R. B. & W. Industrial Plastic Products, Inc.

966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD R. B. & W. Industrial Plastic Products, Inc. and Dis- trict Lodge No. 40 of the International Association of Machinists and Aerospace Workers, AFL-CIO. Case 12-CA-4600 August 19, 1970 DECISION AND ORDER By MEMBERS FANNING, BROWN , AND JENKINS On March 17, 1970, Trial Examiner Josephine H. Klein issued her Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the at- tached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to certain findings in the Trial Examiner's Decision and a supporting brief. The Respondent filed a brief in opposition to the General Counsel's exceptions and brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and 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 hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. ' The General Counsel's exceptions directed to the credibility resolu- tions of the Trial Examiner are without merit The Board will not overrule the Tnal Examiner's resolutions as to credibility unless a clear preponder- ance of all relevant evidence convinces us that they are incorrect, On the entire record , such a conclusion is not warranted herein Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Trial Examiner: Upon due notice, this case was heard in Miami, Florida, on December 9 through 12, inclusive, 1969,' on a complaint issued against R. B. & W. Industrial Plastic Products, Inc.,2 Respondent, on October 16, 184 NLRB No. 110 pursuant to a charge filed by District Lodge No. 40 of the International Association of Machinists and Aerospace Workers, AFL-CIO ( IAM or the Union) on August 1 1 and amended charges filed on August 20 and October 7. All parties were represented at and fully participated in the hearing . At the close of the hearing, the General Counsel made a short oral argument . Since the hearing , Respondent has filed a brief. Upon the entire record ,3 consideration of Respondent 's brief, and observation of the wit- nesses, I make the following: FINDINGS AND CONCLUSIONS 1. JURISDICTIONAL FINDINGS A. Respondent, a Florida corporation with its principal place of business at Miami Lakes, Florida, is engaged in the manufacture and sale of plastic products for industrial use. During the past 12 months, a representative period, Respondent, in the course of its business operations, purchased goods and materials valued in excess of $50,000, which goods and materials were received directly from points outside Florida, or from local suppliers who had, in turn, received said goods and materials directly from points outside Florida. Respondent is now, and was at all material times, an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act.' B. The Union is, and was at all material times, a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The complaint alleges that Respondent violated Section 8(a)(I) of the Act on six occasions between April 30 and August 4, as follows: April, 30-threats of reprisals for participation in con- certed activity; May 12-change in method of reprimanding employees; May 16-promulgation and enforcement of invalid no-solicitation and no- distribution rule; July 1-grant of across-the-board wage increase after a representation petition had been filed; July 1-individual wage increases after a representation petition had been filed; and August 4-threat of discharges or layoff of union adherents after the Union had won the election. Respondent admits that wage increases were granted on July 1, but maintains that they were totally unrelated to any union or concerted activity. Respondent denies the other allegations listed above. I Except as otherwise stated, all dates are in 1969 ' This is the Respondent 's name as amended at the hearing Respondent 's unopposed motion to correct the official report of proceedings is hereby granted National Labor Relations Act, as amended (61 Stat 136, 73 Stat 519 29 U S C Sec 151, et seq ) R. B. & W. INDUSTRIAL PLASTIC PRODUCTS 967 In addition, the complaint alleges that on August 1 employee James Gannon was discharged for union or other concerted activities. Respondent contends that Gannon voluntarily resigned and that Respondent had already decided to lay him off or discharge him in the course of an anticipated reduction-in-force. Finally, it is alleged that on August 15 employees Renon Garcia, Albert Garratt, Thomas Cole, and Thomas Cochran were laid off because of union or other concerted activities. Respondent asserts that the layoffs were economically dictated and the cho- ice of employees to be laid off was based solely on honest business judgment. It is agreed that Garratt, Cole, and Cochran have since been recalled and are now again working for Respondent. Garcia, an apprentice, is still in layoff status. B. Chronology Respondent, engaged in the production of preci- sion industrial plastic parts, employs a total of about 85 persons. Of these, around 10 to 15 work in the tool room (interchangeably called the mold department), where they make the metal molds in which the plastic parts are thereafter formed through an injection molding process. Moldmaking is a highly skilled operation, requiring an ap- prenticeship of from 2 to 4 years. Included among the tool room employees Respondent has regularly had one or two apprentices. In April, the tool room employees became generally dissatisfied with wages, benefits, and working conditions. Employee Cochran consulted the Steel Workers Union. However, his fellow em- ployees were unimpressed by Cochran's reports and no organizational activities were conducted for that union. The employees then requested a meeting with management. Pursuant to that request, on April 18, employees Walter Stevens,5 Bob Hayberg, and Lazaro (Henry) Martin met with Douglas Dawson, Respondent's vice president and general manager; Dale Smous, chief engineer, and Jack Tischler,6 tool room foreman. Concerning the April 18 meeting, Hayberg testified: ... I said, "Some of the places, you know, are paying more," and that we didn't want a Union here, you know, but we just wanted things to be better and I said, "There was some talk of Union in the shop now and if we could prevent it that we would." We talked further about wages and benefits and Mr. Dawson commented on that he couldn't do nothing more for us, you know, at the present and, you know, I started talking about this Steel Workers Union because this was the one we first looked into. So I had a newspaper of the Steel Workers Union and he asked me if I had that present and it was about Steel Workers going into PMD, which is a shop about four blocks away, and I said, "Yeah, I have the paper." So he asked me to go out and get it . It was in my car and I went out to the car and got the paper