Alside Supply Co.

ALSIDE SUPPLY CO. 447 Alside Supply Co. and Walter G. Eyerman. Case CA-7747 6- conclusion is predicated upon his further findings July 23, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND KENNEDY On April 14, 1975, Administrative Law Judge Paul Bisgyer issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and a supporting brief and Respondent filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge to the extent consistent herewith. The Administrative Law Judge recommended that the complaint be dismissed insofar as it alleges a vio- lation of Section 8(a)(1). Contrary to the Administra- tive Law Judge's conclusions, we find that statements made by Supervisor George Gartley interfered with the employees' right to organize as guaranteed in Section 7, and therefore violated Section 8(a)(1). We agree with the Administrative Law Judge's finding that Foreman Gartley was at all times mate- rial a supervisor within the meaning of Section 2(11) of the Act.' We further agree with his finding that Gartley made the remarks attributed to him by the employees. Such remarks consisted generally of ref- erences to the adverse impact which unionization would have on the employees' working conditions. During several discussions with employees, for exam- ple, Gartley repeatedly indicated that if a union came in, the warehouse would become a strict shop; the employees would be required to pay for their benefits; a timeclock would be installed; and, if the Company wanted to, it could start laying off people. Gartley added that in a slow season such as winter the Company could lay off employees and nothing could be done about it. Finally, when Gartley was informed that authorization cards had been executed by all of the employees, he replied, "What did you do that for, you are going to f- up a good job." The Administrative Law Judge concluded that these statements did not violate Section 8(a)(1). This 1 No exceptions were taken by the parties to this finding. that as a working foreman Gartley was a low-level supervisor who was on friendly terms with the em- ployees, and was merely expressing his own personal opinion. Accordingly, the Administrative Law Judge concluded that since the employees did not consider Gartley to be "speaking on behalf of management" they were not coerced within the meaning of Section 8(a)(1). Contrary to the Administrative Law Judge we find considerable evidence on this record to support a finding that Gartley's remarks did in fact interfere with the free exercise of the employees' rights. It should be initially pointed out that this case differs from Las Vegas Sun, 209 NLRB 240 (1974), relied upon by the Administrative Law Judge. In that case the Board found that the remarks made by a supervi- sor occurred in one isolated conversation and were made to a small group of unit employees. In the case before us, employees testified that Gartley's anti- union comments were made on numerous occasions to nearly all unit employees extending from the ini- tial attempt to organize in January 1974 until August 29, 1974, the night before the authorization cards were presented to the Respondent and a demand for recognition was made. Such conduct cannot, in our judgment, be viewed as isolated. The instant case is more akin to Strydel Incorporat- ed, 156 NLRB 1185 at 1189-90 (1966), in which a minor supervisor stated to an employee that "if the Union ever got in it was going to give us more work ... that it is going to be hard on everybody." On another occasion, the supervisor made another state- ment to three other employees concerning the laying off of union sympathizers and bringing in new help. The Board concluded that statements by a "low-level supervisor implying more onerous working condi- tions and layoffs in the event of union organization" were violative of Section 8(a)(1). We also disagree with the Administrative Law Judge's finding that the statements made by Supervi- sor Gartley were not understood by the employees to be those voiced by a representative of management. In our view, the record does not support the Admin- istrative Law Judge's implicit finding that the em- ployees viewed Gartley more as a fellow worker than as a supervisor. The "Apache Lounge" incident is illustrative. The record indicates a general consensus regarding the events of that evening. Employee Eyer- man and Gartley engaged in a loud argument over the need for a union. One employee present testified that Eyerman was screaming at Gartley regarding the antics: "[H]e had pulled in the past and you know time cards, going home early, making other people stay late, just because they came in a quarter 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after 6 they have to stay until 5." Gartley responded by stating: "I was the supervisor. I will do what the f- I want to do, you know. I run the place down there. I will do what I want to do." Finally, Eyerman responded by saying: ". . . it's all going to stop, you know, we got the cards in. This is all going to stop." In our judgment, this conversation not only ne- gates any finding of camaraderie between Gartley and the employees, but also constitutes an overt ex- pression by Gartley to the employees of his superior position as a supervisor. He explicitly established himself as the boss, and not just a fellow employee. Furthermore, such a conversation indicates that Gartley's behavior not only was coercive, but also may have served as a catalyst for the employees' or- ganizing efforts. This conclusion is supported by Eyerman's comments, which indicate that the at- tempt to organize was due largely to what the em- ployees viewed as inefficient and unfair supervision on the part of Gartley. We must conclude from these findings that the employees viewed Gartley not as a fellow employee but rather as their supervisor repre- senting management .2 See Pacific Southwest Airlines, 201 NLRB 647 (1973). The employees' affirmative efforts to prevent Gartley from becoming aware of their union activi- ties during the crucial final stages of organization in late August further buttress this conclusion. The rec- ord indicates the existence of general discussions re- garding union organization in the spring and early summer commonly referred to as "shop talks" by the employees. Although Gartley was never denied an opportunity to participate in these discussions, he was never invited to enter them. Employee Frisco testified that Gartley would casually work his way into the conversations with "small talk" and then eventually come out with his antiunion statements. It is rather clear though, as described by employee Heenan, that as soon as the discussion became "seri- ous business" the employees took affirmative steps to prevent any information concerning the Union from reaching Gartley. For example, the employees felt that another employee, Frisco, was "too tight" with Gartley. As a result, they curtailed any discussions of the Union when Frisco was around. Frisco testified that: "[H]e [Eyerman] approached