Industrial Products, Inc.

INDUSTRIAL PRODUCTS, INC. Industrial Products, Inc. and Phyllis S. Donaghy, Martha A. West, and Joan M. Meek. Case 25-CA-6061-1, -2, and -3 January 13, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND KENNEDY On August 26, 1974, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in opposition to exceptions filed by the General Counsel. 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Industrial Prod- ucts, Inc., Greenfield, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge: A hearing in this proceeding was held on June 19, July 8, 9, and 10, 1974, at Greenfield, Indiana, on complaint of the General Counsel against Industrial Products , Inc., herein called the Respondent or the Company . Separate charges were filed by Phillis Donaghy on January 23, 1974, by Martha A. West on the same day , and by Joan Meek on March 14, 1974, and the complaint issued on March 27, 1974. The complaint was variously amended thereafter, and the ultimate issues of the case are whether a number of employees were discharged by the Respondent in violation of Section 8(a)(3) of the Act. Briefs were filed by the General Counsel and the Respondent after the close of the hearing. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 133 Industrial Products, Inc., is engaged in the manufacture, sale, and distribution of electronic components and related products, with its principal office and place of business at Greenfield, Indiana. During the past year, a representative period, it manufactured, sold, and distributed products valued in excess of $50,000 which were shipped from that location directly to States other than the State of Indiana. I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, herein referred to as the UAW, and American Federation of Labor and Congress of Industrial Organizations, herein referred to as the AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. A Picture of.the Case The sole issue of substance in this case is whether the evidence proves the complaint allegation that the Respon- dent violated Section 8(a)(3) of the statute in the discharge of each of nine employees it dismissed during October 1973. Denying any illegal motivation in its action, the Respondent asserts all these discharges were dictated by economic considerations . A brief statement of chronology will make clearer the respective theories of both prosecu- tion and defense. The pivotal date in the story is October 12, a Friday, because on that day the Company discharged 8 of its then production and maintenance complement of 59 workers. Two or three girls testified first talk of going union was heard about 2 weeks before October 12. Four women went to a meeting at the home of a Mr. Ellis , UAW organizer, on October 4; these employees were Marge Poynter, Joan Meeks, Sue Donaghy, and Martha West. They signed UAW cards. The idea got around that the UAW was the wrong union, so some of the women held a second meeting, where they all signed AFL-CIO cards and obtained a further supply for soliciting more signatures. This meeting was held on Tuesday evening, October 9, at the home of one of the employees-Poynter; present were three other employees-Barbara Harding, Meeks, and a woman called Becky . There was some talk among the employees the next 2 days-Wednesday and Thursday '-and a certain , amount of solicitation for more signa- tures. On Friday afternoon, October 12, towards the end of the workday, eight women were told there was no longer any work for them ; none had been given advance notice. Eleven days later, on October 23, the Company discharged three more women, again with no advance notice. As formal notice of discharge, each of these 11 women was given a written statement explaining the action was made necessary because "due to the lack of component parts it has become necessary for us to reduce our work force." As 216 NLRB No. 24 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD will appear below, some of the 11 employees so discharged were involved, in varying degree, with the union move- ment; some others had nothing to do with it at all. As originally issued on March 27, 1974, the complaint picked 5 of these 1 I discharged employees and alleged they were dismissed "because said employees formed, joined and assisted . . . the Union ...." [Emphasis supplied.] It is to be noted that the very precise theory of complaint at that point was that the five persons named were released because of the union activities they personally engaged in; this carries with it, of necessity, as always in such cases, the correlative assertion that the Employer knew of their individual union activities and resented it as a pinpointed dislike of these special employees. On June 11, the Regional Director amended the complaint by adding the name of Carolyn Anderson, as a sixth employee illegally discharged in the same fashion and for the same reason applicable to the other five. At the start of the substantive hearing , on July 8, 1974, the General Counsel amended the complaint by adding the names of 3 more of the I 1 persons discharged in October; these are Sue Gobbard, Janet Goforth, and Janet Griffith. As to these three, the complaint now alleged a different kind of unfair labor practice; it says the Company got rid of them "because certain of Respondent's employees were engaged in the act [union activities ] . . . and . . . to discourage its employees from engaging in such acts...." What this language says-certainly what it means-is that it is immaterial whether any of these three persons did or did not engage in any union activities, and it is equally immaterial whether the employer knew about their