Zatko Metal Products Co.

ZATKO METAL PRODUCTS CO Zatko Metal Products Co. and International Union, United Automobile , Aerospace and Agricultural Implement Workers of America , Region 2. Case 8-CA-48011 September 27, 1968 DECISION AND ORDER On May 9, 1968, Trial Examiner Thomas A. Ricci issued his 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, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs to the Trial Examiner's Decision. The Respondent filed a brief in support of the Decision. 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 and the entire record in this case, including the exceptions and briefs, 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. 1 A related representation proceeding , Case 8-RC-6698, was consolidated with the instant case for purposes of hearing . Following issuance of the Trial Examiner 's Decision , the Charging Party filed with the Regional Director exceptions to the Trial Examiner 's recommenda- tion that the challenges to the 19 ballots be sustained On August 27, 1968 , the Charging Party withdrew its exceptions Thereafter, on August 28, 1968, the Regional Director (by virtue of an Agreement for Consent Election which leaves to him the final determination of postelection matters) issued a Supplemental Decision, Order, and Certification of Election adopting the recommendation of the Trial Examiner in Case 8-RC-6698 The representation case was not formally severed from the instant case. We hereby sever Case 8-RC-6698 from the instant proceeding . Accordingly, we review here only those matters raised by the complaint in Case 8-CA-4801, and are hereby, in effect , adopting , pro forma, the Trial Examiner 's finding that the laid-off employees had no reasonable expectancy of employ- ment at the time of the election. TRIAL EXAMINER'S DECISION AND RECOMMENDATION ON CHALLENGES AND OBJECTIONS STATEMENT OF THE CASE THOMAS A. Ricci, Trial Examiner These cases, involving challenges and objections to the results of an election, and unfair labor practice charges, were heard before the duly designated Trial Examiner on February 19 and March 12, 1968, at 173 NLRB No. 6 27 Cleveland, Ohio The complaint (Case 8-CA-4801), against Zatko Metal Products Co , herein called the Respondent or the Company, was issued on December 21, 1967, on charges filed on October 24, 1967. The election, which gave rise to the challenges and objections, was held on April 25, 1967. A substantial part of the record here consists of testimony and exhibits received by a Board Hearing Officer as a supplemental aspect of the representation proceeding (Case 8-RC-6698), in the course of a hearing on challenges and objections held on 9 hearing days spanning the period July 25 to December 11, 1967. After the hearing before the Hearing Officer had been closed, all parties stipulated that the entire supplemental proceeding be transferred to, and considered by the Trial Examiner designated for the complaint case, the Regional Director consolidated the two cases, representation and unfair labor practice, for single hearing and decision, and the parties submitted, as evidence now, the testimony and exhibits received in the representation case 1 The issue raised by the complaint is whether the Respond- ent unlawfully discharged 19 employees in violation of Section 8(a)(3) of the Act These are the same 19 employees who cast challenged ballots in the election, and the validity of these challenges is an issue presented in the representation case. Briefs were filed by the General Counsel and the Respondent. Upon the entire record, and from my observation of the witnesses who appeared before me as Trial Examiner, I make the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Zatko Metal Products Co , an Ohio corporation, has its principal office and place of business in Cleveland, Ohio, where it is engaged in the manufacture and sale of automobile pulleys. In the course of its business operations the Respond- ent annually ships goods and products valued in excess of $50,000 from its Ohio place of business directly to points located outside that State I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America. Region 2, AFL- CIO, herein called the Union, is a labor organization within the meaning of the Act III THE ALLEGED UNFAIR LABOR PRACTICES AND THE VALIDITY OF THE CHALLENGES The Case in Perspective The two questions presented here for decision-(1) the validity of the 19 challenges and (2) the legality of the alleged 1 At the close of the hearing before the Trial Examiner, the parties filed a stipulation of fact with respect to a number of statements made by various counsel on the record in the supplemental representation proceeding. The stipulation , marked Joint Exhibit 3, is hereby received in evidence and made part of the record. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge of these same employees-are so intimately inter- woven that it is not possible separately to report either the facts concerning each issue or the merits of the two disputes. The consolidated case as a whole can only be understood upon an integrated set of facts, with the conflicting contentions always touching upon virtually all aspects of a developing situation covering an 8-month period. = Apart from minor conflicts in testimony relating to only a few employees' assertions that they sought reemployment, there is virtually no disagreement as to what happened and when. The real burden of the prosecution side is that, despite objective appearances, the employer was driven by an evil intent The first act which, according to the General Counsel, set the stage for the eventual commission of a gross unfair labor practice, came at the April 25 election, when the Company challenged the ballots of 19 employees, all of whom had been laid off a month earlier, on the ground they did not have a reasonable expectancy of recall to work, and were therefore ineligible to vote. Indeed the complaint literally alleges that the Respondent that day "terminated the employ- ment" of each of these persons. These 19, individually named in the complaint, were among 24 production employees laid off on March 31. On that day the complement of production employees, the group involved in the Union's organizational campaign and which voted a month later, went from about 125 to 100 There is no contention the reduction in force was based on any considerations other than economic factors. Nor is there any claim that in selecting the particular 24 to be released, the Respondent went out of its way to choose llmoneers 2 The total complement continued to decline through the spring, and in June the Company had need for more workmen. It recalled six of the laid off employees, each of whom had cast challenged ballots. Ten had to be called on the telephone before the six were found, the remaining four had other employment and refused to return. The six worked for short periods, from 1 to 3 or 4 weeks, and were then again laid off. And again there is no assertion the release was not because work fell off, or that the separations were inspired by antiunion animus. The hearing on the challenges started on July 25 and continued intermittently until September 20, when it was closed That evidence all pertains to the question whether on April 25 the 19 employees in question, in laid off status, had a reasonable expectancy of recall. By that time, in consequence of further separations for one reason or another, the number of production employees had declined to 83. In early October the Company again had need for more workmen, and, resorting to newspaper advertisements, hired 25 persons through October and early November With this, the Union moved to reopen the record before the Hearing Officer. 