Baker Machinery Co.

National Labor Relations Board - Board Decisions

Jun 30, 1970

184 N.L.R.B. 358 (N.L.R.B. 1970)

358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baker Machinery Company and International As-
sociation of Machinists and Aerospace Workers,
Local No. 1743, AFL-CIO. Case 19-CA-4433
June 30, 1970
DECISION AND ORDER
By MEMBERS MCCULLCOCH, BROWN , AND JENKINS
On March 18, 1970, Trial Examiner Allen
Sinsheimer , Jr., issued his Decision in the above-en-
titled proceeding, finding that the Respondent had
engaged in certain unfair labor practices alleged in
the complaint and recommended that it cease and
desist therefrom and take certain affirmative ac-
tion, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recom-
mended dismissal of such allegations. Thereafter,
the General Counsel filed exceptions to the Trial
Examiner's Decision and a supporting brief and
Respondent filed a brief in opposition to the
General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed The rulings are
hereby affirmed The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Baker Machinery Company, Ken-
i Contrary to our dissenting colleague, we believe the Trial Examiner
was correct in crediting Respondent 's testimony that it had suffered a
marked decrease in business during the months immediately preceding
the discharge of Osborne and Armstrong , and that these employees were
discharged for nondiscriminatory reasons Osborne because he was old and
somewhat feeble and Armstrong because he had less seniority among the
regular employees
There is no reason to reject Riley's testimony as to the company's busi-
ness condition simply because it was based in part on an abstract of its busi-
ness records Riley's testimony was also based on personal knowledge,
and was not self-contradictory Moreover, it appears from his and
newick, Washington, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
MEMBER JENKINS, dissenting in part:
I do not agree with the majority herein that the
8(a)(3) and (1) allegations in the complaint should
be dismissed. Unlike the Trial Examiner, I find that
the evidence, considered in its totality, presents a
strong prima facie case to support these allegations
in the complaint. As detailed by the Trial Examiner
in his Decision, the Respondent engaged in a
vigorous antiunion campaign in violation of Section
8(a)(1). In addition, he found specifically with
reference to the two alleged discriminatees,
Osborne and Armstrong, that both had signed
union authorization cards, and both had refused to
sign the antiunion petition circulated by Respon-
dent's foreman, Frederick, and were therefore con-
sidered by Respondent to be prounion. He also
found that Respondent had threatened layoffs in
the event of a union victory in the forthcoming
election. The Union won the election and on the
day following Osborne and Armstrong were
discharged.
Upon consideration of all the evidence
presented, I find that the General Counsel had
made out a prima facie case , supported by substan-
tial evidence, which imposed upon the Respondent
the duty of going forward with evidence that
adequately explained the discharges.2 The Respon-
dent offered evidence tending to show that the
discharges were prompted by an alleged reduction
in its business. This evidence consisted, for the
most part, of a document prepared in anticipation
of the hearing, allegedly showing a reduction of
shipments to customers. This document was based
on Frederick's personal records and not on Respon-
dent's actual business records It was also admit-
tedly incomplete. In my opinion this document was
of no evidentiary weight, being but a self-serving
and incomplete derivation prepared only after the
issue had arisen for the specific purpose of but-
tressing Respondent's otherwise bald assertion. Nor
do I find that the conclusionary and self-serving
testimony of Respondent Vice President Riley and
Shop Foreman Frederick meet the evidentiary stan-
Fredrick's testimony that Respondent 's records were available for exami-
nation if the General Counsel had harbored any suspicion as to the trust-
worthiness of this testimony The General Counsel was afforded an
opportunity by the Trial Examiner to have Respondent produce its
original business records but he declined to request them and was con-
tent to rest his case on the evidence then in the record. That testimony
cannot now be challenged on the ground that it was not the best evidence
See N R L B v Drennan Food Products Co, 272 F 2d 23 (C A 5)
Our dissenting colleague makes out no more than a case of suspicion
' Star Expansion industries, Corp , 164 NLRB 563, 565, and cases cited
in fn 4
184 NLRB No. 39
BAKER MACHINERY COMPANY 359
dard required to dissipate the unfavorable inference
to be drawn from the General Counsel's evidence 3
Accordingly, I would find that the Respondent's
discharge of Osborne and Armstrong on July 20,
1969, was motivated not by the reasons stated, but
by its hostility to their union activities as alleged in
the complaint, and that Respondent thereby vio-
lated Section 8(a)(3) and (I) of the Act.
