United Engines, Inc.

50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Engines, Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers. of America, UAW. Case 15-CA-5612 January 9, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On September 3, 1975, Administrative Law Judge Arnold Ordman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and Respondent filed a brief in support of the Administrative Law Judge's Decision. 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 and to adopt his recommended Order. Contrary to our dissenting colleague, we find that the record as a whole supports the Administrative Law Judge's finding that the layoff of six union sup- porters was not unlawful. While the 8(a)(1) findings do establish a certain amount of union animus, the record also establishes that both Pendarvis and Har- vey-the two supervisors who made the comments relied on by our dissenting colleague-were very ap- prehensive as to the precise effect which the newly certified union's presence would have upon their control over the shop and management of labor mat- ters. The statements in question do not establish that Respondent had an antiunion motivation in the lay- off of the employees, but instead they demonstrate that the supervisors recognized that they no longer could affect the employees' employment status (e.g., recall the employees) without first consulting the Union. Additionally, our dissenting colleague's reliance upon the deviation from past practice is unconvinc- ing and fails to take into account the different eco- nomic climate of 1975. While Respondent had not laid off mechanics during repair work declines in previous years, the national economic slump in the latter part of 1974 and early 1975 that greatly affect- ed the trucking industry and Respondent's loss of a major account are sufficient justifications for Respondent's different response to its severe business decline. The substantial reduction in repair work is established by unrefuted evidence. Moreover, Respondent's offer of recall to the laid-off employees as its business picked up is inconsistent with the no- tion that the layoffs were in retaliation for the laid- off employees' union support rather than economi- cally motivated. Thus, contrary to our dissenting colleague, in light of the above considerations, we agree with the Ad- ministrative Law Judge that the General Counsel has not established by a preponderance of the evidence that Respondent unlawfully laid off the six employ- ees. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, United Engines, Inc., Shreveport, Louisiana, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. MEMBER JENKINS, dissenting in part: I am unable to agree with the majority that the layoffs of six employees on January 18 and 31, 1975, did not violate Section 8(a)(3) of the Act. The Ad- mimstrative Law Judge concluded that a shortage of work existed which justified a reduction in Respondent's work force. However, even assuming arguendo, that economic justification for the layoffs existed, the record contains clear, convincing, and undenied testimony, much of which was volunteered by Respondent's heirarchy, that the layoffs were ef- fectuated because the Union won the election in De- cember 1974. The Administrative Law Judge found that Re- spondent engaged in a consistent pattern of coercive interrogation of employees, and the interrogation was accompanied by threats of reprisal, promises of benefit, and solicitation of employees to repudiate the Union. Indeed, he found that Assistant Service Manager Harvey made no pretense that reprisals would not be taken against union adherents. Addi- tionally, following the union victory in the election, Service Manager Pendarvis told several of the alleged discriminatees that "it was out of his hands and that they might all be looking for jobs." Consistent with this pattern of threats of reprisals, the record contains direct undenied evidence as to the real motivating factor for the layoffs. On January 17, 1975, after Kirkpatrick was laid off, Harvey said to him, "After all this is over with, this union bit, I'd like to have you back." On March 7, 1975, Pendarvis stated to Harvey, "you know, this union and all, if it 222 NLRB No. 9 UNITED ENGINES, INC. _ 51 was out, we'd probably bring back all the people that are laid off now." The Administrative Law Judge inexplicably failed to mention this relevant testimo- ny. There is also undisputed evidence that service business had dropped off during the early months of previous years, but no mechanics had been laid off. In sum, considering Respondent's unlawful hostili- ty toward the Union and its supporters, the admis- sion by Respondent's supervisors, and the deviation from past practice, I must conclude that Respondent was at least partially, if not totally, motivated by an- tiunion considerations when it effectuated the lay- offs. Therefore, I would find that Respondent dis- criminated against the six employees in violation of Section 8(a)(3). DECISION STATEMENT OF THE CASE ARNOLD ORDMAN, Administrative Law Judge: Pursuant to an unfair labor practice charge filed on March 3, 1975, by International Union, United Automobile, Aerospace and Agricultural Workers of America, UAW, herein the Union complaint issued on April 18, 1975, alleging that United Engines, Inc_, Respondent herein, violated Section 8,(a)(1), (3), and (5) of the National Labor Relations Act, as amended. More specifically, the complaint alleges that Re- spondent interrogated, threatened, and promised benefits to its employees in violation of Section 8(a)(1) of the Act; terminated the employment of seven employees by dis- charge and layoff in violation of Section 8(a)(3) and (1) of the Act;-and by the said terminations, by unduly delaying the transmission of relevant bargaining data to the Union and by other conduct designed to make collective bargain- ing with the Union ineffective violated Section 8(a)(5) and (1) of the Act. Respondent admits the jurisdictional allega- tions of the complaint, admits that the Union has been certified and is presently the - representative of Respondent's employees comprising an appropriate unit, but denies the, commission of unfair labor practices. Hearing on the controverted issues was conducted be- fore me in Shreveport, Louisiana, on June 10 and 11, 1975, with all parties represented. Briefs from Respondent and General Counsel on July 21 and 22, 1975, respectively, were duly received.,The Union submitted a,memorandum. Upon the entire record'm this proceeding, upon my obser- vation of the witnesses and after due consideration of con- tentions urged and arguments advanced, I make the fol- lowing: FINDINGS AND CONCLUSIONS L JURISDICTION Respondent is a Delaware corporation with its main of- fice and