Elm Hill Meats of Owensboro, Inc.

ELM HILL MEATS Elm Hill Meats of Owensboro, Inc. and Local No. 227, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case 25-CA-5201 August 7, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On April 17, 1973, Administrative Law Judge Hen- ry L. Jalette issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel filed limited cross-exceptions and a brief in support of the Admin- istrative 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, cross-ex- ceptions, and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administra- tive Law Judge and to adopt his recommended Order, as modified herein.2 The General Counsel has excepted to the Adminis- trative Law Judge's apparently inadvertent failure to conclude from the credited testimony that Respon- dent also violated Section 8(a)(1) of the Act by Pullin's threatening employees with a reduction in wages if they persisted in their union activities, and his concomitant failure to recommend a remedy for such violation. We find merit in the General Counsel's ex- ception.' The Administrative Law Judge credited Sharp's testimony that, on September 21, 1972, Supervisor Pullin told her, among other things, that Respondent "would . . . reclassify the jobs so that employees making $2.40 per hour would make $2.00 per hour" because the plant was "to small for a Union." Based upon the foregoing, we conclude that Respondent un- lawfully threatened Sharp in violation of Section 8(a)(1) of the Act. Accordingly, we shall modify the Order recommended by the Administrative Law Judge to reflect that finding. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that Respondent Elm Hill 285 Meats of Owensboro, Inc., Owensboro, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified. 1. Add the following new paragraph 1(d) to the recommended Order, and reletter the existing para- graphs 1(d) through 10) as 1(e) through 1(k), re- spectively: "(d) Threatening employees with a reduction in wages if they select a union to represent them." 2. Substitute the following paragraph for para- graph 2(d) of the recommended Order: "Mail to each of the employees who were on the payroll of Respondent Elm Hill Meats of Owensboro, Inc., at the time it discontinued its operations on or about June 27, 1973, a copy of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 25, shall, after being signed by the Respondent's repre- sentative, be mailed, postage prepaid, on or after Sep- tember 21, 1973, to said employees directed to their last known addresses." 3. Substitute the attached notice for that recom- mended by the Administrative Law Judge. The 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 credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings In agreeing with the Administrative Law Judge that Respondent violated Sec 8(a)(1) by Plant Manager Lane's instructions to Supervisor Baltz to keep the union activities of its employees under surveillance, we find it unneces- sary to decide whether such an instruction violates the Act without any showing of employee knowledge The evidence establishes that employee Deno overheard this instruction In our view, that is enough to establish the violation found based on this incident 2 While Chairman Miller agrees that a bargaining order is appropriate herein, he would, for the reasons stated in his separate concurrence in United Packing Company of Iowa, Inc, 187 NLRB 878, predicate this remedy solely upon the extensive 8(a)(1) and (3) violations found herein General Counsel also excepted to the Administrative Law Judge's appar- ently inadvertent omission from his proposed notice of a provision corres- ponding to the broad cease-and-desist provision contained in his recommended Order We herein modify the notice to conform to the Admin- istrative Law Judge's recommended Order APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportuni- ty to present their evidence, the National Labor Rela- tions Board has found that we violated the law when 205 NLRB No. 41 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we discharged Shirley Sharp, Shirley Sapp, Nancy Dickens, and Rita Richards because of their activities on behalf of the Union and because they were respon- sible for the sign about the foreman posted on the bulletin board on September 26, 1972. The Board has ordered us to post this notice. WE WILL NOT discharge employees because they engage in concerted activities protected by Sec- tion 7 of the Act, or because of their activities on behalf, or in support, of Local No. 227, Amalga- mated Meatcutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization. WE WILL offer to reinstate Shirley Sharp, Shir- ley Sapp, Nancy Dickens, and Rita Richards to their former jobs or, if thosejobs no longer exist, to substantially equivalent jobs, and WE WILL make them whole by paying them the wages which they lost because we discharged them un- lawfully. WE WILL NOT question employees about their union activities or sympathies. WE WILL NOT threaten employees with dis- charge because of their activities or support of Local No. 227, or because they engage in protect- ed concerted activity. WE WILL NOT threaten to close the plant, or reduce your wages, if you select Local No. 227, or any other labor organization, to represent you. WE WILL NOT tell employees that a union repre- sentative has informed us of their support of the Union when this is not true. WE WILL NOT keep your union meetings under surveillance, nor create the impression that we are keeping your meetings under surveillance. WE WILL NOT instruct supervisors to keep your union activities under surveillance. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them by Section 7 of the National Labor Relations Act, as amend- ed. WE WILL bargain collectively, upon request, with Local No. 227, Amalgamated Meatcutters and Butcher Workmen of North America, AFL- CIO, as the exclusive representative of all our employees in an appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such un- derstanding in a signed agreement. The bargain- ing unit is: All production and maintenance employees, including truckdrivers, employed at our Ow- ensboro, Kentucky facility, excluding all salesmen, office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. You are free to become and remain members of Local No. 227, Amalgamated Meatcutters and Butch- er Workmen of North America, AFL-CIO, or any other labor organization. ELM HILL MEATS OF OW- ENSBORO, INC (Employer) Dated By (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 concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 317- 633-8921. DECISION STATEMENT OF THE CASE HENRY L. JALETTE, Administrative Law Judge: This case involves allegations that the above-captioned Employer en- gaged in acts of interference, restraint, and coercion of em- ployees in violation of Section 8(a)(1) of the Act, that it discharged four employees because of their union and/or protected activities in violation of Section 8(a)(1) and (3) of the Act, and that it violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the above- captioned Union, the Charging Party herein, which had been designated by a majority of its employees in an appro- priate unit as their representative for purposes of collective bargaining. The refusal-to-recognize-and-bargain allega- tion is predicated on the proposition that Respondent en- gaged in Section 8(a)(1) and (3) conduct in order to destroy the Union's majority status and to evade its obligation to recognize and bargain with the Union, that Respondent thereby made a fair election of representatives impossible, and that an appropriate remedy for its unfair labor practice conduct would be a bargaining order. The complaint issued on November 6, 1972,' pursuant to an original charge filed on October 4 and an amended charge filed on October 31. On January 16, 17, and 18, 1973, a hearing was held in Owensboro, Kentucky. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by 1 Unless otherwise indicated , all dates are in 1972 ELM HILL MEATS General Counsel and Respondent, I make the following: FINDINGS OF FACT I THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Respondent operates a facility in Owensboro, Kentucky, employing at the times relevant herein about 25 employees engaged in the production of meat and related products.2 In the late spring of 1972, some of its employees became inter- ested in representation by a union and authorization cards were circulated on behalf of the Union. This activity abated for a brief period but revived in early September. By Sep- tember 21, a majority of the employees had signed authori- zation cards and on that date the Union demanded recognition. On September 25, the Union filed a petition in Case 25-RC-5150. That same day Respondent sent a letter to the Union rejecting its demand for recognition. On Sep- tember 26, four employees were terminated. These termina- tions and the conduct of supervisors between September 21 and October 18 form the basis of the complaint herein. Because of the issuance of the complaint, the RC petition was dismissed on November 8. B. The Alleged Interference, Restraint, and Coercion 1. The conduct of Ted Pullin Employee Sally Sharp testified credibly that on Thursday morning, September 21, she and Foreman Ted Pullin, an admitted supervisor, arrived at work at the same time. Sharp had been active on behalf of the Union and had signed an authorization card and