Ballou Brick Co.

BALLOU BRICK CO. Ballou Brick Co. and Lodge 1426, International As- sociation of Machinists and, Aerospace Workers, AFL-CIO. Cases 113-CA-8230 and 18-RC- 13438 31 October 1985 DECISION, ORDER, AND DIRECTION BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 10 June 1985 Administrative Law Judge Thomas E. Bracken issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Ballou Brick Co., Sergeant Bluff, Iowa, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order, except that the attached notice is sub- stituted for that of the administrative law judge. IT IS FURTHER ORDERED that in Case 18-RC- 13438 the challenges to the ballots of Robert C. Bean, Brian L. Brady, Michael Holmes, Russell T. Ingalls, David J. McCarthy, Bryan D. Palmer, Curtis Palmer, John Palmer, Danny Pojar, Kevin Ruring, Edward Thompson, and Ronald Warstler are overruled. i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect , Standard Dry Wall Products, 91 NLRB 544 ( 1950), enfd. 188 F 2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the lindiogs In sec F,1,2, of his decision the judge inadvertently found that the 6- month limitations period of Sec 10(b) ran until 23 June 1983 The correct date is 7 lime 1983 2 in agreeing with the judge that the Respondent violated Sec 8(a)(3) and (1) of the Act, we do not rely on his conclusion that the Respond- ent's hiring of labor consultant Smith demonstrated union animus , see All Glass Aquarium Co, 214 NLRB 117, 119 (1974), or his reliance on Hill's prediction in May that bad business conditions would be irreversible for a long period of time We further disavow the judge's unsupported infer- ence, at fn 38 of his decision, that Smith effectuated the revision in the Respondent's 1983 Policy Statement. Finally, we disavow his comment that employee Peterson was not among those laid off because his skills made him a "remarkable bargain" for the Company 41 DIRECTION It is directed that the Regional Director for Region 18 shall, within 10 days from the date of this Decision, Order, and Direction, open and count the ballots of Robert C. Bean, Brian L. Brady, Michael Holmes, Russell T. Ingalls, David J. McCarthy, Bryan D. Palmer, Curtis Palmer, John Palmer, Danny Pojar, Kevin Ruring, Edward Thompson, and Ronald Warstler and thereafter prepare and cause to be served on the parties a re- vised tally of ballots which will, if the Union re- ceives a majority of the valid votes cast, provide the basis for issuing a certification of representa- tive. Should the Union not receive; a majority in the revised tally, the Regional Director shall set aside the election and hold a second election. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT request employees to engage in the surveillance of union activities and sentiments of other employees. WE WILL NOT interrogate employees concerning the union activities and sentiments of others. WE WILL NOT inform employees that if they engage in union activities they will be discharged. WE WILL NOT threaten employees with dis- charge or plant closure if they engage in union ac- tivity. WE WILL NOT maintain a policy of encouraging employees to report the union activities of other employees to management. WE WILL NOT promulgate and maintain an un- lawful no-solicitation/no-distribution rule which interferes with our employees' solicitation and dis- tribution of literature activities during the employ- ees' own time, such as lunch and break periods. 277 NLRB No. 9 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT create the impression of surveil- lance of the union activities of employees. WE WILL NOT discharge, lay off, terminate, or otherwise discriminate against you because you join, support, or engage in activities on behalf of Machinists Lodge 1426, or any other labor organi- zation. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Robert C. Bean, Brian L. Brady, Scott T. Clark, Russell T. Ingalls, David J. McCar- thy, Bryan D. Palmer, Curtis Palmer, John Palmer, Danny Pojar, Kevin Ruring, Kenneth Sopoci, Edward Thompson, and Ronald Warstler immedi- ate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus inter- est. WE WILL notify each of them that we have re- moved from our files any reference to their dis- charge and that the discharge will not be used against them in any way. BALLOU BRICK Co. Barbara Isaacman, Esq., for the General Counsel. Roger J. Miller, Esq., and Patrick J. Barrett, Esq. (McGrath, North, O'Malley and Kratz, P. C.), of Omaha, Nebraska, for the Respondent. Harold P. Lorenz, G.L.R., of Bridgeton, Missouri, for the Charging Party. DECISION STATEMENT OF THE CASE THOMAS E. BRACKEN, Administrative Law Judge. These consolidated cases, consisting of an unfair labor practice case and a representation case, were heard in Sioux City, Iowa, on September 20-22, November 1-4, December 5-9, 12-16, 1983, and January 16-17, 1984. The charge in Case 18-CA-18230 was filed on May 23, 1983,1 and the complaint was issued on July 15, amended on September 13 and also at the hearing. The complaint alleges that Ballou Brick Co., the Respondent, violated Section 8(a)(1) and (3) of the National Labor Relations Act. On July 20, the Respondent filed its answer, deny- ing the material allegations of the complaint, and on August 16 filed an amended answer that contained two affirmative defenses. On May 2 Lodge 1426, the Union, had filed a petition for a representation election in Case 18-RC-13438. Pur- 1 All dates are in 1983 unless otherwise stated. suant to a Decision and Direction of Election issued June 15 by the Acting Regional Director, an election was held on July 15 in a unit found by the Regional Di- rector to constitute an appropriate bargaining unit2 The tally of ballots served on the parties following the elec- tion showed that 30 valid votes were counted, with 20 cast for the petitioning union and 10 for the Employer. In addition, there were 13 challenged ballots, making a total of 43 valid votes plus challenged ballots, which meant that the challenged ballots were sufficient in number to affect the results of the election. On August 4, the Acting Regional Director issued a supplemental deci- sion and order directing that a hearing be held with re- spect to the challenged ballots of Robert Bean, Brian Brady, Gary Brady, Michael Holmes, Russell Ingalls, David McCarthy, Bryan Palmer, Curtis Palmer, John Palmer, Danny Pojar, Kevin Ruring, Edward Thomp- son, and Ronald Warstler, and that Cases 18-CA-8230 and 18-RC-13438 be consolidated for purposes of hear- ing, ruling, and decision by an administrative law judge.3 Issues A. Whether the Respondent violated Section 8(a)(1) of the Act by 1. Threatening to discharge any employee who at- tempted to obtain union representation at the Company. 2. Threatening reprisals on an employee if he contin- ued to engage in protected, concerted activity. 3. Threatening an employee with discharge if he filed a safety complaint against his employer. 4. Telling an employee that certain employees had been fired because of their union activities. 5. Threatening to close the plant at Sergeant Bluff and transfer the work to another facility in order to avoid union representation. 6. Unlawfully requesting employees to engage in sur- veillance and interrogating them about union activities of other employees. 7. Threatening to reduce hours of work if employees voted for the Union in the upcoming election. 8. Maintaining in effect an unlawful policy of encour- aging employees to report the union activities of other employees to management. 9. Maintaining in effect an unlawful no-solicitation/no- distribution rule. 10. Creating the impression of surveillance of the union activities of its employees. 11. Unlawfully requesting an employee to engage in surveillance and interrogating him about the union activi- ties of other employees. 2 The appropriate collective-bargaining unit, as set forth in the Deci- sion and Direction of Election, is All full-time and regular part-time production and maintenance em- ployees employed by the Employer at its Sergeant Bluff, Iowa facili- ty, including technical services department and panels/samples de- partment employees; excluding sales department employees , office clerical employees, professional employees, guards and supervisors as defined in the Act. 8 On the first day of the hearing the representative of the Union with- drew its challenge to the ballot of Michael Holmes and agreed that it should be counted . All parties agreed to this stipulation BALLOU BRICK CO. B. Whether the Respondent violated Section 8(a)(3) and (1) of the Act by terminating its employees Robert C. Bean, Brian L. Brady, Gary L. Brady, Scott F. Clark, Russell T. Ingalls, David J. McCarthy, Bryan D. Palmer, Curtis Palmer, John Palmer, Danny Pojar, Kevin Ruring, Kenneth R. Sopoci,4 Edward Thompson, and Ronald Wafstler. On the entire record,5 including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Compa- ny, I make the following FINDINGS OF FACT 1. JURISDICTION The Company, an Iowa corporation, is engaged in the manufacture and sale of bricks and related products at its plant in Sergeant Bluff, Iowa, where it annually ships goods valued in excess of $50,000 directly to customers outside the State . The Company admits, and I find, that it is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Ballou Brick Co. (the Respondent or the Company), has been engaged in the making of brick for over 100 years, and at no time have its employees been represent- ed by a union. It is a wholly owned subsidiary of Sioux City Brick and Tile Co., whose corporate offices are lo- cated in Sioux City, Iowa. The parent company also owns two other brick manufacturers , one of which is the United Brick and Tile Company of Iowa, located in Adel, Iowa. The employees at the Adel brickyard are represented by the United Glass and Ceramic Workers Local No. 142, and have been since the plant was pur- chased by the parent company in 1958. The Ballou brickyard, the only one involved in this case, covers a 178-acre tract of land in Sergeant Bluff, a suburb of Sioux City. It is a completely integrated plant, with clay being mined on the Company's extensive prem- ises. The clay is transported from the pit to the manufac- turing complex, where it is dumped into the grinding room, processed through various procedures, and even- tually emerges as finished bricks. On a normal day, 50,000 to 70,000 bricks are manufactured. The majority of the bricks sold by the Respondent are to be used in the construction of commercial and public buildings, with some being sold for the construction of houses. Some bricks are sold retail from a shed in the yard, but 4 Name amended at the hearing from Sopoh 5 After the hearing had been closed, the Respondent filed a volumi- nous motion to correct the transcript The General Counsel, in turn, filed a lengthy response. I thereafter issued an order granting in part and deny- ing in part the Respondent 's motion, ALJ Exh 8 43 this is a negligible amount as most bricks are sold by salesmen throughout a wide area of the Midwest . No fire bricks are manufactured at the Sergeant Bluff plant, but such bricks are manufactured at Adel. The sprawling plant consists of a number of buildings, with the plant's office building sitting in front,,adjacent to a state highway: Near it are buildings housing the maintenance department and the sample department. To the rear is a 300-foot long building that dominates the area. It contains the two kilns in which the raw clay is burned so as to convert it into brick . Adjacent to it are several other small buildings . There is also a rail loading dock for boxcars and a loading dock for trucks. Finished bricks are carried from the kiln by forklift trucks and stocked in a large open storage area to await shipment to eventual purchasers. The storage area extends from an area in front of the kiln building to an area well to the rear of that structure. John D. Hill, who has worked for the Respondent since 1948, is the chief operating officer of the Company, and has his office in the Sergeant Bluff complex. Norman Mahoney (N. Mahoney), an employee for 13 years, is the manufacturing operations manager and also has an office in the Sergeant Bluff plant . His father, Parnell Mahoney (P. Mahoney), is the chief executive officer of the parent company and his office is in Sioux City. Orville Ingalls was the plant superintendent, and a longtime employee, having come up through the ranks , while working in every department. There were two assistant plant super- intendents, William Heckart and William Wiseman. Heckart was also the supervisor of the packaging depart- ment, and Wiseman was also the supervisor of the main- tenance department. Other persons who were conceded to be the statutory supervisors by all parties were R. Horner, V. Covington, R. Heilman, and D. Clausen. In the operation of this brickyard in the spring of 1983, the Company employed 4 executives, 3 office em- ployees, 9 or 10 supervisors, and 46 or 47 hourly paid plant workers. One of the major factual issues of the case is the status of Gary Brady. The Respondent contends that he is a statutory supervisor and the General Counsel and the Union contend that he is not such a supervisor but, at most, a leadman. Throughout the hearing there was constant references to the "project." Its major parts consisted of the con- struction of a 17,000 square foot building, the addition of a second monorail packaging machine, and the building of a mill room. In the mill room was to be installed a computerized brick setting machine, purchased from an outside contractor. The entire cost of the project was $900,000, with the purchased computer costing $190,000. N. Mahoney was in overall charge of the project. As de- scribed by Hill and N. Mahoney, its purpose was to in- crease the brick manufacturing capacity of the plant by 15 to 20 percent. The additional building structure and the monorail had been completed in the spring of 1982. In the fall the em- ployees were starting to work in the mill room with the last phase of the project being the actual installation of the equipment. Wiseman, the assistant plant superintend- ent, was in direct charge of this installation, and super- 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vised the employees working on the project. The bulk of the employees working on the project were employees secured from various departments, mainly packaging, who would be assigned to it by Ingalls on various days. Although these unskilled workers were sometimes re- ferred to during the hearing as a labor pool, as Ingalls testified, no employee was hired for a labor pool, and all actually had assigned jobs in specific departments. In September, N. Mahoney hired two skilled electri- cians, Edward Thompson and James Osterholt, both of whom also worked on the project.6 Two other skilled employees worked on it somewhat regularly, Dave McCarthy and John Longstreth. B. Credibility As in many of these cases, the resolution of testimonial conflicts is of critical importance. Because of the large number of witnesses and the length of the hearing, there are many such conflicts in this case between the testimo- ny of the General Counsel's witnesses and the Respond- ent's witnesses, particularly in regard to the allegations concerning the independent 8(a)(1) charges. I have particularly noted those instances that the Re- spondent indicates in its 100-page brief, as reflecting on the testimony of certain witnesses for the General Coun- sel. I have found the testimony of the General Counsel's witnesses, with one exception, to be generally reliable and have generally credited their testimony. From my observation of the demeanor of the witnesses, as well as from consideration of the record, I am convinced they were striving to tell the truth as best they could recall the facts, and letting the chips fall where they would. They also withstood long and searching cross-examina- tion, while the hearing was conducted under the rule of exclusion of witnesses. However, I do have reservations about the testimony of Dale Watchorn and I do not credit his testimony except where his testimony agrees with findings made herein. Also, several of the General Counsel's witnesses, Scott Clark, James Osterholt, Mi- chael Owens, and Curtis Petersen testified against the Respondent while still in its employ, further supporting their credibility. The Respondent's witnesses did not impress me as wit- nesses in whose testimony I could have confidence as to accuracy or reliability. Rather, I received the strong im- pression that they were loyal advocates, artfully trying to furnish answers that helped their Company 's cause, rather than trying to state the facts as they actually re- membered them. John D. Hill and N. Mahoney, two of the three Company's chief officers, while highly educat- ed, were particularly evasive, nonresponsive witnesses, and in addition N. Mahoney' was ,a most hesitant, vacil- lating witness. C. The Start of the Union Campaign Around March 1 Ray Horner, the Respondent's mill room supervisor, telephoned Richard Sturgeon, the Union's business representative, at his home in Sioux City, and stated that he would like to fmd out the me- 6 Their interviews will be discussed in detail below chanics of organizing a union at the Respondent's Ser- geant Bluff brickyard. 7 The veteran union official, as was his custom, posed certain questions to Horner, and arrived at the conclusion that Horner was a statutory su- pervisor. He then told Horner that supervisors were not protected under the Act and that he should back off and not have anything to do with any union activity, "but if there was interest at the brickyard, one of the employees should call him."8 On April 18, Horner approached Timothy Heilman (T. Heilman), an hourly paid maintenance department welder, and told him that as a supervisor he could not get involved in a union campaign but that T. Heilman could.9 Horner then told T. Heilman that the employees at the Adel brickyard were represented by a union, and, made $2 an hour more than the Sergeant Bluff employ- ees. A day or so later, T. Heilman asked David McCar- thy, another maintenance department employee, if he would be interested in attending a union organizing meeting, and McCarthy advised him that he would. On April 21, T. Heilman telephoned Sturgeon and they agreed to have, a meeting of interested employees at the machinists union hall in Sioux City on Saturday, April 23. On the following day, T. Heilman talked to other maintenance employees, Curtis Petersen and Curtis Palmer, and asked them to tell other employees that a meeting would be held at the union hall. On Friday evening, Petersen met Gary Brady (Brady) after work, , and asked him if he would be interested in attending the meeting at the union hall. Brady advised him that he would as he was an hourly paid employee. At the Saturday meeting Brady and about 14 or 15 of the Respondent's employees were present, and most of them signed union authorization cards. It was then decid- ed that a meeting would be held on the following Monday afternoon, after work, at Judy's Bar,10 a tavern frequently visited by the employees of the Respondent. Also, as an inducement to secure attendance at this meet- ing, McCarthy and several other employees, including Brady, chipped in $1 or $2 each so as to purchase a keg of beer, which would allow the beer to be free for_ all attending the meeting. Since McCarthy lived near Judy's Bar, it was agreed that he would arrange for Judy to have the keg ready for the employees at 4:30 p.m. on Monday, April 25. McCarthy and others took blank au- thorization cards from the Saturday meeting to try to secure additional signatures. On Monday, April 25, about 9:30 a.m., according to Brady, Assistant Plant Superintendent Heckart came to the front of the panel room, the department in which Brady worked, and beckoned for, Brady to come out. Brady described the conversation as follows: ' Sturgeon's first contact with one of Ballou's employees was in Janu- ary, when Dale Watchorn came to him. Watchorn had been suspended by the Respondent and wanted to know what action he could take against the Company Sturgeon advised him to file a charge with the Board, and file for unemployment compensation. Sturgeon's testimony was uncontradicted as Horner did not testify Another Heilman worked at the brickyard, Roger Heilman, who was an uncle of T Heilman, and was the loading and shipping, supervisor 10 Judy's Bar was in Sergeant Bluff, several blocks from the brickyard BALLOU BRICK CO. He says, "Boy, you guys sure pulled that one off slick," and I kind of played dumb and I says, "Well, what do you mean." Be says, "Well, the way you guys got all those cards signed last Saturday at that meeting." Q. Did you say anything else? A. Well, no, I didn't say anything, but then he added, he says, "You know, it is really kind of funny because John Hill, Norman Mahoney, or Or- ville Ingalls, none of them knew anything about it." Q. Then what happened? A. That was the end of the conversation. Brady's testimony as to this conversation is uncontradict- ed as Heckart did not respond to it. I credit Brady's tes- timony and find that the Respondent did have knowl- edge of the Saturday meeting at the Machinists hall. About 4:30 that afternoon, employees were lined up at the plant's timeclock ready to punch out. N. Mahoney and Supervisor Covington appeared and asked for volun- teers to complete a repair job that had started that day. When no one volunteered N. Mahoney asked who had been working on it, and McCarthy and Curtis Palmer spoke up and stated that they had been so doing. N. Ma- honey then asked them to stay and work on the repair job, but both said they had