Baker Machinery Co.

358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Baker Machinery Company and International As- sociation of Machinists and Aerospace Workers, Local No. 1743, AFL-CIO. Case 19-CA-4433 June 30, 1970 DECISION AND ORDER By MEMBERS MCCULLCOCH, BROWN , AND JENKINS On March 18, 1970, Trial Examiner Allen Sinsheimer , Jr., issued his Decision in the above-en- titled proceeding, finding that the Respondent had engaged in certain unfair labor practices alleged in the complaint and recommended that it cease and desist therefrom and take certain affirmative ac- tion, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recom- mended dismissal of such allegations. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief and Respondent filed a brief in opposition to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that Baker Machinery Company, Ken- i Contrary to our dissenting colleague, we believe the Trial Examiner was correct in crediting Respondent 's testimony that it had suffered a marked decrease in business during the months immediately preceding the discharge of Osborne and Armstrong , and that these employees were discharged for nondiscriminatory reasons Osborne because he was old and somewhat feeble and Armstrong because he had less seniority among the regular employees There is no reason to reject Riley's testimony as to the company's busi- ness condition simply because it was based in part on an abstract of its busi- ness records Riley's testimony was also based on personal knowledge, and was not self-contradictory Moreover, it appears from his and newick, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. MEMBER JENKINS, dissenting in part: I do not agree with the majority herein that the 8(a)(3) and (1) allegations in the complaint should be dismissed. Unlike the Trial Examiner, I find that the evidence, considered in its totality, presents a strong prima facie case to support these allegations in the complaint. As detailed by the Trial Examiner in his Decision, the Respondent engaged in a vigorous antiunion campaign in violation of Section 8(a)(1). In addition, he found specifically with reference to the two alleged discriminatees, Osborne and Armstrong, that both had signed union authorization cards, and both had refused to sign the antiunion petition circulated by Respon- dent's foreman, Frederick, and were therefore con- sidered by Respondent to be prounion. He also found that Respondent had threatened layoffs in the event of a union victory in the forthcoming election. The Union won the election and on the day following Osborne and Armstrong were discharged. Upon consideration of all the evidence presented, I find that the General Counsel had made out a prima facie case , supported by substan- tial evidence, which imposed upon the Respondent the duty of going forward with evidence that adequately explained the discharges.2 The Respon- dent offered evidence tending to show that the discharges were prompted by an alleged reduction in its business. This evidence consisted, for the most part, of a document prepared in anticipation of the hearing, allegedly showing a reduction of shipments to customers. This document was based on Frederick's personal records and not on Respon- dent's actual business records It was also admit- tedly incomplete. In my opinion this document was of no evidentiary weight, being but a self-serving and incomplete derivation prepared only after the issue had arisen for the specific purpose of but- tressing Respondent's otherwise bald assertion. Nor do I find that the conclusionary and self-serving testimony of Respondent Vice President Riley and Shop Foreman Frederick meet the evidentiary stan- Fredrick's testimony that Respondent's records were available for exami- nation if the General Counsel had harbored any suspicion as to the trust- worthiness of this testimony The General Counsel was afforded an opportunity by the Trial Examiner to have Respondent produce its original business records but he declined to request them and was con- tent to rest his case on the evidence then in the record. That testimony cannot now be challenged on the ground that it was not the best evidence See N R L B v Drennan Food Products Co, 272 F 2d 23 (C A 5) Our dissenting colleague makes out no more than a case of suspicion ' Star Expansion industries, Corp , 164 NLRB 563, 565, and cases cited in fn 4 184 NLRB No. 39 BAKER MACHINERY COMPANY 359 dard required to dissipate the unfavorable inference to be drawn from the General Counsel's evidence 3 Accordingly, I would find that the Respondent's discharge of Osborne and Armstrong on July 20, 1969, was motivated not by the reasons stated, but by its hostility to their union activities as alleged in the complaint, and that Respondent thereby vio- lated Section 8(a)(3) and (I) of the Act. 3 Riley testilied , in contradiction of his testimony, that Respondent had a business falloff at the time of the discharges , and that all of its production employees beginning in July 1969 up to the time of the hearing before the Trial Examiner were , because of press of business , placed on a 9-hour day, six-day-a-week , schedule TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALLEN SINSHEIMER, JR., Trial Examiner: The above-entitled proceeding was heard at Pasco, Washington, on October 21 and 22, upon a com- plaint issued September 19,1969.' A timely answer to said complaint was filed by Baker Machinery Company, herein called the Respondent, on Sep- tember 26, 1969, and an amended answer on Sep- tember 30, 1969 The complaint alleged various acts of interference in violation of Section 8(a)(1) and also alleged the discharge of three named em- ployees, James Armstrong, Patrick Ayde, and Ira Osborne, in violation of Section 8(a)(1) and (3) of the Act.' Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs of the General Counsel and Respondent, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, a Washington corporation, is en- gaged at Kennewick, Washington, in the manufac- ture and sale of packaging machinery for produce. During the year preceding the issuance of the com- plaint, Respondent's gross volume of business ex- ceeded $500,000 and its sales to customers located outside the State of Washington exceeded $50,000. The Respondent does not deny and I find that Respondent is, and at all times materal has been, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Respondent does not deny and I find that In- ternational Association of Machinists and Aerospace Workers, Local No. 1743, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Union Organization, Respondent Knowledge of Union Activity, and Certain Unfair Practices in Connection Therewith On May 1, 1969, the Union commenced or- ganizational activities among the Respondent's production and maintenance employees. On May 9, the Union filed a petition with the Board for an election among said employees after having ob- tained eight applications for membership from em- ployees, one signed May 7 and the remainder on May 8. In addition one then member of the Union was currently employed. On June 2, 1969, a con- sent-election agreement was approved by the Re- gional Director. Thereafter an election was con- ducted by the Board on June 19 which the Union won by a vote of 9 to 8.3 Within a few days after the petition for represen- tation was filed by the Union, about May 14, 1969, Bert Frederick, shop foreman of Respondent, circu- lated a document which he asked the employees to sign, stating , "We the undersigned employees of Baker Machinery Company do not wish to be represented by any labor organization." This docu- ment was presented by Frederick to most of the employees. Seven, including Frederick, appear to have signed. Frederick testified that he considered those who did not sign it to be union supporters and also that he judged as to who were and who were not union supporters from observing groups who would cluster together and cease talking when he approached. Among those who declined to sign the petition upon request were the two alleged dis- criminatees, James Armstrong and Ira Osborne. Armstrong also told Frederick that he had signed an authorization card for the Union.' It is ac- cordingly evident that Respondent through Frederick had knowledge of the prounion attitude and interest of Armstrong and Ira Osborne and I therefore find Respondent had such knowledge. According to Ira Osborne, Frederick also asked if anybody had approached him in the shop concern- ing the Union and he had said no "as he was refer- ring to what was in the shop." Frederick denied asking Osborne if anyone contacted him about the Union. In view of the admitted distribution of the petition, the nondenial of certain threats of layoff as set forth, post, and my observation of the wit- nesses, I credit Ira Osborne as to being asked by Frederick if he had been approached in the shop i The charge was filed July 1, 1969 , and an amended charge September 18,1969 2 At the hearing , the General Counsel , following testimony and evidence, moved to dismiss the complaint as to the allegation pertaining to Patrick Ayde This motion to dismiss as to Ayde was granted There were approximately 18 eligible voters' P 27, I 21, shows "Osborne" but it is clear from contest and the answer to my question at p 28,1 6, that " Armstrong" was the person referred to 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about the Union. Osborne also testified that at the time Frederick apporached him about the petition he also said: Yes. He said we got a union in there, why, they would probably lose their benefits, you know, they have benefits, I don't know just exactly what they are or what they consist of, but they'd lose those if they joined the union, and probably have to lay off on account of shortage of work. This latter was not denied but Frederick said he didn't remember saying it. Further it is consistent with statements attributed to Frederick by Richard Osborne, post, and also by employee Gary Rucker who was asked to sign the petition. Rucker testified: A. Well, he said something to the effect I was talking to him, you know, I says, "well, I don't care to sign it and stuff, and I would like to have whatever benefits me most." "Well," he said, "I am sure that any increase in wage that you might receive from the union would just be spent in union dues and that there would probably," he said, "as you know, there would probably be a layoff of most of the men in the factry for approximately three months of the year." Q. He said there might be a layoff for ap- proximately three months of the year? A. Yes. This foregoing does not appear to be denied. Richard Osborne, an employee and son of Ira Osborne, testified that Frederick approached him asking him to sign the petition and: He said that if they had a union in there and got higher wages and stuff, that probably there would be some lay-offs around there, and he also said that my relationship with the boss would probably be better if I signed it than if I didn't sign it. The latter does not appeared to be denied. In addi- tion, Ira and Richard Osborne and Rucker ap- peared to be credible witnesses. Accordingly, I