Lloyd's Ornamental And Steel Fabricators, Inc.

LLOYD'S ORNAMENTAL AND STEEL FABRICATORS Lloyd's Ornamental and Steel Fabricators, Inc. and District No. 9, International Association of Ma- chinists and Aerospace Workers , AFL-CIO. Case 14-CA-6427 June 9, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On February 28, 1972, Trial Examiner James V. Constantine issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions,2 except to the extent modified below, and to adopt his recommended Order. We agree with the Trial Examiner's conclusion that Respondent violated Section 8(a)(3) and (1) by its layoff of seven employees on August 10, 1971. However, we rest this conclusion solely on the following grounds: (1) Respondent's decision to lay off employees was a hostile reaction to information it had just received concerning incipient union organi- zational activity of its employees and was calculated to chill such activity; (2) it would not have instituted any reduction in force on that date but for such organizational activity; and (3) its layoff of the seven employees thereby discriminated against all of them as a group.3 These grounds are amply supported by an analysis of the evidence as below recited. The Union's organizational campaign was spon- sored by employee George Sheets. It was actively begun on August 1 at a meeting attended by Sheets and four other employees, including Kenneth R. Lashley, a first cousin of Respondent's president, Lloyd Hinkle. At that time, Respondent had a total production and maintenance complement of 10 employees. Hinkle learned about the meeting shortly after it was held and, through his interrogation of Lashley on August 9, obtained the names of those in attendance and learned also that Sheets was the i In the absence of exceptions thereto, we adopt, pro forma, the Trial Examiner's dismissal of certain of the alleged 8(a)(I) violations 2 For the reasons set forth in his separate opinion in United Packing Company of Iowa, Inc, 187 NLRB No 132, Chairman Miller concurs in the issuance of the bargaining order but only on the basis of Respondent's serious violations of Section 8(a)(1) and (3) found herein 3 The Trial Examiner's Decision is grounded, in part, on a theory that, assuming arguendo, Respondent may have had economic justification for 367 union instigator. Thereupon, Hinkle told Lashley he "would lay off" all those who attended the union meeting on "the next evening." On the following day (August 10) and without any prior notice or announcement Hinkle orally advised each of the seven employees named in the complaint that he was being laid off at the end of that day (one falling in the middle of the workweek) because Respondent was "broke." The group laid off included all those employees who attended the union meeting except Lashley and one other employee. Contemporaneous- ly with the above events, Hinkle also engaged in other threats of plant shutdown and loss of jobs and interrogation. At the hearing Hinkle admitted that he had not, prior to August 10, planned to lay off any employees and did not definitively formulate a plan to make layoffs until that day. He assertedly reached this decision because (1) all the employees had concerted- ly engaged in a work shutdown; (2) parts for production were consequently overstocked; (3) the lumber companies had all of Hinkle's money tied up; and (4) there was always a lull in business in July and August of each year. The only documentary evidence adduced by Respondent in support of its asserted economic defenses related to the asserted lull in business. This evidence, although incomplete, tended to show rather that Respondent reached peak employment in 1968-70 in the month of August, that no reduction in force occurred in 1968 and 1969 until September and none in 1970 until October. No evidence was presented to substantiate the claim of excess inventory and no showing was made that any employee was accused of, or reprimanded for, engaging in a slowdown except for Sheets, who was the union instigator. Finally, as observed by the Trial Examiner, Respondent failed to explain why, if it was "broke," it had hired five additional employees, shortly prior to its layoff action, and had indicated to them that their jobs were permanent or of indefinite duration. Nor did it explain why it hired another employee shortly after the layoffs occurred. In all the circumstances above set out, we are persuaded that Respondent's decision to reduce its employee complement on August 10, 1971, was motivated, not by considerations of economic need, but by its hostility to the organizational activities of its employees and its desire to nip that activity in the bud. We therefore conclude that Respondent violat- reducing, as it did, its force on August 10, 1971 Respondent selected each of the individuals for layoff on the basis of his union activity or affiliation Respondent in effect points out, and we agree , that some of the seven individuals involved had engaged in no organizational activity before the layoff and signed cards authorizing the Union to represent them after the layoff had taken place , and that Respondent had no reason to believe to the contrary The Trial Examiner's errors in this respect , however, do not affect the validity of the theory on which we rest our 8(a)(3) and ( 1) findings 197 NLRB No. 71 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed Section 8(a)(3) and (1) by engaging in a mass layoff of employees and thereby discriminated against the seven affected employees as a group.4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondent, Lloyd's Ornamental and Steel Fabricators, Inc., Piedmont, Missouri, its officers, agents, successors, and assigns , shall take the action set forth in the Trial Examiner 's recommended Order. 4 Our Order herein shall not be taken as precluding Respondent from adducing evidence , if any, as to the date or dates that jobs for the laid-off employees would have become unavailable for nondiscriminatory reasons, following their layoffs, in mitigation of its backpay liability TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Trial Examiner : This is an unfair labor practice case litigated pursuant to the provisions of Section 10(b) of the National Labor Relations Act, herein called the Act, 29 U.S.C. 160(b). It was initiated by a complaint issued on October 27, 1971, by the General Counsel of the National Labor Relations Board , herein called the Board, through the Regional Director of Region 14 (St. Louis, Missouri), naming Lloyd's Ornamental and Steel Fabricators , Inc., as the Respondent. That complaint is based on a charge filed on September 13, 1971, by District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO, herein called District 9 or the Union. In substance the complaint alleges that Respondent violated Section 8(a)(1), (3), and (5), and that such conduct affects commerce within the meaning of Section 2(6) and (7) of the Act. Respondent has answered , admitting some allegations of the complaint , but denying that it committed any unfair labor practices . The answer also attacks the jurisdiction of the Board. Pursuant to due notice this case came on to be heard, and was tried before me, at Greenville, Missouri, on December 7 and 8, 1971. All parties were represented at and participated in the trial and had full opportunity to introduce evidence , examine and cross-examine witnesses, file briefs, and offer oral argument . Briefs have been received from Respondent and the General Counsel. This case presents the following issues: A. Whether Respondent: (1) Unlawfully interrogated employees regarding their union activity and sympathies ; (2) threatened reprisals against employees in order to discourage their union activity and sympathies ; and (3) refused to reinstate employees Charles O. Brinkley, Herbert L. Jones, Stanley McFadden, Jerry Warren, Jim Sanders, George A . Sheets, and Ralph Thompson, who had been laid off previously, because they had engaged in union and other protected activity. B. Whether: (1) The Union is a majority representative of employees in an appropriate unit ; (2) Respondent in bad faith has refused to bargain collectively with the Union as the majority representative of employees in an appropriate unit; and (3) jurisdiction should be asserted over the Respondent. Upon the entire record in this case, and from my observation of the demeanor of the witnesses , I make the following: FINDINGS OF FACT 1. AS TO JURISDICTION Respondent, a Missouri corporation, is engaged at Piedmont, Missouri, in manufacturing, selling, and distrib- uting ornamental iron and steel and related products. During the year ending September 30, 1971, which period is representative of its operations during all times material herein, Respondent manufactured, sold, and distributed products valued in excess of $50,000, of which products valued in excess of $21,567 were shipped directly to points located outside the State of Missouri. In addition, Respondent during the same period made sales of $41 ,368.50 to nine companies doing business in Missouri each of which meets a jurisdictional standard established by the Board. See General Counsel's Exhibit 2 for a list of said nine companies, their individual purchases from Respondent, and their individual interstate com- merce data. I find that Respondent is an employer as defined in Section 2(2) and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I further find that it will effectuate the purposes of the Act to assert jurisdiction over Respondent in this proceeding. The reason for this last finding is that the Board "will adhere to its past practice of adding direct and indirect outflow . . . Siemons Mailing Service, 122 NLRB 81, 85. As found above, Respondent had a direct outflow of $21,567 and an indirect outflow of $41,368.50. This satisfies the Board's requirement that jurisdiction will be asserted over nonretail enterprises which have an outflow of at least $50,000, whether such outflow be regarded as direct or indirect. For such purposes direct and indirect outflow will be added to ascertain whether the $50,000 standard has been met. Siemons Mailing Service, supra, at 85. II. THE LABOR ORGANIZATION INVOLVED District No. 9 is an organization in which employees participate and which exists for the purpose of dealing with employers concerning wages, rates of pay, hours of employment, and conditions of work. In this respect I credit the testimony of witness James M. Bagwell. Accordingly, I find that it is a labor organization within the meaning of Section 2(5) of the Act. LLOYD'S ORNAMENTAL AND STEEL FABRICATORS 369 III. THE UNFAIR LABOR PRACTICES A. General Counsel's Case 1. The alleged refusal to bargain By letter dated August 23, 1971, District No. 9 wrote to Respondent that the former represented a majority of the Respondent's production and maintenance employees and requested recognition as their representative. Said letter also requested that Respondent set a date when collective bargaining negotiations should commence. (See Exh. 3A.) It was received by Respondent. By letter dated August 24, 1971, Respondent replied to the foregoing letter, "This is to notify you that we have a good faith doubt of your majority. We also question their eligibility to vote." (See G.C. Exh. 3B.) It was received by District No. 9. ' As of August 19, 1971, Respondent had 14 persons on its payroll. (See G.C. Exh. 4.) Three of them were President Hinkle and his two sons, Lloyd, Jr., and Kenneth. It was admitted by Respondent's counsel that Respondent is "very much so" a closely held corporation. (See Tr. p. 18.) The status of Floyd McFadden and Gowen is in dispute, so that the remaining nine are conceded to be employees within the meaning of Section 2(3) of the Act. The Union obtained authorization cards from all nine of the persons admitted to be employees (See G.C. Exh. 5A-5H and 5J) and that of Floyd McFadden (See G.C. Exh. 51). All but one were obtained by August 19, 1971. That of Lashley is dated September 24, 1971. However, the card of employee Stanley McFadden was signed by him at the request of his father, Floyd McFadden. As noted above, Floyd's status is in dispute, the Employer contending that he is a supervisor. 2. The layoff of George Sheets Sheets was hired by Respondent on June 1, 1971, as a welder and truckdriver. About 2 weeks before this, when Sheets applied for a job, Lloyd Hinkle, Respondent's owner and president, told him that Hinkle would contact him if Hinkle needed him. On June 1, Hinkle came to the home of Sheets and invited Sheets to work for Respondent. Replying to a question of Sheets to whether it would be a steady job, Hinkle stated that it would be and that "you can have the job as long as you want, as long as you prove out to be a good employee." Thereupon Sheets reported to work at I p.m. of the same day. In the middle of July 1971, Sheets discussed the Union with employee Lashley and Floyd McFadden. On August 1, a meeting was held by the Union for Respondent's employees at Sam A. Baker Park, located about 15 miles from Piedmont. Floyd McFadden and employees Lashley, Brinkley, and Warren also attended. In addition Sheets signed a union card and obtained signatures to union authorization cards from employees Warren, Thompson, Brinkley, Lashley, Jones, Sanders, and Losh. (See G.C. Exh. 5A-5H.) He also gave a card to Floyd McFadden, whose status as an employee is being contested. McFadden signed and mailed his card to the Union. (See G.C. Exh. 5I.) Sheets worked as usual on August 10, 1971. About 5 or 10 minutes before quitting time, he was informed by President Lloyd Hinkle that Hinkle was "broke" and that, therefore, Sheets was going to be laid off. Sheets was thereupon laid off. Sheets had 2 days off coming to him in lieu of overtime worked. Hinkle reimbursed him for such overtime, amounting to the equivalent of 2 days' pay, rather than owe the 2 days off until Sheets came back to work. Sheets has not since been recalled to work. Employees who were retained had "seniority rights" over Sheets and others also laid off that day, according to Sheets. 3. The testimony of Kenneth R. Lashley Lashley was hired by Respondent in March 1965 as a welder. On September 24, 1971, he signed a union card. (See G.C. Exh . 5E.) However, another card similar to it was signed in mid-August 1971 and was placed on a table, after which Lashley directed his wife to mail it . Later, when Lashley ascertained that the first card had not been mailed, he obtained another one , signed it on September 24, 1971 (see G.C. Exh. 5E), and personally mailed it. He attended the union meeting at Sam A. Baker Park on August 1, 1971. About August 7, President Lloyd Hinkle, a first cousin, asked him if he, Lashley, had heard about the Union. Lashley, admitting \on the stand that he lied, answered that he had no such knowledge . Continuing, Hinkle said that if a union came into his plant "he'd just close the doors, he wouldn't run a union shop." About August 9, 1971, President Hinkle asked Lashley "who started the union in the shop ." Lashley answered that it was George Sheets. Then Hinkle inquired whether "the Williamsville boys got the Union started." To this Lashley repeated that it was Sheets . Thereupon Hinkle wanted to know who attended the meeting at Baker Park . The names of those attending were then recited by Lashley. At this point, Hinkle remarked that "they would be laid off tomorrow evening." Finally, Hinkle indicated he knew about the meeting at Baker Park because "someone" telephoned him to that effect , that said "someone" told Hinkle that said "someone" had asked Sheets if Sheets was having a party at the Park and that Sheets replied "we are organizing a union or trying to get a union in on Hinkle." Although seven employees were laid off the next day, no discussion at the plant prior to this suggested the possibility of a layoff or that Respondent's business was bad.' ' ' About August 24, 1971, President Hinkle read to a group of employees, one of whom was Lashley, a letter from the Union to Respondent. (See G.C. Exh. 3A for this letter.) Following this, he informed them that "if [they] wanted to get the union knocked out [they] could contact" Respon- dent's attorney. After this he asked them "if [their] cards had been mailed in." Floyd McFadden, who was present, mentioned that he had mailed in his card. Shortly before this, Hinkle told the same group of employees that he knew the Union had held one meeting for employees and that if he attended a union meeting soon to be held (after the one in Sam A. Baker Park) "the union couldn't be knocked out ." He also asked them if anyone in the group planned to go to this second meeting. No one answered. Betty Hinkle, the wife of President Lloyd Hinkle, is 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admittedly an agent of Respondent within the meaning of Section 2(13) of the Act Shortly after August 10, 1971, she called Lashley to the office and asked him "why [the employees] wanted a union in there." To get her "off his back" Lashley replied that he "didn't have anything to do with it." But when she insisted that Lashley "went to the meeting over there," he admitted that in fact he had. On another occasion, President Hinkle told Lashley, "you know the Labor Board man will be down here in the morning . . . whatever you say to him keep it straight. If you tell him I talked to you this time I'm really going to get mad at you. I had to spend three days in court over what you said before." Hinkle further told Lashley to "tell them the truth." I find this is not coercive and, therefore, does not violate Section 8(a)(1) of the Act. 4. The testimony of Floyd McFadden McFadden is employed by Respondent as a welder. Although he worked there for 13 years, he had never been laid off prior to November 1, 1971. He was laid off from November 1 to 4 and was on layoff status when he testified in this case. McFadden's duties may be described as follows. He is a welder who "sometimes", i.e., 2 or 3 times a week, gives instructions to "somebody [who] just didn't know how to build this or do this." In such instances, he would "just show them how to get started . . . it would just be new guys." But he never gave instructions to such employees after they "got experience." In addition, President Hinkle told him to watch such employees "to see that they do it right." Also, "quite a few years ago," Hinkle told him that he, McFadden, was a "boss," but McFadden "never did" give orders to other employees. McFadden received his work orders in writing from "Sam back there." Sam also gave "the same type of . .. written orders to other people in the department." "Quite a while ago," President Hinkle once discussed with McFadden whether an employee should be dis- charged. But McFadden never was required to "fill out any written reports on employees at the plant." However, about 3 or 4 years ago, Hinkle instructed McFadden "to report things to him about the employees," i.e., "if they were doing their jobs right." But this did not extend to "reporting back to [Hinkle ] on all employees at the plant." About 3 years ago, Hinkle once asked McFadden whether a particular individual should be hired at the plant. At one time about 3 or 4 years ago, Hinkle instructed McFadden to fire any employee who was "not turning out the work," but McFadden never did so because he never checked any employee's production. However, McFadden about 3 or 4 years ago once suggested that an employee be fired, but only after Hinkle asked him concerning such employee. About August 5, 1971, McFadden first heard employees in the plant discussing a union to represent them. About August 1, he attended a meeting of the employees held "at the park." At that meeting (1) Sheets was selected as spokesman and (2) the employees decided to "contact" a specific union the name of which he could not recall. On August 10, 1971, some employees were laid off by Respondent. However, prior to this event McFadden had not heard anyone, including President Hinkle, "at the company say anything about the possibility of a layoff" or that business was bad. About a week after August 10, 1971, President Hinkle told McFadden that "if a union went in, why, [McFadden] would be out of a job." On another occasion, President Hinkle asked a group of employees, one of whom was McFadden, if the employees "had a meeting . . . over at the park." McFadden's son, Stanley, was laid off on August 10, 1971. About the first of the following November, President Hinkle asked McFadden to tell the latter's son, Stanley, to come back to work. Further, McFadden on cross-examination testified that he "might have said" to President Hinkle that, in McFadden's opinion, the employees "were not getting the production out." However, on redirect McFadden insisted that he "really didn't know" whether' employees were "putting out production." Finally, on recross McFadden asserted that President Hinkle knew that "there was a union involved at that time," i.e., when some employees were laid off on August 10, 1971. 5. The testimony of Sammie Losh Losh was hired by Respondent about June 1970. His union card, which he executed on August 19, 1971, describes him as a laborer. (See G.C. Exh. 5H.) Although he was discharged in May or June 1971, Losh asked President Hinkle to rehire him in early August 1971. Although there was no work for Losh at that time , Hinkle called him on August 19, to report for work as a welding trainee because Hinkle "had an opening and ... needed [Losh] back there to work." Actually, Losh was recalled as a laborer, but he was informed that he would be the lowest in seniority "on the list." Early in December 1971, Losh was laid off for a "couple days" because Respondent had exhausted its supply of steel. Shortly after August 19, 1971, President Hinkle and his son read a letter "about the union" to the assembled employees. Immediately thereafter, Hinkle "wondered [out loud to said employees] who got it all started about the letter . . . who got the union all started." 6. The layoff of Stanley McFadden McFadden was first hired by Respondent in March 1970. After quitting in January 1971, he asked President Hinkle for a job in July 1971. Although Hinkle expressed no need for additional employees at the time , he called McFadden in early August 1971 to come back to work because Hinkle "needed somebody to work" as a painter and to perform "odd jobs." McFadden signed a union card on August 19, 1971. (See G.C. Exh. 5J.) About a week after resuming work , McFadden was told by President Hinkle, along with other employees in an assembled group, that he was laying them off as "he didn't have the money to pay" them . In his talk, Hinkle also instructed the group to "go down and sign up on unemployment." At no time was McFadden's work criticized by management. LLOYD'S ORNAMENTAL AND STEEL FABRICATORS 7. The layoff of Herb Jones In June 1971, Jones was hired as a painter by the Respondent. A few days after he started as such employee, Jones asked President Hmlde whether the former had a "steady job." Hinkle replied, "As of right now." At no time thereafter did Respondent find fault with the performance of Jones except once when Hinkle in late June 1971 told him "to start doing ... work better" or be replaced by someone else On August 10, 1971, President Hinkle informed a group of employees, one of whom was Jones, that he, Hinkle, "had been broke and that he had to lay [them] off because he had a bunch of orders out." At no time prior to this had Hinkle mentioned to Jones that business was bad or that a possibility existed that Jones might be laid off. Jones signed a union authorization card on August 18, 1971. (See G.C. Exh. 5E.) 8. The layoff of Ralph Thompson On August 18, 1971, this employee signed a union authorization card. (See G.C Exh. 5C.) He was hired as a painter's helper by Respondent around June 18, 1971. Thompson was informed of a vacancy at that time by employee Jim Sanders, who told him that President Hinkle had instructed him, Sanders, "to get somebody" for such job. Just before the quitting time of 4:30 p.m. on August 10, 1971, "the employers" told Thompson that he "was being let go" on that day. Shortly thereafter, he received his paycheck. He has not since been recalled by Respondent. At no time was he informed of the possibility of a layoff or "about working slow over at the company" or that his work was unsatisfactory. On cross-examination, Thompson testified that he told President Hinkle that he, Thompson, was going to go to school, but actually he did not go. 9. The layoff of Charles Brinkley Brinkley was first hired by Respondent in 1969, but he quit about 8 months later. He was rehired in February, 1971, to do welding work. About August 1, 1971, he attended a meeting of employees at Sam A. Baker State Park. He signed a union card on August- 18, 1971. (See G.C. Exh. 5D.) Shortly before the end of the work day, i.e., at about 4:15 p.m., on August 10, 1971, President Hinkle told Brinkley that the former was broke, that he'd have to layoff Brinkley, and that Brinkley should "go down and sign up for unemployment." However, prior to this Respondent had not indicated to Brinkley that business was bad or that there might be a layoff. 10. The layoff of Jerry Warren Around June 11, 1971, Warren was hired by Respondent as a welder. He signed a union card on August 18, 1971. (See G.C. Exh. 5B.) In the evening of August 10, 1971, President Hinkle told Warren that Respondent was "seriously in debt" and that he would have to layoff Warren "until more money came in." At no time prior to this had Warren's work been criticized. Nor had Respon- 371 dent at any time suggested to Warren that a possibility existed that he risked being laid off or that business was bad. He has not since been recalled. 11. The layoff of Jim Sanders Sanders did not testify, but the General Counsel contended at the hearing that he was laid off on August 10, 1971, in all material respects under the same circumstances and at the same time as the other six laid off that day. Sanders signed a union card on August 18, 1971. (See G.C. Exh. 5G.) His failure to testify does not disqualify him from obtaining relief provided the others dismissed at the same time as he are found to have been discriminatorily terminated. American Grinding & Machine Co., 150 NLRB 1357, 1358-59. 