Kut-Kwick Corp.

KUT-KWICK CORP. Kut-Kwick Corporation and International Association of Machinists and Aerospace Workers, AFL-CIO. Cases 10-CA-7294 and 10-CA-7337 June 13, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA On December 12, 1968, Trial Examiner Stanley N. Ohlbaum issued his Decision in the above-entitled proceeding , finding that the Respondent had engaged and was engaging in certain unfair labor practices alleged in the complaint, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of these allegations. Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Examiner' s Decision, and supporting briefs, and the Respondent filed a brief in reply to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the, National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed . The Board has considered the Trial Examiner's Decision , the exceptions and briefs, and the entire record in this case , and hereby adopts the findings, conclusions , and recommendations of the Trial Examiner.' 'Member Jenkins would find a further 8(aX3) and ( I) violation predicated upon the Respondent's selection of Gerald Smith for layoff on December 22, 1967, and its subsequent refusal in mid- February 1968, to rehire him. In reaching this conclusion, he would rely upon the Respondent's knowledge of his union affiliation garnered from its unlawful surveillance of the February union meeting; the fact that despite its attempts to retain Smith in its employ by giving him additional remunerative opportunities prior to the advent of the Union, it subsequently, on December 22, 1967 , laid Smith off and retained a number of employees who were junior to him in terms of service; and the fact that Smith's original request for reemployment was denied pending resolution of the "union mess" and not for lack of work. Although Smith was ultimately offered reemployment, following his repeated applications therefor, such job offer carried a wage scale so substantially less than he had received prior to layoff that his refusal of the offer was considered a virtual certainty . In these circumstances , and in view of the other unfair labor practices found by the Trial Examiner and adopted by the majority herein, Member Jenkins would find that Smith 's layoff and subsequent denial of rehire was based not upon any economic considerations, as alleged by the Respondent, but rather his union affiliation and activities in relation thereto. ORDER 635 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 the Respondent, Kut-Kwick Corporation, Brunswick, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION 1. PRELIMINARY STATEMENT; ISSUES STANLEY N. OHLBAUM, Trial Examiner. This consolidated proceeding' under the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq; "Act") was tried before me in Brunswick, Georgia, on June 24-28 and record closed on August 2, 1968,2 with all 'On complaints of the National Labor Relations Board's the Regional Director (Atlanta, Georgia) issued (1) on May 2, 1968, as amended at the hearing (Case 10-CA-7294) based upon charge filed by the above Union on March 15 and (2) on May 17 (Case 10-CA-7337) based upon charge filed on May 1 . Unless otherwise specified , all dates are 1968. 'Resumption of the hearing which on June 28 was adjourned sine die was rendered unnecessary by reason of a joint application by the parties on July 26 (granted by my order of August 2) to close the record after the Board's Regional Director had declined to enter into a settlement negotiated and drafted by Counsel for General Counsel on the fifth day of hearing and signed by both the Respondent and the Charging Party. The record, including Respondent's posthearing motion papers, adequately reflects the circumstances. The following documents are hereby incorporated in the record of this proceeding:- Document Marked as Trial Examinees Lxhibit No. Document Description 14 Settlement agreement (with attached Notice), dated June 28,1968 15 Telegram from Counsel for General Counsel, to Trial Examiner, received July 5, 1968 16 Telegram from Respondent's Counsel, to Trial Ex- aminer, received July 8,1968 17 Copy of letter from Trial Examiner to Counsel, dated July 12, 1968 18 Telegram from Respondent 's Counsel, to Trial Ex- aminer, received July 17, 1968 19 Telegram from Respondent's Counsel, to Chief Trial Examiner, received July 23, 1968 20 Copy of telegram from Associate Executive Secre- tary of National Labor Relations Board , to 10th Regional Director and Counsel, dated July 24, 1968 21 Copy of telegram from Trial Examiner to Coun- sel, dated July 25, 1968 22 Telegram from Counsel for General Counsel, to Trial Examiner, received July 26, 1968 23 Copy of telegram from Trial Examiner, to Counsel, dated July 26,1968 24 Letter from Respondent's Counsel, to Trial Exam- iner, dated July 26, 1968, received July 29, 1968 (with attached envelope) 25 Letter from Counsel for General Counsel , to Trial Examiner, dated July 29, 1968 , received July 30, 176 NLRB No. 86 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties participating throughout by counsel or other representative. The issues are whether Respondent Employer violated Section 8(axl), (3), and (5) of the Act by: - (1) discriminatorily discharging (and failing to reinstate or rehire) 14 employees (12 on December 22, 1967;' and 2' on March 7- 8, one of whom' was again discharged on June 13 after previous reinstatement or rehire); (2) coercively interrogating employees regarding union affairs (January 13-23); (3) spying on a union meeting of employees (February 14); (4) threatening employees with adverse economic consequences and reprisals for union adherence (February 15-16); and (5) failing and refusing (since around December 11 or 14, 1967) to bargain collectively with the Union as the duly designated exclusive bargaining representative of an appropriate unit of its production and maintenance employees. In its answers (as supplemented or amended at the hearing), while generally denying these allegations, Respondent admits the layoff on December 22 of 12 employees,' 4' of whom were subsequently rehired. Upon the entire record' and my observation of the witnesses, I make the following: Respondent's employees most recently evinced interest in unionization commencing in November, 1967. A previous unionizational effort, in 1965, had resulted in a 31 to 5 vote by the employees, in a Board-conducted secret-ballot election (Case 10-RC-6250), rejecting representation by the Union which is the Charging Party here. Following a union petition for election filed on December 12 (Case lO-RC-7275) and a request for recognition received on December 16, 1967, and declined by Respondent on January 2 with the suggestion that the wishes of its employees would more accurately be determined by a Board-conducted election, such an election was held on consent on February 16, 1968, resulting in a vote of 21 to I1 against the Union (with 5 ballots challenged, out of a total of 37 eligible voters in a conventional production and maintenance unit). By March 5 stipulation of the parties, the results of that election were voided and a rerun election was agreed to. The rerun election, scheduled for March 15, was not held, the charges in instant Case 10-CA-7294 being filed on that day. FINDINGS AND CONCLUSIONS 11. PARTIES ; JURISDICTION Respondent is a Georgia corporation having its plant and principal place of business in Brunswick, Georgia, where it engages in the manufacture and sale of lawnmowers. In the representative 12-month period immediately preceding issuance of the complaints, Respondent sold and shipped goods valued in excess of $50,000, directly in interstate commerce to points outside the State of Georgia. I find that, at all material times, Respondent has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7), and the Union a labor organization within the meaning of Section 2(5), of the Act; and that assertion of jurisdiction here is proper. III. ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent is a manufacturer of industrial lawnmowers in Brunswick, Georgia. Since 1965 the number of persons employed in its machine shop and assembly shop has ranged from around 30 to 50. During the same period, its sales have likewise fluctuated widely. Seasonal highs, in both sales and employment, have occurred in and around the summer, with a lull and 1-week plant shutdown at year-end (December). 1968, with enclosed Respondent's Exhibits 1(d) and 23 26 Copy of telegram from Trial Examiner to Counsel, dated August 2,1968 'Blue, Braddock, Cope, Edmond, Jones, Manning, McCormick, Perkins, Smith, Sweat, West, and Williams. 'Christian and Goodyear. 'Goodyear. 'See fn . 3, supra 'Blue, Cope, Manning, and West. 'Hearing transcript as corrected by my November 21, 1968, order on notice. B. Section 8(aXl) 1. January: interrogations It is alleged that at various times in January employees were interrogated in violation of Section 8(a)(1) concerning their union affairs, by Respondent's Machine Shop Superintendent Rowe. Former employee Goodyear and employees Rhymes and Chakmack testified as General Counsel's witnesses in support of these allegations. Goodyear is a machinist who was employed in Respondent's machine shop for 9 years preceding his discharges in March and June under circumstances to be described. On Saturday morning, January 13 - following the most recent (i.e., late 1967) manifestation of union interest by employees at Respondent's plant, under Goodyear's leadership - Goodyear, while recuperating at home after a hospitalization, received a visit there from Respondent's Machine Shop Superintendent Rowe, with whom he had maintained a friendly social relationship. At the conclusion of this home visit, Goodyear accepted Rowe's invitation "to ride downtown with him [Rowe] a little bit." Downtown, Rowe "told me [Goodyear] he wanted to talk to me about the union .... I told him to go ahead, that I didn't mind talking to him about the union, so he asked me about, was I for the union, and I told him, yes, I thought I'd like it, so he asked me what the fellows hoped to gain out of the union and I told him I didn't know, that I was only one and he would have to ask them to get their opinion. And he said well, that's a mighty small' company, you know, for a union down there. And I told him yes, it was small and I knew it was small. So we rode on and he talked of the company......"' When they returned and parked in front of Goodyear's home, "we talked about the union meeting and he [Rowe] asked me [Goodyear], well, he said he heard that there was going to be a walkout, a threat of a walkout down there, and I told him that there had been some talk of it but I didn't much believe it was going to come." The 'Emphasis supplied . The discussion which ensued, apparently in casual and friendly vein, encompassed the recent December layoff (discussed infra). possible sources of employee dissatisfaction , and the operation by another employee of the machine which Goodyear had been operating prior to his absence (also discussed Infra) KUT-KWICK CORP. 637 Board-conducted election was held on February 16, 2 days after a union meeting attended by Goodyear. About an hour before the election, Rowe telephoned Goodyear at home and, after inquiring about his health, remarked, "I [Rowe] heard you were going to be the observer on the Board for the union. And I [Goodyear] said, yes, I am, and I don't think it's going to hurt anything. I don't see anything wrong with it is the way I put it. And he said, well, o.k., all right, and he hung up." Respondent's machinist Rhymes, in its employ since 1961, was approached at his workplace by Rowe several weeks before the February 16 election. Rowe "asked me [Rhymes] had I heard anything about the union coming in, about the boys wanting to get a union in . . . . I said, yes sir, I had, I didn't want nothing to do with it, this side or the other side either. I said I didn't want to hurt neither side, and I just hadn't mentioned nothing about it." About a week later, at the same place, Rowe "asked me had anybody been to me and asked me anything about signing a union card .... I told him, yes sir, they had . . He asked me who was it, and I told him Jerry, Jerry Smith .... I don't think nothing else was said." Rhymes, who considers himself to be a "personal friend" of Rowe' s, was not asked by Rowe whether he was for or against the Union. Respondent's machinist Chakmack, in its employ since 1957, testified that around a week before the February 16 election, "Mr. Rowe asked me what I thought about the union and we were discussing it between each other because I used to belong to the union up North and I told him that this plant was too small at that time and I didn't think the union would do any good if it belonged to another company at that time, but that's immaterial. We were discussing amongst each other, you know, person to person about the union and how he thought and how I thought the vote would come out. And I told him that I didn't think the union would get in the plant and he also agreed that he didn't think the union would get in the plant either .... there was no mention of who or what or how they were going to vote, it was how many. How many I thought and how many he thought. . . . Not the names." Chakmack, whose testimony was uncrossexamined , also swore that he was unable to recall who started this conversation since "that's been a while back, but Mr. Rowe and I are very good friends and we talk to each other about certain matters." Respondent's Machine Shop Superintendent Rowe's version of his January 13 visit to Goodyear's home is that he was on friendly terms with Goodyear, and that they socialized at each other's homes and "played music together." After discussing Goodyear's illness and chatting with members of Goodyear's family, Rowe took Goodyear for a drive, during which they spoke of "getting together playing music, and how the shop was doing." Mentioning the Union, Rowe asked Goodyear "did he [Goodyear] know any of the grievances that any of the guys had," telling Goodyear that "everybody at the shop had chosen sides. That was basically the thing that was wrong. Somehow or other there must be some grievance that we didn't know about that I could maybe take up with Mr. Tresher [Respondent' s President]. . [Goodyear thereupon] told me [Rowe] no, the only grievance that he knew, that he didn't think was right, it was the hospitalization plan that we had . . . he had to wait a year [after employment, for coverage]." Rowe promised to take this up with Tresher and did. According to Rowe --- and consistently with Goodyear's testimony - he did not ask Goodyear whether he was a Union member, nor did he inquire regarding the Union membership or views of any other employee. Further according to Rowe - unchallenged by Goodyear - Goodyear "even stated to me that day [January 13] that after this deal . . . . he didn't want any part of the union."10 Concerning the described discussion between Rhymes and Rowe, the latter conceded that it "probably did" occur as testified by Rhymes. At the solicitation of Respondent's counsel, Rowe then added that "I think, the way I remember it, he [Rhymes] started the conversation" and that it was Rhymes who brought up "about whether he [Rhymes] signed a union card." On cross-examination, however, Rowe professed to be unable to recall whether Rhymes' statement to him that fellow-employee Smith had "tried to get him [Rhymes] to sign a union