Hurst Performance, Inc.

HURST PERFORMANCE, INC. Hurst Performance, Inc. and International Union, United Automobile, Aerospace & Agricultural Im- plement Workers of America, UAW. Cases 9-CA- 12130-2 and 9-CA-12276 May 10, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On January 23, 1979, Administrative Law Judge David L. Evans issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 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 briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Hurst Performance, Inc., Cincinnati, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modi- fied: 1. Insert the following as paragraph 2(b), and re- letter the subsequent paragraphs accordingly: I No exceptions were filed with regard to the Administrative Law Judge's dismissal of the 8(a)( ) allegations relating to Respondent's allegedly unlaw- ful no-solicitation and no-distnbution rules, Respondent's alleged surveil- lance of employees' union activities on January 6, 1978, and the Administra- tive Law Judge's failure to make any unfair labor practice findings with regard to those matters not alleged in the complaint but admitted by Super.- visor Shands. In agreeing with the Administrative Law Judge's finding that the Febru- ary 15 layoff was implemented without regard for seniority, we disavow his characterization that Plant Manager Crist's testimony concerning Respon- dent's seniority policy toward ex-Tassos employees was "gibberish" and "ab- surd." 2 In order to more fully effectuate the purposes and policies of the Act in the event Respondent resumes operations in the Cincinnati area, we shall modify the Administrative Law Judge's recommended remedy by ordering Respondent to place all employees unlawfully terminated on January I I and all employees unlawfully laid off on February 15 who were not thereafter recalled on a preferential hiring list. In such event, Respondent shall at that time offer reinstatement to those employees. In all other respects. we adopt the Administrative Law Judge's recommended remedy. "(b) Establish in consultation with the Union a preferential hiring list, following a nondiscriminatory system, such as seniority, which includes the names of all employees unlawfully terminated on January II1, 1978, and all employees unlawfullly laid off on Feb- ruary 15, 1978, who were not thereafter recalled and, if Respondent ever resumes operations anywhere in the Cincinnati, Ohio, area, offer reinstatement to those employees. In the event Respondent in the fu- ture decides to resume operations at its 2421 East Kemper Road, Cincinnati, Ohio, facility, it shall offer them reinstatement to their former positions or, if such positions no longer exist, to substantially equiv- alent employment." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees about their union membership, activities, or desires, and WE WILL NOT threaten them with discharge, plant closure, loss of employment opportunities, or other reprisals in the event they choose to be represented by a labor organization. WE WILL NOT lay off, discharge, or otherwise discriminate against our employees in regard to their hire, tenure, or any terms or conditions of employment because they become members of or engage in activities on behalf of International Union, United Automobile, Aerospace & Agri- cultural Implement Workers of America, UAW, or any other labor organization. WE WILL make whole the following named employees for any loss of earnings they may have suffered as a result of the discrimination against them, plus interest: Robert McCord Larry Inman Stephen Carter Donald Stephen Taylor Quincy Fant Jeffrey Robertson Danny Roberts Steve Hall Eric Kendle Brian Haigh Stephen Haker Donald Mohr James Whitmer Steve Benz Michael Collis Charles Tickle John Stirsman Jeff Webb Jon G. Braunstein Chester Collins Larry Surgart Joe Walters Robert Evans Dennis Phillips WE WILL, in consultation with the Union, es- tablish a preferential rehiring list, following a 242 NLRB No. 30 121 I)E('ISIONS OF NATIONAL LABOR RELATIONS BOARD nondiscriminatory system, such as seniority, which includes the names of all employees un- lawfully terminated on January 11, 1978, and all employees unlawfully laid off on February 15, 1978, who were not thereafter recalled and, if we ever resume operations in the Cincinnati, Ohio. area, wF Wll1. offer reinstatement to those em- ployees. If we decide to resume operations at our 2421 East Kemper Road, Cincinnati, Ohio, facil- ity, WL WII.l. offer them reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions. WI. WIL. NOT in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of their right to engage in or to refrain from engaging in any or all of the activities speci- fied in Section 7 of the Act. These activities in- clude the right to self-organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection. HURSI PERFORMAN(I, IN(N. DECISION SIAIiMENNI ()F 1 IF CASE DAVID L. EVANS Administrative Law Judge: A hearing in this consolidated proceeding was held on September 18 and 19, 1978,' at Cincinnati, Ohio, based upon charges filed against Hurst Performance, Inc., herein called Respondent, by International Union, United Automobile. Aerospace & Agricultural Implement Workers of America, UAW, herein called the Union or Charging Party. The charge in Case 9 CA 12130 2 was filed on February 3; the charge in Case 9 CA-12276 was filed on March 8. Complaints upon said charges were issued by the Regional Director, alleging that Respondent violated Section 8(a)( 1) of the National Labor Relations Act, as amended, herein called the Act, by the following acts and conduct: asking an employee if he were going to attend a union meeting; warning employees of un- specified reprisals if they became members of the Union or gave support to it; keeping an employee-conducted union meeting under surveillance; maintaining and enforcing a violative no-solicitation rule: threatening discharge, layoff, plant closure, and other unspecified reprisals if employees engaged in union activities: and threatening employees with surveillance of their union activities. The complaint further alleges that Respondent, in violation of Section 8(a)(3) of the Act, discharged 5 employees on January I I and I on January 19 and laid off 19 employees on February 15. Respondent denies the commission of any unfair labor practices. Specifically, it contends that persons classified as leadmen, who are alleged to have committed most of the independent acts of interference, restraint, and coercion I Unless otherwise specified, all events described herein occurred in 1978. were not supervisors within the meaning of Section 2(1 1) of the Act, and therefore it is not responsible for their con- duct: that the discharges of January I I and 19 were for cause: and that the February 15 layoff was necessitated by economic conditions. IThe General Counsel and Respondent filed briefs, which have been carefully considered. Upon the entire record and upon my observation of the witnesses and the inherent probabilities and improbabilities of their testimony, and having taken into account the arguments made at the hear- ing and in the briefs submitted, I make the following: FINDINGS AND CONCIU.SION S I. JURISDICTION Respondent is a Pennsylvania corporation which at all times material herein has maintained offices, factories, or other places of business in Pennsylvania, Ohio, and Michi- gan. From January 1977, until July 21, 1978, Respondent maintained a factory in Cincinnati, Ohio, where it engaged in modification of automobile bodies, principally for Gen- eral Motors Corporation. During the 12-month period im- mediately preceding issuance of the first complaint herein, a period representative of Respondent's operation at Cincin- nati, Respondent performed services for, and sold and shipped goods and materials valued in excess of $50,000 from its Cincinnati facility directly to, customers located outside the State of Ohio. Upon these and admitted facts, I find that Respondent is, and has been at all times material