The Fluorocarbon Co.

THE FLUOROCARBON COMPANY - The Fluorocarbon Company and International As- sociation of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93. Cases 20-CA-3877 and 20-RC-6640 November 30, 1967 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, BROWN, AND JENKINS On May 15, 1967, Trial Examiner Maurice M. Miller issued his Decision in the above-con- solidated proceedings, finding that Respondent had not engaged in certain unfair labor practices and recommending that the complaint, in Case 20-CA-3877, be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had conducted two employee meetings within the 24-hour period preceding the election in Case 20-RC-6640, in violation of the rule promulgated by the Board in Peerless Plywood Company, 107 NLRB 427, and recommended that the results of such election be vacated and that the Board direct a second election. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision with a supporting brief. An answering brief was filed by the Respondent. 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts the Recommended Order of the Trial Examiner, and hereby orders that the complaint in Case 20-CA-3877 be, and it hereby is, dismissed in its entirety. IT IS FURTHER ORDERED that the election con- ducted in Case 20-RC-6640 be, and it hereby is, set aside. [Direction of Second Election omitted from publication.] 629 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Complainant Union's Petition MAURICE M. MILLER, Trial Examiner: On October 15, 1965, International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93, Local Lodge No. 504, filed a petition for certification with the Board's Regional Office (Case 20-RC-6640); therein Petitioner requested certification to represent a group of employees designated as follows: All production and maintenance employees of [The Fluorocarbon Company] at its Palo Alto, California, location, exclud- ing all office clerical employees, professional employees, guards, and supervisors as defined in the Act. Thereafter, between November 5 and 12, representatives of both parties signed, and the Board's Regional Director ap- proved, a formal stipulation for certification upon consent election; the stipulation provided that a representation election would be conducted on December 1, thereafter, within the bargaining unit previously designated. (Within the stipulation, the Petitioner seeking certification was designated as International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93, merely; Petitioner's Local Lodge N. 504 was no longer named as concerned. No questions seem to have been raised when the stipulation was signed regarding this change in Petitioner's designation, though it clearly meant that the District Lodge solely, rather than its subordinate local lodge, would be named on the Board's ballot.) On December 1, 1965, the requested consent election was conducted; the District Lodge Petitioner did not receive a majority of the valid votes cast. Thereafter, on December 7, representatives of the District Lodge timely filed a set of objections with respect to certain conduct chargeable to The Fluorocarbon Company, which had, purportedly, affected the election results. Complainant Union's Charge Concurrently, on December 7, 1965, the District Lodge, which will be designated henceforth as Complai- nant Union herein, likewise filed charges against The Fluorocarbon Company henceforth to be designated Respondent herein; the firm was charged with unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Rela- tions Act, as amended, 61 Stat. 136, 73 Stat. 519. Specifi- cally, Complainant Union challenged the propriety of cer- tain conduct, purportedly chargeable to Respondent firm, which had preceded the consent election, previously noted. Parallel Proceedings Thereafter, on February 16, 1966, the Board's Re- gional Director published and served his report on objec- tions in Case 20-RC-6640, with respect to the December 7 document which Complainant Union had filed; therein, he concluded that Complainant Union had raised "sub- stantial and material issues of fact" which could best be resolved through a formal hearing. Noting that Complai- nant Union had concurrently filed charges, the Regional Director reported that such charges had been in- vestigated; that a complaint "would" issue, based 168 NLRB No. 85 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereon, charging The Fluorocarbon Company with vari- ous statutory violations ; that some conduct which would be challenged therein as violative of the statute had likewise been cited by Complainant Union within its elec- tion objections as sufficient justification for vacating the consent-election results; and, finally, that "these several matters" seemingly constituted a single overall con- troversy. With matters in this posture, the Regional Director concluded that the statute 's purpose would best be served by considering Complainant Union 's objec- tions to the consent election jointly with the various un- fair labor practices charged. Concurrently with the Regional Director's report on objections , a complaint and notice of hearing was issued and served on The Fluorocarbon Company; therein, Respondent was formally charged with unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(1), (3), and (5) of the statute. On February 25 Respondent's answer, duly filed, conceded certain factual matters - set forth within the complaint herein - but de- nied others ; further, Respondent denied the commission of any unfair labor practice. Concurrently, Respondent filed exceptions with respect to the Regional Director's previously served re- port on objections , pursuant to Section 102.69 (c) of the Board's Rules and Regulations , Series 8, as amended. The sufficiency of the Regional Director's report was challenged upon various grounds . Further, Respondent protested the Regional Director 's proposal that the hear- ing which he had recommended with respect to Complai- nant Union's objections be consolidated with the scheduled hearing on General Counsel 's unfair labor practice complaint ; such a consolidated proceeding, so Respondent claimed, would be prejudicial for various reasons noted. Respondent requested, therefore, that Complainant Union's objections to election be dismissed, and that a certification of results be issued . Alternatively, Respondent requested a separate hearing with regard to Complainant Union's objections , bottomed upon a more detailed specification of the particular matters which the Regional Director would propose to litigate therein. On April 5, 1966 , Respondent filed a motion for bill of particulars with respect to the complaint previously is- sued; therein Respondent sought further data regarding the scope of General Counsel 's contentions and details with respect to various factual matters . The motion was referred to the Board's Associate Chief Trial Examiner for consideration. While the motion in question was pending determina- tion, however, the Regional Director for the Board's Re- gion 20, having "duly considered " Respondent's formal exceptions, filed with respect to his prior report on objec- tions, previously noted , prepared and served a supple- mental report. Therein, the Regional Director noted that his investigation of Complainant Union's election objec- tions had disclosed some testimonial conflict, with respect to various courses of conduct which Complainant Union had charged to Respondent's management representatives. Since these conflicts - so the Regional Director declared - had raised "substantial and material issues of fact" which a hearing could best resolve, he renewed his recommendation that such a hearing with respect to objections be conducted, consolidated with the hearing previously scheduled for General Counsel's com- plaint case. Shortly thereafter, Respondent's counsel, noting that his formal exceptions with regard to the Regional Director's first report on objections had supposedly been referred to the Board for consideration , questioned the Regional Director's legal right, subsequently, to prepare and serve a supplemental report. By return mail, the Board's Associate Executive Secretary notified Respond- ent's counsel, however, that the Regional Director's procedure - specifically, his determination to issue a sup- plemental report - was consistent with Board practice, and that Respondent would be given time within which to file renewed exceptions with respect thereto. (Meanwhile, Respondent's motion for a bill of particulars with respect to General Counsel's complaint, herein, had been denied.) On April 29, Respondent filed exceptions to the Re- gional Director's supplemental report on Complainant Union's objections. Therein, Respondent's counsel: (a) Challenged the Regional Director's presumptive treat- ment of Respondent's first formal exceptions as constitut- ing a motion , directed to him , for reconsideration; (b) questioned the fairness and impartiality of the Regional Director's further investigation; (c) protested the scope of the Regional Director's supplemental report , with par- ticular reference to that document 's specific treatment of matters not previously detailed within Complainant Union's objections; and (d) challenged the Regional Director's failure to detail within his report the specific "evidence" which purportedly had "indicated" that a supposed spokesman for Respondent 's management, Donald Lawler , possessed certain statutory indicia of su- pervisory status. Counsel for Respondent prayed, there- fore: (a) That the Regional Director's supplemental re- port be set aside, and that Complainant Union's prior election objections be dismissed ; and (b) that certain mat- ters specified within the supplemental report be dismissed and stricken, since the Regional 'Director could not properly have considered them within the scope of Com- plainant Union's election objections "because they are not specified in said objections and properly, reasonably or fairly stated in said objections." Alternatively, Respondent requested a separate hearing on Complainant Union's objections, limited to those particular matters, detailed within the Regional Director's supplemental re- port, which Complainant Union had previously specified. On June 7, Respondent filed a supplemental motion for a bill of particulars with respect to General Counsel's complaint ; this motion was , subsequently, referred to me, for disposition. On June 9 the Board issued its Decision and Order with respect to Complainant Union 's election objections. Therein, the Board noted concurrence with the Regional Director's double recommendation that a hearing should be held on Complainant Union 's objections , and that such hearing should be consolidated with the complaint case hearing previously scheduled. The Board rejected Respondent's contention - initially proffered within the firm's first set of exceptions - that a consolidated hearing would be prejudicial since General Counsel would therein be permitted to litigate , purportedly within the conceptual framework of Complainant Union's prior representation case, matters which that organization had never specifically challenged as sufficient to warrant vacating the questioned December 1 election results. With respect thereto , the Board's Decision noted , merely, that: Under applicable procedures, the parties may request Board review of any ruling by the Trial Ex- aminer or the Hearing Officer, as the case may be, in- THE FLUOROCARBON COMPANY eluding his findings, conclusions, and recommenda- tions with respect to the objections. More particularly, the Board directed a hearing to resolve "the issues raised by Petitioner's objections" such hear- ing to be consolidated with the scheduled hearing in General Counsel's complaint case. The Consolidated Matter On June 10, consistently with the Board's direction, the Regional Director consolidated the representation and complaint cases herein; further, he directed a con- solidated hearing. And, pursuant to notice, this hearing - with respect to questions presented in both cases - was held in San Francisco, California, on various dates between June 15 and 29, 1966, before me. The General Counsel and Respondent were represented by counsel; Complainant Union was present through a Grand Lodge representative. Each party was afforded a full opportuni- ty to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. (The parties have filed a joint motion to correct transcript herein. My own record review has revealed some further mistranscriptions which, within my view, require cor- rection to make the record more understandable. These corrections, which I will direct, will be set forth within an appendix [omitted from publication] to this Decision.) Since the hearing's close, briefs have been received from General Counsel and Respondent's counsel; these briefs, which I have found thoroughly competent and closely reasoned, have been duly considered. Upon the entire testimonial record, documentary evidence received, and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Throughout the period with which this case is con- cerned, Respondent has been a California corporation, with places of business in Anaheim and Palo Alto, California; Pine Brook, New Jersey; and Phoenix, Arizona. 'Within these various facilities, Respondent is engaged in the processing and manufacture of rubber, plastic, and teflon products. The present case concerns Respondent's Palo Alto facility, solely. (While the hear- ing was in progress, Respondent's counsel reported that plans were being made to move Respondent's Palo Alto facility to Mountain View, the next southernmost subur- ban community; presumably, Respondent's facility, thus relocated - should such a relocation be verified, hereinafter, for the record - would not merit designation as truly :'new" but would constitute merely a continua- tion of the firm's Palo Alto operation.) During the 12-month period which preceded the com- plaint's issuance, Respondent's two California operations received more than $50,000 from sales or services rendered to other firms within California, including United Airlines, Standard Oil of California, and Shell Chemical Company; each of these latter firms, in turn, either purchased and received goods and materials, valued in excess of $50,000 annually, directly from out- of-State points, or received more than $50,000 annually, for sales or services rendered to persons located outside the State of California. Further, during the same period, Respondent purchased and received goods and materials 631 in California, valued in excess of $50,000, which had been shipped directly to Respondent from out-of-State suppliers, or from suppliers within the State who had ob- tained such goods and materials directly from out-of- State points. During the period in question, likewise, Respondent received more than $50,000 from the sale of goods or services directly to out-of-State customers. Upon the complaint's jurisdictional allegations, which are conceded to be factually correct, I find that Respond- ent is now and at all times material has been an em- ployer within the meaning of Section 2(2) of the Act, en- gaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended. With due regard for the jurisdic- tional standards which the Board presently applies - see Siemons Mailing Service, 122 NLRB 81, and related cases - I find assertion of the Board's jurisdiction in this case warranted and necessary to effectuate statutory ob- jectives. II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93, designated as Complainant Union within this Decision, is a labor or- ganization within the meaning of Section 2(5) of the Act, as amended, which represents certain of Respondent's employees for collective-bargaining purposes. III. THE UNFAIR LABOR PRACTICES A. Issues Save for certain procedural contentions proffered in Respondent's behalf- which I propose to consider should their disposition become necessary hereinafter - these consolidated cases present several relatively conven- tional questions regarding the scope of this Board's so- called Bernel Foam doctrine. Bernel Foam Products Co., Inc., 146 NLRB 1277; Irving Air Chute Company, Inc., Marathon Division, 149 NLRB 627. Specifically, deter- minations would seem to be required with respect to the following matters: 1. Whether various management spokesmen, follow- ing notice with respect to Complainant Union's petition for certification, interfered with, restrained, or coerced Respondent's Palo Alto workers through: (a) Questions regarding their union membership, and their knowledge of their fellow workers' union sympathies; (b) threats that Respondent's Palo Alto facility would be closed, or that certain work previously done therein would be subcon- tracted, because of Complainant Union's campaign for representative status; (c) statements that Respondent's regular hours of work would be reduced, or that workers would no longer be permitted to work overtime, because of their professed desire for unionization; and (d) sug- gestions, proffered I day before the scheduled consent- election date, that Respondent's management possessed information, presumptively gleaned through surveillance, regarding its Palo Alto workers' union sympathies, that Respondent's workers could create a local grievance committee to communicate with Respondent's manage- ment, and that certain working conditions might be im- proved should they refrain from designating Complainant Union their collective-bargaining representative. 2. Whether Respondent's management - during a period between the firm's receipt of notice regarding 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Complainant Union's petition and the subsequently scheduled consent-election date -discriminated against workers within its Palo Alto facility, contrary to statutory requirements , by subcontracting with other firms for cer- tain work which those workers had previously done, by reducing their regular hours of work, and by depriving them of previously granted chances to work overtime. 3. Whether Respondent's management - following the firm's receipt of notice regarding Complainant Union's claim to represent Respondent's Palo Alto workers, within a unit appropriate for collective-bargaining pur- poses - refused to bargain, contrary to statutory require- ments, by (a) refusing to recognize and deal with Com- plainant Union as such workers' designated representa- tive, and (b) modifying their working terms and condi- tions, with respect to matters previously noted, uni- laterally and without giving Complainant Union an op- portunity to bargain thereon. With respect to these questions, Respondent contends: First, that General Counsel has failed to sustain any por- tion of his case by a preponderance of the credible evidence; second, that various statements purportedly chargeable to company spokesmen should not be con- sidered, within their relevant context, violative of statuto- ry proscriptions; third, that management's course of con- duct should not, in any event, be considered a so-called "consistent and flagrant pattern of unlawful conduct" suf- ficient to warrant a Board bargaining order, under the Board's current Bernel Foam decisional doctrine. B. Facts 1. Complainant Union's organizational campaign On October 11, 1965, Kent Arnold, Complainant Dis- trict Lodge's organizer, met with three of Respondent's machinists, Dave Bowden, Dick Singleton, and Leonard Singleton; following a brief discussion with respect to those steps which would be required before that organiza- tion could claim representative status at Respondent's Palo Alto facility, the three men signed cards which authorized Complainant Union's parent body to represent them for collective-bargaining purposes. The machinists were provided with a small supply of blank designation cards, and were requested to have other workers in Respondent's employ sign them. (The record warrants a determination that the three men were told their cards would be submitted to the Board, and that Complainant Union would petition for a representation election; they were further told, however, that Complain- ant Union would promptly dispatch a letter to Respond- ent's local manager, requesting recognition and offering to prove Complainant Union's majority status through a card check.) The two Singletons did procure signed designation cards from other workers; by October 12, eight of Respondent's workers within the bargaining group previously designated had signed such cards. (Respondent, during the hearing-when requested to provide data from which a determination could be made regarding the number of production and maintenance workers on the firm's payroll on Friday, October 15, the day after Complainant Union's demand for recogni- tion was received-proffered a list containing 15 names. The record warrants a determination, however, that this list contained the name of one person, Donald Lawler, whom Complainant Union and General Coun- sel both would consider a supervisor. The list, fur- ther, designated four men-John Deckard, Les- lie Wise, Edmun Lawler, and Lynn Clark-clearly shown to have been part-time workers. These four men - with varying periods of prior service as temporary part-time workers in Respondent's hire - had been en- gaged for a specific job, and had all been terminated on October 13 or 14, respectively. They had not shared the working conditions of Respondent's regular full-time plant workers. When the Board's consent election, previ- ously noted, was subsequently held, Respondent designated none of them eligible voters. Under these cir- cumstances, General Counsel contends that Donald Lawler should be considered excluded from the workers' group with which this case is concerned because of his su- pervisory status, and that Deckard, Wise, Edmun Lawler, and Clark should be, likewise, excluded therefrom as casual workers. See Haag Drug Co., 146 NLRB 798, 800; cf. Recipe Foods, 145 NLRB 924. With these dele- tions - which Respondent does not seriously contest, save in Donald Lawler's case - determination would be warranted that the production and maintenance group ap- propriate for collective-barganing purposes at Respond- ent's plant- during the second week of October 1965, specifically-comprised no more than 10 workers. Questions which have been herein raised by Respond- ent's counsel with respect to Complainant Union's majority designation, however, will be discussed later, should such discussion prove necessary, within the Deci- sion.) By the evening of October 12, Leonard Singleton had returned these signed cards to Complainant Union's or- ganizer. With a registered letter, dispatched some time the following day, Arnold notified Respondent that Com- plainant Union represented a majority of the firm's Palo Alto production and maintenance workers; he offered to prove Complainant Union's majority status through a card check conducted by some disinterested third party. Further, Respondent was requested to recognize and bar- gain with Complainant Union, for the purpose of negotiating a collective-bargaining contract. Respondent received the letter in question on October 14; Complainant Union's postal return receipt so shows. The record, however, would seem to warrant a deter- mination that - for reasons not herein specified - the letter did not come to the personal attention of Robert Goforth, Respondent's Palo Alto manager, before late af- ternoon of the following day. I so find. Within a context of concurrent developments, which will be detailed further herein, Respondent vouchsafed Complainant Union no direct reply. Shortly after Arnold's October 13 letter was dispatched, Grand Lodge Representative Byrnes, of Complainant Union's parent body, filed the petition for certification previously noted. It was docketed as filed on October 15 by the Board' s Regional Office staff. Formal