Four Winds Industries, Inc.

342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Four Winds Industries, Inc. and Orange County District Council of Carpenters , affiliated with the United Brotherhood of Carpenters and Joiners of America„ AFL-CIO. I Cases 21-CA-11403, 21 -CA-11507, and 21-RC-12985 June 13, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On August 17, 1973, Administrative Law Judge E. Don Wilson issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. 1. We affirm the Administrative Law Judge's finding that H. Lee Walters, the Respondent's president, did not engage in surveillance of its employees' union or other protected concerted activities at a meeting held on company property for the purposes of collective bargaining or other mutual aid or protection, as alleged in the complaint. In so doing, however, we rely solely on the ground, stated by the Administrative Law Judge, that Walters' activities were without threat or coercion and were therefore nonviolative of the Act. We therefore find it unnecessary, and we do not pass on any of the other grounds stated by the Administrative Law Judge in regard to this issue. We further affirm the Administrative Law Judge's finding that the Respondent, through Thomas E. McAfee, its shop supervisor, did not threaten employees with plant closure if they continued supporting the Union, in violation of Section 8(a)(1) of the Act, as alleged in the complaint. 2. Contrary to the Administrative Law Judge, we find that the Respondent violated Section 8(a)(1) by means of statements, contained in its preelection letters, that the Union never signs a contract, to the Respondent's knowledge, without a union-security clause; the Respondent is opposed to such a clause and does not "believe we have any moral right to force any of our people to join any union to keep their jobs"; the Union would inevitably make unreasonable demands which could be enforced only by a strike; "if there is a strike we are not going to close down our operations for even one day"; and finally advising the employees of the Respondent's right to hire permanent replacements in the event of such strike. When considered with the other viola- tions hereinafter found, these statements, in our opinion, abridged employee rights guaranteed by Section 8(a)(1) of the Act. Tommy's Spanish Foods, Inc., 187 NLRB 235. The above-described statements which, with the single exception noted below, are common to both Tommy's Spanish Foods and the instant case clearly amount to warnings which, in the language of the Board in Tommy's Spanish Foods, supra, 240, had the cumulative effect of telling employees that ... the Union would inevitably call an unfair labor practice strike because of Respondent's bad-faith anticipated refusal to bargain about union security, if the Union should seek such security, and that it would permanently replace or discharge unfair labor practice strikers. We reject as without merit the Administrative Law Judge's effort to distinguish the instant circum- stances from those in Tommy's Spanish Foods on the basis of the Respondent's expression of a moral, as opposed to outright, opposition to negotiating a union-security clause. In our opinion this attempted distinction, in the instant circumstances, is semantic only and therefore devoid of legal significance. 3. We find, contrary to the Administrative Law Judge, that the Respondent discharged employees Joe Rodarte and Jay Cormier and failed to reinstate them because they engaged in union or other protected concerted activities for the purposes of collective bargaining or other mutual aid or protec- tion, in violation of Section 8(a)(3) and (1) of the Act, as alleged in the complaint. According to probative testimony adduced at the hearing, Rodarte was hired in January or February 1972. Within 2 months, he received two raises in pay and was promoted to leadman. On several occasions through October 1972, he was complimented on his good work. Cormier was hired in March 1972. By August 1972, he had received three pay raises and had been complimented on his good work. That same month, Walters, the Respondent's president, told Cormier he wanted "a few good men from the camper building to go over to the motor home building and pick it up." In October 1972, Cormier was transferred to the motor home building.' Rodarte was the key union organizer at the The Administrative Law Judge found that Rodarte and Cormier did Cormier were complimented on their work and again added speculatively; receive pay raises, but added speculatively ; "This may or may not have "So far as the record is concerned , every employee may have been been true of every other employee ." He tacitly conceded that Rodarte and complimented on his job performance regularly, including other employees, 211 NLRB No. 60 FOUR WINDS INDUSTRIES, INC. 543 Respondent's plant. on October 9, 1972, Rodarte, with the assistance of Cormier and other employees, commenced distributing union authorization cards outside the Respondent's plant. By October 12, more than 75 percent of the Respondent's employees had signed cards . Miller, the union representative, visited the Respondent's plant on October 24, told Walters that the Union had a majority of the authorization cards, and requested recognition. Walters replied that he had important business out of town and suggested a meeting on October 26. On October 26, the Respondent sent Walters a letter , found by the Administrative Law Judge to constitute a "clear and unequivocal demand to bargain," which asked for immediate recognition and requested a meeting for contract negotiations. The October 26 meeting was canceled, and when the parties met on October 27 the Respondent stated that it would not recognize the Union and suggested that it pursue Board processes. Following Miller's demand for recognition, Wal- ters became concerned about unionism at the plant and at small group meetings on ensuing days discussed the question of the Union's majority status with a total of 15 to 20 employees , out of the total employee complement of approximately 40 employ- ees. On November 1, Miller escorted members of the Union's organizing committee, including Rodarte and Cormier, around the plant, introduced them to Plant Manager-Tyree- and-Plant Supervisor Garcia, and sought an introduction to Walters.2 On Novem- ber 13, 1972, the Union filed its petition for representation in Case 21 -RC-12985 . On November 17, 1972, the Respondent simultaneously discharged Rodarte and Cormier, allegedly for absenteeism, low production, and violations of work rules. In the above circumstances , we find, contrary to the Administrative Law Judge , that the General Counsel has established by a preponderance of the evidence that the Respondent discharged Rodarte and Cormier because of their organizing activities in behalf of the Union, in violation of Section 8(a)(3) and (1) of the Act. In so doing , we reject the following conclusions of the Administrative Law Judge: ( 1) the Respondent was insufficiently aware of the fact, or extent, of Rodarte's and Cormier's if any, known to, or suspected by Respondent to have the most ardent union adherence." There is no evidence to support these speculations of the Administrative Law Judge and we accord them no weight. 