Farm Fans, Inc.

FARM FANS, INC. Farm Fans, Inc. and Local 503, Sheet Metal Workers, International Association, AFL-CIO. Cases 25-CA-2979 and 25-RC-3662 February 25, 1969 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On September 3, 1968, Trial Examiner Robert L. Piper issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices" alleged in the complaint and recommended dismissal as to them. Thereafter, General Counsel and Respondent filed exceptions to the Decision; General Counsel also filed a brief in support of his exceptions, and Respondent a brief in support of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings 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, the briefs, and the entire record in the cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent, Farm Fans, Inc., Indianapolis, Indiana, its officers, agents, successors, and assigns shall take the action set forth in the Trial Examiner's Recommended Order. [Text of Direction of Second Election' omitted from publication.] 'An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 25 within 7 days after the date of issuance of the Notice of Second Election. The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. Excelsior Underwear Inc., 156 NLRB 1236 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 723 ROBERT L. PIPER, Trial Examiner: On November 21, 19671 Local 503, Sheet Metal Workers International Association, AFL-CIO (hereinafter called the Union), in Case 25-RC-3662 filed a petition for a representation election among certain employees of Farm Fans, Inc. (hereinafter called Respondent). On the same day the Union filed charges against Respondent alleging discrimination by the termination of four named employees and interference by interrogation. Thereafter the Union and Respondent entered into a stipulation for certification upon consent election , specifically including group leaders in the appropriate unit, approved by the Regional Director , December 4. On December 21 said election was held. Nineteen ballots were cast for and 32 against the Union . In addition there were four challenged ballots. On December 28 the Union filed timely objections to conduct affecting the results of the election . On January 30, 1968, the Union filed an amended charge. On January 31, 1968, the Regional Director issued a complaint in Case 25-CA-2979. The complaint, as later amended, alleged that Respondent had engaged in unfair labor practices proscribed by Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (hereinafter called the Act), by various specified acts of interference, restraint and coercion and by the discriminatory termination of five named employees. On February 13, 1968, the Regional Director issued his Report on Objections, Order Consolidating Cases and Notice of Hearing, overruling all of the objections except objection (b) and the additional objectionable conduct alleged in paragraphs 5 and 6 of the complaint, in Case 25 -CA-2979, and directing that the cases be consolidated for hearing and decision before a Trial Examiner and that thereafter Case 25-RC-3662 be transferred to and continued before the Board. On March 14, 1968, the Regional Director amended his aforesaid Order Consolidating Cases to include as additional objectionable conduct the additional allegations of interference , restraint' and coercion in the complaint as amended March 8 andl 13, 1968, except that the objections consolidated for hearing with the complaint were limited to the period from November 21 to December 21.2 Respondent' s answer dated February 8, 1968, as amended, denied the commission of any unfair labor practices. Pursuant to due notice , this consolidated proceeding was heard by the Trial Examiner at Indianapolis, Indiana, between March 18 and 29, 1968. All parties were represented and accorded all rights of due process. The General Counsel and Respondent filed briefs. The General Counsel's unopposed motion to correct the official transcript of proceedings is hereby granted.; Upon the entire record in the ', case and from my observation of the witnesses , I make^the following: 'All dates hereinafter refer to 1967 unless otherwise indicated 'In the light of the Board's holding in Ideal Electric & Manufacturing Co , 134 NLRB 1275 (1961), only that conduct occurring between November 21, the date of the filing of the petition, and December 21, the date of the election, is considered in connection with objections to the election. 3[Corrections omitted from publication.] 174 NLRB No. 105 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent is an Indiana corporation engaged in the manufacture, sale and distribution of grain handling and grain drying equipment and related products, with its office and principal place of business at Indianapolis, Indiana. During the past year it purchased and received in Indiana more than $50,000 worth of goods and materials directly from points outside the State of Indiana, and sold and shipped more than $50,000 worth of finished products directly to points outside the State of Indiana. Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. IL THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. IIL THE UNFAIR LABOR PRACTICES A. Introduction and Issues This proceeding involves alleged discrimination by the discharge of one employee and the layoff of four employees, all prior to the filing by the Union of the petition for a representation election, alleged interference, restraint and coercion, and objections to conduct affecting the election. As noted above, the allegations of the complaint with respect to interference, restraint, and coercion and discrimination are in substance the same as the objections to conduct affecting the election, except that the latter are limited to the period from November 21 to December 21. The issues as framed by the pleadings and the objections are: (1) discriminatory discharge of an employee on November 10; (2) discriminatory layoff of four employees on November 17; and (3) interference, restraint,- and coercion by (a) interrogating employees concerning union activities, (b) threatening employees with discharge, layoffs, loss of advancement or promotion, loss of overtime, closing the plant, or other reprisals because of their union activities, (c) promising employees economic and other benefits, including promotions and no layoffs, for refraining from joining or supporting the Union, (d) informing employees that their activities were being kept under surveillance, (e) telling employees that other employees had been laid off because of their union membership or activities, and (f) giving employees the impression of current and prior surveillance of their union activities. B. Plant Department and Supervisory Structure Respondent is engaged in the manufacture of grain drying equipment, primarily fans and heaters, and grain handling equipment. Respondent's grain drying equipment is designated as Farm Fans products and its grain handling equipment is designated as American Standard products Respondent's production plant is divided into four principal sections or units: sheet metal fabrication and welding, machining (milling, drilling, and cutting), painting, and assembly. Each of these four sections is divided into two departments, so that Respondent has eight departments numbered consecutively. Thus, the sheet metal fabrication and welding section consists of departments 1 and 2, the machining section consists of departments 3 and 4, the painting section consists of departments 5 and 6, and the assembly section consists of departments 7 and 8. The Farm Fans products were produced in the odd numbered departments, while the American Standard or grain handling products were produced in the even numbered departments. In addition, during 1967 Respondent introduced and produced a special piece of equipment, called a Dry-O-Vator, which was primarily a grain handling type of equipment but, because of its size and uniqueness, was made in several special departments, particularly assembly. In general it was produced in the American Standard or even numbered departments. However it had two separate and distinct assembly areas, together designated as department 8, Dry-O-Vator. This department consisted of two physically separate areas, comprising assembly of the power train and assembly of the augers. Paul Sindlinger was Respondent's president and principal official. James E. Langdon was the plant manager Langdon's assistant in charge of production control was Charles Hibbard. The eight departments and the separate Dry-O-Vator assembly areas were under the supervision of the following foremen or supervisors- Herman Snyder was in charge of departments 1, 2, and 4. Burley Hartsock was the acting supervisor of department 3, because of the illness of regular supervisor John Tracy. Ralph Sindlinger was the supervisor of departments 5, 6, 7, and 8, Dry-O-Vator only. Robert Ondrusek was the supervisor of department 8. Under each of these supervisors were employees called group leaders, assigned primarily on a functional rather than a departmental basis. Under Snyder, William Cook was the group leader of the sheet metal fabrication employees in departments 1 and 2, Fred Mounce was the group leader of the welders in departments 1 and 2, and Pat Wallace was the group leader of the employees in department 4. Hartsock had been the group leader of department 3, but because he was acting supervisor in the absence of Tracy this department did not have a group leader as such during the relevant period. Under Ralph Sindlinger, Charles Joseph Buckel was the group leader of the painters in departments 5 and 6, William Russell was the group leader of assembly department 7 and William Carter was the group leader of the employees in department 8, Dry-O-Vator, auger assembly. Under Ondrusek, Larry Huston was the group leader of department 8, assembly of American Standard products. C. The Supervisory Status of Fred Mounce The complaint alleged that Mounce, the group leader of the welders in departments 1 and 2, was an agent and a supervisor within the meaning of the Act, and contained some nine allegations of interference, restraint and coercion by him. The record establishes that group leaders in general are not supervisors within the meaning of the Act, but, as the term implies, are merely leaders of small groups of employees under the direct supervision of the supervisor in charge of the particular department. At the hearing herein, the General Counsel stipulated that all group leaders, with the exception of Mounce, were employees and not supervisors. The Union's representation petition specifically requested the inclusion of group leaders as employees within the appropriate unit. Thereafter the Union and Respondent entered into an agreement for a consent election, approved by the FARM FANS, INC. Regional Director, providing, inter alia, that all group leaders were employees in the appropriate unit and eligible to vote. Thereafter the Union and Respondent, as required by the Stipulation for Certification Upon Consent Election, furnished the Regional Director with an eligibility list of voters, including group leaders and Mounce specifically. All of