Hargis Mine Supply, Inc.

660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hargis Mine Supply, Inc. and United Steelworkers of America, AFL-CIO-CLC. Case 9-CA-9331 July 13, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On March 4, 1976, Administrative Law Judge Jo- sephine H. Klein issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and has decided to affirm the rulings, findings,' and conclu- sions 2 of the Administrative Law Judge and to adopt her recommended Order as modified herein.3 Order of the Administrative Law Judge as modified below and hereby orders that the Respondent, Har- gis Mine Supply, Inc., Pineville, West Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as so modified: 1. Substitute the following for paragraph 2(a): "(a) Make whole the employees named below for any loss of pay they suffered as a result of Re- spondent's failure to offer them all reinstatement pursuant to their unconditional offer of August 1, 1975, to return to work. The employees are: Priscilla Wade, Anona Church, Inez Rose, Lorraine Trull, Robert Craft, Barbara Fritz, Barbara Brown, Darrell Wingler, Pamela Daniels, Lidda May Christian, Har- old Wingler, Wesley Friend, Mildred Canterbury, Arlene Berta, and Lynda Christian. Backpay, from August 1 through August 22, when these employees were offered reinstatement, shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest, in accordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962)." 2. Substitute the attached notice for that of the Administrative Law Judge. 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 i 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 In the absence of exceptions thereto, we adopt pro forma the Administra- tive Law Judge's finding that Respondent conveyed to the employees the impression of surveillance of union activities in violation of Sec 8(a)(1) of the Act 2 The complaint alleges that the Respondent refused to bargain with the Union in violation of Sec 8(a)(5) of the Act We adopt herein the Adminis- trative Law Judge's findings that on April 3, 1975, the Union represented a majority of the Respondent's production and maintenance employees, that on April 8 the Union made a written bargaining demand, and that the Respondent refused to bargain with the Union while, both before and after the April 8 demand for recognition, committing serious unfair labor practic- es which thereafter prevented the holding of a free and fair election We therefore find that the Respondent thereby violated Sec 8(a)(5) of the Act and that a bargaining order is warranted Accordingly, we adopt the Ad- ministrative Law Judge's order requiring the Respondent, inter a/ta, to bar- gain with the Union, effective April 8, 1975, the date of the demand for recognition Trading Port, Inc, 219 NLRB 298 (1975) Inasmuch as all mis- conduct occurring before April 8, 1975, is remedied by the Board's Order, Member Jenkins concurs in the result 3 In view of the fact that Respondent was discriminatorily motivated in refusing reinstatement to 4 of the 15 strikers, we agree with the Administra- tive Law Judge that all of the strikers are entitled to backpay However, unlike the Administrative Law Judge, we conclude that in view of Respondent's discriminatory motivation backpay should be computed from August 1, 1975, the date on which the unconditional request for reinstate- ment was made, rather than from 5 days thereafter To do otherwise would, in our judgment, permit Respondent to profit by its own unlawful conduct APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had the chance to present evidence and argument, the National Labor Relations Board has found that we, Hargis Mine Supply, Inc., violated the National Labor Relations Act, and has ordered us to post this notice. We in- tend to abide by the following: The National Labor Relations Act gives you, as employees, these rights: To engage in self-organization To form, loin, help or be helped by unions and to bargain collectively through a repre- sentative of your own choice To act together with other employees for collective bargaining or other mutual aid or protection without fear of any interference, restraint, coercion, or reprisal To refrain from any or all of these things (except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the National Labor Relations Act). 225 NLRB No. 88 HARGIS MINE SUPPLY, INC. WE WILL NOT discourage membership in or ac- tivities in behalf of United Steelworkers of America, AFL-CIO-CLC, or any other union, by failing to employ or otherwise discriminating against any employees because of their union or concerted activities. WE WILL NOT coercively question you concern- ing your union sympathies and activities; nor threaten you with reprisals (including plant clo- sure, discharge, or loss of overtime work) if the plant is unionized or if you support a union; nor threaten or attempt to hire additional employees to vote against unionization; nor convey to you the impression that employees' union activities are being kept under surveillance; nor threaten employees or pickets with physical injury by firearms or otherwise. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under the National Labor Relations Act. WE WILL make each of the following named employees whole with interest for any loss they suffered as a result of our failure to offer all of them reinstatement to employment measured from August 1, 1975: Lorraine Trull Pamela Daniels Anona Church Lidda May Christian Priscilla Wade Harold Wingler Inez Rose Wesley Friend Robert Craft Mildred Canterbury Barbara Fritz Arlene Berta Barbara Brown Lynda Christian Darrell Wingler WE WILL bargain, upon request, with United Steelworkers of America, AFL-CIO-CLC, as the exclusive representative of our employees in the following appropriate unit: All production and maintenance employees employed by Hargis Mine Supply, Inc., at its Pineville, West Virginia, location, including truckdrivers, but excluding driver-salesmen, office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act. HARGIS MINE SUPPLY, INC. DECISION JOSEPHINE H. KLEIN, Administrative Law Judge: Pur- suant to a charge filed on May 5, 1975,' by United Steel- workers of America, AFL-CIO-CLC (the Union), alleging 1 All dates herein are in 1975 661 violation of Section 8(a)(1), (3), and (5) of the Act,' a com- plaint was issued on June 24 against Hargis Mine Supply, Inc. (Respondent), alleging that on several occasions be- tween April 7 and 26 Respondent interfered with its em- ployees' statutory rights in contravention of Section 8(a)(1). The complaint further alleged that the Union rep- resented a majority of Respondent's production and main- tenance employees and demanded recognition, but that Respondent rejected the demand. Further, it was alleged that the employees went out on strike on April 26 and that the strike was an unfair labor practice strike. During the hearing, as discussed below, the complaint was amended to add an allegation that in August Respondent violated Sec- tion 8(a)(3) and (1) of the Act by discriminatorily refusing to reinstate four strikers. Pursuant to due notice, the case was heard before me in Welch and Pineville, West Virginia, on August 20, 21, and 22 All parties were represented and were afforded full op- portunity to present oral and other evidence and to exam- ine and cross-examine witnesses. The General Counsel and Charging Party waived oral argument; Respondent pre- sented oral argument. Since the hearing, the General Counsel has filed a brief. Upon the entire record, together with careful observa- tion of the witnesses and consideration of the brief, I make the following: FINDINGS OF FACT 1. PRELIMINARY FINDINGS A. Respondent, a West Virginia corporation located in Pineville, West Virginia, is engaged in the manufacture and sale of safety devices for mine operations. During the past year, a representative period, Respondent purchased goods valued in excess of $50,000 which it had shipped directly from points outside West Virginia to its plant in Pineville. Respondent is, and was at all times material herein, an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. B The Union is, and was at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background and Chronology As of April 1, Respondent had 19 production and main- tenance employees.3 Between April 1 and 3, inclusive, 15 of these 19 employees executed union authorization cards. On April 8, the Union made a written bargaining demand on Respondent and filed a representation petition with the Board. On April 7 or 8, one additional employee was hired and two more were hired around April 23. These three new employees also signed union authorization cards. A representation hearing was held on April 24. On April 25 the Union sent