previous commitments. McCarthy did advise that he would return in a half hour or 45 minutes but the operations manager did not accept the offer, and informed them that he was going to talk with them about it the next day. On the following morning, N. Mahoney called McCar- thy, and then C. Palmer to his office. As N. Mahoney testified, he told McCarthy that "it was kind of odd" as to why he did not want to work overtime. When McCarthy replied that he had to go buy beer for a beer party, the operations manager then stated that he thought it was strange for McCarthy to have gone to buy the beer when he had known "apparently" that the repair job had to be finished that day. C. Palmer testified without contradiction that when N. Mahoney asked him why he had not worked the previous evening, and if he had been at Judy' s Bar, he replied that he had to go pick up medicine for his wife. The inference is clear from the above testimony that N. Mahoney was fishing for infor- mation, and knew of the union meeting at Judy's. The meeting at Judy's place began shortly after 4:30 p.m., the plant's closing time for rank-and-file employees. McCarthy counted 28 plant employees as present. Union authorization cards were signed and about 5 p.m. T. Heilman collected them, and took them to the union hall in Sioux City and gave them to Sturgeon. Shipping Su- pervisor R. Heilman, who was a regular customer of Judy's, arrived after the cards had been picked up to be taken into town by T. Heilman, and stayed to drink beer." Brady arrived shortly after 5 p.m., as he had d' During this period the hourly paid employees workday was from 7 a.m. to noon and 12.30 to 4:30 p.m. Supervisors come in one-half hour before the plant employees and left one-half hour later, for a workday of 6:30 a.m. to noon and 12:30 to 5 p.m. 45 been told that day by McCarthy that they were going to have a keg of beer that evening at Judy's, and he had in fact, contributed a couple of dollars for its purchase. While Brady did not testify how long he remained at Judy's, the May 2 memorandum from labor relations consultant Smith to P. Mahoney, General Counsel's Ex- hibit 47, points out that on April 25, "his car was still at the tavern at 6:30 p.m. 4/25/83." On the following morning, Scott Clark, a packaging employee, was questioned by his supervisor, Bill Heck- art, about the union card signing meeting. This conversa- tion is discussed at length in section III(1),11, below. D. The Company's Response to the Union's Campaign 1. The meeting of April 28 By letters dated April 25, Sturgeon forwarded to the Respondent at its Sioux City and Sergeant Bluff offices a demand that Local 1426 be recognized as the collective- bargaining representative of the Company's production and maintenance employees. On the receipt of these let- ters on April 26, the Respondent contacted Donald J. Smith, a Sioux City labor relations consultant, who had handled the prior matter involving the charge filed by Watchorn against the Respondent. By letter dated April 28, Smith advised the Union that his client would not recognize it as the collective-bargaining representative of its employees, as it had a good-faith doubt that it did, and suggested that the Union pursue its claim through the Board. Smith also suggested to P. Mahoney that he hold a meeting with the Respondent's managerial person- nel and supervisors, as soon as possible. It was agreed that on April 28, at 4 p.m., Smith would meet at the brickyard with top management officials, and then at 5 p.m. he would then meet with the plant's supervisors. At 4 p.m., on April 28, Smith did meet at the Re- spondent's office in Sergeant Bluff with John Hill, Par- nell, and Norman Mahoney, and President Frank Butte. Smith then presented to them the matters he was going to cover at the upcoming meeting. Earlier on the same day, N. Mahoney had instructed Plant Superintendent Orville Ingalls12 to inform all supervisors to attend a meeting to be held at 5 p.m. Ingalls had done so, includ- ing Brady. Brady and Ingalls arrived at the meeting room at the same time, only to have Hill ask them both to step into Hill's office. Hill then informed Brady that there was an attempt being made to unionize the plant, and as the sample department was not a part of the pro- duction unit sought by the Union, there was no need for Brady to attend the meeting. Hill then told Brady he was not to attend the meeting. 13 At 5 p.m., the four top management officials met with the supervisors. Hill opened the meeting by telling them that it was a sad day as the Company was "under the 12 Orville Ingalls had a nephew working in the plant at the time, Rus- sell Ingalls. Orville Ingalls plays a major role in this case and will be hereafter referred to as Ingalls When Russell Ingalls is referred to, it will be as Russ Ingalls. 13 At this time, Hill knew that Brady had attended the union meeting at Judy's Bar, and as described by Hill he was "subject to suspicion of disloyalty." 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD throes" of being unionized. Hill read aloud the Union's letter in which it had requested recognition, and then in- troduced Smith, who proceeded to conduct the meeting. A 3-hour session then began, with a wide discussion of previous complaints made by employees concerning wages, hours, and conditions of employment that were known to the supervisors. Supervisors were then asked to name those employees who they thought were poten- tial union leaders. Among those named were the follow- ing: Brady,14 by just about every supervisor present; McCarthy, by N. Mahoney; Ed Thompson, by Coving- ton, who informed the group that he had worked with Thompson-at the union plant of Zenith; Curtis Petersen and Tim Heilman. Roger Heilman informed those present that he had acci- dentally walked into the union meeting on Monday when he had stopped by Judy's for a beer, and had im- bibed in the free beer and played some pool. Smith ad- vised him not to discuss who had attended the meeting with anyone so that surveillance could not be claimed. The final order of business involved the passing around by Hill of copies of the March 1983 absentee list of all hourly paid employees, to each manager and super- visor. Smith then told them that the Company was going to take a confidential poll to see where Ballou Brick stood with its employees. On the left side of each list was the name of each hourly employee, in alphabetical order. Smith then told the supervisors to make three topic column headings, consisting of "Yes," "No," and "Question Mark." Then, alongside each employee's name, the supervisor was to mark under the appropriate column heading, his opinion as to whether the employee would vote for the Union, not for the Union, or did not know, as if the election was to be held the next day. The questionnaires were then marked by each manager and supervisor, initialed, and collected by Smith. Smith stud- ied the marked up lists, and informed Hill that "things looked bad." He then took all of the forms to his office. 2. The layoff of May 13, 1983 N. Mahoney testified that a management group deci- sion15 had been made in April to lay people off after the project was completed.16 The record does not disclose any action thereafter taken by Hill, N. Mahoney, or anyone else to prepare for a layoff or a shutdown until after the April 28 meeting conducted by Smith. N. Mahoney testified that the morning of May 2, a Monday, he and Ingalls had a preliminary discussion of a manning table, General Counsel's Exhibit 46. This one- 14 Smith's voluminous four-page typed memorandum on the April 28 meeting states that Brady was "an ex-UPS Teamster," and that his car was still at Judy's Place at 6.30 p m., at the union beer party Monday, April 25, 1983. 15 The management committee consisted of P. Mahoney, N Mahoney, Hill, and President Frank Butte and it met on a monthly basis 16 Jt. Exh. 14(m) is the minutes of a management meeting held on April 4, and is worded in broad generalities . The third paragraph reads that with the growing inventory "we have no choice except to close our plant soon " In the fifth paragraph it states that "we will cut our work force back to the bone as soon as possible" and in the sixth paragraph "It was requested that John Hill and Norman Mahoney prepare a plan for laying off people, and at our next management meeting we would make our final decision what [sic] we should do." page document dated May 2, 1983, contained no names, but set forth in N. Mahoney's handwriting the number of positions and job descriptions that had to be filled to keep the plant operating after the layoff, for a total of 32 people.17 The operations manager also testified that he made up a preliminary layoff list, and had listed the names of the employees to be laid off, in alphabetical order. N. Mahoney identified this listing as General Counsel's Exhibit 45,18 a one-page handwritten docu- ment which reads as follows: 5/2/83 Possible Layoff List (Hourly) Alphabetical Preliminary Bob Bean Brian Brady Roger Kummer Dave McCarthy Bryan Palmer Curtis Palmer John Palmer Dan Pojar Kevin Ruring Craig Steig Ken Sopoci Ed Thompson Ron Warstler Final Bob Bean Brian Brady Scott Clark Russ Ingalls David McCarthy Bryan Palmer Curtis Palmer John Palmer Dan Pojar Kevin Ruring Ken Sopoci Ed Thompson Ron Warstler 45 Hourly (without office) -13 layoff after #2 M.R. completed 32 remaining Supervisory Dave Clausen to Samples Gary Brady-layoff due to too many supervisors after layoff Norman P. Mahoney N. Mahoney was very vague as to when he actually made his layoff list, as-shown by the following testimo- ny: Q. Do you recall exactly when you made up the layoff list? The preliminary one? A. I think I testified earlier that I couldn't recall exactly when I made it up. Q. But it was sometime before May 2nd? A. To the best of my recollection , it was, I don't know, I may have started it on Saturday (April 30) 17 N Mahoney testified that G C. Exh 46, was not the original docu- ment he made up, as he threw it away after he copied it. I do not credit N. Mahoney's testimony The Respondent was most meticulous in its re- tention of documents, and throughout the hearing could always come up with handwritten documents to back up any position that was in its favor Also, the Respondent kept voluminous records of N Mahoney's handling of the 1982 and 1981 layoff, which will be reviewed hereafter. With Smith's admonition on April 28 to follow the 1982 layoff proce- dure, it is incredible that a few days later N . Mahoney would not have kept the original manning table 18 N. Mahoney testified that G C Exh. 45, was dated May 3, 1983, and was a rewrite of the original list he wrote May 2, 1983 I do not credit his testimony as the document is dated "5/2/83 " BALLOU BRICK CO. 47 you know, and finished it up Monday morning, but Q. Might you've started it on Friday (April 29)? A. I don't remember exactly when it was. Ingalls testified that N . Mahoney had come to him in "late" April and told him that, because of the completion of the project and economic conditions , it was going to be necessary to reduce the crew between 12 to 14 em- ployees. Ingalls testified that he knew what he had to do from what he had done in the 1982 layoff. The plant su- perintendent then made his manning list showing each in- dividual station, and put with it the name of the person working there at that time . He gave this list to N. Ma- honey prior to May 2, but at the time of the hearing did not, know what had become of it. Ingalls also made a list of people he thought should be laid off. Ingalls did meet with N. Mahoney at 8 a.m. in the morning of May 2, and showed him his , manning table, but not his list of people he thought should be laid off. N. Mahoney's and Ingalls' lists were almost identical, with Ingalls' list not calling for the layoff of McCarthy or Roger Kummer. N. Mahoney's list did not call for the layoff of Russ Ingalls, the plant superintendent's nephew. Neither list originally contained any mention of Gary Brady. The two officials then discussed their choices and it was agreed that Russ Ingalls should be laid off. The two officials then met with Hill in the midmorn- ing, using N. Mahoney's list. Supervisors Wiseman and Heckart were called in to give their opinions of the em- ployees listed for layoff. As a result of their appraisals it was decided that Roger Kummer and Craig Steig should not be laid off, but that Scott Clark should be. N. Ma- honey then listed alphabetically alongside the names set forth on his preliminary list under his caption "Final," the list of employees to be laid off, as set forth in Gener- al Counsel's Exhibit 45 above. The final list contained 13 names, the same number as on the preliminary list. The only different names appearing on the final list, were Scott Clark and Russ Ingalls. Later that morning, N. Mahoney, Ingalls, and Hill met with P. Mahoney and consultant Smith at the Company's Sioux City office. At this meeting Smith provided P. Ma- honey with copies of his four-page memorandum con- cerning the April 28 meeting at the Sergeant Bluff office. When asked what was discussed at this meeting, N. Ma- honey testified: Don Smith was telling us that because he expected that there would be an unfair labor practice charge over the layoff, that we had to be very careful how we went about our layoff, in terms of following out past patterns and so on. z 9 On May 10 or 11 , Hill began extensive preparations by which he would notify the employees concerning the planned layoff. He drafted long and detailed letters ad- dressed to each employee who was to be laid off, dating each letter May 13. (G.C. Exh. 11.) Each letter was cap- tioned "SUBJECT: PERMANENT LAYOFF (TERM I- is Smith's services were terminated around May 10, and a new firm retained. NATION) EFFECTIVE MAY 13, 1981" In these let- ters Hill primarily blamed the layoff on the assertion that the Company had "about run out of piling space and money for continued accumulation of inventory," and that it had an inventory of "approximately 20 million bricks." These letters advised the employees that they were "being given permanent layoff, which for all in- tents and purposes is the same as termination." The em- ployees were further advised that their layoffs were not for misconduct, but were "a reflection of business condi- tions, which we see to be irreversible, for at least the bal- ance of this year and possibly longer." The employees were further told to seek other employment and to file for unemployment compensation . Hill also prepared a written speech which he planned, to give to those em- ployees who were not laid off. (R. Exh. 40.) Late in the day on Friday, May 13, the employees, in small groups, were told by Assistant Plant Superintend- ent Wiseman to go to the office of Harold Newman, Re- spondent's technical services manager.211 Present were Hill, N. Mahoney, Ingalls, and Wiseman. Hill held in his hand a document2' and proceeded to tell the employees that they were being laid off for economic reasons as they had an inventory of 20 million bricks, and no piling space or money for additional inventory that it was a permanent layoff, but was not for misconduct, and they should seek other employment and file for unemploy- ment compensation . Employees with company tools were told to turn them in . Each employee was given two paychecks, one for the regular work week of May 4 through May 11, and the second check for work done on May 12 and 13. They were also given copies of Hill's layoff letter.22 Following the meetings in which the 12 employees had been notified of their layoffs, the remaining employ- ees of the Respondent were notified by their supervisor to report for a 4:15 p. m. meeting in the octagon room. Present were Hill, N. Mahoney , and Ingalls. Hill pro- ceeded to read his typed speech to the assembled em- ployees.23 The chief operating officer told the employees that because of poor economic conditions , and 'an inven- tory of "approximately 20,000,000 bricks" the Company has been compelled to lay some employees off. At the end of his speech, Hill looked up and told the assembled employees that they should feel lucky because they were the survivors. When the meeting was over, Brady was leaving the octagon room with the other , employees, when Ingalls stopped him, and told him that Hill wanted to talk to him. Brady and Hill walked to Newman's office, where 20 One such group consisted of McCarthy, Curtis Palmer, and Ed Thompson. Their testimony of what occurred at the meeting is uncontra- dicted 21 This typed document, dated May 13, 1983, was captioned "INFOR- MAL COMMENTS," R Exh. 39. 22 Scott Clark was not at work on May 13. On the following Monday, May 16, when he arrived at the plant he went to Hill's office N Ma- honey and Supervisor Heckart were called in, and Hill then informed Clark that he had been laid off, reading some portions of the layoff letter before handing it to him, with his paychecks 23 The document had been drafted by Hill, dated May 13, 1983, and was captioned "REMARKS TO RETAINED PERSONNEL " (R Exh. 40.) 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they were met by N. Mahoney and Ingalls. Hill again re- peated his assertion of economic problems, and then told Brady that since the Company had laid off several people from the panel room, his services were no longer needed. Hill then handed him his termination letter and paycheck.24 3. The election The Union filed its petition for an election on May 2, 1983, and while the record does not disclose when the Company received its copy, the record does show that it ran a vigorous antiunion campaign from shortly thereaf- ter. Antiunion articles were posted by Hill and N. Ma- honey on bulletin boards in the mail room and octagon building, its supervisors were instructed and did talk with individual employees as to the Company's position; employees were encouraged to watch an antiunion tele- vision show entitled "The Scepter of Violence"; P. Ma- honey met individually with seven to nine senior em- ployees in the octagon building, and then he, on paper, calculated the amount of that employee's weekly pay, and also the weekly pay of a similar employee at the Adel brickyard, in an effort to show, as he stated, that employees would not be bettering themselves by voting for the Union. In early July, and also 2 days before the election, Hill, P. Mahoney, and N. Mahoney met with groups of em- ployees in the octagon room. Hill and P. Mahoney both made speeches to the assembled employees in which they attacked the Union, spoke of plants that had been closed down because of unions and advised that they did not want a union in the Ballou plant, and to vote "NO" in the upcoming election. As previously stated, on July 15 the Board conducted an election among the production and maintenance em- ployees of the Employer. The board agent conducting the election challenged the ballots of 12 of the 14 em- ployees who had been laid off in May. 25 E. The Recall and Hiring of New Employees N. Mahoney testified that in July he became aware that the Company needed additional personnel from talk- ing with people at the downtown office about "commit- ments" the Company had. While there were enough bricks in the yard to package these orders, N. Mahoney could see "our level of manpower wasn't going to get the job done." He talked to Heckart, the packaging su- pervisor, and they went over the list of laid-off employ- ees, and Heckart suggested that they hire all new em- ployees. In late July, the Respondent commenced recalling some of the employees laid off on May 13. Clark and Warstler were recalled on July 29, and Sopoci on August 1.26 Robert Bean and Dan Pojar were also re- 24 This exit interview is reviewed at length in sec. III,G,5,e below. 25 It is to be noted that the names of the two other alleged discrimma- tees, Scott Clark and Kenneth R Sopoci, are not listed as challenged bal- lots. Although they were terminated on May 13 along with the 12 em- ployees whose ballots were challenged, they apparently did not attempt to vote. The tally of ballots provides for three eligible voters who did not vote. 26 G.C. Exh. 51 shows Sopoci recalled on this date. called, but declined the offer. On August 24 Respondent recalled John Palmer, and a few days later on August 29, it hired four new employees. On September 3, R. Ingalls was recalled but he turned it down. In that month three more employees were hired, and in October, seven more. No offers of reinstatement were made at any time to seven of the employees laid off in May, Gary Brady, Brian Brady, David McCarthy, Bryan Palmer, Curtis Palmer, Kevin Ruring, and Ed Thompson. F. The Alleged 8(a)(1) Violations The complaint alleges 11 specific incidents of violation of Section 8(a)(1). The evidence in respect thereto will be discussed in the same order as they are pleaded in paragraph 5 of the complaint, with the exception of sub- paragraph 5(j), which will be reviewed after subpara- graph 5(a), because of the time relationship of the two incidents. Paragraph 5(a) alleges that "On or about December 7 1982 Respondent, by its Assistant Plant Superintendent Heckart, threatened to discharge any employee who at- tempted to obtain union representation at Respondent's facility." The General Counsel sought to prove this alle- gation through the testimony of employees Dale Wat- chorn and Scott Clark. 