Chipmore Manufacturing Co., Inc.; Badger Chipper Co.; And Sidefire International, Inc.;

CHIPMORE MFG. CO. Chipmore Manufacturing Company, Inc.; Badger Chipper Co.; and Sidefire International, Inc.; a single employer and United Steelworkers of America, AFL-CIO-CLC and Cynthia Knochel. Cases 7-CA-23754 and 7-CA-23956 June 15, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On April 23, 1986, Administrative Law Judge Bruce C. Nasdor issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief. On February 4, 1987, the National Labor Rela- tions Board remanded the proceeding to the judge for further findings of fact, credibility resolutions, and, if appropriate, new conclusions of law and recommendations. The judge issued the attached supplemental deci- sion on August 25, 1987. Subsequently, the General Counsel filed exceptions to the judge's supplemen- tal decision and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. ' The General Counsel has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for re- versing the findings 2 In adopting the dismissal of the 8(a)(1) allegations relating to conver- sations between employee Hollenbeck and Supervisor Middleton , we rely only on the judge's discrediting of Hollenbeck . In adopting the judge's dismissal of the 8(a)(3) allegations, we note that, in light of the judge's credibility determinations, the record as a whole is insufficient to estab- lish a discriminatory motive . In view of our finding that there is insuffi- cient evidence of discriminatory motive with regard to alleged discrimm- atee Dinsmore, we find it unnecessary to pass on his supervisory status Further, with respect to the 8(a)(3) allegation concerning employee Kno- chel's termination, we note that the Respondent has met its burden of demonstrating a legitimate basis for that employee's discharge even absent any protected activity on her part. Wright Line, 251 NLRB 1083 (1980), enfd . on other grounds 662 F 2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management, 462 U.S. 393 (1983). Finally, we find it unnecessary to pass on the judge's finding that the Union never achieved a majority status because a bar- gaining order would not be appropriate in any event. J. P. Stevens, Esq., for the General Counsel. Kenneth Gordon King, Esq., for the Respondent. DECISION 263 STATEMENT OF THE CASE BRUCE C. NASDOR, Administrative Law Judge. This case was tried at Bay City, Michigan, on 21 January 1985, various dates in April, and on 16 July 1985. The original charge in Case 7-CA-23754 was filed on 16 August 1984,1 and amended on 1 October 1984. The original charge in Case 7-CA-23956 was filed by Kno- chel on 23 October, and amended on 17 December. An order consolidating cases, amended complaint and notice of hearing issued on 19 December. The amended consolidated complaint contains allega- tions of Section 8(a)(1) and (3) of the Act. Counsel for the General Counsel requests, inter alia, that a bargaining order issue against the Respondent. Upon the entire record, including my observation' of the demeanor of the witnesses, and after due consider- ation of the briefs, I make the following FINDINGS OF FACT I. JURISDICTION Respondents Chipmore, Badger, Sidefire and each of them are and have been at all times material herein, cor- porations duly organized under, and existing by virtue of, the laws of the State of Michigan. At all times materi- al herein, Respondents Chipmore, Badger, Sidefire and each of them have maintained their office and place of business at 6 Johnson Court, in the city of Bay City, and State of Michigan (the Bay City plant). Respondents Chipmore, Badger, Sidefire, and each of them have been, at all times material herein, engaged in the manufacture, nonretail sale and distribution of wood chipping machines. During the calendar year ending 31 December 1983, which period is representative of their operations during all times material hereto, Respondents in the course and conduct of their business operations purchased and caused to be transported and delivered to their Bay City plant, goods and materials valued in excess of $50,000, which were transported and delivered to their plant in Bay City, Michigan, directly from points located outside the State of Michigan. Each of Respondents Chipmore, Badger, and Sidefire is now and has been at all times ma- terial herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The parties stipulated that for the purposes of this pro- ceeding, the three Respondents are an integrated business enterprise and a single employer within the meaning of the National Labor Relations Act (the Act). II. THE LABOR ORGANIZATION The United Steelworkers of America, AFL-CIO-CLC is and has been at all times material herein, a labor orga- nization within the meaning of Section 2(5) of the Act. ' All dates are in 1984 unless otherwise specified. 295 NLRB No. 32 264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES Larry Emmons testified that he is the owner and presi- dent of the three employers involved in this proceeding (collectively the Respondent). Emmons bought the Re- spondent, which was an existing company, through a combination of a small business administration loan and a bank loan. Emmons testified that Respondent's major product line is the manufacture of wood chippers to grind up tree limbs and branches. Its principal customers are utility companies, municipalities, and tree service companies. Respondent Sidefire was bought in 1982 and manufactured a small chipper selling to the rental stores market. The Sidefire line was unique in that it was the only product of its kind to serve that market at that time. Re- spondent's chief distributor was located in Los Angeles and that distributor was responsible for half of Respond- ent's total sales during 1983. In 1984 this distributor ran into competition and negotiated a contract with a com- pany called Promark Products West . Approximately 12 months later, Promark came up with a duplicate product and marketed it on the West Coast, thus ceasing the pur- chase of the Sidefire line. Respondent's distributor on the West Coast completely lost his market. The line is now manufactured in California. Emmons was called by counsel for the General Coun- sel as a 611(c) witness, and also served as Respondent's chief witness. Where there are conflicts in his testimony with that of other witnesses, I will so indicate. . Emmons testified that the nature of his business is such that there are continuous cycles of layoffs almost on a monthly basis. Respondent is basically a job shop where- in if a large order comes in it goes out and hires people. After completion of the job there are layoffs . Emmons explains in his testimony that Respondent 's Exhibit 