she asked Pullin if he had heard anything about the Union. He replied that he had 2 weeks earlier, but the matter had blown over. He told her not to get involved with it. As they reached the plant entrance, he told her he wanted to talk to her later. Sometime in the morning after this conversation with Sharp, Pullin pulled three employees off their jobs singly to talk to them about the union activity at the plant. According to Bobby Yates, Pullin told him the union man had called him the night before and he knew that Yates was pushing the Union. He told Yates if he had signed a union card he had better get out of it right now before he lost his job. He said the plant was too small to have a union, that it had been tried before without success and it would not succeed again. He said if the plant went union it would be closed. According to Larry Smith, Pullin asked him if he had heard about the Union. When Smith said yes, Pullin asked him why he had not informed Pullin. Smith did not answer, Pullin asked him if he had signed a union card and Smith did not answer. Pullin told him he knew he had signed a card and that he was one of the pushers of the Union. Pullin asked him what he thought about the Union and Smith said 2 Commerce is not in issue The complaint alleges, the answer admits, and I find, that Respondent meets the Board's direct inflow standard for the assertion of jurisdiction 287 it did not matter what he thought, it was what the other employees wanted that mattered. As they were walking back to the plant (the conversation had taken place in the truck lot), Pullin remarked that four employees were going to leave there Friday. Roger Sallee, the third man pulled off the job by Pullin, testified that Pullin asked him how come he had signed a union card since he was making more money than the other employees were making. Pullin told Sallee that Baltz would close the plant if it went union. Robert Baltz is president of Respondent. Pullin admitted the foregoing interrogations, but denied the threats. I do not credit him. Of all the witnesses to appear before me in this proceeding, Pullin was the one who impressed me the least favorably. It was not only his demea- nor, but also the fact that where his testimony conflicted with that of General Counsel's witnesses his explanation of his behavior was to my mind simply unbelievable. In this particular matter, he stated that he interrogated the employ- ees in question "for my own benefit." He never did explain what he meant by that and why he deemed it proper to ignore his duties and to call three employees away from theirs just to interrogate them. Accordingly, as the interro- gations were accompanied by threats of discharge and plant closure which were themselves coercive statements violative of Section 8(a)(1) of the Act, I find that the interrogation of Yates, Smith, and Sallee was coercive and violative of Sec- tion 8(a)(1) of the Act. I also find violative of Section 8(a)(1) Pullin's statement to Yates that the union man had called him and he knew that Yates was pushing the Union. As will appear below, Pullin made a similar remark to employee Katherine Creek- mur,3 which I also find unlawful. Pullin testified that on Wednesday evening he had received a call from a man informing him that there was union activity at the plant. He testified the caller did not identify himself. He did not testify that the man said he was a union man. He was therefore not justified in telling Yates and Creekmur that a union man had called and that he knew Yates was pushing the Union (in Creekmur's case, he said the man told him who had signed union cards). Such remarks could only cause em- ployees to distrust the union representatives and create a division between them because of the fear that such a disclo- sure would endanger their jobs, a well-founded fear in light of Pullin's threats. Sometime during that Thursday morning, Pullin spoke to Larry Smith again and to Terry Deno as they were working. He said that when this was all over the cards which the employees had signed would be turned into the office and those who had signed them would be fired. In yet another conversation, in which the Union was brought up (by whom is not shown in the record) Pullin told Smith, Deno, and two other employees that if the Union was voted in all Baltz would have to do is close the plant for 30 days then reopen it with new employees. These remarks of Pullin constituted unlawful threats of discharge. In addition to the foregoing, according to the credited testimony of Deno, Pullin spoke to him alone and asked him if he knew anything about the Union. Deno replied that he 3 Creekmur's name is incorrectly spelled in the record as Creekmun. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had heard talk. Pullin said he knew Creekmur was the leader because he hadjust finished talking to her and she had told him she was. Pullin asked Deno if he knew who had signed cards and Deno said no. Pullin told him that the cards would be turned in to the office and everyone who had signed one would be fired. This conversation was also viola- tive of Section 8(a)(1) of the Act because of the interroga- tion and the threat of discharge. Creekmur, who was the leading union advocate, verified that she had told Pullin that she was a union supporter According to her, this came about because Pullin spoke to her that morning and told her that the union man had called him the night before and had told him who had signed union cards. Creekmur told him the union man did not do that because the Union did not work that way. Pullin asked her if she was admitting she was for the Union and Creek- mur told him yes and that now that he knew he could get her fired. Pullin said he would not do that, but she could be framed.' I have already found, supra, that Pullin's reference to the union man was violative of Section 8(a)(1) of the Act, and I find that the conversation was additionally unlawful because of the interrogation involved and the implied threat of discharge in the remark "she could be framed." Creekmur testified credibly that later that day she had another conversation with Pullin in which she asked him to still be friends. He agreed and in the conversation that followed he asked her why the employees wanted a union. Creekmur told him the employees wanted better working conditions. Pullin replied, "it would never go," that they would close the plant, reopen it, reclassify the people, and pay them lower wages. As Creekmur turned and walked away from Pullin, he said he would talk against the Union to anyone he wanted to and if they did not like it they could kiss his butt. I find that Pullin's remarks to Creekmur were unlawful because of the interrogation contained therein and the threat of plant closure. Creekmur testified that Pullin's conduct disturbed the employees and they decided to call Union Representative Charles Reinhart and to hold a meeting that night. The packaging room in which the women employees worked completed its work at noon. Before leaving work, word was spread around that a meeting would be held that night at Shirley Sharp's house. Sharp testified credibly that, as she was leaving the plant, she met Pullin who wanted to talk to her, but she told him she and Creekmur were going to lunch at the Eastway. Pullin said he didn't want to go if Creekmur was going to be there. Sharp, Creekmur and several other employees met at the Eastway and they were joined by Pullin. After lunch, Sharp returned to the plant and met and talked with Pullin. He told her he did not know how deeply she was involved with the Union but that she had better get out now, " ..because when they find out, there won't be anything I can do about it, and I don't want to see you go." He said the plant was too small for a union and that Baltz would close the doors or use the facility for storage, or reclassify the jobs so that employees making $2.40 per hour would make $2.00 per hour. As the conversation was con- 4 Creekmur was corroborated by Shirley Sharp who overheard part of the conversation cluding, Pullin asked Sharp why she had not invited him to the meeting set for that evening. Sharp asked him "what meeting" and Pullin told her he knew she was going to have a meeting and probably a party afterwards. Sharp rejoined that she was going to have a makeup party and he could come to that if he wished. I find that Pullin's remarks to Sharp were unlawful be- cause of the threats of discharge and plant closure. Pullin's remarks about the meeting to be held at Sharp's house were unlawful because they created the impression of surveil- lance of the union activities of the employees. As to Pullin's presence at the Eastway at lunchtime, it constituted surveil- lance of the union activities of the employees. It was not his custom to eat there and certainly not his custom to join the employees . His presence at the restaurant is accountable only to the fact that the employees were meeting there and it could only tend to inhibit the employees from discussing their organizational activities and thus interfere with their exercise of Section 7 rights. Later that day, Pullin asked employees Smith and Deno if they were going to the meeting that night. Smith said he didn't know and Pullin told him he should because there'd be free drinks. I find that these remarks of Pullin were unlawful because of the interrogation involved and because they created the impression of