Iron Mountain Forge Corp.

IRON MOUNTAIN FORGE CORP. Iron Mountain Forge Corp. and Teamsters, Chauf- feurs, Warehousemen and Helpers Local Union No. 574, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 14-CA-1754 and 14-RC-9880 27 January 1986 DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 25 June' 1985 Administrative Law Judge Claude R. Wolfe issued the attached decision. The Respondent filed exceptions and a supporting brief. The Union filed a reply 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 briefs and has decided to affirm the judge's rulings, findings," and conclusions and to adopt the recommended Order.2 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 findings. The Board agrees with the judge's finding that the leadmen exercise independent judgment in responsibly directing the work of employees. However, in adopting the judge's finding that the leadmen are supervi- sors within the meaning of Sec 2(11), we rely also on the evidence, fully discussed by the judge, that the leadmen regularly prepare detailed writ- ten evaluations which constitute "effective recommendations regarding the Employer's future treatment of employees" with respect to terms and conditions of employment We especially note that the record shows that in addition to a yearly wage increase to all employees the Respondent does, on occasion, grant individual merit increases. Chairman Dotson notes that with respect to the 8(a)(1) violations found by the judge to have been committed by leadman Gibson, the Re- spondent's exceptions and brief fail to set forth any ground other than the contention that Gibson is neither a statutory supervisor nor an agent Be- cause the Chairman adopts the judge's findings on Gibson's status, he also adopts the 8(a)(1) findings' in the absence of any exceptions to the merits which comport with the requirements of Board Rule 102.46(b) Member Babson finds it unnecessary to pass on the judge's finding that the Respondent violated Sec 8(a)(1) of the Act, based on Supervisor StnckIm's remarks to employees Sales and White on 14 September 1984, because the finding of these additional violations merely would be cumu- lative and would not affect the Order We correct the following inadvertent errors by the judge Employee Johnston testified that leadman Grogan assigns and reassigns employees within the paint shop not the lumber room. Also the judge found that at the time of the hearing, March 1985, the Respondent employed 125 unit employees on two shifts In fact the record shows that during the period from early winter to late spring the Respondent operated three shifts. This fact does not, however, materially change the import of the judge's finding concerning the ratio of supervisors to employees. 2 The judge recommended that the ballots of Brad Bayless and Shirley Bowen not be open and counted. However, pursuant to the Board's 13 February 1985 denial of the Employer's request for review of the Re- 255 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Iron Moun- tain Forge Corp., Farmington, Missouri, its offi- cers, agents, successors, and assigns, shall take the actions set forth in the Order. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots have been cast for `Teamsters, Chauffeurs, Warehousemen and Helpers Local No. 574, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, and that it is the exclusive collective-bargain- ing representative of the employees in the unit found appropriate. All production and maintenance employees employed by the Employer at its Farmington, Missouri facility, excluding office clerical and professional employees, guards, and supervi- sors as defined in the Act. gional Director's supplemental decision in Case 14 -RC-9880, the Region- al Director ordered that these two ballots be opened and counted. Both ballots were cast against the Petitioner. Thus the tally of ballots when this consolidated proceeding came before the judge was 31 for, and 26 against, the Petitioner with 8 determinative challenged ballots remaining. Bradley G. Kafka, Esq., for the General Counsel. Thomas M. Hanna, Esq., and Tim A. Garnett, Esq., of St. Louis, Missouri, for the Respondent Employer. Bruce S. Feldacker, Esq., of St. Louis, Missouri, for the Charging Union. DECISION STATEMENT OF THE CASE CLAUDE R. WOLFS, Administrative Law Judge. This consolidated proceeding was litigated before me at St. Louis, Missouri, on 5, 6, 7, and 14 March 1985. The amended-complaint in Case 14-CA-17541 alleges numer- ous violations of Section 8(a)(1) of the National Labor Relations Act. At issue in Case 14-RC-9880 are chal- lenged ballots and one objection posed by the Union to conduct allegedly affecting the results of the representa- tion election in that case. All these matters were vigor- ously litigated and ably briefed. After considering the record evidence before me, t the comparative testimonial demeanor of the witnesses, and the able arguments of the' parties, I make the following findings and conclusions. i The Union's pending motion to strike a portion of the testimony of Randy Grogan is denied 278 NLRB No. 38 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. JURISDICTION The pleadings establish that - Iron Mountain Forge Corp. (Respondent or the Employer) is a corporation en- gaged in the production and nonretail sale of park serv- ice equipment from its Farmington, Missouri facility where, during the 12 months ending 31 August 1984, it purchased and received products, goods, and materials valued in excess of $50,000 directly from points outside the State of Missouri. It is admitted and I find that Re- spondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 574, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union) is a labor organization within the meaning of Section 2(5} of the Act. III. CASE 14-RC-9880 CHRONOLOGY The Union filed 'its petition for representation election on 13 July 1984.2 The Regional Director for Region 14 issued a Deci- sion and Direction of Election on 17 August directing an election by secret ballot among employees of the em- ployer in an appropriate collective-bargaining unit con- sisting of "All production and maintenance employees employed by the Employer at its Farmington, Missouri facility, excluding office clerical and professional em- ployees, guards, and supervisors as defined in the Act" who were employed during the payroll period ending immediately preceding the date of the decision. The Board denied the Employer's request for review of the Regional Director's decision, and the election was conducted on 14 September. The tally was 31 for the Union, 24 against, and 12 determinative challenged bal- lots. Both the Union and the Employer filed timely ob- jections to conduct affecting the results of the election. The Regional Director issued a supplemental decision on 17 October overruling the Employer's objections, all but one of the Union's objections, and the challenge to the ballot of Brad Bayless. The supplemental decision also sustained the challenges to the ballots of Gary Hon- erkamp and Joseph Naused and directed a hearing on the remaining union objection and challenges to the ballots of Allen Bayless, Shirley Bowen, Stephen Gibson, Randy Grogan, Roger Smith, Mark Stricklin, Paul Usher, Tony Walker, and Raymond Watkins. On 13 February 1985 the Board, ruling on the Em- ployer's request for review of the Regional Director's supplemental decision, overruled the challenge to the ballot of Shirley Bowen, but denied the request for review in all other respects. It is in this posture that Case 14-RC-9880 came before me for hearing. IV. THE CHALLENGED BALLOTS In order to be an eligible `voter, an employee had to be employed in the unit during the payroll period ending 3 August, and on 14 September, the election date. A. Paul Usher II Paul Usher is a 17-year old student at the Farmington Christian Academy who impressed me as an entirely credible witness. The Company had one order for 2000 tables to be made of stained lumber. In order to accom- plish this, Usher and Vic Brown were hired in late May to stain boards at 6 cents a board. As Mike Bohman, owner and vice president of the Company, explains re- garding Usher, "He was hired on a part-time basis, on a piecework basis to do a particular job staining lumber." Bohman further explains that this work was only done on sunny days and only as needed to fill this one order. Consistent with this-'testimony of Bohman; Usher credi- bly testified that this was summer employment; he could not have continued on that schedule once school started; and he was not told how long he would work or that the work would continue after the school year began. He was, however, told by Al Bordewick, assistant plant manager, that he could possibly work through the summer, depending on the orders. Usher discovered he, had a hernia,3 and therefore stopped working after 3 July. On 5 July he told' Gary Harrison, the Company's sales manager who had secured the summer employment for him, that the hernia pre- vented him from working. Harrison told him to come back and talk to Harrison when he got better, and they would see what they could do about