7 is a graph illustrating the complement of employees and lay- offs from 1982 through the first 3 months of 1985. The original source of information was taken directly from employee timecards. Employees represented on the documents are shop em- ployees only. Generally, as reflected by the exhibit, the employee level in 1982 and 1983 was between 10' to 14 employees. From August through the fall of 1983 the employee complement grew to approximately 24. By August 1984 the employee complement went back to the mid-1983 level. The increase of employees is explained by two new products that were introduced by Respondent. One, a disc chipper, and the other a sidefire chipper which was discussed earlier as aimed at the rental stores market. Ac- cording to the testimony those products were just begin- ning to show an increase in sales. Moreover, in the Chip- more line there were a couple of contracts with Davey Tree for the first time, which was Respondent 's national tree service contract ordered in the fall of that year. Some 24 new chippers were ordered which accounted for the increase in sales. Emmons testified that the average employee tenure was anywhere from a few months to 1 or 2 years maxi- mum. When business increases Respondent does not make a practice of calling back laid-off employees be- cause their skills are such that "we can pick up people on the street and due to the highly competitve nature of it, we have a lot of people we pick up at $3.35 an hour, minimum wage." In evidence as Respondent's Exhibit 8 is a document reflecting monthly sales in thousands of dollars, as relat- ed to months of production for the time period from July 1982 through March 1985, which corresponds to the same timeframe as Respondent's Exhibit 7. The source of the information reflected in Respondent's Exhibit 8 was the Respondent's sales journal which is part of the ac- counting system where sales are entered on a daily basis for all transactions. These journals were available at the hearing. Respondent's Exhibit 9 is a monthly sales summary which reflects the information in Respondent 's Exhibits 7 and 8, in tabular form . It illustrates the employee levels during those time periods . Davey Tree who for years was Respondent's primary customer made a major acqui- sition in mid-1983 . Accordingly, there was an increase in sales and employees for the last half of 1983 . Then in February, March, and April 1984 Davey Kent, which is the eastern half of the United States of Davey Tree, made a purchase which was larger than any in the past. The order came in February and was delivered in March and April 1984 (within a couple of months). Emmons testified that the approximate number of units he.pro- duced for Davey Tree during the year of 1984 was 50. Davey Tree did not make any purchases from Re- spondent during the months June through September 1984. Emmons testified if he has forgotten a purchase there might have been only one. After the Sidefire line was lost to Promark in the spring of 1984, no more purchases were made through Respondent after that time period. U-Haul Company was a contract that Respondent was painstakingly attempting to acquire. According to Emmons a U-Haul contract would have accounted for 300 units of sales. The time period involved was May through July 1984 when Respondent was looking for- ward to receiving' the contract. The U-Haul contract was never acquired. Respondent's Exhibit 10 is a document reflecting em- ployee terminations made through August 1984. This document includes administrative, clerical, production, and supervisory employees. It shows the last day the in- dividual worked, the reason for the termination, and the position held by the employee. Also, next to the dates re- flecting the employees last date are asterisks indicating that the individual was not replaced. The exhibit reflects that many of the employees either quit or were laid off prior to 27 July 1984, the date the Union's letter demanding recognition was received by Respondent. Thus, prior to the advent of the Union, Respondent lost seven production employees and three administrative or clerical employees. In March 1984, Respondent hired a sales representa- tive, Bill McMahon. Prior to this, Emmons served as sales representative. In May or June 1983, Respondent hired a shop superintendent, Harold Smith . Emmons fired Smith on 29 May 1984, because he and Emmons CHIPMORE MFG. CO. 265 could not agree on the manpower deployment. More- over, according to Emmons, Smith played favorites and Emmons was getting complaints constantly from em- ployees that "if you weren't a good buddy of Harold's, if you aren't a drinking buddy, you didn't get overtime, you didn't get choicer jobs, assignments within the shop." Emmons gives as a second reason for firing Smith that Respondent was suffering tremendous cost overruns. For example, the increase in disposable tools had no rela- tionship to an increase in sales or production. Emmons felt that Smith was careless in his management and cost control. According to the testimony of Emmons , Smith's termination was involuntary but Emmons agreed, Smith being an elderly man and concerned about getting an- other job, that he would accommodate him and call the firing a layoff so that Smith could draw unemployment. Respondent's Exhibit 5 is a letter dated and sent on 16 April 1984 from Emmons to the vice president of the Second National Bank of Bay City, Michigan, requesting to borrow money to make certain acquisitions of machin- ery, including a computer. The six-page document in- cludes information relating to net labor savings through the computer system. Page 2 of Exhibit A contains the "positions to be eliminated," the hours to be saved, and the reasons and bases for eliminating the positions. The specific positions referred to are cost accountant , materi- al control supervisor, payroll clerk, and purchasing clerk. These positions that in the past were done manually would now be done through the computer automatically and instantaneously. The computer was put on the line around 1 July 1984, and it is performing those functions to the present time. One of the Charging Parties in this case, Cindy Kno- chel, held the position of payroll clerk which was elimi- nated by virtue of the computer. She has not been re- placed and prior to her termination she was down to working 1 day a week, although at one time she had been a full-time employee . The period where she was working 1 day a week was in June or July. In June 1984, Emmons began discussing layoffs with some of his staff such as Irish, purchasing agent, and McMahon, sales manager. Respondent has a history of subcontracting. In June 1984, Freeland Fabricating Company communicated