Quality Aluminum Products, Inc.

338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Quality Aluminum Products, Inc. and General Driv- ers, Warehousemen and Helpers Local Union No. 89, affiliated with the International Broth- erhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America . Cases 9-CA- 19005-1, --2, 9-CA-19158-1, -2, and 9-CA- 19434 31 January 1986 ' DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS, JOHANSEN, BABSON, AND STEPHENS On 28 March 1984 Administrative Law Judge Russell M. King Jr. issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The Board has considered the decision in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions, as modified,2 and to adopt the recommended Order as modified. 3 The judge found, and we agree, that the Re- spondent violated Section 8(a)(3) and (1) of the Act by laying off six employees because of their union activities, and Section 8(a)(1); by threatening em- ployees with discharge for wearing union buttons, threatening employees with plant closure, and cre- ating the impression of surveillance of union activi- ties. The judge also found that the Respondent vio- lated Section 8(a)(5) and (1) by refusing to recog- nize and bargain with the Union on the basis of a card majority, and recommended that the Board issue a Gissel4 bargaining order. We agree with the judge that such an order is appropriate, but we do not rely on his reasoning. The judge found that on 22 November 1982 em- ployees Ronald Caffee, Donna Crouch, and Edna ' 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 proponderance 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 Cit. 1951). We have carefully examined the record and find no basis for reversing the fmdmgs In fn 12 of his decision, the judge erroneously reported the citation to NLRB v. Gissel Packing Co, 395 U.S. 575 ( 1969) We correct the error 2 We do not rely on fn 14 of the judge's decision, in which he stated his "initial impressions" about whether employees Brown and Hutchinson should be included in the unit , having previously found it unnecessary to resolve their status 3 We shall issue an amended remedy and modify the recommended Order to delete the requirement that the Respondent offer reinstatement to Ronald Caffee, Donna Jean Crouch, Gary Wayne Marshall, Gregory John Burden, and Lydia Houchens , because the record shows that Caffee, Crouch, Marshall, and Houchens have been offered reinstatement to their former positions and have returned to work, and Burden was of- fered reinstatement but declined the offer We shall also issue a new notice to employees 4 NLRB v Gissel Packing Co, 395 U S 575 (1969). Thompson picked up union authorization cards from the union hall. Nine employees signed cards 22 November and two 24 November. On 23 No- vember seven employees attended a union meeting. On 24 November most of the employees who signed cards wore union buttons to work. On 24 November Warehouse Supervisor Charles Fox stated to employee Garland Brown that "these mother-wouldn't be wearing them buttons if it wasn't for that bitch back there in the back." Brown testified that Fox was referring to Donna Crouch. Approximately an hour later Fox told Brown that the employees "were fools for signing those union cards." The Respondent laid off Brown at the end of the day. Also on 24 November employees Gary Marshall, Gary Chamberlain, and Daryl Lemons were in the warehouse when Fox told Lemons that "if he didn't want to jeopardize his job, he'd better take the buttons off." Fox told Marshall that "they'd close the doors, they'd change the name or some- thing like that, if the union did try to come in." When Marshall told Fox he did not think that was possible, Fox said, "Well, now I don't believe it'll get in here . . . I just think that-I believe they'd close the door first." Fox also told Marshall "that he knew that everybody-who-the ones that signed it." Employee Caffee heard Fox tell Cham- berlain and Marshall on 24 November that "if the union came through, he [Fox] heard they was going to shut the doors down." Donna Crouch picked up union cards 22 No- vember and passed them out to other employees. Crouch signed a card and attended the union meet- ing 23 November. She wore two union buttons 24 November and was laid off that day. Garland Brown Jr. signed a union card 22 No- vember, attended the 23 November union meeting, and wore two union buttons 24 November when he was laid off. On 24 November Gregory Burden signed a union card, wore a union button, and was laid off. Ronald Caffee picked up union cards on 22 No- vember and passed some out to other employees. He attended the 23 November meeting and wore a union button 24 November. He was laid off 29 No- vember. Gary Marshall attended the union meeting 23 November and wore a union button. He signed a card 24 November. On 24 November Company President O'Neil observed Marshall leaving the plant with laid-off employees Crouch and Brown. He was laid off 29 November. Lydia Houchens signed a card 22 November, at- tended the 23 November union meeting, and wore 278 NLRB No. 49 QUALITY ALUMINUM PRODUCTS 339 a union button 24 November. She .,was laid off 1 December. On 24 November there were approximately 17- 19 employees in the unit, of whom 10 or 11 had signed cards.5 The Respondent's violations were extensive in number and pervasive in terms of the number of bargaining unit employees they affected. The un- lawful layoffs and threats of job loss and plant clo- sure are highly coercive violations directed against employees working in a small unit (17-19 employ- ees). The Respondent unlawfully laid off 6 of 18 or 19 or 5 of 17 or 18 unit employees (approximately 30 percent of the unit). Three employees (Marshall, Chamberlain, and Lemons) heard the supervisor threaten job loss. Three employees (Marshall, Chamberlain, and Caffee) also heard the threat of plant closure. Of the employees who heard the threats, two (Chamberlain and Lemons) were not laid off. Thus, the Respondent's violations directly affected 8 of 18 or 19 or 7 of 17 or 18 unit employ- ees (approximately 41 percent). The threat of job loss, immediately followed by layoffs, demonstrated to a substantial proportion of unit employees the Respondent's willingness to carry out its threats. The swiftness and timing of the unfair labor practices (occurring the day the employees first openly showed their union support) demonstrated that the penalty for union support would be severe. Employee Houchens testified that, as a result of the layoffs the, previous week, the employees stopped wearing union buttons on 29 November. In determining whether a bargaining order is ap- propriate, in addition to examining the severity of the violations committed, the Board also examines the present effects of the coercive unfair labor practices. In the instant case, we find that the seri- ousness and pervasiveness of the violations had a lingering coercive 'impact on the employees in this small unit that would not be dissipated by the offers of reinstatement made approximately 4 to 7 months after the layoffs. Thus, four of the six laid- off employees are currently working in the unit, as well as one of the two other employees who heard the threats but were not laid off. It is reasonable to assume that the four employees, once having been 5 The judge found it unnecessary to pass on whether employees Brown and Hutchinson should be included in the unit. If both employees are included in the unit, then '6 of 19 unit employees were discriminatori- ly laid off. If both employees are excluded from the unit, then 5 of 17 unit employees were laid off. We find it unnecessary to pass on the status of Brown and Hutchinson because, for purposes of determining the impact of the violations in assessing the propriety of a bargaining order, the proportion of laid-off employees to unit employees is approximately the same (about 30 percent) whether or not they are included in the unit If Brown is included in the unit, 11 employees signed cards, if not, 10 did laid .off for their union activities, would be "pain- fully aware that future support -of a union could lead to the same end .'16 This is particularly true in the case before us in which the seasonal nature of the Respondent's business renders additional' layoffs probable. The Respondent attempted, and' is still at- tempting, to disguise its discrimination against one- third of the unit as a "seasonal" layoff. With future seasonal layoffs likely, the Respondent's employees have reason to fear a recurrence of a similar at- tempt. The