credit the testimony of Ira and Richard Osborne and Rucker as to the threats of layoffs in event of a union. Although not specifically alleged in the com- plaint, the issue as to threats of layoffs appears to have been litigated both in connection with the al- legation and proof of distribution of the petition by Frederick and the allegations of dscriminatory discharge.5 I accordingly find these statements as to layoffs transcended free speech and constituted threats of rperisal in violation of Section 8(a)( 1 ).6 An alleged unfair labor practice involves the document or petition circulated by Frederick. There is no question that such circulation did not meet those requisites which might justify such a ' That the unfair practice may be found where fairly tried although not specifically pleaded, see N L R B v Thompson Transport Co , Inc , 421 F 2d 154 (C A 10, 1970 ), citing cases 6 See N L R 8 v Gissel Packing Company, Inc , 395 U S 575, as to "pre- petition or interrogation. Accordingly, the circula- tion of the petition was clearly in violation of Sec- tion 8 ( a)(1).' Another allegation alleges interrogation of em- ployees about May 14 concerning union activities. The circulation of the petition by Frederick relates thereto and also his question of Richard Osborne as to whether anybody had approached him in the shop concerning the Union. The latter absent cir- cumstances not here shown reflect further violation of Section 8(a)(I) and I so find. B. Additional Allegations of Violation of Section 8(a)(1) The complaint further alleged that from on or about May 14, 1969, Respondent denied its em- ployees access to or use of Respondent's lunchroom for any purpose. The record reflects that Respondent did not have a lunchroom but did have an office used by Frederick about 6 by 10 feet, of which a desk took up about 5 of the 6 feet, and in which there was a filing cabinet, a hotwater heater, and several chairs. A number of employees, namely, Tom Furness, Ed Hue, Dale Rucker, and James Armstrong, were accustomed to eating lunch therein. Richard Osborne occasionally ate in this office. All five had signed union cards and all ex- cept Furness, who was not called as a witness, testified they declined to sign the petition circu- lated by Frederick. One day, after the refusals to sign the petition, Vice President and General Manager Mike Riley informed the employees that he did not want them eating lunch in the office and dirtying up the place. In this office were kept an open file cabinet, a key to the pickup truck, keys to tool cribs, correspondence, mail and files on the' desk, and price lists. From time to time, some of the employees would play cards with Frederick and/or Riley when they returned from lunch. Em- ployee Gary Rucker testified he had used the office for lunch for a period of 2-1/2 years without any question being raised. Riley testified the men left the room in a mess, it was too small to use for that purpose, Respondent's records were confidential, and certain keys were in the office. Riley said he had instructed Frederick several times in the past going back over several years that this was poor prac- tice to have the office used as a lunchroom. Riley said he had noticed several times "half of a Hostess twinkie" and cracker crumbs on the desk and told Frederick several times to stop this. On the day in question, Riley said he "happened to be walking by as they were going in to eat lunch" and told them he did not want the room used as a lunchroom any more. In spite of his instructions, Frederick did nothing and gave no reason therefor. Riley said he dictions" constituting threats of reprisal under circumstances such as herein ' Compare StruAsnes Construction Co , Inc , 165 NLRB 1062 BAKER MACHINERY COMPANY 361 thought either Frederick forgot or "perhaps felt that it really wasn't hurting anything." Rucker de- nied that the men left the room dirty . I note that after the election , cardplaying continued in this small office area in which Riley, Frederick , and em- ployees participated. This incident by itself, with nothing more , might not have great significance Further, reasonable use or restriction of use of premises is normally within the perogative of management . However , when this is coupled with the other evidence of interference, set forth above, occurring about the same time , the fact that no issue concerning the practice had been made throughout the years until after the union petition and rejection of Frederick 's petition , the fact that Riley knew about it for years and claimed to have several times given instructions never complied with , and finally that the office continued to be used for cardplaying although claimed to be too small for nonoffice purposes, it appears that the motivating cause for termination of permission to use the office as a lunchroom was union organiza- tion and activity. I accordingly find that by such termination of permitted use of the office for lunch purposes , Respondent violated Section 8(a)(1) of the Act. The complaint also alleges that about June 12, Foreman Frederick stated in the presence of an em- ployee (Richard Osborne) that the days of that em- ployee with Respondent were numbered. Richard Osborne testified that employee Jerry Adcox8 (whom Osborne didn't know well) initiated it. Osborne testified: He come into the shop one day and says, "Hi, Rich, I see you are still here," and I says, "Yeah, but I don't know for how long," and Burt was standing there and he said, "Yeah, his days are kind of numbered around there." According to Frederick- Mr. Adcox, if my memory serves