2 The Administrative Law Judge speculated that Walters "may or may not" have met with the organizing committee "and recognized them" on that date . In an apparent attempt, however, to minimize the importance of testimony indicating such an encounter , the Administrative Law Judge rejected, on grounds of hearsay, Walters' account of Tyree's meeting with the committee . As Tyree's account is clearly a declaration against the Respondent's interest, a well-recognized exception to the hearsay evidence rule, we accord this ruling and rejection no weight. 3 Absent supportive evidence , we accord no weight to the Administrative Law Judge's speculation that: "Others than Rodarte and Cormier may have organizing activities, and (2) the Respondent dis- charged Rodarte and Cormier for alleged violations of their conditions of employment. As to (1), we rely on the following facts: that Rodarte commenced organizing at the plant; that Cormier assisted in signing up employees; that Miller introduced Ro- darte and Cormier, as members of the Union's organizing committee, to the Respondent's plant manager and plant supervisor and possibly to Walters, himself; and to Walters' own record testimony, not cited by the Administrative Law Judge, that his awareness of the Union's organizing campaign led him to conduct group meetings with his employees, to endeavor to determine the Union's majority status. In these circumstances, we find ample evidence to support the conclusion, which we hereby make, that the Respondent knew or believed that Rodarte and Cormier were actively engaged in union organizational activity.3 As to (2), the Administrative Law Judge relies almost exclusively on two exhibits, described by him as "reports," on Rodarte's and Corn-tier's job performance, and in so doing credits Walters and Foreman McAfee in support of, and discredits Rodarte and Cormier in denial of, the complaints therein contained.4 In so doing, he totally ignored the testimony of employee Andrew Reimherr, the Res- pondent's only witness besides Walters and McAfee and its only employee witness, who gave uncontro- verted testimony, on the basis of his own observa- tions, that Rodarte's work, which had slowed down for about a month after the commencement of the Union's organizing campaign and picked up and returned to normal during the final 2 weeks of his employment, so that by the time of his discharge he was again "working at his capability." 5 The com- plaints, highly generalized, and with little specifica- tion, concern Rodarte's and Cormier's alleged absenteeism, low production, and work rule infrac- tions. Unlike the Administrative Law Judge, we accord little weight to the exhibits as indications of the Respondent's motivation for discharging Rodarte and Cormier. Most of the shortcomings asserted in the reports occurred after the organizing campaign began, and the reduction to writing of these asserted been much more active in behalf of the Union in the mind of Respondent." 4 The extraordinary extent of the Administrative Law Judge's reliance on the exhibits per se is demonstrated by the following statement from his Decision: Much more than thousands of words of testimony , these exhibits depict at least some of the problems which Respondent had with Rodarte and Cormier which culminated in their terminations. 5 In speculating that "With 32 card signers, one might expect at least a handful of co-employees who would testify as to his [Rodarte's] good qualities, if any, as a worker," and that only one other witness, whom he discredited, appeared in his behalf, the Administrative Law Judge entirely ignores Reimherr's above-described testimony , which was offered by Respondent's witness. 544 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD reasons for the discharges does not insulate them from scrutiny as to whether they were pretexts, even though the Administrative Law Judge, on the basis of credibility resolutions, has found that these shortcomings existed . In this regard, we have but to recall the following above-described probative facts: Rodarte and Cormier were raised in pay and complimented during a period which also covered several of the complaints contained in the job reports ; Rodarte had been promoted to leadman; Respondent continued to tolerate their prior alleged- ly delinquent job performances for 4 or 5 months prior to their discharges ; according to Reimherr's undisputed testimony, Rodarte's production during the final 2 weeks of his employment was quite normal ; and Cormier shortly prior to discharge was transferred to the motor home building to improve the works there because of his good performance on the camper work he had been doing. In these circumstances, we find that Respondent's asserted reasons for the discharges were pretextual, and that Respondent illegally discharged Rodarte and Cormier because of their organizing activities in behalf of the Union, in violation of Section 8(a)(3) and (1) of the Act. 4. We find that the Respondent, through its aforementioned conduct in anticipatorily threatening to refuse to bargain with the Union with regard to a union-security clause, in violation of Section 8(a)(1), also violated Section 8(a)(5) of the Act, by demon- strating the futility of bargaining meaningfully with the Union, and we further find, in the circumstances noted below, that a Gissel types bargaining order is necessary to remedy the violation . These circum- stances include the following: By October 26, 1972, the Union had secured authorization cards represent- ing more than 75 percent of the Respondent's employees in an appropriate