Respondent's union animus was demonstrat- ed by its supervisor's threats of job loss and plant closure made immediately on his becoming aware of the employees' union activity. Since the same supervisor is also responsible for selecting which warehouse employees are to be laid' off each winter, it is likely that the employees would hesi- tate before renewing their organizational drive. There is no evidence that the Respondent has told employees that it disavows the supervisor's threats, and there has been no change in management. There is no indication of any change in policy. Thus, the employees may reasonably expect that the Respondent may again resort to illegal means to defeat union representation.7 The -Respondent's union animus and the lengths to which it was ' will- ing to go to thwart unionization remain obvious to the employees. Because of the swiftness and severi- ty of the Respondent's retaliation against union or- ganizers and supporters, it is unlikely that employ- ees' would again be readily willing to jeopardize their employment by openly supporting the Union, Under such circumstances, we believe that the threat of future layoffs will tend to continue to un- dermine' majority support and prevent holding a fair election. As this arises in the Sixth Circuit Court of Ap- peals, we note that the Sixth Circuit, in enforcing the Board's bargaining order in Exchange Bank, supra at 63, recognized that a cease-and-desist order is not always sufficient to remedy an employ- er's unfair labor practices. The court quoted Gissel, 395 U.S. at 612, as follows: If an employer has succeeded in undermining a union's strength and destroying the laboratory conditions necessary for a fair election, he may see no need to violate a cease-and-desist order by further unlawful activity. The damage, will have been done, and perhaps the only fair way to effectuate employee rights is to re-establish 6 Exchange Bank, 264 NLRB 822, 824 fn. 14 (1982), enfd. 732 F.2d 60 (6th Cir. 1984). 7 Captain Nemo's, 258 NLRB 537, 555 (1981), enfd. 715 F.2d 237 (6th Cir 1983) 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the conditions as they existed before the em- ployer's unlawful campaign. We believe that, under the circumstances of the instant case, simply requiring the Respondent to re- frain from unlawful conduct will not eradicate the lingering effects of the hallmark violations, and will not deter their recurrence. The Respondent contends that a bargaining order is not justified in the instant case because the layoffs were temporary (the employees were re- called between 4 and 7 months after the layoffs). The Respondent also argues that the supervisor who made the threats was a friend of one of the employees who heard the remarks and thus no threatening atmosphere resulted. We have previ- ously, discussed the impact of the layoffs. With regard to the second contention, it is well settled that the test of interference, restraint, and coercion under the Act does not turn on the Respondent's motive. Hanes Hosiery, 219 NLRB 338 (1975). We are mindful that almost 3 years have passed since the Respondent engaged in its unlawful con- duct. When we consider, however, the serious nature of the conduct which consisted of threats of discharge and plant closure, discriminatory layoff of one-third of the unit, and creation of the impres- sion of surveillance, we are convinced that the last- ing effects of such conduct cannot easily be eradi- cated by the mere passage of time." The passage of time, though regrettable, is unavoidable, and is not a sufficient basis for denying the bargaining order. We believe that on balance, in light of the viola- tions' seriousness and pervasiveness, the unit's small size, the substantial percentage of unit employees the Respondent's threats and layoffs directly affect- ed, the majority of whom are still employed at the Respondent's facility, and the strong possibility of repetition of similar unfair labor practices because of the seasonal nature of the Respondent's business, the equities in this case favor the issuance of a bar- gaining order.9 Under the circumstances, we find 8 Exchange Bank, supra at 824 9 Member Dennis agrees that a bargaining order is an appropriate remedy under NLRB v. Gissel Packing Co., supra, for the following rea- sons. See her concurring opinion in Regency Manor Nursing Home, 275 NLRB 1261 (1985), In the instant case, the Respondent committed extensive "hallmark" violations, consisting of the layoff of six employees, and threats of plant closure and discharge. See NLRB v. Jamaica Towing, 632 F.2d 208 (2d Cir. 1980). In a unit of 17-19 employees, 7 or 8 employees ( approximate- ly 41 percent) were directly affected by, these highly coercive unfair labor practices In view of the unit's small size, the layoff of one-third of the, unit was likely to have a profound impact on all employees Horizon Air Services, 761 F.2d 22 (1st Cir 1985), NLRB v. Solboro Knitting Mills, 572 F.2d 936, 944 (2d Cir. 1978), cert. denied 439 U S. 864 (1978) The Respondent's pervasive hallmark violations justify a bargaining order, absent significant mitigating circumstances . There had been some turnover in the unit at the time of the hearing Thus, there were approxi- mately six new employees in the warehouse department . However, five employees directly affected by the Respondent's hallmark violations were that the unfair labor practices involved in this case would tend to undermine the Union's majority status and impede the election process. We con- clude that "the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee senti- ment once expressed through cards would, on bal- ance, be better protected by a bargaining order." 10 REMEDY Having found that the Respondent has violated Section 8(a)(1), (3), and (5), we shall order it to cease and desist and to take certain 'affirmative action designed to effectuate the policies of the Act. The Respondent has already offered Gregory Burden, Donna Crouch, Ronald Caffee, Gary Mar- shall, and Lydia Houchens reinstatement to their former positions. Crouch, Caffee, Marshall, and Houchens have returned to work. Burden declined his offer of reinstatement. Accordingly, we shall order the Respondent to offer only Garland Brown Jr. immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniori- ty or other rights and privileges previously en- joyed. We shall also order the Respondent to make whole all six employees for any loss of earnings and other benefits they may have suffered as a result of the discrimination against them, by paying them an amount equal to that they would have earned from their layoff dates to the dates of their reinstatement or offer of reinstatement, less net in- terim earnings, if any, with backpay and interest as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). The Re- spondent may offer evidence at the compliance stage to prove that any of the six laid-off employ- ees would have been legitimately laid off subse- quent to their discriminatory layoff, in mitigation of backpay due under the terms of this Decision and Order. still working in the unit at the time of the hearing Member Dennis does not consider such turnover significant in light of the continuing presence in the unit of a number of employees directly affected by the hallmark violations The 3-year passage of time between the events of this case and our decision is unfortunate but insufficient to deny a bargaining order. NLRB v. Pacific Southwest Airlines, 550 F 2d 1148, 1153 (9th Cir. 1977); Exchange Bank, 264 NLRB 822, 824 fn. 13 (1982), enfd. 732 F 2d 60 (6th Cir 1984). Accordingly, Member Dennis joins her colleagues in issuing a bargaining order. 10 Gissel, 395 U.S. at 614-615 QUALITY ALUMINUM PRODUCTS Having found that the Respondent violated Sec- tion 8(a)(5) and (1) of the Act as of 24 November 1982, we shall order it to cease and desist and to recognize and bargain on request with the Union as the exclusive bargaining representative of the unit employees. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Quality Aluminum Products, Inc., Louis- ville, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). "(a) Offer Garland Brown Jr. immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed." 2. Insert the following as paragraph 2(b) and re- letter the subsequent paragraphs. "(b) Make Ronald Caffee, Donna Crouch, Gary Marshall, Gregory Burden, Garland Brown Jr., and Lydia Houchens 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." 3. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 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. WE WILL NOT lay off or otherwise discriminate against any of you for supporting General Drivers, Warehousemen and Helpers Local Union No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other union. WE WILL NOT create in your minds the impres- sion that your union activities and the union activi- ties of other employees are the subject of company surveillance. WE WILL NOT threaten to discharge you because of your union support or activities. WE WILL NOT threaten you with closure of the Louisville, Kentucky facility if you engage in union support or activity. 341 WE WILL NOT refuse to bargain with the Union as the exclusive representative of the employees in the bargaining unit. 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 Garland Brown Jr. immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. WE WILL make Ronald Caffee, Donna Jean Crouch, Gary Wayne Marshall, Gregory John Burden, Garland Brown Jr., and Lydia Houchens whole for any loss of earnings and other benefits resulting from the discrimination against them, less any net interim earnings, plus interest. WE WILL recognize and, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of em- ployment for our employees in the bargaining unit: All production, maintenance, warehouse, and truck driving employees employed at our Lou- isville,. Kentucky facility; but excluding all office clerical, professional, and all other em- ployees, and all guards and supervisors as de- fined in the Act. QUALITY ALUMINUM PRODUCTS, INC. Deborah Jacobson, Esq., and Jack Baker, Esq., for the General Counsel. Joseph A. Worthington, Esq., and W. Kevin Smith, Esq. (Smith & Smith), of Louisville, Kentucky, for the Re- spondent. Ralph H. Logan, Esq., of Louisville, Kentucky, for the Charging Party. DECISION STATEMENT OF THE CASE RUSSELL M. KING JR., Administrative Law Judge. These consolidated cases were heard by me in Louisville, Kentucky, on June 13-15, 1983. The charges in the vari- ous cases were filed by the Charging Party (the Union) on various dates in December 1982 and January and March 1983. The consolidated compalint was issued on April 18, 1983, by the Regional Director for Region 9 of the National Labor Relations Board (the Board) on behalf of the Board's General Counsel.2 The complaint ' The charges in Cases 9-CA-19005-1 and 9-CA-19005-2 were filed by the Union on December 2, 1982, the charge in Case 9-CA-19158-1 was filed on January 10, 1983, the charge in Case 9-CA-19158-2 was filed on January 17, 1983, and the charge in Case 9-CA-19434 was filed on March 14, 1983 2 The term "General Counsel," when used herein, will normally refer to the attorneys in the case acting on behalf of the General Counsel of the Board through the Regional Director 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alleges that the Respondent (the Company) violated Sec- tion 8(a)(1) of the National Labor Relations Act (the Act) in late November 1982 by threatening employees with discharge and plant closure for engaging in union activities and by giving the impression of surveillance of such activities.3 The' complaint further alleges the unlaw- ful and discriminatory layoff of six employees in late No- vember and early December because of their union ac- tivities, in violation of Section 8(a)(1) and (3) of the Act. Lastly, the complaint alleges that the Company refused to recognize and bargain with the Union after it had ob- tained a union authorization card majority from the ap- propriate unit of employees involved, in violation of Sec- tion 8(a)(1) and (5) of the Act.4 On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel, counsel for the Company, and counsel for the Union, I make the follow- ing5 FINDINGS OF FACT 1. JURISDICTION The pleadings and admissions filed and made herein reflect the following facts regarding jurisdiction. At all times material herein, the Company has been a Kentucky corporation with an office and place of business or plant in Louisville, Kentucky, where it has been engaged in the manufacture and sale of aluminum doors and win- dows. The Company operates several other facilities, but the Louisville plant is the only facility involved in this case. During the 12-month period immediately preceding the issuance of the complaint herein, the Company in the course and conduct of its business operations sold and shipped from its Louisville, Kentucky plant products, goods, and materials valued in excess of $50,000 directly to points outside the State of Kentucky. Thus I find, as 3 All dates are in 1982 unless otherwise stated The original complaint contained two such allegations, occurring on November 24 and 28 By amendment during the hearing, two additional and similar allegations were added to the complaint, both occurring on November 24. 4 The pertinent parts of the Act (29 U.S C. § 151 et seq.) are as fol- lows Sec. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection Sec. 8. (a) It shall be an unfair labor practice for an employer- 55(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 . . (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor or- ganization . . (5) to refuse to bargain collectively with the repre- sentatives of his employees . 5 The facts found herein are based on the record as a whole and on my observation of the witnesses The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits with due regard for the logic of probability, the demeanor of the witnesses, and the' teaching of NLRB v. Walton Mfg. Co',; 369 U S. 404, 408 (1962) As to those testifying in contradiction of the findings herein their testimo- ny has been discredited either as having been in conflict with the testimo- ny of credible witnesses or because it was in and of itself incredible and unworthy of belief All testimony and evidence, regardless of whether or not mentioned or alluded to herein, , has been reviewed and weighed in light of the entire record alleged and admitted herein, that the Company is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Further, and as alleged and admitted herein, I find that the Union is now and has been at all times material herein a labor organization within the meaning of Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background The unit of employees involved in this case contains the production, maintenance, warehouse, and truck driv- ing employees at the Company's plant. On November 22 employees Ronald Caffee, Donna Crouch, and Edna Thompson went to the Union's headquarters or meeting hall during their lunch break at the plant and obtained a number of union authorization cards. At that time there were some 19 employees in the unit. On that date at least nine employees signed union authorization cards, and at least two more cards were signed on November 24. On November 23, seven employees attended a meeting at the union hall and apparently obtained union buttons. The following morning (November 24) most of or all employ- ees who had signed union authorization cards appeared for work at the plant wearing union buttons. At the end of the workday on November 24, three of the union sup- porters were laid off. The following day (November 25) was Thursday, Thanksgiving Day, and the employees had that day off and also Friday, November 26. Novem- ber 29, the following Monday, two other union support- ers were laid off and another one was laid off on Decem- ber 1. Also on November 24, the Union wrote a letter, to the Company stating that "[y]our employees have volun- tarily joined" the Union, and requested recognition as the exclusive bargaining representative of the employees. Thereafter the Company refused to so recognize the Union, which then filed a petition for representation (Case 9-RC-14186). On December 22, the Company and the Union entered into a Stipulation for Certification upon Consent Election in Case 9-RC-14186 and on Jan- uary 18, 1983, a Board-conducted election was held at the Company's plants Most, if not all of the employees who were laid off were later reinstated after what the Company described as the winter slump in business. It was stipulated by the parties in this case that the Compa- ny "is engaged in seasonal business and has had layoffs in prior years." The Company contends that the employees were laid off in the normal routine of a seasonal slack in business,, and further argues that the Company's business over the past year or so had fallen off significantly be- cause of the economic conditions then prevailing. The General Counsel argues that the layoffs were prompted by the activities of those employees in support of the Union. 