notice with respect to the petition's pendency, together with a copy of the document in question , was promptly sent to Respondent's plant; the record warrants a deter- mination that such notice was received the following day. 2. Respondent's reaction to Complainant Union's peti- tion a. October 16 interrogation Some time during the morning of Saturday, October 16, pursuant to directions contained within the Regional THE FLUOROCARBON COMPANY Office's covering letter, Plant Manager Goforth posted a transmitted copy of Complainant Union's petition on the shop wall, within an area where notices to plant workers are customarily posted. He was observed by Dick Singleton and Bowden, who had reported to complete some overtime work. (The wall on which Goforth posted Complainant Union's petition was one of two fixed walls which formed a corner within the production portion of Respondent's plant. This corner space, which contained a desk and chair, together with several nearby metal files and tool cabinets, was further separated from Respond- ent's principal plant production floor by a wood and glass partition, less than ceiling high, which marked its third side. The record reveals testimonial conflict regard- ing this three-quarter enclosed space's proper and custo- mary designation. General Counsel's witnesses testified that it was commonly considered Donald Lawler's "of- fice" within the plant; Plant Manager Goforth testified that it was really nothing more than a storage area for blueprints, machine parts, and handtools, within which Lawler might sometimes do paperwork. The significance of this testimonial conflict will be discussed, further, within this Decision.) While posting the petition form, or shortly thereafter, Goforth had a short conversation with both Singleton and Bowden. Their respective testimonial recitals regarding that conversation, however, reveal a significant conflict, which must now be resolved. (1) General Counsel's version Synthesized, the testimony of Dick Singleton and Bow- den would warrant a determination that Goforth - when he saw them returning to work from lunch - requested them to join him within the plant "office" where he first asked whether they knew anything about either Complai- nant Union's request for recognition or the petition for certification. Both denied knowledge with respect to these matters. Goforth then asked whether they had ever belonged to any union, or if they knew of other employees who belonged to a union. Singleton and Bowden, so Dick Singleton testified, named some workers who had be- longed, to their knowledge, but declared that none of Respondent's workers, so far as they knew, held current union membership. Goforth, purportedly, declared his personal dislike for unions, declaring that while he was a college student he had been required to pay dues while holding part-time work; and further that he had been "bumped off the job" because he had refused to join the union concerned. According to Bowden, he declared, finally, that, "Well, no G- D- union is going to come in here," and that he would fight it all the way. (2) Respondent's version Regarding this conversation, Plant Manager Goforth testified that Dick Singleton and Bowden joined him voluntarily, while he was posting the petition. They were told that Respondent had received a request for recogni- tion from Complainant Union the previous day; that a copy of Complainant Union's NLRB petition had just been received; that it appeared Respondent would have to go through a representation election, and that he knew nothing more. Goforth conceded that he had asked Singleton and Bowden whether they knew what "this" meant, and that they had disclaimed any knowledge re- garding the matter. Respondent's plant manager - so he testified - had then declared that Respondent felt it would 633 rather operate without unionization, were it given a choice, but that the firm would be willing to go ahead with an election to determine the matter. Goforth concededly added that when he had been a college student he had had a few "bad experiences" with unions from his personal standpoint, and that he felt Respondent would be better off working without one. According to Respondent's plant manager, some tangential remarks by Singleton closed their conversation. (3) Credibility questions Both witnesses for General Counsel testified forthrightly, with patent sincerity and personal con- fidence in the correctness and completeness of their respective recollections. Review of the record has con- vinced me, however, that their recollections were, really, somewhat divergent; such recollections, further, may well have been colored by rationalization. For example: Dick Singleton first testified that he saw Complainant Union's letter to Respondent posted on the plant "office wall on October 16. During cross-examination, however, Singleton declared that the document which he had seen posted was a copy of Complainant Union's NLRB peti- tion form; then he testified that he could not be sure whether the document posted was Complainant Union's initial letter or a copy of its petition. When shown a photostatic copy of Complainant Union's recognition letter, which had previously been proffered for the record, Singleton could not recollect having seen it. Bow- den's testimony, with respect to Respondent's posting, likewise reflected self-contradiction. First, he testified that he had not seen a copy of Complainant Union's letter to Respondent; he called the posted document an NLRB communication and declared that it had been posted on Thursday, October 14. Then he purportedly recalled that on Saturday, October 16,' when he and Dick Singleton were returning from lunch, they observed Goforth within the plant "office" with someone else - never named - en- gaged in posting a second letter. When requested to recall what this letter said, Bowden made a try, but quickly con- fessed that he was "really very hazy" with respect to the document's content "because we knew what it was." The logic behind this purported rationale was never explained. (The physical appearance of Complainant Union's Oc- tober 13 letter, which Respondent later produced for the record, warrants a determination - consistent with Goforth's testimony - that it was never posted.) Both Singleton and Bowden testified that Goforth had questioned them regarding their knowledge of matters disclosed within the document being posted; both re- ported that they had disclaimed knowledge with respect thereto. Only Singleton, however, went on to testify that Goforth had then queried them regarding their past union membership, or the past union membership of their fellow workers. (His further testimony that, when so queried, "we told him of the ones ... that we knew had belonged" would certainly seem to merit scepticism, particularly when conjoined with his further testimony that Goforth's queries had been parried with remarks clearly, calculated to generate a belief that Bowden and he really lacked rele- vant knowledge regarding Complainant Union's or- ganizational campaign.) Finally, Singleton's, testimony varied from Bowden's, regarding the substance of Goforth's purported personal reminiscence. Singleton recollected Goforth's dislike for unions as reportedly bot- tomed upon some union's requirement that he pay dues, 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD while in college, when hired to perform part-time work; Bowden, however, professed to recall comments by Respondent's plant manager that he had been completely deprived of work because he "wouldn't join" the union concerned. Within his brief, General Counsel concedes that Goforth's personal appearance, while a witness, was "im- pressive" and that his demeanor alone would provide no basis for rejecting his testimony. Nevertheless, the con- tention is proffered that, with due regard for the cold record, Goforth's recital should be considered "untrust- worthy" because his testimony, taken as a whole, failed to comport - in several respects - with clearly credible testimony proffered by disinterested perspns and Respondent's own witnesses. With respect to the specific conversation now in question, however, the plant manager's testimonial recollections were clear cut, con- sistent, plausible. Had General Counsel's witnesses proffered substantially consistent recitals, without patent lapses of memory, my task with respect to determining their credibility would concededly have been difficult. Some reference to their total testimonial presentation, compared with Goforth's total presentation - both con- sidered with due regard for the whole record - might then have been required. With specific reference to October 16, however, Singleton and Bowden proffered testimony which - because of their varied recollections - fails to per- suade. Goforth's version of their conversation, I find, merits credence. b. Subsequent interrogation and threats of reprisal On Monday, October 18, Respondent's plant manager, so he credibly testified, telephoned Respondent's pre- sident, Peter Churm, at the firm's Anaheim, California, facility. Churm was told about Complainant Union's peti- tion; his suggestions were requested. Respondent's pre- sident told Goforth to seek advice from the Merchants and Manufacturers Association in Los Angeles; Respond- ent's Palo Alto manager was told that the firm had sought help from that organization when faced with a union campaign within its Anaheim plant. (The record warrants a determination that, pursuant to Churm's direction, Goforth did communicate with some Merchants and Manufacturers representative; he was ad- vised to discuss Respondent's problem with a San Fran- cisco trade group, and to retain local counsel. This, so the record shows, he subsequently did.) Promptly thereafter, so General Counsel contends, Respondent purportedly "launched its antiunion campaign" calculated to counter and subvert Complainant Union's representation claims. Respondent's plant manager, however, does not seem, on the surface, to have played a prominent role. Testimony proffered in General Counsel's behalf - prin- cipally by Dick Singleton, Leonard Singleton, and Bow- den, previously noted - would warrant a determination, should it be found worthy of credence, that Donald Lawler, functioning as Respondent's plant foreman and production manager, rather than Goforth himself, mounted a sustained campaign reasonably calculated to forestall unionization. Since the record, with respect to Lawler's purported statements and conduct, reveals sharp conflict, clarity in presentation would, once more, seem to require separate statements for each version. (1) General Counsel's case The composite testimony, proffered in General Coun- sel's behalf, would warrant a determination - should it be found worthy of credit - that Lawler told Dick Singleton, sometime on October 18, and at various times thereafter: (a) That the firm's Anaheim management had been told of developments; (b) that Respondent would not permit the plant's unionization; and (c) that President Churm and chairman of the board, George Angle, had, indeed, said they would close the plant rather than accept unionization. Lawler purportedly informed Singleton, further, that Respondent was cutting out overtime hours, subcontracting all work, closing the plant, shipping the plant's machinery to Anaheim by Friday (October 22), and reducing its Palo Alto facility to a three-man opera- tion, none of whom would be production workers. Lawler, so Singleton testified, further declared that Plant Manager Goforth was "madder than hell" over Complai- nant Union's campaign; the firm's "production manager" was reported to have said that Respondent's plant manager had subcontracted a large order, which Respond- ent had just received to a competitor even though the order in question called for work which the Palo Alto facility's employees could have performed. The following day, October 19, Lawler purportedly repeated his prior comment to Singleton that the firm's machinery would be shipped to Anaheim, and that the Palo Alto facility would be closed. Bowden, present within hearing distance, thereupon told Lawler, so Dick Singleton testified, that he did not believe the stockholders would permit the plant's closure; Lawler, purportedly, replied, "Do you want to bet?" following which he repeated his statement that the plant would be closed, and the firm's production workers terminated. (Dick Singleton testified that these threats were repeated frequently, throughout a 2-week period, up to Friday, October 29, specifically.) According to Bowden, Donald Lawler was concur- rently telling him, likewise, that Goforth had said the Palo Alto facility would be closed, and that the machinery would be sent to Anaheim. Bowden was also told, so he testified, that Respondent had sent various orders, calling for work which normally would have been handled within the Palo Alto plant, both to Anaheim headquarters and to other San Francisco Bay Area firms. Purportedly, Lawler had commented, "You guys can see what you brought on yourself by bringing that union in" following his last- noted remarks. (During the October 18-23 week within which these statements were purportedly made, Respond- ent's plant was visited by someone connected with an in- surance rating bureau, charged with responsibility to check the safety of the plant's machinery and physical facilities for Respondent's workmen's compensation in- surance carrier. The checker, accompanied by Donald Lawler, went from machine to machine, making notes as he went. Respondent's management representatives, so the record shows, proffered no explanation for the checker's presence, or his function within the plant. General Counsel contends that Respondent's plant wor- kers had been given reason to believe, because of Lawler's prior comments, that this plant visit was related to their firm's program of plant closure and machinery removal; since management representatives - though pre- sumptively cognizant of their workers' concern regarding the prospect of plant closure - took no steps to reduce or remove whatever fears the checker's visit might reasonably have generated or fostered, General Counsel THE FLUOROCARBON COMPANY 635 contends that - through their silence - they knowingly permitted this fortuitous circumstance to buttress Lawler's repeated statements. The contention will be discussed further, should such discussion prove neces- sary, within this Decision.) On or about October 19, so Dick Singleton testified, Lawler sought to learn the names of Complainant Union's principal plant support- ers, and queried him regarding the reason for their union activity. According to Leonard Singleton's testimony, Lawler, some time during the week now in question, accused him of being the "instigator" of Complainant Union's or- ganizational drive. Further, Singleton testified, he was likewise told that Respondent planned to close its shop, crate the machinery, ship it to Anaheim, and then, "job out" the work. When Singleton told Lawler that he thought Respondent could not lawfully do so, the latter purportedly replied, "Well, you'll see." On about October 20, Dick Singleton complained to Lawler that it was unfair for Respondent to lay off women plant workers because they had signed union designation cards. (Respondent's payroll record shows that Rose Guarnera, one of the firm's two women workers, who had, in fact, signed a union designation card, had been laid off October 19 for 4 hours. General Counsel contends the record will support a determination that no lawful economic reason justified heir layoff, since there was a large order to be shipped on which she normally would have worked, and since a further order which normally would have kept her busy was sent to Respondent's Anaheim plant.) Lawler, so Dick Singleton testified, did not deny that Guarnera's challenged layoff was for such a proscribed reason; he merely declared that her layoff had been effectuated pursuant to Goforth's decision. At the same time, approximately, Goforth told Re- spondent's plant workers that there would be a cutback with respect to their regular working hours, calculated to reduce or eliminate their overtime work. (The record warrants a determination that Respondent's plant mana- ger first promulgated a work schedule calculated to permit no more than 8-1/2 hours of work per day, for a 42-1/2- hour workweek. Subsequently, so the record shows, the length of Respondent's regular workday was still further reduced.) Lawler purportedly told -Dick Singleton, specifically, that there would be no further overtime work since Respondent was "farming out" some orders. When Singleton, according to his testimony, questioned the financial wisdom of such practices, Lawler declared that Respondent could still make a profit from subcontracted work. (2) Respondent's denial and counter presentation While a witness, Donald Lawler testified that his first knowledge regarding Complainant Union's petition derived from his viewing the posted document on Mon- day, October 18; that he had had no prior conversations with Respondent's plant manager regarding the matter. He categorically denied thereafter making the threatening statements charged; further, he denied having had any conversations with either Dick Singleton, Leonard Singleton, Bowden, or plant workers generally, during which he had made any effort to learn the names or number of union supporters, or their putative reasons for supporting Complainant Union herein. He specifically denied charging Leonard Singleton with being the "in- stigator" of Complainant Union's campaign. Though he conceded his awareness of the fact that various plant workers had frequently discussed the pros and cons of unionization and the prospects of company reprisal, while on coffeebreaks and lunchtime, during the several weeks which directly followed Goforth's posting of Complai- nant Union's petition, Lawler testified that his participa- tion in conversations deriving from such discussions had been limited to no more than two occasions. Once, when returning to work following a morning coffeebreak, so he testified, he had been asked, by some one of several workers still drinking coffee, to comment regarding the possibility that Respondent would crate its machinery, ship it to Anaheim, and close its Palo Alto facility. Lawler had merely replied-so he testified-that he "wouldn't blame" the firm's management, should they do so. On another occasion, which Lawler placed at the close of the day on Friday, October 22, Dave Bowden, so he testified, had asked him, with two other workers present, whether they should come to work the Monday following. When Lawler supposedly replied, "As far as I know. [W jhy?" he was told, "We have heard everything is going to be crated up and shipped to Anaheim." He had referred his questioner, so he said, to Respondent's plant manager. (Beyond this proffered testimony, Respondent contends: (1) that Lawler was not a supervisor; (2) that management, whether or not he was a supervisor, cannot be held legally responsible for his statements; and (3) that whatever statements he may have made, violative of statutory requirements, were disavowed promptly, when Plant Manager Goforth heard of them. These contentions will be discussed, further, within this Decision.) Respondent's plant manager did not deny the declara- tion charged to him, that Respondent's regular work hours would be reduced, concurrently with a reduction of overtime work. Nor did he deny that - for a period of time following Respondent's receipt of notice regarding Com- plainant Union's petition - overtime work was almost completely eliminated, and compensable time for plant workers substantially reduced. Goforth contended, mere- ly, that his conceded pronouncements in this connection were dictated by Respondent's lack of work sufficient to keep the firm's Palo Alto facility busy with overtime work; further he testified that this justification for his several pronouncements - successively directed to vari- ous segments of Respondent's plant crew - was men- tioned when those pronouncements were made. (3) Credibility questions With matters in this posture, we confront, for the second time, some serious credibility questions. Their resolution has been fraught with considerable difficulty. Determinations by triers of fact, with respect to credibili- ty, must necessarily rest upon their considered judgment with respect to more than one factor within the case presented for decision. See Casa Grande Cotton Oil Mill, 110 NLRB 1834, 1845-46, for some general discussion. Still, with relevant factors in mind - so far as they may be revealed within a particular record - honest dispositions with respect to credibility problems cannot be facilely reached. However dispassionate triers of fact may wish to be, and however carefully they may try to discover what really happened, they cannot consider themselves divinely ordained to pronounce the truth. Their deter- minations, so my colleague, Trial Examiner Leedom, has put it, merely "stand in" for the facts. Reasonable men may, therefore, differ, both with respect to particular 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD credibility resolutions, and with respect to determinations as to where the testimonial preponderance lies. Triers of fact can but use their best judgment. The present record, considered in totality, constrains me to conclude - somewhat diffidently, perhaps, but with requisite finality, nevertheless - that General Counsel's presentation, with respect to this portion of his case, will not support his factual contentions. Statutory requirements, buttressed with judicial con- currence, require the Board's Trial Examiners to detail not only their factual findings and conclusions, but likewise their reasons for reaching such findings and con- clusions. General Counsel and Respondent herein, there- fore, both have a right to know the thought processes which have dictated my disposition of some patent record contradictions. So far as they can be specified, some of the factors which have molded my judgment may be detailed as follows: (a) General Counsel contends that Donald Lawler, considered a member of Respondent's supervisory hierachy for present purposes merely, revealed a patent desire to testify consistently with Respondent's presumed interest, rather than truthfully; he (General Counsel) would have me reach this conclusion inter alia, because Lawler had to be reminded, frequently, to raise his voice so that he could be heard. This may have been true. Credibility determinations, however, should not be based merely upon some "rule of thumb" deduction that wit- nesses who speak with diffidence necessarily do so because of guilty knowledge that their testimony reflects something less than the truth. Lawler, concededly a well- qualified, perhaps even a gifted, machinist, did not strike me as restrained by feelings of guilt; rather, he seemed somewhat soft spoken and reticent when required to deal with or discuss matters not really within the sphere of his technical competence. Persons so disposed, within my view, would hardly have been "likely" themselves to commence or maintain a vigorous antiunion campaign without some prior suggestion, or guidance from superi- ors. Nothing in the present record, however, would war- rant a definitive determination that Lawler's purported threats of plant closure either paralleled, or derived from, comparable statements or conduct chargeable to Re- spondent's higher management. (b) Plant Manager Goforth, generally, presented a wit- ness chair picture of balance, relative sophistication, and self-control. Though I find it conceivable, certainly, that he may have been rendered "madder than hell" when confronted with Complainant Union's petition, nothing in the record beyond mere suspicion will support a factual determination