Usher's job. Usher had surgery on 27 August. He had visited Iron Mountain's premises a few times between 5 July and 27 August to talk to acquaintances. They asked about his health but they did not talk to him about his work or the job. Usher told no one during these visits that he intend- ed to come back, and he was not told that his job was being held for him. About 3 September, Bohman called him and asked if he was available for light work. Usher replied that he was not. According to Bohman, Usher's piece rate job was over when Usher and he talked. Bohman did not furnish a date for the conversation, but Usher seemed reasonably certain of the 3 September date. I am therefore persuaded that the lumber staining work was over by 3 September. Thereafter, probably within' or shortly before the week'precediiig the election, Usher was given a date by, his doctor on which he would be released to work so he called Bohman and told him he was released to work. They discussed the possi- bility of setting up a schedule 'so Usher could work after school. Bohman advised Usher that the Company would see what it could do and Usher should come in and talk to Bohman when he could. Usher did meet with Bohman before the election. The twa of them then arranged a work schedule which did not interfere with school and school-related activities. Shortly after this meeting, S The hernia was not the result of an on-the-job injury Ushes received no workman's compensation nor did the Company or its insurer pay his z All dates are 1984 unless otherwise specified medical or surgical bills. IRON MOUNTAIN FORGE CORP. whether on the same day or later is not clear, Bohman and co-owner Terry Braxton called Usher on the phone and asked him to secure a doctor's statement on his physical condition . Pursuant to this request Usher fur- nished the Company with two letters, one from his doctor noting Usher's referral to a surgeon and one from the surgeon dated 19 September and advising Usher could return to work on 8 October. A couple of days after 8 October, Usher went to work on the new sched- ule at an hourly rate and has apparently since been per- forming unit work. The Union challenged Usher's ballot on the ground he was not an employee-on the day of the election. The Re- gional Director directed a hearing on Usher's status during his absence after 5 July, and that direction was not disturbed by the Board's decision on the Employer's request for review. The Union further argues in its post- trial brief that Usher lacked a community-of-interest with other unit employees and was a casual employee not eli- gible to vote . The issue of eligibility properly before me for determination is whether Usher remained an employ- ee on the eligibility dates. The other issues raised by the Union are in the nature of postelection challenges which may not now be entertained , NLRB v. A. J. Tower Co., 329 U.S. 324 (1946). The Employer contends that Usher was on a leave of absence and had a , reasonable expectancy of recall, but furnished no documentation or testimony that such a leave was granted. Usher's credible testimony establishes that Harrison only told him on 5 July that he should talk to Harrison when he got better and they would see what they could do about his job.4 There is no evidence Har- rison had any authority to grant leave, to hire, or, to make any final personnel decisions . All such authority resides in Braxton, Bohman, and Bordewick. Nothing further was said to Usher about the possibility of a return to work until Bohman called him on 3 September. Even then Bohman did not tell Usher he was on a leave of absence. The parties did not raise the matter, but I have noted that Usher's affidavit, secured by one of the Employer's counsel on 19 September 1984, and in evi- dence as part of the formal papers, General Counsel's Exhibit 1(p), which is the Employer's request for review of the Regional Director's Decision and Order of 17 Oc- tober 1984 states, "I told the company about the hernia and I was informed that I could take a sick leave of ab- sence and that my job would be there for me when I could return to work." This affidavit statement is lacking in details, unsupported by record testimony, and in the nature of a post litem motam statement to be treated with caution. It was not offered or received into evi- dence as a past recollection recorded . Usher was not asked to explain this statement, but it is outweighed by his record testimony which had the ring of truth. Not- withstanding the paucity of evidence that Usher was af- firmatively granted sick leave, it has long been estab- lished that when an employee leaves work for reasons of health, and there is.no evidence that employee has quit or been discharged, he or she is , considered to be on sick leave, Wright Mfg. Co., 106 NLRB 1234, 1236-1237 4 Harnson did not testify. 257 (1953). The Union adduces no affirmative evidence, nor does the record contain any, that Usher quit or was dis- charged. An employee on sick leave is presumed to remain in that status until recovery . Bohman's call of 3 September 5 and the subsequent preelection arrange- ments for Usher to return after 8 October affirm that he had a reasonable expectancy of employment when he voted in the election. For these reasons, sick ' leave and a reasonable expectancy of reemployment, I find Usher was an employee during the payroll eligibility period and on election day. Accordingly, the challenge to his ballot should be overruled. B. The Leadmen The Union contends that Allen Bayless, Stephen Gibson, Randy Grogan, Roger Smith, Mark Stricklin, Tony Walker, and Raymond Watkins are statutory su- pervisors. All are now leadmen except Raymond Wat- kins, who was a leadman from 7 March to 23 June 1984. The Employer answers that leadmen are not statutory supervisors. Section 2(11) of the Act defines a supervisor as one who has "authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall,- promote, dis- charge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." Whether or not any or all of the leadmen possess any of these authorities or exer- cise them on the basis of independent judgment cannot conveniently be explored solely on-a group or individual basis. The evidence permits a discussion of group charac- teristics, but also requires an examination of some matters raised pertaining to specific leadmen. 1. Considerations applicable to all leadmen except where noted otherwise None have the independent authority to hire, suspend, lay off, recall, promote, discharge, or reward employees. In so concluding, I ' have considered evidence which might militate to the contrary. In the case of Roger Smith, leadman in shipping and receiving , employee Danny Howlett gave testimony, which Smith agrees might be accurate, that Smith told him "they" liked his work and asked if Howlett, then a, part-time employee, would like to be full time. Smith credibly testified that he had nothing to do with the subsequent decision to put Howlett on full time. I cannot agree with the Union that Howlett's evidence indicates Smith effectively recom- mended Howlett's conversion to full time. Similarly, the fact that some of ,the individuals recommended for em- ployment by Tony Walker were later hired means little because some were not and there is no showing his rec- 5 Although Bowman's sudden interest in Usher's ability to work after the election was directed may raise suspicion in some quarters , the evi- dence will not support a finding that his efforts were directed toward se- curing Usher's vote against the Union There is no indication Usher was so inclined. 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ommendations were determinative. There is also some testimony from former employee Joseph Naused that he was told by leadman Gibson on 10 July that he would probably be suspended or fired for unsatisfactory work; was laid off for 3 days by Gibson on 11 July because of that poor work; and was discharged on 24 July by Gibson, who on that date called Naused into the office and fired him.6 Naused was a rather slow and deliberate witness who impressed me as one reporting the truth as he recalled it. His testimony is credited as a reasonably accurate summation of the relevant events of 10, 11, and 24 July. Gibson was not a particularly impressive witness on this subject, and his statement that he does not believe or recall telling Naused on 10 July that he would prob- ably be fired or suspended is given little weight. I do not believe Naused made his story up out of whole cloth. However, Gibson was then acting on the orders of Bordewick who decided to suspend Naused. Gibson did tell Naused on 24 July that he was fired for poor work, but he believably testified that he sent Naused home in the heat of the moment. Any conclusion that Gibson might have indeed possessed the authority to take such action was dissipated on 25 July when, at a meeting of Naused, Bohman, Bordewick, Watkins, and Gibson in Bordewick's office, Bohman stated that nobody was fired until he fired them. I do not think the evidence shows Gibson has the authority to layoff or discharge, or to ef- fectively recommend