me but he was not letting me know what was going on [referring to union acitivities] . . . in certain conversations or at work if I was by George [Eyerman] the subject was dropped." Thus, the employees not only avoided Gartley dur- ing this state of their organizing, but went a step fur- ther and excluded Frisco, a fellow employee, from 2 See Pacific Southwest Airlines, 201 NLRB 647, 651 (1973). many of their plans because of his apparent close association with Gartley. Eyerman's desire to prevent Gartley from obtain- ing union information is further indicated by the fol- lowing incident. On the evening of August 29, 1974, while at the Apache Lounge, Frisco wanted to dis- cuss Eyerman's avoidance of him regarding union matters, so they stepped outside. Gartley looked out the door and wanted to know what was going on. Eyerman replied, "it was none of his business." Gart- ley made reference to the subject matter being the Union and went back inside. There is no question that Eyerman wanted Gartley to be unaware of the final stages of organization in fear that the supervisor would in turn inform the rest of the management. As Eyerman testified, he did not want to tell Gartley about the Union because he "[F]igured he [Gartley] would go back down and he would tell, like blab to Izzy or Al or Mr. Rose [higher level supervisors] about the Union, that it was going to come in ...." Eyerman's fears were justified because as soon as Gartley found out about the authorization cards he went straight to his superiors with the information. This entire scheme of activities to avoid any informa- tion leaking to Gartley hardly seems necessary unless the employees viewed Gartley as a supervisory repre- sentative of management rather than as a fellow em- ployee. Upon viewing the record as a whole we find that the statements made by Supervisor Gartley inter- fered with the employees' right to organize as guar- anteed in Section 7, and therefore violated Section 8(a)(1). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. General Teamsters, Chauffeurs and Helpers Local 249 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of their rights guaranteed them by Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. 5. The Respondent has not engaged in any other unfair labor practices alleged in the complaint. ALSIDE SUPPLY CO. 449 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board orders that Respondent, Alside Supply Co., Pittsburgh, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees for engaging in union activity. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor organi- zations, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as au- thorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its offices and facilities in Pittsburgh, Pennsylvania, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms pro- vided by the Regional Director for Region 6, after being duly signed by Respondent's authorized repre- sentative, shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other materi- al. (b) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges violations not found herein. 3In 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 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 WE WILL NOT threaten employees for engaging in union activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form labor organizations, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment as authorized by Section 8(a)(3) of the Act. ALSIDE SUPPLY CO. DECISION STATEMENT OF THE CASE PAUL BISGYER, Administrative Law Judge: This proceed- ing, with all the parties represented, was heard on Decem- ber 10 and 11, 1974, in Pittsburgh, Pennsylvania, on the complaint of the General Counsel issued on October 29, 1974,1 and on the answer of Alside Supply Co., herein called the Respondent or Company. The questions repre- sented for decision are (1) whether the Respondent, in vio- lation of Section 8(a)(3) and (1) of the National Labor Re- lations Act, as amended,2 discriminatorily laid off and refused to recall employee Walter G. Eyerman because of his protected union and concerted activities, and (2) wheth- er the Respondent otherwise interfered with, restrained, and coerced employees in the exercise of their statutory rights in violation of Section 8(a)(1) of the Act. At the close of the hearing, the parties waived oral argument but subse- quently filed briefs in support of their respective positions. Upon the entire record, and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent is a division of Alside, Inc., a Delaware 1 The complaint is based on a charge filed by Walter G. Eyerman on September 10, 1974, a copy of which was duly served on the Respondent by revered mail on the same day. Sec. 8(a)(1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7," Insofar as pertinent , Sec. 7 provides that "[elmployees shall have the right to self -organization, to form. join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ...." Sec. 8(a)(3), with certain qualifications not material herein, prohibits an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage member- ship in any labor organization 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD corporation with its principal office at Akron, Ohio. Al- side, Inc., is a wholly-owned subsidiary of the United States Steel Corporation. The Respondent is engaged in the nonretail sale of aluminum and steel siding and other relat- ed building materials for installation on private homes. It operates 40 such facilities throughout the United States, one of which is located in Pittsburgh, Pennsylvania, and is solely involved in this case. In the course and conduct of its business operations, the Respondent during the past 12 months directly shipped goods valued in excess of $50,000 from its Pittsburgh facility to points outside that State. The Respondent admits, and I find, that it is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted that General Teamsters, Chauffeurs and Helpers Local 249 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence 1. Introduction; the issues As indicated above, the Respondent is engaged princi- pally in the nonretail sale of aluminum and steel house siding at its Pittsburgh warehouse. This facility, together with its Cleveland and Buffalo operations, is under the overall supervision of Executive Sales Supervisor Philip Rose whose office is located in the Respondent 's headquar- ters in Akron, Ohio. In charge of the Pittsburgh facility is Sales Manager Al Nieman whose primary concern is sales and the supervision of salesmen. Under him is Office Man- ager Isadore (Izzie) Goldberg who handles the administra- tive functions pertaining to the warehouse and warehouse personnel. George Gartley is the warehouse foreman 7 who directly supervises the work of the truckdrivers and the warehousemen and is responsible to Goldberg and Rose. At the time of the significant events herein, there were some eight employees employed as truckdrivers and ware- housemen in the Pittsburgh warehouse. Although