participation or nonparticipation; its purpose in their discharge was to stop union activities anywhere in the Company by anybody. Another, and more significant amendment was added to the complaint on July 8. It now alleges that the six other dischargees named were themselves also discharged "be- cause certain of Respondent's employees were engaged ...: ' This second theory of illegality, now also attached to the six, is in the complaint as an addition to the first, which still remains, that they were the pinpointed targets of illegal discrimination because the Company knew of their specific and individual union conduct. From this late change of theory by the prosecution, and from the seeming inconsistency in the two theories suggested as to the six people, a certain confusion arises. The General Counsel was asked to state his ultimate arguments more precisely as the hearing progressed. As I understood his final contentions , they are as follows: (1) There was no need to discharge anybody at all in October 1973, and therefore all nine persons named in the complaint were discharged to stop the organizational campaign. (2) If there were business reasons to reduce the work complement, the nine listed in the complaint were deliberately selected because of their activities and to weed out the offenders. (3) If an economic reduction in force were justified at the time, and if it cannot be found that all nine persons in the complaint were picked with personal malice, it must be found that the original six were still selected because the Company knew of "their" personal union activities. After all the complaint amendments, the Respondent held firm in its defense-that all the employees dismissed in October were released for economic reasons and for no other. The company agents even testified they knew nothing whatever about any union activities before the discharges. With this the defense, the persuasiveness of the evidence offered in affirmative defense-was there eco- nomic reasons for the discharges-becomes of first importance. And this is true whether it be evaluated against all of the discharges, or with respect to only some, or even one alone . As a matter of fact, it is not possible in this case to consider the merits of the complaint with respect to any one employee in isolation from all the rest. The defense of economic necessity must be weighed in its total picture as to every single employee discharged. There is neither evidence nor claim here that any single worker was told by the Company she was being fired because of union activities. Every one of the discharge issues-collec- tively or singly-involves the suggested inference of illegal motivation. But inference demands consideration of all relevant factors. For example, X, an outstanding unioneer , is timely discharged, and the employer says there was no more work for him, and only for him. The employer either proves, or does not prove, it no longer needed that man, and the inference inquiry continues from there. If the employer were to say it no longer needed 12 people, had to let 12 go, and included X in the mass discharge, what happened to the other 11 who also went home must be considered in weighing the complaint allegation that X was the pinpoint- ed target of union animus. Further, what happened to the 50 who remained, what kind of people were those selected for retention-unioneers, nonunioneers?-is also a rele- vant factor, again regardless of how many of the 13 the General Counsel chooses to put in the complaint. Maybe the ambiguity created by the multiple theories of illegality now appearing in the complaint will emerge more clearly by a question or two. If the Respondent were determined to stop the union movement-economic need for layoff or no economic need-why did it not fire in the mass layoff of October 12, Joan Meeks , the person shown on this record to have been the most outspoken protagonist of the Union? The critical union meeting, said to have triggered the mass discharges 3 days later, took place at the home of Marge Poynter. The only three other persons there were Harding and Becky, both of whom signed cards and distributed them, and Meeks. When 3 days later the violent reaction came, according to the theory of prosecution, not one of these four was "selected" for punishment . Indeed, while Meeks was released with two others on the 23d, the other three-Poynter, Harding, and Becky-were never released at all. Why? B. Evidence of Economic Stress Edward Fellure, president of the Company, carried the burden of proving that a shortage of parts , growing progressively more disturbing from July through Septem- ber, reached a point in October that compelled the reduction in force. It appears that from 85 to 90 percent of the work at this time was putting parts together, or making assemblies later used in office machines, on contract for INDUSTRIAL PRODUCTS, INC. 135 IBM in Lexington, Kentucky. Most of the parts came directly from Lexington, or from companies elsewhere who made -them on IBM orders and shipped directly to the Respondent in Greenfield, Indiana. Some assemblies made by this company need only two parts to make a shipable product; some need "between 100 and 150" separate parts, all of which must be received, in sufficient quantity, to keep the work going and the girls occupied. Fellure said that with the situation becoming desperate, he conferred with the IBM officials on Thursday afternoon and again on Friday morning, October 12, was told the situation of parts shortages was surely going to become worse and remain so for an unforeseeable period, and hastened back to Greenfield where he decided to reduce the 62-person