the following telegram to Respondent: 2 National Labor Relations Act, as amended, 29 U S C § 151, el seq , Four other names appear on a list of employees in the record However, it was stipulated that those four employees were not to be included in the relevant bargaining unit 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "DUE TO COMPANY'S ACTIVITIES PRECLUDING THE HOLDING OF A FAIR ELECTION , PETITIONER HEREBY WITHDRAWS ITS PETITION FILED AS 9-RC-11015 - The Union's charge was then filed on May 5. The Regional Director did not authorize withdrawal of the representation petition, which is blocked by the present complaint proceeding. On April 26, 17 of the 21 employees went out on strike. Picketing at the front and back of Respondent's plant was begun at that time and was still being conducted at the time of the present heanng 5 There was uncontradicted evi- dence that on April 26, after the strike began, Respondent hired 17 new employees, the majority of whom were still in Respondent's employ at the time of this heanng. Two strik- ers apparently abandoned the strike and returned to work within about 2 weeks after the commencement of the strike. On August 1 the strikers, through their union representa- tive, made unconditional offers to return to work. In a let- ter dated August 6, Respondent replied, offering reinstate- ment to 11 named "individual employees who have not been replaced." Respondent's letter then proceeded: "The individual employees who have been replaced, and whom we place upon a preferential list are as follows: Priscilla Wade, Anona Church, Inez Rose, Lorraine Trull." None of the employees returned to work, presumably because of the exclusion of the four. At the hearing the complaint was amended by the addition of an allegation that the denial of reinstatement to four strikers was violative of Section 8(a)(3) and (1). On the last day of the present hearing, under circum- stances set forth below, Respondent offered reinstatement to all 15 employees then on strike, and they accepted the offer. Respondent indicated on the record that it did not intend to discharge any of its current employees, with the result that as of August 25 there would be a total of 32 employees. B. The Issues The issues presented are: 1. Has the General Counsel established that Respondent interfered with its employees' exercise of their Section 7 rights, in violation of Section 8(a)(1)? 2. Has it been established that Respondent discrimina- torily refused to reinstate four strikers upon their uncondi- tional offer to return to work? 3. Do the facts warrant issuance of a bargaining order under N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), as subsequently implemented by the Board in Steel- Fab, Inc., 212 NLRB 363 (1974), and Trading Port, Inc., 219 NLRB 298 (1975)? 4. Was the strike which began on April 26 an unfair labor practice strike? Respondent's motion to dismiss the complaint because of the pendency of the representation petition was denied at the outset of this hearing 5 Presumably the strike and picketing ended when, on the last day of the hearing, all the strikers were offered and accepted reinstatement C The Specific Alleged Unfair Labor Practices 1. The supervisors The complaint alleges, but the answer denies, that Irvin Hargis is "supervisor and manager" of Respondent. At some points in his testimony , Hargis 6 maintained that he has little effective relationship to business since he is un- able to do much work because of seriously deficient eye- sight resulting from a mine accident. However, the record, including Hargis' own testimony, unquestionably estab- lishes that he is a major management representative and supervisor. He founded the business as an individual pro- prietorship in 1959 and had it incorporated as of 1970. Until about a year ago he owned a 49-percent interest, which was then reduced to 25 percent. He and his daughter and son-in-law live in houses on Company-owned property within 50 to 60 feet of the plant. In testifying, he referred to the plant as his property. He testified that he goes to the plant on an average of three times a day. He also acknowl- edged that he has and exercises authority to hire and fire employees. Indeed, there was considerable testimony that his son Ronald, vice president and treasurer, and in full charge of day-to-day operations, had been stripped of any authority to hire or fire employees.' There is no question that the employees generally consider Hargis as Ronald's superior. There is no doubt that Hargis makes, or at least actively participates in, all major decisions. For example, it was he who decided to consult an attorney, and then, on the attorney's recommendation, a management adviser, when the Union's bargaining demand was received. He tes- tified that he always opens and reads the Company' s mail. The answer to the complaint also denies that Ronald Hargis, vice president and treasurer, is a supervisor. How- ever, the evidence leaves no doubt that he holds the named positions and supervises the employees in their work. In- deed, so far as appears, he is the only person regularly in charge of the operations and gives all orders and directions as to the work. He signs all documents on behalf of the Company. 2. Credibility All the employees called by the General Counsel im- pressed me as thoroughly honest, reliable witnesses, who were attempting to recall the relevant events accurately and fully. Especially apparent was the total absence of any attempt or tendency for the employees to exaggerate or to color their testimony in favor of the Union's position. There is, however, reason to question the testimony of one employee witness, Lidda May Christian. She testified to statements allegedly made to employees at the plant by Hargis and Ronald on the morning of Monday, April 7, and around 12:30 p.m. on Tuesday, April 8 Both these incidents were fully established by the credited testimony 6 Irvin Hargis will be referred to as Hargis , to distinguish him from his son Ronald (frequently known by the nickname "Bo") 7 Another son, James , holds the position as president of Respondent However, he did not testify and there is no evidence as to what function, if any, he serves in the Company's operations He was quoted as having told some employees that they needed a union HARGIS MINE SUPPLY, INC. 663 of several other witnesses. The difficulty with Lidda May Christian's testimony is that, as she herself testified, she did not actually enter Respondent's employ until 2 p.m. on Tuesday, April 8. While it is possible to speculate as to how she was able to testify to the events before she began her employment, there is no sound evidentiary explanation. Having carefully observed Christian's demeanor as a wit- ness, and bearing in mind the very substantial degree to which her testimony was corroborated, I have no hesitancy in stating that I consider her a totally honest and conscien- tious witness who would not and did not fabricate. Howev- er, her memory was not totally reliable. For example, in a preheating affidavit she had said that she signed a union authorization card on April 7, whereas she actually did so on April 15. Accordingly, while I do not affirmatively dis- credit her testimony, I find it sufficiently unreliable to sup- port affirmative findings where it is not corroborated. On the other hand, both Hargis and Ronald appeared to me to be more concerned to further what they believed to be Respondent's interests than to reveal the facts. As will emerge in more detail below (particularly in the discussion of the alleged replacements of the strikers), they appeared to be guided more by the legal result desired than by the facts. One example of the conduct of each of these witness- es will serve to elucidate. When the Union's demand for recognition was received, it was Hargis who, pursuant to his usual practice, opened the letter. And it was Hargis who then proceeded to con- sult legal counsel and, at counsel's suggestion, Morgan, a labor consultant. Obviously the question of whether the Union's demand was to be met was at least one of the questions to be considered. On cross-examination, Hargis testified that he "didn't know" that Respondent had taken the position that it would not recognize the Union. Then, adopting the prompting of Morgan, given in the form of objections to a question, Hargis said: "I'm not an officer or on the Board of Directors, either one, and what I say would have little weight, as far as that." Significantly, it was Hargis who sat beside and consulted with Morgan at counsel table at the present hearing. And, as set forth be- low, Hargis participated in the purported replacement of the strikers. Additionally, also as set forth below, Hargis conceded having told at least two