surveillance of the employ- ees' union activities. As planned, the employees had a meeting at Sharp's house Thursday night. Union Representative Reinhart testi- fied credibly that when he arrived at Sharp's house to attend the meeting he sat in his car for a few minutes by the side of the house and while he was there he observed a car pass by traveling very slowly. As the car drove slowly by, Rein- hart observed the driver looking towards the window of Sharp's house. The car came to a stop sign and turned left thus passing the front of Sharp's house, and Reinhart ob- served the driver looking towards Sharp's front picture win- dow. Reinhart did not know the driver of the car, but he entered the house and learned from Sharp, who had also seen the car go by, that Pullin was the driver. Shortly there- after Katherine Creekmur arrived and the three observed Pullin's car go by the house a second time. As before, the driver was looking towards Sharp's house. I find that Pullin's conduct described above constituted surveillance of the employees' union activities in violation of Section 8(a)(1) of the Act. Pullin gave two explanations for his presence at Sharp's house that evening: he was invit- ed by Sharp, and he had to pass by her house to do some shopping with his wife. I credit neither. His testimony about an invitation was clearly a distortion of Sharp's remark to him described above that she was having a makeup party and he could come to that if he wished. Moreover, Pullin never explained why Sharp would have invited him to her home (he also claimed he was invited to the Eastway earlier that day). It is not unknown for employees to invite a super- visor to union meetings when they are not certain of his supervisory status or when they want to solicit his support of their organizational activity. There was no uncertainty in this case about Pullin's supervisory status, which is admitted by Respondent. It would seem, therefore, that if Pullin had been invited by Sharp it could only have been because the employees wanted to enlist his support. However, there is ELM HILL MEATS not the slightest indication that the employees wanted to do this. Employee Sallee testified credibly that the day following the meeting Pullin came up to him and told him he had been by Shard's house the night before and he knew who had attende the meeting, naming Creekmur, Deno, Smith and a few others. Later, Pullin handed Sallee his paycheck as he usually did and told Sallee "Look at it. It might be the last one you get." Such conduct was violative of the Act. The remark about the check was an implied threat of discharge which clearly related to the organizational campaign and Sallee's involvement in it, a matter about which he had been reminded by Pullin earlier in the day when Pullin told him of his surveillance of the union meeting the night before. Pullin's notification to Sallee of his surveillance of the union meeting was itself unlawful conduct because of its tendency to restrain and coerce employees from continuing to engage in union activities. 2. The conduct of Dick Marker At the times material herein, Dick Marker was sales man- ager and an admitted supervisor. On September 22, after distributing handbills at the plant, Union Representatives Reinhart and Pierce went to the Eastway Cafe where they saw Creekmur, Sharp, and other employees. They did not join them, but sat at the counter where they were ap- proached by Creekmur, who told them that employee Bill McElwaine was with them and wanted to sign an authoriza- tion card, but not at the Eastway because some supervisors were there. They arranged to meet at the River View where McElwaine signed a card and the employees had a general discussion of union matters. As some of those present were leaving, they observed the arrival of Dick Marker. Some employees and the union representatives left. As they did so, they observed Marker enter the restaurant and join Mc- Elwaine, and two or three other employees who had not yet left. The complaint alleges that Marker's presence at the River View constituted an act of surveillance. Marker, who is no longer employed by Respondent and who now lives in Cali- fornia, did not testify. Delmar Lane, plant manager at the time of the events herein, testified that on September 22 McElwaine was at work in an intoxicated condition, and that, after McElwaine left work, Marker came to him want- ing to leave the plant to go to McElwaine's assistance. Lane refused to permit him to do so on company time and told Marker he could do so on his own time. Lane did not know what transpired at the River View, but his testimony was offered as the probable explanation for Marker's presence there. Despite the fact that I do not credit Lane on most issues presented herein, I credit his testimony on this point. General Counsel did not offer any evidence to refute Lane. True, employee Deno testified that about lunchtime that day Marker had asked him if he was going to the River View with all the rest of the employees. Marker said they were having a meeting and he thought he might go there. This testimony supports General Counsel's allegation that Marker's visit had a purpose of surveillance, but I deem it insufficient to overcome Lane's testimony and to satisfy General Counsel's burden of proof. When Marker went to 289 the River View, he apparently spoke to McElwaine and other employees. None of these were called to testify about Marker's behavior at the restaurant. General Counsel was content to show only that Marker was there. In light of Lane's testimony, I deem General Counsel's evidence insuf- ficient. I do find, however, that Marker's interrogation of Deno about going to the restaurant was unlawful, not only as interrogation, but also because Marker conveyed the impression that Respondent was keeping under surveillance the union activities of it employees. Employee Yates testified credibly that on October 16 he went to Marker's office to get a match. Creekmur was sitting on what Yates called a porch outside the office and Marker remarked that Yates ought to go out and see his girl, that she had said she belonged to the Union. Yates told Marker he didn't belong to the Union and Creekmur was not his girlfriend. Marker told him that if he was in the Union he had better get out of it or he would lose his job. He said that if the Union came in Baltz would close the plant. The complaint alleges that these remarks of Marker constituted interrogation and threats. The threats are clear and I find them violative of Section 8(a)(1) of the Act. The interrogation is not quite so clear. Although Marker's re- marks were not phrased as a question, they clearly would tend to call for a response and they did provoke one. Yates denied belonging to the Union. I find the remarks to have constituted interrogation and to have been violative of Sec- tion 8(a)(1) of the Act. 3. The conduct of Alfred Tignor Alfred Tignor is a foreman and admitted supervisor. On October 16, a union meeting was scheduled at Shirley Sharp's house. Terry Deno testified that after the meeting (the record does not indicate when) Tignor asked him if he had attended the meeting. Deno had not and replied no. Tignor denied asking Deno about attending a union meet- ing, but I credit Deno. By interrogating Deno about his attendance at the meeting, Tignor not only engaged in un- lawful interrogation, but also revealed his awareness of the union meeting and thereby created the impression that the meeting had been kept under surveillance, thereby further violating Section 8(a)(1) of the Act. Roger Sallee testified that sometime after a meeting at Sharp's house Tignor told him he had gone by there and had seen two union cars there. Tignor admitted to a conversa- tion with Sallee about a car at Sharp's house, but denied referring to a union car or even knowing what kind of cars the union representatives had. I do not credit Tignor. His remark about seeing two union cars could have been made without his having any idea what kind of cars the union representatives drove. I find the remark was made either to learn from Sallee whether he had been present at the meet- ing or to create the impression of surveillance. In either event, the remark was violative of Section 8(a)(1) of the Act. 4. The conduct of Robert Baltz On October 16, Robert Baltz gave a speech to the assem- bled employees lasting about 15 minutes. The testimony of the several witnesses who testified about the speech is gener- 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ally in agreement that Baltz introduced himself, described how he acquired the Owensboro plant, and pointed out that the plant was losing $1,000 a day. He referred to a profit- sharing system in operation at two other plants which he owned at which employees had recently divided profits. He told the employees that they could also participate in such profit sharing were it not for the fact that the plant was losing so much money. There is general agreement that Baltz referred to the organizational activity going on at the plant, including testimony by General Counsel's witnesses that Baltz told the employees he was not threatening them. It is also undisputed that Baltz mentioned plant closure, but the manner of his doing so is a matter of dispute. According to Baltz, he told the employees that it was possible to make a profit out of the Owensboro plant, but that if the plant did not start making a profit