complement by 8 that very afternoon. Richard Syphers, at the time vice president of the Company and plant manager, corroborated Fellure's story. Fellure's testimony may be called self-serving, as can be said of many self-exculpation statements at hearings of this kind. There was no corroboration by IBM representatives, as there might have been. And yet it remains a fact that his testimony is uncontradicted. There are, however, other objective, agreed-upon, and very relevant facts that directly support the Respondent's affirmative defense of discharge for cause. There were 59 hourly paid employees at work the week ending October 12. Eight were discharged on October 12 (only seven of these unnamed in the complaint), and three on October 23 (two named in the complaint). The total was down to 51 by October 23. By the end of November or early December it was further reduced to 45. By the time of this hearing in July 1974 the total of employees stood at 26. The number never rose during the period October through July. This is essentially an unskilled group of employees used in this business; employees are all taught when hired, they are not highly paid, and the turnover is about 500 percent a year. The Company formally executed 300 W-2 forms for the calendar year 1973. The Company simply did not replace the people who left, at least not to the extent of again raising the total number. In effect this was the equivalent of an employer whose staff is lessened by actually discharging people. With this the picture of employment, it is not possible rationally to hold the Company did not have economic reasons to shrink its force drastically, even in October. When a Company's primary business declines at this pace and so permanently, there must be very persuasive reason for discrediting any employer who says it was forced upon him by economic pressures. Did this Respondent deliber- ately throw its business away, reject orders, so as to dismiss employees and thereby avoid bargaining with any union? There is neither such claim, nor the slightest evidence to that effect. Is this Employer now getting twice the work output from the 26 remaining employees, so that they are producing the same amount of work, from the same old amount of parts, as before the union movement? Again, there is not the slightest indication of such an explanation for what happened. To offset the virtually compelled finding of economic stress sufficient to explain the drastic reduction of staff, the General Counsel put into evidence each and every shipping record of all parts received from IBM at the Greenfield plant from June 1973 through April 1974. Each sheet sets out the identifying number for each different kind of part, the quantity shipped of each, and every separate part, and in many instances further identifying numbers relating to purchase order number, assembly number, and vendor's code. Apparently the argument is that inasmuch as the great variety of kinds of part did not substantially diminish over the period, it follows there was no shortage at all. Or the argument can be that since the total number of parts, regardless of what kind they may have been, changed very little, there must have been enough to keep all 62 women, or almost as many, fruitfully occupied at least until the flurry of union activity was over. On this record the argument is not convincing. Conceivably, it may be that the Respondent has been sending the parts back unused, or perhaps storing them away. If the shortage of parts of which Fellure spoke was a fiction, these would have to be the explanations for continued receipt of all parts, for there was no one to work on them except the ever shrinking force. Even if these shipping invoices could be proof that Fellure, and Syphers, lied, both about the conferences with IBM officials and the amount of components received for assemblying, the fact that work in the plant was not done cannot be talked away. But there is another reality that reduces the voluminous invoices to very little value. There is no way of knowing, on the record as it stands, whether whatever parts were received through the last 3 months of 1973 could have kept more than the dwindling number of women busy. How many parts were needed for the assemblies that were made? There is nothing to show what assemblies were put together, how many parts they needed, or how much work- time can be associated with any given number of parts. This is a case in which two critical elements are lost in a fog, so to speak. Fellure just generalized. He said the number of component elements for this job or that varied greatly-from 2 to maybe 150. There is therefore no way of knowing how many or what parts equaled any measurable quantum of work-either in hours or number of personnel. Fellure also said he picked women for discharge after a relative appraisal of all 59, with separate consideration of the value of each in five or six respects-attendance, quantity production, quality production, attitude, seniority, and complexity of training. Very little was mechanical, very little was based on detached and recorded figures. What all this adds up to is that it was very difficult, perhaps impossible, to prove Fellure did not judge the relative merits in the manner he described, or to prove that whatever parts were in fact received were truly of a quantity and nature to have kept all 59 employees on the payroll. There are difficult cases; but the fact that they are difficult does not lessen the affirmative burden of positive proof of wrongdoing resting upon the General Counsel, or justify any presumption of falsity in a Respondent absent adequate evidence. I find there was economic justification in this case for the extensive discharges of October 12, and of the three which followed on October 23. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Violations of Section 8(a)(1) As already stated there is no direct evidence of union animus directed to this or that employee individually. The complaint does allege that several supervisory persons made coercive statements violative of Section 8(axl) of the Act. Primarily, the coercive conduct is charged to the line leaders, whose alleged supervisory status the Respondent disputes. Normally there are three line leaders , each over one of the three production departments into which the employees are grouped. At the time of the events, therefore, there were 3 line leaders over 59 persons. On the record as a whole I find the line leaders were supervisors within the meaning of the Act. According to the Respondent, the only supervisors were Fellure, the president, his wife Myra, who worked in the office, and Syphers, vice president and plant manager. Fellure admitted he spends no more than 10 percent of his time in the production area ; his wife is in charge of the, books; and Syphers spends only part of his time in contact with the production workers . The line leaders are hourly paid and punch the timeclock; they received about 25 cents or more per hour over and above the amount paid to the rank and file . Their duties are to see that parts are readily available to the girls when needed, and that finished assembled parts are moved away from their positions when proper. They are also responsible, however, to see to it that the women keep working all the time, that they not pass their time chatting, that they make no mistakes, and that they regularly produce a satisfactory amount of work. The collective testimony of a number of witnesses establishes that the line leaders assign work to them, move them to another job when necessary, criticize the quality of their work, have them do it over again when wrong, compliment them when they perform satisfactorily, approve their request to leave early, and even have a voice in selecting who shall do overtime work. According to employee West, when Myra Fellure hired her she "intro- duced me to her [the line leader] and told me she will show you what to do." Anderson recalled that when Mrs. Fellure hired her she introduced her to the line leader and said "if I had complaints that I was to go to her .... "Asked what did the line leaders do, employee Seats said "just walk around and see that everybody did their job." Sometimes line leaders perform some production work, but not often. These employees described the situation correctly, for two line leaders-Lowe and Harding-as witnesses corro- borated them. Thus Lowe: "Q. Have you ever had occasion to tell girls that they were being verbally warned, you would verbally warn them perhaps about their conduct in the plant, like talking too much? A. Yes, I have had to do that.... My duties were to get production out and see that the office had a shipping list in time for the truck to be loaded, and keep the girls in parts and to make sure that everything runs smooth.... I would usually go and tell the girls to quiet down and go back to work . . . . With that many women it went on quite frequently ... . Several times a week." There is evidence on whether Fellure consulted line leaders when deciding whom to discharge on October 12. At one point Fellure said "I might have asked the line leaders, if there was any problems ." His affidavit contains the following words ". . . we . . . myself and Rick Syphers discussed our situation and we talked to our line leaders as to how many employees we could keep working and which employees work record warranted them being fired." Lowe, at the time over the largest group of workers , said at the hearing she was not consulted on the matter. Her affidavit, however, reads: "I have no authority to hire, fire or discipline employees. However, according to my understanding I do have the authority to recommend discharge or discipline of employees." Line leader Harding also said Fellure discussed the layoff situation with her. But perhaps the most revealing bit of evidence is that given by Lowe. Shown her earlier affidavit, she was asked to explain that statement in the light of the fact the Company is now disputing her authority . She answered "I figure if a girl is putting out bad work I would have to go to Rick and ask him to do something...." "Q. What made you think you had this authority? Who gave you to understand? The Witness : I think Rick told me." Finally, the practice is that when a girl is given a raise she first learns of it when told by the line leader. Fellure said his system is to hire women for as little as legally permissable, in order to give them frequent small raises and thereby stimulate them to better and more work. If the line leaders are there to get more and better work out of them, to compliment or criticize them, to push them or Co tell them not to idle, how can the employees look upon them except as supervisors , when they also must look to them for first knowledge of raises? And besides all this, if the line leaders are not supervisors it means all 59 unskilled workers were left on their own under only the part-time supervision of one man, Syphers. I do not think the evidence suffices to prove Andrews was a supervisor . He is the quality control man, does maintenance and repair on the machine equipment, and is in charge of the shipping and receiving. From the employee witnesses : "Most of the time he was back in the stockroom. Then he would walk around and bring parts that people needed, and fix things that needed fixed [sic] like machines and stuff." "I saw him fix a couple of machines one day and just in the stockroom . That is all I ever saw him do." "He gets our boxes ready to ship, he puts them on the dollies and takes them back to the truck, just things like that. You know for shipping and different things like that." I do not think the fact Andrews was salaried and not hourly paid is sufficient to mark him as a supervisor on this record. 