3 Riley testilied , in contradiction of his testimony, that Respondent had a
business falloff at the time of the discharges , and that all of its production
employees beginning in July 1969 up to the time of the hearing before the
Trial Examiner were , because of press of business , placed on a 9-hour day,
six-day-a -week , schedule
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALLEN SINSHEIMER, JR., Trial Examiner: The
above-entitled proceeding was heard at Pasco,
Washington, on October 21 and 22, upon a com-
plaint issued September 19,1969.' A timely answer
to said complaint was filed by Baker Machinery
Company, herein called the Respondent, on Sep-
tember 26, 1969, and an amended answer on Sep-
tember 30, 1969 The complaint alleged various
acts of interference in violation of Section 8(a)(1)
and also alleged the discharge of three named em-
ployees, James Armstrong, Patrick Ayde, and Ira
Osborne, in violation of Section 8(a)(1) and (3) of
the Act.'
Upon the entire record, including my observation
of the witnesses, and after due consideration of the
briefs of the General Counsel and Respondent, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Washington corporation, is en-
gaged at Kennewick, Washington, in the manufac-
ture and sale of packaging machinery for produce.
During the year preceding the issuance of the com-
plaint, Respondent's gross volume of business ex-
ceeded $500,000 and its sales to customers located
outside the State of Washington exceeded $50,000.
The Respondent does not deny and I find that
Respondent is, and at all times materal has been, an
employer within the meaning of Section 2(2) of the
Act, engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Respondent does not deny and I find that In-
ternational Association of Machinists and
Aerospace Workers, Local No. 1743, AFL-CIO,
herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Union Organization, Respondent Knowledge of
Union Activity, and Certain Unfair Practices in
Connection Therewith
On May 1, 1969, the Union commenced or-
ganizational activities among the Respondent's
production and maintenance employees. On May 9,
the Union filed a petition with the Board for an
election among said employees after having ob-
tained eight applications for membership from em-
ployees, one signed May 7 and the remainder on
May 8. In addition one then member of the Union
was currently employed. On June 2, 1969, a con-
sent-election agreement was approved by the Re-
gional Director. Thereafter an election was con-
ducted by the Board on June 19 which the Union
won by a vote of 9 to 8.3
Within a few days after the petition for represen-
tation was filed by the Union, about May 14, 1969,
Bert Frederick, shop foreman of Respondent, circu-
lated a document which he asked the employees to
sign, stating , "We the undersigned employees of
Baker Machinery Company do not wish to be
represented by any labor organization." This docu-
ment was presented by Frederick to most of the
employees. Seven, including Frederick, appear to
have signed. Frederick testified that he considered
those who did not sign it to be union supporters and
also that he judged as to who were and who were
not union supporters from observing groups who
would cluster together and cease talking when he
approached. Among those who declined to sign the
petition upon request were the two alleged dis-
criminatees, James Armstrong and Ira Osborne.
Armstrong also told Frederick that he had signed
an authorization card for the Union.' It is ac-
cordingly evident that Respondent through
Frederick had knowledge of the prounion attitude
and interest of Armstrong and Ira Osborne and I
therefore find Respondent had such knowledge.
According to Ira Osborne, Frederick also asked if
anybody had approached him in the shop concern-
ing the Union and he had said no "as he was refer-
ring to what was in the shop." Frederick denied
asking Osborne if anyone contacted him about the
Union. In view of the admitted distribution of the
petition, the nondenial of certain threats of layoff
as set forth, post, and my observation of the wit-
nesses, I credit Ira Osborne as to being asked by
Frederick if he had been approached in the shop
i The charge was filed July 1, 1969 , and an amended charge September
18,1969
2 At the hearing , the General Counsel , following testimony and evidence,
moved to dismiss the complaint as to the allegation pertaining to Patrick
Ayde This motion to dismiss as to Ayde was granted
There were approximately 18 eligible voters'
P 27, I 21, shows "Osborne" but it is clear from contest and the
answer to my question at p 28,1 6, that "Armstrong"
was the person referred to
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about the Union. Osborne also testified that at the
time Frederick apporached him about the petition
he also said:
Yes. He said we got a union in there, why, they
would probably lose their benefits, you know,
they have benefits, I don't know just exactly
what they are or what they consist of, but
they'd lose those if they joined the union, and
probably have to lay off on account of shortage
of work.
This latter was not denied but Frederick said he
didn't remember saying it. Further it is consistent
with statements attributed to Frederick by Richard
Osborne, post, and also by employee Gary Rucker
who was asked to sign the petition. Rucker
testified:
A. Well, he said something to the effect I
was talking to him, you know, I says, "well, I
don't care to sign it and stuff, and I would like
to have whatever benefits me most." "Well,"
he said, "I am sure that any increase in wage
that you might receive from the union would
just be spent in union dues and that there
would probably," he said, "as you know, there
would probably be a layoff of most of the men
in the factry for approximately three months of
the year."
Q. He said there might be a layoff for ap-
proximately three months of the year?
A. Yes.
This foregoing does not appear to be denied.
