Hall of Mississippi, Inc.

HALL OF MISSISSIPPI, INC. 775 Hall of Mississippi, Inc. and Graphic Arts Interna- tional Union AFL-CIO, CLC. Cases 26-CA- 7485, 26-CA-7596, and 26-CA-7689 May 23, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On January 25, 1980, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a brief, the Charging Party filed a brief in opposition to Respondent's exceptions, and the General Counsel filed a memorandum in sup- port of the Administrative Law Judge's Decision. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions, briefs, and memorandum and has decided to affirm the rulings, findings,' and conclusions of the Adminis- trative Law Judge and to adopt his recommended Order. 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Hall of Missis- sippi, Inc., Corinth, Mississippi, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless he clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect, Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. We also find totally without merit Respondent's allegations of bias and prejudice on the part of the Administrative Law Judge Upon our full consideration of the record. we perceive no evidence that the Adminis- trative Law Judge prejudged the record, made prejudicial rulings, com- mitted procedural errors, distorted the record, or in any way demonstrat- ed a bias against Respondent in his analysis or discussion of the evidence 2 We have modified the Administrative l.aw Judge's notice to conform with his recommended Order 249 NLRB No. 119 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Following a hearing at which all parties had the opportunity to present their evidence and cross-ex- amine witnesses, the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice. WE WILL NOT isolate from other employees those employees who support the Union. WE WILL NOT announce that company rules will be enforced more strictly. WE WILL NOT question employees about their union sentiments. WE WILL NOT tell employees they will not be allowed to use the telephone for personal business. WE WILL NOT tell employees they are being laid off because of their activities on behalf of the Union. WE WILL NOT tell employees that we will transfer work to another plant in order to dis- courage activity on behalf of the Union. WE WILL NOT tell employees that supervi- sors will be fired for allowing the Union to come in. WE WILL NOT tell employees they are making a big mistake by supporting the Union and will learn the hard way. WE WILL NOT discourage membership in, or activities on behalf of, Graphic Arts Interna- tional Union, AFL-CIO, CLC, or any other labor organization of our employees, by laying off, discharging, or demoting employees be- cause of their union activities, or by otherwise discriminating in regard to their hire or tenure of employment, or any terms or conditions of their employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them under Sec- tion 7 of the National Labor Relations Act, as amended. WE WILL restore William Harris to his former position as leadman and make him whole for any loss of earnings he may have suffered by reason of his unlawful demotion. WE WILL offer Louis McGaha, James Childers, Paula Elliott, and Bob Weathers im- mediate, full, and unconditional reinstatement to their former jobs and, to the extent we have HALL OF MISSISSIPPI. INC. 775 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not already done so, make similar offers to Butch Marindale, Ken Wiginton, Robb Marlar, Dan Willis, Pat Loftus, Diane Steen, and Kathy Dyson, or, if such jobs no longer exist, to substantially equivalent jobs, without preju- dice to their seniority or other rights and privileges previously enjoyed, and WE WILL make them whole by paying to them, with in- terest, the wages which they lost because they were either discharged or laid off unlawfully. You are free to become and remain members of Graphic Arts International Union, AFL-CIO, CLC, or any other labor organization. HALL OF MISSISSIPPI, INC. DECISION STATEMENT OF THE CASE HENRY L. JALETTE, Administrative Law Judge: This proceeding involves allegations that Hall of Mississippi, Inc., herein called Respondent, violated Section 8(a)(l) and (3) of the National Labor Relations Act, as amend- ed. This proceeding is based on charges filed by Graphic Arts International Union, AFL-CIO, herein called the Union, in Cases 26-CA-7485, 26-CA-7589, and 26-CA- 7596, on November 2, 1978 ,' and January 17 and 29, 1979, respectively. On December 15, a complaint was issued in Case 26-CA-7485, and on February 16, 1979, an amended complaint was issued consolidating all three cases. On June 5 through 8, 1979, a hearing was held in Corinth, Mississippi. Upon the entire record,2 including my observation of the witnesses, and after consideration of the briefs of the parties, I hereby make the following: FINDINGS OF FACT I. FACTUAL SETTING Respondent is engaged in the printing business in Cor- inth, Mississippi. 3 Its plant employed about 600 employ- ees at times relevant herein. About mid-October the Union began an organizational drive among Respond- ent's employees. After three or four meetings a number of employees agreed to become members of an in-plant organizing committee, and on October 31 the Union sent a letter to Respondent notifying it of the identity of the committee members. That same day about noon the com- mittee members began wearing either union buttons or hats while at work. Later that day Respondent an- nounced an impending layoff. The following day at or about 11:30 a.m. seven of nine committee members and four other employees were told they were being laid off. On November 3 the laid off employees were recalled to Unless otherwise indicated, all dates are in 1978. 2 Respondent's unopposed motion to correct the transcript is hereby granted. 