herein, an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES Respondent. at the Cincinnati facility in question, modi- fies2 sporty two-door hardtop automobiles. Although it may accept orders from other manufacturers and individuals, al- most the entirety of Respondent's production at Cincinnati is the modification of new Pontiac Firebirds and Chevrolet Camaros, which are manufactured by General Motors. The modification consists of "hatching" or "hatching-out" these automobiles, a process of taking delivery of the finished Firebirds and Camaros, cutting square-shaped holes in the roofs above the drivers' and front passengers' seats, fitting removable safety glass windows in the spaces created by the cutting, testing for leaks, and returning the automobiles to an automobile transport-delivery service. Respondent began operation in the Cincinnati area in January 1977, when it was told by General Motors Corpo- ration that if it wanted to keep the Firebird and Camaro business, it had to establish operations near the General Motors plant which manufactures the automobiles. At first 2For purposes of clarity, the present tense is used in descnbing Respon- dent's operation, although the Cincinnati plant was closed about July 21. T'he permanent closing of the plant is not alleged to have been violative of the Act. 122 HURST PERFORMANCE, IN(C. Respondent performed only managerial, inspection, and support work, having contracted out the labor to an on-site contractor, G. T. Tassos Corporation. Because of its dissat- isfaction with certain aspects of Tassos' operation, Respon- dent terminated the contract and took over management of all labor at the factory effective January 3. In mid-Decem- ber 1977 Respondent informed some, hut not all, of the Tassos employees that it would accept employment appli- cations from them if they wished to apply. Respondent did not extend this invitation to apply to employees whom it considered unwilling or unable to perform the work to Re- spondent's satisfaction or whom it considered undesirable for any other reason. Lee Crist, Respondent's plant man- ager, testified that some "borderline" employees were per- mitted to apply, but he did not specify their names or num- bers or why each was considered marginal. Crist was the chief executive of the Cincinnati operation both before and after Respondent removed Tassos. Crist's immediate subordinates were Greg Koepenhaffer, plant su- perintendent, and Lenny LeFevre. plant foreman, both of whom Respondent admits were supervisors within Section 2(11) of the Act at all times material herein. Immediately reporting to these individuals were the group leaders, whose status as employees or supervisors is in dispute: Mike Fos- ter, Mike Alexander. Tom Dreyer, Everett Shands, and George Terry. The group leaders, principally Foster and Alexander. were responsible for overseeing various aspects of the pro- duction line operation. Beginning January 3, Koepenhaffer and LeFevre conducted meetings where production and the Union's organizational attempt were discussed. Shands, who was called by the General Counsel, testified that at one of the early meetings Koepenhaffer told the group leaders that he suspected that union or concerted activity was afoot in the plant and that he further suspected a group walkout or strike. Koepenhaffer told the group leaders that if any one of eight "key" employees walked out, they should tell him immediately that there was no need for him to come back. Shands further testified that Koepenhaffer told the group leaders that if an employee was unjustifiably late or absent he should be issued a written warning notice. Koe- penhaffer was not called to testify.' LeFevre was called by Respondent, but he was not questioned about these instruc- tions, although, according to Crist, he was required to be at all of the daily meetings. Therefore, Shands' testimony in this regard is undenied. It is also undenied that on January 3 Crist posted a notice, dated "12-28-77," addressed to all employees, announcing that Respondent would discharge employees for "serious violations," which were unspecified. The notice further announced a system of progressive disci- pline, including verbal warning, written warning, 3-day sus- pension, and termination for repeated violations other than "serious violations." It is further undisputed that the group leaders had in their possession forms entitled: "Hurst Per- formance, Inc., Disciplinary Action Form." Received in evidence, without objection, was one such memorandum 'The failure to produce Koepenhaffer is critical and will be mentioned several times hereafter. Respondent states in its brief that it was unable to produce Koepenhaffer. However, at the hearing there was no evidence ten- dered or representation made regarding any attempt to find Koepenhaffer or compel his attendance by subpena. issued to employee Bill Foster by leadman Michael Foster who signed the document in a space designated "IMMEIlI- ATE SUPERVIS()R.4 Respondent makes no suggestion that Foster was not authorized to issue such notice (other than in answers to conclusionars, leading questions, which I discredit) or that the warning notice was not placed In any of Respondent's files. Since. under Respondent's system of progressive disci- pline, written warning notices place in jeopardy the tenures of employment of its employees. Respondent has ested leadmen with authority to affect that tenure and. therefore. "discipline" them as the term is used in Section 2(11) of the Act.' Of course, the authority to discharge. even for the limited (and violative) reason o striking, has the ultimate effect on an employee's tenure of employment. While there was a great deal of testimony regarding the issue of whether leadmen had the authority responsibly to direct the work of the production line employees, I need not decide this issue. The Board and the courts have held on occasions too numerous to count that, when Congress used the word "or" in Section 2(11 ) of the Act, it meant exactly what it said. The authorities enumerated therein are to be read in the disjunctive: possession of any one will require a finding that the individual in dispute is a supervisor. Specif- ically, the Board has recently held that possession of the authority to discipline (afiJrtiori discharge) compels a con- clusion of supervisory status, regardless of the presence or absence of any of the other indicia enumerated in Section 2(11). The New Jersey Famous Ato.s (Chocohlle (/tp ( ooAit Corporation. 236 NLRB 1093 (1978). AccordinglNy, I find and conclude that all of the group leaders were, at all times material herein. supervisors within Section 2( I 1) of the Act and that Respondent is responsible for their conduct (which is factually undenied). A. Background. LUniion Activity and Alleged I'iolations The last day Tassos operated as a labor contractor at the plant was December 22, 1977. Respondent hired 33 of the 41 production employees whom Tassos had employed. In addition, Respondent hired seven new production employ- ees on January 3. its first day of operation as the employer of the employees involved herein. Crist on that date con- ducted an employee meeting on the production floor before the employees began the day's work. At that meeting Crist told the employees how Hurst intended to operate the plant and introduced' as "leadmen" or "group leaders" Foster, Alexander, Dreyer, Shands, and Terry. Questions from the floor were entertained. One employee was prompted to ask, apparently b the presence of seven new faces, what the respective seniority rights would be between former Tassos and non-former Tassos employees in the event of lansoff. 4 apitals are original See Southland (oporpraon, 208 NLRB 715 (1974). and Schding locks Corporation 150 NLRB 1688 (1965). where issuance of such notices was held to be iolative of Section 8(a) I ) and (3. * It is also relevant that the leadmen attended daily management meetings, were In a higher pas grade than other employees. almost never performed manual labor, were (according to the written warning notices) held out to the employees toi be supervisors, and were considered such by the employees T The, had been classified "foremen" when lassos was present. 