Peerless Bread Machinery Corp.

PEERLESS BREAD MACHINERY CORP. Peerless Bread Machinery Corporation and Lodge No. 2167 of the International Association of Machinists and Aerospace Workers, AFL-CIO. Cases 8-CA-4899, 8-CA-4972, and 8-RC-6983 February 7, 1969 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION By MEMBERS BROWN, JENKINS, AND ZAGORIA On September 4, 1968, Trial Examiner Morton D. Friedman issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices in violation of Section 8(a)(1) of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in certain other unfair labor practices in violation of Section 8(a)(1), (3) and (5) of the Act, and recommended that such allegations of the complaint be dismissed, that the objections to the election be overruled and the results of the election be certified, as further set forth in the attached Decision. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief to the General Counsel's exceptions, cross-exceptions, and a brief in support of 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 these cases to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and the briefs, and the entire record in these cases, and hereby adopts the Trial Examiner's findings,' conclusions, and recommendations.' The General Counsel takes exception to the Trial Examiner's credibility findings It is the Board 's established policy, however, not to overrule a Trial Examiner's resolutions with respect to credibility unless , as is not the case here, the preponderance of all the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products , Inc, 91 NLRB 544, enfd 188 F 2d 362 (C.A 3). As the election in Case 8-RC-6983 has not been set aside, we find it unnecessary to pass on any of the Trial Examiner's findings and conclusions dealing with those portions of the complaint relating to majority status and the alleged violation of Section 8(a)(5) of the Act See Irving Air Chute Co ., Inc, 149 NLRB 627, 629-630, enfd 350 F 2d 176 (C A. 2). ORDER 351 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Peerless Bread Machinery Corporation, Sidney, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid votes cast in the election has not been cast for Lodge No. 2167 of the International Association of Machinists and Aerospace Workers, AFL-CIO, and that said labor organization is not the exclusive bargaining representative of the employees in the unit found appropriate within the meaning of Section 9(a) of the Act, as amended. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Trial Examiner: Upon a charge filed in Case 8-CA-4899 on January 19, 1968, by Lodge No. 2167 of the International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, the Regional Director for Region 8 of the National Labor Relations Board, herein called the Board, issued a complaint on February 29, 1968, on behalf of the General Counsel of the Board, against Peerless Bread Machinery Corporation, herein called the Respondent or the Company, alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. Thereafter, upon a charge filed on March 15, 1968, by the Union, the said Regional Director issued a complaint against the Respondent in Case 8-CA-4972 on April 11, 1968, alleging violations of Section 8(a)(1) and (5) of the Act. In its duly filed answers the Respondent, while admitting certain allegations of the complaints, denied the commission of any unfair labor practices. On April 8, 1968, the said Regional Director issued a Supplemental Decision and Order directing a hearing in Case 8-RC-6983 on Objection No. 1 of objections timely filed by the said Union with regard to alleged conduct of Respondent allegedly affecting the results of an election previously held in the said proceeding. Thereafter, simultaneously with the issuance of the complaint filed in Case 8-CA-4972, the said Regional Director issued an order consolidating all of the aforesaid cases and proceedings and a notice of consolidated hearing on all three matters Pursuant to said notice, the hearing of the consolidated cases was held before me at Sidney, Ohio, on May 14, 15, 16 and 17, 1968. All parties were represented and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument and to file briefs. Briefs were filed by the General Counsel and the Respondent. Upon consideration of the entire record, 174 NLRB No. 53 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD including the briefs of the parties, and upon my observation of each of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, an Ohio corporation having its office and only plant located in Sidney, Ohio is engaged in the manufacture and sale of bread dough mixing machinery. During the year immediately preceding the issuance of the complaints herein, the Respondent shipped machinery that it manufactured of a value in excess of $50,000 directly to points outside the State of Ohio. It is admitted, and I find, that the Respondent is an employer engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. IL THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Union is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Background and Issues The Respondent, in business for many years, had had no union organizational activities in its plant until shortly before Christmas of 1967. At that time, the Union began to attempt organizing Respondent's production and maintenance employees. The day after Christmas, December 26, 1967, the Union made its demand for recognition and bargaining upon the Respondent Earlier on that same day, Respondent had laid off six employees. A few days later the Respondent informed the Union that it- doubted that the latter had majority status among Respondent's employees. Thereafter the Union filed a representation petition, a hearing was held, and an election ordered pursuant to which order an election was held which the Union lost. The complaints allege, in substance, that Respondent, through its supervisors, threatened an employee with discharge if the latter joined the Union, interrogated employees concerning their union activities; told an employee that benefits would be withdrawn because of the union activity and the union organizational drive; created the impression of surveillance; and told an employee that the layoff of certain employees was the result of union activity. These alleged acts of interference, coercion and restraint occurred before,and after the Union's request for recognition and bargaining. The complaints further allege, in substance, that on December 26, 1967, the Respondent laid off or discharged six employees because of their activity in, and sympathy on behalf of, the Union. The second complaint then goes on to allege that the Respondent refused to recognize the Union as the bargaining representative of its employees in an appropriate unit; that such refusal to bargain was not made in good faith and that the Respondent did not have a good faith doubt as to the Union's majority status. With regard to the objections filed in the representation case, the objection relevant here is the first one which alleges, in substance, the interference, coercion and restraint in much the same manner as set forth in the complaint. The Respondent's answer, while admitting the jurisdictional facts of the complaint and further admitting the layoffs and the refusal to bargain, denied that the acts of interference, coercion and restraint; further denied that the layoffs were discriminatorily motivated but that they were, rather, for good economic reason; and, finally, alleged that the Respondent refused to bargain on the basis that it had a good faith doubt as to the Union's majority status and, furthermore, the Union did not have a majority on the date of the request for recognition and bargaining.' B. Interference, Coercion, and Restraint 1. The events As heretofore noted, the Union began its organizing campaign sometime in the month of December, 1968. Around the middle of December, just outside the paint room in the Respondent's plant, employee George Vaughn was working when Plant Superintendent Wilbur E. McVay came up to him. With the words "get the rag out" McVay urged Vaughn to work harder. In reply, Vaughn said to McVay, in effect, that when the Union got in somebody else would get the rag out. To this McVay answered that if anybody said anything about a union he would personally fire him.' The foregoing event occurred at about the time the Union's organizational drive reached its