that he gave Lawler permission or direction - verbally, or through the power of example - to counterattack with threats of reprisal. The plant manager's testimony, proffered without contradiction, and not inherently lacking in persuasive power, reveals that, when notified of Complainant Union's petition, he promptly sought to confer with superiors. President Churm advised him to seek knowledgeable help; he did so without undue delay and was referred to legal counsel. People who propose to proceed thus responsibly, when confronted with challenging situations, would hardly be likely to compromise themselves by concurrently sanc- tioning or validating reckless pronouncements or reflex- ive conduct bottomed upon their so-called "gut" reac- tions. (c) In short, Goforth's disciplined reaction to Com- plainant Union's petition for certification persuades me, with due regard for the logic of probability, that he would not have been likely to sanction a counter campaign bot- tomed largely upon blatant threats. And Lawler, so far as I can tell - with due regard for both his witness chair demeanor and his testimony's general tenor - would not have been likely to mount such a campaign without Goforth's direction or guidance. (d) Further, General Counsel's presentation would support a determination that Lawler's purported cam- paign of threats had been directed to his fellow jour- neymen machinists, Dick Singleton, Leonard Singleton, and Bowden, solely. Nothing in the record, beyond mere suspicion, would warrant a finding that such threats had been voiced before other plant workers. General Counsel presented but one more worker witness; this witness, Richard Anderson, testified definitively, however, that Lawler had made no prophecies of plant closure, or threats that work would be subcontracted, to him directly or within his presence. (To the contrary, Anderson declared that he had heard definitive forecasts with respect to plant closure, rather, from Dave Bowden and both Singletons; they had charged Donald Lawler with responsibility for making statements in that regard. An- derson testified, during cross-examination, that he had heard Respondent's journeymen machinists make such statements several times.) Had Lawler, really, been determined to forestall Complainant Union's majority designation, with blatant threats of plant closure, he would hardly have been likely to limit such comments to three fellow journeymen. Their testimony, should it be considered credible, would support a determination that they had received his several dire forecasts with scepti- cism. Surely, a determined prophet of doom, confronted with disbelief, would have sought more suggestible listeners. General Counsel, however, did not, perhaps could not, proffer testimony that Respondent's lesser skilled production and maintenance workers, generally, were directly threatened; the record's silence in this respect has contributed to my determination that the testimony of Dick Singleton, Leonard Singleton, and Bowden, with respect to the matter now in question, can- not realistically be considered persuasive. (e) General Counsel's witnesses proffered testimony that Lawler, when prognosticating plant closure, designated Friday, October 22, as the facility's final day. Nothing, however, happened. Without some record justification for a determination that Respondent had, really, taken steps looking toward a shutdown for its Palo Alto facility, within 1 week following the firm's receipt of notice with respect to Complainant Union's petition, General Counsel's presentation in this respect strains credulity; I find it difficult to believe that Lawler would have publicly professed personal knowledge regarding a definitely set, not too distant, date for plant closure, while necessarily aware that such a date's passage, without event, would clearly reveal him to be a prophet not worthy of honour. (f) Respondent's further presentation with respect to certain subsequent developments - proffered without record contradiction - likewise tends to generate doubts regarding General Counsel's case. Plant Manager Goforth's testimony, given with documentary support, warrants a determination that, on Sunday, November 14, following Respondent's concurrence with the consent election stipulation previously noted, both Singletons and Bowden sought a conference at Goforth's home, during which they first detailed various plant grievances, and THE FLUOROCARBON COMPANY 637 finally mentioned, inter alia, Lawler's purported threats of plant closure and discharge. Respondent's plant manager, so his testimony shows, first requested details, but none were provided. Then, Goforth professed doubt that Lawler had really made the statements charged; he did promise to check the various complaints made, in- cluding Lawler's purported statements, but categorically declared, then and there, that Respondent had no plans whatever to close its Palo Alto facility, despite any state- ments Lawler may have made. (On November 19, thereafter, Goforth posted a bulletin - so the record shows - wherein Respondent's workers were reassured that the firm "will not close this plant or take any reprisals against any employees" because of their union activity, or because they might vote for union representation. Respondent denied any purpose to "make any threats or promises" calculated to induce workers to vote for or against unionization. The workers were told, further, that Lawler did not speak for Respondent's management, which disclaimed responsibility for his views. The bul- letin declared, "We specifically disavow anything which Mr. Lawler said, or may have said, indicating, or suggest- ing, directly or indirectly, that the management of this Company would close the plant or take any reprisals against any employees because of their union activity." [Emphasis supplied.]) When previously proffered as General Counsel's witnesses, neither Dick Singleton, Leonard Singleton, nor Bowden had testified regarding any November conference with Plant Manager Goforth, or Respondent's subsequent "disavowal" bulletin. Nor were they questioned, during cross-examination, with respect to these matters. Following Respondent's defen- sive presentation, however, they were not recalled for rebuttal. With matters in this posture, then, two possible conclusions might be considered warranted: (1) Respond- ent's defensive presentation may have taken General Counsel by surprise. If so, then the presumptive failure of both Singletons and Bowden to mention their November conference and Plant Manager Goforth's reaction previ- ously - when they were queried during the Regional Of- fice's precomplaint investigation - would surely warrant present doubts with respect to their reliability; (2) General Counsel may have been completely knowledgea- ble with respect to the matter in question, but may have chosen to refrain from anticipating Respondent's defense, while reserving for possible rebuttal the testimony which his three witnesses could have given. If so, his sub- sequent failure to proffer such rebuttal testimony would clearly seem to warrant a determination that Respond- ent's defensive presentation, noted, substantially matched the factual recollection of General Counsel's witnesses, jointly and severally. Goforth's testimony, therefore - with respect to the November conference in question - may be taken as true. His prompt disclaimer of knowledge regarding Lawler's purported statements, cou- pled with his declared readiness to disavow such state- ments should he find they were made, though clearly self- serving, does provide some post hoc collateral support for a determination that Lawler's purported threats were never really made, let alone sanctioned; Goforth would hardly have been quite so quick to cut the ground from under a trusted subordinate, if that subordinate had, to his knowledge, been making statements consistent with com- pany policy. (g) Reference has been made to Richard Anderson's testimony that Dick Singleton, Leonard Singleton, and Bowden had made repeated public references to Donald Lawler's purported forecasts regarding plant closure. An- derson's testimony in this respect which I credit, dovetails with that which Lawler provided. I find it strange that Complainant Union's principal protagonists within Respondent's plant would, seemingly, have made it their business to disseminate or publicize purported statements reasonably calculated to dampen prounion sentiment. Though reluctant to conclude that Respond- ent's three journeymen machinists were committed to some calculated ploy - whereby their fellow workers could, for some reason, be persuaded that firm manage- ment was desperately trying to forestall plant unioniza- tion - I find their course of conduct markedly divergent from conventional patterns of prounion behavior. Such a departure from customary norms, certainly, might well warrant some "suspicion" that Dick Singleton, Leonard Singleton, and Bowden had deliberately charged Donald Lawler with responsibility for particular threats, without factual justification, so that, like strawmen, such pur- ported threats could be subsequently demolished. (h) General Counsel would have me discredit Plant Manager Goforth's testimony, further, save where it reflects some declaration against Respondent's interest. The suggestion is proffered that Goforth's purported recollections, regarding certain specified matters, reveal patent self-contradiction; further, reference is made to certain purported testimonial contradictions proffered by several of Respondent's witnesses. Since the plant manager's declarations, with respect to several further questions raised within the complaint, may well be cru- cial, some consideration of General Counsel's challenge with respect to his credibility would seem required. The record, however, fails to persuade me - when reviewed in totality - that Goforth's testimony, with respect to material matters, should be considered substantially com- promised. (In his brief, General Counsel has cited one purported self-contradiction by Respondent's plant manager, within his testimony regarding a conversation with one particular local subcontractor, Foster, whose testimony will be reviewed, further, within this Decision; considered within their total context, however, Goforth's recitals in this regard do not, really, reveal self-contradic- tion. Purportedly divergent testimony, proffered by Respondent's plant manager and the firm's apprentice machinist, Richard Anderson, with respect to whether Goforth had "known" Anderson before the latter started work, seems to reflect nothing more than semantic quibbling; Anderson testified that he had not known Goforth before he started work, though he had con- cededly seen Respondent's plant manager, while Goforth purportedly recollected that he had "met" Anderson previously, but declared that he had not really had "much opportunity to talk" with him. This testimonial diver- gence, within my view, may be dismissed as without sig- nificance. General Counsel, further, has cited testimony by Goforth that Donald Lawler did not recommend his brother, Edmun Lawler, for part-time hire; Lawler's testimony seemingly reflects a concession that he did "recommend" his brother's hire. Their purportedly diver- gent testimony in this respect, however, reflects nothing more, within my view, than their differing views with respect to the proper connotations of the word "recom- mend" when confronted with questions. Reference is made, within General Counsel's brief, to Goforth's testimony that Respondent subcontracted some work because it had no Palo Alto facilities for such work; General Counsel contends that Lawler's testimony 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reflects a direct contradiction. My record review, how- ever, has persuaded me that Lawler's purported con- tradiction was qualified ; though he testified - when questioned with regard to work subcontracted with a par- ticular subcontractor - that "all the work" sent out "could" have been done by Respondent's Palo Alto workers, he further stated that, "it would be much easier to send it out" sometimes. When queried whether any work "farmed out" during October-November 1965 was work which had been done previously by Respondent's Palo Alto workers, Lawler conceded that he did not really know, but that he did not "think" such work had been subcontracted. With matters in this posture, Lawler's purported contradiction of Respondent's plant manager can hardly be considered direct ; no real justification for challenging Goforth's credibility can, within my view, be found therein.) My record review does show - consistently with General Counsel's contention - that some testimony proffered by Respondent's President Churm did con- tradict Goforth's recollection, with respect to certain comments puportedly made by Churm during a preelec- tion speech. Further, Respondent's plant manager did testify, categorically, that Respondent's subcontracts with Bay Area firms were all memorialized within the firm's "purchase order" records, and that Respondent, throughout the period with which this case is concerned, had let no subcontracts verbally; this testimony, so the record conclusively shows, was not consistent with fact. Due consideration , however , has convinced me that these patent lapses merely reflect Goforth's possible over- sights, or particularized witness chair failures of recollec- tion, rather than a pattern of deliberate mendacity or con- ceivably suspect "zeal" directed single mindedly toward a denial of Respondent's participation in proscribed con- duct. General Counsel's contention , therefore, that Goforth's testimony should be discredited, generally, save where it reflects some declaration against Respond- ent's interest, lacks persuasive weight. With matters in this posture, General Counsel's several Section 8(a)(1) contentions , particularly those set forth within paragraph VI, subparagraphs (c), (d), (e), and (f) within his complaint, must be rejected ; they have not, within my view, been sustained by credible testimony. c. Reduction of working hours General Counsel further contends that, whether or not Plant Manager Goforth told Respondent's workers that their hours of work would be changed, and that they would no longer be permitted to work overtime hours, because of their union activity , he did , indeed, reduce regular hours and deprive Palo Alto production and main- tenance workers of previously routine overtime work op- portunities , because they had selected Complainant Union as their collective-bargaining representative. The record does show, consistently with General Counsel's contention, that regular hours of work for some of Respondent's Palo Alto workers were significantly reduced following Goforth's receipt of notice with respect to Complainant Union's petition. On Tuesday, October 19, Respondent's machinists were told that their working day would be limited to 8-1/2 hours, for a 42.50- hour workweek. And, subsequently, their regular work- ing hours were still further reduced. Respondent's payroll record - for a period which began 1 month before Com- plainant Union's petition, and terminated some 8 weeks following the consent-election date previously noted - does reveal some significant fluctuations . The relevant record may be summarized as follows: Weeks Ending 9/18 - 10/16 (Five Weeks) Name Classification Total Hours Average Weekly Hours D. Bowden Machinist 292.50 58.50 D. Singleton Machinist 284.00 56.80 L. Singleton Machinist 273.50 54. 70 R. Anderson Apprentice 145.00 36.25 M. Mabie Apprentice 192.00 38.40 J. Castell Spray Coater 240. 00 48.00 J. Killingsworth Gasket Cutter 148.50 29.70 C. Eason Production Worker 203.00 40.60 R. Guarnera Production Worker 158.50 39.63 D. Wallen Shipping and 229.00 45.80 Receiving * Divided by number of weeks worked as shown in brackets. WeeksEnding 10/23 - 12/4 (Seven Weeks) Name Classification Total ours° verage Weekly Hours D. Bowden Machinist 278.50 1/ 37.79 D. Singleton Machinist 230.00 M 38.33 L. Singleton Machinist 72.00 36.00 J. Trujillo Machinist 237.00 797 39.50 D. Skaggs Machinist 109.00 T3/' * 36.33 R. Anderson Apprentice 272.00 38.86 M. Mabie Apprentice 265.50 37.93 J. Castell Spray Coater 282.00 777 40,30 J. Killingsworth Gasket Cutter 214.00 30.60 C. Eason Production Worker 272.00 38.86 R. Guarnera Production Worker 262.00 37.43 D. Wallen Shipping and 286.50 Does 40.93 Receiving Divided by number of weeks worked as shown in brackets. o ° 5 hours paid at overtime rate. e o 0 9 hours paid at overtime rate. THE FLUOROCARBON COMPANY 639 Within the 8-week period which followed the full work- week within which the consent election was held Re- spondent had some labor turnover; company payroll rec- ords for this period, therefore, cannot be considered com- pletely comparable with those previously summarized. For whatever worth such data may have, however, some references thereto should be made. Following the week which ended Saturday, December 4, 1965, both Singletons resigned. D. Skaggs, machinist, who had worked for 2 weeks before the consent-election week, following his hire during the week which ended November 20, likewise quit. Following the next work- week which ended Saturday, December 11, machinist D. Bowden left; the services of M. Mabie, apprentice machinist, and J.Killingsworth, gasket cutter, were likewise, for various reasons not here relevant, ter- minated. (During the week which ended Saturday, December 18, shown on Respondent's payroll record as the week ending December 20, three new names ap- peared on Respondent's payroll; the record is silent, how- ever, with respect to precisely whom they replaced.) During the week which ended December 11, Respond- ent's two remaining machinists, Bowden and Trujillo, did work 50 and 53 hours, respectively; their work hours within the preceding December 4 week had totaled no more than 40 hours each. Significant jumps in total hours worked were likewise registered, during the December 11 workweek, by R. Anderson, apprentice machinist; J. Castell, spray coater; J. Killingsworth, gasket cutter; and D. Wallen, shipping and receiving clerk. Eason and Guar- nera, production workers, recorded 40 hours, with no change from their previous week; M. Mabie, apprentice machinist, worked slightly fewer hours. For the 8-week period which ended January 29, 1966, now under con- sideration, without regard for the Christmas and New Year's holiday weeks which could not be considered representative, machinist Trujillo averaged 8.58 hours of overtime per week; R. Anderson, apprentice machinist, averaged 4.33 hours; J. Castell, spray coater, averaged 11.83 overtime hours per week; Eason and Guarnera, production workers, merely averaged 1.33 hours. David Wallen, Respondent's shipping and receiving clerk, averaged 10.42 hours of overtime work per week. Respondent's payroll record, within this 8-week period, lists six additional workers with varying periods of ser- vice. Some of them seem to have done overtime work within several weeks; the record is silent, however, with respect to their precise job tasks. With matters in this posture, certain factual determina- tions would seem to be warranted. During the 7-week period between the filing of Complainant Union's petition and the consent-election date, Respondent's three jour- neymen machinists do seem to have suffered a significant diminution of average weekly hours worked. (With respect to Leonard Singleton, the record does show 44 hours worked during the week which ended October 23. Thereafter, for a period of 5 weeks, however, Singleton was not working due to illness. He did not return to Respondent's plant until the week within which the con- sent election was held; then he worked 28 hours, prior to his resignation, previously noted. Trujillo, hired within this period, began work during the first full week of Leonard Singleton's illness; determination would seem to be warranted that he was hired as Singleton's replace- ment. Skaggs, hired within the last 3 weeks of the period now under consideration, worked less than 40 hours dur- ing each of these weeks, but was paid for 5 hours, within 1 week, at Respondent's overtime rate.) The remainder of Respondent's production crew - with R. Anderson, ap- prentice machinist, and J. Killingsworth, gasket cutter, the sole exceptions - suffered lesser reductions in work- ing time. General Counsel argues that Respondent, during this period, denied Palo Alto workers their previously routine overtime work opportunities because of their presump- tive desire for union representation. Within his brief, by way of support, General Counsel proffers two subsidiary contentions: First, that Respondent's reduction of plant working hours represented the "direct implementation" of various threats previously made by Donald Lawler and Respondent's plant manager. Secondly, that Respond- ent's motive for thus reducing working hours may likewise be deduced from the demonstrable fact that hours were cut "immediately" following Goforth's receipt of Board notice with respect to Complainant Union's petition. Previously within this decision, how- ever, General Counsel's presentation, with respect to Respondent's purported "threats" voiced contemporane- ously with the plant's reduction of regular working time, has been found deficient. This leaves him, with respect to the matter now under consideration, dependent merely upon Respondent's purportedly questionable "timing" when working hours were reduced. Certainly, Plant Manager Goforth's several pronouncements with respect to plant hours do seem peculiarly calculated, because of their timing, to generate suspicion regarding their motiva- tion. Were the record, therefore, otherwise silent - with respect to Respondent's purported justification for reduced overtime work - this factor, solely, might con- ceivably suffice to carry the day for General Counsel's contention. Respondent's witnesses have proffered credi- ble, noncontradicted testimony, however, which would warrant a countervailing determination that the Palo Alto facility's workload was sufficiently reduced, conin- cidentally, to justify the regular hours reduction. Plant Manager Goforth testified, without contradiction, that a substantial "work order" had just been completed, and that plant backlog had declined. The record reflects cor- roboration. During the 2-week period which preceded October 16, four part-time workers in Respondent's hire - Edmun Lawler, John Deckard, Lynn Clark, and Leslie Wise - had worked a total of 144 hours. Deckard and Lawler were laid off Wednesday, October 13; Clark and Wise ceased work the next day. Plant Manager Goforth's testimony warrants a determination that these men were terminated because work on the project which had required their services was then complete. (Respondent's plant manager testified, credibly and without contradic- tion, that the firm had received a large order from Link Ordnance between September 22 and 24; that the order had called for considerable material which the firm's Anaheim plant had to provide, and much close tolerance work; that work had started October 1; and that the last fabrication required had been completed October 14. Thereafter Respondent merely required the services of its production workers, apprentices, and shipping clerk, to prepare the order for shipment.) Further, General Counsel's witness, David Bowden, testified, inter alia, that, Donald Lawler had told him, during a conversation within this period that completion of Respondent's then current work backlog would require some 470 man hours. Since Respondent's production and shipping crew - exclusive of part-time workers and Donald Lawler himself - then compassed no more than 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 10 workers, such a backlog would require little more than 1 week's work. For most