Broyhill Co.

288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Broyhill Company and District Lodge No. 162, Inter- the Regional Director shall issue the appropriate national Association of Machinists and Aerospace certification in accordance with the Board' s Rules Workers, AFL-CIO. Cases 17--CA-5619 and and Regulations. 17-RC-7166 April 29, 1974 DECISION, ORDER, AND DIRECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On December 28, 1973, Administrative Law Judge Paul Bisgyer issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclu- sions of the Administrative Law Judge and to adopt his recommended Order in Case 17-CA-5619, and his recommendations with respect to the disposition of the issues raised in Case 17-RC-7166. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Broyhill Company, Dakota City, Nebraska, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that Case 17-RC-1766 be, and it hereby is, severed from Case 17-CA-5619 and that the same be and it hereby is remanded to the Regional Director for Region 17 as provided below. DIRECTION It is hereby directed that, as part of the investiga- tion to ascertain a representative for the purpose of collective bargaining with the Respondent-Employer, the Regional Director for Region 17 shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this Direction, open and count the ballots cast by Laverle Miller, Gerald C. Cook, Donald L. Rupe, Roy H. Macias, and Jeffrey B. Schroeder, and thereafter cause to be served on the parties a revised tally of ballots including therein the count of the above-mentioned ballots. Thereafter, 1 The Administrative Law Judge overruled the Respondent-Employer's objection to the election held on August 16, 1973, which alleged that the date chosen by the Regional Director was inappropriate in view of the seasonal nature of its business and that , as a result, a substantial number of eligible employees were thereby prevented from voting. In overruling the objection and sustaining the Regional Director, the Administrative Law Judge relied upon the fact that the scheduling of a representation election is a matter falling within the special competence of the Regional Director and that on August 6, 1973 , the Board sustained the Regional Director's Decision when it denied the Respondent -Employer's Request for Review on this issue . He was of the opinion that the Board's denial foreclosed further consideration of this matter, and thus did not find it necessary to pass upon the merits of the objection. The above matter was fully litigated at the hearing . The General Counsel, while agreeing with the ultimate conclusion of the Administrative Law Judge, contends that the substantive issues should be decided to foreclose further litigation on this matter . We find merit in this contention and shall consider the objection on its merits. We find no evidence in the record to support the Respondent-Employer's position that the date chosen by the Regional Director for holding the election in question was inappropriate and that another date would have been preferable . Indeed, the Respondent-Employer presented conflicting and contradictory evidence as to alternative dates. Nor do we find any support in the record for the contention that because of the date chosen a substantial number of eligible employees were thereby disenfranchised. To the contrary, the record shows that the Respondent-Employer's contentions in this regard are merely speculative and without factual support. DECISION STATEMENT OF THE CASE PAUL BISOYER, Administrative Law Judge : This consoli- dated proceeding, with all the parties represented, was heard on October 10 and 11, 1973, in Dakota City, Nebraska, on the complaint of the General Counsel issued on July 3, 1973, in Case 17-CA-5619,' and the answer of Broyhill Company, herein called the Respondent or Company. In issue are the questions whether the Respon- dent, in violation of Section 8(axl) and (3) of the National Labor Relations Act, as amended ,2 discharged employees Donald L. Rupe and Roy H. Macias because of their protected union and other concerted activities and whether the Respondent engaged in other acts of interference, restraint, and coercion of employees in the exercise of their statutory rights in violation of Section 8(axl) of the Act. Consolidated with the unfair labor practice case for the purpose of "hearing, rulings and decision" by the Adminis- trative Law Judge are challenges to the ballots cast by certain employees, including the above-mentioned dis- 1 The complaint is based on a charge filed by District Lodge No. 162, International Association of Machinists and Aerospace Workers , AFL-CIO, on May 7, 1973, a copy of which was' duly served on the Respondent by registered mail on the same day. 2 Section 8(axl) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7." Insofar as pertinent , Section 7 provides that "[e ]mppoyees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ...." Section 8(aX3), with certain qualifications not material herein, prohibits an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization ... 210 NLRB No. 37 BROYHILL COMPANY 289 charged individuals, in the election conducted in Case 17-RC-7166, and the objections to that election filed by the Respondent. At the close of the hearing, the parties did not avail themselves of the opportunity afforded them to argue their positions orally but thereafter the General Counsel and the Respondent filed briefs. Upon the entire record,3 and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT The Respondent, a Nebraska corporation, is engaged in the manufacture and distribution of agricultural , industri- al, and turf equipment at its plant in Dakota City, Nebraska. In the course and conduct of its business, the Respondent annually purchases materials valued in excess of $50,000 which are shipped directly to this plant from sources outside the State. It is conceded, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED employees Donald L. Rupe and Roy H. Macias on May 3 and 4, respectively, because of their union activity. Thereafter, pursuant to the Regional Director's Decision and Direction of Election issued on June 15, as subse- quently clarified and amended, a secret election was conducted on August 16 among the employees in the unit found appropriate. The tally of ballots showed that out of approximately 86 eligible voters, 23 cast ballots for, and 19 against, representation by the Union, and 8 cast challenged ballots which were determinative of the election results. Included among the challenged ballots are the two cast by the discharged employees, Rupe and Macias, and the ballot cast by McWilliams, who the Union and the General Counsel claim was a supervisory employee. Also to be resolved are the challenges to the ballots of James Sjovall and Jeffrey B. Schroeder. At the hearing, the parties agreed that the challenges to the ballots of Laverle Miller and Gerald C. Cook be withdrawn and that their votes be counted and that the challenge to the ballot of Earl McFarlin be sustained. Following the election, the Respondent filed four objections to the election, three of which it subsequently withdrew.5 The objection still remaining for disposition relates to the date designated by the Regional Director for holding the election. We turn to the evidence. It is admitted that District Lodge No. 162, International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence 1. The advent of the Union; the subsequent proceedings and events ; and issues presented In the latter part of March 1973,4 the Union instituted a drive to organize the Respondent's plant employees by distributing handbills in front of the plant and soliciting employee signatures to union authorization cards . There- after, the Union held meetings of employees at the Saratoga Club, which is located near the plant, and employees began wearing union buttons while at work. Admittedly, the Respondent was aware of these develop- ments. Having secured a sufficient number of signed cards from employees, the Union on April 19 filed a representa- tion petition (Case 17-RC-7166) with the Board's regional office. It is alleged in the complaint that, to impede the Union's organizational efforts, Ralph Schroeder and Roger Miller, conceded supervisors of the Respondent, and Charles (Chuck) McWilliams, whose supervisory status is in dispute, engaged in various unlawful acts of interfer- ence, restraint, and coercion of employees. In addition, the Respondent is charged with discriminatorily terminating 3 By motion attached to his brief, a copy of which was served on all the parties, the General Counsel requests that the transcript of testimony in the consolidated proceeding be corrected in specified respects. No opposition having been filed, the motion is granted and the transcript is accordingly corrected. 