the group leaders, including Mounce, voted without challenge in the election. Nevertheless, the General Counsel contends that the Regional Director's approval of the agreement for a consent election is not binding upon the General Counsel and that Mounce was a supervisor within the meaning of the Act. Respondent contends, because the matter was "decided" in the prior representation case by the Regional Director's approval of the stipulation for a consent election which included group leaders as employees within the voting unit, that Mounce's supervisory status, absent newly discovered or previously unavailable evidence, cannot be relitigated in a subsequent complaint case, primarily in reliance upon Section 102.67(f) of the Board's Rules, which provides, inter alga: Failure to request review shall preclude such parties from relitigating, in any related subsequent unfair labor practice proceeding, any issue which was, or could have been, raised in the representation proceeding. [Emphasis added.1 However, while this principle is well established with respect to subsequent refusal-to-bargain cases,4 the weight of authority seems to be contrary to Respondent's contention and holds that subsequent unfair labor practice proceedings involving Section 8(a)(1) or (3) as distinguished from Section 8(a)(5) are not related unfair labor practice proceedings.' Hence the issue of Mounce's supervisory status was litigated and is decided herein. During the relevant period, Mounce was the group leader of approximately 10 welders in departments 1 and 2 under the supervision of Snyder. Snyder had two other group leaders under his supervision, Cook, the group leader of the fabrication employees in departments 1 and 2 and Wallace, the group leader of the employees in department 4. Although there were more employees in Mounce's group, in general the duties and responsibilities of Snyder's three group leaders were substantially the same and did not include the supervisory powers delineated in Section 2(11) of the Act. In general, Mounce's duties consisted of transmitting Respondent's work orders from Snyder to the welders by assigning work to the respective welder,, assisting and instructing new and inexperienced welders, bringing materials and supplies to the welders by means of a forklift, giving applicants for employment welding tests subject to Snyder's evaluation and final decision, generally seeing that the welding work progressed properly, and performing actual welding from time to time Respondent's welders were assigned specific booths or locations, and each was experienced and specialized in particular types of welding, so that Mounce, when he received work orders from Snyder, knew without instruction which welders should be assigned specific fobs. Only Snyder had the authority to move welders from one booth or location to another. Upon occasion Mounce 'Pittsburgh Plate Glass Co, v. N L R B., 313 U S. 146 (1941). 'Amalgamated Clothing Workers v N L.R B., 365 F.2d 898 (C.A.D.C. 1966); Stanley Air Tools, 171 NLRB No 48 ( 1968); Ross Porta-Plant, Inc, 166 NLRB No. 40 (1967), and Wagner Industrial Products Co, Inc, 162 NLRB No 114 (1967) 725 criticized employees for loafing and requested them to get back to work, but he had no authority to discipline them or act otherwise in such matters. The record establishes clearly that Mounce's assignment of work to the respective welders was merely routine and did not require the use of independent judgment. Mounce, as all of the group leaders, was paid by the hour, whereas Respondent's supervisors were salaried employees and participated in its bonus plan. While Mounce's hourly rate was slightly higher than that of Cook and Wallace, his employment seniority was far greater and he was clearly Respondent's most experienced and skilled welder. The record establishes that Mounce, as all of the group leaders, did not have the power to hire, fire, transfer, suspend, lay off, recall, promote, demote, reward, discipline, grant time off, adjust grievances or responsibly direct employees, or effectively recommend such actions. Their duties consisted primarily of transmitting work assignments, overseeing the flow of work and engaging in production work themselves. With the exception of the welding tests, discussed next, the duties of Mounce were no different than those of Cook and Wallace, Snyder's other group leaders, who the General Counsel stipulated were employees within the meaning of the Act. The welding tests which Mounce, pursuant to Snyder's orders, gave to applicants for hire do not establish that Mounce had the authority to effectively recommend hiring. The record establishes that any experienced welder could give such a test, but Snyder selected Mounce because he was the most experienced welder and more readily available because he was not regularly assigned to production work and a specific welding booth. In giving these tests, Mounce would provide the applicant with the necessary booth and tools and several parts to weld. In each instance Snyder brought the applicant to Mounce. During the course of the test Snyder normally passed by at least once to observe its progress. In any event, at its conclusion Mounce brought Snyder the welded parts for his inspection and evaluation. Snyder had many years of experience as a welder prior to becoming Respondent's supervisor. Mounce would advise Snyder of Mounce's opinion of the applicant's welding ability, upon occasion stating that the man was either a good welder or unable to weld. Nevertheless the record establishes that Snyder made his independent evaluation of the test, and upon occasion hired applicants who Mouncehad indicated could not weld and did not hire others who Mounce had stated were good welders. In addition, from time to time Snyder hired welders without requiring any test, based upon his knowledge of their skill and experience as welders. The General Counsel offered no proof whatsoever that Mounce was acting for Respondent as an agent, either authorized, adopted, ratified, condoned or otherwise, with respect to his alleged acts of interference, restraint, and coercion. The record establishes and I find that Mounce was not a supervisor within the meaning of the Act.' Moreover, assuming arguendo that Mounce was a supervisor, it is well settled that, in circumstances such as those present here, Respondent is not liable for any alleged antiunion conduct engaged in by him. Under facts substantially similar to those present here, the Board held: The Trial Examiner found initially, contrary to the contentions of Respondent, that Koenke, Rapp, and Beck at all relevant times were supervisors within the 'Ross Porta-Plant, Inc, 166 NLRB No 40 (1967) 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meaning of the Act and therefore that the Respondent was responsible for certain statements they made to employees. However, as found by the Trial Examiner, Rapp, Beck, and Koenke were included in the bargaining unit by stipulation of the parties and they voted in the election without challenge. The Board has held that an employer is not responsible for the antiunion conduct of a supervisor in circumstances such as these, in the absence of evidence that the employer encouraged, authorized or ratified the supervisor's activities or acted in such a manner as to lead employees reasonably to believe that the supervisor was acting for and on behalf of management. Since the General Counsel has made no such showing in this case, we find that the preelection conduct of Rapp, Koenke, and Beck is not chargeable to the Respondent.7 As in the Hy Plains case, the General Counsel here has offered no proof that Respondent encouraged, authorized or ratified Mounce's activities or acted in such a manner as to lead employees reasonably to believe that Mounce was acting for and on behalf of management. D. Chronology of Events During the latter part of October, Marvin Hardcastle, a welder hired by Respondent June 12, took some tentative steps to interest his fellow employees in union organization Hardcastle had been a chief steward of the Union where he had previously worked. On or about October 22 he spoke to a fellow employee, Donald Daniel, at his work station, about the desirability of seeking the Union's representation. Later that evening they continued the discussion during a game of pool. On several occasions between October 30 and November 6 Hardcastle discussed the same subject in ' the plant with another fellow employee, Carl Schwenzer. No one else was present during any of these conversations with Daniel and Schwenzer. According to Hardcastle, whose testimony I do not credit unless undisputed or corroborated, he began talking to his fellow employees about union organization during August. However, the only employees who testified they had been contacted by Hardcastle with respect to union organization were Schwenzer and Daniel, whose contacts originated 1 and 2 weeks respectively before November 6. During cross-examination Hardcastle flatly contradicted a number of statements which he had unequivocally made during direct examination. After first testifying that there was no reason why Mounce made out Hardcastle's employment application for him, he later admitted that he could not read. On direct examination he testified that Snyder gave him no reason at the time of his discharge. on cross-examination he admitted the contrary. After testifying on direct examination that Mounce took Snyder's place when the latter was on vacation, Hardcastle admitted on cross-examination that he could not recall Snyder being on vacation. After testifying on direct examination that he knew that Mounce attended supervisory meetings, on cross-examination he admitted the contrary After testifying on direct examination that he called Johnson approximately a month before Hardcastle was fired, contrary to the testimony of Johnson, on cross-examination Hardcastle testified that he could not remember when he called Johnson. Hardcastle contended that he contacted Donald Johnson, the Union's business representative, 'Hy Plains Dressed Beef, Inc.. 146 NLRB 1253 (1964) approximately a month before November 10. However Johnson, whom I credit, testified that Hardcastle first contacted him concerning organizing Respondent's employees and securing union cards on October 30. Johnson was well acquainted with Hardcastle as a former chief steward of the Union. Johnson said that Hardcastle's brother contacted Johnson near the end of October, advising him that Hardcastle was working for Respondent and that the employees were interested in being organized. Johnson told Harcastle's brother that the Union would be glad to assist and to have Hardcastle call him. Hardcastle called Johnson on October 30 and Johnson agreed to bring a supply of union cards to Hardcastle's brother's home that weekend. On or about November 4 Johnson delivered approximately 80 union representation cards to Hardcastle's brother, which Hardcastle picked up November 4. On Monday morning, November 6, Hardcastle started distributing these cards to other employees at the plant. Hardcastle gave Daniel, who became the other principal employee organizer, approximately 