no evidence of an antiunion background or union animosity on the Respondent's part was presented, except that which might be inferred from Foreman Gartley's conduct, later to be discussed, the Respondent is charged with discriminatorily laying off and refusing to recall Walter George Eyerman, an active participant in the union movement. In defense, the Respondent strenuously insists that its action was necessitated by poor economic r Although it appears that prior to September I, 1974, Gartley was a working foreman who performed manual work in addition to supervisory duties, there is no question that he was at that time and subsequently a supervisor within the meaning of Sec 2( 11) of the Act. According to Gart- ley, on September I he was made a full-fledged supervisor without manual functions when a full crew was working. conditions at the Pittsburgh facility and that it selected Eyerman for layoff solely because he had the lowest service seniority. Also in issue is the question whether Gartley en- gaged in coercive organizational effort. We review the evi- dence. 2. The advent of the Union; the representation proceeding Because of dissatisfaction with their terms and condi- tions of employment, the truckdrivers and warehousemen, since the early part of 1974,4 if not before, discussed among themselves at various times the advisability of organizing. However, nothing came of these conversations 5 until about July or August when the employees began to give more serious thought to the idea of union representation. Taking an active part in these discussions was Eyerman, who was then a warehouseman. These discussions took place in the warehouse during working hours, as well as after work away from the facility. Apparently, the employ- ees made no effort to conceal their union interest or activi- ty and, for all that appears, the Respondent tolerated their discussions or, at least, did not prohibit them on the ware- house premises. Indeed, on several occasions Foreman Gartley himself participated in such exchange of views. A favorable sentiment for union representation having developed among the employees, Eyerman on August 29 visited the Union's office where he informed Organizer Leo Heckman of the employees' union interest. Heckman thereupon furnished Eyerman with authorization cards for the employees to sign. Upon his return to the warehouse the same day, Eyerman signed one card and secured signa- tures from two employees in the warehouse. The next morning (August 30), Eyerman signed up the remaining five employees in the warehouse. Eyerman was the only employee who engaged in this solicitation. Having obtained signed authorization cards from all the warehousemen and truckdrivers, Eyerman communicated this fact to Heckman who promptly came to the warehouse parking lot and received the executed cards from Eyerman. On the same day, Heckman proceeded to the Board's Re- gional Office where he filed a petition for a representation election (Case 6-RC-6943), which was subsequently amended to cover "all warehousemen and warehouse truckdrivers." Upon learning that the employees had signed union cards and that the Union had filed a repre- sentation petition, the Respondent decided that, since the employees had a right to join a labor organization if they desired, it would maintain a position of neutrality and re- frain from conducting an antiunion campaign to defeat the Union. Accordingly, the Respondent instructed its supervi- sors to avoid making antiunion statements to employees or otherwise becoming involved in union discussions with them. On September 19, the Respondent and the Union 4 Unless otherwise indicated , all dates refer to 1974. 5 According to employee Steve Frisco, a witness for the General Counsel, in the early part of 1974 he was interested in bringing a union into the warehouse and several times planned on visiting a union 's office to secure authorization cards. However, he testified, his intentions never materialized either because he did not have time, or was dissuaded by Foreman Gartley, or was afraid of losing his job ALSIDE SUPPLY CO. executed a stipulation for certification upon consent elec- tion. On September 30, an election was held, which the Union won, resulting in its certification on October 8. It appears that at the time of the hearing contract negotia- tions were in progress. 3. Foreman Gartley's efforts to dissuade employees from unionizing; the Apache Lounge incident As indicated above, on a number of occasions in July and August, before the Union's appearance at the Pitts- burgh facility, Foreman Gartley joined in the union discus- sions which the employees had initiated in the warehouse and on the dock during working hours. Apparently, the employees did not object to Gartley's participation nor do his remarks appear to have been uttered in an unfriendly tone. Four witnesses for the General Counsel presented testimony concerning Gartley's statements, although it is not clear whether any of this testimony related to the same conversation. Thus, Eyerman testified that on different days in July and August Gartley joined the conversations which he (Eyerman) was having with other employees re- garding the advantages and disadvantages of union repre- sentation. According to Eyerman, Gartley stated that a union would not be good for the employees and, when the employees asked why, Gartley said that the employees would have to work "harder" and keep "stricter hours" and that they would end up having a timeclock, which the Company did not then have in the warehouse. Eyerman further testified that Gartley also said that, if the ware- house were unionized , the employees would lose benefits and layoffs would result. Eyerman, however, conceded that he favored the installation of a timeclock in the warehouse because he believed that the time worked by the employees was not being accurately recorded by Gartley, thus causing problems and arguments. Moreover, as will later be dis- cussed, on July 25, prior to the advent of the Union, Akron officials had initiated steps for the installation of a time- clock in the Pittsburgh facility in order to improve the pro- cessing of timecards. Employee Michael Tharp gave the following account of Gartley's involvement in one warehouse conversation in August during working hours in which Tharp and other employees were participating : That morning Gartley said that he did not think that a union was any good . Referring to a strike at Akron which lasted 3 or 4 months, Gartley noted that ultimately the employees received only a 12-cent increase. Gartley also stated that, if the Pittsburgh employ- ees were unionized , the Company would be hard on them as far as work was concerned and it "would be stricter"; that it would probably take away some of the paid benefits the employees were then enjoying; and that, if a union succeeded in getting the employees a good increase, that most likely the Company would lay somebody off to make up for the increase. Regarding a timeclock, Gartley re- marked