unit; on November 17, 1972, the Petitioner filed its instant petition in Case 21-RC-12985 ; on October 30, 1972, and January 3 and 9, 1973, the Respondent circulated among the employees antiunion statements , including the Octo- ber 30 letter hereinabove found violative of Section 8(a)(1) of the Act ; and on January 12, 1973, an election was held, which the Union lost by a margin of 26 votes to 3 votes , with 4 ballots challenged. In Gissel, the United States Supreme Court stated that "In fashioning a remedy in the exercise of its discretion . . . the Board can properly take into consideration the extensiveness of the employer's unfair labor practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future." In the instant circum- stances, we conclude that the extent and seriousness of both the 8(a)(1) violations and the 8(a)(3) discharges committed by the Respondent in its effort to demonstrate to its employees the futility of any further adherence to the Union not only affected the last election, but also destroyed the atmosphere in which a fair election can be held in the future, and that the effect of this unlawful conduct cannot be erased by just a cease-and-desist order. The Supreme Court did not make it a mandatory requirement that there is no possibility of ensuring a fair election by traditional remedies, but stated that if such possibili- ty is slight, and if the employee sentiment, would be more reliably indicated by the cards than by an election, then such an order should issue. We conclude that this rule clearly applies in the instant case. Accordingly, we find that the signed authoriza- tion cards submitted in this proceeding constituted better expression of employee sentiment than an election would be, and we shall therefore order that the election in Case 21-RC-12985 be set aside and that the Respondent be required to recognize and bargain with the Union as the representative of the Respondent's employees in the appropriate unit. The Effects of the Unfair Labor Practices Upon Commerce The activities of Respondent hereinabove found violative of the Act, and occurring in connection with the operations described in section I of the Administrative Law Judge's Decision, have a close, intimate, and substantial relationship to trade, traffic, and commerce between the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. They are urifair labor practices within the meaning of Sections 8(a)(1), (3), and (5) and 2(6) and (7) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By anticipatorily refusing, in its preelection letters to the employees, meaningfully to consider the subject of a union-shop provision in subsequent future bargaining negotiations with the Union, and by stating that, in any resulting strike to enforce such a provision, the strikers would be permanently replaced, the Respondent thereby expressed to them the futility of union support and the potential 6 N.L.R. B. v. Gisse/ Packing Co., Inc., 395 U.S. 575, 614 (1969). FOUR WINDS INDUSTRIES , INC. 545 resultant harm and threatened and coerced employ- ees in the exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act. 4. By discharging, and failing to reinstate, em- ployees Joe Rodarte and Jay Cormier because they engaged in union or other protected concerted activities for the purposes of collective bargaining or other mutual aid or protection, the Respondent violated Section 8(a)(3) and (1) of the Act. 5. All production and maintenance employees, including shipping and receiving employees, lead- men, and truckdrivers employed by the Respondent at its facilities located at 1918 East Occidental, Santa Ana, California, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 6. At all times since October 26, 1972, the Union has been the exclusive bargaining representative of the employees in the aforesaid appropriate unit within the meaning of Section 9(e) of the Act. 7. By refusing to recognize and bargain collec- tively with the Union as the exclusive representative of employees in the aforesaid appropriate unit, the Respondent, since October 26, 1972, has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. Such unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices, we shall order that it cease and desist therefrom, and take certain affirmative action to effectuate the policies of the Act. We shall order that Respondent offer Joe Rodarte and Jay Cormier, immediate and full reinstatement to their former jobs or, if those jobs are not available, to substantially equivalent positions, without prejudice to their seniority and other benefits and privileges, and make them whole for any loss of earnings they may have suffered by reason of their discharge by paying to them sums of money equal to those which they would have earned in wages from the date they were terminated to the date of reinstatement, less their net earnings during such period, backpay to be comput- ed in the manner set forth in F. W.' Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent calculated according to the formula set forth in Isis Plumbing & Heating Co., 138 NLRB 716. We shall further order that Respondent preserve and upon request, make available to the Board or its agents, all pertinent records and data necessary in analyzing and determining whatever backpay may be due. Inasmuch as Respondent's violations of Section 8(a)(1) and (3) of the !Act have undermined I the Union's majority and caused 'an election to be a less reliable guide to employee free choice than the signed authorization cards by which they designated the Union to represent them, and because Respon- dent in failing to recognize and bargain with the Union while engaging in such unfair labor practices violated Section 8(a)(5) and (1) of the Act, we shall further order that as an appropriate remedy Respon- dent be required to recognize and to bargain with the Union as well as to remedy the other unfair labor practices found. See Federal Prescription Service Inc., and Drivex Co., 203 NLRB No. 145. We shall further order that Respondent post appropriate notices. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case , and pursuant to Section 10(c) of the Act , we hereby issue the following: ORDER Respondent, Four Winds Industries, Inc., Santa Ana, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees or otherwise discrimi- nating in any manner with respect to their tenure of employment, or any term or condition of employ- ment, because they engaged in concerted activity or activity on behalf of Orange County District Council of Carpenters, affiliated with The United Brother- hood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization. (b) Failing and refusing to bargain collectively in good faith with Orange County District Council of Carpenters, affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive bargaining representative of all its employees constituting the unit herein found to be appropriate for the purpose of collective bargaining. (c) Expressing to the employees, by preelection propaganda or otherwise, the futility of their union support, anticipatory refusal meaningfully to consid- er mandatory subjects of bargaining such as a union- shop provision, and threats to discharge or perma- nently replace strikers, in a manner violative of Section 8(a)(1). (d) In any other manner interfering with , restrain- ing, or coercing employees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist Orange County District Council of Carpenters, affiliated with the United 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to, engage in other concerted activities for the purpose of collective; bargaining or other mutual aid b"r protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act as modified by the Labor-Management Report- ing and Disclosure Act of 1959. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Joe Rodarte and Jay Cormier immedi- ate and full reinstatement to their jobs or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for loss of earnings in the manner set forth in the section herein entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or any of its agents, all records necessary to analyze the amount of backpay due Rodarte and Cormier under the terms hereof. (c) Upon request, recognize and bargain with the above-named Union as the exclusive representative of all the employees in the bargaining unit described above and, if an understanding is reached, upon request embody such understanding in a signed agreement. (d) Post at its plant in Santa Ana, California, copies of the attached notice marked "Appendix. " 7 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's authorized representative, shall be posted by the 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the election conducted on January 12, 1973, in Case 21-RC-12985 be, and it hereby is, set aside and that the petition for certification of representative in said case be, and it hereby is, dismissed, and that the allegations of the complaint not hereinabove found to be supported by the evidence be, and they hereby are, dismissed. CHAIRMAN MILLER, dissenting: I do not agree with my colleagues' findings that Respondent's statements to its employees violated Section 8(a)(1) of the Act,8 and that the discharge of Rodarte and Cormier was moved by antiunion considerations, rather than by the deficiencies in their work performance which the credited evidence depicts. I would therefore adopt the conclusions of the Administrative Law Judge below dismissing the alleged violations of Section 8(a)(1) and (3) in Coto and would affirm his further judgment that there is therefore no predicate for the issuance of a bargain- ing order under the standards set out in the Gissel Packing case, supra, footnote 6. 7 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 8 See my opinion in Tommy's Spanish Foods, Inc., 187 NLRB 235, 237, and the adoption by the Ninth Circuit Court of Appeals of the rationale I there explicated in rejecting a violation finding predicated on statements similar to those Respondent had made. N.L.R.B. v. Tommy's Spanish Foods, Inc., 463 F.2d 116 (C.A. 9, 1972). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had a chance to give evidence the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representatives of their own choos- ing To act together for collective bargaining or other mutual aid or protection To refrain from any or all these things. WE WILL NOT express to our employees, by means of preelection propaganda or otherwise, the futility of their union support, by anticipation refusal to meaningfully consider mandatory subjects of bargaining, such as a union-shop provision and threats to discharge or permanently replace strikers. WE WILL NOT discriminate against our employ- ees by discharging them in order to discourage membership in Orange County District Council of Carpenters, affiliated with the United Brother- hood of Carpenters and Joiners of America, AFL-CIO, or any other union. WE WILL NOT discharge or otherwise discrimi- nate in any manner with respect to our employees tenure of employment, or any term or condition FOUR WINDS INDUSTRIES, INC. 547 of employment because they engaged in concert- ed activity. WE WILL reinstate Joe Rodarte and Jay Cormier with backpay. WE WILL bargain collectively with Orange County District Council of Carpenters, affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive collective-bargaining representative of our em- ployees in the following appropriate unit: All production and maintenance employees, including shipping and receiving employees, leadmen, and truckdrivers employed by Four Winds Industries, Inc., at its facilities located at 1918 East Occidental, Santa Ana, California, excluding office clerical employ- ees, professional employees, guards, and supervisors as defined in the Act. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent, a corporation, manufactures and sells recreational vehicles and has a plant in Santa Ana, California. In its normal business operations, it annually sells and ships goods, products, and services valued in excess of $50,000 directly to customers located outside California. At all material times, it has been an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED At all material times, the Union has been a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES FOUR WINDS INDUSTRIES, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Eastern Columbia Building, Room 600, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5254. Decision STATEMENT OF THE CASE E. DON WILSON, Administrative Law Judge: Pursuant to due notice, a hearing in this case was held before me on April 23, 24, and 25, 1973, in Anaheim, California. A supplemental decision and order directing hearing and order consolidating cases and notice of hearing was issued by the General Counsel of the National Labor Relations Board, herein the Board, on March 9, 1973, upon charges filed by Orange County District Council of Carpenters, affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein the Union, on November 24, 1972, and January 26, 1973, against Four Winds Industries, Inc., herein Respondent. The parties, other than the Union which entered no appearance, fully participated in the hearing. Briefs were received July 9, and have been fully considered. I Hereinafter all dates refer to 1972 unless otherwise stated. 