G. W. Murphy Industries, Inc.

62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD G. W. Murphy Industries, Inc., Portable Electric Tools Division and District No. 122 , International Association of Machinists and Aerospace Wor- kers, AFL-CIO G. W. Murphy Industries, Inc., Portable Electric Tools Division and District No. 122, International Association of Machinists and Aerospace Wor- kers, AFL-CIO. Cases 13-CA-8288 13-CA-8403, and 13-RC-1 1541 June 30, 1970 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION By MEMBERS FANNING, MCCULLOCH, AND JENKINS On March 19, 1969, Trial Examiner Max Rosen- berg issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices alleged in the complaint and recommended that the com- plaint be dismissed in its entirety, and that the ob- jection to the election be overruled and the results of the election be certified, as set forth in the at- tached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed ex- ceptions and supporting briefs. 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 the 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 as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid votes has not been cast for District No 122, Inter- national Association of Machinists and Aerospace Workers, AFL-CIO, and that said labor organiza- tion is not the exclusive representative of the em- ployees in the unit found appropriate, within the meaning of Section 9(a) of the Act, as amended. MEMBER MCCULLOCH , dissenting: I do not agree with my colleague's adoption of the Trial Examiner's conclusion that the Respondent did not violate Section 8(a)(3) and (5) of the Act in closing down the toolroom on March 20, 1968. It is clear from the record that prior to the March 20, 1968, negotiating meeting the Respondent had not even suggested that it was considering the clos- ing of its toolroom and the subcontracting out of the work being performed therein. Yet at the outset of that meeting Cusack, the Respondent's chief negotiator, told the union negotiators that the Respondent had made a decision to do so. Cusack, in fact, made it clear that the only matter remaining for negotiation was the effect of the closedown on toolroom employees. Thereafter all efforts on the part of the union negotiators to meet further re- garding the closing of the toolroom and all efforts to obtain the economic data on which the Respon- dent allegedly had based its decision were frus- trated by the evasive tactics of the Respondent's negotiators which culminated in the outright refusal to furnish any information on March 22, 1968, and the abrupt, unilateral termination of the bargaining relationship on March 29, 1968. To me, these un- disputed facts make it clear that the Respondent failed to recognize or honor its obligation to bar- gain with the collective-bargaining representative of the toolroom employees about its decision to close the toolroom, and thereby violated Section 8(a)(5) of the Act.' In my opinion the record also supports a finding that, although Respondent offered to bargain about the effects of the closing of the toolroom at the time its decision to do so was announced at the March 20 meeting, it in fact had no intention of doing so. On that same afternoon the Respondent closed down the toolroom, offered two of the em- ployees jobs in other departments of the plant, and placed all of the other toolroom employees on layoff status. This action was taken at a time when the Union's negotiators were attempting to obtain information that would enable them to bargain about the closing of the toolroom, and in the face of a bargaining session scheduled for the following day, March 21. Respondent has offered no reason why the closing of the toolroom could not have M SwacA Iron and Steel Co, 146 NLRB 1068, 1084-85, Wuto A Supply Company, 171 NLRB 201 Borden, Inc , 181 NLRB 109, Acme Industrial Products, Inc , 180 NLRB 114 184 NLRB No 9- r-28 184 NLRB No. 9 G. W. MURPHY INDUSTRIES, INC. 63 been delayed for at least a limited period of time to give the Union an opportunity to negotiate with the Respondent about this loss of jobs. The real reason for the hasty procedures adopted by the Respondent in closing down the toolroom, I believe, is to be found in the Respondent's concern over the possibility that the Union's organizational campaign among its production and maintenance employees might prove successful. The Union had begun the organization of the plant in July 1967, at a time when the plant was operated by Respon- dent's predecessor, Portable Electric Tools Com- pany. By October 1967, the Union had obtained the support of all employees in the toolroom and had been recognized as collective-bargaining representative of those employees by Portable Elec- tric. The Union continued its organizational cam- paign among the much larger unit of production and maintenance employees, which numbered some 500 employees, while bargaining for the tool- room employees with the Respondent, which had acquired Portable Electric on October 17, 1967. Shortly before Respondent's unilateral decision to close the toolroom, one of the Union's negotiators, at a negotiating meeting on March 5, 1968, had in- formed the Respondent's negotiators that the Union had almost enough cards to file a petition for an election among the production and maintenance employees. And after the closing of the toolroom and the refusal to bargain, the Respondent im- mediately began to make capital of the closing in its antiunion campaign among the production and maintenance employees. This sequence of events persuasively impels my conclusion that the precipitate action taken by the Respondent in clos- ing its toolroom was motivated, not by economic considerations, but by its intention to give the production and maintenance employees an object lesson regarding the consequences of supporting the Union. I would therefore find that the Respondent not only violated Section 8(a)(1) and (5) of the Act by its failure and refusal to bargain about the decision to close the toolroom and the effects of that deci- sion on the employees involved, but also violated Section 8(a)(1) and (3) by closing the toolroom, with its consequent layoff of toolroom employees. Accordingly, I note my dissent from the failure of the majority decision to find such violations and to sustain the related objections to the election. TRIAL EXAMINER'S DECISION MAX ROSENBERG , Trial Examiner: This case was heard in Geneva, Illinois, on December 16, 17, 18, and 19, 1968, pursuant to an amended complaint filed by the General Counsel of the National Labor Relations Board and an answer filed thereto by the Respondent, G. W. Murphy Industries , Inc., Porta- ble Electric Tools Division .' Joined with the com- plaint are objections to an election conducted by the Board among Respondent's production and maintenance employees on May 27, 1968,2 which were lodged by District No . 122, International As- sociation of Machinists and Aerospace Workers, AFL-CIO, herein called the Union , and which the Regional Director for Region 13 consolidated for hearing in his Report on Objections by date of Sep- tember 12 , 1968. At issue is whether Respondent violated Section 8(a)( 1), (3), and ( 5) of the Na- tional Labor Relations Act, as amended , by certain conduct to be detailed hereinafter , and whether Respondent 's preelection activities, as set forth in the Union 's objections , so impinged upon the em- ployees' freedom of choice as to warrant the scheduling of another election .? All parties were af- forded full opportunity to present evidence, to ex- amine and cross-examine witnesses , to argue orally at the close of the hearing, and to file briefs. Briefs have been received from the General Counsel and the Respondent, which have been duly considered.4 Upon consideration of the entire record , includ- ing the briefs filed with me , and upon my observa- tion of the demeanor of each witness while testify- ing, I hereby make the following: FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER Respondent, a corporation duly organized under the laws of the State of Texas, maintains a plant and place of business in Geneva, Illinois, where it is and has been at all times material herein engaged iii the manufacture and sale of portable tools and re- lated products. During the annual period material The complaint, which issued on November 9, 1968, and was amended on November 22, 1968, is based on charges and amended charges tiled and served in Case 13-CA-8288 on February 23, March 21, March 27, April 4, and May 9, 1968, and charges tiled and served in Case 13-CA-8403 on April 24, and May 16, 1968 2Case 13-RC-11541 At the outset, it should be noted that the objections' phase of this proceeding, as encompassed in Case 13-RC-1 1541, relates to a production and maintenance unit of employees at Respondent 's plants in Geneva and St Charles, Illinois In the election which was triggered by the representa- tion petition filed in that proceeding, the tally of ballots revealed that, of approximately 548 eligible voters in the unit, 491 cast valid ballots of which 193 were for, and 298 were against, the Union, 17 ballots were challenged, and 2 were void The alleged violations of Sec 8(a)( I ), (3), and (5) of the Act, with certain exceptions, generally have reference to a separate unit of toolroom employees at the Geneva plant ' The General Counsel's unopposed motion to correct the transcript in minor respects is hereby granted Following the close of the hearing, the General Counsel filed a motion with the Trial Examiner to strike portions of Respondent's brief, or to disregard those portions, because they were not supported by record evidence As counsel for the General Counsel must surely know, a Trial Examiner's decision is based on an independent study of the factual record made in an unfair labor practice proceeding, and not upon advocative papers The General Counsel's motion is denied 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to this proceeding, Respondent manufactured, sold, and shipped finished products valued in excess of $1 million from the Geneva plant directly to customers located outside the State of Illinois. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization as defined in Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES AND OBJECTIONS designated majority representative of the toolroom employees. In his Report on Objections, which was consolidated with the amended complaint herein, the Regional Director referred for decision the questions as to whether Respondent interfered with the conduct of a free election on May 27, 1968, by threatening, coercing, and intimidating its produc- tion and maintenance employees with reprisals if they selected the Union as their bargaining agent, and by summoning the police on election day to turn away the Union's handbillers from an access road leading to Respondent 's plant in Geneva. For its part , Respondent denies the commission of labor practices proscribed by the Act, and denies that it engaged in misconduct which would dictate a second polling of the production and maintenance employees involved. A The Contentions The complaint alleges that Respondent indepen- dently violated Section 8(a)(1) of the Act by inter- rogating employees concerning their union activi- ties, threatening employees with discontinuance of their jobs if the Union became their collective-bar- gaining agent, and ordering employees to cease wearing union buttons in the plant It further al- leges that Respondent violated Section 8(a)(3) by discharging employees Ulysses Taylor, Morris Belfield, and Ormond Nurse because they joined and assisted the Union; by closing down its tool- room department and subcontracting the work per- formed there in order to discourage the union membership of toolroom employees and to penalize them for having selected the Union as their collec- tive-bargaining representative, and/or to discourage the production and maintenance workers from vot- ing for the Union in the May 27, 1968, election. Finally, the complaint charges that Respondent of- fended the provisions of Section 8(a)(5) by uni- laterally terminating its toolroom operations and subcontracting the work without prior consultation with the Union; by refusing to furnish the Union with information which that labor organization had requested relating to the closure of the toolroom, the subcontracting of toolroom work, and other re- lated matters; by declining to bargain with the Union over the effect upon the toolroom employees of the elimination of that department and the con- sequent subcontract; and by failing to meet and bargain with the Union on and after March 29, 1968, notwithstanding the Union remained the duly ' I can only glean from the testimony of Frank Haderly, business representative for the Union , that the production and maintenance em- ployees at a plant in St Charles , Illinois, were a target of this union cam- paign , together with those at Geneva The General Counsel made no inde- pendent effort to illuminate this record with evidence as to the scope of the Union 's organizational efforts, or the voting unit B. The Evidence it is undisputed and I find that, in July 1967, the Union embarked upon a campaign to enlist the col- lective support of Respondent 's production and maintenance employees at its plants in Geneva and St. Charles, Illinois.' Union meetings were held and an organizing committee composed of those unit workers was formed . The employees who attended the gatherings received literature, campaign but- tons, and authorization cards which , after being signed, were returned to the Union Following the establishment of the committee, the Union trans- mitted to Respondent the names of the members who had been tapped to serve with that body. The drive continued until May 27, 1968, when, in the election which is chronicled in a marginal reference above, the Union was decisively defeated. Concurrent with its organizational efforts among the production and maintenance complement, the Union successfully weaned the membership of all tool-and-die men at the Geneva plant, numbering approximately six, who expressed a desire for separate representation." On October 2, and again on October 13, 1967, representatives of the Union met with officials of Portable Electric Tools Com- pany, which was then an independent enterprise, in consequence of which voluntary recognition as the exclusive bargaining agent for a toolroom unit was extended to that labor organization. On October 17, 1967, G. W Murphy Industries, Inc., acquired Portable Electric Tools Company, and the former enterprise assumed the latter's recognitory obliga- tions " I he complaint alleges , the answer admits , and I find