that one would be installed, thereby eliminating lateness.6 6 Tharp testified that this was the occasion when employee Hunt, whose resignation will be subsequently discussed, expressed to Tharp his disdain for these remarks and his intention to quit. The above incident, therefore, 451 According to employee Steve Frisco, in the summer, while he and other employees were discussing unioniza- tion, Gartley would approach the group and volunteer his views. In some of these discussions, Gartley would state that, when a union came in, the warehouse would become "a strict shop"; that the employees "would have to go by the rules"; that the employees would be required to pay for their benefits; that perhaps a timeclock would be installed; and, if the Company "wanted to be pricks," it could start laying off people, adding that in a slow season and with winter coming the Company could lay off employees and nothing could be done about it. Employee James Heenan testified that on several occa- sions Gartley participated in conversations in which he (Heenan) and other employees were engaged. Heenan al- luded to one specific discussion on the dock in which a number of other employees were present when Gartley told the employees that, if a union came in, the employees would lose benefits referring, in particular, to company paid Blue Cross and Blue Shield insurance ; that a time- clock would be installed; that probably the employees would lose overtime; that working conditions would be "stricter"; and that there was a possibility of layoffs. Heen- an also testified that on several occasions during the period when a union was being seriously considered by the em- ployees (probably in August) Gartley told him that he wanted to join the Union and that he would do anything to get into it, even if it means becoming a truckdriver. More- over, Heenan testified that on a number, of occasions when Gartley expressed a desire to loin a union other employees were present' Gartley categorically denied that he made any of the above remarks regarding the consequences of unionization to which the General Counsel's witnesses testified. I find, however, Gartley was far from being a candid and reliable witness. Indeed, his credibility was seriously impaired, not only by inconsistent statements made in the course of his testimony, but by the obviously untrue assertions he made in a pretrial affidavit he had given to a Board agent, which even his own testimony at the hearing contradicted.s On the other hand, the testimony of the General Counsel's wit- nesses was mutually corroborative in substantial respects and impressed me as a more accurate recollection of what transpired during the July-August discussions than Gartley's denial. Accordingly, I credit the above versions given by the General Counsel's witnesses. On August 29, the following incident occurred at the Apache Lounge, a local tavern. About 9 o'clock in the eve- ning, after Gartley and employee Frisco had completed a company delivery and assignment, they visited this bar. When Eyerman and employees Tharp and Heenan saw them, they, too, entered the tavern. At Frisco's suggestion, probably occurred in the middle of August 7 Gartley confirmed Heenan that in the course of some of these union discussions when the subject of joining the Union was raised he expressed a desire to do so because he was then a working foreman 9 As, for example, his statement in the affidavit that he first became aware of the employees' interest in unionizing on August 29, 1974, is clearly un- true Similarly false is his statement that when he was informed by Eyerman on that date at a local tavern (Apache Lounge incident later to be discussed) about the employees' union interest, he (Gartley) did not recall making any comment or what else happened 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eyerman and Frisco stepped outside on the balcony where Frisco took Eyerman to task for excluding him from cer- tain union discussions in the warehouse and for not ap- proaching him to sign a union authorization card. Eyer- man explained that Frisco, who was a friend of Gartley, might carry union information to the latter. As for the union cards, Eyerman stated that he was soliciting the "sure votes first." At this point, Gartley poked his head through the doorway and inquired what they were doing. Eyerman told him that they were talking about the union and to leave them alone, which Gartley then did, asserting that he was not interested anyway. Shortly thereafter Eyer- man and Frisco returned to the bar and a few minutes later Frisco departed? It was not long before Eyerman and Gartley, in the pres- ence of employees Heenan and Tharp, became involved in an angry argument in which Gartley expressed the view that a union was not good for the employees who would be making a mistake if they brought one in, and in which Eyerman criticized Gartley for the way he was handling timecards and was treating the employees. Gartley de- clared that he was the boss and could do anything he want- ed to do with respect to the timecards. Eyerman disagreed, declaring that this condition would soon cease since he had already turned in signed union cards to the Union 10 and the Union was going to come in. Gartley admitted that when Eyerman informed him that the employees had unionized he asked why Eyerman had done it since such action was going to mess up a good job. In the course of the argument the subject of employee Turman was raised with Gartley charging that Turman was taking advantage of his fellow workers and would stab them in the back. ll The Gartley-Eyerman exchange ended with Eyerman punching Gartley in the jaw. Gartley then left the tavern and, while walking down the street, Eyerman caught up with Gartley and asked him to forget the incident.12 About 8:30 or 9 o'clock the next morning (August 30), Gartley advised Office Manager Goldberg that he had met three employees, including Eyerman and Heenan, at the Apache Lounge and was informed by them that the men in the warehouse had already signed up for the Union. Ac- cording to Gartley, he did not tell Goldberg that Eyerman was the source of his information." Goldberg promptly called the Akron headquarters and, since Executive Sales 9 The foregoing narration reflects credible portions of the testimony of Eyerman, Frisco, and Gartley. Whatever variances there are in their re- spective accounts, they are of no significant consequence. 10 Actually, as indicated above, this was not true as Eyerman completed his solicitation the next day, August 30, when he delivered the signed au- thorization cards to the Union. 111 have serious doubts that on this occasion Gartley asked Eyerman to hold off bringing the Union into the warehouse until the Company could get nd of Turman, as Eyerman testified. None of the other employees pre- sent at the argument mentioned such a request. Moreover, Eyerman's pretri- al affidavit states that a request of that nature was made in the warehouse, although Eyerman testified that Gartley repeated it at the Apache Lounge. 