Carrollton Standard Printing Co.

540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carrollton Standard Printing Co. and Bindery Work- ers Independent Union and Tri-State District Joint Council, International Printing Pressmen and Assistants' Union of North America, AFL-CIO Carrollton Standard Printing Co. and Bindery Work- ers Independent Union of Carrollton , Ohio, Peti- tioner. Cases 8-CA-7453, 8-CA-7614, and 8-RC-8919 March 11, 1974 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On October 15, 1973, Administrative Law Judge Bernard J. Seff issued the attached Decision in this proceeding. Thereafter, Respondent, the General Counsel, and the Charging Parties filed exceptions and supporting briefs. 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge as modified herein. Respondent is an Ohio corporation engaged in the business of printing mass mailings and advertising inserts for newspapers. The Tri-State District Joint Council, International Printing Pressmen and Assist- ants' Union of North America, AFL-CIO, hereinaf- ter called Pressmen, was certified by the Board as bargaining representative for Respondent's press- room employees in April 1972. In late 1972 several employees in Respondent's bindery department approached the Pressmen about organizing the bindery department but the Pressmen did not then express any interest in doing so. In January 19732 Respondent, which had been having serious financial difficulties for a number of months, hired a new general manager. As a result of his recommendations, a decision was made in early January to terminate approximately 70 percent of the employees in the bindery department and to reduce the work force by varying degrees in most other departments as well. Thereafter, on January 18, 29 employees in the bindery were discharged. Among The General Counsel, the Charging Parties, and Respondent have 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 those discharged were Joan Hamilton, Margaret Noble, and Dorothy Hendrix who, after their discharges, along with several other bindery employ- ees who were not terminated, were instrumental in forming the Bindery Workers Independent Union, hereinafter called Bindery Workers. Thereafter, Bindery Workers filed the petition in Case 8-RC-8919 for a representation election. The Pressmen intervened. The election was held on March 16; of the 33 voters who participated, none voted for Bindery Workers, 7 cast ballots for Pressmen, and 8 voted against both labor organiza- tions. There were 18 challenged ballots, of which 12 were resolved before this hearing and are not in issue here. The remaining challenged ballots are those of Hamilton, Noble, and Hendrix, whose discharges are alleged to be in violation of Section 8(a)(3) of the Act, and those of Dwayne Yeager, Shirley Ferguson, and Dolores Mutton, who are alleged to be supervi- sors. The Violations of Section 8(a)(1) The Administrative Law Judge found that Shirley Ferguson and Dolores Mutton were supervisors at all times material herein. We agree. We also agree with the Administrative Law Judge that Ferguson and Mutton, as well as Plant Superintendent Richard Byrd and Plant Manager Bruce Westfall, committed violations of Section 8(a)(1) by conduct which created the impression of surveillance of employees' union activities, amounted to coercive interrogation about such activities, and threatened employees with reprisals for exercising the rights guaranteed them in Section 7 of the Act. Thus, with respect to Ferguson's conduct, she unlawfully created the impression that Respondent was keeping its employees' protected concerted activities under observation when, in December 1972, she accused employee Rose Timlin of being the union instigator on the night shift, and told Timlin that she believed that employees Betty Huffman, Joan Hamilton, Margaret Noble, and Dorothy Hendrix were the instigators of the movement towards unionization on the day shift. Later, Fergu- son made a similar allegation about Margaret Noble to employee Helen Spahr. Ferguson also unlawfully interrogated Timlin and employee Lisa Ulman by asking them if they had been talking to the Pressmen about organizing the bindery employees. Further, she threatened employ- ees with loss of their jobs by telling Timlin that if her resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings 2 All dates herein are in 1973 unless otherwise expressly indicated V& 209 NLRB No. 78 CARROLLTON STANDARD PRINTING CO. 541 suspicions concerning the identity of the union instigators among the employees turned out to be true, those so identified would be terminated. In this same vein, in the fall of 1972 she told Huffman and Spahr that bindery employees might be terminated if they discussed a union in the plant, adding, accord- ing to Huffman, that if the bindery employees were represented by a union, the plant would shut down. Lastly, Ferguson advised employees the week prior to the election that they would have to work longer hours if "the Union gets in." A similar threat of employees being required to work more overtime if a union won the election was made to the bindery employees by Supervisor Dolores Mutton on the day before the election. With respect to the specific conduct of Westfall and Byrd that is found unlawful herein, Westfall, on the day before the election, told employee Ulman that if the "Union" lost the election the bindery employees would receive a 10- to 12-percent wage increase, and Byrd, on two occasions during the week before the election, interrogated employee Violet Pyles about the two Unions involved. The General Counsel and the Charging Parties have excepted, however, to the failure of the Administrative Law Judge to find an additional violation of Section 8(a)(1) based on the uncontrad- icted testimony of employee Jerilyn Budinsky that Richard Byrd asked her what she thought of the two Unions. The Administrative Law Judge discredited Budinsky because he found her to be argumentative and because he found that the fact that she had voluntarily left Respondent's employment "had emboldened her to make statements adverse to" Respondent. The record does not indicate that Budinsky was an unduly argumentative witness, nor was her uncontradicted testimony implausible. To the contrary, the Administrative Law Judge found that Byrd had committed a violation of Section 8(a)(1) identical to that testified to by Budinsky by his interrogation of Pyles.3 Nevertheless, we find it unnecessary to disturb the Administrative Law Judge's credibility finding with respect to Budinsky since a finding of a further violation of Section 8(a)(1) would not, in any event, affect the remedy herein. three individuals until after their terminations, and that, in any event, the three alleged discriminatees were discharged, together with 37 other employees including 26 other bindery employees, entirely for economic reasons, as part of a general reduction in the Respondent's work force. The Administrative Law Judge found that all of the discharges in the bindery and other departments were economically motivated, and that there was no evidence that Hamilton, Noble, and Hendrix had been singled out for discriminatory treatment because of their union activities. We agree with those findings. In doing so, however, we feel compelled to disassociate ourselves from the following statements of the Administrative Law Judge made in the last paragraph of his Decision before the section headed "Re: The Challenges and Objections to the Election": . .. there is a dearth of evidence in the record to show that the Respondent had knowledge of [the three alleged discriminatees'] unionization efforts at a time proximate to the layoff of January 18. The record is barren of direct evidence that the Company knew of the union activities of Hamilton, Noble and Hendrix. Nor is there any basis for inferring such information. At two previous points in his decision, the Adminis- trative Law Judge specifically found that the knowl- edge of its minor supervisors as to the union activities of these three employees must be imputed to Respondent. The record clearly supports these earlier findings. In this connection, we note that the Administrative Law Judge's finding that Shirley Ferguson specifically identified Hamilton, Noble, and Hendrix as union instigators in conversation with other employees was not excepted to by Respondent. Accordingly, we do not adopt the Administrative Law Judge's clearly conflicting and erroneous finding that Respondent was unaware of the union activities of the three alleged discrimina- tees prior to their discharge. Nonetheless, as the Administrative Law Judge found on the basis of other credibility findings that the discharges were motivated by economic considerations, we shall adopt his recommendation that the allegations in the complaint concerning the discharges be dismissed. The Alleged Violations of Section 8(a)(3) The consolidated complaint alleges that Joan Hamilton, Margaret Noble, and Dorothy Hendrix were discharged on January 18 because of their union activity. Respondent contends in its defense that it had no knowledge of any union activity by the 3 National Plywood, Inc, 172 NLRB 1285, 1286 at fn 3 4 Based on Ferguson's threat of longer hours, Mutton's threat concern- The Election of March 16 In view of Respondent's violations of Section 8(a)(1) occurring within the week before the elec- tion,4 we adopt the Administrative Law Judge's recommendation that the election be set aside and shall direct that a new election be conducted. mg overtime, Westfall's promise to employees of a wage increase, and Byrd's interrogations about the employees' union activities 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Administrative Law Judge recommended that the challenges to the ballots of Shirley Ferguson and Dolores Mutton be sustained because of their status as supervisors and we adopt this recommendation.5 The Administrative Law Judge failed to make a specific finding as to whether Dwayne Yeager, whose ballot also was challenged, was a supervisor. The record shows that Yeager periodically substitutes for Ferguson, whom we have found to be a supervisor. However, the record does not indicate how regularly or frequently Yeager acts in this capacity. We are therefore unable, on the state of this record, to determine his status. The Administrative Law Judge, through apparent inadvertence, also failed to make a recommendation regarding the challenged ballots of Hamilton, Noble, and Hendrix. Since we have adopted his conclusion that the discharges of these individuals were not in violation of Section 8(a)(3), we sustain the challenges to their ballots. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Carrollton Standard Printing Co., Carrollton, Ohio, its officers, agents, successors , and assigns, shall take the following action: 1. Cease and desist from: (a) Interrogating employees as to their union membership and activities, and those of their fellow employees. (b) Promising and intimating that wage increases or other economic benefits might be granted if employees vote against the Unions in order to discourage their membership in, or activity on behalf of, Tri-State District Joint Council, International Printing Pressmen and Assistants ' Union of North America, AFL-CIO; Bindery Workers Independent Union ; or any other labor organization. (c) Threatening employees with longer working hours, more overtime , discharges, or closing of the plant because of their activity on behalf of Tri-State District Joint Council, International Printing Press- men and Assistants ' Union of North America, AFL-CIO; Bindery Workers Independent Union; or any other labor organization. (d) Creating the impression that the employees' union or protected concerted activities were being kept under surveillance. (e) In any other manner interfering with , restrain- ing, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Post at its two plants in Canton, Ohio, copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unfair labor practices not specifically found herein. IT IS HEREBY FURTHER ORDERED that the election held on March 16. 1973, in Case 8-RC-8919 be, and it hereby is, set aside, and that said case is hereby remanded to the Regional Director for Region 8 to conduct a new election at such time as he deems that the circumstances will permit the free choice of a bargaining representative. [Direction of Second Election and Excelsior foot- note omitted from publication.] 5 The Administrative Law Judge also recommended that the challenge to the ballot of Rita Lewis be sustained We find this to be an inadvertent error inasmuch as there is no evidence in the record that her ballot was challenged We therefore do not adopt his recommendation in this respect 6 In the event that this 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees as to their union membership and activities, and those of their fellow employees. WE RILL NOT promise, intimate or otherwise indicate to our employees that economic benefits will be granted to them in order to discourage their membership in, or activity in behalf of, Tri- State District Joint Council, International Print- ing Pressmen and Assistants' Union of North America, AFL-CIO, or Bindery Workers Inde- pendent Union, or any other labor organization; provided, however, that nothing herein shall be construed as requiring us to rescind, abandon, or CARROLLTON STANDARD PRINTING CO. 543 vary any economic benefits or any term or condition of employment heretofor established. WE WILL NOT threaten our employees with longer working hours , more overtime, discharges, or closing of the plant because of their activity on behalf of Tri-State District Joint Council , Interna- tional Printing Pressmen and Assistants' Union of North America, AFL-CIO, or Bindery Workers Independent Union, or any other labor organiza- tion. WE WILL NOT engage in any acts which will create in the minds of our employees the impression that their union or protected concert- ed activities are being kept under surveillance. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act. allegedly threatened certain employees with loss of their jobs. Other supervisors allegedly promised its bindery employees benefits to discourage union or concerted activities. There are also additional allegations of the complaint charging Respondent with having made promis- es of benefit and having engaged in coercive interrogation of certain employees. Respondent denied the commission of the unfair labor practices alleged but admits allegations of the complaint sufficient to support the assertion of jurisdiction under current standards of the Board (inflow of over $50,000 in the past calendar year). The answer further admits that the Unions are labor organizations within the meaning of Section 2(5) of the Act. Upon the entire record in the case, including my observation of the demeanor of the witnesses, and the briefs submitted by the parties I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER CARROLLTON STANDARD PRINTING CO. (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, Suite 1695, Anthony J. Celebrezze Federal Building, 1240 E. 9th Street, Cleveland, Ohio 44199, Telephone 216-522-3715. DECISION STATEMENT OF THE CASE BERNARD J . SEFF, Administrative Law Judge : This case came on for hearing in Canton, Ohio, on July 31 through August 2, 1973.1 It involves the Carrollton Standard Printing Co. (hereinafter variously referred to as Respon- dent or the Company) and Bindery Workers Independent Union and Tri-State District Council, International Print- ing Pressmen and Assistants ' Union of North America, AFL-CIO (hereinafter referred to as the Bindery Workers and the Pressmen respectively). It involves a consolidated matter.2 The complaints allege that Respondent engaged in violation of Section 8(a)(l) of the National Labor Rela- tions Act by threats of reprisal committed by one Dolores Mutton who allegedly told an employee that the length of Respondent's workday would increase if the Pressmen became the employee's bargaining agent. Mutton also I All dates referred to took place in 1973 unless otherwise indicated 2 Cases 8-CA-7453.8-CA-7614, and 8-RC-8913 are the numbers of the individual cases. The "R" case deals with certain objections to an election. The Carrollton Standard Printing Co. is engaged in the printing of mass mailings and tabloid insertions for newspapers. The Company does repeat business on a weekly basis for major accounts such as Kroger, Sears Roebuck, and Montgomery Ward. Many of these mass mailings involve 250,000 to 1 million copies and require continuous press runs over several 8-hour shifts. The Company's operations are located in two plants. Plant 1, the Company's main plant, consists of a composition department, plate making, camera and stripping depart- ment, web press department, bindery, and mailing and stitching department. Plant 2, the small plant, contains smaller presses and offices for the newspaper which is owned by the Company. The Company's press employees are represented by the International Printing Pressmen and Assistants' Union. The Company and the Pressmen's Union concluded a contract covering the press department employees in November 1972. The Company's normal complement of employees includes a group of printing pressmen who are not directly involved in the instant case. The allegations of the complaint concern only the bindery employees. These employees, mostly girls, normally work three shifts. For the most part the alleged unfair labor practices allegedly took place during the third shift-from midnight to 8 a.m. There is also a second shift which works from 4 p.m. until midnight. The first shift works from 8 a.m. to 4 p.m. Frequent references were made during the course of the 4-day hearing to technical terms which relate to the operation of the bindery workers. One of the General Counsel's witnesses, employee Rose Timlin, explained the meaning of the nomenclature used in the plant as follows: Well, jogging papers-we take them off the presses and jog them on the table and stack them, and somebody skids them, which means stacking them on a board thing. They are addressed on what is called a wing mailer. The original charge in Case 8-CA-7614 was filed on April 5. An amended charge in Case 8-CA-7614 was filed on April 25. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While the presses are running there are ordinarily three employees working at these machines. The Company has three presses. Tin-din worked on the third shift before the terminations took place which event occurred on January 18. After the terminations different hours of work were established. Timlin worked from 4 p.m. to midnight plus some overtime. After January 18 there were only two shifts. The girls did not always work on the same presses. In answer to a question on cross-examination as to how she knew what press to work on Timhn replied, "Shirley Ferguson made a schedule as to what presses we were to go to, giving just the names of the girls and what press." The Company claims that for economic reasons it laid off and terminated approximately 40 employees on January 18 including 29 employees in its bindery depart- ment. The Company retained its 12 most able, capable, and cooperative bindery employees. The Company contends, among other things, that the decision made to terminate and layoff a number of employees was made at a time when the Company was not aware of any union activity in the bindery department. The General Counsel, in his brief, isolates the critical issue in all the cases as being whether or not it can be established that Shirley Ferguson, Dolores Mutton, and Rita Lewis are supervisors within the meaning of the Act. The General Counsel further summarizes the issues in this proceeding as follows: Whether Respondent discharged the employees named in the complaint issued in Case No. 8-CA-7453 because of their union activities, sympathies and desires in violation of Section 8(a)(3) of the Act? Whether Respondent violated 8(a)(1) of the Act in the various respects alleged in the original and amended complaints? Respondent, the General Counsel and the Pressmen's Union are in agreement as to this summary and all take the position that the issue as to whether or not the above- named employees were in fact supervisors within the meaning of the Act is a "gray area" concerning which much of the hearing involved this problem. The Factual Setting of the Case The Company's normal complement of employees consist of a group of punting pressmen who are not directly involved in the instant case. The allegations of the complaint concern only the bindery workers. These employees, mostly girls, normally work three shifts. For the most part the alleged unfair labor practices allegedly took place during the third shift-from midnight to 8 a.m. There is also a second shift the 4 p.m. to midnight shift and the first shift works from 8 a.m. to 4 p.m. Originally the Printing Pressmen's Union became the representative of the pressroom operators and, after a period of about 6 months of bargaining, Respondent reached agreement with the Union on the terms of the contract which was finally consummated between Respon- dent and the Pressmen. Initially certain employees in the bindery department attempted to enlist the aid of the Pressmen 's Union in helping them to organize the bindery. At first the Pressmen declined to become involved in organizing these employ- ees. Later, sometime around January 18, employee Timlin, aided in varying degrees by employees Joan Hamilton, Margaret Noble, Dorothy Hendrix, and Betty Huffman, attempted to organize the bindery workers into what came to be known as the Bindery Workers' Independent Union and secured the services of George J. Anetakis who became the attorney for the Independent Union. Very little progress was made under the aegis of this Independent Union. Consequently another approach was made to the Pressmen who, this time , agreed to attempt to organize the employees in its union and continued Anetakis as counsel to the Pressmen. Subsequently, on January 18, the Company laid off and terminated 40 employees including 29 employees in the bindery department. The permanent layoff of these employees was described by the Company as being due to economic necessity. Included in this number were Hamil- ton, Hendrix, and Noble who are named by the General Counsel as employees discharged because of the union activities in violation of Section 8(a)(3) of the Act. The complaint also sets forth a series of alleged independent violations of Section 8(a)(1) of the Act allegedly committed by Ferguson, Mutton, and Lewis all of whom, according to the General Counsel, were supervisors within the meaning of Section 2(11) of the Act and whose statements to various employees are therefore attributable to the Company. The statements Ferguson, Mutton, and Lewis made to a number of employees, according to the General Counsel, included threats of reprisals, promises of benefits, and words which created the impression that the employees were under surveillance by Respondent. On March 16 an election was conducted by the NLRB (Case 8-RC-8919), at which the Pressmen's Union intervened. Thirty-three ballots were cast of which the Bindery Workers' Independent Union got no votes, the Pressmen received 7 votes, 8 votes were for no union, and there were 18 challenged ballots. Since the challenged ballots were sufficient in number to affect the results of the election, the Regional office directed that an investigation take place concerning the challenged ballots . On May 21, the Acting Regional Director issued his report on objec- tions and challenges . In this report the Region recommend- ed to the Board that the challenges to 13 ballots be sustained, that the challenge to I ballot be overruled, and that a hearing be held to resolve the issues raised by the other challenges. These challenges concern the votes cast by Hamilton, Noble, Hendrix, and Dwayne Yeager. Thereafter, the subject matter of the challenges and objections were consolidated into a single hearing includ- ing Cases 8-RC-8919, 8-CA-7614, and 8-CA-7453, all of which were litigated before me. It should be noted that the objections parallel the 8(a)(1) allegations of the complaint and the disposition of all matters encompassed within the complaints and the "R" case will be determined infra in the instant decision. Respondent's supervisory hierarchy is as follows: Glen Brenneman, president ; Roger Hays, vice president and sales manager; Al Petrie, general manager ; Richard Byrd, CARROLLTON STANDARD PRINTING CO. plant superintendent ; Bruce Westfall, plant manager; William Scharf, personnel manager; Gary Brothers, assistant production manager; and Ruth Hardgrove, supervisor for the composition department. The head of the Company's supervisory pyramid is Hays who had assumed the responsibility of running the Company because of Mr. Brenneman's poor health. 11. THE COMPANY'S FINANCIAL CONDITION At the end of the year 1972 the Company was in precarious financial condition. For its fiscal year ending June 30, 1972, Respondent had suffered a loss of approximately $128,000. From the months beginning July 1, 1972, the Company continued to experience losses. For the 1-month period ending December 31, 1972, the Company experienced a loss of approximately $42,000. To substantiate its statements concerning Respondent 's finan- cial condition the Company submitted a number of exhibits which are included in the record. On January 15, 1973, various company officials, Glen Brenneman, Roger Hays, and Al Petrie, general manager, met with the Company's accountants, the firm of Robert Katz, to discuss the Company's financial condition. Mr. Katz, who has been the Company's accountant for over 14 years and who has complete access of the Company's financial records, suggested that unless drastic changes were made the Company would be bankrupt in 3 months. Mr. Katz also provided the Company with a letter to this effect which is included in the record as Respondent's Exhibit 1. It was decided at this meeting that it would be necessary to immediately reduce the Company's entire work force in order to restore Respondent to a sound financial position. Hays made this decision after consulting with Petrie, the Company's general manager, who recommended that the Company's work force and operations would have to be reduced in order to restore Respondent to financial health. Petrie was employed by the Company as general manager on January 2, 1973. Prior to that time Petrie had been executive vice president and general manager of the Art Gravure Corporation of Ohio; and before that, market research and advertising manager for the Cleveland Plain Dealer. Mr. Hays considered Petrie to be "a knowledgea- ble individual concerning the financial structure and production control of this type of punting business." Prior to his being officially employed by the Company on January 2, Petrie had visited the Company on about 14 occasions and he reviewed the Company's bindery opera- tions on each of these occasions. He had concluded that the bindery operation was "overmanned." Petrie recom- mended to Hays that the number of employees in the bindery department be cut at least in half. Respondent's brief continues as follows: Hays and Westfall determined that the number of employees in the bindery would be reduced from approximately 40 to 12. Twelve bindery employees would enable the company to run two presses on a two shift basis, with three bindery employees assigned to each press. Westfall, Scharf, Byrd and Brothers were asked to select the twelve bindery employees who they 545 thought should be retained. They were asked to select the individuals who they considered to be the most willing, able, cooperative and physically capable employees in the bindery. Westfall, Scharf, Byrd and Brothers each selected and listed 12 individuals who they felt were best qualified to do the required jobs. Neither Hamilton, Hendrix, nor Margaret Noble were named on any list as an employee to be retained. The Company contends that in deciding which bindery workers were to be retained there was no discussion of who, among the retained employees, were adherents of or sympathetic to labor organizations. The decision as to who would be kept on as employees was not in any way influenced by consideration of union activities. It is further contended by the Company that at that time it did not have any knowledge of organizational activities among the bindery department workers. As the result of this selective process the employees whom Respondent chose to retain in its employ did not include Hamilton, Hendrix, or Noble. They were notified that their employment would be terminated as of January 18. The Company additionally contends that the employ- ees were terminated rather than laid off because at the time this action was taken there was no expectation that Respondent would need additional bindery employees in the foreseeable future. The Company did not want to discourage those terminated individuals from seeking employment elsewhere. As a further manifestation of Respondent's determina- tion to reduce its operating costs Hays decided to make other changes to reduce costs and thus improve the Company's financial condition. Layoffs and terminations took place in other departments. For example three out of four employees in the plate making department were terminated. Furthermore all salaried employees had their salaries cut by 10 percent including the salary of Hays. Work assignments were changed. Management and Super- visory employees including Hays, Westfall, Petrie, Hard- grove, Gary Phillips, and Richard Byrd performed, in addition to their regular duties, bindery work usually in the evening interval between the regular shifts. As a consequence of the stringent economies instituted by the Respondent it found its financial condition substantially improved and shortly thereafter Respondent was able to return to three shifts and began hiring additional employees around mid-April 1973. The Company Contends it was not Aware of any Union Activity in the Bindery Department According to the brief submitted by Respondent, ... the Pressmen's Union was elected to represent the Company's pressroom employees in April 1972 and the Pressmen's Union concluded negotiations with the Company and signed a contract in November 1972. During the time when negotiations were being conduct- ed between the Company and the Pressmen's Union, in October and November of 1972, there was evidently some general discussion concerning labor unions among some employees in the bindery, and there was some discussion of unions between the pressroom 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD workers and bindery employees. Some employees even appeared to have sought authorization cards from the Pressmen's Union but were never provided with such cards. No authorization cards for any union were distributed prior to January 18, 1973. The bindery employees did not discuss their inten- tion to organize with management and management claims it was unaware of any union or organizational activity. Joan Hamilton, who claims to be the founder of the Bindery Workers Independent Union of Carrollton, the Petitioner in 8-RC-8919, admits that she did not organize the Bindery Workers Union until after January 18. Quite naturally, no other employee had heard of the Bindery Workers Union prior to January 18 and one employee, Helen Spahr, says that she never heard of this union at any time. The Company claims it first became aware of organizational or concerted activities among its bindery employees when it received a letter from Frank Cope, a local attorney, dated January 19, 1973. The Company had no knowledge of the Bindery Workers Union, nor of a demand for recognition from that Union, until it received a letter from George Anetakis. attorney for the Bindery Workers Union, dated January 24, 1973. The petition for election in 8-RC-8919 was filed by the Bindery Workers Union on January 26, 1973. The proponents of union representation in the bindery were variously described to include, at one time or another, Betty Huffman, Barbara Gray, Helen Spahr, Joan Hamilton, Dorothy Hendrix, Margaret Noble, Rose Timlm, and Jerrilyn Budinsky. Noble and Hendrix state that they engaged in no activity other than to ask the Pressmen's Union for authorization cards. Of these individuals, Gray, Hamilton, Noble, Huffman, and Hendrix were terminated as of January 18, 1973. Spahr is still employed in the Company's bindery department. Timlin voluntarily quit as of March 23, 1973, and Budinsky voluntarily quit as of May 6, 1973. The Supervisory Issue The complaint alleges that certain independent 8(a)(1) violations of the Act were committed by Shirley Ferguson, Dolores Mutton, and Rita Lewis, all of whom were described by the General Counsel as minor supervisors. Respondent takes the position that during the critical periods involved in this case the three employees named supra were leadwomen and not supervisors. The threshold question as to whether the individuals named above were supervisors whose statements to various employees are attributable to the Respondent is crucial to the resolution of the problems in the instant case. The Act in Section 2(11) sets forth with specificity certain indicia which must be applied and evaluated to determine the answer to this cardinal question. First off it should be stated that Section 2(11) is written in the alternative. Thus, the possession and exercise of any one of the powers enunciated in the Act is sufficient to constitute such an employee a supervisor . Furthermore, this supervi- sory issue has been extensively adjudicated before both the Board and the courts. The answer to the question posed in this matter depends on the facts adduced on the record. Unless the citation of cases to this admitted "gray area" is analogous on the facts to the case at bar such citations which can be distinguished on the facts are not apposite. It should also be emphasized that many cases have been decided on both sides of this issue. Therefore the authorities so generously cited in both the General Counsel's and Respondent's briefs must be weighed carefully in the light of the facts proven on the record. The General Counsel's brief contains a succinct state- ment on the overall issues as follows: Testimony of General Counsel's witnesses on the issue is generally uniform as to the description of the duties of the alleged supervisors. They prepare daily production work schedules and assign employees to various jobs in Respondent's bindery based on their independent knowledge of an individual's capability. They compile daily production logs and instruct and train new and inexperienced employees in various departmental operations. They independently have relieved and replaced employees because of illness or other personal reasons and have made instantaneous decisions allowing employees to leave early prior to the normal end of a shift. They have excused shifts early due to lack of work. They are responsible for maintaining discipline in their work area and as evidence of that responsibility they have compliment- ed, criticized, and reprimanded employees. They can suspend operation of machinery which has failed to perform properly. All are paid substantially more than regular bindery workers. It is unrefuted that Richard Byrd, overall bindery supervisor, represented to employees that Ferguson was their "boss" at a meeting which took place a week before the March 16 election and employees so regarded her. Employees reporting to their shifts were informed by Personnel Manager Scharf that Ferguson was a supervisor. Dwayne Yeager, whom the Respondent designates as a leadman, admitted that he regards Ferguson as his supervisor. Moreover, if Ferguson were found not to be a supervisor it