height. On or about the 19, 20 and 21st of December, the Union through Bill Sergent, James McClellan, Robert Stephens and Morris Hickerson solicited union cards. The chief solicitor was Bill Sergent. On December 23, the Union gave a party at the union hall which was attended by a number of the Respondent's employees, among them, Harvey Green, Donnie Green, George Vaughn and Bill Sergent. On Tuesday, December 26, six employees were laid off, among them the two Greens and George Vaughn. On the same day, employee Tuley Maxwell hurt his arm in repairing an automobile and stayed away from work. He claimed, on the witness stand, that he had his sister call McVay to let him know why he was not present. Thereafter, on Friday, December 29, Maxwell visited McVay at the plant because he had heard somewhere that he, Maxwell, had been discharged. During the conversation with McVay the latter asked Maxwell if Maxwell had signed a union card. Maxwell insisted that it was McVay who started the conversation about the Union.' On the day before the Maxwell-McVay conversation, McVay had a conversation with employee Bill Sergent. McVay asked Sergent why the latter went to the Union 'There is no issue as to the appropriateness of the unit but there are subsidiary issues as to the inclusions and exclusions within the said unit. 'Although McVay denied that this incident ever occurred , I do not credit such denial Vaughn's testimony was supported by the testimony of Harvey Green and Bill Sergent both of whom were present although some 20 to 30 feet away Although, as pointed out by the Respondent , there is some discrepancy between the testimony of Green and Sergent with regard to this matter, I nevertheless find that, on the whole, their versions of the incident support one another. I also find that although there was, naturally, some noise in the plant , under all the circumstances here Sergent and Green could have overheard McVay's part of the conversation 'From the credited testimony of Tuley Maxwell which was not specifically denied by McVay, nor did McVay give any other version of this conversation From my observation of Maxwell I find him to be a credible witness generally PEERLESS BREAD MACHINERY CORP. office and told them that he, McVay, had fired six people. McVay told Sergent that the latter knew that Sergent was on the black list; that McVay had reports that Sergent had done things like that on prior occasions.' On January 4, 1968, the Respondent was visited at its plant by its attorney and member of its executive board, Charles Lowe. At that time, Lowe, among other things, called all of the supervisors together and instructed them with regard to the manner in which they had to act in order to prevent the commission of unfair labor practices during this period of time. Lowe not only gave these supervisors, among them McVay, oral instructions on how to behave but gave to each of them a printed copy of a set of guidelines to use in their conduct around the plant during the organizational and preelection periods. Nevertheless, according to further testimony of Sergent, McVay continued his antiunion behavior. Thus, according to Sergent, on January 8, McVay warned Sergent that the latter would be better off if he had not brought the Union into the plant. He told Sergent, according to Sergent, that the Company had things to give such as 2 weeks paid vacation, pension plan and good raises. Sergent further testified that on March 20, 1968, McVay stated that he, McVay, knew everyone in the plant who had signed union cards. While on the stand as a witness for Respondent, McVay vehemently denied ever having made such statements to Sergent. While I have heretofore refused to credit McVay with regard to other incidents alleged to have occurred, I have heretofore credited Sergent only when his testimony was corroborated by other employees or where the incident that occurred was virtually admitted by McVay and took place prior to the instruction given the Respondent supervisors by Respondent's counsel. I was not impressed, however, with Sergent's general demeanor on the stand and in this particular instance in the light of McVay's denials and in the light of my observation of both McVay and Sergent, I do not credit Sergent and, to the contrary, with regard to these last two incidents, the alleged incident of January 8 and the further alleged incident of March 20, I conclude that Sergent was merely "guilding the lilly."5 The only other incident which could possibly constitute interference, coercion or restraint involved not McVay, but Foreman Leonard Gruebmeyer. As detailed elsewhere in this Decision, on December 26, 1967, Respondent laid off six employees. One of the six was Harvey Green who worked in the paint shop. On January 2, Foreman Gruebmeyer was working with employee Sergent in the paint shop when Sergent mistakenly called him "Harve Green." Gruebmeyer then said "you might as well, I'm here often enough," Upon that remark by Gruebmeyer, 'From the credited testimony of employee Bill Sergent Although I was not very impressed with most of Sergent's testimony, and would not credit his word necessarily against the word of McVay, during his direct examination McVay to an extent corroborated Sergent's testimony when he stated that he told Sergent that he had always trusted him and wanted to know why he had pulled this union thing on him. Furthermore, McVay stated that he thought that Sergent should have come to him with his grievance instead of running down to the union officials and telling them that he had laid off six union employees . On cross-examination, McVay stated that by all of this he meant that Sergent had organized a union behind his, McVay's back For these reasons and for the virtual admission of his state of mind at the time of the alleged conversation , I do not credit McVay's denials and do credit Sergent's version of the conversation 'To the extent that I credit a witness only in part and discredit him in other parts I do so upon the evidentiary rule that it is not uncommon "to believe some and not all of a witness' testimony." N L R B. v. Universal Camera Corp , 179 F.2d 749, 754 (C A 2) 353 Sergent protested that other employees, including the foreman, were doing the work which the discharged employees had performed and were not doing it quite as well. Gruebmeyer then answered Sergent, "Harve would be here if he would have kept his nose out of things "6 However, both McVay and Executive Vice President Shaffer testified that among the reasons that Harvey Green was laid off, and has been refused rehire, was the fact that Green was found several times "snooping" around some of the supply bins. Respondent argues that Gruebmeyer's remark about keeping his nose out of things with regard to Harvey Green applied to this snooping in the supply area and in the supply bins and not to the reason alleged by the General Counsel for Green's discharge, namely, that Green had signed a union card and had engaged in union activity.' 2. Concluding findings with regard to interference, coercion, and restraint I find McVay's remark to Vaughn to the effect that he would personally discharge anyone who talked about the Union, to be a threat of retaliation against any employee who engaged in Union activity. Such a threat is clearly coercive and violative of Section 8(a)(l) of the Act I so find. For like reasons I find that McVay's threat to Sargent on December 28 after he had asked Sergent why the latter went to the union office to tell them that McVay had fired six people, and his further remark to Sergent that Sergent was on the blacklist is clearly coercive in that it shows that the Respondent, at least in McVay's estimation, might retaliate against Sergent for his going to the Union. Under these circumstances the remark is clearly coercive and violative of Section 8(a)(1) of the Act and I so find Although, as hereinafter set forth, there is some doubt that at the time of Tuley Maxwell's-interview with McVay on December 29, Maxwell enjoyed employee status, I nevertheless find that the questioning by - McVay of Maxwell as to whether the latter had signed a union card is coercive and violative of the Act as being unlawful interrogation. I find that even if Maxwell had been dropped from the payroll before that date, nevertheless, his connection with the Respondent's employees were so close that the questioning of his Union status by McVay was nevertheless coercive with regard not only to Maxwell but to Respondent's other employees. I therefore find that the interrogation violated Section 8(a)(1) of the Act. With regard to Gruebmeyer's remark to Sergent to the effect that Harve Green would still be employed if he had kept his nose out of things, I find that under all the circumstances, as more fully set forth hereinafter, in this Decision, the remark could have been applicable to Green's behavior as an employee in matters other than union activities and that, therefore, the remark is too ambiguous under all of the circumstances to serve as a basis for finding a violation of the' Act. I shall therefore recommend dismissal of that portion of the complaint which refers to this incident., From credited testimony of Sergent While I have not credited Sergent in other respects, in this instance, although Gruebmeyer was still working for the Respondent at the time of the hearing and presumably was available to testify, Respondent did not call upon him to do so Therefore, this testimony of Sergent remains uncontroverted and uncontradicted Accordingly, and for these reasons, I credit Sergent's testimony. 