Eldo-Craft Boat Co., Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1967

166 N.L.R.B. 280 (N.L.R.B. 1967)

280 DECISIONS OF NATIONAL
Eldo-Craft Boat Co., Inc. and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, AFL-CIO, Case
26-CA-2516
June 29,1967
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS , AND ZAGORIA
On March 27, 1967, Trial Examiner Max Rosen-
berg issued his Decision in the above-entitled
proceeding, finding that the Respondent had not en-
gaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
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
brief, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following
modifications.
The Trial Examiner, inter alia, found that
Respondent did not, as alleged in the complaint,
violate Section 8(a)(1) by a statement made by Su-
pervisor Swilley. The statement in issue was made
after an employee, Sharp, had been asked by other
employees whether their adherence to the Union
would be helpful or harmful to them. Sharp ap-
proached Swilley and put the question to him. At
that time Swilley replied, "I don't know." About 45
minutes later, Swilley approached Sharp and re-
marked, "I'll tell you one thing, Pat's [Pat Long,
one of the owners] fixin' to make it rough on you
all." The Trial Examiner grounded his recommen-
dation of dismissal of this allegation, upon his find-
ing that there is nothing in the record which as-
sociates Pat Long with any such statement. We find
merit in the General Counsel's exceptions concern-
ing this recommendation of the Trial Examiner.
The record clearly establishes that at the time
Swilley made his remark he was Respondent's sole
foreman and so regarded by Respondent's em-
ployees. It is well settled that supervisors' state-
ments of the nature of the one in question here
which encompass a threat of reprisal if employees
' Aaron Brothers of California, 158 NLRB 1077; Hammond and Irv-
ing, 154 NLRB 1071; Member Jenkins concurs in the dismissal of the
LABOR RELATIONS BOARD
persist in union activities are coercive and in viola-
tion of Section 8(a)(1). Accordingly, contrary to the
Trial Examiner, we find Respondent has thereby in-
terfered with, restrained, and coerced his em-
ployees in the exercise of their rights guaranteed in
Section 7 of the Act, in violation of Section 8(a)(1)
thereof.
While we have found Respondent to have vio-
lated Section 8(a)(1), we do not consider this single
act of misconduct sufficient to justify a further find-
ing that Respondent's questioning the Union's
majority was in bad faith and reflected a purpose to
evade an obligation to bargain in violation of Sec
tion 8(a)(5), and accordingly, adopt the Trial Ex-
aminer's recommendation of dismissal here. I
THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent occurring in
connection with its operations have a close, inti-
mate, and substantial relation to trade, traffic, and
commerce among the several States and tend to
lead to labor disputes burdening and obstructing the
free flow of commerce.
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices we shall order it to
cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce
within the meaning of Section 2 (6) and (7) of the
Act.
2. The Respondent , by threatening employees
with reprisals if they persisted in their union activi-
ties, engaged in unfair labor practices within the
meaning of Section 8 (a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2 (6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respond-
ent, Eldo-Craft Boat Co., Inc., El Dorado, Arkan-
sas, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening employees with economic
reprisals because they engaged in protected Section
7 activities.
8(a)(5) allegation in the complaint herein on the basis of his concurring
opinion in Aaron Brothers of California, supra.
166 NLRB No. 52
ELDO-CRAFT BOAT CO., INC. 281
(b) In any like or related manner interfering
with, restraining, or coercing employees in the exer-
cise of the rights guaranteed to them by Section 7 of
the Act.
2. Take the following affirmative action which
is necessary to effectuate the policies of the Act:
(a) Post at its facilities in El Dorado, Arkansas,
copies of the attached notice marked "Appendix."2
Copies of said notice, on forms provided by the Re-
gional Director for Region 26, after being duly
signed by the Respondent, shall- be posted by the
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to its employees are
customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are
not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 26,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
2 In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT interfere with, restrain, or
coerce our employees in the exercise of the
rights guaranteed in Section 7 of the Act by
threatening them with economic reprisals
because of their union support.
WE WILL NOT in any like or related
manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-
organization, to form, join, or assist Interna-
tional Union, United Automobile, Aerospace
and Agricultural Implement Workers of Amer-
ica, AFL-CIO, or any other labor organiza-
tion, to bargain collectively through represent-
atives of their own choosing, and to engage in
other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, or to refrain from any or all such ac-
tivities.
ELDO-CRAFT BOAT Co.,
INC.
(Employer)
Dated By
(Representative) (Title)
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.