3 Jurisdiction is not in issue. Respondent admits it meets the Board's direct inflow and outflow standards for the assertion of jurisdiction. work, but they were offered employment in jobs differ- ent from what they had held when they were laid off. The layoff described, certain statements of alleged su- pervisors, and the discharge of four employees are al- leged to have been violative of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged 8(a)(3) Violations 1. The layoff The issue presented regarding the layoff of November I referred to above is the motive behind it. General Counsel and the Union contend it was motivated by the employees' union activities, whereas Respondent con- tends that it was motivated by economic considerations. I find that the layoff was attributable to the employees' union activities and was for the purpose of chilling any further union activities. This finding is predicated on the timing of the layoff, the manner in which it was effected, the almost contemporaneous recall, the treatment ac- corded employees who supported the Union who were not laid off, and the absence of any probative evidence of economic necessity. At the outset, the fact of union activity among Re- spondent's employees, and in particular on the part of the laid off employees (with exceptions hereinafter dis- cussed), and Respondent's knowledge of such activity, cannot be questioned. Union Representative George Coston testified that on October 31 he mailed a letter to Respondent notifying it of the existence of an organizing committee and identifying its members. His testimony is corroborated by General Counsel's Exhibit 5 and the tes- timony of Postmaster Harwell, both of which indicate delivery of the letter to Respondent on October 31. Re- spondent never adduced testimony to deny receipt of the letter. In addition, the uncontradicted testimony of the employees indicates that all the employees on the com- mittee displayed union insignia on October 31 prior to the announcement of a layoff.4 As to the timing of the layoff, uncontradicted testimo- ny 5 reveals that on October 31, scant hours after receipt of the Union's letter, Respondent announced an impend- ing layoff, and, on November 1 at 11:30 a.m., 11 employ- ees were laid off effective immediately, all from the film department, 7 of whom had been identified in the Union's letter as members of the organizing committee. For reasons unexplained by Respondent, the employees were ordered to gather their personal belongings and to leave the plant immediately, and they were escorted out of the plant. The only department to undergo a layoff was the film department. These bare facts alone almost compel the inference that the layoffs were attributable to the employees' union activities. The inference is further buttressed by the un- contradicted evidence that the day before, after the an- nouncement of a layoff, Supervisor Duffy had posted a 4 Any variances in the testimony of the employees on this issue are clearly attributable to errors of recollection. The testimony as a whole supports the finding above. 5 Employees William Harris, Tim Gray, Louis McGaha, Robb Marlar, and Bobby Weathers. __ . HALL OF MISSISSIPPI, INC. 777 notice on the bulletin board next to the film department timeclock that commencing immediately breaks would be strictly limited to 10 minutes in the morning, 10 in the afternoon, and none during overtime. This was essential- ly a repetition of the rule in the company handbook, but, according to the uncontradicted testimony of Robb Marlar, the rule had not been enforced, and supervisors had participated with employees in breaks of more than 10 minutes' duration. Respondent offered no evidence to explain why it posted the notice. In addition, on November 1, after the layoff, employ- ees Bill Harris and Tim Gray, members of the organizing committee, were called into a meeting with supervisors in which Plant Manager Lester Jeup told them they would not be allowed to use the telephone for personal business and warned they would be discharged the first time they stepped out of line. Respondent adduced no evidence that either Harris or Gray had been using the telephone for personal use, nor did it show that any problem existed which warranted the issuance of a warn- ing. Its conduct was wholly unexplained. In light of the timing of the posting of the notice rela- tive to breaks and the admonition of Harris and Gray relative to telephone usage, the absence of any showing that the actions were required to remedy problems that existed with regard to such matters, and the fact that only Harris and Gray were singled out for the admoni- tion on telephone usage, the conclusion is warranted, and I find, that the actions were taken because of Harris' and Gray's union activities. Accordingly, I find that Re- spondent violated Section 8(a)(l) and (3) of the Act by telling Harris and Gray they would not be allowed to use the telephone for personal business and threatening them with discharge the first time they stepped out of line. While there is no evidence that prior to Jeup's state- ment Harris and Gray had used the telephone for person- al business, it is evident that employees were permitted to do so, else Jeup would not have announced a prohibi- tion on such use. The notice relative to break periods also represented a change in the existing practice and a more stringent enforcement of company rules. Accord- ingly, as the change was motivated by the employees' union activities, I find that Respondent thereby violated Section 8(a)(3) and (1) of the Act. At the same meeting in which Harris and Gray were admonished, Jeup told Harris that as a result of the layoff he would no longer be a leadperson in his depart- ment. Respondent offered no testimony in explanation of the demotion of Harris, but counsel argues, "the reasons are as perfectly obvious as they are legitimate"; namely, that with the layoff the ratio of leadpersons to employees did not justify the position. The argument has no merit. Assuming, arguendo, the layoff was legitimate, it is clear that it was temporary, and it defies credulity to believe that an employer would demote a leadperson because of a temporary