would mean her shift would be without any supervision for much of the working time . Ferguson maintained tight discipline which was independent of the instructions of Personnel Manager Scharf. Employees called Ferguson when they couldn't come to work and one called her when she quit. In October 1972, Ferguson informed an employee she had the power to hire and fire and insinuated she could get them replaced if necessary. Ferguson's own testimony on her capacity was contradic- tory, evasive, and less than credible. She first claimed that she was always just a leadwoman. She admitted she independently scheduled employees, relieved and rotated them, completed production logs, disciplined employees, and counseled employees with their problems . She claimed in direct examination there was no change in her status and responsibilities before or after the January 18 layoff. CARROLLTON STANDARD PRINTING CO. However, after being confronted by information contained in an affidavit she had given Board agents she admitted she supervised her shift. She also admitted that before January 18, she effectively recommended discharge of employees, evaluated employees, recommended raises, disciplined employees even to the point of sending them home, handled and adjusted grievances, and had to "babysit" employees. She denied the assertions that she had never possessed certain indicia of supervisory authority-asser- tions contained in an affidavit presented by Respondent to the Region which she unrebuttedly claimed never to have read and which Personnel Manager Scharf presented her to sign in blank . Ferguson testified she is responsible for the bindery employees. There was no change in Ferguson's status after January 18, 1973 and employees who worked under her direction before or after January 18, testified they noticed no change-they all felt she was and is a supervisor. On the other hand Respondent claimed at the hearing and in its brief that Dolores Mutton , Shirley Ferguson, and Dwayne Yeager were not supervisors at any time during the critical period involved in this case and the Company does not devote any special attention to the status of Rita Lewis. Respondent presented testimony and argument at the hearing to the following effect : Dick Byrd, also represented to employees at a Company meeting just prior to the election on March 16 that Dolores Mutton was a supervisor and the person to contact first for any orders. When employee Lisa Ulman was hired Byrd told her Mutton was supervisor of the day shift Mutton offered to change an employee shift. Mutton, while acting as Respondent's observer on the day of the March 16 election, gave employees permission, without consulting anyone, to leave early. Daily absentee forms were always handed to Mutton . Mutton, after the election, took an employee off a press and in effect threatened her with discharge. Apparently Mutton mysteriously lost her super- visory capacity only when National Labor Relations Board investigators appeared at Respondent's facilities. Personnel Manager Scharf admitted that at one time Mutton was a supervisor but asserted employees were notified by bulletin of her reduction in status in June 1972 . However, testimony of the employees that she continued to be characterized by her supervisors as a supervisor remains unrebutted. Mutton admitted that employees continued to regard her as a supervisor and explained the fact by claiming that she was a "bossy person." Furthermore, Mutton admitted that she really doesn 't know who her supervisor presently is . In order, no doubt, to create the appearance that Mutton's scheduling of employees is routine and can be done by others, Dwayne Yeager asked employee Lisa Ulman to make out a work schedule on August 3, the day after she first testified at the hearing in this case. That schedule was presented as Respondent's Exhibit 13. Through the witness, Plant Manager Westfall, he represented the schedule as having been made out independently by Ulman-but Ulman patterned it accord- ing to the information left by the vacationing Mutton. Rita Lewis admitted she attended supervisory meetings in November, 1972. She evaluated employees after Novem- 547 ber 1972, and at that time substituted for her full-time supervisor, Joy McCartney, whom she shortly thereafter replaced. Where an employee completely takes over the supervisory duties of another, as is the case here, he or she is regarded as a supervisor under the Act. Birmingham Fabricating Co., 140 NLRB 640; Illinois Power Co., 155 NLRB 1097 . Lewis testified at the time she substituted for McCartney she was an assistant supervisor . She contended her duties were the same now as in November 1972 and admits she regards herself and the employees regard her as a supervisor. She is the only individual on her shift who does responsibly supervise bindery employees. Scharf, personnel manager, testified that Mutton, Yeag- er, Lewis, and Ferguson were all lead persons with basically the same authority . He conceded they functioned in a "gray area" of supervisory status, and possessed "very definite management responsibilities." He however main- tained Byrd was the bindery supervisor and worked 18 hours a day and Westfall, plant manager, maintained Byrd was on call 24 hours a day. Testimony of the General Counsel's witnesses clearly indicates that Byrd's presence on all shifts was sporadic and his exercise of supervisory authority over bindery employees was insignificant. The General Counsel then quotes Section 2(11) of the Act and its definition of supervisor as being: any individual having authority , in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively recommend such action, if in connection with the foregoing the exercise of such authority is not merely routine or clerical in nature, but requires the use of independent judgment. The existence of any one of the indicia listed in Section 2(11) of the Act is sufficient to support a finding that the one possessing it is a supervisor. Newspaper Guild Erie Newspaper Guild, Local 187, 196 NLRB 1121; Ohio Power Co. v. N.L.R.B., 76 F.2d 385 (C.A. 6), cert. denied 338 U.S. 899. Leadmen who grant time off (United States Gypsum Company, 120 NLRB 906) assign employees to differ- ent operations based upon observation and knowledge of their individual capabilities (Birmingham Fabricating Co., 140 NLRB 640), discipline employees (Little Rock Hardboard Co., 140 NLRB 164) and/or adjust griev- ances (Lee-Rowan Mfg. Co., 129 NLRB 980) have been found to be supervisors. The individuals at issue in this case clearly possess and have exercised many of these indicia of supervisory capacity. Moreover, they have exercised independent judgment in directing other employees and have trained employees . It can be concluded that these individuals "responsibly direct" other employees. Moreover, as in this case, the fact that individuals possess ostensible, apparent supervisory authority because their supervisors represented them to other employees as being supervisors and those employees regard those individuals as supervisors, leads to the conclusion that they are supervisors. Bama Co., 145 NLRB 1141; Elliott-Williams Co., 143 NLRB 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 811; General Mercantile & Hardware Co, 191 NLRB 20. s s s • The General Counsel contends that Respondent adopted a policy of characterizing Ferguson, Mutton and Lewis as nonsupervisory for its dealings with the Board-while allowing those individuals to retain apparent supervisory status over its employees. These individuals are and should be found to be supervisors .3 Respondent takes the position that Dolores Mutton has not been employed as a supervisor since June 5, 1972, and was not a supervisor during the period from January 18, 1973, through March 16, 1973, the date of the election. Dolores Mutton has been employed in the Company's bindery department for 10,years and is the most senior and most experienced employee in the bindery department. She has always worked on the day or first shift. For a period of approximately 3 or 4 years prior to June 5, 1972, Mutton was designated as a supervisor in the bindery department. At her own request, for reasons of health, Mutton was relieved of her responsibilities as a supervisor as of June 5, 1972 (Resp. Exh. 11), and she has not been reappointed to a supervisory position since that time. As of June 5, 1972, David Yeager replaced Mutton as supervisor, and Yeager held that position until January 18, 1973, at which time Richard Byrd took over all supervisory responsibilities in the bindery. Respondent contends that during the period January 18, 1973, until the election on March 16, Mrs. Mutton was not employed as a supervisor and she worked full time as a bindery worker spending 99 percent of her time doing normal production work. Mutton' s name was included on the assignment list along with the names of the other bindery workers on her shift and she performed the same tasks as the other bindery employees. In addition to regular production work, Dolores Mutton did make up the daily assignment list4 and made entries in the production log.5 Also, in addition to doing regular production work like other senior and experienced employees, Mutton helped train new employees. New employees learn the job through on-the-job training. Respondent further contends that since June 5, 1972, including the period January 18, 1973, through March 16, 1973, Mutton has not had authority to hire other employees, fire or otherwise discipline other employees, 3 Respondent maintained that Dwayne Yeager occupied the same position with similar responsibilities as the supervisors discussed herein and testimony of General Counsel's witnesses seems to confirm this fact Yeager maintained he had "independence of action" and reported only to Westfall It is not crucial to its case, however, for General Counsel to take a position on Yeager's true capacity 4 An assignment list is posted daily for each shift in the bindery, according to which each employee is assigned to a press for that day Upon reporting to work , an employee checks the assignment list and then goes to the press to which he is assigned As for company policy, bindery employees are usually rotated between presses on a daily basis, and a mixture of experienced employees work at each press The most senior and experienced employees prepare the work assignment lists Resp Exh 13 is an example of a typical assignment list such as is posted every day S The production log is a brief record which indicates which jobs have been run on each shift and whether or not sample copies have been pulled The most senior and experienced employees make the entries in the log. promote other employees, settle grievances, or tell other employees to leave work early. She has not had authority to schedule overtime or call employees to work early, nor has she been consulted in regard to any management decisions. Mutton was not consulted with regard to the decision as to which bindery employees would be terrrunat- ed on January 18, 1973. Since June 5, 1972, Mutton has not attended any management meetings nor has she made evaluations of other employees. As the most senior and experienced bindery employee, Mutton is paid an hourly rate of $3.17 (regular employees earn on the average about $2 per hour), but does not receive different fringe benefits than the other bindery employees. Mutton punches a timeclock, is paid overtime rates for work worked in excess of 40 hours in a week, and uses the rear parking lot (supervisory employees use the front parking lot) .6 Shirley Ferguson was not a supervisor during the period January 18, 1973, through March 16, 1973, the date of the election. Ferguson has been employed in the Company's bindery department for approximately 6-1/2 years. She is presently a lead employee on the midnight shift, and was somewhat a lead employee on the midnight shift during the period January 18, 1973, through the date of the election, March 16, 1973, even though, as of January 22, 1973, she had been relieved of these responsibilities. Ferguson is an experienced bindery employee who spends approximately 99 percent of her time doing normal production work. Like other bindery employees she works on the presses and the bindery machinery, including the stitcher, the Cheshira, and the cutter. In addition to normal production work during the period preceding the election on March 16, Shirley Ferguson made up the daily assignment sheet for the midnight shift, and posted entries in the production log. As a senior and experienced employee Ferguson would also help train new employees.7 Since January 22, 1973, Shirley Ferguson has not had authority to hire other employees, fire other employees, promote or raise the pay of other employees, schedule overtime, or evaluate other employees.8 Ferguson has not attended any management meetings for at least a year and she was not consulted in regard to which bindery employees were terminated on January 18, 1973. As a senior and experienced employee, Shirley Ferguson is paid an hourly rate of $2.75, but receives the same fringe benefits as the other bindery employees. Ferguson punches Resp. Exh 14 is an example of typical entries in the production log 6 Prior to June 5, 1972, Dolores Mutton had a number of responsibilities as a supervisor She filled out evaluation reports on other bindery employees, disciplined other employees, observed the performance of other employees, recommended hiring new employees, and attended management meetings. Mutton has performed none of these functions since June 1972. r Shirley Ferguson followed the established company policy of rotating employees between the presses so that the same employees would not be stuck at the more difficult jobs, and of keeping a mixture of experienced and inexperienced employees at each press She could not deviate from this policy 8 Though it could hardly be called discipline, Ferguson has admonished other bindery employees for "making too much noise or acting up" She never told an employee to punch out early and go home. During the period poor to the election, disciplinary problems were the responsibility of Richard Byrd and Bruce Westfall Ferguson has also on occasions sent sick employees home CARROLLTON STANDARD PRINTING CO. the timeclock and is paid overtime for hours worked in excess of 40 in a week. Respondent devotes about a page in his brief to discuss Dwayne Yeager and points out that Yeager has been employed in the Company's bindery department for a little over 2 years. His work in this department concerned itself with the duties of a machine operator. At the time of the hearing Yeager was employed on the day shift but during the period January 18, 1973, through approximately April 16, 1973, he worked on the midnight shift. During the period January 18, 1973, through mid-April 1973 Yeager's principal duties were bundling, tying, and stacking skids in the bindery department. Since January 18, 1973, Yeager has not had authority to hire other employees, fire or otherwise discipline other employees, promote other employees, or otherwise act on behalf of management. Since January 18, 1973, he has not excused other employees early. Since January 18, Yeager has not attended any management meetings, and he was not consulted concerning the decision as to which bindery employees were to be terminated on January 18.9 The Company continued with the statement that while working on the night shift during the period between January 18 and April 16, in the absence of Shirley Ferguson, Yeager did on perhaps one or two occasions post an assignment sheet and make entries in the production log. Yeager, as a skilled machine operator, is paid an hourly rate of $3.03. He also punches a timeclock, receives the same fringe benefits as other bindery employees, is paid overtime for hours worked in excess of 40 hours in a week, and normally uses the rear parking lot, except he was allowed to use the front lot while working on the night shift. Yeager was paid an hourly rate of $2.40 at the time of the election. I have taken the trouble to quote in extenso from the briefs of both the General Counsel and Respondent because the information contained therein bears directly on the crucial issue of the supervisory status of the employees in question. This material also brings into sharp focus the conflicting positions of the General Counsel and Respondent and points out their differing contentions on this vital issue. So far as the testimony in the record of the General Counsel's witnesses on the issue of supervisory status goes what one employee, Rose Timlin, testified to on this subject, with minor variations, is typical of the testimony of the other General Counsel's witnesses. The following is an excerpt from the testimony of Timlin when she was testifying on direct examination: Q. In your experience, if an employee who had run a machine-I imagine you did have occasion to observe employees running machines would they go to Shirley Ferguson if a machine broke down? A. Well, something like the tier or cutter they would, yes. Q. Were you ever told you weren't doing a good job by anybody? A. No. 9 Although Dwayne Yeager may have had some supervisory responsibili- ty for the second shift prior to January 18. 