Fiber Materials, Inc.

FIBER MATERIALS 933 Fiber Materials, Inc. and Textile Workers Union of America, AFL-CIO, CLC and Employees Depart- mental Representative Group, Party in Interest. Case 1-CA-11287 March 21, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On January 7, 1977, Administrative Law Judge John M. Dyer issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent filed a brief in support of the Administrative Law Judge's Decision and a brief in reply to the General Counsel. Pursuant to the provisions of Section 3(b) of the National Labor' Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE commerce and jurisdictional allegations and the superviso- ry status of certain persons alleged in the complaint. It denied that there is any such thing as the Employees Departmental Representative Group. Respondent admit- ted that it discharged Bruce McMullen and laid off James Bean, Dennis Bishop, and David Collard on the dates alleged in the complaint. Based on the evidence produced, the sequence of events, and my evaluation of the credibility of the witnesses, I have concluded that General Counsel has not proven the allegations in the complaint and will dismiss it in toto. The parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally at the hearing held in Biddeford, Maine, on June 17, 18, and 23, 1976. General Counsel and Respondent have filed briefs which have been carefully considered. On the entire record in this case, including the exhibits and testimony and on my evaluation of the reliability of the witnesses based on the evidence, sequence of events, and their demeanor, I make the following: FINDINGS OF FACT I. COMMERCE FINDINGS AND UNION STATUS Respondent is a Massachusetts corporation with its principal office and place of business in Biddeford, Maine, where it is engaged in research and development and the manufacture, sale, and distribution of various types of insulating materials. Respondent also operated a plant in Graniteville, Massachusetts, until its destruction by fire on December 14. During the past year, Respondent received directly from points outside the State of Maine at its Biddeford plant raw materials and supplies valued in excess of $50,000 and during the same period sold and shipped finished products valued in excess of $50,000 directly to points outside the State of Maine. Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admits, and I find, that the Union herein is a labor organization within the meaning of Section 2(5) of the Act. JOHN M. DYER, Administrative Law Judge: Textile Workers Union of America, AFL-CIO, CLC, herein called the Union or Charging Party, filed the original charge on December 12, 1975,1 and amended charges on January 9 and February 4, alleging that Fiber Materials, Inc., herein called Respondent or the Company, violated Section 8(a)(l), (2), and (3) of the Act. On February 10, the Regional Director issued a com- plaint and notice of hearing which alleges that Respondent violated Section 8(a)(1), (2), and (3) of the Act by discharging or laying off four individuals, supporting a so- called Employees Departmental Representative Group, and by engaging in eight individual instances of 8(a)(1) conduct of threats and impressions of surveillance. Respondent's timely answer, as amended at the hearing in this matter, denied any Act violations and admitted the H. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Facts The Company was founded and incorporated by its president, Walter Lachman, on March 19, 1969. The first plant was established in Graniteville, Massachusetts, where there was a machine shop and a weaving installation, which in December 1975 employed about 50 persons. On Decem- ber 14, the shop burned down and some 7 to 10 employees were transferred to Biddeford to repair burned equipment and the remainder, mostly weaving department employees, were laid off. This second plant was later reestablished in Lowell, Massachusetts. Seventy percent of the Company's business consists of contracts with various government agencies for research I Unless specifically stated otherwise, the events herein took place during the latter part of 1975 and the early part of 1976. 228 NLRB No. 112 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and development work in insulating materials, mainly for nose tips and cones of space reentry vehicles for nuclear warhead protection. The weaving operation weaves carbon fibers in various directions or dimensions , and the multidi- mensioned fabrics may be reinforced with carbon in producing these tips or cones. The Company is also working with aluminum and carbon mixtures to produce reinforced metals. In another direction, it is developing insulated fiberboard to withstand great heat and hopes to develop and promote its use for installations such as furnaces. At the Biddeford location, Respondent is completing a new research and development lab for high temperature testing of materials. This facility is under division manager Louis Landers. The Company's weaving division has the largest number of employees. Vice President Paul Jahn, who was formerly located in Graniteville, is the manager of the carbon textiles group, and James Crawford, Jr., is the manager of the woven products group. Roger Pepper is manager of the new products group which includes the chemical and mechanical labs and is the division which is engaged in research for new products . The carbon products division is under Larry McAllister and Jack Cook is the energy manager. The Company has a chieffinancial officer, Kenneth Black, and Vice President E. N. Hagge appears to be in operational control of the Company under President Lachman. In October 1974, the Company had a total of 148 employees at both plants. The employee complement grew to 177 in May 1975 and jumped to 208 in June and went to 240 in October. Employment went down in November to 234 and further down to 186 in December, to 179 in January, and to 169 in February. It came back up and leveled off at 181 as of June 12. The actual reduction of employee complement does not show up immediately in Respondent's records since the Company holds back I week's pay and gives employees their accrued vacation pay when they are laid off, so that somebody laid off in November might still show on the payroll in December. Company records show that in December 44 employees were laid off for economic reasons. Included in this number are most of the Graniteville employees who were laid off when the plant burned down . If that plant had not been demolished, the number of employees laid off at Biddeford might have increased so that Respondent could get down to the level finally established. Additional economic layoffs were five