The Fluorocarbon Co.

National Labor Relations Board - Board Decisions

Nov 30, 1967

168 N.L.R.B. 629 (N.L.R.B. 1967)

THE FLUOROCARBON COMPANY -
The Fluorocarbon Company and International As-
sociation of Machinists and Aerospace Workers,
AFL-CIO, District Lodge No. 93. Cases
20-CA-3877 and 20-RC-6640
November 30, 1967
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING, BROWN, AND JENKINS
On May 15, 1967, Trial Examiner Maurice M.
Miller issued his Decision in the above-con-
solidated proceedings, finding that Respondent had
not engaged in certain unfair labor practices and
recommending that the complaint, in Case
20-CA-3877, be dismissed in its entirety, as set
forth in the attached Trial Examiner's Decision.
The Trial Examiner also found that Respondent
had conducted two employee meetings within the
24-hour period preceding the election in Case
20-RC-6640, in violation of the rule promulgated
by the Board in Peerless Plywood Company, 107
NLRB 427, and recommended that the results of
such election be vacated and that the Board direct
a second election. Thereafter, the General Counsel
filed exceptions to the Trial Examiner's Decision
with a supporting brief. An answering brief was
filed by the Respondent.
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 the Recommended Order
of the Trial Examiner, and hereby orders that the
complaint in Case 20-CA-3877 be, and it hereby
is, dismissed in its entirety.
IT IS FURTHER ORDERED that the election con-
ducted in Case 20-RC-6640 be, and it hereby is,
set aside.
[Direction of Second Election omitted from
publication.]
629
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Complainant Union's Petition
MAURICE M. MILLER, Trial Examiner: On October 15,
1965, International Association of Machinists and
Aerospace Workers, AFL-CIO, District Lodge No. 93,
Local Lodge No. 504, filed a petition for certification
with the Board's Regional Office (Case 20-RC-6640);
therein Petitioner requested certification to represent a
group of employees designated as follows: All production
and maintenance employees of [The Fluorocarbon
Company] at its Palo Alto, California, location, exclud-
ing all office clerical employees, professional employees,
guards, and supervisors as defined in the Act. Thereafter,
between November 5 and 12, representatives of both
parties signed, and the Board's Regional Director ap-
proved, a formal stipulation for certification upon consent
election; the stipulation provided that a representation
election would be conducted on December 1, thereafter,
within the bargaining unit previously designated. (Within
the stipulation, the Petitioner seeking certification was
designated as International Association of Machinists
and Aerospace Workers, AFL-CIO, District Lodge No.
93, merely; Petitioner's Local Lodge N. 504 was no
longer named as concerned. No questions seem to have
been raised when the stipulation was signed regarding this
change in Petitioner's designation, though it clearly meant
that the District Lodge solely, rather than its subordinate
local lodge, would be named on the Board's ballot.)
On December 1, 1965, the requested consent election
was conducted; the District Lodge Petitioner did not
receive a majority of the valid votes cast. Thereafter, on
December 7, representatives of the District Lodge timely
filed a set of objections with respect to certain conduct
chargeable to The Fluorocarbon Company, which had,
purportedly, affected the election results.
Complainant Union's Charge
Concurrently, on December 7, 1965, the District
Lodge, which will be designated henceforth as Complai-
nant Union herein, likewise filed charges against The
Fluorocarbon Company henceforth to be designated
Respondent herein; the firm was charged with unfair
labor practices affecting commerce within the meaning of
Section 8(a)(1), (3), and (5) of the National Labor Rela-
tions Act, as amended, 61 Stat. 136, 73 Stat. 519. Specifi-
cally, Complainant Union challenged the propriety of cer-
tain conduct, purportedly chargeable to Respondent firm,
which had preceded the consent election, previously
noted.
Parallel Proceedings
Thereafter, on February 16, 1966, the Board's Re-
gional Director published and served his report on objec-
tions in Case 20-RC-6640, with respect to the December
7 document which Complainant Union had filed; therein,
he concluded that Complainant Union had raised "sub-
stantial and material issues of fact" which could best be
resolved through a formal hearing. Noting that Complai-
nant Union had concurrently filed charges, the Regional
Director reported that such charges had been in-
vestigated; that a complaint "would" issue, based
168 NLRB No. 85
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereon, charging The Fluorocarbon Company with vari-
ous statutory violations ; that some conduct which would
be challenged therein as violative of the statute had
likewise been cited by Complainant Union within its elec-
tion objections as sufficient justification for vacating the
consent-election results; and, finally, that "these several
matters" seemingly constituted a single overall con-
troversy . With matters in this posture, the Regional
Director concluded that the statute 's purpose would best
be served by considering Complainant Union 's objec-
tions to the consent election jointly with the various un-
fair labor practices charged.
Concurrently with the Regional Director's report on
objections , a complaint and notice of hearing was issued
and served on The Fluorocarbon Company; therein,
Respondent was formally charged with unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(1), (3), and (5) of the statute. On February 25
Respondent 's answer , duly filed, conceded certain factual
matters - set forth within the complaint herein - but de-
nied others ; further , Respondent denied the commission
of any unfair labor practice.
Concurrently, Respondent filed exceptions with
respect to the Regional Director's previously served re-
port on objections , pursuant to Section 102.69 (c) of the
Board ' s Rules and Regulations , Series 8, as amended.
The sufficiency of the Regional Director's report was
challenged upon various grounds . Further, Respondent
protested the Regional Director 's proposal that the hear-
ing which he had recommended with respect to Complai-
nant Union 's objections be consolidated with the
scheduled hearing on General Counsel 's unfair labor
practice complaint ; such a consolidated proceeding, so
Respondent claimed , would be prejudicial for various
reasons noted . Respondent requested , therefore, that
Complainant Union 's objections to election be dismissed,
and that a certification of results be issued . Alternatively,
Respondent requested a separate hearing with regard to
Complainant Union 's objections , bottomed upon a more
detailed specification of the particular matters which the
Regional Director would propose to litigate therein.
On April 5, 1966 , Respondent filed a motion for bill of
particulars with respect to the complaint previously is-
sued ; therein Respondent sought further data regarding
the scope of General Counsel 's contentions and details
with respect to various factual matters . The motion was
referred to the Board's Associate Chief Trial Examiner
for consideration.
While the motion in question was pending determina-
tion , however, the Regional Director for the Board's Re-
gion 20, having "duly considered " Respondent 's formal
exceptions, filed with respect to his prior report on objec-
tions, previously noted , prepared and served a supple-
mental report. Therein, the Regional Director noted that
his investigation of Complainant Union's election objec-
tions had disclosed some testimonial conflict, with
respect to various courses of conduct which Complainant
Union had charged to Respondent 's management
representatives. Since these conflicts - so the Regional
Director declared - had raised "substantial and material
issues of fact" which a hearing could best resolve, he
renewed his recommendation that such a hearing with
respect to objections be conducted, consolidated with the
hearing previously scheduled for General Counsel's com-
plaint case.
Shortly thereafter , Respondent's counsel , noting that
his formal exceptions with regard to the Regional
Director's first report on objections had supposedly been
referred to the Board for consideration , questioned the
Regional Director's legal right, subsequently, to prepare
and serve a supplemental report. By return mail, the
Board's Associate Executive Secretary notified Respond-
ent's counsel, however, that the Regional Director's
procedure - specifically , his determination to issue a sup-
plemental report - was consistent with Board practice,
and that Respondent would be given time within which to
file renewed exceptions with respect thereto.
(Meanwhile, Respondent's motion for a bill of particulars
with respect to General Counsel 's complaint , herein, had
been denied.)
On April 29, Respondent filed exceptions to the Re-
gional Director 's supplemental report on Complainant
Union 's objections . Therein , Respondent 's counsel: (a)
Challenged the Regional Director ' s presumptive treat-
ment of Respondent 's first formal exceptions as constitut-
ing a motion , directed to him , for reconsideration; (b)
questioned the fairness and impartiality of the Regional
Director's further investigation; (c) protested the scope
of the Regional Director 's supplemental report , with par-
ticular reference to that document 's specific treatment of
matters not previously detailed within Complainant
Union's objections; and (d) challenged the Regional
Director's failure to detail within his report the specific
"evidence" which purportedly had "indicated" that a
supposed spokesman for Respondent 's management,
Donald Lawler , possessed certain statutory indicia of su-
pervisory status. Counsel for Respondent prayed, there-
fore: (a) That the Regional Director's supplemental re-
port be set aside, and that Complainant Union's prior
election objections be dismissed ; and (b) that certain mat-
ters specified within the supplemental report be dismissed
and stricken , since the Regional 'Director could not
properly have considered them within the scope of Com-
plainant Union's election objections "because they are
not specified in said objections and properly, reasonably
or fairly stated in said objections." Alternatively,
Respondent requested a separate hearing on Complainant
Union's objections, limited to those particular matters,
detailed within the Regional Director 's supplemental re-
port, which Complainant Union had previously specified.
On June 7, Respondent filed a supplemental motion for
a bill of particulars with respect to General Counsel's
complaint ; this motion was , subsequently, referred to me,
for disposition.
On June 9 the Board issued its Decision and Order
with respect to Complainant Union 's election objections.
Therein , the Board noted concurrence with the Regional
Director's double recommendation that a hearing should
be held on Complainant Union 's objections , and that such
hearing should be consolidated with the complaint case
hearing previously scheduled. The Board rejected
Respondent's contention - initially proffered within the
firm's first set of exceptions - that a consolidated hearing
would be prejudicial since General Counsel would
therein be permitted to litigate , purportedly within the
conceptual framework of Complainant Union's prior
representation case, matters which that organization had
never specifically challenged as sufficient to warrant
vacating the questioned December 1 election results.
With respect thereto , the Board's Decision noted , merely,
that:
Under applicable procedures, the parties may
request Board review of any ruling by the Trial Ex-
aminer or the Hearing Officer, as the case may be, in-
THE FLUOROCARBON COMPANY
eluding his findings, conclusions, and recommenda-
tions with respect to the objections.
More particularly, the Board directed a hearing to resolve
"the issues raised by Petitioner's objections" such hear-
ing to be consolidated with the scheduled hearing in
General Counsel's complaint case.
The Consolidated Matter
On June 10, consistently with the Board's direction,
the Regional Director consolidated the representation
and complaint cases herein; further, he directed a con-
solidated hearing. And, pursuant to notice, this hearing -
with respect to questions presented in both cases - was
held in San Francisco, California, on various dates
between June 15 and 29, 1966, before me. The General
Counsel and Respondent were represented by counsel;
Complainant Union was present through a Grand Lodge
representative. Each party was afforded a full opportuni-
ty to be heard, to examine and cross-examine witnesses,
and to introduce evidence pertinent to the issues. (The
parties have filed a joint motion to correct transcript
herein. My own record review has revealed some further
mistranscriptions which, within my view, require cor-
rection to make the record more understandable. These
corrections, which I will direct, will be set forth within an
appendix [omitted from publication] to this Decision.)
Since the hearing's close, briefs have been received
from General Counsel and Respondent's counsel; these
briefs, which I have found thoroughly competent and
closely reasoned, have been duly considered.
Upon the entire testimonial record, documentary
evidence received, and my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Throughout the period with which this case is con-
cerned, Respondent has been a California corporation,
with places of business in Anaheim and Palo Alto,
California; Pine Brook, New Jersey; and Phoenix,
Arizona. 'Within these various facilities, Respondent is
engaged in the processing and manufacture of rubber,
plastic, and teflon products. The present case concerns
Respondent's Palo Alto facility, solely. (While the hear-
ing was in progress, Respondent's counsel reported that
plans were being made to move Respondent's Palo Alto
facility to Mountain View, the next southernmost subur-
ban community; presumably, Respondent's facility, thus
relocated - should such a relocation be verified,
hereinafter, for the record - would not merit designation
as truly :'new" but would constitute merely a continua-
tion of the firm's Palo Alto operation.)
During the 12-month period which preceded the com-
plaint's issuance, Respondent's two California operations
received more than $50,000 from sales or services
rendered to other firms within California, including
United Airlines, Standard Oil of California, and Shell
Chemical Company; each of these latter firms, in turn,
either purchased and received goods and materials,
valued in excess of $50,000 annually, directly from out-
of-State points, or received more than $50,000 annually,
for sales or services rendered to persons located outside
the State of California. Further, during the same period,
Respondent purchased and received goods and materials
631
in California, valued in excess of $50,000, which had
been shipped directly to Respondent from out-of-State
suppliers, or from suppliers within the State who had ob-
tained such goods and materials directly from out-of-
State points. During the period in question, likewise,
Respondent received more than $50,000 from the sale of
goods or services directly to out-of-State customers.
Upon the complaint's jurisdictional allegations, which
are conceded to be factually correct, I find that Respond-
ent is now and at all times material has been an em-
ployer within the meaning of Section 2(2) of the Act, en-
gaged in commerce and business activities which affect
commerce within the meaning of Section 2(6) and (7) of
the Act, as amended. With due regard for the jurisdic-
tional standards which the Board presently applies - see
Siemons Mailing Service, 122 NLRB 81, and related
cases - I find assertion of the Board's jurisdiction in this
case warranted and necessary to effectuate statutory ob-
jectives.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists and Aerospace
Workers, AFL-CIO, District Lodge No. 93, designated
as Complainant Union within this Decision, is a labor or-
ganization within the meaning of Section 2(5) of the Act,
as amended, which represents certain of Respondent's
employees for collective-bargaining purposes.
III. THE UNFAIR LABOR PRACTICES
A. Issues
Save for certain procedural contentions proffered in
Respondent's behalf- which I propose to consider should
their disposition become necessary hereinafter - these
consolidated cases present several relatively conven-
tional questions regarding the scope of this Board's so-
called Bernel Foam doctrine. Bernel Foam Products Co.,
Inc., 146 NLRB 1277; Irving Air Chute Company, Inc.,
Marathon Division, 149 NLRB 627. Specifically, deter-
minations would seem to be required with respect to the
following matters:
1. Whether various management spokesmen, follow-
ing notice with respect to Complainant Union's petition
for certification, interfered with, restrained, or coerced
Respondent's Palo Alto workers through: (a) Questions
regarding their union membership, and their knowledge
of their fellow workers' union sympathies; (b) threats that
Respondent's Palo Alto facility would be closed, or that
certain work previously done therein would be subcon-
tracted, because of Complainant Union's campaign for
representative status; (c) statements that Respondent's
regular hours of work would be reduced, or that workers
would no longer be permitted to work overtime, because
of their professed desire for unionization; and (d) sug-
gestions, proffered I day before the scheduled consent-
election date, that Respondent's management possessed
information, presumptively gleaned through surveillance,
regarding its Palo Alto workers' union sympathies, that
Respondent's workers could create a local grievance
committee to communicate with Respondent's manage-
ment, and that certain working conditions might be im-
proved should they refrain from designating Complainant
Union their collective-bargaining representative.
2. Whether Respondent's management - during a
period between the firm's receipt of notice regarding
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Complainant Union's petition and the subsequently
scheduled consent-election date -discriminated against
workers within its Palo Alto facility, contrary to statutory
requirements , by subcontracting with other firms for cer-
tain work which those workers had previously done, by
reducing their regular hours of work, and by depriving
them of previously granted chances to work overtime.
3. Whether Respondent's management - following the
firm's receipt of notice regarding Complainant Union's
claim to represent Respondent's Palo Alto workers,
within a unit appropriate for collective-bargaining pur-
poses - refused to bargain, contrary to statutory require-
ments, by (a) refusing to recognize and deal with Com-
plainant Union as such workers' designated representa-
tive, and (b) modifying their working terms and condi-
tions, with respect to matters previously noted, uni-
laterally and without giving Complainant Union an op-
portunity to bargain thereon.
With respect to these questions, Respondent contends:
First, that General Counsel has failed to sustain any por-
tion of his case by a preponderance of the credible
evidence; second, that various statements purportedly
chargeable to company spokesmen should not be con-
sidered, within their relevant context, violative of statuto-
ry proscriptions; third, that management's course of con-
duct should not, in any event, be considered a so-called
"consistent and flagrant pattern of unlawful conduct" suf-
ficient to warrant a Board bargaining order, under the
Board's current Bernel Foam decisional doctrine.
B. Facts
1. Complainant Union's organizational campaign
On October 11, 1965, Kent Arnold, Complainant Dis-
trict Lodge's organizer, met with three of Respondent's
machinists, Dave Bowden, Dick Singleton, and Leonard
Singleton; following a brief discussion with respect to
those steps which would be required before that organiza-
tion could claim representative status at Respondent's
Palo Alto facility, the three men signed cards which
authorized Complainant Union's parent body to
represent them for collective-bargaining purposes. The
machinists were provided with a small supply of blank
designation cards, and were requested to have other
workers in Respondent's employ sign them. (The record
warrants a determination that the three men were told
their cards would be submitted to the Board, and that
Complainant Union would petition for a representation
election; they were further told, however, that Complain-
ant Union would promptly dispatch a letter to Respond-
ent's local manager, requesting recognition and offering
to prove Complainant Union's majority status through a
card check.) The two Singletons did procure signed
designation cards from other workers; by October 12,
eight of Respondent's workers within the bargaining
group previously designated had signed such cards.
(Respondent, during the hearing-when requested to
provide data from which a determination could be made
regarding the number of production and maintenance
workers on the firm's payroll on Friday, October 15,
the day after Complainant Union's demand for recogni-
tion was received-proffered a list containing 15 names.
The record warrants a determination, however, that
this list contained the name of one person, Donald
Lawler, whom Complainant Union and General Coun-
sel both would consider a supervisor. The list, fur-
ther, designated four men-John Deckard, Les-
lie Wise, Edmun Lawler, and Lynn Clark-clearly
shown to have been part-time workers. These four
men - with varying periods of prior service as temporary
part-time workers in Respondent's hire - had been en-
gaged for a specific job, and had all been terminated on
October 13 or 14, respectively. They had not shared the
working conditions of Respondent's regular full-time
plant workers. When the Board's consent election, previ-
ously noted, was subsequently held, Respondent
designated none of them eligible voters. Under these cir-
cumstances, General Counsel contends that Donald
Lawler should be considered excluded from the workers'
group with which this case is concerned because of his su-
pervisory status, and that Deckard, Wise, Edmun Lawler,
and Clark should be, likewise, excluded therefrom as
casual workers. See Haag Drug Co., 146 NLRB 798,
800; cf. Recipe Foods, 145 NLRB 924. With these dele-
tions - which Respondent does not seriously contest,
save in Donald Lawler's case - determination would be
warranted that the production and maintenance group ap-
propriate for collective-barganing purposes at Respond-
ent's plant- during the second week of October 1965,
specifically-comprised no more than 10 workers.
Questions which have been herein raised by Respond-
ent's counsel with respect to Complainant Union's
majority designation, however, will be discussed later,
should such discussion prove necessary, within the Deci-
sion.)
By the evening of October 12, Leonard Singleton had
returned these signed cards to Complainant Union's or-
ganizer. With a registered letter, dispatched some time
the following day, Arnold notified Respondent that Com-
plainant Union represented a majority of the firm's Palo
Alto production and maintenance workers; he offered to
prove Complainant Union's majority status through a
card check conducted by some disinterested third party.
Further, Respondent was requested to recognize and bar-
gain with Complainant Union, for the purpose of
negotiating a collective-bargaining contract.
Respondent received the letter in question on October
14; Complainant Union's postal return receipt so shows.
The record, however, would seem to warrant a deter-
mination that - for reasons not herein specified - the
letter did not come to the personal attention of Robert
Goforth, Respondent's Palo Alto manager, before late af-
ternoon of the following day. I so find. Within a context
of concurrent developments, which will be detailed
further herein, Respondent vouchsafed Complainant
Union no direct reply.