me correctly, says Richard, "I see you are still here," and as I have always kidded the boys along these lines, I replied, "Yes, but his days may be num- bered." Frederick said he thought Adcox was jesting and that his response was in jest, asserting that he some- times joked and didn't show it. The employee, Richard (Rick) Osborne, admitted he couldn't al- ways tell whether Frederick was jesting or not but didn't think he was at that time. Richard Osborne said he began looking for work but could specifi- cally refer only to a job at the city water depart- ment that he had inquired about. Frederick testified Rick Osborne was considered to be a highly satisfactory employee and it would take "a rather great amount of provocation" to terminate him. Nor was he terminated. Further it should be noted that the statement, whether made seriously or in jest, is not necessarily related to union membership or activities. Although I do not believe that it is desirable to jest about such matters, I conclude under the circumstances that the statement was probably made in jest. Based on all of the testimony relating thereto and my observation of the wit- nesses, including particularly Frederick, I credit Frederick's testimony in this respect that his state- ment was not made seriously. Accordingly, I find no violation thereby whether or not related to union activities. The complaint further alleges that on or about June 13, employee Ed Hue, Jr., received an unex- pected 10-cent-an-hour wage increase in his paycheck. There is no question that he received such a 10-cent-an-hour pay increase-a total of $4 for the week. General Counsel contends that it was done to influence his vote. Hue testified that he thought that was its purpose. This increase was given in the pay period ending June 11, for which the check would be delivered on June 13. It was not included in the pay period ending June 18 which was before the election. However, the check is dated June 19 and payment normally would not and in this case was not made until June 20 the day after the election. Respondent produced as wit- nesses the person in charge of payroll, Lilly Bresko, and her subordinate, Marlene Brown . Both testified that this increase was an error . Marlene Brown, who prepared the checks, said she simply made up the list from memory and didn't know how the error occurred . Brown said she discovered the mistake the following Thursday. She told Lilly Bresko she had paid Hue $4 too much the preced- ing week and said they let it go at "that." The next time she heard about this was when Mr. Riley came in with a list of complaints about a month before the hearing and "that was one of them ." Lilly Bresko also testified a similar error had occurred some years before. Vice President and General Manager Lloyd Riley testified he had not authorized the increase. From my observation of these witnesses, and par- ticularly Marlene Brown 's responses to questions propounded both by me and counsel, in my judgment she testified honestly that the increase was made in error I accordingly credit Brown's testimony. This also appears to be a matter which in amount and number (one) without more would make questionable its effect and hence the likelihood that it would have been done deliberate- ly. Based on all of the evidence with respect to the increase to Hue, including my observation of the witnesses including particularly Brown, I find that the increase to Hue was the result of an honest mistake or error and not violative of the Act. Two incidents of alleged imposition of more ar- duous working conditions by General Manager Riley upon the employees after the election were set forth by the General Counsel. One involved a time about mid-May when alleged discriminatee, 8 Adcox did not testify and was said to be in Colorado 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD James Armstrong, was told that he was to wear a face shield while operating a grinding machine or he would be fired. Armstrong admitted he was aware of a posted sign requiring the wearing of a face shield. This face shield was not adjacent to the machine as it should have been. However, Riley testified credibly he had seen Armstrong from a distance and was very much concerned about the operation of this machine. There is no question that grinding of certain objects on this machine is highly dangerous and Armstrong so admits. However, he contended that the particular work he was perform- ing was not so dangerous and his glasses were adequate protection therefor. It is clear there was involved a matter of safety which the Company was fully entitled to maintain. Accordingly, Respon- dent's requirement in this respect was justified and not in violation of the Act, and I so find. The General Counsel also contended that Respondent, following the union election, imposed more onerous conditions on employees Dale Rucker and Jim Furness, both of whom had signed union cards by prohibiting the use of the forklift to carry certain panels weighing approximately 200 pounds each a distance of over 60 feet. Rucker and Furness used the forklift to carry three bin walls or panels when they were told by Riley not to use the forklift and "do it by hand." This involved carrying an additional 10, one-by-one, by hand. Rucker testified that other objects of similar bulk and weight normally were moved by the forklift although he had never moved bins or panels before. Rucker said the handling of the panels by forklift would be no more dangerous than moving them by hand and he had seen the forklift operated by Frederick with loads that were