1973, he had no such 549 Q. Were you ever complimented in any way about your work? A. Once in a while. Q. By whom A. Shirley Ferguson complimented me once. Q. Before the layoff, how much time would you estimate Shirley spent, to your knowledge, in supervis- ing the department that you worked in? Out of 100 percent of the time how much would you say she spent A. Well, a lot of time she worked on the press- Q. This is before the layoff? A. Yes. Q. As far as you knew, could she affectively recommend hiring and firing? A. She told me at one time she recommended. Q. Was it in December or November or when? Was it in the winter of 1972? A. Well, just about a couple of weeks before the voting for the Union, we were advised that Shirley was our supervisor. Q. Who advised you this? A. Dick Byrd. Q. Dick Byrd advised you that Shirley was your supervisor? A. Yes. Q. You say this was a couple of weeks before the election on March 16? A. Q. A. Q. A. Q. A. Q. Yes. Do you recall where this took place? Right in the Bindery. Were you there? Yes. Were there other people there? Yes, sir. The girls in my shift were there. Do you recall exactly what he said or approxi- mately what he said again? A. He was wondering who was our actual boss, and he told us we was to do what Shirley told us to do and that when she wasn't there Dwayne Yeager was there. Q. He told you if you weren't to follow Shirley's orders, you were to follow Dwayne's orders? A. Yes. Q. Getting to Dwayne Yeager-by the way, al- though it is in the pleadings, I believe, what was Mr. Byrd's title, do you recall? What did you consider him as, if you can't recall his title? A. He was over the Bindery girls and plus he had to do with the mailing and the Mailing Department. Q. How often was Shirley alone on her shift, most of the time? A. Yes. Q. Was Dwayne Yeager ever on her shift. A. Yes. Q. After the layoff of January 18? A. Yes. Q. But before the election? A. Yes. responsibility subsequent to that time. The Company offered proof of the above conclusion in its Exh. 12 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Did you ever look to Dwayne for any orders? A. Yes. Q. You did? Did you ever look to Dwayne to excuse you? A. Not unless Shirley was not there. Q. In other words, Dwayne substituted for Shirley when Shirley wasn't there? A. Yes. Q. To your knowledge, did Dwayne have similar powers to Shirley when Shirley wasn't there? In other words, did he have the same authority when Shirley wasn't there that Shirley had when she was there? A. To tell us what to do, yes. As far as hiring and firing, I don't know. Q. Did he, in effect, direct your work? Did he tell you what to do on those occasions when he substitut- ed? A. Yes. Q. Did he ever when he was in charge excuse the shift early? A. Not unless there was nothing to do. Q. But he did when there was nothing to do? A. Yes, unless we just cleaned up or something. Q. Did it appear from your observing his demeanor at work that he had any privies [priviledges] that you didn't have as an employee? A. Other than to tell us what to do, no. Q. A. Q. A. Q. A. Q. front? Where did you park your car? In-back. Where did he park his car? In front. Who parked their cars in front? The bosses, like the Vice-President Roger Hays. Would the ordinary employees park their car in A. No. Q. With respect to overtime whom did you look to to tell you to work or not to work overtime? A. Shirley Ferguson. Q. Did Dwayne ever work overtime on his own? A. Yes. Q• On his own without Shirley being present? A. Well, he worked over if he was asked to work over. Q. Did he ever, to your knowledge, make his own decision to work over? A. Not that I know of. Q. How about Shirley? Where does she park her car? A. In back. Q. Were any employees ever transferred from any other department into the Bindery Department after the layoff? A. They occasionally worked in the back when we needed the girls. Q. On the last day that you worked there, was Shirley Ferguson your supervisor? A. Yes. Q. Did you observe Shirley making any independ- ent decision on how work was to be done in the department; in other words, on her own, making a decision on how work was to be done? A. She always got the things off the Bargain Hunter and decided-the paper how you do them, what goes into what. Q. Did she ever decide what jobs were to be completed? A. Well, if the press was down or something, she always had us address. JUDGE SEFF : F don't understand that answer. She had the girls' address-you mean, so she could call them and tell them not to come in or give them instructions? I don't understand the answer. A. I mean, like, if we was working on something and some papers had to be addressed and had to be out, she would have us address them. JUDGE SEFF: She would establish priority on what you were to do, which things had to be done first? A. Yes. JUDGE SEFF: In all the time that you worked, were you always on the night shift from 12 midnight to 8 a.m.? A. Unless business was slow, and then we would go on afternoons. Q. Was the largest part of your working life during the night shift? A. Yes. Q. And during that entire time, were there ever any other supervisors in the plant besides Ferguson and Yeager? A. Not very often. Q. I don't mean to characterize either of them by my question, but I want to know if Hays, Westfall, Scharf, or Byrd were around during the night shift on a regular basis? A. Very seldom. Q. For the most part it was Ferguson you looked to? A. Yes. Q. And, if it was not Ferguson, it was Yeager? A. Yes. Q. And what were the hours of the third shift? A. Midnight to 8 in the morning. Q. After the terminations of January 18th, were there different hours? A. Q. A. Q. A. Q. that correct? A. Yes, I think so. Q. Did you always work on the same presses? A. No, I worked different presses. Q. How did you know what press to work on? A. Shirley Ferguson made a schedule as to what presses we were to go to, giving just the names of the girls on what press. Yes. And what were those hours? I worked from 4 to 12 plus some overtime. After January 18 were there only two shifts? Yes. But before January 18 there were three shifts; is CARROLLTON STANDARD PRINTING CO. Q. Lets take the time after January 16 after the termination of the number of employees, how many Bindery Workers were there on your shift? A. Six girls. Q. And Shirley Ferguson assigned the six girls what press they were suppose to work? A. Yes. Q. A. Q. No. 2 girls? A. Yes. Q. sheet? By putting a hst on the bulletin board? Yes. In other words they had press No. 1 and press and press No. 3 and at each press they had three Was there anything else on that assignment 551 Q. Would you say on a normal day you would work on the press. A. Yes. Q. If it wasn't running what would you do? A. Address them or do routes. Q. When the press wasn't running, would you ever just go over and do the addressing? A. Yes Shirley Ferguson would tell me. Q. But you never went on your own? A. No, sir, unless I had addressed them before. Q. Did anybody else tell you? A. No. Q. Did Shirley jog papers in the skid? A. Yes. Q. Did she do the same things you did? A. Yes. Q. Did she do the same things other girls did? A. Yes. Q. Did she do the same things? A. If she was needed on the press, she helped on the press if not, she made a schedule for the next day or filled out a book. Q. How long would it take her to fill out a book? A. It just depended on how much we done on that night. Q. And how long, would you say it took her? A. About 10 or 15 minutes. Q. Did you ever see her making the assignment or writing up this little assignment list? A. Yes. Q. How much time did it take her? A. A few minutes. Q. Five or 10 minutes? A. Yes. It appears that no useful purpose would be served by further quotations from the testimony in the record of the other witnesses who testified for the General Counsel with respect to the issue of supervisory status. Suffice it to say that employees Barbara Gray, Betty Huffman, Jerilyn Budinsky and Violet Pyles also testified on this subject matter and while the testimony of these witnesses varies somewhat, in the main, it is cumulative and parallel to the testimony of Timlin. Timlin impressed me as a forthright and honest witness, did not contradict herself on any important matters while she was cross-examined and in general impressed me as a credible witness. I credit her testimony and find that Ferguson did perform clearly supervisory duties albeit of a minor nature before the layoff of January 18 and after this date. It seems clear that she operated in the role of a supervisor especially in discharging her duties of assigning work to the girls to whom she was responsible. She also rotated workers from one job to another as the situation may have required. Her duties were such that she in effect was the only supervisor during the night shift. Her work on a day to day basis falls clearly within the language of Section 2(11) and I so find. Parenthetically I also find that the challenge to her vote in the NLRB election on the ground that she is a supervisor is sustained. More will be said about the A. Not usually. Q. Was one press easier to work on? A. They were all similar. Q. Is one press faster; in other words, did the material of the finished product come off faster than the others? A. Yes the date liner. Q. And that press is considered harder to work on? A. Yes. Q. And is it true that girls were rotated between the presses? A. Yes. Q. Is it also true that the Company tried to maintain a mixture of experienced people on the presses? A. They mixed them around. Q. You say they rotated between the presses. If you were working on a fast press the day before, would you have a good idea you would be working on a slow press the next day? A. Sometimes 1 worked on the same press two days. Q. When you came into work you punched the timeclock? A. Yes. Q. What then? A. I put my lunch on the table, hung up my coat, and went to the press. Q. Would you look at the assignment sheet? A. Q. A. Q. Yes. And then go to the press? Yes. Would Shirley come to you and give you instructions? A. Not unless she had someone take my place. Q. But when you came in to work, all you did was look at the assignment sheet and go to the press? A. Yes. Q. Did you know what to do then? A. Yes. Q. Did everyone know? A. Yes. Q. Would you say the work was of a routine nature? Were you doing the same thing day after day? A. Yes. 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD objections to the election and the challenges in that part of this decision infra which will be set forth in a separate section under an appropriate title. On reaching the decision on this aspect of the case I must reject Respondent's argument that all the employees who they chose to call "leadwomen" performed solely routine clerical duties with respect to making entries in the log and preparing a schedule of assignments and otherwise performed the same work as the other employees which, in the opinion of the Employer, made of them merely leadwomen without supervisory authority or responsibilities. If further amplification of the supervisory status of Ferguson is needed it derives from the fact that Ferguson was the person in charge of the night shift which covers the hours from 12 midnight to 8 a.m. It is not refuted that Ferguson was the sole person in the plant during these hours. It is inevitable that on a night-to-night basis many problems must necessarily have arisen which required answers during this time. It does not seem reasonable to me that Ferguson could have operated in this capacity without exercising supervisory authority. She not only assigned the employees to their various jobs, she rotated them; she permitted employees who requested time off because of personal business or because they were ill; she exercised this authority without reference to securing authorization from those supervisors higher up on the supervisory ladder. While the Company contends that the work done in the bindery department was of a routine nature and the employees did not need supervision I find it impossible to credit the Company's contention that the employees needed no supervision because their fobs were simple. The Company further explained that Dick Byrd worked approximately 18 hours a day and was available on call at any time of the day or night. When Ferguson exercised the authority to permit employees to leave or in instances where the work ran out and she permitted the entire shift to leave the plant such decisions were made by her on the spot. There is ample testimony in the record to support the conclusion that the employees on the night shift looked up to Ferguson as their boss and she indeed acted as a boss. With respect to Dolores Mutton it should be remarked that, inter aka, Dick Byrd represented to employees at a meeting shortly, before the election on March 16 that the person the employees should speak to in the event they had any problems was Mutton. She was described by Byrd to the assembled employees as a supervisor and the person to be contacted first for any orders. The General Counsel points out in his brief "when employee Lisa Ulman was hired Byrd told her Mutton was the supervisor of the day shift." This conclusion is borne out by the following colloquy which appears in the record and it derives from the testimony of Budinsky. At one point during recross- examination by Respondent's counsel Budinsky was asked what she understood that it meant if someone was called a supervisor. In other words what distinguishes a supervisor from a regular bindery worker, her answer was: It is somebody that directs the working force; in other words, somebody who tells me specifically what jobs to go to, what to do, and also, if I have personal problems or if there are times I need off or I don't know what to do, I have to have somebody to look up to to go to. Q. Did anybody ever tell you that Dolores Mutton had the authority to fire anybody? A. No sir not that I can recall other than when she told me that I can get fired for this and that. Q. What was that? A. Because of the fact I mentioned the Union one time and because of my conversation with one particular gentleman, and also it comes back to my mind that at one time she did call me- I believe this was right after I started on day shift and I was having some difficulties at home with my children and my husband trying to get me to switch shifts and my husband being disabled, and I never said anything to anybody because one particular girl, Sandy McNutt, told Dolores that I was having problems. Now, this was after the layoff, and it seems to me it was the beginning of February. She called me over off the press, and she said "If you are having trouble at home, we can change your shift for you and you don't have to worry about it." s s r s : Q. You say on the occasions when you asked for time off, you went to Dick Byrd? A. Yes, other than this which just came back to me here, but she came to me. Q. Because someone else mentioned the problem is that your interpretation? A. Yes. Q. You say that the other girls went to Dolores? A. Yes. Q. Who went to Dolores? A. Sandy McNutt had gone to Dolores. Q. Did you hear the conversation? A. Yes. I can remember one time she had to go home early. Her husband had to work over and she didn't have a babysitter. Q. Did you observe this? A. I was standing right there. I believe it was the 5 unit. Q. Was Dolores on the press then? A. Yes I believe she was. Q. And was Sandy McNutt also working the press? A. Yes. Q. And Sandy McNutt asked Dolores to go home? A. Yes first of all, Sandy was called to the telephone and came out and Dolores let her go home. • t • i i Q. (By Mr. Fineberg-Re-direct examination) Would you describe the jobs of Mutton and Ferguson as being similar or the same? A. I worked under Ferguson for 3 days, but, yes, I felt she had the same jobs. Q. How about Yeager? A. Yes, but I think there was a little distinction after the layoff I would classify it myself as under Shirley Ferguson and at times when he was by himself, CARROLLTON STANDARD PRINTING CO. like if he worked over in another shift-like on one particular Saturday, March 10, before the election, he worked the cheshire machine where he would get direct orders. Q. Do you recall who was the observer at the election for the Pressmen 's Union? A. Yes. Q. A. Q. A. Q. A. Q. A. And who was that? It was Bob Boylan. (By Mr. Fineberg) You said Bob Boylan? Yes. Was any other observers sitting at the table? Yes. Who was that? Dolores Mutton. She was the Company's (observer). Q. (By ME. Fineberg) Did you ever happen to overhear anyone ask to be excused the day of the election- ask Dolores Mutton to be excused while you were near the election table? A. The day of the election. Q. The day of the election. A. Oh, yes I did it comes back to me. I believe that Violet Pyles. Q. Do you remember what was said? A. They wanted to know if they could punch out then and she said they could. Q. This was after the election? A. Exactly, the day of the election, yes, sir. JUDGE SEFF: Was it during the election? THE WITNESS. Yes, it was-I believe the election was going on, yes, sir, because it was 4 p.m.