1. A few days after the mass discharge of October 12, some few women met in a union hall across the street on Main Street in the evening. Andrews' car was parked and locked across the street. This is the downtown store section of the town . No one saw him. Even assuming Andrews was a management representative , the fact his car was there that night could not prove an unfair labor practice. About noon on October 12 a number of women were gathered at the lunch table in the breakroom; there were union cards scattered about and Meek and Donaghy were soliciting signatures. While this was going on Andrews took a flash photo of the group. As best, all this could prove, even assuming Andrews was a company stooge, is that the Company learned once again who was interested in the INDUSTRIAL PRODUCTS, INC. 137 Union. What is important in this case is that the picture of the whole group falls far short of indicating personal animus against any single person who chanced to be within camera range. 2. There were other incidents involving Andrews, who did not testify. Of course I believe the witnesses. Snyder said she returned to the plant on Saturday, the day after she was discharged, to ask him had she been released because the girls had tried to bring the union in, and he said ". . . no that we were just laid off because they were having trouble getting parts in." He then asked did she know what the girls desired that had motivated them so, and added it would be a good idea if she found out, that Fellure and his wife would like to know, but that it was up to her whether she wished to inquire about it, because "it didn't really matter that much." The other incident involves Andrews by hearsay, but it is very significant because of its relevance to the major issue of the case discussed below. Employee Anderson testified that line leader Lowe told her, on the morning of October 12, before the discharges, that Andrews had "jumped" on Barbara Harding, and accused Harding of having started the union movement, even warned her she would be fired for it. Lowe also said, still according to Anderson, that Fellure and his wife believed she, Anderson, had started it, and that the Company would close the plant if the union talk did not stop. Anderson continued to testify that that same morning Harding herself told her Andrews had said she, Harding, would be discharged if she persisted in her union activity. Anderson ended with saying Harding then asked her had she, Anderson, been the original instigator, and that she honestly answered "no." There is a confusion in all this. I think Anderson was doing her best to recall what she said. I credit her ; Harding did not refer to this incident, and Lowe was a less credible witness. I find she did say the plant would close, and that this was a threat, in violation of Section 8(a)(l), voiced by a supervisor. But Harding, too, was a line leader, and, according to the General Counsel , her questioning of Anderson was illegal interrogation . The trouble is, Harding is one of the activists herself. She not only was at Poynter's house a few days earlier, but she also distributed cards in the plant the next day. As she was never discharged, her statement that while she took a supply of cards she did not distribute them is suspect . I do believe West who said ".. . Barbara Harding gave us a lot of blank cards to pass out to get names of people who were interested." I also believe Wisda, who testified Harding invited her to the union meeting and said "she thought I should go because she thought we really needed a union and they needed all the support they could get." Why would Harding, herself in the front line, ask Anderson whether she was the instigator? And how could Fellure suspect Anderson when in fact Anderson did no more than sign a card, as did many others? And how does one reconcile Anderson's report that Harding would be fired for her union activities with the fact that while she in fact was an activist, she was not among the people released? If the Respondent were really determined to extirpate the union movement now that it had the cover-up opportunity of economic layoff, it would more quickly have gotten rid of a traiter in the inner council. 3. Again during the morning of October 12, employee West and a girl named Linda got into quite a hassle about the Union. West related how Linda came at her "ranting and raving," said "she would make me eat the yellow pamphlets with the rules of the union," and that "they were going to close the whole plant and we will all be out of a job ...." Line leader Lowe heard the fight and said, to Linda, according to West: ". . . better go sit down that that was being taken care of right now." There is other evidence, not entirely discredited, about West's attitude; i.e., her relations with others was not the best . She revealed a rather antagonistic attitude even as a witness at the hearing. Was Lowe of necessity announcing a mass discriminatory discharge that moment? I think such an unfair labor practice must be proved by much more probative and convincing evidence. 