that a unit of all toolroom employees at Respondent 's plant in Geneva , Illinois, excluding all other employees and all supervisors as defined in the Act , is appropriate for the purposes of collective bargaining within the meaning of Sec 9(b) of the Act G. W. MURPHY INDUSTRIES, INC. 65 On November 30, 1967, Frank Haderly, a busi- ness representative for the Union, submitted a proposed labor agreement for Respondent's con- sideration and, on December 1, 1967, the parties sat down for the first of 13 bargaining sessions.' During negotiations, Haderly served as the chief spokesman for the Union and Attorney John F. Cusack undertook the role of prime negotiator for the Respondent. The Union's contract contained 43 proposals, and the parties immediately scanned them step by step Among the union proposals which Cusack studied were a clause providing for 10 paid holidays, a pension plan provision whereby the Respondent would become obligated to con- tribute $8 per week per employee to the Union's "Labor Management Pension Fund," and a proposal which would afford each employee a shift bonus of 10 percent of base pay for the second shift and 15 percent for the third shift. After reading over the proposed agreement, Cusack observed that the Union was also seeking a union-security clause. He reminded Haderly that no such provision existed in the contract between Respondent and the Union at Respondent's CLECO plant in Houston, Texas, where the Union was the collective-bargain- ing agents' Following his perusal of the entire agreement, Cusack complained that the Union's de- mands were "very harsh." Haderly replied that these were merely proposals and not demands. Cusack suggested that the parties consider the noneconomic issues first, a procedure to which Haderly readily agreed , and the meeting was con- cluded. The next bargaining session took place on December 10, 1967. Cusack presented the Union with certain counterproposals dealing with noneconomic matters . At this meeting, James Wynne, Respondent's director of industrial rela- tions expressed the hope that any prospective con- tract would be patterned after the agreement in ef- fect between the parties at the CLECO plant in Houston. Haderly concurred in this suggestion, but added that the Houston compact should be tailored to the conditions which prevailed in the Geneva area. The parties again met on January 8, 1968. In this session, a consensus was arrived at on the following issues: preamble recognition, coverage, nondis- crimination against employees because of union the parties stipulated and I find that negotiations were conducted on the following dates December I and 10, 1967, January 8 and 17, February 7, 21, 22, and 24, and March 5 , 6, 8, 20, and 21, 1968 " The litigants stipulated and I find that, at the time of the hearing, Respondent operated nine plants throughout the United States and em- ployed approximately 4,500 employees ' On the preceding day, February 23, 1968, the Union filed charges against Respondent alleging that the latter had discriminated against an employee in the production and maintenance unit named Sarah Larson in membership, checkoff of dues, hours of normal workday and workweek, and establishment of the concept of a grievance procedure and a provision for arbitration at the plant. At the meeting on January 17, 1968, the Union and Respondent agreed upon clauses dealing with discipline and consequent procedures, leaves of absence, and union representation. On February 7, 1968, proposals relating to seniority, reductions in force, and promotions were adopted. During a colloquy on February 21, 1968, both sides reached a meet- ing of minds on a provision which obligated the Union to support Respondent's efforts to fabricate its products with efficiency and safety, an item covering the scheduling of work shifts, and another proposal dealing with arbitration. At the session on February 22, 1968, the parties accepted clauses relating to leaves of absence and union representa- tion. When the negotiators convened on February 24, 1968, they exchanged new proposals.9 At the con- clusion of this conclave, Cusack remarked that he had written down some of Haderly's suggestions, but cautioned that he had need to consult with Wynne over their acceptance because the latter made the ultimate decisions for the company. Haderly rejoined, "you realize, too, that whatever we agreed to in this room, as far as the Union is concerned, it is subject to ratification by my mem- bership." Cusack replied, "I am well aware of that. " The next negotiating session was held on March 5, 1968. Haderly testified that the parties turned to a dicussion of shift bonuses. Whereas, in its original proposals, the Union sought a premium of 10 per- cent for employees on the second shift and 15 per- cent for those on the third, Haderly claimed that he presented Cusack with a counterproposal calling for a bonus of 6 and 9 percent, respectively, com- menting that this was a modification of his original proposal regarding this item . "' Cusack remarked that, if Respondent acceded to the Union's demand for shift bonuses for the toolroom employees, it would thereby obligate itself similarly to compen- sate the employees in the production and main- tenance unit. Haderly retorted that "as of now we were not negotiating for the other [production and maintenance ] unit. We were approximately 30 to 40 cards short of filing a petition for election, and violation of Sec 8(a)(3) of the Act These charges were subsequently dismissed by the Regional Director as lacking in merit "' In support of Haderly 's testimony in this regard, the General Counsel introduced into evidence certain personal notes which Haderly had made at this meeting and which he mistakenly dated "4-5-68 " With Respect to art 8 I of the Union 's contract proposals dealing with shift bonuses, the document bears the notation " Delete 12 cents and 17 cents and substitute 6% and 9'? " 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when we won the election, then I would negotiate for the other unit. But at present, I am only negotiating for the tool and die department." At this juncture, Haderly noted that the matter of shift bonuses raised an economic issue, and he suggested that "we should hold this over to the time when we negotiate the monetary issues and get into that. And then we will have the monetary issues rolled up into a ball of wax." Cusack consented to this protocol and the subject was dropped Agreement was then reached on an extensive overtime and premium pay clause, a definition of the workweek, and an additional grievance and discipline section. Thereafter, Cusack announced that, after consulta- tion with Respondent's officials, the company would agree to a union-security provision in return for its proposed "Management Rights" clause. Haderly requested that these proposals be adopted as a package, and the "Management Rights" lan- guage recited that Respondent retained the prerogative of "contracting or sub-contracting of production, maintenance, service or other related work performed by the Company," and reserved the right "to discontinue part or all of the opera- tions of the business" and "to close down, to merge, to consolidate or to sell to other companies, individuals, or partnerships...." During the recess in negotiations that day, Cusack told Haderly, "Frank, let's speed this up and let's get it over with. I have a pretty good economic package to offer you," to which Haderly replied, "Jack, I am doing my best to get this thing really moving. I am going on vacation." The March 5, 1968, meeting ended with Haderly's promise that he would do his best to conclude negotiations speedily Martha Clifford, director of personnel, Max Bo- lander, plant manager for production, and James Wynne, director of industrial relations, testified for Respondent concerning the events which transpired at the March 5 meeting. Clifford averred that she attended almost all of the bargainings sessions, and that the issue of shift bonuses was discussed on several occasions at and prior to this session. When asked whether Haderly ever receded from the Union's initial shift differential demand of 10 and 15 percent, Clifford replied in the negative. Ac- cording to Clifford, Haderly repeated throughout negotiations that Respondent had not offered an adequate shift premium for the employees, and Respondent's representatives refused to acquiesce in the Union's proposal. Bolander testified that the matter of shift bonuses had been raised prior to the March 5 meeting. The Union had sought dif- ferentials of 10 and 15 percent for the second and third shifts, respectively, and Respondent submitted a counterproposal which Haderly believed was too low. However, Bolander asserted that Haderly never advanced a lower shift bonus figure than that which appeared in the Union's initial contract proposals. In his examination, Wynne also related that the Union failed to deescalate its shift premium proposal during the entire bargaining colloquy. I credit the testimony of Clifford, Bolander, and Wynne, and find that at no time during negotiations did Haderly or any other union representative alter the Union's initial shift premium demand of 10 and 15 percent, primarily because Haderly's testimonial utterances were not supported by the testimony of his fellow negotiators. Thus, Laurence Yeast, the Union's Grand Lodge representative, recounted that the subject of extra shift pay had arisen at earlier meetings and that the parties had reached agreement as to the mechanics for scheduling shift differentials but not on the monetary amounts to be paid. At a negotiating session on March 8, the matter of premium wages was again broached. A union committeeman named Essling commented that the union negotiators believed that a figure of 10 percent and 15 percent was "not out of line," and Essling remarked that if Respondent would agree to pay a 10-percent differential for the second shift he could readily find a man who would transfer to that trick. Another committeeman, Woods, also "indicated that a 10-percent bonus for the second shift was attractive enough for him to quit working days and go to the second shift." Yeast also acknowledged that Cusack protested that Respondent would have to provide this emolu- ment to the approximately 600 production and maintenance employees because, "How do you think we can pay you this kind of bonus [for the toolroom employees] and tell [the production and maintenance] employees they cannot have the same?" Yeast further conceded that, in reply, Haderly stated that "We represent the employees and these demands are their demands. We may sound out of line to you, but they were made upon us to be obtained." Finally, Yeast admitted that Haderly told Cusack that "our people" had not changed their demands and that the Union's posi- tion on the issue had not been altered Moreover, Committeeman Woods failed to corroborate Haderly's testimony that the Union had lowered its shift bonus sights at this session In sum, I deem it implausible that Haderly could have mentioned a lesser shift premium payment to Respondent's offi- cials on March 5 while the Union was continuing to press for its original demands on March 8. The parties reconvened on March 6, 1968. Final agreement was reached on clauses dealing with promotions, shift preferences, military service, a training program, safety and health, temporary G. W. MURPHY INDUSTRIES, INC 67 transfers , and the use of bulletin boards. On March 8, 1968 , another bargaining session was held . The parties generally reviewed the provi- sions which had previously been agreed upon, num- bering in excess of 20. An extended discussion en- sued concerning a "Foremen Working" clause, the only "noneconomic " article upon which the negotiators had failed to reach a consensus . Either before or after a recess for dinner on that evening, Cusack remarked that it was getting late and, as ap- proximately all of the nonmonetary items had been covered , Respondent was prepared to submit its economic proposals for consideration . Thereupon, Cusack presented the union negotiators with Respondent's offer of eight paid holidays and the "Murphy" pension plan. After a brief study of this material, Yeast told Cusack that the pension proposal was unacceptable because it seemingly contained a clause which would permit Respondent to terminate the pension plan at will and, once hav- ing done so, Respondent was empowered to cancel the basic contract. Wynne reminded Yeast that a similar clause existed in a contract between the parties at another plant. Cusack then commented that the Union was being unduly concerned and that the proposed language would not result in the dire consequences which Yeast foresaw. Yeast agreed that this was so. Cusack volunteered to revise his proposal to provide that only the Union could abrogate the pension plan and the underlying contract, a change which Yeast did not find attrac- tive. At that point, Cusack suggested that the issue be deferred until a future meeting, and attention centered on the other features of the "Murphy" pension proposal. Yeast told Cusack that the Company's plan was deficient in that it failed to provide for vesting, sur- vivors' benefits, and the opportunity for employees to buy up past service. He explained that "It was the policy of our organization, whenever we were negotiating a pension, to build into it the right for the people to invest in the equity that they would develop under the pension plan." After Yeast out- lined the Union's desired objective in greater detail, Cusack exclaimed that "What you are talking about would be most expensive " Cusack drew attention to the fact that Respondent, in consequence of its merger agreement with Portable Electric Tool Company of October 17, 1967, bound itself to cover all of Portable's employees under the Murphy Pension Plan which, although it contained varia- tions in some benefits to meet the particular needs of a certain group of employees, was basically uniform for the workers at all Respondent's plants, whether unionized or not Yeast inquired whether Cusack had estimated the cost to Respondent of Murphy's pension package , and Cusack replied that it would be difficult to calculate because the plan covered employees at various installations who were in different age groups . Cusack then an- nounced that he knew what the Union plan would cost Respondent. Yeast pressed for a monetary figure , and Cusack replied "$ 8.00 a week." When Yeast asked where Cusack obtained this figure, Cusack responded , " It was in the original proposal offered by Mr. Haderly at the beginning of negotia- tions." Haderly spoke up at this juncture and said, "Yes. And