employees that he hoped they would be on Respondent's side in the election. It is inconceivable that Hargis was unaware of the Company's decision not to recognize the Union, at least without an election. It is clear, therefore, that Hargis was bent on tai- loring his testimony to fit Respondent's position as suggest- ed by its labor consultant. Ronald's testimony was even more clearly dictated by the exigencies of litigation. On August 6, in a letter signed by Ronald, the Union was advised that 11 strikers had not been replaced and 4 had been. At the present hearing, late in the afternoon of August 21, Ronald was questioned about the "replacements," apparently unexpectedly. He temporized and finally said that "all" the strikers had been replaced. He then withdrew somewhat from that position He did say, however, that Respondent did not need and could not possibly use the four who were said to have been replaced. However, on the morning of August 22, Respon- dent announced that it needed all 15 strikers back. The overnight reversal can be explained only by the fact that questioning of Ronald had illuminated the unlawful nature of the claimed "replacement" of four strikers. Such obvious tailoring of testimony and conduct to the vicissitudes of the litigation, together with careful observa- tion of their demeanor, leads me to discredit uncorroborat- ed testimony by Hargis and Ronald. It may be added that, as to the specific unfair labor prac- tices, a large part of the Hargises' testimony consisted of bare conclusory denials of the formal allegations of the complaint. While sometimes no more detailed evidence is possible, such bare denials are not generally entitled to much weight, particularly where, as here, the witnesses' other testimony is not entirely reliable. Cf. Chauffeurs, Teamsters and Helpers, Local 633 of New Hampshire [Law Motor Freight] v. N.L.R.B., 509 F.2d 490 (C.A.D.C., 1974); Shattuck Denn Mining Corporation v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9, 1966); N.L.R.B. v. Edward P. Tepper, d/b/a Shoenberg Farms, 297 F.2d 280, 284 (C.A. 10, 1961). 3. Section 8(a)(1) a. The evidence (1) Threats of plant closure and discharge Employees Anona Church, Lorraine Trull, Inez Rose, and Barbara Fritz 8 testified that on April 7, about 7:45 a.m, Hargis, as was his wont, came to the door of the office and there spoke to the employees who had arrived preparatory to starting work at 8. According to the em- ployees who testified to this event, Hargis said that he had dust got word that the Union was trying to get into the plant and that before he would allow a union in he would close the plant and board it up; Respondent could not afford a union-could not afford to pay union wages; he would close the plant for 6 months to a year and then reopen with new employees and without the Union. According to employee Church, Hargis said that the em- ployees' organizing activities were being checked into and that "anyone who engaged in organizing activities" would be discharged Hargis denied having made the threats attributed to him and denied having informed employees that he knew of their union activities on April 7. Apparently to support these denials, he testified that "the first time [he] knew defi- nitely [about union activities] was on the 8th day of April," when he received the Union's demand letter. The first "un- official" information he had was when one of Re- spondent's driver-salesmen telephoned him about 2:30 p.m. on Monday, April 7. The driver-salesman, who could have corroborated this testimony and thrown light on the content of the alleged conversation, did not testify.9 8 Lidda May Christian also testified to similar effect However, for the reason set forth above, no reliance is placed on her testimony as to this event 9 Lidda May Christian, who is related to Hargis by marriage, testified that when she visited Hargis' home sometime during the previous week Mrs Hargis spoke of union activities then reportedly going on at the plant. Har- Continued 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Six employees 10 testified to a brief employee meeting called by Ronald at 12:30, at the close of the luncheon recess, on Tuesday, April 8. He started by reading to the employees all or a part of the Union's demand letter, which had been received that morning. According to the employ- ee witnesses , Ronald said that the Company could not and would not have a union; it could not afford a union; and they might all be out of work, or looking for jobs. Ronald acknowledged having called the meeting and having read to the employees the Union's demand letter. He testified, however, that he said only that he "hoped the demands were not too great . . . that we can't meet them or we would have to board the place up." Since Ronald also testified that he did not believe the Union represented a majority and that before he read the letter to the employ- ees Respondent had decided not to recognize the Union without an election, it is most unlikely that he would have spoken to the employees in terms of excessive demands Cf. Ludwig Motor Corp., 222 NLRB 635 (1976). As stated above, I found Ronald Hargis an unreliable witness, whom I discredit whenever his testimony is in conflict with that of other witnesses. Employee Rose credibly testified that she overheard Hargis tell other employees on a few occasions that he would close the plant down and then hire new employees, in addition to the occasion on the morning of April 7. Em- ployee Barbara Fritz testified that a few days after April 7 Hargis telephoned her at home to talk about the Union. According to Fritz, Hargis "said others have tried it and you see where they are at today." He said that he would not have it and "before I do I will board the windows and doors up and that will be it." He also said that he "would appreciate it if [she] were on his side." Fritz testified that she did not pay much attention to the call, being anxious to end it speedily because she "was on a party line." Hargis admitted having made the call, in which he told Fritz he "would appreciate it if she would help us out in the elec- tion" and "[s]he said she would." He denied having threat- ened to close the plant. Lidda May Christian testified that on about three to five occasions after she started to work for Respondent Hargis called her at her home in the evening. She could not recall his having mentioned the Union in his first telephone call, which occurred on April 8. However, within a day or two thereafter, he called again. In this second call he said he would appreciate it if she "could help them in any way" and then he said that he could not afford to pay union wages and "that he would close the place down and board it up before he would have a Union. And he also said he could live for six months after closing down and it wouldn't hurt him." In other telephone conversations he merely talked about the work and said that the Company "had been good to their employees." When Lidda May Christian arrived at work on April 26 and found pickets present, she returned to her home. Har- gis did not deny or otherwise discuss Christian's preemployment visit to his home Mrs Hargis did not testify 10 Church, Trull, Rose, Fritz, Pamela Daniels, and Barbara Brown Lidda May Christian also gave similar testimony, but no reliance is placed there- on gis then telephoned her and asked if she wanted to work. He told her she "should come back and come through his driveway." She said she did not want to do that. Her testi- mony continued: "And so he did say that anyone standing on the picket line or carrying food to those on the picket line . . . [w]ould be fired." That was her last telephone conversation with Hargis. Hargis acknowledged that he had telephoned Christian at her home on a few occasions. He maintained that he frequently called new employees to find out how they were making out and that he felt particular concern for Chris- tian because she was related to him. According to Hargis, in his first call Christian indicated that she liked the job but was unhappy because the other employees did not talk to her. It was concern about this matter, Hargis maintained, that led him to call her again within a few days. According to him, she complained that the other employees still did not talk to her. He testified that his last telephone call with Christian was on April 21. He acknowledged that on this occasion he did talk about the Union, testifying as follows: "I called her and told her-asked her if she knew about the Union and the election that was supposed to come up, and she said that she did. And I told her that I would appreci- ate it if she would vote for us, be on our side, help us out in the Union. And she said she would." Hargis added that "there might have been some more talk about her work in the shop, but that would have been all." He did not "recall the exact words." He denied that he had asked her about her intentions or had threatened to close the plant and board it up if the Union came in. While no specific findings will be based on Christian's testimony, the calls are significant in showing Hargis' in- volvement in Respondent's campaign to defeat the Union in an election. Employee Brown testified to a telephone conversation with Ronald around April 23, in the course of which he said that before Respondent would have a union it "will board it up for six months and start out with new employ- ees." Employee Craft credibly testified that sometime in April, while he and Darrell Wiggler were unloading plastic from a truck, Ronald approached them "and said that this would be the last load for a while. That he was tired of this stuff going on." Although Ronald did not use the word "Union," Craft understood that "this stuff" meant the union activity. Obviously Ronald' s statement was an im- plied threat of plant closure or suspension of operations. (2) Hiring additional employees The complaint alleges that Respondent threatened to hire additional employees to defeat the Union in the elec- tion. Anona Church testified that on April 23 Ronald told employees Robert Craft and Darrell Wingler that they would be working on the night shift, about to be instituted. According to Church, Ronald then said, in the presence of all the employees, that "they were hiring additional em- ployees and they had already hired three for the night shift to vote the Union out." Similarly, employee Barbara Brown testified that in a HARGIS MINE SUPPLY, INC 665 telephone conversation on April 23 Ronald had told her that his father "is going to hire enough to vote this thing down." She referred to the fact that two new employees (Arlene Berta and Lynda Christian) 11 had dust come to work, to which Ronald replied, "[Y]es, that is what he hired them for." 12 (3) Loss of overtime Anona Church testified that sometime in April Hargis "said there would be no more overtime for the ones who had signed Union cards." 13 On cross-examination, Church said that Ronald also told the employees "there would be no more overtime for the persons who signed a union card." Robert Craft testified that for about a year and a half he had regularly spent an hour of overtime sweeping the plant after the close of business almost every day. However, that regular overtime ended after the union campaign began. On cross-examination Craft testified that one evening in April, while he was sweeping after hours, Hargis came into the plant and talked to Craft In the course of the conversa- tion Hargis said that he was going to eliminate Craft's 1- hour-per-day overtime. Thereafter, Craft did not do the after-hours' sweepmg.14 (4) Interrogation Robert Craft testified that one evening, while he was sweeping the plant after the close of business, Hargis asked him what he thought about the Union and if he was going to sign a union card. Craft could not specify the exact date of this conversation but placed it at around April 20. Employee Brown credibly testified that in their tele- phone conversation of April 23 Ronald asked her how she stood "with this Union thing." He proceeded to ask if "we have enough to vote it down." She replied that she did not know "because [she] couldn't tell him how the other people were going to vote." At the end of the conversation she told Ronald that she "was on his side." Employee Trull testified that when she arrived at work on April 24, the day of the scheduled representation hear- ing, Ronald called her to the stockroom, where he asked her "what this was all about." He was referring to the Union. She "said it is for respect," to which he replied that "there are some people who do not deserve respect here." Lynda is Lidda May's daughter-in-law i2 Both Hargis and Lidda May Christian testified that when she reported to work on April 8 Ronald had no place to assign her She testified that she had been hired for a night shift and Ronald indicated that she had been hired because Hargis had "some kind of hare-brained idea " Although no reliance is placed on Christian's testimony, it may be noted that it was not specifically denied by Ronald i3 Respondent's representative objected to this testimony because it was "not germane to the complaint " However , the complaint specifically alleges that Respondent "threaten[ed] employees with a reduction in work because of the Union's organizing campaign " Although the specific allegation iden- tifies Ronald as the author of the threat , I believe the complaint adequate to apprise Respondent of the nature of the allegation apprise Craft's testimony was "A [Mr Hargis] said no employees would get unemployment and they would cut my hour overtime And so the next day I didn't stay for the one hour over Q He told you he was going to cut your one hour overtime) A Yes (indicating) And he cut my hour overtime 11 (5) Creating the impression of surveillance The complaint also alleges that Respondent unlawfully created the impression that the employees' union activities were being kept under surveillance. On cross-examination Church testified as follows: Q. Did [Hargis] ever give you the impression that he was watching you and your Union activity? A. I don't know what you mean about watching. Q. Give the impression of watching. I don't know what the Board means either, but that is the way it is written, the impression of surveillance. A. He said-we were told it was being checked into. Barbara Brown testified that when Ronald telephoned her at her home on the morning of April 23 he said, inter alia, that "Anona [Church] and Lorraine [Trull] were the ones who started this thing." He indicated that Church and Trull had started the union campaign because each was disturbed about what she considered unfair treatment af- forded another employee. Brown repeated this testimony on cross-examination, adding that she disclaimed knowl- edge of who started the campaign. However, the next day, at work, she told Ronald that "Lorraine didn't start it." Brown said she had taken this latter course because Trull was crying when she emerged from the office after talking with Ronald. Under date of April 14 Respondent distributed a brief letter among the employees. That letter made clear that Respondent opposed the Union. It continued: I know that a majority of the employees feel the way we do. I want to thank those who have come to me and let their thoughts be known. It would be difficult for the employees not to conclude from this statement that Respondent was keeping tabs on the campaign. (6) The shooting incident The complaint further alleges that Hargis "threatened employees, as they stood on a picket line, by firing shots that struck in close proximity to said employees." The employees went out on strike on the morning of Saturday, April 26, and immediately started to picket at the front and back of the plant. Generally, their method of picketing was to park cars on the roadways and rest picket signs on the front and back of the cars. Although they apparently did little, if any, walking on picket lines, there were some pickets at the site at all times, around the clock. They had a trailer available for sleeping. At the back of the plant there is a relatively narrow pub- lic highway beyond which is a steep hill. On the night of April 28 employees Craft and Darrell Wingler were picket- ing at the rear of the plant. Upon invitation, they went up the hill to visit briefly with friends of Craft who lived there in a trailer. When they came down the hill to the road, at about 10 p.m., Hargis fired three shots from a doorway in the back of the plant. Craft testified that the bullets "hit the ground, and started bouncing up towards the hillside." Ac- cording to Craft, Hargis told them "to get away from his property," but they "weren't on his property at all." He 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said Hargis shot "close to the road." Wingler testified that he was about 30 feet from Hargis when the shots were fired. Wingler did not actually see the bullets but believed they came very close to him. Although Respondent's representative had been at pains to establish that Hargis has poor eyesight, with very re- stricted lateral vision, Hargis admitted that he had fired the shots in question. He testified thatjust before then he was in his home, about 50 feet from the plant, watching televi- sion, when his son-in-law entered and said that he had heard noises at the rear of the plant and thought somebody was trying to break in. This testimony was, of course, pure hearsay, and the son-in-law did not testify. Hargis went