it, nor does it impress me as strong enough to outweigh the credible testimony of Respond- ent's leadmen and supervisory managers that no such au- thority exists. On another subject, there is no substantial evidence to support a conclusion that leadmen have inde- pendent authority to adjust grievances or assess and impose discipline on employees or authority to effective- ly recommend such action. Leadmen may neither pre- vent employees from leaving the plant nor excuse their absences. Their duty to attach doctors' certificates to em- ployee timecards is purely ministerial involving no dis- cretion. We now turn from a consideration of authority not possessed to an examination of duties, policies, and prac- tices common to all leadmen. They all receive their daily work assignments from Al Bordewick, who prepares and distributes a list to each leadman setting forth the daily production schedule. The leadmen in turn inform the other employees in their respective departments what their individual duties will be for the day. Most of these employees need no further instruction for they work on the same machine and/or at the same duties every day. Others who are not so permanently assigned or lack ex- perience receive duty station assignments and job in- structions from their leadmen. During the course of the work shift, the leadmen are responsible for ensuring the requisite quality and quantity of production. This respon- sibility has been delegated to them by their superiors. To meet this duty, they spend much of their time checking the work of other departmental employees to ascertain whether their work is of acceptable quality and amount and, when it is not, directing them to adjust their pro- ductivity rate and quality level to satisfy production re- 6 Naused's discharge is not at issue and presumed for good cause quirements. The leadmen all spend a portion of their workday doing production work either on a fill-in basis for absentees or as otherwise needed. The evidence on how much time a particular leadman may spend doing production work is fuzzy at best, but sufficient to per- suade me that, in general, the leadmen devote less than half of their time to hands-on productivity. If an employ- ee completes the work assigned to him before his shift ends, he reports to his leadman who then assigns the em- ployee to other duties in the department. This reassign- ment by the leadman is, as are other intradepartmental assignments, made on the basis of his evaluation of em- ployee ability to perform the new work to which he is assigned, his availability, and, in some instances, his rela- tive seniority and experience. The leadmen do not con- sult with their superiors in making these temporary reas- signments in their departments, but the departmental leadman generally do not make permanent position as- signments without direction by Al Bordewick or Mike Bohman. The leadmen, with the exception of Gibson and Watkins, have no independent authority to make or cause interdepartmental transfers to be made, either tem- porary or permanent. There are, however, occasions when a department leadman receives permission from Bordewick to borrow an employee from another depart- ment. The borrowing leadman then goes to the depart- ment from which he is getting the employee and advises that department's leadman of his mission. The employee selected-for a temporary interdepartmental assignment is selected by the leadman of his department on the basis of his personal judgment which employee can be most easily spared from his home department for the time re- quired. Considerable evidence was adduced regarding the Em- ployer's use of the term "supervisor" in its employee handbook, and on its employee performance evaluation form. The handbook issued 12 February 1982 and lists, inter alia, the following employee responsibilities: 4. Report unsafe conditions to supervisor. 5. Report all injuries to supervisor. 8. Your supervisor must initial your time card when "Clock In" or "Clock Out" times are hand written. All employees must clock in and out only their card. Failure to do so shall result in an omis- sion of pay for the time in question. 15. Notify supervisor before 7:30 a.m. (1st Shift) or 4:00 p.m. (2nd Shift) when unable to, work or when employee will be late. 17. Limit trips to office as well as to your super- visor. A memorandum to all employees issued by Al Bordewick on 21 March 1984 entitled "SAFETY POLICY" contains the following instruction: "II. Lead men are responsible for developing safe working atti- tudes for all their employees." The Employer contends Bohman was the only super- visor when the handbook was prepared by him, co- owner Braxton, and Roger Petrie, the predecessor to Bordewick, and further contends there were no leadmen in February 1982. This position is not entirely consistent IRON MOUNTAIN FORGE CORP. with Bohman's testimony. He did indeed state that he was the only supervisor the Employer had when the handbook was written; but he also testified that there were probably leadmen in February 1982. 7 I am inclined to agree with Bohman's estimate of probability for various reasons. Bohman does not claim the use of the term "supervisor" in rules 4, 5, 8, 15, and 17 does not currently refer to leadmen. Bordewick was not an employee in 1982, but nevertheless conceded that the title "supervisor" in rule 8 now refers - to leadmen. On the other hand, in talking about rule 17 Bordewick evaded answering whether "supervisor" referred to lead men, and took refuge in an assertion the handbook rules are outdated. I cannot accept the claim that the rules are outdated because the record is chock full of credible evi- dence, including a stipulation related to-rule 8 and a con- cession in the Employer's posttrial brief that employees do regularly report injuries and unsafe conditions to their leadmen and do have -their timecards initialed by their leadmen. There is no persuasive evidence anyone else is responsible for the timecard initialing. The evidence pre- ponderates in favor of a conclusion the handbook rules are still in effect. The evidence also warrants a conclu- sion that "supervisor," when appearing in the rules, does refer to leadmen. Were it otherwise, rule 17 would make little sense for it clearly separates trips to the office, wherein Bordewick, and/or Bohman, regularly dwell, from trips to the supervisor. If I were to conclude that the term applies only to Bordewick and Bohman, I would also have to conclude that the latter part of the rule refers to trips to see Bordewick or Bohman at some other undisclosed location. Such a conclusion is not war- ranted by evidence of record. 7 That Bohman then answered "No" to his counsel's leading,question, "You don't recall for sure either way?" has little evidentiary weight. All leadmen are responsible for making annual written evaluations of the performance of each employee in their respective departments or shifts. The evaluation form, which the Employer started using after Bordewick's ar- rival on 1 December 1983, lists 10 job criteria.8 Each of the 10 is assigned a numerical rating between "1. (UN- ACCEPTABLE)" and "5 (OUTSTANDING )." Imme- diately below each listed criteria and the space for the numerical rating are the words "SUPERVISOR'S COM- MENTS:" following which leadmen enter their com- ments on that 'specific job element. After the total rating score is entered on the form there appears a line en- closed box for "SUPERVISOR'S GENERAL COM- MENTS AS TO EMPLOYEE'S STRENGTHS, WEAKNESSES AND ACTION TAKEN TO IM- PROVE JOB PERFORMANCE." Below this item are spaces for the signatures of "Supervisor," "Reviewing Officer," and the employee. All items above the signa- tures are completed by the employee's leadman. After the leadman completes the form he signs it in the "Su- pervisor" space and forwards it to Bordewick who then meets with the leadman and the rated employee. During 8 The 10 criteria are amount of work, quality of work, cooperation, judgment, initiative, job knowledge, interest in job, ability to communi- cate, dependability, and ability to be supervised 259 this meeting the employee may question the leadman's rating. If he does, Bordewick listens to both leadman and employee, and then either approves the evaluation as is or adjusts it before he signs it as approved by the re- viewing officer. Of the 53 evaluations in evidence which were submitted to Bordewick, only 39 show any evi- dence that the original independent ratings by the lead- man were ever altered, and it appears these alterations were made by the leadman. Roger Smith gave uncontra- dicted testimony that Bohman changed Smith's evalua- tion of employee Don Mullins to a higher score, but that evaluation is not in evidence. In addition to these evalua- tions, there are three on slightly different forms with fewer criteria signed by leadmen in the space reserved for the "`Supervisor" and by "Reviewing Officer" Roger Petrie, Bordewick's predecessor, all in early 1983.10 The form requires the leadman's evaluation of the degree of direction and supervision that the evaluated employee re- quired. The fact that the leadman is called on to