similar . Sometimes these were without clamps while they had used a clamp. Rucker also said although the load was heavy they did not seek additional help which might be available. Riley, who prohibited the use of the forklift, said it was both more dangerous and took longer. Riley testified: Well, I had sat upstars in my office, or else stood outside and watched them go through this operation, and they used the forklift, and these panels were, if I remember correctly, 16 foot long and 4 foot high, and in using a fork lift, it, of course, has the two upright arms out there (indicating), and they had stacked three of them on here and had taken a clamp and clamped them on, and then because they are 16 foot wide, had maneuvered this awkward and bulky and dangerous load through the plant and out several doors and onto a dock, and the entire thing took 30 minutes, and when they come back in for the second load I went down and told Bert, have them put the fork lift aside and carry them out, and then I timed them again and it took five minutes. He clarified this by saying it took 5 minutes per panel. Riley also testified Respondent did not want employees carrying something too heavy and that all the help they need" would be available. The foregoing reflects no direct or clearly tracea- ble union connection but rather a dispute over han- dling of work which normally is within the province of management. From the evidence adduced I con- clude there was an arguable question as to the han- dling of work involving both danger and time Under these circumstances, particularly where danger is involved, considerations thereof are of ut- most importance unless the claims relating thereto are specious or unduly exaggerated. Under all the circumstances set forth, I am not prepared to say that Respondent's position was unwarranted. I note no direct evidence indicating this incident was union motivated. I accordingly conclude that Respondent did not violate the Act by its conduct relating to the foregoing incident involving the bins or panels. The foregoing accordingly indicates and I find that the Respondent violated Section 8(a)(1) of the Act by circulating the petition to withdraw from the Union, by other interrogation of Ira Osborne con- cerning the Union, by the threats of Frederick that layoffs probably would occur if the Union were selected, and by depriving employees of the use of the office as a lunchroom under the circumstances. As to the other allegations of violation of Section 8(a)(1), I find that they have not been established and shall recommend their dismissal. C. The Alleged Discriminatory Discharges of James Armstrong and Ira Osborne As previously set forth, the complaint originally alleged that the Respondent had discriminatorily discharged three persons on June 20, the day fol- lowing the election which was won by the Union. These three were James Armstrong, Ira Osborne, and Patrick Ayde. During the hearing, the case as to Ayde was dismissed on motion of the General Counsel when it appeared that there was no basis whatever therefor Of the three persons terminated on June 20, two, Armstrong and Osborne, had been prounion and one (Ayde) had not been. Questions are what was the reason for selection of persons for termination at that time and, assuming that there was a valid purpose for the layoffs, were the per- sons selected on a lawful basis? The Respondent contends that the reason for the layoffs was that its business had diminished and that the persons selected were chosen on the basis of need and/or age or seniority. The Respondent contended that its business had substantially fallen off. In support thereof it ad- duced testimony from Frederick and from Respon- dent Vice President and General Manager Lloyd Riley that prior to going East on May 10, sometime between the latter part of April and before May 10, Riley discussed with Frederick the likelihood of layoffs unless orders were received soon. Riley BAKER MACHINERY COMPANY 363 testified he went East on May 10 to see Respon- dent's distributors and discuss the sales situation. Riley said Respondent at that time was not receiv- ing orders from its distributors. He further testified respecting orders in 1969: A Well, we had been operating all year on the week-to-week basis, versus other years, where by March we are normally starting to fall behind in supplying orders. In 1969 this did not happen to us. We were current with orders all of the time, and in March and April it became apparent that we were not receiving as many orders as we had in the prior years, and this was the prime reason for my visit to New York. 0 Had you ever experienced the situation in your company before since you had been there? A. Yes, but not in those months. We an- ticipated a slack period in January and Februa- ry, but not in the later spring months. We had never had this situation before. Riley said he couldn't say why this occurred but had thought at the time high interest and tight money was a factor. Rilwey said he told Frederick unless orders were received they would have to lay off some men. He added that with respect to being prepared to fill orders: "In comparison to other years we were built up in spare parts inventory beyond anything we had ever been." Riley testified that the shortage or orders prevailed "until, I believe, sometime in July that we started receiving more orders than we could ship out." Based on my observation of Riley and other evidence appertaining thereto including the cards prepared by Frederick, post, I am crediting Riley's testimony as to reduction in orders. Respondent