into and through the plant, toward the rear. He testified that he heard rocks being thrown on the roof, but at that time he did not hear any noise of somebody trying to get into the plant. Thereupon he returned to his house to get a key to open the interior padlock on a rear door to the plant and his 30-caliber, M-1 hunting rifle, which he keeps in his bedroom. He then reentered the plant and "unlocked [the interior padlock] real softly." He testified that he then "heard a noise . . . like somebody was trying to get in the door" of the loading platform, to the left of where he was.15 At that point he opened the plant door and "jumped" out, one step down to the ground. He looked to the left, but "they had gone." His testimony continued: "I looked straight ahead down the street, and there was a street light, and I could see if there was anybody down that way in the line of fire, because the street came around on a curve .... And then I shot down in the ground, three shots right there. And I heard someone start running behind me, and I looked around behind me and I saw two figures running up the road. I couldn't tell who they were, but all I know is two figures running, and they was picking them up and laying them down." At no time did he call out or otherwise attempt to find out who, if anybody, was there. Nor did he ever summon the police.16 He apparently imme- diately decided to get his gun and shoot. 17 Hargis acknowl- edged that he knew of the continuous picketing. He de- scribed it as follows: "They leave their cars out there most of the time with signs on it . . . and then they go to the shade or down to the trailer . . . to do their picketing down there, from what I've seen." But then, when asked if there was picketing in progress at the time he shot, he replied that he did not know because "it was 10:00 at night, and I couldn' t see." I discredit Hargis' testimony that he heard somebody apparently trying to break into the plant. And Re- 15 Hargis described the noise as follows "They sounded like someone was trying to get the door open, or pull a piece of tin off, or something-lust a big noise out there on the side of the building, back down in the loading dock area, to my left " 16 The police arrived later on the call of the owner of the trailer, who swore out a warrant against Hargis 17 On cross-examination he testified "Q Did you look in any other direc- tion besides where you heard the noise? A 1 looked straight ahead, down the road, because that's where I was intending to shoot, down in the ditch, to warn the people off, whoever was trying to break in the plant, to protect my property I looked down there and I could see there was no one, because there was a street light down in there, and I didn't see anyone, and that's when I pointed the gun down in the ground and fired three shots " (Emphasis sup- plied ) spondent's failure to call Hargis' son-in-law as a witness leads me to give no credence to the hearsay evidence that he had heard such sounds. There is no competent evidence that Hargis' conduct was a reasonable or warranted at- tempt to protect life or property. On the contrary, it would be totally irresponsible and unreasonable for a man with severely restricted vision to open the door and go outside brandishing a gun if he actually believed that there were people in the vicinity bent on nefarious activity. Had he really felt in any danger, he would normally have called the police, and certainly would have asked his son-in-law, pre- sumably a younger and more able-bodied man, to remain with him. I find it immaterial whether the shots struck on Respondent's property, as Hargis maintained; they were bound to be intimidating to anyone in the vicinity. On all the evidence, I find that Hargis fired the shots recklessly and/or maliciously, for the sole purpose of inti- imdatmg the pickets. b. Conclusions The credited employee evidence outlined above requires no further discussion or analysis. It clearly establishes that between April 7 and 28 Respondent violated Section 8(a)(1) of the Act by unlawfully threatening employees with plant closure and loss of jobs and work if they chose to be represented by the Union; threatening to hire new employees to defeat the Union in an election ; coercively interrogating employees concerning union activities and sympathies; creating the impression of surveillance over union activities; and firing shots to intimidate employees engaged in lawful picketing. 4. Section 8(a)(3) a. The evidence Over the objections of the General Counsel and the Charging Party, Respondent persisted in establishing that on August 1 the 15 employees still on strike made uncondi- tional offers to return to work and that, in response, Re- spondent offered immediate reinstatement to 11 named employees, who, it was stated, "have not been replaced," but added that employees Trull, Church, Wade, and Rose had "been replaced" and put on a preferential hiring list. On the second day of the hearing, after the Respondent had introduced into evidence the exchange of correspon- dence of August I and 6 between the Union and Respon- dent, Ronald testified that the 11 "unreplaced" strikers were still welcome to return to work at any time, but the other 4 were still "replaced" and on a preferential hiring list and would be recalled as soon as there were openings. In answer to questions about the replacements, Ronald testified that on the morning of April 26, the day the strike began, Respondent advertised for employees through the use of radio spot announcements. The announcements said that the hourly wage rate would be $2.75 but did not spec- ify the number of employees to be hired or the qualifica- tions desired. In response to the advertisement, Respon- dent received between 100 and 300 applications and hired 17 persons. Ronald's testimony continued: HARGIS MINE SUPPLY, INC. 667 Q. Did seventeen people go to work for you? A. Yes. Q. How long did those seventeen go to work for you? A. They are still working. Q. They are still there? A. The biggest part of them yes. Q. Then would you explain why you said only four employees had been replaced? A. No, I didn't say-I mean I didn't mean it the way you are- Q. Well, how many employees were replaced? A. All of them. Q. They were all replaced? A. Yes, ma'am. Q. Then why were four people denied reinstate- ment and put on a preferential hiring list while all the rest were offered immediate reinstatement? A. Well, because I don't have enough room to take all the people back with the people I have got. I can't work all of the people. Ronald further testified that Respondent did not intend to discharge any of the "replacements" if the I1 strikers re- turned to work. When asked if Respondent needed approx- imately 13 more employees than it had just before the strike began, Ronald said he had needed them then and he "could use them now," even though the total would be around 30, as contrasted with 21 before the strike began. He indicated that Respondent's business had increased. Although he acknowledged that company records would disclose any fluctuations in the volume of business, no such records were produced. He did not volunteer any explana- tion of his failure to hire employees from the numerous job applicants when the 1 I strikers declined the offers of rein- statement. When Ronald was asked who had "replaced" each of the four employees who were denied reinstatement, he replied that he did not know, saying: "I would have to get a list of it. I don't have them with me." No such list was ever pro- duced. He further testified as follows: Q. How did you decide that these four people were to be replaced? A. Well, they were replaced when we hired these people. Q. How did you decide to replace Wade, Church, Rose and Trull? A. I replaced them all. Further questioning adduced no satisfactory answer.18 Ronald testified that he did not know of any union activ- ities on the part of the four stnkers when he replaced them on April 26. However, at least Trull had testified and been the chief employee spokesman for the Union at the repre- sentation hearing on April 24. And Church's union activity was apparently known at that time, as evidenced by the fact that her membership in the bargaining unit was vigor- ously contested by Respondent. Respondent did not follow seniority in recalling the em- ployees. Respondent considered Wade, Church, Trull, and Rose to be satisfactory employees, fully experienced and conversant with all the operations of the business. As con- ceded by Ronald, they could "pretty well" perform "just about any job in the plant." Ronald also disclosed that the decision as to who would not be offered reinstatement in August was made by Irvin Hargis, Ronald Hargis, Ronald Morgan, and Greg Coch- ran, Morgan's