reduction in force. Significantly, although there were two other leadpersons in the film department, they were not demoted. Moreover, according to Harris' uncontradicted testimony, in December he was offered reclassification to leadperson again although the employ- ee complement had not been reestablished. However, the offer was conditional on Harris' signing a statement that he possessed supervisory authority, authority which he had not possessed when he was a leadperson. When one considers all the foregoing circumstances, it is perfectly obvious, and I find, that Harris was demoted because of his union activities and as part of Respondent's efforts to chill union activity in the plant, and that Respondent thereby violated Section 8(a)(1) and (3) of the Act. The record indicates that on November 2 all the laid off employees were recalled to work and offered jobs, albeit not the jobs they had previously held, and they were paid for the time they had lost between the layoff and their return to work. Respondent offered no explana- tion for the recall and one need not conjecture about the reasons therefor. The inference that can be drawn from the fact that the recall was made immediately after the layoff is that the layoff was not necessary in the first place and that it was attributable to other than economic considerations. It may be argued that the recall was made when Respondent discovered vacancies for the em- ployees, but that would not explain why the existence of vacancies was not ascertained before the layoff and a layoff was precipitately made. The foregoing circumstances are so compelling in sup- port of a finding that the layoff was unlawfully motivat- ed that they could only be overcome by very convincing evidence of economic justification. To put it generously, Respondent's evidence was not persuasive. Respondent's Corinth, Mississippi, plant is relatively new and is essentially a duplicate facility, except smaller, of a plant owned and operated by Respondent in Chica- go.6 According to Christopher Donnelly, vice president of manufacturing, the Corinth plant did printing work on three major publications: National Geographic, Avon Products, and Spiegel. The burden of his testimony, and that of Richard Merwin, manager of operations, was to establish that the volume of work in the film prep area, the only area in which a layoff occurred and the area of union activity, had dropped. Respondent offered no rec- ords to support this testimony, and a careful reading of the testimony persuades the reader that it is meaningless. Thus, Donnelly testified that Avon decided to give part of its business to another printer, but admitted this deci- sion did not come about until 4 or 5 months before the hearing; that is, in January or February. Merwin, for his part, testified there was no Spiegel work after October, but admitted that film work for Spiegel was being done in Respondent's Chicago plant. The foregoing are the only specifics that I could glean from Donnelly's and Merwin's testimony about the need for a layoff, and its lack of significance was rendered evi- dent by the admission of Donnelly that the decision where to perform work, whether in Chicago or Corinth, is made in Chicago, and by Merwin's admission that he did not know beforehand there was going to be a layoff, yet he was manager of operations. In my judgment, what is significant is the fact that Re- spondent adduced no evidence as to when the decision was made to layoff employees and by whom, that Re- spondent did not contradict the testimony of laid off em- ployees Bill Harris and Robb Marlar that Supervisor I Respondent has two plants in Chicago and one in Tennessee. HA L O-ISS I PI .7 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Walter Hlady told them in September of an impending expansion of work to two shifts, that at the time of the layoff the employees were working overtime, and that, in any event, certain of the employees were trainees who spent part of their time doing practice work. These facts belie the claim of lack of work, and, in light of all the circumstances set forth above, I conclude and find that the employees were laid off on November because of their union activities and/or to chill any further union activity among employees.' 2. The alleged constructive discharge of Jim Childers and Louis McGaha Jim Childers and Louis McGaha were among the em- ployees unlawfully laid off on November 1. They, and Ken Wiginton, another employee unlawfully laid off on November 1, were recalled to work on November 2 and reported on November 3. Childers did not testify, but, according to Wiginton, he and Childers were assigned the task of climbing into a trash dumpster to rummage and extract copies of National Geographic. According to Wiginton, Childers was an artist who had been working in the retouching area of the film department, and he re- fused to do the work and left. He has not been recalled to work. McGaha was assigned to the mailing depart- ment sacking National Geographic magazines, a job he had performed earlier in his employment before his transfer to the film department. He worked on Novem- ber 3, but did not return thereafter and was terminated as a 3-day voluntary quit. The complaint alleges that McGaha and Childers were constructively discharged. In the case of Childers, there is no showing he was discharged by Respondent for re- fusing the assignment given to him on November 3, and a finding of a discharge therefore cannot be made. How- ever, it is clear that his recall to work on the dumpster was not a recall to his former, or substantially equivalent job, and, as he has not been recalled to work in the film department from which he was unlawfully laid off, I shall recommend that he be reinstated to his former, or substantially equivalent job, and that he be made whole for any loss of earnings from the date of his layoff to the date of his reinstatement. McGaha's case is somewhat different from Childers'. He was recalled to work he had previously performed