2 From the transcript TRIAL EXAMINER On the 31st, 24 people were sent home Is it the contention of the General Counsel that the reason why they were sent home is because of the Union activities and not economic explanations as the Respondent contends9 MR. FALCONE No, your honor There is no such contention TRIAL EXAMINER Is it a contention of the General Counsel that , having met the necessity of sending 24 people home on that day, the Respondent deliberately selected from among its employees these 24 in order to get rid of the Union people9 The hearing was reopened, and on November 30 and December 11 further testimony was taken. This served to continue the picture of the October hirings. The Company did not recall any of the 24 employees it had laid off the previous March. Ten days after the hearing on challenges had been closed a second time, the complaint in Case 8-CA-4801 was issued. Finally, at the hearing before the Trial Examiner, in March, it was shown that in January of 1968, the Respondent invited 21 of the original 24 laid off employees, and that only 11 accepted and came back to work. In addition to the exact allegation that the Respondent "terminated" the employment of the 19 challenged voters on April 25, the complaint sets out two further charges. These are (1) that the Company refused to "recall or reinstate" all 19 of them since April 25, and (2) that it "refused to reemploy" them after April 25, and "more particularly since on or about September 1, 1967." In the light of the clear facts, the reasoning advanced in support of all three of these allegations appears to be circuitous There is no persuasive evidence that there was any work-between March 31 and the month of October-that any of the 24 laid off employees could have performed but which was denied them There was short work for six in June and July, and they were called to do it. It follows there was no "discrimination in regard to hire or term of employment" [see Section 8(a)(3) of the Act] before the month of October. In October the Respondent hired 25 workmen, but did not bother to communicate with the old March employees to inquire whether they wished to return. If it was obligated to communicate with them, and if the reason for not doing so was to curb their union activities, or because 19 of them had voted in the April election, this was unlawful refusal to hire, or discrimination in employment violative of the statute While it is true management was opposed to having a union in the plant, and had even campaigned for "no" votes in April, there is no evidence of any improper conduct in its dealings with the employees in this respect, no charge, much less proof, of coercive conduct violative of Section 8(a)(1). For the subsidiary finding that the particular 19 persons listed in the complaint were the Respondent's employees in October, or that the Company was duty bound to call them instead of others at that late date, the predicate assertion must be that when the larger group of 24 was separated in March each of them retained some sort of employee status. That status is described, under the challenge aspect of the case, as a "reasonable expectancy of recall " Resting upon the affirma- tive assertion that the 24 had such a reasonable expectancy, the argument then becomes that the Respondent challenged 19 in April in order to be in a position 6 months later to ignore them, all with malice aforethought. This is why it is charged the act of challenging was a form of discharge. Clearly, MR. FALCONE: No Sir That is not our contention. This statement of position by the General Counsel, made on the record, is set out here because again and again throughout his post-hearing brief the contention is repeated that the reason why the Respondent challenged the laid off employees, and the reason why it ignored them in October, is because it knew they were prounion, and therefore believed their votes would swing the election in favor of the Union These factual assertions are pure argument , and have no evidentary basis on the record. ZATKO METAL PRODUCTS CO. 29 therefore, before the failure to recall people towards the end of the year can be faulted, there must be agreement that those persons ought not have been challenged at the election, that they were simply waiting to return to their jobs. The difficulty with this position is that the claimed original eligibility of the 19 employees, in turn, is said to be proved largely by the fact the Company increased its employee complement in October. No one was hired in the interval, instead the complement dwindled, and even after the now criticized hinngs, total employment stood at 104 in November, just about the same number of jobs left after the March layoffs. Had there been no hiring after the hearing on objections was completed on September 20, it would have been practically impossible to hold that the laid off group of 24, only 6 of whom had done any work in the intervening 6 months-and very little at that-had ever enjoyed a reasonable expectancy of further employment. And it was for the very purpose of relying upon the October hirings to attack the validity of the original challenges that the hearing on chal- lenges was reopened and further testimony taken on November 30 and December 11. In the ordinary case questions of eligibility are determined at the time of, or before the balloting, and the probabilities that any laid off employees will later be recalled are appraised in the light of their past experience with the particular employer. In this case there is no evidence at all of laid off employees ever having been returned to work. Without question, the major proof now said to show a bright outlook in March for these people is the fact employees were lured in October. But this is a form of circuitous reasoning. April is bad because of October, October is bad because of April. The Case in Support of the Complaint If the slippery revolving theory of unlawful discrimination violative of Section 8(a)(3) has any handle that can be gripped, it must be the Respondent's decision late in September not to search out its old employees but to advertise for new ones instead. At one point the General Counsel argues that there was illegal discharge in April, and that a complete unfair labor practice is proved by acts and words occurring that month, even if later events be ignored entirely. The contention is immediately followed by a disclaimer of any request for backpay reaching so far back. As the logic proceeds, the April events are then repetitiously merged into the October hiring of strangers, and the old story becomes illuminating proof of hidden purpose 6 months later. In the end comes the flat contention that even assuming all that happened at the spring election be ignored, it was simply unlawful for the Company to hire anybody else in October. What this amounts to is a straight principle of law that any employer is obligated to hire its old employees-no matter how or when they worked, and no matter the circumstances under which they left-before taking on new workmen. No case precedent in support was cited. In response to such reasoning I can only state the pertinent and undisputed facts, and consider them in the light of the General Counsel's brief. The Union did not submit any written statement of position Therefore, particularly with respect to the challenges, its contentions must be gleaned from sugges- tions, most of them oblique, voiced throughout the long hearing on challenges. Alleged Violation of Section 8(a)(3) on April 25 Having decided to lay off employees, on March 28, 1967, the Respondent posted the following notice on the plant bulletin boards Due to a drastic reduction in our business and the general decline of the auto industry, it has become necessary for us to lay-off approximately 25 to 30 employees Those employees who are to be laid off will be notified im- mediately. We will do everything possible to make the layoff a short one and to avoid additional layoffs, but, unfortunately, all automotive projections are poor and we are not optimistic. Three days later, Friday, March 31, the 24 employees found the following notes in their pay envelopes Due to the severe cutback in automotive schedules, we are forced to lay you off until further notice. The Union's petition for an election was filed on March 14 and on the 30th there was a hearing and conference in the Labor Board office. The parties that day agreed to hold a consent election, and fixed the payroll period March 26 for voting eligibility. With the Union entitled to a list of employees in advance of the election for purposes of home communication, Excelsior Underwear, Inc., 156 NLRB 1236, the Respondent submitted such a list on April 6, and on it appear all the employees who had been at work in March, including the 24 later laid off. During the month of April both the Union and the Company distributed written literature to the employees in an effort to influence their votes The Company mailed four documents to each of the employees at their homes, two of these letters, dated April 5 and April 22, were also mailed to the homes of the laid off employees. These particular letters compared working conditions in this plant with those of other plants owned by the same parent company (Purolator), and set out earning figures of the individual employees of this Company compared to the earnings at other Purolator plants. Charles Lowe and John Allar, international representatives of the UAW, and John Ober, its lawyer, testified that at the March 30 conference when the consent election was planned, Robert Duvin, attorney for the Company, spoke of the proposed layoffs; according to them the eligibility of whoever might be released was conceded that day The evidence is not quite that clear. According to Lowe, Duvin said "there would be no problem with the laid-off people voting " Quoting Allar- 11. he [Duvin] said there would be no problem in this area." Similarly, from Ober's testimony " . . a question was specifi- cally asked of Mr. Duvin as to the effect of any layoffs on the voter eligibility of the people named in the list submitted, and Mr Duvin replied there would be no problem in that connection." Duvin denied there was any specific mention of the plan to lay off employees. According