Inland Steel Container Co.

INLAND STEEL CONTAINER CO. Inland Steel Container Company and Raymond Wells. Case 13-CA-9028 August 20, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On April 9, 1970, Trial Examiner Harold X. Sum- mers issued his Decision in the above-entitled proceed- ing, finding that the Respondent had not engaged in certain unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs, the Respondent filed cross- exceptions, a supporting brief, and a reply brief, and the General Counsel filed a brief in answer to cross- exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the cross-excep- tions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and rec- ommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby adopts as its Order the Recom- mended Order of the Trial Examiner, and orders that the complaint be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION HAROLD X. SUMMERS, Trial Examiner: In this proceed- ing, the General Counsel of the National Labor Relations Board (hereinafter called the General Counsel and the Board, respectively) issued a complaint' alleging that Inland Steel Container Company (herein, Respondent) had engaged ' The complaint was issued on August 21, 1969. The unfair labor practice charge initiating the proceeding was filed on April 5, 1969 1 in and was engaging in unfair labor practices within the meaning of Section 8(a)(1) of the National Labor Relations Act (the Act). The answer to the complaint admitted some of its allegations and denied others; in effect, it denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before me at Chicago, Illinois, on October 21, 22, and 23 and November 5 and 6, 1969; all parties were afforded full opportunity to call, examine, and cross-examine witnesses, to argue orally, and thereafter to submit briefs. Upon the entire record2 in the case, including my evalua- tion of the reliability of the witnesses based upon my observation of their demeanor, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent is, and at all material times has been, an Illinois corporation maintaining a plant at or near Chicago, Illinois (sometimes referred to as the Chicago plant), where it has been engaged in the manufacture of containers. During the last calendar or fiscal year preceding the issuance of the instant complaint, in the course and conduct of its business operations at the Chicago plant, Respondent shipped goods valued at in excess of $100,000 directly to points outside the State of Illinois. Respondent is an employer engaged in commerce within the meaning of the Act. II. THE UNION Certain employees of Respondent at its Chicago plant, including maintenance employees , are represented for the purpose of collective bargaining by Local 1422, United Steelworkers of America (herein called Local 1422). Local 1422 is a labor organization within the meaning of the Act.' III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue The General Counsel contends that Raymond Wells and John Ward, electricians in the maintenance department of the Chicago plant, were laid off on November 9, 1968, because Wells had engaged in, or Respondent believed he had engaged in, a number of activities, the exercise of which is protected under the Act; Ward-the argument runs-was an innocent victim; low man on the seniority list, he was let go so that Wells, the next-low man, could be "reached." Respondent, conceding that it indefinitely laid off the two men, denies that this was for the reasons attributed by the General Counsel; on the contrary, it ' On February 25, 1970, I issued an order to show cause why the transcript of the hearing herein should not be corrected in specified respects No good cause to the contrary having been shown, the corrections indicated in the order to show cause (which is received in the record as TX Exh 1) are hereby ordered made ' Local 1422 filed no appearance herein 185 NLRB No. 3 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD avers, these two were the electricians most recently hired and the layoffs constituted a reduction in force based -solely upon economic needs. The issue to be decided , then, is whether the two men were laid off because of lack of work or because of Wells' protected activities. B. Background and Setting The Chicago plant, for some years, has been part of a division of Respondent which manufactures metal con- tainers. Until several years ago, the plant was located on South Menard Street , but, in 1964, it was decided to move the operation to a new plant to be built on West 170th Street, in the community of Alsip . (Although first one, and then the other, constituted the Chicago plant, the terms Menard plant and Alsip plant have often been used herein to distinguish the old from the new Chicago installation.) The move itself took place over a period of time, between October 1967 and July 1968. At least since 1939, Local 1422 has represented nonsuper- visory production and maintenance employees at the Chica- go plant, and their working conditions have been governed by a series of collective -bargaining agreements between Respondent and Local 1422. The last -but-one of these agree- ments was to expire, by its terms, on or about October 1, 1968, and negotiations for a new agreement-both the basic one covering a number of Respondent 's plants and the supplemental one covering the Chicago plant-began in June 1968 . Eventually, agreement as to the contract covering this plant was reached on or about October 18. In addition to the electricians , the maintenance depart- ment of the Chicago plant , during the period in question, consisted of machinists, machine repairmen B, diemakers, sheet metal workers, carpenters, painters, oilers, and (until October 1968) pipefitters. At the beginning of +1968, Raymond Wells and John Ward were among Respondent 's electricians . Their employ- ment having begun on March 6 and September 5, 1967, respectively, they were the last 2 hired among the 12- man force of electricians . No assertion having been made, or evidence educed, that the quality of their work-perform- ance was below the standard, I find that they were regarded by Respondent as satisfactory employees. C. Chronology of Events' 1. At the opening of the year 1968,5 as has been noted, the Chicago plant was in the midst of its move from Menard to Alsip. As of that date, the Chicago plant was showing a loss of $150,000 per month, a situation seriously affecting the profit picture of the division as a whole One of Respondent's reactions, consummated at the end of January, was to transfer Jay Strickler, then plant manager for Respondent ' The details contained in this subsection shall not be repeated elsewhere in this Decision; later references to them will take the form of the abbreviation "Chron." followed by the item number or numbers alluded at Cleveland, to the position of plant manager at Chicago; and he was followed several months later by Richard Wat- son, who had been plant engineer at Cleveland and who now assumed that position in Chicago.' During the spring months, Strickler met with all personnel in the plant, by department He told them of the seriousness of the profit situation at the Chicago plant , and he solicited their cooperation as "part of a team " to do something about it. 2. At or around the middle of May , Richard Watson called together the 10 to 12 maintenance employees who were working on the third (midnight) shift. The purpose of the meeting, as he put it, was to "get [the employees'] ideas" about combining the classifications of pipefitter and machine repairman B. The word he used in connection with the pipefitters' job was "eliminate"; as proposed, their function would be performed by the machine repairmen B. There is no evidence , in this record , of the reactions of the men as expressed at the meeting itself. But, immediate- ly after the meeting ended, Raymond Wells (one of the two alleged discriminatees herein ) approached Watson out- side the maintenance department office and asked what Respondent was "really " trying to do. The entire night shift, he said, opposed combining the two jobs , and, for that matter, so did the day shift ; continuing, he averred that "we" were going to fight the move . In response, Watson said, in effect, that that was the employees' privilege. On June 25, in connection with a plan for future manning needs which they formulated that day , Strickler and Watson tentatively eliminated the classification of pipefitter. Among other things, the plan, as prepared by them, envisaged that the four pipefitters