Employees may communicate. directly with the
Board's Resident Office, 3507 Federal Bldg., 700
West Capitol Avenue, Little Rock, Arkansas
72201, Telephone Fr. 2-4361, if they have any
question concerning this notice or compliance with
its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAx ROSENBERG, Trial Examiner: With all parties
represented, this case came on to be heard before me in
El Dorado, Arkansas, on November 21 and 22, 1966, on
complaint of the General Counsel of the National Labor
Relations Board and answer of Eldo-Craft Boat Co., Inc.,
herein called the Respondent or the Company.' The is-
sues raised by the pleadings are whether Respondent vio-
lated Section 8(a)(1), (3), and (5) of the National Labor
Relations Act, as amended, by certain conduct to be
detailed hereinafter. The parties waived oral argument at
the conclusion of the hearing. Briefs have been received
from the General Counsel and the Respondent which
have been duly considered.2
Upon the entire, record in this proceeding and my ob-
servation of the witnesses, including their demeanor
while testifying on the stand, I hereby make the follow-
ing:
FINDINGS OF FACT AND CONCLUSIONS
I. THE RESPONDENT'S BUSINESS
Respondent, an Arkansas corporation, is engaged in
the manufacture of aluminum boats at its plant in
Smackover, Arkansas. During the annual period material
to this proceeding, Respondent purchased and received
at its Smackover operation directly from points located
outside the State of Arkansas products and materials
valued in excess of $50,000, and sold and delivered from
its Smackover plant directly to points outside the State of
Arkansas products valued in excess of $50,000. The
complaint alleges, 'the answer admits, and I find that
Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union , United Automobile , Aerospace
and Agricultural Implement Workers of America,
AFL-CIO, herein called the Union , is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
' The complaint, which issued on September 30, 1966, is based upon
charges and amended charges filed and served on August 15 and 17 and
September 30, 1966, respectively.
2 The General Counsel's unopposed motion to correct the transcript in
certain respects is hereby granted.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE , ALLEGED UNFAIR LABOR PRACTICES
The General Counsel contends that Respondent vio-
lated Section 8(a)(1) of the Act by engaging in the surveil-
lance of its employees ' union activities and by threatening
them with unspecified reprisals if they selected the Union
as their collective-bargaining representative. He further
alleges that Respondent violated Section 8(a)(3) by laying
off 15 employees on August 5, 1966 , for having joined or
assisted the Union .3 Finally, the pleadings charge that
Respondent rejected the Union 's demand for recognition
and bargaining on August 16, 1966 , in violation of Sec-
tion 8 (a)(5), because it did not harbor a good-faith doubt
of the Union 's majority status in an appropriate unit of
Respondent 's employees at the time of the rejection.4 For
its part , Respondent denies the commission of any unfair
labor practices.
The Respondent manufactures aluminum fishing boats
at its plant in Smackover , Arkansas . The president of the
Company is Charles Long, and his brother, Pat Long, is
the secretary-treasurer. The parties stipulated that James
Greer was a foreman during the times material herein and
that his duties satisfied the statutory definition of a super-
visor.5 The supervisor status of Calvin Swilley during
the companion period is in dispute . Sometime in June
1966,6 employee Bruce Sharp and certain of his fellow
employees discussed the prospect of collective represen-
tation by a labor organization and Sharp undertook to im-
plement this discussion by contacting a representative of
the Union in Little Rock , Arkansas. This contact was
made with Bernard Menge, who in turn requested that
Union Representative Ed House look into the matter.
House called on Sharp either on July 31 or August 1 and
arranged for a union meeting to be held after work on Au-
gust 3 at a ballpark in Smackover . Meanwhile , on August
1, Sharp and several employees met and discussed their
working conditions . As a result of these deliberations,
they decided to quit their employment unless they ob-
tained a pay raise from Respondent and unless Respond-
ent supplied additional help in cutting out parts for the
boats.7 Sharp approached Calvin Swilley, who was con-
cededly a supervisor within the meaning of the Act on
this date ," registered the employees' complaint, and
requested that they be permitted to speak with Secretary-
Treasurer Pat Long about the subject. Events abided
until the end of the 2 p.m. break. At the conclusion of the
rest period , the men refused to comply with Swilley's
order to return to work, again requesting that they be al-
lowed to present their grievances to Pat Long. Where-
upon, Swilley telephoned President Charles Long and the
employees were invited to the latter's office. After con-
veying their complaints to Charles Long, and according
to Sharp 's testimony , Long told the men that he could not
foresee any prospect of wage increases in the near future
because Respondent had not yet received the expected
customer orders and because Respondent was then in its
slack season.9 However, Long assured the employees
that he hoped to increase production to 80 boats per day
in 2 weeks if, as he anticipated , he received renewed
customer contracts.10 Long also remarked that he would
correct the employees' complaint concerning the cutting
of parts when production was increased by the assign-
ment of new employees to perform that function, thus
freeing the complainants for more remunerative produc-
tive work . The meeting then broke up.