123 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Crist's answer is in dispute. Employees Donald Mohr and Joe Walters testified unequivocally that Crist responded that the former Tassos employees would be given prefer- ence in layoff and recall rights to employees hired "on that day." Crist testified: I told them we had considered this and since we were going to have Tassos people, that we would honor their seniority on that day of January the 3rd in relation to what was the most senior person in the Tassos senior- ity would be established as the most senior person on that day with us. This, of course, is gibberish. To the extent that Crist was trying to convey the impression that Tassos seniority was to be honored that day, and only that day, it is also absurd: nobody was being laid off or recalled on January 3. More- over, as he gave the above answer, Crist strongly empha- sized the phrase "on that day" both of the times he used it. In doing so, Crist protested too much, belying himself in demeanor as well as word. Mohr and Walters impressed me favorably, and I credit their account. In addition to their having a credible demeanor, their account makes sense; if Crist had meant that the former Tassos employees would have no preference over non-Tassos employees, he could have simply stated the fact. In addition to promising former Tassos employees prefer- ence over new hires, Respondent had promised to honor seniority accrued by those employees vis-a-vis themselves. In another notice to employees (which was placed in evi- dence by Respondent to show that they were notified that they would be on a probation as "new" employees), Re- spondent assured the employees that it would honor Tassos seniority thusly: . .you will be a new employee, but as a new em- ployee, if you are the oldest employee with Tassos you will carry the seniority as the oldest new employee hired. During the 4 days following the January 3 meeting, Rob- ert McCord, Larry Inman, Donald Stephen Taylor, Quincy Fant, and Stephen Carter began discussing the possibility of union organization among themselves and with their fel- low employees. An unsuccessful attempt to secure represen- tation by the Charging Party had been made the previous summer. The chief employee proponent of organization, ac- cording to all of General Counsel's witnesses, was McCord. Respondent denies knowledge of McCord's activities, as well as those of all other employees, before the original charge was filed. The employees planned a meeting to discuss organiza- tion. It was agreed that a meeting of employees would be held in the employee parking lot immediately after quitting time (3:30 p.m.) on Friday, January 6. At approximately I p.m. on that date, Inman entered the breakroom at the plant. When he entered, Koepenhaffer was there alone. Koepenhaffer asked Inman if he were going to attend the meeting. Inman attempted an evasive response, and Koe- penhaffer replied, "You know what I mean, the meeting about the Union." Inman responded that he did plan to attend. The meeting was held as scheduled in the parking lot. McCord did most of the talking in favor of the Union, but Inman, Taylor, Fant, and Carter were also vocal. In attend- ance at the meeting was group leader George Terry.' who had parked his car in the lot. Terry stood around and watched and listened as Inman passed out four or five blank UAW authorization cards which he had left over from the previous organizational attempt. At this meeting Carter, Taylor, and several other employees signed authori- zation cards. While this meeting was being conducted, Koe- penhaffer stood at a factory door, where he could see, but not hear, the employees. Shortly after the January 6 meeting, but before the Janu- ary I I discharges, Dreyer approached Inman at his work station on the production line and told him, "You guys are trying to bring the Union in here and if you do, the com- pany will close down." Both before and after the January 6 meeting, Alexander told Inman several times that "'UAW' stands for you ain't working." Shands testified that he knew that McCord was the prin- cipal employee organizer and that Taylor was assisting him. Shands further testified that on January 10, at the daily management meeting, the leadmen and Koepenhaffer were discussing the union activity, and some of the group leaders mentioned that McCord was with the Union and that he was getting the employees "stirred up." According to Shands, Koepenhaffer responded that if McCord continued to get the employees "stirred up," Respondent would "have to let him go." On the following day McCord, Taylor, Fant, Inman, and Carter were told by Koepenhaffer to report to his office at quitting time. When they arrived, Koepenhaffer had their final paychecks, which he handed them, and he announced, "We're going to have to let you go; we're reorganizing the plant; you don't fit in." When the five men pressed for an explanation, Koepenhaffer responded, "I can't say no more; that's the way it is." It is undisputed that none of the five men were told that they were considered "borderline" or otherwise forewarned that their jobs were in jeopardy or that they had committed any offenses, "serious" or otherwise. In memoranda to their personnel files and in response to inquiries by the Ohio un- employment agency, Respondent noted only: "Terminated without prejudice during the probationary period in line with reorganization procedures." In its defense Respondent offered only the testimony of Crist and LeFevre. Crist stated that he relied on the recom- mendation of Koepenhaffer in making the decision to dis- charge the five men. Crist could not remember the names of the five dischargees other than those of McCord and Tay- lor. He could not specify reasons for the discharges. The closest he could come was such statements as: "[T]hese five people were resisting everything we did. They weren't going to let us get that line set up right and it was his (Koepenhaf- fer's) recommendation that we terminate those people." I stated unequivocally on the record that I was admitting such testimony only for the limited purpose that some re- port was made by Koepenhaffer to Crist. Of course, it was hearsay as to purported derelictions of individual employ- ees. As noted above, Koepenhaffer did not testify. LeFevre, the individual who Respondent contends was their immedi- I As with Koepenhaffer, Respondent did not call any of the group leaders to testify. Therefore, testimony regarding their conduct is factually undenied. 124 HURST PERFORMANCE, INC. ate supervisor. could specify no fault with any of the em- ployees except that he thought McCord did not use one piece of the equipment, a foam gun, properly. However, there is no evidence that he thought McCord should be discharged for that reason or that he made such a recom- mendation to Koepenhaffer or Crist. In July Inman returned to the plant and asked LeFevre for a letter of recommendation. In a letter dated July 31 and addressed "To whom it may concern," LeFevre states: "His attitude, attendance, integrity and work performance were all excellent. I would highly recommend Donald for a responsible position with any company." On the day of the discharge, five inexperienced employ- ees (including Michael Boshears) were hired, and a sixth was hired the following day. At least two of these employ- ees were later dismissed because of inability or unwilling- ness to keep up with the work. On the day following the discharges McCord turned over to Mohr about 60 blank UAW authorization cards. Mohr, assisted principally by employees Jeff Webb and Joe Wal- ters, distributed about 40 of the cards, approximately 18 or 20 of which were returned to Mohr. Mohr took the cards to Union International Representative Ivory Howard. who sent to Crist a letter dated January 24 stating the fact that a majority of the production and maintenance employees