in January and one each in February and May. Other people left the Company's employ voluntarily or were discharged . The total figures, including economic layoffs, are 52 in December, 9 in January, and 11 in February. As for its economic problems, the Company stated that it had been promised a large contract by the Air Force which was due to start in October, but that contract did not come through because of government funding problems due to congressional delays on budgets. The cash flow became tight because the Company had borrowed rather heavily. At the end of October or early in November, Lachman asked Black for a breakdown of what each division thought was absolutely necessary in order to keep going and asked that the division managers come up with their own budgets. Lachman was only at the Biddeford plant 3 days in November because he was traveling , seeking to secure contracts. According to Lachman and Black's uncontradicted testimony, Black sought to see Lachman through Novem- ber because of the financial problems but was unable to reach him until December 1 . At that time, Black advised Lachman to lay off 50 people immediately because the Company was going to suffer heavy financial losses due to the low number of contracts. Because of the amount of time and money invested in the training of people, and still hoping to get contracts, Lachman decided to lay off week by week, rather than immediately, and allow the profits to go down gradually in order to keep trained people on the payroll as long as possible because they were valuable, not only to his Company, but would be to his competitors if they were able to pick them up. Lachman stated that his Company is the only one in the world that can make a number of the products they produce , and competitors would like to have the insight that some of the employees could take to them if they were laid off. Lachman ordered a gradual layoff and instructed Black to have it accomplished by the department heads examining their departments as to how many employees they could afford to cut back. Some of the burden was taken off of the layoffs when the Graniteville plant burned down. In the summer, Respondent's personnel department was working with Respondent's attorneys in preparing a book- let on the fringe benefit programs Respondent had in profit-sharing and hospitalization and insurance benefits. After some considerable time, the plans and documents were approved and a booklet was put together and distributed to the employees around December 4. Thereaf- ter, a number of questions were asked of supervisors and of the personnel department concerning the benefits and plans, including what benefits pregnant employees had. Since there were a number of questions , the Director of Personnel, Stephanie Smith, instructed training instructor Paul Burnham to get a group of employees together and hold a meeting to see what the problems were and to provide answers. In the past, when planning a company picnic or other company meetings or activities , Respondent would have the supervisors pick employees to represent their sections at meetings or serve as committee members, and an effort was made to spread these duties around. As in most situations, volunteers were welcomed. Smith testified that she told Burnham to follow this procedure. A meeting was held in early December at which a number of questions were asked about the booklet and fringe benefits and about some matters not in the booklet . Burnham made a list of the questions which he could not answer and told the employ- ees he would get answers for them at a later meeting. Burnham reported to Smith who tried to get the answers and had Burnham set another meeting. Some of the same employees were at the second meeting, as well as some individuals who asked to go. At this late December meeting, Smith provided answers to a number of questions and explained the booklet and fringe policies to the employees. FIBER MATERIALS 935 General Counsel alleged that Respondent violated Sec- tion 8(a)(2) and (1) by selecting the employees to attend these meetings which he termed grievance meetings and alleged that the employees constituted an 8(a)(2) organiza- tion since they represented other employees and the meetings dealt with working conditions and fringe benefits of the employees. General Counsel's brief urges that Respondent knew of union organizational attempts as of November 10 and that these meetings were an effort to undermine the Union. General Counsel ignores the evi- dence that the fringe benefit booklet and its provisions were discussed in these two meetings and that the meetings were called because of questions regarding these fringe benefit policies. As will be shown below, the allegation regarding organizational activities as of November 10 is erroneous and the alleged violation is not found. The method chosen by Respondent to gather and disseminate information was the same as Respondent used in the past to establish various committees. There is no evidence that any organization to negotiate or conduct grievance meetings was set up by Respondent, and no one had knowledge of the organization named in the caption of this case as a party in interest . No formal organization existed and the informal group which met was not present to negotiate or present grievances, but merely to raise questions where Respondent's fringe benefit policies were not made clear by its booklet. The fact that an employer discusses its fringe benefit policies with employ- ees or groups of employees does not establish that those employees are acting as a labor organization. Therefore, there being a lack of any evidence to establish that Respondent established an 8(aX2) organization, I find and conclude that the 8(axl) and (2) allegations pertaining to this matter have not been established , and I will dismiss the 8(a)(1) and (2) complaint allegations concerning Section 8(a)(2). Dennis Bishop, who was employed by the Company for 15 months as a chemical technician, testified that in August he and another employee became interested in the Union and talked about it but decided to postpone doing anything until after the personnel wage reviews took place. He said they talked seriously about the Union in early November but that the other employee was assigned to other duties and said he could not continue with the Union. Bishop called Textile Workers Union Business Agent Alexander Anastosoff and said he had spoken with the technicians and they were interested in a union . A meeting was arranged for the night of November 25, at which, according to Bishop, were employees John Thompson, Dave Guillerault, Jim Bean, Leon Gruver, Tom Vigue, Bruce McMullen, himself, and one