card" was educed by Rowe from Rhymes or adduced to Rowe by Rhymes - in Rowe's words, "It could be that he told me. ... It could be that I asked him." In this posture of the record and comparing testimonial demeanor, I credit Rhymes that it was Rowe who elicited the described matters from Rhymes. Regarding his conversation with Chakmack, while agreeing it was substantially as described by Chakmack, Rowe swore he was certain that it was Chakmack who initiated the conversation and brought up the subject of the Union. (It will be recalled that Chakmack testified he was unable to recall who started that conversation.) On this aspect of the case, i.e., "interrogation," I find that General Counsel has failed to sustain the burden of proof and persuasion which is his, of establishing by a fair preponderance. of the substantial credible evidence that the described conversations between Rowe and Goodyear and between Rowe and Chakmack were coercive or otherwise in violation of Section 8(a)(1) of the Act as alleged. As to Goodyear, the conversation of January 13 occurred within the framework of a social visit between persons who-had exchanged such visits previously, and conversation no more than naturally veered to conditions, at the plant during Goodyear's absence. It will be recalled that when the subject of the union came up, according to Goodyear's own testimony, "I [Goodyear] told him [Rowe] to go ahead, that I didn't mind talking to him about the union." The ensuing discussion, even according to Goodyear, was primarily if not almost exclusively concerned with attempting to ascertain existing grievances or dissatisfactions which could be repaired. There is no suggestion that the union membership or views of any of Goodyear's fellow employees was solicited or supplied. In the overall context of the prevailing situation, in my opinion the described conversation between Goodyear and Rowe on January 13 may not fairly be regarded to have been coercive or otherwise violative of the Act. Nor in my estimation does the casual telephone remark by Rowe to Goodyear on February 16, after inquiring about his health, that he had heard Goodyear was going to be an observer at the election that day, rise to the level of coercive interrogation or other violation of the Act. Cf. Mel Croan Motors, Inc. v. N.L.R.B., 395 F.2d 154, (C.A.5); N.L.R.B. v. Arkansas Grain Corporation, 392 F.2d 161, 165-166 (C.A.8); N.L.R.B. v. O.A. Fuller Super Markets, Inc., 374 F.2d 197, 203 (C.A.5). "Rowe also testified that Goodyear further stated that "he didn't know anything about the Union, the way the thing was originated He said just a handful of the men, is the way he put it." Rowe was professedly unable to recall how or by whom this subject was brought up, while indicating "I [Rowe] wouldn't say he [Goodyear] volunteered" it. 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Insofar as the Chakmack incident is concerned, Chakmack was unable to recall who started the described conversation, while Rowe was positive it was Chakmack who' initiated it and who brought up the subject of the union . Considering the concededly friendly relationship between the two (as Chakmack himself testified, "Mr. Rowe and I are very good friends") and the nature of the conversation as recounted by Chakmack, it seems evident that the discussion was no more than an innocuous exchange of predictions as to the election outcome. There was no attempted elicitation of names or so much as a suggestion of identification of Union members or sympathizers. I therefore also am unable to regard the conversation between Chakmack and Rowe as coercive or otherwise violative of the Act. Cf. Mel Croan Motors and other cases cited supra in connection with Goodyear. The conversations between Rowe and Rhymes, however, appear to be on a different footing. Crediting Rhymes (as has been indicated), it is clear that this was not just casual discussion but deliberate interrogation. Rhymes was approached at his workplace by Rowe, who explicitly questioned him on two separate occasions about Union matters, including the identity of the employee who had solicited Rhymes to join the Union. Rowe's concession that his discussion with Rhymes "probably did" occur as testified by Rhymes largely removes the issue from the area of credibility choice. In view of this concession, as well as my definite impression that Rhymes was testifying truthfully while Rowe awkwardly attempted to hedge until finally admitting that "It could be that I [Rowe] asked him [Rhymes]," I find that Rowe did in fact interrogate Rhymes on two occasions, in or about late January - early February 1968, as to his and other employees' Union membership, activities, and desires, in violation of Section 8(a)(l) of the Act. 2. February: surveillance On the evening of February 14, various employees of Respondent attended a union meeting at Carpenters Hall on Gloucester Street in Brunswick, Georgia. Those who attended that meeting were kept under surveillance by Respondent's Machine Shop Superintendent Rowe, who utilized binoculars for that purpose as he sat in a car parked nearby. Rowe was observed doing this by several employees, as well as by Union Representative DeLoach. At the hearing, Rowe admitted he did this and Respondent conceded Rowe's presence there "observing who was going in and out of the union hall." Rowe conceded that he reported his actions to Respondent's President Tresher the following morning. In defense to what thus appears to have been a clear violation of Section 8(a)(1) of the Act, Respondent contends that it cannot be held responsible for Rowe's action, which it claims was unauthorized. However, Respondent offered ao credible proof of Rowe's lack of authority, and Respondent's President Tresher, to whom Rowe concededly reported the results of his surveillance, unaccountedly did not even testify. To the employees thus being watched, Rowe stood for their employer. The effect of Rowe's extraneous presence at the place and time in question, crudely spying on employees through binoculars, cannot be dismissed as noncoercive by indulging in the farfetched assumption that the employees thought Rowe was merely satisfying his personal curiosity rather than executing a business mission on behalf of the company. And even if it be supppsed that Rowe was prompted by excess of zeal, it was his employer, the Respondent, in whose interest that zeal was exercised , so that Rowe's activity may hardly be considered as frolicsome. It is ancient learning that "servants represent the master himself, and their acts stand on the same footing as his own."" The fact that Rowe 's spying was business rather than a purely personal venture is attested by Rowe's reconnaissance report to Tresher the following morning, which Tresher at no time disavowed or from which he at no time took any step to disassociate Respondent. The coercive impact upon employees , attending a lawful organizational meeting 2 days before a Board-conducted election , of a highly placed supervisor of their employer spying upon them through binoculars from an observation post, cannot be gainsaid nor need it be minimized. Respondent further'contends , in urging that this as well as all other allegations of violation of Section 8(a)(l) be dismissed , that there was an express waiver of further proceedings involving these matters by a stipulation entered into between the Union and Respondent , approved by the Regional Director, to set aside the election of February 16 (because of Respondent' s described conduct) and to rerun the election. It is true that the Board's Tenth Regional Director's March 6 Supplemental Decision, Order and Direction of Second Election recites (p. 2) that "On March 5, 1968, the parties executed a stipulation , a copy of which is attached hereto , wherein they waived a hearing on the [Union's] objections [to the February 16 election] and further Board proceedings in connection therewith, and agreed to the conduct of a second election " (emphasis supplied ). Although the expression "therewith" appears to refer to "the objections," it is unnecessary to take so possibly narrow a view since reference to the March 5 stipulation itself discloses no such waiver . That stipulation (G.C. Exh. 4) merely calls for setting aside the first election and for holding a second election , and expressly waives a hearing on the Union 's objections to the first election or the right to request review of the Regional Director's Supplemental Decision , Order and Direction of Second Election . Contrary to Respondent's contention, the stipulation contains no waiver on the part of the Board or on the part of the Charging Party herein of any "further Board proceedings in connection therewith" (Resp . br., p. 20), including the instant proceedings. It would therefore merely appear that the aforequoted underscored portion of the Regional Director 's for Region 10 March 6 document was an inaccurate or imprecise description of the stipulation . Respondent has made no claim in the instant proceeding that it had any understanding on this subject with the Regional Director or any representative of the Regional Director apart from or in addition to the March 5 written stipulation. I therefore reject this contention and hold that the 8(a)(1) allegations at issue here were not waived and are not barred by reason of the stipulation setting aside the February 16 election or for any other demonstrated reason. It is accordingly found that, as alleged in the complaint, on February 14, 1968, Respondent , through its Machine Shop Superintendent and representative Rowe, in and about the vicinity of Gloucester Street , Brunswick, Georgia, spied upon and kept under surveillance a union meeting of its employees. " Littledale, J., it, Laugher v. Pointer, 5 B. & C. 547, 553. KUT-KWICK CORP. 639 3. February: economic threats General Counsel has alleged that on or about February 15 Rowe threatened that employees would not be considered for reemployment because of their union affiliation , activities, and sentiments ; and that on or about February 16 Tresher threatened employees with economic reprisals for union activity. a. Rowe Respondent's machinist Smith was one of a number of employees included in a December 22, 1967 layoff which is to be discussed. When Smith visited the plant on the following February 14 (2 days before the Union election) and inquired of Rowe about getting his job back, Rowe, after privately consulting with Tresher, told Smith that "Mr. Tresher said for me [Smith] to come back the next day. That his attorney would be in town and he would let me know the next morning whether he'd hire me back or not." Returning the following morning (i.e., the day before the election), Rowe allegedly told Smith that "Mr. Tresher said he couldn't even talk about hiring me [Smith] back until this union mess was over so he said that he would consider talking to me about it then :112 b. Tresher Respondent's assembly shop employee Thomas, who is still in its employ, testified that about an hour before the election on February 16 "Mr. Tresher came by the paint room and he stopped by me and he said, he told me, you better think twice before you vote because you can't hurt me, you can only hurt yourself, and he [Tresher] walks off." V. ;tile General Counsel urges that each of the foregoing statements constituted a coercive threat in violation of Section 8(a) (1) of the Act, Respondent contends that neither was. I am in agreement with Respondent's view and am further of the opinion that Tresher's statement to Thomas was well within the protected confines of Section 8(c) of the Act." Accordingly, I find that under the circumstances shown neither of the indicated statements comprised an economic or retailiatory threat tied to union adherence or activity. C. Section 8(aX3) 1. December 1967 layoff Before any of the foregoing alleged violations of Section 8 (a)(1), Respondent on December 22, 1967, in accordance with its usual custom, closed its plant for a week at year-end. At that time it laid off 6 machine shop" and 6 assembly shop," or a total of 12, employees , paying them for the remainder of that year or until January 5, 1968.16 It is General Counsel 's contention that these employees were discharged , by Respondent on December 22, 1967, and have not since then been reinstated or rehired for discriminatory reasons in violation of Section 8(a)(3) and (1) of the Act; namely, because of their Union affiliation and activity . Disputing this, Respondent claims that its December 22 action was an economic layoff consistent with previous year-end layoff patterns , , and more particularly because of the substantial completion and phasing out of certain extraordinary Government orders received during the preceding year ; that its selections for layoff were unconnected with union adherence ; and that four of the laid-off employees " - all union members - were subsequently reemployed in accordance with usual or characteristic variations in its business cycle. The factual data presented from books and records maintained in the regular course of Respondent's business operations - as distinguished from imprecise, vague, amorphous, equivocal, or otherwise unsatisfactory testimonial recollections, impressions, or generalizations of witnesses on both sides, have been collated and are set forth in Figures 1-7 which follow. Fig. 1: Respondent's Comparative Sales, by Month, 1963 -- April 196818 Diff., 1968 Cumulative Diff., Month 1963 1964 1965 1966 1967 1968 from 1967 1968 from 1967 Jan. $ 23,475 $ 25,872 $ 68,357 $ 19,369 $ 33,921 $ 46,534 $ +12,613 $ +12,613 Feb. 36,986 64,768 47,288 39,542 57,594 47,052 -10,542 + 2,071 Mar. 65,599 66,345 105,668 78,920 89,059 71,254 -17,805 -15,734 Apr. 80,226 82,696 85,136 .76,517 101,279 $1,297 -19,982 -35,716 May 81,326 108,632 99,640 94,477 76,448 Jun. 58,756 68,578 104,822 93,433 105,404 "Respondent's unchallenged records establish that ( I) there was no hire for machine or assembly work in its plant between the December 22 layoff and after the February 16 election, (2) employees rehired subsequent to the Febru try 16 election included Union members, even though Smith (discussed infra) was not among them 'Tresher's at worst ambiguous remark cannot be regarded s necessarily being more than an expression of his opinion that joining the union would not be beneficial to Thomas. This is far from being a threat "I e. B j. Cope, Jones, Mccormick, Smith, Sweat, and West " 1 e. J M Braddock J L. Williams, Perkins, Edmono, H H Blue and Manning "Smith's termination notice indicates he was paid through January 5, 1968 9 e., machinists B. J Cope and Welt, and assemblers H. H. Blue and Manning "I e , to month preceding hearing . Amounts include governmental and nongovernmental sales, less returns, discounts and allowanceil. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Diff. 1968 Cumulative Diff. Month 1963 1964 '1965 1966 1967 1968 from 1967 1968 from 1967 Jul. 70,749 61,169 61,354 58,887 97,625 - - - - - - - - - Aug. 41,409 47,005 65,317 63,248 115,315 - - - - - - - - - Sept 33,281 78,157 103,103 42,654 101,046 - - - - - - - - - Oct 29,831 73,147 61,368 39,773 70,689 - - - - - - - - - No\ 19,974 20,526 85,995 26,183 82,206 - - - - - - - - - Dcc 12,795 14,789 51,320 30,109 44,741 - - - - - - - - - TOTAL $554,407 $711,684 $939,368 $663,112 $975.327 1967 Date Amount20 .Ian 5 $ 2,282 Jan. 5 30,975 Apr. 25 as 194,600 increased Jun. 29 May 17 as 48,168 Increased Jun. 29 Jun. 9 800 Jun. 30 1,911 Jul. 25 1,693 Jul. 26 2,367 Aug. / 3,965 Aug. 7 3,138 Sep. 22 4,158 Oct. 17 3,760 Oct. 25 3,938 Nov. 15 2,107 Nov. 28 8,602 Dec. 14 33,621 Total $346,085 Fig. 2: Respondent's Orders from U.S. Govt.,191967 1967 Feb. Month(s) Order Filled21 Mar. ($16,584); Apr. ($14,391) Jul. ($39,269); Aug. ($39,330); Sep. ($35,966); Oct. ($40,021); Nov. ($19,836); Dec. ($20,178) Jun. ($7,972); Sep. ($16,279); Nov. Jun. Aug. Aug. Aug. Aug. Aug. Oct. Nov. Dec. Dec. ($23,917) Jan., 1968 Feb., 1968 ($11,258); Mar., 1968 ($15,424); Apr., 1968 ($ 6,939) $346,085 Remarks Covers 550 mowers, increased to 670; required completion dates, Dec. 21 and/or 31. Covers 23 Model J902 36" mowers; approx. 4-5 days' assembly work. Covers 42 Model 8-1200 60" mowers; approx. 8 days' assembly work, required completion date, Apr. 20, 1968. "I.e., Defense Supply Agency. "Cents omitted from amounts 111967 unless otherwise specified KUT-KWICK CORP. 641 Fig. 3: Respondent's Comparative Net Sales, Nongovernmental vs. Governmental, 1965-Jan 196822 Jan., 1965 1966 1967 196823 Sales to Regular Dealers $576,271 $640,560 $668,471 $37,940 Sales to U.S. Govt. 370,295 24,952 304,405 8,600 Total $946,566 $665,512 $972,876 $46,540 Fig. 4: Respondent's Comparative Inventories ,24 1965-196725 1965 1966 1967 Finished Products and Work in Process $182,034 $200,122 $172,304 Engines and Engine Parts , Machine Parts, Raw Materials, and Supplies 81,490 89,301 111,279 Total $263,524 $289,423 $283,583 Fig. 5 : Respondent's Comparative Employment Levels, 1965-196826 Week Ending Total Machine Shop27 Total Assembly Snop28 Total Office Jan. 7,1965 18 16 7 Jan.6,1966 23 17 7 Jan. 5,1967 15 17 9 Jan.4,1968 16 15 9 Jan.21,1965 18 16 7 Jan.20,1966 23 16 7 Jan.19,1967 15 18 9 Jan.18,1968 16 15 9 Feb.4, 1965 17 17 7 Feb.3,1966 20 16 7 Feb.2,1967 15 17 9 Feb. 1, 1968 16 15 9 Feb.18,1965 17 18 7 Feb.17,1966 19 16 7 Feb.16,1967 15 17 9 Feb.16,1968 16 15 10 Mar.4, 1965 17 19 7 Mar. 3, 1966 18 16 7 Mar.2, 1967 15 17 9 Feb.29,1968 17 17 10 Mar. 18, 1965 17 20 7 Mar. 17, 1966 18 17 8 Mar. 16, 1967 16 18 9 Mar. 14, 1968 17 17 10 "Apparent discrepancies (none seemingly of major importance) may be discovered among the charts here presented . The charts are based upon data furnished by Respondent in the record and allegedly taken from its books of account. General Counsel has neither offered nor attempted to controvert the enumerated data , although Respondent's books and records were available at as well as before the hearing for his scrutiny and analysis It is not considered to be the Trial Examiner 's function sua sponte to call for or undertake a discovery or accounting-type proceeding. "Amounts are rounded off,. Although it was testified by Respondent's Secretary-Treasurer Burke that Government orders in 1 %8 fell off sharply through the end of April, he indicated that some additional such orders were received subsequent thereto . However, the extent of these was neither demonstrated nor explored by General Counsel. As of the time of the hearing (June 27, 1968), according to Respondent's Secretary-Treasurer Burke, including the two Government contracts carried over from 1967 Respondent had only "half [of the amount of Government contracts] what we had the previous year [1967) at that same time " "At cost, below market. "Source : Corporate balance sheets prepared by accountants Haskins & Sells " 1968 only to date of hearing herein. "Includes (at least 1967- 1968) Supervisors Dean and Rowe, not members of proposed bargaining unit. "Includes (at least 1967-1968) Supervisor Harris, not a member of proposed bargaining unit 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Week ending Total Machine Shop Total Assembly Shop Total Office Apr. I. 1965 20 21 7 Mar.31, 1966 18 17 8 Mar.30. 1967 15 17 9 Mar. 28. 1968 17 18 10 Apr. 15, 1965 20 21 7 Apr. 14, 1966 20 18 8 Apr. 13. 1967 16 18 9 Apr. I I, 1968 19 17 I0 Apr.29. 1965 20 21 7 Apr. 28, 1966 20 19 8 Apr. 27, 1967 18 18 9 Apr. 25, 1968 20 17 10 May 13, 1965 20 21 7 May 12,1966 18 19 8 May 11, 1967 18 18 9 May 9. 1968 20 18 10 May 2 J, 1965 20 24 7 May 26, 1966 17 19 9 May 25, 1967 19 18 9 MaN 23, 1968 19 21 10 Jun. 10, 1965 23 23 9 Jun. 9, 1966 19 15 9 Jun.8, 1967 19 18 9 Jun. 6,1968 19 20 10 Jun. 24,1965 23 23 9 Jun. 23,1966 19 18 10 lun.22,1967 19 20 10 Jun. 20,1968 19 22 10 Jul. 8,1965 23 23 10 Jul. 7, 1966 20 18 11 Jul.6 1967 20 20 10 Jul. 22,1965 22 23 10 Jul. 21,1966 19 18 11 Jul. 20,1967 20 21 9 Aug. 5,1965 21 24 10 Aug. 4,1966 17 17 11 Aug. 3,1967 24 24 9 Aug. 19,1965 23 24 10 Aug. 18,1966 17 16 11 Aug. 17,1967 24 23 8 Sep. 2,1965 23 25 10 Sep. 1,1966 16 17 10 Aug. 31,1967 25 23 8 Sep. 16, 1965 23 25 10 Sep. 15,1966 16 17 10 Sep. 14,1967 22 25 8 Sep. 30,1965 23 25 8 Sep.29,1966 16 17 9 Sep.28,1967 21 25 8 Oct. 14, 1965 22 23 8 Oct. 13,1966 16 17 9 Oct. 12,1967 24 26 9 Oct. 28, 1965 22 22 7 Oct. 27,1966 16 17 9 Oct. 26,1967 23 24 9 Nov. 11 1965 22 22 7 , Nov. 10 1966 16 17 9 , Nov. 9,1967 22 23 8 KUT-KWICK CORP. 643 Week Ending Total Machine Shop Total Assembly Shop Total Office Nov. 25, 1965 22 22 7 Nov. 24, 1966 15 17 9 Nov. 23, 1967 21 24 10 Dec. 9, 1965 22 18 7 Dec. 8, 1966 15 17 9 Dec. 7, 1967 23 23 10 Dec. 23, 1965 22 17 10 Dec. 22, 1966 15 17 9 Dec. 21. 1967 22 22 10 Fig. 6: Dates of Continuous Employment of Respondent's Unit Emplovees29 as of December 22,1967 Laid off on Rehired Sub- Machine Assembly Continuously Employed by 12 22 67? sequent to Union Card Signer No.30 Name Shop? Shop? Respondent Since Date Yes No 12 22 67 Yes No M-I Barfield x M-2 Blue, W. M. X M -3 Chakmack x M4 Cope, G. W. x M-5 Goodyear x M-6 Ogden x M-7 Rhymes x M-8 Scarborough x M-9 Smith x M-10 Christian x M-l1 Kemp x M-12 Head x M-13 Gerces x M-14 Drake x M-15 Langford x M-16 Sweat x Jan. 1. 1964 or prior x x Jan. 1, 1964 or prior x x Jan. 1, 1964 or prior x x Jan. 1, 1964 or prior x Jan. 1, 1964 or prior x x M-17 Jones x M-18 Cope, B. J. x M-l9 West x M-20 McCormick x A-1 Braddock, C. E. A-2 Brown A-3 Calhoun A-4 Cobb A-5 Fleming A-6 Hardee A-7 Joyner A-8 Nixon A-9 Williams, L. A-10 Woods A-11 Brantley A-12 Johnson A-13 Wilkes A-14 Thomas A-15 Braddock, J. A-16 Williams, J. L. A-17 Perkins A-18 Edmond A-19 Blue, H. H. A-20 Manning TOTALS: M: 20 A: 20 x Jan. 1, 1964 or prior x x Jan. 1, 1964 or prior x x Jan. 1, 1964 or prior x x Mar., 1964 x x Feb., 1966 x x Mar., 1966 x x Apr., 1966 x x Apr., 1966 x x May, 1966 x x Jun., 1966 x x (Jun., 1966 ( 1 week); (Jul., 1966 (4 weeks); x (Jul., 1967 x Jul., 1967 x x Aug., 1967 x x x Aug., 1967 x x x Oct., 1967 x x x Jan. 1, 1964 or prior x x x Jan. 1, 1964 or prior x x x Jan. 1, 1964 or prior x x x Jan. 1, 1964 or prior x x x Jan. 1, 1964 or prior x x x Jan. 1, 1964 or prior x x x Jan. 1, 1964 or prior x x x Jan. 1, 1964 or prior x x x Jan. 1, 1964 or prior x x x Jan. 1, 1964 or prior x x x Apr. y, , 1964 x x Ma 1965 x x Jun., 1965 x x (Jun.-Nov., 1965; x (Mar., 1966 x (7 months, 1965; (4 months, 1966; x (Mar., 1967 x x x x x x Jun., 1967 x x x Jul., 1967 x x x Jul., 1967 x x x Aug., 1967 x x x x Aug., 1967 x x x M: 6 M: 14 M: 2 A: 6 A: 14 A: 2 M: 14-11 M: 6 A: 10 A: 10 "Machine shop and assembly shop only (i.e., 5 plant clericals not included), "l e, for numeration purposes only. Machine shop; A: assembly shop excluding supervisors. "l plant clerical (Capps ) was a Union card signer. 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fig. 7: Respondent's Hires After December 22, 196732 Date Started Hire Status Name Job or Dept . Work ( 1968)33 New Rehire or Reinst Remarks Henslee Sales Feb. 12 x Bisdorf Shipping (Clerk) Feb. 19 x Quit Feb. 29 Tippins Shipping Feb. 21 x Quit Apr. 26 Cope, B. J. Machine Feb. 26 x Quit Mar. 21 Johnson, J. P. Shipping (Clerk) Mar. 4 x Quit Mar. 28 West, J. Machine Mar. 4 x Roberson Machine Mar. 4 x Googe Machine Mar. 4 x Murray Machine Mar. 4 x Quit May 9 Patterson Assembly Mar. 25 x (Painter) Ray Machine Apr. 2 x Quit Apr. 11 Thomas Assembly Apr. 15 x (Cleaner) 12/22/67-4/ 15/68 Total Hires ........ . .. . ....... ................................. 1234 12/ 22/67-4/ 15/68 Net Total Hires (i.e., hires less quits) ................................. 634 12/ 22/ 67-4/ 15/68 Net Total Hires (i.e., hires less quits) of Machinists and Assemblers ........................................ 5 Salient facts which may be gleaned from the objective data established by or flowing from these charts are: (I) Respondent's business is characterized by a decline toward the end of the calendar year, with a consistent low in December-January;75 (2) Respondent's 1968 business to the date of hearing was substantially below that in 1967; (3) Respondent enjoyed extremely substantial orders from the Government in 1967," which were (a) practically completed by the end of 1967" and (b) not in any sense comparably forthcoming in 1968 to the date of hearing;" (4) notwithstanding vastly reduced Government orders at the beginning of 1968, Resoonaeut had on hand substantial inventories comoarabie re. Those of prior years." (5) Respondent 'b employment levels in December 1967, both in its machine shop and in its assembly shop, were aribstantially proportionately higher in 1967 than in 1966 (20-25 percent);" (6) except for machinist Smith (to be discussed below), the other 5 machinists laid off on December 22, 1967, and all 6 assemblers laid off on that day, were lowest in seniority of all employees in the respective shops, and practically all had been hired during "Through April 15, 1968. "Not date of hire. "Includes I employee in sales 'Respondent's Secretary-Treasurer and General Manager Burke, in Respondent's employ for 22 years, testified that Respondent's sales are "very highly seasonal," peaking in late spring-early summer, and by December "practically nil " General Counsel witness Goodyear , discharge( by Respondent under circumstances detailed below, agreed that during his 9 years of employment with Respondent the business has been a "seasonal business" with "high employment in the summertime and low in the wintertime to a certain extent," with seasonal layoffs in the wintertime "In view of these, Respondent's Machine Shop Superintendent Rowe (according to his testimony) "had hired five new men [for the machine shop alone] to work on the Government contract in the summer . Tommy Sweat, Tommy Jones, Benny Cope, Jackie West and James R. McCormick," cautioning them when hired "that this is more or less temporary.... I told them that whenever we get a lot of sales and orders we need people, so we hire people . But then we're a manufacturing concern, and whenever our sales drop, our employment drops. . . I told them that it would be temporary, it would only be, you know , maybe a month or two's work ." Rowe's foregoing testimony was corroborated by employee West. "According to Respondent's long-time executive and office manager Burke, who is in charge of its books and records, with a workforce of 15 men the assembly shop should turn out a minimum of 5 mowers per day regardless of model or size. Since at the end of December, 1967 the 2 incompleted Government orders on hand comprised a total of only 61 mowers, there were thus on hand at that time Government orders requiring only 13- 15 days of assembly work for 15 men . (There was, of course, also on hand some nongovernmental work to be done.) "According to Respondent 's Secretary-Treasurer Burke, commencing July 1, i961 ( U.S Government i'iscal Year 1968) there was an economy retrenchment in Governmental spending, resulting in a marked reduction in Governmental lawnmower orders. As of December-end (1967), "there was nothing in the foreseeable future, we had these two small ones [i e , Government contracts] which appeared to be the end of the line as far as Government buying was concerned, and that was our thinking at the time this was our best judgment.... As we go down here on our Government contracts going out they're all completed but two at the end of the year [19671. As a matter of fact, December 12th [1967] was when the [1967 Governmental contract] work was completed . There was nothing coming out of Columbus (Governmental order procurement installation], invitations to bid, or elsewhere And having but two [Government. contracts ] here and it looked here . that business may not be bad but it won't be anything like the previous year ." Burke consequently prophesied "a downhill trend in .... orders or sales," which turned out to be cu, rect. "Respondent manufactures some, but not all, parts for its mowers It makei no motors or motor parts , and additionally purchases some other parts Parts and subassemblies, but not completed mowers, are carried in inventory or against orders in process . According to Respondent's Secretary-Treasurer Burke, the machine shop maintains a lead time, of I to 2 years in advance of the assembly shop in inventories of parts for anticipated or predicted orders, there is, however, no relationship between the number of assembly shop and machine shop employees . According to Burke, at 1967 year-end, Respondent's inventories, although about 10 per cent lower than at 1966 year-end, remained high even without comparable prospects for Government orders in 1968. "See In . 36, supra General Counsel witness Goodyear conceded that during his 9 years with Respondent, seasonal layoffs have normally taken place approximately "from September to .... November ," with the workforce at its lowest ebb by the beginning of December , and that, unlike previous years, in 1967 Company employment was at a "high" point at the beginning of December, the usual seasonal layoffs not yet having occurred by then in 1967 KUT-KWICK CORP. 645 the preceding summer peak 1967 production period at the height of the Government orders; (7) although the 6 machinists laid off on December 22, 1967, were all union card signers, out of a total of 20 machinists there were an additional 8 who also signed union cards but were not laid off; (8 ) although the 6 assemblers laid off on December 22, 1967, were union card signers, out of a total of 20 assemblers there were an additional 5 who also signed union cards but were not laid off;" (9) of 4 laid-off employees rehired subsequent to December 22,42 all were union card signers ; ( 10) as of mid-April, 1968, the net total of all machinist and assembly hires, including rehires. was only 5. As has already been pointed out, it is further to be observed that despite the foregoing showing , General Counsel - who of course carries the burden of proof here - failed to make a countervailing showing through an analysis of Respondent's records or otherwise, notwithstanding opportunity at the hearing (as well as by prehearing preparation ) to do so. We have been reminded that a discriminatory motivation for employee discharge "is not lightly to be inferred."" An employer is, of course, not in violation of the Act if for economic reasons - regardless of the accuracy of his business prognostications - he lays off, or even out-of-hand discharges, employees, so long as his real reason is not antiorganizational or otherwise contrary to the Act's mandate.44 Nor does union membership or activity insulate against layoff or discharge for any reason nonviolative of the Act.45 Under the indicated circumstances, to conclude in the, face of the foregoing showing that the December 22, 1967, layoff was other than economically motivated would be speculative and not firmly pinioned on the substantial credible evidentiary proof which the Administrative Procedure Act46 requires. It is accordingly found