30 cards. During the day Hardcastle passed out from 10 to 15 other cards to individual employees, most of them fellow welders in the welding department. Hardcastle testified that he made every effort to conceal his activity from Respondent and that none of Respondent's supervisors had ever been present or observed him doing so. On the afternoon of November 6, Mounce, Hardcastle's group leader and brother-in-law, advised him that a union representation card had been found on the assembly line and asked him if he knew anything about it. After Hardcastle's reply that he did not, Mounce told him that if he had anything to do with it he had better watch himself because Respondent would fire him if it caught him at it. On November 6 Daniel passed out from 10 to 20 cards to other employees and to his knowledge was not observed by any of Respondent's supervisors. Daniel gave six or seven of the cards to Schwenzer, who passed them out that same day. Schwenzer signed his card the same day and returned it and several other signed cards to Daniel. Schwenzer testified that no one from Respondent observed him passing out cards, any of his organizational activities, or said anything to him about the Union. Hardcastle said he passed opt about 10 cards November 7 in various places in the plant while on his way to the restroom or to get material for his job. He said that he did not pass out any cards on, November 8, although he talked to employees about the Union that day. Hardcastle conceded that none of his organizational activity was observed by Respondent. The Union held its first organizational meeting on the evening of November 7 which was attended by four employees, Earl Markham, Clint Muse, Jr., Hardcastle, and Daniel. Hardcastle and Daniel notified the employees of the meeting. Hardcastle had given Daniel the signed cards Hardcastle had received. All told Daniel turned in approximately 15 signed cards to the Union on the evening of November 7. Daniel passed out about 10 cards on November 7. Thereafter Daniel continued to pass out one or two cards practically every day until November 17. To his knowledge no supervisor ever observed him doing so. On November 8 Daniel spoke to Thomas Davison, an employee in department 4, about the Union and gave him a card. Davison signed the card several days later at home and mailed it to the Union. Davison said that no one was present during their conversation, no one could have seen him receive the card or sign it, and that no supervisor ever FARM FANS, INC. 727 discussed the Union with him. Willie Golden, another welder, testified that Hardcastle gave him a card at his welding booth early on the morning of November 6. Golden later filled it out in the men's restroom and returned it to Hardcastle at his welding booth in the afternoon. According to Golden, he saw Snyder and Mounce walking along an aisle approximately 30 feet away when Hardcastle was placing the card, which was enclosed in an envelope, into his hip pocket, which also contained several other such envelopes. Snyder continued on to his office. Mounce came up and asked Hardcastle what he had in his pocket. Hardcastle replied that it was personal. Hardcastle, clearly the Union's leading protagonist, did not corroborate this incident and failed to testify concerning any such conversation with Mounce. Snyder denied having ever observed such an event. Mounce, not a supervisor, was Hardcastle's brother-in-law and confidant. Mounce helped Hardcastle originally to secure his job by filling out his employment application and recommending him to Snyder. In addition, Mounce filled out Hardcastle's daily job tickets because Hardcastle was unable to read I credit Snyder and find that no supervisor of Respondent observed Golden give Hardcastle an envelope containing a union representation card. On November 8, at quitting time, 3:30 p.m., Johnson and another union official distributed the Union's first handbill at the entrance to Respondent's parking lot for employees. The record establishes that this location was approximately 250 feet from the nearest corner of the plant, where Respondent's offices and conference room were located. As the handbilling of departing employees took place Hardcastle stopped to talk to Johnson for approximately a minute to a minute and a half. Daniel testified that he also spoke to Johnson for a few seconds, asking him to meet Daniel later at the grill because he had some signed representation cards. Johnson failed to corroborate any conversation with Daniel While there is no evidence that any official of Respondent was present during either conversation or observed the handbilling, it is a fair inference that Respondent was aware of the handbilling because of its location and duration. On the other hand, there is no evidence that individuals could be identified, let alone heard, at such a distance. On October 18 Hardcastle reported for work 55 minutes late. During the following week Hardcastle was absent (From work without notice or permission on Monday and Wednesday, October 23 and 25. On Friday, October 27, Snyder called Hardcastle to the office and warned him orally and in writing against such unexcused absences and tardiness, advising him that Respondent could not tolerate their continuation and that he would be discharged for repetition. Hardcastle promised to do better. While Respondent was unable to locate this written warning, it stands undisputed inasmuch as both Snyder and Haidcastle testified that it was in writing and that Hardcastle signed it. On the following Monday, October 30, Hardcastle reported for work 20 minutes late without notice or permission. The next day, Tuesday, he had another unexcused absence from work without notice. The following Friday he reported to work 14 minutes late without notice or permission. All of the foregoing was prior to the commencement of union activity in the plant on November 6. During the next week Hardcastle was 5 minutes late on Monday, November 6, on Tuesday, November 7, he was an hour and 32 minutes late without notice or permission, and on Thursday, November 9, he again failed to report for work without notice or permission. That afternoon Snyder requested Langdon, both orally and in writing, to discharge Hardcastle because of his repeated unexcused absences and tardiness following Snyder's warning on October 27 After Langdon checked Respondent's records to verify the facts, Hardcastle's timecard was removed from the rack and his discharge was authorized effective November 10. The following morning, Friday, November 10, when Hardcastle reported to work he discovered the absence of his timecard and accordingly checked with Snyder. Snyder informed him that he had been terminated because of his repeated unexcused absences and tardiness after having been warned and threatened with termination October 27 On direct examination Hardcastle testified that he did not ask for and Snyder gave him no reason for the discharge. On cross-examination, Hardcastle changed his testimony and admitted that Snyder informed him that he was fired because of his unexcused absences and tardiness after his warning. On November 9 Snyder hired Ronald Dockets on a temporary basis as a machine operator in department 4 at the request of and as a favor to Homer Dock ins,' Ronald's uncle, who was employed under Snyder as a welder. Snyder admittedly informed Ronald that the job would be temporary, because Snyder knew that the annual slack production season was approaching and that Respondent normally laid off employees at the termination of. its peak production season. Ronald received a union card at the plant on November 13, signed it at home and had his aunt mail it to the Union on November 14. He participated in several discussions about the Union with fellow employees in the welding department during break periods. He testified that no supervisor could have seen him sign the card or was present during any of the conversations in the plant, and that no supervisor ever questioned him about or mentioned the Union to him. On the afternoon of November 16 at quitting time officials of the Union again handbilled Respondent's employees at the entrance to the parking lot, to notify them of a scheduled union meeting that evening, the second held by the Union. Approximately 10 to 12 employees attended that meeting. On or about October 26 Paul Sindlmger went to South Dakota on a hunting trip and thereafter, to Danville and Chicago, Illinois, on business trips. As a result he was not at the plant between October 26 and November 7, returning to the plant on or about November 8. Respondent regularly prepared a monthly final' assembly and anticipated future production schedule of ' its Farm Fans products, which constituted' 85 percent of all of Respondent's production. The Farm Fans equipment was regularly built to inventory rather than to order. This schedule was personally prepared by Sindlinger, with the assistance of Langdon and Respondent's purchasing agent. It was regularly prepared around the first of each month. It consisted of a final schedule of products to be assembled for shipment during the current month, and a projected estimate of products to be produced during several succeeding months. This projection and assembly schedule had to be modified and amended each month because of the seasonal nature of Respondent's business and Respondent's information concerning potential sales and shipments in the succeeding months. Sindlinger, although assisted by Langdon and Respondent's purchasing agent, alone was responsible for the final decision as to the final assembly' schedule for the ensuing month and the projected production for the following months. As a result of Sindlinger's absence from the city, Langdon prepared the November schedule, terminating 728 DECISIONS OF NATIONAL LABOR RELATI ONS BOARD December 31, which when printed was dated November 2. On or about November 1 Respondent received a special order for 1,176 fans of a small type from the Mexican Government for delivery in late December, which order was in addition to its normal projected production of Farm Fans equipment for inventory. When Sindlinger returned to the plant on or about November 8, he reviewed the final assembly and projected production schedule prepared by Langdon, and realized that the assembly and production scheduled for November and December would not be sufficient to keep the employees in the plant busy and would necessitate a substantial layoff. As a result, Sindlinger prepared a document revising the November 2 schedule, listing the various items of Farm Fans equipment he felt Respondent should produce between the following Monday, November 13, and the end of February, 1968, in order to keep most of the employees busy and thus diminish the amount of layoff needed while at the same time not unduly increasing Respondent's inventory, which was subject to an Indiana personal property tax as of March 1 each year. He then presented this change in schedule to Langdon and advised him that, even though it represented an increase over the November 2 schedule prepared by Langdon, it still indicated a need for a layoff. This was true not only because of the