and brought it in there and they looked it over. Stevens suggested that a wage increase of from 25 cents to 50 cents per hour might satisfy the em- ployees. Dawson indicated that Respondent could not meet that figure but would study the matter to see what could be done for the next fiscal year, beginning July 1. On April 24, Jack Lohrman, president of Respondent and executive vice president of Respondent's parent corporation,' visited the plant. Employee Stevens discussed with Lohrman the em- ployees' continuing dissatisfaction and the fact that there was some union talk going on. Lohrman said that the Company was studying the situation and would, as it had in the past, keep pace with other companies in the area. Lohrman said that some of the affiliated companies were unionized while others were not, and that he personally saw no par- ticular advantage in unionization. With no definite response to their complaints forthcoming from management by the end of April, employees Hayberg and Martin suggested that the tool room employees "go fishing" on May 1. When this suggestion was accepted, Cochran asked em- ployee Lou Miller to inform Foreman Tischler of their plans and that it was "nothing personal." Shortly thereafter Tischler walked over to Cochran's machine . Cochran's uncontradicted8 testimony concerning the ensuing conversation between him and Tischler was: ... I says, "A little bit of excitment is hap- pening today," and Jack shook his head and said, "Yeah. You coming into work tomor- row'" and I says, "No, I am not." So Jack says, "Well, listen I would hate to see you get shot down as being some kind of a crusader or anything." He said, "I wouldn't want to see anything happen to you." So I said "What are you trying to tell me?" He said, "Just be here tomorrow." I said, "Well, I don't want to be the only one being here tomorrow. I have to work with these guys so if they take off I am going to take off." 'Stevens, who testified under subpena on behalf of the General Counsel, had been foreman of the tool room until around Thanksgiving Day 1968, when he transferred to a specialized nonsupervisory job At the time of the events here involved he was a nonsupervisory employee His employment with Respondent was terminated on July 3, 1969 , in a disagreement about his quitting time "The transcript is hereby corrected to show the spelling of this name as "Taschler" wherever it appears , since that is the spelling in his signature on several exhibits Russell, Burdsall, and Ward Bolt & Nut, of Port Chester, New York " Although present at the hearing , Tischler did not testify 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The next day, May 1, all the tool room em- ployees, except Miller and Garcia,9 failed to report to work. Apparently they all went fishing, except for James Gannon, who visited the IAM office and secured some authorization cards. The next day, Dawson, Smous, and Tischler together talked to each of the employees. Dawson said that Edwin C. Griffith, Director of Industrial Relations for Respondent's parent corporation, would visit the plant the following Friday and "that he was a nice guy ... and he wasn't going to take any disciplinary action for [the employees'] taking off that day." Between May 1 and 9 all the tool room em- ployees except Miller signed union cards, which Gannon then delivered to the Union on May 9.10 As promised, Griffith visited the plant and spoke with the employees on May 9. The men presented their problems and requests, covering such matters as in- surance, retirement, wages, etc. According to Cochran, Griffith "explained there was only a cer- tain amount of money and in which area we wanted this money, to have it put into, but there was nothing definite, it was just rather vague." Griffith indicated that Respondent's parent company would investigate the matter, survey conditions in com- parable companies, and then decide what improve- ments would be instituted for the next fiscal year He assured the employees that Respondent would continue its policy of remaining competitive in the labor market On May 12 Respondent posted on the tool room bulletin board a memorandum entitled "Supple- ment to present policy book," concerning, inter alia, disciplinary warning notices. On May 27 Griffith again visited the plant. On that day he informed the production workers that they would receive a 5-cent-per-hour increase on July 1, 1969, and another 5 cents on January 1, 1970. The next day Griffith announced similar raises to the shipping department employees and then told the tool room employees that they would receive hourly raises of 10 cents on July 1, 1969, and 10 cents January 1, 1970. The Union's representation petition was filed on May 28 and Respondent received service thereof on May 29. Pursuant to a stipulation executed on June 18,11 an election was held on August 1. The Union won by a vote of 12 to 1. Employee James Gannon's employment by the Respondent was terminated as of the end of August 1, after the election. On August 5, employees Larry Angle, Cole, Cochran, Hayberg, and Martin were given disciplinary layoffs of 10 days (8 working days) because numerous parts of molds on which they had been working had disappeared and " Dawson testified that only Miller reported for work that day However, Garcia, who was then attending school and working part time for Respon- dent, testified that, after consulting Cochran, he had worked on May I 10 Although the witnesses referred to May 8, May 9 appears to be the correct date, since it was identified as a Friday Respondent believed the employees had stolen them. The original charge in this case, alleging the termination of Gannon and the five disciplinary layoffs as violative of Section 8(a)(3), was filed on August 11, the same day that the certification of the Union was issued. On Friday, August 15, Cochran and Cole, who were still on disciplinary layoff, and Albert Garratt and Garcia were notified that they were being laid off indefinitely for lack of work. An amended charge, adding these four layoffs as allegedly viola- tive of Section 8(a)(3), was filed on August 21. On August 18, Angle, Hayberg, and Martin had returned to work after the disciplinary layoffs. On or about August 26 employee Angle quit, whereupon Cochran was recalled to work as of September 8. On September 8, Garratt was notified to return to work on September 15. Cole was later recalled as of November 3. As of the date of the present hearing, Garcia had not been recalled. A second amended charge was filed on October 7. For the first time violations of Section 8(a)( I) were alleged. The allegations concerning the disciplinary layoffs were eliminated. Contract negotiations resulted in the execution of a collective-bargaining