that General Counsel has failed to sustain his burden of proof and persuasion by substantial credible evidence to establish that Respondent's described layoff of 12 employees on December 22, 1967, was for union affiliation or activity as alleged. Smith Although Smith is encompassed in the foregoing finding, the fact that he was senior to some other machinists (all union card signers) not included in the December 22 layoff merits separate comment. To begin with, although Smith was a union card signer, no less than eight other machinist union card signers were not laid off. Concerning Smith, Machine Shop Superintendent Rowe testified, in essence, that he was included in the December 22 layoff because of a combination of circumstances and reasons - some more or less conceded by Smith - which cannot be rejected as contrary to fact or stamped as devoid of plausibility. Smith first entered Respondent's employ in 1964. Around the latter part of July, 1967, he returned to work following an absence of over a month for a herniorrhaphy. "General Counsel witness Thomas testified that although he actively solicited on behalf of the Union , he was not laid off Likewise, for auumono, example, Christian was not included in the December 22 layoff, although by his own account he was a leader, if not the initiator , of the 1967 unionization movement °1 e., machinists B. J Cope and West, and assemblers H. H. Blue and Manning Accoraing to testimony of General Counsel witness Thomas, who was not among those laid off on December 22, there was no overtime worked at the plant in the interim between then and the rehirings around the end of February or early March. Before Smith returned , George Cope had been assigned to operation of the screw machine, which Smith had previously operated and was physically unable upon his return to manage . Since work was required on the automatic chucker ("AC"), Smith was assigned to learn to operate that device at night , on second shift overtime, with West (who had recently been hired and was "doing various other jobs, running drill press and what have you") to do any heavy lifting . After Smith had been back only about a week , however, he threatended "to quit" unless given more money . (According to Smith's own testimony, in early September he told Rowe that if he was not granted a raise or overtime he would look for another job and to "consider this .... as my week's notice, that I would be leaving.") After taking the matter up with Tresher, Rowe entered into an arrangement permitting Smith to supplement his pay by doing "extra work," which, according to Rowe, Smith abandoned before completion . Apparently a difference of viewpoint arose between Smith and Respondent concerning the nature of the added compensation Smith was to receive for this work. (It appears that the matter was eventually resolved by the Wages and Hours Division of the Department of Labor after Smith's employment ended .) The night shift, on which Smith had been working since his return to the factory at the end of July, was discontinued' around the beginning of December . At that time, Smith (as well as West) was placed on the day shift, but Rowe "didn't have any other machine to put him [Smith ] on. I [Rowe] wouldn't put him back on the screw machine because George Cope, he'd been over there for about four months then, and George was doing a good job, in fact , he did a better job than Jerry [Smith] did.... George Cope is still on this screw machine." So far as Smith was concerned, ,.we used him [Smith] all around various places after that, on drill presses and stuff like that . And so that's really all, I was just making work then ." Smith conceded at the hearing that when he was returned to the day shift in December shortly prior to the December 22 layoff, he "just done whatever Pete [Rowe] had for me to do .... I run a drill press all that [final] week . . . ." Smith's pay rate was $2 .35 as against Respondent's standard pay rate of $1.70 for drillpress operators . Rowe had also had problems with Smith's coming to work late, although Smith was by no means unique in that respect nor does it seem that that alone would have resulted in his layoff. Respondent's employee Scarborough testified that a few days before the Union election Smith threatened to "beat hell out of [you]." Although this episode was subsequent to his layoff and was, to be sure , disputed by Smith, nevertheless by his own admission Smith has been "N L R.B v McGahey, 233 F 2d 406, 413 (C A. 5), "N L R.B. v. Great Dane Trailers, 388 U.S. 26, 32-35; American Ship Building Company v. N. L. R. B., 380 U .S. 300, 311; N.L R. B. v. Waterman S.S. Corp., 309 U.S. 206, 218-219 ; Barnwell Garment Company, Inc. v N L R.B.. 398 F.2d 777, 778-779 (C.A. 6); N.L.R.B. v. Redwing Carriers, Inc, 284 F 2d 397 (C A. 5); N.L R B v. McGahey, 233 F 2d 406 (C.A 5); Dieckbrader Express, Inc., 168 NLRB No. 113, Kayser-Roth Hosiery Co., Inc., 166 NLRB No. 56 ; Eldo-Craft Boat Co., 166 NLRB No. 52; Lindsey's, 156 NLRB 1114, 1115; Guyon Machinery Company, 155 NLRB 591. 592 " NLRB. v. Bangor Plastics. Inc, 392 F.2d 772, 777 (C.A 6), N L.R.B. v. Ogle Protection Service , Inc., 375 F.2d 497, 505-507 (C A. 6), cert. denied 389 U.S. 843 ; N L.R.B. v. Soft Water Laundry, Inc.. 346 F.2d 930, 934 (C.A. 5). "Clearly, a company may curtail its work force for economic reasons, notwithstanding the plant employees' union representation of organizing efforts." Barnwell Garment Company, Inc , v N.L.R.B. supra, In. 44, at 778. "5 U S.C. Sec. 556 (d). Cf. N. L.R.B v Billen Shoe Co., Inc., 397 F.2d 801 (C A I) 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD involved in pnysical fights: - "Well, I[Smith]'ll tell you, I'm not above one, if that's what you're talking about. I have been in fights during the time I worked at Kut-Kwick and I showed a mark one time . I still show it." Smith's repeatedly expressed dissatisfaction with his pay and his failure and refusal to complete the extra work which he had wanted and had started , according to Rowe, "all came into the decision that Jerry [Smith] be one of them [to be included in the December 22 layoff]." Although according to Goodyear it was Smith and Christian who approached him in November 1967 regarding the possibility of unionizing, even if true this circumstance alone would be insufficient to alter the foregoing. For one thing, there is no showing that Respondent was aware of this alleged fact. Moreover, according to Goodyear the initial employees' meeting with the union representative was by no means limited to Smith, Christian, and Goodyear, but included, among others, Gerces and Langford, who were not included in the December 22 layoff. Neither was Christian or Goodyear. With regard to rehire, reinstatement or recall, the substantial credible evidence does not establish the existence of any firm policy by Respondent with regard thereto, nor, in any event, any discrimination touching Smith in that regard. According to Smith's own testimony, when, in the spring of 1968 he inquired about returning and it appeared there were or might be openings in punchpress work, "I [Smith] didn't volunteer to come back and work in the punch press department for less that what I was making when I left Kut-Kwick." The hourly rate of pay for punchpress work ($1.70) was substantially lower than the rate ($2.45 at flight and $2.35 at day) which Smith had been receiving at the time of the layoff' the previous December 22, prior to which he had been on different jobs including operating the automatic chucker ("AC") on night shift after having operated the Cone automatic screw machine for some years, as explained above. All circumstances considered, therefore, in my opinion it cannot fairly be held that General Counsel has sustained his burden of proof of establishing by a fair preponderance of substantial credible evidence, as distinguished from surmise and conjecture, that Respondent's selection of Smith for inclusion in the December 22, 1967, layoff was for Union affiliation or activity as alleged. 2. March and June 1968: Christian and Goodyear It is alleged that, in further violation of Section 8(a)(3) and (1) of the Act, Respondent in March (and, in the case of Goodyear, again in June), 1968 discharged its employees Christian and Goodyear because of their Union membership and activities. a. Christian The circumstances surrounding the termination of Christian's employment on March 8 are as follows. Christian, a machinist, entered Respondent's employ in February 1966. Christian claims that it was he who, together with Goodyear and Smith, started the unionization movement in Respondent's plant in November 1967. Nevertheless, he was not included in the December 22, 1967, layoff which has been described. According to Christian's own testimony, he resigned his job on February 28, 1968 (Wednesday), stating to Machine Shop Superintendent Rowe that he would be leaving a week from that Friday (March 1), that is to say on Friday, March 8." When, however, prospective other employment thereafter -failed to materialize as expected, he returned to Rowe 2 days later, on March I (Friday) and "told him [Rowe] I [Christian] wanted to withdraw my resignation because I hadn't found the job I was looking fore . . . . And I would like to stay on. He told me, he said, you can't, we've made other arrangements. He said they had three new men coming in on March 4th [Monday]."09 According to Christian, on March 4 (Monday), in fact four new men actually reported for work; and when, at the end of that week, on March 8 (Friday) he received his paycheck with the notation "final wages" and told Rowe, "I hadn't quit. I told him I felt that I had withdrawn my resignation in plenty of time," Rowe replied, "I'm sorry but this will be your last day.' When he subsequently (around the end of March or beginning of April) inquired of Rowe "if they were hiring again, that I would like to have a job back," Rowe replied that although they had hired the previous week, there were no openings then . Christian said he would appreciate a call in a case of a vacancy, but had not been called - nor had he again inquired - as of the date of hearing."'Y' Respondent's Machine Shop Superintendent Rowe testified that he hired a replacement for Christian (who had told him on Wednesday, February 28, that he was leaving on Friday, March 8) on Friday morning, March 1, and that he told this to Christian when the latter informed him about 2:30 in the afternoon (about an hour before 3:30 quitting time that Friday afternoon) that he was going for a job interview that evening and that, since there was another applicant for the job, "could he withdraw his [Christian's] resignation if he didn't get the job. I [Rowe] told him [Christian], I say, no Ray [Christian], I've already made other arrangements. Now I had hired Jackie West and Carl Googe and Benny Cope. . . . for Monday morning [March 4]. And so Ray [Christian] didn't say anything else to me, he went back to his machine." On the following Friday, March 8, according to Rowe. when he gave Christian his paycheck, Christian said, "Oh, t ve been fired? And I [Rowel told him, I said, no. Ray, you "Christian testified on direct examination that he quit because of his dissatisfaction over a changed job assignment which , however, he copcededly did not discuss with management. '"In contrast to this testimony at the hearing , Christian had said in his pretrial statement that on March 1 he asked Rowe whether he "could .vork on until I [Christian] found out about [the other fob]" (emphasis ;applied). "According to Christian , he then told Rowe that the resignation notice which he had given him 2 days before (i.e., on Wednesday, February 281 was "supposed to start" on Friday, March 1 , and that he therefore "felt 1 had withdrawn it in plenty of time " Christian expressed no opinion as to what time on March I his February 28 resignation was allegedly "supposed to start ." As is shown below, by the time Christian told this to Rowe on Friday, March 1 , Rowe had already hired a replacement Moreover, there is nothing in Christian 's testimony to indicate that the notice which he had given to Rowe on Wednesday, February 28, was conditional or subject to withdrawal or modification; or that it was to be held in escrow, so to speak, until March 1 , or otherwise not to take effect before March 1 or before the the close of business of March I, as zlistmguished from merely being calculated as a week from March 1 (Friday, the end of the workweek when the notice was given). According to Christian, Rowe "told me he was sorry but they had done made other arrangements.... he said he hired three new men." "Christian testified that he never did anything about the notation "quit' on his termination slip, and that he never applied for unemployment insurance since when he "went down there .... it was crowded." "Respondent's records appear to indicate that the only hire after this was a cleaner in the assembly shoo - hardly a iob for Christian. KUT-KWICK CORP. 647 quit. I says I told you Friday before that we had already made other arrangements . And he says well, says I must be fired. And I said no, you've quit." Respondent's corporate records corroborate Rowe's testimony that West (who had been included in the December 22 layoff) and several other machinists commenced work for Respondent on Monday, March 4. Under the circumstances, I credit Rowe's testimon-.' that in view of Christian's resignation on Wednesday, February 28, he hired machinist West as a replacement for Christian on Friday morning, March l (before Christian attempted, an hour before quitting time that Friday afternoon, to withdraw his resignation ), to report for work on Monday morning, March 4, which West did." Whether Christian' s version or Rowe's slightly varying version of the circumstances of Christian's resignation and its attempted withdrawal be credited, it is clear that Christian was replaced at his job by West on March 1 before Christian sought to withdraw his resignation, and that when Christian made the latter move there was no longer a milling machine job open. In the absence of discriminatory motivation, an employer is not obliged. under the Act, to discharge a newly hired employee or - with possible legal liability on the employer's part - to rescind his hiring of such an employee to report for work Monday morning, because a resigned employee attempts on late Friday afternoon to change his mind about, or to defer, his resignation. Cf. Sidles Company, 156 NLRB 457, 465, 466. The case is thus unlike the situation presented in N.L.R.B. v. Wigwam Mills, Inc., 351 F.2d 591 (C.A.7), where discriminatorily discharged Union leader EngI had not been replaced before she withdrew her resignation; her employer's refusal to permit the withdrawal under the circumstances there described being clearly discriminatorily and coercively motivated. Here, Christian was replaced before he attempted to withdraw his resignation ; and it has not been demonstrated that he was thereafter discriminatorily denied equivalent available employment. Under the circumstances, there is no warrant for assuming that Christian's termination on March 8 in accordance with his previous resignation was the result of his union membership or activity as alleged. As has already been pointed out, numerous others (including, for example, Thomas, who concededly actively solicited for the Union) affiliated with the unionization attempt have