to Respondent that it could perform certain functions more economically than Respondent could do it in-house, therefore saving labor costs . A contract was executed with Freeland and Respondent made the decision to lay off four to six employees in July. Emmons testified that he received the demand letter from the Union and imme- diately put a hold on his layoff plans until he could con- tact a management consultant, Tom Basil. Basil and Emmons reviewed Respondent's sales and employee records and Emmons advised Basil of the recent period of declining sales, and his anticipation of laying off people on the very day the union letter was received. According to Emmons, Basil responded that if Respondent had a good business reason for the layoff that Respondent should go ahead and effect it. Thus, Emmons continued the period of layoffs which had begun in May. All layoffs were conducted in accordance with seniori- ty as had been Respondent's past practice. A. Harold Smith's Testimony in Regard to Emmons' Antiunion Animus According to Smith, he approached Emmons on sev- eral occasions requesting raises for Nick Reinhardt and Gerald Strauss. Emmons allegedly referred to Reinhardt as a crybaby and advised Smith that he did not like Strauss. Smith testified that Emmons speculated that the above-named employees would probably be prounion, and that Reinhardt and Strauss voted for the Union in a prior election. 2 Other employees were allegedly labeled by Emmons as likely union supporters . They were Scott Paige, Scott Freibe, Bill Clark, Bob James, and Brant Schuers. The employee who solicited the greatest number of union authorization cards, Jim Hollenbeck, was characterized by Emmons as someone least likely to support the Union. Smith testified further that Emmons articulated his intentions to fire any employee involved in union activity . This alleged conversation was to have taken place on the dock, in January 1984. The facts and testimony reflect that Paige and Clark were rehired in June 1984 after voluntarily quitting and were given raises . Strauss was not laid off at all in 1984, but was kept on the payroll . Paige and Strauss were the only employees on the payroll as of July 1984, in the group allegedly named by Emmons. Schuers, Freibe, Clark, and James voluntarily quit between January and June 1984. In response to Smith's allegations, Emmons testified specifically to a conversation he had with Smith on the dock. Emmons testified that the conversation could not have occurred in January because there would have been 6 feet of snow out on the dock and people would not be utilizing it during that time period . He recalled the con- versation as occurring in September 1983. Emmons was looking for Smith, walked outside to the dock and found 8 or 10 folding chairs sitting there after a coffeebreak. He told Smith he noticed these chairs had been there for a couple of days and that they should be taken inside at night or they would be stolen. According to Emmons, Smith responded that he did not know what was wrong "with these damn guys I told them many times to pick these things up. I think they think they got a union here and they can do anything they want." According to Emmons, Smith continued to elaborate regarding his thoughts about a union because he had been a superin- tendent at American Hoist, a local employer in Bay City employing 700 to 800 people at one time. Smith being part of management attributed his job loss at his age due to union problems at American Hoist. At some point in time, American Hoist left the Bay City area. Emmons continued to relate what Smith told him, that the Re- spondent's employees must think they have a union here, they do not listen or pay any attention to him. Emmons testified that Smith initiated the conversation about a union and that he specifically did not say any- thing to Smith regarding laying off people if necessary to 2 Testimony reflects that an election was held in 1980. 266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD get rid of any union sympathizers within the shop. Emmons then continued to testify in detail with respect to the individuals Smith named and the fact that some quit Respondent's employ for more money and some were subsequently rehired. B. The Supervisory Status of Lee Dinsmore and Alleged 8(a)(1) Violations by Emmons Dinsmore testified that he began with Respondent in March 1982 on the CETA program and his original se- niority date commenced on 11 May 1982. During his first years of employment he started out cutting parts on a band saw, shearing parts, a little bit of welding, and oc- casionally driving trucks . In January 1984 he testified that he was building trailers and was a welder full time, until March. At that point he testified that his supervisor, Smith, put him back in the stockroom doing shipping and receiving, occasionally driving a truck and filling in for a welder. Dinsmore testified that approximately 15 July 1984 he was advised that he was being granted a raise . Although there was a reshuffling of work as a result of the termi- nation of several key management personnel , Dinsmore testified generally that his duties remained the same, that is packaging alkaline parts, receiving supplies, and keep- ing track of the inventory . He would also stand in as needed filling in throughout the shop. Dinsmore testified that he normally reported directly to the plant superintendent. Dinsmore testified that he and Hollenbeck decided they were going to start a union . Dinsmore attended a meeting with other employees at the union hall, and he personally picked up 10 union authorization cards and started soliciting signatures from his coworkers. Dins- more himself signed the union authorization card and so- licited signatures from three or four other individuals. Dinsmore began soliciting cards on 22 June. Dinsmore testified that he attended a meeting of "all management personnel" on 26 July 1984 . Emmons con- ducted the meeting in his office. The following is Dins- more's version of Emmons' comments. "Yes, he had us all sit down in there, and he shut the door and he says 'I have a letter here in front of me from the Steelworkers' Union. They want recognition . They want to organize and I have been through this before and it is a long lengthy process.' He says, `there isn't anything I can do about it right now but I want to warn you people that you cannot condone a union or say anything bad or good about it. It is against the law. It is illegal . We will just have to let it run its course , and if I catch any of you in this room-anything-working with the Union or something, I will fire you because you are manage- ment."' Dinsmore also testified that prior to being called into