evaluate the necessary amount of direction and supervision im- plies that he or she is qualified to make such an evalua- tion and further implies that the leadman operates on a higher level than the rank-and-file employee, and is expe- rienced in matters of direction and supervision. More- over, the very fact the leadman rates the employees from unacceptable to outstanding, with 3 intermediate ratings, on each of the 10 listed job criteria illustrates that the leadman is left to utilize his independent judgment on each factor, some of which calls for largely subjective judgment by the leadman. It'seems clear that Bordewick placed considerable reliance on the rating by the lead- men, and it is obvious that the evaluations once ap- proved by Bordewick, which appear, to' be rather pro forma, l l become the Employer's estimation of the evalu- ated employee's worth, which has a direct bearing on that employee's, tenure, and is reasonably calculated to affect the employee's age and promotion future. The importance of the leadmen's evaluation is illustrated by employee Van Gunter's credible testimony, as compared with Bordewick's claim that he does not recall the inci- dent, that Bordewick told Gunter he must be evaluated by his leadman before Bordewick could evaluate him be- cause Bordewick did not know Gunter's work. The lead- man does not recommend the amount of wages or wage increases to be paid an employee, but wage increases, if any, are discussed privately between Bordewick and the evaluated employee immediately after the evaluation has been discussed and the leadman has been excused from the meeting. From this sequence I conclude that a favor- able evaluation has a considerable -effect on whether and how much a wage increase is given to the evaluated em- ployees. It is clear to me, from all the foregoing that the employee evaluations are considerably more than routine clerical' functions and are more closely akin `to effective 9 The three are evaluations of Gary Honerkamp, Greg Mel], and Tim Lober. 10 These ratings and reviews during Petrie 's tenure are not relevant to 1984. 11 There is no showing Bordewick routinely conducts his own mvesti- gation of the employee's qualifications, or, that anyone but the evaluated employee initiates any inquiry into the accuracy of the evaluation 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recommendations regarding the Employer's future treat- ment of employees with respect to how they should be supervised, rewarded, disciplined, or otherwise treated to ensure their future satisfactory performance. The evalua- tions are not just routine memoranda to keep Bordewick and/or Bohman advised. They are important documents on which management relies to appropriately manage the work force. The parties stipulated that on election day the lead- men's basic wages ranged from $6 to $7.75 per hour and averaged $6.75 per hour, whereas production employees were paid from $4.50 to $6 per hour and averaged $5.11 per hour. Leadmen, like other employees, receive time- and-a-half pay for overtime hours worked and enjoy the same fringe benefits. The need for overtime is deter- mined by Bordewick. Overtime is worked by volunteers and employees cannot be compelled to work overtime. The factors previously discussed apply to all leadmen except to the extent there may be a variance in individ- ual cases as set forth below. 2. Additional considerations peculiarly relevant to an individual leadman Stephen Gibson, unlike the other leadmen who lead specific departments on the day shift, is head of the entire second shift. He has held that position since 11 February 1983, and is the highest paid leadman at $7.90 per hour since 1 July 1984, which includes a 15-cent shift differential. There are from 20 to 22 employees on the second shift. Gibson is the only leadman on the shift but for those occasions about three times a week when Bordewick, Bohman, or Braxton may be present for an hour or more at the beginning or end of the shift. Because he usually does not have a supervisor present for most of the shift, Gibson has been instructed to write notes on production, "discipline, or other problems for Bordewick to review the following morning. There are 20 such notes from Gibson in evidence dated in May, July, and August 1984. One, dated 8 May, reports that Gibson had warned Bob Bequette he would be given 3 days off without pay if he missed another day's work. Two relate to Jeff Johnson. The first, dated 8 May, re- peats the same warning given to Bequette if he missed a Friday or Saturday, and adds a warning of termination if he did it twice or missed any other 2 days of the week. True to his word, Gibson suspended Johnson for 3 days on 21 May for missing the previous Saturday. Gibson's written report to Bordewick on this- suspension notes Johnson had previously been "officially warned." Other Gibson notes to Bordewick report, respectively, that on 12 May he had warned James Watkins of suspension for missing work, and discharge for a second offense. On 20 July he told Watkins and Harold Hahl not to be caught abusing breaks. On 10 August he had suspended Watkins 3 days without pay for absenteeism and told him he would be terminated if he had another unexcused ab- sence in 2 months. Gibson wrote several notes regarding Joe Naused and Gary Honerkamp. Of them, five contain the following information on Honerkamp: on 12 July Honerkamp was drilling boards incorrectly, which Gibson reported to Bohman, who then instructed Honer- kamp on the work; on 24 July Honerkamp quit working after completing the minimum product required, where- upon Gibson told him to return to work; on 25 July Honerkamp was "written up" for failure to perform his work properly; on S July Gibson warned Honerkamp he was not doing his job properly, would be suspended 3 days if this continued, and discharged if it continued after a suspension; on 8 August Honerkamp was not doing his work and seemed unhappy with his job and was deliberately trying to get fired. Gibson made three reports on Naused and three on Naused and Honerkamp jointly which relate the following: on 11 July Naused was laid off for 3 days as a disciplinary action for ne- glecting to do his job as instructed; on 18 July Naused and Honerkamp were warned about smoking in a no- smoking area; again on 18 July the same warning for repetition of the offense; on 20 July Naused and Honer- kamp were taking too many smoke breaks and Gibson told them he expected them to produce and'they were not to be caught taking smoke breaks again; on 24 July Naused and Honerkamp were cutting boards incorrectly; on 24 July Gibson fired Naused for improper job per- formance; on 24 July Naused was suspended until 25 July when he met with Gibson, Bohman, and Bordewick. Naused was then fired. The warning to Bequette on 8 May was at Bordewick's instruction, as was the warning to Johnson on 8 May that he would be suspended. However, Gibson, on his own, added the warning of termination. The suspension of Johnson on 21 May was directed by Bordewick. The 12 May warning and 10 August suspen- sion of Watkins was ordered by Bordewick. The warn- ing of termination was not directed by Bordewick, and I am persuaded that in this case, as in the 8 May incident with Johnson, the warning of termination was Gibson's addendum. The evidence is convincing that the warnings given to Naused and Honerkamp, except those about smoking, were given at Bordewick's instruction, as was the suspension of Naused. I have already noted above that Gibson exceeded his authority when he fired Naused on 24 July. Returning to Gibson's duties, he makes the decision which department employees are assigned when they first come on the second shift, and then dispatches them to that job. He also shifts employees from department to department as needed. This movement is based on the need, as he perceives it, as is the reassignment of employ- ees from job to job within a department on the second shift. He issues work assignments to the entire shift on the basis of a list, issued each day by Bordewick, detail- ing production needed. Gibson works at welding a few hours a night as needed. Raymond D. Watkins was the leadman for the third shift ,from early January until 23 June 1984 when the shift was discontinued and he was transferred to the shipping department. He has not been classified as a lead- man since leaving the third shift. Like Gibson, he was the only lead person on this shift. Watkins credibly testi- fied that Bordewick was present in the plant for the last hour of the third shift. There were 115 or 16 employees on the third shift, all of whom worked doing either painting or packing. Walker had the responsibility for IRON MOUNTAIN FORGE CORP. meeting shift production and quality goals set by Bordewick. He did transfer employees from job to job as needed. Bordewick had told Watkins to call him if there were problems he could not handle . Watkins took advan- tage of this by frequently calling Bordewick to report machine problems, and Bordewick has gone to the plant during the third shift. Bordewick lives but a 5-to 7- minute trip from the plant. Watkins, like