6 After the election, objections to the conduct of the election were filed, and, at the time of the hearing in this case, those objections were pending before the Regional Director. QUALITY ALUMINUM PRODUCTS 343 B. Plant Organization The Company was owned by its president and sole stockholder James O'Neil. O'Neil's primary duties in- volved the purchasing of the raw materials used at the plant and the selling of finished products to contractors and distributors. He was not involved in the day-to-day operations at the plant, but was present on November 24. Responsibility for the day-to-day operations at the plant was vested in the Company's vice president Ed Cochran, who was not present on November 24 and was on vaca- tion from November 24 to December 5. The plant was divided into two operations which included the produc- tion department and the warehouse operation. Sandra Young, whose last name was Hamm at the time the com- plaint was issued, was the supervisor of the production department. She also was not present on November 24 and returned from her vacation on November 29. Peggy Hutchinson assisted Young in the production department. There is a dispute in this case as to whether or not Hutchinson was a supervisor within the meaning of the Act. Hutchinson testified that she was hired as an assist- ant foreman but that in reality she acted as a floating em- ployee in the production department, helping to insure that work kept moving. Hutchinson was present on No- vember 24. The warehouse operation was supervised by Charles Fox, who was also present on November 24. The Company made no retail sales and, as indicated ear- lier, the Company's business was somewhat seasonal with its slack period during the winter months. C. The Alleged Threats and Surveillance Paragraph 5 of the consolidated and amended com- plaint alleges that Supervisor Charles Fox violated Sec- tion 8(a)(1) of the Act in four separate incidents, three on November 24 and one on November 28. In his testimo- ny, Fox generally denies all of the alleged unlawful re- marks or threats. In support of these allegations in the complaint, the General Counsel relies on the testimony of employees Garland Brown, Ronald Caffee, and Gary Marshall. When these three employees reported for work on November 24 at approximately 7 a.m. they, along with most other union supporters, were wearing union buttons. In fact, Brown wore two such buttons. When Fox saw that the employees were wearing union buttons early in the morning of November 24, he immediately re- ported this fact to O'Neil, who, according to Fox, in- structed him not to say anything about the Union. Employee Garland Brown testified as to several con- versations he had with Fox. Only the two were present and according to Brown the first conversation took place at approximately noon on November 24 when Fox stated that "these mother___ wouldn't be wearing them but- tons if it wasn't for that bitch back there in the back." Brown indicated that Fox was referring to employee Donna Crouch. Brown related that the second conversa- tion took place approximately 1 hour later in his work area when Fox told him that "[the employees] were fools for signing those union cards." Brown was laid off by Fox at quitting time that day at 3:30 p.m. Employee Gary Marshall testified that he and employees Gary Chamberlain and Daryl Lemons were standing together in the warehouse when he overheard Supervisor Fox tell Lemons that "if he didn't want to jeopardize his job, he'd better take the buttons off." Lemons did not testify in the case. Marshall further testified that "later on that week" and in the gutter department where he worked, he and Fox were discussing the Union and Fox stated that "they'd close the doors, they'd change the name or something like that, if the union did try to come in." Marshall indicated that he told Fox he did not think that was possible and Fox replied, "Well, now I don't believe it'll get in here . . . I just think that-I believe they'd close the door first." Marshall testified that he and Fox were good friends and that they talked at work "all the time." Further and, according to Marshall, "sometime during [the] week, when the cards was [sic] signed," Fox told him "that he knew that everyone-who-the ones that signed it," referring to union authorization cards. Employee Ronald Caffee testified that he overheard some of the conversation between Fox, Chamberlain, and Marshall in the gutter room on November 24, when he was walking by to get some materials. Specifically, Caffee testified that he heard Fox state at that time that "if the union came through, that he [Fox] heard they was going to shut the doors down." Marshall mentioned nothing of this remark having been made at that particu- lar time in the gutter room and, as indicated earlier, places this remark by Fox generally sometime during the week. In defense of the alleged remarks by Fox, the Compa- ny relies on Fox's general denial and on the testimony of employee Gary Chamberlain. Chamberlain had been em- ployed since July 1980 and worked in the warehouse under Supervisor Fox. Chamberlain was admittedly against the Union and indicated that he had never been laid off since his employment commenced. Chamberlain testified that on November 24 at approximately 7 a.m. and while the two were near the timeclock, he warned employee Marshall by stating to him that "you've got a wife, a baby and one on the way, and what do you want a union in here for, you'll be burning wood in a barrel out front, next month." Chamberlain related that he later heard employee Marshall attribute these remarks to Fox and that he "wanted to clear [his] supervisor," and thus came forward voluntarily to testify in the case. Marshall, as earlier indicated, places the remarks by Fox in the gutter room later on in the day at approximately noon. In my opinion, the testimony of employee Chamber- lain does nothing to disprove Fox's remarks as related by Marshall, Brown, and Caffee. Chamberlain may well have made his claimed remarks to Marshall in the time- clock area about 7 a.m. on NOvember 24. However, Marshall's testimony was, definite and straightforward in placing Fox's remarks about noon in the gutter room. The testimony of employee Ronald Caffee also corrobo- rates the fact that Fox's statement to Lemons, in the presence of Marshall and Chamberlain, occurred in the gutter room later on in the day. Further, Chamberlain's recount of his conversation with Marshall early in the morning did not include the presence of Fox. Regarding the alleged improper remarks by Fox, I credit the testi- mony of Brown, Marshall, and Caffee over that of Fox. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brown's demeanor reflected that he was a proud man and, while testifying, he appeared in obvious discomfort. Whether this discomfort was attributable to Brown's on- the-job injury which necessitated the receipt of fight duty at the plant, or because of the somewhat distasteful business of testifying under oath, was not readily appar- ent at the hearing. However, in my opinon, Brown's ve- racity was obvious and definite . Employee Marshall's de- meanor was that of a tall and somewhat quiet individual, but also proud and truthful . Although Marshall was un- certain as to the exact date during the week on which Fox indicated -that the Company would close its doors if the Union came in, in my opinion this uncertainty did not distract from his honest certainty that the remark was indeed made. Employee Ronald Caffee was relative- ly young in age but displayed a certain honest nervous- ness during his testimony which also led me to conclude that he was truthful . Supervisor Fox on the other hand had been the warehouse foreman for approximately 2-1/2 years and, although fairly young and also somewhat soft spoken, the matter-of-fact manner of his testimony in de- fense of himself and the Company and his overall de- meanor led me to conclude that his veracity was lacking in promptly and summarily denying the damaging re- marks which he was alleged to have made . These denials came in rapid fire "No" answers to the rapid fire ques- tions of counsel put in question form as to whether or not he made such remarks. Although one cannot fault the fact that he was a "company man," I conclude that Fox's desire to maintain his job and his supervisory posi- tion clouded his ability to be completely truthful 'in his testimony. I thus find that the remarks attributable to Fox by Brown and