agreement in November, be- fore the present hearing. C. The Alleged Violations of Section 8(a)(1) 1. April 30-Threat of reprisal for concerted activity As set forth above, after the moldmakers had de- cided on April 30 to "go fishing" the next day, Tool Room Foreman Tischler advised Cochran not to absent himself from work. Respondent argues that there is no specific evidence that Tischler knew that any "concerted activity" was planned for May 1. Respondent maintains that it was never told why the men were absent on May 1 "other than to go fishing." According to Respondent, the evidence shows only that Tischler may have known that Cochran intended to be absent without cause or ex- cuse. But the employees had previously registered their collective complaints in a meeting between their chosen representatives and management. There was no contradiction of Cochran's testimony that Tischler referred to Cochran as a "crusader," a term which a foreman would hardly apply to an em- ployee who he believed was simply contemplating "playing hookie." Further, Cochran made clear the concerted nature of the conduct by saying that he did not want to be the only person reporting for work. Thus, even though the employees may not have specifically announced their May 1st "fishing 11 It appears that Respondent initially raised some question concerning the propriety of a bargaining unit limited to the tool room and a hearing was scheduled However, Respondent withdrew its objection and agreed to an election in the small unit R. B. & W. INDUSTRIAL PLASTIC PRODUCTS trip" as a protest or demand , it did constitute pro- tected concerted action . N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9. Thus, Tischler's advis- ing Cochran to report to work to avoid being "shot down" as a "crusader" amounted to a threat of reprisal for engaging in protected concerted activi- ty. On May 2 , however, when the men returned to work , Dawson , Tischler 's superior, assured them that no disciplinary action would be taken; that management was considering their complaints and demands; and that Griffith , representing the parent company , would discuss the matter with them the following week . In the Trial Examiner 's opinion, Dawson 's prompt reassurance , followed by Grif- fith's visits and discussion of the employees' com- plaints and demands, was sufficient to "dissipate [the] coercive effects of" Tischler's isolated threat. Livingston Shirt Corp., 107 NLRB 400, 403, Marr Knitting , Inc., 90 NLRB 479; C. V. Uranga, 173 NLRB 635. 2. May 12-Institution of change in system of reprimands There is no dispute that on May 12 Respondent posted on the tool room bulletin board a memoran- dum containing the following paragraph: 1. WARNING NOTICE Warning notices will be given at the discretion of the supervisor for the following violations; Defective work, low production, safety, con- duct, lateness, absence, attitude, housekeeping, disobedience, and carelessness. Three warning notices within a thirty (30) day period leaves said person subject to dismissal. Dawson testified that the May 12 posted notice was essentially the same as one which had been originally posted in January, but that the May ver- sion spelled out more specifically the precise grounds for warning notices and possible discharge. This testimony was not contradicted. Dawson credibly explained his failure to produce the Janua- ry notice by stating that he had removed it from the bulletin board and made handwritten revisions and that apparently it had been discarded by his secre- tary after she had typed the revised version. Respondent introduced into evidence numerous warnings which had been given to employees in the past. These were on a printed form which, under the heading "Nature of Violation," listed nine mat- ters, with boxes to be checked to indicate the dere- liction involved. The nine items so listed are the same as those in the May 12 memorandum, except that the May memorandum inserts the additional item of "low production." The evidence shows that Respondent had given warnings on this form at 969 least as early as 1962 and as recently as March 24, 1969. The General Counsel sought to show that the prior warning system had been used primarily in de- partments other than the tool room and that in the tool room it was used only in connection with tardi- ness and/or absence. However, while there ap- parently had not been complete uniformity among Respondent's departments, it does clearly appear that the form had been used in the tool room for a considerable period of time and had not been limited to absence and tardiness.12 For example, in October 1962 moldmakers Weisenberger, Vorsteg, and Rizzo were given warning slips for "careless- ness" involving clock-punching. Steve Hargrove, a tool room employee, had been discharged on April 9, after having received written warnings for late- ness on January 30 and for absence on February 27 and March 11 and 24. Former Tool Room Foreman Stevens stated his personal opinion that written warnings were "use- less." He generally gave oral warnings and, accord- ing to his experience, employees knew when their performance was not satisfactory. . He had discharged many employees for poor performance without having issued written warnings. Evidently department foremen had always exercised in- dividual discretion in the use of written warnings, and the May 12 notice specifically says that the is- suance of written warnings is "at the discretion of the supervisor." Dawson testified that the May 12 posting was preceded by a considerable recent increase in misconduct and deterioration of performance. While he provided little specific supporting evidence, his conclusory statements were not chal- lenged. Dawson testified that the "fishing" incident of May 1 also was a factor in his decision to post the new notice on May 12. Since, as previously found, the May 1 walkout was protected concerted activi- ty, Respondent would not have been at liberty to take disciplinary action for a repetition of such con- duct. But the May 12 notice did not on its face pur- port to cover such concerted absences and there is no evidence that employees were ever told that such conduct in the future would be cause for discipline or be deemed to fall within the purview of the May 12 notice. Accordingly, on all the evidence, I find that the General Counsel has failed to support the allegation of the complaint that on "May 12, 1969, Respon- dent changed its prior practice or reprimanding em- ployees and instituted a system of written repri- mands and/or began enforcing a hitherto unen- forced system of written reprimands" in contraven- tion of Section 8(a)( 1). The Rangaire Corporation, 157 NLRB 682, 707. " The General Counsel introduced into