had selected the Union as their collective-bargaining representa- tive and requesting recognition. On January 25 Howard filed a petition for election in Case 9-RC- 12339, describing as the unit involved all production and maintenance em- ployees of Respondent. The following is the unrebutted testimony of the named employees regarding the conduct of Koepenhaffer and the group leaders in the period between the discharges of Janu- ary II and the layoff of February 15: Benz testified that on January 13, at the employees' morning break period, at his work station, he signed a UAW authorization card which Mohr had given him. As he did so, Koepenhaffer walked by and stated to the employ- ees, "[Y]ou would get in trouble for that." Benz volunteered that Koepenhaffer joked a lot, and he could not tell if he was joking on this occasion. Mohr testified that during the latter part of January, Alexander repeatedly approached him at his work station and told him that if Respondent found out who was in- volved with the Union, it would discharge them and, specif- ically, that if Respondent discovered that Mohr was in- volved, he would be fired. Alexander also repeatedly told Mohr that Respondent would close the Cincinnati opera- tion and move elsewhere if the employees chose the Union as their collective-bargaining agent. Mohr and Walters tes- tified that during the latter part of January, at Walter's home, Alexander told the two employees that Koepanhaf- fer had stated at one of the daily management meetings that Respondent intended to fire them because of their "atti- tudes." Apparently on this occasion no mention was made of union activity, but there is no other salient aspect of the employment of Mohr and Walters in evidence, and I con- clude that by "attitude" the employees would reasonably have believed that Alexander meant the employees' pro- 9 Walters and Alexander are brothers-in-law. union sympathies. Mohr also testified that Alexander told him, while at work, that at one of the daily management meetings during this period. Koepanhaffer had said that "he'd like to find out who was passing out the cards: he'd like to put a stop to it and they'd be gone." In addition to the above. General Counsel alleges that certain conduct of Shands violated Section 8(a)(1). Em- ployee Benz testified that at some time in March, before the election of March 17, he called Shands to secure informa- tion because he knew Shands attended the daily manage- ment meetings. Benz testified that during the conversation Shands told him that "the five guys were fired because of their union activity." As noted above, Shands was called by General Counsel, but he was not asked about this conversa- tion by either General Counsel or Respondent: therefore, Benz' account remains undenied, and I find that the state- ment was made. Shands was asked about, and did admit, telling several employees of Koepenhaffer's threat to fire McCord if he continued to stir up the employees about the Union. Shands further admitted telling McCord on the morning of his discharge that he should not be so open about his activities, an action which General Counsel con- tends independently constitutes a warning of reprisal or threat of discharge. Michael Boshears was one of the inexperienced employ- ees hired on January II to replace the five employees who were discharged on that date. Boshears testified that he was assigned the job of placing moldings on the automobiles as they progressed along the production line. He further testi- fied that he was supervised by LeFevre and only mention of his work by management was "to help me out, trying to get me started learning the stuff and point out to me if I made mistakes, and how to do it right and stuff like that." Bosh- ears received an authorization card from one of his fellow employees at work on January 16. He took the card home and returned it to one of the employee-solicitors on January 17. No supervisor witnessed any of this activity. On Janu- ary 18 the employees were called together and given clean- up duties to keep them working, as there were no automo- biles to work on because of the bad weather. After the meeting Koepenhaffer called Boshears to his office and told the employee that he was discharged. Ac- cording to Boshears, he asked, "Am I not working fast enough or what?" Koepenhaffer, after a few seconds' pause, replied, "[Yleah, that's it." Boshears testified that he had received no written or oral warning during the week he was employed. Respondent presented no evidence regarding Boshears' work. On Wednesday,?' February 15, Respondent laid off 19 employees, 14 of whom had signed authorization cards for the Union. Respondent argues that the layoff was effectu- ated solely because of economic necessity. It further argues that no antiunion motivation has been demonstrated by General Counsel, since 5 of the 19 employees laid off had not signed authorization cards for the Union, and that Gen- eral Counsel has not proven knowledge of the membership or activities of any of the employees. Finally, Respondent contends in its brief that "all employees laid off on Febru- ary 15, 1978, were on probation and were laid off by senior- ity." 10 Respondent's pay penods were from Fnday to Friday. 125 I)E(ISIONS OF NATIONAl. LABOR RELATIONS BOARD According to record evidence, including stipulations of the parties, the respective seniority status of the employees laid off is as follows: Eight of the employees were former Tassos employees; their names and respective Tassos se- niority dates, all in 1977, are: Benz,. Robert Evans, and James Witmer, January 24: Walters, February 22; Michael ('ollis, February 23: Stephen Haker. February 24: Mohr. March 29: Webb, April I. The remainder (Jeffrey Robert- son, Danny Roberts. Steve Hall,. Eric Kendle, Brian Ilaigh, Charles T ickle. John Stirsman, Chester Collins Jon G. Braunstein. Larry Surgart, and Dennis Phillips) were hired on or after January 3. Three employees who were hired on or after January 3 were retained on February 15: Phillip Weidman, Jeffrey Costa, and William Smallwood. Each of the former Tassos employees who were laid off on February 15 was senior to at least some other Tassos employees who were retained: those employees and the number of Tassos employees junior to them who were retained were: Benz. Evans. and Whitmer. 11; Walters. 9 (Collis. 7: Ilaker, 6: Mohr and Webb, 3. Accordingly, I find that the layoff was implemented with- out regard for seniority. The only evidence regarding economic necessity for the layoff consisted of Crist's unsupported testimony that on February 10 Tom Flaherty of General Motors informed him by telephone that production was going to be reduced during the forthcoming 5 or 6 weeks, and during that period Respondent would be receiving from 40 to 45 cars per day as opposed to the norm of 75 to 80. Flaherty was not called to testify even though rist stated that he still deals with that General Motors representative regularly. Crist admitted that Respondent occasionally receives no- tice of diminished shipments from General Motors, but in- sisted that Flaherty's prediction f February 10 was un- precedented. Since Flaherty was not called to testify, ('rist's account of the timing (as well as content) is factually un- contradicted. The date is critical to Respondent's case. as Crist testified that there was a 7 days' time lag between announcements of reduced production by General Motors and actual effect on Respondent. If credited, this would give some seeming support for the timing of the layoff. (Of course, it would not explain why the layoff was imple- mented only 3 working days after the notice.) Assuming that some notice of reduced production was given in the first half of February, I discredit Crist's testi- mony as to the exact date. The testimony was given in re- sponse to a repeated leading question, and it was made in reliance upon a rejected exhibit, as discussed infra. Addi- tionally, although Crist testified that he immediately real- ized that a substantial and long layoff would