Richard Osborne, an employee and son of Ira
Osborne, testified that Frederick approached him
asking him to sign the petition and:
He said that if they had a union in there and
got higher wages and stuff, that probably there
would be some lay-offs around there, and he
also said that my relationship with the boss
would probably be better if I signed it than if I
didn't sign it.
The latter does not appeared to be denied. In addi-
tion, Ira and Richard Osborne and Rucker ap-
peared to be credible witnesses. Accordingly, I
credit the testimony of Ira and Richard Osborne
and Rucker as to the threats of layoffs in event of a
union. Although not specifically alleged in the com-
plaint, the issue as to threats of layoffs appears to
have been litigated both in connection with the al-
legation and proof of distribution of the petition by
Frederick and the allegations of dscriminatory
discharge.5 I accordingly find these statements as to
layoffs transcended free speech and constituted
threats of rperisal in violation of Section 8(a)( 1 ).6
An alleged unfair labor practice involves the
document or petition circulated by Frederick.
There is no question that such circulation did not
meet those requisites which might justify such a
' That the unfair practice may be found where fairly tried although not
specifically pleaded, see N L R B v Thompson Transport Co , Inc , 421
F 2d 154 (C A 10, 1970 ), citing cases
6 See N L R 8 v Gissel Packing Company, Inc , 395 U S 575, as to "pre-
petition or interrogation. Accordingly, the circula-
tion of the petition was clearly in violation of Sec-
tion 8 ( a)(1).'
Another allegation alleges interrogation of em-
ployees about May 14 concerning union activities.
The circulation of the petition by Frederick relates
thereto and also his question of Richard Osborne as
to whether anybody had approached him in the
shop concerning the Union. The latter absent cir-
cumstances not here shown reflect further violation
of Section 8(a)(I) and I so find.
B. Additional Allegations of Violation of Section
8(a)(1)
The complaint further alleged that from on or
about May 14, 1969, Respondent denied its em-
ployees access to or use of Respondent's
lunchroom for any purpose. The record reflects
that Respondent did not have a lunchroom but did
have an office used by Frederick about 6 by 10
feet, of which a desk took up about 5 of the 6 feet,
and in which there was a filing cabinet, a hotwater
heater, and several chairs. A number of employees,
namely, Tom Furness, Ed Hue, Dale Rucker, and
James Armstrong, were accustomed to eating lunch
therein. Richard Osborne occasionally ate in this
office. All five had signed union cards and all ex-
cept Furness, who was not called as a witness,
testified they declined to sign the petition circu-
lated by Frederick. One day, after the refusals to
sign the petition, Vice President and General
Manager Mike Riley informed the employees that
he did not want them eating lunch in the office and
dirtying up the place. In this office were kept an
open file cabinet, a key to the pickup truck, keys to
tool cribs, correspondence, mail and files on the'
desk, and price lists. From time to time, some of
the employees would play cards with Frederick
and/or Riley when they returned from lunch. Em-
ployee Gary Rucker testified he had used the office
for lunch for a period of 2-1/2 years without any
question being raised. Riley testified the men left
the room in a mess, it was too small to use for that
purpose, Respondent's records were confidential,
and certain keys were in the office. Riley said he
had instructed Frederick several times in the past
going back over several years that this was poor prac-
tice to have the office used as a lunchroom. Riley
said he had noticed several times "half of a Hostess
twinkie" and cracker crumbs on the desk and told
Frederick several times to stop this. On the day in
question, Riley said he "happened to be walking by
as they were going in to eat lunch" and told them
he did not want the room used as a lunchroom any
more. In spite of his instructions, Frederick did
nothing and gave no reason therefor. Riley said he
dictions" constituting threats of reprisal under circumstances such as
herein
' Compare StruAsnes Construction Co , Inc , 165 NLRB 1062
BAKER MACHINERY COMPANY 361
thought either Frederick forgot or "perhaps felt
that it really wasn't hurting anything." Rucker de-
nied that the men left the room dirty . I note that
after the election , cardplaying continued in this
small office area in which Riley, Frederick , and em-
ployees participated. This incident by itself, with
nothing more , might not have great significance
Further, reasonable use or restriction of use of
premises is normally within the perogative of
management . However , when this is coupled with
the other evidence of interference, set forth above,
occurring about the same time , the fact that no
issue concerning the practice had been made
throughout the years until after the union petition
and rejection of Frederick 's petition , the fact that
Riley knew about it for years and claimed to have
several times given instructions never complied
with , and finally that the office continued to be
used for cardplaying although claimed to be too
small for nonoffice purposes, it appears that the
motivating cause for termination of permission to
use the office as a lunchroom was union organiza-
tion and activity. I accordingly find that by such
termination of permitted use of the office for lunch
purposes , Respondent violated Section 8(a)(1) of
the Act.