4. Several witnesses spoke of another incident involving Lowe. One day four or five women were eating lunch while sitting in a car on the parking lot. Among them was Meeks, talking up the Union as usual . Anderson, one of those in the car, said Lowe approached and asked "what we was doing," and that Meek said "we was trying to get a union in." Griffith, too, was eating her lunch; she said "Judie come up and asked what we was doing and Joan Meek told her that she was trying to get a union in ." Both these women said Lowe asked how much it would cost, and without waiting for an answer walked away. Meeks' version is different. According to her : "I just hollered out the window to her [Lowe] and wanted to know if she wanted to see a union get in there. She answered me and wanted to know how much it would cost her and then she turned around and walked back in the door." I do not think the line leader, seeing five women having lunch in a car, in a parking lot where they always ate their lunch, during the lunch period, would ask what they were doing there. I think it was Meeks who started the conversation, and from afar-for she had to "holler" to be heard by Lowe. I make no finding of illegal conduct by anyone as to this incident. 5. Employee Baker testified that on October 12, line leader Lowe asked her whether she had signed a union card. Griffith said she heard Lowe say in the breakroom on October 12 the plant would be closed if the union talk did not stop. There was also a line leader named Rocky. I credit the uncontradicted testimony of Debbie Seats that Rocky once said to a group of girls "my girls better not sign." Further, employee Wisda testified that early in the week after the Friday discharge, line leader Harding told her not to go to a union meeting "because they were supposed to have spotters there and she heard that anybody that was seen there would be fired." I find that by Lowe's statement that the plant would be closed if the women persisted in their union resolve, by Lowe's interrogation of Baker as to whether she had signed a union card, by Rocky's statement to the women that they had better not sign union cards, and by Harding's statement that the Company had spotters at the union meeting and that those who attended would be discharged, the Respondent violated Section 8(a)(1) of the Act. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Discriminatory Selection With the discharge of 11 persons justified for business reasons, the question now becomes-did the Respondent select the 9 listed in the complaint for the purposes of putting a stop to the union activity that was going on during the 10 days or so before October 12? Antiunion motivation can be proved in two ways: ( 1) By evidence sufficient to prove animosity towards an individual, or towards several individual employees, or (2) by an inference arising from the related numerical factors ; i.e., by application of the mathematical law of probabilities. Considering the first approach-and this is the separate complaint allegation made with respect to six women, five dismissed on October 12, and one on October 23-I find the evidence insufficient to sustain a finding of violation of Section 8(a)(3) of the Act as to any one of them. On that theory, an essential element of proof against the employer must be that it at least knew of the employee's union activities. Debbie Seats said she signed a union card one day and once heard a line leader say ". . . my girls better not sign." This is the totality of her union activity, and there is nothing to suggest the Respondent knew about her card signing. The only evidence touching upon Yvonne Fugate is her statement she signed a union card on the 11th, the day before the discharge ; on whether the Company knew this, there is nothing. Carolyn Anderson signed a union card at the request of Meeks during a break period on October 10. Like Seats and Fugate, Anderson, too, went to no meetings, she did nothing about the Union. "Q. What if any activity did you take with respect to getting other employees to sign up union authorization cards? A. I didn't participate in that but I was with Joan [Meeks] a couple of times in the break area when she was talking." When to this limited evidence of union activity by Seats, Fugate, and Anderson is added the fact the Respondent did have to dismiss people for economic reasons, the pinpointed allegation of evil intent directed straight away against them must be dismissed. Unless, of course, it is argued that any time an employer releases a person with solid economic reason, the discharge becomes an unfair labor practice if it is later proved the employees had signed a union card-and never mind whether the employer knew about it or not. I did not hear this argument advanced in this case. The other three persons said to have been dismissed because of their own union activities did participate in the open talking and solicitation of cards in the plant and elsewhere. Meeks was the ringleader and seems to have started the whole thing. She invited employees to come, and was herself present at both meetings-first at organizer Ellis' house and then at the home of employee Poynter. She passed cards around inside the plant . Donaghy was at Ellis' house but did not go to the second meeting. She signed an AFL-CIO card and said she collected signed cards from others in the breakroom and in the parking lot. West also went to the first meeting but not to Poynter's house. She was given cards to distribute, signed one in the plant later, and generally did speak about the Union to others. Since these three women did openly engage in union activity, the complaint allegation as to them now divides into two parts, and if the reasoning begins to sound a little bit Talmudic, it is because the