be required, Respondent did not notify the affected employees until the date of its implementation. February 15, and Respondent did not explain the reason for the layoff until the following day. There is no legitimate reason for the delay in notifica- tion and explanation. While Koepenhaffer, according to Crist, made an investigation to determine who should be laid off, his supposed report was completed and delivered on February 11. Moreover, I discredit Crist as to the content of the pur- ported conversation with Flaherty. Flaherty was not pro- duced, nor were any' documents which would have corrobo- rated such a conversation, such as receipts, as discussed in/ra. Finally, even under Respondent's theory, there was no necessity for implementing the layoff only 3 working days after the notice, a factor further discrediting Crist." Although General Counsel subpenaed the records which would document the timing and nature of the reduced re- ceipts of automobiles from General Motors, and although Respondent's counsel acknowledged the existence of such records, none was produced; also, LeFevre testified that Respondent possessed records which would reflect the in- ventory of cars on the lot ready for processing on February 15. but these records were not produced. Respondent did offer some documents which Crist identi- fied as summaries of receipts, shipments, "inventory on hand." and number of automobiles produced from October 10, 1977, through December 31, 1977. Respondent also ten- dered summaries of automobiles received, shipped, and produced (but not "inventory on hand") from January 3 through April 22. These summaries were made post hoc, the process of making them having been initiated on February 28, and the originals from which they were purportedly taken were not made available to General Counsel or the Charging Party at the hearing. Accordingly, I rejected the summaries, as they were not business records within Rules 803(6), or "summaries" within Rule 1006 of the Federal Rules of Evidence. Since Respondent failed to produce admissible records on the issue of inventory, reliance must be made on the physical observations of the witnesses. Several of the General Counsel's witnesses credibly testi- fied that Respondent continued to have a normal amount of inventory on the lot through the week following the layoff. LeFevre testified that normal production was 70 cars a day and that on February 15 Respondent had the normal inven- tory of about 280 unfinished automobiles, or 4 days' pro- duction, on the lot. lie further testified that the inventory was slightly less during the third week in February and even less the last week of February, hut that there were always at least 70 uncut cars on the lot each day through July. Employees Mohr. Collis, Benz, and Walters testified that when Koepenhaffer told them of their layoff, he stated that it would be only for 3 to 6 weeks. On February 17 representatives of Respondent and the Charging Party met at the Regional Office for purposes of a hearing on the petition filed in Case 9 RC-12339. It is un- disputed that at the meeting, which resulted in a Stipulation for Certification Upon Consent Election, Respondent, by its vice president of industrial relations, Donald L. Chance, successfully insisted that the laid off employees be permit- ted to vote only subject to challenge because they had no expectancy of recall. The stipulation was approved by the Regional Director on February 21. As shown on the list of eligible voters, the payroll eligibility date was February 17. An election was conducted on March 17. The Union was certified as the collective-bargaining representative of the production and maintenace employees after it received 38 votes in the elec- tion to 6 votes for no representation; 4 votes were chal- lenged. " In short, (rist's testimony of the call from Flaherty is a quagmire of inconsistencies, as well as being unsupported by admissible documentary evidence or testimony by Flaherty. 126 HIJRST PERFORMANCE, INC. The parties bargained for a while, and a contract was reached. The plant was permanently closed on or about July 21 for reasons which are not disclosed in the record. B. Analysis and Conclusions 1. Section 8(a)(1) As alleged by the General Counsel, and as the uncontra- dicted testimony detailed above proves: Koepenhaffer in- terrogated Inman regarding whether he was planning to attend the union meeting of January 6; Alexander threat- ened Inman with plant closure and loss of employment (there is no other permissible interpretation for the state- ment that "UAW" stands for "you ain't working"); Koe- penhaffer threatened Benz with unspecified reprisals when he warned the employee that he could get in trouble for signing a authorization card (had Koepenhaffer been jok- ing, he should have made it plain to the employee); Alex- ander warned Mohr and Walters that Respondent was maintaining surveillance of their union activity when he said Koepenhaffer was keeping an eye on them, and he threatened those employees with discharge (by Koepenhaf- fer) for their protected activities; Alexander repeatedly threatened Mohr with closure of the plant and loss of em- ployment if the employees persisted in their union activi- ties; Koepenhaffer threatened Collis with plant closure; Dreyer threatened employees Collis and Cash with plant closure if the Union were chosen by the employees; and Shands threatened Benz with discharge for union activities when he told him that Respondent had fired McCord, In- man, Taylor, Fant, and Carter because of their union ac- tivities. As each of these actions unquestionably tended to interfere with, restrain, and coerce employees in the exer- cise of their rights under the Act, I find and conclude that they constitute violations of Section 8(a)(1) of the Act. In her brief the General Counsel further contends that Shands' admitted telling employees of Koepenhaffer's stated intention to discharge McCord and Shands' admitted warning to McCord to be less open about his activities in- dependently constitute violations of Section 8(a)(1). These latter matters were not alleged in the complaint, and there is no evidence that Respondent had been given notice of this contention of General Counsel. Since proper notice was not given Respondent and since the fining of a violation predicated on this aspect of Shands' testimony would not affect the scope of the Order recommended herein, I make no conclusion in this regard. The complaint alleges that since December 28, 1977. Re- spondent has maintained no-solicitation and no-distribu- tion rules which prohibit: "[s]oliciting during the time when supposed to be at work" and "[s]oliciting in any manner while on company premises." The answer denies existence of the rule as stated in the complaint and affirmatively states that Respondent's rule in this regard is: "[e]ngaging in any kind of solicitation or petitioning or'2 in any way interfering with the work of other employees during their work time." The answer further affirmatively states that the 12 1 hope that this second "or" is not included in the written rule as quoted here, since it would have had the effect of prohibiting all "solicitation or petitioning." rule as quoted therein "is the Rule accepted and approved by Region 9, NLRB. in settlement of' case No. 9-C ('A 11291 ." In support of this contention, the General Counsel ol fered the testimony of employee Benz, who testified that during the first week in January someone gave him a docu- ment, offered b the General Counsel. which contains the rule quoted in the complaint. The document bears the name of Benz and is signed by Roseann ('rist. Presumably. Rose- ann Crist is in some way related to Lee Crist, but the only indentification made b Benz was: "Lately, she's been sign- ing the checks." I reject the document, since Benz. although asked repeatedly,. could not identif' the person from whom he received the document and stated that it could well have been rom another employee. The General Counsel urges that I reverse m' ruling that no foundation