we can provide $200 a month pension, which is double the Murphy Pension Plan And we can also provide this with $8 00, these items that Yeast is talking about there." Respondent Industri- al Relations Director Wynne proceeded to contrast the Murphy Pension Plan and the Union's established plant and commented that, while they were similar in principle , the costs were quite dif- ferent. Haderly once more urged that "Our proposal would only cost you $8.00 a week per em- ployee" which cost Cusack calculated at 20 cents per hour. Yeast, who was a relative stranger to the negotiations and who had sat in on this meeting to familiarize himself with the issues on pension proposals and holiday benefits, testified that, fol- lowing Haderly 's utterance , " It became apparent to me then that this $8.00 might be a real stumbling block and of deep concern to the company." Yeast claimed he assured Respondent's negotiators that he could "supply a pension plan which will provide $100 a month pension , which I understand is the amount of your pension, and will also provide for vesting , for survivors benefits, and it will buy the past service of the employees involved, for a figure of 3 cents an hour the first year, 5 cents an hour the second year, and 10 cents an hour the third year." By this, Yeast meant that the Respondent would be obligated to contribute 3 cents per hour per man, or $1.20 a week , the initial year, 5 cents, or $2 weekly, the second year, and 10 cents, or $4 a week, in the last year. When Cusack pleaded for a precise definition of the Union's pension demands, Yeast repeated his previous proposal. Haderly again broke in and explained that " this could be provided for $5.00 a month." Believing that he and his cohort Haderly were not "talking about the same thing , because apparently Haderly was trying to adapt to the company 's pension plan," Yeast took him aside and counselled that "we should talk about the same thing, and probably we should present the [ Union's] pension plan." Upon resumption of the discussions, Yeast re- peated that the Union could provide a plan for less than the $8 that had been mentioned. Cusack stated that "unless you are ready to give us other pension demands that are more realistic, we might as well move on to other issues. We are spending a lot of time here on issues that should be settled. We have gone as far as we are authorized to go on pen- 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sions." In response to a question as to whether Respondent would continue to bargain over the pension issue , Cusack assured Haderly that, "Of course, we will bargain with you on the subject. However, you are making pension demands that are unreasonable and unrealistic , and will only affect nine people [in the toolroom]. [Respondent] has to look to all of its employees and [it] certainly is not going to give nine people pension benefits that it cannot give to the other Murphy employees. To do what you are talking about would cost many thousands of dollars and this is just not in the cards, and you should be more reasonable as we are most serious." The parties concluded their discussion of this issue with an agreement to consider it once more at another meeting . However, Wynne re- marked that "After listening to your proposals again, you did not reduce your cost factor, nor did you stay with your [Union] plan. You actually in- creased your demands cost-wise. I can answer your demands now. The company will not agree to them." Wynne, Bolander, and Clifford, who at- tended this session on Respondent's behalf, categorically denied that Yeast receded from his original position at the meeting, and they insisted that the first mention of 3-, 5-, and 10-cent figures was made by Yeast at the March 20 bargaining ses- sion after Respondent indicated that it would be forced to eliminate the toolroom because of exces- sive union economic demands. The General Counsel contends that the Union lowered its pension demands at the March 8, 1968, meeting, from $8 per week per man to the lesser figure, in his apparent attempt to show that Respondent's economic justification for closing the toolroom on March 20 was illusory On the other hand, Respondent asserts that the Union steadfastly advanced its original proposal of $8 on March 8 and that this exorbitant cost was one persuasive factor in formulating its decision to shut the depart- ment down. On this record, I am persuaded and find that, while Yeast might have mentioned- the sums of 3, 5, and 10 cents, both Cusack and Wynne were reasonably led to believe that the Union was persisting in its initial proposal of $8 per week. I also find that the Union continued to press its ancil- lary pension proposals. Thus, Haderly, who had carried the brunt of negotiations for the Union until this time, repeatedly stated that "we can also pro- vide this with $8.00, these items that Yeast is talk- ing about." Moreover, Union Committeeman Robert Woods testified that Haderly read to Cusack and Wynne the demands which were con- tained in the Union pension plan booklet, and Cusack complained that Haderly had not "changed your demands at all." Turning to Respondent's offer of 8 paid holidays at the March 8 meeting, Cusack protested that the Union's request for 10 compensated holidays was unreasonable, and expressed Respondent's objec- tion to such a request in light of the fact that some 600 production and maintenance employees at this plant, as well as those in other plants, would con- tinue to receive only 8. Wynne observed that he had seen many labor agreements which contained provision for but seven holidays, to which the union negotiators countered that those contracts con- tained other monetary benefits to fill in the gap. Yeast then suggested that Cusack undertake a long and hard reexamination of Respondent's position on holidays, and added that his stance on these benefits was not fixed. Cusack agreed to reappraise the Union's proposal in the interval before the next meeting . By consent of the parties, future negotia- tions were set for March 20 and 21, 1968. It is uncontroverted and I find that, at the outset of the bargaining session of March 20, 1968, Cusack announced that, before commencing any further discussion on a contract , he wanted the Union to know that Respondent had projected the "exorbitant and unreasonable economic demands" which the Union had submitted in its contract proposals and had calculated the resultant costs. He remarked that, after making a survey of those costs between the March 8 and 20, 1968, meetings, Respondent's top officials had decided to close the toolroom and subcontract all of the tool-and-die work out of economic necessity. Cusack emphasized that the company was not engaged in the tool-and-die business as such, that the toolroom operation was only incidental to Respondent's pri- mary function of producing portable electric tools and was maintained simply as a convenience, and that the price of the Union's economic package contained in its contract demands far exceeded the convenience to the company. I t Yeast interrupted to ask, "in other words, you are breaking off negotia- tions," to which Cusack replied, "We are definitely not breaking off negotiations, and we are now ready to discuss the transfer of these [toolroom] employees to other jobs that are available for them in the plant, and-as well as the order of procedure for closing down this operation." Yeast retorted that "We are not here to negotiate away our jobs or our people We are here to negotiate a contract covering the people we are certified to represent." Thereupon, Yeast and his colleagues obtained a recess and caucused in the hall. When they returned, Yeast inquired as to how Respondent in- " It is undisputed and 1 find that , even with the toolroom running full tilt, Respondent nevertheless subcontracted 70 percent of its tool -and-die work to independent contractors G W MURPHY INDUSTRIES, INC. 69 tended to perform the tool-and-die work and Cusack repeated that it would subcontract its needs to other suppliers and save money in doing so. Yeast again asked, "You don't intend to negotiate?" and Cusack responded, "I did not say we do not intend to negotiate. On the contrary, we are now ready to discuss the closing of the tool- room thoroughly, and its effect on the employees involved. . . . the department can be terminated at the end of the current pay period [Friday, March 22, 1968], or today [Wednesday, March 20, 1968], or any other day you want."12 Yeast reiterated that he would not "negotiate the termination of the union," and stated that he would like to know to what "exorbitant" demands Cusack had reference. Cusack mentioned the cost of $8 per week per man for pension coverage, to which Yeast replied that "That figure was made in error and off the top of [Haderly's] head, and he didn't understand what he was talking about." Yeast went on to state that Cusack's economic projections were premature because all that the parties had discussed were proposals relating to the pension plan, shift bonus, and holidays. He related that the Union was prepared to continue negotiations "in the spirit that ... will have to be give and take, and that there would have to be a meeting of the minds, if possi- ble, on the various articles. And you can't know what the cost will be." To this, Cusack remarked that Respondent "just can't incur any added cost." Cusack then suggested that the parties execute an agreement embodying the more than 20 noneconomic proposals which had previously been accepted, without any increased costs to Respon- dent. B. J. Lemanski, a Grand Lodge representative for the Union who replaced Haderly in negotiations at this meeting, asked Cusack "if the Union will sign an agreement covering these articles, ... which we are in agreement on, and maintain it status quo as far as the company is concerned, that you would not terminate the tool room?" Cusack replied, "I can't promise that. But we would cer- tainly re-examine our position " At this juncture, Yeast broke in to exclaim that he was not prepared to sign any contract until the parties had concluded negotiations on all phases of the Union's contract proposals. Yeast thereupon informed Respondent's representatives that he desired a recess in negotia- tions in order to confer with his superiors Yeast in- dicated that he would make arrangements with Respondent Personnel Director Clifford for his return to the plant that afternoon, and that he ex- pected to meet with Respondent's negotiators again on March 21, 1968, as scheduled. I find that, in the afternoon, Yeast telephoned Clifford to report that he was ready to drive to the plant to meet with Cusack and Wynne After con- tacting these men, Clifford informed Yeast that they would be unavailable until the following morn- ing. Yeast advised Clifford that he had prepared a letter for the attention of Cusack and Wynne seek- ing certain information as a result of the events which had taken place during bargaining that morn- ing. Clifford told Yeast to bring the document to the plant and she would assure its conveyance to her superiors A few minutes later, Yeast learned that Respondent had closed the toolroom that day and released its employees in that department. He immediately telephoned Clifford to report this in- telligence and to inquire as to why the Company had not deferred this action until Friday, March 22, 1968. Clifford replied that, inasmuch as Yeast did not express any preference for a date on which the operation should be terminated, Respondent be- lieved that the Union was not interested in the matter and hence decided to close the department that afternoon. Yeast was then connected with Plant Manager Bolander and he again protested the closing of the toolroom with the comment that he "was particularly disappointed, and there was at least one particular man out there, Mr. Wynne, I had gathered from talking and listening to him, that he was the man, and you could depend on his word." Bolander replied, "I want you to know that we are just taking orders from Mr. Cusack and your opinion of Mr. Wynne is correct, you can depend "On direct examination, Yeast testified that Cusack did not offer to negotiate with the Union concerning Respondent's decision to close down the toolroom operation, but volunteered only to bargain over the termina- tion of the toolroom on March 22, 1968, or sooner, and over the transfer of the toolroom employees to jobs in the production and maintenance area On cross-examination, Yeast acknowledged that, in substance, Cusack had uttered the words set forth in the text above On further examination by the General Counsel, Yeast again changed tack and proclaimed that Cusack did not propose to bargain over the closure Respondent Industrial Rela- tions Director Wynne, who attended this session, testified that Cusack an- nounced that Respondent was forced to shut down the toolroom due to the Union's economic demands, but volunteered "to negotiate with you [the Union] with reference to the close-down of the toolroom, making it an or- derly thing, close down, and negotiate with you with reference to the place- ment of people and other items " Wynne added that Cusack did not lay down any restrictions upon the scope of the discussions in this regard I credit Wynne's testimony, not only because of Yeast's contradictory testimonial utterances on this score, but also because I deem it implausible that the parties would have continued to discuss contractual provisions at this session, and would have scheduled future bargaining sessions on March 21 and April 4, 8, 9, and 10, 1968, if, in fact, Respondent had closed the door to any future discourse concerning the operation of the toolroom I am fortified in this conclusion by the testimony of Grand Lodge Respresen- tative Lemanski When questioned as to why meetings were scheduled for thew dates, he replied, "We didn't know what the net result was going to be as a result of the closing down of the toolroom And we felt that instead of wasting time, we would continue our negotiations, and if anything materialized relative to opening the toolroom, we would have a contract all set " Lemanski added that, as discussions came to a close on March 21, 1968, "the Company said, we are willing to continue negotiations on the date that we had agreed upon, which were then set for further negotia- tions " 427-835 0 - 74 - 6 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on him." Yeast sought to speak with Wynne but was informed that the latter was not available. The conversation was concluded by Clifford telling Yeast that the parties would meet the next day. Following this conversation, Yeast delivered his letter to the plant. Over