further submitted as evidence of reduction of business a compilation of monthly shipments based on a record of shipments kept on cards by Frederick. These cards, in turn, according to testimony of Frederick (which I credit), were numbered and made by him in general about the time of the shipment or shortly thereafter. In a few instances, it was conceded either the cards for ship- ment were missing since there was a gap in num- bers or the date was not thereon, but, according to Frederick, those missing would fall between the numbers of other cards and the date would also come in between other dates. Subject to such limitations or qualifications, the cards and compila- tion thereof10 could be used as a basis for analysis as to the number of shipments made. A question as to why bills of lading were not forthcoming arose. It appeared that some effort was then made by Respondent during the course of the hearing to check into these but that such would be quite time consuming and extensive as they were said to be located in a number of different files. No further ef- fort was made to produce these at the hearing Respondent relied on the cards as sufficient basis to establish the number of shipments. One other point to note in this respect is that shipment and numbers of machines themselves would not necessarily be decisive of amount of business because the machines could vary as to price, cost, man-hours, and skills needed to produce them. In other words, all machines were not comparable The Respondent, other than the testimony of Riley (and Frederick), did not introduce specific documentary evidence as to orders. Its explanation as to this is that the receipt of orders would not necessarily indicate the amount of business because these would have to be transformed into production and shipment which might or might not take place. The Respondent explained that the orders are received in the bookkeeping department, a copy transmitted to Frederick, and then put on clip board according to model number. Hence, it can be ascertained at a given time how many of that model are on order Riley said ordinarily machinery is not built ahead but is made on order." He further testified all orders are not filled. An order may be received from a distributor but by the time Respon- dent is able to build and ship the machine the customer of the distributor may no longer need it because his work (farming) was seasonal Riley ex- plained Respondent has diverted machines in ship- ment between parts of the country. Riley further testified: Q. Do you try to keep any records of the or- ders that come in permanently and correlating them to the orders that are filled? A. The orders that come in are, as I say, on these clip boards. Now, until that machine is built to its specifications and shipped, we do not consider that order as having been filled or really as an order, because it can be cancelled at any time prior to shipment. Once it is built to specifications, then we get a little perturbed at the changing on it, but this has happened. 0. Is it fair to say that there is no correla- tion between the number of orders that you receive and the number or machines that you ship? A. Well, there would probably be some cor- relation, but it would be impossible to say that the number of orders received were also the number of machines shipped. The General Counsel contends that since " 1 note from testimony of Armstrong some apparent inconsistency as to working overtime from April 16 to May 21 Ettles , who directed his work, testified that he has always tried to make parts for the future because in summer they have always gotten behind At the time of the layoffs on June 20, Ettles said they were caught up on parts and working on future parts Ettles said they were further ahead on parts at the time Armstrong was laid off than ever before Ettles also testified he thought he worked less hours in the summer of 1969 and in total time than in previous years Riley testified that sinLe he came to work after 8 a in , he would not have been directly aware of the overtime work between 7 and 8 a in , which Armstrong and Ettles had performed 10 This compilation is attached hereto as Appendix A " However, I note as set forth, post, that some machines are so built and others partially so built 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent did not produce records that it might have which would be more conclusive as to the amount of business Respondent had in May and June that a finding should therefore be made against Respondent. The General Counsel referred to a case12 which I consider clearly distinguishable on the facts set forth. Moreover, it is evident that although the Respondent did not furnish the precise data which the General Counsel felt it should (and which might well be appropriate if available), Respondent did furnish the cards referred to, supra and post, as to shipments and explain the unavaila- bility of reliable records as to orders. Finally, the burden of proof13 is on the General Counsel and hence, the nonproduction, per se, of some possible records by Respondent should not under all the cir- cumstances herein in my opinion does not support a finding of violation. With regard to the shipments, Respondent ad- duced evidence from the aforesaid compilation that there had been a reduction in shipments of machine in 1969, particularly in May, as against April, March, or February. Also in May, not only was this true in contrast to preceding months but also as against preceding years. In 1969, five machines were shipped in February and March, six in April, but