he would have no choice other than to close the plant. He denied telling the employees he would close the plant if the Union was selected to represent the employees. Baltz is generally corroborated by other witness- es of Respondent. According to Creekmur, in describing how he happened to acquire the Owensboro plant Baltz told them that he had not really wanted the plant when he bought it, that he had his hand in other things, and that he could close the plant down. He mentioned that the people from Louisville (an obvious reference to the union representatives) couldn't promise them anything if he didn't agree. At the same time, he reminded them the plant was open. According to Larry Smith, in referring to the Union Baltz said he presumed there would be an election providing the plant was still open. According to Yates, Baltz told them that although the plant was losing too much money he would like to keep it open because he thought it would make money. He referred to his Lexington plant and said that if the Union came in at Owensboro he would close the plant and send the equip- ment to Lexington. He said he didn't really want to close the plant. He had faith. He hoped the employees would use their heads the right way if there was an election. The complaint alleges that Baltz threatened to close the Owensboro plant if the Union came in. Respondent con- tends that the record does not support this allegation not only because of Baltz' testimony denying the utterance of any such threats, and the corroboration of Respondent's other witnesses, but also because of General Counsel's three witnesses with any recollection of the speech, only one, Yates, attributed any unlawful statement to Baltz. As Yates is not corroborated, it is contended a finding of a violation is not warranted. I do not agree. A finding that Baltz threatened the employees with plant closure does not depend on a finding that the threat was made in haec verba. It is the tenor of Baltz' entire speech that must be evaluated. In making such an evaluation, it is im- portant to note that Baltz was speaking to the employees only because of the organizational campaign and the then pending representation case. It is also noteworthy that the Owensboro plant had been operated by Respondent 5 to 6 years and it had always lost money. Yet, although it appears that Baltz may have spoken to the employees on other occa- sions, the October 16 speech was the first in which he re- closure. In a setting such as this, employees cannot have failed ". . . to pick up intended implications of the [Re- spondent] that might be more readily dismissed by a more disinterested ear." N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 617 (1969). The implication was so clear for em- ployee Yates that he believed that Baltz said if the Union came in he would close the plant down. I am not persuaded that Baltz stated his intentions so baldly or boldly, and I credit his testimony that he did not expressly say he would close the plant if the Union came in. Yates' testimony repre- sented his interpretation of Baltz' remarks, an interpretation fully justified by Baltz' juxtaposition of the two ideas of a union election and losses and plant closure. Certain phrases from the speech as described by Creekmur and Smith bring forth the intended meaning of Baltz' remarks. Thus, the picture is drawn of an employer who had reluctantly pur- chased a plant and endured losses, but who did not have to continue doing so because "he had his hands in other things." There was the reminder that the plant was open whereas the union representatives couldn't promise any- thing. There was the reference to the probability of a repre- sentation election "providing if the plant was still open at the time." There was the expression of hope that employees would use their heads the right way if there was an election. Employees hearing such remarks would indeed be dull if they failed to connect the possibility of plant closure with the selection of the Union as their bargaining representa- tive. In my judgment, Baltz clearly implied that the plant would close if the Union came in and Respondent thereby violated Section 8(a)(1) of the Act. According to Creekmur, at the start of his speech Baltz said he knew the employees were having secret meetings. Baltz did not expressly deny making a reference to employ- ee meetings and the reference is consistent with his admis- sion that he told the employees that he was aware of the organizational activity at the plant. Such a remark creates the impression among employees that their union activities have been kept under surveillance, as they in fact had been, and such a remark has a tendency to coerce employees in the exercise of their Section 7 rights and is violative of Section 8(a)(1) of the Act. 5. The conduct of Delmar Lane Creekmur testified that on the morning of September 26 she overheard Foreman Pullin tell employee Yates that he had better get out of the Union and not get involved with it and that he was going to kick his butt. Creekmur reported this incident to Shirley Sharp and it was decided to make up a sign. Creekmur, Shirley Sharp, Shirley Sapp, Rita Rich- ards, and Nancy Dickens congregated in the restroom and Sharp wrote out a sign with help in the wording from the other girls. The sign said, Has Teddy ever lied to you, bullied you, threatened you with your job, or kicked your butt, these are the things we are united against, Your fellow workers minded them of the plant's losses and the possibility of plant This sign was posted on a bulletin board outside the ELM HILL MEATS packaging room .5 A few minutes after the employees had returned to work , Lane came into the packaging room hold- ing the sign up and wanting to know who had posted it. Nobody answered him. Lane said he thought that they cared about their jobs more than that; that they weren't authorized to put any notices on the board ; and that he could call Baltz and have the doors locked on that plant. He asked again who was responsible for the sign , but nobody answered him. Lane asked Foreman Penman if he knew and Penman said no. Lane said that he could have the handwrit- ing analyzed and when he did those responsible would be fired . He then left the room. The complaint alleges that the foregoing conduct of Lane was violative of Section 8(a)(1) of the Act because of the interrogation about the sign and the threats of plant closure and discharge. Except as to the question of the date on which the incident occurred , the essential facts concerning the incident are undisputed . As those facts reveal that Lane threatened to have the plant closed and threatened the dis- charge of the employees responsible for posting the sign, a finding of a violation of Section 8(a)(1) of the Act is war- ranted if the conduct of the employees in posting the sign constituted protected activity . Respondent does not con- tend that the activity was unprotected and it is clear that it was not. The subject matter of the sign was Foreman Pullin's conduct toward the employees with regard to their union activities and their job tenure. The legend on the sign was not abusive or offensive . The fact that it was posted on the bulletin board without permission did not remove the activity from the protection of the Act because the record contains uncontradicted testimony that the bulletin board was used by employees for a variety of personal notices. Under the foregoing circumstances, I find that the posting of the sign constituted concerted protected activity and that Respondent violated Section 8(a)(1) of the Act by Lane's threats to the employees because of such activity . I also find that Lane's interrogation of the employees to discover who was responsible for the sign was violative of Section 8(a)(1) of the Act because it was not for a lawful purpose and was accompanied by threats of reprisal. In addition to the foregoing , the complaint alleges that on October 18 Lane engaged in 8(a)(1) conduct by directing supervisors to keep the union activities of the employees under surveillance . This allegation is based on evidence that on October 18 the union representatives were at the plant at or on the parking lot. Terry Deno had been on a delivery and when he returned he went to the office to check his receipts or invoices . He testified that while there he over- heard Lane say something about the union men out there. Lane told the individual to whom he was speaking (Deno did not know who it was) to go out and see whose car Reinhart went up to and who Reinhart knew. From the testimony adduced by Respondent, it was established that Lane was speaking to Supervisor Doug Baltz. Lane and Baltz admitted a conversation about the presence of the union representatives at the plant , but both testified that Lane's instructions to Baltz were to approach the union representatives who were on the parking lot and to tell them 5 A second sign with identical language was placed in a file cabinet to be posted later It was never posted 291 to get off company property. Before Baltz executed the instruction, the men left. I credit Deno's testimony about Lane's instructions . In doing so, I note that the record is replete with instances of surveillance and the instructions attributed to Lane would be in keeping with the earlier instances of surveillance . Respondent contends that even should I credit Deno all that will have been established is a direction to a