Shortly after Arnold's October 13 letter was
dispatched, Grand Lodge Representative Byrnes, of
Complainant Union's parent body, filed the petition for
certification previously noted. It was docketed as filed on
October 15 by the Board' s Regional Office staff. Formal
notice with respect to the petition's pendency, together
with a copy of the document in question , was promptly
sent to Respondent's plant; the record warrants a deter-
mination that such notice was received the following day.
2. Respondent's reaction to Complainant Union's peti-
tion
a. October 16 interrogation
Some time during the morning of Saturday, October
16, pursuant to directions contained within the Regional
THE FLUOROCARBON COMPANY
Office's covering letter, Plant Manager Goforth posted a
transmitted copy of Complainant Union's petition on the
shop wall, within an area where notices to plant workers
are customarily posted. He was observed by Dick
Singleton and Bowden, who had reported to complete
some overtime work. (The wall on which Goforth posted
Complainant Union's petition was one of two fixed walls
which formed a corner within the production portion of
Respondent's plant. This corner space, which contained
a desk and chair, together with several nearby metal files
and tool cabinets, was further separated from Respond-
ent's principal plant production floor by a wood and
glass partition, less than ceiling high, which marked its
third side. The record reveals testimonial conflict regard-
ing this three-quarter enclosed space's proper and custo-
mary designation. General Counsel's witnesses testified
that it was commonly considered Donald Lawler's "of-
fice" within the plant; Plant Manager Goforth testified
that it was really nothing more than a storage area for
blueprints, machine parts, and handtools, within which
Lawler might sometimes do paperwork. The significance
of this testimonial conflict will be discussed, further,
within this Decision.) While posting the petition form, or
shortly thereafter, Goforth had a short conversation with
both Singleton and Bowden. Their respective testimonial
recitals regarding that conversation, however, reveal a
significant conflict, which must now be resolved.
(1) General Counsel's version
Synthesized, the testimony of Dick Singleton and Bow-
den would warrant a determination that Goforth - when
he saw them returning to work from lunch - requested
them to join him within the plant "office" where he first
asked whether they knew anything about either Complai-
nant Union's request for recognition or the petition for
certification. Both denied knowledge with respect to
these matters. Goforth then asked whether they had ever
belonged to any union, or if they knew of other employees
who belonged to a union. Singleton and Bowden, so Dick
Singleton testified, named some workers who had be-
longed, to their knowledge, but declared that none of
Respondent's workers, so far as they knew, held current
union membership. Goforth, purportedly, declared his
personal dislike for unions, declaring that while he was a
college student he had been required to pay dues while
holding part-time work; and further that he had been
"bumped off the job" because he had refused to join the
union concerned. According to Bowden, he declared,
finally, that, "Well, no G- D- union is going to come in
here," and that he would fight it all the way.
(2) Respondent's version
Regarding this conversation, Plant Manager Goforth
testified that Dick Singleton and Bowden joined him
voluntarily, while he was posting the petition. They were
told that Respondent had received a request for recogni-
tion from Complainant Union the previous day; that a
copy of Complainant Union's NLRB petition had just
been received; that it appeared Respondent would have
to go through a representation election, and that he knew
nothing more. Goforth conceded that he had asked
Singleton and Bowden whether they knew what "this"
meant, and that they had disclaimed any knowledge re-
garding the matter. Respondent's plant manager - so he
testified - had then declared that Respondent felt it would
633
rather operate without unionization, were it given a
choice, but that the firm would be willing to go ahead with
an election to determine the matter. Goforth concededly
added that when he had been a college student he had had
a few "bad experiences" with unions from his personal
standpoint, and that he felt Respondent would be better
off working without one. According to Respondent's
plant manager, some tangential remarks by Singleton
closed their conversation.
(3) Credibility questions
Both witnesses for General Counsel testified
forthrightly, with patent sincerity and personal con-
fidence in the correctness and completeness of their
respective recollections. Review of the record has con-
vinced me, however, that their recollections were, really,
somewhat divergent; such recollections, further, may
well have been colored by rationalization. For example:
Dick Singleton first testified that he saw Complainant
Union's letter to Respondent posted on the plant "office
wall on October 16. During cross-examination, however,
Singleton declared that the document which he had seen
posted was a copy of Complainant Union's NLRB peti-
tion form; then he testified that he could not be sure
whether the document posted was Complainant Union's
initial letter or a copy of its petition. When shown a
photostatic copy of Complainant Union's recognition
letter, which had previously been proffered for the
record, Singleton could not recollect having seen it. Bow-
den's testimony, with respect to Respondent's posting,
likewise reflected self-contradiction. First, he testified
that he had not seen a copy of Complainant Union's letter
to Respondent; he called the posted document an NLRB
communication and declared that it had been posted on
Thursday, October 14. Then he purportedly recalled that
on Saturday, October 16,' when he and Dick Singleton
were returning from lunch, they observed Goforth within
the plant "office" with someone else - never named - en-
gaged in posting a second letter. When requested to recall
what this letter said, Bowden made a try, but quickly con-
fessed that he was "really very hazy" with respect to the
document's content "because we knew what it was." The
logic behind this purported rationale was never explained.
(The physical appearance of Complainant Union's Oc-
tober 13 letter, which Respondent later produced for the
record, warrants a determination - consistent with
Goforth's testimony - that it was never posted.) Both
Singleton and Bowden testified that Goforth had
questioned them regarding their knowledge of matters
disclosed within the document being posted; both re-
ported that they had disclaimed knowledge with respect
thereto. Only Singleton, however, went on to testify that
Goforth had then queried them regarding their past union
membership, or the past union membership of their fellow
workers. (His further testimony that, when so queried,
"we told him of the ones ... that we knew had belonged"
would certainly seem to merit scepticism, particularly
when conjoined with his further testimony that Goforth's
queries had been parried with remarks clearly, calculated
to generate a belief that Bowden and he really lacked rele-
vant knowledge regarding Complainant Union's or-
ganizational campaign.) Finally, Singleton's, testimony
varied from Bowden's, regarding the substance of
Goforth's purported personal reminiscence. Singleton
recollected Goforth's dislike for unions as reportedly bot-
tomed upon some union's requirement that he pay dues,
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
while in college, when hired to perform part-time work;
Bowden, however, professed to recall comments by
Respondent's plant manager that he had been completely
deprived of work because he "wouldn't join" the union
concerned.
Within his brief, General Counsel concedes that
Goforth's personal appearance, while a witness, was "im-
pressive" and that his demeanor alone would provide no
basis for rejecting his testimony. Nevertheless, the con-
tention is proffered that, with due regard for the cold
record, Goforth's recital should be considered "untrust-
worthy" because his testimony, taken as a whole, failed
to comport - in several respects - with clearly credible
testimony proffered by disinterested perspns and
Respondent's own witnesses. With respect to the specific
conversation now in question, however, the plant
manager's testimonial recollections were clear cut, con-
sistent, plausible. Had General Counsel's witnesses
proffered substantially consistent recitals, without patent
lapses of memory, my task with respect to determining
their credibility would concededly have been difficult.
Some reference to their total testimonial presentation,
compared with Goforth's total presentation - both con-
sidered with due regard for the whole record - might then
have been required. With specific reference to October
16, however, Singleton and Bowden proffered testimony
which - because of their varied recollections - fails to per-
suade. Goforth's version of their conversation, I find,
merits credence.
b. Subsequent interrogation and threats of reprisal
On Monday, October 18, Respondent's plant manager,
so he credibly testified, telephoned Respondent's pre-
sident, Peter Churm, at the firm's Anaheim, California,
facility. Churm was told about Complainant Union's peti-
tion; his suggestions were requested. Respondent's pre-
sident told Goforth to seek advice from the Merchants
and Manufacturers Association in Los Angeles; Respond-
ent's Palo Alto manager was told that the firm had
sought help from that organization when faced with a
union campaign within its Anaheim plant. (The record
warrants a determination that, pursuant to Churm's
direction, Goforth did communicate with some
Merchants and Manufacturers representative; he was ad-
vised to discuss Respondent's problem with a San Fran-
cisco trade group, and to retain local counsel. This, so the
record shows, he subsequently did.) Promptly thereafter,
so General Counsel contends, Respondent purportedly
"launched its antiunion campaign" calculated to counter
and subvert Complainant Union's representation claims.
Respondent's plant manager, however, does not seem,
on the surface, to have played a prominent role.
Testimony proffered in General Counsel's behalf - prin-
cipally by Dick Singleton, Leonard Singleton, and Bow-
den, previously noted - would warrant a determination,
should it be found worthy of credence, that Donald
Lawler, functioning as Respondent's plant foreman and
production manager, rather than Goforth himself,
mounted a sustained campaign reasonably calculated to
forestall unionization.
Since the record, with respect to Lawler's purported
statements and conduct, reveals sharp conflict, clarity in
presentation would, once more, seem to require separate
statements for each version.
(1) General Counsel's case
The composite testimony, proffered in General Coun-
sel's behalf, would warrant a determination - should it be
found worthy of credit - that Lawler told Dick Singleton,
sometime on October 18, and at various times thereafter:
(a) That the firm's Anaheim management had been told
of developments; (b) that Respondent would not permit
the plant's unionization; and (c) that President Churm
and chairman of the board, George Angle, had, indeed,
said they would close the plant rather than accept
unionization. Lawler purportedly informed Singleton,
further, that Respondent was cutting out overtime hours,
subcontracting all work, closing the plant, shipping the
plant's machinery to Anaheim by Friday (October 22),
and reducing its Palo Alto facility to a three-man opera-
tion, none of whom would be production workers.
Lawler, so Singleton testified, further declared that Plant
Manager Goforth was "madder than hell" over Complai-
nant Union's campaign; the firm's "production manager"
was reported to have said that Respondent's plant
manager had subcontracted a large order, which Respond-
ent had just received to a competitor even though the
order in question called for work which the Palo Alto
facility's employees could have performed. The following
day, October 19, Lawler purportedly repeated his prior
comment to Singleton that the firm's machinery would be
shipped to Anaheim, and that the Palo Alto facility would
be closed. Bowden, present within hearing distance,
thereupon told Lawler, so Dick Singleton testified, that
he did not believe the stockholders would permit the
plant's closure; Lawler, purportedly, replied, "Do you
want to bet?" following which he repeated his statement
that the plant would be closed, and the firm's production
workers terminated. (Dick Singleton testified that these
threats were repeated frequently, throughout a 2-week
period, up to Friday, October 29, specifically.)
According to Bowden, Donald Lawler was concur-
rently telling him, likewise, that Goforth had said the Palo
Alto facility would be closed, and that the machinery
would be sent to Anaheim. Bowden was also told, so he
testified, that Respondent had sent various orders, calling
for work which normally would have been handled within
the Palo Alto plant, both to Anaheim headquarters and to
other San Francisco Bay Area firms. Purportedly, Lawler
had commented, "You guys can see what you brought on
yourself by bringing that union in" following his last-
noted remarks. (During the October 18-23 week within
which these statements were purportedly made, Respond-
ent's plant was visited by someone connected with an in-
surance rating bureau, charged with responsibility to
check the safety of the plant's machinery and physical
facilities for Respondent's workmen's compensation in-
surance carrier. The checker, accompanied by Donald
Lawler, went from machine to machine, making notes as
he went. Respondent's management representatives, so
the record shows, proffered no explanation for the
checker's presence, or his function within the plant.
General Counsel contends that Respondent's plant wor-
kers had been given reason to believe, because of
Lawler's prior comments, that this plant visit was related
to their firm's program of plant closure and machinery
removal; since management representatives - though pre-
sumptively cognizant of their workers' concern regarding
the prospect of plant closure - took no steps to reduce or
remove whatever fears the checker's visit might
reasonably have generated or fostered, General Counsel
THE FLUOROCARBON COMPANY 635
contends that - through their silence - they knowingly
permitted this fortuitous circumstance to buttress
Lawler's repeated statements. The contention will be
discussed further, should such discussion prove neces-
sary, within this Decision.) On or about October 19, so
Dick Singleton testified, Lawler sought to learn the
names of Complainant Union's principal plant support-
ers, and queried him regarding the reason for their union
activity.
According to Leonard Singleton's testimony, Lawler,
some time during the week now in question, accused him
of being the "instigator" of Complainant Union's or-
ganizational drive. Further, Singleton testified, he was
likewise told that Respondent planned to close its shop,
crate the machinery, ship it to Anaheim, and then, "job
out" the work. When Singleton told Lawler that he
thought Respondent could not lawfully do so, the latter
purportedly replied, "Well, you'll see."
On about October 20, Dick Singleton complained to
Lawler that it was unfair for Respondent to lay off women
plant workers because they had signed union designation
cards. (Respondent's payroll record shows that Rose
Guarnera, one of the firm's two women workers, who
had, in fact, signed a union designation card, had been laid
off October 19 for 4 hours. General Counsel contends
the record will support a determination that no lawful
economic reason justified heir layoff, since there was a
large order to be shipped on which she normally would
have worked, and since a further order which normally
would have kept her busy was sent to Respondent's
Anaheim plant.) Lawler, so Dick Singleton testified, did
not deny that Guarnera's challenged layoff was for such
a proscribed reason; he merely declared that her layoff
had been effectuated pursuant to Goforth's decision.
At the same time, approximately, Goforth told Re-
spondent's plant workers that there would be a cutback
with respect to their regular working hours, calculated
to reduce or eliminate their overtime work. (The record
warrants a determination that Respondent's plant mana-
ger first promulgated a work schedule calculated to permit
no more than 8-1/2 hours of work per day, for a 42-1/2-
hour workweek. Subsequently, so the record shows, the
length of Respondent's regular workday was still further
reduced.) Lawler purportedly told -Dick Singleton,
specifically, that there would be no further overtime work
since Respondent was "farming out" some orders. When
Singleton, according to his testimony, questioned the
financial wisdom of such practices, Lawler declared that
Respondent could still make a profit from subcontracted
work.
(2) Respondent's denial and counter presentation
While a witness, Donald Lawler testified that his first
knowledge regarding Complainant Union's petition
derived from his viewing the posted document on Mon-
day, October 18; that he had had no prior conversations
with Respondent's plant manager regarding the matter.
He categorically denied thereafter making the threatening
statements charged; further, he denied having had any
conversations with either Dick Singleton, Leonard
Singleton, Bowden, or plant workers generally, during
which he had made any effort to learn the names or
number of union supporters, or their putative reasons for
supporting Complainant Union herein. He specifically
denied charging Leonard Singleton with being the "in-
stigator" of Complainant Union's campaign. Though he
conceded his awareness of the fact that various plant
workers had frequently discussed the pros and cons of
unionization and the prospects of company reprisal, while
on coffeebreaks and lunchtime, during the several weeks
which directly followed Goforth's posting of Complai-
nant Union's petition, Lawler testified that his participa-
tion in conversations deriving from such discussions had
been limited to no more than two occasions. Once, when
returning to work following a morning coffeebreak, so he
testified, he had been asked, by some one of several
workers still drinking coffee, to comment regarding the
possibility that Respondent would crate its machinery,
ship it to Anaheim, and close its Palo Alto facility.
Lawler had merely replied-so he testified-that he
"wouldn't blame" the firm's management, should they do
so. On another occasion, which Lawler placed at the close
of the day on Friday, October 22, Dave Bowden, so he
testified, had asked him, with two other workers present,
whether they should come to work the Monday following.
When Lawler supposedly replied, "As far as I know.
[W jhy?" he was told, "We have heard everything is
going to be crated up and shipped to Anaheim." He had
referred his questioner, so he said, to Respondent's plant
manager. (Beyond this proffered testimony, Respondent
contends: (1) that Lawler was not a supervisor; (2) that
management, whether or not he was a supervisor, cannot
be held legally responsible for his statements; and (3) that
whatever statements he may have made, violative of
statutory requirements, were disavowed promptly, when
Plant Manager Goforth heard of them. These contentions
will be discussed, further, within this Decision.)
Respondent's plant manager did not deny the declara-
tion charged to him, that Respondent's regular work
hours would be reduced, concurrently with a reduction of
overtime work. Nor did he deny that - for a period of time
following Respondent's receipt of notice regarding Com-
plainant Union's petition - overtime work was almost
completely eliminated, and compensable time for plant
workers substantially reduced. Goforth contended, mere-
ly, that his conceded pronouncements in this connection
were dictated by Respondent's lack of work sufficient to
keep the firm's Palo Alto facility busy with overtime
work; further he testified that this justification for his
several pronouncements - successively directed to vari-
ous segments of Respondent's plant crew - was men-
tioned when those pronouncements were made.
(3) Credibility questions
With matters in this posture, we confront, for the
second time, some serious credibility questions. Their
resolution has been fraught with considerable difficulty.
Determinations by triers of fact, with respect to credibili-
ty, must necessarily rest upon their considered judgment
with respect to more than one factor within the case
presented for decision. See Casa Grande Cotton Oil Mill,
110 NLRB 1834, 1845-46, for some general discussion.
Still, with relevant factors in mind - so far as they may be
revealed within a particular record - honest dispositions
with respect to credibility problems cannot be facilely
reached. However dispassionate triers of fact may wish
to be, and however carefully they may try to discover
what really happened, they cannot consider themselves
divinely ordained to pronounce the truth. Their deter-
minations, so my colleague, Trial Examiner Leedom, has
put it, merely "stand in" for the facts. Reasonable men
may, therefore, differ, both with respect to particular
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credibility resolutions, and with respect to determinations
as to where the testimonial preponderance lies. Triers of
fact can but use their best judgment.
The present record, considered in totality, constrains
me to conclude - somewhat diffidently, perhaps, but with
requisite finality, nevertheless - that General Counsel's
presentation, with respect to this portion of his case, will
not support his factual contentions.
Statutory requirements, buttressed with judicial con-
currence, require the Board's Trial Examiners to detail
not only their factual findings and conclusions, but
likewise their reasons for reaching such findings and con-
clusions. General Counsel and Respondent herein, there-
fore, both have a right to know the thought processes
which have dictated my disposition of some patent record
contradictions. So far as they can be specified, some of
the factors which have molded my judgment may be
detailed as follows:
(a) General Counsel contends that Donald Lawler,
considered a member of Respondent's supervisory
hierachy for present purposes merely, revealed a patent
desire to testify consistently with Respondent's presumed
interest, rather than truthfully; he (General Counsel)
would have me reach this conclusion inter alia, because
Lawler had to be reminded, frequently, to raise his voice
so that he could be heard. This may have been true.
Credibility determinations, however, should not be based
merely upon some "rule of thumb" deduction that wit-
nesses who speak with diffidence necessarily do so
because of guilty knowledge that their testimony reflects
something less than the truth. Lawler, concededly a well-
qualified, perhaps even a gifted, machinist, did not strike
me as restrained by feelings of guilt; rather, he seemed
somewhat soft spoken and reticent when required to deal
with or discuss matters not really within the sphere of his
technical competence. Persons so disposed, within my
view, would hardly have been "likely" themselves to
commence or maintain a vigorous antiunion campaign
without some prior suggestion, or guidance from superi-
ors. Nothing in the present record, however, would war-
rant a definitive determination that Lawler's purported
threats of plant closure either paralleled, or derived from,
comparable statements or conduct chargeable to Re-
spondent's higher management.
(b) Plant Manager Goforth, generally, presented a wit-
ness chair picture of balance, relative sophistication, and
self-control. Though I find it conceivable, certainly, that
he may have been rendered "madder than hell" when
confronted with Complainant Union's petition, nothing
in the record beyond mere suspicion will support a factual
determination that he gave Lawler permission or
direction - verbally, or through the power of example - to
counterattack with threats of reprisal. The plant
manager's testimony, proffered without contradiction,
and not inherently lacking in persuasive power, reveals
that, when notified of Complainant Union's petition, he
promptly sought to confer with superiors. President
Churm advised him to seek knowledgeable help; he did so
without undue delay and was referred to legal counsel.