1. First affirmative defense The Respondent contends in its amended answer, at the hearing, and in its brief, that there was a Board-ap- proved agreement that settled the allegation contained in paragraphs 5(a) and (b) of the instant complaint, and therefore these sections should be stricken from the com- plaint. The record discloses that a charge was filed with the Board by Dale Watchorn "An Individual," on February 23, amended April 1, stating that he was discharged by the Respondent because of his engaging in protected concerted activities. When the complaint was issued on April 4, Case 18-CA-8082, in it was also contained two allegations of independent violations of Section 8(a)(1), which the Board had uncovered in its investigation of Watchorn's charge.27 By a letter dated April 6, the Board's field examiner notified the Respondent's labor relations consultant Smith that Watchorn had agreed to settle his charge on the basis of (1) waive reinstatement, (2) the payment of $696.44, and (3) the Charging Party would withdraw his charge. On April 7, the Respondent's consultant, by letter, ad- vised the field examiner that it was forwarding a check payable to Watchorn, and that the case was settled on the basis of this payment, and that in return, the Charg- ing Party would withdraw his charge, waive reinstate- ment, and "All interested parties will forgo a notice." The letter concluded by stating, "This entire matter is settled on the above bases with the further understanding that the Employer retain his nonadmission of guilt status." On April 12, Watchorn requested a withdrawal of his charge, and the Regional Director thereupon 27 Pars 4(a) and (b) of that April complaint are identical to pars 5(a) and (b) of the instant case BALLOU BRICK CO. 49 issued an order granting request to withdraw charge, dis- missing complaint, withdrawing notice of hearing, and closing case. The above facts disclose that, although there was no actual settlement agreement, there was, in effect, a pri- vate settlement between Watchorn and the Respondent. However, this settlement did not remedy all of the unfair labor practices contained in paragraphs 5(a) and (b) of the complaint. Also, there was no posting of a notice, a term of settlement which was specifically, requested by the Respondent. The Board has uniformly demanded the posting of a notice to employees as an essential element of the remedy for unfair labor practices. Clear Haven Nursing Home, 236 NLRB 853 (1978). Since Lodge 1426 was not a party to Case 18-CA- 8082, nor is there any claim that Watchorn was its agent, it was not bound by the private settlement between Wat- chorn and the Respondent. To hold that the withdrawal by Watchorn was binding on the Union would be a denial of its rights to file charges on behalf of the Re- spondent's employees . As the Board stated in Union Mining Co., 264 NLRB 275 (1982), "the Board has long held that withdrawal or dismissal of a charge without prejudice does not bar a finding of a violation in a sepa- rate proceeding based on essentially the same allega- tions." It is also significant that the Board was not a party to any settlement private or written. For the above reasons, I do not find that paragraphs 5(a) and (b) should be stricken from the complaint, and the Respondent's motion is again denied. 2. Second affirmative defense The Respondent in its amended answer also contends that the allegation contained in paragraph 5(a) is barred by the 6-month limitation period contained in Section 10(b) of the Act. Section 10(b) in essence provides that no complaint shall be issued based on any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board , Since the date of the al- leged violation, December 7, 1982, is set out in the charge, the question is whether or not the charge was filed within 6 months thereof. The record shows that Lodge 1426 filed its charge on May 23, 1983. Thus, since the 6-month period ran until June 23, 1983, the filing of the charge on May 23 did not exceed the 6-month period for filing a charge. The Respondent 's second affirmative defense is denied , and the allegation contained in para- graph 5(a) is not barred by the Act's statute of limita- tions. 3. Merits of the allegations about interference, restraint, and coercion 1.. In support of the allegation contained in section 5(a) above, the General Counsel chiefly relies on the testimo- ny of Dale Watchorn, who had been hired in October 1982, for the laboring job of brick blender . Watchorn testified that on December 7, 1982, he was working behind the monorail taking ofF brick seconds when he and his supervisor Bill Heckart engaged in a conversa- tion. 28 Watchorn described the conversation as follows: A. It started out with just general conversation. It moved on-I asked Bill what my future would be with the company plus the benefits, if there would be any increase in benefits . And Bill stated, to the best of his knowledge, he assumed the benefits would remain as they were . I asked Bill about whether there was a Union in the Adel plant and Bill said there was a Union but he wasn't aware of the benefits that they were receiving. Bill also stated that anyone caught talking about a Union in the plant would be terminated for an attitude prob- lem. He said the company would protest your un- employment. They wouldn't hesitate to spend $5,000 to discredit you, to have your unemployment denied before they would ever consider giving anyone a nickel raise. Q. Do you recall anything else in this conversa- tion? A. Bill also said that people gel. too far out of line, too vocal. Every once in a while the company has to use someone as an example to keep the rest of the employees in line. And then we also dis- cussed the lunchroom . The conditions that we were subjected to. And he acknowledged that there was a problem, but there wasn't nothing that he could do about it. Q. During this conversation, did Mr. Heckart ever direct you to John Hill? A. No, he didn't. Q. Did he tell you that the company policy re- quired you to talk to Mr. Hill if you had questions about Unions? A. No, he didn't. In corroboration of Watchorn's testimony, the General Counsel presented Scott Clark , another packaging em- ployee. According to Clark he overheard a conversation between Watchorn and Clark that took place in Novem- ber 1982, while Watchorn was operating the octagon machine in the octagon building.29 Watchorn and Heck- art were talking about the weather, how cold it was, "And Dale said something like, well, if this was a Union shop, things around here would be different. And Bill [Heckart] said that Union talks around here will get you fired according to Norm Mahoney." Heckart admitted that he had had many conversations with Watchorn at various work stations in December 1982, in which Watchorn would bring up unions. In these talks Watchorn would comment that this plant needed a good union, and if it was a union plant the em- ployees would not be treated like they were. In reply, Heckart would tell him that he was not interested, and if he wanted to go any further that he had to talk to John 28 Watchorn's stated work station is corroborated by R. Exh. 45(g) which shows he worked on seconds for the workweek ending December 8, 1982. 29 The octagon machine has eight sides , runs by air, and is used to package special sized bricks 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hill. The packaging supervisor denied that he ever said that union talk will get you fired, or that the Company would protest unemployment compensation, or that the Company would spend $5000 rather than give a nickel raise. As found in my rulings on credibility in section III,B, above, Watchorn was the lone witness of the General Counsel that I did not find to be a credible witness. Likewise, I did not find the evasive, garrulous, Heckart to be a trustworthy witness. Scott was an impressive, straightforward witness who was in the employ of the Respondent when he testified against his employer's in- terest, and I credit his testimony. However, I do not find that Scott's testimony in this instance sufficiently cor- roborates Watchorn's testimony so that I can credit Wat- chorn's testimony over that of Heckart. Watchorn was a constant complainer, and no doubt he did bring up unions and working conditions in the brick plant to Heckart on various occasions. However, he definitely set this conversation as taking place on December 7, while working behind the monorail, an entirely different build- ing than the octagon building. Clark, in turn, fixed the conversation he overheard as occurring in November, while Watchorn was operating the octagon machine in the octagon building. I find that the General Counsel has not proved by a preponderance of the evidence that on or about December 7, Heckart so threatened Watchorn. Accordingly, I shall recommend that this allegation of the complaint be dismissed. 2. Subparagraph 5(j) alleges: "In or about December, 1982, at Respondent's facility, Respondent, by its Assist- ant Plant Superintendent Heckart requested an employee to engage in surveillance of other employees' union ac- tivities and sympathies and further interrogated said em- ployee about the Union activities and sympathies of other employees." Scott Clark, who had been hired on October 14, 1982, for the packaging department, originally testified that in December he was taking seconds off of the monorail, when. Heckart asked him if he had heard Watchorn "talking about Union activities or anything." When Clark replied that he had not, Heckart said, "Well, if he does, tell me or Norm immediately and we'll take care of it." Clark also testified that in the following week Heck- art asked him the same thing. On cross-examination, Clark, on being pressed about the date of the conversa- tion, while stating that he was not sure, agreed that it could have occurred from mid-December to early Janu- ary. Heckart admitted that he frequently discussed unions with Clark but denied that in December he ever asked Clark about "supporting unions" or being involved in union activities, or that he ever asked any employee to report to him what they saw regarding union activity. The Respondent in its brief argues that Clark's story is implausible because certain work records, Respondent's Exhibit 45(a), (c), and (e), indicate that during the period from December 15 through December 29, 1982, Clark did not work on the backside of the monorail picking seconds, I do not find that the records, set forth by the Re- spondent, estop me from crediting Clark's testimony that in December Heckart conversed with him about Wat- chorn as set forth above. Clark's original testimony was that the conversation occurred in December. While he thereafter conceded, on cross-examination, that it could have occurred from mid-December to early January, he kept insisting he was not sure of the exact date. The Respondent's own record, Respondent's Exhibit 45(g), sets forth that Clark was working on the monorail 1 on December 8 picking seconds, and I regard this as supportive of Clark's testimony. Also, Respondent's Ex- hibit 45(h) shows that Clark worked on monorail 2 on December 6 and 7. I credit Clark's testimony and I-find that Heckart did interrogate him about Watchorn's union activity, and that he asked Clark to surveil Watchorn for any union activities. I also find that Heckart's statement that "we'll take care of it" was a thinly veiled threat to discipline or discharge Watchorn for engaging in such activity. Such statement by Heckart constituted an un- lawful infringement on employees' Section 7 rights and therefore violates Section 8(a)(1) of the Act. 3. Subparagraph 5(b) recites: "On or about January 27, 1983, at Respondent's facility, Respondent by its Manu- facturing Operations Manager Mahoney, threatened that unspecified reprisals would be taken against an employee if the employee continued to engage in protected con- certed activity.30 Watchorn testified that he had initiated a conversation with N. Mahoney on January 27, near the back of the kiln, where he had gone to warmup after working in the open, scooping snow. Watchorn asked N. Mahoney if the Company practiced discrimination and the operations manager asked what he was referring to. Watchorn then told him that he thought he was being discriminated against because he was not given the opportunity to work on incentive pay jobs or more desirable jobs. Wat- chorn also asked him about the Adel plant and described N. Mahoney's answer as follows: He acknowledged that there was a union in the Adel plant, but it was company policy not to have a union in this Sergeant Bluff plant. That the Compa- ny would discourage anyone from trying to start a union. And that if I continued to criticize the Com- pany. I would be-what did he say now . . . if I continued to-I can't remember exactly what he said, I could be dealt with. I would be given a . . . oh boy . . . I would have been given a ... . After a long pause, Watchorn continued: He stated that if I continued to criticize the compa- ny, that I would be dealt with in a disciplinary manner. When asked the kind of things that he was criticizing, Watchorn stated that in the past he had criticized the un- heated, dusty lunchroom, the insurance policy, and the glove awards. $0 The Respondent's counsel also requested that this allegation be stricken from the complaint, on the basis that it was resolved by the Wat- chom settlement For the reasons stated in sec III,F ,(I),(a), above, the motion is denied BALLOU BRICK CO. N. Mahoney recalled two conversations he had had with Watchorn. As to the first, he testified as follows, 'without offering a date: Dale Watchorn had asked me on one occasion if we had a union at our other plant, at Adel. And I re- sponded that we did. And he then wanted to know why we didn't have a union at this plant. And I re- sponded to him that our policy concerning unions was so stated in our rules and regulations . And I re- ferred him to that. Concerning the second conversation, N. Mahoney tes- lified that on January 27 Watchorn was near some kiln cars, having just come in from the outside. Watchorn called him over and stated that he wanted to complain about being discriminated against, that he was being given "shit jobs." N. Mahoney then told Watchorn that lie was aware he was having some problems, and had re- ceived some disciplinary warnings ; but essentially he tried to give him a pep talk to get him to improve his performance and outlook. N. Mahoney denied that he told Watchorn that if he continued to complain he would be disciplined. Assuming, arguendo , that Watchorn's version is the accurate version of their conversation, I do not find a violation There is no evidence that Watchorn was acting on behalf of any employee other than himself, in making these complaints to N. Mahoney. As stated by the Board in Meyers Industries, 268 NLRB 493 (1984), activities will not be found to be "concerted" within the meaning of the Act unless they are engaged in with, or on the authority of, other employees. Accordingly, since Watchorn was acting alone and solely on his own behalf, I find that N. Mahoney's comments were not unlawful under the Act, and I shall recommend that this allegation of the complaint be dismissed. Certified Service, 270 NLRB 360 (1984). 4. Subparagraph 5(c) alleges: "On or about May 4, 1983, at Respondent's facility, Respondent, by its Super- visor of Making and Setting Department, Ray Horner, told an employee that if he was not already at the top of a list of employees to be terminated that he would be terminated if he filed a safety complaint against an agent of Respondent." David McCarthy, a maintenance department employ- ee, testified that on April 16, while standing on a con- veyor belt performing some repair work, it suddenly started up. He then looked at the control panel and saw his supervisor, Bill Wiseman, with his left hand at the face of the control panel. On May 1 McCarthy' had a conversation with Edward Thompson, a fellow mainte- nance employee, and also a member of the plant safety committee, about the conveyor incident. Thompson in- formed McCarthy that it was no accident, but a deliber- ate act by Wiseman, as he had talked to this supervisor about the incident. McCarthy decided to file a safety violation report, and the two maintenance employees agreed that they would file safety violation reports. McCarthy turned his statement over to Thompson, who 51 presented both statements to Manager H. B. Newman on May 3.31 McCarthy further testified that on the morning of May 4 or 5, he was working in the maintenance department when Roy Horner, the millroom supervisor, stopped by. The two employees talked briefly, when Horner men- tioned that he had heard about the safety report that McCarthy had filed. Horner then said, "Well, if you weren't already at the top of the list, with that safety violation, you will be."32 The General Counsel states in her brief that Horner was clearly conveying to McCarthy that people who filed safety reports against their supervisors were likely to get themselves placed on layoff lists., and that it was a threat not so much to McCarthy, as to all employees. I do not consider such an offhand remark by an admitted- ly friendly supervisor from another department, to be a threat within the meaning of Section 7 and Section 8(a)(1) of the Act. Clearly Horner was not hostile to the employees as it was he who had first contacted the Union about organizing the brickyard, and it was he who later recommended to Tim Heilman that he contact union official Sturgeon about unionizing the plant. McCarthy himself characterized this conversation as "a general conversation between fellow employees as far as I was concerned." Accordingly, I shall recommend dis- missal of this allegation. See Graneto-Datsun, 203 NLRB 550 (1973); New Process Gear, 249 NLRB 102 (1980). 5. Subparagraph 5(d) recites: "On or about May 16, 1983, at a retail business in Sioux City, Iowa, Respond- ent, by its Supervisor of Drying and Burning Depart- ment, (Vern Covington), told an employee that the reason certain employees had been discharged on May 13, 1983, was because of their union activities." On May 16, the Monday after the layoff of the 13 em- ployees, Ed Thompson, one of those laid off and an elec- trician, was in the Mr. Donut Shop in Sioux City. Vern Covington, the kiln supervisor, came in and Thompson initiated a conversation while they drank coffee. Thomp- son testified that Covington said he had just come from a management meeting with John Hill, and also mentioned that he had just returned from a 2-week vacation, so this was his first day back at work. Thompson then told Covington that he understood why some employees in production were fired, but he could not understand why he had been fired.33 Covington replied that John Hill had said that he was afraid that if the Union got in, Thompson would be a leader in the Union. Covington further said that Hill had told him that the 14 were fired because of their support for the 'Union. According to Thompson, his conversation with Covington about brick- yard matters took about 20 minutes, while they spent about 15 additional minutes in discussing personal mat- 31 This testimony was uncontradicted and I credit it. Wiseman did not testify as to the incident, but admitted that he received a letter of repri- mand from Hill, which was placed in his file 32 This testimony was unrebutted, as Horner, although still employed by the Respondent at the time of the hearing, was not called to testify 33 Thompson was a highly skilled electrician who had worked on the project, including the installation of the Respondent's new highly auto- mated programmable controller 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ters. Both men had previously worked for Zenith in an area plant, and had a common hobby in electronics. Covington testified that he returned to work on the morning of Monday, May 16, following a 2-week vaca- tion. On arriving at work he had talked with N. Ma- honey, and after lunch had talked to Hill . Covington de- scribed his conversation with Hill as follows: Q. What was said and by whom? A. He asked me how I enjoyed my vacation, I told him' l enjoyed it fine, I didn't appreciate the snow as I'd been caught in snow twice, we chatted for two or three minutes, about purely personal matters relating to my vacation, he gave me my two paychecks which were due, I excused myself because I had to return to work. Q. Was anything else said? A. No. Covington acknowledged that he had had a conversa- tion with Thompson in the evening of May 16 at the Mr. Donut Shop. When asked what was said and by whom the kiln supervisor testified: Ed greeted me, hello or how are you or words to that effect, at that time I recognized him, realized who he was, returned the greeting, told him I was sorry to hear about the layoff, and he returned that words to the effect that he expected it being as he was newly hired and one of the persons hired for the construction project which had been recently finished, shortly after that the waitress brought his coffee and he took the coffee and returned to his table. When asked what else was said between himself and Thompson, Covington replied that that was basically it, that nothing else was said that he could recall, and Thompson left. In response to direct question asked by the Respondent's attorney, Covington denied that Hill had told him that Thompson was laid off because of his union activity, or that he told Thompson that 14 employ- ees had been laid off because of their support for the Union. Covington was an unconvincing, hedging witness whose testimony did not ring true , but appeared to be contrived, and I do not credit his testimony . When asked how he checked Thompson's name on the list of employ- ees given him by Smith at the April 28 meeting, he re- plied that he did not recall, and that he did not recall any discussion there of who might be potential leaders. Covington's answer that he did not recall how he checked Thompson is incredible as these two knew each other for over the past 10 years