to him. "John Allar asked me if all of the employees on the payroll on the eligibility date which we had determined to be March 26, 1967, would be eligible to vote in the election, and I immediately interpreted that to be a question about the layoff people, and I answered they would, unless there was a material change in their eligibility circumstances." Hazel Ortiz testified that 2 weeks after March 31, in preparation for seeking work elsewhere, she telephoned Zatko to inquire if she would be recalled, and that Zatko replied 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "definitely, we would be called back. He didn't know when ...." Doris Barden returned for a corrected paycheck shortly after the layoff, and, as she related, Spirakus, then a foreman, told her "he hoped to have us back to work in a few weeks." Edward Lipscomb also spoke to Foreman Spirakus "right after I got laid off," to ask when he might return. He testified Spirakus answered " . . he didn't have no idea when they would be calling back." Nancy Miller testified that in May she called "one of the girls in the office," who told her she would be called back "eventually." And finally, Lucille Edwards also testified that at the time of layoff in March her foreman said she would be off "maybe about 2 weeks." As she continued to relate, the witness' memory changed; now she quoted the foreman as having said "a few weeks," "he said it's going to be as short as possible " Mr. Zatko, president of the Company, denied having told these employees, or any others, that the layoffs were to be for very short periods, or that the employees were about to be recalled. Zatko said he told Ortiz on the telephone it did not look good, and that she should "go look for another job." To others who inquired his answer was "they would be better off going to get other jobs and not looking for a call-back." Spirakus is no longer with the Company and did not testify, it is clear he had no idea in April when the employees would be called back, for this is what he told Lipscomb, and all other facts of record lead to the conclusion he could not have had any other well founded opinion. If he said to Doris Barden that he "hoped" to have her back soon, the phrase, from a production supervisor, can hardly offset the weight of the documentary evidence As to Ortiz' testimony, I credit Zatko's version of what he told her. After working 9 days in the temporary June recall, Ortiz did not show up one day. She had been paid I week vacation in cash, to be enjoyed after clearance with the supervisor and the payroll clerk, Mrs Pearl Penrod. Ortiz testified she had obtained Penrod's "Okay," and went off for 2 weeks on vacation, she added that a week later Zatko telephoned to say she was laid off. Penrod was sure Ortiz did not check with her about the vacation, and Torok, her supervisor, said the same at the hearing. Their testimony is corroborated by company records, regularly maintained to show whose vacation is approved and when it is taken. Moreover, with the recall itself occasioned by an extreme production emergency, I doubt the Company would have approved Ortiz' departure so soon after her recall, especially for 2 weeks instead of 1 I do not credit Ortiz on this record. At the April 25 election, 19 of the laid off employees were challenged by the Company The record indicates one or two others who had been laid off voted without challenge, apparently there was an oversight, for the Company instructed its observer to challenge all the 24. As stated above, in late June there was need for workmen, and the Company called 10 laid off employees before it could find six who were willing to come These worked for just a few weeks, and were again laid off. This is how matters stood, so far as the laid off employees were concerned, until the October hirings. It is argued that all this evidence shows the Respondent believed, before March 30, that the employees would be called back, and soon, that they really retained employee status, in short, that they did have a reasonable expectancy of return. When in fact the Company challenged the employees, it revised its position, it had a change of heart toward them, and its purpose must have been something other than a true considera- tion of their likelihood of coming back. From all of this, as stated in the General Counsel's brief- It is the contention of the General Counsel that on April 25, 1967, the date of the election, Respondent converted the status of 19 of the laid-off employees from that of being temporarily laid off with a reasonable expectancy of recall to that of a permanent layoff. It is further contended that this was done in order to provide Respondent with an opportunity to exclude from voting those laid off em- ployees it believed favorable to the Union. Alleged Violations of Section 8(a)(3) Starting in October The objective facts, apart from argument, upon which this complaint allegation rests, are simple and undisputed. Lester Zatko, the president, testified that he discussed with his supervisors the need for additional employees late in Septem- ber, and that their reasons for choosing the course then pursued was that the laid off group had not been in contact with the Company for so many months, that "we surmised a lot of them were working elsewhere," and that a number of them were not any good anyway. Advertisements were then placed in the newspapers and as applicants applied they were hired Twenty-five production employees were put to work, of whom 8 were told they would be part-timers to be released at an unspecified date. The failure to attempt to recruit the old group of 24 laid off in March was a conscious determination. Again, from the General Counsel's brief• It is the contention of General Counsel that Respondent violated Section 8(a)(3) of the Act by failing to recall the laid off employees when work became available because Respondent believed that to do so would result in a determination that the challenged ballots should be counted, thus risking a chance that the Union would win the election and/or because Respondent believed they had joined, favored, or assisted the Union. Irrespective of whether the Trial Examiner finds that the employees were temporarily laid off with a reasonable expectancy of recall in the foreseeable future as contended in issue A above, and irrespective of whether the Trial Examiner finds that the Respondent violated Section 8(a)(3) of the Act by converting the status of the laid off employees on April 25, 1967, there can be no question that Respondent violated Section 8(a)(3) of the Act by failing and refusing to recall the laid off employees when work became available. The contention here is not that the Respondent failed to recall these employees because it knew they were prounion and as a reprisal for their union activity, unless one would construe voting in an NLRB election as union activity. The contention is that Respondent failed to recall them in order to avoid the risk that such a recall would weigh on the Regional Director's Decision respecting the eligibility of the laid off employees and/or because Respondent believed they were active union supporters and this was a good opportunity to rid itself of a possible source of trouble. A confusing argument is more difficult to evaluate than a coherent, comprehensible one. It is at this point of the case ZATKO METAL PRODUCTS CO. 31 that the elusive unfair labor practice theory, articulated together with factual assertions at variance with admitted facts and statements of position made elsewhere on the record, must be divined. In almost every paragraph in a 15-page brief, the thought-whatever it was meant to be-is spiced, and therefore obscured, by constant repetition that the Company from first to last discriminated against, and picked on these 19 people because they were unioneers. The Defense The ultimate argument in defense against the charge of unlawful discrimination in employment is, of course, that there is not substantial evidence, on the record in its entirety, to prove the wrongdoing affirmatively. Because illegal intent is said to have been revealed initially in the challenging, the Respondent offered evidence to prove that economic con- siderations were such that the laid off employees had no reasonable expectancy of recall, and therefore its act of challenging was in good faith. It does not, by this affirmative offer, retreat from the defense that the burden of proving illegality rests always upon the General Counsel and has not been carried successfully in this case. This Company is almost exclusively a manufacturer and supplier of parts for the three major automobile companies. Anticipating an increase in business, it hired four or five additional employees in late December of 1966 and early January. During the period January 1 through March, there appeared in several authoritative specialized publications of the industry, such as Automotive News, as well as in the Wall Street Journal, many articles