had been laid for receipt of the document and that I find that Respondent violated Section 8(a)(l) by maintenance of the rules enumerated therein. arguing that Respondent should have come forward with a denial that the rule therein was in effect and/or evidence of what the existing rule was. The General Counsel further contends that the existence of Roseann Crist's signature is sufficient, ot itself, to charge Respondent with responsibility for the rule. The burden of proof in these matters is on General Coun- sel, not Respondent. Assuming the rule quoted by the com- plaint was posted or generally distributed by Respondent. General Counsel could have called knowledgeable employ- ees to attest to the fact. Counsel for General Counsel could also have taken issue with Respondent's representation that the rule was the subject of a charge which was settled by her Region. but she did not. She could also could have further identified Roseann Crist other than that "lately" (a word discreetly omitted from General Counsel's brief) she had been signing the paychecks. I adhere to my ruling; General Counsel has not proved a violation of Section 81a)(l) in this regard. Although not discussed in G(eneral Counsel's brief, the complaint alleges that by Terry's presence in the parking lot on January 6, Respondent engaged in surveillance of em- ployees' union activities. Since there is no evidence that Terry ever parked his car elsewhere and since the meeting was unique and most likely to arouse natural curiosity, I find that by Terry's presence Respondent did not violate Section 8(a)( I) of the Act. Finally, the complaint alleges that in the latter part of December 1977, Koepenhaffer coercively interrogated em- ployees. The only testimony in this regard was that of em- ployee Phillips, who testified that sometime before Christ- mas he had a preemployment interview with Koepenhaffer during which Koepenhaffer asked if' there had been a union at Phillips' previous place of emplosment. Phillips replied in the negative. I can find no coercive element in this ques- tion. and I shall accordingly recommend that this allegation be dismissed. 2. Section 8(a)(3) a. The discharges of Januar 11 Although Respondent denies knowledge of their union membership and activities, it is undisputed that McCord. 127 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inman, Taylor, Fant, and Carter were the five most vocal employees at the meeting of January 6, which, as I have found, was attended by Terry, whom I have found to have been a supervisor. While his presence may not, of itself, have been an act of surveillance, the knowledge he received is imputable to Respondent." Moreover, knowledge of the Union activity of these five employees may be inferred from the fact that only union members, and only the five who led the meeting of January 6, were selected for discharge. The Board has long recognized that selection for layoff or dis- charge of a disproportionate number of union adherents, absent other plausible reason for the selection, warrants in- ference of knowledge of the union activity or membership of the dischargees. See Angelo Packing Company, 163 NLRB 842 (1967), and the cases cited therein, especially at footnote 18 of the Administrative Law Judge's Decision. Of course, inference of knowledge of the activity of McCord and Taylor is not necessary, as Shands testified that he knew that they were actively soliciting memberships for the Charging Party and that Koepenhaffer had vowed to elimi- nate McCord because of his activities just the day before the discharges. Respondent's animus toward the organizational activi- ties, of its employees, especially McCord, could hardly have been made clearer than by the numerous violations of Sec- tion 8(a)(I) detailed herein. Given these elements of knowl- edge and antiunion animus, the next question is whether the reason assigned for the discharge, if any, was pretextual. The assigned reason, reorganization of the plant, without further explication (especially in face of a request for such at the time Koepenhaffer discharged them), is so vague as to be meaningless and is tantamount to discharge for no reason at all. With due deference to the litany that an em- ployee may lawfully be discharged for a good reason, a bad reason, or no reason at all, where there is no reason given for a discharge it is indicative of unlawful motivation. Rice Lake Creamery Co., 131 NLRB 1270, enfd. 302 F.2d 908 (D.C. Cir. 1962). Although I categorically stated on the record that I was receiving Crist's testimony regarding Koepenhaffer's rec- ommendations for the report only, Respondent produced not one shred of nonhearsay testimony regarding alleged derelictions of the five dischargees. Moreover, I repeatedly requested that Crist testify as to which employee committed what transgression, but he could not do so. (In fact, as noted above, he could not even remember the names of the dischargees other than those of Taylor and McCord.) Therefore there is no evidence in the record which would tend to prove that the employees were discharged for cause." To the contrary, there is substantial evidence that the five employees had performed their jobs satisfactorily. Respon- dent retained them, although it refused to take applications " It should also be noted that Koepenhaffer had interrogated Inman be- fore the January 6 meeting and thereafter stood and watched the meeting from a plant door. Presumably, Koepenhaffer thereafter asked Terry what he had seen and heard. " Nor may Respondent take refuge in the fact that these employees were on a 45-day probationary period. The Board has long held that probationary employees are protected by the Act. Lapeer Metal Products Co., 134 NLRB 1518 (1961). from several other former Tassos employees. In its notices of discharge Respondent specified that the discharges were "without prejudice," indicating that the dischargees were eligible for employment in the future. Without hesitation, LeFevre wrote a glowing recommendation for Taylor, and Shands, who worked near McCord, testified that he had known of no problem with the work performance of that employee. Finally, when asked to specify what comments he had made to Koepenhaffer about the five dischargees, LeFevre (who Respondent contends was their immediate supervisor) could only remember that McCord was slow with a foam gun. This demonstrates that LeFevre had no problem with the work of the other four, and, as noted above, there is no evidence that McCord was discharged because of his performance with the foam gun. Finally, although I would have reached the same conclu- sion without it, I hold to be most significant the statement of Shands to Benz that the five employees were fired for union activity. The Board has most recently held that such statements, even in a context of speculation, constitute an admission against interest when made by a supervisor, such as Shands. In Marcel Schurman Co., Inc., 238 NLRB 1277 (1978), the Board held that such an admission "makes in- escapable the conclusion that the discharge was discrimina- torily motivated." This would be especially true where the admission was made by a supervisor who attended daily management meetings at which the union activity was dis- cussed and at which the plant superintendent had openly vowed to discharge the principal employee organizer, McCord, on the day preceding the discharge. Such demon- stration of animus eliminates even the factor of speculation present in Marcel Schurman Co., supra. Accordingly, I find and conclude that McCord, Inman, Taylor, Fant, and Carter were discharged by Respondent to discourage membership in and activity on behalf of a labor organization and that by such conduct Respondent violated Section 8(a)(1) and (3) of the Act. b. The February 15 layoff Respondent contends that General Counsel has not met the burden of proving a prima facie case in regard to the February 15 layoff. Respondent, in the middle of a weekly pay period, with I week's inventory of uncut cars in its parking lot, notified employees that they were temporarily laid off for a period of time not to exceed 6 weeks. However, all of Respondent's testimony, even if it were credited, demonstrated the need for only a temporary layoff." Two days after the layoff, at the consent conference on the petition for election, Respon- dent adamantly insisted that all 19 employees should be permitted to vote in the forthcoming elections only by chal- lenge ballot, as they had been permanently laid off. Re- spondent ventures no explanation for these radically incon- sistent positions. There is only one logically possible explanation for this conduct: Respondent intended to, and did, catch in its net a substantial number of union members I' The layoff did appear to be temporary for 14 of the employees. Accord- ing to Respondent's records, 14 of the employees were recalled in March and April. Whether all employees were recalled and reinstated is a matter for compliance. 