People who propose to proceed thus responsibly, when
confronted with challenging situations, would hardly be
likely to compromise themselves by concurrently sanc-
tioning or validating reckless pronouncements or reflex-
ive conduct bottomed upon their so-called "gut" reac-
tions.
(c) In short, Goforth's disciplined reaction to Com-
plainant Union's petition for certification persuades me,
with due regard for the logic of probability, that he would
not have been likely to sanction a counter campaign bot-
tomed largely upon blatant threats. And Lawler, so far as
I can tell - with due regard for both his witness chair
demeanor and his testimony's general tenor - would not
have been likely to mount such a campaign without
Goforth's direction or guidance.
(d) Further, General Counsel's presentation would
support a determination that Lawler's purported cam-
paign of threats had been directed to his fellow jour-
neymen machinists, Dick Singleton, Leonard Singleton,
and Bowden, solely. Nothing in the record, beyond mere
suspicion, would warrant a finding that such threats had
been voiced before other plant workers. General Counsel
presented but one more worker witness; this witness,
Richard Anderson, testified definitively, however, that
Lawler had made no prophecies of plant closure, or
threats that work would be subcontracted, to him directly
or within his presence. (To the contrary, Anderson
declared that he had heard definitive forecasts with
respect to plant closure, rather, from Dave Bowden and
both Singletons; they had charged Donald Lawler with
responsibility for making statements in that regard. An-
derson testified, during cross-examination, that he had
heard Respondent's journeymen machinists make such
statements several times.) Had Lawler, really, been
determined to forestall Complainant Union's majority
designation, with blatant threats of plant closure, he
would hardly have been likely to limit such comments to
three fellow journeymen. Their testimony, should it be
considered credible, would support a determination that
they had received his several dire forecasts with scepti-
cism. Surely, a determined prophet of doom, confronted
with disbelief, would have sought more suggestible
listeners. General Counsel, however, did not, perhaps
could not, proffer testimony that Respondent's lesser
skilled production and maintenance workers, generally,
were directly threatened; the record's silence in this
respect has contributed to my determination that the
testimony of Dick Singleton, Leonard Singleton, and
Bowden, with respect to the matter now in question, can-
not realistically be considered persuasive.
(e) General Counsel's witnesses proffered testimony
that Lawler, when prognosticating plant closure,
designated Friday, October 22, as the facility's final day.
Nothing, however, happened. Without some record
justification for a determination that Respondent had,
really, taken steps looking toward a shutdown for its Palo
Alto facility, within 1 week following the firm's receipt of
notice with respect to Complainant Union's petition,
General Counsel's presentation in this respect strains
credulity; I find it difficult to believe that Lawler would
have publicly professed personal knowledge regarding a
definitely set, not too distant, date for plant closure, while
necessarily aware that such a date's passage, without
event, would clearly reveal him to be a prophet not
worthy of honour.
(f) Respondent's further presentation with respect to
certain subsequent developments - proffered without
record contradiction - likewise tends to generate doubts
regarding General Counsel's case. Plant Manager
Goforth's testimony, given with documentary support,
warrants a determination that, on Sunday, November 14,
following Respondent's concurrence with the consent
election stipulation previously noted, both Singletons and
Bowden sought a conference at Goforth's home, during
which they first detailed various plant grievances, and
THE FLUOROCARBON COMPANY 637
finally mentioned, inter alia, Lawler's purported threats
of plant closure and discharge. Respondent's plant
manager, so his testimony shows, first requested details,
but none were provided. Then, Goforth professed doubt
that Lawler had really made the statements charged; he
did promise to check the various complaints made, in-
cluding Lawler's purported statements, but categorically
declared, then and there, that Respondent had no plans
whatever to close its Palo Alto facility, despite any state-
ments Lawler may have made. (On November 19,
thereafter, Goforth posted a bulletin - so the record
shows - wherein Respondent's workers were reassured
that the firm "will not close this plant or take any reprisals
against any employees" because of their union activity,
or because they might vote for union representation.
Respondent denied any purpose to "make any threats or
promises" calculated to induce workers to vote for or
against unionization. The workers were told, further, that
Lawler did not speak for Respondent's management,
which disclaimed responsibility for his views. The bul-
letin declared, "We specifically disavow anything which
Mr. Lawler said, or may have said, indicating, or suggest-
ing, directly or indirectly, that the management of this
Company would close the plant or take any reprisals
against any employees because of their union activity."
[Emphasis supplied.]) When previously proffered as
General Counsel's witnesses, neither Dick Singleton,
Leonard Singleton, nor Bowden had testified regarding
any November conference with Plant Manager Goforth,
or Respondent's subsequent "disavowal" bulletin. Nor
were they questioned, during cross-examination, with
respect to these matters. Following Respondent's defen-
sive presentation, however, they were not recalled for
rebuttal. With matters in this posture, then, two possible
conclusions might be considered warranted: (1) Respond-
ent's defensive presentation may have taken General
Counsel by surprise. If so, then the presumptive failure of
both Singletons and Bowden to mention their November
conference and Plant Manager Goforth's reaction previ-
ously - when they were queried during the Regional Of-
fice's precomplaint investigation - would surely warrant
present doubts with respect to their reliability; (2)
General Counsel may have been completely knowledgea-
ble with respect to the matter in question, but may have
chosen to refrain from anticipating Respondent's defense,
while reserving for possible rebuttal the testimony which
his three witnesses could have given. If so, his sub-
sequent failure to proffer such rebuttal testimony would
clearly seem to warrant a determination that Respond-
ent's defensive presentation, noted, substantially
matched the factual recollection of General Counsel's
witnesses, jointly and severally. Goforth's testimony,
therefore - with respect to the November conference in
question - may be taken as true. His prompt disclaimer of
knowledge regarding Lawler's purported statements, cou-
pled with his declared readiness to disavow such state-
ments should he find they were made, though clearly self-
serving, does provide some post hoc collateral support for
a determination that Lawler's purported threats were
never really made, let alone sanctioned; Goforth would
hardly have been quite so quick to cut the ground from
under a trusted subordinate, if that subordinate had, to his
knowledge, been making statements consistent with com-
pany policy.
(g) Reference has been made to Richard Anderson's
testimony that Dick Singleton, Leonard Singleton, and
Bowden had made repeated public references to Donald
Lawler's purported forecasts regarding plant closure. An-
derson's testimony in this respect which I credit,
dovetails with that which Lawler provided. I find it
strange that Complainant Union's principal protagonists
within Respondent's plant would, seemingly, have made
it their business to disseminate or publicize purported
statements reasonably calculated to dampen prounion
sentiment. Though reluctant to conclude that Respond-
ent's three journeymen machinists were committed to
some calculated ploy - whereby their fellow workers
could, for some reason, be persuaded that firm manage-
ment was desperately trying to forestall plant unioniza-
tion - I find their course of conduct markedly divergent
from conventional patterns of prounion behavior. Such a
departure from customary norms, certainly, might well
warrant some "suspicion" that Dick Singleton, Leonard
Singleton, and Bowden had deliberately charged Donald
Lawler with responsibility for particular threats, without
factual justification, so that, like strawmen, such pur-
ported threats could be subsequently demolished.
(h) General Counsel would have me discredit Plant
Manager Goforth's testimony, further, save where it
reflects some declaration against Respondent's interest.
The suggestion is proffered that Goforth's purported
recollections, regarding certain specified matters, reveal
patent self-contradiction; further, reference is made to
certain purported testimonial contradictions proffered by
several of Respondent's witnesses. Since the plant
manager's declarations, with respect to several further
questions raised within the complaint, may well be cru-
cial, some consideration of General Counsel's challenge
with respect to his credibility would seem required. The
record, however, fails to persuade me - when reviewed in
totality - that Goforth's testimony, with respect to
material matters, should be considered substantially com-
promised. (In his brief, General Counsel has cited one
purported self-contradiction by Respondent's plant
manager, within his testimony regarding a conversation
with one particular local subcontractor, Foster, whose
testimony will be reviewed, further, within this Decision;
considered within their total context, however, Goforth's
recitals in this regard do not, really, reveal self-contradic-
tion. Purportedly divergent testimony, proffered by
Respondent's plant manager and the firm's apprentice
machinist, Richard Anderson, with respect to whether
Goforth had "known" Anderson before the latter started
work, seems to reflect nothing more than semantic
quibbling; Anderson testified that he had not known
Goforth before he started work, though he had con-
cededly seen Respondent's plant manager, while Goforth
purportedly recollected that he had "met" Anderson
previously, but declared that he had not really had "much
opportunity to talk" with him. This testimonial diver-
gence, within my view, may be dismissed as without sig-
nificance. General Counsel, further, has cited testimony
by Goforth that Donald Lawler did not recommend his
brother, Edmun Lawler, for part-time hire; Lawler's
testimony seemingly reflects a concession that he did
"recommend" his brother's hire. Their purportedly diver-
gent testimony in this respect, however, reflects nothing
more, within my view, than their differing views with
respect to the proper connotations of the word "recom-
mend" when confronted with questions. Reference is
made, within General Counsel's brief, to Goforth's
testimony that Respondent subcontracted some work
because it had no Palo Alto facilities for such work;
General Counsel contends that Lawler's testimony
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reflects a direct contradiction. My record review, how-
ever, has persuaded me that Lawler's purported con-
tradiction was qualified ; though he testified - when
questioned with regard to work subcontracted with a par-
ticular subcontractor - that "all the work" sent out
"could" have been done by Respondent's Palo Alto
workers, he further stated that, "it would be much easier
to send it out" sometimes. When queried whether any
work "farmed out" during October-November 1965 was
work which had been done previously by Respondent's
Palo Alto workers, Lawler conceded that he did not really
know, but that he did not "think" such work had been
subcontracted. With matters in this posture, Lawler's
purported contradiction of Respondent's plant manager
can hardly be considered direct ; no real justification for
challenging Goforth's credibility can, within my view, be
found therein.)
My record review does show - consistently with
General Counsel's contention - that some testimony
proffered by Respondent 's President Churm did con-
tradict Goforth's recollection, with respect to certain
comments puportedly made by Churm during a preelec-
tion speech . Further , Respondent ' s plant manager did
testify, categorically, that Respondent's subcontracts
with Bay Area firms were all memorialized within the
firm 's "purchase order " records, and that Respondent,
throughout the period with which this case is concerned,
had let no subcontracts verbally; this testimony, so the
record conclusively shows, was not consistent with fact.
Due consideration , however , has convinced me that these
patent lapses merely reflect Goforth's possible over-
sights, or particularized witness chair failures of recollec-
tion, rather than a pattern of deliberate mendacity or con-
ceivably suspect "zeal" directed single mindedly toward
a denial of Respondent 's participation in proscribed con-
duct. General Counsel's contention , therefore, that
Goforth's testimony should be discredited, generally,
save where it reflects some declaration against Respond-
ent's interest, lacks persuasive weight.
With matters in this posture, General Counsel's several
Section 8 (a)(1) contentions , particularly those set forth
within paragraph VI, subparagraphs (c), (d), (e), and (f)
within his complaint , must be rejected ; they have not,
within my view, been sustained by credible testimony.
c. Reduction of working hours
General Counsel further contends that, whether or not
Plant Manager Goforth told Respondent's workers that
their hours of work would be changed, and that they
would no longer be permitted to work overtime hours,
because of their union activity , he did , indeed , reduce
regular hours and deprive Palo Alto production and main-
tenance workers of previously routine overtime work op-
portunities , because they had selected Complainant
Union as their collective -bargaining representative.
The record does show, consistently with General
Counsel 's contention , that regular hours of work for some
of Respondent's Palo Alto workers were significantly
reduced following Goforth's receipt of notice with
respect to Complainant Union' s petition . On Tuesday,
October 19, Respondent's machinists were told that their
working day would be limited to 8-1/2 hours, for a 42.50-
hour workweek. And, subsequently, their regular work-
ing hours were still further reduced. Respondent's payroll
record - for a period which began 1 month before Com-
plainant Union 's petition , and terminated some 8 weeks
following the consent-election date previously noted -
does reveal some significant fluctuations . The relevant
record may be summarized as follows:
Weeks Ending 9/18 - 10/16 (Five Weeks)
Name Classification Total Hours Average Weekly Hours
D. Bowden Machinist 292.50 58.50
D. Singleton Machinist 284.00 56.80
L. Singleton Machinist 273.50 54. 70
R. Anderson Apprentice 145.00 36.25
M. Mabie Apprentice 192.00 38.40
J. Castell Spray Coater 240. 00 48.00
J. Killingsworth Gasket Cutter 148.50 29.70
C. Eason Production Worker 203.00 40.60
R. Guarnera Production Worker 158.50 39.63
D. Wallen Shipping and 229.00 45.80
Receiving
* Divided by number of weeks worked as shown in brackets.
WeeksEnding 10/23 - 12/4 (Seven Weeks)
Name Classification Total ours° verage Weekly Hours
D. Bowden Machinist 278.50 1/ 37.79
D. Singleton Machinist 230.00 M 38.33
L. Singleton Machinist 72.00 36.00
J. Trujillo Machinist 237.00 797 39.50
D. Skaggs Machinist 109.00 T3/' * 36.33
R. Anderson Apprentice 272.00 38.86
M. Mabie Apprentice 265.50 37.93
J. Castell Spray Coater 282.00 777 40,30
J. Killingsworth Gasket Cutter 214.00 30.60
C. Eason Production Worker 272.00 38.86
R. Guarnera Production Worker 262.00 37.43
D. Wallen Shipping and 286.50 Does 40.93
Receiving
Divided by number of weeks worked as shown in brackets.
o ° 5 hours paid at overtime rate.
e o 0 9 hours paid at overtime rate.
THE FLUOROCARBON COMPANY 639
Within the 8-week period which followed the full work-
week within which the consent election was held Re-
spondent had some labor turnover; company payroll rec-
ords for this period, therefore, cannot be considered com-
pletely comparable with those previously summarized.
For whatever worth such data may have, however, some
references thereto should be made.
Following the week which ended Saturday, December
4, 1965, both Singletons resigned. D. Skaggs, machinist,
who had worked for 2 weeks before the consent-election
week, following his hire during the week which ended
November 20, likewise quit. Following the next work-
week which ended Saturday, December 11, machinist D.
Bowden left; the services of M. Mabie, apprentice
machinist, and J.Killingsworth, gasket cutter, were
likewise, for various reasons not here relevant, ter-
minated. (During the week which ended Saturday,
December 18, shown on Respondent's payroll record as
the week ending December 20, three new names ap-
peared on Respondent's payroll; the record is silent, how-
ever, with respect to precisely whom they replaced.)
During the week which ended December 11, Respond-
ent's two remaining machinists, Bowden and Trujillo,
did work 50 and 53 hours, respectively; their work hours
within the preceding December 4 week had totaled no
more than 40 hours each. Significant jumps in total hours
worked were likewise registered, during the December
11 workweek, by R. Anderson, apprentice machinist; J.
Castell, spray coater; J. Killingsworth, gasket cutter; and
D. Wallen, shipping and receiving clerk. Eason and Guar-
nera, production workers, recorded 40 hours, with no
change from their previous week; M. Mabie, apprentice
machinist, worked slightly fewer hours. For the 8-week
period which ended January 29, 1966, now under con-
sideration, without regard for the Christmas and New
Year's holiday weeks which could not be considered
representative, machinist Trujillo averaged 8.58 hours of
overtime per week; R. Anderson, apprentice machinist,
averaged 4.33 hours; J. Castell, spray coater, averaged
11.83 overtime hours per week; Eason and Guarnera,
production workers, merely averaged 1.33 hours. David
Wallen, Respondent's shipping and receiving clerk,
averaged 10.42 hours of overtime work per week.
Respondent's payroll record, within this 8-week period,
lists six additional workers with varying periods of ser-
vice. Some of them seem to have done overtime work
within several weeks; the record is silent , however, with
respect to their precise job tasks.
With matters in this posture, certain factual determina-
tions would seem to be warranted. During the 7-week
period between the filing of Complainant Union's petition
and the consent-election date, Respondent's three jour-
neymen machinists do seem to have suffered a significant
diminution of average weekly hours worked. (With
respect to Leonard Singleton, the record does show 44
hours worked during the week which ended October 23.
Thereafter, for a period of 5 weeks, however, Singleton
was not working due to illness. He did not return to
Respondent's plant until the week within which the con-
sent election was held; then he worked 28 hours, prior to
his resignation, previously noted. Trujillo, hired within
this period, began work during the first full week of
Leonard Singleton' s illness; determination would seem to
be warranted that he was hired as Singleton's replace-
ment. Skaggs, hired within the last 3 weeks of the period
now under consideration, worked less than 40 hours dur-
ing each of these weeks, but was paid for 5 hours, within
1 week, at Respondent's overtime rate.) The remainder
of Respondent's production crew - with R. Anderson, ap-
prentice machinist, and J. Killingsworth, gasket cutter,
the sole exceptions - suffered lesser reductions in work-
ing time.
General Counsel argues that Respondent, during this
period, denied Palo Alto workers their previously routine
overtime work opportunities because of their presump-
tive desire for union representation. Within his brief, by
way of support, General Counsel proffers two subsidiary
contentions: First, that Respondent's reduction of plant
working hours represented the "direct implementation"
of various threats previously made by Donald Lawler and
Respondent's plant manager. Secondly, that Respond-
ent's motive for thus reducing working hours may
likewise be deduced from the demonstrable fact that
hours were cut "immediately" following Goforth's
receipt of Board notice with respect to Complainant
Union's petition. Previously within this decision, how-
ever, General Counsel's presentation, with respect to
Respondent's purported "threats" voiced contemporane-
ously with the plant's reduction of regular working time,
has been found deficient. This leaves him, with respect to
the matter now under consideration, dependent merely
upon Respondent's purportedly questionable "timing"
when working hours were reduced. Certainly, Plant
Manager Goforth's several pronouncements with respect
to plant hours do seem peculiarly calculated, because of
their timing, to generate suspicion regarding their motiva-
tion. Were the record, therefore, otherwise silent - with
respect to Respondent's purported justification for
reduced overtime work - this factor, solely, might con-
ceivably suffice to carry the day for General Counsel's
contention. Respondent's witnesses have proffered credi-
ble, noncontradicted testimony, however, which would
warrant a countervailing determination that the Palo Alto
facility's workload was sufficiently reduced, conin-
cidentally, to justify the regular hours reduction. Plant
Manager Goforth testified, without contradiction, that a
substantial "work order" had just been completed, and
that plant backlog had declined. The record reflects cor-
roboration. During the 2-week period which preceded
October 16, four part-time workers in Respondent's hire
- Edmun Lawler, John Deckard, Lynn Clark, and Leslie
Wise - had worked a total of 144 hours. Deckard and
Lawler were laid off Wednesday, October 13; Clark and
Wise ceased work the next day. Plant Manager Goforth's
testimony warrants a determination that these men were
terminated because work on the project which had
required their services was then complete. (Respondent's
plant manager testified, credibly and without contradic-
tion, that the firm had received a large order from Link
Ordnance between September 22 and 24; that the order
had called for considerable material which the firm's
Anaheim plant had to provide, and much close tolerance
work; that work had started October 1; and that the last
fabrication required had been completed October 14.
Thereafter Respondent merely required the services of its
production workers, apprentices, and shipping clerk, to
prepare the order for shipment.)