manufacturing or processing plants, I week's work in progress backlog would represent a disturbingly low figure. Dispassionately considered, these testimonial tidbits, certainly, provide little more than a modicum of support for Respondent's contention that plant working hours were reduced, during the week which ended October 23, for business reasons. Since General Counsel, however, has proffered nothing more than grounds for surmise with respect to Respondent's motivation, bottomed upon pur- portedly questionable "timing" chargeable to Respond- ent's plant manager, due regard for the record, con- sidered in totality, constrains me to conclude that General Counsel's case, with respect to the matter now under consideration, has been successfully countered. (Within his brief, General Counsel concedes that Re- spondent had previously terminated the four "casual" workers who were no longer needed because they had completed their work on the firm's special project, but contends that "this" had no bearing on the workload of Respondent's regular workers. No record support for this suggestion, however, can be found. Further, General Counsel contends that following Complain- ant Union's failure to win representative status Re- spondent immediately reinstated overtime work. The record does show that, within the first full workweek following Complainant Union's election loss, Bow- den and Trujillo, machinists, worked substantial over- time hours. Conceivably, however, such overtime work may have been required to make up for the work- time Respondent lost, contemporaneously, through the resignation of Skaggs and both Singletons. Respond- ent's gasket cutter, spray coater, and shipping and receiving clerk likewise did work a significant number of overtime hours during the week in question. Though suf- ficient, certainly, to generate suspicion, this particular cir- cumstance, within my view, cannot alone build the evidentiary preponderance required to sustain General Counsel's contention.) In short, the present record, con- sidered in totality, does contain "credible evidence that lawful business reasons" justified Respondent's reduced working hours, reasonably calculated to overcome General Counsel's prima facie case, which I have found bottomed upon nothing more than Goforth's questionable "timing" when his decision to cut back hours was proclaimed. d. Subcontracts (1) The issues General Counsel contends, however, that Respond- ent's management was able to reduce required overtime work for workers within its Palo Alto facility, deliberate- ly, through subcontracting work which they would nor- mally have done. Specifically, within his brief, General Counsel has declared: It is undisputed that Respondent has traditionally subcontracted work. However, t1' past practice is not a defense to the subcontracting of work which employees normally would have done but for their union activities. And Respondent did subcontract additional work for that unlawful reason. With respect to this contention, probably the heart of General Counsel's case, considerable testimony and documentary material was proffered for the record. Respondent's purchase order records, produced pur- suant to subpena, which purportedly reflected what- ever subcontracts plant management had negotiated or placed, were challenged as less than complete. Record supplementation calculated to provide further data with respect to such "outside fabrica- tion" work within the period with which this case is concerned was, however, finally provided. Considered in totality, the documentary and testimoni- al record with respect to Respondent's subcontract prac- tices does provide a somewhat confused picture. Certain factual conclusions, however, would seem warranted. Since late 1963, so Goforth's credible and noncon- tradicted testimony shows, Respondent's Palo Alto plant has, frequently, let contracts for so-called "outside" fabri- cation work. Such contracts have been negotiated, primarily, for one of four reasons: 1. Respondent's management believed that, for vari- ous reasons , the work required to fill their customer's order could not be timely completed within the Palo Alto facility, before their customer's requested delivery date. 2. While the work required could be completed quickly enough within Respondent's Palo Alto plant, some other firm could do it cheaper. 3. The Palo Alto facility currently lacked the proper tools or machinery to perform the work required. 4. Palo Alto personnel lacked the technical knowledge required to perform the work. Concededly, the volume of business done by Respond- ent with subcontractors, for these designated reasons, has fluctuated. The fluctuations have not, however, fol- lowed any set seasonal pattern . Respondent's purchase order records though clearly not complete, with respect to the firm's "outside" fabrication contracts, for reasons to be noted, do reveal comparative monthly variations in subcontracting, for 1965's last 9 months; they show the following: April $1,137 August $1,223 May 443* September 3,616 June 1,647 October 535 July 1,053 November 2,311 December $442 * Corrected figure. The compilation found in the record is based upon a mistaken adding machine tape. The figure for September 1965 compasses a single $2,841 subcontract; without that, Respondent would have shown but $775 worth of subcontracts for the month. Basing his position, substantially, upon this compila- tion, General Counsel contends that the dollar worth of Respondent's various subcontracts placed during November 1965 specifically - following the filing of Complainant Union's petition - was approximately four times greater than the dollar worth of company subcon- tracts shown as placed within the months immediately preceding and following, and double the dollar volume figures shown for July and August, previously. With due regard, however, for the record considered in totality, post hoc, propter hoc conclusions, bottomed merely upon demonstrable proof that Respondent placed a greater dollar volume of subcontracts with "outside" fabricators following hard upon Complainant Union's petition, would be simplistic. Respondent's presentation, primarily through Plant Manager Goforth's testimony, does reflect a conglomerate of proffered business reasons THE FLUOROCARBON COMPANY 641 for practically every subcontract, placed between Oc- tober 18 and November 30 specifically, noted or discussed within the present record. The validity of these purported justifications for challenged conduct must be determined . clearly, before any conclusion consistent with General Counsel's contention, previously noted, can be considered warranted. (2) The subcontracts reviewed Between October 18 and November 30, 1965, so the record shows , Respondent's management was responsi- ble for 18 transactions purportedly concerned with so- called "outside" fabrication work. Seventeen of these were memorialized within the firm's purchase order records; only one seems to have been consummated pur- suant to verbal commitments solely. (When requested to provide summary data regarding its so-called "outside fabrication" subcontracts , Respondent cited no more than 10 purchase orders, within the period with which we are now concerned, which purportedly reflected such transactions. These compassed two October subcon- tracts, which cost the respondent firm $403, plus eight November subcontracts worth $2,311 together. Within the period now under consideration, therefore, Respon-, dent conceded $1,714 worth of relevant subcontracts. While Plant Manager Goforth held the witness chair, however, eight more transactions - seven of them memorialized by purchase orders - were noted and discussed. For present purposes, some consideration of these further transactions, together with those which company management had previously conceded, would certainly seem required.) Respondent's first purchase orders revealed by the record, following the firm's receipt of notice with respect to Complainant Union's petition, were dated October 18; two of these were reviewed for record purposes . The first - designated P.O. 1373, specifically - concerned a United Air Lines purchase request for 400 B/U (Back Up) rings. A purchase order was written, so the record shows, directed to Respondent's Anaheim, California, plant; that plant was requested to ship the plastic rings in question directly to United Air Lines' San Francisco maintenance base. Regarding this transaction , together with others of similar nature , Respondent's plant manager proffered credible, noncontradicted, testimony as follows: That Respondent and United Air Lines have , for some time, had a so-called "blanket" contract, pursuant to which Respondent regularly supplies desired quantities of such B/U rings when requested; that Respondent 's Palo Alto facility, though possessed of machinery capable of producing standard sized B/U rings, has never devoted its machines to large scale production runs involving such products, since the firm's Anaheim plant currently con- tains a specialized department fully tooled and ready to manufacture such rings, together with like products, using production line techniques, that Respondent's Anaheim plant routinely makes bulk shipments of standard sized rings, produced to satisfy United Air Lines' blanket con- tract, routed through the Palo Alto facility, where they are packaged separately, sealed, marked, and forwarded to Respondent's customer; that United Air Lines, some- time during August or September 1965 specifically, changed its B/U ring specifications; that, since then, this customer has presented numerous "special rush" requests for such rings, beyond its so-called blanket con- tract requirements, which it wished shipped in bulk without separate packaging; that such "special rush" requests, when satisfied from Respondent's Anaheim production runs or warehouse stock, have been routinely shipped directly, without being forwarded through the firm's Palo Alto facility. Respondent's management, so Goforth testified, does not consider that these "special rush" shipments really reflect "outside" fabrication re- lated to Palo Alto's work in progress, since they are not concerned with company sales stock which the firm's Palo Alto facility would conventionally produce. The shipment of these B/U rings directly to Respondent's customer, so the record shows, would merely bypass one Palo Alto production worker, Catherine Eason, who regularly packages such rings separately, seals them, and marks them when they are supplied pursuant to United Air Lines' blanket contract. Within the period with which we are concerned, Respondent's Palo Alto management concededly dispatched several purchase orders covering B/U rings for United's maintenance base to Anaheim; most of these required direct shipment (Purchase orders calling for direct shipments were written, so the record shows, on October 19 (P.O. 1384), and October 27 (P.O. 1427). Concurrently, two more purchase orders were dispatched, pursuant to United Air Lines' blanket con- tract; these called for B/U rings which were to be routed through the firm's Palo Alto plant for separate packaging prior to shipment. Such orders were written and for- warded on October 25 (P.O. 1406), and November I (P.O. 1430).) During cross-examination, General Counsel questioned Plant Manager Goforth regarding P.O. 1381, likewise written October 18 and dispatched to Porter Seal; the order seemingly covered a product, specifically "0" rings, which Respondent's Palo Alto facility could produce. Goforth credibly testified, however, that the particular rings requested were rubber rings, which Respondent neither processed nor machined. On October 19 Respondent placed a purchase order (P O. 1388) with R. J. Foster, proprietor of a nearby con- tract machine shop, the order called for 12 nylon tips (pulleys) for a designated customer. While a witness Goforth conceded that Respondent's Palo Alto plant had machinery which could have been used to produce these pulleys; he declared, however, that Foster had previously produced the parts in question, pursuant to purchase order, more cheaply than Respondent could have produced them. (Respondent's previous subcontract for this work (P.O. 9510, March 26, 1965) had called for 36 pieces.) The plant manager's testimony in this respect was corroborated by Foster, who recalled that Donald Lawler, following his completion of Respondent's March 26 order, had requested him to retain the tools and fix- tures which he had used, since the purchase would be re- peated. The next subcontract reviewed for the record was presumably, another subcontract with Foster, verbally negotiated sometime before the period with which we are concerned and substantially completed before Complai- nant Union's petition was filed, Foster's bill for the work, however, shows an October 21 date. With respect to this matter, testimony proffered by both Goforth and Foster, when synthesized, reveals: That Respondent had received an order from Philco Corporation which com- passed, inter alia, certain parts designated , alternatively, as filter barriers or "waveguide" parts; that Plant Manager Goforth had first, back on July 6, 1965, specifi- 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cally, subcontracted the production of these parts with American Polytherm, a Sacramento firm; that the firm in question had met with several difficulties; that Respond- ent had thereafter, following verbal negotiations, given Foster a so-called "trial" order sometime during August 1965, for two pieces; that Foster had successfully machined both pieces, for which Respondent had been billed August 30; that subsequently, sometime early in September, Foster had received a verbalorder covering 49 further pieces; that these were machined and delivered to Respondent in several small lots, on various dates between September 11 and October 18; that Goforth, personally, visited Foster's shop on October 18 to pick up the last few pieces; that Foster's subsequent October 21 bill for the project reflected $648.96 total charges; but that Respondent's manager subsequently protested these charges and proffered $475.50 in full settlement. This transaction, though presumably completed within the period with which we are presently concerned, clearly derived from prior negotiations bottomed solely upon business considerations. On October 26 Respondent wrote P.O. 1405 to John Sutter, properietor of another contract machine shop; Respondent's order called for 768 teflon bushings. When querried with respect to this "outside" fabrication pro- ject, Goforth declared that subcontracting was sought because the project was relatively large, and because the pieces involved could not be machined conveniently within Respondent's Palo Alto plant. (Specifically, Respondent's plant manager testified that the bushings required had to be machined for subsequent bonding to stainless steel bushing retainers, for a designated customer, Jeffry Manufacturing Company; he stated that Respondent's lathes could not have produced bushings with the required outside diameter dimension, save with considerable material loss.) While a witness, Sutter sub- stantially corroborated Goforth's testimony. Following his brief description of Respondent's bushing require- ments, coupled with references to the plastic material which the firm provided, Sutter confided that he, too, had found himself constrained to cut the material very care- fully, to minimize waste, but that he had been able to do so. According to Sutter, this was his first project received from Respondent which had not been solicited. Donald Lawler had telephoned him October 24 or 25, with a message that Respondent needed these bushings quickly; Sutter had been told that Respondent could not possibly perform the required machine work within its Palo Alto facility, since the plant did a lot of short projects and could not afford to tie up machinery and tools for long production runs. No other reason for Respondent's desire to subcontract was stated. According to Sutter's first recollection, Respondent's situation regarding overtime work was not discussed; the machine shop proprietor did, however, finally declare his "belief ' that Lawler had made some statement, never particularized, that Respond- ent's men were currently working overtime hours. When Sutter, later, billed Respondent for this subcontract (November 28, 1965), the firm was charged for 796 bushings. The machine shop proprietor testified, how- ever, that Respondent's management had verbally authorized his production of more bushings to make up for losses in production when the plastic bushings machined by him were bonded to their stainless steel retainers within Respondent's plant oven. Sutter's recol- lection in this respect, which General Counsel had sol- icited, stands without record contradiction. Respondent's purchase order record shows that P.O. 1440 was drawn November 3, directed to the firm's Anaheim plant, for 1,000 B/U rings required to fill a Vic- tor Equipment Company order. According to Goforth, Victor's order was thus referred because standard sized B/U rings, which the Anaheim plant would already have in stock, were sought; Respondent's plant manager con- ceded that - had some nonstandard, custom-made B/U rings been sought- the firm's Palo Alto facility might well have machined them. On November 8, 1965, Respond- ent wrote a purchase order (P.O. 1463) for National Vulcanized Fiber; the firm requested this subcontractor to provide a quantity of stamped washers. Plant Manager Goforth's testimony, proffered and received without con- tradiction, warrants a determination, however, that the designated subcontractor's service was sought because it could stamp washers within the tolerances which Respondent's customer (Beckman Industries) required, which the Palo Alto facility could not do. The following day, November 9, Respondent wrote P.O. 1465, directed to Miller Gasket Company, for 15,000 gaskets. The testimony of Respondent's plant manager, proffered and received without contradiction, reveals that Respondent's Palo Alto plant had previously tried to cut these gaskets with a punch press, but had discovered that the job could not be handled economi- cally. On November 10, 1965, Respondent subcon- tracted with the Chase Company (P.O. 1470) for some spray coating work; the record reflects Goforth's testimony, proffered without challenge, that the particular piece to be coated was too large for Respondent's Palo Alto plant to treat within its drying oven, following the spray coating operation. Respondent's purchase order records, further, reflect a large subcontract for Teflon "ball seats" given John Sutter (P.O. 1510) on November 18; substantial testimony was proffered with respect to this project. The record shows that Respondent, back on August 13, had written P.O. 1099 directed to Sutter, covering a small quantity (100) of Teflon "ball seats" described as unusual, which a firm designated "Astro-Tech" required. Respondent's Palo Alto plant, so Goforth testified, did not then possess the particular machine tool required for this project. The plant manager declared that a radius turning tool was needed; Sutter, so far as Respondent's management knew, had the requisite tool, and could do the work quickly, inexpensively, and accurately. While a witness, Sutter declared that Donald Lawler had telephoned him with a request that he take the project; thereafter, he had discussed price, generally, with Respondent's office manager. Following their discussion, so Sutter testified, Respondent's P.O. 1099 had been written for a test run, which the machine shop proprietor had deemed requisite before he could give a firm price quotation. Pursuant to Respondent's order, then, Sutter machined 100 Teflon ball seats and delivered them. When his work proved satisfactory, so the record shows, Respondent's order No. 1510, previously noted, was written; the subcontract called for 1092 ball seats. Sutter's testimony with respect thereto, proffered without contradiction, reveals that Respondent's purchase order represented a long-run project which Respondent's management had discussed with him before his August test run, previously noted. The machine shop proprietor testified, further, that he had been required to prepare a special machine tool fixture for the project. (Sutter's sub- sequent December 27 bill for the project sought payment THE FLUOROCARBON COMPANY 643 for 1834 ball seats produced; 929 had been machined with one dimension, while 905 were slightly larger. When queried regarding his justification for such a billing, Sutter could not recall whether Respondent's management had authorized his excess production - beyond the specific 1092 ball seats which Respondent's original purchase order had requested - through some mere verbal direction or some subsequent purchase order; he testified, how- ever, that his machine run had been extended - pursuant to Respondent's request - to compensate for real or potential production losses. The record shows that Respondent paid his bill as rendered.) On November 19, Respondent's management wrote a purchase order (P.O. 1516) directed to the firm's Anaheim plant, covering 140 fluorogold slide bearing ele- ments. Plant Manager Goforth, while a witness, testified that this order - which required the most costly plastic material in Respondent's stock - concerned a rush project for Shell Oil Company; conceding that his Palo Alto plant could have done the work required, Respondent's plant manager nevertheless declared, credibly and without con- tradiction, that Anaheim had both machinery and materi- als ready to meet Shell's rush requirement, while the Palo Alto plant would have had to requisition the material and wait for delivery before machine production operations could begin. The decision to refer the complete order to Respondent's Anaheim plant, therefore, was, so Goforth testified, nothing more than a business decision calcu- lated to satisfy the firm's customer. Substantially similar considerations seem to have motivated Respondent's November 24 purchase order (P.O. 1530); this requisition, directed to the firm's Anaheim plant, called for Teflon "V" rings for a customer designated as Allied Engineering. Conceding that Palo Alto facilities could have been used, Goforth testified once more, credibly and without contradiction, that: (1) The customer's order called for rush delivery; and (2) the plastic material required was not currently stocked by Palo Alto in proper sizes. Since preliminary material shipments from Anaheim would necessarily have meant delay, Allied Engineering's entire project was referred there. This review, thus far, has covered Respondent's complete roster of subcontracts, save two, placed through purchase orders or verbally negotiated within the period with which we are now concerned. Respondent's purchase order record shows a November 12 requisition (P.O. 1481) directed to Anaheim, which covered $224 worth of work. Further, Respondent's management wrote a purchase order November 30 (P.O. 1560) directed to Weichart Manufacturing Company for $66 worth of so- called "outside" fabrication. (The present record contains no data with respect to the nature of the work required, connected with these two purported transactions. So far as I can determine, however, the failure of counsel to can- vass them reflects nothing more than mere oversight or possible trial fatigue. The record's development with respect to Respondent's subcontract practices was somewhat disconnected. No derogatory conclusion, prejudicial to either party, should be drawn, therefore, from the record's silence regarding these two subcon- tracts.) These projects, judged by their dollar worth sole- ly, seem to have been relatively small. Assuming, arguendo, that they may have covered work which could have been done within Respondent's Palo Alto