2 Or October 30. 3 Numbers varied. A. The Issues The issues include whether Respondent (1) has unlawful- ly refused to recognize and bargain with the Union since about October, 1972; 1 (2) on or about November 17, did Respondent, in violation of Section 8(a)(3) and (1) of the Act, discharge Joe Rodarte and Jay Cormier and since then has it unlawfully failed and refused to reinstate them; (3) through its agent, Thomas E. McAfee, did Respondent about October 30 threaten employees with plant closure if they continued to support the Union; (4) did Respondent, through its president, Lee Walters, about October 272 engage in surveillance of its employees' union or other protected concerted activities; (5) in October and in January 1973, did Respondent through Walters distribute literature to its employees threatening a refusal to bargain with the Union in good faith and threatening loss of employment to employees who did not refrain from union activities? B. Background At material times, Respondent had about 40 employees .3 Before September, its camper and mobile home manufac- turing operations were in the same building. About that time, Respondent opened a new building for its mobile home operations. Various employees, including Rodarte and Thomas Granneman,4 were then assigned to such building. About October 9, Rodarte went to the union hall where he conversed with Union Representative William K. Miller. Rodarte received blank union authorization cards from Miller. Rodarte and other employees began distribut- ing such cards during breaks outside Respondent's plant. Signed cards were returned to Miller either through the mail or at a union "meeting" at a restaurant on October 23 .5 Although about 32 signed cards were allegedly given to or previously mailed to Miller at this meeting, 24 are in He testified. His demeanor and testimony impressed me most unfavorably. 5 In addition to Rodarte, about six other employees were present. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence as signed on or before that date. Respondent had 47 employees as of October 24. Miller visited Respondent's plant on October 24, met with Walters, and told him the Union had authorization cards signed by a majority of Respondent's employees, Miller having introduced himself as an International representative of the Union. Miller requested recognition as the employees' bargaining agent. Walters replied he then had important business in Los Angeles and asked Miller to set up an appointment with him for October 26. On October 26, Miller sent Respondent a letter again asking immediate recognition "for the purposes. of negoti- ating an agreement for wages, hours, and working conditions." The letter, signed by Miller, stated the Union's availability to meet with Respondent at a mutually agreeable time and place to negotiate a contract. Contrary to Respondent, I find this was "a clear and unequivocal demand to bargain," even if polite. The October 26 meeting with Walters was cancelled and a meeting with Respondent's counsel, Mr. Nagel, was set up for October 27. Miller and Nagel met at the latter's office on this date. Nagel said Respondent would not recognize the Union which should pursue Board processes. It is plain that at least as of this date forward, Respondent made it plain it did not want a union in its plant. This is no indication of a plan or program to engage in unfair labor practices. C. Alleged Surveillance by Walters on October 30 Although the consolidated amended complaints alleges Walters engaged in surveillance on October 27, it appears clear that it was an incident on October 30 involving Walters and Miller in the vicinity of two or three employees that the complaint refers to. Rodarte testified that on October 30, Miller was having a union meeting on what I find was Respondent's property.7 According to Rodarte, Cormier, Granneman, Little, Villa, Galloway, and he were meeting with Miller at such time and place. As the meeting was breaking up, Rodarte testified he was standing there when Walters walked up and said "It looks like everybody is gone, I wanted to meet some of these gdfys."s Rodarte remembered Walters saying nothing else. He then testified only he, Cormier, and Miller were present when Walters arrived. Cormier testified that when he and Miller and Rodarte were present at Cormier's pickup truck at the end of lunch break on October 30, Walters approached and said "He wanted to see who these people were that were at the meeting with Mr. Miller from the Union." That was all he said, according to Cormier. No one else said anything, was his testimony. Miller testified that on this occasion, when he was with Rodarte and Cormier, Walters came "out" and said he always wanted to meet this "in-plant" organizing committee. Miller at first testified only Rodarte and Cormier were then present. He subsequently added Granneman. He later testified he wasn't sure about Granneman. Walters admitted approaching the pickup truck on October 30. His version of what he said, however, is vastly different than that given by the three witnesses for General Counsel. He testified he told Miller he did not want him on Respondent's property and asked Miller to leave. I credit his version of what he said. His demeanor impressed me very favorably. Obviously he knew Rodarte and Cormier (and perhaps Granneman) and would not have to say he was glad to meet or see them. If he saw them, as he probably did, they probably saw him and knew he saw them with Miller. There was no occasion for him to say what they attributed to him. I find he did not. Walters had an unfettered right to order Miller off Respondent's property. Miller was an uninvited trespasser. Indeed, assuming arguendo that Walters saw a union meeting being held on Respondent's property,9 he had an absolute right to look at it, talk to those employees of his attending it, and tell them he had always wanted to meet them.10 Certainly, it was not up to Miller or the employees to choose