total complaint in its final form is rather refined . Did the Respondent know about their union activity, and if it did, did it fire them because of it? Maybe Fellure, through the line leaders, did know, although as to one or two the finding would be thin. Meeks was very outspoken and involved in it all . Donaghy agreed at the hearing no supervisor, or anyone she thought might be a supervisor, saw her passing out cards in the parking lot, or during the breaks inside the plant . West was one of several women who circulated a petition during the break periods, a petition which maybe 20 employees signed. The General Counsel witnesses made much of this overt activity inside the plant, but it aids the purported inference of company knowledge not at all, because all the employees were told it was to obtain a mailing list for a Halloween Party invitation. The fact that 2 or 3 days after October 5 West told some of the girls her real purpose was to send out union literature can hardly convert the flagrant partying into brazen unionizing. Nor does the evidence of knowledge become more weighty because the girls were told to predate their cards in order to be able to contend later that the Company had more time to learn about what they were doing ! But most important of all, the fact the last three women were fired serves not one whit to prove the Company knew of their union activity, for that would be purely inverse reasoning. All things considered, I find the evidence insufficient to prove the Respondent discharged these six ladies because of their union activities. Absent proof positive of animus directed against the employees named in the complaint, any inference of illegal motivation in the dismissal must always first weigh in the balance the affirmative defense. In this case it is true the Company had to dismiss a substantial number of people, almost twice as many as these six during the very period the alleged unfair labor practices occurred. To say, in such a situation, that mere knowledge of the employees' union penchant suffices to prove a violation of Section 8(aX3) is tantamount to a contention that the known unioneer is insulated against discharge in the event of an economic layoff. This is not the law ; indeed it is not so argued here. D. A Random Hand Mathematics With all of this, we come to the all-embracing theory of prosecution which I believe is the heart question of this case. Did the Employer, faced with economic necessity for reducing the total complement, utilize the fortuitous opportunity to sweep out the troublemaking union-minded group in the crowd? Here the argument is, as it must be, that if you look at how many out of the original total were unioneers, and compare that percentage to what percent- age of unioneers were caught in the mass layoff, the conclusion would logically be compelled that it was union animus that dictated the selection . For example, if 10 and only 10, of the 60 were unioneers, and if the total must be reduced to 50 for economic reasons, it would be almost impossible to avoid a finding of illegal motive in the case where all 10 of the unioneers are found in the group of 10 persons discharged. Conceivably, even in that case, the employer could prove, by irrefutable, objective, and substantially relevant business facts, that the particular 10 INDUSTRIAL PRODUCTS, INC. 139 would have been selected by any rational businessman. This is not such a case, for what Fellure offered as proof of objective basis for selection was really no more than opinion, mental evaluation . He spoke of records that had been compared, but he produced none. But neither is this the case of 10 out of 10; quite the contrary. In this numbers game theory of illegality, as it were, there is another element in the formula of no less importance . How many umoneers were not discharged? Assume, again, that from among the original total of 60, 15 or 20 (in the case at bar, as usual, this figure is a little nebulous, but 15 or 20 is as close as it can be stated) favored the Union, went to union meetings, maybe signed cards, but out of I I that had to be discharged, only 3, or 4, maybe 5 were unioneers. Here the hand of chance falls evenly-a third of the total was prounion, a third of the dischargees were prounion, and nothing can be inferred from the mathematical probabilities. And finally, this case also illustrates another relevant element that cuts both ways. If the three, or four unioneers caught in the layoff, were the most active and publicized of the activists, that fact would add strength to the adverse inference of illegality. By like reasoning, if among the employees who remained at work are found the stronger protagonists of the Union, to that extent the complaint is weakened. Numbers here begin with the fact II employees were discharged, 8 on October 12 and 3 on October 23. Of these the record is completely silent as to three who did not appear at the hearing-Gabbard and Goforth, who were released on the 12th and who are named in the complaint, and Craft, let go on the 23d. On this record these three must be deemed as having had nothing to do with the Union. Snyder was also discharged on the 12th; she was called by the General Counsel as a witness and; ".. . Didn't you have anything to do with the Union business? Witness : No, I did not." As to four others, Anderson, Seats, Fugate, and Griffith (nee Schuler)-all four named in the complaint-the record shows only that each signed a union card. Griffith, too, said she did nothing to help the Union. There is nothing to distinguish these last four from a much larger group, for, while the record does not detail who else did anything about