the signature of Yeast and dated March 20, 1968, this document recited that the Union had been informed by Respondent that the toolroom would be terminated on March 22, 1968, due to the projected costs of the Union's economic-package which it had submitted during contract negotiations. The letter went on to recite that the Union was formally protesting the closure scheduled for March 22 because a bargaining im- passe had not yet been reached and the entire economic bundle proposed by the Union had not been fully discussed. Yeast requested that Respon- dent forego the curtailment of the operation until "legitimate collective bargaining" had taken place, and asked for The following information which we feel will support your claim that it is economically im- possible to continue to operate a Tool Room with the Union as its representative. FIRST: Furnish the Union with the cost figures of the Union's economic package as computed by the Company SECOND: Furnish the cost of the Company's economic package as computed by the Com- pany. THIRD: Furnish the cost figures which the Company incurs in operating the Tool Room FOURTH: Furnish the cost to the Company to contract the Tool Room work outside the plant. FIFTH: Furnish the names of the contractors who will do the Tool Room work originally performed by the Tool Room. SIXTH: Furnish the Union the complete data used by the Company to justify its statement that it would be cheaper to contract the work outside the plant. Richard Gauger, a toolroom employee who was also a member of the Union's negotiating team, was present at the March 20 meeting. It is his undenied testimony and I find that, shortly after the session broke up, Walter Sundberg, Respondent's manager for manufacturing and engineering, invited Gauger to the toolroom office where they met Plant Manager Bolander. Bolander informed Gauger that Respondent had decided to shut down the toolroon at the end of the work shift rather than at the ens of the week. Bolander offered to transfer Guager tc a job in the machine shop which Gauger had previ ously performed with no cut in pay. Gauge requested and was granted time in which to weigt the proposition. Later that day, he and the other toolroom employees, with the exception of the night shift and Charles Spillner, who was abseni that day, were summoned to the office where Bo lander explained the situation and extended the same offer to the group. Gauger refused the transfer for the reasons that he considered the move to constitute a step backwards in his career and that he lacked either plantwide or departmen- tal seniority.13 Spillner testified and I find that, after Respondent proposed to the Union that the parties bargain over the transfer of the toolroom em- ployees to other departments, Grand Lodge Representative Yeast and his colleagues "told me, that the offer was made to place the employees from the toolroom into other departments of the plant. No reference was made to me about salary or what type of work it would be. They just said that they turned it down, that was the only information I received." According to Spillner, he, personally, never had an opportunity to accept or reject Respondent's offer.14 It is also undisputed and I find that the remaining toolmakers declined a transfer because they lacked seniority in the plant and, con- sequently, they were placed in layoff status The parties reconvened on the morning of March 21, 1968. It is undisputed and I find that when the meeting opened Yeast inquired why Respondent had terminated its toolroom operations on the preceding day. Cusack responded that the Com- pany took this step because it believed that the Union displayed no interest in bargaining over the transfer of the men to other production depart- ments. When Yeast asked Cusack how the latter in- tended to proceed, Cusack suggested that the next order of business should concern itself with a discussion of the items which Yeast requested in his letter to Respondent dated March 20 regarding cost data and other information Yeast demanded to know whether Cusack had this material with him. Cusack answered that Respondent was in the process of collating the information but that it was a "big order" and would probably take 3 or 4 days. However, Cusack assured Yeast that the informa- " it is uncontroverted and I find that John Gorman, a probationary em- ployee in the toolroom department, accepted a transfer to the machining department and remained in Respondent's employ " Spillner had called Bolander on April 24, 1968, to report that the former had been denied unemployment compensation by an unemploy- ment compensation agency because he had refused Respondent's offer to transfer to another job at the same rate of pay Spillner inquired "just when this offer was made to me, by whom, and when did I refuse, because no offer had been made to me " Bolander replied that "the offer was a blanket offer made to our [the Union] representatives, and our representatives were in negotiations- that were in the conferences, had refused, and there- fore I was qualified for unemployment " Spillner requested Bolander to so inform the agency because his unemployment check was being withheld, and the latter agreed to do so G. W. MURPHY tion would be forthcoming. Because Grand Lodge Representative Lemanski had been designated to replace Yeast in future negotiations with Respon- dent, the former requested that a full review of the proposals and counterproposals be undertaken in order to bring him up to date on the areas of agree- ment and disagreement. Cusack observed that "I think it would be worthwhile for us to know where we stand, to. . . ." Thereupon, according to Leman- ski, "there was a cooperative move on the part of both sides to bring the parties up to date as to how far they had gone " The parties reviewed article by article and, where agreement was indicated, Per- sonnel Director Clifford proceeded to make copies of the agreed-upon proposals which , pursuant to the Union 's request, were mailed to it by Respon- dent under letter dated March .25, 1968 . Yeast sug- gested that negotiations be resumed regarding the unresolved issues, and that the toolroom employees be returned to their jobs pending negotiations. Cusack remarked that "We don 't have a toolroom, therefore we don 't need toolmakers " and, with this, the negotiators turned to a further discussion of the Union 's proposed pension plan . Cusack asked for a clarification of this proposal , stating that he knew that it would cost his client $8 per week per em- ployee. Yeast declared that the Union 's plan, with its diversified benefits , would be priced at 3, 5, and 10 cents over a 3-year period. After this discussion, Yeast and Lemanski queried Cusack as to whether Respondent planned to discontinue negotiations. The latter made it clear that the Company would pursue further bargaining over a contract, and the parties set April 4, 8, 9, and 10, 1968, for future meetings. Sometime during the day of March 21, 1968, the Union filed the charges in Case 13-CA-8288 which served to trigger this proceed- ing. By letter dated March 21, 1968, Cusack acknowledged Yeast's written request of March 20, 1968, for the economic data supporting the necessi- ty for Respondent's abandonment of the toolroom. Cusack recounted that he had submitted to the Union a plan to terminate the operation and to relocate the affected employees in other depart- ments in the plant , which the Union had summarily refused to consider . He pointed out that these em- ployees had been offered other employment, and that one of them, John Gorman, had accepted. The letter further recited that, Our decision to close the tool and die depart- ment was solely based upon economic condi- tions resulting from the unconscionable de- mands made by the Union in the contractual economic provisions the Union submitted in writing, and which the Union fortified with oral INDUSTRIES, INC. 71 requests that were economically even more far reaching. The Union's unyielding attitude was manifested especially in the discussions we had relative to the articles covering shift bonus, pensions, and holidays and forced upon the Company the necessity of serious considera- tion of the economic results we were facing This unyielding attitude on the economic issues was obviously a complete reversal of the at- mosphere which prevailed during the negotia- tions on the non-economic issues, which we consummated on a reasonable basis for both sides. Cusack went on to state that the requested cost data would require considerable clerical work in its preparation but he promised to transmit the infor- mation to the Union in a few days. Learning that the Union had filed charges against Respondent with the Board , Cusack dispatched another letter to the Union on March 22, 1968. Cusack wrote that , due to this action by the Union, we have been forced to change our position with regard to the submission to you of certain data and information covering the economic problems which were involved in our decision relative to the closedown of the tool and die department. At the time of our last meeting when we readily agreed to submit this informa- tion to you, you failed to disclose to us that on the previous day you had filed unfair labor practice charges with the [Board ], in which you included your opinion of the cause of the closing of that department . If you had told us that these charges had been filed, we would have then advised you that the submission of the requested information was inconsistent with your action at the Board. Cusack continued You fully appreciate that the purpose of preparing this information for you was for use in any necessary collective bargaining relative to the employees affected by our action As a result of the development that has taken place through your action at the Board, we feel that the information you sought is properly only a part of the information which we intend to sub- mit to the Board in support of all of our action which we have taken to date. In view of the above, we must now decline your request. On March 29, 1968, Cusack mailed a letter to the Union reminding the latter that Respondent's toolroom had been permanently terminated. The letter went on to read Due to this fact, we believe that any present negotiations relative to economic issues involv- 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing employees in that unit would be an exercise in futility. You have already submitted this matter to the [Board], and we shall cooperate with the Board in the investigation of the charges you have made. We, therefore, see no further purpose of meet- ing with you on April 4, 1968, as tentatively planned, and will consider the recess you have taken in our negotiations continued until the charges pending before the Board have been resolved This was followed by another letter from Cusack under date of April 1, 1968, advising that Respon- dent would regard the tentative meetings scheduled for April 8, 9, and 10, 1968, as deferred pending the Board's investigation of the Union's charges. During its defense-in-chief, Respondent offered evidence to support its economic justification for eliminating the toolroom on March 20, 1968. On the basis of a synthesis of the undenied testimony of Industrial Relations Director Wynne and Plant Manager Bolander, I find that, prior to its acquisi- tion of Portable Electric Tools Company, Respon- dent undertook a thorough investigation of Portable's tool-and-die fabrication capacity. Upon completion of this survey, Respondent's officials harbored the hope that the toolroom might be ex- panded. At the time of acquisition, approximately 70 percent of the tool-and-die work was performed by subcontractors, a major portion of which originated in Japan. Because the Japanese suppliers required an excessive amount of "lead time" to furnish their product, i.e., 6 months, this made it awkward for Respondent to provide its customers with electric tools when they needed the timely supply of Respondent's wares for special sales Beginning in October 1967, Respondent's officials embarked upon a study of the economic feasibility of canceling the Japanese subcontracts and per- forming the subcontracted work in the Geneva plant . Employee Gauger testified and I find that, in October 1967, he questioned Supervisor Dyer abour rumors which were rampant in the plant to the effect that Respondent was planning to retrieve a considerable amount of the die-cast work from Japan. Dyer stated that such a scheme was under consideration and that he had been instructed to beef up the toolroom complement and order addi- tional machinery. About the time of this conversa- tion, the department had received a new metal- turning machine known as a Clausen lathe and, either in December 1967 or January 1968, one die which normally had been procured from Japan wa returned to the plant for fabrication. At the bar gaining session held on January 17, 1968, Wynn( told Union Committeeman Woods and the other union negotiators that Respondent intended t( move its plant in Warrensburg, Illinois, to th( Geneva installation, 15 and to expand the Geneva tool-and-die facilities and hire more personnel. The testimony of Wynne and Bolander is unde nied, and I find that, in January and February 1968 a Mr. Wright, Respondent's chief executive officer and Bolander decided to visit the Orient to evaluat( the situation. Before embarking upon their journey these officials conducted an intensive investigatior of the cost of fabricating the Japanese castings it their Geneva plant. After making a tour of the Japanese facilities and comparing the relative price factors, they discovered that the requisite tools anc dies could be purchased in Japan for 30 percent of what it would cost to manufacture them in the United States. Concurrently, Respondent learnec that United Laboratories, a safety testing concerr for the electrical industry, had promulgated new regulations regarding the double insulation of ali electrical handtools Pursuant to this requirement Respondent would henceforth be precluded from manufacturing any portable device which was not constructed with a nonconductive metal in the areas touched by the human hand. Because the regulation apparently demanded utilization of tool- ing equipment different from that which Respon- dent had contemplated ordering, and in view of the Japanese cost picture, Wright decided not to ex- pand the toolroom department. It is also undisputed and I find that, early in March 1968, Wynne was informed by Bolander and Clifford that considerable unrest existed among the production and maintenance employees due to cur- rent rumors that the Union might call the toolroom employees