128 HURST PERFORMANCE, INC. and virtually certain "yes" votes. Then it falsely told the Regional Office the layoffs were permanent, knowing that the votes of permanently laid off employees are not counted. This, without more, would constitute a prima facie case. But there is more. As detailed above, Respondent's supervisors repeatedly threatened the employees with loss of employment if the organizational attempt were successful. Respondent had previously demonstrated its penchant for coverting its ani- mus to action by discharging McCord, Inman, Taylor, Fant, and Carter, as found above. Through Koepenhaffer it informed its supervisors that discovery of the identity of solicitors was important. Koepenhaffer was "keeping an eye" on Mohr and Walters, and presumably the other em- ployees. It implemented the layoff with disregard for senior- ity accrued by the discriminatees who had been employeed by G. T. Tassos Corporation, contrary to what the employ- ees had been promised orally and in writing. Selection for layoff was made without consultation with LeFevre or the group leaders. The prima facie case having been established, it is upon Respondent to come forward with probative explanation for the implementation of the layoff and the election of the employees affected. Fabricut, Inc., 238 NLRB 768 (1978). The testimony adduced in support of Respondent's de- fense of economic justification falls into two categories: hearsay offered through Crist and admissions made by Le- Fevre. In disregard of my categorical statement that I consid- ered Crist's testimony to be unsubstantiated and of a hear- say nature and that I would not base any findings there- upon, Respondent failed to produce the records which would seemingly support its defense, despite the subpena of General Counsel and the acknowledgment by counsel and LeFevre that the records existed and were in Respondent's office in Brighton, Michigan. Additionally, Flaherty, the General Motors official who could have supported the testi- mony of Crist that General Motors had, in fact, cut down on orders, was not produced. Crist testified that Flaherty still worked for General Motors and that he dealt with him regularly, but no explanation for not producing Flaherty (or the records) was advanced by Respondent. Fabricut, Inc., supra, is a strikingly similar case. There the employer's executive officer, Harry Guterman, claimed to have received a report from employee Frank Savien that certain orders had been received from a customer, and it was that report which precipitated a layoff. The Board re- fused to accept such bare assertions, stating:' 6 In light of the General Counsel's prima facie case, the Administrative Law Judge erred in applying a standard of "a plausible economic explanation for the reduction in force." Rather, the burden shifted to Re- spondent to go forward with probative evidence to support its claim that it had a legitimate economic rea- son for its actions. As described below, because the record is void of any credible evidence of an economic 16 Supra at 769. motivation for the March 11 reduction in force. we find that it was unlawful.' The crux of Respondent's economic defense is that, on March 9, Harry Guterman was allegedly told by one of his own employees, Frank Savien, that Respon- dent had not received the contract for the balance of an order for 150,000 Army bedspreads. Respondent, however, merely introduced Harry Guterman's self- serving hearsay testimony consisting of bare assertions. No written evidence was presented, nor was Savien called as a witness.2 The record is completely devoid of any credible, documentary, or probative evidence of the alleged economic defense. It is elementary that the Board may draw an adverse inference from the failure of a respondent to produce evidence to support an al- leged economic defense to a layoff.' Shattuck Denn Mining Corporation (Iron King Branch) v. N. L R. B., 362 F.2d 466 (C.A. 9, 1966). We disagree with the Administrative Law Judge that a blanket allegation covering all bedspread department ter- minations is a necessary factor for finding that the reduction in force was unlawful. 2 The record does not show that Savien is no longer an employee of Respondent and, therefore, no longer under its control. International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America (UA Wj [Gyrodyne Co. of America] v. NL.R.B., 459 F.2d 1329 (C.A.D.C., 1972). The adverse inference rule of Gyrodyne Co. of America, su- pra, is well established and need not be repeated here. Suf- fice it to say that if Respondent had records to support its position, they would have been produced, and not some inadmissible (and partial) extrapolation from them. The same is true for the personage of Flaherty, who could have been subpenaed, as was Savien in Fabricut, Inc., supra. Shuttuck Denn Mining Corporation (Iron King Branch), supra, has established that where the reasons assigned for action can be shown to be untrue, an unlawful motivation may be inferred. Here the reason assigned for the layoff is demonstrably false, and the conclusion of unlawful motiva- tion is compelled. Several employees testified that on February 15 there were enough cars on the lot to provide several days' work. This testimony was not controverted. In fact, LeFevre testi- fied that there was at least 4 days' production on the park- ing lot on the day of the layoff and that at no time from the layoff to the permanent closing of the plant in July were there less than 70 uncut cars, I day's production, on the lot. It is undisputed that there was a drop in production after February 15; the issue is, Why? As LeFevre'" put it: "We ran 70 cars a day until we reduced our staff with the layoff. Then our production accordingly went down by the num- bers of people. I couldn't run as many cars with fewer peo- ple." Such testimony does not bespeak an employer faced with a loss of production because of a loss in orders; it is an employer faced with a loss of production because of a lack of employees. Upon this testimony and the record as a whole, I find and conclude that the reason assigned for the layoff of Feb- ruary 15 is false and that Respondent would not have laid off the 19 employees on that date but for a desire to dilute 1? LeFevre identified himself as the only foreman in the plant and "respon- sible for the total production." 