other employee. Bishop testified that I or 2 days later he told a friend of his, Supervisor Tom Zack, about his union involvement and that Zack told him to be careful. In the first week of December, two notices were posted at the plant stating that a meeting was being held for all hourly paid employees at 41 Franklin Street in Biddeford, with the topic being "equal opportunities and treatment" and "Abolishment of inequities for all." The notices concluded "The law gives you the right to listen, speak and vote without reprisal." Although the word union is not in the notices, it seems apparent that they would be taken by most as a notice of a union meeting. The fact that this notice was posted was brought to Lachman's attention by Personnel Director Smith who removed one of them from the wall and, at Lachman's instructions, replaced it. The union meeting was held on the night of December 4 with some 11 or 12 employees attending. According to Bishop, there were some new people and some of the older ones, including James Soulle, Ray LaJoie, Nelson Roy, Al Levitt, Dave Collard, Jim Bean, John Thompson, Bob Etzler, McMullen, and himself. Bishop stated that at this meeting, he signed a union card and some of the others may have done so too. On the following morning, Collard, LaJoie, LeMay, Norman Facteau, and himself were in the parking lot in front of the building handing out union cards, mainly to the women weavers, trying to convince them to take the cards in confidence, take them home, and sign and return them. Bishop stated that Jim Gilman, who he says is a supervisor in charge of shipping and receiving , observed them passing out union cards. David Collard said that it was possible that Gilman saw Facteau and himself while they were in front of the plant on December 5 passing out union cards since Gilman walked by about 15 feet away. Collard said he did not recall passing out a card as Gilman walked by and acknowledged that the cards were small and were in his hands which were held together , and that it was possible that no one could see that he had union cards. LaJoie testified that he was passing out union cards and that Gilman came by while they were passing the cards out, but does not believe that one was handed to Gilman. Gilman testified that on that day at the bottom of the hill, he saw some four or five employees standing there, including Facteau, Collard, and Dube, and thought it strange because everybody else was walking up the hill. He did not see what they were doing. Gilman testified that he was handed a card, but did not recall whether it was in the morning or in the evening, and threw it away without telling anybody about getting the card. Anastasoff testified that he and Bean stapled authoriza- tion cards to self-addressed return, postage-free envelopes and he was there as the shift was coming out in the evening with Bean, Collard, Etzler, and several others. Anastasoff said that as the shift came out, Gilman passed by and he handed him a card, and Bean told him that the person was a member of management. Anastasoff was not sure of the time but thought it was around 3:30 p.m. or so. The shift actually ends at 4:30 p.m. There was further testimony that Gilman customarily leaves about a half hour after the shift ends and would not ordinarily have left until 5 p.m. It is possible he left after 4:30 p.m. and may have been handed a card by Anastasoff. B. The Alleged Unfair Labor Practices 1. The discharge of Bruce McMullen McMullen was employed by the Company approximate- ly 5 months before his discharge on November 26. McMullen was a heat-treat technician, who testified he became aware of union activity around the plant through James Bean around November 10, and that he expressed his prounion sentiments to other employees. There is no testimony that he ever expressed any prounion sentiments 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to a supervisor or that a supervisor heard him say anything about a union. McMullen testified that on November 10 he overheard a conversation between Supervisor Kimball and employee Robert Doyon while they were standing near the carboniz- ers, some 10 feet away. He said that Doyon asked Kimball if he understood that the employees were pushing for a union and Kimball replied "Well, they can forget about it because Mr. Lachman would sooner fire everybody in the plant and start fresh because he has done it before at Graniteville." Kimball testified that he never had any such conversation with Doyon and did not make such a statement. Further, Kimball said that from his knowledge of the noise in the area of the graphitizers (carbonizers), it would be hard to believe that anyone could hear a conversation 10 feet away since the decibel range is very high because of the noise produced by the turbines which supply power and air to these high heat furnaces . Kimball is a staff engineer and a supervisor. Neither General Counsel nor Respondent called Doyon to testify concerning this supposed conversation. During rebuttal, former machinist John Thompson testified that he had worked in the machine shop area, which is reasonably close to the carbonizer machines. Thompson said that the machinery was not extremely loud and that you could hear the conversation of people who were within 2 feet of you. McMullen testified that he attended the November 25 union meeting and signed a union card and that on the following morning, Doyon, who was his nonsupervisory leadman, asked him about the meeting and who was there, etc., but said he did not tell Doyon anything. He then described several conversations between himself and Doy- on as to whether the floor around the machinery should be washed and when, with Doyon telling him that supervisor Kimball wanted the floor washed then. He went to see Kimball and told Kimball that he was disturbed about washing the floors because Respondent had a night janitor who should wash them and he understood the janitor was making more money than he did , and did not see why he should have to wash the floors. David Theis, the manager of the department, was in Kimball's office at the time and asked McMullen if he was refusing to wash the floors. McMullen said he was not refusing, but did not see why he should have to do so when a janitor was making more than he was. McMullen said that Theis told him they would go down and talk to the personnel director about it. When they walked in the office, Theis told Ms. Smith that McMullen was terminated and to draw up his papers . There is no dispute but that McMullen used some rough language there in the personnel department, but Theis testified he did not use any vulgar language and "kept his cool." During cross-examination, McMullen