Gibson, made reports to Bordewick on the conduct of third-shift employees. On 4 May he wrote that John Calvert did not like his job , and that he told Calvert he would be fired the next time . Watkins noted on 7 June that he told Harry Hahl he would be suspend- ed 3 days if he missed one more Saturday and would be fired if he missed another. On 19 June Watkins wrote up Joe Naused for neglecting to do the job correctly. Wat- kins concedes he was angry and did tell Calvert on 4 May that he would be fired the next time. Bordewick says Watkins had no authority to tell Calvert this. The warning to Hahl on 7 June was issued at the instruction of Bohman and Bordewick, but Bohman merely states he told Watkins to tell Hahl he could no longer be absent on Saturday. Bordewick states that he and Bohman au- thorized a warning of a 3 -day suspension. Watkins, in agreement with Bordewick, testified Bordewick and Bohman told him to tell Hahl he had to work Saturdays or get 3 days off. Although a warning was authorized by his supervisors, I am not convinced that Watkins was told to warn Hahl of termination. I am convinced that he did warn Hahl of termination , as the note relates, just as he warned Calvert . The 19 June note is only a report on poor production. John Calvert claims that Bordewick told him when he was hired on the third shift on January 1984 that he was to listen to Watkins who would be his supervisor. Bordewick denies ever using the word supervisor with respect to a leadman, and I credit him . Neither Calvert nor Bordewick were superior to the other in terms of de- meanor. Other evidence that Bordewick is given to call- ing leadmen supervisors is conspicuous by its absence. It is more probable, in my opinion, that Calvert was testify- ing to his conclusion of the meaning of Bordewick's statement, approximately 14 months after the fact, rather than Bordewick's exact words . I do, however, credit Harry Hahl's testimony, which was most convincing, that Petrie told him when he was hired that he would be working for a leadman and was to take his instructions. Hahl is further credited that Bordewick told employees in early 1984 that the leadmen were to enforce work rules and safety procedures, and employees were to follow the leadmen's instructions on these matters. With respect to Watkins' duties since leaving the third shift, an examination of the evidence reveals that when Watkins went from the third to second shift he returned to loading and unloading trucks as he had previously done before being on third shift. He was supervised by Gibson on the second shift and was not a statutory su- pervisor during that period of time . The conclusion I draw from the credible evidence is that the only control Watkins exercises over other employees is that derived from his superior experience. This does not make him a 261 statutory supervisor, 12 and it is found that he was not a supervisor during the payroll eligibility period or on election day. The challenge to his ballot must therefore be overruled. Alley Bayless, who was a most impressive witness giving forthright and believable testimony , has been the leadman in the lumber room (sometimes called the wood shop) on the day shift since July 1984 . Bayless credibly testified that when he becamea leadman Bordewick told him to make sure orders were completed and put some employee on to rout or drill boards . When Bordewick directs him to send employees to help in the paint de- partment Bayless selects the, employees to go, usually someone who is finishing a job that Bayless can complete in his absence. Bayless also asks employees to move from one job to another during the day, as needed, for depart- mental production . When Bayless took over from Roger Smith as leadman Bordewick told the lumber room em- ployees that Bayless would be taking over ;` they would not have to listen to Roger Smith any longer, and they would get their instructions from Bayless. Randy Grogan has been the leadman in the ,paint de- partment on the day shift about 2 years . He was a candid and believable witness whose testimony seemed truthful, is credited, and supports the findings in section IV,B,l'of this decision. There are four employees, including Grogan, in the department . William Johnston, a rather mechanical but not unbelievable witness, reports that Grogan assigns and reassigns department employees within the lumber room, and has sent him to other de- partments to work with instructions to report to the leadmen of those departments. Grogan has also sent him to leadman Tony Walker to employees to help in Gro- gan's department. This is not inconsistent with Grogan's testimony that lumber room employees are loaned out to other departments and the reverse is true , all with prior authorization from Bordewick . There is no probative evi- dence from Johnston or others that these temporary transfers of men between departments - are carried out without such prior authorization from Bordewick. There are no glaring inconsistencies between the testimony of Grogan and Johnston , both of whom are credited with the caveat that where the two may appear to be at odds, Grogan is credited on the basis of superior testimonial demeanor. Roger Smith is the leadman in shipping and, receiving. There are seven employees, including Smith, in the de- partment. New employees in the department are assigned to their jobs by Bohman. When Smith became a lead- man, Bohman said Smith's responsibilities were to make sure everything shipped and received was in good condi- tion, and that all department employees had something to do. When Company President Braxton sent Howlett to work in the department, he told Smith to put ,-Howlett to work. Smith assigned Howlett to load common carriers because that was where help ,was needed . Smith decides when to use the warehouse employee ,to load a truck. He also decides where the employee in receiving is to work 12 See, e g., Bugle Coab Apron & Linen Service, 132 NLRB 1098, 1100 (1961). 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when he runs out of receiving work, and what other em- ployees are to do when they have nothing to do. Smith selects the, department employees who are to help in other departments by considering their relative seniority or, work skills. Employee John Sherrill gave uncontro- verted and therefore credited testimony that about half of the time Smith moves men from one job to another, he says that Bordewick wants the change. Mark Stricklin is the leadman in the first-shift welding department. He did not testify. There are four or five welders plus Stricklin in the department. Stricklin does welding work like that of other employees about 3 hours a day, sometimes more, sometimes less. There is no spe- cific evidence differentiating his, status or duties from that from other departmental leadmen. Tony Walker is the leadman in the cutting and fabrica- tion department. There are nine other employees in the department. When he temporarily reassigns employees within the department, he does so on the basis of need, relative skill, and experience on the machine to which the employee is to be assigned. Bordewick has told him it was his responsibility to see employees follow the safety rules and has also told him to speed employees up. There are no significant' differences between Walker's duties and authority and those of other departmental leadmen which are discussed above in section IV,B,1 of this decision, 3. Conclusions on Leadmen The Employer has approximately 125 employees,, on two shifts. If Bohman and Bordewick are the only statu- tory supervisors directing the work force, as the Em- ployer contends,' each would have 60 or more employees to supervise if the _ force was evenly divided. Any un- equal division would result in one of them directly super- vising even more. This would,be an inordinately high ratio of employees' to supervisors in either case, and it is well established that such a disproportionate ratio is evi- dence that the leadmen are supervisors.18 With respect to the use of the term "supervisor" in the employee handbook14 and on the evaluation form as a reference to leadmen, "Titles and symbols . . . do not constitute a person a supervisor," 15 but the use of the title is proba- tive evidence of supervisory status16 and also shows that the Employer, by means of documents, the handbook issued to employees, and the evaluation forms discussed with employees after their completion, conveyed the notion to employees that it considered its leadmen to be supervisors. The record before me shows that employees do consider their leadmen to possess the full authority of a supervisor and do not question that authority. All the leadmen are made responsible for production and quality is See, e.g, Bama Co., 145 NLRB 1141, 1143 (1964); Staco, Inc, 244 NLRB 461; 465 (1979). 14 The claim of carelessness as the cause for the appearance of "super- visor" in the documents is rejected After more than 2 years of the hand- book and at least 53 written evaluations containing the term the Employ- er has made no effort to correct its alleged carelessness by removing the word from its documents or by advising employees it is an inappropriate title for leadmen It is the Employer's term and I conclude it was meant to be what it is. 15 Saladmaster Corp., 216 NLRB 769, 773 (1975). 