associate. Morgan had first been retained, at the suggestion of legal counsel, after Respondent re- ceived the Union's demand for recognition. Neither Mor- gan nor Cochran had had any previous connection orfa- miliarity with the operation of the plant. On the third, and last, day of the hearing, Hargis named the individuals who he thought had replaced the four unre- called strikers. He was then asked how it was decided "who was going to replace whom." He replied: "We had a list of people that was replaced, and the first ones replaced were the four that wasn't called back. We replaced them in or- der." Hargis vaguely suggested that replacements had been hired for specific machines. But then he testified that each of the four replacements for Trull, Church, Wade, and Rose was hired to do "[J]ust general shop work" or "gener- al labor." He was unable to identify the "replacements" for the II strikers other than Trull, Church, Wade, and Rose because "I didn't see that list for some time." Again the "list" was not produced. At the conclusion of Hargis' testimony, the General Counsel moved to amend the complaint by adding an alle- gation, based on Respondent's evidence, that on August 6 Respondent violated Section 8(a)(3) and (1) by discrimina- torily refusing to reinstate Trull, Wade, Church, and Rose. The motion to amend was granted. Thereupon Respon- dent's representative said: We would like, at this time, to-based on the un- conditional request of these people to return to work, to say that there are four jobs available now. We need the people, we need every one of them working, and if they are free to return to work at any time. . . . We make an offer to Mr. Gravitt to offer full and uncon- ditional-since they made an unconditional request for their job back, that they be granted such a request. Q. And how did you decide that Wade, Church, Rose and Trull were the only four people out of all the employees who had been replaced who would not be reinstated at that time? A. Well, I needed so many people. And if you have a hundred out there and you need twenty you have to leave eighty out there. 18 A later brief attempt to secure an explanation of the basis of the selec- tion adduced the following statement "I had some of them replaced You see some of these people quit " No enlightenment was forthcoming Ronald later testified "Q Can you tell me which employees were replaced9 A I am not a computer I'm sorry, but I don't remember them " His final statement on the subject was "Q Well, is it your testimony they were all, in fact, replaced on April the 26th) A I said I believe they were all replaced, but I am not sure 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The offer of reinstatement was then accepted by all the stnkers through union counsel. In the course of oral argument presented by Respondent's representative, the following colloquy took place: MR. MORGAN: We will take fifteen back today. JUDGE KLEIN: Is it the company's plan at that time to discharge any of the present employees? MR. MORGAN: No, ma'am, not at this time. JUDGE KLEIN: So you are, as of today, offering em- ployment to fifteen people. Now, since they have, on the record, accepted, tomorrow morning you can ex- pect 32 employees. Is that right? MR. MORGAN: That's right. Based on their uncondi- tional request. b. Discussion and conclusion Throughout the hearing, by cross-examination of the General Counsel's witnesses and by direct testimony of its own witnesses, Respondent sought to establish that its pro- duction and maintenance workers were all simply "general laborers," without specific classifications or assignments, and were all interchangeable . Respondent sought to estab- lish this alleged "fact" to meet the substantial evidence ad- duced by the General Counsel to the effect that after the representation hearing Respondent arbitrarily and discrim- inatorily transferred employees within the plant 19 But the claimed interchangeability of the employees was essentially inconsistent with the alleged replacement of four specific employees. It will be recalled that, as found above , before the strike began Respondent had threatened to hire sufficient em- ployees to defeat the Union and in fact started to imple- ment that course 20 While Ronald was somewhat indefinite as to the precise number of employees at various times, it appears clear that on August 6, when Respondent made its offers of reinstatement, 11 returning strikers would not have constituted a majority whereas 15 might have How- ever, it is clear on the record that as of August 25, when all the strikers were to return to work , they would not consti- tute a majority ; according to Morgan, they would number 15 in a unit of 3221 This arithmetic undoubtedly explains Respondent's offer on August 22 to reinstate all 15 strikers despite the fact that on the day before Ronald had testified that Respondent did not need and could not use more than the 11 employees to whom reinstatement had been offered 19 Ironically, the complaint did not specifically allege these transfers as violative of the Act 20 There is further irony in the fact that the three employees hired on April 8 and 23 joined the union forces 21 But the assumption that the persons hired on April 26 would be eligible to vote was probably erroneous Larand Leisurelies, Inc, 222 NLRB 838 (1976) on August 6. Significantly, the four "replaced" strikers were not offered reinstatement until after the motion to amend the complaint was granted. The entire sequence of events leaves no doubt that Respondent was motivated throughout by an unalterable determination to defeat the Union in a Board election. As shown above, Respondent presented no reasonable explanation for its claim that Trull, Church, Wade, and Rose had been specifically replaced while the remaining strikers had not been.22 Respondent was unable to advance any basis whatsoever for its selection of the employees to be "replaced." As previously observed, Respondent con- ceded that the four strikers in question were competent and fully experienced employees. They were not junior employ- ees and Respondent never maintained that replacements had been made on the basis of seniority. Absent any other explanation, the evident basis for the selection is the union activities of the four. As noted above, Hargis was credibly quoted as having identified Trull and Church as the insti- gators of the organizing campaign. The evidence also es- tablishes that Rose and Wade were active supporters of the Union both before and after the strike began. The infer- ence is clear that Respondent discriminatorily chose Trull, Church, Rose, and Wade to be denied reinstatement. On all the evidence, I find that Trull, Church, Rose, and Wade were denied reinstatement because of their union sympathies and activities, in violation of Section 8(a)(1) and (3) of the Act. Free-Flow Packaging Corporation, 219 NLRB 925 (1975). III. THE NATURE OF THE STRIKE The complaint alleges that the strike, which began on April 26, was "caused and has been prolonged by Respondent's unfair labor practices." Although, as set forth above, Respondent offered all the strikers reinstate- ment on August 22, it is possible that in the future it may become pertinent whether the strikers were entitled to any priority over the alleged "replacements" hired on April 26. In the event the Board rejects my recommendation for the issuance of a bargaining order, the eligibility of newly hired employees to vote in an election will depend on the nature of the strike, since "replacements for unfair labor practice strikers are not eligible to vote in an election." Larand Lei- surelies, Inc, 222 NLRB 838. Robert J. Hodge, who had originally joined the strike but thereafter returned to work, was called as a witness for Respondent. He had appeared as a witness for the Union at the representation hearing. In the present hearing he testified that during a recess in the representation hearing, on April 24, Wilburn Boothe, staff representative of the Union, asked Respondent to agree to a stipulation for con- sent election and when Respondent's representative re- fused Boothe said "that it could be handled another way." Hodge further testified that, as they were leaving the court- house after the representation hearing, "Trull said some- thing to the effect that, be prepared to strike in the morn- ing." 22 There is an equal lack of support for Ronald's and Hargis' testimony that all the strikers had been replaced HARGIS MINE SUPPLY, INC. At the present hearing, Respondent's representative ar- gued that the foregoing testimony establishes "that the strike itself was actually called during the break in the R hearing because [Respondent] wouldn't agree to a stipula- tion upon consent." This contention