evidence another printed form maintained by Respondent for reporting absences 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. May 16-No-solicitation and no-distribution rule The complaint alleges that "Respondent, by Foreman John Tischler, did promulgate and enforce an unlawful no-solicitation and no-distribution rule against its employees." On May 16 Foreman Tischler told Cochran that Respondent had a rule "about soliciting" and Tischler had been told to warn Cochran because the latter had been "seen soliciting and passing out literature." Concerned about the posted notice to the effect that three warnings within a 30-day period might be ground for dismissal, Cochran later asked Tischler to explain in the presence of em- ployee Martin. Tischler said that Cochran had been "soliciting, passing out literature" and the verbal warning "would have the same effect as a written warning." The next day Cochran spoke to Chief Engineer Smous and, in effect, requested a bill of particulars concerning the accusation against him. According to Cochran, Smous said that Cochran had not been "actually" soliciting, but that he had been "seen talking to [an employee] outside [his] department." Cochran testified that, as a result of his conversation with Smous, he "was satisfied that [he] didn't have to go in the office on this." Hayberg had a somewhat similar experience at the same time. After he had spoken to some production workers about the Union, he was given a "verbal warning" by Tischler "about soliciting and passing literature out on company property." The next day, however, Tischler told Hayberg that he "wasn't passing out literature" but that he "had to stay, in [his] own work area ..-.-not to leave [his] work area." Since November 1, 1965, Respondent has had a printed "Employees Handbook." Dawson's uncon- tradicted testimony was that the handbook had been distributed to all employees when it was first issued and thereafter had been given to each new employee when he commenced work. That hand- book contains the following "General Regulation": Selling or Soliciting: No solicitation is per- mitted for any cause during an employee's working time. No distribution of literature in working spaces is allowed. Solicitation by non- employees is not permitted at any time or place on Company property. This rule, as written, is valid. The General Coun- sel's evidence fails to establish that on May 16 Tischler purported to promulgate any new rule or sought to extend the existing rule. According to Cochran's and Hayberg's testimony, Tischler at most accused them of having violated the existing rule. Even if the accusation was unfounded, Tischler's statements would not, without more, amount to the promulgation of a new and invalid " N L R B v Exchange Parts Co , 375 U S 405 " The increases were undoubtedly determined before that time, since Griffith arrived at the plant from New York and informed the production rule. In any event, both Tischler and his superior in effect repudiated the original warnings in such a way as to negative any possible implication that an invalidly broad rule had been promulgated or would be enforced. 4. July 1-Across-the-board wage increase The complaint alleges that "[o]n or about July 1, 1969, after the filing of a petition for representation ... Respondent granted to all employees an across- the-board wage increase." There is no question that, effective July 1, the tool room employees were given a 10-cents-per- hour across-the-board increase. The Company had never before granted across-the-board increases, having instead granted only individual merit in- creases. It is also true that July 1, when the raise became effective, was after the representation peti- tion had been filed. But these facts do not auto- matically establish an Exchange Parts 13 violation of Section 8(a)(I ). The evidence is undisputed that Griffith an- nounced to the assembled tool room employees on May 28 that they would receive 10-cent-per-hour wage increases on July 1, 1969, and January 1, 1970. The complaint does not allege, and the General Counsel did not contend at the hearing, that the May 28 announcement of the increases waE violative of the Act. On the assumption that the promise of wage increases was lawfully made, ii necessarily follows that the actual grant of the wage increase on July 1, in fulfillment of the prior promise, was not unlawful. Indeed, had Respondent reneged on its promise because of the intervening representation petition, it would surely have beer guilty of an unfair labor practice. While the proposed wage increases were an- nounced on the same day that the representatior petition was filed, Respondent did not receive ser vice until the next day. And there is no evidence that Respondent had any advance notice. Since the complaint specifically alleges that the increase wa, granted "after the filing of a petition for representa tion," it would clearly be impermissible to construe it broadly enough to cover the "promise" of in creases made on May 28.14 In any event, the evidence establishes that the an nouncement of across-the-board wage increase, was made, as promised, in response to the em ployees' prior demands and was not motivated of influenced by any union activity. 5. July 1-Merit increases Little need be-or can be-said about the ad mitted fact that several moldmakers were giver merit wage increases on July 1. The record is workers of their scheduled raises on May 27 The raises for all three de partments presumably were decided on at the same time R. B. & W. INDUSTRIAL PLASTIC PRODUCTS replete with uncontradicted evidence that Respond- ent has customarily granted merit increases at frequent intervals, generally on the basis of quar- terly reviews of performance records. The Act cer- tainly does not require (or, for that matter, permit) an employer to refrain from granting customary merit increases because a union's petition for representation is pending. There is no evidence that the across-the-board increases were intended or announced as a sub- stitute for merit increases. In announcing the general increases, Respondent said that they would "bring the top rate of $4.50 on July 1 and $4.60 on January 1, 1970," and that "a merit increase would be granted when an employee would prove himself improved in his productivity and performance." As hitherto found, the across-the-board increases were granted in response to the employees' articulated dissatisfaction. To consider them as a substitute for the established practice of granting periodic merit increases would in major part negate their purpose. 