Further, General Counsel's witness, David Bowden,
testified, inter alia, that, Donald Lawler had told him,
during a conversation within this period that completion
of Respondent's then current work backlog would require
some 470 man hours. Since Respondent's production and
shipping crew - exclusive of part-time workers and
Donald Lawler himself - then compassed no more than
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
10 workers, such a backlog would require little more than
1 week's work. For most manufacturing or processing
plants, I week's work in progress backlog would
represent a disturbingly low figure.
Dispassionately considered, these testimonial tidbits,
certainly, provide little more than a modicum of support
for Respondent's contention that plant working hours
were reduced, during the week which ended October 23,
for business reasons. Since General Counsel, however,
has proffered nothing more than grounds for surmise with
respect to Respondent's motivation, bottomed upon pur-
portedly questionable "timing" chargeable to Respond-
ent's plant manager, due regard for the record, con-
sidered in totality, constrains me to conclude that
General Counsel's case, with respect to the matter now
under consideration, has been successfully countered.
(Within his brief, General Counsel concedes that Re-
spondent had previously terminated the four "casual"
workers who were no longer needed because they had
completed their work on the firm's special project, but
contends that "this" had no bearing on the workload
of Respondent's regular workers. No record support
for this suggestion, however, can be found. Further,
General Counsel contends that following Complain-
ant Union's failure to win representative status Re-
spondent immediately reinstated overtime work. The
record does show that, within the first full workweek
following Complainant Union's election loss, Bow-
den and Trujillo, machinists, worked substantial over-
time hours. Conceivably, however, such overtime
work may have been required to make up for the work-
time Respondent lost, contemporaneously, through
the resignation of Skaggs and both Singletons. Respond-
ent's gasket cutter, spray coater, and shipping and
receiving clerk likewise did work a significant number of
overtime hours during the week in question. Though suf-
ficient, certainly, to generate suspicion, this particular cir-
cumstance, within my view, cannot alone build the
evidentiary preponderance required to sustain General
Counsel's contention.) In short, the present record, con-
sidered in totality, does contain "credible evidence that
lawful business reasons" justified Respondent's reduced
working hours, reasonably calculated to overcome
General Counsel's prima facie case, which I have found
bottomed upon nothing more than Goforth's questionable
"timing" when his decision to cut back hours was
proclaimed.
d. Subcontracts
(1) The issues
General Counsel contends, however, that Respond-
ent's management was able to reduce required overtime
work for workers within its Palo Alto facility, deliberate-
ly, through subcontracting work which they would nor-
mally have done. Specifically, within his brief, General
Counsel has declared:
It is undisputed that Respondent has traditionally
subcontracted work. However, t1' past practice is
not a defense to the subcontracting of work which
employees normally would have done but for their
union activities. And Respondent did subcontract
additional work for that unlawful reason. With
respect to this contention, probably the heart of
General Counsel's case, considerable testimony and
documentary material was proffered for the record.
Respondent's purchase order records, produced pur-
suant to subpena, which purportedly reflected what-
ever subcontracts plant management had negotiated
or placed, were challenged as less than complete.
Record supplementation calculated to provide
further data with respect to such "outside fabrica-
tion" work within the period with which this case is
concerned was, however, finally provided.
Considered in totality, the documentary and testimoni-
al record with respect to Respondent's subcontract prac-
tices does provide a somewhat confused picture. Certain
factual conclusions, however, would seem warranted.
Since late 1963, so Goforth's credible and noncon-
tradicted testimony shows, Respondent's Palo Alto plant
has, frequently, let contracts for so-called "outside" fabri-
cation work. Such contracts have been negotiated,
primarily, for one of four reasons:
1. Respondent's management believed that, for vari-
ous reasons , the work required to fill their customer's
order could not be timely completed within the Palo Alto
facility, before their customer 's requested delivery date.
2. While the work required could be completed
quickly enough within Respondent's Palo Alto plant,
some other firm could do it cheaper.
3. The Palo Alto facility currently lacked the proper
tools or machinery to perform the work required.
4. Palo Alto personnel lacked the technical knowledge
required to perform the work.
Concededly, the volume of business done by Respond-
ent with subcontractors, for these designated reasons,
has fluctuated. The fluctuations have not, however, fol-
lowed any set seasonal pattern . Respondent's purchase
order records though clearly not complete, with respect
to the firm's "outside" fabrication contracts, for reasons
to be noted, do reveal comparative monthly variations in
subcontracting, for 1965's last 9 months; they show the
following:
April $1,137 August $1,223
May 443* September 3,616
June 1,647 October 535
July 1,053 November 2,311
December $442
* Corrected figure. The compilation found in the
record is based upon a mistaken adding machine
tape.
The figure for September 1965 compasses a single $2,841
subcontract; without that, Respondent would have shown
but $775 worth of subcontracts for the month.
Basing his position, substantially, upon this compila-
tion, General Counsel contends that the dollar worth of
Respondent's various subcontracts placed during
November 1965 specifically - following the filing of
Complainant Union's petition - was approximately four
times greater than the dollar worth of company subcon-
tracts shown as placed within the months immediately
preceding and following, and double the dollar volume
figures shown for July and August, previously.
With due regard, however, for the record considered in
totality, post hoc, propter hoc conclusions, bottomed
merely upon demonstrable proof that Respondent placed
a greater dollar volume of subcontracts with "outside"
fabricators following hard upon Complainant Union's
petition, would be simplistic. Respondent's presentation,
primarily through Plant Manager Goforth's testimony,
does reflect a conglomerate of proffered business reasons
THE FLUOROCARBON COMPANY 641
for practically every subcontract, placed between Oc-
tober 18 and November 30 specifically, noted or
discussed within the present record. The validity of these
purported justifications for challenged conduct must be
determined . clearly, before any conclusion consistent
with General Counsel 's contention , previously noted, can
be considered warranted.
(2) The subcontracts reviewed
Between October 18 and November 30, 1965, so the
record shows , Respondent' s management was responsi-
ble for 18 transactions purportedly concerned with so-
called "outside" fabrication work. Seventeen of these
were memorialized within the firm's purchase order
records; only one seems to have been consummated pur-
suant to verbal commitments solely. (When requested to
provide summary data regarding its so-called "outside
fabrication" subcontracts , Respondent cited no more
than 10 purchase orders, within the period with which we
are now concerned, which purportedly reflected such
transactions. These compassed two October subcon-
tracts, which cost the respondent firm $403, plus eight
November subcontracts worth $2,311 together. Within
the period now under consideration , therefore, Respon-,
dent conceded $1,714 worth of relevant subcontracts.
While Plant Manager Goforth held the witness chair,
however, eight more transactions - seven of them
memorialized by purchase orders - were noted and
discussed . For present purposes, some consideration of
these further transactions, together with those which
company management had previously conceded, would
certainly seem required.)
Respondent 's first purchase orders revealed by the
record , following the firm 's receipt of notice with respect
to Complainant Union's petition, were dated October 18;
two of these were reviewed for record purposes . The first
- designated P.O. 1373, specifically - concerned a United
Air Lines purchase request for 400 B/U (Back Up) rings.
A purchase order was written, so the record shows,
directed to Respondent's Anaheim, California, plant; that
plant was requested to ship the plastic rings in question
directly to United Air Lines' San Francisco maintenance
base. Regarding this transaction , together with others of
similar nature , Respondent 's plant manager proffered
credible, noncontradicted, testimony as follows: That
Respondent and United Air Lines have , for some time,
had a so-called "blanket" contract, pursuant to which
Respondent regularly supplies desired quantities of such
B/U rings when requested; that Respondent 's Palo Alto
facility, though possessed of machinery capable of
producing standard sized B/U rings, has never devoted its
machines to large scale production runs involving such
products, since the firm's Anaheim plant currently con-
tains a specialized department fully tooled and ready to
manufacture such rings, together with like products, using
production line techniques, that Respondent's Anaheim
plant routinely makes bulk shipments of standard sized
rings, produced to satisfy United Air Lines' blanket con-
tract, routed through the Palo Alto facility, where they
are packaged separately, sealed, marked, and forwarded
to Respondent's customer; that United Air Lines, some-
time during August or September 1965 specifically,
changed its B/U ring specifications; that, since then, this
customer has presented numerous "special rush"
requests for such rings, beyond its so-called blanket con-
tract requirements, which it wished shipped in bulk
without separate packaging; that such "special rush"
requests, when satisfied from Respondent's Anaheim
production runs or warehouse stock, have been routinely
shipped directly, without being forwarded through the
firm's Palo Alto facility. Respondent's management, so
Goforth testified, does not consider that these "special
rush" shipments really reflect "outside" fabrication re-
lated to Palo Alto's work in progress, since they are not
concerned with company sales stock which the firm's
Palo Alto facility would conventionally produce. The
shipment of these B/U rings directly to Respondent's
customer, so the record shows, would merely bypass one
Palo Alto production worker, Catherine Eason, who
regularly packages such rings separately, seals them, and
marks them when they are supplied pursuant to United
Air Lines' blanket contract.
Within the period with which we are concerned,
Respondent's Palo Alto management concededly
dispatched several purchase orders covering B/U rings
for United's maintenance base to Anaheim; most of these
required direct shipment (Purchase orders calling for
direct shipments were written, so the record shows, on
October 19 (P.O. 1384), and October 27 (P.O. 1427).
Concurrently, two more purchase orders were
dispatched, pursuant to United Air Lines' blanket con-
tract; these called for B/U rings which were to be routed
through the firm's Palo Alto plant for separate packaging
prior to shipment. Such orders were written and for-
warded on October 25 (P.O. 1406), and November I
(P.O. 1430).)
During cross-examination, General Counsel
questioned Plant Manager Goforth regarding P.O. 1381,
likewise written October 18 and dispatched to Porter
Seal; the order seemingly covered a product, specifically
"0" rings, which Respondent's Palo Alto facility could
produce. Goforth credibly testified, however, that the
particular rings requested were rubber rings, which
Respondent neither processed nor machined.
On October 19 Respondent placed a purchase order
(P O. 1388) with R. J. Foster, proprietor of a nearby con-
tract machine shop, the order called for 12 nylon tips
(pulleys) for a designated customer. While a witness
Goforth conceded that Respondent's Palo Alto plant had
machinery which could have been used to produce these
pulleys; he declared, however, that Foster had previously
produced the parts in question, pursuant to purchase
order, more cheaply than Respondent could have
produced them. (Respondent's previous subcontract for
this work (P.O. 9510, March 26, 1965) had called for 36
pieces.) The plant manager's testimony in this respect
was corroborated by Foster, who recalled that Donald
Lawler, following his completion of Respondent's March
26 order, had requested him to retain the tools and fix-
tures which he had used, since the purchase would be re-
peated.
The next subcontract reviewed for the record was
presumably, another subcontract with Foster, verbally
negotiated sometime before the period with which we are
concerned and substantially completed before Complai-
nant Union's petition was filed, Foster's bill for the work,
however, shows an October 21 date. With respect to this
matter, testimony proffered by both Goforth and Foster,
when synthesized, reveals: That Respondent had
received an order from Philco Corporation which com-
passed, inter alia, certain parts designated , alternatively,
as filter barriers or "waveguide" parts; that Plant
Manager Goforth had first, back on July 6, 1965, specifi-
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cally, subcontracted the production of these parts with
American Polytherm, a Sacramento firm; that the firm in
question had met with several difficulties; that Respond-
ent had thereafter, following verbal negotiations, given
Foster a so-called "trial" order sometime during August
1965, for two pieces; that Foster had successfully
machined both pieces, for which Respondent had been
billed August 30; that subsequently, sometime early in
September, Foster had received a verbalorder covering
49 further pieces; that these were machined and delivered
to Respondent in several small lots, on various dates
between September 11 and October 18; that Goforth,
personally, visited Foster's shop on October 18 to pick
up the last few pieces; that Foster's subsequent October
21 bill for the project reflected $648.96 total charges; but
that Respondent's manager subsequently protested these
charges and proffered $475.50 in full settlement. This
transaction, though presumably completed within the
period with which we are presently concerned, clearly
derived from prior negotiations bottomed solely upon
business considerations.
On October 26 Respondent wrote P.O. 1405 to John
Sutter, properietor of another contract machine shop;
Respondent's order called for 768 teflon bushings. When
querried with respect to this "outside" fabrication pro-
ject, Goforth declared that subcontracting was sought
because the project was relatively large, and because the
pieces involved could not be machined conveniently
within Respondent's Palo Alto plant. (Specifically,
Respondent's plant manager testified that the bushings
required had to be machined for subsequent bonding to
stainless steel bushing retainers, for a designated
customer, Jeffry Manufacturing Company; he stated that
Respondent's lathes could not have produced bushings
with the required outside diameter dimension, save with
considerable material loss.) While a witness, Sutter sub-
stantially corroborated Goforth's testimony. Following
his brief description of Respondent's bushing require-
ments, coupled with references to the plastic material
which the firm provided, Sutter confided that he, too, had
found himself constrained to cut the material very care-
fully, to minimize waste, but that he had been able to do
so. According to Sutter, this was his first project received
from Respondent which had not been solicited. Donald
Lawler had telephoned him October 24 or 25, with a
message that Respondent needed these bushings quickly;
Sutter had been told that Respondent could not possibly
perform the required machine work within its Palo Alto
facility, since the plant did a lot of short projects and
could not afford to tie up machinery and tools for long
production runs. No other reason for Respondent's desire
to subcontract was stated. According to Sutter's first
recollection, Respondent's situation regarding overtime
work was not discussed; the machine shop proprietor did,
however, finally declare his "belief ' that Lawler had
made some statement, never particularized, that Respond-
ent's men were currently working overtime hours. When
Sutter, later, billed Respondent for this subcontract
(November 28, 1965), the firm was charged for 796
bushings. The machine shop proprietor testified, how-
ever, that Respondent's management had verbally
authorized his production of more bushings to make up
for losses in production when the plastic bushings
machined by him were bonded to their stainless steel
retainers within Respondent's plant oven. Sutter's recol-
lection in this respect, which General Counsel had sol-
icited, stands without record contradiction.
Respondent's purchase order record shows that P.O.
1440 was drawn November 3, directed to the firm's
Anaheim plant, for 1,000 B/U rings required to fill a Vic-
tor Equipment Company order. According to Goforth,
Victor's order was thus referred because standard sized
B/U rings, which the Anaheim plant would already have
in stock, were sought; Respondent's plant manager con-
ceded that - had some nonstandard, custom-made B/U
rings been sought- the firm's Palo Alto facility might well
have machined them. On November 8, 1965, Respond-
ent wrote a purchase order (P.O. 1463) for National
Vulcanized Fiber; the firm requested this subcontractor
to provide a quantity of stamped washers. Plant Manager
Goforth's testimony, proffered and received without con-
tradiction, warrants a determination, however, that the
designated subcontractor's service was sought because it
could stamp washers within the tolerances which
Respondent's customer (Beckman Industries) required,
which the Palo Alto facility could not do.
The following day, November 9, Respondent wrote
P.O. 1465, directed to Miller Gasket Company, for
15,000 gaskets. The testimony of Respondent's plant
manager, proffered and received without contradiction,
reveals that Respondent's Palo Alto plant had previously
tried to cut these gaskets with a punch press, but had
discovered that the job could not be handled economi-
cally. On November 10, 1965, Respondent subcon-
tracted with the Chase Company (P.O. 1470) for some
spray coating work; the record reflects Goforth's
testimony, proffered without challenge, that the particular
piece to be coated was too large for Respondent's Palo
Alto plant to treat within its drying oven, following the
spray coating operation.
Respondent's purchase order records, further, reflect
a large subcontract for Teflon "ball seats" given John
Sutter (P.O. 1510) on November 18; substantial
testimony was proffered with respect to this project. The
record shows that Respondent, back on August 13, had
written P.O. 1099 directed to Sutter, covering a small
quantity (100) of Teflon "ball seats" described as
unusual, which a firm designated "Astro-Tech" required.
Respondent's Palo Alto plant, so Goforth testified, did
not then possess the particular machine tool required for
this project. The plant manager declared that a radius
turning tool was needed; Sutter, so far as Respondent's
management knew, had the requisite tool, and could do
the work quickly, inexpensively, and accurately. While a
witness, Sutter declared that Donald Lawler had
telephoned him with a request that he take the project;
thereafter, he had discussed price, generally, with
Respondent's office manager. Following their discussion,
so Sutter testified, Respondent's P.O. 1099 had been
written for a test run, which the machine shop proprietor
had deemed requisite before he could give a firm price
quotation. Pursuant to Respondent's order, then, Sutter
machined 100 Teflon ball seats and delivered them. When
his work proved satisfactory, so the record shows,
Respondent's order No. 1510, previously noted, was
written; the subcontract called for 1092 ball seats.
Sutter's testimony with respect thereto, proffered without
contradiction, reveals that Respondent's purchase order
represented a long-run project which Respondent's
management had discussed with him before his August
test run, previously noted. The machine shop proprietor
testified, further, that he had been required to prepare a
special machine tool fixture for the project. (Sutter's sub-
sequent December 27 bill for the project sought payment
THE FLUOROCARBON COMPANY 643
for 1834 ball seats produced; 929 had been machined
with one dimension, while 905 were slightly larger. When
queried regarding his justification for such a billing, Sutter
could not recall whether Respondent's management had
authorized his excess production - beyond the specific
1092 ball seats which Respondent's original purchase
order had requested - through some mere verbal direction
or some subsequent purchase order; he testified, how-
ever, that his machine run had been extended - pursuant
to Respondent's request - to compensate for real or
potential production losses. The record shows that
Respondent paid his bill as rendered.)
On November 19, Respondent's management wrote a
purchase order (P.O. 1516) directed to the firm's
Anaheim plant, covering 140 fluorogold slide bearing ele-
ments. Plant Manager Goforth, while a witness, testified
that this order - which required the most costly plastic
material in Respondent's stock - concerned a rush project
for Shell Oil Company; conceding that his Palo Alto plant
could have done the work required, Respondent's plant
manager nevertheless declared, credibly and without con-
tradiction, that Anaheim had both machinery and materi-
als ready to meet Shell's rush requirement, while the Palo
Alto plant would have had to requisition the material and
wait for delivery before machine production operations
could begin. The decision to refer the complete order to
Respondent's Anaheim plant, therefore, was, so Goforth
testified, nothing more than a business decision calcu-
lated to satisfy the firm's customer.
Substantially similar considerations seem to have
motivated Respondent's November 24 purchase order
(P.O. 1530); this requisition, directed to the firm's
Anaheim plant, called for Teflon "V" rings for a
customer designated as Allied Engineering. Conceding
that Palo Alto facilities could have been used, Goforth
testified once more, credibly and without contradiction,
that: (1) The customer's order called for rush delivery;
and (2) the plastic material required was not currently
stocked by Palo Alto in proper sizes. Since preliminary
material shipments from Anaheim would necessarily
have meant delay, Allied Engineering's entire project was
referred there.
This review, thus far, has covered Respondent's
complete roster of subcontracts, save two, placed through
purchase orders or verbally negotiated within the period
with which we are now concerned. Respondent's
purchase order record shows a November 12 requisition
(P.O. 1481) directed to Anaheim, which covered $224
worth of work. Further, Respondent's management wrote
a purchase order November 30 (P.O. 1560) directed to
Weichart Manufacturing Company for $66 worth of so-
called "outside" fabrication. (The present record contains
no data with respect to the nature of the work required,
connected with these two purported transactions. So far
as I can determine, however, the failure of counsel to can-
vass them reflects nothing more than mere oversight or
possible trial fatigue. The record's development with
respect to Respondent's subcontract practices was
somewhat disconnected. No derogatory conclusion,
prejudicial to either party, should be drawn, therefore,
from the record's silence regarding these two subcon-
tracts.) These projects, judged by their dollar worth sole-
ly, seem to have been relatively small. Assuming,
arguendo, that they may have covered work which could
have been done within Respondent's Palo Alto facility,
determination should still not be considered warranted
that they reflect or constitute significant deviations from
Respondent's normal practice, with regard to subcon-
tracting, deliberately calculated to reduce substantially
the volume of work available for the firm's Palo Alto
production and maintenance workers.