lacks merit. Boothe's statement did not necessarily refer to a strike, but could just as reasonably refer to the course actually taken, name- ly, the filing of a charge designed to obtain a bargaining order. At most Boothe was indicating that, despite Respondent's unfair labor practices, the Union was willing to have a speedy election but might not be so forbearing if the election were to be delayed. And the statement as- cribed to Trull could not reasonably be understood as re- flecting an existing decision to strike. Indeed, the employ- ees did not even meet to discuss the situation until later that evening, and there had been no union meetings since the initial one on April 1. At the meeting on the evening of April 24 Trull reported on the representation hearing and a general discussion en- sued. Among the matters discussed were alleged physical and verbal abuse of employees by Ronald, the threats of plant closure and loss of jobs made by both Hargis and Ronald, the hiring of new employees and proposed institu- tion of a second shift in order to defeat the Union, and Ronald's attempt in the representation hearing to have Church excluded from the unit. At that meeting the em- ployees unanimously voted to strike if necessary as a last resort. They all worked the next day. On direct examination employee Church, the General Counsel's first witness, testified that the precipitating cause of the strike was Ronald's conduct in transferring employ- ees to new and unfamiliar jobs on April 25. After she had enumerated several transfers, Respondent's representative objected "to the line of questioning" as being irrelevant under the complaint. Although the charge had alleged violation of Section 8(a)(3), the complaint contained no such allegation. Nor did the complaint allege the transfers of employees as vio- lative of the Act. However, the complaint did allege that the strike was an unfair labor practice strike and did re- quest a bargaining order. The cause of the strike obviously was relevant to a determination of its nature. Additionally, even though not affirmatively or specifically alleged as vio- lative of the Act, the transfers were part of Respondent's total course of conduct by which the propriety of a bar- gaining order must be judged. After Respondent's objection to Church's testimony was overruled, a substantial portion of the ensuing evidence concerned the employee transfers. Both by cross-examina- tion of the General Counsel's witnesses and by direct testi- mony of its own witnesses, Respondent sought to establish that the transfers were in accordance with its longstanding method of operation. Respondent also offered consider- able detailed evidence concerning the specific transfer of Trull. Thus, the matter was fully litigated. That being so, in view of its relevance to the nature of the strike and to the requested bargaining order, it is appropriate to make find- ings concerning the employee transfers after the represen- tation hearing. Cf. Free-Flow Packaging Corporation, 219 NLRB 925. On April 24 employee Church was not at work, as she 669 was attending her brother's funeral. Employee Brown was assigned to Church's machine that morning. However, when Ronald returned from the representation hearing that afternoon, he replaced Brown with Pamela Daniels on Church's machine. This latter change was apparently made to support Ronald's testimony at the earlier hearing that Church had resigned and he was training someone to re- place her. As Brown testified: "Well he couldn't say he was training me because I was already trained." Daniels was inexperienced at sewing. On the next morning Daniels was again assigned to Church's machine and several other em- ployees were transferred, including Brown, Wade, Rose, Church, Darrell Wingler, and Trull. According to employ- ees Church, Trull, and Brown, the employees were trans- ferred to jobs which they had not previously performed. No explanations were given.23 Respondent maintains that all the employees are "gener- al laborers," with no specifically assigned jobs. According to Respondent, all employees are generally familiar with the various operations in the plant and are frequently transferred among specific operations. The employees tes- tified that such transfers do occur frequently, but only when necessitated by rush orders. In such cases, employees willingly work wherever they are needed. However, they maintain that, generally speaking, each employee has a reg- ularly assigned position. Hargis in effect corroborated this, testifying. Well, usually, when they train them on a sewing machine, that person uses that machine when it needs to be used. But if there's something to be done over on another table, some other type of work, and the work on this machine is caught up, then this operator is moved to the other job, and this machine is idle. And then, when they need work done with this machine, she comes back to her machine. But very seldom is another person put on that person's machine, unless there's a reason. . . . A machine breakdown- ... or if-let's say-let's call them machines 1, 2 and 3- three machines, . . . If the operator on No. 1 is moved to another job, and No. 3 machine operator is working on a certain bag, her machine breaks down, she will move to No. I machine with her work. But that's-if they have the same work to do on this machine, and this other woman's machine is running, nobody gets on this machine, but that operator. That's usually the policy. Since Respondent adduced no evidence of any special circumstances calling for the numerous employee transfers on April 25, I can conclude only that they were dictated by the union activity and were part of Respondent's evident campaign to discourage such activity. Trull's transfer was especially significant. Employees Robert Craft and Darrell Wingler had regularly worked together installing grommets in large and heavy rolls of plastic material. When Lorraine Trull arrived at work on April 25, she went to her usual table to resume the work she had been doing the day before. However, Ronald di- 23 As Brown testified "[Ronald] had everybody changed around so much I don't think any of them knew what was going on " 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rected her to go help Craft, and Wingler was transferred elsewhere. Craft was at that time working on rolls of plastic 150 feet long and 8 feet wide. Hargis maintained that the weight of an 8-foot-wide roll would be only 125 to 130 pounds. He was referring to plastic weighing 13 ounces per square yard. Trull, however, testified that one of the two 4-foot-wide strips that had been sewn together was materi- al weighing at least 18 ounces per square yard. In the course of the operation the material had to be lifted when rolled on an iron bar 24 Craft said the average weight was about 215 pounds, apparently including the metal roller. He testified that he never before had had a female helper on this operation. Trull testified that in the past she had "helped make these rolls" but "had never lifted one before April the 25th. Robert and Darrell would come and lift them off for us." In the course of lifting the rolls on the morning of April 25, Trull injured her back and went to the hospital for treatment. Had it been so alleged, I should have no hesitancy in finding "that Respondent violated Section 8(a)(3) and (1) by discriminatorily assigning [Trull] to work at a job it knew was physically difficult for [her] to perform, because [she] had openly expressed a prounion attitude." Drum Parts, Inc., 222 NLRB 511 (1976). The next morning, April 26, some 17 of the 21 employees went on strike. They began picketing with signs reading: "U S W A UNFAIR LABOR PRACTICE STRIKE HARGIS MINE SUPPLY " Several of the employees testified that they went on strike "for respect." It was the employees' objection to the "lack of respect" afforded them by Respondent that origi- nally led to the successful organizing campaign. It may well be that the "lack of respect" and the specific incidents evidencing that lack did not constitute unfair labor practic- es. However, there is no doubt on the present record that Respondent's unfair labor practices were a substantial fac- tor in precipitating the walkout. Indeed, on cross-examina- tion Church said that the switching around of employees was the only reason for the strike. Church, Brown, and Trull all indicated that the transfers were "the last straw" leading to the strike. The employees had originally sought to gain "respect" by organizing and they invoked Board processes to achieve that goal. It was not until Respondent refused to cooperate in a speedy election and, instead, add- ed to its unfair labor practices that the employees went on strike. Their tentative agreement