2. The Respondent's alleged antiunion conduct Only Rupe, one of the dischargees herein, and employees Douglas Freeman and Kent Eldridge, who are still in the Respondent's employ, furnished testimony concerning antiunion conduct. They worked in the assembly depart- ment in building 11,6 openly favored the Union, and wore a union button in the plant, as did most of the other employees in that department. Freeman credibly testified, without contradiction, that in the early part of April, while he was discussing a particular job with Roger Miller, the conceded supervisor of the fabrication shop, Miller asked him why he thought the plant should be unionized, what could the Union do for him, and how he felt about that organization. Freeman testified that he replied that "the union would give us a chance to get better benefits and a higher rate of pay." According to Freeman's further credible and undisputed testimony, he had two or three other similar conversations during the same month with Miller, whom he considered to be a good friend, and probably he (Freeman) had initiated some of these union conversations. About a week after Rupe was granted a wage increase on April 16, he and some 12 or 13 other assembly department employees were addressed in the plant by an unidentified company official from the main office. Reading from a paper, this individual explained to the employees what the Company could do for them and what the Union thought 4 Unless otherwise indicated, all dates refer to 1973. 5 Objections 3 and 4 were withdrawn at the hearing and Objection 2 was withdrawn in its brief to the Administrative Law Judge 6 In June or July, Freeman was transferred to the fabrication shop where he has been working under the supervision of Roger Miller. 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it could achieve. Thereafter, Ralph Schroeder, the then supervisor of the assembly and engineering operations,7 invited the employees to his office to discuss their complaints, the Union, and what the Company could accomplish 8 Later in the day, Rupe and Eldridge availed themselves of the invitation and went to see Schroeder in his office. According to Rupe, the following occurred: Rupe asked Schroeder what could the Company do for the employees. In reply, Schroeder stated that the Company could do a lot more than the Union. Rupe thereupon remarked that the Company had not yet proved it to him, adding that he thought that the Union could accomplish a lot more than the Company was doing for the employees. He then sharply criticized the Respondent for failing to take measures to eliminate the gasoline fumes in the plant that emanate from the motors being tested and cause employ- ees headaches and make them sick. Schroeder answered that he would see what could be done about that problems Rupe further testified that about 2 days later he alone returned to Schroeder's office to ascertain whether Schroe- der had arrived at a solution to the gasoline fume problem. When Schroeder indicated that he had not, Rupe testified, he repeated his earlier comments that the Union could do much more for the employees than the Company was doing. Schroeder challenged this remark, asserting that all the Union wanted was the employees' money every month and that "they" were crooks . Rupe voiced his disagreement and declared that his brother-in-law, Dick Sturgeon, a business representative of the Union who was involved in the organizing activities at the plant, was not a crook. On this note, the conversation ended. Schroeder testified that Rupe and Eldridge came to his office and engaged him in conversation concerning the Union. However, all he could remember about the ensuing conversation was that they asked him how he felt about a union coming into the plant and that he replied that he didn't think that the Union could be good for the Company or the men. Although Schroeder did not specifically contradict Rupe's testimony that Rupe engaged him in a follow-up conversation, Schroeder did deny that he told Rupe that the Union's representatives were crooks. He also denied that Rupe informed him that Dick Sturgeon was his brother-in-law. Schroeder further testified that the first time he learned that Sturgeon was Rupe's relative was after Rupe's discharge when in the middle of June or the first of July Supervisor Roger Miller conveyed that information to him.1o I find that Rupe's account of his conversations with Schroeder more complete and accurate than that given by the other participants . I can perceive no logical reason to 7 In July, Schroeder was relieved of his supervision of the assembly operation retaining, however, his responsibility for running the engineering department which consists of four rank-and-file employees. s The foregoing findings are based on Rupe's undisputed testimony. Eldridge recalled that Rupe and he went to see Schroeder to find out why Mr. Broyhill was opposed to the Union and that he put that question to Schroeder but received no response. However, be was unable to remember specific statements made by Rupe or Schroeder during this conversation. 10 Miller did not testify Although Richard N . Lott, the Respondent's vice president and comptroller, testified that he had advised Schroeder about Rupe's relationship with Union Representative Sturgeon after the disbelieve Rupe's testimony that he and Eldridge availed themselves of Schroeder's invitation and presented to him their grievance regarding the unhealthy gasoline fume problem in the plant. Moreover, I find equally trustworthy Rupe's testimony concerning his follow-up conversation in which Schroeder informed him that the Company had not yet found a solution to the fume problem. It appears to me highly likely that the Company's failure to remedy the problem would provoke Rupe to repeat his prior assertion that the Union could do more for the employees than the Company was doing. I find also convincing and not beyond reasonable belief Rupe's testimony that, in challenging Rupe's prounion comment, Schroeder im- pugned the Union's selflessness and accused its representa- tives of being "crooks" 11 and that Rupe, in turn, disputed such remarks, proclaiming his family relationship with Union Representative Sturgeon. As Rupe impressed me as a credible witness, I accept his above testimony. Rupe furnished the following uncontroverted testimony, which I also credit, concerning another conversation he had with Schroeder at a time before April 30: Schroeder approached him in the parts storage area of building 11 and asked him if the Union had a chance, apparently referring to success in its organizational campaign. Rupe replied that it did. When Schroeder further inquired whether a union meeting was held and whether "quite a few" had attended, Rupe answered in the affirmative. Rupe also testified to several conversations he had with Foreman Charles McWilliams, whose alleged supervisory authority will be later discussed. According to Rupe's undisputed and credited testimony, at an undisclosed time after April 16 McWilliams walked over to him while he was working and questioned him about the Union. In answer to McWilliams' inquiries, Rupe stated that he thought that the Union would get in. McWilliams also asked if the Union had "a lot of cards signed" and Rupe answered that it had "quite a few." When McWilliams asked whether a union meeting was held and how many employees showed up, Rupe stated that "quite a few did." The conversation ended with McWilliams commenting that he wouldn't want a union because it couldn't do anything for him. Rupe further credibly testified that he had "at least two or three" other conversations with McWilliams in which McWilliams "asked mainly" about the Union's chances of success; "how many people were going to get in the union"; and whether he had "quite a few" union cards signed. Rupe also testified he gave affirmative answers to these questions. In addition to these instances of interroga- tion, Rupe testified that on one occasion McWilliams told him that "if the union ever tried to get in there, they would close the plant down." 12 According to Rupe, the latter Respondent's attorney had apprised him of that fact several weeks subsequent to Rupe's discharge, Schroeder could not remember receiving that information from Lott. it Schroeder admitted discussing the Union with Marvin Roethler, a prounion employee working under his supervision in the engineering department, and remarking to him that the Union 's representatives were "no better than a bunch of drunks." It appears to me that Schroeder is not beyond hyperbole. tR Although this testimony concerning plant closure was developed after the General Counsel prodded the witness' memory , it stands uncontradicted BROYHILL COMPANY remark was made 1 or 2 days after he and other employees had distributed handbills outside the plant. Concerning the handbilling episode, the undisputed evidence shows that on or about April 30, at 7 a.m., an hour before the workday started, Rupe and Macias stationed themselves at the main gate to the plant and employees Eldridge and Neilson at another entrance and distributed union leaflets to employees as they reported for work. This was the first occasion employees, as distin- guished from union representatives , engaged in such activity. As McWilliams was driving through the gate, he asked Rupe what he was doing and Rupe answered that he was passing out union handbills and McWilliams just continued to drive on.13 Later in the plant, McWilliams asked Eldridge what he was passing out in front of the plant and he stated that they were union handbills. Freeman testified that about the end of March, shortly after the Union started its organizational drive, McWil- liams told him that 15 years ago "the unions" tried to get into the plant and Broyhill closed the plant. When shown his pretrial affidavit in which he stated that McWilliams told him that "Broyhill had shut down over the union 15 years ago," Freeman testified that the latter statement was true and more accurate than his oral testimony.14 Freeman also credibly testified that, on this occasion, McWilliams asked him how he felt about the Union and that he answered, in effect, that he favored it because it would obtain better benefits and a raise for the employees. 3. Rupe's employment, union activities, and discharge On February 1, Rupe began working for the Respondent in the assembly department in building 11, which Ralph Schroeder supervised. During his job interview by an individual in the front office and subsequently by Schroeder, to whom he was referred, Rupe was advised of the wage rates, the voluntary nature of overtime work, and the 30-day probationary period he was required to serve, after which time his performance would be evaluated for continued employment and a raise in pay. Rupe was acceptable to Schroeder and was furnished with a blue helmet and glasses. Schroeder then sent Rupe to McWil- liams, who was identified as his foreman,15 to be put to work. McWilliams explained to Rupe his job duties, which included collecting parts, nuts, and bolts needed to assemble the agricultural sprayers the Respondent pro- duced, and showed him the location of stock. During the entire period of his employment, Rupe worked directly under McWilliams from whom he received his job assignments and took orders. If parts were out of stock, and I credit it. As later indicated, McWilliams made a similar statement to employee Freeman 13 Foreman Lee Carter also drove through this gate without taking a handbill. 14 The Respondent's Vice President Lott testified that about 15 years ago a strike was called by the Iron Workers Union, which had then represented the employees, but that the Company continued to operate with a limited staff. Freeman, however, denied any knowledge of such a strike. 15 Schroeder wore a helmet bearing the legend "Supervisor," while McWilliams and Lee Carter, another foreman in the assembly department, wore a gray helmet with the word "Foreman" printed on it 16 Considering the Respondent's preoccupation with filling its customers 291 Rupe reported it to Foreman Lee Carter who ordered the items. Carter also kept records of the jobs performed by the employees in the assembly department. As indicated above, Rupe was a brother-in-law of Union Representative Sturgeon, one of the organizers at the plant. When the Union instituted its drive in the latter part of March, Rupe signed an authorization card and undertook to solicit signatures to cards from other employees in building 11 usually in the morning before the start of work and during the lunch period. Or. occasions in the lunchroom, McWilliams and Carter were standing nearby in a position to observe Rupe handing out cards . From the inception of the union movement, Rupe wore in the plant a union button, the size of a 50-cent coin, as did most of his coworkers in the assembly department, including Freeman, Eldridge, and Neilson, who also openly voiced prounion sentiments. After working hours, Rupe attended union meetings at the Saratoga Club which is located near the plant.16 On April 30, together with employees Macias, Eldridge, and Neilson, Rupe distributed handbills in front of the plant. Schroeder admitted his awareness of the union movement and meetings, the distribution of hand- bills, the display of union buttons worn by employees, and the union discussions engaged in by them, and, in particular, that Rupe supported the Union, although he did not regard Rupe as outspoken an advocate of that organization as were Freeman, Eldridge, and Neilson. He also admitted that he had discussed with Foreman McWilliams the identity of employees who favored or opposed the Union. Rupe's 30-day probation period passed unnoticed. Consequently, on or about April 15, Rupe called this to Schroeder's attention and indicated that he was due for a raise. Schroeder acknowledged this and explained that he had been too involved in other matters but would arrange for a prompt review of Rupe's job performance . The next day, Schroeder called Rupe into his office where he and Foreman Carter conducted the performance review which entailed completing a form containing five rating catego- ries-dependability, output, cooperation, adaptability, and accuracy. As a result of this review, Rupe received a rating of "Good" for cooperation and "Average" for the other four items 17 and both Schroeder and Carter assured him that he was "doing real good." On the following day, Schroeder informed Rupe that he would get his raise and, according to his personnel record, Rupe was granted a 5- cent increase on April 16.18 It is undisputed that prior to his job performance review Rupe's work was never criticized. In fact, McWilliams had also told Rupe that he was doing "real good." Moreover, there is testimony by employee Eldridge that, from his orders during this period and his antiunion conduct, I am not persuaded by Schroeder's testimony that he permitted Freeman, Eldridge, and Macias to leave work a half hour earlier on May 2 to attend a union meeting. 17 The ratings prescribed in the form ranged from "Excellent," "Good," "Average" to "Unsatisfactory." According to Schroeder's uncontradicted testimony, which I credit, Rupe wore his union button at the time of his job performance review. is Schroeder testified that he recommended only a 5-cent increase because Rupe was "a little bit below average." However, as indicated above, neither the rating Rupe received nor the accompanying remarks of Schroeder and Carter substantiate this testimony. 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD observation, Rupe worked as fast as other employees. However, subsequent to Rupe's receiving his wage increase and within a 2 1/2-week period before his discharge, McWilliams and Schroeder found fault with Rupe's performance. Specificially on one occasion before April 30, McWilliams reprimanded Rupe for working too slowly. At that time, Rupe was pulling parts for a sprayer unit when he found that certain items were out of stock and requested Carter to order them . Rupe denied that he was working slowly and told McWilliams that the parts shortage caused the delay in finishing that assignment. On another occasion before April 30,19 while Rupe was gathering parts for another sprayer unit, employee Eldridge requested him to help with an assembly job which required assistance. Rupe stopped his own work to help Eldridge. Although it was the practice in the plant for employees to cooperate with each other in this manner when necessary, McWilliams ordered Rupe not to help Eldridge or anybody else. It appears that this plant practice has continued notwithstanding McWil- liams' reprimand of Rupe.20 On May 1, 2, and 3 Schroeder criticized Rupe assertedly for not completing work assignments in time and placed separate written reports to this effect in Rupe's personnel file 21 Concerning the May 1 incident, Rupe and Macias were packing three booms for shipment. When Schroeder learned from McWilliams and Carter that the booms were not ready for shipment as they should have been, he spoke to Rupe and Macias, told them it was taking them too long to do that job, and asked why they had not yet finished the assignment. Rupe answered that they were busy working as fast as they could. Although Schroeder sought to ascertain from Rupe and Macias the problem causing the delay, no reason was forthcoming.22 On May 2, Schroeder23 reprimanded Rupe for the alleged reason that he was slow in pulling parts for a unit ordered by a customer. According to Schroeder, on this occasion Rupe had collected less than half of the required parts in the time that Schroeder believed Rupe should have finished the entire job. In reply to Schroeder's question why it was taking him so long, Rupe stated he was working as hard and fast as he could. The final incident occurred on Thursday, May 3, and culminated in Rupe's discharge before the close of the workday under the following circumstances: After report- ing for work, Rupe assembled a unit and then proceeded to draw parts from stock for another job. About 3 p.m., McWilliams approached Rupe and stated that he was not working fast enough gathering up parts . Rupe disagreed and McWilliams went to Schroeder's office. Later Schroe- der came over to Rupe to make the comment that his performance was not good and then returned to his office. About 4 p.m., McWilliams sent Rupe to Schroeder's office 19 Although Rupe testified that this incident occurred before April 30, Eldridge testified that he thought it happened in early May. 20 In addition to the above incidents, Rupe, Neilson, Freeman, and Eldridge were reprimanded for the unauthorized use of a company vehicle on company premises on April 23. Reports of this reprimand were placed in their personnel files. 21 No written reports of McWilliams' earlier reprimands of Rupe were placed in the latter's personnel file 22 A written report similar to that placed in Rupe's personnel file was put in Macias'file. 23 Rupe testified that it was McWilliams who had reprimanded him and where Schroeder informed Rupe that he had to let him go and to turn in his assigned equipment. When asked for the reason, Schroeder answered that Rupe was not working fast enough and the Company could not put up with it any longer. Rupe retorted that, if he were not doing his job, why had he been given a raise. Schroeder adhered to his decision, asserting that he had been watching Rupe's performance for 2 weeks and it was not satisfactory. Rupe again questioned the discharge and Schroeder asked whether Rupe wanted to quit . Receiving a negative answer, Schroeder repeated that Rupe was fired. Rupe then handed in his equipment and immediately left the plant when Schroeder told him that it was not necessary for him to remain until the end of the workday.24 Although the regular workweek ended on a Friday, Schroeder testified that he effected Rupe's termination on Thursday 25 because he did not believe that waiting would improve the situation any. He also conceded that the discharge action was taken "right in the middle of the busy season" when the Company was behind in filling its orders and he was under pressure from company officials and customers to ship them.26 To demonstrate that other employees had been separated in the past for the same reason as was Rupe, Schroeder testified to the discharge in January of six part-time college students on account of their slow performance. However, Schroeder further testified, that, despite their inadequacy, he retained these employees a week after he had made his decision to discharge them because he needed to get the work out. He also testified that he had no explanation for not similarly retaining Rupe to help fill the orders until the busy season ended. In addition to those discharges, Schroeder testified that in April he had terminated an employee before the end of his probationary period because of poor performance and in June he permitted another unsatisfactory employee to quit rather than be discharged at the completion of his probationary period. Finally, Schroeder denied that Rupe's union activities or sympathies played any part in his decision to terminate him. 4. Macia employment, union activity, and discharge On March 21, Macias was employed to work in the assembly department. On that date, Supervisor Schroeder introduced him to McWilliams as his foreman who would show him around the assembly area, explain his job, and make his work assignments. On March 30, Macias signed a union authorization card which he obtained from Rupe in the lunchroom while McWilliams was looking in his direction. As indicated above, on April 30 Macias and that he did not recall that it was Schroeder. Whether or not McWilliams also reprimanded him, I am persuaded that Schroeder did on the occasion in question 24 The findings concerning the events of May 1, 2, and 3 are based on credible portions of the combined testimony of Rupe and Schroeder which I find are not significantly in dispute. 25 Thursday afternoon was the regular payday. 26 Schroeder further testified that February through May is the Company's busy season and that if orders were not shipped by the middle of May, the customers would probably cancel them because at would be too late to utilize the spraying equipment this year. BROYHILL COMPANY 293 Rupe stationed themselves at the main plant gate where they passed out handbills to employees as they came to work. Schroeder testified that he observed this activity. Probably a few days before April 30,27 Macias under- went the same job performance review as Rupe did earlier. Schroeder summoned Macias to his office and, with Foreman Carter's participation, conducted the review. Macias was rated on the Company's official form "Good" for dependability and cooperation and "Average" for output, adaptability, and accuracy and was informed by Schroeder that he was doing a good job and to keep it up. Schroeder testified that he considered Macias' perform- ance "a little better" than Rupe's and secured a 5-cent hourly wage increase for him, as he had done for Rupe.28 On May 4, Macias was terminated after the following sequence of events: On April 30, Carter requested Macias, as well as the other employees in the assembly department, to work an hour overtime each day that week because the plant was behind schedule. Macias agreed29 and worked an hour overtime that day, leaving the plant at 5:30 p.m. As previously discussed in connection with Rupe's discharge, he and Macias were reprimanded by McWil- liams and Schroeder on May 1 for slow performance30 This was the only time Macias' work was ever criticized. On this day, Macias left the plant at 4:30 p.m. without working any overtime or directly notifying supervision. On May 2, Macias punched out about 5:15 p.m. after he had put in approximately 3/4 of an hour overtime. Earlier that day Schroeder had permitted Macias to leave the plant for several minutes to secure auto license plates. On the next day, May 3, Macias punched out at 5 p.m. before completing a full hour overtime. However, he credibly testified, without contradiction, that on two of the foregoing occasions McWilliams was at the door and saw him leave but made no comment regarding his departure. Earlier in the day, McWilliams told Macias that he "was doing a good job and keep it up, and not to let any outside interference get in . . . [his] mind and . . . [he] would get ... [his] money." There is also uncontroverted testimony by Schroeder, which is credited, that after Macias' departure Carter reported to him that Macias came to him and said he was leaving and that before he (Carter) could say anything, Macias was gone. Schroeder thereupon pulled Macias' timecard from the rack. The next morning Macias arrived at the plant at the usual time. When he found his timecard missing from the rack, Macias asked McWilliams about it. McWilliams SIT Schroeder testified that since Macias' personnel record showed that he was granted a 5-cent raise on April 30, the job performance review must have taken place on an earlier date. u Macias was unaware of the increase and never received it because of his termination on May 4. so On previous occasions, Macias and other employees were offered overtime which they declined without being disciplined. There is no question that the Respondent's overtime policy has been a voluntary one with the employees being under no obligation to accept offered overtime. ao Macias testified that he did not work slower on thisjob than he did on other assigned jobs. However, he admitted that he did not say anything in response to the criticism. Si The foregoing findings reflect the substantially undisputed testimony of Macias and Schroeder. 32 According to Schroeder's testimony, Broyhill had learned that employee Eldridge had made certain remarks in the plant that he did not responded that Schroeder would speak to him later concerning that matter. Thereafter, Schroeder called Macias into his office and questioned him about his early departure the day before which Schroeder declared revealed to him that he didn't care for his job. Macias disputed it, asserting, in effect, that he didn't realize he was required to work overtime. Schroeder, nevertheless, asked Macias whether he wanted to sign a quit slip. Macias refused for the stated reason that he had not quit . At this point, Schroeder discharged him.31 Schroeder conceded that he had never previously warned Macias against leaving the plant early. However, he testified, he was not inclined to give Macias another chance because he was not impressed with an employee who walked off a job without working the hour overtime he had previously agreed to do. Moreover, to justify his action, Schroeder testified to a suggestion he had received on May 3 from President Broyhill that, if he had a problem with employees refusing to work overtime, to replace them.32 Finally, Schroeder specifically denied that Macias' April 30 handbill distribution motivated his discharge decision. 5. McWilliams' supervisory status The Respondent disavows responsibility for McWil- liams' antiunion conduct related above on the ground, among others, that he was not a supervisory employee.33 The relevant evidence, developed in the representation 34 and complaint hearings, are as follows : At the time of the significant events herein Supervisor Schroeder was in charge of the assembly department, which employed 12 to 15 employees, and of the adjacent engineering department whose rank-and-file complement consisted of 4 employees. Assisting Schroeder in the assembly department were McWilliams and Lee Carter.35 Schroeder testified that Carter was his number two man and an assembly line foreman to whom he would issue directions and that Carter and McWilliams, another assembly line foreman, would then jointly arrange the work schedule, determining the particular assignment for each employee. It was McWilliams' responsibility-and apparently Carter's, too -to see that the employees' jobs were properly and diligently performed and to give employees other work upon completion of their assigned tasks. As part of their duties, McWilliams and Carter also assembled equipment intend to work overtime, regardless of consequences, and for this reason Broyhill made the above suggestion to Schroeder. as The same issue of supervisory authority is presented in connection with McWilliams' eligibility to vote in the representation election which will be considered below 34 At the consolidated hearing, the parties were informed that, in addition to taking testimony regarding McWilliams' alleged supervisory authority, I would take official notice of Vice President Lott's testimony given in the representation hearing on behalf the Respondent concerning the status of McWilliams, Lee Carter, James Stovall, and Laverle Miller therein described as leadmen and that cross-examination would be permitted with respect to such previously adduced testimony. 35 It appears that in August McWilliams was transferred to the shipping department and that Carter left the Respondent's employ before the representation election. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the latter, however, devoting most of his time to necessary paperwork.36 When Rupe and Macias were first hired, Schroeder sent them to McWilliams whom he identified as their foreman and from whom they would learn about their job and receive their assignments. Indeed, McWilliams and Carter wore gray helmets with the designation "Foreman" imprinted on them, while Schroe- der's bore the designation "Supervisor." There is evidence that, in overseeing the work of Rupe, Macias, and employee Eldridge, McWilliams on occasions criticized and reprimanded them for their performance and, in the case of Rupe and Macias, as discussed above, he also reported them to Schroeder who then talked to them about their performance and subsequently placed adverse reports in their personnel files. Like rank-and-file employees, McWilliams, as well as Carter, was hourly paid, received time and a half for work over 40 hours a week, and punched a timeclock. However, his hourly rate was higher than that of the employees he directed but less than Carter's. It appears that McWilliams and Carter did not possess the authority to hire, fire,37 grant time off, reward, or discipline employees; nor does the record clearly demonstrate that they had the power to make effective recommendations in those respects. Neither McWilliams nor Carter attended management meetings where important business matters and problems were discussed. According to the testimony of Richard N. Lott, the Respondent's vice president, McWilliams and Carter were simply more experienced employees with certain skills but without supervisory authority and belonged in the classification of working foreman or leadman which was established as a result of a 1957 collective-bargaining contract between the Company and an Iron Workers Union.38 In view of the foregoing, I find that, although McWil- liams did not possess the authority to affect the employ- ment status of employees, he did at all material times responsibly direct assembly employees in more than routine fashion, and that, in performing this function, he exercised independent judgment sufficient to bring him within the statutory definition of supervisory employee.39 In any event, even if McWilliams were not a supervisor within the strict meaning of the Act, the record establishes that the Respondent placed him in a position where employees, and particularly Rupe and Macias, could reasonably believe that he spoke on behalf of management and, therefore, I find that his acts are imputable to it,40 whether or not these acts "were actually authorized or subsequently ratified." 41 36 As indicated previously, Carter ordered needed materials, kept records of assigned jobs, and participated in the job performance review of Rupe and Macias 37 I am not persuaded by employee Freeman's testimony that McWil- liams' termination of an unidentified individual about a year or so prior to the hearing was the result of McWilliams' decision or recommendation 38 It appears that this labor organization disappeared from the scene in 1958. 39 Sec. 2(11) of the Act defines the term "supervisor" as meaning . any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or B. Concluding Findings 1. With respect to interference, restraint, and coercion It has been found above that Supervisor Roger Miller questioned employee Freeman concerning the need for a union in the plant and his union sympathies. It has also been found that, with the manifest purpose of discouraging employees from supporting the Union, Supervisor Schroe- der invited employees to his office to discuss their complaints, the Union, and what the Company could do for them; that when employee Rupe and Eldridge availed themselves of the invitation and went to Schroeder's office, Schroeder told them that the Company could do more for the employees than the Union could do and that he would look into a complaint which Rupe had presented on this occasion regarding gasoline fumes in the plant; and that on another occasion Schroeder questioned Rupe concerning the prospects of success of the Union's organizational campaign and whether a union meeting had been held and the extent of employee attendance. Regarding Foreman McWilliams conduct,42 I have found that in several conversations with Rupe McWilliams made inquiries concerning the Union, its prospects of success, whether it had secured "a lot of signed cards," whether a union meeting had been held, and the number of employees who had attended and were interested in the organization. In addition, I have found that McWilliams warned Rupe that the Company would close its plant if the Union succeeded in organizing it and, in a similar vein, McWilliams told Freeman that the Company had shut down the plant 15 years ago on account of a union and then asked Freeman for his opinion of the campaigning union. Finally, it has been found that, while Rupe was distributing handbills outside the plant, McWilliams inquired what he was doing and later in the plant asked employee Eldridge, who had also participated in the distribution, what he had passed out. I find that the foregoing interrogation of employees by the Respondent's supervisors without any demonstrated legitimate reason or assurances to employees against reprisals; the solicitation of employee complaints and grievances which the Company would try to remedy; and the threat of plant closure reveal a course of conduct which necessarily interfered with, restrained, and coerced em- ployees in the exercise of their self-organizational rights in violation of Section 8(axl) of the Act. However, I find Schroeder's characterization of union representatives as crooks to be a privileged expression of opinion which the Act does not prohibit. Furthermore, except as found to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment 4o international Association of Machinists (Seasick Corp.) v. N.L.RB., 311 U.S. 72, 80; N LR B v. Dayton Motels, Inc, d/b/a Holiday Inn of Dayton, 474 F.2d 328, 330-331 (C A. 6, 1973) 41 Sec 2(13) of the Act 42 it is noted that McWilliams ' antiunion conduct occurred prior to the May 17 representation hearing where the question of his supervisory authority was first raised. BROYHILL COMPANY 295 above, I find unsubstantiated other acts of interference, restraint, and coercion alleged in the complaint. Accord- ingly, dismissal of the relevant paragraphs of the complaint is recommended. 2. With respect to Rupe's discharge The General Counsel contends that Rupe was dis- charged because of his protected union activities and sympathies. Denying that it was so motivated, the Respondent insists that it was Rupe's slow performance that brought about his termination. The question whether an employee was illegally termi- nated because of his union support or other concerted activities is not susceptible of easy determination as it involves an inquiry into an employer's state of mind. In resolving this question, therefore, all the facts and circumstances surrounding the separation must be careful- ly appraised with due recognition being accorded to the settled principle that an employer may terminate an employee for any reason, good, bad, or indifferent, provided he is not motivated by the employee's union or other concerted activities. Of course, it is equally well settled that the existence of a "justifiable ground for dismissal is no defense if it is a pretext and not the moving cause." 43 From a careful analysis of the record, I find that the evidence establishes that Rupe's discharge was prompted by his union activities and not by the reason advanced by the Respondent. Without repeating the previously dis- cussed details, it is clear that Rupe was terminated on May 3 by Supervisor Schroeder, who admittedly was well aware of his union advocacy, only 2 1/2 weeks after Schroeder had rated him to be a satisfactory employee and granted him a 5-cent hourly wage increase following the comple- tion of his probationary period.44 Moreover, the separation was effected without any prior warning to Rupe that he risked discharge if his performance did not improve and occurred at the peak of its season when it was desperate to fill and ship its customers' orders. Indeed, Schroeder testified that, if the orders were not shipped by the middle of May, the Respondent's customers would probably cancel the orders because delivery after that date would be too late for them to utilize the ordered spray equipment. Viewed in this context and against the background of the Respondent's opposition to the Union's organizational efforts, Rupe's sudden discharge, coming as it did before the end of the workweek, supports the inference that it was motivated by Rupe's union advocacy rather than by his purportedly slow performance. Reinforcing this inference of discrimination is the fact that the Respondent did not retain Rupe to help with the completion of customer orders at least until the end of the busy season which was expected to last only a few weeks more, especially since it was highly unlikely that a replacement could be obtained who would possess the experience in the job which Rupe had already acquired. Significantly, no legitimate business reason was shown to justify the Company's precipitate action in getting rid of Rupe. Moreover, the Respondent's failure to retain Rupe is even more astonishing since in the preceding January, just before the beginning of the busy season, the Respondent deferred for 1 week the discharge of a crew of part-time college students, despite their slow performance, because, as Schroeder testified, it was necessary for him to get the work out. At the hearing, Schroeder was unable to give a reason why Rupe was not accorded the same treatment 45 The Respondent argues, however, that since Schroeder was aware that Rupe was a union adherent at the time of his job performance review, if Schroeder were discrimina- torily minded, he would have terminated Rupe at that time instead of giving him a satisfactory rating and a wage increase. While this may be a factor militating against a finding of discrimination under other circumstances, it does not preclude such a finding here . As previously shown, following the performance review the Union filed a representation petition and the Respondent promptly undertook to make known to its employees its opposition to the Union. In addition, Schroeder invited the employees in his department to come to his office to discuss their complaints and the Union and to learn what the Company could do for them. Thereafter, when Rupe and Eldridge availed themselves of Schroeder's invitation, Schroeder informed them that the Company could do more for the employees than the Union could do and accepted Rupe's complaint about gasoline fumes in the plant for considera- tion. When Rupe returned 2 days later and was advised by Schroeder that the gasoline fume problem was not yet remedied, an argument ensued between them in which Rupe declared that the Union would do much more for the employees than the Company would do. Schroeder disagreed, accusing union representatives with being crooks. Rupe challenged the latter remark and informed Schroeder that he was the brother-in-law of Union Representative Sturgeon, one of the organizers at the plant. On a subsequent occasion, Schroeder questioned Rupe about the Union's prospects of success in its organizational campaign and the extent of employee attendance at a union meeting, as did Foreman McWilliams who, among other things, also separately warned Rupe and employee Freeman of the possibility of plant closure if the Union organized the plant. The foregoing evidence of intervening events demonstrates the displeasure with which the Respondent received the progress the Union was making in its organizational campaign and lends further support to the inference of discrimination underlying Rupe's dis- charge. In these circumstances, it also appears to be more than an odd coincidence that, while Rupe was never criticized for unsatisfactory work before his performance review but, on the contrary, was complimented, he should thereafter be reprimanded by Schroeder and McWilliams. Indeed, on one occasion, he was even reprimanded by McWilliams for helping another employee in assembling a unit, although it was the established practice for employees to furnish such assistance to each other. Casting further 43 N.L.R B v Solo Cup Company, 237 F.2d 521, 525 (C.A 8, 1956). 45 It is also noted that the college student employees , although slow 44 As indicated previously, one employee was discharged and another workers, were kept in the Company's employ for approximately 4 months was given the option to qwt before the end of their probationary period before their discharge, which was about 2 months longer than Rupe's because of their unsatisfactory performance tenure. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD doubt on the Respondent's motives, is the fact that Schroeder's criticism of Rupe's work began a day after he had participated with Macias and two other employees46 in the distribution of handbills to fellow employees outside the plant. In sum, I find that Rupe's purported slow performance is, at best, a pretext designed to hide the Respondent's true motivation to discourage union membership and interest among the employees . The fact that others at least equally active on behalf of the Union were not terminated does not establish, as the Respondent seems to suggest, that discrimination was not practiced against Rupe. Obviously, an employer is not required to discharge all union activists before being found in violation of the Act. Accordingly, I conclude that Rupe was discharged on May 3 in reprisal for his union sympathies and activities and that such conduct necessarily discouraged union membership in violation of Section 8(aX3) of the Act and interfered with, restrained, and coerced employees in the exercise of their rights in violation of Section 8(axl) of the Act. Even were it assumed that Rupe's slow performance entered into the Respondent's decision to terminate him, I find that his protected union activities were a substantial cause of his discharge and that the same statutory provisions were therefore violated.47 3. With respect to Macias' discharge I find that Macias' discharge was also discriminatorily motivated. The Respondent argues, however, that it was Macias' departure from the plant on May 3 before finishing a full hour overtime, as he had previously agreed to do, that caused his termination the following morning, and not his union support, as the General Counsel alleges. It is true that on April 30 Macias had agreed to work an hour overtime every day during that week and that on May 3 he nevertheless left the plant about 5 p.m., after working a half hour overtime. However, according to Supervisor Schroeder, who made the discharge decision, he was informed by Foreman Carter that Macias had told him he was leaving at that time but that Carter said nothing to Macias to the effect that he was required to remain, much less, that he risked discharge if he left. It appears to me that the reason Macias left early was that he was under the impression that, although he had agreed to work an hour overtime, it was not mandatory that he do so. This is precisely what Macias indicated to Schroeder at the time of his termination. Indeed, this belief was not entirely baseless for not only was it the Company's general policy that overtime was to be a matter of personal choice , but when Macias clocked out on May I at 4 :30 p.m. without performing any overtime work at all and on May 2 at 5:15 p.m., about 15 minutes before completing an hour overtime, Foreman McWilliams observed his departure but nevertheless did not stop or caution him against leaving. In these circumstances, Macias' discharge without any prior warning that he was subject to termination for not working a full hour overtime seems to suggest that the Respondent had suddenly become more concerned with finding an excuse to get rid of Macias rather than with obtaining as much production from him as possible, which the Company's needs demanded. Probably, Macias' distribution of handbills together with Rupe at the main plant gate on April 30 might well have been the source of the Respondents concern. When to this is added the fact that Macias was a capable employee who only a few days earlier had received a satisfactory rating from Schroeder at the end of his probation period and a wage increase; the fact that, although Schroeder was under great pressure to meet customer s demands for delivery of their orders before the middle of May, he saw no necessity to defer the discharge; the fact that Schroeder was concededly aware of Macias' union sympathies and activities, which included his distribution of union handbills; and the fact that the Respondent was undeniably opposed to the unionization of its plant, the discriminatory motivation underlying Macias' discharge becomes more apparent . Further sup- porting such a finding is McWilliams' cautionary remark to Macias on May 3, when praising him for the good job he was doing,48 that he should not allow any "outside interference" with his work, apparently alluding to the union movement. In short, I find that the reason assigned by the Respondent for the discharge of Macias is, as in the case of Rupe, but a pretext designed to cloak its true antiunion motivation. Accordingly, I conclude that the Respondent discriminated against Macias in violation of Section 8(aX3) and (1) of the Act. Moreover, assuming that Macias' failure to work a full hour overtime did play a part in the discharge decision, I reach the same conclusion because I find that Macias' union sympathies and support would still be a substantial cause of the termination.4e IV. THE REMEDY Pursuant to Section 10(c) of the Act, as amended, it is recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent unlawfully discharge employees Rupe and Macias because of their protected union activities. To remedy these violations, it is recommended that the Respondent offer Rupe and Macias immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them by payment to each of them of a sum of money equal to that which each one normally would have earned from the date of his discharge to the date of the offer of reinstatement, less his net earnings during the said period. Backpay shall be computed with 16 Previously, only union representatives distributed union literature . Schroeder told him and Rupe they were packing three booms too slowly. 47 J. P. Stevens & Co., Inc. v. N.LR.B., 380 F.2d 292,300 (C.A. 2, 1967), Admittedly, this incident did not enter into Schroeder's decision to cert. denied 389 U.S. 1005 (1967); N.LLB. v. Jamestown Sterling Corp., 211 discharge Macias. F.2d 725, 726 (C.A. 2). as J. P. Stevens and Jamestown Sterling, supra 48 The only time Macias was criticized for his work was on May 1 when BROYHILL COMPANY interest on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. To facilitate the computation, as well as to clarify the named employees' right to reinstatement, the Respondent shall make available to the Board, upon request, payroll and other records necessary and appropriate for such purposes. The posting of a notice is also recommended. In view of the nature of the discrimination for union support and sympathies which "goes to the very heart of the Act," 50 there exists the danger of the commission by the Respondent of other unfair labor practices proscribed by the Act. Accordingly, I recommend that the Respon- dent be ordered to cease and desist from in any other manner infringing upon the rights guaranteed employees in Section 7 of the Act.51 Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce 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 discriminating in regard to the hire and tenure of employment of Donald L. Rupe and Roy H. Macias to discourage membership in, and activities on behalf of the Union, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing conduct; by inviting employees to submit their complaints and grievances to it which it offered to consider for correction, for the purpose of discouraging their support of the Union; by questioning employees concerning the need for a union in the plant, their union sympathies, the prospects of success of the Union's organizational efforts, the extent of attendance at such meetings, the number of employees who were interested in the Union and had signed union authorization cards, and the distribution of union handbills; and by threatening plant closure if the Union succeeded in organizing the employees , the Respondent interfered with, restrained, and coerced employees in the exercise of their statutory rights within the meaning of Section 8(a)(l) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent did not engage in conduct in violation of Section 8(a)(1) of the Act other than in the respects found above. so N L R B v Entwistle Mfg. Co., 120 F.2d 532, 536 (C A. 4). 51 N L.R.B v. Express Publishing Company, 312 U.S. 426, 433. 52 This objection reads, as follows: 1. To failure and refusal of the Regional Director and the Board to schedule the election on a date when all eligible voters would have an opportunity to participate in this question concerning representa- tion. The Regional Director held that seasonal employees (college V. THE REPRESENTATION PROCEEDING 297 A. The Objections to the Election As indicated above, the Respondent withdrew three of the four objections it had filed to the election which was conducted on August 16. The one objection remaining for resolution" relates to the date the Regional Director designated for holding of the election. It is the Respon- dent's contention that the Regional Director , in contraven- tion of established Board policy, failed to schedule the election at a date at or near the Company's first seasonal peak following the Decision and Direction of Election, namely, October 5, and that he thereby deprived regular part-time employees in the appropriate unit of the opportunity to vote. These employees, the Respondent asserts, were principally college students whose permanent residences were located outside the area but who normally returned to the area and the Respondent's employ in September when their summer vacation ended an d school began. It appears to me that scheduling the date for a representation election is a matter falling within the special competence of the Regional Director subject, of course, to review by the Board. From an examination of the documents in the representation case, I find that the Respondent in that proceeding raised the question of deferring the election for the same reasons urged before me and that the Regional Director in his Decision and Direction of Election issued on June 15 , as clarified by his Order of June 26, denied the Respondent's application. On August 6, this ruling was sustained by the Board when it denied the Respondent's Request for Review on the ground that the request raised "no substantial issues warranting review." In these circumstances , it appears to me that the Regional Director either inadvertently or mistakenly included the objection in question among the objections initially referred to me for hearing and consider- ation. For this reason, and since I am bound by the Board's ruling sustaining the Regional Director, I overrule the objection. B. The Challenged Ballots Of the eight challenged ballots, the parties are in agreement that the challenges to those cast by Laverle Miller and Gerald C. Cook should be withdrawn and that their votes should be counted. The parties also stipulated that the challenge to the ballot of Earl McFarlin should be sustained. It is therefore recommended that the challenges to these three ballots be disposed of in accordance with the parties' stipulation. Having found above that Donald L Rupe and Roy H. Macias were discriminatorily discharged before the elec- tion, I find that they were eligible to vote and accordingly students and area farmers) of the Employer would be eligible to vote. An election, however, was directed on August 16, 1973 , a time well within the Employer's slack season . Seasonal employees were not able to vote and, as a result, only 50 out of 86 eligible voters cast ballots. Approximately 42 percent of the eligible voters were precluded from voting due to the date of the election as directed by the Regional Director. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recommend that the challenges to their ballots be over- ruled and that their ballots be opened and counted. As I have also found above that Charles McWilliams was a supervisory employee, the challenge to his ballot should be sustained. This leaves for determination the challenges to the remaining two ballots cast by James Sjovall and Jeffrey B. Schroeder. With respect to Sjovall, the Regional Director in his Decision and Direction of Election issued on June 15 included him in the appropriate unit as a leadman who did not possess supervisory authority .53 In his order clarifying and amending Decision and Direction of Election issued on June 26, the Regional Director made provision for the leadmen to vote subject to challenge because an adminis- trative investigation of the unfair labor practice charge in the complaint case herein had "raised some doubt as to the correctness of . . . [the inclusion of leadmen in the unit] and the completeness of the record testimony regarding leadmen." Consequently, the Regional Director stated that he was making no determination regarding the supervisory status of the named individuals . The correctness of the Regional Director's modification of his leadmen determi- nation was also submitted to the Board in the Respon- dent's Request for Review mentioned above and the Board there also sustained the Regional Director 's amended ruling regarding leadmen. For this reason, at least, I find, contrary to the Respondent's contention, that the admis- sion of additional testimony in the instant consolidated hearing concerning Sjovall's supervisory status was sanc- tioned and proper. The evidence developed at the consolidated hearing establishes that before the scheduled election was held Sjovall replaced Foreman McWilliams in the assembly department when the latter was transferred out of that department to a shipping job and that Sjovall assumed essentially the same duties and responsibilities previously performed by McWilliams . As I have found that McWil- liams was a supervisor in the assembly department within the statutory definition, I reach the same result with respect to Sjovall. Accordingly, I recommend that the challenge to Sjovall's ballot be sustained. With respect to Jeffrey Schroeder, he was a high school student who worked on a regular part-time basis in the parts department under Supervisor Tongish.54 He is the son of Supervisor Ralph Schroeder, mentioned earlier in this Decision, who is neither a stockholder nor officer of the Company. At the time of the election, Jeffrey Schroeder was under 15 years of age and resided in his parents' home. The Union challenged his eligibility to vote on the ground that he was a relative of management. At the time of the hearing, it argued additionally that he was disqualified from voting because he was employed in violation of the Federal Child Labor Law. I find no merit in the Union's position. 53 In the Decision and Direction of Election, McWilliams, Lee Carter, and Laverle Miller were also included along with Sjovall in this nonsupervi- sory group of four leadmen. Before the election McWilliams was transferred out of the assembly department to a shipping job and Carter left the Company's employ. As indicated above, Miller's voting eligibility was conceded. 54 Jeffrey Schroeder was in the Respondent's employ from May 31 until August 24, 1973. It is clear that Jeffrey Schroeder is not a relative of management as defined in Board cases. Furthermore, there is no evidence that during his employment he enjoyed a special status in his job which allied his interests with those of managementS5 As for his employment allegedly in violation of Federal law, I am aware of no Board precedent that would justify depriving an employee in the appropri- ate unit of his right to vote in a representation election on that ground. As Jeffrey Schroeder was on the Company's payroll during the eligibility period preceding the election, I find he was entitled to vote. Accordingly, it is recom- mended that the challenge to his ballot be overruled and that his ballot be opened and counted. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, as amended, I hereby issue the following recommend- ed: ORDER 56 The Respondent, the Broyhill Company, Dakota City, Nebraska, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in District Lodge No. 162, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, by discharging employees or in any other manner discriminat- ing against them in regard to their hire or tenure of employment or any term of condition of employment. (b) Requesting employees to submit their grievances and complaints to it and offering to remedy them for the purpose of discouraging them from supporting a union. (c) Coercively interrogating employees concerning the need for a union in the plant, their union sympathies, the prospects of success of the organizational efforts of the above-named Union, union meetings, the extent of attendance at such meetings, the number of employees who were interested in the above-named Union and signed authorization cards, and the distribution of union hand- bills. (d) Threatening to close the plant down if the Union succeeded in organizing the employees. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Donald L. Rupe and Roy H. Macias, immediate and full reinstatement to their former jobs, or if 55 Pargas of Crescent City, Inc., 194 NLRB 616; Foam Rubber City #2 of Florida, Inc., 167 NLRB 623. 56 In the event no exceptions are filed as provided by Sec. 102 .46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. BROYHILL COMPANY 299 those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of their unlawful discharge, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful in analyzing the amount of backpay due and the right to reinstatement and employment under the terms of this recommended Order. (c) Post at its plant in Dakota City, Nebraska, the attached notice marked "Appendix." 57 Copies of said notice, on forms - provided by the Regional Director for Region 17, after being duly signed by the Respondent's authorized representative, shall be posted by the Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 17, in writing, within 20 days from the receipt 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 violations of Section 8(a)(1) of the Act other than those found herein. IT IS ALSO RECOMMENDED that the objections to the election filed by the Respondent in Case 17-RC-7166 be overruled. IT IS ALSO RECOMMENDED that the challenges to the ballots cast by Laverle Miller, Gerald C. Cook, Donald L. Rupe, Roy H. Macias, and Jeffrey B. Schroeder be overruled and that their ballots be opened and counted; and that the challenges to the ballots of Earl McFarlin, Charles McWilliams, and James Sjovall be sustained. 57 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." To refrain from any or all of those activities. WE WILL NOT discharge or lay off any employee or otherwise discriminate against him because of his membership in, or activities on behalf of, District Lodge No. 162, International Association of Machin- ists and Aerospace Workers, AFL-CIO, or any other labor organization. WE WILL NOT request employees to submit their grievances and complaints to us or offer to remedy them for the purpose of discouraging them from supporting a union. WE WILL NOT coercively interrogate our employees concerning the need for a union in the plant, their union sympathies, the prospects of success of the organizational efforts of the above-named Union, union meetings, the extent of attendance at such meetings, the number of employees who are interested in the above-named Union and signed union authoriza- tion cards, and the distribution of union handbills. WE WILL NOT threaten to close the plant down if the Union succeeded in organizing the employees. WE WILL NOT in any other manner interfere with or coerce employees in the exercise of their right to self- organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through represent- atives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer Donald L. Rupe and Roy H. Macias immediate and full reinstatement to their former jobs, or if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniori- ty or other rights and privileges, and make them whole for any loss of earnings suffered by reason of their unlawful discharge. All of our employees are free to become, remain, or refrain from becoming or remaining members of any labor organization. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The Act gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection Dated By BROYHILL COMPANY (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 616 - Two Gateway Center, Fourth At State, Kansas City, Kansas 66101, Telephone 816-374-4518.