12 The foregoing findings are gleaned from parts of the testimony of Eyer- man, Heenan, Tharp, and Gartley which, in my judgment, indicate what probably transpired at the Apache Lounge. 17 Gartley testified that he did not tell Goldberg about the assault in this morning conversation but did later in the day . According to Goldberg, Gartley mentioned that he had been punched but stated that he did not know who of the three employees did it. Supervisor Rose was in Acapulco at that time, he informed Attorney Bussman that the men had joined the Union. Bussman answered that he knew that and told Goldberg not to influence the men in any way against the Union. The same day, when Rose telephoned Akron from Acapul- co, Bussman conveyed the information to him that the men in the Pittsburgh warehouse had unionized. 4. The Respondent's asserted need to reduce expenses and lay off employees; decision to lay off Eyerman To demonstrate that Eyerman's layoff was justified by economic considerations, the Respondent presented testi- mony of Executive Sales Supervisor Rose, corroborated in significant respects by Office Manager Goldberg, and sup- ported by documentary evidence, regarding the financial situation at the Pittsburgh facility. The evidence is summa- rized below. When Rose returned to his Akron office in the spring following a 3-month absence, he reviewed the Pittsburgh facility's financial records which showed a consistent pat- tern in 1974 of the facility exceeding its current expense budget and its costs of the preceding year. In an initial attempt to reduce costs, Rose directed Goldberg starting in May and June to cut out free doughnuts and coffee for customers; to lay off two employees in the window depart- ment and two employees employed on the gutter truck; to reduce lighting expenses; and to discontinue the use of a company car assigned to Goldberg. Although these cost-cutting measures were promptly put into effect, they did not prove to be sufficient. On July 12, Rose received in Akron the Expense Ledgers for June,14 which showed that the expenses of the Pittsburgh facility were even higher over budget than in the prior month of May. For this reason, Rose, on July 26, visited the Pitts- burgh facility and discussed with Goldberg the continued operating cost problems. Rose proposed that, in addition to the four employees previously laid off, more employees be laid off. Goldberg, however, succeeded in persuading Rose to take other steps in lieu of further layoffs. These included decreasing the Saturday work complement from eight to four employees;15 efforts to avoid overtime; elimi- nation of Saturday truck deliveries; and changing the warehouse business hours from 7 a.m. to 5 p.m. to 7:30 a.m. to 4:30 p.m., thereby eliminating 5 hours from the workweek. The next day, Goldberg started to implement these measures. On August 12, as a result of his review of the July ex- pense ledgers, Rose learned that the July operating costs exceeded the budget more than the June costs exceeded the June budget. Rose thereupon called Goldberg and in- formed him that the latest measures did not solve the prob- lems; that the costs were too far over budget; and that he was under pressure from his superiors to remedy the situa- 14 For accounting purposes, the Respondent operates on the basis of a fiscal month ending on the 25th or 26th of each month. The monthly ex- pense ledgers are normally available for review on the 12th of the following month 15 Saturday is an overtime day ALSIDE SUPPLY CO. tion. Rose, accordingly, directed Goldberg to lay off two people in the warehouse, who were not identified, by Au- gust 30. On August 16, Goldberg telephoned Rose and apprised him that employee Hunt was voluntarily leaving at the end of August, adding that this departure would take care of "one of our problems." At this point, Rose stated that he also wanted Connie Gahagan,l an office clerk, laid off. According to Rose, he thus intended that, besides Hunt, another warehouseman and Gahagan were to be laid off, thereby reducing the facility's employee complement by three. Goldberg, on the other hand, testified that he inter- preted Rose's instructions to mean that Gahagan was the designated second warehouse employee to be laid off on August 30 and that no other warehouseman was to go. Consequently, in compliance with what he believed to be Rose's instruction, Goldberg on August 30 laid off only Gahagan, while Hunt left the Respondent's employ the same time. On this day, Rose was in Acapulco, returning to the Akron headquarters on Thursday, September 5, when he soon became preoccupied in staff meetings. On Monday morning, September 9, after checking with the Akron per- sonnel office whether Goldberg had carried out his layoff directive, Rose learned for the first time that the second warehouseman had not been laid off. Thereupon, Rose conferred with the Respondent's president and Attorney Bussman concerning the permissibility of laying off anoth- er warehouseman in view of the fact that the Union had filed a representation petition in the interim (August 30). Upon concluding that it was permissible to proceed with the layoff because the decision had been made long before the Union's appearance at the warehouse, Rose telephoned Goldberg at the Pittsburgh facility but spoke to Sales Man- ager Nieman because Goldberg was sick at home. Rose inquired why a second warehouseman had not been laid off. When Neiman responded that he did not know, Rose ordered him to ascertain who was the man with the least seniority in the warehouse and to lay him off and inform that employee that the action was necessitated by lack of business and that he would be rehired when business im- proved. Nieman checked with Foreman Gartley who told him that Eyerman had the least service seniority among the warehouse employees, which was a fact. Later in the morn- ing, Nieman called Rose and conveyed this information to him and Rose directed Nieman to proceed with the layoff. The evidence indicates that the operating costs in Pitts- burgh in August, September, October, and November con- tinued to exceed the budget allocations and that the total product sales were far below the projected sales for the July through November period.17 16 Her name is misspelled in the transcript of testimony . Although Gold- berg testified in his direct examination that Rose instructed him on August 12 to lay off Gahagan , he testified, under cross-examination, that he re- ceived this directive on August 16, as Rose testified. I find that Goldberg was originally in error and that Rose actually issued the directive on August 16 when Goldberg called Rose to inform him of Hunt's resignation. 17 Rose testified that since about October some 26 or 27 employees were laid off at the Respondent's other facilities, including 5 in Buffalo and 2 in Cleveland. 