used a series of different words to avoid the idea that he refused to wash the floors and claimed that he only wanted a reasonable explanation because he thought he was being paid less than the janitor for doing this work . He said it was never adequately explained to him, and he was merely arguing about doing the floors but not refusing to do them. No matter what words he used, it comes down to the point that, in the office with Theis and Kimball, McMullen was refusing to wash the floors as he had been directed to do by Kimball. In his affidavit, McMullen confirmed that he, as well as leadman Doyon , had washed the floors previously on a number of occasions. McMullen admitted that, when he went into the office, he told Kimball that he was mad, that Doyon was giving him a runaround, and that the janitor was making more than he was. He admitted that he told Kimball that he did not want to wash the floors, but quibbled as to whether he said he would not wash them. The General Counsel sought to use McMullen's testimo- ny concerning his conversation with Doyon on November 26, as some evidence of company knowledge of McMullen's union activities, but there is no agency relationship or supervisory status of Doyon shown in this proceeding and there is no evidence that Respondent knew or assumed that McMullen had anything to do with the Union at the time of his discharge. Division Manager Theis testified to the poor work record of McMullen as to absenteeism and tardiness and that Kimball complained about it on a number of occasions and sought Theis' approval to discharge McMullen on a previous occasion. Theis rejected Kimball's recommenda- tion saying he wanted to give McMullen another chance but sent him to Personnel Manager Smith for a stiff warning on his tardiness and absenteeism record . Addition- ally, Respondent produced testimony that McMullen's work record was sloppy insofar as maintaining the ma- chines with the proper mix or amount of inert gases, which control the atmosphere in the carbonizing machines. There was further testimony that on one occasion President Lachman went through the area and saw McMullen reading a magazine while he was supposed to be working. McMullen was told on that occasion that in addition to monitoring gauges (which McMullen testified was his only duties), that there were other things for him to do, and that he had been left a list of things to do when he was not monitoring the gauges and that he was not performing his work properly. Placing it all in context, it appears that Theis and Kimball on November 26 were presented with the picture of an employee with a poor work record who had been told he would be discharged unless he improved, coming into the supervisor's office and complaining about doing work which he had been performing up to that time and telling the supervisors that he was not going to perform it because he was being paid less than the janitor, which was a wrong assumption on his part. There was no evidence of any knowledge by Theis or Kimball of any prounion sentiments or activities by McMullen or that they were antiunion. McMullen was a somewhat belligerent witness , and it is clear that the discharge did not have any tones of antiunionism in it but was a discharge for cause. Further, I do not credit McMullen's testimony concern- ing the supposed conversation of Kimball and Doyon on November 10. It is clear from the testimony and from the rebuttal testimony offered by the General Counsel that McMullen would not have been able to hear the conversa- tion of two individuals standing by the carbonizers when, FIBER MATERIALS according to his testimony, he was 10 feet from them. I credit Kimball that the incident did not occur. Lachman, after learning of the union activity in the plant, gave strict, specific instructions to supervisors not to discuss the Union with any employees or have anything to say about it. The bulk of the testimony indicates that these orders were followed. It is true that these instructions were given after the time of this alleged 8(a)(1) incident, but I am convinced that the incident did not occur based on the individuals concerned in this matter and on the dissembling manner in which McMullen testified. While neither side called Doyon to testify, it is still incumbent on the General Counsel to establish violations by convincing proof. I conclude and fmd that the 8(a)(1) allegation of paragraph 8(a) of the complaint has not been established, and I will dismiss it. I further conclude and fmd that there being an absence of any proven knowledge by Respondent of any prounion sentiments or activities by McMullen and there not being any proven antiunion proclivities by Respondent, and it appearing that McMullen's discharge was for cause, that the 8(a)(5) allegation as to McMullen has not been established, and I will dismiss it. 2. The discharge of James Bean James Bean, a master machinist, was employed at the Biddeford plant from March 17 until his termination on December 2. There is no question ofBean's competence or ability as a machinist. Respondent maintains that the position he occupied at Biddeford was a luxury it could not afford when it did not receive promised contracts and in essence was duplicative of its machine shop operations at Graniteville. Originally the position was set up for machin- ing of soft insulation products as an adjunct to the production in Theis' process and fabrication development department. Theis testified that Bean and Thompson were hired to work on low density fiber forms and graph-foil products in the carbon products division. As Bean testified, he did get into other machining and worked on some hard carbon carbon products. Respondent's Vice President Hagge in April 1975 issued a memo to all division heads, stating that machine shop work was to be performed at Graniteville and that the machine tools in the operating divisions, which would have included Theis' department, were only for direct produc- tion of the division's product as an "integral process in the production." This memo was followed up after Bean's termination by another memo on December 12 from Hagge to all division managers, again reiterating that all machin- ing work was to be done at Graniteville except for that which was specifically authorized as production processing support. Theis testified that, in order to justify keeping both Bean and Thompson at work, he went outside the terms of the April memorandum and got additional work for the machine shop at Biddeford so that Bean and Thompson could be kept busy since he hoped that the product demand would increase to the point which would justify keeping both Bean and Thompson. There was no question but that they had master machinists in the much better equipped machine shop at Graniteville, where all types of machining were performed. 