drawing a bleak picture of the outlook for automobile production in the coming months or year. A great number of these were placed in evidence, unquestionably predicting a drastic reduction of automobile production in the ensuing year No purpose would be served by detailing their contents here, for there is no contention the Respondent was obligated to ignore them, or that in reacting to them as it did, by reducing its personnel, it acted unreasonably. It suffices to say that in total, the various publications did predict a sharp and continuing decline in the volume of automobiles to be produced. As it developed, the forecast was borne out by the progressive reduction in the number of employees on this Company's payroll in the following months. It fell from the 100 who remained after the March layoffs to 83 on September 20. Whether the probabil- ities of recall be viewed retroactively-in terms of what one could have predicted before the layoffs, or prospectively- looking at what happened after they left, it would have to be said that their chances-on the day of the election-were very poor. The more significant facts determinative of expectancy of recall in laid off employees must always, in fairness, be their past experience with the employer involved. And this is particularly true here, where the Company is charged with an ulterior motive on the very day of the election Looking back, these employees could point to nothing justifying their participation in the balloting. There had been no layoffs of any kind for 7 years, and no one could recall with precision what had happened to any laid off employees before that old date. When laid off employees are in fact recalled later, it cannot be denied that fact is some indication, albeit after the event, that some expectancy of recall may have existed initially. With the Union relying heavily upon the recall of six employees in June, the Respondent produced evidence intended to show that what work there was for those six could not have been anticipated, was of short duration, and in fact ended quickly The record amply proves these conclusionary assertions, and, in view of the General Counsel's concessions in this respect, no useful purpose would be served by detailing the evidence here. A strike at the Goodrich Rubber Company, a supplier of parts to the Respondent, an eventuality necessarily unpredictable, occasioned the work, and the General Counsel agrees, in his brief, that this was "a production emergency." Thus, the mere fact of such employment in June is not persuasive towards either view, it points neither to a reasonable expectancy in April, nor to permanent separation The devious reasoning that pervades the theory of complaint emerges with singular clarity in the General Counsel's argument that the temporary recall of these six employees proves both the Respondent's desire to disfranchise them and its intent to discriminate against them in their employment To give employment negates discrimination or denial of work, to recall strengthens the claim of reasonable expectancy But, as the General Counsel would have it, the real reason for the June hiring was to avoid the charge of discrimination This is a logic of presumptive guilt regardless of which way the facts turn As to its effect upon the pending challenges, the General Counsel blandly accuses company counsel of scheming a later defense that postchallenge events are unrelated to their initial validity Analysis and Conclusions The Alleged Discharges Unless it can be found that all 19 employees named in the complaint suffered illegal discrimination in violation of Section 8(a)(3), the complaint must be dismissed in its entirety This is a mass action allegation, there is no contention that the Respondent may have refused employment to one or several of the 19 persons in the complaint, but not as to others Indeed, if illegal motivation in the Section 8(a)(3) sense is proved, it would have to follow that the five persons laid off on March 31 whose names are not in the complaint, also suffered prohibited discrimination. The absence of these five names, which should logically fit into the case, remains unexplained. The General Counsel placed Evelyn Gilchrist, one of the 19, on the witness stand to say her second layoff in July was because she had been told not to vote in the election, and that she was ordered to clean out her locker then and there. The complaint does not allege, nor is it claimed, this was antiunion animus directed to Gilchrist individually, her testimony was offered to prove that all 24 laid off employees were subjected to one sweeping unfair labor practice Other pertinent questions arise and remain equally un- answered Only seven, all challenged voters, of the group of 24, appeared at the hearing as witnesses, and there is no evidence revealing the activities of any of the other 17 after March 31 Did all of these, like the four who refused to return when invited back in June, take the Respondent's layoff notice literally-"automatic projections are poor and we are not optimstic"-find jobs elsewhere and forget about this com- pany? The help wanted ads in October stated the Respondent's name clearly enough. Total silence from all these people points strongly to acceptance with finality-or at least a very low probability of recall, in the layoffs. The main thrust of the argument in favor of the complaint 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is that Zatko, company president, changed his mind, first thinking, in early April, that the 24 would be recalled, and then, because of the election, saying they probably would not and challenging them It is said that Zatko's mental operation must determine this case, and never mind the fact that 17 out of 24 employees never even tried to return, or that the employee complement never-even after the October hiring when the total climbed to 104-returned to the level of March 31, when it stood at 125 But if it is a matter of what people thought, is not the outlook of the employees themselves also relevant9 Of the seven employees who appeared at the hearing, five had been recalled in June, as regulars, and even been paid vacation money. The complaint says that by questioning the voting eligibility of each of these 2 months earlier the Respondent proved its intent to fire them, to exclude them from the plant forever. One of these, Ortiz, even quit of her own accord in July. This patent inconsistency between fact and argument is not explained I find the evidence insufficient to prove the unfair labor practice alleged in the complaint The challenge procedure set out in the Board's Rules and Regulations recognizes the fact of industrial life that there will be instances when the eligibility of voters is questionable. To hold that the Respondent in this case challenged for the purpose of defeating the Union, and with a planned intent of later hiring others in place of the laid off employees, virtually requires a preliminary finding that all 19 voters were conclusively eligible that day and that the Respondent had no doubt on that score Conceivably there could be a finding that the challenges were invalid, that the employees did have a reasonable expectancy of recall, that the Respondent's decision to challenge was not based upon an honest doubt as to eligibility, and the unfair labor practice complaint still be dismissed Malicious challenging, even where found, does not of itself necessarily demand a further finding of illegal discharge at a later date But to hold that on April 25 the Company intended to, 'and in fact used the technique of challenging to dismiss its employees, while at the same time ruling that they were in fact ineligible, and that the Respond- ent therefore had a right to challenge them, is not rationally possible 3 And therein lies the heart of this case What the unfair labor practice allegation rests upon, solely, is the act of challenging. No collateral supporting evidence to prove the asserted, and necessary illegal ulterior motive was offered, indeed the entire theory of this first step aspect of the case rests on what is said to be proof positive that the employees were eligible to participate in the election. The General Counsel also concedes in his brief "Admittedly there is little direct evidence bearing on the question of the motives in the actions of Respondent in challenging the voters." But it is now well established that where unlawful discrimination in employment is charged "the improper motivation of the employer must be established by independent evidence"; indeed this is a case "where actual subjective intent is determinative," and of which the Supreme Court has said "the Board must find from evidence independent of the mere conduct involved that the conduct was primarily motivated by an antiunion animus "NL.R.B. v Brown, 380 U S. 278 Repeated statements in the General Counsel's brief to the contrary, there is no record support for any thought that the Respondent knew, or had reason to suspect, which