then employed should be converted to machine repairmen B. In July, during negotiations for a new contract, Respond- ent representatives raised the subject of the consolidation of the two classifications with Local 1422 representatives. Strickler, for Respondent , stressed the importance of the proposed change; it would provide flexibility, he said. When union spokesmen expressed concern lest this be a device which might be used to reduce the maintenance department, Strickler disclaimed any such intentions; and he pointed out that the move would provide an opportunity for the pipefitters to upgrade their skills so that , for example, they could perform the work of millwrights . "To be com- pletely candid," he added, he could not guarantee that there would be no reductions unrelated to the consolidation; for examples, he mentioned the possibility of layoffs among the electricians and in the carpenter and the paint shops. (The agreement eventually executed-in October-did eliminate the pipefitters as an official job classification at the plant and did incorporate their duties under those of the machine repairman B.) 3. Late in May, Raymond Wells and two machinists in the maintenance department, James Novak and John Bian, met at the latter's home. There, with the clerical to ' I find Strickler and Watson to be supervisors for, and agents of, Unless otherwise indicated , dates referred to herein fall within 1968. Respondent INLAND STEEL CONTAINER CO assistance of Bian's wife, they prepared a document designed to lead to the displacement of Local 1422 by the "Interna- tional Brotherhood of Teamsters" as bargaining representa- tive of the employees of the maintenance department at the Chicago plant. The document took the form of a Board petition-form which had been furnished by an office of the Teamsters International,' appropriately filled in, including an "X" in the decertification-box and two attached sheets headed, "We, the undersigned members of United Steelworkers Union, Local 1422, Department 51, Mainte- nance Men wish to decertify ourselves and join the Interna- tional Brotherhood of Teamsters Union." Wells, Bian, and Novak, plus maintenance men Al Gregg, Richard Wright, and John Ward (one of the two electricians named as discriminatees herein) circulated the "petition" among the maintenance employees throughout the three shifts. Wells himself procured at least 11 of the 42 signatures affixed. (The petition was never filed with the Board. It was, instead, turned over to the Teamsters union.) Respondent disclaims any knowledge of the "decertifica- tion petition," let alone the part played by Wells in its development and circulation. The General Counsel contends otherwise and, in support of this contention, presented testimony, through Wells and Bian, as to a washroom incident allegedly occurring late in May 1968, testimony which was contradicted by that of Respondent' s agent supposedly involved. My findings as to the incident are based primarily upon the version of Bian, who most favora- bly impressed me as a witness and whose story had the ring of plausibility: Unsuccessful in an attempt to persuade employee Frank White (who was a union steward) to sign the petition, Bian sought Wells' help. Later, in the washroom- Bian and Richard Wright also present-White, at Wells' urging, finally affixed his signature. As he did so, Gilford Dancer, then second-shift maintenance fore- man,' entered the room. He chuckled as he saw White in the act of writing but went on to a urinal without stopping; as he passed the group on his return trip, he made a playful gesture as if to take the paper away from White, said the men were wasting their time, and continued out.' I further find that, at or about this time, Dancer was aware-he "had heard it" from several men on the second ' The record does not reveal the identity of the contact man for the employees In the absence of testimony by Wells that he was the one who procured the petition-form, I infer, and I find, that it was not he, under the circumstances of this matter, I am sure that, if he were the one, he would have so testified I find Dancer to be a supervisor for, and agent of, Respondent Thus, I reject Wells' testimony that Bian had solicited his help in getting White's signature in the sight of, if not in the hearing of, three supervisors, including Dancer, and that as Dancer, in the washroom, made as if to take the petition from Wright, he asked what it was and then said to Wells, "You are a glutton for punishment If you think you are going to get this petition through, you are nutsl" On the other hand, I reject the testimony of Dancer to the effect that the only incident of this sort-an incident which took place in August, not May-involved his running into Wells in the washroom appearing to be distributing copies of the "Bucket Factory Story", while this incident may have occurred-see infra-I regard it as a separate one 3 shift-that a "petition" in support of an outside union was circulating (The sole defect in his intelligence was that he understood a Machinists, not a Teamsters, union was involved.) And I find that, under the circumstances, he believed that the document he now saw being handled in the washroom was the petition. 4. Between June and October, five "chapters" of what came to be known as the "Bucket Factory Story" made their appearance at the Chicago plant. Copies found them- selves throughout the plant, but insofar as this record reveals, no one knows who sponsored the chapters, who wrote them, or even who distributed them. The "Story" consists of more or less sarcastic denuncia- tions of working conditions at the Chicago plant, biting criticisms of more or less thinly disguised individuals who represent Respondent and Local 1422, and, progressively, more overtly hostile reflections upon the relations between Respondent and the Union; in fact, a reading of the last two chapters indicated that the sponsor(s) sought, if not a change in bargaining representative, at least a change in leadership of Local 1422. I find that, with respect to the Bucket Factory papers, both employees and members of management engaged in speculation as to their authorship. I also find that, on occasion, the subject came up in conversations between Respondent's agents and employees. On his own testimony, I find that Foreman Dancer spoke to Wells about the Bucket Factory papers in August. He entered the washroom to find Wells backing out of a toilet stall with some copies in his hand. They looked at each other, and Dancer said, "So yotlre the one!" Wells merely said, "No, go into one of the stalls and get your own copy." Dancer did, and the incident was at an end. Early in September just after chapter 3 came out- Ray Wells and Machinist Repairman B Al Gregg were standing outside the barrel finishing office when Wayne Glassman and Bob Roberts 10 approached them. Wells asked Glassman if he had read chapter 3 yet. No, said Glassman, but he would like to. Thereupon, Wells gave a copy to Glassman, who, with Roberts, • went into the office. They emerged a few minutes later, and Glassman returned the copy to Wells and asked when the next chapter was coming out." I find also that, during the Bucket Factory period, Glass- man and Wells had one or more additional conversations on the subject. These conversations were jocular in nature and consisted, in effect, of Glassman's asking when he (Glassman) would be mentioned-the clear (but lightheart- ed) implication being that any management representative escaping mention might be suspect. Wells testified that one day in September, at or about the time chapter 4 was making its appearance, he ran 10 Wayne Glassman was assistant plant manager and Wilbert (Bob) Roberts was general foreman of the maintenance department I find them to be supervisors for and agents of Respondent 11 My findings as to this conversation generally follow Gregg's and Glassman's testimony, which I credit According to Wells, Glassman asked whether he was trying to run for political or for union office by writing the Bucket Factory papers and, when Wells asked why he thought that he (Wells) was the author, Glassman "just smiled", I regard this as embellishment of what happened 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD into Plant Manager Strickler at the plant cafeteria entrance. "When is the next one coming out?" asked Strickler. Wells asked what Strickler was talking about, to which Strickler said, "You know what I mean." At this (Wells' testimony continues), Wells asked what made Strickler think that