(3) Analysis and conclusions
With matters standing thus, Respondent takes a
double-barrelled defensive posture. First, company coun-
sel points to Respondent's previously well-established
practice of subcontracting Palo Alto plant work to so-
called "outside" fabricators for legitimate business
reasons, such as presumptive inability to handle particu-
lar projects (because of equipment or "know-how" defi-
ciencies), lack of time, higher probable costs, lack of spe-
cialized materials, or what counsel has designated "over-
all feasibility" when management considered the desira-
bility of subcontracting with due regard for the complete
project's scope. (Further, Respondent's counsel has cited
testimony and documentary material which would war-
rant a determination that Respondent, pursuant to policy
and practice, has repeatedly referred orders received in
Palo Alto, for certain standard sized stock parts and
materials, to the firm's Anaheim, California, plant.)
Relying upon these considerations, Respondent con-
tends that General Counsel has failed to prove, through
the requisite testimonial preponderance, that Respond-
ent's management-following its receipt of notice with
respect to Complainant Union's petition - subcontracted
work previously done by workers within the Palo Alto
plant. Secondly, Respondent contends that - with due re-
gard for the proven circumstances which motivated par-
ticular subcontracts within the period with which we are
now concerned - no sufficient showing has been made
that Respondent's management stepped up its volume of
subcontracts because Palo Alto plant workers had
selected or designated Complainant Union their bargain-
ing representative.
Analysis
The record, within my view, persuasively supports
Respondent's position that General Counsel's presenta-
tion - though sufficient to provide prima facie support for
his contentions - has successfully been countered.
(a) Within General Counsel's brief, the contention is
made that Respondent's Palo Alto management "subcon-
tracted an abnormal amount of its work" during
November 1965, while Complainant Union's petition
was pending. And Respondent's purchase order record
does show, inter alia, that work worth $1,316 was con-
cedely "subcontracted" with the firm's Anaheim plant,
within the designated period. General Counsel would
contrast this record with that shown for August, Sep-
tember, and October 1965, before Complainant Union's
petition, and December 1965, following the consent elec-
tion date; during these months no comparable fabrication
projects within the Palo Alto plant's capability were
referred. General Counsel's consolidated figure, how-
ever, derives from but three purported subcontracts
(P.O's 1481, 1516, and 1530). Respondent's claimed
"business" reasons for subcontracting the two biggest
projects were fully detailed. General Counsel could
proffer no specific countervailing testimony, reasonably
calculated to persuade a trier of fact that Plant Manager
Goforth's claimed justification - with respect to each of
these two "subcontract" referrals - reflects post facto
336-845 0 - 70 - 42
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contrivance. (True, within his brief General Counsel does
challenge Goforth's credibility generally; previously
within this decision, however, that challenge, so far as it
purports to suggest that Goforth's testimony should be
disregarded completely, save where corroborated, has
been rejected.) Further, with respect to General Coun-
sel's contention, Respondent' s total subcontract figures,
previously noted, do show a significant rise for so-called
"outside" fabrication commitments within the period
with which we are now concerned. When Plant Manager
Goforth's proffered business justifications, which he sub-
mitted in circumstantial detail for nearly all of these, can
be considered, however, suspicions generated with
respect to Respondent's possibly proscribed motivation
must be discarded.
Mere temporal coincidence-the fact that Respond-
ent's reliance upon subcontracts, measured in terms of
dollar volume, grew significantly following the firm's
receipt of notice with respect to Complainant Union's
petition - cannot, solely, sustain General Counsel's case.
Yet, without testimony or documentary proof reasonably
calculated to vitiate the persuasive thrust of Goforth's
recitals, such temporal coincidence seems to constitute
General Counsel's principal reliance. (Within his brief,
General Counsel suggests that "there may well have
been" some substantial volume of further subcontracting,
within the period with which we are now concerned, pur-
suant to verbal negotiations . Presumably, General Coun-
sel would contend that such further subcontracts - had
they been revealed - could not have been justified by
Respondent's plant manager. This suggestion, which I
propose to consider further, rests, however, upon nothing
more than suspicion .) More particularly, General Coun-
sel, within his brief, cites testimonial and documentary
proof that - between August 13 and October 13, 1965,
before Complainant Union filed its petition - subcon-
tractor John Sutter performed $135.34 worth of work for
Respondent, pursuant to two purchase orders (P.O.'s
1098 and 1099, plus two further orders presumably ver-
bal. Then, General Counsel notes that Sutter, following
Complainant Union's petition, received Respondent's
P.O. 1405 for 768 Teflon bushings, and P.O. 1510 for
1,092 Teflon ball seats; with respect to both subcon-
tracts, Sutter did concededly produce and bill Respond-
ent for greater quantities without having received
purchase orders from company management. (Within his
brief, General Counsel claims, with respect to the first
project noted, that Sutter testified he was told by Donald
Lawler P.O. 1405 had been written because Respond-
ent's Palo Alto workers were currently working over-
time and Respondent was too busy to get the work done.
However, leaving aside, for the moment, all questions as
to whether Lawler's comments to a contract machine
shop proprietor, assuming they were made, should be
considered truthful, or binding on Respondent for present
purposes, Sutter's recital cannot properly be construed as
forthright testimony that Lawler really made the state-
ment charged. When summoned as General Counsel's
witness, Sutter first testified that Donald Lawler had said
the subcontract was given him because Respondent had
to keep its machines free to do many "small items"
without "tying up" equipment for long runs; when
requested, thereafter, to state whether Lawler had men-
tioned any other reason for his receipt of the purchase
order now under consideration, the machine shop
proprietor thrice responded negatively. Only when
thereafter prompted, with a question as to whether
Lawler had "discussed" the item of overtime, did Sutter
finally proffer a positive response ; then he testified that
the subject was not discussed, but that he believed
Lawler had mention the fact that Respondent's men were
working overtime. Such vague testimony, belatedly
proffered in response to specifically leading questions.
could not sustain a factual determination that Respond-
ent's plant manager, while a witness, had really mis-
represented his firm' s reason for a particular subcon-
tract.) General Counsel' s comment , however, that Sutter
performed $1,005.55 worth of work for Respondent dur-
ing the 6-week period with which this case is primarily
concerned - proffered to support a deduction that such
work was really subcontracted to punish the firm's work-
ers for their presumptive support of Complainant Union
herein - disregards record testimony, received without
contradiction, the P.O. 1405 covered a project which
Respondent's plant machinery could not handle effi-
ciently, and that P.O. 1510 compassed a project with
respect to which Respondent's management had first
sought Sutter's help some 3 months previously. Sutter,
himself, did testify that, with respect to these projects, he
produced more bushings and ball seats than Respondent's
management had initially requisitioned; the record, how-
ever, further reveals testimony that his supplementary
production had been authorized pursuant to legitimate
business considerations. General Counsel has proffered
nothing reasonably calculated to vitiate the probative
worth of Sutter's recital. (Leonard Singleton's prior
testimony, proffered in response to a leading question,
that Respondent's Palo Alto workers "ordinarily" pro-
duced ball seats within their plant, cannot vitiate the
probative thrust of Goforth's testimony that P.O. 1510
concerned some "unusual" ball seats, production of
which required a radius turning tool Respondent did not
then possess. Nor can it be considered sufficient to
counteract Sutter's testimony-proffered as Gen-
eral Counsel's witness in rebuttal-that the purchase
order in question covered a so-called "long run" for
which he had been required to make a special fixture.)
With matters in this posture, General Counsel's con-
tention that Sutter's seeming rush of work really reflected
Respondent's purpose to subcontract tasks "previously
done" within its Palo Alto plant, cannot be considered
sustained.
(b) Within his brief, General Counsel makes much of
Plant Manager Goforth's initial declarations that Re-
spondent routinely memorialized its contracts for "out-
side" fabrication with written purchase orders; Goforth's
testimony in this regard General Counsel has designated
"entirely" false, basing his contention upon certain sub-
sequent testimonial concessions , coupled with a stipula-
tion, further testimony and documentary material which
would fully warrant a determination that Respondent did,
indeed, place a number of subcontracts verbally. With
this point made, General Counsel's brief continues:
However, it is important to note that Respondent
never did produce at the hearing all the documents
regarding Respondent's subcontracting . Respondent
did not produce invoices from the subcontracting
firms although requested to do so on several occa-
sions. [Emphasis supplied.]
From the fact that Respondent did not produce invoices
from subcontractors, coupled with Goforth's failure to
produce any data probative of verbal subcontracts prior
to General Counsel's testimonial demonstration that
some company subcontracts had been placed through
THE FLUOROCARBON COMPANY ' 645
verbal negotiations , this trier of fact has been requested
to deduce that the present record does not yet contain all
the significant documents with respect to Respondent's
subcontract practices within a relevant period . Further,
I have been asked to conclude that:
As Respondent did not come forward with the
invoices of its other subcontractors , it should be in-
ferred that it failed to do so because production of
such documents would have been adverse to its in-
terests. [Emphasis supplied.]
General Counsel submits that, had Respondent produced
all documents subpenaed , further proof of Respondent's
unlawful subcontracting would "probably" have been
shown.
Such a conjectural line of reasoning , however , merely
reflects the classic "inference upon inference" which
triers of fact have traditionally been judicially directed to
shun . From Respondent 's initial failure to produce, when
first requested:
All records and contracts of The Fluororcarbon
Company for the period April 1, 1965 through
March 31, 1966, pertaining to its Palo Alto, Califor-
nia facility, showing the names and addresses of all
subcontractors ... ,
this trier of fact has been requested to deduce that further
documents relevant to supplementary or different "out-
side" fabrication work - beyond the documents even-
tually produced or summarized for review within the
present record- remain , still undisclosed, within Re-
spondent' s possession . Then, with this deduction for
predicate, I am requested , further, to deduce that
Respondent's failure to come forward with such pre-
sumptively still undisclosed documents derived from
management 's knowledge that their production would be
prejudicial to the firm' s defense . The logic of this posi-
tion, within my view, can hardly be considered com-
pelling. (Conceivably, General Counsel may have wished
to suggest that, had Respondent produced those particu-
lar invoices received from subcontractors which
"matched" the firm 's purchase orders written within a
relevant period, comparisons made between such
purchase orders and resultant billings might show that
Respondent 's management had subsequently , requested
many subcontractors, verbally, to produce greater quanti-
ties of particular products than were called for when their
purchase orders were first written . Concededly, Sutter's
purchase orders, within the period with which we are con-
cerned, were thus supplemented . General Counsel's con-
tention that similar supplementation may have taken
place with respect to some of Respondent 's further sub-
contracts , however, necessarily rests upon nothing more
than supposition.) Respondent's failure to produce "all"
company records, with respect to so-called "outside"
fabrication work - when purportedly complying with
General Counsel's subpena - merits characterization as
regrettable; the firm's lapse, however, can hardly be con-
sidered sufficiently significant to vitiate its defensive
posture. Through a stipulation and several rebuttal wit-
nesses - who buttressed their testimony with documenta-
ry material - General Counsel has, successfully, demon-
strated that Respondent's management did place some
"outside" fabrication orders verbally, within a 3-year
period, without memorializing them through written
purchase orders subsequently. No more than one such
conceded order however, was worked within the 6-week
period with which this case is directly concerned. (Foster,
who handled the project in question, had been contacted
verbally sometime early in September 1965. The record
shows that his work thereon was completed between Sep-
tember 11 and October 18 ; though Respondent did
receive a bill for Foster's services dated October 21, that
bill clearly covered a total transaction which Respond-
ent's management had initiated some time previously,
and which Foster had substantially completed before
Plant Manager Goforth received any notice regarding
Complainant Union's petition.) Further verbal "subcon-
tracts" placed by Respondent ' s management with both
Foster and Sutter - plus a firm designated Minimac
herein - have been conceded. The record, however,
reveals none which could be considered even remotely
relevant to General Counsel's present contention.
(Sutter's testimony does show two projects concerned
with "plexiglass tank traps" subcontracted by Respond-
ent's management sometime within the September-Oc-
tober period; Respondent was, however, billed for these
fabrication projects on October 8 and 13, respectively.
Respondent 's final complilation with respect to Foster's
work, which General Counsel has not challenged, shows,
further, that during 1963 he worked for the firm on two
occasions ; both of these subcontracts , however, were
memorialized by purchase orders. No subcontracts were
placed with him during the following calendar year. Dur-
ing 1965 Foster handled nine projects; six of these were
subcontracted verbally. Foster's two subcontracts con-
cerned with Philco Corporation's waveguide parts or
filter barrier have previously been noted; his four remain-
ing verbal subcontracts predated these. Regarding
Minimac, Respondent proffered a compilation which I
received for the record pursuant to stipulation; that com-
pilation shows:
Purchase
Year Order Verbal Total
1-963 1 0 $54.00
1964 9 18 $2,741.00
1965 3 0 $1,036.00
One Foster subcontract completed in May 1965, together
with two Minimac subcontracts placed in June 1965, we
may note, were concerned with Teflon ball seats.) With
matters in this posture , General Counsel cannot, within
my view, persuasively contend, now, that Respondent's
presumptive failure to produce every record which it pos-
sessed relative to subcontracts , within the 12-month
period which his supena`specified , justifies a conclusion,
bottomed upon nothing more than supposition , that their
production would have undercut the firm's defense.
(c) General Counsel suggests that Respondent's
defensive presentation with respect to the matter of sub-
contracts should be discounted because the firm's plant
manager - when he visited Foster's machine shop on Oc-
tober 18 to take delivery of some Philco Corporation
filter barriers - had, during a conversation with the latter,
"expressly admitted" that Respondent was doing more
subcontracting and reducing overtime work because its
Palo Alto plant workers had demonstrated their presump-
tive desire for union representation.
The record fairly construed, however, will not sustain
General Counsel's broad contention. Setting aside, for
the moment , certain questions regarding Foster 's credi-
bility - which , with respect to Plant Manager Goforth's
purported remarks, was sharply challenged - the machine
shop contractor 's testimony, taken at face value, will
simply not bear the construction which General Counsel
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would have placed thereon. During General Counsel's
direct examination, Foster, when questioned regarding
what Respondent's plant manager had said, reported:
The best that I can recall, Bob had said we should -
well, more or less be set for more work, like that
which I am always eager for. Well, he was in the
throes, or they were going to organize the shop, some
darn thing. I don't recall if this was actually said, he
was going to slice off the overtime. It would mean an
actual influx in work for us, because up until this time
we had a swell relationship. . . . That is it. I can't re-
call every word, you know. This is six months ago.
This is the gist of it .... As I recall, which it might
be accurate and it might not, he was going to start,
in essence, farming out more work than he had be-
fore .... This was it. I was in a hurry. We stood in
the shop and shot the breeze like we always do. That
is it. [Emphasis supplied.]
When reminded, moments later, that he (Foster) had said
"something about organizing" the machine shop owner
recalled that Respondent's plant manager had "men-
tioned" they were in the throes of having a vote "or some
darn thing" related to unionization.
When queried further, during cross-examination by
Respondent's counsel, Foster conceded that he could
not, honestly, recall the plant manager's actual words, but
that the "overall thing" concerned his (Goforth's) query
regarding the state of Foster's shop load. (Foster, then,
volunteered a statement that many buyers request infor-
mation regarding the state of a contract shop's workload,
before contracting work, since the shop's volume of work
in progress would significantly control their project's
possible completion date, and thus determine their ability
to meet their own dependent delivery or production
schedules.) The subcontractor, so he testified, reported
that his shop load was "O.K." commenting that he could
handle some more work. Questioned, then, regarding
their further conversation, Foster expressed his "belief'
that Goforth had said he was "slicing off overtime" and
that such action would mean more of Respondent's work
would be sent out. The subcontractor conceded, how-
ever, that his testimony in this respect reflected what he
"figured" Goforth had meant; that the phrase "slicing off
overtime" was his (Foster's) phrase; that his testimony
regarding the phrase should not be taken as reporting
what Goforth had "actually" said. When requested to
provide his best recollection with respect to what
Respondent's plant manager had said, either in words or
substance, without giving his personal interpretation of
what such remarks implied, or what they meant, Foster
testified:
I can't recall any actual words, per se .... This is
[?] what exactly was said. Well, what do you say -
well, they were slicing off the overtime, and he was
basically asking how my shop load was. I said - I
didn't say, "I am slow," or "swamped." I am always
after work. I said, "It will fit in our schedule fine, I
can always handle more machine work." Then we
got started, just shooting the breeze, like a guy does.
He said they were having some union trouble. Not
necessarily related to this [his query regarding
Foster's workload] either. He didn't mention this. .
.. Then he said he was in the throes of organizing
something. I don't actually know what. I don't get
into other people's affairs. [Emphasis supplied.]
According to Foster, Goforth had not mentioned Com-
plainant Union's name; he could not recall whether the
Board was mentioned. When Respondent's counsel asked
whether Goforth had said that a union was trying to or-
ganize his plant, that they might try to organize Foster's
plant, and that he might want to know about it, Foster
declared, merely, that he could not recall such comments,
and did not know.
Summoned in surrebuttal, Plant Manager Goforth con-
ceded a conversation with Foster, within the week which
followed his receipt of notice regarding Complainant
Union's petition. His recollection with respect to its con-
tent varied somewhat from Foster's, however. Goforth's
testimony synthesized from his recitals in both direct and
cross-examination considered together may be set forth
as follows:
. I mentioned to him I had received this petition
[from the NLRB ], [that we would have an election],
and I knew from previous conversations somewhere
he had indicated that he did not have a union shop,
and he had no interest in dealing with a union. I told
him that we had received a petition, that I felt we
were a small shop much like his, and perhaps he
might be alerted to the fact there was a large or-
ganizational activity taking place on the Peninsula.
Knowing his feeling about the union, I felt he would
want to know about it. He said he did, and he didn't
think his employees would have any interest in the
union. He certainly appreciated the information.
Goforth categorically denied that Foster had been asked
whether he could handle more work for Respondent firm;
he likewise denied telling Foster that Respondent wanted
him to "get set" to handle more work. Further, he denied
telling Foster that "because of union activity" within
Respondent's plant he (Goforth) planned to eliminate
overtime work, or that Respondent was going to "farm
out" all, some or most of its work, thereafter.
With matters in this posture, General Counsel's sug-
gestion - that Respondent's plant manager, during his
conversation with Foster now under consideration,
specifically "gave the show away" regarding his statutori-
ly proscribed motivation for proliferating subcontracts -
must be rejected. Goforth, though he conceded a conver-
sational reference to Complainant Union's petition so
that Foster might be thereby "alerted" regarding current
"organizational activity" within his neighborhood, denied
that his remarks were conjoined with any query regarding
the latter's readiness to handle more fabrication subcon-
tracts. The plant manager's denial in this respect, within
my view, merits credence, particularly since Foster's
testimony regarding their conversation can hardly be con-
sidered positive. The machine shop owner did not, him-
self, link Goforth's purported query directly with, his
comments regarding unionization; further, Foster's
testimony regarding the plant manager's purported deter-
mination to "slice off overtime" and "farm out" more
work was significantly qualifiea. (My comment in this
respect derives from Foster's several declarations that he
could not recall precisely what was said, that some of his
testimony derived from inference rather than recollec-
tion, and that his memory "might not" be accurate.) The
subcontractor, himself, volunteered a statement that
Goforth's inquiry, regarding his shop load, was one which
prospective customers might well make for business
reasons. And, when confronted with a question, framed
by Respondent's counsel, which was seemingly bottomed
upon Goforth's recollection regarding their conversation,
Foster could proffer no denial; he simply professed a
failure of memory.
THE FLUOROCARBON COMPANY
Contradicted testimony, when thus vitiated by patent
lapses and conceded failures of recollection, can hardly
be considered "reliable, probative and substantial
evidence" that Plant Manager Goforth had conversa-
tionally revealed a plan or purpose to punish Respond-
ent's Palo Alto workers, because of their presumptive
desire for union representation, by depriving them of
overtime work and placing more jobs with subcontrac-
tors.
General Counsel may, conceivably, wish to contend
that Foster's testimony - though it may not suffice to
prove a specific "confession" chargeable to Respondent's
plant manager regarding his statutorily proscribed
motivation - nevertheless persuasively reveals his state
of mind. And, so construed, the machine shop owner's
testimony indeed might, arguably, warrant a deduction
that Goforth did propose to place a greater volume of
subcontracts for punitive or discriminatory reasons. Due
regard for the complete record, however, presently con-
strains me to conclude that Foster's recital should be
strictly, rather than liberally, construed. Previously,
within this Decision, some reference has been made to
Respondent's vigorous challenge regarding Foster's
credibility; that challenge, within my view, suffices to
raise a doubt, with respect to Foster's possibly biased
recollection, sufficient to require a determination that his
testimony merits scrutiny with great care. Item: The
record reveals that - some several days following
Goforth's October 18 visit with the machine shop
proprietor - the firm was billed for Foster's work on Phil-
co Corporation's filter barriers, previously noted; that
Respondent's plant manager, shortly thereafter, protested
Foster's bill; that Respondent, subsequently, proffered a
substantially lesser sum in full settlement; that Foster
was concededly "several hundred dollars irked" thereby;
and that he finally notified Respondent he would not wel-
come further fabrication subcontracts. The machine shop
proprietor, when questioned, conceded that, because of
this price dispute with Respondent's plant manager, he
had readily divulged matters, when queried by a Board
representative, with respect to which he might well have
maintained silence had his relationship with Respondent
remained satisfactory. Such concessions presently per-
suade me that Foster's testimony, regarding Goforth's
purported comments, should be taken with the proverbial
grain of salt. The machine shop proprietor may not have
proffered consciously fabricated or distorted testimony;
his patent resentment of Respondent's plant manager,
however, persuasively suggests that when the Board's
representative questioned him, rationalization bottomed
upon pique may well have colored his memory. With
Respondent's challenge in mind, Foster's testimony,
witliin'my view, will not sustain conclusions based merely
upon supposedly reasonable deductions therefrom. That
testimony deserves no greater credence than the machine
shop proprietor's language, taken literally, commands.
And Foster's testimony, taken literally, does not, within
my view, provide "reliable, probative and substantial"
support for General Counsel's contention that Respond-
ent's plant manager, 3 days after receiving notice of
Complainant Union's petition, was proposing or planning
to subcontract more work because his company's Palo
Alto workers were seeking union representation.
(d) Record testimony, proffered in General Counsel's
behalf, does suggest that Respondent's Palo Alto plant -
within, the period with which we are most concerned -
may have sold or delivered greater quantities of plastic
647
material (rods and tubes) than previously, directly to
firms which had performed or were qualified to perform
"outside" fabrication work; Respondent's former jour-
neymen machinists, basing their testimony upon pur-
ported personal observation, so reported. Presumably,
their testimony, were it left standing without qualification
or contradiction, would provide some support, however
tenuous, for a determination that Respondent was, in-
deed, subcontracting more work. General Counsel's wit-
nesses, however, could not report transactions related to
particular subcontracts; they could merely note stepped-
up deliveries and material pickups from Respondent's
warehouse stock. Plant Manager Goforth's testimony,
received without contradiction in this respect, will sup-
port a determination, however, that Respondent's
warehouse normally contains: (1) many completely
machined plastic products, shipped from the firm's
Anaheim plant, which local Bay Area customers routine-
ly purchase for their own purposes, or for resale, without
further modification, directly to their customers; and (2)
plastic raw material (rods and tubes) processed within
Respondent's Anaheim plant, which several local Bay
Area firms freely purchase for complete machine fabrica-
tion within their plants. Thus, even conceding, arguendo,
that pickups and deliveries from Respondent's warehouse
stock may have become more numerous or sizeable dur-
ing the period with which we are concerned, General
Counsel's presentation, with respect to this portion of his
case, cannot be considered sufficiently probative to
sustain a conclusion that such warehouse stock move-
ments were specifically related to subcontracting.
Factual Conclusions
Within a court of appeals decision which many of my
colleagues have recently cited, Circuit Judge Duniway
has defined those circumstances under which triers of
fact may properly "infer" statutorily proscribed motives
for employer conduct challenged as discriminatory.
Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d 466
(C.A. 9). In his decision, which sustained the Board's
determination, we find:
Actual motive, a state of mind, being the question,
it is seldom that direct evidence will be available that
is not also self-serving. In such cases, the self-serv-
ing declaration is not conclusive; the trier of fact
may infer motive from the total circumstances
proved. Otherwise no person accused of unlawful
motive who took the stand and testified to a lawful
motive could be brought to book. Nor is the trier of
fact - here the trial examiner - required to be any
more naif than is a judge. If he finds that a stated mo-
tive for a discharge is false, he certainly can infer
that there is another motive. More than that, he can
infer that the motive is one that the employer, desires
to conceal - an unlawful motive - at least where, as
in this case, the surrounding facts tend to reinforce
that inference. [Emphasis supplied.]
This decisional language, I take it, means that manage-
ment's motive for conduct challenged as discriminatory
may properly be inferred from the total circumstances
proved, but that triers of fact will first be required to find
- upon a preponderance of the evidence - that a respond-
ent firm's stated motive for challenged conduct merits
rejection.
Upon this record, no such factual conclusion would be
warranted. Respondent's declared motives for so-called
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"outside" fabrication - proffered with respect to nearly
every subcontract placed within the 6-week period with
which this case is directly concerned - have really not
been disproved. (Within his brief, General Counsel has
cited several purported discrepancies in Goforth's
testimony, together with some seeming conflicts between
his testimony and that proffered by Respondent's other
witnesses, which, so it is contended, should generate
doubts regarding the plant manager's truthfulness in this
connection. These matters of record have been con-
sidered. Were I to set forth in detail my reasons for
dismissing them as without significance, this decision, al-
ready too long, would be still further extended. Suffice it
to say that, within their respective testimonial contexts,
I find these claimed discrepancies and conflicts nonex-
istent or minor; whether considered separately or cumu-
latively, they have not persuaded me that Goforth's
testimony, relative to subcontracts, should be rejected.)
With commendable diligence, General Counsel's
representative has sought to weave a seamless web -
compounded from both testimonial recollection and
documentation - sufficient to support his contention that
Respondent's concededly greater volume of subcon-
tracts, within the period in question, derived from pur-
poses statutorily proscribed. The record considered in
totality, however, constrains me to find that he has,
despite his best efforts, constructed nothing more than a
sieve. Had credible testimony been proffered with
respect to more of General Counsel's "total" case, par-
ticularly his contentions regarding claimed interrogation,
purported threats of plant closure, and further threats of
reprisal, such proven "total circumstances" might, con-
ceivably, have justified a further determination that Plant
Manager Goforth's proffered witness chair reasons for
subcontracting, within the relevant period, lacked the
requisite ring of truth. Without such supportive factual
conclusions, however, General Counsel's case - with
respect to subcontracting specifically - rests upon
nothing more substantial than a suspicion that Goforth's
stated justifications were contrived. Mere suspicion,
however, will not warrant statutory sanctions.
3. Respondent's "Captive Audience" speech
Pursuant to Respondent's consent-election stipulation,
December 1, 1965, was designated the date when the
required vote would be conducted. During the afternoon
of November 30, less than 24 hours before the scheduled
election, Respondent's president, so the record shows,
conducted two employee meetings, within Plant Manager
Goforth's office, during which Respondent's position,
with respect thereto, was detailed. (Palo Alto plant work-
ers were notified of President Churm's presence, and
were requested to attend one of two successive meetings;
the groups which met within Goforth's office, therefore,
included five or six workers, Churm, and Respondent's
plant manager.) The record reveals that the firm's em-
ployees were told that they would not be required to
remain or listen to Respondent's president; they were,
however, paid for the time which they spent in Goforth's
office. No employees, in fact, left during either meeting.
a. General Counsel's version
The transcript reflects some testimonial conflict re-
garding President Churm's remarks. With respect
thereto, General Counsel's witnesses, Dick Singleton,
Leonard Singleton, and Bowden, testified substantially as
follows: Churm, so they recalled, told the firm's workers
- during meetings which lasted slightly less than an hour
each - that he had "plans for the company" but could not
discuss them because of the pending election. He referred
to some previous union "trouble" within the firm's
Anaheim plant, which had been resolved following the
formation of a workers' committee there to present em-
ployee grievances and confer with management. He sug-
gested, so General Counsel's witnesses purportedly re-
called, that the same procedure could be followed within
the Palo Alto plant. Further, he stated that, after the
Anaheim organizational attempt had failed, company
management had installed a lunchroom area and "piped-
in" music system, and that Respondent-was currently
considering the institution of a pension plant. Inter alia,
President Churm told his listeners, so General Counsel's
witnesses declared, that Respondent knew who was for
Complainant Union, who was against it, and who was
"sitting on the fence" with respect to the question of
union representation.
When requested to recall "anything else" which Pre-
sident Churm might have said, Leonard Singleton re-
called he had commented that "regardless how this goes"
the Company would like to have "everyone" working in
harmony. (Singleton testified, further, that both Dick
Singleton and he had presented one of their "major
gripes" during the discussion; they had mentioned
Respondent's practice of hiring part-time help for $4 per
hour, while the firm's highest paid regular machinists
were making $3.70 per hour. Churm, however, did not, so
Leonard Singleton testified, indicate how this particular
problem might be resolved.) Further, so Leonard
Singleton declared, Respondent's president and Plant
Manager Goforth both stated they would rather work
"directly" with their personnel; Respondent's workers
were reassured, however, that "they [management]
would not hold it against us [company workers]" re-
gardless of the vote's result. Dick Singleton recalled this
portion of President Churm's speech somewhat dif-
ferently; he quoted Respondent's president as saying,
substantially, that, "We don't care if you vote Union or
non-Union. If you vote in a union, we will recognize a
union" though they (company management) preferred to
settle any differences which might develop without a third
party. Dave Bowden, present at the second of these two
meetings, testified in substantially similar terms regarding
Churm's remarks.
b. Respondent's version
President Churm's recollection, regarding the sub-
stance of his remarks during both of the meetings in
question, varied somewhat. He confirmed the testimony
of General Counsel's witnesses that two meetings were
held during the afternoon, though he recalled them as last-
ing no more than 30-45 minutes each. Following a
recapitulation of Plant Manager Goforth's introductory
remarks - which had included a statement that any em-
ployee was free to leave at any time - the Respondent's
president testified that the meetings had been turned over
to him. He recalled his remarks as follows:
I told the people I was there because I was most con-
cerned about the difference of opinion in the plant,
and the results on the plant as a whole were quite
derogatory, quite detrimental to the operation
because we had-what was happening, we were los-
THE FLUOROCARBON COMPANY
ing production as a result of the conflict in the plant.
I was really not concerned about what the conflict
was or the outcome of the conflict , but I was most
concerned of getting back to work and getting back
together and stop the arguing and get the orders out
I pointed out to the people as long as we continued
this bickering in the plant , the whole operation was
going to suffer , and that was not good for anybody re-
gardless. I pointed out that if there were problems, I
felt we should talk about them . I said I was most sur-
prised that if there had been problems in the plant
with an operation that small , that no one had gone in
to Bob 's office to talk to him about them. There
seemed to be a complete lack of communication
between the people in the plant and the General
Manager of the place. This concerned me, very
much. I pointed out that we had similar problem in
our plant in Anaheim and we had lost communica-
tion. When we re-established communication as a
result of that , we got back on the track, and we
solved the problem we seemed to be having. I then
asked the people for a frank discussion at that meet-
ing, what the problems were , and what we could do
to solve them.
With his recollection refreshed , Churm further recalled
that he had said he was not concerned regarding the out-
come of the firm's "current problem" but was concerned
about getting out the work; he recalled saying, "We are
going to do our utmost to play this game by the book and
do what we should do." Likewise , he remembered saying
that management would make no statement "pro or con"
regarding what was going to happen , no matter which way
"the thing" went. Questioned further , regarding any
statement he may have made relative to the subject of
plant closure, Churm testified:
... it was brought out by me. I told both groups of
employees that that plant was going to stay open re-
gardless of the outcome of the NLRB election. I told
them that we had come to San Francisco to do busi-
ness , and we were doing business in San Francisco.
We had a good market , and we were going to con-
tinue.... I said, "I have heard some speculation that
we were going to close this plant." I said, "I am here
to deny it. This plant is going to stay open."
Respondent 's president conceded his reference to some
prior dissatisfaction within the firm 's Anaheim plant.
Specifically , he conceded a reference to the fact that
Respondent ' s management , when it had "re-established
communication" with Anaheim workers, learned that
"one of the basic gripes" there derived from the lack of
lunchroom space. Respondent's Palo Alto workers were
told that, shortly thereafter , the firm's workers were pro-
vided with a lunchroom area. Churm conceded , further,
that he had "no doubt" mentioned the fact that Respond-
ent had concurrently provided Anaheim with a music
system. He could not "remember" whether he had said
that Respondent's management was currently "working
on a pension plan" for Anaheim employees; when
presented with a specific question , later, he denied any
reference to the possibility of a pension plan for Palo Alto
plant workers.
Though Respondent 's Palo Alto workers were told that
company management had "re-established communica-
tion" within the Southern California plant through a
grievance committee, Churm testified they were further
told that he felt any similar committee , within a 10-man
shop, would be ridiculous; the firm ' s employees were re-
649
minded that direct , personal communication with Plant
Manager Goforth was both possible and much simpler.
(Churm recalled a question regarding the firm 's hiring of
part-time "outside" people at higher rates; he further re-
called endorsing Plant Manager Goforth 's decision in that
regard , because such workers were required .to enable
Respondent to handle "one particular order" within the
period of time required , and because their timely comple-
tion of that order would help build Respondent 's busi-
ness. ) Respondent's president specifically denied making
any suggestion that Palo Alto workers would be well ad-
vised to set up a grievance committee.
Further , he denied any remarks calculated to convey
the impression that Respondent was engaging in surveil-
lance. When queried regarding any statements which
might have generated General Counsel 's surveillance
contention , Churm first declared that when Respondent's
workers were being exhorted to stop their disputes and
resume work he had made a statement that , "You know
where you stand ." Later, when questioned regarding his
comments on company knowledge relative to the union
sympathies of the plant complement , Respondent's pres-
ident declared his belief that he had said , "You know
who is for, and who is against, and who is on the fence,"
within the context of his plea for their return to work.
(Emphasis supplied.)
Respondent's president denied, generally, any promise
of ecomic benefits for workers, conditioned upon their re-
jection of union representation ; he conceded, merely, that
he had made one promise, that regardless of the election
results there would be no reprisals against workers on
either side.
Finally, during direct examination , Churm conceded a
reference to the fact that Respondent had "some plans"
for its employees ; he denied , however , making any state-
ment that he had "things in the mill " for the betterment of
Palo Alto plant conditions.
During cross-examination , Churm's testimony regard-
ing the substance of his remarks remained unshaken.
Prompted by one of General Counsel 's questions, how-
ever , he declared that:
. when I was talking about we didn 't care what
happened , let's get back to work , I pointed out I per-
sonally had a very pleasant relationship with labor
unions for the twelve previous years [with another
company] and certainly would have a pleasant rela-
tionship with one here. Unless we got the work out
and maintained our productivity, we were going to be
in trouble.
Respondent 's president conceded , however , that his
listerners were told he preferred not to be required to deal
with Complainant Union herein.
c. Factual conclusions
Respondent 's defensive presentation - with respect to
this portion of General Counsel 's case - has been set
forth , herein, with considerable detail. Such comprehen-
sive statements, within my view, will facilitiate my
disposition of some rather subtle questions.
Within his brief, General Counsel has conceded that
President Churm's remarks were "superficially"
moderate ; he contends , nevertheless , that those remarks
contained unlawful statements . Specific reference is
made to Churm's purported statement that Respondent
had forestalled an attempt to organize the firm 's Anaheim
plant workers by suggesting, and thereafter dealing with,
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a workers' committee to resolve grievances. Further
reference is made to purported declarations by Respond-
ent's president that, following conferences with this
grievance committee, company management had im-
proved Anaheim working conditions by providing
lunchroom facilities and "piped-in" music. Finally
General Counsel cites Churm's purported statement that
Respondent was "considering" both a pension plan, and
various further, never specified, plans for Palo Alto em-
ployees, which could not be discussed because of the
pending election. The contention is proffered that these
remarks constituted implied promises of benefit, directed
to Respondent's Palo Alto workers, which contravened
Section 8(a)(1) of the statute.
General Counsel's position, thus summarized, neces-
sarily stems from testimonial recitals, proffered by
Leonard Singleton, Dick Singleton, and David Bowden
specifically, which he would have me credit. Previously,
however, within this Decision, several factors which have
persuaded me to reject their testimony - relative to
Donald Lawler's purported prior statements and conduct
- have been noted. Substantially similar considerations
presently constrain me, likewise, to reject their version of
President Churm's November 30 remarks. Clearly,
General Counsel's three journeymen machinists were
dedicated union supporters; their testimony was
proffered with patent conviction. But vigorous partisan-
ship, however commendable, sometimes predisposes wit-
nesses to shape testimony consistently with their concep-
tions of necessity; certainly, such partisanship frequently
colors memory. General Counsel's witnesses, without a
doubt, presently believe that Respondent's president,
during the November 30 meetings, did detail benefits
which the firm's Palo Alto plant workers would receive,
should they reject union representation. However, due
regard for the record, considered in totality, has con-
vinced me that their testimony, regarding various parts of
Churm's speech, reflects embellished recollection, largely
derived from a disposition to construe most of his re-
marks consistently with their partisan views. (In this con-
nection, however, I note Leonard Singleton's testimony,
inter alia, that Respondent's president, when confronted
with a so-called "major gripe" regarding the firm's hire of
part-time workers at premium rates, gave no indication
that the problem could or would be resolved. This,
realistically viewed, clearly tends to undercut Singleton's
testimony suggesting that President Churm was speaking
in promissory terms. Had Churm, really, been disposed
to promise benevolent receptivity or favorable considera-
tion for proffered grievances, surely he would not have
missed the chance thus given him to suggest that worker
dissatisfaction with this managerial practice was sym-
pathetically viewed, or that some solution with respect
thereto would be found. Singleton's testimony on this
point, since it suggests that Respondent's president was
not really trying to subvert Complainant Union's cam-
paign with meaningful promises, tends to vitiate whatever
probative thrust his further recollections might otherwise
possess.) Confronted with President Churm's divergent
testimony, which he proffered composedly, with every
sign of candor, this trier of fact, at least, cannot conscien-
tiously find General Counsel's presentation persuasive.