937 After Lachman was presented with the figures and the recommendations for immediate terminations by Black on December 1, the first cut he made was to terminate Bean, since he felt the position was a duplication of the machinery operations at Graniteville. He retained Thompson, who was less experienced, because he felt that the level of work to be done at Biddeford with the limited machinery could be performed by Thompson who was a lower paid employee. There is no evidence that Lachman, who made the decision to terminate Bean by abolishing his position, had any knowledge of any prounion activities by Bean or knew of any concerted activities by Bean. The layoff notice stated that Bean's particular job function had been abolished, and he was given letters of recommendation from the personnel department, stating that he was an outstanding employee with an excellent work record who displayed exceptional ability and cooperation. General Counsel claims Bean was discharged in violation of the Act, because of Bean's concerted activities with Thompson in meeting with Supervisors Theis and McAllis- ter on December 1, and because of Bean's activities on behalf of the Union. Bean testified that he became interested in the Union early during his employment with Respondent and that in early November he talked to another employee about the Union; and, finding they were both interested, they polled the hourly employees in their building as to their interest in a union. Additionally, Bean states they talked to Tom Caffarella about the Union during the summer and fall. While the complaint alleges that Caffarella is a supervisor, it was stipulated during the proceeding that Caffarella was an engineer and there is no evidence which establishes that Caffarella was a supervisor. According to Bean, he attended the union meeting on November 25, with about seven other employees and, on the following day, he talked about the Union in the presence of Gary Strempeck. While Strempeck was referred to by Bean or General Counsel as a supervisor, the evidence established only that Strempeck, like Caffarella, was an engineer who acted as a leadman in passing on orders to technicians and did not possess genuine supervisory pow- ers. The ratio of supervisors to employees also helps establish the leadman, nonsupervisory positions of engi- neers. On December 1, pursuant to Bean's request, he and Thompson met with Supervisors Theis and McAllister in McAllister's office. Bean testified that they spoke about the raise plans and policies, health insurance and insurance, the profit-sharing plan, and wanted to know why it all was not down on paper, as there was confusion among the employ- ees as to what their benefits were. Bean said the conversa- tion lasted between an hour and 15 minutes and an hour and a half. He said they also discussed the relationships between the employees and management. While it was claimed that this action constituted concert- ed activity, there was a statement made by Bean at one point that he was not speaking for anyone other than himself, and neither he nor Thompson had obtained authority from the other employees to represent them in this meeting. He testified that they were there to discuss the situations in the plant which they thought needed discus- 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sion, and that the message he sought to get across to Theis and McAllister was that if things did not improve, he was going to quit. The General Counsel argued that this meeting consti- tuted concerted activities which were then reported to Lachman who thereupon decided to discharge Bean. There was no testimony to support the assumption of a report to Lachman and indeed testimony was adduced that no such report was made. Thompson was not discharged but later resigned. Theis testified that he considered the meeting an ordinary meeting of employees and management and did not report it to anyone above him but, in fact, left for a trip on December 2, and was gone for some 2 weeks. Concerning the meeting, Theis said that Bean and Thompson talked to him about the pension plan, insurance, and wage review systems on December 1; and, although he tried to answer their questions, he did not have all the information, and they asked him whether Mr. McAllister would be willing to discuss the topics with them . He said he was sure he would and arranged a meeting at which they discussed pension plans, profit sharing, when these plans would be set to paper, their wage review system, and that employees wanted to see the review sheet before it was sent in. McAllister said he would try to get more information for them in regard to their questions. Theis was out oftown for 2 weeks beginning on December 2, and did not tell Lachman or anybody else of the meetings held with Bean and Thompson, since these were ordinary meetings such as he had held with other employees, and did not feel it was anything out of the ordinary. McAllister corroborated Theis' testimony about the substance of the meeting with Bean and Thompson and that it was a normal, ordinary meeting which he had no reason to report to anyone and did not do so . He stated that on December 2, he got a call from Personnel Director Smith who said that because of the economic conditions of the plant, they were eliminating the job of master machinist and Bean would be laid off. McAllister testified that he called in Bean at the end of the day, told him of the decision, took him to the personnel office, and offered to give him a letter of recommendation. He said he later gave Bean a favorable recommendation over the phone for another company and that he was unaware of any union activity by Bean at the time. McAllister as head of the carbon products division is Theis' boss. He corroborated Theis that sales for the division's products had not materialized in anticipated demands and that they began taking other jobs to keep their machine shop busy and that this was against the intent of the April memo. He said that the elimination of the job was no surprise to him and he had been busy scrounging other work to keep the men on, in the hope that sales would increase and they would be able to use them to their full potential. There is no evidence Theis, McAllister, or Lachman knew of, or suspected, Bean's union sentiments or activity. There is no evidence that the conversations between Theis, McAllister, Bean, and Thompson were considered as anything out of the ordinary or were considered activities that irritated Respondent to the point that it decided to terminate Bean. It is clear