'The relation of the remark of Gruebmeyer to Green' s discharge is herein below treated in further detail 'There was related at the hearing by employee Garrison a further 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Layoffs 1. The events At the end of the card soliciting period, the Union held a Christmas party at its headquarters in Sidney on Saturday, December 23. Attending the party at the Union hall was, among others, James Perk, corresponding secretary of the Union, who was also the brother-in-law of the Respondent's executive vice president and general manager, Donald R. Shaffer. Also among the participants at the party were several of the Respondent's employees. In the evening, after the party was over, Perk went home. He was watching a late movie on television while his wife slept in an adjoining room when, shortly after midnight, Donald Shaffer and his wife came to the door of the house for the purpose of extending greetings of the season to Mrs. Perk. The Shaffer's had also been at a party and were on their way home when they stopped at the Perk abode Although Mrs. Perk is the sister of Shaffer, it is clear that the Shaffers and the Perks are not very friendly. Before that night, Shaffer had seen Perk only since the latter's marriage to Shaffer's sister. They were certainly not close and Shaffer made the visit only after promising his mother that he would do so. Before this visit, Shaffer did not know that Perk was a member of the Union and certainly did not know that Perk was the Union's secretary.' After he showed the Shaffers in, Perk told Shaffer that the Union was going to go in at the Respondent's plant. After acknowledging this remark, and after hearing Perk say that some employees from several of the companies in the Sidney area and from the Respondent's plant were there, Shaffer asked who of the Respondent's employees had attended the Union's party. Perk named the "Green boys, Vaughn, and Bill Sergent." The conversation thereafter turned to family matters and shortly thereafter, after exchanging mutual greetings of the season, the Shaffers left.'° incident involving McVay which could have taken place anywhere from the last part of November to the first part of January The dates in Garrison's mind and the manner in which he generally testified were so vague that it would be impossible for me to place the incident as having occurred before or after the union's organizational drive commenced. By reason thereof I discredit all of Garrison's testimony and do not find that the event occurred Accordingly, I give it no importance in this Decision. 'Perk was not employed at any time by the Respondent From credited portions of the testimony of Perk and Shaffer . I do not credit Shaffer's denial or that of Mrs Shaffer, to the effect that Perk mentioned no names other than that of Bill Sergent . According to Shaffer, the conversation about the Union and the unionization of the Respondent's plant was completely one-sided on Perk's part and he showed absolutely no interest in the conversation to Perk He testified that he asked Perk no questions and when Perk mentioned that Peerless was going to be unionized, all Shaffer said to him was, "It is?" or words to that effect Both Shaffer and Mrs Shaffer stated that the only name mentioned was Sergent's . However, Mrs Shaffer admitted on cross-examination that she was engaged in discussion with her sister-in-law during part of the conversation between Perk and Shaffer and she did not hear the whole thing. She further admitted that it would have been possible for Perk to mention the other names without her hearing them Additionally , Shaffer's professed disinterest in the entire matter is hardly believable I cannot find that a manager of a plant, who is also executive vice president and in complete charge of a plant's operation , would be completely disinterested, as Shaffer stated , in the statement that his plant was about to be unionized Such a claim of disinterest is hardly consistent with normal human behavior . Moreover, I note that Shaffer said he did not pay much attention to it because the subject of unionism hurt everyone When asked why, he said he had no idea why it would hurt everyone. This expression that "it would hurt everyone" indicated that Shaffer would have been Thereafter, as heretofore related, on January 26, McVay gave six employees their final checks and told them they were being laid off because the Respondent was cutting down on the work force" The employees who were laid off are John L. Brooks, Michael DeBrugge, Frank Ewing, Donnie Green, Harvey Green, and George D. Vaughn. It should be noted that none of these employees took any active part in the union organization of the plant except that Brooks, the two Greens and Vaughn signed union authorization cards. DeBrugge and Ewing did not even sign authorization cards. 2. The Respondent's proffered reasons for the layoffs Donald R. Shaffer, in addition to being executive vice president, general manager, and assistant treasurer of the Respondent, also serves on the Board of Directors. In short, Shaffer is responsible for the day-to-day operations of the Respondent's business. Shaffer testified that about a week before Thanksgiving, approximately November 19, 1967, he received a rough draft of the Respondent's quarterly financial report for the period ending October 31, 1967.11 This rough draft, which was later confirmed by the final draft, showed that as compared to the same period in the year before, net sales had fallen off from $189,971.99 to $151,883.91, a decrease of 20 percent. At the same time the net profits for the same period fell from $14,633.11 to $2,567.39, percentage wise a decrease of 82 percent. For the same period net profit, as a percentage of net sales, were 1.69 percent as compared to 7.72 percent at the end of the same period for the year 1966. Even the percentage for the quarter of the year 1967 preceding the quarter here involved was 9.9 percent. In addition to his report, which Shaffer considered alarming, there were other factors which caused Shaffer to worry about the situation of the Respondent It had recently built and moved into a new plant. The first loan payment to the bank on the new plant in the sum of $6,000 was due in January. Additionally, the Respondent's Federal Income Tax installment in the sum of $26,000 was due. Moreover, dividends to the stockholders which had been declared during the previous September, and payable within 30 days, had not been paid. Quite apart from all the foregoing each week a payroll of approximately $4,000 had to be met. Thus, Shaffer, decided that savings had to be made at some point in the Respondent's manufacturing cost As a result, he decided to look into the production cost as to each item of product that was eventually shipped. Moreover he decided to check on the employees to see just which shop employees were productive and which were not. So far as Respondent's financial position was concerned, Shaffer pointed out that even with the cutting back measure of the layoff which took place on December 26, 1967, Respondent was still in a bad financial position as late as January 26, 1968. Thus, on January 26, 1968, a short financial statement showed that the Company's cash position was $11,707.95 cash