-I really can't tell what the time the election was over-and I remember Violet coming across the room because that was an upsettmg day for me. There was some exchange of remarks which took place between the General Counsel and Respondent's attorney in an effort to establish what the hours of the election were. Company counsel finally stipulated that the election took place between 3 and 4:30 p.m. Q. (By Mr. Howe on recross-examination) With respect to the last incident which was brought up concerning Violet Pyles, did you actually overhear that? A. Yes. It lust come back to me right now. Q. You did overhear, or you believe you did? A. I did I was standing-there is three tables-I was standing at the end of one. I don't know if I should say this, but Violet Pyles is generally loud. She said "Dolores, can we punch out now?" In the continuation of this interrogation of Budinsky, Budinsky said that she heard someone tap on the door and say "Dolores, can we punch out now?" Budinsky had already voted in the election. Howe asked her if her shift ended at that time. Budinsky replied that she (Pyles) was still to punch out. She wanted to know if she could punch out. Pyles' normal day would not have ended until 6 p.m. Further, Budinsky said the employees usually work until 6 553 p.m. and that on that particular day she was already done with her work, with the election and all. During the course of the direct examination of Violet Pyles she said that she worked on the day shift on the day after the layoff took place (January 18). Her supervisor for that shift was Dolores Mutton. When asked if she worked on any other shift she said yes, she had worked on the midnight shift and her supervisor on this shift was Shirley Ferguson. The testimony of Budinsky clearly corroborates the fact that Mutton exercised clear supervisory authority over her day shift in much the same manner as Ferguson. Pyles testified to the effect that Mutton occasionally urged the girls to do their work and one incident stood out in her mind, in the course of which Mutton said, "OK, girls, the game is over. Let's get on the ball and do it right." Pyles also testified that she had occasion to ask to be excused from work and when this type of situation developed she would ask Mutton. Pyles did not recall how often requests to leave the job occurred but she said that well she didn't remember the exact number of days (at this time she was going to the doctor every 2 weeks) and she would ask to be excused each time. In this connection Pyles said that when Mutton made such a decision to grant permission to leave the plant she made the decision on the spot. Pyles also recalled an incident when she was working on the other side of the plant, and on this occasion she asked Dick Byrd if she could leave the plant early and he gave her such permission. Up until that time Mutton had always excused her. But this day while she was working on the other side of the building she said that her time was up and that her husband was waiting for her outside the plant, and Mutton said she could not tell her to go. Mutton suggested that Pyles ask Byrd for permission to leave. Apart from this incident the record indicates clearly that the pattern of granting employees permission to be excused from the plant before the shift was over had been well established by Mutton, and this permission was granted by her without consultation with Byrd or any other top supervisor. From all of the above it appears clear that Mutton too exercised authority in much the same manner as Ferguson and in fact discharged her duties in such a manner as to clearly indicate to the employees that she, Mutton, was one of the bosses. She acted as such by the way she handled requests to leave the plant and by the other matters discussed supra. I can only conclude from this testimony, which was not rebutted on the record, that Mutton exercised many duties which are encompassed within the language of Section 2(11) of the Act and was in fact a minor supervisor. As such any remarks that she made were both imputed to and properly attributed to Respondent. The General Counsel's brief sets forth the fact that Rita Lewis admitted she attended supervisory meetings in November 1972. She evaluated employees after November 1972, and at that time substituted for her full-time supervisor, Joy McCartney, who she shortly thereafter replaced. The General Counsel remarks that "where an employee completely takes over the supervisory duties of another, as in the case at bar, he or she is regarded as a supervisor under the Act." In support of his proposition he 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cites the case of Birmingham Fabricating Co., 140 NLRB 640. Respondent's personnel manager, Scharf, gave testimony that Mutton, Yeager, Lewis, and Ferguson were all lead persons with basically the same authority. He also conceded that they functioned in a "gray area" of supervisory status and possessed "very definite manage- ment responsibilities." At the same time, however, he maintained that Byrd was the bindery supervisor and worked 18 hours a day and Westfall, plant manager, maintained that Byrd was actually on call 24 hours a day. The General Counsel further makes the statement that the testimony of the General Counsel's witnesses and most "lead persons" clearly indicates that Byrd's presence on all shifts was sporadic and his exercise of supervisory authority over bindery employees was insignificant. To all of the evidence adduced on the record the Company iterated and reiterated its contention Mutton, Ferguson, Lewis, and Yeager were really lead persons who work along side of the other bindery employees and performed functions identical with that of the regular employees in the bindery department. It is correct to say, and it is supported in the record, that the Respondent's witnesses all testified to the effect that they spent 99 percent of their time working as production workers in the bindery just like the other employees. The Company sought to minimize those functions performed by the above-named persons which appeared to partake of the discharge of supervisory responsibilities. It was pointed out by Respondent in its brief that the entries made in the log and the preparation of schedules for the employees was a merely routine, clerical job that did not require the exercise of any independent judgment. Respondent lumped togeth- er the jobs of the three persons whose testimony has been exhaustively dealt with in the instant decision as being merely a minor part of the duties which they performed. It was underscored in Respondent's brief that "Mutton spent at most only a few minutes per day in drawing up the assignment list and writing entries in the production logs. Also, in addition to regular production work, like other senior and experienced employees, Mutton helped train new employees. New employees learn the job through on- the-job training." Respondent also points to the fact that since June 5, 1972, including the period January 18 through March 16, Mutton has not had authority to hire, fire, or otherwise discipline other employees. She also had no authority to tell other employees to leave their work early. She has not had authority to schedule overtime, call employees to work early, nor has she been consulted in regard to any management decisions. It is pointed out with special emphasis that Mutton was not consulted with regard to the decision as to which bindery employees would be terminat- ed on January 18. Furthermore, since June 5 Mutton has not attended any management meetings nor has she made evaluations of other employees. The Company explained the fact that as the most senior and experienced bindery employee Mutton is paid an hourly rate of $3.17 but does not receive different fringe benefits than the other bindery employees. She punches a time clock, is paid overtime rates for hours worked in excess of 40 in a week, and uses the rear parking lot like the other nonsupervisory employees. It should be pointed out that the differential in the pay rate received by Mutton, Lewis, Ferguson, and Yeager is quite substantial. For example Mutton earns $3.17; Ferguson, as a senior and experienced employee is paid an hourly rate of $2.75; Dwayne Yeager (the General Counsel does not devote any special time or attention to the status or functions of Dwayne Yeager but the Company did point out that Yeager did occupy a similar job to that of the others mentioned supra) earns $3.03 but this was explained by Respondent as being due to the fact that his regular function is that of a skilled machine operator. Despite these contentions which find support in the record it is my conclusion that the major elements of supervisory function which were regularly performed by Ferguson, Mutton, and Lewis, plus the other testimony in the record which concerns itself with the fact that these employees did allow employees to go home before their shift, did make regular work assignments, did make entries in the production log, and the fact that they exercised any one of these functions constitutes them as supervisors within the meaning of Section 2(11) of the Act. I so find. I also credit the testimony of Mutton and Lewis who impressed me as being honest and forthright witnesses whose testimony I credit. While I do not discredit the Company's witnesses as to all the points they gave testimony on but it must be said that Respondent did not successfully refute the supervisory work performed by them. For the most part their testimony concerning their supervisory duties was not refuted. I therefore find that all three of these women were supervisors within the meaning of the Act. Once again, parenthetically, I conclude that the ballots of Lewis and Mutton should not be counted and I uphold the challenges to these ballots. III. THE ALLEGED 8(A)(1) AND (3) ALLEGATIONS The General Counsel's brief states as follows: Shirley Ferguson-8(a)(1) Rose Timlin, a former employee of Respondent, testified that sometime in December 1972, a time when even Ferguson admits she was a supervisor, Shirley Ferguson interrogated her in the mailing office of the bindery. She accused Timlin of being the Union instigator on the night shift. She also identified Joan Hamilton, Margaret Noble, Dorothy Hendrix and Betty Huffman as possible union instigators on the day Shift and stated if Respondent found this to be true these individuals would be terminated . Ferguson also told employee Helen Spahr before the layoff that she thought Margaret Noble was a union instigator. From the above-quoted section of the General Counsel's brief he concluded that Ferguson's statements to Tin-Ain and Spahr unlawfully created the impression of surveil- lance. I concur with this conclusion and so find. The General Counsel's brief states: Ferguson claimed that Dwayne Yeager informed her that two girls on her shift were talking to the pressmen CARROLLTON STANDARD PRINTING CO. about the Pressmen's Union . She admitted calling in the two employees-whom she identified as Lisa Ulman and Rose Timlin-and asking them if they had talked to the pressmen about a bindery union. It is unrebutted that Ferguson informed Scharf about this incident. Timlin intended to terminate her employment with Respondent on or about March 23, 1973. William Scharf, Personnel Manager, attempted to accelerate her separation to March 9 because he did not want her there for the March 16 NLRB election. Ferguson, sometime in October or November 1972, also warned employees Betty Huffman and Helen Spahr that bindery employees might be terminated if a union was discussed by them in the plant. Huffman also testified that Ferguson stated Respondent's plant would be shut down if the bindery workers obtained a Union to represent them. Testimony of Helen Spahr clearly indicates that Ferguson, the week prior to the March 16 election, threatened employees with longer hours if the Union won the election. The General Counsel contends that Ferguson interrogat- ed certain of the employees as to their union interest, sympathies, and thereby violated Section 8(a)(1) of the Act. The record supports the General Counsel's conclusion that the activities engaged in by Ferguson did in fact constitute violations of Section 8(a)(1) of the Act. I concur with this conclusion and so find. The General Counsel's brief further continues as follows: Rita Lewis-8(a)U) Barbara Gray and Betty Huffman, former employ- ees, both testified that Rita Lewis at a Christmas party in her house in 1972 indicated that employees had better not discuss or mention the Union or they might be discharged . Lewis after claiming not to remember the conversation-fmally admitted "there was a rumor that we may all be termmated." While Lewis claimed all of the participants in her Christmas party were joking, Gray and Huffman took her remark seriously. While the General Counsel offered the above informa- tion as representing a further violation of Section 8(a)(1) I find that his conclusion is not supported by the record. The remark which Lewis admittedly made was not made in the plant, which itself is not significant , but much more importantly was made during the course of a party and it appears that it was neither seriously made nor understood by the people at the party to constitute a threat of any kind. As the Respondent has pointed out both at the hearing and in his brief the remark of Rita Lewis was made in a jocular vein and I take it that this was the case. As the record shows during the course of a•party the television set was turned on and it reported some information about a Union which was then on strike in the vicinity of the Company's plant. It was in this connection that Lewis made her statement to the general effect that if you are in a union it frequently occurs that unions take employees out 555 on strike. If the employees selected a union to represent them this might well happen to them. There is nothing in the record to show that a strike ever occurred at the Respondent's plant. Therefore this remark seems to me to be of no great significance and does not constitute a violation of Section 8(a)(I) as alleged in the complaint. I therefore recommend that this allegation of the complaint be dismissed. According to General Counsel's brief: Dolores Mutton-8(a)(1) Employee Jerilyn Budinsky testified that immediate- ly after the March 16 election Mutton warned them never to mention a union at Respondent's facility or she would be "fired." "Start sticking together, you'll be out of the doors, just like the rest of the girls ." By "the rest of the girls," Mutton no doubt meant those terminated on January 18. This statement should leave no doubt as to the real reason the Respondent terminated the discriminatees in this case . Mutton represented to the employees on the morning of March 15 that they would be working more overtime if the Union won the election . Mutton also made the same threat to employee Violet Pyles sometime after the layoff but before the election. While there is record evidence to support the contentions made by the General Counsel with respect to the testimony of Budinsky and while I have credited some of her testimony with respect to other matters not relating to 8(a)(1), Budinsky did not make a good impression on me as a reliable and credible witness . She appeared to be both talkative and argumentative. I do not credit those parts of her testimony that were not corroborated by the testimony of other of the General Counsel's witnesses. General Counsel's brief continues: Bruce Westfall and Richard Byrd Lisa Ulman testified that on March 15, 1973 Richard Byrd interrogated her as to whether she thought Respondent's shop needed a union. On that same day Ulman asked Bruce Westfall, plant manager, whether the employees would obtain a pay raise . Westfall responded he could not take any action on raises at that point but claimed that if the Union didn't win the election bindery employees would receive 10 percent to 12 percent more in wages. If the testimony of Lisa Ulman is to be credited what she stated represents violations of Section 8(a)(1). She said she asked Westfall about a raise. His reply contained a double aspect of violations of the Act. My overall appraisal of the credibility of Ulman is that she testified in a direct and forceful manner and impressed me with her recital of the mcidents she described. Her testimony had the ring of authenticity. In answer to her question about raises Bruce Westfall said he could not take any action on raises at that point but claimed that if the Union did not win the election the bindery employees would receive a 10-percent to 12- percent increase in wages. This statement , which I credit, constitutes a promise of benefit and a possible threat that if the Union did win an election the employees would not obtain a wage increase . Both aspects of this statement, 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which I find Westfall did in fact make to Ulman , constitute violations of Section 8(a)(1) and I so find. Budinsky testified that after the layoff Richard Byrd approached her and interrogated her as to what she thought of the Bindery Workers Umon and the Pressmen's Union . I have already found that Budinsky impressed me as somewhat argumentative . The further fact that she has quit her employment with Respondent emboldened her to make statements adverse to the Company which I do not accept at face value . I do not credit her testimony. I recommend that this allegation of the complaint be dismissed. Pyles testified that on two separate occasions during the week before the election Richard Byrd ques- tioned her as to what she thought of the Union. I was affirmatively impressed with the candor with which Pyles testified and I credit her testimony . Under these circumstances I find that Byrd did in fact interrogate her on two separate occasions and by so doing Respondent violated Section 8(a)(1) in this regard . I so find. Respondent Held Three Meetings with its Employees Prior to the Election The NLRB election took place on March 16 . On three separate occasions, March 9, 13, and 15, the Company held meetings with its employees. At one of these meetings Scharf or Westfall allegedly told employees the pressmen would have received a higher wage rate than they had received by the union contract if they had not chosen this Union as their bargaining agent. The record shows that this testimony was given by Budinsky . She allegedly also stated that Alpheus Petrie, general manager, made essen- tially the same statement at one of the three meetings held by the Company with its employees. As I have already discredited part of Budinsky's testimony in relation to other matters concerning which she gave testimony I was not impressed with her testimony in this regard anymore than some others and for this reason I do not credit this testimony. Under these circumstances, I recommend and find that the Respondent was not guilty of this additional 8(a)(1) activity and I recommend that the allegation concerning this matter be dismissed. It is the contention of the General Counsel that as a consequence of the 8 (a)(l) activities of the Respondent detailed supra, the Respondent threatened the employees with low wages in the event the Union won the election and at the same time it promised employees higher wages if they voted against the Unions involved in the election. There is further testimony in the record that Spahr said that