and he voluntarily quit. Assertedly, this was because he did not like the job and because he was hassled by Fore- man Vastlick. I am not persuaded that McGaha was has- sled and do not believe this was his reason for not re- turning to work. I am persuaded, rather, that he objected to being returned to work which was less interesting and which did not offer the opportunities for advancement offered in the film department. In any event, the job was not the job from which he had been unlawfully laid off. Accordingly, he was not required to continue in it, and I Laid off employees James Childers, Pat Loftus, Kathy Dyson, and Diana Steen were not on the organizing committee or otherwise shown to be active on behalf of the Union. They were less senior than other laid off employees who were on the organizing committee, and it is clear that their layoff was essential to give colorable support to the claim of lack of work. As the claim has been found to lack merit, their layoff was also unlawful. Arnoldware. Inc., 129 NLRB 228, 229, 239-240 (1960). Respondent could not discharge him for quitting it. As he was not reinstated to his former, or substantially equivalent job, I shall recommend that he be reinstated to his former, or substantially equivalent job, and that he be made whole for any loss of earnings from the date of his layoff to the date of reinstatement. 3. The isolation and discharge of Paula Elliott a. The facts Paula Elliott was hired in November 1977 as a film handler. She was one of the employees on the organizing committee and put on a union hat and button on October 31. She was laid off on November I and subsequently re- called to work, reporting on November 6. She was as- signed to work in the cylinder prep department under Supervisor Francis Cassidy. About I week and a half before Christmas, she was transferred to the roto-film operation by Supervisor Richard Duffy. Although she had done some practice work when first assigned to the cylinder prep department, she was doing "live" work when she was removed by Duffy and transferred to the roto-film operation. The roto-film operation was near the film department area and consisted of three wall-enclosed rooms which physically separated the operation from the film depart- ment area, The roto-film process was inoperative at the time, and Elliott's assignment was to clean the area with broom and mop. She was also told to clean some tanks used in the roto-film process, but was unable to because the water was shut off due to repair work then under- way, a fact she reported to Duffy. Elliott testified, without contradiction, that she did the cleaning job in 2 days. After that, she had nothing to do and she asked Supervisor Duffy to be returned to cylin- der prep, but he refused on the ground they were going to get supplies and film for her to work on. Elliott testi- fied Duffy never came to the roto-film room, and she had to hunt him down repeatedly to ask him to be moved. On one occasion Cassidy came to the roto-film room, and she asked to be reassigned to cylinder prep; he told her she would have to speak to Duffy. Having no work, she stayed in the room and read. On December 26 Elliott tried to see Duffy, but was unsuccessful. Disgusted, she left the plant about 9 a.m. and called from home to report to a guard that she would not be in the rest of the day. She reported for work on December 27 and was told to go home by Foreman Cassidy. The following day she was discharged for leaving work without permission. b. Analysis and conclusions The complaint alleges that Respondent assigned Elliott to a job isolated from other employees because of her union activities. The allegation is supported by substan- tial evidence. The only testimony relative to Elliott's assignment to roto-film was hers and that of Foremen Cassidy. Al- though he had been her supervisor in cylinder prep and testified she was doing good work, he admitted she was transferred to roto-film without consultation with him. She was assigned to a room, all by herself, to do work HALL OF MISSISSIPPI, INC. 779 which a film handler normally would not do, although the roto-film process was not only inoperative, but was not even doing test work because of operational difficul- ties. When one considers these circumstances, and El- liott's testimony, which I credit, of her efforts to be as- signed where she would have work to do, including reassignment to cylinder prep, the conclusion is inescap- able, and I find, that Elliott was assigned to the roto-film department because of her union activities and in order to isolate her from other employees, and that Respond- ent thereby violated Section 8(a)(l) and (3) of the Act. As to Elliott's discharge, the complaint alleges it was attributable to her union activities. In my judgment, the discharge is integrally related to Respondent's unlawful conduct in isolating Elliott from other employees and leaving her day after day with nothing to do. This con- duct, I find, was designed to provoke Elliot into quitting, or walking out as she did, and providing a pretext to dis- charge her. Accordingly, I find that her discharge was violative of Section 8(a)(l) and (3) of the Act.8 4. The isolation and discharge of Bob Weathers a. The facts Weathers was hired on July 24 as a material handler. According to records of Respondent, on August 21 he transferred to the film department. He was a member of the organizing committee and one of the employees laid off on November 1. On November 3 he and Robb Marlar, another discriminatorily laid off employee, were recalled to work and assigned to work under Project En- gineer Jerry Goggins. The job they were assigned to consisted of taking inventory of electrical wire which was stored in a room about 20 by 30 feet and which was away from other employees. It was also about 150 to 200 yards away from the break area so that Marlar and Weathers could not go to the break area for a break without exceeding the time allotted. Marlar and Weath- ers did this inventory for about 