not been terminated, and of those who have some have been rehired. Cf. N.L.R.B. v. Billen Shoe Co., Inc., 397 F.2d 801 (C.A.1). I find that it has not been established by a fair preponderance of substantial credible evidence that Respondent discharged Christian on March 8, 1968, because of union membership and activity as alleged. b. Goodyear Goodyear, a machinist, entered Respondent's employ in `=According to Rowe's testimony , at the time Christian attempted to withdraw his resignation , that is on Friday afternoon . March I , there was a punchpress ion open, which he tilled the following week when he hirea Murray as a punchpress operator . However, Christian had been operating the milling machine at a rate of $1.85 per hour, and Murray was hired for punchpress operation (with which Murray was unfamiliar and which Christian had preformed only once ) at only $ 1.70 per hour. Apparently Christian manifested no interest in such a job on March I or at any time during the following week. "The punchpress is used to make lawnmower shrouds , and the chucker to make bearing cuts, on Respondent's premises. Completed shrouds go to assemblers for welding and assembly March , 1959. Since then , except for a layoff from September of that year until January , 1960, he workeu steadily for Respondent until his termination in 1968 under circumstances to be described . During those 9 years of employment, Goodyear operated Respondent 's punch and drill presses, a sander, a gear hob, a milling machine, and for some 3 years immediately prior to his termination an automatic chucker ("AC")." In early November 1967, at the behest of several colleagues, Goodyear undertook the mission of organizing Respondent's employees for collective bargaining. Among other things this involved his arranging for initial organizational meetings with union representatives, eventuating in the signing of Union cards by a majority of the contemplated bargaining unit of production ana maintenance employees (consisting primarily of machinists and assemblers). The clear indications are that Goodyear was the kingpin of the fall 1967 - Spring 1968 unionization effort at Respondent 's plant. Goodyear was not included in Respondent 's described December 22, 1967, layoff. During the weekend of January 6-7, 1968 (he had worked a full 40 hours during the preceding week ), Goodyear suffered bleeding from a gastric ulcer and, after a brief hospitalization for that and complicating conditions , he was advised by his physician to remain away from work for awhile . Adopting this advice, he filled out disability insurance applications secured from Respondent and began receiving disability insurance oavments. As has been indicatea in another connection , during convalescence Goodyear was visited at home by Respondent's Machine Shop Superintendent Rowe. In the course of the ensuing automobile ride on which he was invited by Rowe, Goodyear mentioned having heard that he had been taken off the "AC" (automatic chucker) jot (which he had been handling for 3 years ). Denying this, Rowe reassured Goodyear that another employee had been assigned to that machine only temporarily during' Goodyear's absence and so as to learn its operation in case of future necessity should Goodyear become incapacitated again. Goodyear made it clear , with Rowe's demurrer, that he expected to be placed back on the " AC" upon his return to the plant. It has also been previousiy mentioned that about an hour before the Union election on February 16, Rowe telephoned Goodyear at home and indicated he had learned that Goodyear was slated to serve as an election observer on behalf of the Union , which Goodyear confirmed . Goodyear thereafter did so, while still on sick status away from work. On March 4 Goodyear was still at home recuperating. On that day, in consequence of a conversation between his wife and Respondent's office employee Mrs. Powell, Goodyear telephoned Rowe at the plant and told him that earlier that day "my [i.e., Goodyear's] wife had called for my [disability or sickness benefit] check and Mrs . Powell had told my wife that my insurance was going to be cancelled and I had quit.... That Mrs. Powell told that she had orders to cancel my insurance , that I had quit ... What's going on'? ... they tell me my insurance is being cancelled and I had quit. . . . He [Rowe] said, yes, that's right. Mr. Tresher [Respondent's president] and the lawyer decided you 'd quit because you'd had your tool box removed . . . from the plant . . . I said, no, I hadn't quit, Pete [Rowe]. I had my tool box brought home because I didn't want it messed up and tore up. I'd paid too much money for that box to have it destroyed .'4 . . . He [Rowe] "Goodyear had purchased a new toolbox during the previous year. It 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said, well, that's the way it is. You'll have to call Mr. Tresher and talk to him. So I said, O. K., well, I'll do it then ... He [Rowe] said he knew I hadn 't said anything to him about quitting, and I said , that's right, I'd be the first one to tell you if I'd quit . And I told him I hadn't quit and wasn't going to quit." On the following day, March 5, Goodyear inquired on the phone if his insurance check had arrived, and Respondent's office clerk Mrs. Powell "said, yes, but Mr. Tresher wants to see you." When Goodyear sent his wife over for the check, she was told by Tresher that Goodyear "would have to come personally to get that check." On March 7 Goodyear retained local counsel to accompany him to the plant office, where, when Tresher gave Goodyear the check, Goodyear's counsel again emphasized to Tresher that Goodyear had not quit, while Tresher insisted that "he's quit all right. He don't have any job at Kut-Kwick . . The attorney said that I [Goodyear] hadn't quit, I was merely out and under the Doctor trying my best to get well enough to return to the plant . He [Tresher] said that I'd quit all right, because I had moved my tool box off the premises of Kut-Kwick and didn't tell nobody." Tresher offered no basis other than the removal of Goodyear's personal toolbox to support his insistance that Goodyear had "quit all right," and Tresher persisted in this contention despite the consistent protestations by Goodyear and his counsel to the contrary. That same evening (March 7), Goodyear wrote Tresher: Please be advised that I want you to definitely understand that I have not resigned nor quit my position with the company but have merely been waiting for the doctor to release me to return to work. I saw Doctor Inman today and he tells me that I am still unable to work. As soon as he tells me I am able to work I plan to report to you and hope to be able to do this in the near future . The reason I had my toolbox removed from the company premises was because the doctor told me that I would probably be out for several weeks and I was afraid some of my tools would get lost, misplaced or stolen and these tools are very valuable to me. Goodyear received no response to this letter. However, in the early part of April he received a "Separation Notice" from Respondent dated April 1 and signed by Tresher, stating that he had "quit" and that the last day he had worked had been January 5, 1968 . At the time he received this form, he was still under medical care and unable to return to work. It was not until April 15 that his physician indicated he could return to work, in a medical certificate stating that Goodyear had been "continuously totally disabled (Unable to work)" from contained tools - including micrometers, caliper, and scales - which, as well as the box, were Goodyear's personal property. Fearing for the safety of this equipment because of his extended absence from the plant, Goodyear had asked Christian to bring it home for him . As Christian was leaving the plant with the box early in February , he explained to Rowe that "I [Christian] was afraid it [the toolbox] would get tore up and his [Goodyear's) tools may be lost.... He [Rowe] told me that he thought it was a good idea that I took it home to Mr. Goodyear.... [Rowe] said he would keep [a key whicn Goodyear bad given to Rowe , to Goodyear's toolbox] until Mr. Goodyear came back." Goodyear was not the only employee who took his personal toolbox home , although this was apparently the first time he had done it. The toolbox key which Goodyear had entrusted to Rowe (arid which Rowe concededly informed Tresher he still had) has never been returned by Rowe , Tresher, or Respondent, notwithstanding further contacts with Goodyear as described below and the fact that Goodyear's home is only a block and a half from Respondent's plant January 7 through April 15, 1968, by reason of a combination of impairments including bleeding duodenal ulcer, diabetes, etc. Under these circumstances , on April 15 Goodyear went to work as manager of an automobile gas or service station, while at the same time endeavoring to be permitted to resume his job with Respondent. On April 18 he phoned Rowe, informing him that he had been medically released for return to work and inquiring if he could resume his job with Respondent. Rowe replied that "as far as I know, Billy [Goodyear], it still stands the way that it was. I [Goodyear] said you mean I still have no job, Pete? And he said, no, you quit. And I said, now Pete, we've been through that one time already, I did not quit, I'm not going to quit. I was merely under the Doctor trying my best to get well and he let me go, I would return to work . So I'm calling you in good faith and asking you for my job back. And he said it still stood the way that it was, that I had quit and had no job at Kut-Kwick. So, he said, the best thing I know for you to do is call Mr. Tresher and I said, well, I'll do so." Goodyear thereupon immediately telephoned Tresher but was told to call him later, which he did, indicating that he had been referred to Tresher by Rowe and that " I'm [i.e., Goodyear] calling you and asking for my job back. And he [Tresher] said, well, you don't have any job over here. He said, you quit . Hollering at me on the phone. And I said, no sir, Mr. Tresher, I hadn't quit, you might be fired me, but I was merely under the Doctor trying my best to get well enough to return to work. Now I'm trying to get you to give me my job back. And he said, no, I [Goodyear] quit. . . . He said, you don't have any job over here but maybe you and your friends can figure out something for you. I said, Mr. Tresher, what do you mean by me and my friends, I don't understand you. I said, tell me in plain English where I can understand you. And he said, you know what I mean, you know what you've been doing to me. I said, no sir, I don't. So then .... he was hollering at me on the phone ."" Thereafter, around April 21 or 22, Tresher visited Goodyear at the service station where he was working and asked him if he wished to retain his insurance coverage which he had through Respondent. When Goodyear replied that he did , Tresher told him he (Goodyear) would have to see the insurance company agent. On May 2, the Regional Director issued the complaint herein containing an allegation as to Respondent's discharge of Goodyear in violation of the Act (based upon charge filed on March 15). On May 17, the Regional Director issued a second complaint involving Respondent's alleged violation of Section 8(a)(5) of the Act for failing and refusing to bargain with the Union (based upon charge filed on May 1). Around the end of May, Respondent's assembly shop foreman Harris visited Goodyear at home and asked him if he wanted his job back . When Goodyear replied that he did, Harris suggested that Goodyear inquire at this time from Tresher since Harris had "been talking to him to see if I couldn't get him to give you your job back." Accordingly, on the following day, around May 28 or 29, Goodyear, this time accompanied by Union Representative DeLoach, went to the plant and spoke with Tresher. Although Tresher offered to take Goodyear back at the same rate of pay, he declined to reinstate him to his former job of "AC" operator, because "you've been sick too much, I can't depend on you," indicating that he "Since Tresher unexplainedly failed to testify , these and other statements credibly attributed to him by Goodyear stand undisputed KUT-KWICK CORP. 649 apparently was satisfactory , the Company physician so reporting. When Goodyear reported to work on June 10 (Monday), he was not placed back on the "AC" machine, which he had been operating for 3 years prior to January." Instead, he was assigned to a large turret lathe. which he had no time operated during his 9 years of employment in the plant . Although he tried his best to operate this should be prepared to be shifted from job to job. When, under these circumstances, Goodyear assented, he was rehired, subject to a physical examination which lathe on June 10, he experienced difficulty because of his small size, light weight, and evidently inadequate physique. Goodyear explained that "It takes a pretty good size man to lock the collet on those [large turret lathe] machines . . in order to lock those collets, it takes weight. If you don't have it, then you have to struggle and wrestle with the machine to work it." The collet holds the metal being turned or cut. As described by Goodyear, the large turret lathe to which he was assigned when allowed to return to work on June 10 and which he had never before operated has a handle perhaps 2 feet in length at a height of 3 /-4 feet; through sheer mechanical pushing force of the operator, the collet is locked in place with a thrusting motion with one hand, while the lathe is grasped with the other "if you're too light so it don't kick it backwards, . . In^order to get that collet to pass over locking position you've got to jump at it to make it lock, if you don't have weight enough to reach over and shove it over." Goodyear, wno is 34, is 5'S" in height and weighs about 113 pounds. For 3 years continuously prior to January 1968 (when he was hospitalized) Goodyear had been operating the automatic chucker ("AC"), which requires no comparable exertion and involved no difficulties arising from his size, shape, physique, or muscularity. By the end of the first day (June 10) of attempting to operate the large turret lathe, Goodyear found his hands "awful red and angry and swollen." He reported to Rowe that his "hands are so sore I can't hardly close them now and my left hand is swollen from locking the collet. And he [Rowe] said he couldn't help it." The following morning he told Rowe that his hands were so sore and swollen he could "hardly shut them" and "how am I going to possibly run that machine today when I won't hardly be able to lock the collets.... He said he couldn't help it, and I asked him , I said, do you have anything else I might could do until my hands got better. And he said, not a thing." Goodyear then returned to the large turret lathe and resumed operating it that day. The following day (June 12) he again explained to Rowe his difficulties with the machine, pointing out that his hands, were swollen and worse than the day before. Rowe assigned him to the small- turret lathe. (Small turret lathe operator Langford was odt sick that day.) In an apparent attempt to establish that it is possible for small men (like Goodyear) to operate its large turret lathe, Respondent produced its employees Drake and Scarborough, who have operated that machine. Drake, who is 3 '/z inches taller