out on strike. Upon receiving this intel- ligence, Wynne instructed Bolander and Manufac- turing Manager Sundberg to contact various tool- and-die firms to ascertain whether they could per- form work for Respondent in the event of a strike. Sundberg investigated the matter and solicited bids from subcontractors prior to March 8, 1968. He re- ported to Bolander and Wynne that farming out the work was not only feasible but that, cost-wise, Respondent could have its needs supplied, particu- larly on the Government ordinance contracts which it was then in the process of fulfilling, "as cheap or cheaper on the outside " Around March 10 or 11, "Warrensburg is located approximately 180 miles south of Geneva When the tool-and-die department was closed on March 20, 1968, the vast bulk of the department's tooling machinery was distributed to various other departments in the Geneva plant However, some of the equipment was moved to the Warrensburg installation G. W. MURPHY INDUSTRIES , INC. 73 1968, and prior to the bargaining session of March 20, 1968, Wynne had occasion to discuss the matter with Wright and Corporate Officer Murphy. Wynne filled Wright in on the status of negotiations and the economic demands which the Union had been making. Wynne also informed his superiors of the results of his efforts in obtaining bids for the subcontracting of tool-and-die work. Murphy ad- vised Wynne to consult with him before any steps were taken to eliminate the toolroom department, and he instructed Wynne "to reach a fair agree- ment, but don't get pushed out of the tub " I further find that, prior to the March 20 negotiating meeting, Respondent undertook a sur- vey to determine the amount of its costs if all the Union's economic demands were met, as opposed to its existing expenditures. In addition, the bids received from subcontractors were compared with the amounts which Respondent would have had to pay if its toolroom needs were fabricated at the Geneva both under a union contract and under ex- isting conditions Sundberg testified without con- tradiction concerning these price comparisons, which testimony was based upon the books and records of the Company that were compiled under his direction "' Thus, in order to acquire Tool Number 7592 or 7749, Respondent could manufac- ture these items in its own toolroom at a cost of $393.04 each Utilizing the Union's economic de- mands as contained in its proposed contract as the cost basis, the amount would be $532.96. Respon- dent received bids from subcontractors which in- dicated that the same orders could be filled for as little as $312 96, and as high as $400. Other com- parisons established that Respondent could procure tools and dies from outside sources for less money than it would cost for it to manufacture the items in its toolroom, and that its own manufacturing costs would have been less than those which would be in- curred if the articles had been manufactured under the proposed union contract. Based on the uncontroverted testimony of John Venneri, Respondent's cost manager, I find that he was instructed on March 11, 1968, by his personnel department and Attorney Cusack to prepare a chart, based on company records and the Union's proposed contract, which would project the cost of the Union's economic demands as contrasted with the cost of parallel, existing benefits at the plant. On March 13, 1968, Venneri completed his chore and turned it over to Clifford and Cusack. This chart, which was evaluated by a firm of certified public accountants for accuracy and reliability, lists ' Inasmuch as Respondent had subcontracted 70 percent of its tool-and- die work, Sundberg already had available to him the cost data for the vari- ous items and I so find " It should be noted that the General Counsel has not charged Respon- approximately 21 economic items contained in the Union's contract proposals. In short, it established and I find that, if all the Union demands were met, Respondent would be burdened with an annual im- post of $52,522 for the toolroom. Faced with the Union's intransigence concerning its proposed shift bonuses of 10 and 15 percent, a pension plan which to Cusack's and Wynne's un- derstanding would assess Respondent's payroll by $8 per man per week, and 10 holidays, and armed with the projected cost figures, Wynne testified and I find that he met with Murphy a few days before the March 20, 1968, negotiating session and con- veyed the foregoing information to the latter. Fol- lowing a full assessment of the situation, Murphy reached the conclusion that it would not be economically feasible to continue the toolroom in light of the potential increase in costs occasioned by the projected Union's demands, and he in- structed Wynne to take steps to terminate the de- partment. On or about March 19, 1968, Wynne ap- prised his associates of Murphy's decision and, on the following day, he and Cusack informed the union representatives of Respondent's intended course of action as chronicled heretofore. In sum , I find that, based on the Union's negotiated demands relating to shift bonuses, a pen- sion plan , and holidays, as well as a projection of the added costs which would be incurred under the Union's contract proposals, Respondent formulated a decision prior to March 20, 1968 to eliminate its toolroom department out of economic necessity. I also find that, on that date, Respondent offered to "discuss the closing of the toolroom thoroughly," to bargain over the transfer of the toolroom em- ployees to other departments at their current rates of pay, and to negotiate the date on which the tool- room would be terminated. I further find that Respondent agreed to furnish the Union with the economic data which impelled Respondent to aban- don the toolroom department, but withheld the in- formation pending resolution of the unfair labor practice charges filed by the Union. I find that, on March 20 and 21, 1968, Respondent continued to meet and bargain with the Union, and additional negotiating sessions were scheduled for April 4, 8, 9, and 10, which were deferred due to the pen- dency of the charges. Moreover, I find that the Union adamantly refused to discuss the closure of the toolroom, the transfer of the tool-and-die em- ployees to other departments, or the mechanics and timing of the termination of the department." dent with failing to negotiate in good faith with the Union at any time prior to March 29 , 1968, when , by letter of that date, Cusack cut off the bargain- ing colloquy until this proceeding was concluded 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Meanwhile, the Union's organizational efforts among Respondent's production and maintenance employees shifted into high gear and, on April 15, it filed a petition seeking a Board election for a unit of those employees. On March 29, 1968, Personnel Director Clifford dispatched a letter to the workers in this unit in reply to a handbill which the Union had distributed a few days earlier. Clifford wrote that the Union was attempting "to shift the respon- sibility for the closing down of the Too] Room from their own shoulders to our Management." The letter further recited that "From the very start of our negotiations with them, it was obvious that they never intended to arrive at a contract which was fair, reasonable, or consistent with existing labor contracts in our area or in our industry. Despite the fact that [ Respondent ] is not engaged in the Tool and Die industry, and only maintained the Tool Room as a convenience, the Union demanded 32 increases in our present wage and fringe benefit programs for their 9 members in the Tool Room." Clifford then set forth the extent and cost of the de- mands, and noted that, "Faced with such un- reasonable and fantastic demands, the Company had to decide whether the convenience of the Tool Room was worth the cost. . . " She related that, when the demands were projected on a cost-factor basis, "it was clear to management that they could have this same work performed on the outside at a substantially lower cost. In fact, the Company has for years contracted on the outside for much of its Tool Room work, and consequently had actual costs to compare with the projected costs which the Company would face in fulfilling the [Union] de- mands. The Company had no alternative in ter- minating the Tool Room." Clifford recounted that Respondent's negotiators had offered to bargain with the Union over the closure of the department and over the transfer of the affected employees to other jobs in the plant, but that the Union refused to engage in such discussions. The letter concluded with the observation that the Respondent "must ex- ercise reasonable intelligence to remain in business and will not be forced into a labor contract which requires them to sustain financial burdens which are unsound. We sincerely hope that this summary of the facts will clarify the cause of the termination of the Tool Room, and that you will not be misled by false propoganda [sic] by a Union which is seek- ing to avoid the responsibility for their lack of intel- ligence and foresight." On April 18, 1968, Clifford sent another letter to the production and maintenance unit. After setting forth Respondent's reasons for opposing the unionization of these employees, the letter recited that "The Union has gone to great lengths to misrepresent the Company position on the Tooi Room situation. The true facts are simple. The Union's economic demands for Tool and Die makers priced this operation out of [Respondent] The Company decision to contract out this work was based strictly on economic consideration. It dic not circumvent the Union bargaining rights, as they still have them. Why is the Union attempting to in- volve you in the Tool Room bargaining when it car have no effect on you whatsoever? Furthermore, why did the Union separate the Tool and Die em- ployees from the rest of the plant workers, and now seek your help to support their lost cause." For the sake of chronology, it might be well to digress at this juncture and report on a conversa- tion between Charles Spillner, a former toolroom employee, and Plant Manager Bolander which al- legedly took place on April 24, 1968. As previously noted, Spillner telephoned Bolander to advise that the unemployment compensation agency had refused to release the former's compensation check because of its belief that Spillner had refused to ac- cept Respondent's offer of a transfer to another job in the plant at the same rate of pay. During the con- versation, Spillner commented that he had learned that Respondent had rehired one of the toolroom employees for work in another department and in- tended to recall another, and he wondered whether Bolander planned to reemploy the toolroom men one at a time. Bolander replied in the negative. Spillner retorted, "That leaves the rest of us out in the cold" and Bolander rejoined "yes, it does, as far as we know now." Spillner reminded Bolander that the former "had stuck myself out for you" by working on consecutive Sundays when Bolander's job was in jeopardy, and inquired whether there was any chance that "I could bargain for a job through you." Bolander replied that the matter was entirely out of his hands. At this point, and according to Spillner's testi- mony, Bolander remarked, "If you fellows in the Toolroom had not horsed around with that union, we would have a Toolroom and you'd all be working and making over $4.00 an hour, and we would all be satisfied." Bolander flatly denied that he made any such statement to Spillner. According to Bolander, Spillner had telephoned once or twice in search of employment after the toolroom closed. On each occasion, Spillner sounded inebriated and Bolander simply referred him to the personnel de- partment. Spillner was not an impressive witness on the stand. Moreover, I am persuaded that his hostility toward Bolander, fired by the latter's refusal to provide Spillner with work when his col- leagues were being recalled and after he had ex- tended himself on Bolander's behalf, colored his testimony. Accordingly, I do not credit Spillner, G. W. MURPHY INDUSTRIES, INC. and I find that Bolander did not make the remark attributed to him.18 Returning to the election campaign, on May 24, 1968, 3 days before the balloting, I find that Her- man Hug, Respondent's vice president, delivered a speech to the production and maintenance em- ployees. After pointing out that the Union had misrepresented its objectives and achievement to them during the drive, Hug stated, "The Union representatives misled one group of our employees into making such unreasonable economic demands that the Company had to discontinue their opera- tion. Are they now saying to you that the Union will attempt to enforce similar demands upon us?" No further speeches were made by management, and the balloting took place as scheduled on May 27, 1968. Before considering an incident which occurred on the morning of the election and which the Union raised in its objections as an impediment thereto, I turn next to an examination of the evidence presented in furtherance of the General Counsel's contention that Respondent violated Section 8(a)(3) of the Act by discharging Ulysses Taylor, Morris Belfield, and Ormand Nurse from their jobs in the polishing and buffing department on April 4, 1968 (encompassed within the production and maintenance unit), because they had joined and assisted the Union in its attempts to organize those unit employees. Prior to July 17, 1967, the 11 employees in the polishing and buffing department were paid on an incentive or bonus basis; i.e., they received a base rate which was embellished by a bonus payment de- pending upon the quantity of their production. After July 17, Respondent commenced to compen- sate these employees on a straight hourly basis. t9 Ulysses Taylor was first employed by Respondent in August 1962 as a wheel trimmer and, in either late 1963 or early 1964, he was transferred to the job of polisher and buffer. In early 1965, the Inter- national Brotherhood of Teamsters began organiz- ing Respondent's production and maintenance em- ployees. According to Taylor, he attended a Team- sters meeting one evening and gave his name to that union. On April 26, 1965, an election was con- ducted by the Board on a petition filed by that " Unaccountably, at the hearing, the General Counsel disclaimed any in- tention of spreading this conversation on the record for the purpose of sup- porting a finding that Respondent , by Bolander 's alleged statement, thereby violated Sec 8(a)(I ) of the Act Instead,.counsel advised the Trial Examiner that his sole design was to utilize the statement as supportive of his contention that the closure