substantial reduction in Farm Fans products to be produced vis-a-vis the peak months of September and October, but also because Respondent had substantially completed its production of American Standard products and the Dry-O-Vator for the year. It was Langdon's job to determine, from the revised final assembly schedule for the balance of November and the projected production schedule of Farm Fans equipment through February 29, 1968, which employees could be retained and which should be laid off. Because of the high rate of employee turnover in the plant, Respondent tried to retain a nucleus of 35 to 40 trained employees at all times. As of November 13, Respondent prepared a new final assembly schedule for the balance of November and projected production schedule running through February 29, 1968, based upon the revisions made by Sindlinger as of November 8, including both increases and decreases in the projected assembly and production of individually listed products, but comprising a net overall increase vis-a-vis Langdon's production schedule of November 2. In addition to the net overall increase in regular items of Farm Fans equipment reflected in the schedule of November 13, it also included the Mexican special order for 1,176 fans, which was not included in the schedule prepared by Langdon on November 2. Although this was a large single order in terms of numbers it did not represent a substantial factor in overall production hours, inasmuch as it required approximately only 1 hour of production working time for each fan. In spite of this unusual order, the record establishes that Respondent's total production hours declined from 12,000 in October to approximately 8,600 in November. Langdon used the revised schedule of November 13 to determine the amount of layoff and the departments from which employees should be laid off. Langdon selected the employees to be laid off as of the following Friday, November 17 Sindlinger was not aware of the number of or particular employees selected for layoff On November 17 at the completion of the workday Respondent laid off Ronald Dockins and Davison, employed in department 4 as general machine operators, Daniel, employed in department 3 as the blade balancer, and Schwenzer, employed in department 8, Dry-O-Vator, auger assembly section. Gary Martin had been employed by Respondent'' off and on since 1960, had worked for Respondent as its blade balancer from 5 to, 6 years, and had quit Respondent's employ August 25, approximately a month before Daniel was hired as Respondent's blade balancer. Martin resigned 1o accept employment elsewhere. Both Sindlinger and Langdon told him he could return any time he so desired. After Martin's resignation and before Daniel was hired, on one occasion Martin by special arrangement with Respondent returned to balance some blades which nobody, including the supervisor, had been able to balance. Around November 1, Langdon asked Martin if, in addition to his regular job, he would work nights for Respondent helping balance blades for the newly received Mexican order, but this, request was not repeated and did not bear fruit On or about the afternoon of November 17, Langdon called Martin and asked him if he would return to his former job as blade balancer full time. Martin agreed and quit his then employment because the job with Respondent paid more. Martin reported for work on Monday, November 20, and thereafter continued in Respondent's employ as its only blade balancer, Daniel having been "laid off" the afternoon of November 17. After Martin's return, he was able to balance some 90 percent of 50 to 60 blades which had been consigned to scrap because Daniel was unable to balance them. On November 21, the Union filed a charge against Respondent alleging that it had discriminatorily terminated Hardcastle on November 10 and Daniel, Dockins and Davison on November 17. The same day the Union filed its petition for a representation election. On December 1 the Union and Respondent entered into the Stipulation for Certification upon Consent Election, approved by the Regional Director on December 4. On or about December 2 Golden, one of the welders, had a conversation with Snyder, his supervisor Snyder asked Golden if he knew that the Union was trying to get in Golden replied that he did. Snyder then told Golden that because there was not enough work to keep the employees on one machine all the time, Respondent had been moving them from one machine to another, but that if the Union came in Respondent would be unable to do so and would have to keep each employee on the same machine and therefore would have to lay off some employees. Snyder further informed Golden that if the Union did not get in there would be no layoffs. Snyder did not deny the foregoing. On or about December 2, approximately 3 weeks after he was fired, Hardcastle was on a hunting trip with two of his brothers and Mounce, his brother-in-law Hardcastle asked Mounce how the Union's election campaign was progressing. Mounce replied that if the Union won, he would try to have Respondent put him on a salary so that he would not have to join the Union and that if it would not do so he was going to quit. Mounce also told Hardcastle that if he had been more friendly with management he could have gotten a raise without the Union. Mounce also said that if the Union won the election, Respondent was going to put on a night shift in order to eliminate overtime, or they might possibly move the plant. On or about December 7 Snyder had a conversation concerning the Union with Homer Dockins, a welder and Ronald Dockins' uncle. During the latter part of September Snyder had suggested to Homer the possibility FARM FANS, INC. of his being promoted to a second group leader of the welders and asked if he would be interested. On or about December 7 Snyder asked Homer how he felt about the coming union election, adding that the way things stood right then Homer had a good chance to become a group leader of the welders, but that if the Union won the election Snyder's hands might be tied and he could not promise Homer the job as a group leader. Snyder did not deny the foregoing. Homer was promoted by Respondent to a group leader on February 19, 1968. On or about December 10 Langdon approached Golden at his welding booth and asked him how he felt about the Union Golden replied that he did not know. Langdon then stated that some places might need a union and some places might not, he did not know. Langdon did not deny the foregoing. On December 11, the Union was furnished with an Excelsior list of employees provided by Respondent, which list was ultimately submitted by the Union and Respondent as the eligibility list for the election. Shortly thereafter the Union officials engaged in a series of evening visits to the homes of the employees to persuade them to support the Union. On or about December 15, Johnson and another union official visited Earl Markham at his home with respect to the forthcoming election. Markham was employed as a grinder in department 1 under Mounce and Snyder. The following day Langdon approached Markham at his work station and asked him if he had any visitors the previous night. Markham replied that he had. Langdon then asked what they had been talking about. Markham replied that the talk was the usual thing. Langdon did not deny the foregoing, and in addition admitted that he had learned through the "grapevine" that employees had been receiving "some visitors" evenings and that he had also asked Homer Dockins if he had any visitors the night before, to which Dockins had replied affirmatively. On or about December 19, according to Clint Muse, a welder, Langdon asked Muse at his welding booth if he felt they needed the Union in the plant. Muse replied that he did not know because he had not been there long enough. Langdon then said that he did not think the Union would help and that Respondent was treating everybody pretty well. Langdon asked Muse if there was anything he did not like about Respondent. Muse replied that he did not like to work overtime and wanted to work only 40 hours a week. Langdon replied that if the Union did not get in things were going to change after the first of the year. Langdon admitted a conversation with Muse at the time, but stated that he had asked Muse if he had seen the election notice on the bulletin board, Muse had replied affirmatively and Langdon had told him to be sure to vote Langdon, whom I credit, denied stating that there would be any changes made after the first of the year. I do not credit Muse because of certain self-contradictions and testimony contrary to undisputed facts. During his direct testimony Muse stated that when he was hired by Snyder, he informed Muse that if an employee missed 3 days in a row without calling in he would be fired. On cross-examination Muse stated that Snyder did not say anything about calling in when an employee was going to be absent. On direct examination Muse testified that Snyder told him when he was hired that there would not be any layoffs because Respondent had a big order coming in from the Mexican Government. Muse was hired September 26. Yet the record establishes beyond dispute that Respondent could not possibly, have had any knowledge of such an order prior to October, 7 29 when it first learned of the request for bids. Respondent did not receive the order until November 1. During direct examination Muse testified that about the third week in December, Snyder told him that Respondent was going to increase the number of welders to 26 and put on a night shift. This was more than a month after the layoff, at a time when Respondent had only 10 welders, was having difficulty finding enough work for them, and was already planning a second layoff which actually occurred January 5, 1968. Furthermore, it is undisputed that Respondent always had had layoffs in the fall after the conclusion of its peak seasonal production and shipments. Yet, on cross-examination Muse admitted knowing that the workload in his department had tapered off around the middle of November and that from that time on he was no longer working any overtime. He also admitted that the number of welders employed by Respondent in December was less than in October and November. Muse also stated that on or about December 19 Mounce asked Muse at his welding booth what he thought about the Union. Muse did not reply. Mounce then told Muse that if the Union did not get in Mounce knew that all of the welders would get $3 an hour after the first of the year. Muse was making $2.75 an hour at that time and continued to do so the following year. On or about December 19 Langdon asked Homer Dockins at his work station how he felt about the Union. Dockins replied that it made no difference to him one way or the other, he had worked with one and without one in other plants and he did not really care. Dockins further advised Langdon that if the Union got in Dockins intended to join the Union because he was not going to be the only man working in the shop that did not belong to it. Langdon replied that he knew what Dockins meant or how he felt. The foregoing was not denied by Langdon. On or about December 