way the laid off employees would vote It is conceded the selection of the 24 was a random choice unrelated to union activities or sentiment All the record shows is that in March some employees wore union buttons at work. And now, as the Respondent continues to urge the validity of the challenges, it cannot know what the ballots, if opened, would show. The 101 valid votes cast could not have divided more evenly-51 against and 50 in favor of the Union. As it now appears, after the exhaustive hearing on chal- lenges, these employees did not at the time have a reasonable expectancy of recall and their ballots may not be counted. They had been laid off "until further notice," with no promise, express or implied, of any fixed return date. It might even be said they were presumptively in an ineligible category They had been told their chances of return were "poor " They could not look to any precedent of laid off employees having ever been recalled, and the business forecasts upon which the Company could reasonably rely drew a dreary picture for the future, certainly with no timetable against which restaffing might be planned In further support of its challenges the Respondent offered evidence of improved production techniques which lessened the probabilities of recall for the laid off employees as a group There is extended and complex evidence showing that in late 1966 and throughout the year 1967, but particularly during the early months, there was considerable change in its methods of production, in the form of replacement of old machines with new, more efficient apparatus, and improvement of existing machinery by adoption of automated processes The purpose of all this evidence was also to offset what seemed to be a running argument throughout the hearing on challenges that the Company really had need for more employees after the layoff but purposely delayed recalling the 24 in question. Much of the testimony is difficult to comprehend and in conclusionary language. In any event, it stands uncontradicted and there is no reason for rejecting it In its entirety, it is persuasive For the least, there is no basis for finding any calculated plan to permit production to lag, or to keep the employee complement below requirements The general con- tention of the Respondent based upon all this evidence seems to be borne out by the clear fact that during August, September and October of 1967, with fewer employees than the year before, its total sales exceeded those for the comparable period in 1966. There are no objective facts from which it might be argued that an increase in the employee complement, in the near or foreseeable future, could reasonably have been anticipated at the time of the challenging. Counsel for the Respondent correctly argues that subsequent events, foreseeable or unfore- seeable, are not truly pertinent to any inquiry into anterior expectancy. But with the Union relying so heavily upon the 3 From the Government brief. Although an affirmative finding of this issue [ reasonable expec- tancy of recall ] standing alone, does not establish a violation, such a finding is a prerequisite . to a finding of conversion [ from layoff to discharged status] 4 Although no particular case precedent in this area can be determinative here because no two sets of facts are ever squarely on all fours, the eligibility test for employees in laid off status has consistently been phrased as- "Reasonable expectation of employment in the near future." The Marley Company, 131 NLRB 866. ZATKO METAL PRODUCTS CO. June and October hirings, in fairness the overall picture of employment must also be stated. In the payroll week ending March 26, the eligibility date set in the consent election agreement , there were 128 production employees Twenty- four were laid off and by April 25, election day, four others had left, leaving a total complement of 100 The real question upon which eligibility of the 24 turns is whether there was then a reasonable expectancy that in the near future that number 100 would again rise to 124, or at least move a substantial distance in that direction Expectancy of employ- ment as used here does not concern itself with the chances of normal, or even extraordinary attrition, which might decimate the remaining group and fortuitously create openings that old workmen could fill Gerber Plastics Co , 110 NLRB 269 By June 25 the employees were reduced to 86 The six temporary hires of June and July came and went, and by mid-September the total had shrunk further to 83, at the end of the month it was 80 In October and November 25 employees were hired, but some did not stay By November 30 the total number of jobs stood at just about 100 It had changed very little by the close of the hearing on the complaint in March.s If, in an investigation into the validity of challenges, later developments have any pertinence, this unfolding story diminishes, rather than augments the expectancy of recall, and hurts, rather than ,helps the unfair labor practice allegation There is much stress on the intent of the Respondent to recall the employees, and it is argued strongly that Mr Zatko did intend to recall them when first he sent them home It is perhaps true that the employer's state of mind in such cases is a factor to be considered in determining what expectancy of recall there may have been At the same time the best intent in the world could not justify a reasonable expectancy if the facts of available work, if the logical basis for prediction, if the realities of an economic situation are such that no amount of hope or goodwill could offset them. The posted notice of March 28 did say, among other things, that the Company would do "everything possible to make the layoff a short one." If anything is clear on this unduly long record, it is that major changes in the ebb and flow of work into this plant are determined by economic forces far beyond the power of Mr Zatko personally to control Compare, Thermoid Co , 123 NLRB 57 And it is also possible he, as well as his lawyer, may have changed their minds on what position to take about the eligibility of the group of 24. More likely, on March 30, before the employees had even been released, the Respondent had not decided at all what its attitude would be a month later on this question. Duvin, the lawyer, admitted he was asked at the preelection conference, whether the employees to be laid off would be eligible. He equivocated. According to the union representatives , he said "there would be no problem", as he recalled he said "they would, unless there was a material change in their circumstances." Allar, for the Union, virtually admitted the question was not answered clearly and directly, for he also testified "From that statement, I took it that those 5 The parties stipulated that in January of 1968, 11 of the old group of 24 were back at work , that they were invited to return by the Respondent , and that 10 others of the original group were recalled but refused the offer. A few who returned in January came after they had themselves requested work that month or during December The charge , was filed on October 24, and the complaint was issued on December 21. Reinstatement of employees said to have been unlawfully discharged , after issuance of the complaint , cannot fairly be 33 people that were going to be laid off would be eligible to vote ... " A week later, after the mass layoff, Duvin prepared the Excelsior list, as required, for the Regional Director. The payroll eligibility date was March 26, and he sent along the names and addresses of all laid off employees, for they had worked that day The Company then sent four letters to the homes of the employees, explaining why they should vote against the Union Two of these went to the laid off employees as well It does not follow from all of this that perfect eligibility of the 24 was a sure thing in Duvin's mind before the election. To omit the names of the 24 from the Excelsior list he would have had to make a unilateral determination that they were ineligible With one of the eligibility dates March 26, it is doubtful the Regional Director would have deemed the list adequate to satisfy the now legal requirement The same reasoning must apply to the Respondent's attempt to assure "no" votes by the laid off employees Maybe as of that date Duvin had not yet decided to challenge them But his explanation of the literature to these persons is no less credible It is equally possible that he did intend to challenge but was taking no chances, and therefore directed his propaganda campaign to them also, to guard against the event that any challenged ballots might later be opened. The most the conference colloquy, as well as the late distribution of literature, can prove is that Duvin deceived the Union as to his intention. If this was his purpose, lie succeeded in deferring inquiry into eligibility to after the election Had he been unequivocal, the determination might have been made by the Board in advance, and the election