he was the author; and Strickler replied that Respondent had made an investigation and had decided the stories were coming from the maintenance department and that Wells was "very capable" of writing them. Strickler testified that, although he scarcely knew Wells prior to this hearing, it was entirely possible that, in his wanderings through the plant, he might have exchanged some remarks with Wells, as he did with others, either in general greeting or about the job; but he emphatically denied being involved in the conversation to which Wells testified or in any conversation like it. On the basis of Wells' and Strickler's respective impressiveness, and of the plausibilities inherent in their respective versions, I credit Strickler and find that the conversation in question never took place I find, on the other hand, that there was a related conversation between Wells and Roberts In late September, in the presence of several other employees, Roberts told Wells, "If we find out who is writing the Bucket Factory stories, Ray, the company is going to prosecute."12 I have already found that there was speculation, on the part of both employees and management , as to the authorship of the Story. I find, in addition, that Roberts, by his own testimony, believed that Wells was the writer of the chapters. Further, it strains my credulity to be asked to believe that members of management did not consult with each other as to the source of the papers; I find that they did. Finally, on what I believe is a fair preponderance of the evidence, I find that Respondent, through its agents, suspected that Wells played a part in the Bucket Factory project. 5. Ray Wells, Al Gregg, and two others who worked on Saturday, October 19, went out of the plant for lunch and, without having called in, returned one hour late. They were thereupon told that they were under suspension, a status which continued through the following workday, Monday. By Tuesday morning, Wells had decided to file a grievance over the suspension. Because the regular union steward for the maintenance department was on vacation, Wells asked Ernest Rose, president of Local 1422, through whom he should act, and he suggested the temporary appointment of Al Gregg, who had once before acted as substitute steward. Rose said that this suggestion would be adopted. On Tuesday, Gregg was designated to act as temporary maintenance department steward. Wells first heard of the designation, he testified, through a conversation with Plant Engineer Watson. According to this testimony, he was working outside the receiving office that morning, when Watson and Roberts came out. "Just because you're a rotten son-of-a-bitch," Watson is supposed to have told Wells, "that's no sign you have to put Al [Gregg] in the same classification." Watson denied that any such con- versation took place. I find that the remark was not made. " Emphasis supplied, as in credited testimony I am persuaded particularly by the fact that Gregg was no stranger to grievance handling and that Wells was the beneficiary of some of the grievances he had handled; I see no plausible reason why Watson would say what he did. At any rate, Gregg did that day file a grievance on Wells' and his own behalf, concerning their day-and-a- half suspensions. This record contains no evidence as to the disposition thereof, except that it went to the second step of the grievance machinery. 6. The record contains evidence as to certain other activi- ties of Wells." While still at the Menard plant, Wells was once sent home for sleeping on the job. Suspended 3 days, he filed a grievance, which grievance was denied." On two occasions-dates unspecified-Wells was "spoken to" about wearing a T-shirt and about leaving for a coffee- break 20 minutes early. On September 20, Wells was given a "penalty point" for a more-than-5-minute tardiness This culminated in a grievance (filed by Gregg) which, on October 2, went to the third step-consideration by the personnel manager. The written appeal at this point stated that Wells had been punished despite his having had a reasonable excuse and added, "The Union requests that this point be dismissed and stricken from the record, and that the discriminatory tactics used against said employee in issuing point be discon- tinued immediately." (Eventually-on February 26, 1969, long after Wells' layoff-Respondent decided to void the penalty point. This decision, which was applied to a number of like grievances, resulted from a company review of its policy on employee absenteeism and tardiness as a result of which a new approach was decided upon.) During his tenure at the Chicago plant, Wells had, on occasion, acted as a union steward; moreover, he was active in politics and, at the time of his layoff, held office as a township inspector of some kind. Respondent-through Roberts, for example-was aware of these activities. Just to round out the picture, Roberts testified, and I find, that he had, on unspecified occasions, referred to the combination of Ray Wells, Al Gregg, and Richard Wright as the "unholy three." 7. Shortly after the signing of the latest collective-bargain- ing agreement in mid-October, William Whitfield, an employee of Respondent and vice president of Local 1422, quit his job and, consequently, his union office. Although Wells was ineligible to hold office," he made no effort to disabuse anyone of his interest in and qualifications " Respondent makes no claim that the matters covered by the testimony in this subsection (or that any of Wells' attributes or actions) contributed to his layoff, the testimony was received in connection with the General Counsel's contention that who he was and what he did brought about Wells' termination. " Not having been notified of the duration of the grievance, he reported back to work early. Because of the lack of notification, he was given 4 hours' report-in pay, but this was not in response to the grievance " Among other things, 2 years of membership was required He had lastioined the Local 1422 in the spring of 1967 INLAND STEEL CONTAINER CO. 5 for filling the vacancy; as a matter of fact, he engaged in campaigning among his fellow-employees. According to Wells, at one point in the campaign, Assist- ant Plant Manager Glassman approached him at his work area. Glassman said one of two things (depending on which part of Wells' testimony one is examining), "Looks like you'll win" or "You finally made it," either of which remarks Wells took as referring to the vice-presidency. Glassman denied that any such conversation took place; and I credit his denial. Among other things, Wells testified that he had some sort of understanding with another aspirant to the office, one Robert Pulliam, a paint sprayer employed by Respond- ent. The details of the understanding are vague, but Wells referred on the witness stand to the existence of a "coalition." Pulliam, who conceded that he had solicited the support of Wells among many others, denied the existence of any understanding or coalition. I find that there was none. The subject assumes significance in the light of an (alleged) conversation between Wells and Roberts which followed by a week the (alleged) conversation between Wells and Glassman discussed above. According to Wells, Roberts came up to him alongside the Monostress machine on which he was working and said that, in response to a company inquiry as to what Wells' chances were to become vice president, he (Roberts) had reported his belief that Wells would win if he ran The conversation continued- Wells testified-with Roberts' reporting that he had made a survey and "search" of the campaign and that he was well aware of a coalition between Wells and Pulliam. (Wells' contribution to the conversation-according to Wells-was his admission that there was a coalition.) While I credit Roberts' denial that the conversation took place, I find that another conversation did occur during the campaign, in which Al Gregg told Roberts that he thought Wells had a good chance to become vice president of Local 1422.16 In summary, I find that, as of the 3- or 4-week period immediately preceding his layoff, Wells had aspirations to hold union office. Moreover, in view of the overt airing of these aspirations, the publicity attendant upon the cam- paign, and, for example, the Gregg-Roberts conversation found supra, I find that management was aware of Wells' efforts to become union vice president. (Early in December, subsequent to Wells' layoff, Pulliam was elected vice president of Local 1422. Wells had in fact been nominated from the floor at the nominating meeting held on or about November 17, but his name did not appear on the final ballot; presumably, his lack of eligibility had meanwhile disqualified him.) 8. On October 15 (over 19 months after he went to work at the Chicago plant), Respondent sent inquiries about Wells' past employment history to three of the four employers for whom he had worked prior to coming to Respondent. The replies, all received within the next 2 weeks," were placed in Wells' personnel files. Respondent explains that the sending out of these inquiries was sparked by Wells' grievance over having received a penalty point for tardiness, which grievance is described at Chron. 