16 Colorflo Decorator Products, 228 NLRB 408, 410 (1977). in their respective departments or shifts. This responsibil- ity, particularly on the second -and third shifts where, for most of the shift, no other supervisor is -present, 17 to- gether with the leadmen's reassignment of employees to other work without consulting anyone when they, run out of work or another product is more urgently needed; the frequent monitoring of employees' work and the cor- rection of quality and quantity defects detected in that work without consulting anyone; the spontaneous on-the- spot- oral warnings to employees who persist in poor per- formance or abuse of break and other work rules; and the total absence of any evidence of regular direct super- vision of rank-and-file employees by Bo'hman, Braxton, or Bordewick lead to a conclusion, which I make, that each and every leadman has and exercises the authority to make independent judgments in responsibly directing employees in fulfilling their duties, as described by Bordewick, in assigning work to the other people in their respective departments, and in making sure that ev- erybody is kept busy and the work is produced accord- ing to schedule. The possession and exercise of that au- thority is sufficient to confer supervisory status on the leadmen. The disproportionate supervisory ratio if it were otherwise, the Employer's continuing long-term ap- plication of the term "supervisor" to leadmen in its em- ployee handbook and evaluation forms, thereby holding leadmen out to employees as supervisors, the instruction given to employees on hire and at other times to obey the instructions of their leadmen, and the clear evidence that employees uniformly consider their leadmen to have supervisory authority support the same conclusion.18 Accordingly, I conclude and find that the challenges to the ballots of Allen Bayless, Stephen Gibson, Randy Grogan, Roger Smith, Mark Stricklin, and Tony Walker must be sustained because they were at all times material supervisors within the meaning of Section 2(11) of, the Act.19 For the same reasons, Raymond Watkins was a statutory supervisor when he was leadman on the third shift. He was not a Section 2(11) supervisor after he left that position and was therefore an eligible voter, the challenge to whose ballot is overruled. V. THE ALLEGED UNFAIR LABOR PRACTICES The alleged violations of Section 8(a)(1) of the Act are based on alleged conduct of Stephen H. Gibson, Mark Stricklin, and Raymond D. Watkins. I have found'them all to be supervisors within the meaning of Section 2(11) of the Act when serving as leadmen an d agree with the General Counsel that even if this were not so, they, as leadmen, served as conduits for information from Re- spondent to its employees, were held out by Respondent as supervisors, and were clothed with apparent authority sufficient to render them agents of Respondent for whose 17 Phalo Plastics Corp., 127 NLRB 1511, 1513 (1960) (Cunningham and Sherran). is Certain duties such as initialing timecards are purely routine clerical functions. is S. L Industries, 252 NLRB 1058, 1070-1071 (1980) (Hazel Mann), Colorflo Decorator Products, 228 NLRB 408, 409-411 (1977); Bama Co, 145 NLRB 1141, 1141-1143 (1964) (Charles Loveless), Phalo Plastics Corp, 127 NLRB 1511 (1960). IRON MOUNTAIN FORGE CORP. conduct discussed herein Respondent may be held liable if it is unlawful. 20 As elsewhere noted in this decision, the status of Watkins as a supervisor and/or agent ended when his tenure as leadman ended. A. Conduct of Stephen H. Gibson 1. According to employee Michael Shaw, he was leav- ing the lunchroom in early May when an employee (oth- erwise unidentified) said he had thrown a union-authori- zation card away, and Gibson then volunteered to the employees present that Respondent had a legal right to discharge anyone who signed such a card. Gibson denies ever telling Shaw or anyone that Respondent had a legal right to fire card signers. 2. Kenneth Montgomery, an employee, testified to events of 7 June as follows: As he and other employees, including Shaw, were turning in their production sheets in Bordewick's office, one of the employees, whose iden- tity not given, mentioned the Union. This drew the com- ments from Gibson that employees would be sorry be- cause they would be paid $3 an hour; he knew who had signed cards and attended union meetings; he had worked for• Chrysler when the Umon did nothing for him; and employees would be sorry when they had to pay the big initiation fee. Michael Shaw only asserts that Gibson said the company had a legal right to fire anyone who signed a card and everyone would be working for a minimum wage if a union came in. Gibson denies these statements attributed to him by Shaw and Montgomery. 3. Shaw relates that some time in the first week of June, in the plant parking lot, an employee asked what would happen if the Union got in. Gibson stated that if the Union was voted in, they would all be working at the minimum wage. Gibson denies this occasion took place. 4. Kenneth Montgomery recalls an incident in mid- June when Gibson told a group of employees there would be no more standing around if the Union got in because "Cape's too far away for them to come up here and help you guys." "Cape" is a reference to Cape Gir- ardeau, Missouri, where the Union has offices. Gibson testified only that he does not believe he told Montgom- ery there would be no more standing around if the Union organized the plant. 5. Donald Myers, an employee at the time, says that on 14 September, after the election, Gibson asked if he had gone to a union meeting. When Myers denied so doing, Gibson said he had the names of everyone, in- cluding Myers, Hartley, and Cook, who had attended the meeting. Myers says Gibson showed him a paper with the above three names on it, and said that he was no longer going to do any favors for "you guys" because every time he did they stabbed him in the back. Gibson denies having any conversation with Myers about the Union on 14 September, accusing employees of stabbing him in the back, or asking if he had attended a union meeting. 6. On 17 September, according to Donald Myers, he asked Gibson if he thought the Union would get in. To 263 which Gibson allegedly replied that he did not care if it did or not, but that "you S-O-B-s" would regret the day they went to a union meeting because now the company would be run the way it was supposed to be run. After reading his pretrial affidavit, and in response to a leading question posed by the General Counsel, Myers added that Gibson during the 17 September conversation again said that every time he did the employees a favor, they always stabbed him in the back. Gibson says he may have discussed the Union with Myers at work on 17 September. He does not recall Myers asking if he thought the Union would come in, and specifically denies each and every element of Myers' testimony in regard to 17 September. B. Conclusions in Regard to Gibson Of all these witnesses to Gibson's conduct, including Gibson, the most straightforward and believable was Montgomery. Gibson was not an overly impressive wit- ness, nor was Shaw. On cross-examination Shaw repeat- edly used "I believe" as an answer, which seemed to be an evasion at the time. Myers left the impression that he was earnestly testifying truthfully as best he recalled. In terms of comparative demeanor, neither Shaw nor Gibson was superior. Moreover, I find nothing in the record to indicate one's testimony is more likely to be true than the other's. This is a "one-'on-one" situation with equally credible witnesses, neither of whom was overly impressive in demeanor. Gibson has' denied Shaw's allegations, and the allegations and denials are in equipose. That being the case I must, and do, find that the General Counsel has not proven by a preponderance of the evidence that Gibson made the statements attrib- uted to him by Shaw, as set forth in section V,A,1 and V,A, 3, above.21 Montgomery's believable testimony in sections V,A,2 and V,A,4 above is credited over Gibson's denials. Shaw's claim that Gibson said on 7 June that the Compa- ny has a legal right to fire anyone signing a union card is not credited. Montgomery, a credible witness, did not give any testimony to this effect and the statement al- leged by Shaw is not of a sort Montgomery would have easily forgotten or neglected to relate as part of Gibson's 7 June statements. The complaint allegations that Gibson, about 7 or 8 June, violated Section 8(a)(1) of the Act are supported by the credible evidence. His statement that employees would be sorry because they would be paid .