While at work on August 3, employee Sharp made the
rounds of the men and informed them that a union meet-
ing would be held at the local ballpark when the workday
ended . Pursuant to this notice, approximately 30 em-
ployees attended, in addition to Foremen Greer and Swil-
ley. Union Representatives Menge and House spoke to
the men and explained the extent of the Union 's repre-
sentative endeavors in this industry . Concerning the
presence of Greer and Swilley at the ballpark, Sharp
testified that , midway during the meeting, Swilley posed
a question to the representatives about the financial
benefits which the Union could extract from the Com-
pany and , for the first time, the representatives became
aware that these foremen were present. According to
Sharp, Swilley was notified of the meeting by employee
Bob Sweet and Swilley remarked that he had come to the
convocation "to find out how the Union worked." Swil-
ley testified that his attendance was prompted solely by
an invitation from employees and by his belief that, in-
asmuch as he was hourly rated , he was eligible for mem-
bership in that labor organization . Swilley further testified
without contradiction that none of Respondent's officials
knew that he had attended the meeting , and that he did
not report his attendance or the events which transpired
to them. Union Representative House testified that he
learned of Swilley's identity as a foreman when the latter
inquired whether the Union might garner higher wages
for himself and the other employees. Following this
inquiry, an employee in attendance remarked to Swilley,
"Well, you shouldn 't be worried because you're already
a foreman and making more than anybody else." House
averred that he told Swilley at this juncture that the
Union could not represent him because of his supervisory
status, and that Swilley should not have attended the
meeting. According to House's testimony, Swilley then
replied , "Well, I was told to come down here. They told
me." [Emphasis supplied.] House then admitted that "I
don't know who he [Swilley] was referring to as `they."'
The General Counsel darkly hints that House's
3 In his complaint , the General Counsel asserted that James McAllister
was an employee of Respondent who was also unlawfully laid off on this
date, which would bring the number of alleged discnminatees to 16 ac-
cording to his original calculations At the hearing , however , the General
Counsel discovered that McAllister had never been employed by
Respondent and, with the consent of all parties, moved to delete his
name from the pleadings I granted the motion
4 The parties stipulated that all production and maintenance employees
at the Respondent 's plant , excluding clerical employees , guards, and all
supervisors as defined in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9(b) of the
Act, and I so find.
' The complaint alleges that "At all times herein , James Greer occupied
the position of foreman of Smackover Manufacturing Company, and has
been , and is now . . a supervisor [of Respondent ] within the meaning of
Section 2 ( 11) of the Act " For the reasons set forth hereinafter , I find that
Greer became a supervisor at Respondent 's plant for the first time on Au-
gust 8, 1966.
8 All dates herein fall in 1966, unless otherwise indicated
7 The employees were guaranteed an hourly wage rate . However, they
received incentive pay on a piecework basis, depending upon the number
of boats they constructed daily. Their assignment to the ancillary task of
cutting parts for the crafts caused them to devote less time to production,
with a consequent loss of piecework pay.
8 The General Counsel takes the position that Swilley was demoted by
Respondent to a rank-and-file employee on or about August 10
9 Bruce Sharp testimonially acknowledged that all the employees knew
that Respondent was experiencing a slack period at this time.
10 Jesse Hays , a witness called by the General Counsel, testified that
the daily boat production at the time averaged between 60 and 75.