6, supra. As there noted, the incident took place on September 20. On Octc,ber 2, the grievance arrived at the third step of the grievance machinery, where Personnel Manager and Supervisor of Industrial Relations W. E. Reilly was to consider it. Reilly (according to his testimony) called for Wells' job-application file as well as the file in which were recorded his penalty points-the latter in order to find out about Wells' past history of disciplinary incidents with Respondent and the former for the additional light which might be shed by such things as Wells' attend- ance record with other employers His testimony continued: In Wells' personnel file, Reilly noted that (1) Wells' original- contact application and his immediately-prehire applica- tion-prepared 8 days apart-contained some discrepancies as to dates worked for prior employers and (2) contrary to company practice, no reference checks of Wells' prior employers had ever been made. Thereupon-Reilly testi- fied-he directed his secretary to contact Wells' former employers, and she sent out the inquiries in question on forms used for that purpose. 9. As of Saturday, November 9, Ward was still the most recently hired among Respondent's electricians, and Wells had next-to-lowest seniority. On that day, Wells worked the day shift and John Ward was scheduled to work the second shift. Just after 4 p.m., both were called to the maintenance office over the intercom system. Ward, arriving first, found Pete Wier1e and Bob Roberts. They waited for Wells. When the latter arrived, Wier-who fidgeted nervously-spoke first, saying he had bad news for them: They were being laid off as of the end of their respective work shifts that day. Roberts took over, explaining that the "termination" was necessitated by an austerity program and a cutback in project work. Wells, surprised and shocked about the lack of advance notice, said, "You've got to be kidding." Roberts assured him that he was not and, in response to a query from Wells, said that the layoff was "indefinite." (I find that Respondent did not normally give advance notice of an impending layoff. I also find that Respondent took simultaneous action as to both Wells and Ward and thereafter let Ward work out his shift because, having determined to lay them off the same day, Respondent's agents knew of no method of effectuating the decision (without appearing to deviate from the seniority principle which, I find, was the usual and contractual basis for making layoffs) other than notifying the two at the same time.) At the end of the conversation, or shortly thereafter, Wells asked Roberts if he could have extra time in order " In so finding, I credit Gregg's general testimony, as opposed to Roberts' denial that any such conversation took place But I do not adopt that part of Gregg's version in which he testified that Roberts had opened the conversation or that, having been told that Wells might win the election, Roberts said he wouldn't win if Respondent had anything to say about it " One of the inquiries, returned with the comment, "No record of employment," was re-sent to a corrected address, once again, the inquiree responded that it had no record of Wells' employment at its plant But I pursue this no further since, according to Respondent, the information thus furnished played no part in Wells' layoff 19 Then electrical supervisor and (I find) an agent of Respondent 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to gather his tools. Roberts gave the requested permission; later, at Roberts' suggestion, the two of them, plus Ward, went to the plant canteen for a farewell cup of coffee. In the canteen-others were also present, but they did not participate-Roberts bought the coffee, and Wells and he resumed where they had broken off earlier. Wells- by now, extremely angry about the turn of events-com- plained bitterly about the layoff. He emphasized the lack of notice; he said that he "didn't buy" the austerity reason; and he characterized the action as a "dirty tnck"-making Ward an innocent victim of the Respondent's attempt to get rid of him, Wells. The whole affair, he said, "stinks." Roberts insisted that the layoff was for the reason he had given and was not directed at Wells. "The only thing about it which stinks," he said, "is the timing." (Subsequent to the layoff, Wells (along with Ward) filed his final grievance, a grievance concerning the layoff itself. He was never notified of, and he did not participate in, any step of the procedures involving this grievance. Subse- quently, he heard that the grievance went to the fourth step, just short of arbitration. The parties herein stipulated, and I find, that, at this step, Local 1422, without objection from Respondent, "dropped" the grievance.) 10. The parties stipulated, and I find, that Al Gregg did not work for Respondent from November 7, 1968, to February 12, 1969. Several days after his return, Gregg testified, he com- plained to Roberts about tfte shortage of electricians (he himself was a machine repairman B, but he worked along with electricians), and he asked when Wells and Ward would be recalled. According to his further testimony, Roberts' answer was that Wells would never be called back to work there. Gregg also testified to another similar incident occuring in late March 1969: In his presence, Roberts was complain- ing to Dancer about the fact that the necessary electrical work on the second and third shifts was not being completed in time (to permit normal first-shift processing). Gregg interrupted to ask why the two electricians on layoff were not being called back. Thereupon, Roberts asked Gregg when he was going to get it through his head that Wells would never work there again. Roberts, conceding candidly (and against Respondent's interest) that he did complain about work uncompleted and complain about the shortage of help, denied that either of the above conversations took place; and Dancer, to the extent that he was allegedly involved, corroborated his testimony. I find that in neither instance did Roberts tell Gregg that Respondent would never recall Wells 11. Late in June 1969, Wells and Dancer met by chance. At a traffic light, Dancer noticed that the occupant of the car ahead of him was Wells. He attracted his attention, both of them pulled off to the side of the road, and they got out of their cars. After they shook hands and exchanged greetings, Wells asked how things were going at the plant (Dancer's answer-"We're having our usual troubles") and Dancer asked what Wells was doing (con- struction work) and if he was still in politics (he was). Then Dancer brought up the subject of the unfair labor practice charge which Wells had filed and in the investiga- tion of which Dancer had been questioned; he expressed surprise and, when Wells asked him why, he said he was referring to the "lies" Wells had told." Wells' answer was that he had given a statement to the Labor Board, that he was represented by a good lawyer, and that he was willing to let ajudge decide the matter. 10 12. The number of electricians employed at the Chicago plant after Wells and Ward were laid off remained at nine until September 13, 1969, on which date one of them voluntarily quit. As of the opening of this hearing, he had not been replaced; the number of electricians stands at eight. D. The Economic Basisfor the Layoffs As noted at Chron. 