12. Facts stipulated by the parties During the General Counsel 's presentation of evidence the parties stipulated to the facts related in this subsection. The number of employees on Respondent's payroll for the weeks enumerated below was as follows: Week Ending 1968 Number of Employees August 17 8 August 24 10 August 31 7 September 7 6 October 26 6 November 2 6 November 9 6 November 16 6• 1969 August 16 10 September 13 5 September 20 5 September 27 5 October 24 4 1970 August 15 10 August 22 10 August 29 10 September 5 10 October 10 7 October 14 4 October 24 3 October 31 5 1971 September 4 5 September 11 5 September 18 5 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B Respondent 's Defense Respondent's sole witness was Lloyd Hinkle, its presi- dent. A conspectus of his testimony is narrated below. On August 10, 1971, Hinkle laid off employees Sheets, Warren, Thompson, Brinkley, Jones, Sanders, and Stanley McFadden. He did so "first of all, because of a slowdown in production; second, I didn't have the money to continue stockpiling because I already had a big stockpile, and there is always a lull in July and August . . . and the tubing that we run the material out of was running short. And the lumber companies had all of my money tied up and the money hadn't come in from the lumber companies." Hinkle added, "You can check the books" on the annual slowdown in "either July or August," but neither quoted from them nor offered them in evidence. At that time, i.e., August 10, 1971, he "did not know there was a union involved in the thing." In fact, Hinkle had occasion to ask employee Lashley on August 7, 1971, "whether there was a union." Lashley replied in the negative. This question was propounded because "someone on the street told [Hinkle] that the guys had a meeting out at the park." About 2 weeks before August 10, 1971, Hinkle first noticed "the slowdown." But he did not elaborate on this except to say that "the stockpile had begun to build up, and every time I'd count the [No. 19] rail each day it was down." At the time of the hearing Respondent had no orders and but one employee. Hinkle was unable to pinpoint the day when he decided to lay off employees except to comment, "When I counted the work and seen the way everything was going out there August 10." Apparently the actual decision to layoff was made on August 10. Floyd McFadden's job is "to see that the welding is taken care of and any special production . . . he was in charge. He had the power to fire, and if he would have recommended, I'd hire.... In previous years I'd hire a lot of his relations." On cross-examination Hinkle asserted that he "did call Charley Brickley back . . . and I told Stanley McFadden ... that I'd call him back, and I told his dad to tell him to come back just a few days after it, but [Stanley] got another job" with another employer. Hinkle added that "if work picked up" he would have called back the remainder of those laid off on August 10. Hinkle remarked that "the same time" in 1970 was the last time prior to this that he laid off employees, and that on that occasion he "borrowed some money to try, to put up my stock." C. Concluding Findings and Discussion 1. As to the iefusal to bargain It is elementary that a production and maintenance unit is appropriate for the purposes of collective bargaining. Appliance Supply Company, 127 NLRB 319, 321. Accord- ingly, I find that the production and maintenance unit mentioned in the Union's letter of August 23, 1971, is appropriate, and that said letter constitutes a valid request that Respondent recognize and bargain with the Union. The next problem is to identify the employees in said appropriate unit. General Counsel's Exhibit 4 discloses that a maximum of 14 persons were employed by Respondent as of August 19, 1971. I find that all but 3, i.e., 11 in all, may properly be included in the unit. Of those 11, only the status of Floyd McFadden need be discussed here. Contrary to the Respondent's contention, I find that Floyd is not a supervisor within the contem- plation of Section 2(11) of the Act, simply because he does not regularly or even intermittently exercise any of the functions enumerated in said Section 2(11). Although there is evidence that he could fire any employee "not turning out the work," he has never discharged anyone and, in fact, has never checked any employee's production. And although it appears that he was once asked by President Hinkle whether a certain employee should be terminated and at another time was consulted whether an employee should be hired, I find these are isolated instances which do not suffice to make him a supervisor. Finally, it is true that Floyd instructed new employees, but it is equally true that this occurred infrequently. More impressive is the fact that Floyd spent practically all his working time as a production worker. A production worker does not fit the statute's description of a supervisor. While the General Counsel argues that Samuel Gowen is a supervisor, I find that, on the record unfolded before me, the evidence is insufficient to sustain this contention. Accordingly, I find that Gowen is an employee and should be included in the unit. As mentioned above, I find that President Lloyd Hinkle, Sr., is a supervisor. Further, I find that Lloyd Hinkle, Jr., and Kenneth Hinkle should be excluded from the unit because, as the sons of an individual who has substantial stock interests in a closely held corporation, they "have interests more clearly identified with management than with their fellow employees." Foam Rubber City #2 d/b/a Scandia, 167 NLRB 623, 624. Since the unit comprises 11 employees, I find that on August 24, 1971, when Respondent received the Union's written demand dated August 23 for recognition, the Union enjoyed a majority as it possessed valid authoriza- tion cards signed by 9 employees. These cards were signed by Floyd McFadden, Losh, Brinkley, Stanley McFadden, Warren, Sheets, Jones, Thompson, and Sanders. Since Lashley's second card was signed on September 24, 1971, it has been excluded from and not counted towards that majority. The fact that Lashley signed a first card about August 19, 1971, is rendered immaterial, as he took no action thereafter to transmit said card to the Union. Of course the second card may be counted, if the Union's demand is found to be a continuing one. But I find its demand does not partake of this characteristic. Next, I find that the cards of the seven laid-off employees should be counted notwithstanding that they were laid off on August 10 and said cards are dated August 19. This is because I have found elsewhere in this Decision that said seven were unlawfully laid off. It is clear, and I find, that employees illegally terminated remained employ- LLOYD'S ORNAMENTAL AND STEEL FABRICATORS 373 ees for the purpose of voting in an election or for ascertaining a Union's majority in nonelection situations. Finally, I find that a bargaining order is an appropriate remedy here since the Employer's independent unfair labor practices (found elsewhere in this Decision) are pervasive. Since they are pervasive they preclude the holding of a fair election and make it unlikely that their coercive effects would be neutralized by conventional remedies so as to produce a fair election. Hence, I find that a bargaining order should issue as the only available and effective remedy to counteract such unfair labor practices. N. L R. B. v. Gissel Packing Co., 395 U.S. 575. 2. The layoff of George Sheets Upon this, as well as all other aspects of the case, the burden of proof rests upon the General Counsel to sustain the allegations of the complaint , and I so rule. Further, I rule that the failure of the Respondent to establish any one or more of its defenses does not amount to affirmative evidence aiding the General Counsel in satisfying his burden of proof. N.L.R.B. v. Harry F. Berggren & Sons, Inc., 406 F.2d 239, 246 (C.A. 8), cert. denied, 396 U.S. 823; N.L.R.B v. Joseph Antell, Inc., 358 F.2d 880, 883 (C.A. 1); Council of Bagel and Bialy Bakeries, 175 NLRB 902, 903. It is my opinion, and I find, that Sheets was laid off for his union activity and that the purported reason assigned for such layoff, i.e., employee slowdown of production and economic necessity, is a pretext to mask or disguise the actual reason. This ultimate finding is based on the entire record in this case and the following subsidiary findings, which I hereby find as facts. a. When Sheets was hired in June 1971, he was expressly assured by President Hinkle, in response to a question by Sheets, that the job was a permanent one. In addition, Hinkle personally came to the home of Sheets to ask the latter to come to work after Sheets became an applicant for work. If, as Respondent contends, business became slow in July and August of each year in the past, it is difficult to comprehend why additional employees should be taken on permanently in June of 1971 . It is more reasonable to infer-and I do so-that Respondent needed employees for permanent work and that is why Hinkle personally called on Sheets at the latter's home to invite him to become a permanent employee. Cf. Maphis Chapman Corp. v. N.L.R.B, 368 F.2d 298, 304-305 (C.A. 4). b. Sheets was very active and prominent in the movement to organize Respondent's employees. Indeed, he was the chief proponent of the Union . Of course, I recognize and rule that this does not shield him from being laid off for cause. But terminating an outstanding union adherent often tends to discourage other employees from becoming interested in a union . "Obviously the discharge of a leading union advocate is a most effective method of undermining a union organizational effort ." N.L.R.