facility, determination should still not be considered warranted that they reflect or constitute significant deviations from Respondent's normal practice, with regard to subcon- tracting, deliberately calculated to reduce substantially the volume of work available for the firm's Palo Alto production and maintenance workers. (3) Analysis and conclusions With matters standing thus, Respondent takes a double-barrelled defensive posture. First, company coun- sel points to Respondent's previously well-established practice of subcontracting Palo Alto plant work to so- called "outside" fabricators for legitimate business reasons, such as presumptive inability to handle particu- lar projects (because of equipment or "know-how" defi- ciencies), lack of time, higher probable costs, lack of spe- cialized materials, or what counsel has designated "over- all feasibility" when management considered the desira- bility of subcontracting with due regard for the complete project's scope. (Further, Respondent's counsel has cited testimony and documentary material which would war- rant a determination that Respondent, pursuant to policy and practice, has repeatedly referred orders received in Palo Alto, for certain standard sized stock parts and materials, to the firm's Anaheim, California, plant.) Relying upon these considerations, Respondent con- tends that General Counsel has failed to prove, through the requisite testimonial preponderance, that Respond- ent's management-following its receipt of notice with respect to Complainant Union's petition - subcontracted work previously done by workers within the Palo Alto plant. Secondly, Respondent contends that - with due re- gard for the proven circumstances which motivated par- ticular subcontracts within the period with which we are now concerned - no sufficient showing has been made that Respondent's management stepped up its volume of subcontracts because Palo Alto plant workers had selected or designated Complainant Union their bargain- ing representative. Analysis The record, within my view, persuasively supports Respondent's position that General Counsel's presenta- tion - though sufficient to provide prima facie support for his contentions - has successfully been countered. (a) Within General Counsel's brief, the contention is made that Respondent's Palo Alto management "subcon- tracted an abnormal amount of its work" during November 1965, while Complainant Union's petition was pending. And Respondent's purchase order record does show, inter alia, that work worth $1,316 was con- cedely "subcontracted" with the firm's Anaheim plant, within the designated period. General Counsel would contrast this record with that shown for August, Sep- tember, and October 1965, before Complainant Union's petition, and December 1965, following the consent elec- tion date; during these months no comparable fabrication projects within the Palo Alto plant's capability were referred. General Counsel's consolidated figure, how- ever, derives from but three purported subcontracts (P.O's 1481, 1516, and 1530). Respondent's claimed "business" reasons for subcontracting the two biggest projects were fully detailed. General Counsel could proffer no specific countervailing testimony, reasonably calculated to persuade a trier of fact that Plant Manager Goforth's claimed justification - with respect to each of these two "subcontract" referrals - reflects post facto 336-845 0 - 70 - 42 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contrivance. (True, within his brief General Counsel does challenge Goforth's credibility generally; previously within this decision, however, that challenge, so far as it purports to suggest that Goforth's testimony should be disregarded completely, save where corroborated, has been rejected.) Further, with respect to General Coun- sel's contention, Respondent' s total subcontract figures, previously noted, do show a significant rise for so-called "outside" fabrication commitments within the period with which we are now concerned. When Plant Manager Goforth's proffered business justifications, which he sub- mitted in circumstantial detail for nearly all of these, can be considered, however, suspicions generated with respect to Respondent's possibly proscribed motivation must be discarded. Mere temporal coincidence-the fact that Respond- ent's reliance upon subcontracts, measured in terms of dollar volume, grew significantly following the firm's receipt of notice with respect to Complainant Union's petition - cannot, solely, sustain General Counsel's case. Yet, without testimony or documentary proof reasonably calculated to vitiate the persuasive thrust of Goforth's recitals, such temporal coincidence seems to constitute General Counsel's principal reliance. (Within his brief, General Counsel suggests that "there may well have been" some substantial volume of further subcontracting, within the period with which we are now concerned, pur- suant to verbal negotiations. Presumably, General Coun- sel would contend that such further subcontracts - had they been revealed - could not have been justified by Respondent's plant manager. This suggestion, which I propose to consider further, rests, however, upon nothing more than suspicion.) More particularly, General Coun- sel, within his brief, cites testimonial and documentary proof that - between August 13 and October 13, 1965, before Complainant Union filed its petition - subcon- tractor John Sutter performed $135.34 worth of work for Respondent, pursuant to two purchase orders (P.O.'s 1098 and 1099, plus two further orders presumably ver- bal. Then, General Counsel notes that Sutter, following Complainant Union's petition, received Respondent's P.O. 1405 for 768 Teflon bushings, and P.O. 1510 for 1,092 Teflon ball seats; with respect to both subcon- tracts, Sutter did concededly produce and bill Respond- ent for greater quantities without having received purchase orders from company management. (Within his brief, General Counsel claims, with respect to the first project noted, that Sutter testified he was told by Donald Lawler P.O. 1405 had been written because Respond- ent's Palo Alto workers were currently working over- time and Respondent was too busy to get the work done. However, leaving aside, for the moment, all questions as to whether Lawler's comments to a contract machine shop proprietor, assuming they were made, should be considered truthful, or binding on Respondent for present purposes, Sutter's recital cannot properly be construed as forthright testimony that Lawler really made the state- ment charged. When summoned as General Counsel's witness, Sutter first testified that Donald Lawler had said the subcontract was given him because Respondent had to keep its machines free to do many "small items" without "tying up" equipment for long runs; when requested, thereafter, to state whether Lawler had men- tioned any other reason for his receipt of the purchase order now under consideration, the machine shop proprietor thrice responded negatively. Only when thereafter prompted, with a question as to whether Lawler had "discussed" the item of overtime, did Sutter finally proffer a positive response ; then he testified that the subject was not discussed, but that he believed Lawler had mention the fact that Respondent's men were working overtime. Such vague testimony, belatedly proffered in response to specifically leading questions. could not sustain a factual determination that Respond- ent's plant manager, while a witness, had really mis- represented his firm' s reason for a particular subcon- tract.) General Counsel's comment, however, that Sutter performed $1,005.55 worth of work for Respondent dur- ing the 6-week period with which this case is primarily concerned - proffered to support a deduction that such work was really subcontracted to punish the firm's work- ers for their presumptive support of Complainant Union herein - disregards record testimony, received without contradiction, the P.O. 1405 covered a project which Respondent's plant machinery could not handle effi- ciently, and that P.O. 1510 compassed a project with respect to which Respondent's management had first sought Sutter's help some 3 months previously. Sutter, himself, did testify that, with respect to these projects, he produced more bushings and ball seats than Respondent's management had initially requisitioned; the record, how- ever, further reveals testimony that his supplementary production had been authorized pursuant to legitimate business considerations. General Counsel has proffered nothing reasonably calculated to vitiate the probative worth of Sutter's recital. (Leonard Singleton's prior testimony, proffered in response to a leading question, that Respondent's Palo Alto workers "ordinarily" pro- duced ball seats within their plant, cannot vitiate the probative thrust of Goforth's testimony that P.O. 1510 concerned some "unusual" ball seats, production of which required a radius turning tool Respondent did not then possess. Nor can it be considered sufficient to counteract Sutter's testimony-proffered as Gen- eral Counsel's witness in rebuttal-that the purchase order in question covered a so-called "long run" for which he had been required to make a special fixture.) With matters in this posture, General Counsel's con- tention that Sutter's seeming rush of work really reflected Respondent's purpose to subcontract tasks "previously done" within its Palo Alto plant, cannot be considered sustained. (b) Within his brief, General Counsel makes much of Plant Manager Goforth's initial declarations that Re- spondent routinely memorialized its contracts for "out- side" fabrication with written purchase orders; Goforth's testimony in this regard General Counsel has designated "entirely" false, basing his contention upon certain sub- sequent testimonial concessions , coupled with a stipula- tion, further testimony and documentary material which would fully warrant a determination that Respondent did, indeed, place a number of subcontracts verbally. With this point made, General Counsel's brief continues: However, it is important to note that Respondent never did produce at the hearing all the documents regarding Respondent's subcontracting. Respondent did not produce invoices from the subcontracting firms although requested to do so on several occa- sions. [Emphasis supplied.] From the fact that Respondent did not produce invoices from subcontractors, coupled with Goforth's failure to produce any data probative of verbal subcontracts prior to General Counsel's testimonial demonstration that some company subcontracts had been placed through THE FLUOROCARBON COMPANY ' 645 verbal negotiations , this trier of fact has been requested to deduce that the present record does not yet contain all the significant documents with respect to Respondent's subcontract practices within a relevant period . Further, I have been asked to conclude that: As Respondent did not come forward with the invoices of its other subcontractors , it should be in- ferred that it failed to do so because production of such documents would have been adverse to its in- terests. [Emphasis supplied.] General Counsel submits that, had Respondent produced all documents subpenaed, further proof of Respondent's unlawful subcontracting would "probably" have been shown. Such a conjectural line of reasoning, however, merely reflects the classic "inference upon inference" which triers of fact have traditionally been judicially directed to shun. From Respondent's initial failure to produce, when first requested: All records and contracts of The Fluororcarbon Company for the period April 1, 1965 through March 31, 1966, pertaining to its Palo Alto, Califor- nia facility, showing the names and addresses of all subcontractors ... , this trier of fact has been requested to deduce that further documents relevant to supplementary or different "out- side" fabrication work - beyond the documents even- tually produced or summarized for review within the present record- remain , still undisclosed, within Re- spondent's possession. Then, with this deduction for predicate, I am requested , further, to deduce that Respondent's failure to come forward with such pre- sumptively still undisclosed documents derived from management's knowledge that their production would be prejudicial to the firm's defense. The logic of this posi- tion, within my view, can hardly be considered com- pelling. (Conceivably, General Counsel may have wished to suggest that, had Respondent produced those particu- lar invoices received from subcontractors which "matched" the firm's purchase orders written within a relevant period, comparisons made between such purchase orders and resultant billings might show that Respondent's management had subsequently, requested many subcontractors, verbally, to produce greater quanti- ties of particular products than were called for when their purchase orders were first written. Concededly, Sutter's purchase orders, within the period with which we are con- cerned, were thus supplemented . General Counsel's con- tention that similar supplementation may have taken place with respect to some of Respondent's further sub- contracts, however, necessarily rests upon nothing more than supposition.) Respondent's failure to produce "all" company records, with respect to so-called "outside" fabrication work - when purportedly complying with General Counsel's subpena - merits characterization as regrettable; the firm's lapse, however, can hardly be con- sidered sufficiently significant to vitiate its defensive posture. Through a stipulation and several rebuttal wit- nesses - who buttressed their testimony with documenta- ry material - General Counsel has, successfully, demon- strated that Respondent's management did place some "outside" fabrication orders verbally, within a 3-year period, without memorializing them through written purchase orders subsequently. No more than one such conceded order however, was worked within the 6-week period with which this case is directly concerned. (Foster, who handled the project in question, had been contacted verbally sometime early in September 1965. The record shows that his work thereon was completed between Sep- tember 11 and October 18 ; though Respondent did receive a bill for Foster's services dated October 21, that bill clearly covered a total transaction which Respond- ent's management had initiated some time previously, and which Foster had substantially completed before Plant Manager Goforth received any notice regarding Complainant Union's petition.) Further verbal "subcon- tracts" placed by Respondent's management with both Foster and Sutter - plus a firm designated Minimac herein - have been conceded. The record, however, reveals none which could be considered even remotely relevant to General Counsel's present contention. (Sutter's testimony does show two projects concerned with "plexiglass tank traps" subcontracted by Respond- ent's management sometime within the September-Oc- tober period; Respondent was, however, billed for these fabrication projects on October 8 and 13, respectively. Respondent 's final complilation with respect to Foster's work, which General Counsel has not challenged, shows, further, that during 1963 he worked for the firm on two occasions ; both of these subcontracts , however, were memorialized by purchase orders. No subcontracts were placed with him during the following calendar year. Dur- ing 1965 Foster handled nine projects; six of these were subcontracted verbally. Foster's two subcontracts con- cerned with Philco Corporation's waveguide parts or filter barrier have previously been noted; his four remain- ing verbal subcontracts predated these. Regarding Minimac, Respondent proffered a compilation which I received for the record pursuant to stipulation; that com- pilation shows: Purchase Year Order Verbal Total 1-963 1 0 $54.00 1964 9 18 $2,741.00 1965 3 0 $1,036.00 One Foster subcontract completed in May 1965, together with two Minimac subcontracts placed in June 1965, we may note, were concerned with Teflon ball seats.) With matters in this posture , General Counsel cannot, within my view, persuasively contend, now, that Respondent's presumptive failure to produce every record which it pos- sessed relative to subcontracts , within the 12-month period which his supena`specified , justifies a conclusion, bottomed upon nothing more than supposition , that their production would have undercut the firm's defense. (c) General Counsel suggests that Respondent's defensive presentation with respect to the matter of sub- contracts should be discounted because the firm's plant manager - when he visited Foster's machine shop on Oc- tober 18 to take delivery of some Philco Corporation filter barriers - had, during a conversation with the latter, "expressly admitted" that Respondent was doing more subcontracting and reducing overtime work because its Palo Alto plant workers had demonstrated their presump- tive desire for union representation. The record fairly construed, however, will not sustain General Counsel's broad contention. Setting aside, for the moment, certain questions regarding Foster 's credi- bility - which, with respect to Plant Manager Goforth's purported remarks, was sharply challenged - the machine shop contractor's testimony, taken at face value, will simply not bear the construction which General Counsel 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would have placed thereon. During General Counsel's direct examination, Foster, when questioned regarding what Respondent's plant manager had said, reported: The best that I can recall, Bob had said we should - well, more or less be set for more work, like that which I am always eager for. Well, he was in the throes, or they were going to organize the shop, some darn thing. I don't recall if this was actually said, he was going to slice off the overtime. It would mean an actual influx in work for us, because up until this time we had a swell relationship. . . . That is it. I can't re- call every word, you know. This is six months ago. This is the gist of it .... As I recall, which it might be accurate and it might not, he was going to start, in essence, farming out more work than he had be- fore .... This was it. I was in a hurry. We stood in the shop and shot the breeze like we always do. That is it. [Emphasis supplied.] When reminded, moments later, that he (Foster) had said "something about organizing" the machine shop owner recalled that Respondent's plant manager had "men- tioned" they were in the throes of having a vote "or some darn thing" related to unionization. When queried further, during cross-examination by Respondent's counsel, Foster conceded that he could not, honestly, recall the plant manager's actual words, but that the "overall thing" concerned his (Goforth's) query regarding the state of Foster's shop load. (Foster, then, volunteered a statement that many buyers request infor- mation regarding the state of a contract shop's workload, before contracting work, since the shop's volume of work in progress would significantly control their project's possible completion date, and thus determine their ability to meet their own dependent delivery or production schedules.) The subcontractor, so he testified, reported that his shop load was "O.K." commenting that he could handle some more work. Questioned, then, regarding their further conversation, Foster expressed his "belief' that Goforth had said he was "slicing off overtime" and that such action would mean more of Respondent's work would be sent out. The subcontractor conceded, how- ever, that his testimony in this respect reflected what he "figured" Goforth had meant; that the phrase "slicing off overtime" was his (Foster's) phrase; that his testimony regarding the phrase should not be taken as reporting what Goforth had "actually" said. When requested to provide his best recollection with respect to what Respondent's plant manager had said, either in words or substance, without giving his personal interpretation of what such remarks implied, or what they meant, Foster testified: I can't recall any actual words, per se .... This is [?] what exactly was said. Well, what do you say - well, they were slicing off the overtime, and he was basically asking how my shop load was. I said - I didn't say, "I am slow," or "swamped." I am always after work. I said, "It will fit in our schedule fine, I can always handle more machine work." Then we got started, just shooting the breeze, like a guy does. He said they were having some union trouble. Not necessarily related to this [his query regarding Foster's workload] either. He didn't mention this. . .. Then he said he was in the throes of organizing something. I don't actually know what. I don't get into other people's affairs. [Emphasis supplied.] According to Foster, Goforth had not mentioned Com- plainant Union's name; he could not recall whether the Board was mentioned. When Respondent's counsel asked whether Goforth had said that a union was trying to or- ganize his plant, that they might try to organize Foster's plant, and that he might want to know about it, Foster declared, merely, that he could not recall such comments, and did not know. Summoned in surrebuttal, Plant Manager Goforth con- ceded a conversation with Foster, within the week which followed his receipt of notice regarding Complainant Union's petition. His recollection with respect to its con- tent varied somewhat from Foster's, however. Goforth's testimony synthesized from his recitals in both direct and cross-examination considered together may be set forth as follows: . I mentioned to him I had received this petition [from the NLRB ], [that we would have an election], and I knew from previous conversations somewhere he had indicated that he did not have a union shop, and he had no interest in dealing with a union. I told him that we had received a petition, that I felt we were a small shop much like his, and perhaps he might be alerted to the fact there was a large or- ganizational activity taking place on the Peninsula. Knowing his feeling about the union, I felt he would want to know about it. He said he did, and he didn't think his employees would have any interest in the union. He certainly appreciated the information. Goforth categorically denied that Foster had been asked whether he could handle more work for Respondent firm; he likewise denied telling Foster that Respondent wanted him to "get set" to handle more work. Further, he denied telling Foster that "because of union activity" within Respondent's plant he (Goforth) planned to eliminate overtime work, or that Respondent was going to "farm out" all, some or most of its work, thereafter. With matters in this posture, General Counsel's sug- gestion - that Respondent's plant manager, during his conversation with Foster now under consideration, specifically "gave the show away" regarding his statutori- ly proscribed motivation for proliferating subcontracts - must be rejected. Goforth, though he conceded a conver- sational reference to Complainant Union's petition so that Foster might be thereby "alerted" regarding current "organizational activity" within his neighborhood, denied that his remarks were conjoined with any query regarding the latter's readiness to handle more fabrication subcon- tracts. The plant manager's denial in this respect, within my view, merits credence, particularly since Foster's testimony regarding their conversation can hardly be con- sidered positive. The machine shop owner did not, him- self, link Goforth's purported query directly with, his comments regarding unionization; further, Foster's testimony regarding the plant manager's purported deter- mination to "slice off overtime" and "farm out" more work was significantly qualifiea. (My comment in this respect derives from Foster's several declarations