1, the plant was suffering losses at the rate of $150,000 per month at the opening of 1968, and Strickler, late in January, took command. During the spring months, he held a series of meetings with employees at which he explained the profit picture. In June, Strickler sent Watson, lately transferred from Cleveland, to Respondent's Jersey City plant to gather ideas for cutting maintenance costs. On or about the 25th, the two of them met and constructed a "maintenance manning plan," a plan purporting to crystallize their objec- tives with respect to the number of individuals to be employed-at some future, unspecified date-in each classi- fication within the maintenance department. In relevant part, the plan21 envisaged a reduction of electricians (by layoff or transfer) from its 12 on June 25 to an eventual 8. It would also make changes in other classifications, including the conversion of the four pipefit- ters to machine repairmen B22 and a contemplated increase among the machine repairmen B. (The total in the mainte- nance department, according to the plan, would fall from 57 to 56.) " At this hearing, Dancer explained that he had drawn inferences, from questions put to him by the Board agent, that Wells had not told the truth about two incidents in which Dancer had reprimanded Wells (see Chron 6, supra) and about the nature of the justification for his layoff 10 My findings as to this conversation are based, generally, on Wells' version, as substantially corroborated by Dancer I do not credit Dancer's additional testimony that, as to his telling lies to the Labor Board, Wells said he knew they were lies and Dancer knew they were lies, but the company would have to prove they were lies, that he had a secret "bomb" or witness who could win the case, and that Wells was going to "get" several people at the plant no matter how much it cost By now, it should be evident that I was not fully impressed by Wells as a witness In a number of instances, supra, I have rejected certain of his testimony as embellishments But, with respect to the statements attributed to him, in the context of this conversation, I do credit Wells As Judge Learned Hand put it in N.LR B. v Universal Camera Corp., 179 F 2d 749, 754 It is no reason for refusing to accept everything that a witness says, because you do not believe all of it, nothing is more common in all kinds of judicial decisions than to believe some and not all The plan, as it was introduced into this record, contains an inked correction which, if unexplained, would seriously reflect upon its authentic- ity. I am satisfied that an arithmetical error was made when the plan was first put to paper, that the correction, subsequently made, constitutes a bona fide attempt to conform the document to its original design, and that, in short, the exhibit, as corrected, is authentic " See Chron 2, supra. INLAND STEEL CONTAINER CO. The basis for the determination as to future changes was the amount of available work ahead, in Strickler's and Watson's opinion. As for the allocation of eight electri- cians, as compared with the seven who had worked regularly at Menard, Strickler and Watson computed that the addi- tional man would provide 2,000 additional hours, plus available overtime, for electrical work. It is clear, and I find, that the Strickler/ Watson manning plan was not fixed and inflexible. In addition to the fact no dates in the future were set for implementation, I find that neither Strickler nor Watson ruled out changes as a result of events to come. As a matter of fact, the planned figure for machine repairmen B was subsequently revised still further upward. By the end of June, most if not all of the machinery which was to be moved from the old plant had in fact been moved. Only certain projects related to further auto- mating (such as the completion of a "cascading" system to avoid jam-ups on the conveyor belts) and "de-bugging" remained. The extra expenses involved in moving from Menard to Alsip, from a practical standpoint, could not have been absorbed in the routine monthly expenditure accounts, whether processing or maintenance in nature . In the plan- ning stages, major capital appropriations had been requested and approved; and, thereafter, new capital accounts were set up to which such expenses were charged Now, on or about July 2, considering that, for all practical purposes, the move was completed, Respondent closed out its capital accounts related to the move, as of June 30. At or about the same time, the company treasurer, in a memorandum addressed to division officials, complained of the Chicago plant's current "high maintenance costs" and of its "pre-production expenses" thus far in 1968. As for the latter, the memo noted, two-thirds of the June costs ($96,000) were represented by "outside maintenance expenses." It was in July (as has been noted at Chron. 2, supra) that Strickler mentioned to union representatives, in the course of contract negotiations, that there was a possibility of layoffs among the electricians and in the carpenter and paint shops. On the other hand, there was no written correspondence, either at this time or later in the year, concerning any reduction in force. In his monthly (August) report dated September 17, the Chicago plant's accountant emphasized the drastic increase for August over July ($3,400 to $55,600) of the cost of maintenance labor; and he noted that the overtime hours attributable to maintenance constituted 31 percent of those worked in the whole plant. The profit picture at the plant did not improve as the summer waned. The monthly loss from August (through November) ran between $150,000 and $200,000. The loss was occasioned, I find, (1) by the lingering (but progressively decreasing) costs of construction of the new plant, (2) by the extra maintenance costs which accompanied the (also decreasing) equipment installation, startup, and de- bugging requirements, and (3) by the drop in productivity, not so much because of the interruption by the moving of machinery (a process which, to the extent possible, was confined to weekends) but due rather to unresolved problems arising out of the newness of certain equipment. Beginning late in August, throughout September, and into October, Strickler chaired a number of "budget meet- ings" attended by upper officials of the plant and, one by one, supervisors of the respective departments. The topics of discussion were projected numbers of employees and hours worked. At the Menard plant, seven electricians had been regularly employed. Prior to the actual move to Alsip, and in prepara- tion for it, their number had increased to 12. This was the number employed at the time of the move itself, and the number still on board in October 1968. In addition to utilizing its own electricians, Respondent, throughout the startup period, had engaged the services of Tri-City Electric Co., an electrical contractor. From time to time during this period, from 30 to 40 of Tri- City's electricians were at work on one or another project at the new plant. Finally, by letter dated October 4, Respond- ent notified Tri-City of the cancellation of various projects upon which its electricians were working, effective immedi- ately. Thereafter, the work remaining on the projects- projects arising out of the installation and de-bugging of processing equipment and conveyors-was assigned to one or another of Respondent's own electricians. Two of these projects were completed by the end of October; one was finished on November 10; and the remaining one was abandoned as being deemed (by Respondent's engineers) impractical. On October 12, one of Respondent's electricians was discharged for cause. This left the I1 electricians who were in Respondent's employ at the time of the layoffs in question. By memorandum dated November 1, 1968, Strickler sought to explain to the vice president of operation "How Budget Assumptions were Established." Among other things, he told about the holding of daily performance review meetings. My attention was specifically called by Respondent to the following paragraph: 5. Manning and Man-Hours-More attempts will be made to reduce manning to levels below budgeted levels. Now that the agonies of the Alsip start are behind us, overtime control has begun. Sunday double time has been stopped except on rare occasions. Attempts will be made to control overtime in all areas. In all candor, I find that this three-page memo has slight probative value herein. While I recognize that Respondent had a "profit problem"-see infra-the language of this document strikes me as that of an individual who, on the one hand, seeks to reassure his superior that he is "taking steps" and, on the other, is temporizing. For example (referring to the quoted paragraph), the evidence herein does not indicate that budgeted manning levels had been achieved; what meaning should be given to an assertion that more attempts would be made to reduce manning to below-budgeted levels? And, contrary to the assertion, Sunday double time had not been "stopped