the Union, there is testimony about quite a few others, who did sign cards . Donaghy said she obtained about 15 signatures . West said she successful- ly solicited five or six names to cards . Donaghy testified that Becky, who had been at Poynter's house on October 9, also solicited nine signatures. And Meeks obtained six signatures herself. Reverting once again to the number of employees discharged, we do have it that three-Meeks, West, and Donaghy-were among those who were both active and more outspoken about their activities. With this, a fair summary is that of the 11 selected for discharge, 4 were plain bystanders, 4 were boarderline persons-both in terms of their very limited participation in the union movement and the probabilities that management knew about their interest-and 3 were presumably known activists. In percentages, then about one-third known were unioneers, about one-third borderline cases, and about one-third neutrals. As to what percentages of the total compliment of 59 fell in these three categories, the record is not as clear as might be desired . It does show that six persons were openly active: Meeks, the apparent ringlead- er; West, Donaghy, and Becky, all three of whom obtained signatures in numbers ; Poynter, who attended both meetings and at whose home the last one was held; and Harding, who was at the second and distributed cards. This therefore indicates six open activists . How many were borderline ; i.e., signed cards and nothing more? The signing of the Halloween party list means nothing. Indirect references by various witnesses to the number of cards obtained by the activists total well over 25, maybe 30. But if 30 percent had signed the Union might have filed an election petition. It did not. A fair approximation would therefore be that perhaps about 20 signed-again, one- third of the total . Recapping : one-third of the total participated generally, and one-third of the number discharged fell in that category ; six of the over all total were out-and-out active, and half of that number -three-were fired . There is a detail of some significance that must be considered as to this last group . The mass layoff came on Friday, the 12th, when flurry of card signing following the Poynter house meeting took place. The timing between layoffs and the union activity centers on that date . But Meeks was not selected for discrimina- tion then . There is indication that very little, if any, card signing or solicitation occurred the following week. Meeks was dismissed 11 days later . The fact that Respondent did not select her on the 12th tends to weaken the overall inference of a 'pervasive intent to destroy the union movement altogether. If Meeks be removed from the picture, at least for the moment, it would have to be said that only one-third of the true six activists were selected. It would unduly belabor the matter to comment further on still other relevant details . The Respondent's failure to dismiss its own supervisor , Harding, has already been mentioned ; that fact speaks volumes . The ultimate fact that it never touched three of the four who took the lead in bringing the AFL-CIO, the right union, into the plant, virtually makes any overall inference of illegality impossi- ble. I find the total record evidence does not support the complaint allegations with respect to illegal discharges as to any of the employees there named. CONCLUSIONS OF LAW 1. By its supervisor's statements to individual employ- ees that the owners would close the plant in retaliation for union activities, that the employees must not attend union meetings because the Respondent had spotters watching, that the women had better not sign union cards , and that they should reveal their union position upon interrogation, the Respondent has engaged in unfair labor practices within the meaning of Section 8(aXl) of the Act. 2. The aforesaid unfair labor practices are unfair labor 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' The Respondent, Industrial Products, Inc., Greenfield, Indiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Telling its employees that the Company would close the plant in retaliation for their union activities , telling its employees not to attend union meetings because the Company has spotters watching, telling the employees they had better not sign union cards, and interrogating them concerning their union activities in a coercive manner. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form, join, or assist a labor organization, to bargain collectively through representa- tives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its place of business in Greenfield, Indiana, copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by the Respondent's representatives, 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 25, in writing, within 20 days from the receipt of this decision, what steps the Respondent has taken to comply herewith. 1 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 2 In the event that the Board's 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found after a trial, that we violated the federal law by coercing and restraining our employees in their union activities: WE WILL NOT interrogate our employees about their union activities. WE WILL NOT threaten to close our plant in retaliation because our employees engaged in the union or concerted activities. WE WILL NOT tell our employees not to attend union meetings because we have spotters watching them. WE WILL NOT tell our employees that they had better not sign union cards in order to intimidate them. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. INDUSTRIAL PRODUCTS, INC.