Roger Hays, Respondent's vice president in charge of the Company's operations, indicated at one of the meetings that if the Union was elected, employees would receive fewer benefits. An examination of the record shows that Spahr gave conflicting versions of the statement allegedly made by Hays. At one point in the record she said that a statement had been made by Roger Hays "Why have a union if you can get the same things without a union," or something to that effect. To this question he answered "Yes." The next question she was asked was whether or not Hays had ever said that if the Umon were to be elected you would be paid less or would receive less benefits. Her answer to this question was "No." She then said "No," I misunderstood that, will you repeat the question? The direct question was then asked of her, "did Hays ever state that if the Union were elected you would be paid less or receive less benefits?" To this rephrased question she said, "Oh, yes." This testimony is so confused and contradictory that it is impossible to base a finding on it. I therefore conclude that the allegation in the complaint concerning the alleged statement made by Hays is not supported by substantial evidence in the record and I recommend that this allegation of the complaint be dismissed. From the totality of the 8(a)(1) allegations and the conclusions I have reached concerning them I find that certain of the allegations were supported by substantial credible evidence and others were not. The evidence indicates that Respondent attempted to ascertain the strength of the Union in the bindery, made an effort to determine just who the union instigators were by interroga- tion, threats of termination, and other actions. It also created the impression of surveillance. The General Counsel concluded that the use of these unlawful tactics and the illegal promises of benefits coupled with the threat to withhold benefits if the Union was successful in its election efforts all point to the commission of violations of Section 8(a)(1). Respondent attempted to discourage union support. The General Counsel characterizes the 8(a)(1) activity as being clearly violative of Section 8(a)(1) of the Act. He cites in support of this conclusion the case of Stephens Manufactur- ing Co. Inc., 196 NLRB 47, which he described as involving violations of Section 8(a)(1) of the Act similar to those of this case ; including the interrogation of employees con- cerning their union activities , the creation of the impres- sion that employees would be discharged for supporting the union, and the threat to cut wages if the union won the election. The Discharged Discriminatees The testimony of Timlin was to the effect that the Respondent learned through its supervisor Ferguson that the Company suspected Hamilton, Noble, and Hendrix to be union instigators and threatened to terminate them. The record shows that Ferguson admitted she told Scharf that she had interrogated Timlin. At a later point in the record Scharf conceded that, prior to the layoff, he did question Byrd as to union activity in the Bindery. The former chairman of the Printing Pressmen, Henry Pisklo, testified that Hendrix, Noble, Timlin, and Hamilton were the most inquisitive of the bindery employees and the most interested in requesting the Printing Pressmen to represent them. They first approached him about the Union sometime around December of 1972 . Pisklo also said that he considered Joan Hamilton as being the most active union adherent. Both Scharf and Mutton described Hamilton as a "complainer" and because they made such statements on the record the General Counsel concludes that "she was no doubt highly suspected by Respondent as a union adherent." This statement appears to be sheer supposition indulged in by the General Counsel. His brief states "that it is unrebutted that in December CARROLLTON STANDARD PRINTING CO. 1972, Scharf showed Hamilton her job evaluation and told her to `quit worrying' because there was nothing wrong with it." It does appear that Hamilton was the organizer and one of the chief officers of the Independent Bindery Workers Union which labor organization was organized after her discharge. There is no doubt that she was an active union proponent. It is further contended by the General Counsel that Ferguson also identified Noble as a union instigator in a conversation had with Spahr prior to the January layoff. During the second meeting with its employees which occurred on March 13, Roger Hays was called on to answer questions. It is the contention of the Respondent that during the course of these meetings "Management representatives did not threaten to discharge any employee or otherwise threaten reprisals if the Union should be elected; they did not promise wage increases or other economic benefits if the employees would vote nonunion; they did not threaten the employees with strikes and violence and there was no discussion of union dues." I do not credit Respondent's blanket denials of engaging in independent 8(a)(l) activi- ties. Two versions of one incident that occurred at one of the meetings are set forth in the briefs provided by both the General Counsel and the Respondent. The General Counsel states that Roger Hays, at one of the meetings, emphasized the fact that he would never permit any of the three discriminatees to return to work-and would fight the issue all the way to the United States Supreme Court if necessary. It is also stated in the brief that Hays remarked to the employees who were present at the meeting that they could select those to be replaced if he was forced to yield to their return. The General Counsel remarks further that Hays' "singling out the three discriminatees for special comment and treatment" substantiates the General Coun- sel's position that Respondent especially wanted to rid itself of these suspected union adherents. The Respondent in a footnote to its brief states: "In response to a question by Budinsky, Mr. Hays did state the fact that if the Company had to hire back Noble, Hendrix and Hamilton, the three alleged discnminatees, and if the Company did not increase the workforce in the bindery, then three employees would have to be replaced to make room for Noble, Hendrix and Hamilton." By dovetailing these two statements by the General Counsel and Respon- dent respectively it seems clear that Hays did state in effect what the General Counsel contends he said at one of the meetings. I do not find this language to be discriminatorily motivated or violative of the Act. Taken out of context it seems that the Company had a special axe to grind with respect to the three alleged discriminatees. In my opinion, this remark made by Hays indicates company knowledge that these three female employees were known to the Company to be active in the Union but apart from this conclusion I find nothing either significant or actionable in the statement admittedly made by Hays. The Respondent adduced testimony through its witness- es including Hays that before a determination was reached as to who among its employees would be laid off, a special meeting was called in his home at night. At this meeting 557 there were present Brenneman, president, Hays, vice president, Petrie, the Company's general manager, Byrd, the plant superintendent, Westfall, plant manager, Scharf, personnel manager, and Brothers, who is the assistant production manager. As has been stated above the purpose of this meeting was to determine which employees were to be laid off. Each of the Company's top supervisory men drafted a list of employees whom they felt they could do without. After the lists were completed they were com- pared and the names of 10 employees coincided with the 10 employees whose names were recorded, each on a separate piece of paper. The judgment of these men was practically unanimous as to which employees were to be permanently laid off. The General Counsel characterizes this procedure as being incredible. While the virtual unanimity reached by the separate individuals involved in this selection process is, to say the least, unusual, it is not inconceivable that this plan took place as described by Respondent's witnesses. In any event I draw no unfavora- ble inference as to the basis upon which the selection was made. After the 10 names were agreed upon the Company added two other additional names, thus making the group of 12 employees from the bindery department who were permanently laid off. The General Counsel seems to make much of the fact that the Regional Office of the National Labor Relations Board was informed that the employees were laid off solely due to economic considerations. Testimony at the hearing indicated that the "most willing, cooperative, physically capable employees with the best attitude were retained." He further states in his brief "the possibility of an unfair labor practice charge being filed was considered." Many very inexperienced employees who had spent little time with the Company were retained-while a great many experienced employees were permanently terminated. From this fact the General Counsel concludes that the termination of experienced employees while retaining inexperienced ones would compound the Respondent's economic ills. The General Counsel then raises the question, "Was Respon- dent's logic directed towards solving its economic problem or ridding itself of active unionists?" It is a fact that the Company did double its bindery staff from 12 to 22 employees sometime after the election. He states this was accomplished "without regard to the announced Company position to the Regional Office that those laid off would be reinstated only if the need for additional workers arose and without regard to the announced policy in its employee handbook `to fill vacancies from within our organization unless . . . no one was available in terms of specialized talents and training required.' " The failure of the Respondent to reinstate any of the terminated employees, including the discnmmatees; lends credence to General Counsel's assertions that the discriminatees were in the first instance terminated for discriminatory reasons. In the course of the hearing, during the testimony of Hays, I asked him why he did not reemploy some of the terminated employees when the Company's financial position improved to the point where they needed additional employees. My question specifically was, "May I ask whether it is economic to hire strangers to the business when you had potentially available people who 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had experience working for you in various occupations in your plant?" Hays answered my question as follows, "The reason for the dismissal-I think I said earlier-I asked the supervisors to supply a list of names of competent, willing, capable, physically able people who would help us during this period. I didn't feel that the end of the crisis was the time to bring back people that the supervisors didn't feel quite fit those qualifications prior to that." It seems clear that the Company's explanation raises some doubts as to the basis for hiring new people off the street instead of rehiring employees who had satisfactorily performed service for the Company prior to the economic layoff of January 18. While my doubts in this regard have not been dispelled by the answer given by Hays, the fact remains that the determination of the Company not to rehire old employees who had not particularly distinguished them- selves on the job is a matter of judgment. Absent proof of any allegation in the complaint that the Company had discriminatorily laid off approximately 29 employees from the bindery department, there is no doubt that the complaint was drafted the way it was because the Regional Office of the NLRB accepted and believed the Company's explanation that the layoff was solely due to economic necessity. The record bears out this conclusion and I concur in it. Returning to the question as to whether or not there was logic in the Company's failure to rehire its permanently laid off employees this is a matter solely for the Respondent in its exercise of running its business. It is not for a judge to substitute his judgment for that of the Company. I therefore accept Hays' explanation in answer to my question with some reluctance because it does appear to be suspicious but nevertheless since Respondent has not been charged with a discriminatory layoff but only with a layoff dictated by economic necessity what it did, in effect, was to make a judgment call. Whether or not its judgment was good or bad is not before me. Nor, absent credible evidence in the record, is it the business of the NLRB to sit in judgment on the Company's decision with respect to this matter. I therefore conclude that the General Counsel's assertion that "the failure of Respondent to reinstate any of the terminated employees , including the discriminatees in opposition to its announced policy lends substantial credence to the General Counsel's assertions that the discriminatees were in the first instance discriminatorily terminated." For the reasons set forth supra, I disagree with this conclusion of the General Counsel. While the General Counsel did not argue in his brief that the layoff of the employees in the bindery department was motivated by antiunion considerations rather than by economic necessi- ty, such an argument was advanced by counsel for the Pressmen's Union. This contention does not appear to me to have merit. The record is replete with both direct testimony from credible witnesses and numerous exhibits all of which conclusively point to the fact that for a period of time in January and continuing for about 6 weeks thereafter the Company was in financial distress. In order to cure this critical situation the Company relied upon its new manager (who had vast experience in previous positions) to evaluate the best way for the Company to extricate itself from its difficulties . He recommended that Respondent reduce the number of its employees. This expert, Petrie, recommended a substantial reduction in the number of employees in the bindery department; a reduction in certain other categories of employees then working for the Company; a 2-percent reduction in the salary paid to Brenneman; and a 10-percent reduction in the salaries of all executives from the position of Byrd on up. The actual amount of money being lost by the Company prior to the institution of the drastic measures which it took in order to avoid bankruptcy was reversed. The institution of these economics was helpful in the Company getting back on the track of successful business operations. This, coupled with a substantial increase in business, resulted in the resumption of business on a profitable basis. I am satisfied that the evidence in support of the Company's contention with respect to its resumption of health business activities is an honest statement credibly made by Hays whose testimony I credit in its entirety. Based on the substantial evidence on the record considered as a whole it seems clear to me that despite urgent disclaimers made by Respondent that it had no knowledge of union activity among its employees in the bindery department, that this is simply not correct. The evidence points to the fact that the Company (at least through its minor supervisors), whom I have determined are supervisors within the meaning of the Act, that Noble, Hendrix, and Hamilton were known to Respondent to be active on behalf of a labor organization and this knowledge (due to the fact that these employees Ferguson, Mutton and Lewis had knowledge of their union activities), was imputed to Respondent. The Alleged 8(a)(3) Discriminatees First off it should be pointed out that Hendrix, Noble, and Hamilton were included in the group of employees who were permanently laid off in the mass layoff of January 18. Significantly, the General Counsel does not claim that any of these employees were unfair labor practice layoffees. The complaint does not contain any allegations to indicate that the entire group of employees who were terminated on January 18 were discriminatees. It is argued that the three women were discriminated against because of their union and/or concerted activities. One of them, Hamilton, was admittedly the chief union instigator who was involved in the effort to form the Bindery Workers Independent Union. Hamilton's efforts on behalf of the Bindery Workers Independent Union were conspicuously unsuccessful. The record shows that the Independent died aborning. In the election conducted by the NLRB, the Independent did not receive any votes. More significantly Hamilton did not commence her union activity until after she had been permanently laid off. During the time she was employed her union activities were minimal and the record is silent as to Respondent's knowledge of even this activity. It is true and I have found that the Company, both through the statements made by its minor supervisors and also by the remarks of Byrd and Scharf, engaged in illegal threats and promises of benefit. Consequently there exists a background of independent 8(a)(1) activities. However it CARROLLTON STANDARD PRINTING CO. must be emphasized that nowhere in the record has the General Counsel adduced credible evidence demonstrating any direct threats or promises of benefits having been made against these alleged discriminatees. Nor am I convinced that indirect threats or promises of benefit were made which were discriminatorily motivated . It should be noted that Hamilton was characterized by Respondent's witnesses as a "chronic bitcher" who frequently made complaints. Much of this criticism concerned her supervi- sor, Mutton. There was a personality conflict between Hamilton and Mutton . There were also other complaints made by Hamilton about working conditions. At the least these facts give rise to a suspicion that Respondent had "an axe to grind" about the "attitude" of Hamilton towards