when they had worked- at Zenith, a union plant, where Thompson had been a strong union supporter. His answer that he did not recall any discussion of who might be potential leaders is either incredible or shows a very poor memory. Smith's min- utes of the meeting set forth that potential plant leader- ship was one of the major issues discussed at the meet- ing, and that Thompson was the second person listed as a potential plant leader for the Union. The Respondent in its brief makes much of the fact that there was no evidence of a supervisor's meeting that day. However there was a meeting of Covington and the key management figure, as he testified that he had met with Hill on the afternoon of that same day, and had "chatted" with him "about purely personal matters relat- ing to my vacation."34 Thompson was a verbose witness, but a candid con- vincing one, and I credit his testimony that Covington told him that Hill had said the reason the 14 employees had been fired on May 13 was because of their union ac- tivities. This statement is clearly coercive as it informs employees that if they engage in union activities they will be discharged . This is a violation of their Section 7 rights, and therefore violates Section 8(a)(1) of the Act. 6. Subparagraph 5(e) alleges : "On or about May 16, 1983, at a retail business in Sioux City , Iowa, the Re- spondent, by its supervisor of Drying and Burning De- partment, Vern Covington, told an employee that the Respondent would close Respondent's facility and trans- fer work performed at Respondent's facility to Respond- ent's Adel, Iowa facility in order to avoid union repre- sentation for its employees and that , after a hiatus, Re- spondent would reopen Respondent's facility and hire all new employees." In the same conversation at the Mr. Donut Shop, re- viewed in (d) above, Thompson testified that Covington also said: [W]ell-he said that John Hill had told him, during this management meeting, that it really didn't make any difference on this because, if the union got in, they were just going to transfer everything to the Adel plant-build up product out of the Adel plant and then shut down the Sioux City plant and trans- fer everything to Adel. And, then when this thing blew over, that they was going to reopen the plant and hire new employees. And, that he figured- John Hill figured he had it beat. Covington denied that he told Thompson that Hill was planning on transferring the plant to Adel, and that Hill was planning to reopen after a hiatus. The Respondent in its brief asserts that Thompson's statement is improbable for several reasons. First, that the brick made at Adel is different from the brick made at Sergeant Bluff, in that the Adel brick is a high sulphur brick, primarily used in the construction of smoke stacks, whereas the Sergeant Bluff bricks is primarily used for the construction of buildings, such as schools, churches, and courthouses. For a second reason, the Respondent asserts that it is unpersuasive to suggest that a brickyard which has its 94 I also do not credit Covington's testimony that the kiln supervisor's conversation with Hill was limited to personal chatter about his vacation. In the 2 weeks he had been away, there was a drastic reduction in the manning level of the plant by the layoff of 14 employees, which had to affect the operation of his drying and burning operations in various direct and indirect ways. Hill, as the chief operating officer of the Company, was undoubtedly the driving force of the Company , and totally involved in every detail of its operation . To believe that Hill would not discuss that reduction in force and its effects on the operation of the plant on the first day an important supervisor returned from vacation is incredible. BALLOU BRICK CO. own clay, would transfer its clay, facilities, and an inven- tory of nearly twenty million bricks to a facility hun- dreds of miles away.35 However, I find that these reasons are far wide of what Thompson said, and that the Respondent read much too much into what was actually said . It is true that Thompson did state that he had been told by Cov- ington that Hill had said the Company would "transfer everything to Adel." However, it would be highly un- reasonable to infer that this statement meant that over 100 acres of clay and nearly 20 million bricks , would be shipped to a place 170 miles away . It could be inferred from Hill's statement that Ballou would transfer its man- agement to Adel, have this plant manufacture all of the bricks that it could produce, and after a sufficient period of time, bring the managers back to Sioux City and reopen the Sergeant Bluff plant. I credit Thompson's testimony that Covington told him that Hill had told him if the Union became the bar- gaining representative of its Sergeant Bluff employees, the Respondent would close down that brickyard tempo- rarily, while its management worked at the Adel plant; then when the strife was over, and the layoff of the 14 employees had calmed down and had ceased to be an issue, management would return to the Sergeant Bluff plant, and reopen it with a new work force. Certainly, a threat to close the plant down because of union activity is one of the most chilling and common tools used by management to strike fear into the hearts of employees, and thereby discourage unionization. Covington was the kiln supervisor at the time and was, therefore, a general agent of the Company. Accordingly, the threat described is attributable to the Company and as it was clearly coer- cive, the Respondent thereby violated Section 8 (a)(1) of the Act. 7. Subparagraph 5(f) recites : "Since on or about May 2, 1983, at Respondent's facility, Respondent, by its Man- ufacturing Operations Manager Mahoney, requested an employee to engage in surveillance concerning the em- ployees' union activities and sympathies and further in- terrogated said employee about the Union activities and sympathies of other employees." On the evening of May 2, the day N. Mahoney and Ingalls made the list of 14 employees to be laid off, N. Mahoney telephoned a laid -off employee, Lewis LeMas- ter, and asked him to return to work as he needed some cleaning up to be done in the old mill. LeMaster was 70 years old at the time, and had worked full time for the Respondent from 1966 until 1978 , when he became 65 years old. Thereafter, he worked part time to supplement his Social Security income. He had last worked for the Respondent in December 1982, when he was laid off. On April 28, when N. Mahoney had filled in the consultants' poll about how he thought employees would vote, the operations manager checked LeMaster as against the Union. LeMaster returned to work the next day, May 3. He testified that on the first week of his return, N. Ma- honey asked him if he knew about a union trying to or- ganize the Company's employees. LeMaster advised him as The distance as set forth in Rand McNally Road Atlas 1980 Ed. is 170 miles. 53 that he had heard it "uptown," but not from anyone working in the brickyard. LeMaster further testified that a week or so later N. Mahoney asked him, "if I had heard anymore about the union," and then "he asked me to keep my ears open and listen to see if I hear anything about the Union:" LeMas- ter also testified that later in the summer , around the time of the election, N. Mahoney again asked him to keep his ears open, and "to listen to see if I heard any- thing about the union." N. Mahoney testified that on the day LeMaster re- turned the subject of union activity came up, but he forgot how it happened to do so. He did remember that LeMaster informed him that he was aware of union ac- tivity at the brickyard. N. Mahoney admitted telling Le- Master that he would appreciate his support for the Company, and that he further talked to LeMaster about the union approximately six times in the following month and a half. The operations manager could only recall one employee that he and LeMaster discussed , Steve Sweis- berger. In this conversation LeMaster had informed N. Mahoney that he doubted that Sweisberger would sup- port the Union, as he had been through "quite a hassle" during a strike at Iowa Beef Processors. On September 6, N. Mahoney spoke to LeMaster about his inability to perform his job , due, as the oper- ations manager stated, to his age, and told him that he thought he should retire. LeMaster agreed, and left the Company on the agreed date of September 30. N. Mahoney never did deny LeMaster's testimony that he had told LeMaster to keep his ears open and listen to see if he heard anything about the Union . His only rebut- tal was a weak statement that he did not recall making such a statement. LeMaster was an honest witness and I credit his testimony that his long-time friend and supervi- sor did tell him to do so. N. Mahoney's request must be placed in its proper context. On the very day he had drawn up a list of 14 employees to be laid off, most of whom were unskilled laborers, he called back a long laid-off 70-year-old em- ployee, to do unskilled laborers work of clean up. Then in a day or so, the operations manager instructed his old friend to keep his ears open and listen to try to pick up anything he heard about the Union. Certainly this was not a casual instruction that LeMaster was merely to listen to other employees conversation about the Union, and simply retain this information in his head . The infer- ence is plain that N. Mahoney was telling LeMaster to listen to obtain any employee conversations concerning their union activities, and to report that information back to him, so that he could know which employees were union supporters. N. Mahoney plainly requested LeMas- ter to engage in surveillance of the union activities of the Respondent's employees and thereby interfered with their Section 7 rights . Accordingly, I find that the Re- spondent thereby violated Section 8(a)(1) of the Act. I do not find that the General Counsel sustained her burden of proof that the Respondent interrogated Le- Master about union activities of other employees. The record only reveals one conversation between N. Ma- honey and LeMaster about one employee, Sweisberger. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, it does not disclose how the conversation arose or its context, and I find the record too vague to sustain a violation of this charge of interrogation. 8. Subparagraph 5(g) alleges: "On or about July 13, 1983, at Respondent's facility, Respondent, by its Presi- dent P. H. Mahoney threatened to reduce employee hours if they voted for the Union in the upcoming elec- tion." For proof of this allegation, the General Counsel relies on the testimony of Michael Owens concerning a con- versation that took place between Owens and P. Ma- honey, the chief executive officer of the'parent company, Sioux City Brick and Tile. Three days before the elec- tion, P. Mahoney had told Owens, a veteran employee of 17 years of service, that he could not tell him how to vote, but he wished that Owens would vote no. On the following day Owens was sitting in the Octagon building when P. Mahoney came in and sat down . Owens de- scribed the conversation as follows: Well, he said he'd like to discuss a few things, and he went on with talking about how much money they made at Adel. Then he got out a pocket calcu- lator and said if we wanted 40 hours, at the rate of pay that Adel got, that I still would not make any more money at 40, even though we got a raise in pay. When asked if P. Mahoney told him why he was making the calculations as to what his wages would be for 40 hours at the Adel rate, Owens replied that it was "just to show that we couldn't make any more money, if we got a union in." When asked on cross-examination if P. Ma- honey ever told him that if the Union won the election, the Company was going to reduce the hours to 40 at Ballou Brick, Owens said that he was not sure, "I don't remember." P. Mahoney testified that he wanted to show to the employees that they would not be benefiting themselves by voting for the Union. He had prepared calculations on paper in the office to show them what they could earn under the Adel union contract, and what they were currently making with no union. He then took the wage rate for an employee's job classification at Adel, multi- plied it by the 40 hours per week employees worked at Adel, and subtracted the insurance fees and union dues paid by the Adel employees. The bottom line for an Adel employee comparable to Owens was $234.55. He also made calculations for Owens using the 45-hour week worked at Sergeant Bluff, and subtracted their lower insurance cost , for a bottom-line take home pay of $241.54. On cross-examination P. Mahoney admitted that the employees at Sergeant Bluff would never work 40 hours a week because of the problems associated with the number of kiln cars having to be put through the kiln every day. 36 ss There was extensive testimony by N Mahoney and Ingalls that in 1982 when the Sergeant Bluff plant had been placed on a 40-hour week, it had resulted in a, poor quality brick as the color and quality of the bricks were affected in the kiln, due to the shorter workweek Owens' testimony does not show that P. Mahoney made any explicit threat to reduce the employees' hours if they voted for the Union, nor do I find any implied threat. With an election coming up in 2 more days, P. Mahoney was campaigning for the Company , and was showing what he claimed to be comparative pay. He did engage in some flimflam by basing his calculations on a 45-hour week at Sergeant Bluff and a 40-hour week at Adel, but this mismatch was readily perceived by Owens, as he told P. Mahoney that he objected to having to work 45 hours for the pay that Adel employ- ees made in 40 hours . Since I find that there was no threat to reduce hours, I find that P. Mahoney's conver- sation was not unlawful under the Act, and I shall rec- ommend that this allegation of the complaint be dis- missed . National Southwest Aluminum Co., 197 NLRB 1008 (1972). 9. Subparagraph 5(h) alleges: "At all times material herein, more particularly since some unspecified time in 1981, Respondent has maintained in force and effect a policy of encouraging employees to report the Union ac- tivities of other employees to management." In support of this allegation the General Counsel relies on a provision contained in the Respondent 's rules and regulations, dated June 9, 1981. This provision is con- tained in General Counsel's Exhibit 5, pp. 4A and 4B, ex- tracted from General Counsel's Exhibit 37 and is quoted below as set forth in the Respondent's 1977 rules. Hill testified that the Respondent had had a book of rules and regulations for its employees as far back as 1916. Over the past 20 years changes were made by Hill, and the rules were revised by replacing sections or by rewriting the entire book. When employees were hired they were given the book of rules and regulations to read, and were required to sign on the second page of their application, that they have read and understood these rules.37 The other procedure used by the Respond- ent to inform its employees of its rules was the posting of them on two bulletin boards, one located in the mill room and one in the octagon. In 1977, Hill had revised the Respondent's rules by in- serting therein a new policy statement that advised its employees that the Company was a nonunion organiza- tion, always had been, and it was their desire that it would always be nonunion, and that a union would hurt the business. The final paragraph of the new policy state- ment read as follows: If anyone should come to you and ask you to sign a union authorization card, we are asking you now to refuse to sign it. You have a right to join and 37 McCarthy, who was hired on September 2, 1980 , testified that he signed the last page of the handbook , and Thompson, who was hired on October 10 , 1982, testified that he also signed the last page of the hand- book after reading it The Respondent produced both McCarthy's and Thompson's applications, R. Exhs 33(a) and (b), which showed their sig- natures on their applications acknowledging that they had read the rules Although the record is clear that these two employees signed on their applications that they had read and understood the rules and regulations, it cannot be ruled out that they did not also sign the handbook itself In any event, the record is crystal clear that newly hired employees were explicitly given the rules to read when they were hired, although not given a copy to retain. BALLOU BRICK CO. belong to a union, and you have an equal right not to join and belong to a union. If any other employ- ee should interfere or try to coerce you into signing a union authorization card, please report it to your supervisor and we will see the harassment is stopped immediately. In 1981, Hill again modified the Respondent's rules and regulations, and drafted a replacement handbook, dated June 9, 1981, General Counsel's Exhibit 37A. In- corporated in these rules was the same policy statement, and the same quote from the 1977 revision, as set forth above, with John D. Hill's signature, written directly below the matter quoted above. These rules were posted on the two bulletin boards as was the custom. In April 1983, Ballou again modified its rules and reg-, ulations and replaced the 1981 booklet with one dated April 11, 1983. These rules did not contain the provision set forth above, but contained in its place a provision which the General Counsel admits is not violative of the Act: "If anyone should ask you to sign a union authori- zation card, we believe that you should refuse to sign it. While you have the right to join a union, you also have the right not to join." As Hill admitted, when these 1983 rules were revised, copies were not given to the employees to read, but were merely posted on the bulletin boards in the mill room and Octagon building. The provision posted on both of the Company's bulle- tin boards, from 1977 until April 11, 1983, plainly point- ed out to the employees that the Respondent did not want its employees to sign union authorization cards, which is permissible under Section 8(c) of the Act. How- ever, the following sentence went beyond such expres- sion of opinion by instructing its employees to report to management, "If any other employee should interfere or try to coerce you into signing a union authorization card," and management would see to it that "the harass- ment is stopped immediately." It is self-evident that the Respondent was equating solicitation with harassment, and the clause ominously promised that such harassment would be stopped immediately. In J. H. Block & Co., 247 NLRB 262 (1980), the Board reviewed a similar bulletin board notice and found that it violated Section 8(a)(1). The Board stated that that notice "has the potential dual effect of encouraging em- ployees to report to the Respondent the identity of union card solicitors who in any way approach employees in a manner subjectively offensive to the solicited employees, and of correspondingly discouraging card solicitors in their protected organization activities," Clearly the quoted rule of the Respondent was intended to and has the same effect, and would chill employees from solicit- ing cards and engaging in protected organization activi- ties. Under the similar circumstances of the instant case, I find that the rule in question here to be unlawful and that the Respondent has thereby violated Section 8(a)(1) of the Act. Electric Hose & Rubber Co., 267 NLRB 488 (1983). That rule had been posted on the bulletin board for many years prior to the April 11 deletion, but this deletion was not realistically communicated to the em- 55 ployees. The fact that the Respondent removed the ille- gal clause cited above on April 11, and replaced it with an innocuous one, does not eradicate the violation.38 The Respondent failed to communicate this change to its employees as they were not given any copies of the replacement provision, nor were they told to read the re- placement clauses posted on the bulletin boards. The 29 production and maintenance employees of the Respond- ent who had been hired since 1977 had been officially re- quired to read this illegal language when hired, and were given no notice whatsoever that this rule was not bind- ing after April 11. Merely changing some pages in a book kept in a drawer in the personnel department, or placing some pieces of paper on two bulletin boards, with nothing more is legally insufficient notification to employees, that they were henceforth entitled to sign union authorization cards, and to solicit other employees to sign authorization cards without fear of reprisals by management. Electric Hose Co., supra. Such a belated and unannounced rescission of an illegal rule does not ab- solve the Respondent from its violation of the Act. Model A & Model T Reproduction Corp., 259 NLRB 555 (1981); Automated Products, 242 NLRB 424 (1979). Ac- cordingly, I find that the Respondent's maintenance in its rules and regulations of the provision contained on pages 4A and 4B interferes with, restrains, and coerces employ- ees in the exercise of their Section 7 rights and violates Section 8(a)(1) of the Act. 10. Subparagraph 5(i) recites: "At all times material herein, Respondent has maintained in force and effect a rule prohibiting solicitation and distribution of literature at Respondent's facility at all times." The General Counsel relies on wording contained in a lengthy paragraph of the Respondent's April 11, 1983 rules and regulations (R. Exh. 10). Under the heading "PERSONAL BEHAVIOR," appears the following: It is true that some areas of behavior are potential trouble spots. Some of these are spelled out below so that