except on rare occasions." $ DECISIONS OF NATIONAL LABOR RELATIONS BOARD The plant accountant's October report to Strickler came out on November 18.23 The report recited that "increased material variances (the largest of the year) and higher maintenance costs more than offset continued improvements in labor costs" and that "maintenance labor and supplies contributed most of the increase [in variable manufacturing expenses]. . . . Most of the labor increase is due to three more working days in the month plus the labor rate increase. Maintenance hours worked increased from 11,819 to 13,366 but the average per working day (excluding Sundays) went up only slightly-from 492 to 495." On November 6, at the close of one of the daily production meetings, Strickler asked Watson to step into his office. Saying that the question of reducing maintenance costs was a pressing one, he asked whether the electricians could not now be cut back to 8 from the present complement of 11. Watson said this was impossible and, pressed for reasons, cited that, although a major project would be completed that weekend, there was a substantial amount of mopup and cleanup work connected with plant installa- tions and de-bugging. Pressed further, he said he might be able to spare (i.e., lay off) two, but not three, electricians. The possibility of cutting overtime hours was not discussed at this meeting-although it had often been discussed before. Nor did the identities of electricians to be laid off enter into the discussion. Wells and Ward were laid off on the following Saturday, under circumstances described at Chron. 9. Insofar as is revealed by this record, these were the only layoffs effectuat- ed at this time. The operating losses referred to earlier "began to lessen toward the end of [1968], but it was a serious condition."24 We have no evidence as to the 1969 profit picture. According to a manning record prepared for this trial by Respondent's accounting department,25 the total work force at the Alsip plant-including top management, super- visors, and clerical employees-numbered 428 at the begin- ning of 1968. It slowly, and irregularly, fell to a low of 329 in November, and the year closed with 332. I assume that Strickler's oral testimony to the effect that the entire complement fell "by 100" during the year from "over 300" was intended to be an approximation of the figures in this report. But Strickler also gave a parallel figure with respect to October 21, 1969, a date not covered by the above report: He testified that the plant complement that day was "somewhere in the vicinity of 360." This means that the complement had increased substantially since the close of 1968.26 The accountant's report referred to above contains infor- mation as to numbers of nonsupervisory maintenance employees during 1968. It shows that their number fell from 60 to 53 during 1968.37 But pinpointing is not assisted by the exhibit, since it is unclear whether the figure given for any month is that of employment on a representative " Strickler testified he "discussed its contents" with the accountant on or about November 5 " From testimony of Plant Superintendent Strickler Further details are lacking " Resp Exh 16 " I find, though, that reference to numbers of non-maintenance employ. day of that month or is the average employment during the month. For example, the figure for June is 55, whereas the Strickler/Watson manning plan of June 25-supra- shows 57 actually employed. And there is still another set of Respondent's periodic reports (not especially prepared for this hearing)" which compound rather than dispel confusion. Throughout 1968- and thereafter, in slightly different form-Strickler received first weekly, then 4-weekly, reports prepared by the plant's industrial engineering department. (Although these reports, headed "Plant Manning," purported to show the number of employees budgeted for and the actual number of employ- ees working in each department during the period in ques- tion, Strickler, according to his testimony, did not regard them as valid or, consequently, as useful: The number of "actuals," he said, tended to be understated because, for example, there were not allowances for vacationers and other absentees.) According to these reports the budget/ actual ratios and the variances from budget for the mainte- nance department over a pertinent period were as follows: As of 11/4/68-Budget 56-Actual 57-Overstaffed by 1 As of 11/11/68-Budget 56-Actual 55-Understaffed by 1 As of 11/18/68-Budget 56-Actual 51-Understaffed by 5 As of 12/2/68-Budget 56-Actual 51 -Understaffed by 5 As of 12/16/68-Budget 56-Actual 52-Understaffed by 4 As of 12/23/68-Budget 56-Actual 52-Understaffed by 4 As of 12/30/68-Budget 56-Actual 54-Understaffed by 2 As of 1/6/69-Budget 57-Actual 55-Understaffed by 2 As of 1/13/69-Budget 57-Actual 55-Understaffed by 2 As of 1/20/69-Budget 57-Actual 56-Understaffed by 1 As of 1/27/69-Budget 57-Actual 55-Understaffed by 2 As of 3/3/69-Budget 57-Actual 57-No variance As of 3/10/69-Budget 57 -Actual 57-No variance As of 3/17/69-Budget 57-Actual 58-Overstaffed by 1 As of 4/14/69-Budget 57-Actual 57-No variance As of 5/19/69-Budget 57-Actual 49-Understaffed by 8 As of 6/16/69-Budget 57-Actual 57-No variance As of 7/14/69-Budget 57-Actual 50-Understaffed by 8 As of 8/18/69-Budget 57-Actual 61-Overstaffed by 4 As of 9/15/69-Budget 57-Actual 62-Overstaffed by 5 As of 10/20/69-Budget 57-Actual 61-Overstaffed by 4 A comparison of the figures on the two sets of reports (to the extent they cover overlapping periods) reveals that, for November 1968, the accounting department reported 54 maintenance employees working while the engineering department (for the weeks therein) reported 57, 55, and 51; and, for December 53 on the one hand, and 51, 52, 52, and 54 on the other. ees is of slight relevance herein. According to the credible testimony, the number of production employees used-dunng 1969, for example- fluctuated upward and downward upon short notice It depended on the available orders week by week, an extra shift or extra shifts could be added (or subtracted) at will, without affecting the need for maintenance employees, who worked all shifts in any event " The same exhibit shows that the production/porter/guard total fell from 313 to 234 11 G C Exh. 10(a)-(w). INLAND STEEL CONTAINER CO In order to round out the census figures, I here draw together my findings as to the number of electricians employed by Respondent. The regular complement at the Menard plant had been seven. Toward the latter days there, to meet the need to train for the move to the new plant, the figure rose to 12, at which level it stayed, through the move and until October 1968,29 at which time a discharge reduced the figure to 11. Then, on November 9, Wells and Ward were laid off. The level thereupon remained at nine until September 13, 1969, at which time one electrician voluntarily quit. There have been no hirings or recalls of electricians since the layoffs. As for the maintenance department other than electri- cians, the record of accessions and terminations follows. 6/28/68 Painter Quit 7/1 Machine repairman B Hired 7/5 Tool crib attendant Quit 7/14 Machine repairman A Quit 7/21 Machine repairman A Hired 7/22 Machine repairman B Hired 7/31 Machine repairman A Retired 8/10 Machine repairman B Quit 8/19 2 Machine repairmen B Hired 8/26 Machine repairman B Hired 9/16 Machine repairman B Hired 9/21 Tool & Die maker Quit 9/27 Machine repairman B Discharged 9/30 Machine repairman B Quit 10/16 Machine repairman B Hired 10/30 Machine repairman B Quit 11/4 Machine repairman B Quit 11 /25 Tool & die maker Hired 12/2 Machine repairman B Hired 12/3 Machine repairman B Quit 1/3/69 Machine repairman B Hired 1/6 Machine repairman B Hired 1/15 Machine repairman B Hired 1/24 Carpenter Laid off 1/27 Machine repairman B Hired 1/31 Machine repairman B Discharged (hired 1/3) 2/10 Machme repairman B Hired 3/3 Machine repairman B Hired 4/7 Machine repairman B Quit 4/15 Machine repairman B Discharged 4/25 2 Machme repairmen B Quit 5/5 Machine repairman B Hired 6/2 Machine repairman B Hired 6/23 Oiler Hired 7/12 Machine repairman B Quit 9 8/4 2 Machine repairmen B Quit 8/6 Machine repairman B Hired 8/11 Machine repairman B Hired 8/20 Oiler Quit (hired 6/23) 8/22 Oiler Quit 9/2 Machme repairman B Quit 9/11 Oiler Discharged (hired 8/20) 9/11 Oiler Hired 10/7 Oiler Transf.to porter 10/29 Machine repairman B Quit The hours worked, and the nature of those hours, loom as important here as the number of workers. On the basis of