from the economic posture of the Company as demonstrated by the testimony, figures, and graph charts that Respondent was in an economic bind and that the elimination of the job, which was a duplicate in one sense of the work of the machine shop operations in Graniteville, was a legitimate move made by Respondent in trimming its costs. This was a first step of many Respondent made in trimming its amount of personnel. The testimony on which General Counsel relies to establish an 8(a)(3) or an 8(axl) discharge is insufficient to do so. There is no evidence that Caffarella was a supervisor or an agent or that he in any way relayed any prounion sentiments of Bean to anyone else in the Company. Accordingly, I fmd and conclude that the 8(a)(3) and (1) allegations regarding Bean's termination are not substanti- ated and will dismiss them. 3. Three 8(axl) allegations concerning Caffarella The complaint alleged in paragraphs 8(b), (c), and (d) three 8(axl) violations by Thomas Caffarella whom the complaint calls a supervisor. It was alleged that he created an impression of surveillance by telling employees that an employee had been fired for going to the union meeting and also by informing employees that Respondent had a list of union sympathizers. It was also alleged that he intimidated employees by instructing them not to argue or they would be termed troublemakers and fired like employee Bean. General Counsel produced no evidence in regard to the allegation concerning the first impression of surveillance in paragraph 8(b). It was stipulated that Caffarella is an engineer and there was no evidence adduced to show conclusively that Caffarella was a supervisor. Cafl'arella had no authority to hire, fire, or effectively recommend such actions and any recommendations he made for pay raises for technicians to persons over him were independently investigated by Supervisor Theis. Caffarella, at the most, was a conduit of orders for employees he worked with, and, as an engineer, he would have more insight into what needed to be done. He assisted technical employees and acted as a lead person. The lack of supervisory authority and the absence of any agency authority by Caffarella is sufficient grounds for dismissing complaint paragraphs 8(b), (c), and (d); and I conclude and fmd that these 8(a)(l) allegations are not established and must be dismissed. Assuming arguendo that Caffarella was a supervisor, General Counsel based allegation 8(c) on Robert Etzler's testimony. Etzler testified that when he was hired, Person- nel Director Smith introduced him to Caffarella saying Caffarella was to be his boss. Smith denied this testimony, and Caffarella, who had left Respondent months before the hearing, was not a witness. Etzler stated that on November 26, with Couver, he asked Caffarella if he could fmd out whether there was a list of the people who attended the union meeting since he had been told that somebody had turned in their names. He said that Caffarella came back and said that he looked over a secretary's shoulder and had seen a list with Etzler's name but that Couver's name was not on the list. FIBER MATERIALS Even if we were to credit Caffarella is a supervisor, this testimony would not establish that there was a list of union names. Etzler said that during the first week of December he heard supervisors and engineers being called to McAllis- ter's office and asked Caffarella what it was all about. He said that Caffarella replied they were being told not to have anything to do with or say about union activities. John Thompson, in addition to confirming the conversa- tions he and Bean had with Theis and McAllister in McAllister's office, said that on December 16, after he had an argument with Couver, Caffarella told him to cool it and stay out of arguments or he would be termed a troublemak- er like Bean . This statement, if it occurred as Thompson testified, would have happened 2 weeks after Bean's discharge and a few days after Respondent received the charge concerning Bean. Caffarella had left Respondent's employ several months prior to the hearing, and the statement at best is ambiguous and does not clearly refer to union activities. As stated above, there is no proof of agency or superviso- ry status of Caffarella; and, secondly, these allegations are not clearly violative in their context, and I will dismiss the allegations in 8(b), (c), and (d) of the complaint. 4. Two 8(a)(1) allegations concerning Horst Gigerenzer Raymond Lajoie testified that on December 16 the head of his department, Dr. Roger Pepper, had called the employees together and informed them of the fire at the Graniteville plant and that they had lost a contract and the financial situation was grave. Pepper said they would probably have to lay off two employees in this department. After the meeting, Supervisor Gigerenzer called Lajoie aside and said he had been informed that Lajoie was an agitator or instigator and that unless he changed his attitude he would not be working there anymore, and that Lajoie had seen some past examples. Lajoie said he mentioned Jim Bean, and Gigerenzer agreed and hoped Lajoie got the message because they did not want to lose him. Gigerenzer testified that his lab engineer, Strempeck, had been getting upset with Lajoie for about 2 weeks because Lajoie was not following Strempeck's directions concerning equipment and tests and was not cooperating. He said that Strempeck had complained to him and he had observed Lajoie's uncooperative attitude . Because of the small size of the staff and the confined area and the necessity to get along, he called Lajoie aside after the meeting with Dr. Pepper. He told Lajoie to stop instigating problems and be more cooperative, but said nothing concerning the Union. There is nothing in Lajoie's testimony concerning the Union except for the common connotation given the word instigator. Gigerenzer is a naturalized citizen and speaks with a decided accent and it is possible, if not probable, that his choice of words was made without knowing the special connotation given to "instigator" in union organizational situations. Lajoie admitted that he did not get along with Gigerenzer and that they had a personality conflict and that he did not agree with the policies Gigerenzer set out and he left 939 Respondent voluntarily. I credit Gigerenzer that he said or intended nothing about the Union in his remark to Lajoie. It is probable that Lajoie, being involved with the union organizational efforts, was suspicious of anything said by a supervisor and interpreted Gigerenzer 's statement in a manner not meant. I do not find that Respondent violated Section 8(axl) of the Act by the statement of Gigerenzer to Lajoie. During