And Churm's recital, which I credit, will not sustain a
determination that Respondent's workers were given
"implied" promises of benefit. True, Respondent's pres-
ident did detail certain circumstances which had per-
suaded the firm's Anaheim plant workers to form a com-
mittee qualified to formulate and discuss grievances with
management. Further, Respondent's Palo Alto plant
workers were concededly told that, following such dis-
cussions, company management had modified some
Anaheim working conditions. (These remarks, however,
fall short of the typical "suggestions" regarding the for-
mation of plant committees, which the Board has
frequently condemned. See Bernet Foam Products Co.,
Inc., 146 NLRB 1277, 1299, in this connection, with
cases therein cited.) However, even were I to conclude,
arguendo, that Churm's recital was reasonable calculated
to convey a subtle suggestion, despite his specific dis-
claimer, that Respondent's Palo Alto workers would be
well advised to follow a similar course - whereupon their
grievances would be similarly resolved - that suggestion
can hardly be considered sufficiently explicit to constitute
a statutory violation.
Promises, so my colleague, Trial Examiner Sinsheimer,
has noted, may be made clearly and directly; they may,
likewise, be made in less specific ways. Though a promise
may not be intended, statements may be voiced in ways
which lead others to believe that promise has been made;
the conclusion may well be warranted, then, that a
promise has, indeed, been proffered. (In Am. Jur. 2d,
"Contracts," §2, the concept is discussed as follows: "In
ordinary use the word `promise' frequently bears different
shades of meaning. In both popular and legal usage, how-
ever, a promise is an assurance in whatever form of ex-
pression given that a thing will or will not be done....
No special form of words is necessary to create a
promise. All that is necessary is that a fair interpretation
of the words used shall make it appear that a promise was
intended. This is sufficient even though the promise is not
stated in clear terms. The mere expression of an intention
or desire is not a promise, however; the promise is an un-
dertaking to carry the intention into effect. . . . [Em-
phasis supplied.]" This language, clearly, suggests,
though it does not specifically say, that statements, before
they may properly be characterized as warranting
a promisory interpretation, must relate to some specific
"thing" which will or will not be done, or some particu-
larized "intention" which will be effectuated.) When
management representatives, however, merely present
narrative statements, without direct, primary relevance
for their listeners, which, reasonably construed, reflect
nothing more than some implied suggestion that
grievances considered locally significant will be sym-
pathetically reviewed, such statements cannot realisti-
cally be treated as tantamount to declarations that
"something specified" will not be done. See "promise,"
Webster's Seventh New Collegiate Dictionary, p. 682,
definitions 1(a) and (b) particularly. They must be con-
sidered, rather, merely as calculated to project a cor-
porate "image" revelatory of benevolent paternalism.
So construed, President Churm's November 30 speech
constitutes nothing more than permissible "views, argu-
ment, or opinion," rather than "implied" promises of
benefit statutorily proscribed. General Counsel's contra-
ry contention must be rejected.
Since I have found Churm's testimonial recital regard-
ing the substance of his remarks credible, General Coun-
sel's contention that Respondent further violated Section
8(a)(1) of the statute through his purported declaration
that Respondent's management knew the union sym-
pathies of Palo Alto plant workers must likewise be
dismissed. (We do not, therefore, confront the problem
THE FLUOROCARBON COMPANY 651
with which the Board dealt in Moore's Seafood Products,
Inc., 152 NLRB 683, 664, or similar cases.) Some further
comment with respect to this portion of General Coun-
sel's case, however, seems warranted. The record conflict
over what Respondent's president said, with respect to
this matter, reflects nothing more than divergent recollec-
tion regarding his pronoun usage; General Counsel's wit-
nesses recalled him saying, "We know" while Churm re-
called a comment that, "You know" who were Complain-
ant Union's supporters. Such narrowly conflicting
testimony, within my view, reflects a situation which may
justifiably persuade a trier of fact that some particular
witness' wish has fathered his thought. The likelihood
that one verbal formulation, rather than the other, was
proffered must be gathered, then, from the purported
statement's total context. Were I to credit the testimony
of Respondent's journeyman machinists, with respect to
this matter, Churm's supposed remark would have con-
stituted a digression from his general tenor; some deter-
mination would be required that Respondent's president
had shifted, without readily apparent motivation, from
comments presumptively calculated to beguile or mollify
possible malcontents to one which would reasonably tend
to generate fears. Within the total context provided by
President Churm's recital, however, his version, with
respect to the remark now in question, falls logically into
place; the statement, "You know . . ." would be con-
sistent with the balance of his recollections. These con-
siderations, coupled with those previously noted, have
contributed to my conclusion that Respondent pre-
sident's testimony, regarding the substance of his
November 30 remarks, may properly be found more reli-
able.
4. Subsequent developments
Previously, within this Decision, reference has been
made to the consent election conducted December 1,
1965. Respondent's eligibility list, prepared for the
payroll period ending November 5, 1965, pursuant to
stipulation, contained 13 names; the list included Donald
Lawler, designated as the firm's working foreman. When
the election was conducted, however, Lawler's ballot was
challenged; 12 valid votes were counted. Four votes were
cast for Complainant Union; eight votes were cast against
union representation.
C. Conclusions
With matters in this posture, we confront two final
questions: Will the credible testimony and documentary
material, previously reviewed within this Decision, sup-
port General Counsel's contention that Section 8(a)(1),
(3), and (5) have been violated? Or, should such a deter-
mination not be found supportable, will they, neverthe-
less, require a conclusion that Complainant Union's elec-
tion protest should be sustained? These matters will now
be considered.
1. Claimed interference, restraint, and coercion
Previously, within this Decision, I have found that
Plant Manager Goforth, while posting a copy of Com-
plainant Union's representation petition which Respond-
ent had received, queried two of Respondent's journey-
men machinists with respect to their knowledge of the
matter with which the petition dealt. Credible testimony,
proffered by Respondent's plant manager, reflects their
disclaimer with respect thereto. Thereafter, so I have
found, nothing more than casual remarks were
exchanged; though Goforth did state that Respondent
would rather operate without unionization, were it given
the choice, his comments in that regard clearly con-
stituted nothing more than "views, argument, or opinion"
without accompanying threats or promises of benefit.
Relevant decisional doctrine, both Board and court
declared, has clearly established the principle that mere
words of interrogation, or perfunctory remarks not them-
selves reflective of threats or intimidation, chargeable to
respondent firms with no revealed antiunion background
- when not connected with a pattern or course of conduct
hostile to unionism or suggestive of espionage upon
workers-will not, standing by themselves, call for statu-
tory proscription. Blue Flash Express, Inc., 109 NLRB
591; cf. Sax d/b/a Container Manufacturing Company v.
N.L.R.B., 171 F.2d 769, 773 (C.A. 7); National Can
Corporation v. N.L.R.B., 374 F.2d 796 (C.A. 7). The
present record, considered in totality,- reveals nothing
more serious. (We do not have here, so I have found,
questions which sought to place Respondent's jour-
neymen machinists in the position of acting as informers
regarding the union activities of their fellow workers.
Compare Abex Corporation-Engineered Products Divi-
sion, 162 NLRB 328. Such questions, even when
presented casually, during a friendly conversation, have
been found coercive.) Had Respondent's overall course
of conduct - within the period with which this case is
directly concerned - persuasively shown a pattern of
threats, reprisal, and discriminatory treatment, calculated
to forestall Complainant Union's possible election victo-
ry, Goforth's conceded question, though seemingly
casual, might well be found, retrospectively, deserving of
statutory proscription. Standing alone, however, his
question merits no such treatment.
General Counsel's next contention - that Respondent,
through Donald Lawler, the firm's foreman and produc-
tion manager, told Palo Alto plant workers the plant
would be closed, or that certain work they had been per-
forming would be subcontracted, because of their union
proclivities - has previously been rejected; Lawler's deni-
al with respect thereto has been credited. His conceded
participation in two conversations, during which others
mentioned the possibility of plant closure, reflects no
comment chargeable to him which could, within my view,
be deemed violative of the statute. (With respect to this
portion of General Counsel's case, Respondent's counsel
proffered a contention, further, that his client could not be
held responsible for Lawler's purported comments, in any
event, since the latter, despite his "working foreman"
designation, could not properly be considered a super-
visor. However, had I credited Respondent's journeymen
machinists, with respect to their testimony about
Lawler's supposed campaign of threats, interrogation, ac-
cusation, and prospective reprisal, I would have found,
contrary to counsel's contention, that the firm could
properly be charged with responsibility for his conduct.
Lawler's claimed supervisory status was thoroughly
litigated; the record, considered in totality, would, within
my view, clearly warrant a determination that, because
Respondent's plant manager was required to spend much
time away from the plant, he (Lawler) was tacitly per-
mitted responsibly to direct the work of Respondent's
shop personnel. Respondent's plant workers clearly con-
sidered him, with reason, part of management. See
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
N.L.R.B. v. Edward G. Budd Manufacturing. Co., 169
F.2d 571, 575-576 (C.A. 6); Jas. H. Mathews & Co. v.
N.L.R.B., 354 F.2d 432, 434-435 (C.A. 8); N.L.R.B. v.
Elliott-Williams Co., 345 F.2d 460, 463 (C.A. 7);
N.L.R.B. v. Syracuses Stamping Company, 208 F.2d 77,
79 (C.A. 2); cf. International Association of Machinists,
Tool and Die Makers Lodge No. 35 v. N.L.R.B., 311
U.S. 72, 80; N.L.R.B. v. Swift & Company, 292 F.2d
561, 563 (C.A. 1). Compare Oregan Stevedoring Com-
pany, Inc., 162 NLRB 1272; Corey Brothers, Inc., 162
NLRB 1253; Corral Sportswear Company, 156 NLRB
436, enfd. 383 F.2d 961 (C.A. 10); Stuart Radio Sales,
Inc., Cases 25-CA-7027, 7202 (TXD-(SF)-173-66,
Slip Opinion, pp. 14-15); and Gulf & Western Industries,
Inc., 165 NLRB 7, in this connection. There can be no
doubt that Lawler did exercise some degree of general
authority over production workers within Respondent's
shop, whether or not Plant Manager Goforth personally
considered such authority specifically delegated, and
that he was, therefore, strategically positioned to trans-
late, for them , management ' s policies and desires.
Nevertheless, having reached this conclusion with
respect to management's responsibility for Lawler's
conduct, I would further find, contrary to General
Counsel's contention, that Plant Manager Goforth's
November 19 disavowal bulletin, noted previously
within this Decision, sufficed to dissipate whatever
restraint or coercion Lawler's purported prior statements
and course of conduct might have generated .) Since my
credibility resolutions, thus, have disposed of General
Counsel's contention that Respondent , through Lawler's
statements , interfered with, restrained , or coerced Palo
Alto plant workers, no necessity for comment arises with
respect to Respondent's further defensive contention that
whatever threats the firm's "working foreman" may have
made should not, in any event , be considered statutory
violations ; (a) because Respondent 's journeymen
machinists, when reportedly threatened , declared their
skepticism regarding such threats, and (b) because their
labor market prospects within the Mid- Peninsula area
were so bright that they could not reasonably have con-
strued a prophecy of possible plant closure as threaten-
ing. These contentions need not , with matters in their
present posture , be resolved.
General Counsel has charged Respondent's plant
manager with statements, during the week which fol-
lowed his receipt of notice regarding Complainant
Union 's petition , declaring or necessarily implying that
the firm 's regular working hours would be changed, and
that Palo Alto plant employees would no longer be per-
mitted to work overtime, because of their presumptive
desire for union representation. Though the record does
reflect Plant Manager Goforth 's concession that state-
ments were , indeed, made about Respondent 's change in
policy with respect to working hours, nothing can be
found therein which would justify a determination that
Respondent's declared policy change was linked, specifi-
cally or by necessary implication , with Complainant
Union 's campaign . Goforth 's policy change pronounce-
ments did, clearly, follow closely upon his receipt of
notice regarding Complainant Union 's petition . Credible
testimony has been proffered, however , which , absent
persuasive refutation, would warrant a conclusion that
this temporal coincidence was fortuitous , and that
management 's decision to cut working hours derived
from business considerations . Such testimony, slight
though it may have been , has not been successfully coun-
tered. Compare Sperti Sunlamp Division, Cooper-Hewitt
Electric Co., Inc., 162 NLRB 1148, 1155, and cases
therein cited . With matters in this posture, mere suspicion
with respect to Respondent's motive, which some work-
ers could conceivably have derived, reasonably, from
the temporal coincidence noted, cannot carry the day for
General Counsel's contention that Goforth's bare set of
pronouncements , regarding changed working hours and
overtime work reduction, was coercive.
Regarding President Churm's challenged speech , little
more need be said. My credibility resolution with respect
thereto, previously noted, dictates a rejection of General
Counsel 's several particularized contentions . Determina-
tion seems warranted, rather, that Churm's reported re-
marks reflect nothing more than his temperate statement
of certain protected "views, argument or opinion"
reasonably calculated to persuade, rather than coerce. I
so find.
2. Claimed discrimination
Previously , within this Decision , reference has been
made to General Counsel 's contention that Respondent
violated Section 8(a)(3) of the statute: (a) By depriving
Palo Alto plant workers of previously granted chances for
overtime work, because of their union proclivities; and
(b) by subcontracting some of the plant's regular work,
for the same reason. The record, certainly, does reveal
that, within the relevant period with which this case is
directly concerned, the firm 's management did reduce
overtime work hours for many Palo Alto production
workers, and that more contracts for so-called "outside"
fabrication , measured both in terms of number and dollar
volume, were placed. However, within a context which
I have herein found otherwise free of proscribed conduct,
these modifications of prior practice cannot be con-
sidered, per se, statutory violations.
Clearly, management's changed pattern of conduct,
with respect to both matters noted, did leave Respond-
ent's Palo Alto workers somewhat disadvantaged. How-
ever, General Counsel cannot herein prevail - with
respect to this portion of his case - merely by demonstrat-
ing that Respondent's management modified certain busi-
ness practices , which modifications necessarily caused
some financial or other detriment for plant workers.
(Since the record does not reflect types of discrimination
which inherently discourage union membership,
proscribed motivations cannot be presumed, but must be
proven. ) Findings of statutorily proscribed discrimination
must , rather, rest upon factual determinations reasonably
sufficient to warrant a conclusion that , without some
demonstration of worker interest in unionization,
management would have refrained from making the
modifications challenged.
With due regard for the present record, the general
"timing" factor previously noted cannot but generate
some suspicion that statutorily proscribed motives may
well have played a part in Plant Manager Goforth's deci-
sions. Some prior reference has, however , been made to
Respondent's proffered justification for reduced hours;
further, detailed consideration has been given Goforth's
multifaceted disquisition on various business considera-
tions which purportedly determined his course of con-
duct . Respondent 's defensive presentation , with respect
to these matters, has not , within my view, been suffi-
ciently rebutted. (General Counsel's contention that
Plant Manager Goforth's testimony should be generally
THE FLUOROCARBON COMPANY
discredited, because of purported discrepancies, self-con-
tradiction, and divergent recitals proffered by other wit-
nesses, has, for reasons previously noted , been rejected.)
Buttressed with collateral support, which would have
been present had I credited more of General Counsel's
testimonial presentation , the factor of temporal coin-
cidence, with respect to Respondent's reduction of hours
and greater subcontracting, could conceivably have been
persuasive; without such support, however, General
Counsel's contention that suspicious "timing" solely will
suffice to outweigh Respondent's case must be rejected.
(General Counsel has cited Foster's rebuttal testimony in
this connection , claiming that it supports the conclusion
which he would have me draw. However, that testimony,
for reasons previously noted, has not persuaded me that
Respondent's course of conduct derived from statutorily
proscribed motives.) General Counsel, therefore -so I
find- has failed once more to prove, with the requisite
evidentiary preponderance, that Respondent dis-
criminated against Palo Alto plant workers, for the pur-
pose of discouraging their union membership , through
subcontracting work previously done by them, or through
depriving them of previously granted chances to perform
overtime work.
3. The claimed refusal to bargain
a. Respondent's purported rejection of collective-bar-
gaining principles
General Counsel 's contention that Respondent's
refusal to meet and bargain with Complainant Union vio-
lated Section 8(a)(5) of the statute, within the factual con-
text presented for consideration herein , raises a veritable
gallimaufry of subtle, complex questions.
With matters in their present posture , however, some
determination would seem to be required , first, whether
General Counsel's failure to prove Section 8(a)(1) or (3)
violations chargeable to Respondent 's management
destroys the quintessential basis for his further Section
8(a)(5) contention. Consideration of this question may,
properly, begin with General Counsel's statement of posi-
tion within his brief. That statement reads:
In determining whether Respondent violated Section
8(a)(5) by its admitted refusal to recognize and deal
with the Union, it is necessary to decide whether
Respondent's [refusal] was based on a good faith
doubt of the Union's majority status. The burden of
proving such lack of good faith is the General Coun-
sel's. This burden can be met in either of two ways.
It can be demonstrated that an employer has learned
that a union actually represents a majority of his em-
ployees through the counting of authorization cards
or by some other similar method. [Trial Examiner's
comment: Presumably General Counsel would argue
that the employer's subsequent refusal to recognize
the Union, without challenging its majority status,
may be considered "adequate affirmative evidence"
that he lacked any good-faith doubt with respect
thereto.] The burden can also be met by showing
that an employer has engaged in a course of conduct
which indicates that it rejects the principle of collec-
tive bargaining and that its refusal to recognize the
Union is based on a desire to gain time in which to
undermine the Union's majority status. Aaron
Brothers Company of California, 158 NLRB 1077.
In the instant case, Respondent 's lack of good faith
653
in refusing to recognize the Union is demonstrated
by this second method. All of the conduct in this case
establishes that Respondent did not have a good-
faith doubt of the Union's majority status but rather
engaged in a course of conduct designed to destroy
that majority status. [Emphasis supplied.]
General Counsel 's position , thus, derives from the so-
called Joy Silk Mills rationale. Joy Silk Mills, Inc. v.
N.L.R.B., 185 F.2d 732, 741 (C.A.D.C.), enfg. 85 NLRB
1263. Where a company had engaged in substantial unfair
labor practices calculated to dissipate union support, the
Board, with court approval, concluded that the em-
ployer's insistence on an election had not been motivated
by good-faith doubt of the union's majority, but rather by
the firm 's rejection of collective -bargaining principles or
by management 's desire to gain time within which to un-
dermine the union and dissipate its majority.
This cannot be taken to mean , however, that any em-
ployer conduct violative of Section 8(a)(1), regardless of
its nature or gravity, will necessarily support a refusal-to-
bargain determination . Aaron Brothers Company of
California, supra; cf. United Mineral & Chemical Cor-
poration, 155 NLRB 1390, 1394, fn. 9. Where an em-
ployer's unfair labor practices are not of such "consistent
and flagrant" character as to reflect his purpose to reject
collective-bargaining principles and thereby evade his
statutory obligation to bargain, the Board will not draw an
inference of bad faith. Compare N.L.R.B. v. Flomatic
Corporation, 347 F.2d 74, 77-79 (C.A. 2), cited with ap-
proval in Hercules Packing Corporation, 163 NLRB
164, 265, cf. Hammond & Irving, Incorporated, 154
NLRB 1071, 1073, in this connection.
Herein, General Counsel has not, within my view,
sustained his burden of proof that Respondent 's manage-
ment , following its receipt of Complainant Union 's recog-
nition letter, and Board notice with respect to Complain-
ant Union's petition, commenced a course of conduct
reasonably calculated to restrain , coerce, or interfere with
its Palo Alto workers' freedom to choose their bargaining
representative. Compare The Great Atlantic and Pacific
Tea Company, Inc., 162 NLRB 1182. Thus no deter-
mination would be warranted , with matters in their
present posture , that Respondent 's course of conduct dis-
played a disposition to reject collective-bargaining princi-
ples, or a desire to gain time within which to dissipate
Complainant Union's majority. (In this connection, note
should be taken that, following Respondent's October 14
receipt of notice with respect to Complainant Union's
petition , discussions looking toward a possible consent-
election agreement were initiated by October 25;
Respondent 's counsel signed the stipulation for certifica-
tion upon consent election on November 5. So far as the
record shows, normal Regional Office procedures, with
respect to the petition's disposition, were followed;
Respondent does not seem to have pursued any tactic cal-
culated to cause delay.) Within his brief, General Counsel
has foresworn any contention that bad faith on Respon-
dent's part could or should be deduced because company
management possessed "independent knowledge" that
Complainant Union represented a majority , but neverthe-
less withheld recognition . Should such a contention
presently be proffered, I would have to reject it; the
record simply will not support a determination that Plant
Manager Goforth was ever provided with direct proof of
Complainant Union 's majority status, or data from which
Complainant Union's status could have been deduced.
