ALBERT V. BRYAN, Circuit Judge.
The National Labor Relations Board’s finding that J. A. Hackney & Sons, Inc. violated the Act, and the company’s response of innocence, make the issue tendered here for decision. The Board petitions for enforcement of its remedial order; the accused petitions for its annulment. We grant each in part.
The misdoings, termed as unfair labor practices, consist first of interference with the employees’ formation of a union, and then of discrimination in the discharge of 41 employees on July 11, 1968 because of union interest. § 8(a) (1) and (3), respectively, 29 U.S.C. § 158 (a) (1) and (3).
Hackney’s business is the manufacture of truck bodies for carrying glass beverage bottles. The plant is at Washington, North Carolina, and the corporation has that State’s charter. For eight successive years the company had enjoyed substantial growth, a 20% annual increase, a high record in 1967 of $2.9 million in sales and a 1968 budget of $3.1 million.
However, in February 1968 a strike by the Glass Blowers’ Association caused a costly business decline in the glass industry. The impress on Hackney, it contends threatened its life, and thereafter livelihood depended upon sharp curtailment of operations and employment. This struggle, it continues, and not union antipathy, accounted for the terminations.
[944]*944I. In our judgment the evidence sustains the finding of the Board of 8(a) (1) violations. Unionizing of the plant was initiated on May 21, 1968. Unusual oversight and interrogations of the employees by company officers, or with their acquiescence, were instituted. The survey and canvass definitely overstepped the employer’s prerogatives. Further details of the excessive activities would add nothing.
II. The more difficult resolution relates to alleged discrimination in the release of the 41 employees. On May 23, management explained to the employees the company’s precarious economic position. However, it assured them from time to time of a desire to retain the entire work force despite a possible reduction in hours of production. The Board contrasts these protestations with the remarks accompanying the July 11 terminations. It saw significance in the company’s insinuations of the employees’ disloyalty and ingratitude. The discharge announcement blamed them for the company’s resort to the releases. The company said that this decision was, in part at least, forced upon it by the workers’ slow down in production.
However, the Board inferred from these accusations and from the 8(a) (1)-forbidden activities an ulterior motivation for the discharges. It imputed the company’s whole conduct to the impending possibility of success in the pro-union movement. The Board’s conclusion was that this unfriendly attitude and these acts of the company tainted and rendered the discharges unfair labor practices. On the other hand, the company insisted that the primary motivation was economic and not of anti-union prompting.
The uncertain waters and shoals of 8(a) (3) were charted with some definiteness in American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965). There the Court said, at 311, 85 S.Ct. at 963:
“Under the words of the statute there must be both discrimination and a resulting discouragement of union membership. It has long been established that a finding of violation under this section will normally turn on the employer’s motivation.”
See also NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967).
In opposition to the Board’s evidence on this head and in refutation of any sinister motivation, the facts adduced by the company indubitably reveal genuine economic distress at the time of the discharges. Customers of Hackney have a seasonal operation. New truck bodies are ordered in the winter for use in the spring — the inception of the bottlers’ heaviest demand. Because of the glassblowers’ February 1968 strike, the bottlers were not in the market for delivery vehicles. True, the tie-up was brought to a close on March 22, but the bottling companies realized that full production in the glass industry would require months, and would not become normal until the summer of 1968 — beyond the peak of the bottlers’ needs. Hence they were not seeking truck equipment in the spring.
In April, Hackney’s sales manager became apprehensive because the backlog of orders was only one-half of what it had been in the corresponding 1967 period. He forecast that the company for the rest of the year would not exceed a call for more than 14.5 bodies per week. Formerly it had been 30.
Responding to this existing and growing depression, the company at once began cancelling its purchase orders for steel and aluminum. No substitutes were employed for those workers who for one reason or another left their jobs. On or about June 15, the company in a further endeavor to meet the emergency reduced the work week from 50 to 45 hours.
Plant operation cost $53,000.00 weekly, but the June 25, 1968 report reflected that income had fallen to $43,698.00. In the previous week it was also below the breakeven point, although in the three earlier weeks it had exceeded the minimum by $6,000.00.