6. August 4-Threat of future discharge or layoff of union adherents As is discussed below, James Gannon's employ- ment was terminated on Friday, August 1, the day of the Board-conducted election However, Gannon reported for work on Monday, August 4. He was not permitted to work and was required to remove his toolbox from the premises. Dawson and Smous escorted Gannon as he loaded his toolbox into his car. Gannon testified as follows concerning the conversation at that time: ... just before I left, I turned to Doug [Dawson] and I said, "Doug, I have been with you for six months and you know and I both know that at no time during that six months have I cheated you or done you wrong in any way at all." [15] He says, "Listen, we have got to do some more weeding out of here before ewe get this thing straightened out." At that time I said, "Goodby," turned around, got in my car and left. ... I told them that I intended to file an unfair labor practice charge against the company. Both Dawson and Smous denied that the former had made the statement attributed to him by Gan- non. However, I deem it unnecessary to resolve the conflict since Gannon's testimony, even if credited, does not establish a violation. Dawson and Smous testified concerning the nu- merous problems which had beset the Company in "Gannon actually had worked for Respondent less than 4 months There is no suggestion in the evidence that he had ever been accused of "cheating" Respondent '6 Since the parts have no value or utility except as components of the molds, if, as Respondent believed, they had been taken by the employees, the taking would be closer to vandalism than to theft 'r Root said that defacements of the walls had begun around the middle of July Dawson indicated that it had been a problem considerably longer 971 the months before Gannon's termination. Dawson said the May 12 notice concerning written warnings had been prompted by deterioration in the em- ployees' productivity and workmanship Parts of molds first disappeared on July 7 and 8. Other acts of vandalism,16 such as intentional damage to the water fountain, occurred around the beginning of July. As a result, Respondent called a meeting on July 9, at which all the tool room employees were warned of possible disciplinary action. Employee derelictions continued, as evidenced by the ob- scenities on the lavatory walls in the latter part of Julys' and the subsequent disappearance of addi- tional parts of molds.' Under these circumstances, whether the Com- pany's numerous complaints were justified or not, a threat to "weed out" more employees would not necessarily refer to union adherents. It is at least as probable that Dawson would think of "weeding out" lavatory muralists, slow workers, and vandals as that he would threaten to discharge union ad- herents, which he had given no indication of doing prior to the election. Louisville Chair Company, Inc., 146 NLRB 1380, 1381. Indeed, since the Union had won the election by a 12 to 1 vote, "weeding out" could hardly be thought of as an ef- fective antidote if Dawson considered unionism as the Company's problem. Gannon's employment was not terminated until he had voted for the Union after having previously proclaimed his inten- tion of doing so. If Gannon believed the employees to be "weeded out" were the union adherents, it was he, not Dawson, who made that identification. D. The Alleged Violations of Section 8(a)(3) 1. The termination of James Gannon Gannon's employment was terminated at the end of work on August 1, the day of the Board elec- tion. The General Counsel maintains that the termination of Gannon and the subsequent lay- off of four other employees was "retaliatory ac- tion by the Employer after the Employer had lost a Union election 12 to 1." Respondent contends that Gannon quit his employment and that he was not permitted to retract his resignation because the Company was already seriously contemplating an economic layoff and Gannon was a most unsatisfac- tory employee. On or about July 27, after having received oral warnings , Gannon was given a written warning for "low productivity." On July 28 Gannon spoke to In any event, Gannon confirmed that the problem was a real one " there was writing more or less on the walls all the time I mean, it was just on and off It was on and then they would wash it off and on and they would wash it off " '" Although the only specific subsequent disappearance of mold parts shown in the record was around August 5, after Gannon's termination, the evidence is clear that Respondent was constantly aware of such onduct as a major problem 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dawson about the warning. Concerning this con- versation, Dawson testified: [Gannon] said that when he pushed himself any harder he had stomach trouble, he could not and would not work any faster and if the company didn't like that then there was nothing he could do about it. So I told James Gannon that we could not continue to lose money on the molds that he was building and James Gannon said, "O.K., I have got another job line[d] up at Security [Plastics Company]; I quit Friday." He said , "But I am going to stick around to vote for the boys on Friday." Gannon's version of this incident was that while at work he was approached by Dawson, who ad- monished him not to vote for the Union. Gannon's testimony continued: I told [Dawson] that I intended to vote for the Union and the reasons why, and that the way things were now the shop is a total mess and I said, "Unless you all make some changes most of the men figure it is going to continue " I said, "I have been offered other jobs," . . . I said, "I have had it with all of this dissension and arguing in here." . whenever he left he turned to me about six feet away and said, "James, let me know of any decisions that you make," and I looked at him and I said, "I will let you know if I make any decision at all." On the same day, Franklin L. Root, head of Respondent's quality control department, went to the washroom. Finding the door locked or blocked, he started to leave, when the door opened and em- ployee Cole emerged. Root then proceeded into the lavatory, where he saw Gannon. After Gannon de- parted, Root noticed an obscene reference to Smous written on two places on the lavatory walls. Upon leaving the washroom, Root reported the in- cident to Dawson and Smous. Shortly after lunch, Cole was summoned to Dawson's office. Under Respondent's rules, "If [a] grievance is a matter of discipline the employee has the right to have one of the employee group accompany him to discuss the grievance with Management, if he so desires." Cole chose to have Cochran present. Cole denied that he placed the obscenities on the restroom walls. Then Gannon, also accompanied by Cochran, was inter- viewed. According to Dawson, Smous, and Root, Gannon neither admitted nor denied the accusation against