453 5. Eyerman's employment and layoff; the Respondent's use of temporary help and overtime Eyerman was employed by the Respondent on March 26 as a truckdriver and after a few weeks was transferred to a warehouseman's position.18 During his entire period of em- ployment he worked under the supervision of Foreman Gartley. On September 3, Eyerman was reassigned to a truckdriver's job. At the time of his layoff he was paid $3.15 an hour and time and a half for overtime. On Monday afternoon, September 9, Sales Manager Nieman summoned Eyerman to his office and informed him that, on orders from Akron, he was being laid off be- cause of lack of work. Nieman also stated that he was se- lected because he had the least seniority among the ware- house employees but that he would be recalled when business picked up.19 Eyerman, however, retorted that his layoff was really due to his union activities. Nieman denied the accusation and Eyerman departed. On the day of Eyerman's layoff and during the rest of that week, the Respondent utilized the services of tempo- rary employees furnished by Substitute Personnel, Inc., a manpower organization 20 These temporary employees per- formed jobs which Eyerman and other warehouse employ- ees regularly performed. It is clear that Substitute Personnel for the past 2 years has been supplying temporary help to the Respondent at its request when the need for such services arises at a cost of $3.25 per employee hour.21 The record also shows that from July through November 1974 there was a dramatic decline in the Respondent's monthly utilization of the serv- ices of Substitute Personnel as compared with the services furnished by Substitute Personnel during the same periods in 1973.22 It thus appears that Substitute Personnel for a 18 Warehousemen load and unload the Company 's delivery trucks, un- load common carriers transporting materials from the Company's Akron plant; store stock , pull stock to fill customer orders, and keep the ware- house clean Truckdrivers primarily load and unload company trucks and make deliveries. However, both classifications frequently interchange func- tions. 19 The Personnel Action Notice form, dated 9-9-74, states that Eyerman was "laid off-lack of work . Eligible for rehire " However, the personnel card on file in the Akron Personnel Office recites the above reason for the layoff but the item "Rehirable " has no "yes" or "no" notation in the appli- cable space; it only has a dash Rose explained that at the time when the card was prepared, the personnel clerk probably did not have the informa- tion to complete that item 20 Specifically, the record shows the following . on September 9, there were six Substitute Personnel employees , each of whom worked 8 hours; on September 10 there were four Substitute Personnel employees, each of whom worked 8 hours; on September 11, the Respondent used four Substi- tute Personnel employees, each of whom worked 8 hours, on September 12. three such employees were utilized 4 hours; and on September 13, three Substitute Personnel employees each worked 8 hours . Thus, for the week of September 9, Substitute Personnel employees worked for the Respondent a total of 148 hours 21 According to Executive Sales Supervisor Rose, the cost of such services is not treated as an operating expense of the Pittsburgh facility but rather enters into the cost of materials shipped by the Akron plant by common carriers which Substitute Personnel employees unload . Rose also testified that temporary help is also used at all of the Respondent's other warehouse facilities. 22 Thus, as compared with the corresponding month in 1973, there was a decrease in services of 42 percent in July 1974, 35 percent in August; 58 percent in September, 79 percent in October ; and 48 percent in November. Continued 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD long time prior to the advent of the Union has been an established source of temporary help required by the Re- spondent in its normal operations and that Substitute Per- sonnel has also experienced substantially reduced earnings as a result of the Respondent's declining business. Notwithstanding, it is undisputed that following Eyerman's layoff the warehouse employees resented and complained about the presence of Substitute Personnel em- ployees in the warehouse, especially if they performed warehouse work which Eyerman was fully capable of doing and which he had performed in the past. As a result, the Respondent issued orders that Substitute Personnel employees were to be utilized solely to unload Akron trail- ers but were not to be used for other jobs unless permission was received from Executive Sales Supervisor Rose or, in his absence, from Attorney Bussman. Apparently these or- ders are being observed and only occasionally have Substi- tute Personnel employees been assigned jobs otherwise re- stricted. The General Counsel also relies on overtime worked by employees both before and after Eyerman's layoff to dem- onstrate the discriminatory nature of his layoff and the failure to recall him. However, there is no question that overtime which, among other things, includes the 4 hours regularly worked on Saturday, time not used for lunch, and time truckdrivers need to complete deliveries and return to the warehouse, has been an established condition of em- ployment at the facility since long before the time Eyerman was laid off. Indeed, as noted previously, four other layoffs not claimed to be discriminatory were effected in June, before the appearance of the Union, and yet employees continued to work overtime thereafter. 6. The Respondent's refusal to recall Eyerman One day, about a week or so after Eyerman's layoff, the warehouse was having difficulty taking care of customers because of an apparent shortage of workers. When Office Manager Goldberg asked employee Tharp what the trou- ble was, Tharp stated that it was due to the fact that there weren't enough men in the warehouse. Goldberg then in- quired whether it would help matters if Eyerman would be recalled and Tharp answered in the affirmative. Goldberg thereupon said that he would telephone Akron and re- turned to his office. Goldberg then called Rose who vetoed the idea, attributing the situation in the Pittsburgh ware- house to a temporary surge in business and to the men's slowdown and unnecessary absences. Following this conversation, Goldberg told Foreman Gartley, who was in the office at the time, to inform Tharp that Eyerman would not be recalled. According to Tharp's credible testimony, Gartley reported to him that Akron re- fused to call Eyerman back because the Labor Board would not permit it until Eyerman had a hearing or some- thing to that effect.23 Gartley did not contradict Tharp, specifically admitting that he told Tharp that Eyerman This amounts to a 48-percent decrease in services supplied by Substitute Personnel to the Respondent over the indicated 22-week period in 1974 23 The complaint does not allege , nor is it contended, that Eyerman was not recalled for this reason in violation of the Act. would not be recalled "because of the hearing." However, Gartley testified that Goldberg did not give him that rea- son and that he (Gartley) deliberately lied and fabricated that story because of the employees' resentment and hard feelings over Eyerman's layoff and the Respondent's con- tinued use of Substitute Personnel employees. Both Gold- berg and Gartley denied that Goldberg told the latter that it was the Labor Board hearing which barred Eyerman's recall. In this connection, it is noted that the complaint in this case had not yet been issued at this time. I credit the denial. 