[945]*945At this June report, the company had on hand 34 trucks. These meant only slightly more than a week’s work for the production employees. Notably the corresponding figure in 1967 had been 238. Records also disclosed a considerable drop in man-hour productivity. Realizing that another cut in hours would generate dissatisfaction, the employer found that it would have to reduce its payroll by 41. One responsible company official testified:
“But by the end of June we knew what the situation was, and by the end of June we had quite simply run out of orders and trucks and we were faced with the prospect of literally running [out] of work, and the lay off, quite simply, was effected in order to reduce each and every department in our plant to the staffing level that would be required to exactly equal our sales projection of 14.5 bodies a week.”
The sincerity of the company is demonstrable. The dischargees were not replaced. Six offers of reemployment were extended, but not all of them were filled. The releases included union as well as non-union men. Those laid off were selected by the production superintendent and his assistant from a semiannual employee rating system begun in 1965. It graded a worker as above or below the composite average of his department.
The averages used instantly were those computed in the last weeks of December 1967 and June 1968. Of the 41 dropped, the first to go had a score of 1.2 below the average, then went those with the next lower average, and so upwardly in turn. This process accounted for 35, with the remaining six chosen after conferences of the foremen, the production superintendent and his assistant. Incidentally, we observe nothing discriminatory or otherwise unfair in picking the dischargees.
Our review of the entire record discloses that the finding of an impermissible motive is without substantial support. Universal Camera Corp. v.
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ALBERT V. BRYAN, Circuit Judge.
The National Labor Relations Board’s finding that J. A. Hackney & Sons, Inc. violated the Act, and the company’s response of innocence, make the issue tendered here for decision. The Board petitions for enforcement of its remedial order; the accused petitions for its annulment. We grant each in part.
The misdoings, termed as unfair labor practices, consist first of interference with the employees’ formation of a union, and then of discrimination in the discharge of 41 employees on July 11, 1968 because of union interest. § 8(a) (1) and (3), respectively, 29 U.S.C. § 158 (a) (1) and (3).
Hackney’s business is the manufacture of truck bodies for carrying glass beverage bottles. The plant is at Washington, North Carolina, and the corporation has that State’s charter. For eight successive years the company had enjoyed substantial growth, a 20% annual increase, a high record in 1967 of $2.9 million in sales and a 1968 budget of $3.1 million.
However, in February 1968 a strike by the Glass Blowers’ Association caused a costly business decline in the glass industry. The impress on Hackney, it contends threatened its life, and thereafter livelihood depended upon sharp curtailment of operations and employment. This struggle, it continues, and not union antipathy, accounted for the terminations.
[944]*944I. In our judgment the evidence sustains the finding of the Board of 8(a) (1) violations. Unionizing of the plant was initiated on May 21, 1968. Unusual oversight and interrogations of the employees by company officers, or with their acquiescence, were instituted. The survey and canvass definitely overstepped the employer’s prerogatives. Further details of the excessive activities would add nothing.
II. The more difficult resolution relates to alleged discrimination in the release of the 41 employees. On May 23, management explained to the employees the company’s precarious economic position. However, it assured them from time to time of a desire to retain the entire work force despite a possible reduction in hours of production. The Board contrasts these protestations with the remarks accompanying the July 11 terminations. It saw significance in the company’s insinuations of the employees’ disloyalty and ingratitude. The discharge announcement blamed them for the company’s resort to the releases. The company said that this decision was, in part at least, forced upon it by the workers’ slow down in production.
However, the Board inferred from these accusations and from the 8(a) (1)-forbidden activities an ulterior motivation for the discharges. It imputed the company’s whole conduct to the impending possibility of success in the pro-union movement. The Board’s conclusion was that this unfriendly attitude and these acts of the company tainted and rendered the discharges unfair labor practices. On the other hand, the company insisted that the primary motivation was economic and not of anti-union prompting.
The uncertain waters and shoals of 8(a) (3) were charted with some definiteness in American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965). There the Court said, at 311, 85 S.Ct. at 963:
“Under the words of the statute there must be both discrimination and a resulting discouragement of union membership. It has long been established that a finding of violation under this section will normally turn on the employer’s motivation.”
See also NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967).