that he could not recall precisely what was said, that some of his testimony derived from inference rather than recollec- tion, and that his memory "might not" be accurate.) The subcontractor, himself, volunteered a statement that Goforth's inquiry, regarding his shop load, was one which prospective customers might well make for business reasons. And, when confronted with a question, framed by Respondent's counsel, which was seemingly bottomed upon Goforth's recollection regarding their conversation, Foster could proffer no denial; he simply professed a failure of memory. THE FLUOROCARBON COMPANY Contradicted testimony, when thus vitiated by patent lapses and conceded failures of recollection, can hardly be considered "reliable, probative and substantial evidence" that Plant Manager Goforth had conversa- tionally revealed a plan or purpose to punish Respond- ent's Palo Alto workers, because of their presumptive desire for union representation, by depriving them of overtime work and placing more jobs with subcontrac- tors. General Counsel may, conceivably, wish to contend that Foster's testimony - though it may not suffice to prove a specific "confession" chargeable to Respondent's plant manager regarding his statutorily proscribed motivation - nevertheless persuasively reveals his state of mind. And, so construed, the machine shop owner's testimony indeed might, arguably, warrant a deduction that Goforth did propose to place a greater volume of subcontracts for punitive or discriminatory reasons. Due regard for the complete record, however, presently con- strains me to conclude that Foster's recital should be strictly, rather than liberally, construed. Previously, within this Decision, some reference has been made to Respondent's vigorous challenge regarding Foster's credibility; that challenge, within my view, suffices to raise a doubt, with respect to Foster's possibly biased recollection, sufficient to require a determination that his testimony merits scrutiny with great care. Item: The record reveals that - some several days following Goforth's October 18 visit with the machine shop proprietor - the firm was billed for Foster's work on Phil- co Corporation's filter barriers, previously noted; that Respondent's plant manager, shortly thereafter, protested Foster's bill; that Respondent, subsequently, proffered a substantially lesser sum in full settlement; that Foster was concededly "several hundred dollars irked" thereby; and that he finally notified Respondent he would not wel- come further fabrication subcontracts. The machine shop proprietor, when questioned, conceded that, because of this price dispute with Respondent's plant manager, he had readily divulged matters, when queried by a Board representative, with respect to which he might well have maintained silence had his relationship with Respondent remained satisfactory. Such concessions presently per- suade me that Foster's testimony, regarding Goforth's purported comments, should be taken with the proverbial grain of salt. The machine shop proprietor may not have proffered consciously fabricated or distorted testimony; his patent resentment of Respondent's plant manager, however, persuasively suggests that when the Board's representative questioned him, rationalization bottomed upon pique may well have colored his memory. With Respondent's challenge in mind, Foster's testimony, witliin'my view, will not sustain conclusions based merely upon supposedly reasonable deductions therefrom. That testimony deserves no greater credence than the machine shop proprietor's language, taken literally, commands. And Foster's testimony, taken literally, does not, within my view, provide "reliable, probative and substantial" support for General Counsel's contention that Respond- ent's plant manager, 3 days after receiving notice of Complainant Union's petition, was proposing or planning to subcontract more work because his company's Palo Alto workers were seeking union representation. (d) Record testimony, proffered in General Counsel's behalf, does suggest that Respondent's Palo Alto plant - within, the period with which we are most concerned - may have sold or delivered greater quantities of plastic 647 material (rods and tubes) than previously, directly to firms which had performed or were qualified to perform "outside" fabrication work; Respondent's former jour- neymen machinists, basing their testimony upon pur- ported personal observation, so reported. Presumably, their testimony, were it left standing without qualification or contradiction, would provide some support, however tenuous, for a determination that Respondent was, in- deed, subcontracting more work. General Counsel's wit- nesses, however, could not report transactions related to particular subcontracts; they could merely note stepped- up deliveries and material pickups from Respondent's warehouse stock. Plant Manager Goforth's testimony, received without contradiction in this respect, will sup- port a determination, however, that Respondent's warehouse normally contains: (1) many completely machined plastic products, shipped from the firm's Anaheim plant, which local Bay Area customers routine- ly purchase for their own purposes, or for resale, without further modification, directly to their customers; and (2) plastic raw material (rods and tubes) processed within Respondent's Anaheim plant, which several local Bay Area firms freely purchase for complete machine fabrica- tion within their plants. Thus, even conceding, arguendo, that pickups and deliveries from Respondent's warehouse stock may have become more numerous or sizeable dur- ing the period with which we are concerned, General Counsel's presentation, with respect to this portion of his case, cannot be considered sufficiently probative to sustain a conclusion that such warehouse stock move- ments were specifically related to subcontracting. Factual Conclusions Within a court of appeals decision which many of my colleagues have recently cited, Circuit Judge Duniway has defined those circumstances under which triers of fact may properly "infer" statutorily proscribed motives for employer conduct challenged as discriminatory. Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d 466 (C.A. 9). In his decision, which sustained the Board's determination, we find: Actual motive, a state of mind, being the question, it is seldom that direct evidence will be available that is not also self-serving. In such cases, the self-serv- ing declaration is not conclusive; the trier of fact may infer motive from the total circumstances proved. Otherwise no person accused of unlawful motive who took the stand and testified to a lawful motive could be brought to book. Nor is the trier of fact - here the trial examiner - required to be any more naif than is a judge. If he finds that a stated mo- tive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer, desires to conceal - an unlawful motive - at least where, as in this case, the surrounding facts tend to reinforce that inference. [Emphasis supplied.] This decisional language, I take it, means that manage- ment's motive for conduct challenged as discriminatory may properly be inferred from the total circumstances proved, but that triers of fact will first be required to find - upon a preponderance of the evidence - that a respond- ent firm's stated motive for challenged conduct merits rejection. Upon this record, no such factual conclusion would be warranted. Respondent's declared motives for so-called 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "outside" fabrication - proffered with respect to nearly every subcontract placed within the 6-week period with which this case is directly concerned - have really not been disproved. (Within his brief, General Counsel has cited several purported discrepancies in Goforth's testimony, together with some seeming conflicts between his testimony and that proffered by Respondent's other witnesses, which, so it is contended, should generate doubts regarding the plant manager's truthfulness in this connection. These matters of record have been con- sidered. Were I to set forth in detail my reasons for dismissing them as without significance, this decision, al- ready too long, would be still further extended. Suffice it to say that, within their respective testimonial contexts, I find these claimed discrepancies and conflicts nonex- istent or minor; whether considered separately or cumu- latively, they have not persuaded me that Goforth's testimony, relative to subcontracts, should be rejected.) With commendable diligence, General Counsel's representative has sought to weave a seamless web - compounded from both testimonial recollection and documentation - sufficient to support his contention that Respondent's concededly greater volume of subcon- tracts, within the period in question, derived from pur- poses statutorily proscribed. The record considered in totality, however, constrains me to find that he has, despite his best efforts, constructed nothing more than a sieve. Had credible testimony been proffered with respect to more of General Counsel's "total" case, par- ticularly his contentions regarding claimed interrogation, purported threats of plant closure, and further threats of reprisal, such proven "total circumstances" might, con- ceivably, have justified a further determination that Plant Manager Goforth's proffered witness chair reasons for subcontracting, within the relevant period, lacked the requisite ring of truth. Without such supportive factual conclusions, however, General Counsel's case - with respect to subcontracting specifically - rests upon nothing more substantial than a suspicion that Goforth's stated justifications were contrived. Mere suspicion, however, will not warrant statutory sanctions. 3. Respondent's "Captive Audience" speech Pursuant to Respondent's consent-election stipulation, December 1, 1965, was designated the date when the required vote would be conducted. During the afternoon of November 30, less than 24 hours before the scheduled election, Respondent's president, so the record shows, conducted two employee meetings, within Plant Manager Goforth's office, during which Respondent's position, with respect thereto, was detailed. (Palo Alto plant work- ers were notified of President Churm's presence, and were requested to attend one of two successive meetings; the groups which met within Goforth's office, therefore, included five or six workers, Churm, and Respondent's plant manager.) The record reveals that the firm's em- ployees were told that they would not be required to remain or listen to Respondent's president; they were, however, paid for the time which they spent in Goforth's office. No employees, in fact, left during either meeting. a. General Counsel's version The transcript reflects some testimonial conflict re- garding President Churm's remarks. With respect thereto, General Counsel's witnesses, Dick Singleton, Leonard Singleton, and Bowden, testified substantially as follows: Churm, so they recalled, told the firm's workers - during meetings which lasted slightly less than an hour each - that he had "plans for the company" but could not discuss them because of the pending election. He referred to some previous union "trouble" within the firm's Anaheim plant, which had been resolved following the formation of a workers' committee there to present em- ployee grievances and confer with management. He sug- gested, so General Counsel's witnesses purportedly re- called, that the same procedure could be followed within the Palo Alto plant. Further, he stated that, after the Anaheim organizational attempt had failed, company management had installed a lunchroom area and "piped- in" music system, and that Respondent-was currently considering the institution of a pension plant. Inter alia, President Churm told his listeners, so General Counsel's witnesses declared, that Respondent knew who was for Complainant Union, who was against it, and who was "sitting on the fence" with respect to the question of union representation. When requested to recall "anything else" which Pre- sident Churm might have said, Leonard Singleton re- called he had commented that "regardless how this goes" the Company would like to have "everyone" working in harmony. (Singleton testified, further, that both Dick Singleton and he had presented one of their "major gripes" during the discussion; they had mentioned Respondent's practice of hiring part-time help for $4 per hour, while the firm's highest paid regular machinists were making $3.70 per hour. Churm, however, did not, so Leonard Singleton testified, indicate how this particular problem might be resolved.) Further, so Leonard Singleton declared, Respondent's president and Plant Manager Goforth both stated they would rather work "directly" with their personnel; Respondent's workers were reassured, however, that "they [management] would not hold it against us [company workers]" re- gardless of the vote's result. Dick Singleton recalled this portion of President Churm's speech somewhat dif- ferently; he quoted Respondent's president as saying, substantially, that, "We don't care if you vote Union or non-Union. If you vote in a union, we will recognize a union" though they (company management) preferred to settle any differences which might develop without a third party. Dave Bowden, present at the second of these two meetings, testified in substantially similar terms regarding Churm's remarks. b. Respondent's version President Churm's recollection, regarding the sub- stance of his remarks during both of the meetings in question, varied somewhat. He confirmed the testimony of General Counsel's witnesses that two meetings were held during the afternoon, though he recalled them as last- ing no more than 30-45 minutes each. Following a recapitulation of Plant Manager Goforth's introductory remarks - which had included a statement that any em- ployee was free to leave at any time - the Respondent's president testified that the meetings had been turned over to him. He recalled his remarks as follows: I told the people I was there because I was most con- cerned about the difference of opinion in the plant, and the results on the plant as a whole were quite derogatory, quite detrimental to the operation because we had-what was happening, we were los- THE FLUOROCARBON COMPANY ing production as a result of the conflict in the plant. I was really not concerned about what the conflict was or the outcome of the conflict , but I was most concerned of getting back to work and getting back together and stop the arguing and get the orders out I pointed out to the people as long as we continued this bickering in the plant , the whole operation was going to suffer, and that was not good for anybody re- gardless. I pointed out that if there were problems, I felt we should talk about them. I said I was most sur- prised that if there had been problems in the plant with an operation that small , that no one had gone in to Bob's office to talk to him about them. There seemed to be a complete lack of communication between the people in the plant and the General Manager of the place. This concerned me, very much. I pointed out that we had similar problem in our plant in Anaheim and we had lost communica- tion. When we re-established communication as a result of that, we got back on the track, and we solved the problem we seemed to be having. I then asked the people for a frank discussion at that meet- ing, what the problems were , and what we could do to solve them. With his recollection refreshed, Churm further recalled that he had said he was not concerned regarding the out- come of the firm's "current problem" but was concerned about getting out the work; he recalled saying, "We are going to do our utmost to play this game by the book and do what we should do." Likewise, he remembered saying that management would make no statement "pro or con" regarding what was going to happen , no matter which way "the thing" went. Questioned further, regarding any statement he may have made relative to the subject of plant closure, Churm testified: ... it was brought out by me. I told both groups of employees that that plant was going to stay open re- gardless of the outcome of the NLRB election. I told them that we had come to San Francisco to do busi- ness, and we were doing business in San Francisco. We had a good market, and we were going to con- tinue.... I said, "I have heard some speculation that we were going to close this plant." I said, "I am here to deny it. This plant is going to stay open." Respondent's president conceded his reference to some prior dissatisfaction within the firm's Anaheim plant. Specifically, he conceded a reference to the fact that Respondent's management , when it had "re-established communication" with Anaheim workers, learned that "one of the basic gripes" there derived from the lack of lunchroom space. Respondent's Palo Alto workers were told that, shortly thereafter , the firm's workers were pro- vided with a lunchroom area. Churm conceded, further, that he had "no doubt" mentioned the fact that Respond- ent had concurrently provided Anaheim with a music system. He could not "remember" whether he had said that Respondent's management was currently "working on a pension plan" for Anaheim employees; when presented with a specific question , later, he denied any reference to the possibility of a pension plan for Palo Alto plant workers. Though Respondent's Palo Alto workers were told that company management had "re-established communica- tion" within the Southern California plant through a grievance committee, Churm testified they were further told that he felt any similar committee , within a 10-man shop, would be ridiculous; the firm 's employees were re- 649 minded that direct, personal communication with Plant Manager Goforth was both possible and much simpler. (Churm recalled a question regarding the firm 's hiring of part-time "outside" people at higher rates; he further re- called endorsing Plant Manager Goforth 's decision in that regard, because such workers were required .to enable Respondent to handle "one particular order" within the period of time required, and because their timely comple- tion of that order would help build Respondent's busi- ness.) Respondent's president specifically denied making any suggestion that Palo Alto workers would be well ad- vised to set up a grievance committee. Further, he denied any remarks calculated to convey the impression that Respondent was engaging in surveil- lance. When queried regarding any statements which might have generated General Counsel's surveillance contention, Churm first declared that when Respondent's workers were being exhorted to stop their disputes and resume work he had made a statement that , "You know where you stand." Later, when questioned regarding his comments on company knowledge relative to the union sympathies of the plant complement , Respondent's pres- ident declared his belief that he had said , "You know who is for, and who is against, and who is on the fence," within the context of his plea for their return to work. (Emphasis supplied.) Respondent's president denied, generally, any promise of ecomic benefits for workers, conditioned upon their re- jection of union representation ; he conceded, merely, that he had made one promise, that regardless of the election results there would be no reprisals against workers on either side. Finally, during direct examination , Churm conceded a reference to the fact that Respondent had "some plans" for its employees ; he denied, however, making any state- ment that he had "things in the mill" for the betterment of Palo Alto plant conditions. During cross-examination , Churm's testimony regard- ing the substance of his remarks remained unshaken. Prompted by one of General Counsel 's questions, how- ever, he declared that: . when I was talking about we didn 't care what happened, let's get back to work , I pointed out I per- sonally had a very pleasant relationship with labor unions for the twelve previous years [with another company] and certainly would have a pleasant rela- tionship with one here. Unless we got the work out and maintained our productivity, we were going to be in trouble. Respondent's president conceded , however, that his listerners were told he preferred not to be required to deal with Complainant Union herein. c. Factual conclusions Respondent's defensive presentation - with respect to this portion of General Counsel's case - has been set forth, herein, with considerable detail. Such comprehen- sive statements, within my view, will facilitiate my disposition of some rather subtle questions. Within his brief, General Counsel has conceded that President Churm's remarks were "superficially" moderate ; he contends , nevertheless , that those remarks contained unlawful statements . Specific reference is made to Churm's purported statement that Respondent had forestalled an attempt to organize the firm 's Anaheim plant workers by suggesting, and thereafter dealing with, 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a workers' committee to resolve grievances. Further reference is made to purported declarations by Respond- ent's president that, following conferences with this grievance committee, company management had im- proved Anaheim working conditions by providing lunchroom facilities and "piped-in" music. Finally General Counsel cites Churm's purported statement that Respondent was "considering" both a pension plan, and various further, never specified, plans for Palo Alto em- ployees, which could not be discussed because of the pending election. The contention is proffered that these remarks constituted implied promises of benefit, directed to Respondent's Palo Alto workers, which contravened Section 8(a)(1) of the statute. General Counsel's position, thus summarized, neces- sarily stems from testimonial recitals, proffered by Leonard Singleton, Dick Singleton, and David Bowden specifically, which he would have me credit. Previously, however, within this Decision, several factors which have persuaded me to reject their testimony - relative to Donald Lawler's purported prior statements and conduct - have been noted. Substantially similar considerations presently constrain me, likewise, to reject their version of President Churm's November 30 remarks. Clearly, General Counsel's three journeymen machinists were dedicated union supporters; their testimony was proffered with patent conviction. But vigorous partisan- ship, however commendable, sometimes predisposes wit- nesses to shape testimony consistently with their concep- tions of necessity; certainly, such partisanship frequently colors memory. General Counsel's witnesses, without a doubt, presently believe that Respondent's president, during the November 30 meetings, did detail benefits which the firm's Palo Alto plant workers would receive, should they reject union representation. However, due regard for the record, considered in totality, has con- vinced me that their testimony, regarding various parts of Churm's speech, reflects embellished recollection, largely derived from a disposition to construe most of his re- marks consistently with their partisan views. (In this con- nection, however, I note Leonard Singleton's testimony, inter alia, that Respondent's president, when confronted with a so-called "major gripe" regarding the firm's hire of part-time workers at premium rates, gave no indication that the problem could or would be resolved. This, realistically viewed, clearly tends to undercut Singleton's testimony suggesting that President Churm was speaking in promissory terms. Had Churm, really, been disposed to promise benevolent receptivity or favorable considera- tion for proffered grievances, surely he would not have missed the chance thus given him to suggest that worker dissatisfaction