of the toolroom was discriminatorily rather than economically motivated Even were I to credit Spillner , Bolander's comment is equally susceptible of an interpretation that the Union's exces- sive economic demands led to the closing of the toolroom with a resultant loss of employment and higher wages In this connection , I would note the testimony of former toolmaker David Ballance He related that, in May or 75 labor organization which sought representation among the production and maintenance employees, and the union was unsuccessful. On May 4, 1965, Taylor, together with other employees, were laid off. On this occasion, Taylor's foreman, Ezell An- derson approached the former and stated that "there was going to be a layoff," explaining that "it was due to the slow-up in business."20 Around the middle of September 1965, Taylor was recalled to duty. When he reported for work, Anderson in- formed him that "there had been some changes made" and directed Taylor to proceed to the office of Ralph Davidson, Respondent's manufacturing superintendent and Anderson's superior. Davidson greeted Taylor and opened the conversation by stating that he "had quite a bit of trouble trying to straighten out that little old shop," and then he re- marked, "You know, I know you fellows tried hard to overthrow the company." Taylor replied that he did not know "what he [Davidson] meant by overthrow." Davidson observed that "Everything, I think, is straightened out. We don't want any more trouble. And if you think you are going to start any we'd rather for you to move on now." Davidson added that "We have some new- rules" and he in- structed Anderson to provide Taylor with a copy of the company rule book. Taylor acknowledged that he was unaware of whether the book contained any rules regarding the engagement in union activities and, so far as appears, it did not. When questioned whether Davidson told him that "if you go by the rules in the book, I am sure everything will be all right," Taylor initially replied, "No, sir. He didn't ever say that." After being shown an affidavit which he gave to a Board agent, Taylor conceded that Davidson made the statement on this occasion. At the conclusion of the discussion, Taylor told Davidson that "I was intending to abide by the new rules, but at the same time, I expected everybody to do likewise," and Davidson expressed his agree- ment. Because the work of polishing and buffing was slack at the time, Taylor was assigned to his former duties of wheel trimming for approximately a month and then returned to the task of polishing and buffing until April or May 1967, when he was transferred to the receiving department due to a June 1968, he had a conversation with Toolroom Superintendent Dyer at the latter 's home According to Ballance , " I asked him what he thought the reason for the closing of the Toolroom was, and he said that he thought it was because of the union He said the union proposals and so forth " '" The General Counsel does not contend that this conversion in the method of compensation was discri minatorily motivated 2" Here, again , the General Counsel makes no contention that this layoff was designed to punish adherents of the Teamsters In fact, he acknowledged that no unfair labor practice charges were filed regarding this incident 76 DECISIONS OF NATIONAL falling off of business. By July or August 1967, the tempo of production was on the upswing and Taylor resumed his polishing and buffing chores. When he reported to Foreman Anderson following this transfer, the latter apprised Taylor that Respondent had eliminated the incentive or bonus wage program on July 17, 1967, and advised that henceforth Taylor would be paid at the straight hourly rate of $3.65. Anderson also informed Taylor that Respondent had developed a produc- tion standard which all polishers and buffers were required to meet, but Anderson did not announce what the standard was. Taylor inquired, "Well, how will I know if I am coming up to it?" and Anderson assured him that "I'll let you know " The colloquy ended with Anderson's comment that "I am sure everything will work out." It is Taylor's further testimony that, either in late August or the first of September 1967, he received three or four union authorization cards from an em- ployee at the plant which he distributed to his fel- low workers in the polishing and buffing depart- ment, including an employee named Aubrey Newell. In September or October 1967, he "finally went to a [Union] meeting." On approximately Oc- tober 1, he received a union button from employee Morris Belfied which he wore on his apparel while at work until his discharge on April 4, 1968. Taylor testified that Belfield and employee Ormand Nurse also displayed union buttons on their clothing dur- ing working hours, but he could not recall whether any other fellow worker also did so. Sometime in March 1968, Taylor was at the drinking fountain in the plant when an unidentified female employee asked another male employee to sign a union card. The latter replied that he would be willing to append his signature to the document but that he would first have to seek his foreman's approval. With this, Taylor laughed and returned to his work station. A few days later, Taylor met the male employee and inquired whether the latter had signed the card. When the employee replied that he had forgotten to solicit the advice of his supervisor, Taylor for some unexplained reason escorted him to Anderson where the employee related that "Some lady tried to get me to sign a card, and I told her to ask you." According to Taylor, Anderson "just laughed" when he received this intelligence. While riding home from work that evening, a passenger in the car asked Taylor " what happened between you and the fellow that you tried to get to sign the card." Taylor retorted that he had nothing to do with the matter, whereupon the passenger commented that "Anderson told me that you tried to get this fellow to sign the card. . . ." After report- ing to work on the following morning, Taylor sum- LABOR RELATIONS BOARD moned the male employee and together they ap- proached Anderson for a confrontation on the sub- ject . Taylor instructed the employee to assure An- derson that the former had not solicited the authorization card , and the employee dutifully complied. Anderson asked Taylor where he had gotten "this idea" that Anderson had accused Taylor of any wrongdoing, and the latter stated that he had learned of this on his way home the preced- ing evening. When Taylor volunteered to summon his fellow rider to verify the source of information, Anderson told Taylor to "forget it." However, Taylor continued to press the matter, charging that Anderson "lied to me." With this, Anderson broke into laughter. Taylor warned that "This is no joking matter," shook his finger in Anderson's face, and then walked over to Joseph Cavato, the manager of the polishing and buffing department, to register the complaint that Anderson had made the false ac- cusation that Taylor had attempted to solicit for the Union. Cavato attempted to placate Taylor, stating "I don't care about you fellows talking union or acting union as long as you do it on your own time," and Cavato assured Taylor that the former would speak to Anderson about the matter. A few days later, Cavato reported to Taylor that Ander- son had accused Taylor of shaking his finger in Taylor's face. Taylor admitted that he engaged in this conduct because "When I told him about it, he laughed." The incident was laid to rest with Cavato's comment that "I think things will work out all right." Rounding out his testimony concern- ing the Union's organizational campaign and his participation therein , Taylor acknowledged that he observed many other employees in different depart- ments wear union buttons at work, that Respondent never interfered with the display of union insignia in the plant, and, that he was never prohibited by Respondent from wearing a button or directed to remove a button from his person. Continuing the narrative of Taylor's employment, on the afternoon of April 4, 1968, he was in- structed by Anderson to report to Cavato's office. When Taylor and Anderson arrived there, Cavato handed Taylor two checks with the comment "Taylor, I'll have to let you go. You have been warned. You didn't come up," an apparent reference to the fact that Taylor had not met Respondent's production standards. Taylor ex- claimed , " well, you know that this is not the reason," after which Cavato, asked, "What is the reason?" Taylor cut the conversation short with the remark that, "just let it go at that," accepted his paychecks, and left the plant. Morris Belfield was hired by Respondent in November 1960 as a polisher and buffer. He G. W. MURPHY INDUSTRIES, INC. testified that he signed a union authorization card around the last of September 1967 and was designated as a member of the Union 's employee- committee. On October 12, 1967, the Union notified Respondent of Belfield 's status . On three different occasions, he distributed authorization cards in the locker room both before and after work in November 1967, and again in January and February 1968. In addition, he attended union meetings and wore union buttons in the plant. Ac- cording to Belfield , Foreman Anderson 's locker was located near Belfield's and Anderson could not help but notice when Belfield solicited his fellow employees. However, Belfied conceded that Ander- son made no comment about this activity and Belfield's efforts in this regard went unimpeded. Belfield further related that, commencing in Oc- tober or November 1967, he began to wear two union buttons, one of which indicated that he was a "Committee Member," and he continued to do so until his discharge on April 4, 1968. Belfield also admitted that he had never been ordered by Ander- son to remove the campaign buttons and that he had never overheard Anderson so instruct other employees. He then recalled, however, a piece of information which he had obtained from fellow em- ployee Aubrey Newell. According to Belfield, Newell reported that, while engaged in a conversa- tion with Anderson at the plant on some undis- closed date, the latter, referring to Belfield and Taylor, remarked "Look at those guys over there wearing those buttons. They ought to get a job in a union shop some place, or take them off." When questioned as to whether Anderson also mentioned the name of Ormand Nurse in this connection, Belfield replied "Yes. Maybe he did, too, Nurse wearing the buttons, too." Belfield then made the surprising revelation that he received this informa- tion from Newell in December 1968, 2 weeks prior to the hearing in this proceeding and some 8 months after Belfield's discharge when, by happen- stance, he met Newell while standing on a street corner as the latter was driving by on his way to Aurora, Illinois, where they both lived, and Newell gave him a ride. Aubrey Newell, an employee who was hired as a polisher and buffer by Respondent in 1961 and who is still employed by it, was called by the General Counsel to corroborate Belfield. At the outset of his testimony, Newell was asked whether he ever had any conversation with Foreman Anderson con- cerning the Union and Newell replied, "During my work time, a lot of times at the machine." How- ever, Newell could manage to recount only two such conversations with any degree of specificity. According to him, approximately 3 weeks prior to 77 the election which was conducted on May 27, 1968, Anderson visited his machine and, feigning the inspection of Newell's work, he stated, "Newell, you is all right with me. I want to tell you something . You can talk so much until you hurt yourself about the union." Newell also recalled another discussion with Anderson a few weeks prior to the discharge of Taylor and Belfield on April 4, 1968. In this conversation, Anderson told Newell, "look at Belfield and Taylor and them. They like the union so well, why don't they quit and go to a union shop where they have a union at in- stead of staying around here wearing buttons." Although Belfield asserted on the stand that Ander- son also referred to Nurse when Anderson uttered the foregoing words, Newell stoutly proclaimed that, despite his close working relationship with Nurse, the latter at no time during the union cam- paign wore any union buttons. At first, Newell professed that his meeting with Belfield on the streets of Geneva was not prearranged. However, when pressed on the matter, he admitted that he had previously made an appointment to meet Belfield when he received a telephone call from Belfield in which the latter informed Newell that he, Newell, would receive a subpena to testify in this proceeding because Belfield "turned me [Newell] in, about me knowing about them wearing the buttons." Belfield further testified that he engaged in two conversations regarding the Union with Anderson in November 1967 and February 1968, both of which Belfield claimed were initiated by Anderson. On each occasion, Anderson inquired, "Well, what do you think the union can do for you, Belfield," and Belfield responded, "Well, for one thing, maybe a little better working standard, as you call it, out in the open so we know what we are going to have to put out. Maybe we can get some more money." Anderson opined, "I don't think so." Despite the fact that Respondent was informed by the Union on October 12, 1967, that Belfield had been elevated to the Union's employee-committee, and that Belfield had openly worn a button on his apparel which read "IAM, Committee Member," he nevertheless insisted that he was interrogated by Anderson as to whether he was a member of that committee. I do credit the foregoing testimony of Newell or Belfield because I am persuaded that it was con- trived. Thus, Newell averred that, a few weeks be- fore the election, Anderson warned the former that "You can talk so much until you hurt yourself about the union." However, by his own admission, Newell never wore a union button at work and, for aught that appears, he never engaged in any overt 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union activity . Moreover, while Newell initially as- serted that he had engaged in conversations with Anderson concerning the Union "a lot of times," he could recall only two such discussions . In one of these, Anderson is supposed to have observed that Belfield and Taylor were wearing union buttons and that they should seek employment in a union shop, a conversation which Belfield claimed had been re- ported to him a few weeks before the instant hear- ing. Although Belfield maintained that the name of Nurse was conjoined with that of Belfield and Taylor in this context , Newell