him. Gannon testified that he was never directly accused of the offensive conduct and there- fore he said nothing.'9 According to Dawson and Smous, Gannon said that he had secured a job with Security Plastics Company and was quitting Respondent's employ on August 1, after voting for the Union in the election. Gannon testified that for quite a while he sat silently, "looking at a plastics book while they were talking about Union condi- tions and shops that were Union and conditions in shops that were not Union," but eventually he became "irritated." His testimony continued: A. . . . I said, "Listen, you have pulled me in here on some kind of a trumped up silly, ridiculous charge, made a veiled threat at me for something that you know is not true and that you can't prove." . . . I says, "As far as suspending me, you know full well and you know it now that if you suspend me today or tomorrow I will go straight as my legs can carry me to the National Labor Relations Board and file an unfair labor practice charge against this company." I said, "I will be back; it may take me two weeks or two months or a year or a year and a half, but I will be back and you can depend on it." Q. Was there any mention in that meeting, sir, of Security Plastics? A. In this particular exchange that we were talking of, I don't remember how it came to be, but at any rate I said, "You are not the only place to work here. I have been offered jobs at other shops, among others Security Plastics. So you are not the only place to work." Gannon and Cochran denied that Gannon had said that he quit or used the work "quit" in any connec- tion. However, in a pretrial affidavit given to a Board agent, Gannon had previously said: On Monday, July 28, 1969, 1 got the warning slip and was also called into the office and Smous told me in front of Tom Cochran and Frank Root that they had been advised to suspend me, but he had decided against it at the time. He had told me just before this that I had been suspected of writing on the toilet walls. I told him that if he did not want me there, I would eventually quit, but it would be when I got ready and on my terms." Cochran testified that in both the Gannon and Cole meetings Cochran had stated the Union's position that any employee seen writing on the walls should be fired and Respondent's representatives said they were satisfied that the misconduct was unrelated to the Union. Cochran continued: [Gannon] said if they didn't like his work or anything that they could fire him. And he said he had been -offered a job from Security Plastics and Mr. Howard Cicel offered him a job, but that was all that was said concerning work. On the basis of the demeanor of the witnesses, as well as the conflict between Gannon's testimony and his pretrial affidavit and the conflict between Gannon and Cochran as to the interview about the washroom incident, I credit Dawson and Smous and find that on July 28 Gannon announced his resigna- '' In view of the testimony of Gannon , Dawson, Smous , and Root, 1 dis- credit Cochran 's testimony that Gannon was disturbed by the accusation and firmly denied responsibility for the washroom graffiti R. B. & W. INDUSTRIAL tion as of August 1. However, he promptly recon- sidered but was not permitted to remain. Thus his termination was involuntary and will be considered as tantamount to a discharge. The complaint does not allege and the General Counsel did not contend that the warning of July 27 was discriminatorily motivated or violative of the Act. Respondent introduced into evidence a survey of employee efficiency which showed that between April 14, when he was hired, and July 23, Gannon had spent 412 hours on work which Smous had estimated as requiring 293 hours, with a resultant efficiency rate of 59.4 percent, the lowest in the tool room. The accuracy of this computation was not questioned.20 It is true that on July 1 Gannon received a 5- cent-per-hour "merit" increase in addition to the 10-cent across-the-board increase. Dawson testified that the "merit" increase had been given only because of Gannon's insistent protestations that he had been promised such a raise when he was hired in April. Gannon himself testified that when he was told of the July 1 increase he was also informed that Respondent was not satisfied with his produc- tivity, which was said to be 85 percent, and that he would have to improve. As previously noted, by July 23, his overall efficiency had declined to 59.4 percent. Gannon testified that both Lohrman and Dawson spoke to him about the Union and that several times Dawson "admonished" him not to vote for the Union. Despite Dawson's denial, I find that he did ask several employees not to vote for the Union. However, no such statements are alleged to have been violative of Section 8(a)(1) and there is no evidence that any of them were made in a coer- cive or threatening way. Gannon indicated that in answer to such statements he stated his intention to vote for the Union and his reasons therefor. Around June 18, when the stipulation for an elec- tion was executed, Gannon, along with other tool room employees, started to wear IAM insignia on his clothing and to display IAM decals on his tool- box Gannon appears to have been a leading union proponent. He made the initial contact with the IAM on May 1 and brought the authorization cards to the plant and then delivered the executed cards to the Union on May 9. However, he did not per- sonally solicit any signatures on cards. It was Cochran who was to appear for the Union at the representation hearing which had been scheduled for June 18. Accordingly, while Respondent knew of Gan- non's prounion sentiments, the evidence fails to establish that Respondent had any reason to believe that Gannon was any more active on behalf of or sympathetic to the Union than any of the other L0 The General Counsel made some attempt to establish that Smous was not proficient at estimating However, at most it was shown that he made occasional mistakes and that his estimates reflected the Company's policy PLASTIC PRODUCTS 973 moldmakers, 12 of whom it will be recalled voted in favor of it. Nothing in Cochran's testimony suggested that Gannon's union sympathies appeared to play any part in the washroom interview. According to Gan- non himself, Dawson and Smous clearly knew of his prounion ardor on July 28 when they reprimanded him but informed him that they were rejecting ad- vice that he be suspended at that time. It is reasona- ble to assume that if Respondent had been motivated by an intention or desire to discourage union adherence, it would have discharged him then, 3 days before the election, rather than per- mitting him to remain through the day of the elec- tion. While Respondent had expressed its opposition to unionization, there is a total absence of evidence, direct or circumstantial, to indicate that such opposition played any part in the decision to terminate Gannon, who adopted a truculent, "chip- on-the-shoulder" attitude when warned about his low productivity and when reasonably questioned about the washroom defacement. On all the evidence, I hold that the General Counsel has failed to establish that Gannon's union sympathies or activities played any part in his ter- mination on August 1. On the contrary, the evidence requires the conclusion that Respondent was pleased to seize on Gannon's resignation because it was seriously considering discharging him or, at the very least, laying him off first in the reduction-in-force it was then contemplating. 