on hand with a total of $24,110.45 of accounts payable to be paid in the next 14 days and this did not include payroll. So far as the first installment to the bank on the building loan was concerned, as mentioned above, Shaffer had to ask for an interested in what Perk claims he told Shaffer Accordingly, I credit, for the most part , Perk's version of the conversation. "From the testimony of Harvey Green, George Vaughn, and McVay "Respondent's books are set upon a fiscal basis as opposed to a calendar year basis PEERLESS BREAD MACHINERY CORP. 355 extention of 30 days from January 30, 1968, in order to meet this amount. Again at the end of that 30 day period a further extention was requested and finally after 15 more clays rather than risk a possible altercation with the bank, the money was paid as directed by the Board of Directors. Both Shaffer and McVay testified, without contradiction, that the financial situation regardless of its cause was responsible for the layoffs of the men. It was the financial report of the middle of November which started Shaffer, with the assistance of McVay, to make a study and check time records to see where the Respondent could cut down on the labor force. The hours from the paint shop where Vaughn and the two Greens worked seemed to be excessive. There they started to investigate George Vaughn and Harvey and Donnie Green worked in the paint shop. This shop prepared the machinery manufactured by the Respondent for shipment. There the machinery was painted and crated. Vaughn and Harvey Green were painters and Donnie Green was a crater. The move from the old plant to the new plant which had both a shipping and receiving door and had about 65 percent more useable floor work area, began in approximately July of 1967 and was completed during the first week in September of that year When the move into the new building was completed, not all of the employees who formally had been production employees were engaged in production work. Three of the employees were engaged in putting away stock, building shelves and doing odd jobs so that the new plant could go into full swing. Much stock had to be put away and many shelves had to be built. Thus these jobs which were incidental to the move existed until November 10, 1967. Around that time they were at least 80 percent completed. At that time, therefore, the three men, Vaughn and the two Greens, who were assigned to the work of building the shelves and putting the stock away, were returned to their normal production work of crating and painting. Although these three employees returned to their old jobs, the Respondent could not keep them busy on the jobs they had previously performed in the old plant. This was because by moving to the new plant the production and other processes gained new efficiency. They no longer had the problem of shipping and receiving. In the old plant they had but one door to ship out and to receive in. Therefore, at the time when shipment had to be made and merchandise was to be received, a tie up would ensue in the old plant. This necessitated the moving of the crating operation out of the way in order to receive the new material and not tie up trucks which were making deliveries. In this respect, all of the employees in the painting and crating operations were busy moving equipment and putting away material received. This was added to their ordinary painting and crating duties. However, when the work of moving was complete, and shipping and receiving was done in the new plant, it was demonstrated that the shipping and receiving could be performed in less than half the time consumed in the old plant and with the utilization of many less employee hours, According to Shaffer's uncontradicted testimony, in the old plant Respondent received a shipment on the average of at least once a week and it look three or four persons at least a day and a half, or longer, to put it away. In the new plant, on the other hand, one man does the same job in one half the time that it took previously. In addition to this, the operation is more efficient because in the new plant, which had strong concrete floors, Respondent uses a forklift truck for the movement of equipment and material. In the old plant it was unable to do so because that plant had rotten, wooden floors. In fact, several weeks before the receipt of the draft of the financial report covering the period ending October 31, 1967, Shaffer had observed the idleness of Vaughn, Harvey Green and Donnie Green. Therefore, according to Shaffer, these three men came under Shaffer's immediate consideration once his decision to cut back on personnel was made. Additionally, Shaffer made a detailed study of the Company's machine cost record. The study revealed that the man-hours for the painting and crating operations were "beyond reason." Thus it demonstrated that 45 machines were shipped during the year 1967 and that each machine consumed an average of 90 hours in the paint and crating operation It was during this period that was covered by this study that the two Greens and Vaughn had worked in the paint department along with Bill Sergent, the most active union adherent. To prove the point, sometime after the December 26 layoff, Shaffer conducted a second study of the average paint time for each piece of machinery that went through the painting and crating department. This study covered the period from December 26, 1967, to April 25, 1968, using the same procedures as used 'in the 1967 study. Shaffer determined that 25 machines which were similar in nature to those shipped before the layoffs consumed an average of only 45 paint and crate man hours, a reduction of approximately 50 percent. Shaffer further testified that neither the two Greens nor Vaughn possessed sufficient skill to warrant transferring them to other departments which would have enabled them to work in production elsewhere. It is significant to note that none of these three employees has been replaced up to the date of the hearing and that the Respondent has been able to get along efficiently without the use of replacements. This would seem to bear out the import of Shaffer's testimony. It should also be noted that Shaffer's testimony was supported by that of McVay. With regard to Vaughn particularly, Shaffer testified that he did not consider him a particularly good employee. Shaffer based this conclusion on the fact that when Shaffer would go through the shop Vaughn would be standing around and talking Many times Shaffer saw him away from the job and even when he did have work to do he was bothering other people Additionally, Vaughn's attendance record was very poor. With regard to Donnie Green, Shaffer felt that he was an average employee. He also had a very poor attendance record in addition to which his tardiness record was very bad. With regard to Harvey Green, Shaffer observed him on numberous occasions standing away from his job, talking to other employees, although he had no work to perform with them. Moreover, Shaffer had received a report from Leonard Gruebmeyer, Green's immediate supervisor that Harvey Green was "snooping around" in the stock area where he did not belong. This is a restricted area where stock and parts are stored and only authorized personnel are permitted. As a matter of fact, Green had been warned about this. Moreover, Harvey Green's attendance record was bad, in fact, so bad that even if he were to need someone in the department Shaffer would not consider reemploying Harvey Nor for the same reason would he consider reemploying George Vaughn or Donnie Green. The records show that while there were other employees who had bad attendance records, in each case there was a good and excusable reason. It would unnecessarily 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lengthen this decision to set them forth here but in each individual case there was a reason why Respondent found the employee concerned to be valuable despite his attendance record. Thus, for example, some of the men were part time farmers and had to be off in order to attend their farms. Others were ill chronically and had to have time off in order to recover or to be treated. However, in no case , was an employee of such mediocre caliber as the two Greens and Vaughn kept on after the December 26 layoff. With regard to the other employees who were laid off, Shaffer testified DeBrugge was in a probationary period at the time of his