that meeting (he gave no timeframe) he had been charac- terized as a shipping and receiving manager. Joint Exhibit 15 is a letter from Respondent to Dins- more dated 17 August 1984 informing him that he is being permanently laid off, because his position as mate- rial control supervisor is one of several that has been eliminated by the recent implementation of the computer. Emmons testified that Dinsmore's duties differed be- tween May and July. In May he was basically a crib stockroom manager. In June, when Smith left, he became material control coordinator or supervisor and assumed more responsibilities. Dinsmore then attended the supervisory meeting because of his function as mate- rial control manager. He supervised Shelton who was the individual in the shop that loaded and unloaded trucks and put away parts . According to Emmons he had full authority to take anybody necessary off the line when a truck came in and freight had to be moved. He had the authority to pull anyone off the line necessary to perform that function because that was a priority. More- over, he had access to the administrative offices and in fact worked from time to time within those offices. Reg- ular shop employees did not have access to these offices. Dinsmore also had access to the full filing system, tele- phone, and he had a desk. Dinsmore was not involved in the actual production in the shop . He did not do any welding or assembling or machine work after his change in status. It was Dinsmore's responsibility to keep inven- tory and stock levels up. It was his job to keep purchases consistent with orders and although he supervised mate- rial he had to utilize individuals for that purpose. For ex- ample, he directed individuals to pick up parts, by going to a subcontractor such as Freeland , and he also effec- tively recommended a raise for employee Shelton. Emmons testified that on one occasion in June or July 1984 Shelton had a doctor's or dentist's appointment and asked Dinsmore to leave early . Dinsmore asked Emmons if he had that authority and Emmons told him yes that was part of his responsibility. Emmons testified that when Dinsmore's duties changed in connection with the departures of Smith and Irish, he had no knowledge of the Union's organizational efforts. Emmons testified that he had no knowledge of Dins- more's involvement in union organizing until the instant hearing. Emmons also testified that Dinsmore attended several supervisory meetings during the first week of June and the first week of July. Dinsmore was also in- volved in receipt of production requests so that Re- spondent knew its levels during any time period. He got copies of all manufacturing orders and orders for parts came through him. Emmons was asked by his counsel why Dinsmore was not put into the shop rather than being laid off. Emmons replied there were two reasons, first he "was really a klutz." Also, according : to Emmons, in his efforts to aid employees he caused more problems, rather than being of any value . Moreover, it was not Respondent's practice to move management in- dividuals into the shop. Emmons also testified that Dinsmore was present at supervisory meetings where perspective layoffs were dis- cussed. C. The 8(a)(1) Allegations The allegations of Section 8(a)(1) of the Act are set forth in paragraphs 12(a) thru (d) of the complaint. Lee Dinsmore testified with respect to paragraph 12(a) that Emmons threatened employees that if they voted for the CHIPMORE MFG. CO. Charging Union they would be discharged. This allega- tion has been fully discussed. Nicholas Reinhardt testified that he attended the same meeting and that Emmons did not mention grounds for discharge or termination , nor did he state that the indi- viduals in attendance at the meeting would be fired for encouraging the Union. Reinhardt testified in support of paragraph 12(b) of the complaint that he was approached by Supervisor Wil- liam Middleton who told him he was being promoted to the paint room supervisor . Middleton advised him fur- ther that he had the right to hire, fire, and discipline em- ployees but he could not vote for a union or discuss the Union with the employees. The only record testimony which presumably3 was adduced to support the allegations contained in para- graphs 12(c) and (d) of the complaint is that of James J. Hollenbeck. Hollenbeck testified that, "about 4 days before 27 August," he was involved in a discussion with Middleton at the front door of the plant . Hollenbeck was asked whether the names of employees were mentioned in that conversation. He responded "something about . . . he said to me, Otis, and Scott Paige . . . about starting the Union. I am not sure what it was. I can't recall." Hollen- beck could not recall anything else that was said in the conversation until he was asked whether there was any mention of profit. Hollenbeck responded to that "profit? Oh yes, he mentioned something about . . . yes, he said that there is no way that Larry is going to let a union in his shop because Larry cannot show a profit in the books, and it is too small of a shop to have a union in it." The witness testified that Middleton told him that this was what Larry (Emmons) had told Middleton. After reviewing his affidavit, particularly a specific para- graph, Hollenbeck testified that he was told that he, Otis, and Scott tried to start a union in the shop . He testified that his response was a denial. William Middleton, production manager, testified that he attended a meeting in late July 1984, which was initi- ated by Emmons for the purpose of discussing the notice from the Steelworkers that they wanted to organize the shop. At the meeting copies of "dos and don'ts" were distributed to the supervisors. Middleton testified that Emmons went through the list of "dos and don'ts," brief- ing the supervisors as to the things they could and could not do. The dos and don'ts applied to conduct by super- visors in connection with the union organization. Ac- cording to the testimony of Middleton , Nicholas Rein- hardt, a supervisor, was in the shop and did not attend the meeting. Middleton gave him a copy of the "do and don't" list a few minutes after the meeting. Middleton discussed the purpose of the list with Reinhardt, telling him that the supervisors would have to be very careful. They could not harass any of the employees nor single out anybody. "Basically we could just go on as we have been running the plant." Middleton was asked if at any time he indicated that he would be monitoring employ- Counsel for the General Counsel does not discuss any of the 8(a)(1) allegations in his brief. There is only a short, one sentence footnote refer- ring to the testimony of Dinsmore. 