The complaint also alleges that about June 12,
Foreman Frederick stated in the presence of an em-
ployee (Richard Osborne) that the days of that em-
ployee with Respondent were numbered. Richard
Osborne testified that employee Jerry Adcox8
(whom Osborne didn't know well) initiated it.
Osborne testified:
He come into the shop one day and says, "Hi,
Rich, I see you are still here," and I says,
"Yeah, but I don't know for how long," and
Burt was standing there and he said, "Yeah, his
days are kind of numbered around there."
According to Frederick-
Mr. Adcox, if my memory serves me correctly,
says Richard, "I see you are still here," and as I
have always kidded the boys along these lines,
I replied, "Yes, but his days may be num-
bered."
Frederick said he thought Adcox was jesting and
that his response was in jest, asserting that he some-
times joked and didn't show it. The employee,
Richard (Rick) Osborne, admitted he couldn't al-
ways tell whether Frederick was jesting or not but
didn't think he was at that time. Richard Osborne
said he began looking for work but could specifi-
cally refer only to a job at the city water depart-
ment that he had inquired about. Frederick testified
Rick Osborne was considered to be a highly
satisfactory employee and it would take "a rather
great amount of provocation" to terminate him.
Nor was he terminated. Further it should be noted
that the statement, whether made seriously or in
jest, is not necessarily related to union membership
or activities. Although I do not believe that it is
desirable to jest about such matters, I conclude
under the circumstances that the statement was
probably made in jest. Based on all of the testimony
relating thereto and my observation of the wit-
nesses, including particularly Frederick, I credit
Frederick's testimony in this respect that his state-
ment was not made seriously. Accordingly, I find
no violation thereby whether or not related to
union activities.
The complaint further alleges that on or about
June 13, employee Ed Hue, Jr., received an unex-
pected 10 -cent-an-hour wage increase in his
paycheck. There is no question that he received
such a 10-cent-an-hour pay increase-a total of $4
for the week. General Counsel contends that it was
done to influence his vote. Hue testified that he
thought that was its purpose. This increase was
given in the pay period ending June 11, for which
the check would be delivered on June 13. It was
not included in the pay period ending June 18
which was before the election. However, the check
is dated June 19 and payment normally would not
and in this case was not made until June 20 the day
after the election. Respondent produced as wit-
nesses the person in charge of payroll, Lilly Bresko,
and her subordinate, Marlene Brown . Both testified
that this increase was an error . Marlene Brown,
who prepared the checks, said she simply made up
the list from memory and didn't know how the
error occurred . Brown said she discovered the
mistake the following Thursday. She told Lilly
Bresko she had paid Hue $4 too much the preced-
ing week and said they let it go at "that." The next
time she heard about this was when Mr. Riley came
in with a list of complaints about a month before
the hearing and "that was one of them ." Lilly
Bresko also testified a similar error had occurred
some years before. Vice President and General
Manager Lloyd Riley testified he had not
authorized the increase.
From my observation of these witnesses, and par-
ticularly Marlene Brown 's responses to questions
propounded both by me and counsel, in my
judgment she testified honestly that the increase
was made in error I accordingly credit Brown's
testimony. This also appears to be a matter which
in amount and number (one) without more would
make questionable its effect and hence the
likelihood that it would have been done deliberate-
ly. Based on all of the evidence with respect to the
increase to Hue, including my observation of the
witnesses including particularly Brown, I find that
the increase to Hue was the result of an honest
mistake or error and not violative of the Act.
Two incidents of alleged imposition of more ar-
duous working conditions by General Manager
Riley upon the employees after the election were
set forth by the General Counsel. One involved a
time about mid-May when alleged discriminatee,
8 Adcox did not testify and was said to be in Colorado
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
James Armstrong, was told that he was to wear a
face shield while operating a grinding machine or
he would be fired. Armstrong admitted he was
aware of a posted sign requiring the wearing of a
face shield. This face shield was not adjacent to the
machine as it should have been. However, Riley
testified credibly he had seen Armstrong from a
distance and was very much concerned about the
operation of this machine. There is no question that
grinding of certain objects on this machine is highly
dangerous and Armstrong so admits. However, he
contended that the particular work he was perform-
ing was not so dangerous and his glasses were
adequate protection therefor. It is clear there was
involved a matter of safety which the Company was
fully entitled to maintain. Accordingly, Respon-
dent's requirement in this respect was justified and
not in violation of the Act, and I so find.
The General Counsel also contended that
Respondent, following the union election, imposed
more onerous conditions on employees Dale
Rucker and Jim Furness, both of whom had signed
union cards by prohibiting the use of the forklift to
carry certain panels weighing approximately 200
pounds each a distance of over 60 feet. Rucker and
Furness used the forklift to carry three bin walls or
panels when they were told by Riley not to use the
forklift and "do it by hand." This involved carrying
an additional 10, one-by-one, by hand. Rucker
testified that other objects of similar bulk and
weight normally were moved by the forklift
although he had never moved bins or panels before.