Marshall on November 24 were in fact made and that they in fact constituted unlawful threats of dis- charge for engaging in proper and lawful support of the Union. I also find that the remarks constituted an unlaw- ful threat of plant closure because of union activity and also implied that the Company was keeping the employ- ees' union activities under surveillance. I find further that Fox's remark to Marshall about the Company closing its doors if the Union came in was also made on November 24 as alleged in the complaint, and not on November 28, and although Marshall was somewhat uncertain as to the date I am convinced that the remark was made. Accord- ingly, I find and -conclude that the Company, through Supervisor Fox, violated Section 8 (a)(1) of the Act as al- leged in paragraph 5 of the consolidated and amended complaint. D. The Economic Situation of the Company and the Seasonal Nature of the Business The Company maintained three facilities located in In- dianapolis, Indiana, Lexington, Kentucky, and Louisville, Kentucky, the facility directly involved in this case. The testimony primarily from the Company's president James B. O'Neil and the Company's CPA William P. Schmitz, together with the financial data and documents admitted through Schmitz, reveals that the Company's financial posture was poor and that it had deteriorated significant- ly over the past several years. ' This deterioration ap- peared to be the direct result of existing economic condi- tions which resulted in significantly fewer orders and mounting bad debts, many of which were clearly uncol- lectible. The Company's fiscal year ends February 28 and, as an example of the deterioration in business, sales for the Louisville facility in fiscal year 1979 amounted to approximately $4,200,000, but for fiscal year 1982 sales for the Louisville facility dropped to $2,400,000. For the fiscal year 1982, there was some $447,000 in bad debts written off for all three facilities, the majority of which were attributable to the Louisville facility. In January 1982, O'Neil took himself off of the Company's payroll and, from that time forward to the date of the hearing, he had not drawn any salary from the Company. Also during 1982 O'Neil liquidated his personal retirement ac- count in the amount of $88,000 and poured it into the business, contrary to the firm advice of accountant Schmitz., He also sold his personal residence and poured those funds into the Company. The Company also sup- plied materials to several contractors who were involved with construction and remodeling work at Fort Knox, Kentucky, and sometime in October or November 1982 Government funds apparently ran out for these projects and orders were either canceled or ceased. It would be fair and accurate to say that if there was a fall peak in the Company's business it came in October and Novem- ber 1982, dropping off sharply in December through at least -March 1983. The Company produced windows, awnings, shutters, doors, and gutters. An exception to this so-called fall peak in business can be found in gut- ters, dropping from 13,822 feet in September to 7397 feet in November. As indicated earlier, the parties stipulated that the Company's business was seasonal and that there were seasonal layoffs. The evidence in the case indicates that the slack period was from December through at least March. E. The Layoffs The Company argues in this case that the layoffs were for seasonal and economic reasons and that each individ- ual who was laid off was chosen over others for various specific reasons, including ability, the amount of work to be done in the production department, and the need for a particular job to be handled by a specific employee. Se- niority was not the controlling factor. The General Counsel argues that the employees were laid off because of their union support and activities. Three employees were laid off at the end of the work- day on November 24, the day on which the union but- tons first appeared . They were Donna Crouch, Garland Brown Jr., and Greg Burden. Crouch began working for the Company in July 1979 . She quit 10 months later but came back November 1, 1980. She was laid off January to April 1982. She also attended the November union meeting. Crouch worked in the production department and indicated she received her instructions from Peggy Hutchinson, who sometimes worked along with her. Crouch testified that she could make 10 - to 15 "stock" doors per day whereas employee Ron Caffee could build only 5 or 6 per day. Crouch added that at the time she was laid off they were busy in doors and the stock in doors was down. It was Crouch, along with employees QUALITY ALUMINUM PRODUCTS 345 Edna Thompson and Ron Caffee,'who picked up union authorization cards during their lunchbreak on Novem- ber 22. Back at the plant, Crouch passed out some five union authorization cards which were either signed in her presence or later signed in the presence of other em- ployees.7 On the morning of November 24 Crouch came to work wearing two union buttons, and, referring to Crouch, Supervisor Fox later in the day made a dispar- aging remark to employee Garland Brown, indicating that she was a "bitch" for handing out union buttons. It was Fox who laid Crouch off. The Company's vice president, John Edward Cochran, left for his vacation on November 24 and returned December 6. Cochran testi- fled that prior to leaving he told his supervisors , appar- ently referring to Fox and Peggy Hutchinson , who was Supervisor Young's assistant, to start laying off employ- ees as things had really gotten bad. Cochran testified that the son of the Company's president O'Neil was also sub- sequently laid off. Cochran further testified that during the winter months, production is built back up at the, plant. The production department's supervisor Sandra Young was not present at the plant on November 24, and testified that she and Peggy Hutchinson would get together about lay off and that she made the decision to lay off Crouch on November 19 and so instructed Hutchinson to effectuate the layoff on November 24. Young indicated that she decides who and how many to lay off based on which section in her production depart- ment is slow, and on performance, usually on the recom- mendation of Peggy Hutchinson. According to Young, Peggy Hutchinson called her at home on November 24 about the union buttons, explaining that Crouch had brought in union buttons to the plant . According to Young, Hutchinson wanted to know whether, in light of this activity, she should go ahead and lay off Crouch, and Young indicated that she should lay her off as planned. Hutchinson testified that , in fact she did lay off Crouch, at the instruction of Young, and also verified that she called Young at home and asked Young whether she should go ahead and lay off Crouch in light of the fact that she brought in union buttons into the plant. Hu- chinson 'testified that she was Young 's "assistant," and not an assistant foreman, although she does not punch the timeclock and thus is a salaried employee as opposed to all other production employees. According to Hutch- inson, the plant was caught up on doors by November 24. Employee Garland Brown Jr. was laid off November 24 by Fox, the warehouse foreman or supervisor. Brown first went to work for the Company in August 1981 but was injured on the job in October 1981 and returned to work in May 1982, working on the gate and doing odd jobs that required light duty. Brown testified that during the first week of November ' he heard rumors in the plant of seasonal layoffs and that' he asked Fox, in Vice Presi- dent Cochran's presence, if he would be 'laid off and that Fox replied that he would not be laid off because they 7 All six of the employees who were laid off had signed union cards and in addition six other employees also signed union cards either on No- vember 22 or on November 24 The card of employee Cathy Thixton was subsequently lost were short. Fox's version of the incident is somewhat different. Fox testified that on the contrary, he had warned Brown the week before his layoff that he would have no choice but to lay Brown off because he could not work in the warehouse due to his injury. Fox also testified that the son of Vice President Cochran was also laid off on November 1 for lack of work and added that Cochran, before he went on vacation, had told him to think about who he was going to lay off. Cochran testi- fied he actually gave instructions to lay off employees. According to Fox, in addition to Brown's physical