supervisor to engage in surveillance which was not executed and that in this circumstance a finding of a violation is not warranted . Such a position was sustained in General Engineering, Inc. and Harvey Aluminum (Incorpo- rated), 131 NLRB 648. However, Cannon Electric Company, 151 NLRB 1465, raised serious doubts about the viability of General Engineering and it was expressly overruled in Elder- Beerman Stores Corp., 173 NLRB 566, footnote 4. But, as footnote 4 there indicates, while overruling General Engi- neering, the Board still did not state precisely what the rule was in situations involving instructions to supervisors to engage in surveillance . Thus, when the Board speaks of employees being "aware of instructions," does that include awareness from overhearing the issuance of the instruc- tions? And must employee awareness be conjoined with execution or a discharge for refusal to execute ? In my judg- ment, the rationale of Cannon Electric Company, supra, at 1468, 1469, is sound and an employer has no legitimate right to instruct his supervisors to engage in surveillance. Such conduct is violative of Section 8(a)(1) of the Act without any showing of employee knowledge or compliance with the instructions. If employee knowledge is deemed essential to a finding of a violation , I would find a violation because of the affirmative showing of employee knowledge arising out of Deno's overhearing the conversation, plus the fact that the instructions occurred in the context of other instances of either surveillance or statements to employees creating the impression of surveillance . Accordingly, I find that Re- spondent violated Section 8(a)(1) of the Act by Lane's in- structions to Baltz. C. The Alleged Discriminatory Discharges About 2 p.m. on September 26, the employees were re- leased from work except for Sharp, Sapp, Richards, and Dickens who were told by Foreman Penman to go to Lane's office . In Lane's office, Lane told them that work had slacked down and that they were being terminated and would not be recalled. No one said anything except asked if that was it and Lane said yes and that they could pick up their checks on Friday. The women left and have not been recalled. The complaint alleges that these four employees were discharged because of their union activities and/or because of their activities in preparing and posting the sign referred to and discussed above. Respondent denies these allega- tions and contends that the employees were permanently laid off, hence terminated, because of lack of work. Preliminary to a discussion of Respondent's principal contention, I shall dispose of its contention that General Counsel adduced no evidence that Respondent knew either of the union activities of Sapp, Dickens, and Richards, or of their participation, with Sharp, in the preparation and posting of the sign . As Respondent correctly states, in order 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for a discharge to be discriminatory, there must be knowl- edge on the part of the employer of the employee's union activities and the burden of proof is upon General Counsel. Respondent adverts to the union meeting at Sharp's house and her conversation with Pullin and admits, in effect, knowledge of Sharp' s union activities. As neither Sapp, Dickens, nor Richards were interrogated or personally in- volved in conversations with any supervisor, Respondent contends a finding of company knowledge of their union activities is not warranted. It is settled law that proof of knowledge of union activity may be established by circumstantial as well as by direct evidence.6 There is substantial circumstantial evidence in this case to warrant a finding that Respondent knew of both the union activities of all the alleged discriminatees and their activities with respect to the sign . They had all signed union authorization cards and had been active in varying degrees on behalf of the Union.? Cards had been distributed and signatures solicited at the plant. As indicated above, a meeting of employees at Sharp's house on September 21 was kept under surveillance, as was a meeting of employees at the Eastway restaurant on September 21.On September 22, the employees left the Eastway restaurant because supervi- sors were present In addition, there is Pullin's interrogation of employees and his own admission that on September 21 Yates told him at the Eastway who some of the employees were who had signed cards. In my judgment, these circum- stances, in conjunction with the fact that Respondent's plant employed only about 25 employees, support an infer- ence of company knowledge of the union activities of all the terminated employees. As to Respondent's knowledge of the identity of the indi- viduals who prepared and posted the sign, there is the fact that the activity occurred in a small plant. There is the fact that the sign's language suggested that it was related to the organizational campaign of which Respondent was aware, including who were the employees involved as I found above. Added to that are Lane's own remarks when interro- gating the employees about the sign wherein he indicated an intention of discovering who was responsible for the sign. Added to this is testimony of Terry Deno, which I credit, that on the day the terminations occurred he heard of them and asked Pullin who had been fired. Pullin told him four girls. Pullin said they had hung a board or something on the bulletin board about the Union and him and that Lane was mad over it. As this testimony assigns the posting of the sign on the bulletin board as the reason for discharge, it follows that Lane must have known of the identity of the partici- pants in the posting of the sign. I so find. The mere fact that the employees who were terminated were union adherents and had engaged in concerted pro- tected activities, and that Respondent knew this, gave them no shield against discharge. Employees may be dismissed for any reason, or no reason, as long as union activity is not 6 Wiese Plow Welding Co, Inc, 123 NLRB 616, Piezo Manufacturing Corp, 125 NLRB 686, enfd 290 F 2d 455 (C A 2, 1961), N L R B v Tru-Lice Metal Products Company, 324 F 2d 614 (C A 6, 1963), cert denied 377 U S 906 (1964) i Dickens was the least active of the four employees She signed a card on September 7 and she participated in the preparation of the sign and its posting, although it appears her participation may have been inadvertent the basis for the discharge, and the burden of proving an improper motive for the discharges is upon the General Counsel. Lawson Milk Company v. N L.R.B., 317 F.2d 756, 760 (C.A. 6, 1963). "Furthermore, an employer's general hostility to unions, without more, does not supply an unlaw- ful motive as to a specific discharge." N.L.R.B. v. South Rambler Co, 324 F.2d 447, 449 (C.A. 8, 1963). However, "Actual motive, a state of mind, being the question, it is seldom that direct evidence will be available that is not also self-serving." Shattuck Denn Mining Corporation v. N. L. R. B., 362 F.2d 466, 470 (C.A. 9, 1966). "Determining the actual motive behind the dismissal of an employee is of course often an extremely difficult task, dependent princi- pally upon circumstantial evidence and informed estimates concerning the springs of human conduct." N. L.R B. v. Ho- tel Conquistador, Inc, d/b/a Hotel Tropicana, 398 F.2d 430, 435 (C.A. 9, 1968). In determining motive, "antiunion bias and demonstrated unlawful hostility were proper and highly significant factors for Board evaluation)...... N L.R.B v. Durant Sportswear, Inc., 358 F.2d 729, 730 (C.A. 5, 1966), and "Even if there might be a justifiable reason for the discharge of an employee, if the real motive for the firing is discrimination against him because of his union activities or affiliation, there is a violation of the Act . . . . The true reason for the discharge is the controlling and ultimate fact." N. L. R. B v. Challenge-Cook Brothers of Ohio, Inc., 374 F.2d 147, 152 (C.A. 6, 1967). It is with the foregoing principles in mind that I have approached the question of Respondent's motive in perma- nently laying off four employees on September 26. I have concluded that Respondent's real reason for terminating the four employees in question on September 26 was their union activities, coupled with their activities with regard to the posting of the sign. My reasons for this decision are mani- fold. There is no gainsaying the fact that in the fiscal year ending June 30, 1972, according to an auditor's report, Re- spondent had a loss of $263,119.26, and an additional loss of $68,089.44 for the first quarter of the 1973 fiscal year ending September 30, 1972. But it is difficult to understand what these losses had to do with the decision to lay off four employees on September 26. Obviously, the first quarter report for 1973 had nothing to do with the decision because it had not been prepared by September 26. More important, however, is the fact that the Owensboro plant had always lost money. According to the auditor's report, the Owens- boro plant showed losses of $531,086.74 since its acquisi- tion. Yet, Respondent had never before terminated four employees at one time for lack of work. Respondent stipu- lated that between January 1, 1968, and September 26, 1972, only two employees had been laid off, one in September 1971 and the other on April 7, 1972. Thus, in terminating four employees for lack of work, Respondent was deviating from