we realize that they require special attention. They can be grounds for dismissal. Absenteeism- Tardiness-Improper Punching of Time Cards- Weapons-Profane or Abusive Language-Leaving Regularly Assigned Work Location-Threatening- Fighting-Not Following Instructions--Careless Workmanship-Misuse or Sabotage of Equipment- *Soliciting-*Distributing Literature or Posting of Notices on Company Property-Gambling-Falsifi- cation of Records-Removing or Revealing Confi- dential Information-Alcohol or Drugs-Smok- ing-Financial or Personal Problems-Restricting Output-Working Unsafely-Horseplay-Poor Housekeeping-Loafing-Theft-*S'Sexual Harass- " It is a reasonable inference and I draw it, that Labor Relations Con- sultant Smith effectuated this change in language. P Mahoney had first contacted Smith in the last week of March about Watchorn's charge, and Smith had rapidly taken over and handled that case In P Mahoney's letter of April 5 to Smith, the chief executive officer had said, "As we suggested on the phone, it will be our plan to go over some of these rules and regulations with you while this matter is still fresh in all our minds looking toward an updating of our labor relations at the Sergeant Bluf plant" (R Exh 29 ) 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment-Failure to cooperate fully in complying with all safety rules and regulations-Failure to report all injuries or accidents to immediate supervisor-Un- authorized presence on Company premises outside working hours-Unauthorized use of other than de- signed areas for employee parking-Cleanliness and .Sanitation-Reckless or Personal Use of Company or Customer Vehicles and Equipment-Obvious Disloyalty to the Product we sell or to Ballou Brick Company. The General Counsel argues that any employee read- ing this list of "potential trouble spots" would be aware that being accused of any of the activities cited therein, could result in disciplinary action, probably dismissal, or even criminal prosecution. The General Counsel further points out that the Respondent's rule has a veritable laundry list of activities that it will not tolerate on its premises, such as absenteeism, tardiness, weapons, fight- ing, sabotage, and gambling. At this point in this lengthy rule appears another activity that will not be tolerated: "Soliciting-Distributing Literature or Posting of No- tices on Company Property." I find that by describing the soliciting and distribution of literature as "areas of behavior which require special attention," the Respondent indicated that it considered any solicitation and any distribution by its employees at any time and anywhere on its premises to be objection- able behavior, and ranked with sabotage of equipment and gambling. Although no penalties for such miscon- duct was spelled out in the handbook, employees could realistically conclude from its language that the Re- spondent was likely to discipline or discharge those who engaged in such conduct as bringing weapons on the premises, fighting, sabotage, gambling, solicitation, or distribution of literature for unions. I find that this clause standing alone would constitute a violation of Section 8(a)(1) of the Act. The governing principle is that a rule is presumptively invalid if it pro- hibits solicitation on the employees own time. Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945). Since the page 4 clause amounts to a flat, unlimited prohibition of solicitation or distribution of literature by employees at any and all times, it follows that it prohibits such activity on employees' breaktime or lunchtime. This would con- stitute a violation of Section 8(a)(l) of the Act. The Respondent in its brief never mentioned the page 4 rules discussed above. Rather, the Respondent cites the following provision which appears on page 6 of the same rules and regulations: SOLICITATIONS AND LITERATURE DISTRIBUTION In order to keep the plant and premises neat and at- tractive, it is necessary to restrict the posting of signs and the distribution of literature on Company property, No collections, ticket selling, solicitations, distribution of literature, or donations will be per- mitted on company property during employees' working time; except that it must be understood that nothing will interfere with employees' protect- ed concerted activities, regarding solicitation or dis- tribution of literature during employees' non-work time. The Respondent then goes on to cite the case Our Way, 268 NLRB 394 (1983), in which the Board held that rules banning solicitation during working time state with sufficient clarity that employees may solicit on their own time. Therefore, the Respondent contends, since their page 6 rule only prohibits solicitation and distribu- tion during employees' working time, the rule is pre- sumptively valid under Our Way, supra, and validity is further strengthened by the Employer's additional writ- ten explanation that employees are free during "non- work time" to engage in concerted activity. It is obvious that there is an ambiguity between the stark warning against solicitation and distribution on page 4 of the rules and the contents of the provision on page 6. An employee reading page 4 would be faced with the straight-from-the-shoulder statement that if he engaged in soliciting or distributing literature on compa- ny premises at any time he could be dismissed. If the em- ployee would read on to page 6, he would read in lega- lese that he could probably engage in solicitation or dis- tribution of literature during his nonwork time. Howev- er, the Respondent, in no way, flagged its language on page 4, to indicate to the employees that that rule was of no more force and effect. Also, the employer never ad- vised the reading employee that the employee should read its page 6 provision to learn what the Company's real rule was on such activity. It is evident that this am- biguity was created solely by the Respondent. It has long been held that "the risk of ambiguity must be held against the promulgator of the rule rather than against the employees who are supposed to abide by it." NLRB v. Miller, 341 F.2d 870, 874 (2d Cir. 1965). See also Gould, Inc., 260 NLRB 54 (1982). Since this ambigu- ity is solely the responsibility of the Respondent, I find therefore, under the principles set forth above, that by maintaining rules which strongly suggested that any so- licitation or distribution anywhere on its premises at any time was prohibited, the Respondent restrained, coerced, and interfered with its employees' rights to engage in union activity protected by Section 7 of the Act. As no special reason was shown for maintaining these rules, I find that by maintaining them, the Respondent violates Section 8(a)(1) of the Act. Republic Aviation Co. Y. NLRB, 324 U.S. 797, 803-804 (1945). 11. Subparagraph 5(k) alleges: "In or about April 1983, at Respondent's facility, Respondent, by its Assistant Plant Superintendent Heckart, created the impression of surveillance of employees' union activities." The General Counsel relies on the testimony of Scott Clark, an employee who worked in the packaging de- partment under William Heckart, and who had a friendly relationship with his superior. As previously stated in III,C above, the Union had an authorization card signing meeting for Ballou's employees at Judy's Bar in Sergeant Bluff after work on Monday evening, April 25. Clark testified that he attended the beer party, and that on the following morning Heckart discussed with him his at- tendance at the union meeting. Clark described this con- versation as follows: BALLOU BRICK CO. A. He asked me if I went to that party last night. I said yes I did. And he said I thought so. Me and Dave Clausen drove by to see who was all there by looking at their cars. And I said yes I was there. Q. Do you recall anything else from this conver- sation? A. Oh, he named off a few other people who were there, that he believed was there. Dan Pojar, Steve Bertrand , and I can't remember the other names, but he proceeded to name a few people. Q. Do you recall anything else? A. He asked me who else was there and I just said, well I was. That is all I would tell him. Q. Was there anything more to your conversa- tion? A. No, not that I remember. According to Heckart, he first had a conversation with Clark at the plant on "the night of the beer party or the day of the beer party." When asked what was said, the assistant plant superintendent testified as follows: Do you want to go, hey, do you want to come over and have a free beer, Judy's buying us a keg because we changed over to her place. They used to drink at Catherine's now they go over to Judy's. Appreciation, free beer, free keg. Q. Did he mention it was a Union party? A. No sir, he did not. Q. Did you know? A. No sir, I did not. When asked if Clark said anything after this conversa- tion, Heckart replied as follows: Not that day, after the beer party there was. He said that they had a union card-signing party. That was the day after. When asked again if Clark said anything else, Heckart replied, "No, just that I should have been there." Heckart further testified that on the day after the party he told Clark "that there was a pretty good turn out at the free beer party." When asked how he knew that he stated that he and Clausen ride from work together, and when he had passed by Judy's Place he commented to Clausen that "free beer sure brings out the brick yarders or something like that." As previously stated, Clark was a credible witness whose credibility was further enhanced by his testifying against the Company, while still in its employ. I credit Clark's version of this incident, finding that Clark did not have a conversation with Heckart on the day of the meeting at Judy's and did not invite him to come for free beer. The meeting was supposed to be a secret, so obvi- ously Clark would not have revealed it to his supervisor prior to the meeting. I also credit Clark's testimony about Heckart's conversation with him on the following morning, as Heckart was a consistently untrustworthy witness. I find that Heckart's comments on Tuesday let Clark know that he and another supervisor had driven by Judy's and had examined the cars on the bar's parking lot so as to identify which employees were attending the 57 meeting. Further, the assistant plant superintendent let Clark know that he knew the names of several of the employees whose cars were parked outside. The Board has long held that when management gives its employees the impression that it is spying on their ` union meetings and activities, it has a chilling effect, and a tendency to deter employees from their rightful participation in union activities. I find that the Respondent, by Heck art's statement to Clark on the day after the union card signing meeting on April 25, constituted an impression of surveillance, and such conduct interferes with and restrains the employees of the Respondent from exercising their Section 7 rights, and thereby violates Section 8(a)(1) of the Act. G. The Employee Status of Gary Brady Brady was hired on April 17, 1981, as a brick packag- er, and worked on the monorail. Three months later he was transferred by his supervisor Heck art to the sample department. 39 In the sample department employees gath- ered bricks from out of the yard, brought them to the department, where they cut from the brick a portion of the face using power saws. They then glued the facings to plywood panels. These panels were made at the re- quest of company salesmen, who would take them to prospective customers to display the products of the Company. For approximately 6 months Brady performed these duties with several other panel room employees. Brady testified that in late November 1981 the panel room supervisor, David Clausen, asked him "if I would be willing to accept the responsibilities of running the panel room" or if he wanted to be "in charge of it" as Clausen was being transferred to the position of safety coordinator. Brady agreed and on December 1, 1981, commenced being trained by Clausen for the job. Clau- sen showed Brady how to do the paper work necessary to ship the samples by UPS. Brady had to prepare a UPS address label, put it on the shipment, and enter a record of the shipment in a UPS book. Clausen also showed him how to complete the timecards for hourly employees. He also had to fill out a weekly report on how many sam- ples remained to be done at the end of each week. The priority in which the samples were to be made was ranked by N. Mahoney. Clausen worked closely with Brady for several weeks and thereafter worked sporadically with him for about 6 weeks. Brady testified that he was never told he was the supervisor of the sample department, but acknowledged he received a wage increase of 25 cents an hour in Feb- ruary 1982. Brady also testified that no one from man- agement discussed with him any changes in benefits, such as insurance, sick leave, and vacation. This was un- contradicted, and I credit his testimony. N. Mahoney and Ingalls testified that in February 1982, Brady was told by them that he was being granted a wage increase, and was informed that he was the su- pervisor of the sample department. They admitted that no announcement was made of the promotion. Hill testi- ss The terms "sample department" and "panel room" are used inter- changeably as are the words "panels" and "samples." 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD feed that Brady was appointed a supervisor on March 3, 1982, and admitted that there had been a question about when he had been so appointed. Ingalls testified that after Brady was made a supervi- sor, he would stop in the sample department two or three times a day for 3 to 5 minutes . He estimated that Brady would spend about a half day on duties other than sawing the bricks like the other panel room employees. It is uncontradicted that Brady did continue to saw bricks and drive fork lift trucks , just as the other panel room employees did. The question to be resolved is whether, as the Re- spondent contends, Brady occupied at the time of his dis- charge, the status of supervisor within the meaning of the Act. If he was such a supervisor , even if it be found that he was discriminatorily discharged, he would not be entitled to a remedy under the Act.40 The General Counsel insists that Brady was merely a leadman, a category of minor supervisory employees that Congress intended to leave under the protection of the Act.41 Although it is true that Brady was told at the least, that he would be in charge of the sample room or, arguendo, that he would be its supervisor, the use of such general words does not confer supervisory status on an employee . The test is what duties did Brady actually perform. High Performance Tube, 251 NLRB 1362 (1980). The Respondent in its brief points to some 10 indicia of supervisory duties that were performed by Brady. These are reviewed below. 1. Authority to discipline employees The Respondent argues that Brady had the right to discipline employees. The record does not disclose that Brady was ever told during his training period by any supervisor or member of management, that he had the authority to discipline employees , or to recommend that they be disciplined . Nor is there any evidence that after his training period was over that he was so informed. While several of the Respondent's witnesses testified that Brady had the same authority as other supervisors and could discipline employees , there is no evidence that this was communicated to Brady at any time. The Respondent relies on one actual incident to prove that Brady had the authority to discipline, and in fact contends that Brady "effectively disciplined" Bryan Palmer, a panel room employee. Heckart testified that about November 1982, he was approached by Brady in the octagon office and that Brady told him he had an at- titude problem with Bryan Palmer, and did not know how to handle it. He further told Heckart that he did not want to take it to Plant Superintendent Ingalls, and won- dered what the correct procedure was for handling it. 40 Sec. 2(11) of the Act provides: The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effective- ly to recommend such action , if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature that requires the use of independent judgment 41 See NLRB v. Security Guard Services, 384 F 2d 143, 146 (5th Or 1967), for a discussion of the applicable legislative history. Heckart then asked Brady "if he knew about our written warning forms," and Brady replied that he had never seen one. Heckart then showed Brady one of his warning forms, and Brady stated that he was going to the office and get a few . Heckart did not know if he ever secured any or not. Brady's account of his conversation with Heckart on the incident was substantially the same,42 recalling that Heckart advised him that "if you can't get somebody to change their attitude maybe putting some paper on them might help." Brady did not issue a written warning to Palmer, but did talk to him about his attitude, and Palmer turned over a new leaf. It is evident from the above that Palmer was not disci- plined by Brady. Discipline is defined in Robert's Diction- ary ofIndustrial Relations, revised edition, as: Action by an employer, short of discharge , against an employee for infraction of company or contract rules. Discipline may take the form of loss of rights under the agreement, being sent home for a period of time, loss of pay, or other penalties set out in the contract or agreed to as a method of avoiding or re- ducing the incidence of infractions. Clearly, talking to an employee to improve his attitude does not constitute discipline in any form . The incident also helps sustain Brady's testimony that no management employee ever told him that he had the right to disci- pline employees. The Respondent's rules and regulations in effect at that time as shown in General Counsel's Ex- hibit 37 provide for a three-step discipline procedure where the first offense calls for a written warning. It is logical that if Brady had been given the power to disci- pline by management , he would have been informed about it, and given copies of the Company's warning forms to carry out this duty. The Bryan Palmer incident is too weak a reed to support the Respondent's position that Brady possessed the power to discipline. 2. Authority to recommend hiring The Respondent points to the hiring of one employee as proof that Brady had the authority to effectively rec- ommend the hiring of employees. This employee was Brady's son, Brian Brady. Brady testified that he asked Ingalls if it would be permissible for the son of an em- ployee to come to the plant and fill out an application for a job, as his son was unemployed. Ingalls replied that that was fine, have him come in and fill out an applica- tion, and we will treat him like anyone else. According to Ingalls, in August 1982 he had a conver- sation with Brady, whose son was out of work. Brady told the superintendent that his son was a good worker, and if he was hired they could both come to work in the same car. Ingalls then told Brady, "Well, Gary, it's your boy and you know what the work is here. If you believe he can do it why I am most happy to see that he gets the job." Brian Brady came to the plant and went through 42 Brady, although a generally credible witness, was evasive under cross-examination about Palmer's attitude and whether he wanted to saw bricks, and was obviously trying to defend the young employee BALLOU BRICK CO. the first interview, but did not go through a second interview, because Ingalls said, "Gary recommended him and he was Gary's son."43 When asked what procedure is followed regarding interviews when family members recommend other family members as employees, Ingalls replied as follows: The person being interviewed still comes down and makes out the formal initial thing to make sure that the fellow does have two arms and two legs. That he is not blind in those regards. But when a family, father/son, a father recommends and he is working at the plant there is some less consideration to the total interview system then there would be if one of the employees who doesn't have but it's just a friend or we were hiring someone else yes. We rely more in that situation on the person who told us about. N. Mahoney testified that Brady mentioned to him that his son was out of work., and wondered if there was a chance he could be hired. N. Mahoney replied, "I told him he would have to go through the normal procedure of application." Ingalls also admitted that it was common for employ- ees to recommend the hiring of relations, and that in 1982-1983 one other employee had been hired through the recommendation of a parent. Ingalls further testified that when a father, who is working at the plant recom- mends a son there is less consideration for the total inter- view system. Steven Uthe had been hired at the request of his father, Ron Uthe. The father was not a supervisor, but an unskilled packaging laborer. It is clear from the above that G. Brady's request that his son be hired carried no more weight than that of a rank-and-file employee. I do not find that the hiring of Brady's son was an incident of supervisory authority. 