7 weeks, during which period they were also assigned to inventory some other construction materials that were brought to the area. On or about January 8, 1979, Marlar was returned to his old job. I The principal argument of Respondent relative to Elliott's case is that her testimony is not credible. Thus, Respondent argues that Elliott could not quit in disgust on December 26 over the failure of her supervi- sor to give her work because she had only been assigned to roto-film on December 21. This argument is based on asserted inconsistencies in El- liott's testimony and Foreman Cassidy's testimony. Foreman Cassidy's testimony is entitled to no weight at all. An examination of it indicates a lack of personal knowledge about Elliott's treatment (which was handled by Duffy, who, for unexplained reasons, did not testify) and a significant lack of certainty about the whole Elliott manner For example, the asser- tion of Respondent that Elliott was assigned to roto-film on December 21 and not December 12 or 13 is based on the following testimony of Cas- sidy: Q: Do you recall-I don't think there's any dispute on this, Your Honor-that Ms. Elliott was assigned to you on December 21st. 1978? A. I guess that's the date Whatever variances in Elliott's testimony relative to the date of her as- signment, her testimony was much more reliable than testimony such as that of Cassidy, particularly on a matter within Respondent's knowledge Weathers had been told by Duffy on or about Decem- ber 9 that he would be returned to the film department on March 1 or 15. On January 9, after Marlar had been returned to his former job, Weathers complained to Lester Jeup, assistant plant manager, that laid off em- ployee Diane Steen had been recalled to the film depart- ment although she had less seniority than he did. Jeup told Weathers that he and Steen had started the same day, August 21. Weathers disputed this and claimed he had started on August 16. At a later meeting the same day, with Duffy and Gog- gins present, Jeup told Weathers that he had confirmed the seniority dates and both Weathers and Steen had started in the film department on the same day. He added that, in any event, during his employment in the film department, Weathers had been evaluated as highly unqualified, and he would not therefore be returned to that department. The following day Weathers went to the film depart- ment and met with Supervisor Walter Hlady. Hlady had an evaluation form which he read to Weathers and which showed Weathers with a score of 38. Hlady ten- dered the form of Weathers to sign and Weathers asked for witnesses. Hlady rejected his request. Thereupon, Weathers pulled an ink bottle from a jacket he was wear- ing, placed it one the desk, unstopped it, and struck his fingers into the bottle. Upon seeing this action, Hlady grabbed for the ink. The ink spilled on the evaluation form and splattered Hlady. Still holding the form, Weathers placed it against a file cabinet and smeared his fingerprints on it. Then, he returned the form to Hlady, said this is a bunch of "f--- lies," and called out the office door for witnesses. By this time, Hlady was upset over the ink on his clothes and asked who would pay for the damage to his shirt. He closed the office door, but Weathers opened it and walked out with the form with Hlady trying to grab it from him. Weathers showed the form to employees Harris and Marlar, walked back to the office, and threw the form and two $20 bills on the floor with the remark, "There's for your f-- shirt." Weathers left the plant and was subsequently fired be- cause of this incident. b. Analysis and conclusions The assignment of Weathers and Marlar to an isolated work area on a nonproduction job follows the pattern of the assignment of Elliott discussed above, with the ex- ception that the taking of an inventory is a normal busi- ness function. In Elliott's case the sheer lack of need for the service she was told to perform and her enforced id- leness were important considerations in support of a find- ing that the assignment was discriminatorily motivated. There was no such lack here and Weathers and Marlar were not idle. Nevertheless, I am persuaded and find that the assignment of Weathers and Marlar to the task de- scribed was made with the purpose of isolating them from other employees. This finding is based on the facts that the layoff was not based on economic necessity but was unlawfully motivated, that but for the layoff Weath- ers and Marlar would have remained in the film depart- ment, that Respondent demonstrated by its conduct with regard to Elliott a purpose to isolate union supporters HALL OF MISSISSIPPI, INC. 779 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from other employees, and that the need for an inven- tory existed before November I and no employees had been assigned to do the work; and is based on the cir- cumstances that of all the possible assignments in a plant of about 600 employees, and of all the employees that one can reasonably assume were available for such an as- signment, Respondent chose two members of the Union's organizing committee. The discharge of Weathers poses a difficult issue. It is clear that he engaged in misconduct in Hlady's office for which he properly could have been discharged. Whether that misconduct was serious is not relevant. An employer may discharge an employee for any reason, or no reason, as long as union activity is not the basis of the discharge. N.L.R.B. v. Challenge-Cook Brothers of Ohio, Inc., 374 F.2d 147 (6th Cir. 1967). Thus, inquiry into Weathers' discharge cannot be limited to what happended on Janu- ary 16. To the contrary, one must consider the entire congeries of facts leading up to Weathers' evaluation and his response to it. A review of such facts must begin with the initial fact found above that Weathers had been unlawfully laid off on November 1. This unlawful act was followed by Weathers' isolation from his fellow employees. During the period of isolation, according to Weathers' and