ELDO-CRAFT BOAT CO., INC. 283
testimony in this regard not only suggests but indeed
establishes that Swilley was dispatched to the meeting as
an emissary of Respondent in order to spy upon the em-
ployees' engagement in protected , concerted activities. In
light of Sharp's testimony that Swilley was informed of
the meeting by employee Sweet, and Swilley's uncon-
tradicted testimony that he went to the ballpark solely on
his own to join in common cause with other employees to
ascertain whether the Union could enhance their collec-
tive terms and conditions of employment with Respond-
ent, coupled with the fact that there is no evidence in
this record to establish that Respondent was in any way
responsible for Swilley 's presence at the meeting or in
any manner learned from Swilley of the events which
transpired , I find no merit in the General Counsel 's asser-
tion that Swilley's reference to "they" is susceptible to
the inevitable or even reasonable conclusion that he was
dispatched to the ballpark at the behest of the Respond-
ent. Nor am I persuaded that Swilley's appearance at
the meeting , at a time when he occupied the status of a
statutory supervisor, constituted, under the circum-
stances of this case, the type of surveillance which is
proscribed by Section 8(a)(1) of the Act. The presence of
supervisors at union meetings is generally deemed by the
Board to be illegal because it inhibits employees in the ex-
ercise of their statutory right to join or assist labor or-
ganizations of their choice . However , in the instant case,
Foreman Swilley was not only invited to the union meet-
ing by the employees themselves, but his presence could
hardly have had an inhibitory effect upon their assisting
or joining the Union in view of the testimony of Menge
and House that they procured 10 signed cards at this
union meeting , and obtained an additional 11 on various
'dates thereafter. Viewing this espisode against the
backdrop of the record as a whole, I find and conclude
that the General Counsel has failed to sustain his burden
of showing that Respondent violated Section 8(a)(1) of
the Act by Swilley 's appearance at the union meeting on
August 3. 11
Regarding the presence of Greer at the union meeting,
the record is silent as to the reason for his being there.
However, it is clear that, on the date of the meeting,
Greer was not in Respondent's employ but was bound
over as a foreman to the Smackover Manufacturing Com-
pany which, although wholly owned by the family of
Charles and Pat Long, is concededly a corporation
separate and distinct from Respondent. On August 8, five
days after the meeting, Greer succeeded to the superviso-
ry position which Swilley held in the production depart-
ment at Respondent 's plant and Swilley was transferred
to the Smackover Manufacturing Company parts depart-
ment. The evidence discloses that Greer's services were
enlisted from the Smackover operation because of Swil-
ley's inability to supervise adequately the number of men
under him in Respondent 's production department. The
General Counsel has seized upon Greer's succession to
Swilley's job as indicative of Respondent's liability for
Greer's attendance at the local ballpark on August 3. As
in the case of Swilley, there is nothing in the evidence
which remotely suggests'that Greer was present at the
meeting at the instigation or direction of any official of
Respondent, or that he reported on the meeting to any
such official. Accordingly, I find and conclude that
Respondent did not engage in an illegal act of surveillance
by Greer's appearance at the union meeting.
After their speeches to the assembled employees, and
during the course of a question-and-answer period, the
union representatives distributed union authorization
cards to the men . On the reverse side appears the
legend- "This card will be used to secure recognition
and collective bargaining for the purpose of negotiating
wages, hours, and working conditions ." Menge testified
that he advised the employees in attendance that the
signed authorization cards could be used in alternate
ways in order to obtain exclusive recognition from the
Respondent . According to Menge, he explained that, de-
pending upon the attitude of the Company, he would first
seek recognition on the basis of a card showing and that,
if Respondent was unwilling to deal with the Union, he
would then utilize the Board 's processes and seek an elec-
tion. Various employees, called to the stand by both the
General Counsel and Respondent to testify concerning
the use to which they were advised the signed cards
would be put, gave their versions of Menge's instructions.
Bruce Sharp , the most active union adherent , testified on
behalf of the General Counsel that the employees were
informed by Menge to sign the cards and return them if
they were interested in the Union. He then conceded that
the men were told that the Union "had to have a majority
of them to have an election; that you sign the cards, get a
majority of them and then we could have an election to
see if the union come in." Sharp also stated that, during
his solicitation of employees on behalf of the Union, he
repeated the latter statement to more than half of them.12
Jimmy Brian, another General Counsel witness, related
that he was told that the purpose for signing a card was to
"get the majority and get the Union in ," and no mention
was made of an election. Edwin Keeling reported that
Menge and House advised the employees to read the card
before they executed it, an advice which he followed.
However, Keeling could not recall any further statements
made by the union representatives in this regard. Wesley
Harper recounted that he signed his card, after reading it,
and that the sole stated purpose for his doing so was "to
see how many people was for a union at the company, and
I thought that they was also to see if they would get
enough, if they would bring a vote to see exactly how
many people wanted to be union ." Jesse Hays testified
that, when he was proffered a card by Bruce Sharp for
signature, Sharp simply said, "Here is a card you need to
sign to go union," and Hays signed it. On Respondent's
side, James McAllister testified that he was solicited to
sign a card by Sharp and that the latter told McAllister
that the purpose for this act was "to have a vote on the
union coming into" the plant . Charles Scoggins and
Jimmy Dennis similarly testified that they returned their
signed authorization cards to the Union on the sole
representation that the cards would be utilized to obtain
a Board election. While not critical to my resolution of the
issue of whether Respondent unlawfully refused to bar-
gain with the Union on the salient date, I am persuaded
and find that at least some of the employees, i.e., James
McAllister , Scoggins , Dennis, and Harper, were in-
formed by the union solicitors that their signatures on the
11 In this connection , I would note that the General Counsel, while
proclaiming that Swilley was a secret agent of Respondent on August 3,
nevertheless relies upon Swilley 's signed authorization card, procured on'
August 12, after his alleged demotion to a rank-and-file employee on Au-
gust 8, to support the Union 's majority representational claim
12 Sharp obtained signed authorization cards from 12 employees.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorization cards were being procured solely to obtain
a Board election to determine the Union's majority
representative status.