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006 (C.A. 5). This fact may be - evaluated in ascertaining the true reason motivating or inspiring a layoff. N.L.R.B. v. Georgia Rug Mill, 308 F.2d 89, 91 (C.A. 5); Maphis Chapman Corp. v. N.L.R.B., supra at 304; N.L.R.B. v. Melrose Co., 351 F.2d 693, 699 (C.A. 8). c. Respondent was aware of the union activity of Sheets at its plant. This is because I find that, in view of the fact that Respondent's total complement of employees was but 14, the small-plant rule became operative . This rule provides that it is reasonable to ascribe knowledge to Respondent of union activity occurring at Respondent's plant. Angwell Curtain Company, Inc., v. N.LR.B., 192 F.2d 899, 903 (C.A. 7); American Grinding & Machine Co., 150 NLRB 1357, 1358. In addition, I credit Floyd McFadden that President Hinkle knew of union activity at the plant when some employees were laid off on August 10, 1971, and I do not credit Hinkle's denial thereof. This also demonstrates that Respondent had knowledge that its employees were interested in a union at the time. d. Respondent entertained antiunion hostility. This is illustrated by its other unfair labor practices found herein to constitute violations of Section 8(a)(1) and (5) of the Act. Patently this in itself does not prove that Sheets was discriminatorily laid off (N.L.R.B. v. Harry F. Berggren & Sons, Inc., C.A. 8, 406 F.2d 239, 246, cert. denied, 396 U.S. 823), but it is a factor which may be appraised in determining the actual reason prompting or inducing a layoff. N. L. N.L.R.B. v. Georgia Rug Mill, 308 F.2d 89, 91 (C.A. 5); Maphis Chapman Corp. v. N.L.R.B., supra at 303. e. No warning was given to Sheets that he was about to be laid off . In fact no advance notice was given to employees of an impending layoff. When there is added to this the fact that he was abruptly terminated at the height of the Union's organizing campaign , it is reasonable to infer-and I do so-that the reason given for his layoff is a pretext and that the true reason is his union activity. N.L.R.B. v. Melrose Co., supra at 699. "The abruptness of a discharge and its timing are persuasive evidence as to motivation." N.L.R.B. v. Montgomery Ward & Co., Inc., 242 F.2d 497, 502 (C.A. 2). Accord, N.L.R.B. v. Hawthorn Co., 404 F.2d 1205, 1210 (C.A. 8). In this connection it is well to point out that "Direct evidence of a purpose to discriminate is rarely obtained, especially as employers acquire some sophistication about the rights of their employees under the Act .... Corrie Corporation v. N.LR.B., 375 F.2d 149, 152 (C.A. 4). "Nowadays it is usually a case of more subtlety." N.L.R.B v. Neuhoff Bros., 375 F.2d 372, 374 (C.A. 5). f. In finding that economic necessity and a slowdown in production by employees, asserted as the reason for laying off Sheets, are pretexts, I have taken into considera- tion, but have not relied entirely upon , the fact that a mass layoff at the onset of union organizing is not only a common but a highly effective tactic to sabotage a campaign and to discourage unionism . Majestic Molded Products v. NLR.B., 330 F.2d 603, 606 (C.A. 2). Accord, N.L.R.B. v. Cape County Milling Co., 140 F.2d 543, 545 (C.A. 8); N.L.R.B. v. Missouri Transit Co., 250 F.2d 261 (C.A. 8). In addition, I have considered, but have not placed much weight upon , the fact that all of the evidence points to a sudden decision to call a layoff and thereby undermine the campaign. g. It is not without probative value that at no time did Respondent either produce records or offer oral testimony to substantiate its contention that economic necessity and a slowdown in employee production dictated the layoff. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' This warrants the drawing of an adverse inference-and I do so-that no records existed tending to show such employee production slowdown or economic necessity. U.A W. v. N.L.R.B., 459 F.2d 1329 (C.A.D.C.); N.L.R.B. v. Treasure Lake, Inc., 453 F.2d 202 (C.A. 3). It is true that the parties stipulated as to the number of employees employed by Respondent at specific times. But this neither shows that business was declining, nor that employees were slowing down in production, nor that layoffs became necessary because of financial considerations or business conditions. h. Finally, it is not essential, in order to find the layoff of Sheets to be discriminatory, that it be attributed solely to his union activity. It is sufficient to find a violation, notwithstanding that a valid cause may have existed for his termination, if a substantial or motivating ground for his layoff was his umon activity. N.L.R.B. v. Lexington Chair Co., 361 F.2d 283, 295 (C.A. 4). I find that a substantial or motivating reason leading to his termination was his union activity. Cf. N.L.R B. v. California State Automobile Association, 442 F.2d 426 (C.A. 9); N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 885 (C.A. 1). 3. The layoff of Stanley McFadden I am of the opinion, and find, that McFadden was laid off for supporting the Union, and that the reasons assigned therefore, i.e., economic necessity and a production slowdown by employees, are pretexts to dissemble the true motive for such layoff. This ultimate finding is based upon the entire record and the following subsidiary findings which I hereby find as facts. a. McFadden was given a union card before August 10, 1971, and also attended a union meeting at Sam Baker State Park. Respondent had knowledge thereof for the reasons set forth in connection with the layoff of Sheets. Of course, I find that being a union supporter does not insulate an employee from being terminated for cause. N. L. R. B. v. W. C. Nabors Co., 196 F.2d 272, 275-276 (C.A. 5). b. Respondent displayed union animus. While both the Act and the U.S. Constitution protect the right to dislike unions and to oppose them (N.L.R.B. v. Threads, Inc., 308 F.2d 1, 8 (C.A. 4), nevertheless such expressions of hostility may be assessed in ascertaining the true reason for a layoff. c. McFadden was asked by Respondent in early August 1971, to return to work, after quitting in January 1971. Since he was laid off on August 10, 1971, it is rational to infer-and I do so-that he was not recalled for only 1 week's work but, rather, that he was given permanent employment. Hence it is difficult to understand why McFadden was so suddenly laid off unless it is inferred -and I do so-that his support of the Union caused him to be terminated. d. Timing and abruptness also are significant. Since McFadden was precipitately laid off without prior warning at the peak of the Union's organizing campaign, it is reasonable to find-and I do so-that these are persuasive factors indicating that the layoff was inspired by discrimi- natory motives. Arkansas-Louisiana Gas Company, 142 NLRB 1083, 1085-86. These factors gain added weight when there is added to them the fact that no oral or written statistics were offered by Respondent to show that business conditions or financial requirements dictated the layoff or that an actual slowdown in production was practiced by McFadden. e. Finally, I find that , even if cause existed for the layoff, the motivating or substantial reason for it was not the lawful cause but, rather , the union activity of McFadden. This is sufficient to render his layoff unlawful. 4. The layoff of Herb Jones In my opinion Jones was laid off for supporting the Union, and I so find . I further find that the reason given for laying him off is a pretext to cloak the true reason. These ultimate findings are derived from the entire record and the ensuing subsidiary findings which I hereby find as facts. a. Jones supported the Union and Respondent was cognizant of this . The reasons therefor are found in connection with the discharge of Sheets and are incorpo- rated at this point by reference. b. Jones was hired in June 1971 and was informed at that time, in response to his question , that he had a "steady job . . . as of right now." If, as Respondent contends, business usually slacked off in July and August of each year, then it is difficult to comprehend , absent an explanation by Respondent, why Jones was hired for a "steady" job immediately before the slack season was about to commence. c. As in the case of McFadden , timing and abruptness of dismissal, together with an absence of forewarning that a layoff was impending and the lack of statistics to show business conditions or a slowdown in production, tend to support the fact, which I find, that Jones was laid off for discriminatory reasons. d. If, as Respondent contends, one of the reasons for the layoffs, of August 10, 1971, was employee slowdown of production, no exposition has been advanced by Respon- dent why all employees who participated in the slowdown were not laid off and only union supporters were selected for termination. California Cotton Cooperative Association, 110 NLRB 1494, 1496, upon which Respondent relies, is distinguishable, for in that case, unlike here, a satisfactory justification was given for not terminating all employees participating in the slowdown. It is significant, and I have taken into consideration, the fact that only union support- ers were selected for the layoff allegedly because of a slowdown by all employees. e. Finally, it is sufficient to find McFadden's layoff to be discriminatory if it resulted from a substantial or motivating unlawful purpose, even though lawful cause may also have existed therefor . And I find that the, motivating or substantial reason for his layoff was his support of the Union. "The mere existence of valid grounds for a discharge is no defense to a charge that the discharge was unlawful, unless the discharge was predicat- ed solely on those grounds, and not by a desire to discourage union activity." N. L. R. B. v. Symons Mfg. Co., 328 F.2d 835, 837 (C.A. 7). This component is invested with particular probative value in view of the fact that all of the layoffs in question, including McFadden's, occurred at the inception of the Union's organizing campaign. As LLOYD'S ORNAMENTAL AND STEEL FABRICATORS 375 found above, a mass layoff at the commencement of a union organizing undertaking not only impedes or even sabotages a union campaign, but it also is an effective stratagem to deter unionism. 