3. Authority to transfer employees The. Respondent in its brief properly states that, the au- thority to transfer employees between departments is also a significant indicia of supervisory status. However, the Respondent did not attempt to prove this principle, but attempted to prove that Brady requested the transfer of employees into the sample department. Brady admitted that it was common for him to ask Su- perintendent Ingalls for more people on a day-to-day, temporary basis. If Ingalls approved his request he would then go and inform Heckart of Ingalls' approval, find out if Ingalls had checked with Heckart and, if so, then they would negotiate over which employee Brady would get. Brady denied that he had anything to do with having employees transferred on a permanent basis. The Respondent relies on the transfer of two employ- ees into the panel room as proof that Brady had the right to recommend transfers. The first incident involves Russ 4a Heckart testified that he was sitting at his lunch table when Brady remarked to Ingalls that the plant was hiring and he had someone he wanted hired When Ingalls said the Company was using Job Service for referrals, Brady answered that it was his son Ingalls replied, "Well then by all means have him come down and fill out the applications and we'll talk with him." 59 Ingalls. The Respondent points to the minutes of the su- pervisor's meeting of March 23, 1982, as proof that Brady recommended the transfer of Russ Ingalls. These minutes read as follows, "Gary Brady asked about get- ting someone to help pick brick to the key. Russ Ingalls will be given a try as time permits." (R. Exh. 38(b).) Brady testified that at this meeting he had told Orville Ingalls that he needed someone with a good eye for color to help pick brick to the key. Ingalls then asked Heckart if he had someone available that had a good eye for color. Heckart then named several people, and finally said Russ Ingalls had as good an eye as anyone , so they could try him out in the panel room. Brady had no idea what kind of eye Russ Ingalls had. The testimony of the superintendent explains the bare- bones language contained in the minutes about Russ In- galls' transfer, and corroborates the testimony of Brady: Gary said he really needs some one that had a good eye to help with the selection of the bricks. And that he just needed that person. So we discussed available people that was there. And when we struck Russ Ingalls, Gary said, he would be fine. Orville Ingalls admitted that other names had been mentioned before Russ Ingalls had been named. After Russ Ingalls was named , Orville Ingalls then followed his procedure, and asked Heckart if it was acceptable with him to remove Russ Ingalls from his department, and Heckart replied that it was. Russ Ingalls was trans- ferred the next day into the panel room. Orville Ingalls also admitted that if Heckart had refused to approve Russ Ingalls' transfer another employee would have been selected. It is clear from the above that Gary Brady was a very minor actor in this transfer, and it was not G. Brady's recommendation that effectuated the transfer of Russ Ingalls. The other transfer relied on by the Respondent was that of Gary Brady's son, Brian. Gary Brady testified that Heckart came to him and asked if he could foresee any problem of a father-son combination working in the panel room, if he sent Brady's son to work there. Gary Brady replied that there would be no difference working with him than any other employee. Brady also testified that he never told Heckart that he wanted Brian Brady to work under him in the panel room. According to Heckart, Gary Brady came to him and asked if he had any employees he could let go perma- nently, and he said he did, but we have to have O. In- galls' approval first. Brady replied that he knew that, but he wanted to ask Heckart first, because if he did not agree there was no reason to go to Ingalls. Brady then asked if Heckart cared which employee he took, and the assistant plant superintendent replied that he did, and that he would not let Brady have his best people. Brady then stated he wanted Brian, and Heckart replied that was fine by him. Superintendent Ingalls did discuss this transfer with Heckart, and Brian was transferred to the panel room. I credit Brady's testimony over that of Heckart, and find that it was Heckart who initiated the matter of Brian Brady being transferred into the panel room, and 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Brady merely went along with the desire of his su- perior foreman. Neither incident relied on by the Re- spondent displays that Brady possessed the supervisory authority to transfer employees or to effectively recom- mend such action. Even if Heckart's account were cred- ited, it would show that Brady's request was a very minor link in the chain of transfer. 4. Authority to assign work The General Counsel concedes in her brief that Brady assigned work to panel room employees. Brady admitted that he assigned the employees working in the panel room to their daily jobs, whether there were present the average 5 employees, or up to 10. Generally he would assign two employees to operate the sawing machines to saw bricks in the morning, and two other employees to operate the machines in the afternoon.44 Other employ- ees would be instructed to go out in the yard with a forklift truck and bring in the bricks that were to be made into samples. When they completed one task, he would assign them to another. These assignments were made without any authorization by the plant superin- tendent. I find that Brady's authority to assign work was a strong indicia of supervisory authority, and it will be reviewed at length hereafter. 5. Other indicia of of supervisory authority a. Attendance at supervisors' meetings Brady admitted that he attended all supervisory meet- ings held in the front office, during the period he was in charge of the panel room and that production employees did not attend such meetings. Brady further admitted that in these meetings that he would voice his need for additional temporary workers in the panel room, but he did not always get the people he had requested. Brady's attendance at these meetings was an indicia of superviso- ry status. Southern Indiana Gas Co. v. NLRB, 657 F.2d 878 (7th Cir. 1981); Maine Yankee Atomic Power Co. v. NLRB, 624 F.2d 347 (1st Cir. 1980). b. The care of timecards The Respondent asserts that Brady performed other functions in the panel room which are indicative of his supervisory status. Chief among these was Brady's testi- mony that he was responsible for panel room employees' timecards. Each week he would fill out on the back of each card the department that each panel room employ- ee worked in, whether the panel room, packaging, or yard work. He also would make entries on the cards if an employee forgot to punch in, and Brady knew that that employee had been on time, or if the timeclock mal- functioned. Brady also punched a timecard for himself. Brady's handling of timecards was of a clerical nature, and in fact consumed a very minor portion of his time. While he did not testify how much time he spent a week on checking the average five to six timecards, Heckart 44 The sawing of brick was the most disliked work in the department, as Brady testified that "everybody" said they did not want to saw The work was subject to OHSHA standards which provide that a person could only saw bricks up to 4-1/2 hours per day testified that he spent about 2 hours a week in handling the timecards of his 20 employees. I do not find that Brady's handling of timecards was an indicia of supervi- sory status, but was a brief, clerical task. c. Vacation requests When an employee wanted to take a vacation he filled in a brief typed form, addressed to the plant superintend- ent. On this form he filled in the date that he desired to begin the vacation, the date of the last day to be worked, and the date he would return to work. Brady testified that he signed these forms over the typed word, "Supervisor," and along the word, "Ap- proved," to let Ingalls know that that employee's request was not in conflict with the request of some other panel room employee, so that two employees would not be on vacation at the same time. This testimony was uncontra- dicted. Ingalls testified that the supervisor had to approve the employee's request for vacation, sign it, and then turn it in to the front office or to him. An office employee then checks that employee's absenteeism record to see if he is eligible for a vacation. Ingalls himself would check to see whether there were such violations of company rules, or unexcused absences of such gravity as to deny the applicant's vacation request. When these conditions were satisfied, Ingalls would sign his approval.45 It is clear from the above that Brady's approval was a very minor segment of an employee receiving permission to take a vacation. Since the panel department had no records as to absenteeism, or rule violation, Brady had no knowledge of these factors. The great bulk of the work concerning that employee's eligibility for a vaca- tion was done in Ingalls' front office. If the employee's absentee record or work rule violations were excessive in Ingalls' opinion, that employee reserved no vacation, and Brady's signature meant nothing. I do not find Brady's approval for an employee's request for vacation was any indication of supervisory status, but was merely of a cler- ical nature. d. Wages received by Brady The General Counsel contends that the fact that Brady continued to be hourly paid after he was put in charge of the panel room, while all other supervisors at that time were on a weekly salary, indicated that Brady was not a supervisor. However, I do not find this to be necessarily so. In prior years the Employer had several hourly paid supervisors, William Heckart and Roger Heilman, who subsequently became salaried employees. The Respondent, on the other hand, contends that be- cause Brady at the time of his layoff was the highest, paid employee in the panel room, this indicates he had super- visory status. I do not find such a relationship. It is true that at the time of the May layoff Brady's hourly rate of $4.95 was 20 cents per hour higher than the next panel room employee's rate. However, this same panel room 45 Requests for vacation were admitted into evidence, R Exhs. 21 and 22 Each of these forms carried Mahoney's initials on the bottom left corner indicating that he also had to approve the vacation request BALLOU BRICK CO employee, Ron Uthe, had a higher rate of pay than Brady, from February 1982, when, according to the Re- spondent, Brady became a supervisor, until October 1982, when Brady received a 25-cent-per-hour increase. Also to be noted is that 12 production employees, repre- senting 26 percent of the rank-and-file work force, re- ceived a higher hourly rate than Brady at the time of the May 1983 layoff. e. Vacation pay The Respondent also argues that the fact that Brady received 2 weeks' vacation pay at the time of his dis- charge is also an indicia of his supervisory status. Under company rules, supervisors received 2 weeks' paid vaca- tion after 1 year of service, whereas rank-and-file em- ployees received 1 week after 1 year. Brady testified that on, the afternoon of May 13 he did not know if he was entitled to I or 2 weeks' vacation, as Hill had never informed him of how much vacation he was entitled to. He also knew various production em- ployees who received 2 weeks' vacation.46 Brady then asked Hill about his vacation, and Hill said to N. Ma- honey something to the effect that "Well, I guess we can give you 2 weeks, right Norman." Brady subsequently received 2 weeks' vacation pay. According to Hill, as Brady was being laid off on May 13, Brady asked if he would be authorized to receive va- cation pay, and Hill answered that he would. When Brady asked how much, Hill replied that he said, "Gary, you've been a supervisor, you get 2 weeks. There's no question about it." Hill admitted that he had never previ- ously informed Brady that he was entitled to 2 weeks' vacation, nor did he have any knowledge of N. Mahoney or Ingalls doing so. Hill further testified that supervisors earn their 2 weeks' vacation after the first year of employment, as of the anniversary date of their employment. Also, that once a former production employee became a supervisor, he would be given credit from his date of employment towards his anniversary date for a supervisor's vacation. Hill then admitted that since Brady became a supervisor before his anniversary date of April 17, 1982, that after that date he was eligible for 2 weeks' vacation. Brady, in fact, took his 1982 vacation in August and received I week. No one informed him that he was due 2 weeks, as would be required under Hill's explanation. I do not find that the fact that Brady received 2 weeks' vacation pay on May 14 is an indicia of supervi- sory status. Had Brady's status as a supervisor been clear, he would have received 2 weeks of paid vacation in the summer of 1982 under the Company's formula. The Company's failure to pay him for 2 weeks in 1982 indicates that at that time the Company did not consider Brady a supervisor. When he was paid 2 weeks in 1983 circumstances were a great deal different. The Company had already been told by its labor relations consultant that an unfair labor charge would be filed against it. By 46 Production employees with 5 years of service received 2 weeks' paid vacation The seniority list of May 2 (it Exh. 15) shows that 17 pro- duction employees were entitled to 2 weeks' vacation under that crite- rion 61 paying Brady 2 weeks' vacation pay, the Company was building its case that Brady was a supervisor. f. Insurance premium and pay in lieu of The Respondent contends that Brady's receipt of money, in lieu of his insurance premium being paid by the Company, is also indicative of his supervisory status. Some weeks after Brady was hired, he was presented with a typed piece of paper captioned "Plant General Employees-Group Insurance Program" (G.C. Exh, 25). This paper outlined the program of hospital and medical benefits contained in a contract the Company had with an insurance provider. It contained eligibility rules stat- ing that after 1 year of employment the Company would pay 25 percent of the monthly premium; after 2 weeks, 37-1/2 percent; and after 3 years 50 percent. The final paragraph stated that the employee had the option to accept the program or reject it. On June 2, 1981, Brady signed the document stating that he did not want the in- surance. Hill testified that the Company had no copy of the su- pervisor's program, but did have in fact an insurance plan for line supervisors. In this program the Company paid the following schedule of premium insurance: after 90 days' employment, 25 percent; 1 year, 50 percent; 2 years, 75 percent; 6 years, 100 percent. Hill further testi- fied that when Brady was made a supervisor, his insur- ance benefits changed, although no record was offered to support this. Brady testified without contradiction that no one ever explained to him the insurance benefits received by a su- pervisor, nor did he know that there was any difference between the benefits supervisors received, and those re- ceived by production employees. However, Brady admit- ted that he received a check in lieu of insurance cover- age dated December 15, 1982, in the amount of $662.96. This represented a 50-percent payment of a supervisors' annual premium. The payment to Brady of cash at the rate due a supervisor is a slender indication of superviso- ry status. g. Supervisor's hardhat Brady testified that he received a blue hardhat in Janu- ary or February 1982, following a conversation with Heckart. Heckart told him to move a bale of bricks with a forklift, and when Brady said he did not have a hard- hat,47 Heckart went into the supervisors' shack, picked up a blue hat that had formerly belonged to a retired su- pervisor, and told Brady to wear it, and ever after that Brady had done so. Brady knew that supervisors wore blue hardhats, but denied he was ever issued a hardhat by Clausen, Ingalls, or N. Mahoney. According to Clausen, he and Brady were in the office with Ingalls before February 1982, when Clausen re- marked to Ingalls that Brady was now a supervisor, and should not he get a blue hat? When Ingalls said yes, Clausen got Brady a blue hat. Clausen also testified that 47 It was company policy for employees in some departments to wear hardhats General laborers wore red, maintenance, orange, forklift truck drivers, green, and supervisors, blue 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he kept a running record of which employees received a hardhat, and that when he issued a hardhat to an em- ployee he would write in a book the name of the em- ployee who received it, and the date of receipt. No book was produced to support this testimony. Ingalls corrobo- rated Clausen's testimony. Since Brady admits that he received and wore a blue hat, it is not necessary to resolve the credibility issue or under what circumstances it was issued to him. He also admitted that blue hats were worn by supervisors. This is a mild indication that Brady was a supervisor. 6. Conclusion The question about whether, as the General Counsel contends, Brady occupied in May 1983 the status of a leadman or, as the Respondent insists, that he had the status of a statutory supervisor is a close question. How- ever, I am persuaded, after consideration of all the rele- vant facts, that the issue must be resolved in favor of the Respondent. As I have previously found, Brady did not have the authority to effectively recommend that an employee be disciplined, hired, or transferred to another depart- ment.48 However, he did have the authority to assign work to panel room employees, which required the use of independent judgment. While the General Counsel argues that this function was merely routine in nature, I do not find it to be so. It was Brady who instructed which employees should run the cutting machine saws, when they should start, and when they should stop, a job disliked by all panel room employees. It was Brady who ordered employees to drive forklift trucks, and to go out into the yard and select certain colored brick, and bring them back to the panel department for sawing. It was Brady who told which employees to glue the sliced bricks onto panels, and when and where to do other work. While the sawing of brick was unskilled work, that is not the test for assigning work and utilizing inde- pendent judgment. As stated in Holiday Inn, 211 NLRB 461 (1974), the test of responsible direction does not depend on the "complexity or difficulty" of the work, but rather that the alleged supervisor exercise independ- ent judgment without consultation with higher manage- ment. Although Brady's authority to responsibly assign work was my chief consideration in finding him to be a super- visor, there are several other factors that identify him with management. He attended supervisory meetings on a regular basis.49 He was on the same insurance schedule of benefits as the other supervisors, and he wore a blue hardhat which signified to all employees that he was a supervisor. On all of the evidence, I find that Gary Brady was a supervisor within the meaning of Section 2(11) at all times material hereto, as he was in charge of the panel department and responsibly assigned and directed the 48 The Respondent did not claim that Brady had the authority to sus- pend, layoff, recall, promote, or reward other employees 49 See Southern Indiana Gas Co v NLRB, 657 F 2d 878 (7th Cir 1981), Maine Yankee Atomic Power Co v NLRB, 624 F 2d 347, 365 (1st Cir 1980) panel room employees in their work, and used independ- ent judgment in making such assignments and reassign- ments. As such a statutory supervisor under the facts of this case he is not entitled to any relief under the Act. Spring Valley Farms, 272 NLRB 1323 ( 1984); Sarah Neuman Nursing Home, 270 NLRB 663 (1984); Dixon In- dustries, 247 NLRB 1446 ( 1980). H. The Alleged Discriminatory Discharges 1. The General Counsel's prima facie case I turn now to the dominant issue in these cases, and that is whether the Company violated Section 8(a)(1) and (3) of the Act by terminating the 13 production and maintenance employees on May 13. In applying the teachings of Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st. Cir. 1981), I find that the General Counsel has sustained her burden of establishing a prima facie case to support the inference that the union activity of the employees motivated the Respondent's decision to discharge them. One of the essentials of establishing a prima facie case is that the Respondent must have knowledge of the union activity of the adversely affected employees. The Respondent contends that evidence must have been pre- sented to establish that the Respondent was aware that each individual engaged in protected activity, before an unlawful motive can be attached to the employment de- cision affecting that employee. The General Counsel contends that it is not necessary that the Respondent know specifically about the union sympathies of each of the employees who were terminat- ed, but that a general knowledge of their activities is suf- ficient. I find that Board decisions support the General Counsel's position. As stated in Park Tenn Co., 234 NLRB 823, 825 (1978): Where a layoff such as here is for the purpose of discouraging union membership and activities in general and is not necessarily directed at the activi- ties of particular individuals, all victims of such a layoff are entitled to the same treatment and relief without regard to the extent of their union activi- ties. Similarly, the Board enunciated the same principle in Collectramatic, Inc., 267 NLRB 866, 872 (1983): Respondent asserts that it cannot be found to have discriminatorily discharged employees unless it is specifically found to have known of each of their union activities. In the circumstances of this case such a specific finding is unnecessary. Respondent clearly knew of the union activity generally and of the Union's bargaining request. It also reacted to such activity