its past practice As I understand Respondent's position, the explanation for this change is that Lane was a new plant manager who had been brought to Owensboro for the express purpose of resolving Respondent's chronic problem of financial losses. In keeping with his new assignment, Lane testified that he first recommended closing the plant. When Baltz rejected this recommendation, Lane allegedly undertook to improve conditions by various actions. He testified he discontinued ELM HILL MEATS sales promotions in Wisconsin and terminated two salesmen, that he reduced supervisory and clerical staff, that part-time employees were eliminated, and that employees who quit were not replaced. His testimony as to when these actions were taken, however, was very imprecise, although it is obvious that personnel records could have shown pre- cisely when these personnel changes occurred, whether be- fore or after September 26, whether before or after the Union's demand for recognition. Since Respondent stipu- lated that only two employees had been laid off before September 26, I conclude that insofar as unit employees were concerned the personnel actions described by Lane occurred after September 26. I note also that, except for Lane's action in discontinuing certain sales promotions, all the personnel actions described were attributable to causes other than action on Lane's part. Thus, Paul Penman left because he was replaced by Lane, and this led to the discon- tinuance of the services of his wife and daughter, who had only worked part time on Saturdays. His son, Foreman Penman, also left, but only after September 26. The reduc- tion of a clerical employee occurred about 1 month before September 26, was attributable to the fact that bookkeeping was transferred to Nashville, and was unrelated to the lack of work in the plant. All other personnel actions were em- ployee quits. In short, when one analyzes the record, the termination of four plant employees on September 26 is the only affir- mative personnel action which Lane took to reduce costs. On the other hand, on August 25 and 28, 1972, Respondent had hired two employees, Charles Warner and Joseph Ed- ward Payne. About this same time, Lane spoke to the em- ployees and told them that conditions seemed to be getting better and that he hoped it would still get better. Such remarks and the hiring of two new employees is conduct at odds with the Respondent's emphasis on its financial losses as the reason for the terminations on September 26. Other circumstances may have compelled a reevaluation of Respondent's operations. According to Lane, there was such a circumstance. On Monday September 21, the pack- aging department employees had worked only 3-1/2 hours because of lack of work. In light of that, he allegedly made his mind up that something had to be done to take care of some of the conditions in this plant. Accordingly, he testi- fied he called Robert Baltz in the morning of September 26 and repeated a recommendation that he claimed he had been making since becoming plant manager on August 21, namely, that the plant be closed. Apparently Baltz rejected the recommendation again (although Lane did not express- ly say so), and Lane then said that if Baltz insisted on carrying that load (i.e., a money-losing plant) he had to make some changes. He had to reduce overhead "person- nelwise, costwise, telephonewise, and so forth." Baltz au- thorized him to do what he thought necessary. Allegedly because there was no business in the packaging department, he selected that department for laying off four employees, the number which he concluded was in excess of the department's needs. In my judgment, this explanation does not deserve cre- dence. According to Lane's own testimony, sales and ton- nage had been down 2 weeks preceding the terminations on September 26. If one examines the hours of work of the 293 packaging department of employees in the week prior to September 26, one finds that the packaging department employees had worked 5, 3-1/2, and 5 hours on Wednesday, Thursday, and Friday, September 20, 21, and 22, respective- ly. (This is shown by Nancy Dickens' timecard and she testified without contradiction that the other employees in packaging worked the same number of hours.) Despite such indicators of a lack of work in the week or two preceding the terminations, Lane did nothing. His failure to act until after the Union had demanded recognition and after the employees had demonstrated by their sign their support of collective action supports the inference that the real reason for the terminations was not a lack of work, but the employ- ees' union and protected activities. In my judgment, the timing of these permanent layoffs, which removed from the plant four union adherents, including Sharp, one of the most prominent, is "persuasive evidence as to motivation." N.L.R.B. v. Sutherland Lumber Co., Inc. 452 F.2d 67, 69, (C.A. 7, 1971). Insofar as the timing factor relates to the posting of the sign, Respondent disputes that the timing is as I have de- scribed it. According to Respondent' s witnesses, the sign in question was posted on Friday, September 22, and not on September 26. Respondent contends that its witnesses are deserving of credence on this issue because the posting of the sign on September 22 accords more logically with the other incidents described herein than does a finding that the posting occurred on September 26, and because General Counsel's own witnesses contradicted one another on an incident directly related to the posting of the signs. Thus, according to Creekmur, the immediate reason for the prepa- ration of the sign was a threat by Pullin to kick Yates, which she overheard Pullin make on September 26. Respondent argues that Creekmur's testimony should not be credited because Yates himself testified that the threat was made to him on Thursday. I am not persuaded, however, that Yates' testimony was sufficiently explicit about the date of the threat to warrant my not crediting Creekmur. The record indicates that the threat related only indirectly to Yates' union activities and followed an incident wherein Pullin suggested there was an improper relationship between Yates and two of the female union adherents, that Yates told them of Pullin's remark, they were upset by the report and berat- ed Pullin, and Pullin then threatened Yates. As is readily seen, several conversations preceded the one in which the threat was made and, busy as Pullin was on September 21, I find it difficult to believe that the conversations occurred in such a quick sequence on the same day. I find Creekmur's testimony more persuasive. Moreover, Lane's testimony on the point is contradictory and confused. Although the post- ing of the sign had clearly upset him, he could not recall whether the incident occurred before or after another un- usual occurrence that same day involving the appearance of the union representatives at the parking lot. On direct exam- ination, he testified that he spoke to Creekmur and Pullin about ill feelings between them after he discovered the sign, but on cross-examination he testified that he spoke to her on Thursday before the sign was posted. He also testified that he spoke to her in the afternoon and Creekmur did not work after noon on either Thursday or Friday. She did on Tuesday and this is the day she testified that she was called 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the office . In short, Creekmur's testimony conforms bet- ter with established facts than does Lane 's. These observa- tions also apply to my rejection of Doug Baltz ' testimony and that of Pullin on this same point. In the final analysis, a finding of a violation does not depend on a finding that the sign was posted on September 26. The timing of the discharge would be no less persuasive of unlawful motivation if the employees had posted the sign on September 22. An additional reason for concluding that the decision to terminate four employees for lack of work, rather than to continue the practice of working the whole department short days is the evidence that the lack of work was not quite as severe as Lane testified . The record indicates that after September 26, in order to complete the work in the packag- ing department, employees were regularly shifted from other departments to perform the work previously per- formed by the terminated employees . In addition , Joseph Edward Payne, the least senior employee in the plant, who had been hired on August 28, worked regularly in the pack- aging department after September 26, performing work pre- viously performed by the terminated female employees. Before the layoff, Payne was a helper and brought stock into the department . Arguably, he was retained instead of a senior female employee because he could handle stock while a female could not, although Respondent offered no evi- dence to support such a finding . In any event, if Respondent could shift employees from other departments to do the work of the terminated employees , Respondent could have shifted a male employee to do Payne 's work and it could have retained Sharp , the most senior employee terminated, and, next to Creekmur, the most prominent union adherent. Respondent asserts that a finding of a violation would be at odds with the evidence that Katherine Creekmur, the most active union adherent and a participant in the posting of the sign, was not terminated . I have considered