19 Mounce and another welder, Clifton Carnes, were discussing the Union and the forthcoming election. Mounce stated that the Union was no good and that he knew that none of the men in his department would vote for it. During the preparation of the December final assembly and anticipated production schedule through February, 1968, Sindlinger and Langdon again realized that a further layoff of employees would be, necessary because of the lack of work. The December schedule was substantially the same as that prepared November 13, minus the production of November. Final assembly and shipment of the Mexican order occurred shortly after mid-December and thereafter the production workload was lower than ever. As in November, Langdon determined the departments and number of employees to be laid off. Langdon proposed' a layoff around the third week of December but Sindlinger decided to postpone it until January because of the imminence of Christmas. This was also shortly before the scheduled union election. The plant was closed for production between Christmas and New Years day. Eight employees were'' laid off Friday, January 5, 1968, two from department 7, three from department 3, a welder from department l,' a forklift operator, and the group leader of department '8, Dry-O-Vator, auger assembly,, its only remaining employee. Golden, the welder, had served as the union observer at the election. The complaint does not allege, nor does the General Counsel contend, that the" layoff of January 5, 1968 was discriminatory or in violation of the Act. The same reason as that of November 17, lack of need, amplified by the production completed in November and December with the projected production remaining 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unchanged, motivated the layoff of January 5, 1968. On December 21 the Union lost the election, 19 to 32. On December 28 the Union filed objections to conduct affecting the election. During mid-January 1968, Carnes had another conversation with Mounce during which Carnes stated that he had attended all the meetings of the Union and did not see anything wrong with the Union. Mounce replied that he knew everyone who had attended the meetings. On January 22, 1968, Respondent recalled one of the department 3 employees laid off January 5. On January 30, 1968, the Union filed an amended charge including Schwenzer among the group alleged to have been discriminatorily laid off November 17. On January 31, the complaint herein was issued. On February 8, 1968 Respondent recalled Carter, the group leader of department 8, Dry-O-Vator, auger assembly, and one of the department 7 employees laid off January 5, 1968. Shortly before February 12, 1968, Snyder told Carnes that he intended to recall Golden, the welder laid off January 5, 1968. Golden and Carnes were friends. Carnes asked Snyder if he wanted Carnes to get ahold of Golden for him. Snyder replied negatively, stating that he had to send Golden a registered letter of recall. On February 12, 1968, Respondent sent Golden the registered letter of recall, which Golden did not receive because he had moved, had not advised Respondent of his change of address, and apparently had not left a forwarding address with the post office because the letter was returned "addressee unknown." Shortly after this Snyder and Carnes had another conversation about Golden during which Snyder, according to Carnes, said that if Golden had "kept his nose clean" he would still be working. According to Snyder, he told Carnes that if Golden had minded his own business, let the rest of the welders alone, quit talking and done his work Snyder could have kept him around welding fixtures and racks like the other welders and would not have had to lay him off. Snyder testified that Langdon had happened by on several occasions when Golden was not working and had suggested to Snyder that Golden be laid off if Snyder could not keep him busy. Although Golden did not receive the letter of recall, Carnes told him about it. Golden contacted Respondent and refused to return to work unless he received a raise and as a result did not return. In this instance I am inclined to credit Snyder. Even crediting Carnes' version, Snyder's reference to Golden's "keeping his nose clean" could well have referred to his standing around talking when he should have been working and did not necessarily refer, as Carnes admitted, to Golden's union activities. On February 12, 1968, Respondent also sent a registered letter of recall to Davison, which was also returned "addressee unknown" because Davison had moved without notifying Respondent or the post office. On February 13, 1968, the Regional Director issued his report on objections and order consolidating cases. On February 19, 1968, Respondent recalled another department 3 employee laid off January 5, 1968. During the latter part of February 1968, Respondent learned that Ronald Dockins had been inducted into the Marine Corps and was scheduled to serve for 2 years commencing March 1, 1968. Therefore Respondent did not send Dockins a letter of recall but placed him on military leave of absence as of March 1, 1968. Dockins was in the same department, 4, as Davison, who was entitled to recall earlier because of greater seniority. On March 4, 1968, Respondent sent a registered letter of recall to Schwenzer, who also did not receive it because he had moved without notifying Respondent or the post office. Respondent did not send a letter of recall to Daniel, because, as Langdon testified, Respondent had replaced Daniel as the balancer with Martin, who was a more experienced and skilled balancer, and Respondent had only one such job in its plant. On March 14, 1968, the Regional Director amended his report on objections and order consolidating cases to include the allegations of the complaint as amended March 8 and 13, 1968. E. Alleged Discrimination 1. The discharge of Hardcastle As hereinabove found, Hardcastle was employed by Respondent as a welder June 12 as a result of the recommendation and assistance of his brother-in-law, Mounce. Snyder testified, and Hardcastle admitted, that when he was hired Snyder informed him that Respondent wanted a full 8 hour's work each day. After having been warned orally and in writing on October 27 for repeated unexcused absences and tardiness, Hardcastle was discharged on November 10 for continued unexcused tardiness and absences thereafter, culminating with his unexcused absence from work November 9. After having been warned that he would be discharged for such conduct and having promised to do better, Hardcastle had four unexcused tardinesses and two unexcused absences in the next 2 weeks. There is no evidence in the record that Respondent was aware of any union activities by Hardcastle. It is possible that Mounce, Hardcastle's brother-in-law, who has been found not to be a supervisor within the meaning of the Act, was so aware, but his knowledge, if any, was not that of Respondent.8 Hardcastle discussed the possibility of seeking union representation with only two employees during the 2 weeks prior to November 6, and distributed representation cards to employees in the plant for only 2 days, November 6 and 7, prior to his discharge. Not only is there no evidence in the record that Respondent was aware of any of these activities, but Hardcastle himself admitted that he was careful to prevent any supervisor from observing them. His brief conversation of one to one and a half minutes at the entrance to the employees' parking lot some 250 feet from the office when Johnson was distributing union handbills at quitting time November 8 certainly cannot be equated with knowledge of Hardcastle's union activities. There is no evidence that anyone from Respondent was present or observed this conversation nor is there any evidence that individual persons could be identified at that distance. Clearly the conversation could not have been heard. Even if it had been observed from the offices, a brief casual conversation in passing between an employee and a person distributing union handbills could hardly warrant an inference that Respondent was thus made aware of Hardcastle's union activities or sympathies The incident in the plant on November 6 prior to Hardcastle's discharge involved Mounce asking Hardcastle if he knew anything about a union card which had been found on the assembly line and warning him that he might be fired if he was responsible for it. It seems clear that Mounce as Hardcastle's brother-in-law was aware of Hardcastle's membership in and position as chief steward of the Union during his prior employment in 'Diana Shops of Washington State, Inc, 170 NLRB No 54 (1968). FARM FANS, INC. another plant. Respondent of course is not chargeable with responsibility for antiunion statements by fellow employees, and in fact interference therewith could constitute a violation of the Act, With respect to the incident on the afternoon of November 6, when Hardcastle allegedly placed an envelope containing Golden's union card in Hardcastle's hip pocket, Hardcastle himself did not corroborate this incident and Snyder denied having witnessed any such action. If in fact Mounce asked Hardcastle anything, as claimed by Golden, again this was an inquiry by a fellow employee and not by a supervisor. The General Counsel of course has the burden of proving that Respondent knew of Hardcastle's union activities. Without such knowledge, it cannot be concluded that Respondent discharged Hardcastle because of his union membership or activities. Furthermore, although not essential under such circumstances, Respondent established good and adequate cause for Hardcastle's discharge. The General Counsel contended that Hardcastle's discharge was not in conformity with Respondent's rules and policies, because of the existence of an old set of rules adopted by the American Planter Company, which company had been acquired by Respondent at the time of its acquisition of the American Standard product line. Such a set of rules, dated August 1, 1962, was received in evidence. Langdon, who was in charge of such matters, testified that these rules had not been adopted as Respondent's rules but had been furnished to him as a general guide to follow, and that he used them as a guide and reference with respect to problems of employee holiday and vacation pay. With respect to absenteeism, these rules provided among other things that an employee who failed to report his absence from work would be removed as quitting without notice following the third consecutive working day of such absence. They also provided that an employee unable to report for work should, if possible, telephone the Company prior to or at the beginning of his scheduled work shift. The General Counsel contended that because Hardcastle had not been absent for 3 consecutive days, Respondent violated its own rules in discharging him. Under the General Counsel's view, apparently an employee could fail to report for work without excuse two out of every three working days and not be subject to discharge. Snyder, while unfamiliar with and unaware of such printed rules, testified that he was aware of a general rule of Respondent that