(True, Complainant Union's October 13 letter demand-
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing recognition had contained an offer to prove majority
status, through a card check conducted by some disin-
terested third party. Had Goforth, confronted with
nothing more than this , chosen to remain silent , his failure
to respond might arguably, within context , support a con-
clusion that he really had no good-faith doubt of Com-
plainant Union's majority. When, however, Complainant
Union filed its petition for certification promptly
thereafter , Respondent 's permissible range of response or
nonresponse was broadened . Respondent 's plant
manager , with matters in this posture , could , pursuant to
settled decisional doctrine , wait for some Board disposi-
tion of Complainant Union 's claimed question concerning
representation . Without proof that Respondent chose
such a course, while participating in statutorily
proscribed conduct sufficiently gross to warrant a deter-
mination that its choice was made in bad faith, the firm
cannot be faulted. See Aaron Brothers Company of
California, supra, in this connection.)
We do not, therefore, have a case wherein company
management , confronted with a recognition demand by
some proven majority representative , has rejected such
proof without challenging its validity, and has demanded
Board election despite its failure to cite valid grounds
therefor. See Snow & Son V. N.L.R.B., 308 F.2d 687
(C.A. 9), enfg. 134 NLRB 709; and Bernel Foam
Products Co., Inc., 146 NLRB 1277, 1283, in this con-
nection.
Since I have found no "reliable, probative or substan-
tial" evidence herein that Respondent 's failure to proffer
some positive response when confronted with Complain-
ant Union's recognition letter, reflected a purpose to
evade its statutory obligation to bargain, various subsidia-
ry questions , which the record , viewed otherwise, might
present , need not be considered; they will not within my
view now control this case 's disposition . (For example:
Respondent, while conceding that Complainant Union's
claimed bargaining unit would be appropriate for collec-
tive-bargaining purposes , had challenged General Coun-
sel's proof regarding this Union's "majority" status
therein. Contentions were proffered that Complainant
Union's majority designation had been coerced or
procured through misrepresentation; that designation
cards submitted for the record , following their authentica-
tion by Complainant Union's card solicitors, should not
be taken at face value as proof of their signers' intent; that
certain designated cards should not, for various reasons,
be counted as contributing to Complainant Union's
majority showing; and that the whole group of designa-
tion cards proffered for the record should, in any event,
be rejected since they designate Complainant Union's
parent body, but not Complainant Union itself, as their
signers' bargaining representative . Clearly, disposition of
these questions, now, will not be required. Further,
Respondent 's counsel , within his brief, contends that no
Board bargaining order should , in any event , be con-
sidered appropriate herein - pursuant to decisional pnnci-
ples laid down within the Bernet Foam and Irving Air
Chute cases - since Complainant Union's sole specific
election objection, when filed, was too limited in scope to
call for such drastic remedial provisions , while the
Union's further objection was stated generally, so that it
could not provide a proper "meritorious" predicate for
Board sanctions . Respondent 's counsel suggests that the
generality of Complainant Union 's submission must be
considered beyond cure, since the Board's Regional
Director , under various cited cases, lacks the power, sua
sponte, to render such a submission more specific, with
a report which designates some particularized statements
and conduct, discovered through investigation, purport-
edly comprehended within its general terms. See United
States Rubber Company v. N.L.R.B., 373 F.2d 602
(C. A. 5); International Ladies' Garment Workers' Union
v. N.L.R.B., 339 F.2d 116 (C.A. 2); Orleans Manufac-
turing Company, 120 NLRB 630; Swift & Company, 119
NLRB 1397; Audubon Cabinet Company, Inc., 119
NLRB 349; National Furniture Company, 119 NLRB 1;
Mission Appliance Corporation, 104 NLRB 361. Were
I required to determine this question , I would probably
find myself constrained to reject counsel 's highly so-
phisticated contention with respect thereto . United
States Rubber Company V. N.L.R.B., supra; N.L.R.B. v.
Realist, Inc., 328 F.2d 840 (C.A. 7); Consolidated
Rendering Company, 161 NLRB 1, fn. 36; Freskeeto
Frozen Foods, Inc., 159 NLRB 342; Morganton Dyeing
and Finishing Corp., 154 NLRB 404, 418, fn. 26; Eklund
Brothers Transport, 136 NLRB 471; International Shoe
Company, 123 NLRB 682, 684; Montgomery Ward &
Company, 118 NLRB 310; Lockwood-Dutches, Inc.,
106 NLRB 1089; Hobart Mfg. Company, 92 NLRB
203; Compare Atlantic Mills Servicing Corporation, of
Cleveland, 120 NLRB 1284, overruling in part Don Allen
Midtown Chevrolet, Inc., 113 NLRB 879. Since I have,
however, found , for other reasons, that Respondent did
not refuse to bargain , the present case provides no factual
framework calling for the question's settlement.)
Shortly and simply, then, General Counsel has, with
due regard for the record considered as a whole , failed to
sustain his Complaint contention that Respondent, com-
mencing on or about October 14 , 1965, and at all times
thereafter, through a course of conduct which revealed its
rejection of collective-bargaining principles, did refuse,
and continues to refuse , to meet and bargain collectively
with Complainant Union as the exclusivive collective-
bargaining representative of the firm's Palo Alto produc-
tion and maintenance workers.
b. Respondent's purported changes in working
conditions
Within his brief, General Counsel argues that, since
determination would be warranted Respondent was duty
bound to bargain with Complainant Union after October
14, following its receipt of notice with respect to that or-
ganization 's representation claims, management's sub-
sequent decisions to reduce plant overtime hours, and to
subcontract unit work , without giving Complainant
Union a chance to bargain thereon, separately violated
the statute. Respondent 's unilateral course of conduct
with respect to both of these matters, so General Counsel
contends , must be considered a refusal to bargain,
whether or not Plant Manager Goforth's decisions were
discriminatorily motivated. See N.L.R.B. v. Benne Katz,
dlbla Williamsburg Steel Products Co., 369 U.S. 736.
The contention however must be rejected.
The reduction of hours. This Board has found a re-
spondent firm guilty of Section 8(a)(5) violations, when
the firm, unilaterally, first decreased and subsequently
increased employees' hours of work, despite its determi-
nation that such changes were prompted by economic
necessity rather than by management 's purpose to
discourage unionization or perpetrate reprisals. See The
Weston and Brooker Company, 154 NLRB 747, 763, and
cases therein cited. Such determinations , however, have
THE FLUOROCARBON COMPANY
defined the bargaining duty of respondent firms found,
upon other grounds, statutorily bound to deal with cer-
tified or previously recognized bargaining representa-
tives. (No case known to me holds that respondent firms
violate the law, with respect to their statutory duty to bar-
gain, when they promulgate unilateral work changes for
workers who have not, within the purport of the statute,
designated a bargaining representative. General Counsel
has cited none. Clearly, such conduct cannot be con-
sidered demonstrative of management's "complete rejec-
tion of the collective bargaining principle" without some
record proof which would warrant a determination that
respondent firm was, for other reasons, duty bound to
bargain. Consolidated Rendering Company, 161 NLRB
1, fn. 1; see The Colson Corporation, 148 NLRB 827,
enfd. 347 F.2d 128 (C.A. 8). To hold that some em-
ployer's proven or conceded unilateral conduct both
creates a bargaining duty and, simultaneously, reflects its
violation, would clearly be bootstrap reasoning.) Since
Respondent's total course of conduct - considered
without reference to management's concededly unilateral
decisions now in question - has not been found sufficient
to, warrant a declaration that Respondent's management
should be considered duty bound to recognize and bar-
gain with Complainant Union herein, Plant Manager
Goforth's decision to reduce Palo Alto working hours
cannot be found demonstrative of Respondent's deter-
mination to reject collective-bargaining principles.
Subcontracts. I have found, herein, that Respondent's
greatly expanded volume of subcontracts, within the
period with which this case is directly concerned, derived
from business considerations. With matters in this
posture, Goforth's challenged "subcontract" decisions -
like his decision to reduce working hours - cannot, them-
selves, justify concurrent determinations that Respond-
ent was both duty bound to bargain, and neglectful of
that duty. Further, nothing within the present record
would, within my view, justify a conclusion that Respond-
ent's management had transgressed permissible limits,
with respect to so-called unilateral subcontracts. Since
the Supreme Court's Fibreboard decision (379 U.S. 203)
this Board has repeatedly noted that its condemnation of
unilateral subcontracting, with respect to unit work, has
not been calculated to lay down hard and fast rules for
mechanical application, regardless of the situation in-
volved. Westinghouse Electric Corporation (Mansfield
Plant), 150 NLRB 1574. Rather, the Board has identified
several recurrent factors which, within its view, particu-
larly limit the Fibreboard obligation; the doctrine has
consistently been confined to cases in which some "sig-
nificant detriment" has occurred, resulting in some "real
Change in ... [the employees'] . . . terms and conditions
of employment." Within Westinghouse, the Board noted
that, in the cases with respect to which violations have
been found:
... it has invariably appeared that the contracting
out involved a departure from previously established
operating practices, effected a change in conditions
of employment, or resulted in a significant impair-
ment of job tenure, employment security, or
reasonably anticipated work opportunities for those
in the bargaining unit.
Where, however, work scheduled for subcontracting
could be shown to require skills not normally required for
unit work, or where unit employees did possess requisite
skills but their employer did not have available the par-
ticular equipment required for efficient performance of
655
the job, no significant detriment has been found. Shell Oil
Company, 149 NLRB 283; cf. Central Soya Company,
Inc., 151 NLRB 1691; American Oil Company; 151
NLRB 421. Upon the present record, even assuming,
arguendo, that Respondent could, upon other grounds, be
considered duty bound to bargain, no sufficient showing
has been proffered that Goforth's greater volume of so-
called outside "fabrication" work, (1) reflected any deter-
minable qualitative departure from previously set subcon-
tract practices, (2) changed conditions of work within the
firm's Palo Alto plant, or (3) resulted in some "significant
detriment" for Palo Alto plant workers, with respect to
their job tenure, employment security, or reasonably an-
ticipated work opportunities.
Since, then, the present record, considered without
reference to Respondent's challenged unilateral changes,
cannot sustain a determination that respondent firm, con-
sistently with the previously noted Joy Silk Mills
rationale, should be considered duty bound to bargain,
and since no sufficient showing has been made that Plant
Manager Goforth's unilateral decisions were calculated
to deprive Palo Alto plant workers of job tenure, employ-
ment security, or work opportunities which they could
have anticipated reasonably, General Counsel's conten-
tion that these unilateral decisions demonstrate a
complete rejection of collective-bargaining principles,
and therefore merit statutory proscription cannot be
sustained.
IV. THE OBJECTIONS TO THE ELECTION
Previously, within this decision, reference has been
made to Complainant Union's timely filed objections,
relative to the December 1, 1965, election. Within the
Regional Director's supplemental report on objections is-
sued April 12, 1966, he noted that his investigation of
Complainant Union's objections had disclosed some
evidentitary conflict with respect to Respondent's
claimed participation in certain conduct which, should it
be found, would warrant setting aside the election results.
Basing his conclusions upon this showing of conflict, the
Regional Director declared "that Petitioner's objections
and the investigation thereof' had raised substantial and
material issues of fact, which a hearing could best resolve.
Further, he noted that, since "most of these matters" had
been designated statutory violations within the Complaint
herein, the purposes of the statute would best be served
by consolidation of both matters, for hearing purposes, so
that questions posed by the Complaint and Petitioner's
objections might be jointly considered.
The Board's subsequent Order directed, consistently
with the Regional Director's recommendation, that a
hearing be held "to resolve the issues raised by Peti-
tioner's Objections" specifically, consolidated with the
hearing scheduled on General Counsel's Complaint
herein.
My conclusions with respect to General Counsel's
Complaint, previously set forth, largely dispose of Com-
plainant Union's objections, supplemented within the Re-
gional Director's report, in the representation matter.
Specifically, my determination has been noted that the
record will not sustain any conclusion that Respondent -
through Donald Lawler or some other management
spokesman - threatened Palo Alto plant workers that the
plant would be closed and moved to Los Angeles, should
they vote for union representation. Regarding Complain-
ant Union's further objection, concededly couched in
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
general terms, I have found that credible testimony
proffered for the record will not sustain a conclusion that
Respondent's challenged course of conduct, purportedly
detailed within the Regional Director's supplemental re-
port, reflected unfair labor practices; the record, further,
will not, within my view, sustain any conclusion that
Respondent's course of conduct really vitiated "laborato-
ry conditions" sufficiently to warrant this Board's vaca-
tion of the vote result.
Some further comment, however, would seem to be
required. The Board's Order directed me to conduct a
hearing to resolve the questions raised by the "Peti-
tioner's objections" specifically. Those objections clearly
did not, on their face, challenge the vote result particu-
larly because Respondent had conducted meetings of
plant workers on company time, within the 24-hour
period which preceded the scheduled vote. Reference to
this development was made, for the first time, within the
Regional Director's supplemental report; we may take it,
therefore, that any question raised with respect to
Respondent's course of conduct - so far as plant meetings
are concerned - derives, not directly from Complainant
Union's protest, but from the Regional Director's in-
vestigation which that protest sparked.
With matters in this posture, the Board could, con-
ceivably question whether Respondent's decision to con-
duct these meetings should be considered within the
present inquiry's scope. (The Regional Director's supple-
mental report, in this connection, notes "evidence that on
the afternoon of November 30, 1965, within 24 hours of
the election, the unit employees were assembled on com-
pany time in two groups" which President Churm ad-
dressed. Primarily, however, the Regional Director's sup-
plemental report seems calculated to suggest that the pur-
ported substance of President Churm's remarks, rather
that the circumstances under which they were made,
would warrant setting the election aside, should Com-
plainant Union's generalized contention with respect
thereto be found sustainable.) During oral argument,
though not within his brief, Respondent's counsel did
suggest that no consideration should presently be given
these questions, since Complainant Union had not spe-
cifically challenged the circumstances under which
the two plant meetings were conducted.
There can be no doubt, however, that these matters,
namely, the scheduled time when the meetings were held,
and the circumstances under which those meetings were
conducted, have been herein litigated. Respondent has
not, really, been taken by surprise. Within my view,
therefore, consideration may properly be given the
question-presented by this record-whether Respond-
ent's decision to conduct two meetings, within the 24-
hour period which preceded the scheduled vote, warrants
a Board determination to vacate the December 1 election
results.
For some 13 years the Board has declared and en-
forced a rule, first promulgated within its Peerless
Plywood decision, that:
employers and unions alike will be prohibited
from making election speeches on company time to
massed assemblies of employees within 24 hours be-
fore the scheduled time for conducting an elec-
tion. .
The Board declared that violations of this rule would
cause elections to be set aside, whenever valid objections
were filed. Parties to Board proceedings were, however,
advised that the rule would not prohibit employers or
unions from making campaign speeches, on or off com-
pany premises within the 24-hour period if employee at-
tendance is voluntary and on the employees' own time.
Peerless Plywood Company, 107 NLRB 427, 429-430.
Within the Board's view, the combined circumstance of
(1) the use of company time for preelection speeches, and
(2) the delivery of such speeches on the eve of the elec-
tion, regardless of their noncoercive content, tends to
destroy freedom of choice, and serves to establish an at-
mosphere within which a free election cannot be held.
The record, previously noted, clearly warrants a deter-
mination that Respondent's management, whether
deliberately or carelessly need not be decided now, vio-
lated this rule. The meetings with which we are now con-
cerned were, concededly, both held within the 24-hour
period which preceded the vote. Palo Alto plant workers
were, plainly, told their attendance would be voluntary;
they were specifically advised with respect to their
freedom to leave. The record, however, reveals that,
when they did not leave, they were compensated for their
time. This single factor, so I find, suffices; Respondent's
management transgressed.
My recommendation, therefore, will be that Complain-
ant Union's Objections, directed to the December 1,
1965, election, should be, in this respect, sustained. Since
my Recommended Order, however, rests upon nothing
more than this narrow ground, no Board Order beyond
the direction of a second election could properly be con-
sidered warranted.
CONCLUSIONS OF LAW
1. Respondent, The Fluorocarbon Company, is an
employer within the meaning of Section 2(2) of the Act,
engaged in commerce and business activities which affect
commerce within the meaning of Section 2(6) and (7) of
the Act, as amended.
2. International Association of Machinists and
Aerospace Workers, AFL-CIO, District Lodge No. 93,
is a labor organization within the meaning of Section 2(5)
of the Act, as amended.
3. All production and maintenance employees of
Respondent at its Palo Alto, California, location, exclud-
ing office clerical employees, professional employees,
guards, and supervisors as defined in the Act, constituted,
throughout the period with which this case is concerned,
a unit appropriate for collective-bargaining purposes,
within the meaning of Section 9(b) of the Act, as
amended.
4. Between October 11 and 12, 1965, Complainant
Union was presumptively designated and selected by a
majority of Respondent's employees, within the unit
described above, to function as their exclusive represent-
ative for collective-bargaining purposes. On October 14,
1965, Complainant Union, functioning as the collective-
bargaining representative of workers within the unit
previously described, requested Respondent to bargain
collectively regarding their rates of pay, wages, hours of
employment, or other terms and conditions of work.
5. Upon a petition for certification which Complainant
Union filed on October 15, 1965, declaring that a
question concerning representation existed with respect
to Respondent's workers, within the bargaining unit
previously described, representatives of Complainant
Union and Respondent subsequently signed a stipulation
for certification on consent election. Pursuant thereto an
election was held on December 1, 1965; during that elec-
THE FLUOROCARBON COMPANY 657
Lion, Complainant Union did not receive a majority of the
valid votes counted plus challenged ballots.
6. General Counsel has not produced reliable, proba-
tive, and substantial evidence, herein, sufficient to justify
a determination that Respondent did engage or that it
continues to engage in unfair labor practices, within the
meaning of Section 8(a)(1) and (3) of the Act, as
amended.
7. General Counsel has not, herein, produced reliable,
probative, and substantial evidence sufficient to justify a
determination that Complainant Union, despite its failure
to win majority designation through the December 1,
1965, election previously noted, has been, and is now, en-
titled to recognition as the exclusive collective-bargaining
representative of Respondent's employees within the unit
previously described.
8. General Counsel has not produced reliable, proba-
tive, and substantial evidence sufficient to justify a deter-
mination that Respondent here, through its failure or
refusal to bargain collectively with Complainant Union
after October 14, 1965, specifically, did engage or con-
tinues to engage in unfair labor practices, within the
meaning of Section 8(a)(5) and (1) of the Act, as
amended.
RECOMMENDED ORDER
Upon these findings of fact and conclusions of law, and
upon the entire record in this consolidated case, my
recommendation is that the Board, pursuant to Section
10(c) of the National Labor Relations Act, as amended,
dismiss the present Complaint in its entirety.
My further recommendation is that the results of the
election conducted on December 1, 1965, for Respond-
ent's Palo Alto plant workers be vacated, and that the
Board direct a second election in Case 20-RC-6640 to be
conducted by the Regional Director for Region 20 when-
ever he finds that circumstances will permit a free choice
of bargaining representative.