thereby deferred. In all likelihood the Board, without the benefit of full investigation, would have permitted the laid off employees to vote subject to challenge, and the challenge issue would be in the same posture today In the total circumstances-no history of recall of laid off employees, convincing evidence that the outlook for the industry was bleak and that available indications prormsed no need for increasing the production staff in the near or foreseeable future, the written advice to the employees that chances of recall were poor, with no date for return arranged, plus the concession that the Respondent had no reason to believe these particular employees to be prounion, I deem the change of position respecting their eligibility, even assuming the company representative did have a change of heart between March 30 and April 25, to be of little weight on the question of the validity of the challenges I conclude that the 24 employees laid off on March 31 did not as of April 25, have a reasonable expectancy of recall in the foreseeable future, and were therefore ineligible to vote. I shall recommend that the 19 challenges to their ballots be sustained. On the record in its entirety I find no merit in the contention that by the act of challenging them the Respondent discharged all 19 employees There remains the allegation that even if the Company did nothing wrong in April, it violated the statute when it did not recall the entire group of 24 in deemed an admission against interest by a respondent employer Similarly , refusal by laid off employees to return on request so long after their original separation, and after the validity of the challenges to their ballots has been exhaustively litigated , bears no substantial relationship to the question of the challenges . I have therefore ignored the month of January 1968 in my consideration of both the unfair labor practices alleged and the challenges. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD October This is the alternative argument which the General Counsel makes, but does not make. If everything that happened before the fall of the year be blanked out of the record, there would be no basis whatever for saying the Respondent was obligated to search out the old employees, or that they held any kind of employee status The vast majority had lost all contact with the Company and there is no evidence worthy of note that antiunion animus existed in the mind of management in October. It is for this reason that the very assertion of independent 8(a)(3) violation at the end is always intertwined with the earlier events. If there is any support for this last contention, it must be the testimony of a few challenged employees that they asked for work after the July layoff of the temporary rehires, and were refused. I do not believe the evidence warrants a broadside conclusion that the Respondent then illegally discriminated against 19 persons, as precisely alleged in the complaint. Edward Lipscomb testified that in the "first part of September," he went to the plant door one night and spoke to a foreman he only knew as "Slim," who told him "no employee what got laid off was allowed to come to the job unless they're called back " Lipscomb continued to say that he then asked when would the laid off people be recalled, and that Slim said "they'd be calling some back that following Monday." No person called Slim testified, there were no jobs available at the beginning of September, no one was added to the payroll until the following month, and the night foreman was hardly the voice of the Company Evelyn Gilchrist is one of the six recalled in June She took sick after a week and a half, and in July came to the plant with a medical statement that she must recuperate 2 more weeks, but was told there was no more work for her She asked to talk to Mr. Zatko, and, according to her testimony, Penrod, the payroll clerk, said to her "you was advised not to come out and vote " She waited and then asked Torok, the superinten- dent, when could she work He answered "I don't know, Evelyn. I'm advised to tell you to clear your locker out." Torok recalled this visit to the plant by Gilchrist, but according to him it was the employee who asked permission to remove her personal belongings from the premises Penrod's testimony is that Gilchrist never spoke to her at the plant after going to the hospital, but only telephoned to report her illness to Mr. Zatko Penrod denied having said the woman had been told not to vote I credit Penrod on this point It simply is not true anyone was told by management not to vote, Gilchrist herself was urged by the Company to cast a negative ballot, and the evidence relating to the objections filed shows clearly this was the Respondent's approach to the election. If Torok told her to empty her locker, it was another way of saying recall prospects were worse than before. Inez Garr, challenged and recalled, also became ill on July 13. She testified she telephoned in on August 16 to talk about returning, and that Torok said he would consult with Mr Zatko and call her back, but never did Garr also said that in the next several months she spoke to Torok perhaps three times. She also said that in early October she saw the Company's newspaper want ads and telephoned Penrod to ask for work According to her, Penrod answered she did not know when work would be available " . . I told her that I had saw the ad that came out in the paper and l just wondered if I would be able to get back to work, and she said she was sorry, that she couldn't help me, that when Mr Zatko was ready I would be called back I thought she might speak with Mr Zatko or Mr Torok and they could have her call me or something." Penrod, in defense, said Garr called her only once and that was in December, when she transferred the call to Zatko who had Garr return to work in January Torok testified Garr called only in July to say she was still in the hospital, and that the only other time he spoke to her was when he called her later to advise she had been laid off again I have no reason for not believing Mrs Garr. However the overall record of this proceeding may now show that her chances of being recalled soon were not good, the fact is she was never told in so many words she was "discharged." Paid a regular vacation in the summer although she worked only a few weeks, it was not unreasonable for her to believe the Company would be well disposed toward her if ever there should be more work And work there was in October. She needed work and the Company's newspaper ads were intended to produce exactly what she said she did, apply for a job. Penrod looks after the payroll, she must have known people were being hired The inherent probabilities of the moment make Garr's testimony more credible than that of Penrod in this instance I also believe she spoke to Torok before October, Penrod said she never told Zatko of any calls by the laid off employees seeking work, and Zatko agreed she never did Why did she not pass on Garr's application to the boss, if it is true she did not9 Why did not some one in the plant call this lady, who had worked for 3 years, and while others were being hired9 I can find nothing wrong with Torok not calling her back in August or September, for no one was being hired then On November 6, Maria Knezvic, who had also been laid off in March, was hired at the request of her husband, a toolroom employee That fact does not suffice to destroy Garr's credibility in my eyes. Lastly, there is the testimony of Lucille Edwards, also recalled in June. She said that through, and into the month of September, in order to satisfy the requirements for continued enjoyment of unemployment benefits, she telephoned the girl in "personnel" to inquire when she would be recalled, and "she [the girl in personnel] said she had no idea " Edwards said that she once spoke also to Spirakus, the foreman, "after July," only to be told "he didn't know exactly when we would be called back " The Respondent was not obligated either to seek out the people laid off in March or to hire them at all in October. Mrs Garr's testimony warrants a finding the Company simply did not want her back then, and that this amounts to a refusal to hire There is nothing to show its reason was because of her union activity It may well be that the Company wanted to avoid strengthening the attack upon the challenges 6 months before. But to view the refusal to hire in this light is to fall back into the bootstrap argument that October was bad because of April, and April was bad because of October It will not do to say that because the Company did not recall the 24, and because 19 of these were challenged, it must have been motivated by a desire to punish them for having voted, to weed out individual unioneers, or to avoid collective bargaining with the Union These are all unlawful purposes in any discrimination in employment, but any one of them must be proved by evidence over and above the fact of the discrimination