Mar- lar's uncontradicted testimony, on December 9 Supervi- sor Duffy, the main supervisor of the film department, told Weathers he would be returned to the film depart- ment somewhere between March 1 and March 15, 1979. Despite this, when Weathers inquired on or about Janu- ary 11 into the reassignment to the film department of employee Diane Steen, who he believed had less senior- ity than he,9 he was initially told he was mistaken and later told that he would not be reassigned to the film de- partment because of a poor evaluation. It is in this setting that Weathers approached the meet- ing with Supervisor Hlady, and, despite the fact that he had not previously been criticized about his progress or ability to do the work in the film department, and that he had been told on December 9 that he would be re- turned to the film department, he was confronted with an evaluation form in which he was given a rating of 38 out of a possible 83, a rating which purportedly had been made on December 4. In the circumstances, the conclu- sion is warranted, and I find, that Weathers' conduct in thereupon smearing the evaluation form with ink was provoked by Respondent's own conduct. I further find that Respondent's conduct was motivated by the fact that Weathers was a union supporter and a member of the organizing committee. This finding is based on the circumstances described above, the further fact that on November 20 Weathers had received a raise, and the fact that Marlar, who had received an evaluation rating of 36, had been reassigned to the film department. Respond- ent has not explained why Marlar was eligible for such reassignment and Weathers was not. Of course, Marlar 9 Respondent's records indicate that Weathers had originally been as- sitned to the film department on August 21. Jeup told Weathers this was the same date Steen had originally been assigned to the film department, and there is no evidence to the contrary In the circumstances, it would appear, and I conclude, that Weathers was mistaken in his assertion that he had more seniority than Steen was also a union supporter and a member of the organiz- ing committee, and Respondent could have utilized the same evaluation form procedure to deny him reassign- ment. Why it did not do so is not explained, but the fact that it did not do so does not mean that its conduct vis-a- vis Weathers was motivated by valid business consider- ations rather than antiunion motive. In light of all the circumstances enumerated above, the conclusion is war- ranted, and I find, that the discharge of Weathers was based upon his union activities, that the conduct of Weathers on January 16 was provoked by Respondent, and that it was not such misconduct as to warrant a denial of reinstatement. B. The Alleged Interference, Restraint, and Coercion 1. By Jimmy North The complaint alleges unlawful interrogation by Su- pervisor Jimmy North. No evidence was adduced in sup- port of the allegation. Accordingly, it shall be dismissed. 2. By William Paul The complaint alleged Supervisor William Paul en- gaged in unlawful interrogation, told employees Re- spondent would transfer work from its Corinth plant to its Chicago plant to keep out the Union, and told em- ployees they were being laid off because of their union activities. There is no evidence of interrogation by Paul and the allegation to that effect shall be dismissed. The other two allegations are based on the testimony of alleged discriminatees Paula Elliott and Dan Willis. Elliot testified that about 10 a.m., on November 1, they had a conversation about the Union with Paul in the darkroom. According to Elliott, the conversation started about the impending layoff which Duffy had just an- nounced. Elliott asked Paul who was going to be laid off, and he replied probably all of the people involved in the Union. She asked him if that included her and Willis, and Paul said yes. According to Willis, he pointed to the union button he was wearing and asked if that was the reason they were being laid off, and Paul said that was what it amounted to. Paul also complained about treatment he had received at the hands of the Union in the past (apparently when Paul had been a union member), and, according to Willis, he said the Union was trying to cause confusion to get the work in Corinth sent back to Chicago. Willis asked why Respondent could not pay them more money and keep the work there. Paul said Respondent would rather sacrifice them (the employees) and keep the Union out. The testimony of Elliott and Willis was not contradict- ed and is credited.' ° The statement that the employees were being laid off because of their union activities was clearly a coercive statement. In this statement about the Chicago plant as described by Willis, Paul did not state expressly that Respondent would transfer the work from 'o There are variances between Willis' and Elliott's versions of the conversation with Paul, but they do not warrant a rejection of their testi- mony. HALL OF MISSISSIPPI, INC. 781 Corinth to Chicago, but in the context of the entire con- versation he implied as much. In short, if Paul was a su- pervisor within the meaning of Section 2(11) of the Act, as General Counsel contends, Respondent violated Sec- tion 8(a)(1) of the Act. Respondent contends that Paul was not a supervisor but a trainer, and that it is therefore not responsible for his statements. I do not agree. The record indicates that Paul was a salaried employ- ee, receiving $21,465 per year. He attended department head or other supervisory meetings, and, according to his immediate supervisor, William Ransome, manager of the gallery section of the film department, Paul partici- pated with him in the discussion of the evaluation of em- ployee performance. According to employees Elliott and Willis, Ransome told them when they were assigned to the gallery section that Paul was the supervisor. Ran- some himself testified that when employees were as- signed to that section they understood they were to listen to