2. Layoffs of Cochran, Garratt, Cole, and Garcia As of the end of business on August 15, em. ployees Cochran, Cole, Garratt, and Garcia were notified that they were being laid off until further notice "due to a low level of work in our Mold De- partment." The complaint alleges that these em- ployees were laid off because they "joined or assisted the Union, or engaged in other concerted activities." The General Counsel apparently does not con- tend that the four employees were discriminatorily selected for layoff; nor could any such contention be supported. For example, Garcia, the only laid- off employee who had not been recalled as of the time of the hearing, had been totally uninvolved in the concerted and union activities. He had worked on May I when the other employees walked out. He never wore union insignia or displayed IAM de- cals, although the evidence indicates that the great majority of the employees did so. So far as appears, Garratt and Cole had done nothing more than wear IAM insignia and displayed union decals on their toolboxes, as had most of the tool room employees. to emphasize speed over quality of performance somewhat more than em- ployee Garratt, a meticulous worker, thought proper 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cochran does appear to have been somewhat more active than the rest. He was the employee scheduled to appear for the Union at the represen- tation hearing around June 18 and served as ob- server for the Union at the election. However, there is no evidence that this activity played any part in the layoff decision. The survey of efficiency for the period ending July 23 shows that, in descending order, Cochran, Garratt, and Gannon had the lowest productivity rates.21 In 1963 Respondent had had an economic layoff, with the persons laid off being selected on the basis of efficiency quotients rather than seniority. The fact that Cochran, Gannon, and Cole had received "merit" wage increases on July 1 does not indicate that their layoff on August 15 was dis- criminatorily motivated. Cochran had been one of only two tool room employees who had not been granted a merit increase in January, but he had been given one in April. Shortly before July 1 he was informed that his efficiency was 95 percent and that he would therefore receive a raise of 5-cent per hour in addition to the general 10-cent in- crease. However, when the efficiency survey was brought up to date as of July 23, his rate had declined to 72.7 percent and he was given a written warning a few days later. When Garratt was hired in April, he was told that, if his work was satisfactory, he would be given an increase in 30 days and would be raised to the top rate rapidly, and that it was the Company's general practice to increase the top rate by 5 cents every quarter. On his early work for Respondent his efficiency rate was very high, reaching 146 1/2 per- cent at one time . He was granted a 5-cent raise in May, at the end of 3 days' service, and again on July 1. However, his efficiency rate declined so that his overall rate through July 23 was 69.7 percent with only Gannon's lower. He was given a written warning for low productivity around July 27. While Garratt raised some question as to the validity of the computation, there is no reason to believe that it reflected any discrimination against him, and, as previously noted, the July 27 warning has not been alleged as violative of the Act. Cole received a 1'0-cent-per-hour merit increase on July 1 in addition to the across-the-board in- crease. Respondent does not maintain that Cole was selected for layoff because of relatively poor performance or low productivity. According to Dawson's uncontradicted testimony, Cole was a competent tool-and-die x' "T here no efficiency quotient figures for Cole and Garcia because neither of them had made any molds by themselves and thus no meaningful comparison could be made between the hours they spent on particular jobs and the estimated hours for such jobs The efficiency ratings reflect only those jobs on which individual moldmakers worked entirely alone, which is apparently the usual operating method for experienced journeymen 22 By leading questions put to Dawson , the General Counsel suggested that Cole had made molds by himself However, Dawson denied this and Cole was not called as a rebuttal witness The absence of Cole's name from the July efficiency survey corroborates Dawson's testimony In the contract negotiations conducted in November the Union succeeded in having Cole maker, but he was not an experienced moldmaker. He had been hired when no journeyman mold- makers were available and had worked for Respon- dent essentially as a skilled helper and was not then capable of constructing molds by himself." His being given a merit increase as a helper in July would not be inconsistent with a determination that he was among the most expendable employees in the course of an economic layoff. On all the evidence, I find no substantial basis for concluding that Garratt, Cochran, Cole, or Garcia was discriminatorily selected for layoff on August 15. The General Counsel's basic position appears to be that the entire layoff was not economically dic- tated but rather constituted "retaliatory action by the Employer after the Employer had lost a Union election 12 to 1." No union animus on Respondent's part has been shown. Although Respondent openly made known its opposition to the Union, there is no evidence that it engaged in a very vigorous antiunion cam- paign, and I have hitherto found that Respondent did not violate Section 8(a)( I) in the course of the campaign. The layoff was not effectuated before the elec- tion, when it could be expected to help defeat the Union; nor was it done "in the heat of passion" im- mediately after the election. The General Counsel has not come forth with even any speculation as to why an employer would effectuate a layoff in retaliation for union activity 2 weeks after the elec- tion when it had