principal place of business in Oklahoma City, Ok- lahoma, and with branch facilities in Tulsa, Oklahoma; Texarkana, Arkansas, and Shreveport, Louisiana. Respon- dent is engaged in the wholesaling, repair, and distribution of Detroit Diesel Allison engines and related parts. The Shreveport branch is the only facility here involved. During the year preceding the hearing, a representative pe- riod, Respondent purchased and received at its Shreveport facility directly from sources outside Louisiana goods val- ued in excess of $50,000. On these admitted facts, I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I further find, as also admitted, that the Union is a labor organization within the meaning of Section 2(5) of the Act. Jurisdiction is properly asserted herein. II. THE UNFAIR LABOR PRACTICES A. Introduction The complaint alleges, the answer admits, and I find that Peter Morton, Jerry W. Morton, James Pendarvis, and William Harvey are supervisors of Respondent within the meaning of Section 2(11) of the Act, and are agents of Respondent acting in its behalf. The two first named indi- viduals are, respectively, chairman of the board- and presi- dent of Respondent. Pendarvis and Harvey are, respective- ly, service manager and assistant service -manager at the Shreveport facility. - 1-find further, as the complaint alleges and the answer admits,-that pursuant to a Board-conducted election held in November 1974 the Union was certified on December 5, 1974, as the exclusive bargaining representative of Respondent's- employees in an- appropriate -unit; -that the appropriate `unit consists of all employees working at Respondent's Shreveport facility, including mechanics, re- builders, parts-men and cleaners, but excluding office cleri- cal employees, salesmen, guards and supervisors as defined in the Act; and that the Union, since December 5, 1974, and presently, retains-exclusive bargaining status for the above-described employees.' - Following the certification and after an interchange of correspondence Respondent and the Union have had a ser- ies of bargaining sessions beginning in January 1975 and extending into June 1975 just before the instant hearing began. No final agreement has yet been consummated. General Counsel contends that the evidence as disclosed by this record establishes that Respondent, in its initial attempt to defeat the Union, engaged in-a systematic and pervasive campaign of employee interrogation which in- cluded solicitation of employee support, threats of plant closure, and promise of wage increases and job promo- tions. When these efforts failed, General Counsel argues, Respondent attempted- to destroy the union majority by terminating a number of employees. Finally, General Counsel contends,' Respondent, during the bargaining ne- gotiations, unduly delayed furnishing The Union ' essential bargaining information which the Union" had requested, and engaged in other conduct designed to thwart the bar- gaining process. The record also shows, and I find, that an earlier union effort to repre- sent these employees culminated in an election held in February 1973 The Union lost that election , 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The time frame of the events relevant here extends from October 1974 to June 1975. The relevant evidence and the conclusions flowing therefrom are set forth hereunder. B. The Violations of Section 8(a)(1) The complaint alleges 22 separate instances of unlawful interference by William Harvey during the period from late October to December 1974; 7 such instances by James Pendarvis during the same period and 3 additional instanc- es in March 19, 1975; and 3 such instances by Peter Mor- ton. As will presently appear, detailed consideration of the evidence as to each of these manifold instances would serve no useful purpose and would, indeed, be needlessly cumulative. Thus, a great deal of evidence was adduced , much of it undisputed, that Harvey, Pendarvis, and Peter Morton en- gaged in a pattern of interrogation of employees concern- ing union activities. Interspersed in this pattern were threats of reprisal, promises of benefit, and solicitation of employees to oppose or repudiate the Union. Much of this conduct occurred during the period from October 29, 1974, when the Union filed its petition for cer- tification as bargaining representative of Respondent's em- ployees, to December 5, 1974, when the Union was certi- fied pursuant to the election held on November 26, 1974. Employees Burns, Howard, Kirkpatrick, Ratcliff, Jones, and Pearson credibly testified to numerous incidents oc- curring between October 30 and the day of the election, November 26, when they were questioned by Harvey, Respondent's assistant service manager , about their knowl- edge as to the union petition, what employee or employees were behind it, what they had heard about the Union or about union meetings, and how they, or- other employees would vote in the forthcoming election . Even after the elec- tion was held, Harvey continued to press inquiries as to the employees' support of the Union and their contact with the Union. Harvey made no pretense in the course of these inquiries that reprisals would not be taken against union adherents. Quite to the contrary . Howard credibly testified that, when he was questioned by Harvey on October 30 as to the union petition, Harvey told him that he (Harvey) and Pen- darvis, had "their necks stuck out" for not having fired Howard, Bums, and a third employee, Dave Wynn, on the previous occasion in 1973 when the Union had sought to represent the employees. Kirkpatrick credibly testified that early in November Harvey told him that , the Union would do him no good "because [the owners] have enough money now they really wouldn't have this shop, because they don't make that much money ; that they could close the shop." Similarly, Harvey not only solicited Pearson to re- lay to Harvey any information he obtained about the Union .-but also emphasized to Pearson that the shop was too small to need a union. Pearson credibly testified also that on November 28, 2 days after the election, Harvey told him that "now that the union had been voted'in; that he didn't have any control over what the outcome of the shop would be there; that the shop might even have to be closed down, because they couldn't meet the union de- , , mands." 