to strike if necessary, made on April 24, was substantially influenced by Respondent's prior unfair labor practices, including the threats to hire new employees to outvote the Union. The tentative decision to strike if necessary became final-i.e., the strike became "necessary"-when the transfers on April 25 made it clear that Respondent did not intend to abandon or lessen its coercive conduct designed to discour- age unionization. The evidence thus leaves no doubt that 24 Craft described the operation as follows "They have sewed together two four foot pieces and that makes 8 by 150 foot rolls And we pull them up off the floor and put them on the table, put grommets in them every foot, and then roll them up on the roller "Then you tape it up and then you spray it Then you have to take it off the roller Then you have to take it over, carry it over maybe 15 feet, and lay it down on the floor " the strike was in major part a reaction to and protest against Respondent's unfair labor practices. On August 1 the strikers offered to return to work. They then continued the strike only because of Respondent's un- lawful refusal to reinstate Trull, Church, Wade, and Rose. Thus it is found that the strike was not only caused but also prolonged by Respondent's unfair labor practices. CONCLUSIONS OF LAW 1. By coercively questioning employees concerning their union sympathies; by threatening them with plant closure, discharge, or reduction in work if the plant were unionized or if they supported picketing; by conveying to them the impression of surveillance of union activities; by threaten- ing to hire new employees to defeat the Union in an elec- tion; and by firing threatening shots at pickets, Respon- dent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 2. By discriminatorily failing to offer reinstatement to striking employees Lorraine Trull, Anona Church, Priscilla Wade, and Inez Rose on August 6, 1975, Respondent has discriminated in regard to hire and tenure of employment, in violation of Section 8(a)(3) and (1) of the Act. 3. The strike which began on April 26, 1975, was caused by and prolonged by Respondent's unfair labor practices. THE REMEDY Having found that Respondent committed numerous vi- olations of Section 8(a)(1) of the Act, I shall recommend issuance of a customary cease-and-desist and notice-post- ing order. Because of the flagrant and pervasive nature of the unfair labor practices, I shall recommend a broad cease-and-desist order. Highland House Nursing Center, Inc, 222 NLRB 134 (1976). Since Respondent has offered reinstatement to all the strikers, I shall not recommend that the order contain any such requirement. Denver Dry Wall Mountain Division, In- corporated, 216 NLRB 51 (1975). However, backpay will be ordered. Trull, Church, Wade, and Rose, having been dis- criminatorily denied reinstatement, are obviously entitled to backpay. The situation as to the remaining strikers is somewhat different. In Southwestern Pipe, Inc., 179 NLRB 364 (1969), the Board ruled that unfair labor practice strik- ers are not entitled to backpay if they decline offers of reinstatement because discriminatorily discharged employ- ees are not also offered reinstatement. See also Anderson Plumbing and Heating Company, 203 NLRB 18 (1973). However, in O'Daniel Oldsmobile, Inc., 179 NLRB 398 (1969), the Board stated the rule in a more qualified way, as follows: Southwestern Pipe, Inc.... holds that where strik- ing employees make an unconditional offer to return to work and the employer, without a discriminatory mo- tive, offers reinstatement to them as less than a group, backpay is tolled as to those strikers who receive offers of reinstatement but who refuse then to return to work. [Emphasis supplied.] HARGIS MINE SUPPLY, INC 671 In the three cases cited the refusals to reinstate were not found to be discriminatorily motivated. In the present case, however, it has been found that Respondent was discrimi- natorily motivated in refusing reinstatement to four of the strikers. Had the remaining 11 returned to work, they would probably have effectively renounced their right to union representation since they were outnumbered by the nonstrikers. Under the circumstances, the qualifying lan- guage in the footnote to O'Daniel Oldsmobile warrants awarding backpay to all the strikers in the present case. My Store, Inc., 181 NLRB 321 (1970). Accordingly, I shall rec- ommend that Respondent be required to reimburse all the strikers for loss of pay suffered by them from August 6, 5 days after they offered to return to work, through August 22, when they were all offered reinstatement. Backpay shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest, in accor- dance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The General Counsel requests, and Respondent vigor- ously resists, a bargaining order. The violations of Section 8(a)(1) were in themselves very serious. Repeated threats of plant closure are notoriously most coercive and eminently calculated to cause defection from the Union and to render a fair election impossible. Additionally, as found above, Respondent's conduct was unquestionably designed to de- stroy the Union's clear majority. In this connection it is worthy of note that on April 24, at the representation hear- ing, Respondent refused the Union's request for a consent election. Obviously Respondent was playing for time with- in which to gain "the more favorable voting situation which Respondent sought to accomplish by postponement of the election." Free-Flow Packaging Corp., 219 NLRB 925, 929. Such conduct renders a fair election impossible. Accordingly, I find that "Respondent's unfair labor prac- tices are sufficiently flagrant and pervasive to justify an order requiring it to bargain with the complaining Union as the exclusive representative of the appropriate unit." Ibid., 930; Dallas Ceramic Company, 219 NLRB 582 (1975); Elling Halvorson, Inc, 222 NLRB 534 (1976). The effective date of the bargaining order will be April 8, 1975, when Respondent received the Union's demand for recog- nition. Trading Port, Inc., 219 NLRB 298 (1975). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 25 Hargis Mine Supply, Inc., Pineville, West Virginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively questioning employees concerning their sympathies and activities for any labor organization; threatening them with reprisals (including plant closure, discharge, or loss of overtime) if the plant is organized or if they support a union; conveying to them the impression of surveillance of union activity; threatening or attempting to hire additional employees to vote against unionization; threatening bodily harm to pickets; or in any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. (b) Discouraging membership in and activities on behalf of United Steelworkers of America, AFL-CIO-CLC, or any other labor organization, by discriminating in regard to hire and tenure of employment of Respondent's employ- ees, or by discriminating in any other manner in regard to any term or condition of employment, in order to discour- age or interfere with membership or activities therein. 2. Take the following affirmative action deemed neces- sary to effectuate the policies of the Act: (a) In the manner described in the Remedy portion of the Decision herein, make whole the employees named be- low for any loss of pay they suffered as a result of Respondent's failure to offer them all reinstatement pur- suant to their unconditional offer of August 1, 1975, to return to work. The employees are: Priscilla Wade, Anona Church, Inez Rose, Lorraine Trull, Robert Craft, Barbara Fritz, Barbara Brown, Darrell Wingler, Pamela Daniels, Lidda May Christian, Harold Wingler, Wesley Friend, Mildred Canterbury, Arlene Berta, and Lynda Christian. (b) Preserve and make available to the Board or its agents, upon request, 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 hereof. (c) Upon request, bargain collectively with United Steel- workers of America, AFL-CIO-CLC, as the statutory rep- resentative of the employees in the following unit: All production and maintenance employees em- ployed by Respondent at its Pineville, West Virginia, location, including truckdrivers, but excluding driver- salesmen, office clerical employees, professional em- ployees, guards and supervisors as defined in the Act. (d) Post at its plant in Pineville, West Virginia, copies of the attached notice marked "Appendix." 26 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent, shall be posted immediately upon receipt thereof, and be main- tained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 25 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 26 In the event 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 "