267 ees or engaging in surveillance in an effort to determine who was going to vote for the Union . Middleton re- sponded negatively. He was also asked whether or not he ever indicated that an employee's work status might be changed if the employee were to favor the Union . Middleton again re- sponded negatively. Middleton testified that Lee Dinsmore (also known as Otis, also sometimes appearing in the transcript as "Otis") was a supervisor in the stockroom . He testified that Otis had approved and disapproved raises of em- ployees within the time period that Middleton worked at the plant. Middleton testified that Otis came to him rec- ommending a raise for . an employee, Todd Shelton, in early August 1984. According to Middleton, Otis (Dins- more) told Middleton that Shelton had done a very good job, was catching on well, and was deserving of a raise. Middleton responded that he would talk to Emmons about it. Shelton did receive a raise. Middleton also testified that Dinsmore had the author- ity to release an employee early if needed for a dental appointment. D. The Supervisory Status of Nicholas Reinhardt Reinhardt testified that at the end of July Middleton approached him and told him he was now the supervisor of the paint room. He was told that he had the right to hire and fire employees. Middleton also advised him that he had the authority to discipline employees but he could not vote for, or discuss the Union with any of the employees. Reinhardt testified that on several 'occasions Superin- tendent Smith gave him the key to the plant and the au- thority to take the key home with him . The reason for this, according to his testimony, was that he would be able to open up the' plant for the other people. John Frank, an employee who is presently employed by Respondent, testified that he was hired on 12 March 1984. He was originally hired in the paint department, and when hired by Superintendent Smith he was taken over and introduced to Reinhardt . Smith told him that Reinhardt was in charge of him. Frank testified further that he understood this to mean that Reinhardt was his foreman/supervisor. Although Frank's exposure to Reinhardt was limited, he testified that Reinhardt was in charge of coordinating and ordering supplies for the painters to use. Moreover, according to Frank's testimony, Reinhardt was in charge of ordering the paint and telling employees what paints were needed for particular projects. Reinhardt also de- termined and was responsible for determining which equipment to order. Frank testified that specifically on two occasions he asked Reinhardt to order parts for equipment which he had been having problems with, and Reinhardt responded that he would take care of it. Frank also testified that if there were any complaints about his work Reinhardt would usually tell him what he had been doing wrong. He gave examples that when he first started working there were areas that the paint may have been a little light, or maybe he was not cleaning the project to the specifications required . Reinhardt would 268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD take him and point out his errors often stating that the inspector had turned the job down and Frank would have to repair it and be careful on the next machine he was going to paint. Frank testified that he complained to Reinhardt on two occasions that his raises were overdue and Rein- hardt told him he would take care of it. The raises were then forthcoming. Earl Irish testified that he had worked for Respondent until July 1984 as its purchasing manager . He testified that Reinhardt supervised the paint department and di- rected the employees in the paint department as to what should be accomplished. Moreover, he testified that when potential employees were being interviewed, Rein- hardt conducted tests to see how efficiently they could perform as painters. E. Conclusion and Analysis Counsel for the General Counsel contends that a prior Board order in Case 7-CA-16579, dated 12 September 1980, and enforced by the Sixth Circuit Court of Appeals on 15 October 1981, docket number 81 -1143, is evidence of Respondent's antiunion animus. Initially, I note that Frank Barney, Respondent's su- pervisor during the prior union campaign engaged in in- dependent violations of Section 8(a)(1) of the Act. Barney was not in Respondent's employ during the Union's organizational efforts which gave rise to the in- stant proceeding. Moreover, Emmons, representing him- self at the prior hearing, testified during this hearing "I learned my lesson on the first go around 5 years ago as to what should happen and shouldn't happen . Five years ago I didn't know what the NLRB was . This time I knew and I made very deliberate efforts to make sure that none of that happened." Emmons also testified that he communicated to his supervisors what they were per- mitted and what they were not permitted to do. I believe Emmons . During the course of his extensive testimony, I was impressed by his attention to details, his recollection, and his efforts to be exacting . I consider him a credible witness whose demeanor suggested confi- dence and assuredness without being arrogant. In my opinion, Respondent was unaware of any orga- nizational activities until it received the Union's demand letter on 27 July. If witness Harold Smith is to be be- lieved4 Emmons' ignorance of union activity stretched to labeling Hollenbeck, who solicited the largest number of union authorization cards, as least likely to support the Union. I am convinced by the testimony and documentary evidence that the terminations occurring before and after the union campaign were solely motivated by economics. There is ample testimony by employees and supervisors that the layoffs were anticipated . Exhibits reflect that some employees quit or were laid off prior to 27 July. As early as April, Respondent advised the bank that it was eliminating certain positions including Knochel's job, and that these individuals would not be replaced.5 To be discussed infra. Respondent's son quit and was not replaced. All layoffs were conducted in accordance with seniori- ty as had been Respondent's past practice. Counsel for the General Counsel argues that "certain of the laid off employees would never have been laid off but for the need to reach other employees on the seniority list." His reasoning is specious, because the record is deficient of such evidence. Moreover, knowledge by Emmons of any individuals' union activity or lack of same is an element that is nowhere to be found in the record evidence. Harold Smith impressed me as a biased witness and a disgruntled ex-employee. Smith, who had been shop su- perintendent, was terminated by Emmons who was un- happy with