discharge. He had been hired around the first week in December so that at the time he was considered for layoff, he was still in a 30 day probationary period. At the time DeBrugge started to work for the Respondent, Shaffer began to receive calls from various people around town to whom DeBrugge owed money. He was not paying his obligations and they wanted to talk to Shaffer to see if the Respondent could get DeBrugge to pay something on account. Respondent's representatives spoke to DeBrugge several times and told him that he should start making payments on his commitments or, at least, talk to people and see what could be worked out. This continued on almost a daily basis. The next thing that Shaffer and McVay discovered was that DeBrugge had borrowed money and owed money to various employees in the machine shop This was causing problems because DeBrugge did not pay them back when he promised. This, in turn, created hard feelings between the men with whom DeBrugge was working. Additionally, DeBrugge's attendance record was extremely bad for a new employee. DeBrugge in fact had been warned about his absenteeism several times before his layoff. DeBrugge worked in the machine shop where they needed good workers and yet it was plain to see that during his probationary period he would not work out because of all the aforementioned factors. It should be noted that in connection with DeBrugge, as stated above, he did not sign a union card or participate in union activities in any way whatsoever. In fact there is no showing in the record that he was at all interested in the Union. Another employee in the machine shop who was laid off was Frank Ewing, a nephew of McVay. Ewing was also in his probationary period but he simply could not get his work out. He could not keep up with the other employees who were doing the same type of work. He showed no interest in this work. He was given instructions on how to do his work upon several occasions by McVay, the superintendent. McVay complained to Shaffer about the quality of Ewing's -work as being very sloppy; this despite the fact that Ewing was a relative of McVay Thus Ewing was chosen for layoff The remaining employee who was laid off was employee John Brooks. He was assigned to the grinding department. The complaint that McVay had about Brooks was that he simply did not do his work either Shaffer talked to McVay about Brooks and he also talked to Brooks immediate supervisor, Ira Fair. Nor was Ewing's attendance record very good as a probationary employee. It should have been a lot better. He had been instructed many times about this and about how his work should be done, but had shown little interest. Thus it was, that after discussion with various supervisors, including McVay, Fair and Gruebmeyer, Shaffer reached a decision as to these six employees. This decision was reached in the first week of December at a meeting with McVay. Shaffer, according to his testimony, wanted to lay off the six immediately but McVay pointed out that Christmas was coming in about 3 weeks. McVay felt that it would be a bad thing to lay employees off at that time. Such a layoff would reflect on the Company. It would just not be right to lay these men off before Christmas. Accordingly, Shaffer considered what McVay advised him to do and agreed with McVay that he would wait until the 26th of December to lay the men off. It should be noted that neither Vaughn nor Harvey Green who were present at the hearing, or any of the other employees who were discharged, testified in rebuttal to any of all this testimony given by Shaffer and McVay. Thus, their testimony remains totally uncontroverted in any way upon the record." IV. CONCLUDING FINDINGS AS TO THE LAYOFFS Counsel for the General Counsel contends that the knowledge which Shaffer gained through his conversation with Union Secretary Perk that Vaughn and the two Greens had attended the Union's Christmas party, together with the timing of the layoffs, the next business day after gaining such knowledge, plus the very apparent opposition to the Union of Superintendent McVay are sufficient to establish the Respondent's antiunion animus, and that the layoffs were necessarily motivated by this animus and were therefore discriminatory within the meaning of the Act. He further contends that the Respondent's proffered reasons for the layoffs were merely afterthoughts, not told to the alleged discriminatees at the time of the layoffs, and, therefore, pretextual in nature; and do not represent the true, discriminatory motivating cause for the layoffs. The Respondent, on the other hand, argues that the layoffs were the result of solely economic considerations and that the decision to layoff the employees involved was reached long before the Respondent had any cause to suspect there was any union activity in its plant. I find merit in the Respondent's contentions. Although under most circumstances the testimony of McVay and Shaffer to the effect that between them they decided to effectuate the post-Christmas layoff during the first week in December would be suspect inasmuch as such testimony could hardly be refuted or substantiated beyond the words of the individual witnesses, and because such testimony could not be cross checked by investigation on the part of the opposition, I nevertheless here credit it because other, more objective, evidence supports the testimony in question. Thus, there is in evidence substantial documentary proof that the Respondent was, indeed, in a precarious financial situation, at least insofar as its cash balance was concerned. The General Counsel argues that this situation was brought on largely by a single event, the move of the Respondent from its old to its new plant and the cost of moving and of the erection of the new building. This may be so. However, this does not mean that the Respondent could not have been in a "To bolster Shaffer's testimony as to his decision not to lay the men off until after Christmas, the Respondent placed Mrs. Shaffer on the stand She testified that her husband came home one noon for lunch in a rather moody condition and she , quite contrary to custom, asked him what was wrong at the plant He told her that they were going to have to lay some men off after Christmas Although I consider such testimony to be self serving in the sense that there is no way in which it can be controverted, I nevertheless credit this particular testimony because of the fact that I was impressed by the apparent sincerity of Mrs Shaffer and because all of the Shaffer-McVay testimony regarding the reason for the layoffs and the selection for layoff remained uncontroverted PEERLESS BREAD MACHINERY CORP. 357 condition temporarily in which it found it necessary to retrench. Additionally, as noted above, none of the testimony of both McVay and Shaffer regarding the inefficiency and poor attendance records of the employees involved was disputed in any way by rebuttal on the part of witnesses for the General Counsel who were present during the hearing and heard the testimony of McVay and Shaffer to the effect that the employees involved were not desirable employees. Thus, although Shaffer testified that Harvey Green had too often been seen in the supply area where he had no business to be, Green, who was present, was not called in rebuttal to refute this testimony. Thus most of the testimony which could have been controverted by witnesses was not. This, in and of itself, lends credence to the balance. Moreover, with regard to the timing of the decision to discharge the six employees I note specifically the testimony of Mrs. Shaffer. She did not hesitate to admit, on cross-examination, that part of the conversation between her husband and Perk was not overheard by her. She readily admitted that the names of Vaughn and the Greens could have been mentioned by Perk to Mr. Shaffer. Accordingly, and from my observation of Mrs. Shaffer, I am convinced that there is truth in her testimony to the effect that her husband came home sometime early in December and told her, upon her question, that some of the employees would have to be laid off but that such layoffs would be deferred until after Christmas. Thus, that Respondent had good lawful reason to select these employees for layoff is unrefuted on the record. Also, the fact that the decision to lay them off occurred before Respondent had knowledge of any union activity in the plant, I find is established. But, even