an employee absent 3 days without notice was subject to discharge. The existence of such a rule, of course, would not negate or prevent a rule providing for discharge for excessive unexcused absenteeism. The record establishes, and I find, that these prior rules of the American Planter Company had not been adopted as Respondent's official rules. Respondent in fact had no official printed rules. Langdon stated that he tried to follow standard industrial practice in the absence of any formal adopted rules. In the light of Hardcastle's unexcused absences and his prior warning, his discharge was certainly not contrary to normal standards. Assuming arguendo that the American Planter rules had been adopted by Respondent, another rule therein did warrant Hardcastle's discharge. Article 6, entitled "Plant Rules and Regulations," provided, inter alia: "Failure to abide by these regulations makes an employee liable to warning notice, suspension or discharge." Subdivision 4 under that Article included "excessive absenteeism." Construction of that rule, in conjunction with those relied upon by the General 731 Counsel, makes clear that it had reference to excessive unexcused absenteeism. The General Counsel offered in evidence a number of Respondent' s records which established numerous absences and tardiness by other employees. However these records failed to establish whether such absences and late arrivals were excused or unexcused . The record establishes beyond dispute that Hardcastle ' s late arrivals and absences resulting in the warning of October 27 and those occurring between it and his discharge were unexcused. Upon a consideration of the entire record I am convinced and find that the General Counsel has failed to sustain his burden of proving that Hardcastle was discharged because of his union membership or activities in violation of the Act. 2. The November 17 layoff As hereinabove found, at the conclusion of work, November 17, Respondent laid off Ronald Dockins, Davison, Daniel and Schwenzer. Dockins and ' Davison were employed as general machine operators in department 4, under the supervision of Snyder, Schwenzer was employed as an assembler in department 8, Dry-O-Vator, auger assembly section, under the supervision of Ralph Sindlinger, and Daniel was employed in department 3 as the blade balancer, under the supervision of Hartsock, acting supervisor. As in the case of Hardcastle, the record contains no evidence of any knowledge by Respondent of any union activities prior thereto by the employees laid off November 17, nor any evidence of antiunion animus or interference, restraint or coercion by Respondent prior thereto. The only incidents prior to November 17 were the two conversations on November 6 between Hardcastle and Mounce, previously considered in connection with Hardcastle's discharge. Mounce has been found not to be a supervisor within the meaning of the Act. In addition, there were the two brief conversations on the evening of November 8, between Johnson and Hardcastle and Johnson and Daniel, one and a half minutes and a few seconds, respectively, when Johnson was distributing union handbills at the employee parking lot entrance. The complaint contains no alleged interference, restraint or coercion by anyone other than Mounce prior to November 17. The General Counsel, having offered little or no proof of antiunion animus, interference, restraint or coercion and most importantly knowledge of union activities prior to November 17, offered literally hundreds of pages of testimony and exhibits, including Respondent's records of sales, shipments, orders, inventories of raw material, parts, and completed products, production, production schedules and hours worked, all for substantial periods before and after the date of the layoff, in an attempt to establish that Respondent's layoff of November 17 was not economically warranted or needed, or if it was, that Respondent could or should have selected other departments and/or other employees rather than Dockins, Davison, Schwenzer, and Daniel, contending that such proof warranted an inference the layoff and/or the selection were discriminatorily motivated. Proving a negative does not establish the affirmative. Clearly, absent antiunion motivation, Respondent could have made its layoff and/or selection for any other reason without violating the Act. The record establishes beyond dispute that Respondent's business was seasonal. Respondent produced two basic types of products, grain drying equipment, 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consisting primarily of fans and heaters, which constituted approximately 85 percent of Respondent's overall production, and grain handling equipment, which constituted approximately 15 percent of its total production, including the Dry-O-Vator, introduced in 1967 on a limited basis. The ultimate consumers of these products were farmers, and the Farm Fans or grain drying equipment was purchased on a seasonal basis, primarily during the corn harvest season. This grain drying equipment could be used for drying many kinds of grain, but its principal use was for drying corn. The demand for and sale of this product were concentrated in the summer months, normally June, July, August, and September, with its peak sales and shipments corresponding with the corn harvest season. Prior to 1967, Respondent's peak month of sales and shipments had always been September. Because of an extremely dry summer and late rains and harvesting, in 1967 its peak sales and shipments occurred in October. Percentage wise, in 1967 October represented 20 percent of Respondent's total 1967 sales, September represented 17 1/2 percent, November 10 percent, and December 6 1/2 percent. Respondent had always laid off employees in the fall after the conclusion of its peak sales and shipments for at least three reasons: because its sales were seasonal, concentrated during the summer months and culminating with the harvest season; because of Indiana's personal property tax based upon property in inventory as of March 1 each year; and because Respondent was unable to allocate sufficient space and funds to stockpile large quantities of equipment during the months between the busy season As a result, Respondent always laid off employees in either October or November after the peak of its sales and shipment. After achieving its goal of the lowest possible inventory by March 1, Respondent gradually increased production by increasing its work force by recalls and new hires, normally culminating in a peak of production during August and September. Respondent manufactured its Farm Fans equipment to inventory rather than order, because its customers were original equipment manufacturers who in turn sold the combined fan and heater units in grain bins to the ultimate consumer, the farmer, and did not normally order until during the growing and harvesting season. As a result Respondent planned its production schedules to reach a peak at that time, piling up inventory of the Farm Fans equipment during the spring and summer months. As the height of the sales season approached, Respondent started to reduce its production schedule so that after the peak of sales and the following substantial decline in shipments, its inventory would be reduced to the lowest possible point on or before March 1. Respondent first reduced its production by eliminating overtime and later by laying off employees. However, because of a substantial turnover in employees and its desire to retain a nucleus of skilled and experienced employees in order to avoid the time and expense of recruiting and training new employees, Respondent always tried to maintain a nucleus of from 35 to 40 experienced employees, even though it was necessary to search for work for them and they were not all needed for production purposes during the winter months. Unlike the Farm Fans equipment, the American Standard equipment, which constituted only 15 percent of Respondent's production, was built to order rather than inventory. From experience Respondent knew that it received few if any orders for that equipment after September and October, and accordingly its production was also first diminished and then substantially eliminated at that time of year. Respondent introduced the Dry-O-Vator in 1967 and scheduled production of only 300 for field test purposes In fact Respondent produced 296, including 6 prototype machines. At the time of the layoff on November 17 the production of both American Standard and Dry-O-Vator equipment had been substantially if not entirely completed for the year. Langdon alone determined the departments and particular employees to be laid off. He followed seniority within the classification within the department, although with respect to Schwenzer and Daniel it is apparent from the record that additional factors entered into their selection. Langdon, who was aware that American Standard and Dry-O-Vator production had substantially terminated, selected Ronald Dockins and Davison from department 4 (machining), Schwenzer from department 8, Dry-O-Vator, auger assembly, and Daniel, the blade balancer from department 3, and informed their respective foremen that they were to be laid off at the completion of work November 17. All four had been employed by Respondent for less than 2 months except Schwenzer, whose employment exceeded 2 months by 3 days. a. Ronald Dockins and Thomas Davison Davison and Dockins were employed as general purpose machine operators in department 4, American Standard machining. On November 17 that department consisted of four employees in addition to Wallace, the group leader. Ronald Dockins had been hired November 9 by Snyder at the request of and as a favor to his uncle, Homer Dockins. At the time Ronald was hired, Snyder admittedly informed him that his employment would be temporary Cecil Frazier, another employee in that department, had injured his back and was unable to do heavy lifting, so Snyder hired Ronald to assist in that respect. Ronald was, of course, the employee with the lowest seniority in the department, having been employed only 8 days prior to the layoff. The work in the department had declined to such an extent that during the last 2 days of Ronald's employment, Thursday and Friday, November 16 and 17, he was assigned to cleaning the corn crib outside the plant Thursday and to cutting grass Friday. Davison was the employee with the next lowest seniority in department 4, having been hired after both of the other two employees, Lujan and Frazier, and having been transferred into the department after they were in the department. Davison was hired September 20 as a welder in department 2 upon his representation that he had previous welding experience, but proved unable to do the job. As a result on October 4 Snyder transferred Davison to department 4, also under Snyder. On the afternoon of November 17, Snyder, having been instructed by Langdon to lay off Davison and Ronald Dockins, called them into his office and advised them that they were being laid off because of lack of work. He also advised them that he did not know how long the layoff would last but that when Respondent had need for them