this cir- cumstance in analyzing the record and have concluded that it is insufficient to override the circumstances referred to above which establish a discriminatory motive . " ... the mere fact that all union members or supporters are not discharged does not disprove the fact that an employee's discharge is based upon an unlawful discrimatory motive." N. L. R. B. v. Challenge-Cook Bros., supra. Moreover, had Creekmur been terminated, it would have been impossible for Respondent to assert , as it did, that the terminations were based on seniority because Creekmur was one of the more senior employees. Respondent also adverts to the fact that on September 26 it terminated five employees, notjust the four alleged discn- minatees. The fifth employee terminated was Charles War- ner who had been employed on August 25. Respondent contends that the termination of Warner , who also signed a union card and who was named as a discriminatee in the charge filed herein , but not alleged as such in the complaint, undercuts the General Counsel's contention that the four female employees were discriminatorily discharged . I do not agree. As Respondent notes in its brief, General Counsel, for reasons unexplained, does not contend that Warner's layoff was discriminatory . One could conjecture about Gen- eral Counsel's reasons for not including Warner in the com- plaint as an alleged discriminatee, but such conjecture would prove nothing . General Counsel's failure to allege that Warner was also discriminatorily discharged no more disproves that the four alleged discriminatees were unlaw- fully discharged than does the fact that Respondent did not discharge Creekmur. There is yet another point which Respondent did not satisfactorily explain, and that is the reason why the five employees were permanently laid off. By permanently lay- ing them off, Respondent could prevent their voting in the event an election was held on the pending petition; but if the layoff had been temporary and the employees had a reasonable expectancy of recall they could vote in an elec- tion. In light of Lane's own optimistic statement to the employees only a week or so before the terminations that conditions were getting better, plus his testimony that he was moved to act by the short workday on Monday, one would have expected that employees would have been told, at least initially , that the layoff was temporary . Of course, as Respondent points out, none of the five employees were replaced and other employees who later quit Respondent's employment were also not replaced . But Lane could not have known this on September 26. In any event, I have considered this circumstance , but I find that its significance has been diluted by the evidence that sometime after the termination of September 26 Respondent acquired its balo- ney and wieners from a sister company at Lexington, Ken- tucky, instead of processing these products at Owensboro and, according to Baltz, it continued to do so at least until about a week before the hearing. Obviously, had Respon- dent not obtained these finished products from Lexington, there would have been more work for employees at Owens- boro. According to Baltz, the transportation of finished prod- ucts from Lexington to Owensboro was the result of an arrangement he entered into with the plant manager who replaced Lane and was part of a plan to improve conditions at both the Lexington and Owensboro plants. Baltz was not a credible witness and I do not credit his explanation for this transfer of work from Owensboro to Lexington. Baltz owns or controls several other companies which are also engaged in the meat packing business and which are not too distant from Owensboro . By virtue of this common ownership or control, it is within his power to direct work to or from one plant and thus effect the conditions at other plants. I am convinced, and I find, that the transfer of the work of proc- essing baloney and wieners was for the purpose of keeping the work force reduced at the Owensboro plant. In summary, under all the circumstances , including Respondent's clearly demonstrated animus against the Union, its threats of plant closure if its employees selected the Union to represent them, the fact that the terminations occurred in midweek, only 3 days after the Union 's demand for recognition and hours after the employees had engaged in protected concerted activity , the fact that Respondent had been suffenng financial losses for several years and had never previously terminated employees for lack of work, the fact that it had been the practice to send employ- ees home early for lack of work instead of laying off em- ployees, the fact that one junior employee (Payne ) was retained and assigned to do the work performed by the employees who were terminated and that other employees ELM HILL MEATS were regularly shifted from their regular jobs to perform their work, and the fact that the layoffs were made perma- nent thus depriving the terminated employees of the right to vote in any election thereafter held, I find that the real reason for the termination of the four alleged discriminatees was their union and protected activities. D. The Alleged Refusal To Bargain It is undisputed that on September 21 the Union request- ed recognition and bargaining and that Respondent reject- ed the request on September 25. The complaint alleges, and the answer admits, that an appropriate unit consists of all production and maintenance employees at the Owensboro plant, including truckdrivers, but excluding salesmen and the normal exclusions. In its answer, Respondent denied that the Union had been designated by a majority of its employees as their representative for purposes of collective bargaining, but the evidence indicates otherwise. The parties stipulated that the appropriate unit consisted of 25 employees on the date of the demand for recognition.' Of that number, 18 signed cards which expressly and unam- biguously authorize the Union to represent them and bar- gain collectively with Respondent on their behalf. Respondent has not challenged the validity of these authori- zations which I find constituted valid designations of the Union as bargaining representative by a majority of Respondent's employees in an appropriate unit. Respondent correctly states that even though the Union might have been validly designated by a majority of its employees its refusal to recognize and bargain with it, with- out more, is insufficient basis for finding a violation of Section 8(a)(5) of the Act. However, as Respondent recog- nizes, in such a circumstance, it may be found to have violated Section 8(a)(5) and a bargaining order may issue against it if it appears that the Employer has engaged in unfair labor practices sufficiently serious or pervasive that the posibility of erasing the effects of past practices and insuring a fair election by the use of traditional remedies, though present, is slight and employee sentiment once ex- pressed through cards would, on balance, be better protect- ed by a bargaining order? Respondent contends that any unfair labor practices of which it may have been guilty are not so pervasive or serious as to require a bargaining order. However, Respondent's contention in this connection is predicated on its other con- tentions that it has not engaged in nearly all of the unfair labor practices alleged. While, it concedes Pullin's interro- gation, it characterizes such conduct as an unfair labor practice of minimal consequence in view of Pullin's minor supervisory status. Moreover, Respondent points to the fact 8 General Counsel contended that one additional individual should be added to that number, but he failed to establish that she was an employee at the time of the demand The individual in question was Jo Ann Hall, who left Respondent's employ in June because of her pregnant condition She implied that she was granted maternity leave, but the record is insufficient to support such a finding After leaving, she discontinued insurance carried through Respondent She had requested but had not been returned to work at the time of the hearing Accordingly, I have not included her in the unit, nor have I counted her card 9 N L R B v Gissel Packing Co, Inc, 395 U S 575 (1969). 295 that his conduct occurred on one day only, Thursday, Sep- tember 21, that Pullin was directed by Lane to cease and desist from such conduct, and that the Union, mindful of Pullin's conduct, demonstrated its belief that such conduct would not preclude a free election by filing a petition. It is unnecessary to discuss each of the foregoing points urged by Respondent. Suffice it to say that Pullin's conduct was not mere interrogation; it was accompanied by threats of plant closure.10 In any event, Respondent's unfair labor practices were not limited to Pullin. On the contrary, on October 16, the president of the Company himself threatened all the em- ployees with plant closure if they selected the Union to represent them. If employees had been inclined to discount Pullin's threats because of his minor supervisory position, Baltz' speech would have disabused them. Baltz' threat of plant closure cannot be eradicated from the minds of the employees merely by informing them he will not threaten them again. Were the employees to be advised of a sched- uled election, I do not know how they could forget Baltz' threats and his observation on October 16 that an election would be held if the plant was still open. While Baltz' threat was sufficient without more to prevent the holding of a fair election, Respondent's unfair labor practices were not limit- ed to violations of Section 8(a)(1) of the Act. I have found that four employees were unlawfully discharged on Septem- ber 26. The discharge of employees because of their union activities has consistently been viewed by the Board as a serious unfair labor practice, the effects of which are not easily dissipated. I reject Respondent's contention that a fair election may be held among Respondent's employees. In my judgment, Respondent's unfair labor practices are "so coercive that, even in the absence of a Section 8(a)(5) violation, a bargaining order would have been necessary to repair the unlawful effects of those [unfair labor practic- es."]11 II THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section I, above, occurring in connection with its operations de- scribed therein, have a close, intimate, and substantial rela- tionship 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. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act. As I have found that Respondent discharged Shirley Sharp, Shirley Sapp, Nancy Dickens, and Rita Richards because of their union and protected activities, I shall rec- 10 Whatever instructions were given to Pullin to cease and desist were not commmunicated to the employees N L R B v. Ace Comb Co and Ace Bowl- ingi Co, Division of Amerace Corp, 342 F 2d 841 (C.A 8, 1965). 1 N L R B v Gissel Packing Co Inc, supra at 615. ELM HILL MEATS were regularly shifted from their regular jobs to perform their work, and the fact that the layoffs were made perma- nent thus depriving the terminated employees of the right to vote in any election thereafter held, I find that the real reason for the termination of the four alleged discriminatees was their union and protected activities. D. The Alleged Refusal To Bargain It is undisputed that on September 21 the Union request- ed recognition and bargaining and that Respondent reject- ed the request on September 25. The complaint alleges, and the answer admits, that an appropriate unit consists of all production and maintenance employees at the Owensboro plant, including truckdrivers, but excluding salesmen and the normal exclusions. In its answer, Respondent denied that the Union had been designated by a majority of its employees as their representative for purposes of collective bargaining, but the evidence indicates otherwise. The parties stipulated that the appropriate unit consisted of 25 employees on the date of the demand for recognition.8 Of that number, 18 signed cards which expressly and unam- biguously authorize the Union to represent them and bar- gain collectively with Respondent on their behalf. Respondent has not challenged the validity of these authori- zations which I find constituted valid designations of the Union as bargaining representative by a majority of Respondent's employees in an appropriate unit. Respondent correctly states that even though the Union might have been validly designated by a majority of its employees its refusal to recognize and bargain with it, with- out more, is insufficient basis for finding a violation of Section 8(a)(5) of the Act. However, as Respondent recog- nizes, in such a circumstance, it may be found to have violated Section 8(a)(5) and a bargaining order may issue against it if it appears that the Employer has engaged in unfair labor practices sufficiently serious or pervasive that the posibility of erasing the effects of past practices and insuring a fair election by the use of traditional remedies, though present, is slight and employee sentiment once ex- pressed through cards would, on balance, be better protect- ed by a bargaining order? Respondent contends that any unfair labor practices of which it may have been guilty are not so pervasive or serious as to require a bargaining order. However, Respondent's contention in this connection is predicated on its other con- tentions that it has not engaged in nearly all of the unfair labor practices alleged. While, it concedes Pullin's interro- gation, it characterizes such conduct as an unfair labor practice of minimal consequence in view of Pullin's minor supervisory status. Moreover, Respondent points to the fact 8 General Counsel contended that one additional individual should be added to that number, but he failed to establish that she was an employee at the time of the demand. The individual in question was Jo Ann Hall, who left Respondent's employ in June because of her pregnant condition She implied that she was granted maternity leave, but the record is insufficient to support such a finding. After leaving, she discontinued insurance carried through Respondent She had requested but had not been returned to work at the time of the hearing Accordingly, I have not included her in the unit, nor have I counted her card 9 N L R B v Gissel Packing Co, Inc, 395 U S 575 (1969). 295 that his conduct occurred on one day only, Thursday, Sep- tember 21, that Pullin was directed by Lane to cease and desist from such conduct, and that the Union, mindful of Pullin's conduct, demonstrated its belief that such conduct would not preclude a free election by filing a petition. It is unnecessary to discuss each of the foregoing points urged by Respondent. Suffice it to say that Pullin's conduct was not mere interrogation; it was accompanied by threats of plant closure.10 In any event, Respondent's unfair labor practices were not limited to Pullin. On the contrary, on October 16, the president of the Company himself threatened all the em- ployees with plant closure if they selected the Union to represent them. If employees had been inclined to discount Pullin's threats because of his minor supervisory position, Baltz' speech would have disabused them. Baltz' threat of plant closure cannot be eradicated from the minds of the employees merely by informing them he will not threaten them again . Were the employees to be advised of a sched- uled election, I do not know how they could forget Baltz' threats and his observation on October 16 that an election would be held if the plant was still open. While Baltz' threat was sufficient without more to prevent the holding of a fair election, Respondent's unfair labor practices were not limit- ed to violations of Section 8(a)(1) of the Act. I have found that four employees were unlawfully discharged on Septem- ber 26. The discharge of employees because of their union activities has consistently been viewed by the Board as a serious unfair labor practice, the effects of which are not easily dissipated. I reject Respondent's contention that a fair election may be held among Respondent's employees. In my judgment, Respondent's unfair labor practices are "so coercive that, even in the absence of a Section 8(a)(5) violation, a bargaining order would have been necessary to repair the unlawful effects of those [unfair labor practic- es."] 11 II THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section I, above, occurring in connection with its operations de- scribed therein, have a close, intimate, and substantial rela- tionship 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. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act. As I have found that Respondent discharged Shirley Sharp, Shirley Sapp, Nancy Dickens, and Rita Richards because of their union and protected activities, I shall rec- 10 Whatever instructions were given to Pullin to cease and desist were not commmumcated to the employees N L R B v Ace Comb Co and Ace Bowl- ing Co, Division of Amerace Corp, 342 F 2d 841 (C A 8, 1965). 1 N L R B. v. Gissel Packing Co Inc, supra at 615 ELM HILL MEATS fectuate the policies of the Act: (a) Upon request, bargain collectively with Local 227, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive representatives of all the employees in the unit described above, and, if an understanding is reached , embody such understanding in a signed agreement. (c) Offer Shirley Sharp , Shirley Sapp, Nancy Dickens, and Rita Richards, immediate and full reinstatement to their formerjobs or, if thosejobs no longer exist, to substan- tially equivalent positions without prejudice to their seniori- ty or other rights or privileges, and make whole for any loss of pay they may have suffered by reason of the discrimina- tion 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 to the date of their reinstatement in the manner set forth in the section entitled "The Remedy." (c) Preserve and, upon request , make available to the Board and its agents , for examination and copying, all pay- roll records, social security payment records, timecards, per- sonnel records and reports, and all other records relevant 297 and necessary to a determination of the amounts of back- pay due under the terms of this recommended Order. (d) Post at its Owensboro, Kentucky, place of business, copies of the attached notice marked "Appendix." 13 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by the Respondent's representative, shall be posted by it immediately upon re- ceipt thereof, and 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 no- tices are not altered, defaced, or covered by any other mate- rial. (e) Notify the Regional Director for Region 25, in writ- ing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith. 13 In the event that 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "