Synalloy Corp.

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Blackman-Uhler Chemical Division-Synalloy Corpo- ration and International Molders & Allied Workers Union, AFL-CIO-CLC. Cases 11-CA-5800 and 11-RC-3936 August 29, 1975 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On April 23, 1975, Administrative Law Judge Frank H. Itkin issued the attached Decision in this proceeding.' Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recom- mended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders in Case 11-CA-5800 that the Respondent, Blackman-Uhler Chemical Division-Synalloy Cor- poration, Spartanburg, South Carolina, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. IT IS FURTHER ORDERED in Case 11-RC-3936 that the Regional Director for Region 11 shall open and count the ballots of Cynthia Holcomb, Brenda Tay- lor, Carolyn Pugh, Vivian Coggins, Cynthia Dodkin, and Raymond Roberts. Therefore, the Regional Di- rector shall cause to be served on the parties a re- vised tally of ballots including therein the count of the above-mentioned ballots, and shall issue the ap- propriate certification. I The Board issued an Order Directing Hearing on March 24, 1975 (217 NLRB No. 7). 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F.2d 362 (C.A 3, 1951). We have carefully examined the record and find no basis for reversing his findings DECISION FRANK H. ITKIN, Administrative Law Judge. These con- solidated cases were tried before me on November 25, 26, and 27, 1974, at Spartanburg, South Carolina. Unfair labor practice charges were filed by the Union on July 15 and were amended on October 16, 1974, in Case 11-CA-5800. An unfair labor practice complaint issued on September 30 and was amended on October 21, 1974. The Board's Re- gional Director for Region 11 issued a Report on Chal- lenges and Objections, Direction and Order Consolidating Cases, dated November 7, 1974, in Case 11-RC-3936. The Regional Director ordered that Cases I1-CA-5800 and 1 I- RC-3936 be consolidated for the purpose of hearing, rul- ing, and decision with respect to the issues raised pertain- ing to 11 challenged ballots in the related representation proceeding. See Blackman-Uhler Chemical Division-Synal- loy Corporation, 217 NLRB No. 7 (1975). The principal issues raised in the unfair labor practice proceeding (Case 1l-CA-5800) are whether Respondent Company violated Section 8(a)(1) and (3) of the National Labor Relations Act by coercively interrogating employees about union activi- ties; by warning and threatening employees with reprisals because of their union activities; by granting employees a wage increase in an attempt to undermine employee sup- port of the Union; and by discharging employees Vivian Coggins, Carolyn Pugh, Lynn Carnes, Brenda Taylor, Cynthia Dodkin, and Cynthia Holcomb on July 12, 1974, in order to discourage employee union activities. With re- spect to the issues raised in the related representation pro- ceeding (Case I I-RC-3936), 5 of the 11 persons whose bal- lots were challenged I are also alleged to be discriminatees in Case 11-CA-5800 and the pertinent evidence and con- tentions are discussed below. Two of the persons whose ballots were challenged 2 are, as stipulated before me, not eligible to vote in the representation proceeding and, there- fore, the challenges to their ballots are sustained. The evi- dence and contentions pertaining to the remaining four persons whose ballots were challenged 3 are treated in sec- tion IV, infra. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by all counsel, I make the following findings of fact and con- clusions of law: FINDINGS OF FACT 1. INTRODUCTION; JURISDICTION Respondent Company, a South Carolina corporation with facilities in Spartanburg, South Carolina, is engaged in the manufacture of dye stuffs, pigments, and intermedi- aries. During the prior 12-month period, Respondent Com- pany received goods and materials valued in excess of $50,000 which were transported directly from outside of South Carolina. I find and conclude that Respondent Company is an employer engaged in commerce within the i Holcomb, Taylor, Dodkin, Pugh, and Coggins Alexander Nichols and Jerry Crocker. i Robert Walker , Floyd Morton, Raymond Roberts, and Debbie Peeler. 220 NLRB No. 14 BLACKMAN-UHLER CHEMICAL DIVISION 53 meaning of Section 2(6) and (7) of the Act. And I find and conclude that the Charging Party-Petitioner, as stipulated, is a labor organization within the meaning of Section 2(5) of the Act. H. THE UNION ATTEMPTS TO ORGANIZE THE COMPANY'S EMPLOYEES ; MANAGEMENT'S CONDUCT DURING THE ORGANIZATIONAL CAMPAIGN A. The Employees Sign Union Cards and Attend Union Meetings; Management Questions Employees Employee Carolyn Pugh testified that, prior to her layoff on July 12, 1974, she worked as a technician in Respondent Company's customer service laboratory. Pugh attended the first union meeting on June 12, 1974; she signed a union card and solicited her coworkers to sign union cards. Pugh's immediate supervisor is Charlotte Vassey. The Company's plant manager is Kenneth Foster. Pugh re- called that about June 26, 1974, Plant Manager Foster called employee Pugh into his office. Only Foster and Pugh were present. Pugh testified: He [Foster] said he had heard that there was some trouble down in Customer Service Lab and did I [Pugh] know what the trouble was; that he felt like I knew what it was, and he asked me, if I-didn't I like my supervisor, or would [I] rather work for a man. And I told him I would rather work for a man. And he told me that he thought I knew a lot more than I let on. And some day that job would be vacant, my supervisor's job, and that if I knew I was going to get it, would I still think a man would be better. And I said I thought he would. Employee Catherine Wease is employed by Respondent Company as a secretary in the customer service laboratory. Vassey is her supervisor. Wease recalled that about July 10, 1974, Plant Manager Foster called her into his office. Wease explained: He [Foster] called me [Wease] into his office about 2 or 2:30, which is the first time he has ever called me into his office . . . he said it was just routine checking on Company policy, was I satisfied with my job... . And then he went on to say that he knew that there was trouble within our Lab and within the plant and that there was two departments that the trouble was not in and that there was between three to five trou- blemakers in our Lab and that those people had to be dealt with and the unrest had to be straightened out .... And he went on to say that the middleman could be hurt if he stayed in the middle. Wease recalled that shortly thereafter, about July 17, in the plant parking lot, Foster again talked to her, ... about the middleman being hurt and that I [Wease] should speak out my opinion because my fel- low workmates were speaking out theirs and I should talk them down; referring that I was against the Union. Employee Lynn Carnes, prior to her layoff on July 12, 1974, worked as a technician in the customer service labo- ratory. She signed a union card and attended the union meeting in June 1974. Carnes related how she asked co- worker Carolyn Estler "if she [Estler] wanted to sign a card .. " 4 Estler refused and said that "once before the Union had tried to come into the plant . . . "; that " .. . her [Estler's] name got into it before and she didn't want her name in it again . . . "; that " . . . she [Estler] was going to do something about it before it got started this time . . . "; and that " . . . she [Estler] was going to talk to Mrs. Vassey.... " Estler was observed going into Vassey's office. Estler, after speaking with Vassey in Vassey's office, related to Carnes that Estler had "told [Vassey] about the Union being started, trying to get start- ed down there.... " 5 Employee Cynthia Holcomb testified that during late June 1974, in the customer service laboratory, Plant Man- ager Foster asked employees: ". . . when is this Union going to get off the ground" or "when is the Union going to get started." There was no response by the employees to this question. Employee Cynthia Dodkin, also employed in the customer service laboratory prior to her layoff on July 12, recalled that Plant Manager Foster asked employees in the customer service laboratory during late June 1974: "... I wonder when the Union is going to get going strong." Plant Manager Foster, although generally denying vari- ous statements attributed to him by the employee witness- es, acknowledged that about June 26, 1974, he spoke with employee Pugh in his office. Foster testified: ... we had some difficulty around the plant off and on for some time; generally, when we had unrest or problems, I [Foster] had resorted to the mechanism of interviews to attempt to do something about the prob- lems.... So, I interviewed several, two or three of the girls, in the Service Laboratory as to what their problem was; in terms of why they were malcontent. Foster claimed that he asked the interviewed employees "... what their opinion of their supervisors were; what their opinions of their working conditions . . . [and] pay scales were ; but in no case did I ask them about a Union or mention a Union.... " However, as Foster acknowl- edged, he had been informed earlier, about June 20, that there was union activity in the plant. Foster specifically recalled that about June 20 employee Kenneth Hutchins had revealed to him that there was union activity in the plant. Foster then questioned his supervisors "if they had heard anything about Union activity." Thereafter, between June 20 and June 27, Supervisor Vassey apprised Foster "that one of the girls told her [Vassey] about the activity in the Service Laboratory." As Foster explained: ". . . [Vas- sey] told me that one of her girls had told her that there was Union activity." Supervisor Vassey, although present at the hearing, did not testify.6 4 Estler is also spelled in the record as Easter 5 As discussed infra, Company President Erwin Thornton acknowledged, in effect, that Supervisor Vassey had related information to him about em- ployee union activities and that Vassey had learned this information from employee Estler 6 The Union filed a representation petition in Case I I-RC-3936 on July 18, 1974. A Stipulation for Certification Upon Consent Election was ap- Continued 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Company Lays Off Six Employees in the Customer Service Laboratory and Grants Remaining Employees a Pay Raise Erwin Thornton, Respondent Company's president, ac- knowledged that about June 23 or 24, 1974, . I [Thornton] was told by Mr. Foster that we had Union activity in the Customer Service Lab, and then I was told by Mrs. Vassey that we also had Union activity in the Customer Service Lab. . . . Mrs. Vas- sey indicated to me that the number was probably substantial, engaged in the activity. Thornton recalled that Vassey had mentioned to him "the name of the lady that informed [Vassey]" about the union activity; the informant was employee Estler (see subsection A, supra). When asked if any names of employees in the customer service laboratory were revealed during this con- versation with Vassey, Thornton could not "recall any spe- cifics." Vassey, as stated, did not testify. On Friday, July 12, 1974, between 2:30 and 3 p.m., cus- tomer service laboratory employees Coggins, Pugh, Carnes, Taylor, Dodkin, and Holcomb were called into Vassey's office one at a time and told by Vassey that they were being laid off. The employees had been given no advance notice of the layoff and were not permitted to finish their shift, which was to end at 5 p.m. that day. Plant Manager Foster claimed that he first learned of the decision to lay off the employees on Thursday, July 11. Company Presi- dent Thornton claimed that it was his decision "to termi- nate the services of the ladies in the Laboratory." ... because I had to cut overhead and we didn't need that many employees in the Customer Service Lab. Thornton asserted that he "had to cut overhead" "because of the decline in the use of cotton. For at least the prior two years, we had an earning slide." However, Thornton also testified: Q. Now, on this day of July 12, 1974, when you termi- nated the services of the Lab employees, I believe your testimony was that you didn't have work for them to do. Would you give us some background on that? A. Well, our Customer Service Lab is a promotional type laboratory, it is run for the salespeople, as pre- vious testimony had disclosed. The salespeople bring requisitions in and that's the main function of this laboratory to serve those requisitions. About a month prior to July 12, maybe five weeks, I had told our Vice-President of Sales that I wanted him to pull our salespeople in from selling any more Bucrons or getting any more new customers and I also limited him to certain colors because of our produc- proved by the Regional Director on August 16. A Board-conducted election was held on September 12. Of approximately 120 eligible voters, 53 votes were for Petitioner, 49 were against the participating labor organization, and there were, as stated, I I challenged ballots, which include 5 of the 6 alleged discnmmatees tion problem. We were beginning to run into very em- barrassing situations with new customers who we cul- tivated because they were ordering and we weren't able to supply because of our production lag; and we'd been fighting this production lag for approxi- mately a year trying to overcome it and each month we thought, "well, next month is it," but the next month never came. Unfortunately in April of '73, I had made a pro- jection and a commitment to my Board of Directors that by July 1 of '73, that we would have enough equipment installed to begin producing Bucrons at the rate of five million dollars annually, sir. Well, July 1 of '74 came around and we were still producing at some- where under two million although we could have easi- ly sold five or six million; but it was simply a problem of production problems and at that point in Bucrons, too many sales. Thornton further claimed: We were so far out-stripping our production that we couldn't fill customer's orders, our back order list stayed too long all the time. ► * s Well, the Service Lab, as I said, is a promotional labo- ratory; it serves no production function and since we needed production at the time we didn't need promo- tion, I could not lay off production workers, or termi- nate production workers, so I had to cut back in the one area that at the time we didn't need, which was more promotion, because our sales were already much better than production. Prior to July 12, 1974, there had been no layoffs at Respondent's plant for some 10 years. And, following the July 12 layoff of the six customer service laboratory em- ployees, there were no layoffs for over 3 months. Thornton acknowledged that only employees in the cus- tomer service laboratory were laid off on July 12 and, im- mediately after their layoff, Mrs. Vassey and I [Thornton] consulted . . . and felt that probably the employees that would be remaining certainly would have to assume a little bit more work than they had been doing and that they deserved more money. A pay raise was then given to the remaining five or six workers in the customer service laboratory. The pay raise ranged from $5 to $15 per week for each remaining cus- tomer service employee. In addition to the foregoing testimony, the six employees related the events attending their July 12 layoff. Employee Dodkin had started working for the Company in Novem- ber 1972. She had received a pay raise about January 1974 and another raise a few weeks prior to her layoff. Dodkin recalled: The morning that we were laid off we went in and got our checks as usual and she [Vassey] informed us that we were going to have to sign our time cards . . . because she was going on vacation early next week BLACKMAN-UHLER CHEMICAL DIVISION .... And then, that afternoon, when we came back from lunch, she called us in, one by one, starting with the lowest in seniority, and laid us off... . Dodkin received her regular salary check that morning and, in the afternoon, she received a severance check, a final salary check, and a vacation paycheck. Dodkin and the five other employees were not permitted to finish their shift that day. Dodkin noted that employees in the Company's nearby disperse laboratory, with less seniority than the laid-off workers, were not laid off. Dodkin testi- fied that various "duties" performed by the employees in the disperse laboratory are "similar" to "duties" performed by employees in the customer service laboratory? Ruth Austin, an employee in the customer service labo- ratory who was not laid off, recalled that "the day they laid off the girls, she [Vassey] told us that we would all get a raise . . ." and the raise "began the next week." Austin received a $15 weekly increase. Austin also testified, in part: She [Vassey] said, now some of this work will have to be taken out of this department... . Further, Austin observed that, following the layoff, We had a lot of work transferred over to Pigment [la- boratory] that we would ordinarily have done in our Lab, but not that was Customer Service work. And, according to Austin, before the July 12 layoff, Vassey "stayed in [her] office." However, after the layoff, Vassey was observed "out on the bench" performing rank-and-file work. Austin claimed that work performed in the nearby disperse laboratory is "exactly the same thing" as per- formed in the customer service laboratory ; however, as stated, there were no layoffs in the disperse laboratory. 7 Employee Carnes, who started working for the Company about Septem- ber 1972, testified to the same general effect . She attended a union meeting in June 1974 and signed a union card . She too claimed that employees in the disperse laboratory, with less seniority than the laid-off customer service laboratory workers, were performing "similar" work and were not affected by this layoff. Carnes had received pay raises in January 1974 and a few weeks prior to her layoff. Employee Coggins, who started working for the Company in August 1972, had signed a union card . She too had received a pay raise a few weeks before her July 12 layoff. Coggins claimed that work performed by person- nel in the disperse laboratory was "similar" to work performed by the laid- off employees who, in some instances, had greater seniority. Employee Hol- comb, who also signed a union card during June 1974, further corroborated the above testimony. Employee Pugh, who started working for the Company about December 1971, asked Vassey on July 12, 1974, ". . if there was any chance of being recalled within the next few months... " Vassey, as Pugh testified, re- sponded : ". . . she [Vassey] didn't see any way that I [Pugh] would be." Pugh also related that work performed in the disperse laboratory is similar to work performed in the customer service laboratory. Pugh had signed a union card and attended a union meeting on June 12, 1974. Employee Taylor, who started working for the Company in June 1971, was a quality control technician in the customer service laboratory when she was laid off on July 12, 1974. She had received a pay raise in June 1974. She had signed a union card, attended a union meeting, and solicited coworkers to sign union cards. Taylor was recalled by the Company about October 14, 1974. Taylor explained that she "had to go back as a new employee "; conse- quently, she lost her "seniority," "vacation," "stock" purchasing, and "pen- sion" benefits Taylor, prior to her layoff, "had just become eligible for the pension plan." Taylor also explained : "The work that I have seen done in the Disperse Lab is similar to some of the work that is done in our [customer service] tab." 55 Sandra Thornton, presently working in the customer ser- vice laboratory, recalled that Vassey said on July 12: "[T]hey were going to start moving the Disperse work back over in the Disperse Lab, back over there on some Satur- days. . . ." Thornton received a $10-per-week increase im- mediately following the layoff. She too observed Vassey performing "physical labor" after the layoff. And, Shirley Guyton, employed in the Company's pigment laboratory, testified that following the layoff "we did some of the Pig- ment work that was sent from the Customer Service Lab f) 8 C. Statements by Supervisors Poltersdorf and Littlejohn Employee Pugh testified that following her layoff, about July 23, she spoke with Otto Poltersdorf on the telephone. Poltersdorf is "Head of Research" for the Company. Ac- cording to Pugh, Poltersdorf said: ... he [Poltersdorf] had asked Burnham Uhler why he let a lot of them good workers go and that [Uhler] had replied that they didn't need a Union in there. Employee-Austin, presently working for the Company, re- called that Poltersdorf had stated in the customer service laboratory, a few days following the layoff: He [Poltersdorf] said he asked Burnham Uhler what happened down there that they laid off those girls. And this is what [Uhler] said, "Hell, the last thing this Company needs is a damn Union." And he [Polters- dorf] said, "well, you sure let some good workers go." Employee Joe Williams, employed in the customer service laboratory, similarly testified: He [Poltersdorf] said that Mr. Uhler was in his office, I believe, and he [Poltersdorf] asked him [Uhler] why they were laid off and Mr. Uhler said, "We didn't need a damn Union down there anyway" or words to that effect... Employee Shirley Guyton, presently working in the Company's pigment laboratory, recalled that Supervisor Sam Littlejohn was overheard saying to coworker Vivian Edwards about July 18 or 19, 1974: ... if the Union was voted in that he [Littlejohn] would no longer be [Edward's] friend, he would be a S.O.B., and that a damn Union was nothing but trou- ble and if it was voted in, she would not be sitting on a stool, like she was then, she would be walking a picket line. Employee Linda Thornton, presently working in the pigment laborato- ry, testified that work in that laboratory is "somewhat similar" to work performed in the customer service laboratory Thornton acknowledged that she had less seniority than the laid-off customer service employees. And, employee Catherine Wease , a secretary in the customer service laboratory, explained : "[R]eally all of our Labs are similar to our [customer service] Lab. We've got a section of each Lab in our [customer service] Lab. The other Labs are more concentrated and they do more extensive work... . 9 Poltersdorf claimed that he "never spoke to Burnham Uhler about peo- ple being let go; I [Poltersdorf] have never discussed this with the top Man- agement." Poltersdorf, however, recalled Uhler saying, in effect, "maybe a year" earlier, "[W]hy do we need a damn Union" and "I [Poltersdorf] thought the same thing." Poltersdorf acknowledged that this statement was "reiterated," "repeated;" "I may have ... I don't remember, repeated it but that was the context of it." 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Littlejohn generally denied making the above statement. And, employee Vivan Edwards testified on direct examina- tion for Respondent: Q. Who is your supervisor? A. Sam Littlejohn. Q. Did you hear Mr. Littlejohn testifying just previ- ous to your testimony here? A. Yes. Q. Do you recall the statement that he repeated that was allegedly-that he had made having to do with a conversation with you, saying that if the Union came in he would be a son of a bitch, and that instead of setting down on that stool you would be walking a picket line. Miss Edwards, did Mr. Littlejohn ever, in fact, say anything like that to you? A. No, sir, he didn't. 10 Ill. DISCUSSION The credible evidence summarized above shows that the Union initiated its organizational effort at Respondent's plant about June 12, 1974. Employees signed union cards and attended union meetings. Employees also solicited their coworkers to sign union cards. Plant Manager Foster acknowledged that about June 20 employee Hutchins re- vealed to him that there was union activity in the plant. Foster also questioned his supervisors "if they had heard anything about Union activity." Shortly thereafter, Cus- tomer Service Laboratory Supervisor Vassey apprised Plant Manager Foster "that one of the girls [in her Labora- tory] told her [Vassey] about the activity in the Service Laboratory." And, Company President Thornton acknowl- edged that about June 23 or 24, I [Thornton] was told by Mr. Foster that we had Union activity in the Customer Service Lab, and then 101 have credited the testimony, as recited above in sec. 11, A, B, and C, of employees Pugh, Wease, Carnes, Holcomb, Dodkin, Coggins, Taylor, Austin, Sandra Thornton, Guyton, Linda Thornton, and Williams. Their testimony, as recited above, is in part mutually corroborative and is also substantiated in part by testimony of Company President Thornton, Plant Manager Foster, and Head of Research Poltersdorf. Supervisor Vassey, as stated, although present at the hearings , did not testify. And, upon the entire record before me, and relying also upon the demeanor of the witnesses, I find that the above testimony of employees Pugh , Wease, Carnes, Holcomb, Dodkin, Coggins, Taylor, Austin, S. Thornton, Guyton, L. Thornton, and Williams is trustworthy and reliable . Insofar as the testimony of Company President Thornton, Plant Manager Foster, and Head of Research Polters- dorf conflicts with the above employee testimony , I do not credit the testi- mony of Thornton, Foster, or Poltersdorf. On this record, I am persuaded that management's representatives in fact made the statements attributed to them by the employee witnesses, as detailed above However, I encounter greater difficulty with respect to the conflict posed by the testimony of employee Guyton, Supervisor Littlejohn, and employee Edwards concerning Littlejohn's statement to Edwards on July 18 or 19, 1974, as quoted above . Having reviewed their testimony, I am persuaded on this record, and relying upon the demeanor of the witnesses , that Supervisor Littlejohn in fact made the statement attributed to him by employee Guy- ton. I was not persuaded by and do not credit Littlejohn's general denial of Guyton's testimony or the denial elicited from employee Edwards. It is undisputed and I find and conclude that Company President Thorn- ton, Plant Manager Foster, Head of Research Poltersdorf , Supervisor Vas- sey, and Supervisor Littlejohn are agents and supervisors of Respondent within the meaning of Sec. 2(11) of the Act. I was told by [Supervisor] Vassey that we also had Union activity in the Customer Service Lab.... Mrs. Vassey indicated to me that the number was probably substantial, engaged in the activity... . Management, in resisting this organizational effort, en- gaged in the following conduct: A. Threats and Coercive Interrogation Customer service employee Pugh credibly testified that Plant Manager Foster called her into his office about June 26. No one else was present. Foster apprised Pugh that he had "heard that there was some trouble down in the Cus- tomer Service Lab.... " Foster asked Pugh if she knew "what the trouble was." Foster, at the same time, informed Pugh that "he thought [she] knew a lot more than [ she] let on.... " Foster also remarked to Pugh that "someday" the "supervisor's job" in customer service "would be va- cant" and if Pugh "knew [she] was going to get it, would [she] still" rather work under the supervision of a man in- stead of a woman. Vassey, as noted, was then Pugh's super- visor. Customer service employee Wease was similarly questioned by Foster in his office. Thus, about July 10, Foster called Wease into his office for the "first time" dur- ing her employment. Foster apprised Wease that "he knew there was trouble within our Lab and within the plant"; "that there was between three to five troublemakers in our Lab"; and "that those people had to be dealt with and the unrest had to be straightened out.... " Foster, at the same time, warned employee Wease that "the middleman could be hurt if he stayed in the middle." Foster subse- quently repeated this warning to Wease in the plant park- ing lot on July 17, following the layoff of the six employees. In addition, Foster openly asked employees working in the customer service laboratory "when is the Union going to get off the ground" or "get started" or "get going strong." Section 7 of the National Labor Relations Act guaran- tees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to en- gage in other concerted activities," as well as the right "to refrain from any or all such activities." Section 8(a)(1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees" in the exercise of their Section 7 rights. The "broad purpose of Section 8(a)(1) is to establish `the right of employees to organize for mutual aid without employer interference' .. " N. L. R. B. v. Exchange Parts Company, 375 U.S. 405, 409-410 (1964). And, an employer violates Section 8(a)(1) by engaging in conduct "calculated to create the impression that the employer was on guard for union activ- ity and intended if need be to take measures designed to prevent the union from gaining a foothold." Dubin-Haskell Lining Corp. v. N.L.R.B., 375 F.2d 568, 571 (C.A. 4, 1967), modified en banc on other grounds 386 F.2d 306 (C.A. 4, 1968), cert. denied 393 U.S. 824 (1968). In assessing em- ployer conduct under Section 8(a)(1), the courts have noted that the "employee is sensitive and responsive to even the most subtle expression on the part of his employer, whose good will is so necessary" for continued employment. BLACKMAN-UHLER CHEMICAL DIVISION N.L.R.B. v. Griswold Manufacturing Company, 106 F.2d 713, 722 (C.A. 3, 1939); N. L R B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618-620 (1969). And, the "test" of inter- ference, restraint, or coercion under Section 8(a)(1) is "whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act." See Time-O-Matic, Inc. v. N.L.R.B., 264 F.2d 96, 99 (C.A. 7, 1959). Applying these principles here, I find and conclude that Respondent Company violated Section 8(a)(1) of the Act as a result of Plant Manager Foster's interrogation of em- ployees Pugh and Wease. The employees were called away from their work stations and questioned by the plant man- ager alone in his office . They were given no assurances against reprisals. They were asked, inter alia, if they knew "what the trouble was." There could be no doubt that Fos- ter was referring to the pending union effort. Foster admit- tedly wanted to discover why the employees were "malcon- tent." Foster made clear to employee Pugh that he had "heard that there was some trouble" in her laboratory and "he thought [she] knew a lot more than [she] let on." Foster also referred to the possibility that employee Pugh might be promoted to the supervisor's position in her section and asked Pugh how that affected her views. In like vein, Fos- ter admonished employee Wease that "there was between three to five troublemakers in our Lab"; that "those people had to be dealt with and the unrest had to be straightened out"; and, at the same time, cautioned employee Wease that "the middleman could be hurt if he stayed in the mid- dle." Foster also openly asked employees in the customer service laboratory, in effect, when is the Union "going to get off the ground or "get going strong." I find and conclude, on this record, that the foregoing interrogation of employees by upper management, accom- panied by threats that employee "troublemakers" had "to be dealt with" and the "middleman could get hurt if he stayed in the middle," plainly tends to interfere with em- ployee Section 7 activities, in violation of Section 8(a)(1) of the Act. B. The Layoffs Respondent asserts that the six employees in the custom- er service laboratory-Coggins, Pugh, Carnes, Taylor, Dodkin, and Holcomb-were laid off for economic rea- sons. The question raised here is whether Respondent, in summarily laying off these six employees on July 12, 1974, was motivated by an unlawful purpose. For, under settled law, "the Board is not compelled to accept the employer's statement" of the reason for the employee layoff "when there is reasonable ground for believing that the ground put forward by the employer was not the true one and that the real reason was the employer's dissatisfaction with" employee union activities. Great Atlantic & Pacific Tea Co. v. N.L.R.B., 354 F.2d 707, 709 (C.A. 5, 1966). And, as the court stated in N.L.R.B. v. Hanes Hosiery Division, Hanes Corp., 413 F.2d 457, 458 (C.A. 4, 1969): Undoubtedly, the fact that a worker takes part in protected activity does not insulate him from dis- charge for legitimate business reasons . . . . But busi- 57 ness reasons may not be used as a pretext for a dis- criminatory firing. N.L.R.B. v. Overnite Transp. Co., 308 F.2d 284, 288 (4th Cir. 1962). And if a desire to stifle protected activity is a factor in the employer's decision, the discharge is discriminatory. Winchester Spinning Corp. v. N.L.R.B., 402 F.2d 299, 304 (4th Cir. 1968); N.L.R.B. v. Dove Coal Co., 369 F.2d 849, 852 (4th Cir. 1966). In the instant case, the credible evidence recited supra shows that there had been no layoffs at Respondent's plant for some 10 years prior to the Union's recent organiza- tional effort. The Union commenced its campaign about June 12, 1974. The six employees in the Respondent's cus- tomer service laboratory signed union cards and partici- pated in organizational activities. About June 20, Plant Manager Foster was first informed by an employee of the union activity. Customer Service Laboratory Supervisor Vassey also informed Foster "about the activity in the Cus- tomer Service Laboratory." As Foster acknowledged, Su- pervisor Vassey "told me [Foster] that one of her girls had told her that there was Union activity." And Company President Thornton acknowledged that about June 23 or 24 he too "was told by" Plant Manager Foster "that we had Union activity in the Customer Service Laboratory." President Thornton further acknowledged that Supervisor Vassey "indicated to me [Thornton] the number" of em- ployees engaged in union activity in the customer service laboratory "was probably substantial." Thereafter, Plant Manager Foster quizzed employees working in the custom- er service laboratory, commencing about June 26. Foster admittedly wanted to find out why the employees "were malcontent." As discussed above, Foster interrogated the employees about protected union activities and threatened them with reprisals, in violation of Section 8(a)(1) of the Act. Thereafter, on Friday, July 12, 1974, without any ad- vance notice and without being permitted to finish out their shift that day, six employees in the customer service laboratory were summarily laid off. Plant Manager Foster claimed that he was first informed of the layoff from Com- pany President Thornton on the prior day, Thursday, July 11. The remaining five or six employees working in the customer service laboratory were promptly given pay raises because, according to Company President Thornton, "the employees that would be remaining would have to assume a little bit more work than they had been doing." No other plant employees received this increase." Employees per- forming "similar work in other laboratories, with less se- niority than the laid-off workers, were unaffected by this layoff. Work previously performed by the laid-off employ- ees was transferred to other laboratories. Supervisor Vas- sey was required to start performing rank-and-file labor. On this record, I am persuaded that the real reason for Respondent's sudden and unusual termination of the six employees in the customer service laboratory was to dis- courage union support among the remaining plant employ- ees. Upper management-by summarily terminating these 11 The laid-off workers, like other plant employees, had received pay rais- es shortly prior to their July 12 layoff There were no subsequent layoffs at the plant for over 3 months. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD six union supporters in the customer service laboratory where union activity was admittedly known to be "sub- stantial"-was motivated in substantial part by a purpose to undermine employee support for the Union. Plant Man- ager Foster had warned employee Wease only 2 days earli- er: ... he [Foster] knew there was trouble within our Lab ... there were between three to five troublemakers in our Lab . . . those people had to be dealt with and the unrest had to be straightened out... . No other plant employees were affected by this layoff. No attempt was made by management to select for layoff less senior employees in other laboratories or departments doing "similar" work. And the remaining five or six cus- tomer service workers were promptly given a weekly pay increase. Moreover, this finding of unlawful purpose is buttressed by the weaknesses of Respondent's asserted economic de- fense. President Thornton claimed, inter alia, that he laid off these six employees because he, in effect, did not have work for the employees to do. However, the remaining cus- tomer service employees were required to do additional work; the remaining customer service employees were giv- en a weekly pay raise because of this additional work; Su- pervisor Vassey was required for the first time in years to perform rank-and-file labor; and work was transferred from customer service to other laboratories. Further, Presi- dent Thornton claimed that "Our sales and profits were down"-"I had to start cutting some overhead cost any- where that I could without further damaging our market position." However, as Thornton also acknowledged, "our sales were already much better than production" at least in Bucrons ; "our back order list stayed too long all the time"; "we were so far out-stripping our production that we couldn't fill customers' orders"; the plant employees-in- cluding those in customer service-had been given raises only weeks before the layoffs; there were no other layoffs in the plant for some 10 years prior to and over 3 months following the July 12 layoff; and the "greater majority" of adverse economic conditions which ultimately beset the textile industry and Respondent in fact occurred in the latter part of July and August 1974.12 i2 Compare: "Nine Months Report to Stockholders," dated June 30, 1974, for Synaltoy Corporation, the parent of Respondent , which states, in part (G.C. Exh. 2). Net income for the nine months ended June 30, 1975, exceeded the highest earnings for any fiscal year in the 29 year history of the Compa- ny [Synalloy Corporation]. Although the third quarter results were un- usually strong, based on the current backlogs in our Metal Divisions and increased production and sales in our Chemical Division's Dis- perse Dye Program, management anticipates the operations of the Company will continue to grow and counsel for Respondent's assertion in his brief: By July 1974, however, production [at Respondent's plant] was still somewhere under $2,000,000, although Thornton felt they could easily have sold $5,000,000 or $6,000,000. The problem, he testified, was simply a production problem-and at that point too many sales in Bucrons (Tr. 445, 446). [Emphasis supplied .] At the same time, profits were continu- ing to suffer, too. Profits for June 1974, amounted to $10,727, or 1.0%, as compared to $53,329 or 4.7% for June 1973; and a nine month figure of 5.5% for 1974, as contrasted to 8.2% for the like period in 1973. In sum, although the evidence shows that Respondent in fact has experienced some economic problems, I find and conclude, on this record, that Respondent's treatment of its six employees on July 12 was not in response to these eco- nomic problems; rather, I find and conclude that Respondent's July 12 determination was unlawfully moti- vated, in violation of Section 8(a)(1) and (3) of the Act. C. The Pay Raise and Other Coercive Conduct As stated, immediately following the layoff, the remain- ing customer service laboratory employees were given sal- ary increases. The question raised is whether these increas- es, under the circumstances present here, violated Section 8(a)(1) of the Act. In N.L.R.B. v. WKRG-TV, Inc., 470 F.2d 1302, 1037-08 (C.A. 5, 1973), the court dealt with a similar issue, stating, in part, as follows: In essence, the company argues that it cannot be fault- ed for granting benefits to its employees when such benefits were not motivated by an anti-union animus. We are in full agreement with the company. Certainly any rule that would prevent the granting of employee benefits in the absence of an anti-union effect, either intended or foreseeable, would go too far and it is not impossible to envision a factual situation where a grant of benefit during a campaign would be permissi- ble. E.g., N.L.R.B. v. M.H. Brown, Co., 2 Cir. 1971, 441 F.2d 839, 842-843; Wilkinson Mfg. Co. v. N.L.R. B., 8 Cir. 1972, 456 F.2d 298, 303. But this is not such a case. * A company may in its employee relations be sin- cerely noblesse oblige, but its nobility of purpose and spirit must not be anti-union motivated. The union is not put to proving the absolute of anti-unionism, but the Examiner and Board are free to engage in the eco- logical atmosphere of 8(a)(1) violations. The Examiner and Board have every right to conclude that the man- na dropping from heaven were based upon fear that sustenance would flow from unionization. We cannot ignore decisional acceleration in employee benefits preceded by months of lethargy. Lightning struck only after the union's rod was hoisted. In this case the wage readjustments and other benefits, to say nothing of the initial announcement of these benefits, were clearly a counterweight to [the union's] organization efforts. To permit a company to time its announcement and allo- cation of benefits in such a fashion would be a great disservice to the ideal of organizational freedom so deeply imbedded in the N.L.R.A. In the context of management's demonstrated union ani- mus, its threats and coercive interrogation, and the unlaw- ful discharge of the six employees, I find and conclude that this raise was also part of Respondent's attempt to defeat (Employers Exhibit R 1(b) and 1(n)). The 1974 six month figures (to March 31 , 1974) for the Chemical Division amounted to $228,511, as contrasted to the 1973 six month figures of $554,883 (Tr. 530; Resp. Exh. 11; Resp.Exh. 1(k) ). BLACKMAN-UHLER CHEMICAL DIVISION 59 the Union's organizational effort. Further, I find and conclude that Head of Research Pol- tersdorf violated Section 8(a)(1) by repeating to employees that he had asked Burnham Uhler "what happened down there that they laid off those girls" and that Uhler had replied: "[T]he last thing this Company needs is a damn Union. ... " Poltersdorf, by stating this to employees, at- tributed the July 12 layoff to the employees' union activi- ties, in violation of Section 8(a)(l). In like vein, Supervisor Littlejohn warned an employee that "if the Union was vot- ed in" he "would no longer be [her] friend"; the Union "was nothing but trouble"; and the employee "would not be sitting on a stool" but instead "would be walking a picket line." These statements also plainly tend to deter employees from exercising their Section 7 rights in viola- tion of Section 8(a)(1). IV. THE CHALLENGED BALLOTS There were, as stated, 11 challenged ballots in the related representation proceeding. It was stipulated before me that the challenges to the ballots cast by Crocker and Nichols should be sustained. And, as the parties agree, the five challenges to ballots cast by Holcomb, Taylor, Dodkin, Pugh, and Coggins will be disposed of by the determina- tion in the consolidated unfair labor practice case. Since I have found that these five employees were unlawfully dis- charged on July 12, the challenges to their ballots are over- ruled. As for the remaining four challenged ballots, I make the following findings of fact and conclusions of law: A. Debbie Peeler Peeler is secretary to Plant Manager Foster. She answers his telephone as well as the telephones for Assistant Plant Manager Strickler and Head of Research Poltersdorf. Peel- er performs various typing services for Foster, Strickler, and Poltersdorf. She spends half or more of her worktime in her office, which is adjacent to Foster's office. Peeler types memoranda for Foster. She also processes employee workmen's compensation claims. Thus, for example, she calls doctors, makes arrangements for employees to be ex- amined by doctors, and fills out the necessary forms and reports. She also "runs errands" for Foster and other repre- sentatives of management. Unlike other plant employees, Peeler parks her automo- bile inside the plant gate. She does not punch a timeclock. She has an office with a desk and xerox machine. She dresses differently than production workers. Plant Manag- er Foster admittedly has referred to Peeler as his secretary. The agreed-upon bargaining unit (see Regional Director's report, G.C. Exh. 1 (j), p. 1, In. 1) consists of: "all production and maintenance employees, including lab- oratory employees, truckdrivers, and plant clerical employ- ees at the Employer's Camp Croft, South Carolina, plant, excluding all office clerical employees, guards, professional employees and all supervisors defined in the Act." (Em- phasis supplied). As the Regional Director states in his re- port, Peeler was challenged on the ground that she was the "secretary to the plant manager" and a "confidential em- ployee." I find and conclude, as stated, that Peeler is in fact secretary to Foster and an "office clerical." She works in a separate office area away from production; she is directly supervised by upper management; her working contact with production employees is, by and large, minimal; and her duties include in substantial part office clerical work and secretarial work for Foster. Peeler's access to workmen's compensation claims of employees and her close working relationship with Plant Manager Foster per- suade me that she is his "secretary," an "office clerical," and, alternatively, a "confidential employee." 13 I would therefore sustain the challenge to her ballot. B. Floyd Morton Petitioner challenged the ballot of Morton, asserting that Morton has "supervisory authority." (G.C. Exh. 10).) Supervisor Littlejohn, according to the testimony of em- ployee Gene Henline, told a group of employees about a year ago that Floyd Morton "would have to be his number two man to tell us what to do." Supervisor Littlejohn cor- roborated Henline in this respect. Littlejohn testified: Q. And you [Littlejohn] testified earlier that you had a meeting and you told the workers at that meeting that Mr. Morton was your No. 2 man? A. That's correct; absolutely correct. Q. So, if he is your No. 2 man, he has more authority than anybody else, hasn't he? A. When he is around. When Mr. Morton is not around, I do instruct these other two. Q. But if Mr. Morton is there you go strictly through Mr. Morton? A. Yes, if he's available, yes, that's true. Littlejohn further testified: Q. And it is his [Morton's] responsibility to see that they do the work isn't it? A. Yes. It is his responsibility to see that it is done right. Q. Other employees under him know that they are supposed to do what Mr. Morton tells them to, tJ Plant Manager Foster testified , inter a/ia, that Peeler "prepares the out- standing order sheet everyday"; maintains "all inventory records" and does inventory work; prepares "any memos that I have done or letters "; answers the telephone for him and Poltersdorf; "runs errands periodically"; picks up mail; prepares production reports for him ; and is responsible for "internal traffic." Foster acknowledged that he "may have" stated that Peeler is his secretary. Peeler claimed that she is in "Internal Traffic" and does "daily work sheets," inventories, and typing for the various departments . She types pur- chase orders and monthly production forms. She "sometimes" works in manufacturing "to help out ." She has a desk in the office next to Foster. She answers his telephone . She also answers Strickler's and Poltersdorf s tele- phone. She types letters for Foster. She spends 50 percent of her time in the office doing reports. She parks inside the gate , runs errands, and does not punch the timeclock . Peeler admittedly has "access to files in Foster's of- fice." She handles workmen's compensation procedures , as stated above. Foster "occasionally" refers to her its his secretary. Employee Wease also testified that Plant Manager Foster said, in the presence of Supervisor Vassey, that Debbie Peeler "was the most efficient secretary that he had ever had ." To the same general effect, see the related testimony of employees Pugh , Taylor, Austin, and Green. I credit the testi- mony of Peeler, Foster, Wease, Pugh, Taylor, Austin, and Green, as summa- rized above. Their testimony, as stated above, is in large part mutually corroborative and impressed me as reasonable and trustworthy. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD right? A. That's correct. Q. And if they don't, something is going to happen to them? A. That's correct. Morton, according to Littlejohn, makes "more" money than the other employees in his department, except for Littlejohn. Morton has no machine assigned to him; he spends at least 80 percent of his time "watching or instruct- ing other employees." Morton gives employees their pay- checks and makes daily work assignments. Littlejohn ac- knowledged that it is "possible" that Morton has recommended employees for pay raises. And, according to employee Henline, Morton once said that he had terminat- ed employee Paul Davis.14 A "supervisor" is defined in Section 2(11) of the Act as, [A]ny 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 to adjust their grievances, or effectively to recommend such ac- tion, 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. Actual existence of true supervisory power is to be dis- tinguished from abstract, theoretical, or rulebook authori- ty. It is well settled that a rank-and-file employee cannot be transformed into a supervisor merely by investing him or her with a "title and theoretical power to perform one or more of the enumerated functions." Cf. N.L.R.B. v. South- ern Bleachery & Print Works, Inc., 257 F.2d 235, 239 (C.A. 4, 1958), cert. denied 359 U.S. 911 (1959). What is relevant is the actual authority possessed and not the conclusory assertions of a company's officials. And while the enumer- ated powers listed in Section 2(11) of the Act are to be read in the disjunctive, the section also "states the requirement of independence of judgment in the conjunctive with what goes before." Cf. Poultry Enterprises, Inc. v. N.L.R.B., 216 F.2d 798, 802 (C.A. 5, 1954). Thus, the individual must consistently display true independent judgment in per- forming one of the functions in Section 2(11) of the Act. The exercise of some supervisory tasks in a merely routine, clerical, perfunctory, or sporadic manner does not elevate a rank-and-file employee to the supervisory ranks. Cf. N.L. R.B. v. Security Guard Service Inc., 384 F.2d 143, 146-149 (C.A. 5, 1967). Nor will the existence of independent judg- ment alone suffice; for "the decisive question is whether [the individual involved has] been found to possess authori- ty to use [his] independent judgment with respect to the exercise by [him] of some one or more of the specific au- thorities listed in Section 2(11) of the Act." N.L.R.B. v. 14 Cf. Resp. Exh. 14, which states that Littlejohn "authorized" Davis' termination. Morton claimed, Inter alm, that he is a "Class A" chemical operator ; that he does not possess supervisory authority; and that he acts, in effect, as a "conduit" for Littlejohn. In addition, Plant Manager Foster testified that there are some 12 to 15 "Class A" chemical operators and that Morton's "authority over people in the Company" is the "same" as the other "Class A" operators. I credit the testimony of Littlejohn and Henline, as recited above. Their testimony is substantiated in part by the testimony of Morton and Foster and impressed me as reliable and trustworthy. Brown & Sharpe Manufacturing Company, 169 F.2d 331, 334 (C.A. 1, 1948). In short, "some kinship to management, some empathetic relationship between employer and em- ployee must exist before the latter becomes a supervisor for the former." N. L. N.L.R.B. v. Security Guard Service, Inc., supra, 384 F.2d at 149. Applying these principles here, I find and conclude that Morton possessed supervisory authority. And I am per- suaded that his exercise of supervisory functions was not merely routine, clerical, perfunctory, or sporadic. In sum, there was here a "kinship to management"-an "empathet- ic relationship between employer and employee" (ibid.) Thus, employees were told by Supervisor Littlejohn that Morton was "his No. 2 man." Morton had "more authori- ty" than "anyone else" in the department. Littlejohn in- structed employees, "when Morton was not around." Otherwise, Morton instructed the workers. Morton was "responsible" to "see that they do the work." Rank-and- file employees understood that they must do what Morton told them to do, or face the consequences. Morton was higher paid than the other employees. He spent 80 percent of his time "watching" and "instructing" employees. He could recommend workers for pay raises and he made dai- ly work assignments. I find and conclude that, on this rec- ord, Morton is a supervisor and the challenge to his ballot should be sustained. C. Robert Walker Robert Walker's ballot is challenged by Petitioner be- cause he assertedly is a supervisor. Employee Daniel Green, a truckdriver, testified that he has worked in the Company's shipping department for about 3 years; that Robert Walker "hired" him after interviewing him for some 15 to 20 minutes; that Robert Walker told him what his rate of pay would be; that Robert Walker gives him his daily work assignments; that when he was out sick or need- ed time off he called Robert Walker; that Robert Walker assigned him overtime work; that Robert Walker drove a "Company vehicle" to and from work; and that he, Green, spoke with Robert Walker about pay raises. Employee Green explained on cross-examination that "Mr. Walker describes which load we are to take" on deliveries; "[the drivers] ask him [Walker] if it's all right." In addition, em- ployee Charles Walker testified that Robert Walker inter- viewed him for employment; that he "reported" to Robert Walker; and that Robert Walker told him what his rate of pay and job would be.15 15 Plant Manager Foster asserted that Robert Walker is a "warehouse- man" with no supervisory authority. Foster claimed that Richard Crocker is the supervisor in charge of the department Likewise, Robert Walker claimed that he is a "warehouseman" and that he "reports " to Crocker. Robert Walker denied the authority attributed to him by Green and C. Walker. Robert Walker was, I note, an evasive witness on cross-examina- tion. However, he acknowledged accepting employment application blanks because "Crocker would not be available, and maybe they [the applicants] would set down with me." Robert Walker acknowledged that Crocker in fact has "two offices"-one "downstairs in the front of the warehouse" and another office "upstairs in front." Crocker, according to Robert Walker, is "in charge of Shipping & Receiving" and "Purchasing." Robert Walker acknowledged that Crocker "spends more time up front" and not in Ship- ping. Robert Walker frequently gives employees their paychecks. Cf Resp. Exh. 6 (Green's application for employment) and Resp. Exh. 5(a) through (d) (applications for C. Walker), which do not show the signatures or ap- BLACKMAN-UHLER CHEMICAL DIVISION I find and conclude that the credible testimony suffi- ciently establishes that Robert Walker, like Floyd Morton, was a supervisor. Robert Walker interviewed and hired em- ployees. He instructed employees what their job duties and pay rates would be. He gave them daily work assignments. Employees called Robert Walker for time off. He assigned overtime. He drove a "Company vehicle" to and from work. Employees spoke with him about pay raises. I would therefore sustain the challenge to his ballot. D. Raymond Roberts Petitioner also challenged the ballot of Raymond Rob- erts, asserting that he is a supervisor. There is much testi- mony to the effect that Roberts, at one time, was in charge of plant "clean-up." However, there is testimony that Rob- erts is currently in charge of waste treatment and that he no longer supervises personnel. There is also testimony by employees that Roberts stated that he had terminated em- ployees Alverson and Miller. However, as discussed below, I am not sufficiently persuaded on this record that Roberts in fact possesses supervisory authority. Thus, for example, employee Cynthia Dodkin testified that Roberts now works in "filtration." Dodkin recalled that Roberts told her that he "had to let [Alverson] go because of [Alverson's] drinking." Dodkin also recalled Roberts taking credit for the firing of another employee, Ed Miller. Employee Carolyn Pugh recalled how Roberts gave instructions to janitors and exercised authority over them; however, Roberts, as noted, is now in the "filtration" section. Pugh also witnessed Roberts claim credit for the firing of employee Alverson. Employee Ruth Austin testi- fied that Roberts "had a clean-up detail" and, assertedly, he had one person in this detail at the time of the represen- tation election. Jesse Alverson testified that Roberts had hired him and told him what his rate of pay would be. Roberts assigned Alverson his job, which involved cleaning the plant. Alver- son acknowledged that Paul Blackwell is Roberts' supervi- sor and both Roberts and Blackwell were present when Alverson was terminated. However, Paul Blackwell credi- bly testified that he had hired Alverson and had fired him for "drinking." (See Resp. Exh. 3, Alverson's termination notice, "authorized" by Blackwell and dated June 27, 1974.) Blackwell also credibly testified that he had termi- nated Ed Miller. (See Resp. Exh. 4, Miller's termination notice, "authorized" by Blackwell and dated October 5, 1973.) Blackwell explained that "janitorial personnel are assigned to the maintenance department and work under" his supervision. Blackwell testified: Q. How many janitorial employees do you have there now? A. One. proval of Robert Walker. Upon this record, I credit the testimony of employees Charles Walker and Green as stated above. Insofar as the testimony of Foster and Robert Walk- er differ with the testimony of Charles Walker and Green , I find the testi- mony of Charles Walker and Green to be more forthright, complete, and trustworthy. 