he would recall them. As hereinabove found, at that time Respondent had no knowledge of either of them having engaged in any union activities. No supervisor ever discussed the Union or union activities with either of them Department 4 was engaged in the machining of American Standard products and the Dry-O-Vator, the annual production of which was substantially completed as of November 17 Davison and Dockins were the two employees in the department with the least seniority. FARM FANS, INC. Dockins had been informed at the time of his hire that his employment would be temporary. While it was not essential to establish, particularly in view of the lack of knowledge of Respondent of any union activities on the part of Davison and Dockins, it is apparent that their selection for layoff was both logical and appropriate. On February 12, 1968, Respondent sent Davison a letter of recall, which he never received because he had moved without notifying either Respondent or the post office. Shortly thereafter Respondent learned that Dockins had been inducted into the Marine Corps for 2 years as of March 1, 1968. Accordingly as of March 1, 1968, Respondent changed Dockets' status from laid off to military leave of absence. b. Carl Schwenzer Schwenzer was employed September 14 in the auger assembly section of department 8, Dry-O-Vator, under the supervision of Ralph Sindlinger. As previously found, this was a different department from regular department 8, assembly of American Standard products, which was under the supervision of Ondrusek. Although it carried the same number it was a different department in a different location of the plant under a different supervisor. The Dry-O-Vator assembly department was divided into two sections, also located in separate parts of the plant, one devoted to the assembly of the Dry-O-Vator power trains and the other to the assembly of the Dry-O-Vator augers. At the time of the layoff there were only two employees in each section, William Martin and Donota Corona in the power train assembly section, and Schwenzer and William Carter, the group leader, in the auger assembly section. As hereinabove noted, the Dry-O-Vator was a new product in 1967 with production limited to approximately 300 for the purposes of field tests As a result of these tests, Respondent had learned of numerous breakdowns and had received returns to the plant of Dry-O-Vator parts found defective in the field. Martin and Corona, the two employees in the power train assembly section, had been specially trained by Respondent's engineers for approximately 5 weeks and were needed by Respondent to repair the returned power train assemblies and `to produce parts for the repair of defective Dry-O-Vators. The record establishes that it would have required approximately 5 weeks to train replacements. On the other hand, the assembly of the augers was a comparatively simply function which did not require any special training or experience. Consequently, in selecting an employee for layoff from department 8, Dry-O-Vator, Langdon excluded the two skilled employees whose services Respondent needed and could not readily replace and decided to lay off one employee from the auger assembly section. As between Carter and Schwenzer, Carter not only was the group leader but had seniority. On a departmental basis, Schwenzer had seniority over both Martin and Corona but did not have their skills or training The General Counsel contends that one of them should have been selected for layoff before Schwenzer, because he had the same classification in the same department, although the record establishes that the two Dry-O-Vator assembly sections were separate and distinct. Clearly Respondent had the right to retain skilled and experienced employees actually performing a different function in a different section, although classified in the same department and lower in seniority, as long as its selection was not based upon the union activities of the 733 employees concerned. As in the case of all of the others laid off November 17, the record contains no proof that Respondent was aware of any union activities on the part of Schwenzer. In addition, no supervisor ever discussed the Union or union activities with him. Ralph Sindlinger notified Schwenzer on the afternoon of November 17 that he was being laid off because of lack of work. On March 4, 1968 Respondent sent Schwenzer a recall letter, which he did not receive because he had moved without notifying Respondent or the post office. Although the General Counsel contends that Respondent should have selected Martin or Corona rather than Schwenzer because of their lesser seniority, Respondent's subsequent action in the layoff of January 5, 1968, tends to establish that Respondent's selection of Schwenzer was not discriminatorily motivated. In that layoff, which the General Counsel does not contend was discriminatory, Respondent selected Carter, the group leader of and last employee in the auger assembly section with substantially greater seniority than either Martin or Corona, and retained them for the same reason: their job required skill and training whereas Carter's did not. There is no evidence or contention that Carter had engaged in any union activities or that Respondent was so motivated. As a matter of fact, Respondent probably would have been warranted in making a substantially larger layoff on November 17. After the preparation of the December production schedule, which was substantially the same as the projected production in the schedule of November 13 with the exception of the products completed in November, Respondent realized the necessity for an additional layoff of eight more employees, which it postponed until after Christmas. Although this layoff was based upon substantially the same projected production schedule and the record establishes that at that time Respondent was fully aware of the employees' union activities and specifically aware of Golden's participation therein, nevertheless the General Counsel does not contend that this layoff was unwarranted or discriminatory. c. Donald H. Daniel, Jr. It seems apparent from the record that Daniel was laid off by Respondent not because of lack of work but because Respondent desired to replace him with a former employee, who the record establishes, and Respondent knew, was more experienced and skilled in blade balancing, the job held by Daniel. Daniel commenced working for Respondent on September 23, and was assigned the job of balancing blades. This work was performed on two machines, called a dynamic and a static balancer, respectively. Basically Daniel worked only on the dynamic balancer. This was a motor driven device with an attached meter which indicated where and how much a blade was out of balance so that weights could be attached at the appropriate place in order to balance the blade. There was only one set of such instruments. As a result Respondent employed only one balancer because only one person at a time could do balancing. Gary Martin had worked for Respondent on and off for approximately 7 years prior to Daniel's employment, during which he worked as Respondent's balancer approximately 5 to 6 years. He was a very skilled and experienced balancer, having on one occasion been able to balance some blades that no one else in the plant, including the supervisor, could. On August 25 Martin resigned from Respondent with notice. He spoke to both Sindlinger and Langdon, advising them that he had a 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD good opportunity to go into business and was therefore leaving. Sindlmger wished him luck, advised him that such things did not always work out and told him that any time he wanted to return he could do so. Langdon also told Martin that any time he wanted to return he could do so. Sometime during the work week ending November 17, apparently on or before November 17, Langdon called Martin and asked him if he would return to work for Respondent as balancer. As a result Martin quit his then employment, which had not turned out as well as he had hoped, and agreed to return to Respondent on Monday, November 20, because the job paid more than his then employment. It is apparent that this arrangement occurred prior to Daniel's layoff on the afternoon of November 17, and that Daniel was laid off not because of lack of work but because Respondent preferred the more experienced and skilled services of Martin. After Martin returned November 20, he was the only balancer. After his return, he was able to balance approximately 90 percent of some 50 to 60 blades which had been discarded by Daniel as scrap because he was unable to balance them Next to Hardcastle, Daniel was the most active union protagonist. All told he passed out about 50 union cards prior to his layoff and secured about 15 or 16 signatures. However, as in the case of Hardcastle and all of the others laid off, there is no evidence that Respondent was aware of any union activities by Daniel prior to his layoff. No supervisor ever discussed the Union or union activities with Daniel. It is apparent that Respondent "laid off" Daniel because it desired to replace him with Martin. While this may have been unfair and discriminatory to Daniel, discrimination unrelated to union activities or membership is not a violation of the Act Unlike the others laid off, Respondent made no attempt to recall Daniel, again for the same basic reason: Martin was still employed by Respondent and Respondent had no need for Daniel's services. Upon a consideration of the entire record, I am satisfied and find that the General Counsel has failed to sustain his burden of proving that Respondent discriminatorily laid off Ronald Dockins, Davison, Schwenzer or Daniel in violation of the Act, as alleged in the complaint. F. Interference, Restraint, and Coercion The complaint contains no allegations of interference, restraint, and coercion prior to November 17 except the two incidents previously considered involving Mounce, hereinbefore found not to be a supervisor within the meaning of the Act. The complaint also contained several allegations of interference, restraint, and coercion concerning which the General Counsel offered no proof. A number of the other allegations involved statements by Mounce previously found hereinabove in section IV, D, for which Respondent cannot be held responsible because Mounce was an employee and not a supervisor These specific allegations involving Mounce will not be repeated or considered in this section. 