Rucker said the handling of the panels by forklift
would be no more dangerous than moving them by
hand and he had seen the forklift operated by
Frederick with loads that were similar . Sometimes
these were without clamps while they had used a
clamp. Rucker also said although the load was
heavy they did not seek additional help which
might be available.
Riley, who prohibited the use of the forklift, said
it was both more dangerous and took longer. Riley
testified:
Well, I had sat upstars in my office, or else
stood outside and watched them go through
this operation, and they used the forklift, and
these panels were, if I remember correctly, 16
foot long and 4 foot high, and in using a fork
lift, it, of course, has the two upright arms out
there (indicating), and they had stacked three
of them on here and had taken a clamp and
clamped them on, and then because they are
16 foot wide, had maneuvered this awkward
and bulky and dangerous load through the
plant and out several doors and onto a dock,
and the entire thing took 30 minutes, and when
they come back in for the second load I went
down and told Bert, have them put the fork lift
aside and carry them out, and then I timed
them again and it took five minutes.
He clarified this by saying it took 5 minutes per
panel. Riley also testified Respondent did not want
employees carrying something too heavy and that
all the help they need" would be available.
The foregoing reflects no direct or clearly tracea-
ble union connection but rather a dispute over han-
dling of work which normally is within the province
of management. From the evidence adduced I con-
clude there was an arguable question as to the han-
dling of work involving both danger and time
Under these circumstances, particularly where
danger is involved, considerations thereof are of ut-
most importance unless the claims relating thereto
are specious or unduly exaggerated. Under all the
circumstances set forth, I am not prepared to say
that Respondent's position was unwarranted. I note
no direct evidence indicating this incident was
union motivated. I accordingly conclude that
Respondent did not violate the Act by its conduct
relating to the foregoing incident involving the bins
or panels.
The foregoing accordingly indicates and I find
that the Respondent violated Section 8(a)(1) of the
Act by circulating the petition to withdraw from the
Union, by other interrogation of Ira Osborne con-
cerning the Union, by the threats of Frederick that
layoffs probably would occur if the Union were
selected, and by depriving employees of the use of
the office as a lunchroom under the circumstances.
As to the other allegations of violation of Section
8(a)(1), I find that they have not been established
and shall recommend their dismissal.
C. The Alleged Discriminatory Discharges of James
Armstrong and Ira Osborne
As previously set forth, the complaint originally
alleged that the Respondent had discriminatorily
discharged three persons on June 20, the day fol-
lowing the election which was won by the Union.
These three were James Armstrong, Ira Osborne,
and Patrick Ayde. During the hearing, the case as
to Ayde was dismissed on motion of the General
Counsel when it appeared that there was no basis
whatever therefor Of the three persons terminated
on June 20, two, Armstrong and Osborne, had been
prounion and one (Ayde) had not been. Questions
are what was the reason for selection of persons for
termination at that time and, assuming that there
was a valid purpose for the layoffs, were the per-
sons selected on a lawful basis?
The Respondent contends that the reason for the
layoffs was that its business had diminished and that
the persons selected were chosen on the basis of
need and/or age or seniority.
The Respondent contended that its business had
substantially fallen off. In support thereof it ad-
duced testimony from Frederick and from Respon-
dent Vice President and General Manager Lloyd
Riley that prior to going East on May 10, sometime
between the latter part of April and before May 10,
Riley discussed with Frederick the likelihood of
layoffs unless orders were received soon. Riley
BAKER MACHINERY COMPANY 363
testified he went East on May 10 to see Respon-
dent's distributors and discuss the sales situation.
Riley said Respondent at that time was not receiv-
ing orders from its distributors. He further testified
respecting orders in 1969:
A Well, we had been operating all year on
the week-to-week basis, versus other years,
where by March we are normally starting to
fall behind in supplying orders. In 1969 this did
not happen to us. We were current with orders
all of the time, and in March and April it
became apparent that we were not receiving as
many orders as we had in the prior years, and
this was the prime reason for my visit to New
York.
0 Had you ever experienced the situation
in your company before since you had been
there?
A. Yes, but not in those months. We an-
ticipated a slack period in January and Februa-
ry, but not in the later spring months. We had
never had this situation before.
Riley said he couldn't say why this occurred but
had thought at the time high interest and tight
money was a factor. Rilwey said he told Frederick
unless orders were received they would have to lay
off some men. He added that with respect to being
prepared to fill orders: "In comparison to other
years we were built up in spare parts inventory
beyond anything we had ever been." Riley
testified that the shortage or orders prevailed
"until, I believe, sometime in July that we started
receiving more orders than we could ship out."