American Ship Building Company v NL R B, 380 U S 300 There simply is no such support or independent evidence in this case Nor is the lack of affirmative evidence necessary to carry the burden of proof which falls upon the complaint, overcome by saying, with perhaps some truth, that ZATKO METAL PRODUCTS CO 35 the Company was unfair in not recalling these people in October, or even stupid in preferring inexperienced to expe- rienced employees The question is one of illegality, not business acumen. Many other arguments are made in support of the com- plaint, none of them, individually or collectively, sufficient Least persuasive is that based upon the fact Mr. Zatko consulted his lawyer at virtually every turn of events, from the initial conference to arrange the consent election in March through the decision to advertise for help in October Repeatedly the argument is made that the use of expert labor law advice helps prove ulterior or illegal purpose in what might otherwise appear perfectly innocuous Justice is better served if judgment rests upon facts, rather than unsupported in- nunendo I find the evidence as a whole insufficient to support the unfair labor practice allegations, and shall therefore recom- mend dismissal of the complaint. The Objection to the Election This Respondent, Zatko Metal Products Co., is wholly owned by the Purolator Company, which, to the extent shown on this record, also owns and operates four other plants in nearby States All five of the plants produce parts for the auto industry, and comparable jobs exist in more than one plant The UAW is the contract collective-bargaining agent at the other four locations, and it started an organizational campaign here on February 24, 1967 Between that date and the time of election on April 25 the Union held several employee meetings and distributed a number of leaflets explaining the advantages of representation by this Union The Company in turn counteracted by itself distributing antiunion literature, some of it in the form of personal letters to the employees' homes. Among the arguments made by the Union were varied and repeated assertions that the employees at the other Purolator plants, with this Union to speak for them, were enjoying better conditions of employment, and in many respects the Union made specific comparisons. One of the job classifications at this plant is punch press operator, the same classification exists at Wayne, Michigan, and another plant of the four Purolator locations where the UAW bargains. The election was held Tuesday afternoon, April 25 On the previous Sunday, at 3 p m , the Union held a last meeting- attended by perhaps 65 or 70 employees-at a restaurant Four or five union representatives appeared to discuss, among other things, how conditions were better at the other plants. One of the UAW agents was Philip Maggio, who services particularly the Wayne plant He had with him, and offered to show the employees present, the Wayne plant UAW contract The Respondent filed several objections to the results of the election, of which the Regional Director overruled all but one. That last, on which a hearing was held, charges that the Union made material misrepresentations at the April 23 meeting, sufficient to require setting the election aside, in the event the Union should prevail. As now clarified by the evidence, the objection rests upon testimony by several employees that in the course of the hour-long meeting Maggio made the statement that at the Wayne plant punch press operators earn $4 per hour, and that they are paid this even when they are not actually working, as when their presses are idle for one reason or another. The Respondent claims this was a false statement and that it was too late then for it to look into the truth of the statement and disabuse the employees of the wrongful impression created by the Union. All testimony respecting this objection was taken during the first 2 days of hearing before the Hearing Officer, who heard this as well as most of the testimony relating to the 19 challenges. As that record was later received in evidence at the consolidated hearing on challenges and complaint, I did not observe most of these witnesses. On careful analysis of what was said, and of pertinent documents also received in evidence, I am of the opinion that the objection is without merit and should be overruled Six employee witnesses testified in support of the objec- tion Albina Zgonc said that after telling how employees of other plants earned more, Maggio said "out there they got paid $4 an hour for being a punch press operator " With a little prodding by company counsel, Zgonc then added that Maggio also said " . . they will pay you $4 an hour regardless of what you do. You could stand by your machine all day long and you will still get paid $4 an hour " Joanne Zavrl also quoted Maggio concerning punch press operators, "He said that they make $4 an hour." Again with some encouragement by leading questions* Q. Did he say anything else about the punch press? A. Well, there was quite a commotion when that was said Everybody started talking about going on a punch press and somebody got up and asked some questions about, "Does that mean that that's when the presses are down, or do you have to make a certain amount," and he said that that's settled, that $4 an hour is what they get regardless of- Q. Regardless of whether the press is operating or whether it is shut down? A. Right. As she continued to testify, Zavrl added that Maggio said even when they [the punch presses] are being set up or if they are run down or whatever it is, they are still getting their $4 an hour " Frances Arko said Maggio was reading from a book-"sort of like a Purolator handbook"-and "claimed that our wages were much lower than any of the Purolator plants," and then "he brought up the part about the punch press operators making $4 an hour ...." She then added "The way I understood it, he claimed that they would still be making $4 an hour if they just stood there next to their press " According to Anne Hopkins, another employee " ... they were making $4 an hour and just like the other girl says, that they asked if, when the machine breaks down if they got the same, and he said yes " Mary Svaboda was also a witness on this subject Her total testimony reveals extreme antagonism towards the UAW In the course of the meandering story, she stated "They said $4 an hour for running a press and they also said anyone could run a press .. they stand around getting their $4 an hour doing it . " In response to the question Q Did he say that they get the $4 even when the press is down? A That is right. The last employee witness was Joseph Horvat, a toolmaker. He too heard Maggio- "Well, he quoted that women made $4 an hour . . running a punch press " Asked had Maggio used the word "incentive," he replied "no." Against the foregoing, Charles Lowe, UAW international representative, said four UAW officials besides himself were at the meeting. He testified Maggio spoke about wages and other 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working conditions at the Wayne plant, and read from the contract in effect there and compared the two locations According to Lowe, Maggio, in his talk about diverse employee benefits throughout the Purolator plants "said the women at the Wayne plant make as much as $4 an hour on incentive " John Allar, another UAW representative, also testified that Maggio was reading from the Wayne plant contract, and had occasion to say "that in the Wayne, Michigan plant there were punch press operators, including females, who made up to as much as $4 an hour while on incentive " Maggio said he was specifically invited to the meeting to speak about conditions at the Wayne plant, where he is responsible to look after the UAW's interest and to handle all grievances. With the Wayne plant contract in his hands, he reviewed the many benefits detailed there, seniority, holidays, vacations, and such things. He said he read off the hourly rates listed in the contract, although he did not know which of the jobs existing at Wayne were also precisely duplicated at Zatko. According to Maggio, in reading off the rates, he also told these employees what the rates were for incentive workers, and explained that those base rates are guaranteed for time, regardless of how much work a person actually performs. He testified that at this point he also said there were employees, including women, who under the incentive system earned as much as $3 25 to $4 per hour When a women questioned him and doubted his word, he offered to take her to Wayne to see for herself. Maggio denied having said employees on incentive could earn $4 per hour whether the press operated or not. I credit Maggio and find he did not say punch press operators at the Wayne plant earned $4 per hour regardless of how much work they do He is the man who handles grievances at the Wayne plant and therefore in a position to know what incentive workers earn there. He