by engaging in unfair labor practices. The well-timed discharges are of the same charac- ter, particularly since they are unsupported by de- clining sales or other economic considerations. That the Respondent had knowledge of its employees being involved in substantial union activity before their BALLOU BRICK CO. selection for discharge on May 2 and their discharge on May 13 is abundantly clear. Assistant Plant Superintend- ent Heckart informed Brady on Monday, April 25, that he knew about the meeting at the union hall on the pre- vious Saturday, and I draw the logical inference that this loyal supervisor relayed this information to top manage- ment shortly thereafter.50 Heckart also had knowledge of the April 25, Monday evening meeting at Judy's bar, as admittedly he discussed it with Scott Clark. He also knew about it from another supervisor, Roger Heilman. Heilman knew first hand about it as he, for some unex- plained reason, had walked in on the meeting at Judy's, and remained to drink beer.51 Hill, too, knew of the April 25 union meeting as he testified that supervisor Covington had reported it to him. Under the circumstances of this case, I find that the question of Employer knowledge has been met, as it knew generally of this union activity, and it knew specif- ically, when it received the Union's formal letter on April 26 demanding recognition as the collective-bar- gaining representative of its employees. See Artra Group v. NLRB, 730 F.2d 586 (10th Cir. 1984). At the April 28 meeting, conducted by consultant Smith„ the supervisors were solicited to identify potential union leaders. Brady was named by just about every su- pervisor present. David McCarthy by N. Mahoney, Ed Thompson by Covington as the two had worked at Zenith, where Thompson had been a strong union sup- porter; Curtis Petersen and Tim Heilman were named by Ingalls. Following this discussion, the supervisors, as well as Chief Operating Officer Hill, Manufacturing Op- erations Manager N. Mahoney and Plant Superintendent Ingalls, were directed to rate all employees set forth on the alphabetical pages, as prospective voters, under one of three headings: for the Union, against the Union, or were not sure. When Hill marked 10 employees of the 14 who were eventually laid off as yes votes, this was tacit admission that, in his opinion, these were union support- ers.52 Also, where N. Mahoney marked 10 employees, who were also eventually laid off, as yes votes, this, too, was a statement that he believed that they were proun- ion. He also marked three of the 14 laid-off employees as questionable, and only one as a no vote. It is true that Hill marked off 30 employees as yes votes, and that N. Mahoney marked off 20 as votes for the Union, and only 14 employees were discharged. This type of strategy is well recognized in the annals of labor law as stated in NLRB v. Challenge-Cook Bros of Ohio, 374 F.2d 147 (6th Cir. 1967): The respondent argues that because it did not dis- charge other employees who were known to be union members, Weldon's discharge cannot be said ° Heckart stated in his affidavit to the Board that company rules re- quired that employees speak to Hill if they wanted to discuss unions Suiely, a loyal supervisor would report to Hill that a union meeting had been attended by its employees 5 i Smith, in his notes on the meeting he conducted on April 28, report- ed that "Approximately 18-20 people attended the beer party " Smith did not state the source of this information , but Heilman had informed him that he was present at Judy's 52 Hill marked the other four employees who were eventually laid off as question marks. 63 to have been motivated by union animus. However, the mere fact that all union members or supporters are not discharged, does not disprove the fact that an employee's discharge is based upon an unlawful discriminatory motive. Because the Respondent had decided to keep operat- ing the plant at the same rate of production as prior to the layoff, it had to maintain a substantial work force. This it did by retaining 33 production and maintenance employees and terminating 14. However, this does not mean that the Respondent cannot be found to have dis- criminatorily discharged the 13 production and mainte- nance employees. As stated in Ballard Motors, 179 NLRB 300 fn. 26 (1969). "It is not necessary nor is it or- dinarily feasible to terminate every union member or ad- herent in order to discourage union membership." However, the Respondent did rid itself of 3 of the 5 employees named in Smith's report of the April 28 meet- ing as the potential leaders, Brady, McCarthy, and Thompson, and along with them discharged 11 other em- ployees whom its chief operating officer and operations manager had classified as union supporters, all of whom had signed union cards and attended at least one union meeting prior to the layoff. While Petersen was not dis- charged, this is readily understandable. He was a highly skilled tool-and-die maker, being paid the same rate as some of the Company's unskilled laborers, $5.20 an hour, a remarkable bargain for the Company. The other named potential leader, Ron Ruring, was also not discharged, for reasons not disclosed. The record is also abundantly clear that the Respond- ent had strong antiunion animus, starting with its rules and regulations. Then, as soon as it received the Union's request for recognition, it immediately hired a labor con- sultant to defeat the Union. Hill opened the April 28 meeting by dolefully telling the supervisors that it was a sad day as the Company was "under the throes of being unionized." A vigorous campaign was thereafter waged against the Union and several independent violations of Section 8(a)(1) were performed by company supervisors as previously set forth. The credible record also shows that the 13 laid-off em- ployees were reasonably satisfactory employees. This is established by Hill himself. In the letter he presented to each employee on May 13, the chief operating officer first explained that the work force had to be reduced due to economic conditions in the building and related indus- tries. Then, in conclusion, he stated, "It should be under- stood that this is not for mis-conduct, but unfortunately is a reflection of business conditions, which we see to be irreversible." The letters also stated that. if an employee wanted the Respondent to give any information concern- ing his job records it would "be pleased to do so." (G.C. Exh. 12.) In Hill's speech, given to the laid-off employ- ees, his typed notes show he also orally told them that they were not being laid off for misconduct or poor work, but because of bad business conditions. His con- cluding comment read, "We wish you well and again regret our mutual circumstances." It is also to be noted that the Company produced no derogatory records, or any written warnings that were 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever issued to these laid-off employees, nor did it claim it had done so. The record is clear that it was company practice to issue written warnings, as it gave one to Wat- chorn on January 28 for substandard work. It also issued a written warning to one Charles Pritchard in March 1982, which company minutes showed was a "Final- Final Warning." The Respondent's failure to issue any written warnings to the laid-off employees during the entire period of their employment is far more indicative of the satisfactory nature of their work than are the stri- dent criticisms of Heckart and Wiseman made at the hearing.53 The fact that 7 of the 14 discharged employ- ees were recalled in August is also indicative that these employees were reasonably competent workers.54 It is also significant that four of the seven employees not recalled in 1983, had either never been laid off in prior years or had been recalled after layoff. David McCarthy and Curtis Palmer commenced working for the Respondent prior to the 1981 layoffs. However, nei- ther one was laid off in the 1981 or 1982 layoffs, which speaks well of their quality of work. Bryan Palmer was not laid off in 1981, but was laid off in 1982 only to be recalled after 6 weeks. Kevin Ruring was laid off in 1981 and 1982; yet the Company thought enough of him to call him back both years. As previously stated, no writ- ten records were offered to denigrate their work per- formance. 2. The Respondent's reasons for the discharge I turn now to the reasons offered by the Respondent for the discharge of the 13 production and maintenanpe employees to rebut the General Counsel's case. ' The Respondent states in its brief that the chief reason for the layoff of the 13 employees was an overaccumula- tion of inventory that became a threat to the viability of the Company. The Respondent also asserts there were two lesser factors that contributed to its decision to lay off the employees; (a) it had completed the construction of the project in April, and (b) it had hired several em- ployees in the fall of 1982 to perform various tasks and to relieve other employees to work on the project. P. Mahoney was the Respondent's chief witness in ex- plaining the Employer's decision to layoff the employees. The chief executive officer testified that the management committee held a monthly meeting on April 4. The com- mittee had been reviewing for several months the volume of sales against the volumes of production and inventory, and it had a major problem because of a downturn in business. When asked on direct examination what factors were presented to the management commit- tee that lead to the decision to layoff, the chief executive officer replied; A. Well, of course we keep a running tally of the amount of manufacture that goes into inventory, the amount of shipping that goes out and therefore, the running tabulation of the inventory that we have ss Heckart and Wiseman criticized various of these laid-off employees, as lazy, slow, lacking ambition, poor workers, and immature 54 Robert Bean, Scott Clark, Russ Ingalls, John Palmer, Danny Polar, Ken Sopoci, and Ronald Warstler. and we were faced with the fact that we had a con- tinually mounting inventory and the prospects for business were such that we could see first that we were going to be out of piling space and that it was just an impossible situation. When asked on cross-examination why the decision was made to lay off the employees, P. Mahoney had an entirely different answer: A. Three reasons: (1) the project that we had been working on was largely finished, (2) we were now through the worst of the winter weather which always requires additional help because of the vicissitudes of the weather and just the fact that you have to contend with it; and (3), we had done about all we could in the way of packaging loose brick that were required for specific shipments and that sort of thing. However, when asked on redirect why the decision was made to layoff, P. Mahoney returned to his original reason that the layoff was caused solely by an excessive inventory: Because as of the time we had, you know, when you get to the point where you have an inventory as much as you sold in the previous twelve months, there comes a time when you have to call a halt. And we had gotten to that point. But, the record is clear that the Respondent did not call a halt to the production of bricks at any time there- after. Not only did it not halt the production of bricks, it did not even slow down the production of bricks. Hill himself testified that in May when the management com- mittee was making the layoff decision, it was his desire to maintain the same level of production as before the layoff, and that the Company was able to do so after the layoff. In June, the Respondent manufactured 1,919,513 bricks, a greater number of bricks than had been made in 4 of the 5 previous months of 1983. On a long-term com- parison, the records also show that the rate of manufac- turing was maintained at the same as before the May layoff. In the first 4 months of the year 6,984,516 bricks were manufactured, with 6,785,247 being produced in the next 4 months a minor difference of 2.8 percent. (R. Exh 26.) Following the April 4 meeting, the Respondent had two immediate methods of reducing its inventory, other than selling more bricks. It could have shut down the manufacture of bricks completely as it did in the summer of 1982 when, according to Hill its inventory became un- manageable55 or it could have cut down on the number of cars put through the kiln. Yet the Respondent did nei- ther, and kept up a full production of bricks at the same schedule it had operated on prior to the layoff. This was obviously no way to reduce the inventory that the Re- spondent claimed was filling up its yard. ss R Exh 26 shows that the May 1982 inventory contained 19,518,634 bricks which was 1,462,704 more bricks than the May 1983 inventory BALLOU BRICK CO. The inventory records do not sustain the Respondent's contention that the yard was filling up, as. Hill admitted that it held 19.5 to 20 million bricks. The inventory record for April shows 18,457,866 bricks which was a decrease of 106,570 bricks from the March inventory.56 P. Mahoney knew this as he admitted he received a weekly report from the accounting department on the status of the inventory. On May 2, when the layoff list was compiled, the yard had a decrease in inventory from April of 401,936 bricks, which would have left room for almost 2 million more bricks. Although the Respondent claims that an over accumu- lation of inventory became a threat to its economic sur- vival, it offered no records whatsoever to set forth that it was having economic problems, or that business was down. Such a long-established corporation would have had numerous financial records such as profit and loss statements, quarterly and annual statements, and tax records to substantiate the oral statements of Butte and Hill that business was bad.57 This failure of the Re- spondent to submit such documentary evidence causes me to believe that its financial records would not have supported its claim that the Company was having eco- nomic problems and business was bad.58 An analysis of the inventory records does not disclose that business was bad in the spring and summer of 1983. In May and July the Respondent shipped 1,746,613 and 1,739,413 bricks respectively, each a much greater number than those shipped in any of the first 4 months of the year, and also a greater number than bricks shipped in 8 of the 12 months of 1982. In June the Re- spondent shipped 2,556,605 bricks a greater amount by 591,626 bricks than any monthly shipment made in 1982. Then, in August, it shipped 2,931,862 bricks, a greater number by 966,883 bricks than any monthly shipment in the first 5 months of 1983, and all of 1982. According to Hill, bricks normally are delivered 60 to 180 days from the time of the placement of an order. This would mean that when the Respondent made those very large ship- mtents of bricks in June, July, and August, it had a sub- stantial number of orders for these bricks on May 2, when it made up its list of employees to be laid off. It is also to be noted that Hill's prophecy in his May 13 dismissal letters to employees that the Company viewed the bad business conditions to be irreversible for a long period of time, was soon shown to be wrong. In July N. Mahoney recalled Clark, Warstler, Bean, and Pojar because he said business was getting better and he saw that he needed additional manpower. In August es Hitl's statement in the letters he gave to the discharged employees on May 13, that the yard had approximately 20 million brick s in it was a gross exaggeration He also repeated this same false figure in the speeches he gave to the discharged employees as well as the employees retained 57 The Respondent did submit a graph for the years 1979, 1980, 1981, 1982, and the first 4 months of 1983, of the bricks shipped and manufac- tured and the inventory at the end of each such period. However, it con- tains no figures that would show that business was bad in April as com- pared to any period of time within the past year. 511 If evidence, such as business records, is within the party's particular knowledge and control, and such evidence would strengthen the party's case if offered into evidence, that party is expected to introduce such evi- dence. The failure of the party to introduce such evidence raises an ad- verse inference Capriccios Restaurant, 249 NLRB 685 (1980), Dayton Ty- pographical Service, 273 NLRB 1205 (1984) 65 Sopoci and John Palmer were recalled and in September Russ Ingalls was recalled.59 In addition to recalling em- ployees, the Respondent also hired four more employees in August, three in September, and seven in October. Further proof that there were no economic problems, was the Respondent's action in August whew•it granted unsolicited substantial pay raises to its eight supervisors. (G.C. Exh. 41.) Concerning the minor reasons offered by the Respond- ent for the May 13 terminations little time needs to be given to them. It is true that the project that had started in July 1981 was substantially completed in April 1983. But the only two employees that the Respondent claims were specifically hired for the project, Thompson and Osterholt, denied that this was so. Both men were skilled industrial electricians and I credit their testimony that while they were told in September 1982 when hired that they would work on the project, they were hired to work as permanent maintenance electrician employees.so As previously stated, Thompson, viewed by management. as one of the top potential union leaders, was laid off on May 13. Osterholt resigned from the Company's employ- ment in late December 1982 after telling Wiseman he had to begin a jail sentence of 6 months for interstate transportation of stolen machinery. Osterholt further told his supervisor that he would be out in May. Wiseman as- sured him he would have a job when he got out, and to return to the Respondent when he did so. On Monday, May 16, Osterholt returned to the plant. When asked what he did, he testified as follows: I went down, and well, I first talked to Mr. Hill, and he told me about their laying off the 13 people and he said possibly after-I believe he said after some of the union stuff died down -after this union flap-I can't remember exactly how he phrased it, but after this union stuff died down, I would have a chance of getting back to work. Hill was very vague about this conversation with Os- terholt, admitting that he told Osterholt that "under the circumstances we did not have a spot for him because we had had to make a layoff." I credit Osterholt's testi- mony. In August, Hill went to Osterholt's home three times to offer him his old job before finding him home. Osterholt was rehired in mid-October. Concerning Hill's claim that the Respondent had hired 10 to 12 employees in the fall of 1982 to create a labor pool to release other employees to work on the project, the record does not bear this out. Both N. Mahoney and Ingalls admitted that there was no labor pool at Ballou; and that the term was not used at the Company. It is true that in September and October 1982 the Respondent hired eight unskilled employees, but they were hired es- sentially to work on the monorail and octagon to pack- age bricks. They did at times assist on the project when ss Bean, Polar, and R Ingalls refused recall McCarthy, Curtis Palmer, Bryan Palmer, Gary and Brian Brady, and Thompson were not recalled. 