Based on my observation of Riley and other
evidence appertaining thereto including the cards
prepared by Frederick, post, I am crediting Riley's
testimony as to reduction in orders.
Respondent further submitted as evidence of
reduction of business a compilation of monthly
shipments based on a record of shipments kept on
cards by Frederick. These cards, in turn, according
to testimony of Frederick (which I credit), were
numbered and made by him in general about the
time of the shipment or shortly thereafter. In a few
instances, it was conceded either the cards for ship-
ment were missing since there was a gap in num-
bers or the date was not thereon, but, according to
Frederick, those missing would fall between the
numbers of other cards and the date would also
come in between other dates. Subject to such
limitations or qualifications, the cards and compila-
tion thereof10 could be used as a basis for analysis
as to the number of shipments made. A question as
to why bills of lading were not forthcoming arose. It
appeared that some effort was then made by
Respondent during the course of the hearing to
check into these but that such would be quite time
consuming and extensive as they were said to be
located in a number of different files. No further ef-
fort was made to produce these at the hearing
Respondent relied on the cards as sufficient basis to
establish the number of shipments. One other point
to note in this respect is that shipment and numbers
of machines themselves would not necessarily be
decisive of amount of business because the
machines could vary as to price, cost, man-hours,
and skills needed to produce them. In other words,
all machines were not comparable
The Respondent, other than the testimony of
Riley (and Frederick), did not introduce specific
documentary evidence as to orders. Its explanation
as to this is that the receipt of orders would not
necessarily indicate the amount of business because
these would have to be transformed into production
and shipment which might or might not take place.
The Respondent explained that the orders are
received in the bookkeeping department, a copy
transmitted to Frederick, and then put on clip
board according to model number. Hence, it can be
ascertained at a given time how many of that model
are on order Riley said ordinarily machinery is not
built ahead but is made on order." He further
testified all orders are not filled. An order may be
received from a distributor but by the time Respon-
dent is able to build and ship the machine the
customer of the distributor may no longer need it
because his work (farming) was seasonal Riley ex-
plained Respondent has diverted machines in ship-
ment between parts of the country. Riley further
testified:
Q. Do you try to keep any records of the or-
ders that come in permanently and correlating
them to the orders that are filled?
A. The orders that come in are, as I say, on
these clip boards. Now, until that machine is
built to its specifications and shipped, we do
not consider that order as having been filled or
really as an order, because it can be cancelled
at any time prior to shipment. Once it is built
to specifications, then we get a little perturbed
at the changing on it, but this has happened.
0. Is it fair to say that there is no correla-
tion between the number of orders that you
receive and the number or machines that you
ship?
A. Well, there would probably be some cor-
relation, but it would be impossible to say that
the number of orders received were also the
number of machines shipped.
The General Counsel contends that since
" 1 note from testimony of Armstrong some apparent inconsistency as to
working overtime from April 16 to May 21 Ettles , who directed his work,
testified that he has always tried to make parts for the future because in
summer they have always gotten behind At the time of the layoffs on June
20, Ettles said they were caught up on parts and working on future parts
Ettles said they were further ahead on parts at the time Armstrong was laid
off than ever before Ettles also testified he thought he worked less hours in
the summer of 1969 and in total time than in previous years Riley testified
that sinLe he came to work after 8 a in , he would not have been directly
aware of the overtime work between 7 and 8 a in , which Armstrong and
Ettles had performed
10 This compilation is attached hereto as Appendix A
" However, I note as set forth, post, that some machines are so built and
others partially so built
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent did not produce records that it might
have which would be more conclusive as to the
amount of business Respondent had in May and
June that a finding should therefore be made
against Respondent. The General Counsel referred
to a case12 which I consider clearly distinguishable
on the facts set forth. Moreover, it is evident that
although the Respondent did not furnish the precise
data which the General Counsel felt it should (and
which might well be appropriate if available),
Respondent did furnish the cards referred to, supra
and post, as to shipments and explain the unavaila-
bility of reliable records as to orders. Finally, the
burden of proof13 is on the General Counsel and
hence, the nonproduction, per se, of some possible
records by Respondent should not under all the cir-
cumstances herein in my opinion does not support
a finding of violation.
With regard to the shipments, Respondent ad-
duced evidence from the aforesaid compilation that
there had been a reduction in shipments of machine
in 1969, particularly in May, as against April,
March, or February. Also in May, not only was this
true in contrast to preceding months but also as
against preceding years.