the hearing, the complaint was amended to allege that Supervisor Gigerenzer violated Section 8(a)(1) of the Act by telling employees not to talk about the Union or that disciplinary action would be taken against them . Employee David Collard testified that during the first week of December Gigerenzer came into the room where he, Lajoie, and Strempeck were working and told them to stop their bitching and not to talk about the Union or raises anymore or disciplinary action would be taken. In his affidavit, given less than a month after the conversation , Collard stated that Gigerenzer told the three of them that he was tired of their bitching and that disciplinary action might be taken if they kept on. Significantly, the word union was not mentioned in the affidavit and General Counsel admitted that the word first appeared during the hearing in this matter in a conversation with Collard and he thereafter moved to amend the complaint. Gigerenzer specifically denied making any remark about the Union in his statement to the employees but said he did tell them to quit their bitching. This testimony in effect corroborates his testimony concerning the conversation with Lajoie, that he was having personnel problems in the lab with Strempeck and Lajoie, that technicians Lajoie and Collard were giving engineer Strempeck a bit of a hard time, and that Strempeck had complained that it was difficult to get anything done efficiently because they were always arguing with him about the way to do it. Gigerenzer said he finally got sick of the problems and told them that business was getting bad, that they should be interested in getting the job done, and the jobs were difficult and they had limited facilities, and the only way to do it was for them to stop bitching and moaning about the work and get the job done. Gigerenzer specifically denied saying anything about a union in that conversation. The word "union" seems to be an afterthought on Collard's part, since it was not included in the affidavit and apparently popped up at the time of the hearing following Collard's layoff. I credit Gigerenzer that this statement had to do with lab personnel problems and attempting to get the personnel to work better together and had nothing to do with any union activities of these employees. I therefore dismiss complaint allegation 8(e) and the amended allegation which should be 8(h). 5. An 8(axl) allegation concerning Supervisor Theis The complaint alleges that, on December 17, Supervisor Theis created an impression of surveillance by informing employees that President Lachman had inquired from him as to whether certain employees were troublemakers. John Thompson said that on Wednesday in mid-Decem- ber, following Theis' return from his trip, he told Theis he 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had placed a poster on the bulletin board informing employees that there would be a meeting and told him about a problem he had had with Couver where apparently there had been an argument between them. He stated that they discussed Bean's termination and Theis said he was upset that Bean was let go. Thompson asked Theis if he had ever been called to the front office in regard to Bean's or his character or actions and that Theis replied that on a Monday, before he had left for his trip, he was called to the office and questioned as to whether Bean and Thompson were troublemakers, and asked the front office for clarifica- tion as to what they meant by troublemakers. Nothing else was adduced on this testimony nor was it established who in the front office had allegedly asked Theis such a question. Theis specifically denied ever making such a statement to Thompson. Theis stated that the only problem he knew of was the problem of people borrowing tools and there being some dissension over the tools not being returned, which gave rise to irritation among employees. I will dismiss complaint allegation 8(f) since the evidence establishes no direct tie-in, either to the Union or Lachman as the complaint alleges, and I credit Theis that he made no such statement. I believe that if anything was said about troublemakers, it was in a completely different context. 6. The layoffs of Bishop and Collard General Counsel does not question the economic necessi- ty for layoffs which the Company established by its evidence. In regard to the layoffs of Bishop and Collard, General Counsel asserts that they were improperly picked for layoff because of their union membership or activities and not for the reasons advanced by Respondent. General Counsel stresses they had more seniority than the retained employees in the department while acknowledging that Respondent stated that in questions of economic layoff, it took into account the employee rating system, performance records, seniority, and the employee's experience and skill. Collard and Bishop worked in the Company's new product division, which is under Dr. Roger Pepper. On December 2, Kenneth Black met with Dr. Pepper and gave him a short financial analysis of the division, pointing out that the cost of the division ran about $2,000 a week while it was bringing in about $1,000 a week, and that staff reductions would be needed to bring the division in line because of the Company's bad financial picture. Between December 2 and 8, Dr. Pepper learned the Company had not received the $800,000 Air Force contract, and Dr. Pepper met with the division employees and said the Company needed their full support because it was not in good financial shape. He told them that the division's income was below its expenditures and that it was probable that they would have to release two employees. In his next meeting with Black, Pepper insisted that he could not release three technicians and an engineer as Black recom- mended because it would disrupt the research capabilities of the department and essentially the Company counted on developing new products to grow. Pepper said he would release two technicians and ask Lachman for an additional overhead support to make up the difference between their intake and outgo. As recited above, Dr. Pepper repeated this message when he told the division employees of the loss of the Graniteville plant. He also testified that despite some important engineering breakthroughs, sales of the new products had not met their expectations and, as of the time of the hearing, had not met his earlier anticipation. During the latter part of December, Pepper finalized his report and request to Lachman, stating that he would let two technicians go but asking for overhead support for the new products division to enable it to maintain its research capability in its efforts to develop new products. The new products