$3 an hour was plainly directed at employees supporting the Union, was indeed.a threat of reduced wages if the Union were successful, reasonably tended to restrain and coerce em- ployees in the exercise of their statutory right to form, join, or assist labor organizations, and violated Section 8(a)(1) of the Act. Gibson's claims that he knew who signed cards and went to union meetings, without any explanation how he knew, could reasonably convey only one impression to employees, and that impression was that Respondent was keeping their union activities under close surveillance. This creation of an impression of sur- 20 Injected Rubber Products Corp, 258 NLRB b87 ( 1981). 21 See Blue Flash Express, 109 NLRB 591 (1954) 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD veillance of employee union activities violated Section 8(a)(1) of the Act. The statements of Gibson set forth in section 4 above might have been permissible if they had been restricted to a bare instruction not to stand around, a perfectly proper instruction by a supervisor, but the statement the restriction on standing around would be imposed if the Union were successful in its organizing campaign violated Section 8(a)(1) of the Act because it was a threat of reprisal by way of harsher working con- ditions if employees persisted in their union action to the point the Union became their collective-bargaining repre- sentative. Noting that the statements of Gibson, testified to by Myers, parallel statements by Gibson credibly testified to by Montgomery, and further noting that Myers' testimo- ny seemed uncontrived and a truthful recitation of his recollections in some detail, I do not believe Myers con- cocted the 14 September scenario as Gibson's denial of any conversation with Myers on election day would seem to imply. Gibson's bare denials simply were not convincing when delivered and are not now convincing. Myers' credited testimony requires a finding Respondent, by its supervisor and agent Gibson, violated Section 8(a)(1) of the Act by creating an impression of surveil- lance of employees' union activities. I do not agree with the General Counsel's allegations that the facts of 14 September warrant a finding Gibson threatened more on- erous working conditions or told or implied to any em- ployee that union activity amounted to disloyalty to the Employer. Myers' version of his 17 September talk with Gibson is credited. I do not, however, agree with the complaint that an impression of surveillance was created this date. The only violation of Section 8(a)(1) present on 17 Sep- tember was the suggestion by Gibson's prediction of em- ployee regret that imminent changes in operation, what- ever they might be, would be to the employees' detri- ment because they sought out union representation. There is no evidence Gibson's prediction was based on anything other than his irritation at the question posed by Myers, but 'this does not alter the restraining effect such statements can reasonably be expected to have on employee union activity. C. Conduct of Raymond D. Watkins The complaint alleges that Watkins violated Section 8(a)(1) of the Act about 7 June by interrogating an em- ployee about his union activities and sympathies. Joseph Naused, a former employee, testified that he was in the office getting his third-shift work assignment from Wat- kins on 7 June when Watkins asked him to sit down. Watkins then said he had heard Naused had been at a union meeting. Naused said he had. Naused had in fact attended a union meeting on 7 June. Watkins asked how he felt about it. Naused replied it was good for some people but not for others, he was one of those it was not so good for, and he did not hear anything he liked. Wat- kins made no further comment. Watkins' version is that he did have a conversation about the Union with Naused about 8 June, and the fol- lowing occurred. Naused asked him what he thought about the Union. Watkins opined that they worked for a good enough company that they needed no union. Wat- kins denies telling Naused he had heard Naused was at a union meeting; denies asking how Naused felt about the Union; and denies telling Naused the Union would not be good for him. As I have earlier noted, Naused was a credible witness and his detailed version had the ring of truth. Watkins' testimony on this occurrence impressed me as an effort to neutralize Naused's testimony by admission of a con- versation, construction of a brief version in Watkins' favor, and then brief denials of the salient points of Naused's testimony. I did not believe Watkins' version when I heard it, and I do not believe it after reading it. Naused is credited, and I find Watkins violated Section 8(a)(1) of the Act by coercively interrogating Naused in the office about his union activity. This is not an example of questioning an open and well-known union activist why he is so active. This is a case of eliciting informa- tion to confirm a suspicion of union activity (attendance at the meeting) and to ascertain the degree of union sym- pathy (how Naused felt about it). This instance of inter- rogation, considered in context with surrounding circum- stances as Rossmore House22 instructs, did have a reason- able tendency to restrain, coerce, or interfere with .Naused's statutory rights. D. Conduct of Mark Stricklin Stricklin did not testify and the testimony of employ- ees regarding his statements is uncontroverted. Respond- ent urges no violations because Stricklin was neither a supervisor nor an agent; his statements were not on behalf of or approved by management; his comments were his own personal opinion; his allegiance was known by employees to be with the Union; and he was permit- ted to vote in the election. It is well settled that the acts of a supervisor are imputed to his employer under the principle of respondent superior, and Stricklin is both a su- pervisor and agent. Respondent made no effort to inform employees that it repudiated Stricklin's conduct and, to the extent the evidence may require a finding his state- ments violated the Act, Respondent is responsible for that conduct. Whether or not Stricklin made it clear to employees he was expressing his personal opinion has been considered in each instance discussed below. The evidence does not warrant Respondent's broad conclu- sion that "[the employees] . . . regarded him as the in- plant leader of the Union!!" All the record shows is that Stricklin at one time was active on behalf of the Union, but later ceased to be because he feared for his job, and thereafter made the statements in question. Voting a challenged ballot did not make Stricklin a supervisor in- cluded in the unit, but raised the question whether he was an eligible voter. I have found he was not. Respond- ent's reliance on Montgomery Ward,23 which deals with supervisors included in the unit by agreement of the par- ties and is therefore not applicable to this case, is mis- placed. The further argument that Respondent had no authority to restrict its leadmen's statements because 22 269 NLRB 1176 (1984) 23 Montgomery Ward Co, 115 NLRB 645, 647 (1956) IRON MOUNTAIN FORGE CORP. 265 such a restriction might violate leadmen 's Section 7 rights if they were found not to be supervisors does not impress me. I cannot and do not believe Respondent was not aware of the possible alternative finding of superviso- ry status at least as early as the representation hearing and decision in Case 14-RC-9880, both of which preced- ed the conduct of Stricklin considered herein . Yet Re- spondent took no steps to notify its employees that state- ments by leadmen did not reflect Respondent's position vis-a-vis the Union, which it might have done without affecting anyone's rights. The several incidents of Stricklin 's conduct at issue are as follows: 1. On 29 August employee Tim Lober asked Stricklin if he thought the Union would come in and what would happen if it did . Lober says that he posed these questions to Stricklin because everyone was talking about the Union and he wanted Stricklin's opinion. Stricklin re- plied that if the Union got in Respondent would prob- ably move to Arkansas where it had a building . The evi- dence indicates that Respondent has no facility or real property other than the location involved in this case. Stricklin apparently manufactured an Arkansas building 'in order to emphasize his prediction that Respondent would move if union organization were successful. Al- though there is no evidence Stricklin was particularly hostile when he answered Lober's question, and although his comments were elicited by Lober' rather than volun- teered, I am persuaded that his response, which Lober's request indicates had some weight with Lober , clearly advised that Respondent had another facility to which it could and probably would move if unionized , and cer- tainly had a reasonable tendency to intimidate and inter- fere with employees, specifically Lober, in the exercise of their Section 7 rights. Accordingly , I find that Strick- lin's comments conveyed a threat of plant removal in the event the employees selected the Union to represent them, and thereby violated Section 8(a)(1) of the Act. 2. Van Gunter, a current employee, credibly testified to a series of conversations with Stricklin on 6 and 7 September. On 6 September he told ' Stricklin it looked like the employees would have a union the following Friday and asked what Strlcklin thought about it. Strick- lin responded, "It's a money back