61 Q. What is his name? A. Ellis Lowe. Q. Is Mr. Roberts in any way connected with the su- pervision of Ellis Lowe? A. Direct supervision, no. Q. Has Mr. Roberts ever been connected with super- vision of janitorial people? A. Yes, he has. Q. When was that, sir? A. About two years ago. Q. About how long? A. Two years ago. Q. And what was he doing at that time? A. That was his job, in charge of janitorial employees, the fire extinguishers and, well, that was it, and the outside yard work. Q. Now, has any change been made in this arrange- ment? A. Yes, sir. Q. What does Mr. Roberts do at the present time? A. Well, they cut out all the outside yard work which reduced his staff from, probably from six to eight, to one or two, and then Raymond was transferred to waste treatment that was started up about that time. Q. What is waste treatment? A. That is where they treat the waste sewage before they dump it into the city sewage. Q. What hours does Mr. Roberts work at that, sir? A. He is from 8 to 4, right now. Raymond Roberts testified that he no longer runs the "clean-up" operation. He denied hiring or terminating Al- verson or terminating Miller. He denied, inter alia, taking credit for their termination. I am not sufficiently persuaded on this record that Rob- erts is in fact a supervisor. Blackwell, who impressed me as a credible witness, corroborated Roberts in substantial part. Alverson, on the other hand, was not a reliable wit- ness. And, although there is some question in my mind that Roberts may still have been connected with "clean-up" work at times material to this proceeding, the record is insufficient and unclear in this respect. I would therefore overrule this challenge. CONCLUSIONS OF LAW 1. Respondent Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Charging Party-Petitioner is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Company violated Section 8(a)(1) and (3) of the Act by coercively interrogating employees about em- ployee union activities; by threatening employees with harm and other reprisals because of employee union activi- ties; by granting employees a wage increase in order to undermine employee support of the Union; by attributing the layoff of six employees to employee union activities; and by laying off on July 12, 1974, employees Coggins, Pugh, Carnes, Taylor, Dodkin, and Holcomb in order to discourage employee union activities. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The unfair labor practices found herein affect com- merce within the meaning of Section 2(6) and (7) of the Act. 5. With respect to the 11 challenged ballots in the con- solidated representation proceeding (Case 11-RC-3936), for the reasons stated in section IV, supra, I would overrule the challenges to the ballots cast by Holcomb, Taylor, Dodkin, Pugh, Coggins, and Roberts. I would sustain the challenges to the ballots cast by Nichols, Crocker, Walker, Morton, and Peeler. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I recommend that it cease and desist from such conduct and take certain affirmative action designed to effectuate the policies of the Act. And, as the unfair labor practices committed by the Respondent are of a character striking at the core of employee rights safeguard- ed by the Act, I recommend that it cease and desist from in any other manner infringing upon rights guaranteed in Section 7 of the Act. It has been found that Respondent, in violation of Sec- tion 8(a)(1) and (3) of the Act, unlawfully laid off on July 12, 1974, employees Coggins, Pugh, Carnes, Taylor, bod- kin, and Holcomb. It will therefore be recommended that Respondent offer employees Coggins, Pugh, Carnes, Dod- kin, and Holcomb 16 immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make employ- ees Coggins, Pugh, Carnes, Taylor, Dodkin, and Holcomb whole for any loss of earnings suffered by reason of their unlawful layoff by payment to them of a sum of money equal to that which they normally would have earned from the date of the discrimination to the date of Respondent's offer of reinstatement , less net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950). Backpay shall carry interest at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Further, it will be rec- ommended that Respondent preserve and make available to the Board, upon request, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary and useful to de- termine the amount of backpay due and the rights of rein- statement under the terms of these recommendations. ORDER17 Upon the basis of the foregoing findings of fact and con- clusions of law, and upon the entire record in this case, Respondent Blackman-Uhler Chemical Division-Synal- loy Corporation, Spartanburg, South Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with harm or other reprisals because of employee union activities. (b) Coercively interrogating employees about union ac- tivities. (c) Granting employees a wage increase in order to un- dermine employee support of International Molders & Al- lied Workers Union, AFL-CIO-CLC, or any other labor organization. (d) Attributing the layoff of employees to employee union activities. (e) Discouraging membership in the Union or in any other labor organization by unlawfully discharging any of its employees or in any other manner unlawfully discrimi- nating against them with respect to their hire, or tenure of employment, or any term or condition of employment. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guar- anteed them in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer to employees Coggins, Pugh, Carnes, Dodkin, and Holcomb immediate and full reinstatement to their former jobs or, if their former jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make whole employees Coggins, Pugh, Carnes, Taylor, Dodkin, and Holcomb for any loss of earnings, in the manner set forth in this Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (c) Post at its offices and plant facilities in Spartanburg, South Carolina, copies of the attached notice marked "Ap- pendix." 18 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by Respondent's authorized representative, shall be posted immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are cus- tomarily posted, and shall be maintained by it for a period of 60 consecutive days. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 11, in writ- ing, within 20 days from the date of this Decision what steps Respondent has taken to comply herewith. 16 The record shows that Taylor has been reinstated by Respondent. 17 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 objections thereto shall be deemed waived for all purposes is In the event that the Board's Order is enforced by a Judgment of the 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 " BLACKMAN-UHLER CHEMICAL DIVISION 63 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that the Blackman-Uhler Chemical Division- Synalloy Corporation has violated the National Labor Re- lations Act and ordered us to post this notice. We therefore notify you that: WE WILL NOT threaten our employees with harm or other reprisals because of employee union activities. WE WILL NOT coercively interrogate our employees about employee union activities. WE WILL NOT grant employees wage increases in or- der to undermine employee support of International Molders & Allied Workers Union, AFL-CIO-CLC, or any other labor organization. WE WILL NOT attribute the layoff of our employees to employee union activities. WE WILL NOT discourage membership in the Union or in any other labor organization by unlawfully dis- charging any of our employees, or, in any other man- ner, unlawfully discriminating against them with re- spect to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT, in any other manner, interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL offer employees Vivian Coggins, Carolyn Pugh, Lynn Carnes, Cynthia Dodkin, and Cynthia Holcomb immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, and WE WILL make employees Vivian Coggins, Carolyn Pugh, Lynn Carnes, Brenda Taylor, Cynthia Dodkin, and Cynthia Holcomb whole for any loss of earnings, with interest at 6 percent per annum. BLACKMAN-UHLER CHEMICAL DIVISION-SYNALLOY CORPORATION