and about 10 pounds heavier "When Goodyear returned to work on June 10, the "AC" - the only one in Respondent's plant - was being operated by West, who had been hired about 3 months prior to the December 22 group layoff, had been laid off on December 22, and then rehired on March 1 . In the interim between Goodyear's original date of disability in early January and shortly before West's rehire on March 1 , Christian had been assigned to the "AC." (Christian had been operating the milling machine full-time . However, according to Christian, that machine was in "very little" use from January 5 to February 20.) than Goodyear, and is right-handed, explained that the lever on the large turret lathe is thrown or pushed, from left to right, by a right-handed person, with the left hand while grasping something with the right hand to stabilize himself; and that if the operator does not succeed in executing the maneuver properly, so that the lever fails to engage or lock the collet, it springs back at the operator with "quite a little force." Asked by Respondent's counsel whether (even with his height and weight advantage over Goodyear) he had "ever experienced any difficulty in operating the turret lathe due to your size," Drake replied, on direct examination, "Yes, sir, sometimes I do. It's quite a job to throw that lever over. . . . [that] locks the collet, locks the stock. Sometimes it gets pretty rough . being small like I am, I have to learn to do tricks to throw it over there." Although, according to Drake, he has "learned those tricks.... most of them," nevertheless "I know when I first started it was an awful job for me to try to throw that lever over." Further according to Drake (a plainspoken, forthright witness), fellow-employee Gerces - about 5'8 1/2" and somewnat heavier than Drake - nad to be relieved from turret lathe operation in view of a sore hand or wrist resulting from his, operation of that lathe because of "the terrific strain on them," an experience shared by still another employee, Sweat. According to Drake, "it takes quite some time to get them to where they can really operate it [the large turret lathe]. The biggest problem we have is throwing that lever over. They have to learn how to do that . . . . it would take at least a month or better." Drake testified that with Goodyear's return in June, Drake, who had been operating the large turret lathe, was assigned to the engine lathe, which has no lever of the type described and is easier to operate. Subsequent to Goodyear's termination on June 13, the large turret lathe was operated by Langford, estimated by Drake to weigh around 200 pounds. Respondent's other large turret lathe operator of bodily size superficially resembling that of Goodyear - Scarborough, currently only S pounds heavier than Goodyear, but visibly of wiry build -- testified that he operated this very same turret lathe for 8 or 9 years commencing in 1950, some 18 years ago, without difficulty at that time "because of . . . size," while conceding, however, that he "could have" experienced a "sore arm" from it "when I first started . . . . just [like from any other physical exercise." and agreeing that the lever would come back at him "if I didn't watch it .... You have to keep a steady pressure on it. You can't just push at it." Goodyear's testimony that Scarborough's production on the terret lathe was "bad" was unrefuted. The record indicates that apart from Drake and Scarborough, the operators of Respondent's large turret lathe have been bigger men, such as Langford and Head. The trial examiner also observed West - who, according to`Respondent, was hired on March 1 to replace Christian on the milling machine (which Goodyear was also experienced on); and who (West) had operated drillpresses and had done "various other jobs" - to be a seemingly sturdy young man of vigorous physique. Quite aside from the foregoing, it is common experience that not all "small " men have equal physique or strength, or bodily configurations and characteristics appropriate to all tasks . It is also evident that on his return to Respondent's employ in June, Goodyear was not restored to the job which he had performed for 3 years previously ("AC" operator) or to any equivalent position. although he seemingly could have been - particularly 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with an already trained stand-in or ready replacement for him on the "AC" machine in case of possible future illness. On June 12, Goodyear had occasion ' to visit the dentist. At around 2 p.m. (about an hour and a half before 3:30 quitting time), in the absence of Rowe he sought out Shop Superintendent Dean - who had on previous occasions authorized early departures - and obtained permission to leave. Goodyear thereupon punched out and left shortly thereafter. After stopping by at home and discovering that his wife had neglected to make the necessary ap intment, he nevertheless proceeded to the dentist 's office on the chance of receiving attention . Since he encountered other patients waiting there, he decided to arrange a definite appointment before returning . Being off, he thereupon drove on to Peck's machine shop in Sterling , Georgia - a further distance of about 12 miles - arriving there, by his estimation, around 3:30, and inquired about an opening (he had applied for work there about 3 weeks previously). He was told there was none at that time." On June 13, Goodyear reported to work as usual and proceeded to the small turret lathe . Rowe called him to the office, where fellow-employees Gerces and Head were silently present throughout the ensuing scene . Rowe asked Goodyear where he had been the previous day. Goodyear replied that he had gone to the doctor . Rowe thereupon stated that he had "information .... that you [Goodyear] were out at R. L. Peck 's at 3 : 15." Goodyear denied this, stating he didn't remember where he was "at that particular minute." When Rowe asked Goodyear the doctor's name, Goodyear supplied it. Goodyear told Rowe "he was discriminating against me .... Because of union activity, and he [Rowe] made the reply, call it anything you like." When Goodyear asked Rowe whether he was "going to let me go to work," Rowe replied, "No, I'm going to let you go to work, you're going to stay right here." Goodyear responded that "if you're not going to let me go to work there's no use in me staying here. I'll just go home . He [Rowe] said, well, I'm not going to let you go to work . I [Goodyear] said, well, I'll just punch out then and go on home, so J did so. I punched out and left." Before leaving, however, Goodyear asked Rowe, "why did you plant those two witnesses [i.e., Gerces and Head] against me," to which Rowe replied, "Why did you bring that damn [Union Representative] Gene DeLoach up here with you?" If I 'd been the Old Man [i.e., Tresher] I wouldn't even have talked to you or hired you back or nothing." On June 14, Goodyear received by mail it "Separation Notice" from Respondent dated that day (June 14), signed "At the hearing, Goodyear explained that he had visited Peck's because of his difficulties after being allowed to return to work by Respondent on June 10 in attempting to operate the large turret lathe under the close observation of Rowe "hiding behind machines awatching me. . . . I personally got the idea, they didn 't want me back down there (at Kut-Kwickl from the way he was treating me. So I just wanted to go out there [to Peck's] to see if I could , get me a job to keep from causing any more trouble whatsoever. I'd go out there and try to work where maybe I was wanted instead of unwanted." Goodyear had also, after receiving the "Separation Notice" from Tresher in April, sought or inquired about the possibility of employment elsewhere. "It will be recalled that Goodyear had brought DeLoach with him when, at the end of May - after the filing of charges and issuance of the complaints herein - he went to see Tresher in connection with being allowed to return to work at the plant. "When Rowe spoke to Goodyear on June 13 , the subject of leaving "without permission" was not even mentioned . Goodyear had in fact received permission from Superintendent Dean in the absence - of Rowe; Goodyear's testimony to this effect was undenied by Dean, who unexplainedly failed to testify. by Tresher, stating he "has been discharged," after last working on June 12, because "On June 12, 1968, Left work early without permission . Went to another machine shop looking for job; lied about his whereabouts when later confronted."" Although deeply implicated in the circumstances of each of Goodyear's terminations (March as well as June 13), Respondent's President Tresher did not testify, nor was any reason aavancea tor this failure . Respondent's Machine Shop Superintendent Rowe, however, testified in regard to both episodes. With respect to the earlier (i.e., March) termination (according to Rowe, a generally less than testimonially impressive witness in view of his manifold equivocations, conveniently deficient powers of recall, and patent partiality), Rowe conceded on cross-examination that employees other than Goodyear had removed their toolboxes from the plant and that he had not "considered that they quit when they took their tool box out." Rowe further conceded that Goodyear at no time told him that he was quitting. According to Rowe, subsequent to the toolbox removal, Goodyear "called me up and told me that he understood that we had cancelled his insurance .... I told him that, yean, I had heard Mr. Tresher say something about it and that there was going - he'a have to come down and talk to Mr. Tresher about it. That he had quit.... I told him that we assumed he quit.... He [Goodyear] told me then that he hadn 't quit. . . . I said, well, we assumed by you taking the [tool] box that you had quit.... he said ... he didn't, he hadn 't." (Emphasis supplied.) On cross-examination, however, Rowe acknowledged that he either did not say or could not recall whether he did "say anything [to Goodyear] about the tool box then"; and that he told Goodyear during their telephone conversation on March 4 "that he [Goodyear] had never told [me, Rowe] that he was quitting." From the hearing transcript: - TRIAL EXAMINER: He [Goodyear] told you that he had not quit but you told him that he had quit, is that the way it wound up? THE WITNESS [Rowe] : Basically, yes, sir. TRIAL EXAMINER: Would it be a fair statement to say that Goodyear at all times took the position that he had not quit? THE WITNESS [ Rowe]: Yes, Sir. TRIAL EXAMINER Does Respondent rest its position in regard to Goodyear on the fact that he removed his [tool] box, under the circumstances as described? MR. KELSO [Respondent's counsel]: Yes, Your Honor. TRIAL EXAMINER: Well, but Goodyear told the employer that he was not resigning and that he had not quit. With regard to Goodyear's short-lived June "reinstatement," Rowe's testimony indicates that although he "run[s] the [machine] shop" and normally does the hiring, it was Tresher who hired Goodyear back in June; but that it was Rowe who discharged Goodyear on June 13 after discussing it with Tresher, when Goodyear allegedly (according to Rowe) denied having gone to Peck's "or" said he had gone to the doctor the previous day - although (also according to Rowe) it was Tresher who had ascertained that Goodyear had visited Peck's the previous day.°° Goodyear's testimony that he had 'Respondent also seemingly makes much of the fact that , according to testimony of its witness Wood , Peck's Shop Superintendent, it was before and not after I o'clock that Goodyear arrived there , from which it is KUT-KWICK CORP. Superintendent Dean's permission to punch out early the preceding afternoon is undisputed. The described circumstances are in my view persuasive that Respondent's double discharge of Goodyear stands on an entirely different footing from its December 22 economic layoffs and the March 8 termination of Christian following his resignation and replacement. In the case of Employer-resented union leader Goodyear, in my opinion Respondent's explanation for his discharge on June 13 after his brief tenure of "reinstatement" to a different job which Respondent knew he could not perform61 following issuance of a complaint by the Board's Regional Director upon charges filed by him with the Board after his discharge based on Respondent's frivolous insistence that he had ' quit," in the face of his consistent protestations that he had done no such thing, is trumped-up, pretextuous, and simply does not "stand under scrutiny" N.L.R.B. v. Dent, 207 F.2d 165, 167 (C. A. 9), when all of the facts are considered. In my opinion, General Counsel has amply sustained his burden of proof of establishing by a fair preponderance of substantial credible evidence that Respondent's discharges of Goodyear on or about March 4 and again on June 13, 1968, and each of them , were for discriminatory reasons, because of his Union adherence and leadership. Accordingly, I so find. D. Section 8(aXS) It remains to consider the allegation - based upon a charge filed on May 1 - that Respondent also violated Section 8(a)(5) of the Act by declining since the previous December 11 to recognize and bargain with the Union as duly designated exclusive bargaining representative of its production and maintenance (and some other ) employees, strenuously prgea that Goodyear must have gone there directly. Even assuming that he did - and it is by no means established that he did, or that he could not have stopped off at home (a block and a half from the plant) and looked in at the dentist's before deciding to go on to Peck's - this is not to say that Goodyear had no right to do so on his own uncompensated time after he was expressly granted permission by Respondent to leave (cf. Dumas , Inc., d/ b/a Sterling Manufacturing Company, 169 NLRB No. 126); nor that this patently flimsy excuse was the real reason for his precipitate discharge by Respondent the next day after 9 years of satisfactory employment. "'It is settled that, in order to be valid, reinstatement of a discriminatorily discharged employee must be made in good faith (Earl I Sifers, d/b/a Sifers Candy Company, 92 NLRB 1220, enfd., 171 F.2d 63 [C.A.10]) to employment the same as or equivalent to that formerly enjoyed (Starlite Manufacturing Company, 172 NLRB No. 2; Thomas J. Aycock, Jr., d/b/a Vita Foods, 154 NLRB 1716, enfd. as modified, 377 F 2d 81 IC.A. 51; N.L.R.B. v. Monroe Auto Equipment Company, 392 F.2d 559 [C.A. 5]). Under the indicated circumstances, Respondent's "reinstatement" or "rehiring" of Goodyear on June 10 - on the nets of the institution of a Board proceeding to redress his discharge upon the specious insistence that he had "quit " In the face of his protestations to the contrary - was transparently purposed so as to gain a more plausible 'justification" for redischarging him. It is clear that not only was Goodyear not validly reinstated to his former job, which he had satisfactorily performed for 3 years, but that Respondent deliberately instead assigned him to the large turret lathe, on which he was totally inexperienced and which it knew he was physically incapable of operating, in order to force his resignation or discharge, realizing that it was poised on thin ice in its position that Goodyear had "quit ." No reason appears, for example, why Drake, experienced at and actually engaged in operating the large turret lathe, was removed from that