7. Installation of a timeclock in the warehouse In October, following the representation election previ- ously mentioned, the Respondent installed a timeclock in the Pittsburgh warehouse. This was the result of management's decision made more than a month before the appearance of the Union and the filing of the Union's representation petition. It appears that prior to the installa- tion of the timeclock, timecards were kept by Foreman Gartley. Quite frequently employees questioned the accu- racy of the notations on these timecards which led to argu- ments with Gartley. On those occasions, some employees thought that a timeclock would eliminate these dis- agreements. On July 25, Administrative Supervisor Sedita requested authorization from Rose to install a timeclock in the Pitts- burgh warehouse in order to achieve "better control of the administrative process of time cards." On August 1, Rose authorized the installation and on August 16 a request to repair a used timeclock, which was then stored at the Respondent's Chicago facility, was initiated. On August 21, the repair of this timeclock was approved and an order to repair was issued to the Mite Corporation. On October 2, the repair job was completed and the timeclock was sub- sequently installed at the Pittsburgh warehouse. B. Concluding Findings 1. With respect to Eyerman's layoff As previously indicated, the General Counsel contends that Eyerman was laid off because of his union activities, whereas the Respondent urges that his selection for layoff was due solely to legitimate business considerations and the fact that he possessed the least seniority among the warehouse employees. From a careful analysis of the evi- dence, I find that the General Counsel has failed to sustain his burden of proving unlawful discrimination. There can be little doubt that there is some evidence suggesting that. Eyerman's layoff was discriminatorily mo- tivated. Thus, Eyerman played a prominent role in the union movement and, in fact, was the one who made the arrangements for union representation and successfully so- licited from all the unit employees their signatures to union authorization cards. Moreover, Foreman Gartley was fully aware of Eyerman's union sympathies and was informed by Eyerman on August 29 during the Apache Lounge epi- sode that the employees had already signed authorization cards which had been delivered to the Union and that it ALSIDE SUPPLY CO. was too late for Gartley to do anything about it. This caused Gartley to exclaim why did Eyerman do it since it would mess up their job . Also a suspicious circumstance is Office Manager Goldberg's asserted misunderstanding of Executive Sales Supervisor Rose's reaffirmed instruction given to him on August 16 to lay off "another warehouse- man" in addition to Hunt, who had given a notice that he was quitting, and Connie Gahagan , an office employee. On the other hand, there is uncontroverted evidence that from early 1974 through the remainder of the year the Pittsburgh facility was experiencing a deteriorating eco- nomic situation which the Respondent was trying to coun- teract with various cost-cutting measures and, when the initial measures proved to be unsuccessful . by resorting to others, including four layoffs in June , which is not claimed to be discriminatory . When those steps similarly fell short of their objectives , Rose on August 12 ordered the layoff of two warehousemen on August 30 and on August 16 added Connie Gahagan, an office employee, to the number of employees to be laid off. It is significant that the latter decisions preceded the Union's appearance by more than 2 weeks. While Goldberg failed to lay off a second ware- houseman because of an asserted misunderstanding of Rose's instructions, it does not necessarily follow that such instructions had not actually been issued . By the same to- ken, Eyerman's retention until September 9 when he was laid off does not inevitably establish that the layoff was dictated by his intervening sponsorship of the Union. In- deed, if the Respondent were really discriminatory minded, it is difficult for me to believe that , having learned of Eyerman's union involvement , it would not have relied on Eyerman's attack upon Gartley as an excuse for promptly discharging him. Further negating an inference of anti- union motivation is the fact that Eyerman actually had the least warehouse seniority which Rose directed Sales Man- ager Nieman on September 9 to use in selecting the em- ployee to be laid off in the implementation of Rose's Au- gust 12 and 16 decisions . The acceptability of seniority as a criterion for the selection of employees in a legitimate re- duction in force cannot be questioned in the absence of strong evidence that it was adopted for a discriminatory purpose. I find insufficient evidence of such purpose here. Also indicating that Eyerman's layoff was not improper- ly motivated is the fact that the record contains no evi- dence of a background of unfair labor practices or union hostility on the part of the Respondent. While there is evi- dence, as the General Counsel points out, that Gartley made certain remarks to employees concerning the possi- ble adverse effects of unionization , later to be discussed, I do not believe that they reflected company policy or atti- tude. It is undisputed that none of Gartley's superiors or other company official ever uttered one single word which could be characterized as antiunion . In fact, not only were employees permitted to carry on union discussions in the warehouse without hindrance from the Respondent, but after the Union filed a representation petition the Respon- dent consented to an election and maintained a position of strict neutrality , refraining from waging any campaign to defeat the Union at the polls. To support a finding of discrimination, the General Counsel also relies on the fact that at the time of 455 Eyerman's layoff and subsequently that the Respondent utilized temporary help furnished by Substitute Personnel, Inc., and permitted its own warehousemen and truckdriv- ers to work overtime at time and a half. I find such reliance misplaced. As shown above, the Respondent's utilization of Substitute Personnel was not a recent innovation to ena- ble the Respondent to get rid of undesirable employees. Rather, Substitute Personnel for the past 2 years has regu- larly served the Respondent as a source of supply of tem- porary help to meet the Respondent 's needs. Moreover, it is undisputed that, because of the Respondent's declining