Respondent's plant as a union meeting place. They certainly were inviting the owner to look at them or talk to them even about the Union or their other activities on his property. The union organizers had found a meeting place other than the plant of Respondent earlier. They did not have to select Respondent's property as a place to have a meeting on October 30. Miller had no right to be present, absent invitation, and the employees' activities thereon were lawfully subject to observation or comment or inquiry by Walters, absent threat or unlawful promise by him. It is most natural for an employer to watch over his employees on his premises and to have an interest in their activities.11 Walters' activities in this instance, in their worst light, were without threat or coercion and nonviolative of the Act. Indeed if General Counsel's version of the conversation were to be accepted, the pleasant and innocuous remarks of Walters, if replied to by the employees, might have culminated in a contract. D. Alleged Threat to Bargain in Bad Faith and Threats of Job Loss, and McAfee's Alleged Threat to Employees of Plant Closure if Employees Continued to Support the Union The above matters are alleged in separate paragraphs in the complaint, but for convenience's sake they are here considered together. On October 30, January 3, 1973 and January 9, 1973, Respondent distributed antiunion and pro-Respondent preelection literature to its employees, the election being held on January 12, 1973, the Union having filed a petition on November 13.12 The literature distributed by Respondent is comparative- ly voluminous. Although requested, General Counsel failed 6 Hereinafter, complaint. property was an "easement." If it were Respondent's easement, so what? 7 1 credit Walters' testimony that it was Respondent's property. Others 10 No threat or promise, expressed or implied. who testified were not in a position to know. 11 I cannot find "surveillance" just because an employer observes his 8 This was Walters' property and his employees were meeting thereon. employees on his property. 9 No factual basis was even offered to support Miller's testimony that the 12 The Union lost 26-3 with 4 votes challenged. FOUR WINDS INDUSTRIES, INC. 549 at the hearing to delineate those portions which allegedly violated the Act.13 Parts have been set forth in General Counsel's brief and I direct my attention to them along with whatever McAfee said. This case is entirely different from Tommy's Spanish Foods, Inc., supra. Respondent's October 30 letter says, in part, that this Union never signs a contract, to Respondent's knowledge, without a union-security clause. In this letter, Respondent states it is opposed to such clause and does not "believe we have any moral right to force any of our people to join any union to keep their jobs." 14 Respondent forecast that the Union would inevitably make unreasonable demands which could be enforced only by a strike15 and "If there is a strike we are not going to close down our operations for even one day. "16 (Emphasis supplied.) The letter continues with reference to Respondent's right to hire permanent replace- ments, etc. On January 3, Respondent distributed a lengthy pam- phlet stating, among other things, that once it had "negotiated in good faith" and found the Union's demands non-acceptable, the Union could only strike and "we're not going to close down our operations for even one single day." Strikers would be permanently replaced. It plainly told the employees it would never sign a contract which would make it noncompetitive. Again on January 9, 1973, Respondent distributed another rather lengthy document. It was first stated Respondent had the absolute right to refuse to grant any union demand Respondent did not believe was in its best interests. Then, again, it was stated the Union would insist on a union shop if it won and Respondent did not believe it had the moral right to force any employee into the Union.17 Then it was forecast that if no agreement was reached, after Respondent bargained in good faith, there would be a strike18 and "we will not close our plant for even one single day." Strikers would be permanently replaced. Respondent said it had the right to decide what was good for it and the Union could not force Respondent to sign a contract Respondent did not agree to.19 No matter the way in which I have studied the above three documents, and I have studied them every way I know how, I find not a trace of a violation. I find no unlawful threat or promise. I find an affirmance that any bargaining would be in good faith. There was no anticipatory refusal to bargain. I find a statement that economic strikers would be permanently replaced. Such was obviously lawful. An employer, this Respondent, made the businesslike statement that after good faith bargaining it would not agree to a contract which would make it noncompetitive.20 In making a statement that it had no "moral" right to agree to a union shop contract, it did not deny that standards of morality can be learned at the bargaining table. It said it would bargain in good faith. "Moral," of course, usually relates to concepts of right and wrong. It can also apply to "principles, standards or habits." "Flexible morality" is not unheard of. Certainly, the Respondent could tell its employees a union could do them no good. Such was its lawful opinion. Nothing in the distributions of letters or documents by Respondent may be found to be other than protected free speech. Respon- dent never said it would not "bargain" about union security. It merely affirmed its "moral" opposition to such a contractual provision. The history of bargaining under the Act demonstrates that both unions and management have accommodated their ideas of "morality" to the realities of facts as they presented themselves for solutions in the course of good faith bargaining. We are here not dealing with the Natural Law, nor the Absolutes of Unchanging Right and Wrong, nor Eternal Verities. We are dealing with "good faith" bargaining within the meaning of the Act. In no way did Respondent say it would do anything but bargain in good faith. To be "morally" opposed to union security does not mean that an employer believes he will be "sinful" if he agrees to it after "bargaining in good faith." This Respondent was, not like the one in Tommy's Spanish Foods, Inc., supra, who anticipatorily refused to bargain with the Union on union