Paul. In this connection, Willis testified that he received his work assignments from Paul. He testified further that on one occasion Paul told him his record had been pulled for tardiness or absenteeism, and that Paul had been told by Assistant Plant Manager Jeup to straighten this problem out. Accordingly to Elliott, she asked Paul for time off and he granted her request. She testified he did this without checking with anyone. Ac- cording to Ransome, Paul would discuss such requests with him. He indicated, however, that if Paul was satis- fied that was enough for him, thereby admitting that Paul effectively granted the request. ' On the basis of the foregoing, the conclusion is war- ranted, and I find, that Paul had the authority, in the in- terest of Respondent, responsibly to direct employees, to grant them time off, and to effectively recommend their retention, discipline, or promotion, and that he was a su- pervisor within the meaning of Section 2(11) of the Act. Record testimony indicates that on November I Paul was at a local restaurant with a number of the employees laid off that day. According to employee Elliott, Paul told the employees he would probably get fired because of the Union's trying to come in. Employee Marlar cor- roborated Elliott, albeit his version of Paul's statement was that Paul figured a number of supervisors were "fixing" to get fired because they "let us get as orga- nized as we had gotten. And we figured that he would be one of them." According to Marlar, Paul also said "he had tried to tell us this was going to happen." The complaint alleges Paul's statements were coercive. I agree that his statement that supervisors would be fired for allowing the Union to come in was coercive because it demonstrated to employees the lengths to which Re- spondent would go to prevent them from selecting a union to represent them, and warranted an inference on their part that they would also be fired. I deem Paul's statement that "he had tried to tell us this was going to happen" insufficient to support a finding of a violation. I I Paul's authority in this regard was corroborated by Supervisor Cas- sidy's testimony that on the day Elliott left the plant without notice she could have reported her leaving to Paul 3. By Terry Payne On November 3, while employees Marlar and Weath- ers were waiting in the office to be assigned to new jobs, Terry Payne, an alleged supervisor, walked by in the company of an unidentified individual, and, as he was passing by, he asked them how their campaign was going. They said it was great. The individual with Payne was overheard asking Payne, "Who are they?" or, "What's going on?" and Payne replied, "They're trying to get a union started." The complaint alleges that the foregoing constituted unlawful interrogation. Assuming, arguendo, that Payne was a supervisor within the meaning of the Act, I am unable to see how a query such as this, made in passing to two employees who had publicly demonstrated their support of the Union, would tend to coerce employees. Accordingly, I shall dismiss the allegation. 4. By Walter Hlady According to employee Weathers, about 11:30 a.m. on October 31, he was called into Supervisor Hlady's office where Hlady asked him how he felt about a union shop. Weathers replied he favored it. Hlady then said, "Well, every printing shop that's ever had a union has gone broke . . . Unions . . . that's why the plant came down here, the plant lost so much money last year." About this time, employees Tim Gray, Robb Marlar, and Bill Harris entered the office and there followed a discussion about unions. Gray had no recollection of what was said, and Weathers did not attribute any significant statements to Hlady. Harris, however, testified that, in addition to de- scribing unions as dishonest, Hlady asked the employees what they hoped to gain "out of this." Marlar testified Hlady asked why they were unhappy with their wages. Hlady said that every printing shop that had a union went out of business; that they were making a big mis- take and were going to learn the hard way. The foregoing testimony was uncontradicted and I credit it. I find that Hlady's interrogation of Weathers on how he felt about a union shop and his asking employees what they hoped to gain constituted unlawful interroga- tion in violation of Section 8(a)(l) of the Act, inasmuch as the entire discussion had no legitimate purpose and in- cluded implied threats of reprisal. The threats, which I find were violative of Section 8(a)(1) of the Act, consist- ed of Hlady's remarks that the employees were making a big mistake and were going to learn the hard way. IIl. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section 1, above, occurring in connection with its operations de- scribed therein, have a close, intimate, and substantial re- lationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of HALL OF MISSISSIPPI, INC. 781 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In particu- lar, I shall recommend that Respondent restore William Harris to his former position of leadman, and that it make him whole for any loss of earnings he may have suffered by reasons of his unlawful demotion by payment to him of the difference between the wages he received after his demotion and the wages he would have re- ceived as leadman, with interest added thereto in accord- ance with Florida Steel Company, 231 NLRB 651 (1977).12 1 shall recommend further that Respondent offer Louis McGaha, James Childers, Paula Elliott, and Bob Weathers immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substan- tially equivalent jobs, without prejudice to their seniority or other rights and privileges, and that it make them whole for any loss of earnings they may have suffered by reason of their unlawful layoff and/or discharge by payment to them of the amount of money they would have earned from the date of their layoff or discharge until the date of Respondent's offer of reinstatement computed in the manner described