5. The layoff of Ralph Thompson I find that Thompson was laid off for supporting the Union and that the reason assigned by Respondent at the trial, i.e., economic necessity and employee slowdown of production is a pretext to cloak the true reason. This ultimate conclusion and finding is based on the entire record and the following subsidiary findings which I hereby find as facts. a. Thompson supported the Union, having received a union authorization card prior to the date of his layoff. Respondent was aware of this for the same reasons mentioned above in finding that it knew that Sheets supported the Union. b. The circumstances regarding Thompson's layoff substantially resemble those attendant upon the layoff of Jones. Accordingly, for the reasons found above leading to the conclusion that Jones was discriminatorily laid off, I find that Respondent was substantially motivated to lay off Thomas , because of his; support of the, Union. c. Respondent has argued that all employees laid off on August 10, 1971, including Thompson, engaged in a slowdown of production which led in part to the decision to dismiss them. But the record is silent not only as to the production records of those laid off on August 10, 1971, but also as to those retained after that date. Patently a bald assertion that some employees were poor producers is not entitled to serious weight unless comparisons are submitted not only with their prior production statistics but also with the production of those not laid off allegedly for acceptable production. d. Thompson was hired after President Hinkle an- nounced to employee Jim Sanders that Respondent was seeking "somebody" for the job of a printer's helper and asked Sanders to recruit such a person. Since this occurred around June 18, 1971, shortly before the time insisted upon by Respondent to result in a slowdown in business, i.e., July and August of each year, no rational explanation has been tendered why anyone was hired just before business allegedly slackened. On the other hand, it is reasonable to infer-and I do so-that Thompson was hired for a permanent job and that he was terminated because he favored the Union. In this connection, it is significant that no officer or supervisor of Respondent informed Thompson that the latter was laid off. C & M Sportswear Manufacturing Corporation, 183 NLRB No. 29, p. 19 of TXD . Instead, he learned of his termination from other employees. This unusual, if not unorthodox, method of informing Thomp- son of an important management decision affecting him indicates that Respondent did not like him for some undisclosed reason. I find that reason to be his support of the Union. Employees not in disfavor are not customarily treated in this manner. 6. The layoff of Charles Brinkley In my opinion Brinkley was laid off for being a union supporter, and the reasons given for such action, i.e., economic necessity and an employee slowdown in pro- duction,'were pretexts to justify such ,termination, and I so find . This ultimate finding has emerged from an analysis of the entire record in this case and the following subsidiary facts, which I hereby find as facts. a. Brinkley supported the Union , received a union card, and attended the meeting at, Sam Baker Park. Respondent had knowledge of this not only for the reasons mentioned above as to other employees , but also because employee Lashley, whom I credit, on August 9, 1971, told President Hinkle, in response to a question, who the employees were who attended the foregoing meeting. It is desirable at this point to mention that I find that Lashley's identification of employees at that meeting caused Respon- dent to have knowledge that some employees laid off on August 10, 1971, attended that meeting. In addition, Hinkle told Lashley that Hinkle knew that said meeting was called to "organize a union" at Respondent's plant. b. Respondent entertained union animus . In addition to the other instances found herein demonstrating such hostility, I find, crediting Lashley, that Hinkle stated to Lashley that the employees attending the foregoing meeting at Baker Park would be laid off the next evening. c. The failure to warn or notify Brinkley that a layoff was imminent, plus the fact that he was abruptly terminated, supports the result, which I find, that Brinkley was laid off for supporting the Union. d. Although Respondent maintained that the layoff developed from adverse business and financial conditions and employee slowdown of production , no evidence was adduced to sustain this assertion. This is a factor which I have considered in determining that Brinkley and the others laid off on August 10, 1971, were discriminatorily laid off. Further, no evidence was adduced as to why only union supporters were selected to be laid off despite the contention that all employees had engaged in a production slowdown . This suggests a discriminatory selection for layoff. N.L.R.B. v. W. C. Nabors, 196 F.2d 272, 275-276 (C.A. 8), cert. denied 344 U.S. 865. e. It is not necessary that the antiumon reason for such layoff be the only one leading thereto . It is sufficient to find the layoff to be discriminatory if the unlawful reason therefor is a substantial or motivating reason notwithstand- ing a lawful cause to terminate Brinkley may also exist. I find that antiunion hostility was the substantial or motivating element which prompted his layoff. In this connection I find that the Employer's explana- tions for its layoff of August 10, 1971, are implausible. Discrimination may be inferred "by the fact that the explanation . . . offered by the Respondent fails to stand under scrutiny." N.L.R.B. v. Dant, 207 F.2d 165, 167 (C.A. 9). This is an additional clue in ascertaining the Employer's true reason for laying off employees engaged in activity protected by the Act. N.L.R.B. v. Harry F. Berggren & Sons, Inc., 406 F.2d 239, 245-246 (C.A. 8), cert. denied 396 U.S. 823 . See Tulsa-Whisenhunt Funeral Homes, 195 NLRB No. 20. f. Finally, it is significant that, when a vacancy 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occurred on August 19, 1971, Respondent did not recall any of the employees laid off on August 10, 1971, but, rather, hired Sammy Losh, a former employee who had quit in early 1971. Patently this demonstrates not only that August was not a poor business month, as President Hinkle testified, but also that the failure to recall those laid off on August 10, 1971, was inspired by the fact that they were laid off for supporting the union and not because of business and economic conditions. N.L.R.B. v. W.C. Nabors, supra. 