division had two laboratories, a chemical process laboratory under Supervisor Thomas Zack with engineer Nelson and technicians Bishop, Lenox, and Facteau. Facteau had previously worked for the Company and had been a mechanical laboratory techni- cian in the new products division. The mechanical laboratory was under Supervisor Horst Gigerenzer with engineer Gary Strempeck and technicians Collard and Lajoie. Lajoie quit around December 19. On December 29, Pepper met with Gigerenzer and Zack and explained that he was planning to let Collard and Bishop go. He testified that Gigerenzer objected to letting Collard go, stating that Collard was a competent, hard working man and was the only technician left in his lab. Zack objected to letting Bishop go, but neither Zack nor Gigerenzer offered him any alternatives. Pepper testified that he decided to layoff Bishop rather than Lenox because Lenox had 3 years of college work towards a bachelor's degree in chemical engineering and was more familiar with the laboratory work and understood a number of the processes involved in the research being done. Bishop had a diploma in marine science, which was not particularly related to the work. Both of them had been employed at the same time and because of the greater capability of Lenox and Lenox's higher performance ratings, he decided to keep Lenox over Bishop. Dr. Pepper stated he decided to retain Facteau rather than Collard because Facteau had been trained in both the chemical and mechanical laboratories had had some training at the Maine Vocational Technical Institute in heating and ventilating which he considered related to work because Facteau had an understanding of gas flows. Collard had a high school degree. Because of Facteau's ability to operate in both areas and his greater capability, he decided to keep him although he had less seniority than Collard. Pepper explained to Collard and Bishop why he had chosen them for layoff and he said they seemed to understand his reasons. He told them that the decision to lay them off had been the hardest decision that he had to make and offered to give them excellent references. The Company attempted to help them get other work and gave them good references. Neither Collard nor Bishop ques- tioned Pepper's integrity. Dr. Pepper testified that he had no knowledge of any interest by Bishop or Collard in a union. Indeed, from the testimony, all of the technicians had signed union cards prior to the layoffs and Facteau had passed out union cards. Dr. Pepper's reasons for his layoff selections appear to be in conformance with Respondent's layoff policy and FIBER MATERIALS 941 meet what would appear to be a normal method of making a selection based on the exigencies of the laboratories at that time. It is entirely possible that much deeper cuts might have been made throughout the Biddeford plant if the Graniteville plant had not burned down in the interim. C. Analysis General Counsel produced a number of facts which, when seen from a myopic viewpoint, would appear to make some of Respondent's actions questionable and perhaps violative. However, when all of the facts are viewed in context, it appears clear that Respondent was faced with a number of problems and reached decisions which were entirely consonant with the facts then before it. General Counsel's assumptions of supervisory status of some employees in asserting knowledge of union activities and 8(a)(l) violations were not based on facts. Similarly, the 8(aX2) allegation was based on a paucity of any firm evidence. Respondent was not replying to a union cam- paign when it held the two meetings, but was attempting to answer its employees' questions in regard to the fringe benefit plans it had described in a recently distributed pamphlet. Not everything can be anticipated in issuing such a booklet. In order to get everything cleared at once, and rather than having isolated questions dribble in, Respon- dent's personnel manager, Stephanie Smith, had a nonsu- pervisory employee set up a meeting of employees to secure the questions and give some answers. When the questions came in broader scope than the employee had been able to prepare himself for, the questions were researched by Stephanie Smith and a second meeting was held, at which answers were given to a number of the questions. This setting-up of meetings of employees does not make such meetings or the employees who attend them a labor organization de facto. There was no organization such as was named in the complaint. Therefore, there being no 8(a)(2) organization and no actions which violated Section 8(aX2) in this regard, those allegations must be dismissed. 2 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, •onclusions, and the recommended Order herein shall, as provided in Sec. The financial plight in which Respondent found itself is one which a number of companies in this area had experienced due to contract problems and government budget and spending problems in this period of inflation. The decision to discharge McMullen clearly was based on nothing more than McMullen's refusal to do his job coming on top of a poor work record. McMullen was somewhat truculent in his testimony and exhibited an evasiveness and dogmatic approach to things in the use of words that made it clear that Respondent was well within its rights for discharging him for the reasons it gave. The selections of Bishop and Collard for layoff were strictly on an economic basis and the justifications for it were amply provided by Respondent. The fact that a number, if not most, of the male employees at the plant, including all the technicians in the two laboratories, had signed union cards, makes it harder to perceive why General Counsel asserts that antiunion motivation went into the selection of these two for layoff. President Lachman's message to the supervisors not to interfere with any organizational efforts of the employees and not even to say anything to the employees about unionization efforts was clear, both to the supervisors and was known to some of the employees who testified. Bean's layoff by abolishment of his job was a sound, economic move in the circumstances and was based on company policy concerning machinery operations. Accordingly, having found that Respondent did not violate Section 8(axl), (2), and (3), as alleged in the complaint, I hereby dismiss the complaint in its entirety. Upon the basis of the foregoing findings and conclusions, I hereby issue the following recommended: ORDER2 The complaint and charges in this matter are hereby dismissed in their entirety on the basis that the allegations of the complaint have not been proven. 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.