his job performance. In my opinion Smith was an equivocal witness prone to fabrication. I completely reject his version of the con- versation with Emmons. Of the six individuals named by Smith, two were rehired in June 1984 after voluntarily quitting and were given raises . Another was not even laid off in 1984. Of the six individuals, only two were employees as of July 1984. The others quit between Jan- uary and June 1984. I fully credit Emmons' version of the time, place, and content of the conversation . His credibility was discussed earlier. I recommend dismissal of the 8(a)(3) allegations of the complaint. The preponderance of the evidence establishes that Dinsmore and Reinhardt are supervisors within the meaning of the Act. With reference to Reinhardt, he and at least one em- ployee, Frank, acknowledged his supervisory status. The detailed testimony reflects that all of the criteria have been met. , By way of contrast, Dinsmore, whom I consider an unreliable witness, made every effort to downplay his au- thority. In my opinion his testimony was ambiguous and not clear cut. Overall I believe his testimony was ob- scure and imprecise. Conversely, Emmons, whom I credit, was unerring and meticulously testified in detail on the subject of Dinsmore's duties and authority . I therefore conclude that Dinsmore possessed the requisite supervisory indicia to fit the statutory definition and role of a supervisor. F. The Independent 8(a)(1) Allegations Because of the nonexistence of any effort to couple the testimony of the witnesses with the allegations in the complaint, I have attempted to ferret out what I think is the testimony relating to the specific paragraphs of the complaint. Some of the witnesses appear to be entirely superflu- ous to this proceeding. For example, the testimony of Douglas Born is so nebulous and amorphous it defies analysis. At one point he actually testifies that he cannot remember exactly, it was a long time ago , "and I am really trying to forget it." With reference to paragraph 12(a) of the complaint that Emmons threatened employees that if they voted for the Union they would be discharged, this it seems to me relates to the testimony of Dinsmore . Dinsmore testified that at a supervisor's meeting Emmons advised those CHIPMORE MFG. CO. present not to be critical of the Union either in a nega- tive or a positive way as it would be illegal and supervi- sors would be terminated for violating the law . Accept- ing Dinsmore's version of the meeting and statements by Emmons, there is nothing therein to support a finding that Section 8(a)(1) of the Act was violated . I therefore recommend that this allegation of the complaint be dis- missed. With respect to paragraph 12(b) of the complaint that William Middleton instructed employees not to vote for or talk to other employees about the Union , Reinhardt testified that he was approached by Middleton and was told that he was the supervisor of the paint room. During this conversation Middleton allegedly told him that he had the right to hire, fire, and discipline employ- ees but he could not vote for the Union or discuss the Union with the employees. I have made a finding that Reinhardt is a supervisor within the meaning of the Act. There is nothing illegal in telling a supervisor his responsibilities , what he can and cannot do during a union organizational campaign. I therefore conclude that Section 8(a)(1) of the Act has not been violated in this regard and recommend dismissal of this allegation. Paragraphs 12(c) and (d) allege that Middleton created the impression of surveillance and told employees it would be futile for them to select the Union as their col- lective-bargaining representative because Respondent would not allow it. Middleton denied "running surveil- lance" in an effort to determine who was going to vote for the Union. He denied any monitoring of employees or any indication to employees that their work status might be changed if they were to favor the Union. The context of the examination of Middleton seems to be that his denials are vis-a-vis the conversation with Reinhardt. I therefore recommend dismissal of this allegation in paragraph 12(c) of the complaint. - In my opinion, Hollenbeck's testimony regarding a conversation with Middleton about "profit" and the "small shop" is too obscure to support a finding that Section 8(a)(1) of the Act has been violated. Moreover, the incident is isolated and I conclude de minimis. Ac- cordingly, I recommend dismissal of paragraph 12(d) of the complaint. The standards for determining whether unlawful con- duct requires a bargaining order are set forth in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). The instant case contains a dearth of unlawful conduct . Suffice it to say that it does not begin to rise to the criteria set forth in Gissel and later cases. Cf. the recent case of Quality Alu- minum Products, 278 NLRB 338 (1986). As an added note, when eliminating the union authori- zation cards signed by Dinsmore and Reinhardt, and the three or four cards solicited by Dinsmore and signed by employees, arithmetic teaches me that the Union never achieved majority status during the critical period. I find the following to be an appropriate collective- bargaining unit:6 The requested unit was amended at the hearing 269 All full time and regular part time production and maintenance employees, including all machinists, as- semblers, shear operators, painters, stockroom em- ployees, and drivers employed at the employer at its facility located at 6 Johnson Court, Bay City, Michigan; but excluding all office clerical employ- ees, management employees, confidential employ- ees, over-the-road drivers, guards and supervisors as defined in the Act. Certain fringe groups and other employees were dis- cussed during protracted pretrial settlement discussions. Although Respondent on the record agreed to eliminate molders, which apparently were not employed at the time, there was no agreement with respect to over-the- road drivers. The appropriateness of the unit was not ac- tually litigated . I make my unit finding based on the Re- spondent's failure to present any contrary evidence. CONCLUSIONS OF LAW 1. Each of Respondent Chipmore, Respondent Badger, and Respondent Sidefire is now and has been at all times material herein 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 mean- ing of Section 2(5) of the Act. 3. The appropriate unit is the unit I have referred to in my conclusion and analysis section of this decision. 4. The allegations of the complaint that Respondent has engaged in conduct violative of Section 8(a)(1) and (3) of the Act have not been supported by substantial evidence. 5. There is no evidence to warrant a bargaining order. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER It is recommended that the complaint is dismissed in its entirety. ' If no exceptions are filed as provided by Sec . 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses J. P. Stevens, Esq., for the General Counsel.' SUPPLEMENTAL DECISION STATEMENT OF THE CASE BRUCE C. NASDOR, Administrative Law Judge. On 23 April 1986, I issued a decision in the above-captioned case2 recommending that the complaint be dismissed in ' K. C. Horthop, Esq., on the exceptions and the brief in support there- of 8 Case 7-CA-23754 was corrected at the hearing. 270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD its entirety. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief. On 4 February 1987, the Board remanded the case to me for the limited purpose of making certain credibility determinations and further findings of fact, and if appro- priate new conclusions of law and recommendations. Credibility of Middleton and James Hollenbeck I discussed Supervisor Middleton's conversation with Reinhardt in my original decision. I also partially ad- dressed one of Middleton's conversations with Hollen- beck. There appears in the record an earlier conversation be- tween Middleton and Hollenbeck. According to Hollen- beck, the second week in July he instigated a conversa- tion with Middleton. WITNESS HOLLENBECK: I said to Bill [Middle- ton], "what do you think about a union in the shop?" and he asked me who was trying to start a union, and I said no one, but me and Lee [Dins- more] was thinking about it. And he turned to me and said "Lee isn't too stable of a person to be start- ing a union." And I got bad feelings from it so I just dropped it all and walked away. I do not view this conversation, instigated by Hollen- beck, a display of antiunion animus, nor does it rise to the level of 8(a)(1) activity. Moreover, I found Middle- ton to be a very credible witness. Although some of Middleton's denials were somewhat general, that can be attributed to the posture of the questions, rather than Middleton as a witness. I credit Middleton's denials. He was unequivocal and demonstrated a high regard for the truth. By way of contrast, Hollenbeck appeared to me as a malcontent employee. Perhaps he had his reasons. On one occasion he quit Respondent's employ for "better work, union shop, more money, and better benefits." I discredit his versions of conversations with Middleton in- cluding the following, which allegedly occurred on August 23. I [Hollenbeck] was going to the back of the plant, and he [Middleton] stopped me, and he told me to go around to the front door. Q. Did you meet around at the front door? A. Yes, I went around to the front door and I asked for my vacation pay, and then he came out. Q. Okay, and what happened there? Who said what? A. He had a little conversation with me. He said "so you are going to run out on your union buddies are you?" And I says, "no, I have not had nothing to do with the Union at all." Q. And what did he say? He said he asked me about-hang on a second. I am thinking-mind is a little slow. He said there was going to be more lay- offs to come in the future and he said more guys are going to get it, and Ottis [sic]-is going to get laid off too, he said to me. Q. Did he mention anybody else's name? A. Scott Paige was mentioned too. Q. And what did he say about Scott Paige? A. Something about-he said to me, Otis and Scott Paige-about starting the Union. I am not sure what it was. I can't recall. Q. Do you recall any more details of the sentence he uttered? A. A few-he said that "it is getting bad when you have to move to another state to get a decent job," and that jobs are hard to find around there in Michigan. Q. Did he say anything else? A. Yes. But I can't recall right now. The witness was then asked leading questions which adduced the alleged balance of the conversation involv- ing "profit" and the "small shop" which I addressed in my earlier decision. In conclusion, I believe that Hollenbeck was doing more improvising and less testifying as to facts. He was not a credible witness and I stand by my original recom- mendation to dismiss paragraph 12(c) of the amended complaint. Cynthia Knochel and Remarks by Suzanne Emmons Knochel acknowledged in her testimony that her job working on the computer "was just totally wiped out." I discussed this in my earlier decision. Knochel prepared or updated a list of employees which she gave to Dennis Bauer. Apparently, Bauer made the list available to the Union. Knochel gave Presi- dent Emmons the list, but according to her testimony there was no discussion relating to Bauer having the list in his possession. Suzanne Emmons did not testify. According to Kno- chel, Emmons told her she had to let Knochel go be- cause of the list. Moreover, Emmons told Knochel she was set up and Larry (Emmons) said she could not be trusted. Knochel's testimony is therefore unrefuted. Neverthe- less, President Emmons had decided as early as April 1984, to eliminate certain jobs including Knochel's. His letter to the banks establishes this. Thus, although Suzanne Emmons, a clerical employee or a supervisor of clerical employees made the alleged statement, my recommendation remains unchanged. See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Union Animus Robert McNab testified that on the day of his termina- tion he was called into Larry Emmons' office. The un- controverted testimony is that Emmons asked McNab, a supervisor, what the uprising was out in the shop. McNab responded he did not see anymore uprising than there was before, and according to McNab Emmons questioned "what about this Union business." McNab told Emmons he did not know anything about it and Emmons allegedly responded,' "well, Jim Monville said 3 R Exh 5 CHIPMORE MFG. CO. that you knew everything about it ." McNab denied this. Emmons allegedly asked him who the spokesman was and McNab responded that he did not know. McNab asked Emmons why he was being let go and Emmons re- sponded he was not happy with McNab 's work. McNab then asked if it was because of the Union and Emmons stated that he did not say that. According to McNab, he repeated the question and Emmons stated that it seemed kind of funny for the 6 weeks McNab was there all of this happened. This dialogue between a supervisor and the president of Respondent exhibits displeasure with a supervisor's work and an insignificant degree of union animus on the part of Emmons. It certainly is not of the severity to change my perception of the overall tenor of the facts and testimony presented by witnesses herein . Vexation by management during an organizational campaign is not a violation of the Act. Bauer, a