steadfastly asserted that at no time did Nurse wear any insignia in the plant identifying him as a union supporter . Further- more, Newell grudgingly acknowledged that he divulged to Belfield the contents of Anderson's statement, "Look at those guys over there wearing those buttons. They ought to go get a job in a union shop some place , or take them off," not as a result of any casual meeting with Belfield on the streets of Geneva, but by predesign after Belfield had telephoned Newell to advise that the latter had been subpenaed to testify in this proceeding on Belfield 's behalf. Finally , Belfield was adamant in his insistence that Anderson interrogated him as to whether he was a member of the Union 's employee- committee either in November 1967 or February 1968, although Belfield allowed as how he had worn a button signifying this status as early as Oc- tober 12, 1967, and, on that date , Respondent was so informed in writing by the Union. Shortly before quitting time on April 4, 1968, Anderson summoned Belfield to Cavato's office where the latter stated , " Mr. Belfield , I'm sorry. Your production is down ." When Belfield asked what Cavato meant by the statement , Cavato replied , " Your record shows that your production is way down . As of now , you have been warned." With this , Belfield was paid off and he departed the plant. Ormand Nurse was first employed by Respondent in 1961 as a material handler . A native of the West Indies, his emigration to the United States was sponsored by a Mr. Baker who was then the pre- sident of Respondent, and who befriended Nurse during most of his employment . Nurse progressed to the duties of a wheel trimmer and, according to him, President Baker and Supervisor Anderson complimented him on his skill and industry . Desir- ing a higher paying job , Nurse pleaded his case with Baker. Baker consulted with Supervisors Davidson and Anderson , and it was decided that the only means by which Nurse could be paid at the higher rate would be to transfer him to the polishing and buffing department, a move to which Nurse readily agreed. Nurse testified that, on October 13, 1967, he signed a union authorization card, which was ap- proximately around the date of the assumption of his new duties. About this time, he received three authorization cards from Belfield which he dis- tributed to some female employees in the plant dur- ing his lunchbreak. In addition, he exhorted his fel- low workers to join the Union and this continued until approximately 3 weeks before his discharge on April 4, 1968. Shortly after the first of the year, 1968, he received a union button which, according to Nurse's testimony on direct examination, he proceeded to wear in the plant 3 weeks later. Nurse then faltered in his recollection and believed that he first commenced wearing the insignia sometime in February 1968. He later insisted that he wore the item until 3 weeks prior to his termination on April 4, 1968. However, Nurse ultimately gave this piece of testimony. In early January 1968, he was ap- proached by Supervisor Anderson and was told that "if I would forget the Union, he'd [Anderson] make me a foreman ." Nurse answered that "I'll have to give that a thought." Although Nurse placed Newell in the midst of this conversation, the latter made no mention of it in his testimony. Nurse further testified that, in the middle of March 1968, Anderson expressed surprise that Nurse favored the Union and lamented that "here I'm trying to get you to run the department for me when I'm on va- cation, and you wear a Union button, you take it off." Dutifully, Nurse proceeded to his locker and removed the button. On the stand, Anderson emphatically denied that he had promised Nurse a promotion to foreman if he defected from the union ranks, denied that he ordered Nurse to remove a union button from his person, and denied that he ever observed Nurse sporting any union in- signia although he acknowledged that he had seen Taylor and Belfield wearing them. I do not credit Nurse's testimony that Anderson promised him a promotion to the job of foreman if he foresook the Union, or that this supervisor pres- sured Nurse to remove his union button. Nurse was a belligerent and evasive witness whose demeanor did not impress me. Moreover, his testimonial ut- terance lacked both the ring of plausibility and sin- cerity. For example, he claimed that the carrot of a foremanship was dangled in front of his nose if he abandoned his championship of the Union. He ad- mitted that the polishing and buffing department in which he worked had a complement of 10 or 11 employees and that, in addition to Supervisor An- derson, a second foreman named Green also toiled in that area. When questioned as to where Ander- son would be transferred in the event that he suc- ceeded to the foreman's job, Nurse replied, "I can't G. W. MURPHY INDUSTRIES, INC. 79 answer that question," and when queried as to the department to which he would be assigned as a su- pervisor, Nurse retorted, "he told me that he would make me a foreman , that's all I know." Addi- tionally, although Nurse placed Anderson 's promise of a promotion as occurring in early January 1968, he indicated that he might not have begun to wear a union button until February of that year . In view of the fact that Nurse 's other union activities, i.e., distributing three union cards to employees and conversing with them concerning the Union 's drive, have not been shown on this record to have come to the attention of Respondent 's officials, I am hard-pressed to understand how Anderson could have known that Nurse was an active union ad- herent in early January 1968 when Nurse did not begin to wear a button until February 1968. Moreover, despite the fact that Nurse claimed he exhibited the button daily for everyone to observe, Newell , who was called as a witness by the General Counsel to support his case -in-chief, was absolutely certain that Nurse did not carry any union identifi- cation on his clothing during the entire course of the organizational campaign . Finally, although Nurse placed Newell in the conversation with An- derson relating to the promotion , Newell failed to corroborate Nurse's testimony on this score.21 On April 4, 1968 , Cavato called Nurse into the former's office . Cavato stated , "on account of not making you-making or coming up to the standard, you're terminated ." When Nurse received his final paycheck , he informed Cavato , "you all would hear from me." According to Nurse 's testimony, he had not been informed prior to his separation that he had failed to achieve Respondent's production stan- dards which were put into effect on July 17, 1967, and had never been apprised of what those stan- dards were. The General Counsel pleads that Taylor , Belfield, and Nurse were struck from Respondent 's employ- ment rolls because they were in the forefront of the Union's election drive in the polishing and buffing department . Respondent defends their discharges on the ground that they consistently failed to meet its production standards . On this record, I am inclined to agree with Respondent 's contention. It is undisputed and I find that, for nondis- criminatory reasons, Respondent converted its method of compensating its employees on July 17, 1967, from an incentive to a straight , hourly basis, and I have found that Foreman Anderson , who was in charge of the polishing and buffing department, informed Taylor that the former would "let you know" if Taylor was not "coming up" to standard productivity, with the assurance that "I am sure everything will work out." Belfield, who also com- plained on the stand that he had not been afforded any definitive measure by Respondent for gauging the quantity of his performance after the new stan- dards were imposed, admitted that he had been orally warned by Anderson on "two or three" occa- sions prior to his discharge that he was not cutting the mustard. He recalled that the first instance oc- curred in November 1967, and that he received the others prior to that month. Belfield freely admitted that his productive capacities receded after the in- novation of the new standards, and he frankly at- tributed this circumstance to the fact that he be- lieved he was not being paid enough. In his words, he achieved production only "occasionally" after the change in compensation. While then admitting that he had received several warnings concerning his work, Belfield insisted that he had never gotten any written warnings concerning his deficiencies, stating "I did not. It is news to me." When pressed on cross-examination as to whether he had received recorded admonitions on March 14 and 19, 1968, Belfield entered a firm denial. Curiously, however, he conceded that he requested that Cavato unfold his production cards for the pay period preceding his discharge so that he could compare them with notes which he had jotted down covering the same span, an endeavor which he had never undertaken theretofore. According to Belfield, his request was prompted by the belief that "I suspected them changing counts on my time card." Respondent int- troduced into evidence two written reprimands which bear Anderson's signature and the dates of March 14 and 19, 1968, both of which fault Belfield 's production efforts. The former cited "Not Making Standards" and the latter bore the notation "This employee ( Morris Blefield) has been re- peatedly warn [sic] about his unsatisfaction [sic] production." Regarding his production after the rate of pay conversion on July 17, 1968, Taylor admitted that he had been warned by Foreman Anderson that the former was not meeting Respondent's production standards "I'd say sometimes twice a week. Some- times it may be three times a week." Taylor also confessed that his production dropped about 15 to 20 pieces per day since July 17, 1968. When asked to explain the reason for this decrease, Taylor made the remarkable reply that his supervisors "told me 21 The record discloses that, during Anderson's absences from the department, Nurse would be called upon by relatively illiterate employ- ees to assist them in placing the proper numerical figures on their production cards for submission to the payroll office Apart from this elementary, ministerial task, which was apparently performed on a vol- untary basis, Nurse primarily devoted his productive time to polishing and buffing 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they didn't expect me to produce" and he confided that he did not "work as hard" when the rate of payment changed. Taylor was also questioned as to whether he had ever received any written warning concerning his production deficiencies. Initially, he answered in the negative. However, he then con- ceded that he had received two. The record shows that Taylor was reprimanded by a warning dated December 19, 1967, which recited "Failure to do the work assigned in an efficient and acceptable manner. This employee (Ulysses Taylor) has been warned verbally repeatedly about his unsatisfactory work." A second warning bears the date of March 14, 1968, and reads "Not Making Standard."22 Concluding his testimony on this phase of the case, Taylor acknowledged that, between Sep- tember 1967 and April 1968, he overheard Ander- son warn Belfield and Nurse about their failure to make production. Only one other employee in the department had been criticized, John Clark, and this occurred on but one occasion. In his testimony, Nurse claimed that he had never been taken to task about low production after July 17, 1968. I do not credit this testimony, because it is belied by that of employee Aubrey Newell who worked with Nurse in the same department. Newell testified that, between that date and April 4, 1968, Nurse had been criticized "quite frequently" by Anderson because of poor production, as was Belfield and Taylor. According to Newell, he had been the topic of criticism on only one occasion during this entire period. So far as his testimony stands, no other employee in the polishing and buffing department received a reprimand. Upon a careful review of the foregoing testimony, I am convinced and find that Respon- dent discharged Taylor, Belfield, and Nurse on April 4, 1968, not because they actively promoted the Union's cause , but rather, following the conver- sion and until their discharge, they were repeatedly warned for more than 8 months that their produc- tion was less than satisfactory. Having failed to im- prove, I find that Respondent severed them from the payroll for this reason. Accordingly, I shall dismiss the complaint insofar as it alleges that their termination was prompted by illegal considerations. 