only three in May This was followed by seven in June and six in July and nine in August The figure of seven does indicate an apparent pickup in June. However, the following should be noted. First, the Company had decided to reduce its personnel because of reduction in busi- ness but did not act to do so until after the election upon advice of counsel. At the end of May it had shipped 23 machines as compared to 29 in 1968 and 27 in 1967 for the same period. Second, the figure of 3 in May should be compared with preceding years which showed 9 in 1968, 11 in 1967, and 6 in 1966. Third, the figure of 7 in June was still below 8 in 1968 and 9 in 1967 and 1966; in July 1969, the figure 6 was below 8 in 1968, above 5 in 1967, and below 12 in 1966 Finally, even the August figure when business, according to Respondent, had again picked up and it was work- ing overtime, showed 9 in August as against I 1 in 1969, 11 in 1968, 14 in 1967, and 9 in 1966. The Respondent conceded that by August its business had increased and people were working overtime. However, even then Respondent had not increased its staff nor had it by the time of the hearing in Oc- tober. Total machines shipped through September 1966 were 59, through September 1967 were 69, through September 1968 were 65, and through September 1969 were 53. The latter reflects less machines shipped in 1969, particularly as against 1968 and 1967. The only persons employed after June were two persons employed in succession as a welder. Respondent was accordingly able to con- tinue its business without additional people. The record also reflects that the Respondent had produced prior to the layoffs a larger amount of parts inventory than would be required for some time thereafter-more than ever before according to Ettles. This was also true as to simicompleted machines which were not complete because of vari- ances in machines and as to completed machines to the extent Respondent completed machines on a calculated gamble or risk. Riley testified Respon- dent's storage facility was full and also that this was true of the distributors who had machines on con- signment. The Respondent did hire a school boy, aged 16, Tom Moore, about June 6 to do odd jobs throughout the summer commencing early in June at a lower rate. This was part of a policy that Respondent had of employing a young person in summer and also involved a commitment to a customer. The next question, assuming the need for a layoff, is: What was the basis for selection? First, as to Ira Osborne, he engaged in no union activity other than signing the card and declining to sign the petition Frederick circulated. Armstrong also at- tended one or two union meetings. Ira Osborne had been employed for 4 years with almost no loss of time. The basis of selection, according to Respon- dent, was that Osborne was elderly, over 70 and nearing 7 1 at the tme of the hearing, and that the work of preparing machines for shipment14 he per- formed could substantially be performed by one person, Orbie Vandine, who had helped Osborne with it. This could be handled more readily by Van- dine, who was younger and stronger and who could handle a substantial part of the work himself In ad- dition the other aspects of Osborne's work were such that he only spent a relatively small time on them including the work of parts orders covering two kinds of parts, generally on older obsolete machines which he would have to make and also some filler work on assembling parts. However, it appeared from futher testimony by Osborne that work on these two parts would average about three times a month. One of the particular parts Osborne made from time to time is apparently no longer made or used. Osborne has subsequently been of- fered a job involving less arduous duties at lower pay. In the case of Armstrong he was a relatively young employee, the newest employee in point of time other than Moore. Armstrong was employed to work as an apprentice machinist or machinist and worked primarily on a lathe, although he did some work on other machines The lathe work was also performed by Ettles who continued to do so thereafter. The record reflects that Armstrong was not needed on other work thereafter and that the " Lester Brothers, Inc. 131 NLRB 1144, and cf Austin Polder Com- pany, 141 NLRB 183, 186, 187, Lock Joint Tub Company, 127 NLRB 1146, 1148-49, also distinguishable " See and cf N L R B v Ron and Quarries, Inc , 362 F 2d 236 (C A 8) ''' This involves heavy equipment BAKER MACHINERY COMPANY work performed on the lathe was being done entire- ly by Ettles. As previously stated, the third ter- minated man, Patrick Ayde, was nonunion He did some carpentry work and some cutting of materials. I am aware of Frederick's threats of layoffs found violative, supra, and of the alleged conversation with Paul Garst with respect to terminations after the election.fs However, whatever Frederick may have said, the foregoing reflects that there was a reduction in both orders and shipments at Respon- dent at material times, that no layoffs occurred prior to the election, that no replacements have been hired, that the work is being performed by others then employed, that, except for Moore, Armstrong was the newest employee, that Ira Osborne is elderly and the work he was performing is arduous, and that the third man laid off, Ayde, was both newly employed and had no connection to union activities or membership. I accordingly find that there was a reduction in business at the Respondent during May and June 1969, that there was a reasonable basis for selecting the persons chosen for termination , and that Respondent did not discriminate illegally in so terminating them. I further find that Respondent did not violate the Act as alleged by its layoffs of James Armstrong and Ira Osborne and shall recommend dismissal of the complaint as to these allegations. IV. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action which I find necessary to remedy and remove the effects of the unfair labor practices and to effectu- ate the policies of the Act Upon the basis of the foregoing findings and con- clusions and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Baker Machinery Company, a Washington '6 Paul Garst , currently a sales representative , at one time an employee of Respondent , testified he had a chance conversation on June 27 with Fredrick while waiting to cross a street It lasted about 11/2 or 2 minutes while waiting to cross the street and ended as soon as they had crossed Garst 's memory was vague as to details He recalled that Fredrick "men- tioned the union was either being voted in or out or voted on anyway " Subsequently , Garst said he ( Fredrick ) " thought the election went , that the union would be in, if I remember right , he said by one vote " According to Garst, Fredrick also said " he knew who voted for the union " Garst then testified in response to a question as to "anything else ""A Yes, that he in- dicated , and like I said, I dont't want to be quoted word for word , but he in- dicated that these men would be released " Fredrick testified that Garst asked " How the union vote went, he evidently knew about the union vote " Frederick told Garst the Union car- ried nine to eight and " as far as 1 can remember that was the end of the con- versation " Frederick denied he told Garst he knew who voted for the Union As to saying "They would be released" Frederick testified he ut- tered no words to such effect that he could remember He said he was sure he didn 't say it Here again is a matter of credibility or recollection Garst's memory and recollection were vague and the time involved short Frederick's denial was in part definite , in part on the baiss of " remembrance " He probably 365 corporation , is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. As found above by interfering with, restrain- ing, and coercing its employees in the exercise of right guaranteed in Section 7 of the Act, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, it is hereby recommended that Respondent, Baker Machinery Company, its officers, agents, successors , and assigns shall: 1. Cease and desist from: (a) Interrogating employees concerning union membership and activities. (b) Requesting employees to sign a statement that they do not support a union (c) Depriving employees of the use of the shop foreman's office for lunch purposes because of their membership in and activities on behalf of the Union. (d) Threatening that the selection of or ad- herence to the Union will cause or result in layoffs. 2. Take the following affirmative action: (a) Post at its place of business in Kennewick, Washington, copies of the attached notice marked "Appendix B.."16 Copies of said notice, to be furnished by the Regional Director for Region 19, after being duly signed by Respondent, representa- tive, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places , including all places where notices to employees are customarily thought he knew who voted for the Union On the other hand , although he had threatened layoffs if the Union were selected , this is different from stat- ing after the election that all union people would be released In ihis respect , I note no testimony by Garst that either he or Frederick on June 27, a week after both the election and the alleged discriminatory layoffs, made any reference to the instant layoffs It also seems unlikely that Frederick, if he had discriminated in those layoffs , would advertise such either directly or indirectly Accordingly, and from an appraisal of all the evidence herein as well as my observation of the witnesses , I find Frederick on June 27 did not threaten to terminate all the union employees 16 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading " Posted by Order of the Na- tional Labor Relations Board " shall be changed to read " Posted Pursuant to a Judgment of the United States Court of Appeals , Enforcing an Order of the National Labor Relations Board " 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posted . Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 19, in writing , within 20 days from the receipt of this Decision , what steps have been taken to comply herewith." IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects. lr In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 19, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX A Machines Shipped Each Month 1966 Through 1969 1966 1967 1968 1969 January 6 2 4 4 February 3 3 2 5 March 6 4 6 5 April 3 7 8 6 May 6 11 9 3 June 9 9 8 7 July 12 5 8 6 August 9 14 11 9 September 5 14 9 8 October 7 9 6 6 November 5 6 7 December 7 4 5 APPENDIX B NOTICE TO EMPLOYEES BAKER MACHINERY COMPANY (Employer) POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees concerning union membership or activities WE WILL NOT request employees to sign a statement that they do not support a union WE WILL NOT deprive employees of the use of the shop foreman's office for lunch because of their union activities or membership. WE WILL NOT threaten layoffs because of union selection or support. Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 1511 Third Avenue, Seattle, Washington 98101, Telephone 583-7473.