1. Plant Manager Langdon The complaint also alleged that in the first part of December, Langdon interrogated employees concerning their union activities and gave them the impression that Respondent was keeping their union activities under surveillance; on December 18 interrogated employees conceining their union activities; and on December 19 interrogated employees concerning their union activities and promised them economic and other benefits to refrain from engaging in union activities or supporting the Union. As hereinabove found, on or about December 10 Langdon asked Golden how he felt about the Union. When Golden replied that he did not know, Langdon stated that some places might need a union and some might not, he did not know. While this conversation did constitute an interrogation of Golden's views about the Union, it is clear that Langdon's subsequent remark was a mere expression of opinion, indeed evidencing impartiality. After the Union received the Excelsior list on December 11, it began visiting employees evenings at their homes. On or about December 15 Johnson and another union representative called on Markham at his home. The following day Langdon asked Markham if he had any visitors the previous night. When Markham replied that he had, Langdon asked him what they had been talking about. Markham replied that they had been talking about the "usual thing" Langdon did not deny any of the foregoing and further admitted that he had learned through the "grapevine" that the employees had been receiving "some visitors" and that he had also asked Homer Dockins if he had had any visitors the night before and had received an affirmative reply. As hereinabove found, on or about December 19 Langdon and Muse had a conversation concerning the impending union election. I did not credit Muse and found that Langdon did not tell him, as he claimed, that if the Union did not get in things would be improved after the first of the year. Their conversation, while it concerned the forthcoming election, appears to have been merely an expression of opinion by Langdon sans any threats, promises, restraint or coercion. On or about December 19 Langdon also asked Homer Dockins how he felt about the Union. Dockins replied that it made no difference to him, that he had worked in both organized and unorganized plants, but that if the Union won the election he intended to join because he did not want to be the only man working that did not belong. Langdon replied either that he knew what Dockins meant or how he felt. During that same conversation or another the same day, Langdon also asked Dockins if he had had any visitors the night before, and received an affirmative reply. The record establishes and I find that Langdon interrogated Golden about his union sympathies, and interrogated both Markham and Homer Dockins about their union activities and during the conversations with Markham and Dockins clearly created the impression of surveillance of their union activities, unquestionably a form of restraint and coercion. While, standing alone, the interrogation of Golden might not be considered coercive, there can be no such doubt with respect to the interrogation of and the impression of surveillance given Markham and Dockins. Accordingly I conclude and find that, on or about December 10, 16 and 19, Respondent coercively interrogated its employees about their union sympathies and activities and created the impression of keeping their union activities under surveillance, thereby engaging in interference, restraint, or coercion in violation of Section 8(a)(1) of the Act. 2. Foreman Snyder The complaint alleged that in late November or early December Snyder threatened employees with loss of advancement and promotion because of their union activities; at the same time promised employees FARM FANS, INC. promotions for refraining from union activities or support; in early December threatened employees with layoffs and other reprisals because of their union activities and told employees there would not be any layoffs if they refrained from their union activities or support; and in early February 1968 told employees that other employees had been laid off because of their union activities. As hereinabove found, on or about December 2 Snyder asked Golden if he knew that the Union was trying to get in the plant. After Golden replied that he did, Snyder told him that although Respondent had been moving employees from one machine to another because there was not enough work, if the Union came in Respondent would be unable to continue doing that and therefore would have to lay off employees. Snyder further informed Golden that if the Union did not get in there would be no layoffs. On or about December 7 Snyder asked Homer Dockins how he felt about the forthcoming union election, adding that the way matters stood then Dockins had a good chance to become a group leader but that if the Union won the election Snyder's hands might be tied and he could not promise Dockins the job as a group leader (During the latter part of September Snyder had suggested to Dockins the possibility of his being promoted to group leader and had asked if he was interested.) Contrary to the contentions of Respondent, clearly this interrogation concerning union sympathies included both a promise of benefit if the Union lost and a threat of the loss of a benefit if the Union won. Snyder's statements can hardly be construed as an opinion or prediction of economic consequences solely brought about by the Union, outside the control or volition of Respondent, which counsel for Respondent concedes is the appropriate test. Moreover, a promise of economic benefits cannot be equated with a prediction of economic consequences due to unionization. As previously found hereinabove with respect to the conversations between Snyder and Carnes in February, 1968, Snyder did not tell Carnes that Golden had been laid off because of his union activities. I am satisfied and find that by Snyder's foregoing interrogations concerning union sympathies and activities, his threats of layoffs and loss of promotion if the Union was elected, and his promises of no layoffs and promotion if the Union was not elected, Respondent engaged in interference, restraint and coercion in violation of Section 8(a)(1) of the Act. IV. REPORT ON OBJECTIONS As noted above, the Regional Director consolidated for hearing with the complaint herein one of the filed objections together with all of the allegations of interference, restraint and coercion and discrimination in the complaint as amended, limited to the period from November 21 to December 21. The alleged discrimination all occurred prior to November 21 and furthermore has not been found herein. In addition to the various allegations of interference, restraint, and coercion set forth in the complaint, the other objection consolidated for hearing herein alleged that on or about December 19 Respondent made coercive and misleading statements to its employees in small group meetings in order to influence their, vote against the Union. The record contains no evidence of coercive and misleading statements to employees in "small group meetings." Based upon the above findings of fact and the entire record herein, I conclude and find that the objections consisting of the allegations of interference, restraint, and 7 35 coercion in the complaint as amended, dealing respectively with interrogation, threats of economic reprisal, promises of economic benefits, and creating the impression of surveillance, all related to union activities, have been established and that Respondent thereby engaged in conduct affecting the results of the election. The Regional Director's order directing the consolidation of the hearings on the objections and the complaint further directed that thereafter Case 25-RC-3662 be transferred to and continued before the Board. Having sustained the aforesaid objections, I recommend that the Board set aside the election and remand the representation proceedings to the Regional Director for the purpose of conducting a new election at such time as he deems the circumstances will permit the free choice of a bargaining representative. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce, and the Union is a labor organization , within the meaning of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(l) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. Respondent has not, as alleged in the complaint, discriminated against its employees within the meaning of Section 8(a)(3) and (1) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type which is conventionally ordered in such cases as provided in the Recommended Order below, which I find necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. I shall also recommend that the election in Case 25-RC-3662 be set aside and a new election directed. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Farm Fans, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating its employees concerning their union membership, activities, or sympathies. (b) Threatening employees with loss of promotion, layoffs, or other reprisals for engaging in union activities. (c) Promising employees promotions, no layoffs, or other economic benefits to induce them to refrain from engaging in union activities. (d) Creating the impression of surveillance of employees' union activities. (e) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Post at its plant in Indianapolis, Indiana, copies of the attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Respondent's representative shall 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 to insure that said notices are not altered, defaced, or covered by any other material. -(b) Notify the Regional Director for Region 25, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith.' ° IT IS FURTHER RECOMMENDED that the complaint, insofar as it alleges -that Respondent discriminated against employees in violation of Section 8(a)(3) and (1) of the Act, be, and it hereby is, dismissed. IT IS FURTHER RECOMMENDED that the representation proceedings in Case 25-RC-3662 be, and they hereby are, remanded to the Regional Director for Region 25 for the purpose of setting aside the results of the December 21, 1967, election and conducting a new election at such time as he deems the circumstances will permit the free choice of a bargaining representative. 'In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a 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 "a Decision and Order." "In the event that this Recommended Order is adopted by the Board this provision shall be modified to read "Notify the Regional Director for Region 25, in writing, within 10 days from the date 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: WE WILL NOT coercively interrogate our employees concerning their union membership, activities, or sympathies. WE WILL NOT threaten our employees with loss of promotion, layoffs or other reprisals for engaging in union activities. WE WILL NOT promise our employees promotions, no layoffs or other economic benefits to induce them to refrain from engaging in union activities. WE WILL NOT create among our employees the impression of surveillance of their union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of any of the rights guaranteed them by the National Labor Relations Act. All of our employees are free to become, remain or refrain from becoming or remaining members of Local 503, Sheet Metal Workers International Association, AFL-CIO, or any other labor organization, except to the extent that such rights may be affected by an agreement conforming to the provisions of Section 8(a)(3) of the National Labor Relations Act. Dated By FARM FANS, INC. (Employer) (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, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 633-8921.