not engaged in any unfair labor practices during the extended pendency of the representation petition, had consented to an elec- tion, and had filed no objections to the election. The fact that a contract was executed less than 4 months after the certification reinforces the conclu- sion that Respondent was not bent on a course of defeating or avoiding the Union. Respondent maintains that the layoff was dic- tated solely by economic considerations, based on a substantial drop in work. The backlog as of the end of July plus the amount of new orders received in that month totaled $45,300, as compared with $53,000 in June. The figures for July were the lowest since August 1968, and additional mold- makers had been hired at the end of 1968. Respon- dent's evidence shows that the ratio of employees to volume of business was higher in July than it had been in any prior month of 1968 or 1969 and after the layoff the ratio was generally somewhat higher than the average for the prior period.23 classified as a moldmaker Z' In its brief Respondent has tabulated the relevant data, and states the following summary , inter alia "a The monthly ratios of men to thousands of dollars of backlog and orders in seven of the 19 months immediately prior to the month of the layoff were lower than that of the lowest month since, and the lowest month since was November, by which time the men laid off had all been recalled with the single exception of the appren- tice . . d If the layoff had not occurred the average ratio would have been .374, a 55 2% increase over the January 1968 through July 1969 penod pnor to the layoff " R. B. & W. INDUSTRIAL PLASTIC PRODUCTS 975 To support his contention that the layoff was not economically motivated the General Counsel sought to establish that during the layoff Respon- dent contracted out work which could have kept the laid-off employees occupied. The evidence does show that in August 743 hours of work were sub- contracted. Of these, 9 hours covered a specific kind of work which, according to Dawson's un- disputed testimony, Respondent was not then equipped to perform. Of the remainder, 610 hours were in connection with two jobs which had been considerably delayed by the disappearance of parts' of molds (for which, as noted before, disciplinary layoffs had been imposed). According to Dawson's uncontradicted testimony, the customer, angered by the delay, had demanded that the jobs be let to another company. On August 11, Respondent sub- contracted a job estimated at 78 hours. According to Dawson, this job was let out because Respondent "had nobody to put on this mold at that time." Since Dawson testified that the decision to lay em- ployees off for lack of work had been reached be- fore August 1, when Gannon was terminated, and the job let on August 11 was not completed until September 3, one might reasonably question why the job could not have been kept in Respondent's plant for Cochran or Garratt to execute in the latter half of August. Two jobs, together estimated at 46 hours, were let out on August 21, and not completed until October 8. Dawson testified that the molds there involved had not as yet been suffi- ciently designed to start construction when the layoff occurred. Analysis of the data suggests the possibility that Respondent might have retained one or more of the laid-off employees by eliminating overtime and/or abandoning its practice of subcontracting. How- ever, that is no more than a conjecture.24 It certainly cannot be said that the layoff was so unwarranted by the economic facts as to lead inevitably to a search for other, ulterior motivation. See The Stayer Co., 154 NLRB 1289, 1291-92. The General Counsel does not meet his affirmative burden of proof simply by raising doubt as to the sufficiency of the Respondent's demonstration of the economic need for the layoff. Big Bear Stores Co., 155 NLRB 75, 94. Presumably to negate the Respondent's claim that the layoff was occasioned by a lack of work, the General Counsel showed that between July 15 and 24 and August 9 and 18, inclusive, Respondent advertised in the newspaper for moldmakers. The L4 The General Counsel has presented no analysis even though at the close of the hearing the Trial Examiner suggested that he "might serve [his] cause well" by a brief "analyz[ing] some of the detailed evidence such as the subcontracting and so forth to chow the inference [he] would like drawn from the evidence " 25 The advertising is not alleged as violative of the Act There is no Company has frequently run such advertisements in the past. Dawson said that the July and August ad- vertisements were run because the presence of the Union suggested the possibility of a strike and the Company was attempting to assure its ability to continue operating if a strike eventuated.25 Applica- tions received in response to the advertisements were simply placed in Respondent's files and no ap- plicants were interviewed or hired. I credit Dawson's explanation and find that the advertise- ments did not reflect any existing intention to hire moldmakers. Thus the advertising is not incon- sistent with Respondent's contention that the Au- gust reduction-in-force was occasioned bsy a decline in the volume of Respondent's business .2 On all the evidence, I conclude that the General Counsel has failed to establish that the layoff of four employees on August 15 was violative of Sec- tion 8(a)(3). Sperti Sunlamp Div., Cooper-Hewitt Electric Co., 162 NLRB 1148, 1155-57. Three of the-employees, Cochran, Garratt, and Cole, were recalled and reinstated as soon as the economic facts justified such action. Garcia has not been replaced and there is no evidence that his ser- vices are now needed. So far as appears, Kathleen Hayes, presently employed by Respondent as an ap- prentice, is able to perform all the apprentice work required. Accordcly, the allegation in the complaint that Respondent discriminatorily failed to recall any employees must be dismissed. CONCLUSIONS OF LAW 1. Respondent, R. B. & W. Industrial Plastic Products, Inc., is 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. 2. The Union , District Lodge No . 40 of the In- ternational Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. The General Counsel has failed to establish by a preponderance of the evidence that Respondent has engaged in any unfair labor practices. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, it is recommended that the complaint be dismissed in its entirety. evidence that the advertisements were designed to coerce the employees or that they had any such effect 26 This finding is in accord with the General Counsel's Administrative Ruling in Case SR-1071, summarized at 47 LRRM 1208, which Re- $pOndent has cited 427-835 0 - 74 - 63