job in order to be assigned to a simpler job on the occasion of the June 10 "reinstatement" and assignment of Goodyear to the large turret lathe; nor why other experienced large turret lathe operators could not have been assigned to that task, if Respondent was in earnest about having it efficiently performed; nor why West, a seemingly sturdy young man with very little seniority (in contrast to Goodyear's 9 years), could not have been taken off the "AC" operation (Goodyear's former job) and moved to the large turret lathe so as to allow Goodyear to resume his former job. 651 appointed such by a majority of their designation cards in its possession. Such a violation, where predicated upon failure to recognize and bargain upon the basis of proffered union bargaining agent designation "cards" signed by employees, requires a finding that the failure to recognize and bargain was in bad faith" with the burden on General Counsel to establish that bad faith." It is within this frame of reference that the underlying facts must be assessed. The proof amply establishes, and n is accordingly found, that on November 28, 1967 the Union held authorizations unambiguously designating it as bargaining representative, intended as such and signed by 24 or 2564 of Respondent's 4565 employees in a conventional and appropriate production and maintenance bargaining unit" and that, based on those designations, which the Union offered to submit for impartial substantiation, on December 16 Respondent received from the Union a written recognitional and bargaining request, which Respondent on January 2 declined, stating that: As stated in a telephone conversation with you on .... December 14, 1967, the Company doubts tnat you represent an uncoerced majority of employees in any appropriate unit and declines to recognize your union until certified. We feel that the interests of all parties would best be served by an election conducted under the auspices of the National Labor Relations Board. We have received a copy of your petition in Case 10-RC-7275, filed December 12, 1967 , and have also received notice of the representation hearing, scheduled for 10:00 January 4, 196[8], in the Federal Building, Brunswick, Georgia. From these we assume you are pursuing the election route.67 "Aaron Brothers Company of California, 158 NLRB 1077, 1078; Ben Duthler, Inc., 157 NLRB 69, 71-72, modified 395 F.2d 28 (C.A.6), Strydel Incorporated, 156 NLRB 11$5, 1186-87; John P. Serpa, Inc., 155 NLRB 99, 100-101, reversed sub nom. Retail Clerks Union , Local No. 1179 v. N.L.R.B., 376 F.2d 186 (C.A.9), Board decision on remittitur 166 NLRB No. 66. "John P. Serpa, Inc., supra, in. 62, at 100 "The testimony of Respondent's employee and witness West, if credited, would ' require the voiding of his designation card for counting purposes here, since he swore that when fellow-employee Smith solicited his signature he "told me .... that the purpose was to get enough signatures on those cards to get started in the progress of an election," and that he thereupon signed the card. Although a degree of doubt was engendered as to his veracity by his insistence that he read only a line or two of the card, despite the obvious necessity to do more in order to be able to write proper information into the blank spaces as he did , it is unnecessary to resolve this doubt or his credibility in this aspect, since even without his card the Union enjoyed a clear majority (24/45). "It was stipulated at the hearing that this unit contained a total of 45 employees at all times in December 1967 to at least December 16. "Consisting essentially of Respondent 's machine shop and assembly shop, aggregating approximately 40, employees. "Union Representative DeLoach testified that he telephoned Respondent's plant on December It, 1967, and spoke to Respondent's Secretary-Treasurer Burke in the absence of its President Tresher, requesting recognition and bargaining upon the basis of majority authorization designation cards it was willing to submit for corroboration; and that Burke told DeLoach he would have to speak to Tresher, which DeLoach said he would do. According to DeLoach, although he thereupon the same day (December 11 ) prepared a recognition-bargaining request in letter form, "it was sent two or three days later, that I actually mailed it." The parties stipulated at the hearing that this letter was received by Respondent on December 16, 1967 . Notwithstanding the foregoing, the Union's election petition, filed at the Board's Regional Office on the morning of December 12 states that no request for recognition had been made by the Union . The Union's election petition was signed by its Grand Lodge Representative in Atlanta. According to Respondent's Secretary-Treasurer Burke, a copy of it was received from the Regional Director on December 14. It is finally noted that Respondent 's January 2 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Respondent. 7s Appropriate provision shall be made in the Recommended Order and posted notice to employees for notification to the discriminatorily discharged employee if he is now in the Armed Forces of the United States of his right to full reinstatement to his former position upon application after discharge from the Armed Forces in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended. Backpay and interest are to be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Respondent shall be required to make available necessary records for computation of backpay, overtime, holiday and vacation pay, insurance, and all other benefits and emoluments lost, denied, cancelled , withdrawn, avoided, discontinued, or interrupted. In view of the nature of the unfair labor practices found, especially the singling out for discriminatory termination on two occasions of an employee of 9 years' satisfactory service and seniority because he sought to exercise rights guaranteed to employees by Congress - I consider it appropriate to include in the Recommended Order a requirement that Respondent cease and desist from infringing in any manner upon employees' rights guaranteed in Section 7 of the Act. General Counsel presses for a bargaining order in view of the 8(a)(1) and (3) violations. At the threshold of consideration of this request , it is essential to distinguish the violations found from the violations alleged but not established. Thus, only relatively insubstantial interrogation has been found , together with an instance of avowed surveillance, as well as Respondent's double attempt to unsaddle itself of Goodyear because of his union activities . It is true that at times unfair labor practices other than direct Section 8(a)(5) violation may evidence bad faith in an employer 's failure or refusal to recognize or bargain following a bargaining demand founded solely on union designation cards, and thereby warrant a bargaining order. It is also true that under certain other circumstances an employer 's insistence on an election as a precondition to bargaining may be overriden and a bargaining order issued upon the basis of an established clear majority of validly signed union designation cards; such as where the employer has engaged in conduct unmistakably demonstrating rejection of the collective-bargaining principle or where he has engaged in so ruthless, provocative or pervasive a program of unfair labor practices as to densely contaminate the relatively pure air which is the ideal in Board -sponsored elections, the results of which are stamped with the Governmental imprimatur and which are therefore properly regardable as models of rectitude and propriety. On balance it would seem , however, that the practices found here were not of such magnitude , scope, or irreparability as to frustrate a fair contest by secret election, such as the Employer stipulated to upon exposure of the misconduct of its perhaps overzealous servitor Rowe in crudely spying upon a union meeting as has been described . Although it is true that since then Goodyear has suffered improper discharge , when that situation is remedied and Respondent's derelictions in that (and other) regard made known to the employees with the posting of the Notice here recommended , there appears to be no reason why the employees' true representation desires 101,1. 4raber Manufacturing Company, Inc. 158 NLRB 244, 256, 257, enfd. 382 F 2d 990 (C A 7). cannot accurately be registered in a Board-conducted secret election. Under the indicated circumstances, in my opinion the policies and purposes of the Act would best be served by permitting the question of representation status to be determined by what the Board regards as the "normally more satisfactory means of determininit employees' wishes" (Aaron Brothers Company of California, 158 NLRB 1077, 1078), of its secret-election process. For these reasons, 1 deny General Counsel's application for a bargaining order based upon the violations here found." Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record, and pursuant to Section 10(c) of the Act, I make the following: RECOMMENDED ORDER It is hereby ordered that the Respondent Kut-icwick Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating in violation of the Act any employee as to his or other employee's union membership, affiliation, activity, sympathy, or desire. (b) Spying upon or maintaining under surveillance, in violation of the Act, any union or lawful organizational meeting or assemblage of or participated in by its employees. (c) Discriminating or threatening to discriminate against any employee because of his union membership, affiliation, activity, support, or sympathy, by discharging, terminating the employment of, or refusing or failing to reinstate or rehire any such employee, or by threatening so to do; or by taking or threatening to take other discriminatory action in violation of the Act against any employee in regard to hire, tenure, or any term or condition of employment, or for exercise or attempted exercise of any right under the Act. (d) Discouraging membership in or any lawful activity on behalf of or support to International Association of Machinists and Aerospace Workers, AFL-CIO, or other union or labor organization of its employees, by discharging, terminating the employment of, or refusing or failing to reinstate or rehire, any employee, in violation of the Act, or by threatening so to do. (e) In any manner interfering with, restraining, or coercing any employee in the exercise of any right under Section 7 of the Act. 2. Take the following affirmative actions necessary to effectuate the policies of the Act : (a) Offer to Billy O. Goodyear immediate, full reinstatement to his former position as automatic chucker (AC) operator, or substantially equivalent position, "Cf. N.L.R.B. v. Breaker Confections, Inc., 402 h.2d 499 (C A 4); N.L R B v. Flomatic Corporation , 347 F.2d 74, 78-80 (C.A 2); J C Penney Company, Inc, 172 NLRB No. 82, Orchard Corp . of America, 170 NLRB No. 141, Eldo-Craft Boat Co., 166 NLRB No 52: Union Carbide Corporation, Olefins Division, 166 NLRB No. 39, 20th Century Glove Company, Inc., 165 NLRB No 122 Hercules Packing Corp, 163 NLRB No. 35, petition dismissed 386 F 2d 790 (C A.2), Wagner Industrial Products Co., 162 NLRB No. 114; modifying, 386 F.2d 981 (C.A D.C). Aaron Brothers Company of California, 158 NLRB 1077, 1078-80; Strydel Incorporated, 156 NLRB 1185, 1187 : Clermont's, Inc., 154 NLRB 1397, 1400-01 ; Hammond d: Irving, Incorporated, 154 NLRB 1071, 1072-73. Cameo Lingerie, Inc, 148 NLRB 535, 538 KUT-KWICK CORP. a labor organization within the meaning of Section 2(5) of the Act. 3. Assertion of jurisdiction herein is proper. 4. On two occasions in or about late January-early February 1968, Respondent through its Machine Shop Superintendent J.P. Rowe interrogated its employee Arthur Rhymes concerning his and other employees' union membership, activities, and desires, in violation of Section 8(a)(l) of the Act. 5. It has not been established by a fair preponderance of the substantial credible evidence that Respondent has interrogated any other employee in violation of the Act at any time as alleged in the complaint. 6. It has not been established by a fair preponderance of the substantial credible evidence that Respondent has threatened any employee by reason of his Union membership, activities, or desires. 7. On February 14, 1968, in Brunswick, Georgia, Respondent, through its Machine Shop Superintendent J.P. Rowe, spied upon and kept under surveillance a union meeting of Respondent 's employees, in violation of Section 8(a)(1) of the Act. 8. On or about March 4, 1968, in violation of Section 8(a)(3) and ( 1) of the Act, Respondent discharged and terminated the employment of its employee Billy O. Goodyear, and thereafter failed and refused to reinstate or rehire him, because of his union membership and activities, and because he had engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection; thereby discriminating against Goodyear in the hire and tenure of his employment, and discouraging union membership and activities and the exercise of other rights under the Act on his part and on the part of other employees. 9. On June 13, 1968, in violation of Section 8(a)(3) and (I) of the Act, Respondent discharged and terminated the employment of its employee Billy O. Goodyear, and thereafter failed and refused to reinstate or rehire him, because of his union membership and activities, and because he had engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection ; thereby discriminating against Goodyear in the hire and tenure of his employment, and discouraging union membership and activities and the exercise of other rights under the Act on his part and on the part of other employees. 10. It has not been established by a fair preponderance of the substantial credible evidence that Respondent discharged its following employees, or any of them, on December 22, 1967, or thereafter failed or refused to reinstate or rehire them or any of them , in violation of Section 8(a)(3) or ( 1) of the Act, as alleged in the complaint herein , because of their union membership or activities, or for engaging in concerted activities for the purposes of collective bargaining or other mutual aid or protection: Henry Hill Blue, Johnny Braddock, Benny Joe Cope, John J. Edmond, Tommy Jones, Zack Manning, Ronnie (James R.) McCormick , Kelly Perkins, Jerry (Lee) Smith, Tommy (A.) Sweat, Jack (Jackie A.) West, James L. Williams. 11. It has not been established by a fair preponderance of the substantial credible evidence that Respondent discharged and terminated the employment of its employee Ray (Cleveland Ray) Christian on or about March 8 , 1968, or thereafter failed or refused to reinstate or rehire him, in violation of Section 8(a)(3) or ( 1) of the 653 Act, as alleged in the complaint, because of his Union membership or activities, or for engaging in concerted activities for the purposes of collective bargaining of other mutual aid or protection. 