Respondent apart from her personal feud with Mutton. In any event I conclude that the General Counsel did not sustain his burden of proving by a preponderance of credible evidence that the alleged discriminatees were terminated because of other union or protected concerted activities. Also it should be pointed out that I was not impressed with the demeanor or credibility of the General Counsel's three alleged discriminatees . They were not persuasive witnesses and I do not credit their testimony . They were called upon to testify as an afterthought on the part of the General Counsel. The testimony offered by Hamilton, Noble, and Hendrix on direct examination was inconclu- sive, vague, and unconvincing. Thus it can be seen from the direct testimony in the record that none of these employees testified to the question of discriminatory remarks directed against them by any of the Respondent's supervisory personnel. What words were exchanged , in the context of the circumstances under which the statements were made, were, for the most part, innocuous or of no legal significance . This is not to say that while the testimony indicates that the statements made by the witnesses are credited by me and while they do represent clear violations of Section 8(a)(1) of the Act they did not seem to be taken by the listeners as constituting threats which the employees involved took seriously. In any event the burden of proof on the General Counsel to prove his case by a preponderance of credible evidence was not sustained by him. These allegations in the complaint were not sustained with respect to supporting the allegations of discriminatory discharge. While these were violations of Section 8(a)(l) they did not contain direct threats or even indirect threats directed against the three alleged 8 (a)(3) discriminatees. In other words I find that none of Respondent's supervisory employees made threats against the discriminatees that might constitute the basis for a finding that these three employees were discriminatorily terminated. I am also unable to infer such a conclusion from the testimony in the record. Respondent's Testimony Concerning the Economic Basis for the Mass Layoff of January 18 The actual amount of money being lost by the Company prompted it to institute drastic measures to avoid bank- ruptcy. These efforts were helpful in getting the Company back on the track of successful business operations. This, 559 coupled with a substantial increase in business , resulted in the resumption of Respondent's operations on a profitable basis. I am satisfied that the evidence in support of the Company's contention with respect to its resumption of full business activities is an honest statement credibly made by Hays whose testimony I credit. Having credited Hays' testimony on this point eliminates the necessity for any further consideration of this subject in the instant decision. Company Knowledge Based on the substantial evidence in the record consid- ered as a whole it seems clear to me that despite frequent disclaimers made by Respondent and that it had no knowledge of union activity among its employees in the bindery department that this is simply not correct. The evidence points to the fact that Respondent was chargeable through its minor supervisors, with knowledge that certain of its employees were active on behalf of a labor organization. I so find. The Challenges and the Objections to the Election I have found that the three minor supervisors were supervisors within the meaning of the Act at the time the election took place. The challenges to their ballots should be sustained. The balance of the challenges have been found by the Region to be without merit and the charging union has withdrawn these challenges. I have also found that the three employees whom I have found to be supervisors did in fact utter statements violative of Section 8(a)(1) of the Act. The substance of these statements is substantially the same as the Union's objections to the election. It is so well settled as a matter of law that it does not require citations to the cases to demonstrate that where a Respondent engages in the commission of independent 8(a)(1) activities and these activities represent the basis for the objections, such action is sufficient upon which to base a finding that the objections to the election be sustained. I so find. Consequently I will recommend that the election be set aside and a new election be ordered by the Regional Director at a time and under circumstances when the effects of the 8(a)(1) activities have been dissipated by the posting of an appropriate notice to the employees . At such time the Regional Director, in his discretion, may order that a new election be held to determine the uncoerced wishes of the employees. Concluding Findings and Analysis The issue concerning the supervisory status of Ferguson, Mutton and Lewis involves an admittedly close question which has correctly been characterized as a problem in the "gray area." Ultimately the answer depends on a careful consideration of the facts in the instant case . The record is replete with testimony concerning this issue. The General Counsel, and Respondent have provided me with excellent briefs studded with copious citations to both the record and the adjudicated cases. This issue has already been explicated in considerable depth supra and any additional comments made here by 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD me would be redundant. Suffice it to say that my research supports my conclusion that the three employees are indeed supervisors albeit minor supervisors of the Respon- dent. The Respondent calls my attention to the following cases which have been offered in support of the Company's position that the three individuals named above are only lead people and not supervisors within the meaning of Section 2(11) of the Act: A.D. T. Company, Inc., 177 NLRB 704, deals with the fact that the title of a job is not to be relied on to establish that an employee is a supervisor. The fact that the employees refer to Mutton, Ferguson, and Lewis as supervisors is not controlling. Respondent calls attention to the fact that Mutton was not consulted concerning the layoff of January 18 and did not attend management meetings; was not treated by management as a supervisor; was hourly paid: she punched a clock; and is paid overtime. In support of this proposition, Respondent cites The Grocers Supply Compa- ny, Inc., 160 NLRB 485. Company counsel also calls my attention to the case of The Kirby Company, 194 NLRB 1201, where the Board found an employee was not a supervisor even though he assigned work and transferred other employees because his authority in this respect was routine and did not involve the use of independent judgment in view of the routine and repetitious nature of the operation and the small number of employees. The Board has likewise failed to find employees to be supervisors in other cases where assignment duties are merely routine. Don the Beachcomber, 163 NLRB 275. Respondent concludes from the above cited case. "As Mutton stated, an individual can learn the bindery work very quickly and therefore it is merely a matter of developing speed and proficiency." The brief continues, "The Board has indicated that experienced employees who give this type of routine instruction are not supervisors within the meaning of the Act." The Company cites Brewer Electric Mfg. Co., and the case in Kansas Refined Helium Co., 176 NLRB 1032. The brief then states: "The question of assigning work is not determinative. In Goshen Litho Inc. [196 NLRB 977], the Board found that a head operator who worked on the assembly line as a trimmer is not a supervisor even though he had the duty to keep the assembly line moving, moved employees around the assembly line as needs required, and placed new employees next to experienced employees." Concerning the significance of the rate of pay of employees whose status is in question the Respondent's counsel states : "Higher rates of pay are also not conclu- sive. The fact that Mutton earned more than other employees was due to her seniority and experience and not because she was a supervisor." The case of Welcome- American Fertilizer Co., 179 NLRB 217, enunciates the proposition that the Board recognizes that paying a higher wage rate to an experienced, senior employee does not make that employee a supervisor. Respondent's brief continues: Re: Mutton: At all times relevant to the present case, Dolores Mutton lacked authority to hire, fire, promote, discipline other employees, or schedule overtime and likewise lacked authority to effectively recommend such actions. She worked on the day shift, is hourly paid, punches the timeclock and is paid overtime rates. She worked on the day shift, during which Richard Byrd the supervisor of the Bindery Department, was present. She shared a community of interest with the other employees on her shift. She spent 99 percent of her time doing production work. Re: Ferguson: Ferguson worked the midnight shift both before and after the terminations of January 18 where, as the most senior and experienced employee, she was admittedly a lead worker. What the Company fails to state in its brief is that Ferguson was an employee of 6-1/2 years' service who did act and was acknowledged to be a supervisor until June 1972. At this time she became ill and when she returned to work, notified the Company that she would not be available to continue to act as a supervisor because of her physical condition. The Company claims that when Ferguson returned to her job a notice was posted on the bulletin board to the employees on the night shift in the bindery department notifying them that Ferguson was no longer their supervisor. On the testimony in the record it is not at all clear that the employees on the night shift in the bindery department were aware of the change in Fergu- son's status. In any event, according to the testimony in the record even from Ferguson herself, on direct examination she said that her duties changed only very slightly after she ceased acting as a supervisor. In other words she continued to act with the responsibility of scheduling girls and filling out a bindery report in the morning. According to the record on January 22, 1973, she was advised that she was no longer to be designated as a supervisor. However she admitted that she still performs the functions of a supervisor. To use Ferguson's own words with respect to the change in her status : "It wasn't the change in status at all. I continued to do the same things . I still continue to schedule the girls and fill out the bindery report." Ferguson testified that she was told not to continue to act as a lead woman by Bill Scharf, Respondent's director of personnel. In answer to a question as to how many bindery workers were on her shift, she stated between 6 and 7. She was then asked how she assigned employees to the presses. Her answer was according to their ability, their seniority, their knowledge of their job. She also testified that she rotates girls between the presses daily. She stated that one press is more difficult to work on than others and she maintains a mixture of experienced and inexperienced girls on each press. Ferguson also continues to have the responsibility of making entries in the log, which is a book that is filled out at the end of each shift, stating what has been done the night before. She makes entries in the log book. Ferguson estimated that it takes approximately 2 weeks to train a new employee to become capable of working at a press, or jogging or skidding. Her immediate supervisor is Dick Byrd. When she was asked if he was present on her shift she said he was on the job in the bindery about 50 percent of the time. Normally the hours CARROLLTON STANDARD PRINTING CO. of the bindery were from 12 to 8 but during the period from January 18 until the time of the election the employees working in the bindery carried a 12-hour shift from 8 p .m. to 8 a.m. She answered a question as to how many hours Dick Byrd would be present by stating that she normally worked day shift and sometimes was on the job until 12 or 1 o'clock in the morning. Whenever a question came up that required an answer from either Byrd or Westfall it was her practice to make a phone call, even if this call was made as late as 2 a.m . in the morning. She said she would first try to get Byrd and if he was not available then she would call Westfall. She earns an hourly rate of $2.74 an hour and during the time when the Company was engaged in a retrenchment program from the middle of January to the middle of March she continued to earn the same hourly rate and was not required to take a cut in pay. She also stated in her direct testimony that she does discipline employees . This statement was amplified by her saying that the discipline she referred to consisted of telling the girls when they were making too much noise or acting up or if they were not present at the press where they were supposed to be. In such an instance she would ask them to go back to the press to which they had been assigned. She attended the last management meeting approximately a year ago. During the period from January 18 through March of 1973 the pressmen foreman on her shift was Bob Maple. Ferguson said that he is in charge of the plant on her shift. Ferguson flatly denied that she had ever told Helen Spahr that there would be more overtime if the Union were elected ; she denied that she ever told Rose Timlm that the Company would get rid of union instigators ; she similarly denied having told Mrs. Hamilton that the Company would get rid of union instigators. I asked Ferguson if the employees working on her shift regarded her as a supervisor. She answered by saying "I really can't answer that-I am the oldest girl with more seniority, and they come to me if they have a problem. She further said that she does not regard herself as a minor supervisor. The General Counsel in his cross-examination presented Ferguson with a number of affidavits which she had executed for the National Labor Relations Board. One of these affidavits states, "I supervise the second shift which works from 4 p.m. to 12 p.m." She admitted that she had made such a statement and signed it and it must have been true or she would not have signed such statement. At another point in the transcript she was asked the following question, "another supervisor, Dwayne Yeager, brought to my attention that he had overheard two girls on my shift talking to the pressmen about the Union. 1 did call each girl separately into my office and asked them about it. The girls were Rosie Tiirlin and Lisa Ulman. All I asked them was if they had been talking to the Pressmen about a bindery union." Ferguson also admitted that she told the NLRB investigator that she had had conversations with the Pressmen representative and further the affidavit continues "they both said no, that the Pressmen just explained some of the benefits of the Pressmen Union to them." It developed on the record that Ferguson executed two affidavits on April 12-both on the same day. Ferguson 561 stated that the affidavit was prepared for her by Bill Scharf, that she read it over , and signed it. Interestingly Ferguson said the second affidavit was prepared by the Company, that she did not read it but that she offered the affidavit by Scharf which consisted at the time it was offered to her of a blank sheet of paper. Apparently after she signed it, it was filled in with a statement which reads, "At all times while I have been employed by the Carrollton Standard Printing Company, both prior to and after January 22, 1973 I have had authority to nor have been told that I have authority to hire, promote, fire, discipline other employees or settle grievances nor have I been consulted with regard to any of these matters." From the testimony given by Ferguson it seems clear that while a notice may have been posted to the effect that from and after the date of the notice she was no longer to act as a supervisor her duties remained virtually un- changed. It seems odd indeed and it is not refuted on the record that Respondent gave Ferguson a sheet of paper which she signed in blank. Thereafter it later turned out that Scharf filled it out disclaiming any supervisory authority. At the least this action by Scharf is suspicious and raises doubts about the bona fide nature of this affidavit. In any event it appears clear that if Respondent intended by the posting of the notice, and by certain instructions it may have given Ferguson , that [sic] despite the notice she continued to act in the same guise as she had formerly acted and therefore the employees had no way of knowing she was no longer a supervisor. The employees did not know that she had been stripped of her supervisory duties. From January 18 through the date of the election, March 16, Ferguson apparently continued to act in the same way as she had previously acted. It would be easy indeed to imagine that the employees, even if they read such a notice, would be puzzled by the fact that she continued to act in precisely the same way as she had prior to the alleged posting of the notice ; and therefore, as to them, she continued to serve in the role of a minor supervisor. I have found, supra, that Ferguson was clearly a supervisor. The General Counsel's brief, containing as it does numerous references to transcript pages and generous citations to the authorities , provides me with a much more persuasive argument than the one advanced by the Company. She certainly exercised authority of a superviso- ry nature as defined in Section 2(11) of the Act. I have previously found that she was in fact a supervisor and I now reiterate that finding. Respondent's director of personnel, Scharf, testified that at the meeting which took place in Hays' home on January 16 he participated with Byrd, Westfall, and Hays at which time it was first decided by