On the day following the Union's organizational meet-
ing, namely, on August 4, Sharp testified that he engaged
Foreman Swilley in a conversation at the plant concern-
ing the Union. It is Sharp's testimony that he had been
asked by some employees whether their adherence to the
Union would be helpful or harmful to them. Sharp ap-
proached Swilley and put the question to the latter. Ac-
cording to Sharp, Swilley grinned and stated, "I don't
know." About 45 minutes later, Swilley came to Sharp's
worktable and remarked, "I'll tell you one thing, Pat's
[Pat Long] fixin' to make it rough on you all. -13 When
pressed about this remark by Swilley, Sharp conceded
that Swilley did not say that Pat Long had so informed
him, and there is nothing in this record which associates
Pat Long with any such statement. I therefore find that
Swilley's comment to Sharp was a voluntary opinion ex-
pressed by the former in response to a question posed by
Sharp as to whether unionization of the plant would be
tolerated by Respondent. The General Counsel relies
upon Swilley's utterance in this regard to support his con-
tention that Respondent violated Section 8(a)(1) of the
Act by threatening its employees with unspecified
reprisals if they joined the Union. In light of the unique
role which Swilley occupied in this litigation, i.e., having
attended the union meeting at the behest of the employees
to inquire into the benefits which could collectively be
forthcoming and to determine his eligibility for member-
ship in that labor organization, and having joined the
Union approximately a week after his remark to Sharp
when, as the General Counsel insists, he was a statutory
employee, I am not convinced that Swilley's observation,
even if it be construed as a threat of reprisal, should be at-
tributed to and binding upon Respondent. I therefore find
and conclude that Respondent did not violate Section
8(a)(1) by Swilley's statement to Sharp on August 4.
At the rest break on the afternoon of August 5, the em-
ployees had fulfilled their production quota of boats.
Sharp testified that the men then asked Swilley whether
they could go home at this point in the day, because it was
Respondent's practice to release the men before quitting
time if their production quota had been reached. Swilley
conveyed this request to Pal Long and, while he was
doing so, Sharp noticed that Long handed some papers to
Swilley. These documents, which Swilley posted on the
bulletin board, announced that a layoff would take place
on that date and that all employees who had been hired
after October 1, 1965, would be separated from Respond-
ent's employ because of lack of production orders. It is
undisputed that the employees who were selected for ter-
13 Edwin Keeling testified that he heard Swilley make a similar remark.
14 Sharp testified that between two and four employees who were ter-
minated had not signed union cards If I correctly understand the layoff
notice, which is G.C. Exh. 16, 22 employees were laid off on August 5, a
figure which includes the 15 alleged discriminatees. This would seem to
establish that seven nonunion adherents were caught in the reduction in
force.
is Bruce Sharp corroborated Long's testimony in this regard when he
testified that a layoff occurred in the summer of 1965 Swilley testified
that, to his knowledge, the largest number of employees who had been laid
off prior to 1966 was five, and these were students. In light of Charles
Long's testimony, based upon the Company's payroll records, which
stands unchallenged by the General Counsel's cross-examination, I find
that Swilley was mistaken in his numerical estimate.
is On direct examination , Swilley testified that, about 2 weeks prior to
August 5, Pat Long asked Swilley to inform the employees that it might be
mination were listed in order of their seniority, and I so
find. It is also uncontroverted that several employees
who were destined for separation had never joined or sup-
ported the Union.14 Finally, it is undenied that the em-
ployees had not been forewarned, prior to August 5, that
a layoff would occur on this exact date.