In 1969, five machines were shipped in February
and March, six in April, but only three in May This
was followed by seven in June and six in July and
nine in August The figure of seven does indicate an
apparent pickup in June. However, the following
should be noted. First, the Company had decided to
reduce its personnel because of reduction in busi-
ness but did not act to do so until after the election
upon advice of counsel. At the end of May it had
shipped 23 machines as compared to 29 in 1968
and 27 in 1967 for the same period. Second, the
figure of 3 in May should be compared with
preceding years which showed 9 in 1968, 11 in
1967, and 6 in 1966. Third, the figure of 7 in June
was still below 8 in 1968 and 9 in 1967 and 1966;
in July 1969, the figure 6 was below 8 in 1968,
above 5 in 1967, and below 12 in 1966 Finally,
even the August figure when business, according to
Respondent, had again picked up and it was work-
ing overtime, showed 9 in August as against I 1 in
1969, 11 in 1968, 14 in 1967, and 9 in 1966. The
Respondent conceded that by August its business
had increased and people were working overtime.
However, even then Respondent had not increased
its staff nor had it by the time of the hearing in Oc-
tober. Total machines shipped through September
1966 were 59, through September 1967 were 69,
through September 1968 were 65, and through
September 1969 were 53. The latter reflects less
machines shipped in 1969, particularly as against
1968 and 1967. The only persons employed after
June were two persons employed in succession as a
welder. Respondent was accordingly able to con-
tinue its business without additional people. The
record also reflects that the Respondent had
produced prior to the layoffs a larger amount of
parts inventory than would be required for some
time thereafter-more than ever before according
to Ettles. This was also true as to simicompleted
machines which were not complete because of vari-
ances in machines and as to completed machines to
the extent Respondent completed machines on a
calculated gamble or risk. Riley testified Respon-
dent's storage facility was full and also that this was
true of the distributors who had machines on con-
signment.
The Respondent did hire a school boy, aged 16,
Tom Moore, about June 6 to do odd jobs
throughout the summer commencing early in June
at a lower rate. This was part of a policy that
Respondent had of employing a young person in
summer and also involved a commitment to a
customer.
The next question, assuming the need for a
layoff, is: What was the basis for selection? First, as
to Ira Osborne, he engaged in no union activity
other than signing the card and declining to sign the
petition Frederick circulated. Armstrong also at-
tended one or two union meetings. Ira Osborne had
been employed for 4 years with almost no loss of
time. The basis of selection, according to Respon-
dent, was that Osborne was elderly, over 70 and
nearing 7 1 at the tme of the hearing, and that the
work of preparing machines for shipment14 he per-
formed could substantially be performed by one
person, Orbie Vandine, who had helped Osborne
with it. This could be handled more readily by Van-
dine, who was younger and stronger and who could
handle a substantial part of the work himself In ad-
dition the other aspects of Osborne's work were
such that he only spent a relatively small time on
them including the work of parts orders covering
two kinds of parts, generally on older obsolete
machines which he would have to make and also
some filler work on assembling parts. However, it
appeared from futher testimony by Osborne that
work on these two parts would average about three
times a month. One of the particular parts Osborne
made from time to time is apparently no longer
made or used. Osborne has subsequently been of-
fered a job involving less arduous duties at lower
pay.
In the case of Armstrong he was a relatively
young employee, the newest employee in point of
time other than Moore. Armstrong was employed
to work as an apprentice machinist or machinist
and worked primarily on a lathe, although he did
some work on other machines The lathe work was
also performed by Ettles who continued to do so
thereafter. The record reflects that Armstrong was
not needed on other work thereafter and that the
" Lester Brothers, Inc. 131 NLRB 1144, and cf Austin Polder Com-
pany, 141 NLRB 183, 186, 187, Lock Joint Tub Company, 127 NLRB 1146,
1148-49, also distinguishable
" See and cf N L R B v Ron and Quarries, Inc , 362 F 2d 236 (C A 8)
''' This involves heavy equipment
BAKER MACHINERY COMPANY
work performed on the lathe was being done entire-
ly by Ettles. As previously stated, the third ter-
minated man, Patrick Ayde, was nonunion He did
some carpentry work and some cutting of materials.
I am aware of Frederick's threats of layoffs found
violative, supra, and of the alleged conversation
with Paul Garst with respect to terminations after
the election.fs However, whatever Frederick may
have said, the foregoing reflects that there was a
reduction in both orders and shipments at Respon-
dent at material times, that no layoffs occurred
prior to the election, that no replacements have
been hired, that the work is being performed by
others then employed, that, except for Moore,
Armstrong was the newest employee, that Ira
Osborne is elderly and the work he was performing
is arduous, and that the third man laid off, Ayde,
was both newly employed and had no connection to
union activities or membership. I accordingly find
that there was a reduction in business at the
Respondent during May and June 1969, that there
was a reasonable basis for selecting the persons
chosen for termination , and that Respondent did
not discriminate illegally in so terminating them. I
further find that Respondent did not violate the Act
as alleged by its layoffs of James Armstrong and Ira
Osborne and shall recommend dismissal of the
complaint as to these allegations.