2 Harvey made a similar comment to Kirkpatrick, mg had not begun, and no bargaining demands had been made according to the latter's credited testimony, stating that Respondent would close the shop down because it did not need the money. Burns was told by Harvey during the first week of December that Respondent would begin to apply strict performance standards, would fire any employee not meeting those standards, and "there ain't a damn thing the union can do about it." Harvey impressed upon several of the employees not to go to the Union with their com- plaints, that he was the "damn boss" and would call "the shots." The foregoing evidence relating to Harvey and his con- duct vis-a-vis the employees is uncontradicted. Harvey did not appear as a witness. During the same preelection period, James Pendarvis, Respondent's service manager and Harvey's immediate su- perior, engaged in like conduct. According to Burns' cred- ited testimony, Pendarvis indicated to Burns his strong dis- like for "this union business" and, consistent with what Harvey had told Howard earlier, told Burns that Harvey and Pendarvis had their "heads on the chopping block" for resisting the discharge of Burns, Howard, and Wynn dur- ing the earlier union organizational campaign. Pendarvis added, according to Bums, "I'll guarantee you one thing: if this union don't go in, you-all'11 [sic] be looking for another job." According to the testimony of employees Howard, Jones, and Kirkpatrick, each was questioned by Pendarvis in November as to who was behind the Union or how they would vote. Pendarvis told Jones also that Jones was due for a raise but the Union would not permit it. Finally, early in December, shortly after the election, Pendarvis replied to a question as to what would happen as a result of the union victory. Pendarvis replied, according to Jones, that he would have had a say if the Union lost but `because the Union won "it was out of his hands and that they might all be looking for jobs." Some of the foregoing testimony is in dispute. Unlike Harvey, Pendarvis did take the stand and testify. Pendarvis admitted talking to Burns about both the current and the earlier union organizational effort. The essence of his mes- sage to Burns, according to Pendarvis, was that Pendarvis would now "spend all [his] time trying to convince the em- ployees that it would be the best to vote [the Union] out and go with the company." Pendarvis also admitted talking to other employees about the Union and seeking to dis- suade them from supporting the Union. In this connection Pendarvis candidly admitted asking employees how they felt about the Union and inquiring as to their preference. Pendarvis denied, however, that he threatened any of the employees with reprisals. Evidence was also adduced in support of allegations in the complaint that Peter Morton, chairman of the board 'in Respondent's organization, engaged in interrogation and solicitation of employees, accompanied by threats and promises of benefit, to repudiate the Union. Inasmuch as Peter Morton, like Harvey, did not appear as a witness, testimony as to his activities is likewise undisputed. Thus, Burns testified that while at work on or about November 2 As of November 28 of course certification had not yet issued, bargain- UNITED ENGINES, INC. 53 18, Peter Morton approached him and asked what the em- ployees wanted that was making them go union. Morton sought to enlist Bums' support, stressing that Bums was a good operator, that he (Morton) thought Burns would make a good shop foreman, and that Harvey might have to be moved from his job as assistant service manager for reasons of health thereby creating a vacancy for Burns. Morton further indicated, according to Burns, that Burns had enough influence among the employees to get "the union vote knocked in the head by just talking to the boys." A few days later Morton again approached Burns in a further effort to enlist the latter's support. In the course of this conversation, according to Burns, Morton indicated that the preceding month had been a very profitable one for the company and that this would be reflected in the employees' profit-sharing and retirement benefits, but that if the Union came in, "it's going to really knock your prof- it-sharing in, and your retirement benefits." In sum, then, there is a plethora of evidence showing a consistent pattern of coercive interrogation of employees concerning their union` sympathies and the union sympa- thies of their fellow-employees. This interrogation was ac- companied, as shown, by threats of reprisal, promises of benefit, and solicitation of employees to repudiate the Union. The offenders, all admittedly agents of Respon- dent, acting in its, behalf, were Peter Morton, chairman of the board, and Pendarvis and Harvey, the immediate su- pervisors of the employees engaged in the organizational effort. As already noted, Morton and Harvey did not even appear as witnesses to dispute that they had engaged in the conduct attributed to them. Pendarvis, who did appear, admitted engaging in a pattern of interrogation and in an intensive effort to dissuade the employees from supporting the Union. He denied threatening the employees. Yet testi- mony which I credit indicates that he, like Harvey and Morton, did engage in that conduct. I so find. That such conduct is violative of Section 8(a)(1) of the Act is not open to challenge. Indeed, Respondent in its otherwise able and comprehensive brief filed with me makes virtually no reference to this issue. Accordingly, L conclude and find that Respondent, by the foregoing conduct of its agents Morton, Pendarvis, and Harvey, violated Section 8(a)(1) of the Act. C. The Discharge of Burns William H. Burns was hired by Respondent on March 2, 1970, and worked as a mechanic in the service department. He was discharged on January 30, 1975, and has not been reinstated. Respondent concedes that Burns was a good mechanic, but contends that he was discharged because he was "moonlighting," more specifically, because, while re- maining in Respondent's work force and on its payroll, Burns was doing mechanical work for pay on the side for Respondent's customers. General Counsel, on the other hand, contends that the real reason Respondent discharged Burns was because Bums engaged in union activities. The relevant evidence is largely undisputed. Bums was an outspoken union activist and was a leader in the current union organizational effort. He was also elected as chair- man of the union bargaining committee in December 1974 following the union victory in the Board-conducted elec- tion. As already indicated, Respondent's officials were aware of Burns' key role in the union campaign, sought to dissuade him in that regard, and- sought also, unsuccessful- ly, to enlist his support in their campaign against unioniza- tion. Against this background it would not be unwarranted to infer that Respondent would have welcomed the oppor- tunity to rid itself of a leading union protagonist. As noted, the discharge of Burns took place on January 30, 1975. The preceding Saturday, January 25, Burns ad- mittedly did some mechanical work for Thornton and Brooks Drilling Company which for a number of