60 At the time they were hired, they were informed that the project was scheduled for completion in November It is incredible that they would have accepted maintenance electrician jobs that would only last 2- 1/2 months 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unskilled workers were needed, but it was the Compa- ny's policy to move its employees throughout the plant, whenever and wherever needed. As a concluding defense of its layoffs, the Respondent argues strenuously that it followed the same procedure in 1983 as it had done in layoffs made in 1982 and 1981,61 in order to secure the best work force available. Howev- er, I do not find that the evidence sustains the Respond- ent's position. On the morning of Monday, May 2, N. Mahoney pre- sented to Ingalls two pieces of paper, both dated May 2, and both written in longhand by N. Mahoney.62 The first was a "Manning Table" which showed 32 positions that would be manned after the layoff. (G.C. Exh. 46.) This handwritten page was as neat as a pin, with no ina terlineations, no cross-outs, no drawn stars, arrows, ques- tion marks, and no doodling of any kind. The second handwritten document captioned, "Possible Layoff List (Hourly) Alphabetical" contained two lists of names, under the headings of "Preliminary and Final (after su- pervisory interviews)." This handwritten document was also as neat as a pin, with all 13 names in both columns in perfect alphabetical order, and no marks or doodling of any kind. (G.C. Exh. 45.)63 These documents were in the sharpest contrast to the documents produced by the Respondent for the May 1982 layoff. Pursuant to a subpoena from the General Counsel, the Respondent produced five pieces of paper as being the records used in the 1982 layoff which were received into evidence as General Counsel's Exhibits 55(a), (b), (c), and (d). However, on General Counsel's Exhibits 55(a), (b), and (d), N. Mahoney had written sub- stantial information on the reverse side of these pages, so that actually eight pages of records were admitted into evidence. General Counsel's Exhibit 55(a) starts with a two-line note from Ingalls to N. Mahoney, advising him that he has attached a sheet listing the names of the em- ployees and the positions they are manning.64 Ingalls' "I Prior to 1981 the Respondent had had no substantial layoffs for many years In October of that year four employees were laid off, and in November, 16 employees were laid off out of a production and mainte- nance work force of 70 employees Thirty P & M employees had been hired earlier in 1981 Seven of the 16 laid-off employees were recalled the following January and February. In May 1982, with the largest inventory that its records showed it ever had, 19,518,634 bricks, the Company cut the employees' hours to 40 per week, and slowed the speed of the kiln cars to cut production On May 26, it laid off nine employees As the inventory continued to grow, on June 30 and in early July, it laid off 10 more employees, and ceased the manufacture of bricks for 6 weeks, just packaging out of the yard In mid-August, finding that business was pick- ing up, it recalled 10 of the laid-off employees 62 N Mahoney was not sure what date he had made these lists, but admitted he might have started on Saturday, April 30. In any event it was subsequent to the April 28 meeting in which management and super- visors had discussed which employees were potential leaders, and had rated them as to being for or against the Union 61 There was one alteration, where a line had been drawn through the name of Vince Desmond, on the preliminary list side. 64 The attached sheet referred to by Ingalls is the front side of G C Exh 55(b), and was originally written from top to bottom by Ingalls In neat printing Ingalls set forth each position, then printed the names of the 42 employees who were working at those positions No supervisors were listed memo then goes into an explanation about how many blenders the Company will need in the event of a layoff. The bottom half of this page, General Counsel's Ex- hibit 55(a) contains N. Mahoney's writing. He writes "We should be able to run the plant on 35 people" and that this would mean laying off 8 people out of 43. The operations manager then writes a column heading "Some of the last people rehired" and lists six names, numbering them 1 to 6, but not in alphabetical order. Under this he wrote another heading "Also in the possible list might include," and proceeded to write and number nine names, again not in alphabetical order. As N. Mahoney testified, he and Ingalls then talked over the problem, and N. Mahoney then wrote a manning list on the back side of General Counsel's Exhibit 55(a), and they dis- cussed what individuals should be laid off on May 26, 1982. This back page contains many written interlinea- tions, arrows, names crossed out, as well as added, and heavy, substantial doodling. Also, on the front of Gener- al Counsel's Exhibit 55(a), where the names of 15 pro- spective employees to be laid off were set forth, N. Ma- honey made various observations and markings alongside the names, such as keep, stars, words crossed out and words added. Alongside the first two names of the six names written down by N. Mahoney, Jerry Shell, and Jim Foxworthy, N. Mahoney entered a star, and the words "agreed 1" and "agreed 4." Alongside of the third name, Don Jansen, he made a heavy ink out of the origi- nal entry, and then wrote a star. For each of the last three of the six names, Russ Ingalls, Kevin Ruring, and John Palmer, he wrote "Keep." for the first three of the bottom list of nine names, he wrote "agreed 6, agreed 2, agreed 5," along each of the first three names, also with stars. On name number four, he also placed a star. He placed brackets for names alongside numbers 5 and 6, and wrote "can pick if needed." Alongside the number 7 name he heavily inked out three different notations. For the name alongside number 8, he drew a star and wrote "agreed 3." For the name alongside number 9, no entry was made. Out of the 15 names, 8 were laid off May 26, 1982.65 As for the front page of General Counsel's Exhibit 55(b), the 1982 manning list, originally drafted by Ingalls, N. Mahoney entered many check marks, stars, question marks, and a few notations alongside of various names. He also inserted seven names in the top middle of the page, alongside the names of the 10 supervisors which had originally been written in by Ingalls. The names written in by N. Mahoney were also not in alphabetical order. On the reverse side of General Counsel's Exhibit 55(b), N. Mahoney had written a notation about insur- ance, as well as vacations, noting that "Arlene66 needs to make a list of those eligible." General Counsel's Exhibit 55(c) was a two-page alpha- betical list of hourly paid employees for the month of 65 Shell, Foxworthy, Kibbons, Donlm, Blackman, Ray Levin, Larry Levin, and Jordan The ninth person laid off that date was Tim Deen, whose name was not listed on the front page of G C Exh 55(a), by N Mahoney 66 Arlene Nelson was the payroll clerk BALLOU BRICK CO April 1982, and had been prepared by payroll clerk Nelson. N. Mahoney admitted that when he made up the manning table, he had this list in front of him. N. Ma- honey had scrawled across the top "43 Hourly people- full time included Mike Holmes not LeMaster." The front page of General Counsel's Exhibit 55(d) was a listing of 16 employees in alphabetical order, also com- posed by payroll clerk Nelson. The names on the list were the employees eligible for free gloves , because they were "without tardiness, absence or work related injury." On the reverse side of General Counsel's Exhibit 55(d) N. Mahoney had written 15 names, as well as six names that were heavily crossed out. Nine of the named employees not crossed over were laid off on May 26, 1982. The names were not in alphabetical order, and N. Mahoney had made many entries of heavy dashes, check marks, and question marks, alongside various names. There was another striking difference in the manner in which the layoffs were handled in 1982 in comparison with the 1983 layoffs. As set forth in section III,2,d, above, Hill prepared an elaborate letter for each employ- ee who was to be laid off, which he presented to each employee on May 13.67 Hill also prepared a speech to deliver to these employees, which he delivered to them on the afternoon of May 13. However, in 1982, it was Ingalls who spoke to the employees who were being laid off, not Hill, and no letters explaining the discharges were passed out. Also, while Ingalls told them that the Company had an economic crisis and had to reduce the crew, he also told them that if business became better the Company hoped to reemploy them. Hill's speech in 1983, was the voice of doom, telling them they were being given a permanent layoff, which was the same as a ter- mination, and that there was no chance of being called back. The Respondent also produced , pursuant to a subpoe- na, the documents used in 1981 to determine which em- ployees should be laid off. (R . Exh. 42(a) through (h).) These intensely marked-over records, like the 1982 records, are in stark contrast to the documents allegedly used by the Respondent in preparing the 1983 list of em- ployees to be laid off. Just as N. Mahoney had done in the 1982 layoff documents, he wrote voluminous notes on the reverse side of three of these sheets, so that while five sheets of paper were admitted into evidence, there was a total of eight pages of records. Respondent's Ex- hibit 42(a), (b), and (d) were alphabetical lists of the Re- spondent's employees as of September 1, 1981 , and were similar to the list of employees, prepared by the office and used by N. Mahoney in preparing the 1982 layoff. Respondent's Exhibit 42(c) was a final manning table that had been written by N. Mahoney on the back of Re- spondent's Exhibit 42(b). N. Mahoney had written de- partment headings68 on this page, and then inserted vari- ous names under each heading , but not in any alphabeti- cal order. Numerous names were inked over, some were 17 Ea.cept Scott Clark who received his letter on May 16 ''$ Office, Retail , Motor Shop, Machine Shop, Monorail, Management- Staff, Lab, Panel Room, Yard & Loading, Pit-Grinding Mill Room, Car Cleaning and Burning 67 circled, and check marks and question marks were noted beside various names. Respondent's Exhibit 42(e) was written by N. Ma- honey on the reverse side of Respondent's Exhibit 42(d) and was described by him as a preliminary layoff list. Eighteen names were written down, not in alphabetical order, with a circled number placed before each name. X's were written after 15 of the names preceded by a cir- cled number, and three names had question marks placed after them, and two names were heavily scratched over. Above the 18 numbered names, N. Mahoney had written in two unnumbered names, with a comment placed after one, and "plus x" after the second. Various letters and numbers were heavily inked over, as on all other 1982 and 1981 documents made or used up by N. Mahoney in preparing for a layoff in those 2 years. Respondent's Exhibit 42(f) was described by N. Ma- honey as preliminary notes he had made on a manning table. On the left side of the page he had written the caption "Monorail," and below that he wrote in "Bill H" and "C. Pritchard," then he wrote in 13 names with his customary circled number before each name, and in no alphabetical order. The original name alongside of number 11 was crossed over, and another inserted in its place. Under these names he had written in a second column heading "Loading & Yard," and inserted six names thereunder . Two names were crossed out, and as- terisks, dashes and a question mark were placed along- side of the other four. On the right bottom side was the caption "Shop," with eight names placed thereunder, not in alphabetical order. In the middle of the page on the right side, N. Mahoney had written in the word Spares, and listed three names along side of it. These three names were the same names as the three names crossed out under the "Monorail" and "Loading & Yard" cap- tions. Respondent's Exhibit 42 was aptly described by N. Mahoney as: "It is the back side of 42(f) and it is some additional notes and includes some people that were being considered for layoff, and has some questions that I apparently was going to be asking supervisors about some of these people." This page contained 13 names. Ten were listed under the caption of "By Date last hired" and had each employee's date of hire alongside of his name. Alongside these dates was circled the question, "Who is married, who isn't?" Various names, notes, and question marks were inserted , with heavy doodling over many words. The names were not in alphabetical order. Respondent's Exhibit 42(h) was the final layoff list, dated November 6, 1981 . On it N. Mahoney listed 16 names, all with numbers in circles before each name. Seven names had questions marks behind them, and three had check marks. One name was heavily crossed over, with a replacement name placed alongside. The names were not in any alphabetical order. From a comparison of the documents prepared and used by the Respondent in its 1983 layoffs, it is readily evident that the Respondent did not follow the proce- dure it used in its 1982 and 1981 layoff. In each of the two earlier years the Respondent used many pages of notes, cluttered with names of employees , with many 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD crossed out or interlineated , with departments, job classi- fications, and observations written in. Most of the names on these pages were sprinkled with question marks, check marks, arrows, heavy doodling, and other inser- tions. In making up the 1982 and 1981 layoff lists, N. Ma- honey had used for reference alphabetical lists of all em- ployees prepared by the front office, whereas he used none in 1983. In 1982 he also ,referred to a list of em- ployees who had received glove awards, and had checked some aspects of employees insurance and vaca- tion standing. In 1981 he reviewed the date of hiring to determine the employees with the least seniority, and also checked on the marriage status of certain employees. In reviewing the papers used by N. Mahoney in 1982 and 1981, it is evident that he was slowly, carefully, and ponderously, by a process of elimination working on the problem of a layoff. His almost innumerable markings, such as question marks, and his heavy doodling on letters and names, show that he strove to end up with the best employees on the manning table, and the least competent employees on the layoff list. The two pages that constitute the records of the 1983 layoff are in no way similar to the records of the 2 prior years. The manning table page as well as the layoff list are both as sterile and neat as a pin , and show no trace of a process of elimination to arrive at a list of employ- ees most suitable for a layoff. There are no question marks, no check marks, no doodling, or any other kinds of marks to indicate that N. Mahoney struggled over which employees should be retained and which ones should be laid off. There is one other striking difference in the written records, and that is that N. Mahoney's pre- liminary list of employees to be laid off, as well as his final list, are both in alphabetical order. This is a far cry from the Respondent's 1982 and 1981 records which show that N. Mahoney never wrote a single list of names in alphabetical order. Hill's action in drafting and preparing layoff letters for each employee, in preparing a speech for the laid-off em- ployees, as well as for the retained employees , was also totally foreign to the layoff procedures in 1981 and 1982. But the fundamental difference between the 1983 paper- work and the 1982-1981 paperwork, is that in 1982 and 1981 the Respondent was honestly preparing for a layoff, in which it expected to call laid-off employees back to work when business picked up, but in 1983, the Respond- ent-was planning for the termination of these employees so that it could teach a powerful lesson to all of its em- ployees, not to seek union representation. As stated in Collectramatic, 267 NLRB 866 (1983), "Respondent decided on a power play, a mass discharge rather than a layoff of a group of employees to demon- strate that it would and could meet a union threat with economic force and thereby stifle any union support." In light of the circumstances of this case, particularly the Respondent's clear union animus, its knowledge of the Union's attempt to organize its employees, the timing of the discharges so closely behind the Union's request for recognition, and the weakness of the Respondent's eco- nomic defense, I find that a preponderance of the evi- dence in the record supports the finding that the 13 em- ployees were discharged in order to discourage them from seeking union representation . Accordingly, I find that the Respondent's actions violated Section 8(a)(3) of the Act, and that by such conduct the Respondent also interfered with, restrained, and coerced its employees in the exercise of their -organizational rights, guaranteed in Section 7 of the Act and thereby violated Section 8(a)(1) of the Act. NLRB v. Industrial Erectors, 712 F.2d 1131 (7th Cir. 1983). IV. THE OBJECTIONS TO THE ELECTION AND CHALLENGES TO BALLOTS In accordance with directives contained in the order consolidating cases, the issues in Case 18-RC-13438 heard are transferred to the Board for decision. Having found for the reasons set forth above, that the termina- tion of employment of Robert C. Bean, Brian L. Brady, Russell T. Ingalls, David J. McCarthy, Bryan D. Palmer, Curtis Palmer, John Palmer, Danny Pojar, Kevin Ruring, Kenneth R. Sopoci, Edward Thompson, and Ronald Warstler was in violation of the Act, such termi- nations interfered with the employees' freedom of choice and prevented a free and fair election in Case 18-RC- 13438. I therefore recommend to the Board that the chal- lenges to the ballots of the named employees be over- ruled and their ballots be opened and counted,69 further that if the results of the election show that less than a majority of the votes have been cast in favor of the Union, then that the election be set aside and a new elec- tion be ordered to be held at an appropriate time, and further that Case 18-RC-13438 be remanded to the Re- gional Director for Region 18 to carry out these direc- tions. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(1) of the Act by: requesting employees to engage in surveillance of other employees union activities and sympathies; interro- gating employees concerning the union activities and sentiments of other employees; informing employees that if they engaged in union activities they will be dis- charged; threatening plant closure if employees selected the Union as their bargaining representative ; maintaining in force and effect a policy of encouraging employees to report the union activities of other employees to manage- ment; maintaining in force and effect a rule prohibiting solicitation and distribution of literature in connection with union activities at all times; creating impressions of surveillance of the union activities of its employees. 4. The Respondent on May 13, 1983, by discharging Robert C. Bean, Brian L . Brady, Scott T. Clark, Russell 69 In the event that the Board should find that Gary Brady was not a statutory supervisor, but an employee under the Act, the ballot of Gary Brady shall also be opened and counted. The ballot of Michael Holmes shall be opened and counted as this was stipulated at the hearing BALLOU BRICK CO. 69 T. Ingalls, David J. McCarthy, Bryan D . Palmer, Curtis Palmer, John Palmer, Danny Pojar, Kevin Ruring, Ken- neth Sopoci, Edward Thompson, and Ronald Warstler to discourage membership in and support of the Union vio- lated Section 8(a)(3) and (1) of the Act. 5. The Respondent has not engaged in any unfair labor practices not specifically found. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent will be required to offer Robert C. Bean, Brian L. Brady, Scott T. Clark, Russell T. Ingalls, David J. McCarthy, Bryan D. Palmer, Curtis Palmer, John Palmer, Danny Pojar, Kevin Ruring, Kenneth Sopoci, Edward Thompson, and Ronald Warstler imme- diate and full reinstatement to their former positions of employment, unless such discriminatee has been lawfully reinstated or recalled, or, if these positions no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, dis- missing, if necessary, anyone who may have been hired to perform the work which they had been performing. Additionally, the Respondent will be ordered to make these employees whole for any loss of earnings or bene- fits they may have suffered by reason of the unlawful terminations, with backpay to be computed on a quarter- ly basis, making deductions for interim earnings, and with interest to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). As the unfair labor practices committed by the Re- spondent, particularly the acts of discrimination, strike at the heart of the Act, a broad cease-and-desist order shall be recommended, precluding the Respondent from "in any other manner" interfering with, restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed70 ORDER The Respondent, Ballou Brick Co., Sergeant Bluff, Iowa, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Requesting employees to engage in surveillance of other employees' union activities and sympathies. (b) Coercively interrogating employees concerning the union activities and sentiments of other employees. (c) Informing employees that if they engage in union activities they will be discharged. (d) Threatening employees with plant closure or dis- charge if they select a union as their bargaining repre- sentative. (e) Maintaining in force and in effect a policy of en- couraging employees to report the union activities of other employees to management. (f) Promulgating or maintaining rules forbidding em- ployees from soliciting for a union or distributing union literature at all times. (g) Creating the impression of surveillance of its em- ployees' union activity. (h) Discharging, laying off, terminating, or otherwise discriminating against employees for supporting , joining, or engaging in activities on behalf of Machinists Lodge 1426 or any other union. (i) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaran- teed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Robert C. Bean, Brian L. Brady, Scott T. Clark, Russell T. Ingalls, David J. McCarthy, Bryan D. Palmer, Curtis Palmer, John Palmer, Danny Pojar, Kevin Ruring, Kenneth Sopoci, Edward Thompson, and Ronald Warstler immediate and full reinstatement to their former jobs, unless such discriminatee has been law- fully reinstated or recalled or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the dis- crimination against them , in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of business in Sergeant Bluff, Iowa, copies of the attached notice marked "Appen- dix."71 Copies of the notice, on forms provided by the Regional Director for Region 18, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. 10 If no exceptions are filed as provided by Sec. 102 46 of the Board's 7' If this Order is enforced by a judgment of a United States court of Rules and Regulations, the findings, conclusions, and recommended appeals, the words in the notice reading "Posted by Order of the Nation- Order shall, as provided in Sec 102 48 of the Rules, be adopted by the al Labor Relations Board" shall read "Posted Pursuant to a Judgment of Board and all objections to them shall be deemed waived for all pur- the United States Court of Appeals Enforcing an Order of the National poses. Labor Relations Board " 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director in writing within 20 IT IS FURTHER RECOMMENDED that the complaint is days from the date of this Order what steps the Re- dismissed insofar as it alleges violations of the Act not spondent has taken to comply. specifically found.