IV. THE REMEDY
Having found that the Respondent has engaged
in and is engaging in certain unfair labor practices,
I shall recommend that it cease and desist
therefrom and that it take certain affirmative action
which I find necessary to remedy and remove the
effects of the unfair labor practices and to effectu-
ate the policies of the Act
Upon the basis of the foregoing findings and con-
clusions and upon the entire record in this case, I
make the following:
CONCLUSIONS OF LAW
1. Baker Machinery Company, a Washington
'6 Paul Garst , currently a sales representative , at one time an employee
of Respondent , testified he had a chance conversation on June 27 with
Fredrick while waiting to cross a street It lasted about 11/2 or 2 minutes
while waiting to cross the street and ended as soon as they had crossed
Garst 's memory was vague as to details He recalled that Fredrick "men-
tioned the union was either being voted in or out or voted on anyway "
Subsequently , Garst said he ( Fredrick ) " thought the election went , that the
union would be in, if I remember right , he said by one vote " According to
Garst, Fredrick also said " he knew who voted for the union " Garst then
testified in response to a question as to "anything else ""A Yes, that he in-
dicated , and like I said, I dont't want to be quoted word for word , but he in-
dicated that these men would be released "
Fredrick testified that Garst asked " How the union vote went, he
evidently knew about the union vote " Frederick told Garst the Union car-
ried nine to eight and "as far as 1 can remember that was the end of the con-
versation " Frederick denied he told Garst he knew who voted for the
Union As to saying "They would be released" Frederick testified he ut-
tered no words to such effect that he could remember He said he was sure
he didn 't say it
Here again is a matter of credibility or recollection Garst's memory and
recollection were vague and the time involved short Frederick's denial was
in part definite , in part on the baiss of " remembrance " He probably
365
corporation , is an employer engaged in commerce
and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. As found above by interfering with, restrain-
ing, and coercing its employees in the exercise of
right guaranteed in Section 7 of the Act, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of
the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and the entire record in the
case, it is hereby recommended that Respondent,
Baker Machinery Company, its officers, agents,
successors , and assigns shall:
1. Cease and desist from:
(a) Interrogating employees concerning union
membership and activities.
(b) Requesting employees to sign a statement
that they do not support a union
(c) Depriving employees of the use of the shop
foreman's office for lunch purposes because of
their membership in and activities on behalf of the
Union.
(d) Threatening that the selection of or ad-
herence to the Union will cause or result in layoffs.
2. Take the following affirmative action:
(a) Post at its place of business in Kennewick,
Washington, copies of the attached notice marked
"Appendix B.."16 Copies of said notice, to be
furnished by the Regional Director for Region 19,
after being duly signed by Respondent, representa-
tive, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places , including all
places where notices to employees are customarily
thought he knew who voted for the Union On the other hand , although he
had threatened layoffs if the Union were selected , this is different from stat-
ing after the election that all union people would be released In ihis
respect , I note no testimony by Garst that either he or Frederick on June
27, a week after both the election and the alleged discriminatory layoffs,
made any reference to the instant layoffs It also seems unlikely that
Frederick, if he had discriminated in those layoffs , would advertise such
either directly or indirectly Accordingly, and from an appraisal of all the
evidence herein as well as my observation of the witnesses , I find Frederick
on June 27 did not threaten to terminate all the union employees
16 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 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 In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals , the words in the notice reading " Posted by Order of the Na-
tional Labor Relations Board " shall be changed to read " Posted Pursuant
to a Judgment of the United States Court of Appeals , Enforcing an Order
of the National Labor Relations Board "
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posted . Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 19,
in writing , within 20 days from the receipt of this
Decision , what steps have been taken to comply
herewith."
IT IS FURTHER RECOMMENDED that the complaint
be dismissed in all other respects.
lr In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 19, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX A
Machines Shipped Each Month 1966 Through 1969
1966 1967 1968 1969
January 6 2 4 4
February 3 3 2 5
March 6 4 6 5
April 3 7 8 6
May 6 11 9 3
June 9 9 8 7
July 12 5 8 6
August 9 14 11 9
September 5 14 9 8
October 7 9 6 6
November 5 6 7
December 7 4 5
APPENDIX B
NOTICE TO EMPLOYEES
BAKER MACHINERY
COMPANY
(Employer)
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees
concerning union membership or activities
WE WILL NOT request employees to sign a
statement that they do not support a union
WE WILL NOT deprive employees of the use
of the shop foreman's office for lunch because
of their union activities or membership.
WE WILL NOT threaten layoffs because of
union selection or support.
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 1511 Third Avenue, Seattle,
Washington 98101, Telephone 583-7473.