22 Taylor testified and I find that, sometime in September or October 1967, Anderson shielded him from another written reprimand by tearing the document up 21 Neither Halderly nor Kerns was an employee of Respondent Seekins and Jones , who had been employed in the production and maintenance unit, were discharged by Respondent prior to the election Their termina- tions were processed by the Board as potential unfair labor practices, but the charges were dismissed as lacking in merit I therefore find that these four individuals were not employees of Respondent on the morning of May 27, 1968 Richard Gauger was severed from Respondent 's employ when it eliminated its toolroom on March 20, 1968, under circumstances which I have herein found to be neither discriminatory within the purview of Sec The last issue presented for decision relates to the Union's objection that Respondent impeded the conduct of an untrammeled Board election on May 27, 1968, among the production and maintenance employees by summoning the local constabulary to evict the Union's handbillers from a road leading to the Geneva plant. I find that, at approximately 7 a.m. on the day of the balloting, Business Represen- tative Frank Haderly, accompanied by Richard Kerns of the AFL-CIO Industrial Union Depart- ment, former employees Mary Seekins and Vivian Jones, and Richard Gauger, drove to the plant to distrubute leaflets urging the employees to vote for the Union.23 Haderly stationed his assistants near Respondent's parking lot to circulate the literature while he sat in his car. Two police patrol cars were parked on the access road at this time.24 A few minutes later, an officer approached Haderly's vehicle and informed him that the police station had received a complaint from Respondent's Attor- ney Cusack that the union handbillers were trepassing on a street which belonged to Respon- dent. The officer instructed Haderly to withdraw his handbillers to an area on the access road which butted on a major public highway. Haderly protested that the removal of his cohorts to the highway could create physical hazards. He ex- plained to the officer that the Union had dis- seminated literature to Respondent's employees "for approximately six months, and we had almost gone down almost to the company's plant entran- ce" without previous interference. Haderly acknowledged that his distribution point might have been on company property and that he told the of- ficer that "I didn't know whether the lot line was, either, either state or state property." He also told the officer that "You are not going to stop us from going up to that lot line" (an apparent reference to the division between the State's and Respondent's property). The officer replied, "You go ahead to the lot line, but if I received-receive another com- plaint, I will have to take you in." Haderly con- ceded that he did not know whether he and his handbillers were trodding upon Respondent's pro- perty. After removing his distributors to a position ad- 8(a)(3) of the Act, nor otherwise offensive of Sec 8 ( a)(5) and ( I) of the statute Accordingly , I find that none of the Union's handbillers were em- ployees when they were accosted by the Geneva police on election day 24 In response to a question by the Trial Examiner as to whether this road was company property or land which belonged to the public, Haderly replied, "That is a matter of dispute of where-whether it is a private road or a public road I really don 't know " Inasmuch as it is the Union 's burden in the objections ' phase of this proceeding to establish all aspects of Respondent's improprieties which would warrant upsetting the election, I find that the Charging Party has failed to prove that the distribution of its literature occurred in a public place on election morning G. W. MURPHY INDUSTRIES, INC. jacent to the main thoroughfare, Haderly believed that traffic conditions exposed them to too great a physical danger. He returned to the second police car stationed on the access road and reported that he was unable to perform his distribution chores because of the vehicular hazards. The policeman radioed his superiors and his fellow officer was re- called to the scene. The latter informed Haderly that "there wasn't anything he could do about it, that the complaint had been registered. And if we went-and if we went on to the so-called private road, we would have to be arrested." Haderly thereupon summoned his handbillers and told them that it was too risky to continue their efforts near the main highway. The distribution of the leaflets at the Geneva plant ceased at 8 a.m. Haderly then proceeded to the St. Charles plant which was also involved in the balloting. There he met Cusack, and his opening remarks to the latter were to the effect that "You are a real nice guy. All you think of is your own self. You don't think of- think any thing of the safety of the handbillers, even of the Portable Electric Tool employees. You called the cops on us. And they tried to run us off." Cusack responded, "You are in violation of the 24 hour rule. You have a captive audience, and we're not entitled to have a captive audience."" Haderly shot back, "If we lose this election, we are going to file an unfair labor practice charge against this company on the grounds of safety." Concluding this episode, Haderly conceded that he and his aides had distributed literature at the plant en- trance at least once a week for a 6-month period prior to the election, that the Union also mailed union literature to the employees involved ever since the inception of the organizational campaign among the production maintenance employees, and that he even handbilled the employees on the second shift at the Geneva plant without impedi- ment on election day while stationing himself at the very entrance to the plant. At the hearing, counsel for the Union took the position that the police officers were agents of Respondent and that it was therefore responsible for their statements and actions. Counsel then changed course and disclaimed any agency rela- tionship, whereupon this Trial Examiner sustained Respondent's objection to the conversation between the officers and Haderly on hearsay grounds. Finally, counsel once more altered course and insisted that the agency did in fact exist, although no evidence to sustain this contention was '' Cusack apparently had in mind the Board 's Peerless Plywood rule (Peerless Plywood Co , 107 NLRB 427, 429), which bans electioneering be- fore captive audiences of employees during the 24-hour period preceding the balloting 81 offered. Following this forensic exercise, counsel at last claimed that the only assertedly objectionable conduct which occurred on election day was the presence of the police cars on the access road for the first time since the union campaign began. It is now well settled, as the Union concedes, that an employer possesses the legal right to debar nonemployee solicitors from its property.26 I have heretofore found that neither Haderly nor his assistants were employees of Respondent on the date of the election. I have also found that the Union failed to come forth with evidence which would establish that its distribution of literature oc- curred on public property. Consequently, even were I to find that the officers were acting as agents of Respondent, I would nevertheless find and con- clude that it was privileged to exclude the union representatives from its property. Moreover, I am not convinced that, in the circumstances of this case, the mere presence of squad cars at the en- trance to a plant where some 600 employees are to be balloted created such a coercive or intimidatory atmosphere as to warrant nullifying the election results. Accordingly, I find that this objection lacks merit and I shall recommend that it be overruled. C. Conclusions The General Counsel had alleged that Respon- dent offended the provisions of Section 8(a)(1) of the Act by the following conduct of Foreman An- derson: his interrogations of Belfield as to what the latter thought the Union could do for him; his promise to Nurse that Nurse would be promoted to a foreman's job if he abandoned his activities on behalf of the Union; his directive to Nurse to remove a union button from his person, coupled with Anderson's statement that the latter was at- tempting to put Nurse in charge of the polishing and buffing department and yet Nurse persisted in wearing union insignia; his warning to Newell that the latter could jeoppardize his employment status by talking about the Union; and, by his comment to Newell that Taylor and Belfield should leave Respondent's employ and seek work in a unionized plant instead of remaining with Respondent and wearing union buttons. I have heretofore found that Anderson did not make any of the foregoing state- ments or engage in the acts of alleged misconduct which the General Counsel's witnesses attributed to him. I therefore conclude that Respondent did not °h N L R B v Babcock & Wilcox Company, 151 U S 105 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violate Section 8(a)(I) by any misconduct on An- derson's part. The General Counsel has also asserted that Respondent violated Section 8(a)(1) by Clifford's letters to the production and maintenance em- ployees of March 29 and April 18, 1968, and by Hug's speech to them on May 24, 1968. The General Counsel argues that Clifford's reference to the closure of the toolroom because of the Union's "unreasonable and fantastic demands," and Hug's comment that "The Union representatives misled one group of our employees into making such un- reasonable economic demands that the Company had to discontinue their operation. Are they now saying to you that the Union will attempt to enforce similar unreasonable demands upon us," interfered with, restrained, and coerced the employees' free selection of the Union. I have heretofore found that Respondent eliminated its toolroom department for financial reasons occasioned by the Union's economic, contractual demands. I therefore con- clude that, far from being coercive, Clifford's let- ters and Hug's speech merely set forth truthfully the factual and lawful bases for closing that opera- tion. Accordingly, I conclude that Respondent did not violate Section 8(a)(1) by any of the foregoing conduct. Moreover, insofar as the foregoing allega- tions have their parallel in the Union's objections to the election which are before me for disposition, I shall overrule those objections. The General Counsel has also charged that Respondent violated Section 8(a)(3) by terminat- ing Taylor, Belfield, and Nurse on April 4, 1968, because they joined and assisted the Union. I have heretofore found that these employees were separated from Respondent's employ because they failed to measure up to Respondent 's production standards and not because of their union activities. I therefore conclude that this personnel action did not fall within the proscriptive ambit of Section 8(a)(3). The General Counsel further contends that Sec- tion 8 ( a)(3) was violated when Respondent closed its toolroom department on March 20 , 1968, and laid off certain of its toolroom employees . The dual thrust of his argument in this connection is that Respondent took this step with a design to penalize the toolroom workers for having selected the Union as their collective-bargaining representative , and/or to sway the production and maintenance employees from voting for the Union in the election conducted on May 27, 1968. I have previously found that the elimination of the toolroom was impelled by economic rather than discriminatory considera- tions. According, I conclude that its closure and the furloughing of the employees were not offensive to the provisions of Section 8(a)(3) of the Act. The complaint additionally alleges that Respon- dent violated Section 8(a)(5) and (1) by uni- laterally terminating its toolroom operations without prior consultation and bargaining with the Union, by declining to bargain with the Union over the effect upon the tool-and-die employees of the elimination of their department, and by refusing to furnish the Union with information relating to the cost factors which led to Respondent's decision to shut down that operation. In Town & Country Manufacturing Co., 27 the Board observed that: ... the duty to bargain about a decision to subcontract work does not impose an undue or unfair burden upon the employer involved. This obligation to bargain in nowise restrains an employer from formulating or effectuating an economic decision to terminate a phase of his business operations. Nor does it obligate him to yield to a union's demand that a sub- contract not be let, or that it be let on terms in- consistent with management's business judgment. I have found elsewhere that, after Respondent surveyed the potential costs of the Union's economic demands, it reached the decision that the continuation of the toolroom department would prove to be uneconomical. When the parties met on March 20, Respondent announced its plan to the union representatives and threw the matter on the bargaining table with the comment that "we are now ready to discuss the closing of the toolroom thoroughly, and its effect on the employees in- volved." Respondent pointed out that cost factors made the subcontracting of the work imperative, and agreed to provide the Union with the relevant economic data. Respondent stated that it "just can't incur any added cost" in the toolroom and, when the Union inquired whether Respondent would maintain the operation if the parties agreed to a contract covering the negotiated clauses without any monetary increases , Respondent replied that "we would certainly re-examine our position." On the following day, the parties again met and entered into further negotiations on an agreement, and additional bargaining dates were scheduled . Moreover, I have heretofore found on the basis of undisputed testimony that it was the Union , and not the Respondent, which failed and refused to discuss the matter of transferring the toolroom employees to other departments in the plant at the same rate of pay. 27 136 NLRB 1022, 1027, enfd 316 F 2d 846 (C A. 5) G. W. MURPHY INDUSTRIES, INC. As the Board noted in Town & Country ,28 "Such prior discussion [of subcontracting ] with a duly designated bargaining representative is all that the Act contemplates." On the record here made, I am convinced and conclude that Respondent fulfilled its statutory obligation of bargaining with the Union over the cessation of toolroom operations and the consequent effect upon the employees involved. While it is true that Respondent reneged on its promise to convey the requested economic data to the Union , I am not persuaded that this action was entirely unreasonable or unwarranted . In view of the filing of refusal -to-bargain charges against Respondent on March 21 , 1968, at a time when Respondent was nevertheless complying with the statutory mandate of meeting and bargaining with the Union , I do not deem it unreasonable for Respondent to desire to place the information in the hands of the Board agent who was investigating the case and to await a Board determination as to the merit of the charges before the Respondent proceeded farther . Furthermore , by the time of Respondent's refusal to comply with the Union's request, namely, March 22 , 1968, I conclude that the former had already satisfied its statutory obliga- tions regarding consultation and negotiations with the Union . In short, I conclude that Respondent did not violate Section 8 (a)(5) of the Act by its entire conduct surrounding the closure of the toolroom. 83 Finally , the General Counsel has alleged that Respondent failed to bargain with the Union on and after March 29, 1968 , and thereby violated Section 8(a)(5). By the phrasing of this allegation , I assume that the General Counsel has taken the position that the Union remained the majority bargaining representative for the employees after that date and Respondent continued under an obligation to deal with it . As I have previously found that the tool- room was closed on March 20 , 1968, for lawful reasons and that the employees were legally laid off, I conclude that the General Counsel has failed to sustain the burden of this allegation. I shall therefore dismiss the complaint in its en- tirety . As I have also overruled the Union 's objec- tions to the election in Case 9-RC-11541 , I shall recommend that the petition filed therein be dismissed. RECOMMENDED ORDER Upon the basis of the findings heretofore made and the conclusions heretofore drawn , and the en- tire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety . It is further or- dered that the petition filed in Case 9-RC-11541 be, and hereby is, dismissed. x" Ibid