assuming that the Respondent's testimony in regard to the date of the decision to layoff employees is not accepted, there is other reason to find that the Respondent's motivation was not unlawful. Thus, accepting Perks interpretation of the pre-Christmas conversation between Shaffer and Perk completely as Perk told it, the most active union adherent, Billy Sergent, was also disclosed as having attended the Christmas party. If anything, McVay's anger against Sergent was greater than any feeling he might have had toward the other employees laid off. This would be so because, admittedly, there was a difference in relationship between McVay and Sergent than between McVay and the other employees. Indeed, McVay admitted on the stand that he was disappointed with Sergent and had felt that Sergent was figuratively stabbing him in the back after all that McVay had done for Sergent. This, it would seem to me, would indicate that if anybody would have been discriminatorily selected for layoff it would have been Billy Sergent, who, although not heretofore related, solicited most of the authorization cards that were required by the Union. This factor, together with the fact that neither DeBrugge or Ewing had participated in union activities in any way and had not even signed cards, and with the additional factor that Ewing was a nephew of McVay's, tend to show that the selection was not made on a discriminatory basis. While it is I rue that the timing may have led to some suspicion that the layoffs were discriminatorily motivated inasmuch as they occurred on the next business day following the gaining of knowledge by Shaffer that Vaughn and the Greens had attended the Union Christmas party, this suspicion is not sufficient to establish unlawful motivation in the light of all the other factors heretofore mentioned. Accordingly, I find and conclude that the Respondent's financial position at the time of the layoffs was not impressive. In the circumstances, cutting the work force to achieve overhead savings in reduced salaries appears to have been an appropriate form of economic retrenchment. Then, in view of the fact that the, most active union adherent was not laid off and that two of the individuals laid off took no part whatsoever in any union activities, together with the fact that the Respondent had good reason to select each of the individuals that it did select for layoff, leads me to find and conclude further that the persons selected for layoff were not discriminated against in any manner within the meaning of the Act. Accordingly, I shall recommend that that portion of the complaint which alleges that the Respondent discriminatorily laid off six employees be dismissed D. The Alleged Unlawful Refusal to Bargain 1. The appropriate unit It is conceded, and I find, that all production and maintenance employees at the Respondent's Sidney, Ohio plant, excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. The majority issue The General Counsel introduced into evidence 20 signed union authorization cards. These cards read as follows: YES, I WANT THE IAM I, the undersigned, an employee of (Company) hereby authorize the International Association of Machinists and Aerospace Workers (TAM) to act as my collective bargaining agent with the company for wages, hours and working conditions. It is my understanding that I will be invited to join the IAM. NAME (print) ADDRESS (print) DATE CITY DEPT SHIFT PHONE. Classification SIGN HERE X NOTE: This authorization to be SIGNED and DATED in EMPLOYEES OWN HANDWRITING. YOUR RIGHT TO SIGN THIS CARD IS PROTECTED BY FEDERAL LAW. I find and conclude that these cards, on their face, spell out clear and unambiguous language and authorization for the Union to represent the signer for collective bargaining. However, for reasons hereinafter set forth, I find that not all of the cards can be relied upon as a basis for establishing the Union's alleged majority Counsel for the General Counsel and the Respondent agree that there were at least 29 employees in the unit as 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the date of the demand which was made via telephone call from Union Business Agent Daniel Berryhill to Respondent's President Roscoe Stump on the night of December 26, 1967, at about 6 30 p m In addition to the foregoing, the General Counsel contends that the six dischargees involved herein, namely, John Brooks, Michael DeBrugge, Frank Ewing, Donald Green, Harvey Green and George Vaughn should be included in the unit. I do not agree Inasmuch as I have already found that these individuals were lawfully laid off in the afternoon of December 26, 1967, and, inasmuch as the request for recognition and bargaining was not made by Berryhill upon Stump until some hours later, I find and conclude that these individuals cannot be included in the appropriate unit as of the time of demand, or thereafter I further find and conclude that cards signed by any of these individuals cannot be used in determining majority The inclusion of Tuley Maxwell in the unit is also in dispute. Maxwell was hired by Respondent around November 28 and worked in the welding department. On December 26, 1967, Maxwell injured his hand while working on his automobile and as a result was unable to work. The following day, December 27, his sister, in his presence, telephoned McVay and told the latter that her brother would be off from work for a couple of days because of the injury. Sometime later in the week, Maxwell still unable to work, was down town in a tavern and was told that he had been laid off. He thereupon telephoned McVay on Friday, December 29, to find out if there was any truth to the rumor During the telephone discussion McVay assured him that he had not been laid off. He then invited Maxwell to visit him at the plant where they could have further discussion. Shortly thereafter Maxwell visited McVay at the plant. McVay then admitted that he did not lay off Maxwell but claimed that he thought Maxwell had quit his employment. Maxwell thereupon reminded McVay that McVay had been advised of Maxwell's injuries which prevented him from performing as a welder. McVay neither admitted nor denied the telephone conversation with Maxwell's sister but told Maxwell that he could not take him back until this "union was straightened out."' 4 From the foregoing it can readily be seen that at least as late as the evening of December 26, 1967, at 6 30 thereof, the time of the demand upon the Respondent for recognition and bargaining, the Respondent had not as yet made up its mind that Maxwell was no longer an employee. Accordingly, therefore, I include Maxwell in the appropriate unit and shall include his card as one of those to be counted in determining whether the Union enjoyed majority status at the time of the demand. Another employee whose inclusion or exclusion in the unit is in contest is Philip Steenrod. The only two items of evidence with regard to this individual are that his name was not contained on the list given to the General Counsel of the Respondent's employees during the investigation of this case. His name, however, did appear on the so-called "Excelsior Underwear" list used at the time of the election The only testimony offered by either party with regard to Steenrod was that of Shaffer, which was uncontroverted, to the effect that Steenrod was being carried on the Respondent's payroll but was on sick leave. "From the credited testimony of Maxwell McVay in testifying neither admitted nor denied nor, in fact , touched upon this subject Accordingly, because Maxwell's testimony went uncontroverted , I credit Maxwell fully in this regard Inasmuch as Steenrod's name appeared on the Excelsior list and because the only testimony with regard to him was uncontroverted to the effect that he was on Respondent's payroll but on sick leave at the time of the election, and had been for sometime before that, I find and conclude that Steenrod should be included in the unit I therefore include him." Thus, the unit consists of the 29 agreed employees plus Tuley Maxwell and Philip Stenerod This constitutes a total of 31 employees As stated above, the Union obtained 20 signed authorization cards as of the date of the demand Eliminating from these cards the cards of George Vaughn, Harvey Green, Donnie Green and John Brooks whom I have already eliminated from the unit on the basis that they were laid off prior to the demand, the Union is left