business, Substitute Personnel itself has not been utilized in 1974 to the same extent as it had been in comparable peri- ods in 1973 . In these circumstances , I fail to see how an inference of discrimination against Eyerman could be drawn simply from the fact that at the time of Eyerman's layoff and thereafter the Substitute Personnel employees were employed at the facility in reduced numbers. Indeed, to draw such an inference in this case might well be tanta- mount to interfering with an employer's managerial right to determine for itself how to allocate its labor costs. Nor can I find a basis for finding discrimination in the fact that the Respondent's employees were working over- time when the Respondent laid off Eyerman . True, there are circumstances where the use of overtime might cast doubt on an employer's asserted need to lay off an employ- ee. However, this does not appear to be the situation here. The evidence discloses that overtime at the Pittsburgh fa- cility has been an established condition of employment ne- cessitated by, among other things , the Respondent's policy of keeping the facility open on Saturday and the need of truckdrivers to complete their deliveries . Furthermore, there is evidence that, when the Respondent laid off four employees in June because of declining business, it never- theless permitted overtime to be continued to be worked by the remaining employees. Accordingly, under the facts of this case, I do not regard the continuance of overtime to be a compelling factor supporting an inference of discrimina- tion against Eyerman. In sum, I find that, while there are circumstances in this case that arouse one's suspicions of the purity of the Respondent's reasons for Eyerman's layoff, suspicion is not an adequate substitute for evidence. Accordingly, I conclude that the General Counsel failed to sustain his burden of proving by a preponderance of the evidence that Eyerman was laid off because of his union activities in violation of Section 8(a)(3) and ( 1) of the Act. It is there- fore recommended that the relevant allegations of the com- plaint be dismissed. 2. With respect to interference, restraint, and coercion I have found above that Foreman Gartley in July and August participated in various union conversations in the warehouse, which employees had initiated among them- selves, and made certain statements concerning the conse- quences of unionization . In substance, it has been found that Gartley told employees that a union would not be good for them because they would have to work "harder" and keep "stricter hours," adding that a timeclock would be installed in the warehouse . Gartley also stated in these 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conversations that, if the warehouse were unionized, the employees would lose benefits they were enjoying, includ- ing company-paid Blue Cross and Blue Shield insurance, and that layoffs could possibly result.24 It is the General Counsel's position that Gartley's state- ments constitute coercive threats and warnings designed to impede the employees' organizational effort , which are im- putable to the Respondent and therefore are violative of Section 8(a)(1) of the Act. I do not agree and I find that Gartley's statements reflect only his own personal views and opinions and not the Respondent's attitude and policy and that the employees did not understand his comments to be otherwise. In determining whether a supervisor's remarks to em- ployees are violative of the Act, they must be judged in the context of the total circumstances and not considered in a vacuum. Here, at the time Gartley made the statements in question, which was before the appearance of the Union at the warehouse, he was a working foreman who, beside per- forming supervisory functions, physically worked along- side rank-and-file employees with whom he apparently en- joyed a friendly relationship. He was the lowest in the Company's supervisory hierarchy and was the only super- visor who ever made any comment regarding the advan- tages or disadvantages of unionization. Yet, despite his de- clared apprehension over the possible adverse effects of union representation, it is undisputed that on a number of occasions Gartley expressed a desire to become a member even if it meant returning to his job as a truckdriver. Addi- tionally, the record is absolutely barren of any evidence that any higher level supervisor or responsible manage- ment official ever expressed any views on the subject of a union, much less voiced antiunion sentiments . Indeed, it is clear that at no time did the Respondent prohibit employee union discussions in the warehouse during working hours, 24 As previously indicated, employee Tharp testified that in one discus- sion in which he participated Gartley stated that, if a union succeeded in getting the employees a good increase , that most likely the Company would lay off somebody to make up for the increase According to employee Fris- co, Gartley remarked that, if the Company wanted to be inconsiderate. it could lay people off and that in a slow season and with winter coming on the Company could lay off employees and nothing could be done about it which had been going on since at least the beginning of the year. Also, when the Respondent learned that the employ- ees had signed union authorization cards and that the Union had filed a representation petition, the Respondent pursued a policy of strict neutrality; consented to a repre- sentation election; and deliberately refrained from waging a campaign to defeat the Union at the polls. Appraising Gartley's remarks in light of the foregoing facts and circumstances, I am not convinced that Gartley was doing more than voicing his personal opinion or that his statements were intended to convey the idea that he was speaking on behalf of management which was de- termined to use economic power to force employees to re- ject union representation, in plain disregard of their statu- tory rights. Accordingly, I find that the Respondent did not violate Section 8(a)(1) of the Act by reason of Gartley's statements in question and the applicable allegations of the complaint will be dismissed.25 The General Counsel also contends that the installation of a timeclock in October was in reprisal for the employees' designation of the Union to represent them and therefore violated Section 8(a)(1) of the Act. Without repeating the details previously discussed, it is sufficient to note that the Respondent's decision to install a timeclock in the Pitts- burgh warehouse and the action subsequently taken to im- plement it occurred prior to the advent of the Union and the filing of its representation petition. Accordingly, no merit is found in the General Counsel's contention and the relevant allegations of the complaint will be dismissed. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in the unfair labor practices alleged in the complaint. [Recommended Order for dismissal omitted from publi- cation.] 25 Cf Las Vegas Sun, 209 NLRB 240 (1974)