In opposition to the Board’s evidence on this head and in refutation of any sinister motivation, the facts adduced by the company indubitably reveal genuine economic distress at the time of the discharges. Customers of Hackney have a seasonal operation. New truck bodies are ordered in the winter for use in the spring — the inception of the bottlers’ heaviest demand. Because of the glassblowers’ February 1968 strike, the bottlers were not in the market for delivery vehicles. True, the tie-up was brought to a close on March 22, but the bottling companies realized that full production in the glass industry would require months, and would not become normal until the summer of 1968 — beyond the peak of the bottlers’ needs. Hence they were not seeking truck equipment in the spring.
In April, Hackney’s sales manager became apprehensive because the backlog of orders was only one-half of what it had been in the corresponding 1967 period. He forecast that the company for the rest of the year would not exceed a call for more than 14.5 bodies per week. Formerly it had been 30.
Responding to this existing and growing depression, the company at once began cancelling its purchase orders for steel and aluminum. No substitutes were employed for those workers who for one reason or another left their jobs. On or about June 15, the company in a further endeavor to meet the emergency reduced the work week from 50 to 45 hours.
Plant operation cost $53,000.00 weekly, but the June 25, 1968 report reflected that income had fallen to $43,698.00. In the previous week it was also below the breakeven point, although in the three earlier weeks it had exceeded the minimum by $6,000.00.
[945]*945At this June report, the company had on hand 34 trucks. These meant only slightly more than a week’s work for the production employees. Notably the corresponding figure in 1967 had been 238. Records also disclosed a considerable drop in man-hour productivity. Realizing that another cut in hours would generate dissatisfaction, the employer found that it would have to reduce its payroll by 41. One responsible company official testified:
“But by the end of June we knew what the situation was, and by the end of June we had quite simply run out of orders and trucks and we were faced with the prospect of literally running [out] of work, and the lay off, quite simply, was effected in order to reduce each and every department in our plant to the staffing level that would be required to exactly equal our sales projection of 14.5 bodies a week.”
The sincerity of the company is demonstrable. The dischargees were not replaced. Six offers of reemployment were extended, but not all of them were filled. The releases included union as well as non-union men. Those laid off were selected by the production superintendent and his assistant from a semiannual employee rating system begun in 1965. It graded a worker as above or below the composite average of his department.
The averages used instantly were those computed in the last weeks of December 1967 and June 1968. Of the 41 dropped, the first to go had a score of 1.2 below the average, then went those with the next lower average, and so upwardly in turn. This process accounted for 35, with the remaining six chosen after conferences of the foremen, the production superintendent and his assistant. Incidentally, we observe nothing discriminatory or otherwise unfair in picking the dischargees.
Our review of the entire record discloses that the finding of an impermissible motive is without substantial support. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Against the overwhelming evidence of an economic motivation for the discharges, as well as the non-discriminatory manner in which they were effectuated, the inferences which the Board drew from the 8(a) (1) activities and from the announcement of July 11 cannot stand. See Sterling Aluminum Co. v. NLRB, 391 F.2d 713, 717-718 (8 Cir. 1968).
Ultimate decision, then, must be made in the manner enunciated in NLRB v. Erie Resistor Corp., 373 U.S. 221, 228-229, 83 S.Ct. 1139, 1145, 10 L.Ed.2d 308 (1963), as follows:
“[s]uch situations present a complex of motives and preferring one motive to another is in reality the far more delicate task * * * of weighing the interests of employees in concerted activity against the interest of the employer in operating his business in a particular manner and of balancing in the light of the Act and its policy the intended consequences upon employee rights against the business ends to be served by the employer’s conduct.” (Accent added.)
We note that discharges in circumstances starkly resembling those of this case have been squarely upheld in this court as not discriminatory conduct. Winchester Spinning Corp. v. NLRB, 402 F.2d 299, 305-306 (4 Cir. 1968). With like forthrightness NLRB v. Kingsford, 313 F.2d 826, 829 (6 Cir. 1963) also acquitted the employer, saying : “Business changes effected for economic reasons are not proscribed by the Act and do not constitute unfair labor practices.”
Here, too, the final balance must, in our view, be struck in favor of the employer. Imminent failure, if not bankruptcy, of Hackney would reduce the employees’ right to organize to a Pyrrhic success indeed. Avoidance of this plight is not barred by the Act. See NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 345, 58 S.Ct. 904, 82 L.Ed. 1381 (1938).
[946]*946That part of the Board’s order relating to the 8(a) (1) violations is enforced; that part relating to the 8(a) (3) charge is rejected.
Order enforced in part, and refused in part.