salaried employee and 'possibly a supervisor,4 was terminated by President Emmons for making the "Knoche] list" available to the Union .5 Bauer was not al- leged as a discriminatee. According to him , on the day of his termination Emmons called him into his office and told him he was dismissed and Bauer asked if there was anything that would make him change his mind. Emmons responded that there was not and Bauer replied "if I would have known that that list was going to come to this I wouldn't have had anything to do with it." Emmons allegedly responded that it did not make any difference. We needed loyal employees. I will assume everything Bauer presented by way of his testimony is true. Accordingly, the president of Re- spondent fired a salaried, nonunit employee, for his ef- forts to develop and further the Union's organizational campaign. Therein lies the element of union animus. In my view it changes nothing with reference to my origi- nal recommendations. James Garzell testified that he signed a union authori- zation card given to him by Hollenbeck. According to his testimony he was told the purpose of the card was to authorize an election . Garzell was not named in the com- plaint as a discriminatee. He also testified that Respond- ent subcontracted out certain work and there was some overtime work prior to the layoffs. This comports with President Emmons' testimony . Garzell's testimony does not reveal any antiunion animus. I have addressed the testimony of Douglas Born in a paragraph at page 13, line 11, of my original decision. I have nothing further to add. Witness Nola Zeitler has never been in Respondent's employ. In August 1984, her fiance was Joe Wengli- kowski, an employee of Respondent who was laid off 17 August 1984. Zeitler testified that 10 days after her fiance's layoff he was incarcerated in the Bay County jail on an alleged drunk driving charge. According to Zeitler, Production Manager Middleton grew up with Wenglikowski and was personal friends with both of them. On 30 August, the day after Wengli- * This issue was not fully litigated 6 He gave the list to Hollenbeck who was to provide same to the Union. 271 kowski got sentenced, Middleton went to Zeitler's apart- ment. She told him Wenglikowski got 90 days and he asked if he could be on work release in the event that Middleton could get him work . Thereafter, Wengli- kowski told Zeitler he could be out on work release. The first week in September Zeitler contacted Middle- ton who came to her apartment after work. Zeitler ad- vised Middleton that Wenglikowski would be able to get work release and Middleton allegedly responded that the layoff was permanent, and Wenglikowski would not be recalled. At that point, she told Middleton that in case he heard of another job she would like to be advised, and Middleton told her of some people she could check with. According to Zeitler's testimony Middleton alleg- edly stated that the reason given on the layoff slip was not the true reason Wenglikowski was terminated. He al- legedly stated that it had to do with the Union and asked her whether or not she knew about the union thing going on. She responded that she heard about it but did not pay much attention to it, and he told her that if Wenglikowski would have stayed on his side he would still be working. Then Middleton allegedly told Zeitler that there was a reason for Wenglikowski being put on the second shift although he did not elaborate. Wenglikowski had since been recalled and was work- ing for Respondent at the time of the hearing. Middleton, who was not present during Zeitler 's testi- mony, testified as follows: Q. Do you recall a conversation with Nora Zeitler some time in the summer of 1984 concerning the employment status and the imprisonment and jail of Joe Wenglikowski? Do you know he was in jail? A. Yes. Q. Did you have occasion to speak to Nora about that? A. Yes, she did leave a note on my car one day and she said she wanted to talk to me and I did stop over there. Q. What was the purpose of her talking to you? A. She wanted to see if I could get "little Joe" a job and get him out on a work release. Q. Do you recall approximately when that oc- curred? A. It must have been I don't exactly remember when that was. October, I believe. Q. What year. A. It would be 1984. Q. Was Joe laid off from Chipmore Manufactur- ing? A. Yes he was. Q. The idea was if he could find unemployment he might get work release? A. Yes. Nora told me that if you could get a job you could get out on work release. Q. Did you comment to her about the fact that there was a union organization effort? Q. Do you recall a discussion with her regarding a union organization effort at Chipmore Manufac- turing? A. Not a union organization. 272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Q. Do you recall what you said to her? A. Yes. JUDGE NASDOR: Tell us the whole discussion. THE WITNESS: Nora asked me if I could-would be able to get "Little Joe" a job. I call him "Little Joe." Q. This was at her house? A. Yes. This was at her house. I told her I would check with my brother-in-law. My brother-in-law runs a fruit market here in Bay City. I would talk with my brother-in-law and see if he could get him a job. I told Nora if he would have come over to Chipmore when I hired him he would probably have had better seniority and he probably would not have gotten laid off. Q. Did you at any time indicate that whether or not he were [sic] to sympathize with the Union would effect his employment status? A. No. Q. Did you make any kind of threat to her di- rected at Joe? A. No. Q. Was any reference made to the Union? A. No sir. Q. By either one of you? A. Either one of us. Middleton testified further that he advised a supervi- sor, Reinhardt, that management would have to be care- ful and not harass any of the employees or single out anybody. "Basically we could just go on as we had been running the plant." Middleton then testified that he did not indicate to Reinhardt that he would monitor employ- ees or engage in surveillance to determine who was going to vote for the Union. I addressed Middleton's testimony in my original Deci- sion and again here. I have found him , infra, to be a credible witness. Contrarily, Zeitler seemed over re- hearsed and in my opinion fabricated the elements of her testimony relating to the union campaign and her fiance. Zeitler did not, in my view, contribute to any showing of antiunion animus on behalf of Respondent. In conclusion, I adhere to my original comments and recommendations .with reference to majority status tally and the standards of conduct requiring a bargaining order. Accordingly, my findings of fact, conclusions of law, and recommended Order remain the same.