129 I)lE(ISIONS ()1: NATIONAL ABOR RELATIONS BOARD the strength of the Union in the plant, to reduce the number of virtually certain "yes" votes in the forthcoming election. and to impress upon the remaining employees the risks in- volved in engaging in union activity. To summarize, I base these findings and conclusions on the following: ( 1) Re- spondent's animosity toward the organizational activities as demonstrated by its interrogation, threats to discharge. threats to close the plant and cause loss of employment, and discharge of five known union adherents on January 11; (2) there had been no prior layoffs (except at model change). although there had been prior notices of' diminished pro- duction from General Motors: (3) the timing of the layoff, coming as it did in the middle of a pay period when there were 4 days' production on the lot: (4) the failure to affird employees seniority rights as promised verbally and in writ- ing: (5) 74 percent of the employees were, in fact, union members: (6) the lack of necessity for the layoff, even under Respondent's theory, before the date of' the scheduled rep- resentation case hearing 1 (7) Respondent's falsely telling the Regional Office that the layoff was permanent in an obvious effort to disenfranchise what it knew or (correctly) suspected to be a large number of voters who favored union representation: (8) the lack of evidence of economic justifi- cation for the layoff: (9) the positive indication by LeFevre that any reduced production was caused not by a lack of orders but by reduction in the employee complement. Accordingly, I find and conclude that the 19 employees laid off on February 15 were discriminated against by Re- spondent to discourage membership in and activity on be- half of a labor organization and that by such conduct Re- spondent violated Section 8(a)(l) and (3) of the Act. CO)N(LUISIONS OF LAW 1. Hurst Performance, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees about their union activi- ties and by threatening employees with discharge, closure of the plant, loss of employment opportunities, and other unspecified reprisals in the event they became or remained members of the Union or chose union representation, Re- spondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)( 1) of the Act. 4. By discharging employees Robert McCord, Larry In- man, Stephen Carter, Donald Stephen Taylor, and Quincy Fant and by laying off the following named employees, Re- spondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) of the Act: Jeffrey Robertson Danny Roberts Steve Hall Eric Kendle Brian Haigh Stephen Haker Donald Mohr James Whitmer Steve Benz Michael Collis Charles Tickle John Stirsman Jeff Webb Jon G. Braunstein Chester Collins Larry Surgart Joe Walters Robert Evans Dennis Phillips c. The discharge of' Michael Bashears There is no evidence that Respondent knew or suspected the fact that Boshears had signed and returned an authori- zation card on the day before his discharge. While Respon- dent had endeavored to ascertain the identities of card dis- tributors, there is no evidence that it suspected that Boshears was one of them. To the extent that Respondent's request for reports could be argued to include the identities of those who did no more than sign a card, there is no evidence that its intelligence was this fast or effective. Boshears was not one of the five avant-garde employee organizers who were discharged on January 1 l,' 9 and he was not a victim of the discriminatory layoff of February 15. To find a violation in Boshears' case would be to hold that the discharge of any member of the Union by Respon- dent violates the Act. Such is not the law. I find and conclude that General Counsel has not made out a prina fiacie case in regard to Boshears, and I shall recommend that the complaint be dismissed in this regard. ° IB his assumes that General Moters gave some notice of diminished pro- duction on February 10 which Respondent contends to have been the case. As noted above Crist testified that there were 7 days between General Mo- tors' notices of reduced production and actual effect on Respondent. 1, In fact, Boshears profited by the discharges: he was hired as a direct result. 20 Assuming the existence of a prima J.aiw case in regard to the discharge of Boshears, there is no evidence that the reason assigned was pretextual Moreover, Boshears anticipated the reason, a positive indication that he knew that Respondent was dissatisfied with his performance. 5. T'he aforesaid unfair labor practices set forth above affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent has not otherwise violated the Act. TIlE RFMEDY Having found that Respondent engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. As I have found that Respondent unlawfully discharged or laid off the 24 employees named herein, I shall recom- mend that Respondent be ordered to make them whole for any loss of earnings they may have suffered as a result of the discrimination against them by payment to them of the amount they normally would have earned from the date of their discharge or layoff until the permanent closing of the plant or until the date of offers of reinstatement or recall, if any, less the net earnings, to which shall be added interest to be computed in the manner prescribed in F. /. Wool- worth Conmpan', 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977)." Since it is undisputed that the plant is now permanently closed, I shall not recom- mend an order that Respondent be required to recall or reinstate the discriminatees at this time. Upon the foregoing findings of fact and conclusions of 21 See, generally, Isis Plumbing & Healing (Co. 138 NLRB 716 (1962). 130 law and the entire record, and pursuant to Section 10(c) of the Act, I herebv issue the following recommended: ORDER 2 Respondent, urst Performance. Inc.. its officers, agents. successors, and assigns, shall: I. Cease and desist from: (a) Interrogating employees about their union activities. (b) Threatening employees with discharge. closure of the plant, loss of employment opportunities. or other unspeci- fied reprisals in the event they become or remain members of the Union or choose to be represented by a labor organi- zation. (c) Laying off, discharging, refusing to reinstate or recall, or otherwise discriminating against employees in regard to hire or tenure of employment or any term or condition of employment because they become members of or engage in activities on behalf of International Union, United Auto- mobile, Aerospace & Agricultural Implement Workers of America, UAW. or any other labor organization. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to engage in or refrain from engaging in any or all the activities speci- fied in Section 7 of the Act. 22 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labo)r Relations Board. the findings, conclusions, and recommended Order herein shall, as proided in Sec 102 48 of the Rules and Regulations. be adopted b) the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. I[IRST PERFORMAN(CE,. INC. 2. Take the following affirmative action, which is neces- sary to effectuate the policies of the Act: (a) Make employees Robert McCord, Quincy ant. Lar- ry Inman, Stephen Carter, Donald Stephen aylor. Jeffre, Robertson. Dannv Roberts,. Steve Htall, Eric Kendle, Brian Haigh, Stephen Ilaker. Donald Mohr. James Whitmer, Steve Benz, Michael Collis. (Charles Tickle. John Stirsman, Jeff Webb, Jon (i. Braunstein. Chester (ollins. arr' Sur- gart. Joe Walters. Robert Evans. and Dennis Phillips whole for any loss of earnings they may have suffered as a result of discrimination against them in the manner set fo;,rth in the section of this Decision entitled " he Remed,"y lb) Preserve and, upon request, make a tailable the Board or its agents. tfor examination and cop ing. all pay- roll records, social security pan ment records. timecards, personnel records and reports, and all other records rel- evant and necessary to a determination of compliance with paragraph (a) above. (c) Mail to each of its employees emploxed between January 6. 1978. and the permanent closing of its Cincin- nati. Ohio. plant signed copies of the attached notice marked "Appendix. " : Copies of said notice for said mail- ing shall be provided b the Regional Director for Region 9. (d) Notify the Regional l)irector tfor Region 9. in writ- ing, within 20 days from the date of this Order. what steps have been taken to comply herewith. ' In he e ent Ihat this Order is en forced h a juidgment ola t ited St lles (')ur of Appeals. the ,sords in the notice reading "ptoled l h ()rder of the Naoin;al Labor Relatios Board" hall read "Post ed Puruanl to .a Judgmenil of the I:nlted Slt es ()our I 1 ppeals t intorcilg it Order at Ile Nltio.llll .Labor Relations Board " 131