guarantee, they'll close the plant because they have property in Arkansas and Mississippi, if the union gets in." Gunter said that he did not believe this. Gunter then went to the breakroom and was talking to employees "Richard and Don" [surnames not given] when Stricklin, who had evidently overheard their conversation, which I conclude from the circum- stances concerned Stricklin's previous remarks to Gunter, interjected, "That's light. It's a money back guarantee." The following day, 7 September, Gunter asked Strick- lin what made him think the plant would be closed. Stricklin replied that the Union would have unreasonable demands and before Terry Braxton would knuckle under to the Union, he would move the "facility because he had property in Arkansas or Mississippi . Stricklin added that Respondent was a young company and the Union would ruin it. In addition to the fact the Company has no prop- erty in Arkansas or Mississippi, there is no evidence to support Stricklin's hypothesis that the Union would make unreasonable demands nor is there any evidence, other than Stricklin's comments which are unreliable, that management had any plans to close the facility in case of unionization . On 7 September, Stricklin was not making a lawful prediction based on objective fact,24 but was violating Section 8(a)(1) by making an unlawful threat of plant removal in retaliation for employee sup- port of the Union . His comments on 6 September also violated Section 8(a)(1) of the Act because they threat- ened plant closure as a reply to union success. That Gunter may have doubted Stricklin's 6 September state- ments does not make them protected . The hearer's sub- jective response is not controlling . The test has long been whether the statements reasonably tend to coerce, restrain, or interfere with employees in the exercise of their Section 7 rights. Moreover, there is no evidence that the other two employees to whom Stricklin on 6 September guaranteed plant closure entertained any doubts of the accuracy of his remarks. 3. A couple of days before the election, probably 11 or 12 September, Stricklin told welder David Sales that the plant would be moved if the Union got in . This violated Section 8(a)(1) of the Act for the same reason similar statements previously made by Stricklin were unlawful. 4. On election day, 14 September, but before the elec- tion, Stricklin told David Sales that he had heard through his church that Terry Braxton's wife had' said that if the Union got in, the plant would be moved to Arkansas. About the same time, still before the election, Stricklin told welder Gary White that he had heard at church, through a secretary, that Terry Braxton's wife had told her that if the Union got in , the Company would move to Arkansas. The General Counsel contends these are threats of plant closure by Strlcklin . Stricklin's comments are obviously hearsay twice removed but that does not impair their , admissibility.25 On this evidence I cannot find that Stricklin's reports to Sales and White were truthful, but this is not dispositive of the complaint allegation. The question , as always, is whether Stricklin's statements, hearsay or not, had the requisite reasonable tendency to restrain, coerce, or interfere with employees' exercise of Section 7 rights. Given the timing of the statements on the very day of the election and the fact that Stricklin's hearsay report was given in a ,surrounding context of several prior threats of plant closure or relo- cation made to employees by Stricklin, and another made on 14 September, I am persuaded that his comments vio- lated Section 8(a)(1) of the Act. The hearers had no basis on which to doubt the accuracy of the hearsay reported. Delivered by the same person previously, threatening plant closure, its impact was thereby enhanced. The matter, is arguable, but I believe Stricklin 's statements to Sales and White, given on election day, would reason- ably tend to restrain them from making a free, uncoerced decision whether or not they, would vote that day for the Union as their representative. 24 See NLRB v Gzssel Packing Co, 395 U.S. 575, 618 (1969) 25 RJR Communications, 248 NLRB 920 (1980). 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. The Objection Union Objection 1 to the election, which is before me for hearing, alleges that the Employer threatened em- ployees with plant removal if the Union won the elec- tion. The petition for representation election in Case 14- RC-9880 was filed on 13 July 1984 and the election was held 14 September 1984. To be found objectionable the conduct complained of must occur between these two dates.26 On 29 August and 6, 7, 12, and 14 September, Respondent by its supervisor and agent Stricklin threat- ened employees with plant closure or removal if they se- lected the Union as their representative. These threats have been found violative of Section 8(a)(1) of the Act. They, a fortiori, also constitute objectionable conduct.27 Objection 1 is sustained. On the foregoing findings of fact and conclusions based thereon, and on the record as a whole, I make the following CONCLUSIONS OF LAW 1. The Respondent, Iron Mountain Forge Corp., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 574, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. The following unit constitutes a unit appropriate for collective bargaining: All production and maintenance employees em- ployed by the Employer at its Farmington, Missouri facility, EXCLUDING office clerical and profes- sional employees, guards, and supervisors as defined in the Act. 4. Shirley Bowen, Brad Bayless, Paul Usher II, and Raymond Watkins were eligible voters in Case 14-RC- 9880 at times material, and their ballots cast 14 Septem- ber 1984 are valid. 5. Allen Bayless, Stephen Gibson, Randy Grogan, Roger Smith, Mark Stricklin, and Tony Walker were su- pervisors within the meaning of Section 2(11) of the Act, and agents of Respondent at all times material to this case. 6. By coercively interrogating employees about their union activities, Respondent violated Section 8(a)(1) of the Act. 7. By creating an impression of surveillance of employ- ees' union activities, Respondent violated Section 8(a)(1) of the Act. 8. By threatening employees with reduced wages, harsher working conditions, and plant closure or reloca- tion if they selected the Union to represent them, Re- spondent violated Section 8(a)(1) of the Act. 26 Ideal Electric Co., 134 NLRB 1275 (1961), Goodyear Tire Co, 138 NLRB 453 (1962) 27 Dal-Tex Optical Co, 137 NLRB 1782, 1786 (1962). 9. The unfair labor practices set forth above affect commerce within the meaning of Section 2(6) and (7) of the Act. 10. Respondent has not committed any other unfair labor practices alleged in the complaint. 11. The Union's Objection 1 to the election held in Case 14-RC-9880 on 14 September 1984 is sustained. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed28 ORDER The Respondent, Iron Mountain Forge Corp., Farm- ington, Missouri, its agents, officers, successors, and as- signs, shall 1. Cease and desist from (a) Coercively interrogating employees concerning their union activities and desires. (b) Creating an impression that employees' union ac- tivities are under surveillance. (c) Threatening employees with reduced wages, harsh- er working conditions, or plant closure or removal be- cause they engaged in union activities. (d) In any like or, related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its premises at Farmington, Missouri, copies of the attached notice marked "Appendix."29 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that Case 14-RC-9880 be severed and transferred to and continued before the Board in Washington, D.C. IT IS ALSO FURTHER RECOMMENDED that the chal- lenges to the ballots of Allen Bayless, Stephen Gibson, Randy Grogan, Roger Smith, Mark Stricklin, and Tony Walker be sustained; the challenges to the ballots of Brad Bayless, Shirley Bowen, Paul Usher II, and Raymond Watkins be overruled but that their ballots not be opened and counted because they are not determinative of the 28 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 29 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " IRON MOUNTAIN FORGE CORP. 267 results of the election; Union's Objection 1 be sustained, but the election of 14 September 1984 not be set aside; and an appropriate Certification of Representative be issued by the Board to Teamsters, Chauffeurs, Ware- housemen and Helpers Local Union No. 574, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America for the ap- propriate collective-bargaining unit set forth above. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten you with reduced wages, harsher working conditions, or plant removal or closure because you support Teamsters, Chauffeurs, Warehousemen and Helpers , Local Union No. 574, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. IRON MOUNTAIN FORGE CORP. WE WILL NOT coercively interrogate you about your union support or union activities. WE WILL NOT create the impression of surveil- lance of your union activities by informing you that we know which employees are involved in union activities.