with this managerial practice was sym- pathetically viewed, or that some solution with respect thereto would be found. Singleton's testimony on this point, since it suggests that Respondent's president was not really trying to subvert Complainant Union's cam- paign with meaningful promises, tends to vitiate whatever probative thrust his further recollections might otherwise possess.) Confronted with President Churm's divergent testimony, which he proffered composedly, with every sign of candor, this trier of fact, at least, cannot conscien- tiously find General Counsel's presentation persuasive. And Churm's recital, which I credit, will not sustain a determination that Respondent's workers were given "implied" promises of benefit. True, Respondent's pres- ident did detail certain circumstances which had per- suaded the firm's Anaheim plant workers to form a com- mittee qualified to formulate and discuss grievances with management. Further, Respondent's Palo Alto plant workers were concededly told that, following such dis- cussions, company management had modified some Anaheim working conditions. (These remarks, however, fall short of the typical "suggestions" regarding the for- mation of plant committees, which the Board has frequently condemned. See Bernet Foam Products Co., Inc., 146 NLRB 1277, 1299, in this connection, with cases therein cited.) However, even were I to conclude, arguendo, that Churm's recital was reasonable calculated to convey a subtle suggestion, despite his specific dis- claimer, that Respondent's Palo Alto workers would be well advised to follow a similar course - whereupon their grievances would be similarly resolved - that suggestion can hardly be considered sufficiently explicit to constitute a statutory violation. Promises, so my colleague, Trial Examiner Sinsheimer, has noted, may be made clearly and directly; they may, likewise, be made in less specific ways. Though a promise may not be intended, statements may be voiced in ways which lead others to believe that promise has been made; the conclusion may well be warranted, then, that a promise has, indeed, been proffered. (In Am. Jur. 2d, "Contracts," §2, the concept is discussed as follows: "In ordinary use the word `promise' frequently bears different shades of meaning. In both popular and legal usage, how- ever, a promise is an assurance in whatever form of ex- pression given that a thing will or will not be done.... No special form of words is necessary to create a promise. All that is necessary is that a fair interpretation of the words used shall make it appear that a promise was intended. This is sufficient even though the promise is not stated in clear terms. The mere expression of an intention or desire is not a promise, however; the promise is an un- dertaking to carry the intention into effect. . . . [Em- phasis supplied.]" This language, clearly, suggests, though it does not specifically say, that statements, before they may properly be characterized as warranting a promisory interpretation, must relate to some specific "thing" which will or will not be done, or some particu- larized "intention" which will be effectuated.) When management representatives, however, merely present narrative statements, without direct, primary relevance for their listeners, which, reasonably construed, reflect nothing more than some implied suggestion that grievances considered locally significant will be sym- pathetically reviewed, such statements cannot realisti- cally be treated as tantamount to declarations that "something specified" will not be done. See "promise," Webster's Seventh New Collegiate Dictionary, p. 682, definitions 1(a) and (b) particularly. They must be con- sidered, rather, merely as calculated to project a cor- porate "image" revelatory of benevolent paternalism. So construed, President Churm's November 30 speech constitutes nothing more than permissible "views, argu- ment, or opinion," rather than "implied" promises of benefit statutorily proscribed. General Counsel's contra- ry contention must be rejected. Since I have found Churm's testimonial recital regard- ing the substance of his remarks credible, General Coun- sel's contention that Respondent further violated Section 8(a)(1) of the statute through his purported declaration that Respondent's management knew the union sym- pathies of Palo Alto plant workers must likewise be dismissed. (We do not, therefore, confront the problem THE FLUOROCARBON COMPANY 651 with which the Board dealt in Moore's Seafood Products, Inc., 152 NLRB 683, 664, or similar cases.) Some further comment with respect to this portion of General Coun- sel's case, however, seems warranted. The record conflict over what Respondent's president said, with respect to this matter, reflects nothing more than divergent recollec- tion regarding his pronoun usage; General Counsel's wit- nesses recalled him saying, "We know" while Churm re- called a comment that, "You know" who were Complain- ant Union's supporters. Such narrowly conflicting testimony, within my view, reflects a situation which may justifiably persuade a trier of fact that some particular witness' wish has fathered his thought. The likelihood that one verbal formulation, rather than the other, was proffered must be gathered, then, from the purported statement's total context. Were I to credit the testimony of Respondent's journeyman machinists, with respect to this matter, Churm's supposed remark would have con- stituted a digression from his general tenor; some deter- mination would be required that Respondent's president had shifted, without readily apparent motivation, from comments presumptively calculated to beguile or mollify possible malcontents to one which would reasonably tend to generate fears. Within the total context provided by President Churm's recital, however, his version, with respect to the remark now in question, falls logically into place; the statement, "You know . . ." would be con- sistent with the balance of his recollections. These con- siderations, coupled with those previously noted, have contributed to my conclusion that Respondent pre- sident's testimony, regarding the substance of his November 30 remarks, may properly be found more reli- able. 4. Subsequent developments Previously, within this Decision, reference has been made to the consent election conducted December 1, 1965. Respondent's eligibility list, prepared for the payroll period ending November 5, 1965, pursuant to stipulation, contained 13 names; the list included Donald Lawler, designated as the firm's working foreman. When the election was conducted, however, Lawler's ballot was challenged; 12 valid votes were counted. Four votes were cast for Complainant Union; eight votes were cast against union representation. C. Conclusions With matters in this posture, we confront two final questions: Will the credible testimony and documentary material, previously reviewed within this Decision, sup- port General Counsel's contention that Section 8(a)(1), (3), and (5) have been violated? Or, should such a deter- mination not be found supportable, will they, neverthe- less, require a conclusion that Complainant Union's elec- tion protest should be sustained? These matters will now be considered. 1. Claimed interference, restraint, and coercion Previously, within this Decision, I have found that Plant Manager Goforth, while posting a copy of Com- plainant Union's representation petition which Respond- ent had received, queried two of Respondent's journey- men machinists with respect to their knowledge of the matter with which the petition dealt. Credible testimony, proffered by Respondent's plant manager, reflects their disclaimer with respect thereto. Thereafter, so I have found, nothing more than casual remarks were exchanged; though Goforth did state that Respondent would rather operate without unionization, were it given the choice, his comments in that regard clearly con- stituted nothing more than "views, argument, or opinion" without accompanying threats or promises of benefit. Relevant decisional doctrine, both Board and court declared, has clearly established the principle that mere words of interrogation, or perfunctory remarks not them- selves reflective of threats or intimidation, chargeable to respondent firms with no revealed antiunion background - when not connected with a pattern or course of conduct hostile to unionism or suggestive of espionage upon workers-will not, standing by themselves, call for statu- tory proscription. Blue Flash Express, Inc., 109 NLRB 591; cf. Sax d/b/a Container Manufacturing Company v. N.L.R.B., 171 F.2d 769, 773 (C.A. 7); National Can Corporation v. N.L.R.B., 374 F.2d 796 (C.A. 7). The present record, considered in totality,- reveals nothing more serious. (We do not have here, so I have found, questions which sought to place Respondent's jour- neymen machinists in the position of acting as informers regarding the union activities of their fellow workers. Compare Abex Corporation-Engineered Products Divi- sion, 162 NLRB 328. Such questions, even when presented casually, during a friendly conversation, have been found coercive.) Had Respondent's overall course of conduct - within the period with which this case is directly concerned - persuasively shown a pattern of threats, reprisal, and discriminatory treatment, calculated to forestall Complainant Union's possible election victo- ry, Goforth's conceded question, though seemingly casual, might well be found, retrospectively, deserving of statutory proscription. Standing alone, however, his question merits no such treatment. General Counsel's next contention - that Respondent, through Donald Lawler, the firm's foreman and produc- tion manager, told Palo Alto plant workers the plant would be closed, or that certain work they had been per- forming would be subcontracted, because of their union proclivities - has previously been rejected; Lawler's deni- al with respect thereto has been credited. His conceded participation in two conversations, during which others mentioned the possibility of plant closure, reflects no comment chargeable to him which could, within my view, be deemed violative of the statute. (With respect to this portion of General Counsel's case, Respondent's counsel proffered a contention, further, that his client could not be held responsible for Lawler's purported comments, in any event, since the latter, despite his "working foreman" designation, could not properly be considered a super- visor. However, had I credited Respondent's journeymen machinists, with respect to their testimony about Lawler's supposed campaign of threats, interrogation, ac- cusation, and prospective reprisal, I would have found, contrary to counsel's contention, that the firm could properly be charged with responsibility for his conduct. Lawler's claimed supervisory status was thoroughly litigated; the record, considered in totality, would, within my view, clearly warrant a determination that, because Respondent's plant manager was required to spend much time away from the plant, he (Lawler) was tacitly per- mitted responsibly to direct the work of Respondent's shop personnel. Respondent's plant workers clearly con- sidered him, with reason, part of management. See 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD N.L.R.B. v. Edward G. Budd Manufacturing. Co., 169 F.2d 571, 575-576 (C.A. 6); Jas. H. Mathews & Co. v. N.L.R.B., 354 F.2d 432, 434-435 (C.A. 8); N.L.R.B. v. Elliott-Williams Co., 345 F.2d 460, 463 (C.A. 7); N.L.R.B. v. Syracuses Stamping Company, 208 F.2d 77, 79 (C.A. 2); cf. International Association of Machinists, Tool and Die Makers Lodge No. 35 v. N.L.R.B., 311 U.S. 72, 80; N.L.R.B. v. Swift & Company, 292 F.2d 561, 563 (C.A. 1). Compare Oregan Stevedoring Com- pany, Inc., 162 NLRB 1272; Corey Brothers, Inc., 162 NLRB 1253; Corral Sportswear Company, 156 NLRB 436, enfd. 383 F.2d 961 (C.A. 10); Stuart Radio Sales, Inc., Cases 25-CA-7027, 7202 (TXD-(SF)-173-66, Slip Opinion, pp. 14-15); and Gulf & Western Industries, Inc., 165 NLRB 7, in this connection. There can be no doubt that Lawler did exercise some degree of general authority over production workers within Respondent's shop, whether or not Plant Manager Goforth personally considered such authority specifically delegated, and that he was, therefore, strategically positioned to trans- late, for them, management's policies and desires. Nevertheless, having reached this conclusion with respect to management's responsibility for Lawler's conduct, I would further find, contrary to General Counsel's contention, that Plant Manager Goforth's November 19 disavowal bulletin, noted previously within this Decision, sufficed to dissipate whatever restraint or coercion Lawler's purported prior statements and course of conduct might have generated .) Since my credibility resolutions, thus, have disposed of General Counsel's contention that Respondent , through Lawler's statements , interfered with, restrained , or coerced Palo Alto plant workers, no necessity for comment arises with respect to Respondent's further defensive contention that whatever threats the firm's "working foreman" may have made should not, in any event , be considered statutory violations ; (a) because Respondent's journeymen machinists, when reportedly threatened , declared their skepticism regarding such threats, and (b) because their labor market prospects within the Mid-Peninsula area were so bright that they could not reasonably have con- strued a prophecy of possible plant closure as threaten- ing. These contentions need not, with matters in their present posture, be resolved. General Counsel has charged Respondent's plant manager with statements, during the week which fol- lowed his receipt of notice regarding Complainant Union's petition, declaring or necessarily implying that the firm's regular working hours would be changed, and that Palo Alto plant employees would no longer be per- mitted to work overtime, because of their presumptive desire for union representation. Though the record does reflect Plant Manager Goforth 's concession that state- ments were, indeed, made about Respondent's change in policy with respect to working hours, nothing can be found therein which would justify a determination that Respondent's declared policy change was linked, specifi- cally or by necessary implication , with Complainant Union's campaign . Goforth's policy change pronounce- ments did, clearly, follow closely upon his receipt of notice regarding Complainant Union 's petition. Credible testimony has been proffered, however, which, absent persuasive refutation, would warrant a conclusion that this temporal coincidence was fortuitous, and that management's decision to cut working hours derived from business considerations . Such testimony, slight though it may have been , has not been successfully coun- tered. Compare Sperti Sunlamp Division, Cooper-Hewitt Electric Co., Inc., 162 NLRB 1148, 1155, and cases therein cited. With matters in this posture, mere suspicion with respect to Respondent's motive, which some work- ers could conceivably have derived, reasonably, from the temporal coincidence noted, cannot carry the day for General Counsel's contention that Goforth's bare set of pronouncements, regarding changed working hours and overtime work reduction, was coercive. Regarding President Churm's challenged speech, little more need be said. My credibility resolution with respect thereto, previously noted, dictates a rejection of General Counsel's several particularized contentions . Determina- tion seems warranted, rather, that Churm's reported re- marks reflect nothing more than his temperate statement of certain protected "views, argument or opinion" reasonably calculated to persuade, rather than coerce. I so find. 2. Claimed discrimination Previously , within this Decision , reference has been made to General Counsel's contention that Respondent violated Section 8(a)(3) of the statute: (a) By depriving Palo Alto plant workers of previously granted chances for overtime work, because of their union proclivities; and (b) by subcontracting some of the plant's regular work, for the same reason. The record, certainly, does reveal that, within the relevant period with which this case is directly concerned, the firm's management did reduce overtime work hours for many Palo Alto production workers, and that more contracts for so-called "outside" fabrication, measured both in terms of number and dollar volume, were placed. However, within a context which I have herein found otherwise free of proscribed conduct, these modifications of prior practice cannot be con- sidered, per se, statutory violations. Clearly, management's changed pattern of conduct, with respect to both matters noted, did leave Respond- ent's Palo Alto workers somewhat disadvantaged. How- ever, General Counsel cannot herein prevail - with respect to this portion of his case - merely by demonstrat- ing that Respondent's management modified certain busi- ness practices , which modifications necessarily caused some financial or other detriment for plant workers. (Since the record does not reflect types of discrimination which inherently discourage union membership, proscribed motivations cannot be presumed, but must be proven.) Findings of statutorily proscribed discrimination must, rather, rest upon factual determinations reasonably sufficient to warrant a conclusion that , without some demonstration of worker interest in unionization, management would have refrained from making the modifications challenged. With due regard for the present record, the general "timing" factor previously noted cannot but generate some suspicion that statutorily proscribed motives may well have played a part in Plant Manager Goforth's deci- sions. Some prior reference has, however, been made to Respondent's proffered justification for reduced hours; further, detailed consideration has been given Goforth's multifaceted disquisition on various business considera- tions which purportedly determined his course of con- duct. Respondent's defensive presentation, with respect to these matters, has not , within my view, been suffi- ciently rebutted. (General Counsel's contention that Plant Manager Goforth's testimony should be generally THE FLUOROCARBON COMPANY discredited, because of purported discrepancies, self-con- tradiction, and divergent recitals proffered by other wit- nesses, has, for reasons previously noted , been rejected.) Buttressed with collateral support, which would have been present had I credited more of General Counsel's testimonial presentation, the factor of temporal coin- cidence, with respect to Respondent's reduction of hours and greater subcontracting, could conceivably have been persuasive; without such support, however, General Counsel's contention that suspicious "timing" solely will suffice to outweigh Respondent's case must be rejected. (General Counsel has cited Foster's rebuttal testimony in this connection, claiming that it supports the conclusion which he would have me draw. However, that testimony, for reasons previously noted, has not persuaded me that Respondent's course of conduct derived from statutorily proscribed motives.) General Counsel, therefore -so I find- has failed once more to prove, with the requisite evidentiary preponderance, that Respondent dis- criminated against Palo Alto plant workers, for the pur- pose of discouraging their union membership , through subcontracting work previously done by them, or through depriving them of previously granted chances to perform overtime work. 3. The claimed refusal to bargain a. Respondent's purported rejection of collective-bar- gaining principles General Counsel's contention that Respondent's refusal to meet and bargain with Complainant Union vio- lated Section 8(a)(5) of the statute, within the factual con- text presented for consideration herein, raises a veritable gallimaufry of subtle, complex questions. With matters in their present posture , however, some determination would seem to be required , first, whether General Counsel's failure to prove Section 8(a)(1) or (3) violations chargeable to Respondent's management destroys the quintessential basis for his further Section 8(a)(5) contention. Consideration of this question may, properly, begin with General Counsel's statement of posi- tion within his brief. That statement reads: In determining whether Respondent violated Section 8(a)(5) by its admitted refusal to recognize and deal with the Union, it is necessary to decide whether Respondent's [refusal] was based on a good faith doubt of the Union's majority status. The burden of proving such lack of good faith is the General Coun- sel's. This burden can be met in either of two ways. It can be demonstrated that an employer has learned that a union actually represents a majority of his em- ployees through the counting of authorization cards or by some other similar method. [Trial Examiner's comment: Presumably General Counsel would argue that the employer's subsequent refusal to recognize the Union, without challenging its majority status, may be considered "adequate affirmative evidence" that he lacked any good-faith doubt with respect thereto.] The burden can also be met by showing that an employer has engaged in a course of conduct which indicates that it rejects the principle of collec- tive bargaining and that its refusal to recognize the Union is based on a desire to gain time in which to undermine the Union's majority status. Aaron Brothers Company of California, 158 NLRB 1077. In the instant case, Respondent's lack of good faith 653 in refusing to recognize the Union is demonstrated by this second method. All of the conduct in this case establishes that Respondent did not have a good- faith doubt of the Union's majority status but rather engaged in a course of conduct designed to destroy that majority status. [Emphasis supplied.] General Counsel's position, thus, derives from the so- called Joy Silk Mills rationale. Joy Silk Mills, Inc. v. N.L.R.B., 185 F.2d 732, 741 (C.A.D.C.), enfg. 85 NLRB 1263. Where a company had engaged in substantial unfair labor practices calculated to dissipate union support, the Board, with court approval, concluded that the em- ployer's insistence on an election had not been motivated by good-faith doubt of the union's majority, but rather by the firm's rejection of collective-bargaining principles or by management's desire to gain time within which to un- dermine the union and dissipate its majority. This cannot be taken to mean, however, that any em- ployer conduct violative of Section 8(a)(1), regardless of its nature or gravity, will necessarily support a refusal-to- bargain determination. Aaron Brothers Company of California, supra; cf. United Mineral & Chemical Cor- poration, 155 NLRB 1390, 1394, fn. 9. Where an em- ployer's unfair labor practices are not of such "consistent and flagrant" character as to reflect his purpose to reject collective-bargaining principles and thereby evade his statutory obligation to bargain, the Board will not draw an inference of bad faith. Compare N.L.R.B. v. Flomatic Corporation, 347 F.2d 74, 77-79 (C.A. 2), cited with ap- proval in Hercules Packing Corporation, 163 NLRB 164, 265, cf. Hammond & Irving, Incorporated, 154 NLRB 1071, 1073, in this connection. Herein, General Counsel has not, within my view, sustained his burden of proof that Respondent 's manage- ment, following its receipt of Complainant Union's recog- nition letter, and Board notice with respect to Complain- ant Union's petition, commenced a course of conduct reasonably calculated to restrain , coerce, or interfere with its Palo Alto workers' freedom to choose their bargaining representative. Compare The Great Atlantic and Pacific Tea Company, Inc., 162 NLRB 1182. Thus no deter- mination would be warranted, with matters in their present posture, that Respondent's course of