had the contract in his hand, it sets out exactly what the dollar rates are for hourly rated employees and what the guaranteed minimum, or downtime, is for incentive workers He offered to show it to one man who questioned the toolmaker rate, as compared to the comparable rate at Zatko. It is highly unlikely the visiting international representative, at the very moment he was inviting the confidence of the group, would tell them the punch press operators had a guaranteed regular $4 hourly rate and risk showing them in writing that it simply was not so The fact punch press operators at Wayne work on incentive appears clearly in the contract A far more compelling reason for believing Maggio's version of what he told the employees that day is the fact that his testimony conforms with the truth as shown by the Com- pany's own records. For months-the record does not show how many, but surely for the months of April and May of 1967-from Purolator's main office in Rahway, New Jersey, a form sheet goes to the Wayne plant detailing every instance when an incentive employee is paid in excess of $4 an hour Maggio testified, without contradiction, that there came a time when the Purolator Company asked the UAW at Wayne to agree to a wage cut because there were employees earning over $4 per hour, and, when Maggio wanted "to see some figures," the Company gave him the very payroll records which were received in evidence to prove the point. For a single week in April alone-the week ending April 23-there appear upwards of 140 separate incentive operations for which employees were paid-for work periods up to 8 hours-at a rate in excess of $4 per hour, some of them over $5 per hour There are like records for two separate payroll weeks in the month of May. Maggio, again without contradiction, clearly explained the exhibits There was marked antagonism among the employees at that meeting, the division of sentiment was shown in the results of the balloting-51 to 50-as well as in the character of the employee testimony generally. Clearly, some of the women came expressly to disrupt the meeting and exaggerated in their testimony Zgonc had Maggio saying employees at Wayne are paid $4 per hour even standing by their machines "all day long " She also testified "I wanted to know what comparison they had with this plant that they were talking about compared to us when we were working all year round and we never had any strikes or layoffs, in comparison to the plants that he was talking about, how many layoffs they had up there, but I did not get a satisfactory answer " She was not sure who brought up the question of how much punch press operators earned "I wouldn't know who started it " Could she recall what Maggio said "word for word?" "I wouldn't say it was word for word but that is what the statement meant." Zavrl also was not sure who first mentioned the subject. Arko quoted Maggio as saying the $4 was paid "even if the girls just stood around." Recalled later, she was confronted with her earlier affidavit dated May 16, which reads " . he [Maggio] said, `Some of the punch press operators at other Purolator plants were getting $4 per hour."' She then admitted that Maggio had in fact qualified whatever his statement was with the phrase "some of the punch press operators " Svaboda was sure Maggio did not speak of "some" operators earning $4, and that he did say it was paid "even when the press is down." She then took off on a long harangue on the injuries the Union had done her in the past There would be no purpose in repeating it in detail here, but it reveals beyond question a high-strung person on the subject. She also admitted picking a quarrel with UAW Representative Allar at the meeting, and closed with admitting she left the meeting "with two women of my way of thinking." These were Joanne Zavrl and Frances Arko The meeting was very much confused, from the start, with people constantly raising their voices, quarreling, and again and again being called to order. Zgonc. "They were all talking all at once " Zavrl "This meeting was, everybody was talking so much at the same time that you couldn't get anything across People were talking. I bet there were six different subjects going on at six different times " Arko " . . he brought up the part about the punch press operators making $4 an hour, and that caused a big commotion and after that it was pretty hard to keep order and exactly hear who was saying what " Horvat "Everybody started to scream in the audience and up front " Testimony purporting to repeat the exact words of any speaker in such a bedlam could hardly be reliable The fact of the matter is that Maggio told the employees some punch press operators at Wayne were earning $4 per hour when on incentive. The Company records show that this in truth happens often, as always under incentive systems, the rate does not hold over long periods It varies with the item rated and produced, and may not hold for many hours or entire days But this is in the nature of any incentive pay method. The Company brought out the fact many of the instances shown on the exhibits involved men, and not women, and that many items on the exhibit covered assembly employees and not punch press operators But this is not significant, for Maggio spoke of both men and women, and said only some operators earned the higher amounts What is probably equally true is that there were no incentive workers ZATKO METAL PRODUCTS CO. 37 who earned $160 for a continuous 40-hour period But this fact, of which the Purolator labor relations director, Wenner, testified, does not serve to make Maggio a liar Wenner said the average earnings of the punch press operators were well below $4 per hour, and I have no reason to doubt him. But averages necessarily include the extremes, and therefore beg the question here He said average earnings at Wayne were $3 37 per hour This is not proof there were not some who earned over $4 at times There is an implication that the Union was not being honest in speaking so selectively of the higher occasional earnings at the other Purolator plants This is not a good basis for complaint The electioneering on both sides stressed the comparison of present benefits here to the situation at the other four locations Zatko admitted at the hearing that while stressing in the company literature the lower benefits at certain other plants-with special details on yearly earnings, overtime, cash bonus, gifts, and layoffs-he deliberately said nothing about the Wayne plant because the rates there were substan- tially higher than in his own The lawyer, Duvin, testified for the Company on several points Among other things he said he learned about wage rates at the other four plants and "I already knew, in preparation of the April 22 letter, that the Wayne plant's gross earnings were substantially higher than the Zatko plant's gross earnings, and that was why we omitted Wayne from the statement . " I would not blame either party for putting his best foot forward. On Monday, April 24, Mr Zatko held a series of final meetings with the employees in groups, starting at about noon. He spoke about 20 minutes to each of four gatherings, reading a statement and answering some questions, finishing before 2 o'clock in order not to run afoul of the iule prohibiting in-plant meetings within 24 hours of the balloting He learned during the morning of what Maggio said the day before, at I 1 a.m. according to him, earlier according to one or two of the employees. He said he telephoned the lawyer to check on the story, and Duvin testified he was unable to do so quickly because of the time element An argument is that because the Company had no reasonable opportunity to investigate and dispel the erroneous impression created at so late a moment by the Union, the election must be set aside. Now that it has been found there was no misrepresentation, the asserted ground for objecting to the election falls in any event Had Maggio really been wrong in his statement as to the employees, and were it necessary to decide this question now, I would recommend overruling the objection anyway Zatko already knew much about the earnings of employees at the other plants; this is one company-Purolator-owning all five of the plants He had utilized the very special knowledge of wages elsewhere to further his own antiunion campaign, even comparing individual earnings with those of other locations in his letter to these employees I find most unconvincing the lawyer's testimony that the Purolator Company did not care what happened to the Zatko Company, on this matter of the Union's attempt to organize the plant Compare, NL R.B. v Luxarre, Inc., 393 F 2d 661 (C A.D C ), March 19, 1968. RECOMMENDED ORDER Case 8-RC-6698 I recommend that the challenges to the 19 ballots in question be sustained. I recommend that the Respondent's objection to the election be overruled. Case 8-CA-4801 It is hereby recommended that the complaint against Zatko Metal Products Co. be, and it hereby is, dismissed.