21, to the date of the layoff of each , and, in addition , by the payment to each of a sum of money equal to that which each normally would have earned as wages from the date of the layoff of each, November 10, 1966 , in the instances involving Hoines, Lunde , and Floyd Matthies , and November 17, 1966, in the instance of Poppenga , to the date when , pursuant to the Recommended Order herein contained , Respondent shall offer reinstatement , less the net earnings of each during said period . Said backpay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. I shall also recommend that Respondent be ordered to make available to the Board , or its agents , upon request, payroll and other records to facilitate the checking of the amount of earnings due. I recommend that Respondent , upon request , bargain collectively with Local 496, Sheet Metal Workers Inter- national Union , AFL-CIO , as the exclusive representa- tive of all employees in the unit herein found to be ap- propriate for the purpose of collective bargaining. In view of the nature of the unfair labor practices com- mitted , the commission of similar and other unfair labor practices reasonably may be anticipated . I shall therefore recommend that Respondent be ordered to cease and de- sist from in any manner infringing upon rights guaranteed its employees by Section 7 of the Act. Upon the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 29 Citing S S Logan Packing Company, 152 NLRB 421.428 See also Joy Silk Mills, Inc v NLRB , 185 F 2d 732,741-742 (C A D C ), cert denied 341 U S 914, Bernel Foam Products, Co. Inc , 146 NLRB 1277, Natioi al Can Corporation, 159 NLRB 647 10 Cf N L R B V Katz, 369 U S 736, 743, Decoral Corporation, 163 NLRB 146, at fn 8 GABEL TANK CO. 913 2. Local 496, Sheet Metal Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in the conduct set forth in the section entitled "Interference, Restraint, and Coercion," to the extent therein found, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminating with respect to the hire and tenure of employment of John T. Fluit, James J. Smythe, Magnus C. Homes, Lancelot Lunde, Floyd Matthies, and Ronald Poppenga, by reducing the hours of employment of employees in the unit, and by elimination of cof- feebreaks, for said employees, thereby discouraging the free exercise of rights guaranteed by Section 7 of the Act, and discouraging membership in or activities for the above-named labor organization, the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. All production and maintenance employees of Respondent at its Sioux Falls, South Dakota, location; excluding office clerical employees, all other employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. 6. At all times, since September 9, 1966, Local 496, Sheet Metal Workers International Union, AFL-CIO, has been the exclusive representative of all the employees in the aforesaid unit for the purpose of collective bargain- ing with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment. 7. By refusing on and after September 12, 1966, to the extent herein found, to bargain collectively with the aforesaid labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, and pursuant to Section 10(c) of the Act, I recommend that the Respondent, Herman Gabel, d/b(a Gabel Tank Company, his officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with Local 496, Sheet Metal Workers International Union, AFL-CIO, as the exclusive representative of its em- ployees in the following appropriate unit: All production and maintenance employees of the Respondent at its Sioux Falls, South Dakota, loca- tion; excluding office clerical employees, all other employees, guards, and supervisors as defined in the Act. (b) Interrogating employees concerning their or- ganizational activities in a manner violative of Section 8(a)(1) of the Act. (c) Threatening employees with elimination of jobs, less desirable working conditions , or other economic reprisals, if the employees select the Union. (d) Promising employees more desirable working con- ditions if they will desist from union activities, or aid in Respondent's effort to defeat the organizational activities of employees. (e) Discouraging membership in Local 496, Sheet Metal Workers International Union , AFL-CIO, or any other labor organization of its employees , by discharging, laying off, reducing hours of work, eliminating coffee- breaks, or otherwise discriminating against employees in regard to their hire or tenure of employment, or any term or condition of employment. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations , to join or assist the above-named Union , or any other labor or- ganization, to bargain collectively through representa- tives of their own choosing , and to engage in other con- certed activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer to John T. Fluit, James J. Smythe, Magnus C. Homes, Lancelot Lunde , Floyd Matthies, and Ronald Poppenga, immediate and full reinstatement to the former or substantially equivalent position of each, without prejudice to seniority or other rights and privileges previ- ously enjoyed by each and make each whole for any loss of pay each may have suffered by reason of Respondent's discrimination against each , in accordance with the recommendations set forth in the section of the Decision entitled "The Remedy." (b) Upon request, recognize and bargain collectively with Local 496, Sheet Metal Workers' International Union, AFL-CIO, as the exclusive representative of all the employees in the aforesaid appropriate unit , and, if an understanding is reached, embody such understanding in a signed agreement. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports , and all other records necessary to analyze the amounts of backpay due and the rights of employment under the terms of the Recommended Order herein. (d) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. (e) Post at its plant in Sioux Falls , South Dakota, co- pies of the attached notice marked "Appendix. "31 Copies of said notice on forms provided by the Regional Director for Region 18, after being signed by Respondent, shall be posted by the Respondent and maintained by him for 60 consecutive days thereafter in conspicuous places, in- cluding each of Respondent's bulletin boards. Reasonable steps shall be taken by the Respondent to insure that said 31 In the event that this Recommended Order is adopted by the Board, Court of Appeals, the words "a Decree of the United States Court of Ap- the words "a Decision and Order" shall be substituted for the words "the peals Enforcing an Order" shall be substituted for the words "a Decision Recommended Order of a Trial Examiner" in the notice. In the further and Order." event that the Board's Order is enforced by a decree of a United States 914 DECISIONS OF NATIONAL notices will not be altered , defaced , or covered by any other material. (f) Notify the Regional Director for Region 18, in writ- ing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply with the foregoing Recommended Order.-12 IT IS FURTHER RECOMMENDED that unless within 20 days from the date of the receipt of this Decision the Respondent shall notify the said Regional Director, in writing, that it will comply with the foregoing Recom- mended Order , the National Labor Relations Board issue an Order requiring Respondent to take the aforesaid action. 32 In the event that this Recommended Ordei is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing , within 10 days from the date of this Order, what steps Respond- ent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL, upon request, recognize and bargain col- lectively with Local 496, Sheet Metal Workers In- ternational Union, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below, with respect to rates of pay, wages, hours of employment , and other terms and conditions of employment , and, if an understanding is reached, we will embody such understanding in a signed contract. The bargaining unit is: All production and maintenance employees of the Gabel Tank Company at its Sioux Falls, South Dakota, location ; excluding office clerical employees, all other employees , guards , and su- pervisors as defined in the Act. WE WILL NOT discourage membership in Local 496, Sheet Metal Workers International Union, AFL-CIO, or any other labor organization of our employees, by discriminating in regard to their hire or tenure of employment , or any term or condition of employment, including reduction of work hours, or elimination of coffeebreaks. WE WILL NOT interrogate employees in a manner violative of the provisions of Section 8(a)(1) of the Act. LABOR RELATIONS BOARD WE WILL NOT threaten employees with elimination of jobs, less desirable working conditions, or other economic reprisals, if the employees select the Union to represent them. WE WILL NOT promise employees more desirable working conditions if they will desist from union ac- tivities, or aid in our effort to defeat the organiza- tional activities of employees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor or- ganizations , to join or assist the above -named Union, or any other labor organization, to bargain collective- ly through representatives of their own choosing, and to engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any and all such activities. WE WILL offer to John T. Fluit, James J. Smythe, Magnus C. Hoines, Lancelot Lunde, Floyd Matthies , and Ronald Poppenga , immediate and full reinstatement to the former or substantially equivalent position of each, without prejudice to the seniority and other rights and privileges of each, and make each whole for any loss of pay that each may have suffered as a result of our discrimination against each. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named Union or any other labor organization. GABEL TANK COMPANY (Employer) Dated By (Herman Gabel) (Owner) NOTE: We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting , and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 316 Federal Building, 110 South Fourth Street , Minneapolis, Min- nesota 55401, Telephone 334-2611.