security and announced that unfair labor practice strikers would be permanently replaced. To be "morally" opposed to a union-security agreement is no worse than to be "morally" opposed to raising wages or granting an extra holiday, or having stores or movies open on Sundays, etc. This Respondent emphasized its willingness and readiness to bargain in good faith should the employees select the Union as their representative. Who knows? After such bargaining, it might have signed a contract with a union- security clause even though still "morally" opposed to such a clause. The Act does not prohibit "moral" opposition to a contractual clause any more than it does economic or intellectual opposition so long as such opposition does not negate or frustrate "good faith" bargaining. I find General Counsel has failed to prove by a preponderance of the probative and substantial evidence that this Respondent even indicated it would not bargain in good faith about any bargainable issue21 including union security. We come to the alleged unlawful threat of Respondent's shop supervisor, Thomas E. McAfee, on October 30, that Respondent would close the plant if its employees continued supporting the Union. In substance, such is alleged to be the "fact" in paragraph 12 of the complaint. Rodarte was offered as General Counsel's witness in this regard. Rodarte testified that at the coffee break on October 30, McAfee said, "something to the effect that if this continues Lee Walters is pretty stubborn and he will shut the plant down before he will let a union in." He testified he was "quoting" McAfee as to something the latter allegedly said about 6 months earlier. Rodarte testified McAfee gave no indication of what he meant by "if this continues." Since the rest of the "quoted" statement is so conditioned, I cannot interpret the 13 He referred to Tommy's Spanish Foods, Inc., 187 NLRB 235. He conveniently ignored it in his brief. 14 Clearly a statement of "opinion" and "belief." 11 Again, "opinion." 19 Compare with alleged statement of McAfee. 17 Opinion. 18 Opinion. 19 So true. 20 And perhaps put it out of business? 21 "Moral" opposition is not the same as an expressed determination not to agree to a union-security clause . A statement of "moral" opposition is merely a statement of opinion or belief. Respondent did not in any manner state it had a "closed mind" on union security. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statement as a whole. One can speculate at will as to what "this" referred to. It could mean protected union activity by employees in which case General Counsel would have proved the allegation of paragraph 12 as an unlawful threat. "This" could mean repeated threats by union adherents to destroy plant property or do violence to employees who did not support the Union, or anything concerning activities prohibited by the Act. Then the statement would not violate the Act. I cannot and should not guess at what McAfee meant by "this." 22 I have also considered that McAfee's alleged statement was made right after Walters told everyone he would not close down the plant for a single day, even if there were a strike. I find McAfee was honestly confused and lacking in memory as to just what, if anything, he may have said to Rodarte on this occasion. I find General Counsel has failed to establish by a preponderance of the probative and substantial evidence that Respondent violated the Act, as alleged in paragraph 12 of the complaint. To find a violation would require impermissible speculation. E. The Alleged Unlawful Discharges of Rodarte and Cormier Rodarte, it appears, began the union organizing at Respondent's plant. There is insufficient probative or substantial evidence that Respondent knew this or the extent of his union activities. Cormier testified he handed out authorization "cards." He then testified he handed out "one," that he could remember. There is insufficient probative and substantial evidence that Respondent knew this. Undenied is testimony that on November 1, Miller introduced Rodarte and Cormier and some other employ- ees to Respondent's representatives, including Plant Manager Tyree and Plant Supervisor Garcia, as the union organizing committee. Walters may or may not have had so met and recognized them on that date. Neither Garcia nor Tyree testified and I do not accept Walters' hearsay version of Tyree's encounter with Miller and the employees as competent evidence.23 General Counsel proved 32 employees had signed authorization cards by October 24 since October 9. I figure this was in excess of 75 percent of Respondent's employ- ees. Respondent plainly did not want a union to represent its employees. This was its right. I find not an iota of credible and substantial evidence that it, in any way, resented any union activities of Rodarte or Cormier. There is no substantial evidence that either was ever warned to refrain from engaging in any activities protected by the Act. Each of them was granted wage increases during the course of his employment. This may or may not have been true of every other employee. So far as the record is concerned, every employee may have been complimented on his job performance regularly, including other employ- ees, if any, known to, or suspected by Respondent to have the most ardent union adherence. Aside from the fact that there is no substantial evidence that Cormier engaged in much more than a minimal of union activity, there is no substantial evidence that Respondent was aware of any more than the fact that each was a member of the Union's "in plant committee," 24 as a result of Miller's introduc- tions of November 1. This is considered by me in light of the accepted evidence that Miller, a week earlier, had told Walters that the Union represented at least a majority of Respondent's employees.25 Others than Rodarte and Cormier may have been much more active in behalf of the Union in the mind of Respondent. Indeed, unless one finds as ipse dixit that the very discharges of Rodarte and Cormier prove not only a belief by Respondent that they were prime union leaders but also that Respondent was unlawfully motivated as to them or other union supporters, General Counsel has failed to establish a prima facia case as to- their discharges. That their discharges occurred not long after the Union filed its RC petition is not ignored by me. Timing is most relevant. Most irrelevant is post hoc ergo propter hoc. I find the