dis- ability, he was somewhat odd in that he would catch flies and put them into his mouth. Fox related that during the period of the layoffs, suppliers to the Compa- ny were hesitant in shipping materials because of over- due bills. Brown signed his union authorization card on November 22, attended the November 23 union meeting at the union hall,' and on the morning of November 24 reported to work wearing two union buttons . Brown tes- tified that in March 1983 he went back to the plant at- tempting to get his job back and at that time and was offered his original job in the warehouse but had to refuse the offer because his doctor still required him to perform only light work. Brown conceded on cross-ex- amination that Fox had told him in October that some employees would get laid off, pointing to the fact that dealer trucks appearing at the plant had become fewer or less frequent. Employee Gregory Burden testified that he was em- ployed for several weeks by the Company in 1980 or 1981 and , was laid off for lack of work . He again com- menced employment with Company on November 15, 1982, and ' was laid off by Fox on November 24. Burden testified that when he was hired on November 15 by Fox to work in the warehouse , Fox told him he would be there a long time and would move up. In his testimony, Fox denied any such remark to Burden. Fox indicated simply that Burden was, laid off because of lack of work. Burden signed his union authorization card on November 24 and testified, that he thinks he 'wore a button that morning but is not absolutely sure. Employee Brown tes- tified that Burden did wear 'a union button. Burden did not attend the union meeting on November 23. Employee Ronald Caffee began working for the Com- pany on September 16 and had no prior experience. His immediate supervisor was Peggy Hutchinson . Caffee ac- companied employees Thompson and Crouch to the union hall to obtain union, 'authorization cards on No- vember 22 and that same day, during the afternoon break, Caffee indicated that he passed out some four cards which were signed and given back to him. Caffee attended the union meeting on November 23 and also wore a union button the morning of November 24. Caffee was laid off after the Thanksgiving weekend on November 29 by Supervisor Sandra Young , who at that time had also returned from her vacation. Young testi- fied simply that she laid Caffee off due to a shortage of orders. Gary Marshall first came to work for the Company in November 1980 as a truckdriver . His work record with the Company from that time forward to the fall 1982 is 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD somehwat unclear from the record. However, he did work for the Company periodically until September or October 1982 when he took a leave of absence to work somewhere else. He apparently was rehired sometime in October or early November 1982 and testified that when he was rehired Vice President Cochran checked his work record and told him that he had been a good worker and that he could come back to work. Marshall attended the union meeting on November 23 and signed a union authorization card on November 24. Marshall also reported to work November 24 with the union button on. Marshall testified that after the layoffs on No- vember 24, he took employees Brown and Crouch, who had been laid off, to the union hall to complain about the layoffs, and as he was leaving with Brown and Crouch the Company's president O'Neil was observing them. Marshall was laid off on the Monday after Thanksgiving (November 29) by Fox, who said at the time that he hated to lay him off and needed him because there was much work to be done, but that he had been told to do so. Employee Lydia Houchens first went to work for the Company in 1980 but later quit because of the illness of her daughter. Houchens testified that she was rehired by Young in August 1982 and was laid off December 1, ap- parently by Young. Houchens signed a union authoriza- tion card on November 22, attended the union meeting on November 23, and reported to work November 24 wearing a union button. Young testified that Peggy Hutchinson had called her attention to the fact that Hou- chens was making mistakes in her work. Young appar- ently attributes the layoff of Houchens to not only the slowdown in the work but also to her performance. There were three main organizing events regarding the Union. The first was on November 22 when employ- ees Caffee, Crouch, and Thompson went to the union hall and obtained authorization cards, signed their own cards, and returned to the plant and obtained completed cards from seven other employees.8 The next event oc- curred on November 23 when a meeting was held at the union hall. Five of the six employees who were laid off attended that meeting.9 Employees Stinson and Maulden also attended the meeting. Neither of these employees testified at the hearing. The third and last significant event was the wearing of union buttons on the morning of November 24. Of the six emloyees who were laid off, Caffee and Crouch participated in all three events, and also obtained fully executed authorization cards from other employees on November 22. Employees Marshall, Brown, and Houchens participated in two of the events, namely, attendance at the November 23 meeting and the wearing of union buttons on November 24. The sixth employee who was laid off was Greg Burden who par- ticipated in the third significant event, that of wearing a union button on November 24. All six, of course, had 8 Employee Thixton's card was lost, and Thixton did not testify in the case Those employees who signed cards at the plant on November 22 were as follows. Maulden, Campbell, Stinson, Creek , Lemons, Brown, and Houchens Employees Marshall and Burden signed their union au- thorization cards on November 24 8 These employees were Houchens , Caffee, Marshall, Brown, and Crouch signed union authorization cards. Two employees, Maul- den and Stinson both, went to the meeting and signed union authorization cards, but there is no evidence on the record that they either did or did not wear union au- thorization buttons other than the fact that most of the union supporters wore the buttons on November 24. Nei- ther Mauldin nor Stinson was laid off, and as indicated earlier neither testified in the case. Three other employ- ees who had signed union authorization cards were also not laid off and again, it is not definitely certain whether one of them wore union authorization buttons on No- vember 1 0 The inital burden in this case rests with the General Counsel. The General Counsel must, by a preponderance of the evidence, make a prima facie showing sufficient to support the inference that the union and protected activi- ty of the six employees was a motivating factor in the Company's decision to lay off the employees. Once this is established, the burden then shifts to the Company to demonstrate, by a preponderance of the evidence, that the same action would have taken place even in the ab- sence of the protected conduct." I find in this case that the General Counsel has carried its initial burden regard- ing the six laid-off employees. These employees were all union supporters and this support was demonstrated openly on November 24. The Company responded promptly and swiftly by laying off three of the support- ers in the afternoon of November 24, including the two leading supporters (Crouch and Caffee), and followed quickly with two more layoffs the next regular working day, and laid off the last employee 2 days thereafter. In my opinion the General Counsel proved initially that there was an antiunion animus on the part of the Compa- ny which contributed to the Company's decision to lay off the six employees involved. In this regard, the re- marks of Warehouse Supervisor Fox in my opinion were damaging and telling in this case. At the time, he was the highest ranking supervisor in the plant, other than the president, who had no direct contact with the employees but did confer with Fox on the fateful morning of No- vember 24. The three initial discharges took place in the absence of the supervisor of those employees, who was due to return the next regular working day, and also in the absence of the Vice President Cochran, who had overall responsibility for the day-to-day operations of the plant and who was also due to return later the following week. It is the swiftness and the tuning of the layoffs that is most damaging to the Company. The General Counsel having sustained its initial burden, that burden then