the credited testimony, I find that Respondent's electri- cians at the Chicago plant were scheduled to work, and did work, at least an average of 12 hours per day 6- 1/2 days per week (i.e., every other Sunday) at or about Apn1 1968; six 10-hour days beginning in May; six 9- hour days beginning in September; six 8-hour days beginning early in 1969; and five 8-hour days starting during October 1969. During the same period, they worked, in addition and on a voluntary basis, a number of "assigned" overtime hours-i.e. extra hours on short notice, occasioned by breakdowns and other emergencies. A record prepared by the plant accountant demonstrates, and I find, that the number of hours-regular and over- time-worked by the electricians during the 11 months following Wells' and Ward's layoffs was substantially below that of the 11 preceding months.3° And close examination of the record reveals that the turning-point, the date of the most precipitous drop, was at or about early November. An overtime "bulge" in January and February 1969 is explained by the fact that a study of processing equipment "jam" problems in the drum department resulted in a major overhaul which meant taking equipment and process lines out of service, work which was most feasibly under- taken over weekends. (The credible testimony reveals also that overtime hours, of electricians as well as other maintenance employees, decreased "drastically" at or about the time the instant hearing was being held. This resulted from orders passed down to supervision from Strickler.) The total wage cost of all hours worked (regular, time- and-a-half, and double-time) by the electricians roughly accords with the profile of the number of hours worked:" the 11 months prior to the layoffs-especially from January through April-far exceeding that of the next 11 months " It was during this period, as previously noted, that Tn-City's up- to-30-or-40 electricians also performed services for Respondent. '0 Regular, 15,000/19,500; overtime, 4,700/7,200 There is no break- down as between time-and-a-half overtime and double-time (Sunday) overtime " All electricians got the same pay They received $3 64-1 /2 per hour until August 1, 1968 In October, retroactive to August 1, they :ach received a 28-cent increase 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The fact remains, however, that the electricians left after they regarded as an inadequate work force and that they Wells and Ward were laid off, although in a lesser scale also expressed themselves in this respect.J2 than prior to the layoffs, have been working a substantial number of overtime hours-scheduled and assigned-not only in emergency situations but to fill in for electricians absent due to vacations or other reasons. The Alsip plant was built to produce the same products, in about the same amount, as had been produced at Menard, but there the resemblance ends Menard had been obsolete and inefficient, its layout was faulty and its material flow outdated; it was no longer "competitive." Alsip, on the other hand, was a modern, efficient plant; although both plants were automated, Alsip was much more so: it was designed, for example, to equal the output of Menard with one less major production line, and a substantial number of other processing/manufacturing jobs were elimi- nated by the substitution of mechanical devices. I find that much, if not most, of the differential in automation was achieved by means of additional electrical control circuits, eyes, motors, and other electrically powered devices, the maintenance of which called for the services of electricians. (It was the installation of such equipment which, during the move, required the services of an augment- ed group of electricians employed by Respondent, plus others furnished by an outside contractor.) And not only were there more such devices at Alsip, they were, on the whole, much more complicated and sophisticated. * The record is replete with testimony of discontent among electricians concerning their working conditions. The discon- tent centered itself particularly upon the number of days and hours of work-either scheduled or assigned. Among other things, the electricians resented Sunday work- requests for volunteers to come in for such work were often rejected, and management had to go "down the list" with such requests-and they were unhappy about having to work added hours as substitutes for electricians out on vacations or for other reasons, a circumstance necessi- tated by the fact that their numbers made no allowances for such gaps. This discontent, I find, evidenced itself both before and after the layoffs of Wells Sand Ward, but I find that it was greater after the layoffs. The testimony as to the electricians' complaints made subsequent to November 9, 1968, far outweighed that of those made earlier. In the words of one witness, "[The electricians' workload] was more after [Wells and Ward] left, naturally. . . . We had the same amount of work with less men." I find that management was aware of the electricians' discontent. I credit testimony to the effect that individual electricians specifically called the attention of supervisors to their gripe about overwork and the long workweek, I find, indeed, that supervisors felt the pinch of what * E. Discussion-Conclusions I have set forth the circumstances surrounding Wells' and Ward's layoffs in extended detail because, after careful consideration, I find the respective weights of parties' posi- tions to be so close that the balance can be tipped by a single element. The General Counsel contends that the reason given for Wells' layoff-lack of work-was pretextual; that he was really laid off because he had engaged in or was suspected of having engaged in certain protected activities: the part he played in the circulation of the decertification petition, his supposed involvement in the matter of the Bucket Factory papers, and his seeking union office. As background, the General Counsel introduced testimony designed to demonstrate that Wells was regarded by supervi- sors to be "a glutton for punishment" and was known as one of an "unholy three," and that he was, or was regarded by Respondent to be, a "complainer"; a thorn in its side with respect to its employees' working conditions, and a caustic critic of the labor organization with whom Respondent dealt as agent of its employees, because, presum- ably, that organization did not press hard enough for the improvement of working conditions. Ward, according to the General Counsel, was an innocent victim of Respondent's determination to get rid of Wells; having decided to use lack of work as a pretext to lay Wells off, Respondent had to lay off Ward as well because of the requirement in the collective-bargaining agreement that selections for layoff inversely follow seniority. In support of his thesis, the General Counsel questions the plausibility, if not the very existence, of the basis for Respondent's assigned reasons for its action. He regards the timing as overwhelmingly suspicious, both by reason of the surrounding circumstances (e.g., the belated contact with Wells' previous employers and the precipitousness of the termination) and by reason of the (alleged) admissions of Respondent's agent most closely involved in the layoffs, made immediately thereafter; assuming Respondent's employment needs to be as pictured by Respondent at this hearing, he questions the reasonability of Respondent's responses thereto; and he points to the ( alleged) admission of an agent of Respondent, made months after the layoff, that-despite the preferential status Respondent assertedly accords to Wells-Wells would never be recalled. Respondent submits that the General Counsel's burden has not been sustained by the required quantum of proof. " Roberts, for example, received employees' complaints along this line, and he voiced his own. According to his own testimony, he complained about "tardy work"-i e., jobs not completed on schedule-and he "prob- ably" complained, on occasion , about the shortage of electricians, among others i INLAND STEEL CONTAINER CO As for the circulation of the decertification petition, Respondent denies (1) that it was aware of its existence or (2) that, at any rate, it was opposed to the implications of the movement. As for the Bucket Factory papers, Respondent, conceding that its agents were curious about the identity of their author, contends that, even if this were the basis for Wells' termination, the action would be for lawful cause rather than for an activity protected