so-called timing here has naught to do with the legality of the discharges. They must not be looked at only in the framework of union activity in the plant of a Respondent who preferred that his employees not be represented by a union. Also must be considered Respondent's entirely lawful motive for discharging them because their work had deteriorated and not improved in spite of warnings that failure to shape up would result in discipline. As to "timing," I find Respondent much earlier would have discharged Rodarte and Cormier, but for its counsel's sage advice that it would be most dangerous to discharge employees in the midst of the Union's campaign. Such advice finally was not followed, wisely or not, because Respondent no longer could tolerate a continuation of their bad work habits. There is much conflicting testimony in the record as to whether each of these employees did poor work and was warned of discharge for such reasons. Much more reliable than any such testimony are Respondent's Exhibits 3 and 4, 3 being a report on Rodarte and 4 being a report on Cormier. Respondent's Exhibit 3 shows Rodarte was "again warned" by McAfee about his attendance, on September 17, he having been late four times in the preceding 4 weeks and having missed 20 hours' work in the last 4-week period. It further shows he was "warned" again on October 10 by McAfee because of continued poor attendance. He was then "very argumentative." He was told the warning was serious. McAfee recommended to Walters that Rodarte be replaced if he did not improve during the next 4 weeks. On October 31, with or without justification, Walters warned Rodarte about violating a "no smoking" rule. Walters noted that Rodarte seemed "to be challenging dismissal." It was noted by Walters that other workers feared a layoff because of poor production in Rodarte's setup department. On November 14, Walters noted that McAfee recommended Rodarte's discharge. It was noted that Rodarte had continued to ignore warnings and other 22 Nor should anyone else. 24 Number unknown so far as this record is concerned. 22 No reason was advanced for the absence of Tyree and Garcia as 25 75 percent or more? witnesses. FOUR WINDS INDUSTRIES, INC. workers were inquiring why his poor work standard was tolerated.26 His replacement was recommended to avoid layoff of other employees. On November 17, he was terminated for poor attendance,27 lack of interest in his job, and jeopardizing the jobs of others. With 32 card signers, one might expect at least a handful of coemployees who would testify as to his good qualities, if any, as a worker. None but. Granneman was produced and his demeanor impressed me most unfavorably and I found his testimony, in general, to be unworthy of credit. Respondent's Exhibit 4 deals with the work record of Cormier. I find no need to review it in detail. It differs not substantially from Respondent's Exhibit 3 in that it details failings of Cormier, warnings to him, etc., culminating with his termination on November 17 because of "lack of performance." One could, as I did, when the above exhibits were first produced, "suspect" that they were prepared solely for this trial. I find my "suspicion" was baseless as would be true of a similar suspicion by anyone else. Rodarte and Cormier denied that the facts set forth in Respondent's Exhibits 3 and 4 were true, but I do not credit their denials. Walters and McAfee credibly testified as to the truth of the matters set forth in Respondent's 3 and 4. Crediting Walters, as I do, I find Respondent's Exhibits 3 and 4 were "score" sheets or "report" sheets such as Respondent maintained for each employee. It was compa- ny policy to prepare such sheets for each employee 28 The exhibits were company records prepared as the events occurred. Notations on the exhibits were prepared on or about the dates the events narrated thereon occurred. They were prepared and maintained in the regular course of business as events occurred and not for the purposes of the trial. There is no credible evidence that these exhibits were fabricated in any manner. To the extent that Rodarte or Cormier dispute the accuracy of any statement contained in either exhibits, I do not credit their testimony. I credit Walters' testimony that the matters narrated in the exhibits accurately reflect events concerning Rodarte or Cormier on or about the dates noted in the exhibits. Much more than thousands of words of testimony, these exhibits depict at least some of the problems which Respondent had with Rodarte and Cormier which culminated in their termina- tions. I find they were accurate records made contempora- 551 neously with the events narrated therein. I give no credit at all to the testimony of Rodarte and Cormier that such events never occurred. I find they deliberately misstated the facts. I I find Respondent has established that it discharged Rodarte and Cormier for the reasons set forth in Respondent's Exhibits 3 and 4. To the contrary, I find General Counsel has failed to establish by a preponder- ance of the probative and substantial evidence that either Rodarte or Cormier was discharged by Respondent because either engaged in any activity protected by the Act. F. Bargaining Order Plainly, the record establishes no violation of Section 8(a)(5) of the Act and no remedy contemplated by Gissel Packing Co., 395 U.S. 575 (1969), is called for. Concluding Findings I conclude on the basis of the entire record that General Counsel has failed to establish any violation of the Act by Respondent by a preponderance of the probative and substantial evidence and that the consolidated complaint should be dismissed in its entirety. The record establishes that the Union's objections are without merit and should be dismissed. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact and upon the entire record, I make the following conclusions of law: 1. At all material times Respondent has been an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. The record does not establish that Respondent has engaged in the unfair labor practices or any of them alleged in the consolidated complaint and it establishes no merit to any of the objections to the election presented to me for consideration. [Recommended Order omitted from publication.] 26 Shop production was dependent upon his department's production. 28 Such was not successfully disputed by General Counsel. 21 His timecards were made available to General Counsel.