7. The layoff of Jerry Warren Although the testimony regarding Warren is somewhat brief, it is sufficient to convince me, and I find, that, like the others discussed above, Warren was laid off because he supported the Union. And I further find that the reason advanced to justify his being laid off, i.e., economic necessity and employee slowdown of production, is a pretext to render imperceptible the true reason. While this ultimate finding is derived from the entire record, it also flows from the following subsidiary findings, which I hereby find as facts. a. Warren supported the Union and also was handed a union card prior to August 10, 1971, while at work. Although this card was mailed to the Union on August 19, 1971, I find that he received it prior to August 10. Further, I find that Respondent had knowledge of Warren's foregoing conduct not only because of the operation of the Board's small-plant rule (American Grinding & Machine Co., 150 NLRB 1357, 1358), but also because I have credited the General Counsel's evidence (1) that President Hinkle on August 9 stated that he knew that "a union was involved" at his plant, and (2) that those interested in the Union would be laid off. the following evening. In addition, as found elsewhere herein, Respondent displayed union animus. While this in itself will not sustain a finding that Warren was discriminatorily terminated, it may be taken into consideration, together with other relevant evidence, in arriving at a decision whether antiumon hostility contributed predominantly or at least substantially to the layoff. b. If, as Respondent insists, production decelerated in July and August of each year, no plausible explanation has been tendered why Warren was hired about June 11, 1971, immediately preceding the slack season. It is therefore reasonable to infer-and I do so-that he was hired for an indefinite period and that he was laid off so soon after being hired for another reason than that asserted at the trial. I find that such other reason is antiumon hostility. This finding is strengthened by the fact that (1) the layoff was abrupt, no previous warning thereof having been an- nounced or even intimated, (2) no records or other documentary evidence were adduced to confirm the grounds advanced by Respondent as inducing the layoffs, (3) when occasion arose later in August to hire another employee none of those laid off was recalled to fill such position, (4) the terminations of August 10 were effectuat- ed at the outset of the Union's organizing drive and, accordingly, became an effective instrument not only to stifle the Union's campaign but also to chill enthusiasm for or interest in the Union, and (5) the layoffs occurred almost immediately after employees attended a union organizing meeting. "In the circumstances of this case, the fact that Respondent retained some union adherents does not exculpate it from the charge of discriminating against those" laid off. See Nachman Corporation, 144 NLRB 473, 476; N.L. R. B. v. W.C. Nabor Co., 196 F.2d 272, 275-276 (C.A. 5). As to (6), supra, Cf. American Grinding & Machine Co., 150 NLRB 1357, 1358. c. Finally, as found above, it is immaterial that a valid cause arose for terminating Warren if the substantial or motivating reason underlying his layoff was discriminato- ry. N.LR. B. v. Fairview Hospital, 443 F.2d 1217 (C.A. 7). I . ind that the substantial or motivating consideration leading to Warren's layoff was President Hinkle's opposi- tion to unionism and a desire to intimidate employees into abandoning their union adherence. Advanced Business Forms Corp., 194 NLRB No. 52, 78 LRRM 1642. 8. The layoff of Jim Sanders I find that in all material respects Sanders was laid off together with, at the same time as, and under essentially the same circumstances as, the other six employees terminated on August 10, 1971, except that, unlike Sheets, Sanders did not take an active part or participate prominently in the Union's organizing drive. In view of this finding I further find that Sanders was discriminatonly selected to be laid off and that the reason attributed at the hearing for terminating him concurrently with the others is a pretext to obscure the actual reason. Finally, no adverse inference will be drawn because Sanders did not appear to testify, as I accept as adequate the General Counsel's statement that Sanders was not available to appear and testify. Accordingly, I find that his testimony was not an indispensable ingredient in proving that he was unlawfully laid off. American Grinding & Machine Co., 150 NLRB 1357, 1358-1359. 9. The 8(a)(1) violations About August 7, 1971, President Hinkle asked employee Lashley if the latter had heard about the Union. I find this is not coercive interrogation, as it does no more than inquire as to whether Lashley knew of the existence of the Union, and does not tend to inhibit union activity. In the same conversation, however, Hinkle asserted that if a union organized his plant he would "close the doors." I find this is - coercive as it threatens a reprisal. About August 9, Hinkle asked Lashley who started the Union in the shop and whether it was the "Williamsville boys." This is coercive interrogation, and I so find. R & R Screen Engraving, Inc., 151 NLRB 1579, 1581. Continuing his questioning, Hinkle asked for the identity of those who attended the meeting at Baker Park. This, too, is coercive interrogation, and I so find, because its probable effect is to inhibit union activity. N.LR.B. v. Southern Electronics Co., 430 F.2d 1391, 1393 (C.A. 6). Then Hinkle stated that those attending would be laid off the next evening. I find this is coercive as a threat of reprisal. Finally, in this conversation Hinkle mentioned that he was informed that someone told him that employee Sheets was organizing a LLOYD'S ORNAMENTAL AND STEEL FABRICATORS union at the park. But this last statement is not coercive as it does no more than repeat what someone conveyed to Hinkle. Shortly before August 24, 1971, Hinkle told a group of employees that he knew the Union had held a meeting for employees and that it was about to hold another and he asked whether any of them planned to attend the second meeting. I find this is coercive interrogation as no occasion arose to conduct a lawful inquiry regarding union activity. Johnnie's Poultry, 146 NLRB 770, 776, enforcement denied, 344 F.2d 617 (C.A. 8); N.L.R B. v. Southern Electronics Co., 430 F.2d 1391, 1393 (C.A. 6). About August 24, Hinkle stated to a group of employees that if they wanted to "knock out" the Union they should see Respondent's attorney. Since this is not coercive I find that it does not contravene Section 8(a)(1) of the Act. However, he also at the same time asked them if they had mailed in their cards to the Union. This question is coercive, and I so find. Shortly after August 10, Mrs. Hinkle, admitted to be an agent of the Respondent by its answer, asked Lashley "why the employees wanted a union in there." Since such a question contains no threat of reprisal I find it is not coercive. However, she also insisted in this conversation that Lashley went "to the meeting over there." I find this last statement is a coercive utterance concerning protected activity. About August 17, 1971, President Hinkle told employee Floyd McFadden that if a union organized Respondent's plant McFadden would be out of a job. This is coercive because it contains a threat of reprisal. On another occasion, Hinkle asked McFadden and a group of employees if they had a meeting over at the park. I find this is coercive interrogation proscribed by Section 8(a)(1) of the Act as its probable consequence is to circumscribe union activity. N.L.R.B v. Southern Electronics Co., 430 F.2d 1391, 1393 (C.A. 6). Shortly after August 19, 1971, President Hinkle asked employee Sammie Losh and a group of employees "who got the union started." In my opinion this amounts to coercive interrogation, and I so find. In arriving at the findings set forth in this subsection, I have credited the General Counsel' s witnesses and have not credited Respondent's evidence to the extent that it is not consonant therewith. Nevertheless, it is desirable to point out that President Hinkle did testify on his direct examination that on August 7, 1971, he asked employee Lashley "whether there was a union." Although I have found this question was not improper, it nevertheless indicates that Hinkle was interested in finding out about the union activity of his employees. And I have found that in seeking such knowledge he at times exceeded the permissible limits of Section 8(c) of the Act and thus contravened Section 8(a)(1) thereof. Mrs. Hinkle did not testify concerning the coercive inquiry attributed to her. On this aspect of the case ,I expressly rule that merely because the evidence ascribing an inquiry to her is uncontradicted does not compel a finding that it must be credited. This is because a trier of facts is not bound by, and may refuse to credit, uncontra- dicted evidence in whole or in part. Hence I desire to emphasize that her failure to testify did not influence the 377 finding that she propounded a coercive statement to employee Lashley. Rather, I have made such finding solely because I have accepted Lashley's testimony as indicative of what actually transpired on that occasion. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of Respondent set forth in section III, above, found to constitute unfair labor practices, occumng in connection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY As Respondent has been found to have engaged in certain unfair labor practices I shall recommend that it be ordered to cease and desist therefrom and that it take specific action, as set forth below, designed to effectuate the policies of the Act. In view of the fact that Respondent unlawfully laid off Sheets, Stanley McFadden, Jones, Thompson, Brinkley, Warren, and Sanders, it will be recommended that Respondent be ordered to offer each immediate and full reinstatement to his former position or, if such is not available, one which is substantially equivalent thereto, without prejudice to the seniority and other rights and privileges of each. It will be further recommended that each be made whole for any loss of earning suffered by each by reason of his layoff. There is evidence in the record that Stanley McFadden and Brinkley were offered reinstatement but this issue was not fully developed. In view of this, I will make no finding whether such tender of employment has caused them to forfeit the right to be recalled (but not the right to be made whole for loss of earnings) and shall leave these determina- tions to be taken up at the compliance stage of this proceeding. Cf. Nachman Corporation, 144 NLRB 473, 476. In making whole the seven aforesaid employees, Respon- dent shall pay to each a sum of money equal to that which he would have earned as wages from the date he was terminated to the date of reinstatement or a proper offer of reinstatement, as the case may be, less his net earnings during such period. Such backpay, if any, is to be computed on a quarterly basis in the manner established in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent per annum calculated according to the formula announced in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that Respondent preserve and make available to the' Board or its agents, upon reasonable request, all pertinent records and data necessary to aid in analyzing and determining whatever backpay may be due. Finally, it will be recommended that Respondent post appropriate notices. The discriminatory layoffs go "to the very heart of the Act." ? N.L.R.B. v. Entwhistle Manufacturing Co., 120 F.2d 532, 536 (C.A. 4). Accordingly, the Board's Order should be comprehensive enough to prevent further infraction of the Act in any manner by the Respondent, and I shall so 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recommend. Cf. R & R Screen Engraving, Inc., 151 NLRB 1579, 1587. Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent is an employer within the meaning of Section 2(2) and is engaged in commerce as defined in Section 2(6) and (7), of the Act. 3. By (a) coercively interrogating employees regarding their and other employees' union membership, sympathies, and activities, and (b) threatening to close its plant or take other reprisals if the Union organized Respondent's plant, Respondent committed unfair labor practices forbidden by Section 8(a)(1) of the Act. 4. By discriminating in regard to the tenure of employment of Charles Brinkley, Herbert Jones, Stanley McFadden, Jerry Warren, Jim Sanders, George Sheets, and Ralph Thompson, thereby discouraging membership in the Union, a labor organization, Respondent has engaged in unfair labor practices condemned by Section 8(a)(3) and (1) of the Act. 5. All production and maintenance employees of Respondent employed at its Piedmont, Missouri, plant, excluding office clerical employees, professional employ- ees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 6. On or about August 24, 1971, and at all material times thereafter, the Union represented a majority, and has been the exclusive representative, of all employees in the aforesaid appropriate unit for purposes of collective bargaining within the meaning of Section 9(a) of the A.,t; Respondent was on that date, and has been since, legally obligated to recognize and bargain with the Union as such. 7. By refusing to recognize and bargain collectively with the Union in regard to the employees in said appropriate unit on and since August 24, 1971, Respondent has engaged in unfair labor practices prohibited by Section 8(a)(5) and (1) of the Act. 8. The above-described unfair labor practices affect commerce within the contemplation of Section 2(6) and (7) of the Act. 9. Respondent has not committed any other unfair labor practices as alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: 1 ORDER Respondent, its officers, agents, successors, and assigns, shall: 1 In the event no exceptions are filed as provided by Section 102.46 of the Board's Rules and Regulations , the findings, conclusions, recommenda- tions and Recommended Order herein shall, as provided in Section 102.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 1. Cease and desist from: (a) Discouraging membership in the Union, or any other labor organization, by laying off employees or otherwise discriminating in any manner in respect to their tenure of employment or any term or condition of employment. (b) Refusing to recognize or bargain with the Union as the exclusive bargaining representative of all the employees in the above-described appropriate unit. (c) Coercively interrogating employees concerning their and other employees' union membership, activities, and desires. (d) Threatening to close its plant or take other reprisals if its employees chose a collective-bargaining representative. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, recognize and bargain with the Union as the exclusive representative of all employees in the aforesaid appropriate unit and, if an understanding is reached, embody such understanding in a written, signed agreement. (b) Offer Charles Brinkley, Herbert Jones, Stanley McFadden, Jerry Warren, Jim Sanders, George Sheets, and Ralph Thompson immediate and full reinstatement each to his former position or, if such no longer exists, to a substantially equivalent one, without prejudice to his seniority and other rights and privileges previously enjoyed by each, and make each whole for any loss of pay he may have suffered by reason of Respondent's discrimination against him, with interest at the rate of 6 percent, as provided in the section above entitled "The Remedy." (c) Notify said Brinkley, Jones, McFadden, Warren, Sanders, Sheets, and Thompson, if presently serving in the Armed Forces of the United States, each of his right to reinstatement upon application after discharge from the Armed Forces in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended. (d) Preserve and, upon reasonable request, make availa- ble to the Board or its agents, for examination and copying, all payroll records and reports and all other records necessary to ascertain the amount, if any, of backpay due under the terms of this recommended Order. (e) Post at its premises at Piedmont, Missouri, copies of the notice marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for Region 14, after being signed by a duly authorized representative of Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 2 In the event the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." LLOYD'S ORNAMENTAL AND STEEL FABRICATORS 379 (f) Notify the Regional Director for Region 14, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.3 IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not found herein. 3 In the event this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: WE WILL NOT discourage membership in District No. 9, International Association of Machinists and Aero- space Workers, AFL-CIO, or any other labor organiza- tion, by laying off employees or otherwise discriminat- ing in any manner in respect to their tenure of employment or any term or condition of employment. WE WILL NOT coercively interrogate employees regarding their and other employees' union member- ship, sympathies, and activities. WE WILL NOT threaten to close our plant or take other reprisals if our employees choose a union to represent them. WE WILL NOT refuse to recognize or bargain with said District No. 9 as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed to them by Section 7 of the National Labor Relations Act. WE WILL offer Charles Brinkley, Herbert Jones, Stanley McFadden, Jerry Warren, Jim Sanders, George Sheets, and Ralph Thompson each immediate and full reinstatement to his former position or, if such position no longer exists , to a substantially equivalent one, without prejudice to the seniority and other rights and privileges enjoyed by each and make each whole for any loss of pay he may have suffered by reason of his layoff, with interest thereon at the rate of 6 percent per annum. WE WILL notify the above-named employees, if presently serving in the Armed Forces of the United States, each of his right to reinstatement upon applica- tion in accordance with the Selective Service Act and the Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. WE WILL, upon request, bargain collectively with said District No. 9 as the exclusive bargaining repre- sentative of all employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employ- ment, and, if an understanding is reached, embody such understanding in a written, signed agreement. The bargaining unit is: All our production and maintenance employees employed at our Piedmont, Missouri, plant, excluding office clerical employees , professional employees, guards, and supervisors as defined in Section 2( 11) of the National Labor Relations Act. All our employees are free to become , remain, or refuse to become or remain, members of said District No. 9, or any other labor organization. Dated By LLOYD' S ORNAMENTAL AND STEEL FABRICATORS, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 210 N. 12th Boulevard, Room 448, St. Louis, Missouri 63101 . Telephone 314-622-4142.