The General Counsel contends that the Respondent
was discriminatorily motivated in separating the 15 al-
leged discriminatees. In support of this contention, he re-
lies on the circumstances that the layoff fell hard on the
heels of the Union's organizational meeting on August 3;
on the circumstance that Respondent had not given any
prior notice to the employees that a layoff was about to
occur on August 5; and, finally, that this was the first oc-
casion on which Respondent placed a layoff notice on its
bulletin board to announce a reduction in force. The
General Counsel urges that this combination of circum-
stances leads to the unalterable conclusion that Respond-
ent selected the 15 individuals named in the complaint
because it was bent on ridding itself of the union ad-
herents. I find that the recorded facts are not prepon-
derantly supportive of this contention.
Charles Long, the Company's president, testified
without contradiction that the plant subsists primarily on
orders which are received from Montgomery Ward, a na-
tional retail chain, and that his business is seasonal in na-
ture. It is Long's undisputed testimony that the seasonal
slump occurs annually after the first of July and continues
into August. With the exception of the year 1964, when
the Company was awarded its first contract by Mont-
gomery Ward, a layoff had occurred during the summer
months in each year since the Respondent was organized
in 1960. Thus, Respondent's payroll records show that,
during the seasonal slump in the summer of 1965, 14 em-
ployees were laid off due to lack of work." Long's
testimony is uncontroverted that the slack period in 1966
commenced around the middle or end of July because the
orders for boats had been fulfilled and the Company had
not received definite word from Montgomery Ward con-
cerning the receipt of a new contract. Because of lack of
sales, as well as the fact that Respondent was in the
process of installing new dies with which to cut out boat
parts more feasibly and economically, it was decided to
lay off all those employees who were not needed to pour
concrete and move machinery to the new parts produc-
tion facility in line with Respondent's established system
of seniority. According to Charles Long, he and his
brother, Pat, discussed the prospect of a layoff about 2 or
3 weeks prior to August 5, and Pat instructed Swilley to
inform the men who were junior from the standpoint of
seniority that they should search for other work in order
to cushion their prospective unemployment. 16 On August
to their advantage to search for other employment because operations
would be curtailed, although Swilley was not told the date on which the
layoff would take place. Swilley testified that he brought this suggestion to
the attention of some of the newer employees because he knew that they
would be caught in any reduction in force On cross-examination by the
General Counsel, Swilley was shown an affidavit which he had given to a
Board agent in which he stated that "I had absolutely no knowledge, indi-
cation or idea that a layoff was coming prior to seeing the layoff notice. It
had not been mentioned to me by anyone " At first glance, Swilley's state-
ment appears contrary to his spoken testimony However, employee
James Primm, a witness called on behalf of the General Counsel, testified
that, prior to the layoff, Swilley informed him that "If you have any
chance to go to work elsewhere, you'd better take it." In light of Primm's
testimony, a fair appraisal of Swilley's statement which was given to the
Board persuades me that Swllley had reference to the date of layoff rather
than thefact of a reduction in force, and I so find.
ELDO-CRAFT BOAT CO., INC. 285
5, a layoff notice was posted on the company bulletin
board indicating that all those employees who were hired
after October 1, 1965, would be terminated based solely
upon their seniority."' Charles Long further testified
without contradiction that late in August, he received
word from the home office of Montgomery Ward that the
latter would formally award another contract to Respond-
ent in the near future, in consequence of which Long
mailed to each employee in layoff status a letter dated
September 2 advising him to report for work on Sep-
tember 6. According to Long, the formal contract from
Ward was received around October 10. While Long ad-
mitted that he did not advise the employees prior to Au-
gust 5 that a layoff would occur on the latter date, there
is nothing in this record to indicate that such was his prac-
tice in effecting layoffs in prior years.
To be sure, an employer may not discharge or lay off
employees in order to discourage their membership in or
adherence to a labor organization, and when an employer
takes such action he runs afoul of the provisions of Sec-
tion 8(a)(3) of the Act. But proof that a discriminatory
motive impelled the terminations must be clear and con-
vincing. Evidence that an employer effected a reduction
in force just 2 days after his employees attended a union
meeting and signed authorization cards, and that the
reduction occurred without affording prior notice thereof
to the individuals involved, may be probative and even
dispositive of the issue of discrimination, absent counter-
vailing evidence. In my opinion, however, Respondent
has adequately advanced such countervailing evidence in
this proceeding. I have found that, ever since the cor-
porate inception of Respondent in 1960 with but one ex-
ception, Respondent annually experienced a slack season
during the months of July and August which necessitated
a reduction in force. Based upon uncontroverted
evidence, I have also found that, in the summer of 1965,
Respondent severed approximately 14 employees from
its payroll because it had fulfilled its contract with Mont-
gomery Ward and other customers and there was no
productive need for their services. In the middle or at the
end of July 1966, a similar situation prevailed and
Respondent at that time decided to cut back its work
force. I find that, in addition to the fulfillment of its or-
ders, Respondent also embarked upon the task of relocat-
ing its parts equipment and chose to retain only those
senior employees who were needed to facilitate the move.