conduct dis- played a disposition to reject collective-bargaining princi- ples, or a desire to gain time within which to dissipate Complainant Union's majority. (In this connection, note should be taken that, following Respondent's October 14 receipt of notice with respect to Complainant Union's petition, discussions looking toward a possible consent- election agreement were initiated by October 25; Respondent's counsel signed the stipulation for certifica- tion upon consent election on November 5. So far as the record shows, normal Regional Office procedures, with respect to the petition's disposition, were followed; Respondent does not seem to have pursued any tactic cal- culated to cause delay.) Within his brief, General Counsel has foresworn any contention that bad faith on Respon- dent's part could or should be deduced because company management possessed "independent knowledge" that Complainant Union represented a majority , but neverthe- less withheld recognition. Should such a contention presently be proffered, I would have to reject it; the record simply will not support a determination that Plant Manager Goforth was ever provided with direct proof of Complainant Union's majority status, or data from which Complainant Union's status could have been deduced. (True, Complainant Union's October 13 letter demand- 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing recognition had contained an offer to prove majority status, through a card check conducted by some disin- terested third party. Had Goforth, confronted with nothing more than this , chosen to remain silent, his failure to respond might arguably, within context , support a con- clusion that he really had no good-faith doubt of Com- plainant Union's majority. When, however, Complainant Union filed its petition for certification promptly thereafter, Respondent's permissible range of response or nonresponse was broadened. Respondent's plant manager, with matters in this posture , could, pursuant to settled decisional doctrine , wait for some Board disposi- tion of Complainant Union 's claimed question concerning representation. Without proof that Respondent chose such a course, while participating in statutorily proscribed conduct sufficiently gross to warrant a deter- mination that its choice was made in bad faith, the firm cannot be faulted. See Aaron Brothers Company of California, supra, in this connection.) We do not, therefore, have a case wherein company management, confronted with a recognition demand by some proven majority representative , has rejected such proof without challenging its validity, and has demanded Board election despite its failure to cite valid grounds therefor. See Snow & Son V. N.L.R.B., 308 F.2d 687 (C.A. 9), enfg. 134 NLRB 709; and Bernel Foam Products Co., Inc., 146 NLRB 1277, 1283, in this con- nection. Since I have found no "reliable, probative or substan- tial" evidence herein that Respondent's failure to proffer some positive response when confronted with Complain- ant Union's recognition letter, reflected a purpose to evade its statutory obligation to bargain, various subsidia- ry questions, which the record , viewed otherwise, might present, need not be considered; they will not within my view now control this case 's disposition. (For example: Respondent, while conceding that Complainant Union's claimed bargaining unit would be appropriate for collec- tive-bargaining purposes , had challenged General Coun- sel's proof regarding this Union's "majority" status therein. Contentions were proffered that Complainant Union's majority designation had been coerced or procured through misrepresentation; that designation cards submitted for the record, following their authentica- tion by Complainant Union's card solicitors, should not be taken at face value as proof of their signers' intent; that certain designated cards should not, for various reasons, be counted as contributing to Complainant Union's majority showing; and that the whole group of designa- tion cards proffered for the record should, in any event, be rejected since they designate Complainant Union's parent body, but not Complainant Union itself, as their signers' bargaining representative. Clearly, disposition of these questions, now, will not be required. Further, Respondent's counsel, within his brief, contends that no Board bargaining order should , in any event , be con- sidered appropriate herein - pursuant to decisional pnnci- ples laid down within the Bernet Foam and Irving Air Chute cases - since Complainant Union's sole specific election objection, when filed, was too limited in scope to call for such drastic remedial provisions , while the Union's further objection was stated generally, so that it could not provide a proper "meritorious" predicate for Board sanctions. Respondent's counsel suggests that the generality of Complainant Union 's submission must be considered beyond cure, since the Board's Regional Director, under various cited cases, lacks the power, sua sponte, to render such a submission more specific, with a report which designates some particularized statements and conduct, discovered through investigation, purport- edly comprehended within its general terms. See United States Rubber Company v. N.L.R.B., 373 F.2d 602 (C. A. 5); International Ladies' Garment Workers' Union v. N.L.R.B., 339 F.2d 116 (C.A. 2); Orleans Manufac- turing Company, 120 NLRB 630; Swift & Company, 119 NLRB 1397; Audubon Cabinet Company, Inc., 119 NLRB 349; National Furniture Company, 119 NLRB 1; Mission Appliance Corporation, 104 NLRB 361. Were I required to determine this question, I would probably find myself constrained to reject counsel 's highly so- phisticated contention with respect thereto. United States Rubber Company V. N.L.R.B., supra; N.L.R.B. v. Realist, Inc., 328 F.2d 840 (C.A. 7); Consolidated Rendering Company, 161 NLRB 1, fn. 36; Freskeeto Frozen Foods, Inc., 159 NLRB 342; Morganton Dyeing and Finishing Corp., 154 NLRB 404, 418, fn. 26; Eklund Brothers Transport, 136 NLRB 471; International Shoe Company, 123 NLRB 682, 684; Montgomery Ward & Company, 118 NLRB 310; Lockwood-Dutches, Inc., 106 NLRB 1089; Hobart Mfg. Company, 92 NLRB 203; Compare Atlantic Mills Servicing Corporation, of Cleveland, 120 NLRB 1284, overruling in part Don Allen Midtown Chevrolet, Inc., 113 NLRB 879. Since I have, however, found, for other reasons, that Respondent did not refuse to bargain, the present case provides no factual framework calling for the question's settlement.) Shortly and simply, then, General Counsel has, with due regard for the record considered as a whole , failed to sustain his Complaint contention that Respondent, com- mencing on or about October 14, 1965, and at all times thereafter, through a course of conduct which revealed its rejection of collective-bargaining principles, did refuse, and continues to refuse , to meet and bargain collectively with Complainant Union as the exclusivive collective- bargaining representative of the firm's Palo Alto produc- tion and maintenance workers. b. Respondent's purported changes in working conditions Within his brief, General Counsel argues that, since determination would be warranted Respondent was duty bound to bargain with Complainant Union after October 14, following its receipt of notice with respect to that or- ganization's representation claims, management's sub- sequent decisions to reduce plant overtime hours, and to subcontract unit work, without giving Complainant Union a chance to bargain thereon, separately violated the statute. Respondent's unilateral course of conduct with respect to both of these matters, so General Counsel contends, must be considered a refusal to bargain, whether or not Plant Manager Goforth's decisions were discriminatorily motivated. See N.L.R.B. v. Benne Katz, dlbla Williamsburg Steel Products Co., 369 U.S. 736. The contention however must be rejected. The reduction of hours. This Board has found a re- spondent firm guilty of Section 8(a)(5) violations, when the firm, unilaterally, first decreased and subsequently increased employees' hours of work, despite its determi- nation that such changes were prompted by economic necessity rather than by management 's purpose to discourage unionization or perpetrate reprisals. See The Weston and Brooker Company, 154 NLRB 747, 763, and cases therein cited. Such determinations , however, have THE FLUOROCARBON COMPANY defined the bargaining duty of respondent firms found, upon other grounds, statutorily bound to deal with cer- tified or previously recognized bargaining representa- tives. (No case known to me holds that respondent firms violate the law, with respect to their statutory duty to bar- gain, when they promulgate unilateral work changes for workers who have not, within the purport of the statute, designated a bargaining representative. General Counsel has cited none. Clearly, such conduct cannot be con- sidered demonstrative of management's "complete rejec- tion of the collective bargaining principle" without some record proof which would warrant a determination that respondent firm was, for other reasons, duty bound to bargain. Consolidated Rendering Company, 161 NLRB 1, fn. 1; see The Colson Corporation, 148 NLRB 827, enfd. 347 F.2d 128 (C.A. 8). To hold that some em- ployer's proven or conceded unilateral conduct both creates a bargaining duty and, simultaneously, reflects its violation, would clearly be bootstrap reasoning.) Since Respondent's total course of conduct - considered without reference to management's concededly unilateral decisions now in question - has not been found sufficient to, warrant a declaration that Respondent's management should be considered duty bound to recognize and bar- gain with Complainant Union herein, Plant Manager Goforth's decision to reduce Palo Alto working hours cannot be found demonstrative of Respondent's deter- mination to reject collective-bargaining principles. Subcontracts. I have found, herein, that Respondent's greatly expanded volume of subcontracts, within the period with which this case is directly concerned, derived from business considerations. With matters in this posture, Goforth's challenged "subcontract" decisions - like his decision to reduce working hours - cannot, them- selves, justify concurrent determinations that Respond- ent was both duty bound to bargain, and neglectful of that duty. Further, nothing within the present record would, within my view, justify a conclusion that Respond- ent's management had transgressed permissible limits, with respect to so-called unilateral subcontracts. Since the Supreme Court's Fibreboard decision (379 U.S. 203) this Board has repeatedly noted that its condemnation of unilateral subcontracting, with respect to unit work, has not been calculated to lay down hard and fast rules for mechanical application, regardless of the situation in- volved. Westinghouse Electric Corporation (Mansfield Plant), 150 NLRB 1574. Rather, the Board has identified several recurrent factors which, within its view, particu- larly limit the Fibreboard obligation; the doctrine has consistently been confined to cases in which some "sig- nificant detriment" has occurred, resulting in some "real Change in ... [the employees'] . . . terms and conditions of employment." Within Westinghouse, the Board noted that, in the cases with respect to which violations have been found: ... it has invariably appeared that the contracting out involved a departure from previously established operating practices, effected a change in conditions of employment, or resulted in a significant impair- ment of job tenure, employment security, or reasonably anticipated work opportunities for those in the bargaining unit. Where, however, work scheduled for subcontracting could be shown to require skills not normally required for unit work, or where unit employees did possess requisite skills but their employer did not have available the par- ticular equipment required for efficient performance of 655 the job, no significant detriment has been found. Shell Oil Company, 149 NLRB 283; cf. Central Soya Company, Inc., 151 NLRB 1691; American Oil Company; 151 NLRB 421. Upon the present record, even assuming, arguendo, that Respondent could, upon other grounds, be considered duty bound to bargain, no sufficient showing has been proffered that Goforth's greater volume of so- called outside "fabrication" work, (1) reflected any deter- minable qualitative departure from previously set subcon- tract practices, (2) changed conditions of work within the firm's Palo Alto plant, or (3) resulted in some "significant detriment" for Palo Alto plant workers, with respect to their job tenure, employment security, or reasonably an- ticipated work opportunities. Since, then, the present record, considered without reference to Respondent's challenged unilateral changes, cannot sustain a determination that respondent firm, con- sistently with the previously noted Joy Silk Mills rationale, should be considered duty bound to bargain, and since no sufficient showing has been made that Plant Manager Goforth's unilateral decisions were calculated to deprive Palo Alto plant workers of job tenure, employ- ment security, or work opportunities which they could have anticipated reasonably, General Counsel's conten- tion that these unilateral decisions demonstrate a complete rejection of collective-bargaining principles, and therefore merit statutory proscription cannot be sustained. IV. THE OBJECTIONS TO THE ELECTION Previously, within this decision, reference has been made to Complainant Union's timely filed objections, relative to the December 1, 1965, election. Within the Regional Director's supplemental report on objections is- sued April 12, 1966, he noted that his investigation of Complainant Union's objections had disclosed some evidentitary conflict with respect to Respondent's claimed participation in certain conduct which, should it be found, would warrant setting aside the election results. Basing his conclusions upon this showing of conflict, the Regional Director declared "that Petitioner's objections and the investigation thereof' had raised substantial and material issues of fact, which a hearing could best resolve. Further, he noted that, since "most of these matters" had been designated statutory violations within the Complaint herein, the purposes of the statute would best be served by consolidation of both matters, for hearing purposes, so that questions posed by the Complaint and Petitioner's objections might be jointly considered. The Board's subsequent Order directed, consistently with the Regional Director's recommendation, that a hearing be held "to resolve the issues raised by Peti- tioner's Objections" specifically, consolidated with the hearing scheduled on General Counsel's Complaint herein. My conclusions with respect to General Counsel's Complaint, previously set forth, largely dispose of Com- plainant Union's objections, supplemented within the Re- gional Director's report, in the representation matter. Specifically, my determination has been noted that the record will not sustain any conclusion that Respondent - through Donald Lawler or some other management spokesman - threatened Palo Alto plant workers that the plant would be closed and moved to Los Angeles, should they vote for union representation. Regarding Complain- ant Union's further objection, concededly couched in 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD general terms, I have found that credible testimony proffered for the record will not sustain a conclusion that Respondent's challenged course of conduct, purportedly detailed within the Regional Director's supplemental re- port, reflected unfair labor practices; the record, further, will not, within my view, sustain any conclusion that Respondent's course of conduct really vitiated "laborato- ry conditions" sufficiently to warrant this Board's vaca- tion of the vote result. Some further comment, however, would seem to be required. The Board's Order directed me to conduct a hearing to resolve the questions raised by the "Peti- tioner's objections" specifically. Those objections clearly did not, on their face, challenge the vote result particu- larly because Respondent had conducted meetings of plant workers on company time, within the 24-hour period which preceded the scheduled vote. Reference to this development was made, for the first time, within the Regional Director's supplemental report; we may take it, therefore, that any question raised with respect to Respondent's course of conduct - so far as plant meetings are concerned - derives, not directly from Complainant Union's protest, but from the Regional Director's in- vestigation which that protest sparked. With matters in this posture, the Board could, con- ceivably question whether Respondent's decision to con- duct these meetings should be considered within the present inquiry's scope. (The Regional Director's supple- mental report, in this connection, notes "evidence that on the afternoon of November 30, 1965, within 24 hours of the election, the unit employees were assembled on com- pany time in two groups" which President Churm ad- dressed. Primarily, however, the Regional Director's sup- plemental report seems calculated to suggest that the pur- ported substance of President Churm's remarks, rather that the circumstances under which they were made, would warrant setting the election aside, should Com- plainant Union's generalized contention with respect thereto be found sustainable.) During oral argument, though not within his brief, Respondent's counsel did suggest that no consideration should presently be given these questions, since Complainant Union had not spe- cifically challenged the circumstances under which the two plant meetings were conducted. There can be no doubt, however, that these matters, namely, the scheduled time when the meetings were held, and the circumstances under which those meetings were conducted, have been herein litigated. Respondent has not, really, been taken by surprise. Within my view, therefore, consideration may properly be given the question-presented by this record-whether Respond- ent's decision to conduct two meetings, within the 24- hour period which preceded the scheduled vote, warrants a Board determination to vacate the December 1 election results. For some 13 years the Board has declared and en- forced a rule, first promulgated within its Peerless Plywood decision, that: employers and unions alike will be prohibited from making election speeches on company time to massed assemblies of employees within 24 hours be- fore the scheduled time for conducting an elec- tion. . The Board declared that violations of this rule would cause elections to be set aside, whenever valid objections were filed. Parties to Board proceedings were, however, advised that the rule would not prohibit employers or unions from making campaign speeches, on or off com- pany premises within the 24-hour period if employee at- tendance is voluntary and on the employees' own time. Peerless Plywood Company, 107 NLRB 427, 429-430. Within the Board's view, the combined circumstance of (1) the use of company time for preelection speeches, and (2) the delivery of such speeches on the eve of the elec- tion, regardless of their noncoercive content, tends to destroy freedom of choice, and serves to establish an at- mosphere within which a free election cannot be held. The record, previously noted, clearly warrants a deter- mination that Respondent's management, whether deliberately or carelessly need not be decided now, vio- lated this rule. The meetings with which we are now con- cerned were, concededly, both held within the 24-hour period which preceded the vote. Palo Alto plant workers were, plainly, told their attendance would be voluntary; they were specifically advised with respect to their freedom to leave. The record, however, reveals that, when they did not leave, they were compensated for their time. This single factor, so I find, suffices; Respondent's management transgressed. My recommendation, therefore, will be that Complain- ant Union's Objections, directed to the December 1, 1965, election, should be, in this respect, sustained. Since my Recommended Order, however, rests upon nothing more than this narrow ground, no Board Order beyond the direction of a second election could properly be con- sidered warranted. CONCLUSIONS OF LAW 1. Respondent, The Fluorocarbon Company, is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended. 2. International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93, is a labor organization within the meaning of Section 2(5) of the Act, as amended. 3. All production and maintenance employees of Respondent at its Palo Alto, California, location, exclud- ing office clerical employees, professional employees, guards, and supervisors as defined in the Act, constituted, throughout the period with which this case is concerned, a unit appropriate for collective-bargaining purposes, within the meaning of Section 9(b) of the Act, as amended. 4. Between October 11 and 12, 1965, Complainant Union was presumptively designated and selected by a majority of Respondent's employees, within the unit described above, to function as their exclusive represent- ative for collective-bargaining purposes. On October 14, 1965, Complainant Union, functioning as the collective- bargaining representative of workers within the unit previously described, requested Respondent to bargain collectively regarding their rates of pay, wages, hours of employment, or other terms and conditions of work. 5. Upon a petition for certification which Complainant Union filed on October 15, 1965, declaring that a question concerning representation existed with respect to Respondent's workers, within the bargaining unit previously described, representatives of Complainant Union and Respondent subsequently signed a stipulation for certification on consent election. Pursuant thereto an election was held on December 1, 1965; during that elec- THE FLUOROCARBON COMPANY 657 Lion, Complainant Union did not receive a majority of the valid votes counted plus challenged ballots. 6. General Counsel has not produced reliable, proba- tive, and substantial evidence, herein, sufficient to justify a determination that Respondent did engage or that it continues to engage in unfair labor practices, within the meaning of Section 8(a)(1) and (3) of the Act, as amended. 7. General Counsel has not, herein, produced reliable, probative, and substantial evidence sufficient to justify a determination that Complainant Union, despite its failure to win majority designation through the December 1, 1965, election previously noted, has been, and is now, en- titled to recognition as the exclusive collective-bargaining representative of Respondent's employees within the unit previously described. 8. General Counsel has not produced reliable, proba- tive, and substantial evidence sufficient to justify a deter- mination that Respondent here, through its failure or refusal to bargain collectively with Complainant Union after October 14, 1965, specifically, did engage or con- tinues to engage in unfair labor practices, within the meaning of Section 8(a)(5) and (1) of the Act, as amended. RECOMMENDED ORDER Upon these findings of fact and conclusions of law, and upon the entire record in this consolidated case, my recommendation is that the Board, pursuant to Section 10(c) of the National Labor Relations Act, as amended, dismiss the present Complaint in its entirety. My further recommendation is that the results of the election conducted on December 1, 1965, for Respond- ent's Palo Alto plant workers be vacated, and that the Board direct a second election in Case 20-RC-6640 to be conducted by the Regional Director for Region 20 when- ever he finds that circumstances will permit a free choice of bargaining representative.