in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon computed as above described. As to the remaining em- ployees unlawfully laid off on November I and subse- quently recalled, I shall recommend that, if they have not been reinstated to their former jobs, Respondent offer them immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substan- tially equivalent jobs. In my judgment, Respondent's conduct in not only laying off employees, but thereafter isolating union sup- porters from other employees and seizing upon pretexts to discharge employees who had previously been unlaw- fully laid off, demonstrates a flagrant disregard for the rights of employees under the Act, and warrants the issu- ance of a broad remedial order. CONCLUSIONS OF LAW 1. Hall of Mississippi, Inc., is an employer engaged in commerce within the meaning of Section 2(5) of the Act. 2. Graphic Arts International Union, AFL-CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. By laying off employees Bob Weathers, Butch Mar- tindale, Kenneth Wiginton, Louis McGaha, Jim Childers, Robb Marlar, Dan Willis, Paula Elliott, Pat Loftus, Diane Steen, and Kathy Dyson, by discharging Louis McGaha, Paula Elliott, and Bob Weathers, by demoting William Harris from his position as leadman, by isolating Paula Elliott, Robb Marlar, and Bob Weathers from other employees, by telling employees they would not be allowed to use the telephone for personal business, and by announcing more stringent enforcement of company rules, all because of the union activities of the employees named above, or to cloak the fact of unlawful discrimina- tion against employees active on behalf of the Union and to chill any further union activity among its employees, Respondent has engaged in, and is engaging in. unfair 2 See, gellerally, fis Plumnbing Ifeating (o., 138 NI.RH 71 It il 2). labor practices within the meaning of Section 8(a)(l) and (3) and Section 2(6) and (7) of the Act. 4. By interrogating employees about their union senti- ments in a manner or under circumstances tending to coerce them, by telling employees they were being laid off because of their union activities, by implying the plant would transfer work from the Corinth plant to the Chicago plant in order to discourage union activity at Corinth, by telling employees supervisors would be fired for allowing the Union to come in, and by telling em- ployees they were making a big mistake and would learn the hard way, Respondent has engaged in, and is engag- ing in, unfair labor practices within the meaning of Sec- tion 8(a)(1) and Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 13 The Respondent, Hall of Mississippi, Inc., Corinth, Mississippi, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees about their union senti- ments in a manner or under circumstances constituting interference with and restraint and coercion of employ- ees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. (b) Telling employees they are being laid off because of their union activities. (c) Implying Respondent would transfer work to an- other plant in order to discharge union activity. (d) Telling employees supervisors would be fired for allowing the Union to come in. (e) Telling employees they were making a big mistake by supporting the Union and would learn the hard way. (f) Discouraging membership in, or activities on behalf of, Graphic Arts International Union, AFL-CIO, CLC, or any other labor organization of its employees, by laying off, discharging, and demoting employees, by iso- lating employees who support the Union from other em- ployees, by telling employees they would not be allowed to use the telephone for personal business, or by an- nouncing more stringent enforcement of company rules, all because of the union activities of its employees, or to cloak the fact of unlawful discrimination against employ- ees active on behalf of the Union and to chill any further union activity among its employees, or by otherwise dis- criminating in regard to the hire or tenure of employ- ment or any terms or conditions of employment of its employees. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form, join, or assist labor organiza- tions, to bargain collectively through representatives of their own choosing, and to engage in other activities to- ': In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National abhor Relations Board, the findings. conclusions. and recontmmended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, he adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed wai ved foir all purposes HALL OF MISSISSIPPI, INC. 783 gether for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Restore William Harris to his former position as leadman and make him whole for any loss of earnings he may have suffered by reason of his unlawful demotion in the manner set forth in the section of this Decision enti- tled "The Remedy." (b) Offer Louis McGaha, James Childers, Paula El- liott, and Bob Weathers immediate, full, and uncondition- al reinstatement to their former jobs, and to the extent it has not already done so make similar offers to Butch Martindale, Ken Wiginton, Robb Marlar, Dan Willis, Pat Loftus, Diane Steen, and Kathy Dyson, or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them by payment to them of a sum of money equal to the amount they normally would have earned as wages from the date of their discharge and/or layoff to the date of their reinstatment in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Corinth, Mississippi, facility copies of the attached notice marked "Appendix." 14 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's rep- resentative, shall be posted by it immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (e) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of the complaint found not to have been supported by a pre- ponderance of the evidence be dismissed. 14 In the event that this Order is enforced by a Judgment of a Ulnited States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " HALL OF MISSISSIPPI, INC. 783