12. On and at all times since December 11, 1967, the following was and has been a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees of Respondent at its Brunswick, Georgia, plant , including the part-time janitress and plant clerical employees, but excluding the cost system and quality control employee, office clerical employees, professional employees, guards and supervisors as defined in the Act. 13. It has not been established by a fair preponderance of the substantial credible evidence that Respondent has on or at any time since December 11, 1967, in violation of Section 8(a)(5) or ( 1) of the Act failed or refused to recognize or bargain in good faith with the Union as the duly and lawfully designated exclusive representative of the employees in the aforesaid bargaining unit , in respect to rates of pay, wages, hours of employment, or other terms and conditions of employment of said employees or any of them. 14. The unfair labor practices and each of them referred to in Conclusions of Law numbered 4, 7, 8, and 9 affect commerce within the meaning of Section 2(6) and (7) of the Act. 15. It is not having been established by a fair preponderance of the substantial credible evidence that Respondent has engaged in the unfair labor practices or any of them referred to in Conclusions of Law 5, 6, 10, 11, and 13, the complaints herein should in those respects be dismissed. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent in violation of the Act terminated the employment of its employee Goodyear, I shall recommend that Respondent be required to offer him immediate and full reinstatement to his former position of automatic chucker (AC) operator or substantially equivalent position, without prejudice to his seniority, insurance, or other rights and privileges, and to make him whole for any loss of earnings and benefits (including overtime, holidays and vacations , and insurance benefits) he may have suffered by reason thereof, by payment to him of sums of money equal to those which he normally would have earned as wages or received as benefits (including overtime, holiday pay, vacations or vacation pay, and insurance benefits) from the dates of such unlawful discriminations to the date of a valid and proper offer of reinstatement by Respondent, together with interest thereon , less his net earnings if any during such periods." I shall further recommend that Respondent's personnel actions, records or notations pertaining to Goodyear be corrected so as to reflect that he did not quit his employment with Respondent in or about January-April, 1968 as claimed , noted, and reported "In this calculation , among other factors to be taken into account, proper consideration should be given to the fact that Goodyear's physician has indicated (G.C. Exh 35) that he was "continuously totally disabled (Unable to work)" from January 7 through April 15, 1968. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As has already been indicated, in the election which ensued on February 16, of 37 eligible voters, excluding 5 challenged ballots, 21 votes were cast against and 11 for the Union ; that election being subsequently voided by stipulation, following Union objections, calling for a rerun election, which has not been held in view of Union charges filed on May 1.61 Respondent assigns as a basis for doubting the Union's claims, its prior experiences with the same Union, dating as far back as 1951, when the Union lost a Board-conducted election by a vote of 14-8 . In 1955, Respondent entered into a collective agreement with the' Union, without an election, following compliance with a Board Trial Examiner's recommended order that it bargain with the Union (then representing its machine shop employees only), in view of violations of Section 8(axl) and (5). At that time, Rowe as shop steward participated in contract negotiations with Tresher. However, according to undisputed testimony of Rowe, by 1957 employee interest in the Union had lagged to the point of disappearance.'9 Once more in 1965 the Union filed a petition for election (Case 10-RC-6250) based upon alleged recognitional requests earlier in 1965 which Respondent had declined. Afain on April 27, 1965 the Union lost the election, this time by a vote of 31-5 out of 39 eligibles. Without going into the question of the significance of Respondent's experiences in 1951-1957, certainly the justifiability of the impact upon it of the Union's 31-5 defeat at the polls as recently as 1965 cannot be gainsaid. Such experience is a factor properly to be taken into account in weighing an employer's motivation in declining recognition to -a -Union upon the mere basis of designation "cards," and therefore the employer's alleged good faith in entertaining doubt as to the Union's true status as bargaining representative of his employees , who have previously rejected the union by that "secret ballot [which] is normally a more satisfactory means of determining employees' wishes" (Aaron Brothers Company of Cal(ornia, supra, 158 NLRB 1077, 1078)." Superadded here is the fact that Respondent was willing to submit to an immediate election , which the Board has characterized as "very strong evidence of good faith." (A. L. Gilbert letter to the Union , acknowledging receipt of the Union's letter dated December II - which "confirm [s] my [i.e.. DeLoach's] telephone conversation with Mr. Burke in the early morning of this date" - does not dispute any alleged conversation between De Loath and Burke on December 11 , although denied by Burke at the bearing as "100 percent wrong." "Involving essentially the facts constituting the Union's objections to the February 16 election. Under the Board's current policy, these charges and the resulting complaint , here for determination, are not barred by the objections resulting in the Regional Director's order for •a rerun election. Bernel Foam Products Co. Inc.. 146 NLRB 1277, explained in Irving Air Chute Company, Inc.. 149 NLRB 627, enfd. 350 F.2d 176 (C.A.2) Whether the Union's entry into a stipulation with Respondent on March 5 expressly calling for a rerun election likewise did not operate as such a bar is less clear, but need not be decided in view of the disposition reached herein. "Respondent's motion, upon which decision was reserved at the hearing, that these two Board proceedings (Cases 10-RC- 1187 and 10-CA-2057) be officially noticed, is granted, and General Counsel's objection to receipt of Reap. Exh. 16 for identification (communication dated June 21, 1968, from the Board's Director of Information Thomas W. Miller, Jr., summarizing those proceedings) is overruled and that exhibit is received in evidence. "N L.R B v Fashion Farr, Inc., 399 F 2d 764, 768 (C.A.6); N L.R.B. v. Gissel Packing Company, Inc., 398 F.2d 336 (C.A 4); Peoples Service Drug Stores v. N.L.j7.B., 375 F.2d 551, 557 (C.A.6); N L.R.B. v. Johnnie's Poultry Co.. 344 F 2d 617, 620 (C.A.8); Orchprd Corp. of America, 170 NLRB No. 141; Super X Drugs of West Virginia, Inc., 169 NLRB No. 42, Nalco Chemical Company, 163 NLRB No. 19. "To the same effect, see Super X Drugs of West Virginia, Inc., 169 Company, 110 NLRB 2067. 2070.1" Absent an affirmative showing of bad faith, an employer, presented with a majority card showing and a bargaining request, will not be held to have violated his bargaining obligation under the law simply because he refuses -to rely upon cards, rather than an election, as the method for determining the union 's majority." Is this not the more true where the employer has within less than 3 years witnessed a resounding union defeat at a secret election following a request for recognition and bargaining upon the basis of signed Union designation cards? Looking back at the circumstances here, other than the discharges of Goodyear in March and June 1968, there is no showing of unfair labor practices by Respondent so substantial or cumulatively pervasive as to require a finding of bad faith by Respondent, under all of the circumstances, in "refus[ing] to rely upon cards, rather than an election, as the method for determining the union's majority" (Aaron Brothers, supra); nor is there a showing by substantial credible evidence that Respondent rejected the collective-bargaining principle or otherwise flouted the national policies declared or bargaining obligations imposed by the Act. As has been shown, Respondent at one time entered into a collective agreement with the Union; and it far from discharged all union adherents in its December 22 economic layoff, wherein (with the single exception of Smith, for reasons which have been described ) it applied strict seniority. All of the violations here found occurred substantially subsequent to the refusal to bargain, and do not establish a design to disrupt the orderly processes of a Board election. Since Goodyear's discharges occurred long after the election, they can hardly be considered to have affected its results; nor are they deemed , alone or in conjunction with the other violations found, to have closed off the determination of the true representation wishes of Respondent's employees by secret election held under Board auspices at such time as the Regional Director believes is warranted. Upon the record as a whole, it is found that General Counsel has failed to sustain his burden of establishing by a fair preponderance of substantial credible evidence that Respondent's failure to recognize and bargain with the Union pursuant to the latter's demand dated December 11, 1967 was in rejection of the collective-bargaining principle, or to gain time to dissipate the Union's representative status, or otherwise in bad faith; or that it was for any reason other than Respondent's desire to ascertain its employees' representation desires through a Board-conducted election rather than through union-proffered cards." Upon the foregoing findings and the entire record, I state the following: CONCLUSIONS OF LAW 1. Kut-Kwick Corporation , Respondent herein, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Association of Machinists and Aerospace Workers, AFL-CIO, Charging Party herein, is NLRB No. 42; Superex Drugs, Inc., 150 NLRB 972, 978 "Aaron Brothers Company of California, 158 NLRB 1077, 1078. To the same effect, see, e.g., Clermont's, Inc., 154 NLRB 1397, 1400-01, Hammond & Irving. Incorporated, 154 NLRB 1071, 1072-73; Cameo Lingerie, Inc., 148 NLRB 535, 538. "Cf. cases cited supra, fn. 62, 63, 70, 71, and in related text, and 72. KUT-KWICK CORP. without prejudice to his seniority and other rights, privileges, benefits and emoluments, and make him whole for any loss of pay (including overtime, holiday and vacation pay, and insurance benefits), in the manner set forth in "The Remedy" section of this Decision. In the event Goodyear is presently serving in the Armed Forces of the United States, notify him of his right to such full reinstatement upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended. (b) Expunge or correct any personnel or other record, entry or report indicating that Billy O . Goodyear quit the employ of Respondent at any time in or about January-April, 1968 as asserted by Respondent herein. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, overtime records, social security payment records, timecards, holiday and vacation schedules, and all other records necessary to analyze the amount of backpay and extent of benefits (including overtime , holiday and vacation pay, insurance benefits, and all other benefits or emoluments lost, denied, cancelled, withdrawn, avoided, discontinued, or interrupted) due under the terms of this Decision. (d) Post in its factory at Brunswick, Georgia, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Board's Regional Director for Region 10, shall, after being duly signed by Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director , in writing, within 20 days from receipt of this Decision , what steps have been taken to comply therewith." Insofar as it alleges other violations of the Act not herein found , the complaints and each of them are hereby dismissed. "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 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 said Regional Director, 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, an agency of the United States Government. After a trial at which all sides had the chance to give evidence, it has been decided that we, Kut-Kwick Corporation , violated the National Labor Relations Act, and we have been ordered to post this notice. The National Labor Relations Act gives you, as an employee, these rights: 655 To engage in self-organization To form, join, or help unions To bargain collectively through a representative of your own choosing To act together with other employees to bargain collectively or for other mutual aid or protection; and If you wish, not to do any of these things. Accordingly, we give you these assurances: WE WILL NOT do anything which interferes with any of your rights listed above. WE WILL NOT question you in violation of the National Labor Relations Act as to your (or any other employee's) Union membership, affiliation, activities, sympathies, or desires. WE WILL NOT Spy upon or keep under observation your Union meetings or gatherings in order to find out who attends, or what goes on there, or-when, or where, or why. WE WILL NOT discharge or threaten to discharge, or refuse or fail to reinstate or rehire , any of you for joining or being a member of any union, or for any union affiliation, activity, support, or sympathy; and WE WILL NOT in any other way discriminate or threaten to discriminate against any of you because of your union membership, affiliation , activity, support or sympathy, or because you want or try to bargain with us collectively as a group, or because you want or try to do anything else you have the right to do under the National Labor Relations Act. WE WILL NOT discourage you from joining or from any lawful activity on behalf of or in support of International Association of Machinists and Aerospace Workers, AFL-CIO, or any other union of your choice, by discharging or threatening to discharge, or by refusing or failing to reinstate or rehire, any of you because you belong or want to belong to a union, or because you support or sympathize with a union, or because you are active in the union. WE WILL NOT in any way interfere with, restrain, or coerce you in the exercise of any of your rights under the National Labor Relations Act. WE WILL offer immediate, full reinstatement to Billy 0. Goodyear to his former job as automatic chucker ("AC") operator (or substantially equivalent position), and grant him full seniority and all other rights and privileges which he lost or missed since we discharged him around March 4 and again on June 13, 1968; and WE WILL pay him, with interest, for any wages and other moneys, benefits, and advantages lost by him because of those discharges . And WE WILL also have his personnel records corrected to show that he did not quit his job with us. We assure all of you that you are free to join or not to join International Association of Machinists and Aerospace Workers, AFL-CIO, or any other union, as you see fit in your own judgment , without any interference from us in any way, snape , or form. Dated By KUT-KWICK CORPORATION (Employer) (Representative) (Title) Note: Notify the above employee if presently serving in the Armed Forces of the United States we shall notify him of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, 655A DECISIONS OF NATIONAL LABOR RELATIONS BOARD after discharge from the Armed Forces. If employees have any question concerning this notice or compliance with its provisions, they may communicate This notice must remain posted for 60 consecutive days directly with the Board's Regional Office, Room 701, 730 from the date of posting and must not be altered , defaced, Peachtree Street, NE., Atlanta, Georgia 30308, Telephone or covered by any other material. 404-526-5741.