shifted to the Company to show that unprotected activities, standing alone, would have caused the layoffs. I find that burden was not sustained by the Company. It is clear cut in this case that the Company's production was seasonal and that the Company had indeed fallen on bad times economically. There is also no doubt in my to These three employees were Lemons, Creek, and Campbell They did not testify in the case Crouch testified that Campbell wore a button, and Brown testified that Lemons wore a button 11 Wright Line, 251 NLRB 1083 (1980), enfd 662 F.2d 899 (1st Cir 1981), cert. denied 455 U.S 989 (1982), Wright Line test upheld in NLRB v. Transportation Management Corp., 462 U S. 393 (1983). QUALITY ALUMINUM PRODUCTS mind that there would have eventually been layoffs. However, I must deal in this case with the situation and circumstances that actually existed on the various dates of the layoffs. The Company's own production figures reflect that the major decrease in business did not occur until December. It could be argued in this case that fore- seeing some layoffs, the Company desired to save vaca- tion pay or is some other manner curtail certain expenses by beginning the layoffs on the heels of a holiday period. However, there is absolutely no direct evidence in the record to support the same. On the contrary , there is evi- dence in the record to the effect that at least some notice was given to employees in advance of their layoffs in the past. Considering all the evidence and circumstances in this case, I find that the Company's asserted reasons for the layoffs do not withstand scrutiny and were thus pre- textual, and that the legitimate business reasons asserted by the Company for the layoffs on the dates they oc- curred was too insubstantial to overcome the direct and indirect evidence of a motivation to frustrate the union organization. Accordingly, I find and conclude that the six layoffs involved in this case were violative of Section 8(a)(1) and (3) of the Act. F. The Cards, the Union 's Majority, and the Appropriate Unit There were 11 signed union authorization cards admit- ted into evidence in this case . Six of the cards were au- thenticated by the actual signers in testimony, the re- maining five cards were appropriately and adequately au- thenticated by the testimony of either employee Mar- shall, Crouch, or Caffee. I allowed arguments to be pre- sented in the briefs filed herein regarding the admittance of three cards signed by employees Campbell, Creek, and Lemons. Regarding these three cards, the Company argues in this case that these cards and all the other cards were tainted and thus improperly admitted because of the purpose for signing the cards . None of the cards were defective on their face and all were completely ex- ecuted and properly signed by the employee involved. Employee Campbell was told by employee Caffee that the card was "for getting a union started." The cards were initially obtained when Caffee, Thompson, and Crouch went to the on hall during their break on No- vember 22. Caffee'did testify that at that time he and the other two employees signed their cards to save their jobs or prevent being laid off. However, he additionally indi- cated that their purpose was to get the Union in at the plant. In this regard , Robert Winstead, an assistant to the Union's president, testified that he told the employees who attended the November 23 meeting that the cards were membership cards, would be a showing of interest in the Union, and further added that if they were dis- criminated against, the date on the card was important because on and after that date their union support would be protected activity. Winstead did indicate ' that at the meeting potential layoffs were also discussed. Employee Marshall gave employee Lemons his card and asked him to sign it "to try to get the union started ." Lemons kept the card for at least 1 day before he returned it to Mar- shall and Lemons also wore a union button the morning of November 24. Employee Creek was handed her card 347 by employee Crouch who indicated that she watched Creek read the card , fill in all the blanks, and sign the card. ' Creek- also wore a union button on November 24. The union ' authorization cards admitted in the case were single purpose cards and properly authenticated. The cards on their face ' were unambiguous and clearly stated that the signer authorized the Union to represent the signer for the purpose of collective bargaining, and not merely to seek an election. Such cards are valid unless it is proved that the employee who signed the card was told that the card was to be used solely for the purposes of obtaining an election. 12 Such cards remain valid notwithstanding the fact that in addition to the lan- guage on the face of the card, the employees are told about various other purposes such as for their own pro- tection, to protect their jobs in the case of discrimination, or to get the union started. Furthermore, the action of the union supporters on the morning of November 24 in wearing union buttons was most certainly protected and concerted union activity, reflecting a desire of those em- ployees to be represented by the Union. The record in this case reflects that at least 9 out of the 11 card signers wore union buttons on the morning of November 24. 1 find and conclude that all 11 of the union authorization cards were properly admitted in this case for the purpose of showing a majority support for the Union in the ap- propriate unit involved in this case. On November 24 there were 19 employees in the unit involved, including Peggy Hutchinson, who the General Counsel contends should not be in the unit by virtue of being a supervisor under Section- 2(11) of the Act. Hutchinson was Supervisor Young's assistant in the pro- duction department." Hutchinson did not sign a union authorization card but employee Garland Brown did sign 'a card and the Company takes the position that Brown was a guard within the meaning of Section 9(b)(3) of the Act and thus should not be included in the appropriate bargaining unit . With the 11 union authorization cards admitted, the Union represents a majority of the employ- ees in the unit whether or not Hutchinson or Brown are included in the unit. Thus, I find it unnecessary in this case to resolve the issue of inclusion or exclusion of Hutchinson and Brown form the unit.14 Accordingly, I find and conclude that from November 24 forward, the Union represented a majority of those employees in the unit. The complaint alleges that the appropriate unit of em- ployees in the Company for the purposes of collective bargaining within the meaning of Section 9(b) of the Act is as follows: n NLRB v. Gissel Packing Co., 395 U.S 575 (1969), upholding the Board's validity tests in Cumberland Shoe Corp, 144 NLRB 1268 (1963), and Levi Strauss & Co, 192 NLRB 732 (1968). See also Montgomery Ward & Co., 253 NLRB 196 (1980). - 18 These employees are named in the papers attached to the Stipula- tion for Certification Upon Consent Election (Case 9-RC-14186) which was admitted into evidence. 14 From the record in this case, my initial impressions would lead me to conclude that Hutchinson should not be included in the unit, but Brown would be properly included 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All production, maintenance, warehouse and truck- driving employees employed at the company's Lou- isville, Kentucky facility; but excluding all office clerical, professional and all other employees and all guards and supervisors as defined in the Act. In its answer filed herein, the Company denies the appro- priateness of this unit. However, the Company did stipu- late to the appropriateness of the unit in the representa- tion proceeding (Case 9-RC-14186) and produced no evidence or argument at the hearing regarding the ap- propriateness of the unit . I thus find and conclude that the above-stated unit is an appropriate unit in the circum- stances of this case for the purpose of collective bargain- ing within the meaning of the Act. On the foregoing findings of fact and initial conclu- sions, and on the entire record, I make the following CONCLUSIONS OF LAW 1. The Respondent Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Charging Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent, acting through its foreman and agent Charlie Fox, on November 24, 1982, at its Louis- ville, Kentucky facility, made disparaging remarks to an employee regarding employees who supported the Union, identifying one such employee , thereby implying and giving employees the impression of surveillance of their union activities. 