by the Act, considering the contents of the papers. And, finally, Respondent denies that its agents made the remarks attributed to them which might show aversion to Wells' seeking union office. Likewise, Respondent disputes both the truth of the General Counsel's "background" evidence and the meaning he would attach to it. It denies that its agents made statements tending to show animosity toward Wells' because of his extracurricular activities, if any, in the plant. And it contends that it has satisfactorily explained such "suspi- cious" elements as the untimely inquiries sent former employers and the without-advance-notice layoff action simultaneously accorded to Wells and to Ward. Affirmatively, Respondent contends that Wells and Ward were laid off because the move was dictated by business considerations. It argues that the evidence herein clearly shows that there was a decrease in the work available for electricians and that the layoffs were Respondent's timely and proper response to the problem. Far from basing the layoffs upon any real or suspected acts or attributes of Wells-Respondent points out-it regards him as being the first slated for recall should a vacancy occur among the electricians. I have found that Respondent, through an agent or agents, was aware that Wells was involved in the circulation of the decertification petition; suspected that he played a part in the Bucket Factory affair; and knew that he was making efforts to become union vice president. Without hesitation, I would conclude that, if Respondent laid off Wells and Ward because of any of these activities of Wells, it thereby violated Section 8(a)(1) and (3) of the Act." And, absent any other explantion, I would conclude, on the available evidence here, that all three factors did play a part in Respondent's actions.30 But it is the burden of the General Counsel to show, by a preponderance of the evidence, that these activities, or one or several of these activities, motivated Respondent in its action, rather than the lack of work which is assigned by Respondent as the basis for the layoffs. In essence, the General Counsel has mounted a two- pronged attack upon Respondent's explanation: He raises questions as to the very existence of a need for layoffs generally; and, assuming without conceding a need, he questions nonetheless that Wells and Ward would have been laid off when they were. But his basic position is " Contrary to Respondent's contention, I find that, in context, the Bucket Factory papers were a compendium of complaints about working conditions at the Chicago plant, the compilation or circulation of which is activity protected under the Act. 11 that, if Respondent had the profit-problem it claims to have had, it was meeting the challenge with a peashooter. It is not for me (even if I were able) to substitute my business judgments for those of Respondent. The most I can do is to examine the circumstances surrounding the asserted business judgments to determine whether, in the light of all these circumstances, they did in fact exist. A number of doubts immediately rear their heads here. Have the discrepancies between the various records as to numbers employed been satisfactorily explained? If the maintenance department manning plan of June 25 represent- ed an actual situation, why the delay in effectuation- no one in the department was laid off before Wells and Ward were-particularly in view of top management's urgent pleas for economy which inundated Strickler's office? Why layoff two men instead of cutting substantial overtime? How can one reconcile the industrial engineering depart- ment's estimate of employment needs with the rest of the picture here painted by Respondent? In determining whether or not a need for employees (electricians) existed, what weight should be given to complaints of employees/ supervisors about overwork/undermanning? My estimate of the situation is that Respondent, during most of 1968, did have a profit-problem and that top management , having installed new plant management, exert- ed pressures throughout the period to cut costs; and that Plant Superintendent Strickler was caught between these pressures and his desire to maintain an even course. I believe that he hoped that the goals of the June 25 plan, purposely left flexible, might be achieved by routine attri- tion." Going into the latter half of the year, as the workload decreased, he terminated the use of an outside contractor's electricians, thereby augmenting the work of Respondent's own. And, finally, as work projects gave out, he gave the order which resulted in the layoffs. Subsequently, there were no electrician replacements; and, assertedly, the two on layoff status have preferential recall rights. " This conclusion would be based upon the clear implication arising from the facts heretofore found-Respondent's awareness that Wells was involved in the circulation of the decertification petition, close on the heels of his expressed opposition, on behalf of the maintenance department, to the elimination of the classification of pipefitter, Respondent's suspicions that Wells played a part in the Bucket Factory affair, a movement clearly critical of and repugnant to Respondent, and Respondent's knowl- edge that Wells was making efforts to become union vice president- all viewed in the light of the facts that (I here find) Respondent did regard Wells as a chronic complainer about working conditions, as a caustic critic of a bargaining relationship with which Respondent was satisfied, and, along with two other employees, as one of an "unholy three " Nor would I accept Respondent's explanation of the belated inquiries sent Wells' former employers, in view of the undue delay (October 2 to 15) between the alleged occasion for the action and the action itself, and in view of the fact that, the sending of the inquiries having supposedly been motivated in part by certain discrepancies in Wells' representations as to his work history, nothing further was done despite the fact that the responses appeared to compound the discrepancies (On the other hand, I perceive nothing suspicious about the timing of the simultaneous notices of layoff given Wells and Ward, I accept Respondent's explanation ) " As a matter of fact, except with respect to the machine repairmen B (who were to be increased in number) there were a number of unreplaced voluntary quits. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This does not add up to an inherently implausible story.36 I cannot, on this record , reject Respondent's defense. In sum, I find and conclude that , although the matter is not free from doubt , the General Counsel has not demon- strated by a preponderance of the evidence that Respondent laid off Raymond Wells and John Ward because of Wells' activities protected by Section 7 of the Act or to encourage or discourage membership in a labor organization. Upon the foregoing factual findings and conclusions, I come to the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 1422 is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in any unfair labor prac- tices as alleged in the complaint. RECOMMENDED ORDER I recommend that the complaint be dismissed in its entirety. J6 In the absence of cogent opposition, I accept Respondent's explanation (1) of the desirability of cutting the staff even though substantial overtime work continued, (2) of the discrepancies between different company records as to the numbers of individuals actually employed , t and (3) of the apparent conflict between the staffing needs as reported by the engineering department and the picture painted herein by Respondent As for (I ), most machine overhauls were ordinarily performed over weekends by electricians assigned to service these machines during the production week, a necessity which could not be avoided by having more hands on board As for (2) and (3), I am convinced that, rightly or wrongly, Strickler had no faith in and did not use the industrial engineering department 's actual/ideal employment figures because he was convinced that the basis for the figures was erroneous As for the manpower shortages which have apparently existed from time to time in 1969, 1 am convinced , and I find, that, unrelated to Wells' situation, Strickler, using his best business judgement, believed that having employees work long hours is the appropriate way to run this plant, and, when the actual number of electricians, late in 1969, reached the figure for which he had planned, he was determined to operate with that figure, come what may.