Approximately 2 weeks prior to the layoff on August 5,
and before the Union entered the picture, I find that
Charles and Pat Long had finally decided upon a layoff
and conveyed this information to Swilley with the instruc-
tion that the latter advise the employees to seek other em-
ployment to cushion their loss of work. Based, upon the
credited testimony of Charles Long and Swilley, as cor-
roborated by Primm, I find that Swilley imparted this ad-
vice to the newer employees at the plant prior to the
layoff. Respondent thereupon drafted a list of those em-
ployees to be laid off based solely on considerations of
seniority and, of the 22 men who were selected for
severance, 7 had not joined or supported the Union.
When Montgomery Ward renewed its purchase contract
with Respondent at the end of August, which was formal-
ized by a written document some weeks later, Respond-
ent recalled the employees in layoff status on September
2. In light of the demonstrated economic justification for
a layoff in August 1966, the established pattern of similar
layoffs during this month in prior years, the selection of
employees for severance on the basis of seniority, and the
absence of independent evidence of overt animosity by
Respondent toward unionization,"' I am convinced and
find that Respondent laid off the 15 employees whose
names are set forth in the complaint, not because they
joined the Union, but because their services became un-
necessary on August 5 due to a recession in business. Ac-
cordingly, I find and conclude that the General Counsel
has failed to sustain the burden of showing, by prepon-
derant proof, that Respondent violated Section 8(a)(3)
when it separated the 15 individuals from its employ on
that date
On August 8, Foreman Greer was transferred from the
Smackover Manufacturing Company to replace Swilley
as the foreman of Respondent's production department,
and Swilley was relegated to the parts department of
Smackover.19 On August 9, the Union, believing that it
possessed a majority of signed authorization cards in the
appropriate unit, dispatched a letter to the Respondent
demanding exclusive recognition and bargaining concern-
ing wages, hours, and other terms and conditions of em-
ployment. This letter was received by the Company on
August 15. On August 16, the Company responded that
it did not recognize the Union as the bargaining agent of
its employees. In his complaint, the General Counsel al-
leged that, at all times since August 4, the Union
represented a majority of Respondent's employees in an
appropriate unit; that, on August 9, the Union made a
valid demand for recognition; and, that on August 16,
Respondent, without harboring a good-faith doubt as to
17 Charles Long credibly testified that, due to an increase in business
over the years as a result of the Ward contracts, he increased his work
complement annually to handle the added volume of orders. Con-
sequently, during the slack period in 1966, it was necessary to separate a
greater number of employees
18 I have heretofore found that Respondent did not violate Section
8(a)(1) by engaging in acts of surveillance of its employees ' union activi-
ties, or by threatening them with reprisals for joining or assisting the
Union.
In an apparent attempt to shore up his contention that Respondent was
illegally motivated when it accomplished its reduction in force in 1966, the
General Counsel relies upon an episode which Bruce Sharp testimonially
related. According to Sharp, he visited the plant about 2 weeks after the
layoff to speak to some of his friends who were still employed by Respond-
ent. While he was conversing with them, Charles Long approached,
placed his hand on Sharp's shoulder, and maneuvered the latter toward
the door, stating that Sharp should leave the employees to their work
When Sharp questioned Long about this action, Long is reported to have
remarked, "I don't want you interfering with these boys at work. I want
you to go on and leave them alone." Although Sharp testified that Respond-
ent had permitted visitors in the plant in the past, there is nothing in the
record to indicate whether such visitations took place during working
hours or whether the need for complete devotion to duty by employees on
those occasions paralleled the situation on this occasion in August 1966.
This is indeed a slender reed for the General Counsel to seek to grasp, and
I attach no probative significance to this episode in establishing that the
Respondent separated the 15 employees for discriminatory reasons.
11 Considerable evidence was presented by the parties to define Swil-
ley's status after August 8, with Respondent contending that Swilley
remained a foreman after that date and the General Counsel urging that he
became a rank-and-file employee thereafter. I find it unnecessary to
resolve this issue for, even assuming that Swilley became an employee
after August 8 whose authorization card, which he signed at a union meet-
ing on August 12, should be counted to determine the Union's majority,
I have hereinafter found that the Respondent did not unlawfully refuse to
bargain with the Union although the latter might have come into posses-
sion of a majority card showing the salient date.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union's majority representative status, unlawfully
refused to recognize the Union.