Respondent to permanently lay off 27 or 28 of the bindery department employees. After first deciding to keep 10 employees on in this department the Company, feeling that 10 workers would not provide sufficient help to handle the requirements of the bindery department, raised the figure to 12. The factors used to determine which employees were to be retained and which were to be let go were as follows: "Willingness to work, their ability, their physical ability, and the general attitude that they had shown since they 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had been employed." Scharf categorically denied that the final decision was influenced in any way or even considered in any way by reference to union activities on the part of any of the employees who were to be permanently laid off . Scharf was asked if the conferees had a list of names and simply selected employees from that list. Scharf said, "Yes that is how it was done." Scharf was then asked how the list of the people was compiled he answered, "somewhat like you would reconcile any group of members . You have 4 or 5 lists, let's say , and you compare the names on the lists ." It so happened that all of the lists were identical with the exception of I or 2 names, and it simply came down to who you were going to retain. Scharf was again asked whether in the discussion that ensued, did that talk in any way involve a discussion of union activities ? His answer was "in no way." Scharf was then asked if the names of Joan Hamilton, Margaret Noble or Hendrix were included on any of the lists from which the ultimate decision was made. His answer was, "No" He also pointed out that in addition to the employees terminated in the bindery there were other employees terminated in other departments as a result of the decisions made that night. Certain employees in the composition department and in the camera department , and there were also some pressmen who were laid off. Scharf characterized the matter of the layoff by stating "it was a general layoff throughout the plant. It included the plant downtown, and I believe somewhere in the vicinity of about 40 employees were laid off." Scharf also testified that the reason for the layoff was purely economic and came about because of a meeting which took place on the Friday preceding the layoff when the Company had its monthly session with its accountants. Scharf was not present at this meeting and none of the statements which follow were used by me in making findings. However, the information was taken on the record as illustrative of the Company's very poor financial condition . The accountants told Brenneman, the company president, that his financial statement for that month was exceedingly bad and unless some action was taken to reduce the cost of the plants' operations the Company would be faced with bankruptcy . In answer to a question as to the total number of production employees who were employed by the Company at its Plant No . 2 location Scharf replied that he would say roughly 130. The instant case concerns itself exclusively with the situation as it relates to the No. 2 plant. Included in the number of 135 employees at the Plant No. 2 location are production employees, and about 30 executive and administrative people. There were roughly 100 people at Plant No. 1 who were production workers . Of these production workers approximately 40 were employed in the bindery depart- ment. After the layoff there were 12 employees retained in the bindery department. At the time of the hearing there were approximately 22 employees working in the bindery department. Scharf went on to say that there was considerable overtime work being performed in the bindery department and he estimated that these employees were putting in about 300 hours per 2-week pay period prior to January 18. Subsequent to the layoff of January 18 the number of overtime hours in the bindery came to approximately 140 hours. Scharf testified that after the layoff Respondent was running two shifts unless there was a special problem which would require three shifts . The Company had one supervisor in the bindery department and he was Richard Byrd. Therefore, based on the figures given by Scharf, for the approximately 12 employees working in the bindery department after the layoff Respondent has one supervisor for all three shifts. It should be noted that Byrd had the responsibility of supervising the 12 employees even though the 12 were allocated among all three shifts. Scharf said that although Byrd could not be present for 24 hours a day he did in fact have the responsibility for all three shifts . Scharf then pointed out that it only took him a matter of 20 minutes to learn one job and about 2 minutes to learn how to skid and that the reason for his learning so rapidly is due to the fact that he has worked in this type of industry for 25 years. The point of this remark was given by Scharf to indicate that the jobs being performed in the bindery department were routine in nature and could be learned in a relatively short time . Doubtless this remark also was made in order to reach the next point ' which I regard as significant. When Hays was testifying I asked him why it was that after business picked up some 6 weeks after the date of the . layoff, the Company did not rehire any employees who had previously worked in the bindery department. Instead Respondent went outside and hired new employees who had never worked for Respondent . I expressed the opinion that once the Company was launched on a new period of activity it would seem to me to make sense that they would go back and hire employees who already had experience on the machines used in the bindery department. The explanation made was that they wanted to start with new people and that this presented no training hardship to the Company because it was quite simple to teach people how to operate the various machines employed in this depart- ment. This explanation appears to be somewhat "thin" and it did not satisfy me as constituting a reasonable basis for not rehiring any of the group of approximately 28 or 29 employees who were never returned to their jobs. I had a feeling of suspicion that there might be more to the story than had been thus far told. However, it must be stated that whether the explanation was a good one or a bad one it involves a judgment call made by the Company. It appears to be totally without reference to any union or other concerted activity. In any event it is clear that the General Counsel did not prove by a preponderance of credible evidence that the Company was illegally motivat- ed in making its selection of the employees to be retained. He therefore failed to sustain his burden of proof on this point. The General Counsel in his brief, using conclusionary language, states that it is unrefuted that some of the General Counsel's witnesses testified that the three alleged discrirrunatees must have been permanently laid off because the Company was aware of the fact that all three of the employees in question were activists in attempting to bring the Union into the bindery department. In support of this contention the General Counsel points to the fact that CARROLLTON STANDARD PRINTING CO. at one point in the record it was testified , without refutation, that Hays made the remark that he would never take these three employees back in his employment even if he had to take the case to the Supreme Court. On the whole issue of the mass layoff the General Counsel argues that terminating experienced employees while retaining inexperienced ones would only compound Respondent's economic ills. He asked the pointed ques- tion, "was Respondent's logic directed towards solving its economic problem or ridding itself of union activists?" He concludes with the statement "the failure of Respondent to reinstate any of the terminated employees, including the discnmmatees in opposition to its announced policy lends substantial credence to the General Counsel 's assertion that the dischargees were discnminatonly terminated." It is further pointed out in the General Counsel 's brief that Hays, in one of his meetings with all of the employees, told them that they could select those to be replaced if he was forced to accede to the return of the three alleged discriminatees. From this statement by Hays the General Counsel concludes that such a remark had its effect on the conduct of the Board's investigations and gave some indication to the employees as to what lengths Respondent was willing to go in disposing of union adherents. He further indicates that when Hays singled out the three discriminatees for a special comment and treatment that this behavior on Hays part substantiates the General Counsel's position that Respondent especially wanted to rid itself of suspected union instigators. The General Counsel also calls special attention to the fact that employee Budinsky testified that in one of the meetings Scharf or Westfall told employees the Pressmen would have received a higher wage rate than they had received by union contract had they not chosen the Pressmen as their bargaining representative. She said that Alpheus Petrie, general manager, made essentially the same statement at one of the three meetings held by the Company with its employees . From all of this material the General Counsel concludes that "by these statements Respondent was in effect conversely threatening them with lower wages in the event either union won the election and promising employees higher wages in return for voting against the Union's involved in the election. Employee Helen Spahr testified that Roger Hays indicated at one of the meetings that if the Union were elected, employees would receive less benefits." It should be pointed out at this juncture that in making credibility resolutions I have already earlier in the instant decision discredited the testimony of Budinsky because she did not impress me as a reliable witness. Nevertheless, as indicated supra, I have found that no direct or indirect threats were made specifically to the three discriminatees to indicate that the reason for their permanent separation and the finality of the Company's decision in this respect, the workers were not terminated for discriminatory reasons. I have therefore recommended that the allegations in the complaint that relate to the three discriminatees be dismissed. Furthermore it seems clear to me that Hamilton , Noble, and Hendrix were not singled out by Respondent for special discriminatory reasons. They were included in the mass layoff of approximately 28 bindery employees all of 563 whom were terminated on January 18 and none of whom have been reemployed . Significantly Hamilton testified that she made no organizational efforts (initially on behalf of the Bindery Workers Independent Union) until after she was permanently laid off . I have concluded that the organizational efforts of all three of the alleged discrimina- tees were not the reason for their discharge . In fact there is a dearth of evidence in the record to show that the Respondent had knowledge of their unionization efforts at a time proximate to the layoff of January 18. The record is barren of direct evidence that the Company knew of the union activities of Hamilton, Noble, and Hendrix. Nor is there any basis for inferring such information. Hamilton did have a conversation with Byrd early in December 1972 in the course of which she openly told him she thought the employees should form a union. About a month elapsed before she was terminated. There is serious doubt in my mind that the isolated statement made by her at the time of the occurrence of this incident was known to top management. It was too remote in point of time to constitute evidence that Respondent singled her out for discharge-which event took place a month after the conversation between Hamilton and Byrd . Similarly the record is silent with respect to the union activities of Noble and Hendrix . It also seems clear that, taken as a group of three employees, these workers' efforts on behalf of any union were minimal . I so find. I therefore recommend that the 8(a)(1) and (3) allegations with respect to Hamilton, Noble, and Hendrix be dismissed. The Challenges and the Objections to the Election Nothing need to be added at this point to the material already covered with respect to the election . Suffice it to say that in view of the fact that I have determined to set the election aside the questions that were brought out in the hearing about the validity of the challenges to the ballots at the election are moot. An eligibility list of employees appropriately in the unit will be agreed to by the parties when the second election is held. Summary As has been shown supra, I have found that Respondent has engaged in violations of Section 8(a)(1) in that its minor supervisors Ferguson , Mutton, and Lewis made certain threats of loss of jobs, illegally interrogated a number of Respondent's employees as to their membership in the Union and threatened to discontinue certain benefits if the Pressmen was ultimately designated as the collective- bargaining agent of the employees in the bindery depart- ment ; Westfall and Byrd also interrogated certain employ- ees as to whether they thought Respondent's shop needed a union. One employee, Lisa Ulman, asked Plant Manager Westfall when the employees would obtain a pay raise. Westfall responded he could not take any action on raises at that point but claimed that if the Union did not win the election, bindery employees would obtain 10 to 12 percent more in wages . Another employee, Violet Pyles, credibly testified that on two separate occasions during the week before the election Byrd questioned her as to what she thought of a union. 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is not controverted on the record that employee Tin-din intended to terminate her employment with Respondent on or about March 23 . Personnel Manager Scharf attempted to accelerate her separation to March 9 because he did not want her to vote in the NLRB election scheduled to take place on March 16. I have concluded that the above incidents all constitute clear violations of Section 8(a)(1) of the Act and I have so found. Concerning the discharged employees the General Counsel states in his brief that Hamilton , Noble, and Hendrix were union instigators and were coercively and unlawfully threatened to be terminated when that fact was confirmed . The General Counsel goes on to say : Ferguson admitted relaying the fact that she had interrogated Tin-din to Scharf. Scharf conceded that prior to the layoff he questioned Byrd as to the union activity in the bindery department. Henry Pisklo, former chairman of the Printing Pressmen, stated that Hendrix , Noble, Timlin, and Hamil- ton were the bindery employees who were most inquisitive and most interested in seeking the Printing Pressmen to represent them . Pisklo testified that they approached him about the Union around Christmas of 1972. He further testified that he considered Joan Hamilton the most active union adherent. Scharf and Mutton identified Hamilton as a "complainer" and as such she was no doubt suspected by Respondent as a union adherent . Yet it is unrebuted that in December 1972 Scharf showed Hamilton her job evalua- tion and told her to "quit worrying" because there was "nothing wrong with it." Moreover, Hamilton was the organizer and chief officer of the Independent Bindery Workers Union-a labor organization which was admit- tedly organized after her discharge . She was a union activist. She was apparently quite active in seeking information about the Printing Pressmen. Ferguson also identified Noble as a union instigator to employee Helen Spahr prior to the January layoff . Scharf testified Hendrix was somewhat "less capable" but gave her an outstanding letter of recommendation when she was terminated. Despite these contentions made by the General Counsel I have concluded that none of the remarks addressed to any of them nor any other evidence in the record proves convincingly that the Company terminated these three employees because of their union and/or concerted activities . Also it should be noted that I was not impressed with the testimony of Hamilton , Noble, and Hendrix who impressed me as testifying in a rehearsed manner. Thus, having concluded that they were not discharged for union and/or concerted activities-or at least that the General Counsel failed to sustain his burden of proof with respect to these three employees-I have recommended that the allegations in the complaint concerning them be dismissed. As is shown in the body of the decision I have recommended that the election of March 16 be set aside because of the 8(a)(1) activities of the three minor supervisors plus Byrd and Scharf . The substance of the objections to the election parallel in almost identical language the material encompassed by the objections to the election. Having concluded that the election should be set aside it becomes unnecessary to devote further comment to the election . The challenges have become moot since I have recommended that the election be set aside. Upon the basis of the entire record , I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees as to their union mem- bership and activities and those of their fellow employees; by promising certain economic benefits in order to discourage their membership and threatening that certain economic benefits would be lost by the employees if the Union came into the plant; and by creating the impression that Respondent was keeping the employees under surveillance, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act, I shall recommend that Respondent cease and desist therefrom and that an Order be issued designed to protect the employees of Respondent and that it affirmatively take such action as will dissipate the effects of its unfair labor practices. [Recommended Order omitted from publication.]