years has been a customer of Respondent. This came to Respondent's attention when Burns called upon Harvey to sell him a needed part and to charge that part to Thornton and Brooks. Harvey reluctantly did so, only after telling Burns that he was not supposed to do such work and that there would be repercussions. As Burns testified, he replied to Harvey that he had to make a living and, to do so, would work on the side to supplement his income. Five days later, on January 30, 1975, the first negotiating session between Respondent and the Union took place at the Holiday Inn in Shreveport. Lynn Bonner, International representative of the Union, and employees Burns and Lee, as bargaining committeemen, appeared as representatives for the Union; Respondent's president, Jerry Morton, James Pendarvis, and Carl D. Hall, Respondent's attorney, appeared for Respondent. At the very outset of the meeting, Attorney Hall pro- pounded a series of questions to Burns about his doing outside work. As Burns himself testified, Burns admitted to Hall that he had done work for a customer of Respondent and had been paid for that work. Burns explained that he thought his conduct was justified because Respondent had been cutting his overtime and that he had to make a living. Burns further admitted, as he, further- testified, that he knew what he did was against "company policy." On cross- examination Burns further admitted that it was common knowledge among the employees that they were not to work for Respondent's customers on the side and that he also stated in reply to Attorney Hall's questioning that he would continue to do such work if his overtime was cut for his union activities. During the course of: the questioning Union Representative Bonner objected to the questioning of Burns, and following the series of questions and answers herein described Respondent's representatives withdrew and a brief recess occurred. When the parties reassembled, Burns was told he was discharged .3 In this state of the record it would be difficult to chal- lenge the reason assigned by Respondent for the discharge of Burns. Certainly, Respondent had a legitimate interest to protect in forbidding its employees to do work on the side for pay for customers of Respondent and thereby sub- jecting itself to competition from its own employees. In- deed, General Counsel does not challenge this proposition, 3 The evidence is in conflict as to whether there was one recess during this meeting or whether there were two . I deem it unnecessary to resolve this conflict because there is no conflict as to the course ,of the questioning and as to the fact that Burns was discharged immediately following a recess in the negotiations 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rather, General Counsel asserts that the assigned reason been established. was merely a pretext and that the real reason was Respondent's hostility to Bums' union advocacy. General Counsel seeks support for its contention on sev- eral grounds. The first ground is that Respondent had not at any time relevant here put its rule against moonlighting in writing. The second and related ground is that there was some ambiguity about the precise scope of the rule. The short answer here is that, even though the rule was not in writing, several employees testified that they were aware of the rule, Burns himself admitted his awareness of the rule and that his conduct was violative of the rule. More signifi- cantly, Bums openly declared his intention to continue vio- lating the rule if his overtime work was, in his view, unjusti- fiably curtailed. General Counsel also argues that the discriminatory na- ture of Burns' discharge is made apparent by the fact that the same penalty was not meted out to another employee, Dave Wynn, who, according to General Counsel, was guil- ty of the same offense and is still in Respondent's employ. The respective situations, however, were quite dissimilar as the record demonstrates. Dave Wynn did buy parts from Respondent on Spade- Drilling Company's account. But the parts were purchased for use by his father who was a regular employee of Spade Drilling Company. To be sure, Dave Wynn on occasion would help his father out but not for pay. In addition, while Spade Drilling Company was a customer of Respondent in the purchase of parts, Respon- dent did no engine work for Spade Drilling Company, so far as appears. Finally, there is no evidence that Respon- dent was aware of Dave Wynn's activities in this regard 4 In essence, then, General Counsel's case respecting Bums rests on the premise that Burns was a leading union protagonist and Respondent found this very distasteful. This may be conceded. As already noted, Respondent may well have welcomed the -fact that it had a ground for dis- charging Bums. But here,' as in P. G. Berland Paint City, Inc., 199 NLRB 927 (1972), "that alone is not sufficient to establish That the discharge was in violation of Section 8(a)(3)." And'-as the Board further stated in that decision (at 928): If the,employee himself obliges his employer by pro- viding a valid independent reason for discharge-i.e., by engaging in conduct for which he would have been discharged anyway-his discharge cannot properly be labeled a pretext and ruled unlawful. ... Unless the ground advanced is inherently im- plausible, is unsupported by credible evidence, or is proved by the record to have been used disparately on the basis of unlawful considerations, its rejection by the Board is unwarranted. In the instant case, even on the basis of Bums' own testi- mony considered alone, his discharge was warranted. On the whole record I conclude and find that a violation of Section 8(a)(3) and (1) of the Act in this regard has not ° On the issue of Respondent's knowledge, General Counsel argues mere- ly that Respondent "must have known about it ..: because Pendarvis and Harvey were present" when Dave Wynn signed his name to an invoice. The inference, in my view, is wholly speculative. D. The Layoffs of January 18 and 31, 1975 The -complaint alleges that on or about January 18, 1975, Respondent laid off employees Rick Jones, William Kirk- patrick, and Rusty Lee, that Rusty Lee was reinstated 12 days later, but that Respondent has failed and refused to reinstate Jones and Kirkpatrick. The complaint further al- leges that on or about January 30, 1975, Respondent laid off employees Jerry Picket, Jerry Robert, and Waymon Woodard and has failed and refused to reinstate them. Respondent's answer to the complaint admits the layoff of Jones, Kirkpatrick, and Lee on January 18, 1975, but states that Rusty Lee was recalled on January 30, 1975, William Kirkpatrick was recalled on April 15, 1975, and Rick Jones was offered recall on April 23, 1975. Respondent's answer further admits the layoff of Picket, Robert, and Woodard on January 31, 1975, but states that Woodard and Robert declined offers of recall -made to them on April 8, 1975, and that Picket was recalled on April 15, 1975. The fact that the six employees here named were laid off on the dates indicated is undisputed . The record likewise supports the assertions of Respondent's answer respecting the recall and offers of-recall made to the named- employ- ees. Indeed, General Counsel raises no issue in the latter regard but argues merely that "the recalls do not have the effect of retroactively validating the layoffs which were from the beginning tainted with anti-union motivations." The issue is therefore squarely posed . General Counsel argues that the layoffs were unlawfully motivated. Respon- dent argues that the layoffs were for economic reasons, specifically, because a decline in business at its Shreveport facility required a corresponding diminution of its work force. - General Counsel cites support for its position in the numerous statements made by Respondent's supervisors to employees from the very outset of the organizational cam- paign to the general effect that unionization would result in a shutdown of the plant or in the contraction of its opera- tions. See subsection II, B. of this Decision, supra. In Gen- eral Counsel's view the layoffs under consideration here were merely a fulfillment of these threats, motivated by the fact that the Union had prevailed in the election of No- vember 1974, that the Union had been certified as the bar- gaining representative of the employees on December 5, 1974, and that bargaining negotiations had been initiated. Respondent, on the other hand, adduced evidence in the form of oral testimony and business records showing a sub- stantial decline in its repair and overhaul business during the relevant period. Thus, there is undisputed evidence, and I find, that during this period Respondent lost a major account, that of the Weyerhauser Company, a''large lumber company which opened its own repair facility'and hired its own mechanics to do the work Respondent had previously done for it. Respondent also presented , evidence which demonstrated, and I find, that the general economic reces- sion which also affected the lumber business-a principal industry in the area and a source of work for Respon- dent-reduced the amount of work normally done by Re- UNITED ENGINES, INC. 55 spondent. Respondent's .business records, introduced into evidence, - also demonstrated ^ that between January and May 1975 the number of engine overhauls performed by Respondent, a principal source of work for its mechanics, declined substantially. Thus, during January 1975 Respon- dent did only two engine overhauls and only two overhauls remained to be done. Prior to the layoffs the same comple- ment of employees had performed 10 engine overhauls. Accordingly, Respondent asserted, economic consider- ations dictated reduction of its work force. - Accordingly, on January 8, 1975, Respondent wrote to the Union informing the latter that for economic reasons it proposed to lay off three employees in the service depart- ment at the close of the payroll period ending January 18, 1975. The employees named were Jones, Lee, and Kirkpa- trick. Enclosed with the letter was a list of the employees in the bargaining -unit which included, inter alia, the dates of their employment. Respondent noted in the letter that the selection of the employees to be laid off was dictated by seniority except in the case of Lee, and that Pearson who was junior to Lee in seniority was being retained because Pearson was qualified to make road calls and Lee was not. Respondent also noted that it was hopeful that the eco- nomic situation would reverse itself and the employees could be recalled at an early date. As Union Representa- tive Bonner testified, Respondent and the Union discussed the proposed layoffs at a meeting, on January 15 and, as indicated, the layoffs were implemented on January 18. Respondent also notified the Union at the January 30 bargaining session that three more employees would have to be laid off and discussion was held on these layoffs. In addition to the foregoing six layoffs, three employees quit, one of them, Lee, who had been laid off, who was recalled on January 30 and quit very shortly thereafter. As business improved, together with the need to take invento- ry, the six laid-off employees were recalled or offered recall as previously described. General Counsel challenges the probative value of the economic data adduced .by' Respondent as a justification for its actions. Thus, General Counsel shows that Respondent's backlog `of work was higher in the second half of 1974 'than it was in the first half. However-, the layoffs occurred in the middle and at the end of January 1975 and the very figures cited by General Counsel show a marked dropoff in backlog in November and December 1974 and that condition continued into 1975. General Counsel also argues that Respondent's sale of parts and products increased during the first 4 months of 1975. But it is clear that the layoffs were concentrated in the mechani- cal or service area of' Respondent's operations where the available service work had declined. Finally, General Counsel seeks to capitalize on the fact that active union adherents were among those selected for layoff. Yet the record shows- that others union adherents, equally active, were not laid off. I Finally, General Counsel argues that the shortage of work was contrived to furnish an ostensible basis for the layoff of union adherents. In this regard General Counsel argues that Respondent was turning down critical work for Kansas City Southern Railways during the period critical here and was shipping other critical work normally done at Shreveport to its Oklahoma City facility or to some other facility.-On the other hand, -Respondent adduced credible testimony from its vice president, Harry Goodman, and from its president and general manager, Jerry Martin, that work normally done at Shreveport had not been declined or been diverted. Moreover, as to-the specific instances cited by General Counsel, the record shows that, with re- spect to the Kansas City Railways work, demand was made that the work be done on the day the request was made and the two available employees were absent be- cause of illness. Similarly, as to the asserted few- instances of diversion- of Shreveport work to other facilities, these instances were shown to have been the result of special and nonrecurring circumstances or to demands of the customer that could not be met without transferring the work to meet the customer's requirements. - In short, I am satisfied on the basis of all the evidence of record, much of which is documentary and not-in dispute, that a shortage of work existed which justified a reduction in Respondent's work force. I find that General Counsel has failed to establish by a preponderance of the evidence that the shortage of work giving rise to the layoff was either fictitious or contrived, or that the selection of employees to be laid off was dictated by antiunion considerations. To be sure, Respondent might have welcomed the op- portunity to give even temporary layoffs to union adher- ents, notwithstanding that these layoffs, postdated both the election and the Union's certification as representative of Respondent's employees. But this by itself does not in and of itself warrant an inference that a layoff of such employ- ees resulting from a shortage of work or similar economic considerations is unlawful. House of Mosaics, Inc., Subsid- iary of Thomas Industries, Inc., 215 NLRB No. 123 (1975); Inland Steel Container Company, 185 NLRB 1, 10-12 (1970); Milford Fabricating Company, Inc., 193 NLRB 1012 (1971). In addition, the -recall or offer to recall these em- ployees when the need for additional employees arose mili- tates against the conclusion that they were laid off in the first instance for antiunion reasons. Accordingly, I find that General Counsel has not estab- lished by a preponderance of the evidence that the layoffs of January 18 and 31, 1975, were violative of Section 8(a)(3) and (1) of the Act. E. The Delay in Transmitting Bargaining Data The complaint alleges that on or about December 9, 1974, the Union requested Respondent to furnish it with certain.relevant data which the-Union needed to-conduct its bargaining negotiations with - Respondent. The com- plaint further alleges that Respondent unreasonably de- layed the transmission of this data until informed by the Union on March 4, 1975, that the Union had filed charges against Respondent asserting a violation of Section 8(a)(5) of the Act. Respondent's answer admits the Union's re- quest for the bargaining data but denies that it unreason- ably delayed the transmission of that data. The pertinent evidence can be quickly summarized. - By letter dated December 9, 1974, 4 days after the certi- fication, the Union asked Respondent to furnish the Union, for collective-bargaining purposes, with extensive 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD data concerning the employees in the bargaining unit, their names, addresses, seniority dates, current job classifica- tions, and rates of pay. In addition, the Union requested copious data with respect to any and all fringe benefits Respondent extended to its employees. By letter dated De- cember 13, 1974, Respondent's attorney replied that the requested data was being prepared and would be given to the Union as quickly as possible. This letter also suggested that a bargaining session be scheduled after January 6, 1975, when the writer returned from his vacation. On Janu- ary 8, 1975, Respondent's, attorney again wrote to the Union attaching a list of the employees in the bargaining unit and the information regarding the employees which the Union had requested. This letter also notified the Union of Respondent's proposal to lay off employees Jones, Lee, and Kirkpatrick on January 18, suggested a meeting on January 15 to discuss the matter, and agreed to start formal bargaining negotiations on January 30. On January 15, 1975, 1 week after the employee data had been supplied and 2 weeks before formal bargaining negotiations were scheduled to begin, Respondent trans- mitted to the Union substantial and detailed data concern- ing the fringe benefits Respondent furnished to its employ- ees. On the subject of retirement benefits, Respondent noted that a booklet on that subject would be given to the Union as soon as it was received from Respondent's home office. Respondent also asked to be notified if the Union needed any additional information. So far as appears, the Union voiced no objection to the form of the data received and made no request for further information. The booklet which Respondent had promised to give the Union was given to the Union at the March 4 meeting, 4 days after Respondent received the booklet from the printer. At this meeting the Union stated that it wanted not merely the description of the retirement plan furnished, in the booklet, but wanted actual copies of the pension and profit-sharing plans comprising the retirement benefits. At the same time the Union informed Respondent that unfair labor practice charges had been filed against Respondent the previous day complaining, inter alia, of Respondent's refusal to fur- nish bargaining information. Within 2 days after the Union requested copies of the actual pension and profit-sharing plans, Respondent mailed copies of the plans to the Union, and again asked if the Union wanted additional information. The Union later sought additional detailed information and this was fur- nished on May 15, 1975. General Counsel argues from the foregoing pattern of events that Respondent wilfully delayed transmitting the bargaining data the Union sought and complied with the Union's request only after being told that unfair labor practice charges had been filed. In my view the record does not warrant this inference. Actual bargaining negotiations began by agreement of the parties on January 30, 1975, and continued intermittently until June 4, 1975, a week before the instant hearing opened. As noted, Respondent by January 15, 1975, 2 weeks before actual bargaining ne- gotiations began and little more than a month after the Union's request, furnished the Union with all the copious data it sought. The only exception was the data relative to , the retirement scheme which Respondent said would be Respondent the previous day. covered in a booklet which would be furnished as soon as it was received. That booklet was furnished. Despite the fact that Respondent uniformly invited further requests by the Union for any additional information the Union might desire, no such requests were forthcoming until the meeting of March 4 when the Union said it wanted additional do- cumentation of the pension and profit-sharing plans. This was promptly furnished and a later request for still more data in that regard was also honored. In the light of this background of willing cooperation, the thesis that Respon- dent was withholding the data as to its retirement plans- all other information had already been furnished-and vouchsafed that data only when informed of the filing of unfair labor practice charges has tenuous support in the record. I conclude and find that General Counsel has not sus- tained the allegation that Respondent unreasonably de- layed the transmission of relevant bargaining data to the Union and thereby violated Section 8(a)(5) and (1) of the Act. F. The Refusal To Bargain in Good Faith As already indicated, formal bargaining negotiations for a collective-bargaining agreement between Respondent and the Union began on January 30; 1975. Seven more meetings were held thereafter, one in February, three in March, one in April, one in May, and one in June. No final contract was consummated. However, as shown by docu- mentary evidence and by the testimony of Lynn Bonner, the Union's International representative who attended all the bargaining sessions, there were substantial areas of agreement on many of the proposed contract provisions. At the January 30 meeting, the Union presented its non- economic proposals. There was brief discussion and a fur- ther meeting was scheduled for February 6. At that meet- ing Respondent submitted its own proposal in contract form and each item in that proposed contract was dis- cussed, including, as Bonner testified, "every item that we proposed to the company." Agreements were reached on several contract provisions; the purpose clause; the article, on recognition; a portion of the union-security article; the article on representation; much of the article on grievance procedure; the work assignment article; and an article on union use of bulletin boards. Included in Respondent's contract proposal submitted at the February 6 session was a clause giving bargaining unit employees an additional holiday on their birthdays, a benefit the nonbargaining unit employees were receiving. Negotiations resumed on March 4.5 At this meeting the parties agreed to an additional portion of the article on grievance procedure, to the hours of work provision, to the article governing payment for services performed away from the shop, to the nondiscrimination article, to an arti- cle on job classification, to an article on creation of new jobs, to a portion of an article dealing with leaves of ab- sence, to virtually all of an article covering seniority, to the major part of an article covering vacations, and to an arti- 5 As noted the Union had filed its unfair labor practice charge against UNITED ENGINES, INC. 57 cle dealing with duration of the proposed contract. At the next meeting on March 18, Respondent submitted a revised contract proposal incorporating the agreements already made and the relevant changes. Review of the re- vised proposal indicated that it correctly reflected the agreements made in the prior negotiations. Further negoti- ation at this meeting resulted in agreement to the article on union deductions, to the remainder of the article on griev- ance procedure, to the article on company rules, to lan- guage in the hours of work provision, to the article on wag- es, to the remainder of the article on work assignments, to the article entitled "Entire Agreement," to the article on amendments, additions and waivers, to the bulk of the arti- cle on leaves of absence, and to additional portions of the article on seniority. Another negotiation session was conducted on March 25, 1 week later. Further agreement was reached as to a portion of the management rights article, as to the remain- der of the vacation article, and as to provisions covering payday and report and call-in pay. Respondent also deliv- ered to the Union at the March 25 meeting a supplemental proposal dealing with health and welfare and rest breaks, matters which had been discussed but not settled at previ- ous meetings. On the basis of language changes suggested by the Union, these provisions were agreed to. At the next bargaining meeting, April 15, agreement was reached on a _management rights article including a provi- sion therein suggested by the Union. No agreement was reached, however, with respect to language in that article giving Respondent the right to subcontract work. Several more provisions were agreed upon at the May 6 bargaining session: paragraph 9.4 of the hours of work article except for one sentence; a portion of the article on holiday pay; an addendum to the report pay and call-in pay article; and a portion of the sick leave article. The agreements reached at the June 4 meeting, a week before the instant hearing, included final formulation of the vacation article, retirement and profit-sharing plans, a portion of the article on sick leave, and the classification description for the position, of "Rebuilder B." The vacation and retirement plans were approved after making changes requested by the Union. The parties also reached agree- ment on arbitration and no-strike clauses at the June 4 meeting. To be sure, no final collective-bargaining contract had been consummated when the instant hearing began and critical economic items remained to be resolved. On the other hand, it is also true that substantial agreement had been reached on very important items including items which did have significant economic impact, e.g., pension and profit plans, sick leave, report and call-in pay, rest breaks, vacation pay, and holidays. Moreover, there is no suggestion in the record that Respondent engaged in dila- tory tactics with respect to meetings, that Respondent re- fused to discuss any union proposal, or that Respondent reneged on any agreement as to any article once such arti- cle or provision had been agreed to. In addition, the record shows that in several instances at least Respondent acced- ed to, changes, deletions,, or amendments proposed by the Union. - In essence, then, the bargaining negotiations here sum- marized do not portray an employer who is blatantly or even subtly trying to forestall the consummation of a col- lective-bargaining contract, or an employer who is going through the pretense of bargaining with no real intent or purpose to reach an agreement. Nonetheless, General Counsel argues that Respondent was not really bargaining in good faith. In support of this position, General Counsel points to the following considerations: (1) Respondent unreasonably delayed the transmis- sion of requested information relevant to bargain- ing. (2) Even though agreement was reached on a number of contract proposals, no significant agreements were reached until after unfair labor practice charges were filed. (3) Respondent, while bargaining was going on, was engaging in deliberate efforts to discourage employ- ees concerning the bargaining process, and was seeking to bypass the Union as the bargaining rep- resentative of the employees. (4) Respondent sought to dissipate the Union's ma- jority and weaken its bargaining position by dis- charging Burns and laying off six other employees. As to, items (1) and (4) dealing with the delay in trans- mitting bargaining information and with the termination of employees, it has already been found herein that these alle- gations of unfair labor practice are without merit. Nor is there tenable basin for an inference that these actions were motivated by a desire to dissipate the Union's majority or weaken its bargaining position. As to item (2) there is little substance to General Counsel's argument that such agreements as were reached in the course of the bargaining negotiations were reached only after unfair labor practice charges were filed and, pre- sumptively, that they would not have been reached absent the filing of charges. The fact is that only two bargaining meetings had been held at that point in time but, as Union Representative Bonner himself testified, every contract proposal had already been subject to some discussion and some proposals had been agreed upon. Apparently, it is General Counsel's position that a final contract should al- ready have been consummated at the second meeting, or that there should have been a more inclusive area of agree- ment at that point, or that subsequent agreements would not have been reached, absent the filing of charges. I find such inferences, singly or cumulatively, to be without pro- bative support in the record. Remaining for consideration is item (3) in General Counsel's presentation; namely, that contemporaneously with the ongoing bargaining negotiations Respondent was seeking to discourage unionization and to bypass the Union as bargaining representative of the employees. As already set forth in subsection II, B, of this Decision, it is clear that Respondent's agents from the outset of the orga- nizational effort engaged in a pattern of interrogation, threats, and related conduct to discourage unionization. But, in support of its refusal-to-bargain allegation, General Counsel in its brief to me focuses on remarks made to employees by Service Manager Pendarvis and President Morton to the effect that the employees should abandon 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their support of the Union and that such support was to their prejudice. In point of time, the cited remarks occurred during the period when bargaining negotiations were in progress. But, as General Counsel's own recitation estab- lishes, two of the three conversations to which General Counsel alludes were conversations initiated by employees who importuned Pendarvis and Morton for advice as to how to get out of the Union and were told initially that Respondent could make them no promises. Certainly, on this state of the record, no adequate basis is supplied for a conclusion that Respondent was engaged in a scheme to dissipate the Union's majority or to bypass the Union as bargaining representative for the employees. Nor did the course- of the bargaining negotiations, hereinbefore de- tailed, afford warrant for such a conclusion. In sum, I find and conclude that General Counsel has not established by a preponderance of the evidence that Respondent refused to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(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. Peter Morton, Jerry Morton, -James Pendarvis, and William Harvey are supervisors of Respondent within the meaning of Section 2(11) of the Act and, at all times here relevant, are agents of Respondent, acting on its behalf. 4. By interrogating its employees concerning their union activities and sympathies, by threatening its employees with reprisals in the form of discharge or plant shutdown` because of their union'-activities and sympathies, by- prom- ising employees benefits to discourage their-`support of the Union, and by soliciting employees for aid in obtaining information about the Union and for help in inducing em- ployees to abandon or repudiate the Union, Respondent violated Section 8(a)(1) of the Act. 5. Respondent-did not violate Section'8(a)(3) and (1) of the Act by discharging William H. Burns. 6. Respondent did not violate Section 8(a)(3) and (1)'by laying off Rick Jones, William'Kirkpatrick, Rusty Lee,,Jer- ry Picket, Jerry Robert, and Waymon Woodard: 7. Respondent did not unreasonably delay transmitting relevant- bargaining data to the Union in violation of Sec- tion 8(a)(5) and (1) of the Act. - „ 8. Respondent did not refuse to" bargain in good faith with the Union in violation of Section 8(a)(5) and (1) of the Act. - - of the Act, I recommend the following: ORDER 6. Respondent United Engines, Inc., Shreveport, Louisi- ana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating its employees concerning union matters, threatening its employees with reprisals in the form of discharge or plant shutdown because of their union activities or sympathies, promising its employees benefits to discourage their support of the Union, and soli- citing employees for aid in finding out about union activi- ties and for help in inducing employees to abandon or re- pudiate the union. (b) In-any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their right to organize or to bargain collectively, or to refrain therefrom. - 2. Take the following affirmative action to effectuate the policies of the Act: (a) Post at its Shreveport, Louisiana, facility copies of the- attached notice marked "Appendix.,, 7 Copies of the said notice, on forms to be provided by the Regional Di- rector for Region 15, after being duly signed by an author- ized representative of Respondent, shall be posted by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to its employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 15, in writ- ing, within 20 days from-the date of this Order, what steps Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint herein be dismissed insofar as it alleges violations of the Act not specifically found herein. 6In 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 7 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 '- - - REMEDY - - Pursuant to Section I0(c) of the Act, I shall direct that Respondent cease and desist from engaging in the unfair labor practices here found and from engaging in like or related unfair labor practices. `By way of affirmative relief, I shall provide for notice-posting and reporting require- ments. Upon the foregoing findings of fact and conclusions of law, upon the-entire record, and pursuant to Section 10(c) NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD _ An Agency of the United States Government WE WILL NOT coercively question you concerning union matters. WE WILL NOT threaten you with discharge,- plant shutdown, or other reprisals because of your union activities or sympathies. UNITED ENGINES, INC. 59 WE WILL NOT promise you benefits to discourage WE WILL NOT in any like or related manner interfere your support of a union. with your right to organize or bargain collectively, or WE WILL NOT solicit your aid to find out about union to refrain from such activities. activities or ask for your help in inducing employees to abandon or repudiate a union. UNITED ENGINES, INC.