At the hearing, and again in his brief, the General
Counsel contended that, on August 5, there were 31 em-
ployees in the appropriate unit and, of these, the Union
possessed 16 valid authorization cards. He further con-
tended that, on August 15, the date of Respondent's
receipt of the Union's demand for recognition, the unit
consisted of 29 employees, of whom 19 had executed
valid cards. He therefore argues that, on August 16, the
date on which Respondent rejected the Union's recogni-
tory demand, the latter was in possession of a clear
majority. On the other hand, Respondent asserts that, on
August 15, only 16 employees were in the appropriate
unit and that the Union had only 5 signed cards to support
its majority demand in this unit. In arriving at these
figures, the Respondent takes the position that the 15 al-
leged discriminatees should not be included in the unit,
and their cards should not be counted, because they had
been permanently laid off on August 5. Respondent also
contends that, even if the Union possessed 19 out of 29
cards on the critical demand date, 11 of those cards
should not be considered because they had been obtained
by Bruce Sharp under the misrepresentation that they
would be utilized solely for the purpose of obtaining a
Board election to determine whether the employees
desired to be represented by the Union. I deemed it un-
necessary to resolve the issues raised by these conflicting
contentions for, in my opinion, the General Counsel has
failed to establish, assuming arguendo, that the Union did
represent a majority of the employees on August 16, that
Respondent rejected the Union's demand on that date
without entertaining a good-faith doubt as the latter's
majority.
In John P. Serpa, Inc.,20 the Board expressed the cau-
tion that "Where the General Counsel seeks to establish
a violation of Section 8(a)(5) on the basis of a card show-
ing, he has the burden of proving not only that a majority
of employees in the appropriate unit signed cards
designating the union as bargaining representative, but
also that the employer in bad faith declined to recognize
and bargain with the union. This is usually based on
evidence indicating that respondent has completely re-
20 155 NLRB 99, 100
21 158 NLRB 1077, 1079
22 Even were I to find that the presence of Foremen Swilley and Greer
at the Union's meeting on August 3 constituted unlawful surveillance
within the purview of Section 8(a)(1), and/oi that Swilley's statement to
Sharp on August 4 that Secretary -Treasurer Pat Long was "fixin'to make
it rough on you all" if the employees went Union was similarly unlawful,
I would nevertheless adhere to my conclusion that the General Counsel
jected the collective-bargaining principle or seeks merely
to gain time within which to undermine the union and dis-
sipate its majority." In Aaron Brothers Company of
California,21 the Board expanded on this caution by ex-
plaining that "Whether an employer is acting in good or
bad faith in questioning the union's majority is a deter-
mination which of necessity must be made in-the light of
all the relevant facts of the case, including any unlawful
conduct of the employer, the sequence of events, and the
time lapse between the refusal and the unlawful conduct."
The Board also said at p. 1078 that "Absent an affirma-
tive showing of bad faith, an employer, presented with a
majority card showing and a bargaining request, will not
be held to have violated his bargaining obligation under
the law simply because he refuses to rely upon cards,
rather than an election, as the method for determining the
union's majority."
I have heretofore found that the Respondent had not
engaged in any misconduct contemporaneous with the
Union's organizational campaign or with its demand for
recognition, and the General Counsel has not evidentially
pointed to any statutory transgressions in which the
Respondent indulged after its rejection of the Union's de-
mand. In my opinion the facts in this proceeding fall
squarely within the mold of Serpa and Aaron and justify
the same legal conclusion as that reached in those cases.
Accordingly, I find that the General Counsel has failed to
come forward with evidence which affirmatively
establishes the existence of bad faith by Respondent's
refusal to bargain with the Union on August 16, and I
find and conclude that Respondent's denial of recognition
to the Union did not offend the provisions of Section
8(a)(5) of the Act.22
I shall therefore dismiss the complaint in its entirety.
RECOMMENDED ORDER
Upon the basis of the findings heretofore made and the
conclusions heretofore drawn, and the entire record, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is hereby recommended that the com-
plaint herein be, and it hereby is, dismissed in its entirety.
uas faded to spell out a bad-faith refusal to bargain on Respondent's part
As the Board noted in Hercules Packing Corporation, 163 NLRB 264,
and reiterated in Aaron, "not every act of misconduct necessarily vitiates
a respondent's good faith in questioning a union's majority and requesting
a Board election." In my view, these acts, occurring under the peculiar
circumstances chronicled hereinabove, are not of such a nature or gravity
to reflect a purpose to evade an obligation to bargain.