with 16 signed authorization cards out of a total of 31 employees giving the Union a bare majority of 16 out of 31. However, the Respondent contends that some of the 16 remaining cards were solicited on the basis of fraudulent representations made by the solicitors to the card signers and that, therefore, they cannot be used as a basis for establishing the Union's majority. These contested cards will be treated in order Donald Fair. Fair's card was solicited by James McClellan who testified that on December 18 or 19, he met with Fair in the vicinity of the "Jig" and asked Fair to sign a card. Fair is the son of Supervisor Ira Fair Fair agreed to sign provided that he was not the first one. McClellan assured him that he would not be the first one to sign since McClellan had already done so. Thereupon Fair took it and returned the completed card to McClellan. On cross-examination McClellan remained firm that he did not say anything to Fair with regard to percentages of signatures needed to get an election Fair testified that McClellan told him that all he needed was 16 signatures in order to have an election and that was all that was said and that he, Fair then signed the card and gave it back. Pursuant to a leading question, put to him by Respondent's counsel, (the question was asked whether the card was "dust" to get an election), Fair answered, "Just to get an election." Fair, upon cross-examination, stated that he did not read the card; that he believed that the signature on the card was his, that he had a high school education and was perfectly capable of reading the card; and that he had talked to no one about the card including Respondent's counsel or anybody from Respondent's side of the case. On the basis of my observation of the witness and on the basis of Fair's answer to the question whether "the card was just to have an election," to which he answered in haec verba, I find that Fair's testimony is not credible especially since he stated that he did not read the card and merely signed it because he was asked to sign it, and that he often signed things he was just asked to sign. Additionally, his denial that he never spoke to anyone about this matter is not believable inasmuch as he was called by Respondent Accordingly I accept Fair's card as a card to be counted to resolve the majority question "The Respondent would further argue that Frank Ewing, one of the alleged discrimmatees has a reasonable chance and expectancy of being recalled should therefore be included in the unit I find that the testimony with regard to the possible rehiring or reinstatement of Ewing is so tenuous as not to establish that Ewing has a reasonable chance of reemployment I therefore do not include him in the unit PEERLESS BREAD MACHINERY CORP. Robert Stephens. Stephens card was solicited by Bill Sergent. Apparently Stephens is unable to read very well. According to Sergent, he asked Stephens how the latter felt about the Union and Stephens answered that it would be the best thing for Peerless. Stephens then related that for many years he had been working at Peerless and making very small wages. Then according to Sergent Stephens asked Sergent for a card and Sergent gave him one. Sergent asked Stephens whether the latter understood the card and Stephens asked Sergent to read the card to him. Sergent did so reading the card fully. Stephens then signed the card, handing it back to Sergent. Stephens testified that Sergent came to him at the water fountain and asked him if he wanted to sign a union card. Sergent told Stephens that if "we get 50 or 5I percent of the cards signed there would be a vote; that the cards didn't mean nothing that there would be a vote and see if the Union would come in." In answer to the General Counsel's leading question whether the only reason Stephens signed the card was to get a vote, Stephens answered "Yes." Also upon a leading question from the General Counsel Stephens testified that Sergent told him that if it came to a vote he could still vote either way. He said Sergent told him that there would be a secret ballot and nobody would know how he voted. I have heretofore refused to credit certain portions of the testimony of Bill Sergent. I observed that Stephens however, appeared to be a most reliable witness on the witness stand. I credit his version of the solicitation of the cards While he may not have been able to read or write he appeared to be intelligent and knew what he was talking about.' 6 The Board has recently stated in affirming its original views on the circumstances under which it will find fraud in the solicitation of union cards:'7 Thus the fact that employees are told in the course of solicitation that an election is contemplated, or that a purpose of the card is to make an election possible, provides in our view insufficient basis in itself for vitiating unambiguously worded authorization cards on the theory of misrepresentation. A different situation is presented, of course, where union organizers solicit cards on the explicit or indirectly expressed representation that they would use such cards only for an election and subsequently seek to use them for a different purpose; i.e., to establish the Union's majority independently. In such a situation, the Board invalidates the cards for majority computation, because the nature of the representation is such as to induce a conditional delivery for a restricted purpose, and there is apparent fraud when the restriction is exceeded. The Board in a footnote to, this quotation stated. The foregoing does not of course imply that a finding of misrepresentation is confined to situations where employees are expressly told in haec verba that the "Another reason for discrediting Sergent in this regard is that during all of his testimony regarding the solicitation of cards he insisted that he never mentioned an election or a vote to any of the persons whom he solicited. He was specifically contradicted not only by Stephens however but also by Hobart Green, Ruel Woods and McClellan Under these circumstances Sergent's obvious enthusiasm for the Union together with the contravention of his testimony by other General Counsel witnesses, leads me to believe that Sergent's testimony is unreliable as to the solicitation of cards. "Levi Strauss & Co., 172 NLRB No 57 359 "sole" or "only" purpose of the cards is to obtain an election. The Board has never suggested such a mechanistic application of the foregoing principles, as some have contended. The Board looks to substance rather than form. It is not the use or nonuse of certain key or "magic" words that is controlling, but whether or not the totality of circumstances surrounding the card solicitation is such as to add up to an assurance to the card signer that his card will be used for no purpose other than to help get an election." Applying these principles to the manner in which I have above found that Stephens' card was solicited by Sergent, I find and conclude that there was at least an indirectly expressed representation that the card would be used only for an election ("the cards didn't mean nothing") and that it was subsequently sought to be used for a different purpose, that is, to establish the Union's majority independently. I therefore find that there was misrepresentation in the solicitation and will not count Stephens' card in deciding whether the Union was designated by a majority of the Respondent's employees. Leamon Spradlin. Stephens solicited Leamon Spradlin's card. Spradlin did not remember what Stephens had told him when he asked Spradlin to sign the card Stephens, on the other hand, testified that he told Spradlin what Sergent had told him, namely, that the cards didn't mean anything; all the cards were for were to get a vote. Under these circumstances and for the same reason that I found Stephens' card to be incompetent to establish the Union's alleged majority, I find and conclude that Spradlin's card cannot be used for such purpose. Duane Studevant. Studevant testified that his card was solicited by Morris Hickerson. At one point in his examination, Studevant testified that Hickerson asked him to sign if he would and if he was interested in having the Union come in. Then, Studevant testified, Hickerson told him they had to have the authorization cards because "they would have to bring it to a vote or something." But following this Studevant admitted he could not remember the exact words that