4. The Respondent acting through its foreman and agent Charlie Fox, about November 24, 1982, at its Lou- isville, Kentucky facility, threatened an employee by stating to the employee that the Respondent would dis- charge employees who supported the Uion and would close its facility because of the union activity of employ- ees. 5. The Respondent, acting through its foreman and agent Charlie Fox, on November 24, at its Louisville, Kentucky facility, threatened employees with discharge for engaging in the protected concerted activity of wear- ing union buttons. 6. The Respondent, acting through its foreman and agent Charlie Fox, on November 24, 1982, at its Louis- ville, Kentucky facility, informed an employee that the Respondent knew which employee had signed union au- thorization cards and thereby gave employees the im- pression that their union activities were under surveil- lance. 7. The acts and actions of the Respondent as set forth in paragraphs 3 through 6, above, constituted improper interference, restraint, and coercion of employees by the Respondent in the exercise of their rights guaranteed in Section 7 of the Act, and are thus violative of Section 8(a)(1) of the Act. 8. The Respondent violated Section 8(a)(1) and (3) of the Act by improperly laying off the following named employees, on the dates appearing after their names, be- cause they engaged in protected concerted activity in support of the Union: Gregory John Burden November 24, 1982 Garland Brown Jr. November 24, 1982 Donna Jean Crouch November 24, 1982 Ronald Caffee November 29, 1982 Gary Wayne Marshall November 29, 1982 Lydia Houchens December 1, 1982 9. The Charging Union is and has been since its demand for recognition by the Respondent on November 24, 1982, the exclusive collective-bargaining representa- tive of the Respondent's employees in the following ap- propriate unit: All production, maintenance, warehouse and truck- driving employees employed at the company's Lou- isville, Kentucky facility; but excluding all office clerical, professional and all other employees and all guards and supervisors as defined in the Act. 10. On and after November 24, 1982, the Respondent unlawfully refused to recognize and bargain with the Charging Union regarding the terms and conditions of employment of the employees in the above unit, in viola- tion of Section 8(a)(1) and (5) of the Act. •11. The unfair labor practices found in paragraphs 3 through 6, 8, and 10, above, effect commerce within the meaning of the Act. THE REMEDY Having, found that the Respondent herein has engaged in certain unfair labor practices , I will recommend that it be required to cease and desist therefrom and to take certain affirmative actions designed to effectuate the pur- poses and policies of the Act. Since the independent vio- lations of Section 8(a)(1) of the Act and the discriminato- ry layoffs of 6 of the employees out of the unit of at least 18 employees in violation of Section 8 (a)(1) and (3) of the Act and found herein are pervasive , I will recom- mend a so-called broad order designed to suppress any and all violations of those Sections of the Act. 1 5 Having found that the Respondent unlawfully laid off the six named employees, I shall also recommend that said employees be offered immediate and full reinstate- ment to their former positions or, if those positions no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges. The evidence in this case reflects that most if not all of the laid-off employees have since been reinstated or called back to work- To the extent that they have been reinstated, that portion of the remedy requiring the same is of course moot. In this regard, however, I shall further recommend that the Respondent be required to make those six employees whole for any loss of earnings that they may have suffered by reason of the discrimination against them, by paying to them a sum of money equal to the amount they would normally have earned as wages from the dates of their layoff to the date of the Respondent's reinstatement , or offer of reinstatement, less net earnings, with backpay and ,interest thereon to be computed in the manner prescribed by appropriate Board 15 Hickmott Foods, 242 NLRB 1357 (1979) QUALITY ALUMINUM PRODUCTS law.1 s Should this case reach the compliance stage, the Respondent should be allowed to offer evidence and proof that any one or all of the six employees who were laid off would have, in any event, been legitimately laid off subsequent to their discriminatory layoff found herein, in order to adequately and fairly mitigate any amounts that may be due as lost wages. I shall further recommend that the Company be required to preserve and make available to Board agents, on request, all perti- nent records and data necessary to analyze and deter- mine whatever backpay may be due. The General Counsel has asked that the Respondent be ordered to recognize and bargain with the Charging Union in this case. Such a remedy has been deemed and held appropriate where the employer's conduct was so prevasive and so outrageous as to prevent the holding of a free and uncoerced election, and also where the Gener- al Counsel has shown that the union had obtained valid authorization cards from a majority of the employees in the appropriate bargaining unit and it also has been shown that the employer's violations were less extraordi- nary and pervasive but nonetheless still had the tendency to undermine the union's majority strength and impede the election process. 17 I find that this case falls within the latter category and, as requested, I shall recommend that the Respondent be ordered to recognize the Charg- ing Union a the collective-bargaining representative of the employees in the appropriate unit in this case and, on request, bargain with the Union over the terms'and con- ditions of employment of the employees in said unit. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed's ORDER The Respondent, Quality Aluminum Products, Inc., Louisville, Kentucky, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Laying off employees or otherwise discriminating against them for supporting General Drivers, Warehou- semen and Helpers Local Union No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America or any other union. (b) Creating in the minds of employees the impression that their union activities and the union activities of other employees are the subject of company surveillance. 16 F. W Woolworth Co, 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). Also see generally Isis Plumbing Co., 138 NLRB 716 (1962). 17 NLRB v. Gissel Packing Co., supra. 18 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 349 (c) Threatening employees with discharge if they sup- port the above-named Union or any other union. (d) Refusing to recognize and bargain collectively with above-named Union as the exclusive collective-bar- gaining representative of all of the Respondent's produc- tion, maintenance, warehouse, and truck driving employ- ees employed at the Respondent's Louisville, Kentucky facility. (e) 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 designed to ef- fectuate the policies of the Act. (a) Offer Ronald Caffee, Donna Jean Crouch, Gary Wayne Marshall, Gregory John Burden, Garland Brown Jr., and Lydia Houchens immediate and full reinstate- ment to their former jobs 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) Recognize and, on request, bargain collectively in good faith with General Drivers, Warehousemen and Helpers Local Union No. 89, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen and Helpers of America, as the exclusive collec- tive-bargaining representative of all production, mainte- nance, warehouse and truck driving employees employed at the Respondent's Louisville, Kentucky facility. (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 the Respondent's place of business in Louis- ville, Kentucky, copies of the attached notice marked "Appendix." 19 Copies of said notice, on forms provided by the Regional Director for Region 9, after being signed by Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and shall `be maintained for 60 consecutive days in con- spicuous places, including all places where notices to em- ployees are customarily placed. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered up by any other materi- al., (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. is 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 "