Hickerson used. Studevant also testified he read the card after Hickerson gave it to him, filled it out himself and signed it himself. On further direct examination Studevant testified that Hickerson explained to him that they were trying to get the Union in, that the card did not mean anything except that "they have to have so many cards before there could be a vote." Again Studevant admitted that he 'did not actually remember the term "vote." Hickerson did not testify Although there was some reference in Hickerson's representations to Studevant to the effect that there was going to be an election, I find that the testimony of Studevant was rather vague and uncertain and in view of the fact that he admitted that he read, filled out and signed the unambiguously worded card, I find and conclude that Studevant did not sign the card pursuant to any misrepresentation but rather because he wanted union representation Accordingly I find and conclude that Studevant's card should be counted for majority computation." "Supra, fn. 7. "The Respondent also complains that the cards of Hobart Green and Omer Brown should not be counted , in the case of Green because of misrepresentation, and in the case of Brown because the card was not properly authenticated. However, I find that Brown's card was properly authenticated and that in the case of Hobart Green the only testimony of Green that would show that there was some reference to a vote was when Sergent solicited his card he said words to the effect that "this was not a vote or nothing " I do not find this sufficient to invalidate the cards 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus, I find and conclude that the cards of Robert Stephens and Leamon Spradlin cannot be used for majority computation. This being so the Union's showing of 16 cards is reduced to 14. Inasmuch as I have theretofore found that there were 31 employees in the unit as of the date of the demand, I further find and conclude, on the basis of all of the foregoing, that the Union did not enjoy majority representation at the time of its demand or at any time thereafter Accordingly, I find and conclude, and it follows, that the Respondent was not under obligation to bargain with the Union on the date of the demand or at any time thereafter. In other words, I find and conclude that the Union had never obtained majority status and that therefore the Respondent was under no compulsion to bargain with it.20 V. THE OBJECTIONS As detailed earlier in this Decision, the Union's objection No. 1 to the conduct affecting the results of the election, is, in essence, the same as the allegations of interference, coercion and restraint set forth in the complaints herein. These allegations I have heretofore found to be meritorious insofar as Supervisor McVay's activities are concerned. I have heretofore found that McVay threatened and interrogated employees on December 26, 28, and 29, 1967. The Board has held that similar unfair labor practices which were violative of Section 8(a)(1) of the Act are, a fortiori, conduct which interferes with the exercise of a free and untrammelled choice in an election." Accordingly, upon these findings alone I would recommend that the election be set aside. However, I note that the last unfair labor practice which I find, namely, the conversation between McVay and Maxwell in which McVay asked Maxwell if the latter had signed a union card, occurred on Friday, December 29, 1967. On this same day, Friday, December 29, 1967, the Union filed its petition There were no further Respondent infractions from that date until after the holding of the election. The above incidents are the only employer conduct found by the undersigned to have occurred. And the only one of these that could have occurred after the filing of the petition was the interrogation of Maxwell on the 29th which could have occurred either before or after the exact time of the filing of the petition. The election was not held until February 27, 1968, approximately 2 full months after the last of these incidents. Under all of these circumstances, I find that the three incidents here involved, occurring more than 2 months before the election, the last one occurring on the date of the petition and consisting of a simple interrogation are too isolated in point of time and too insubstantial to warrant setting aside, the election. Therefore, I recommend that the objections be overruled and that the Board find that the Union has failed to secure a majority of the valid votes cast. I further recommend that the results of the election should be certified. 22 "J P Stevens and Co, Inc, 157 NLRB 869, 877 For the foregoing reasons I do not find it necessary to discuss the details of the , Union's demand for recognition and, the reasons for Respondent's refusal to recognize and bargain with the Union "Playskool Manufacturing Company , 140 NLRB 1417 "See West Texas Equipment Company, 142 NLRB 1358 VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE , The Respondent's activities found to be unfair labor practices in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VII. THE REMEDY Having found, as set forth above, that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action, set forth, below, designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Peerless Bread Machinery Corporation, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 4. The Respondent has not discriminatorily discharged any of its employees within the meaning of Section 8(a)(3) of the Act 5 By refusing on December 28, 1968 and thereafter, to bargain collectively with the aforesaid labor organization, the Respondent has not engaged in and is not engaging in unfair labor practices, within the meaning of Section 8(a)(5) and (1) of the Act. 6 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10(c) of the Act, it is recommended that the Respondent, Peerless Bread Machinery Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating its employees; threatening employees with loss of employment if they engage in union activities, and threatening employees that they are on a blacklist for engaging in union activities. (b) In any like or similar manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining and mutual aid or protection, and to refrain from any and all such activities except to the extent provided in Section 8(a)(3) of the Act. 2 Take the following affirmative action which, I find, will effectuate the policies of the Act. (a) Post at its plant at Sidney, Ohio, copies of the notice attached hereto and marked "Appendix."23 Copies "In the event that this Recommended Order is adopted by the Board the words "the Decision and Order" shall be substituted for the words "the PEERLESS BREAD MACHINERY CORP. of said notice, on forms to be provided by the Regional Director for Region 8, shall, after being duly signed, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced or covered by any other material. (b) Notify the Regional Director for Region 8, in writing, within 20 days from the date of service of this Recommended Order, what steps Respondent has taken to comply herewith.14 IT IS ALSO RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. IT IS FURTHER RECOMMENDED that the results of the election held on February 27, 1968, be certified. Recommended Order of a Trial Examiner" in the notice. In the additional event that the Board's Order is enforced by a decree of the United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "the Decision and Order " "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read . "Notify said Regional Director, in writing, within 10 days of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: 361 WE WILL NOT coercively interrogate our employees concerning their union activities or sympathies. WE WILL NOT threaten our employees with loss of employment because of their activities in or on behalf of Lodge No. 2167 of the International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization. WE WILL NOT threaten to place our employees on a "blacklist" if they should engage in activities on behalf of the above-named Union or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any and all such activities except to the extent provided in Section 8(a)(3) of the Act. PEERLESS BREAD MACHINERY CORPORATION (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1695 Federal Building, 1240 East 9th Street, Cleveland, Ohio 44199, Telephone 522-3738.