Schwartz Manufacturing Co.

874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Schwartz Manufacturing Company and United Elec- trical, Radio and Machine Workers of America (UE). Cases 18-CA-9323 and 18-CA-9452 July 15, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFr On June 27, 1986, Administrative Law Judge Michael O. Miller issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel and the Charging Party each filed cross-exceptions and a supporting brief. The Respondent filed an answering brief to the cross- exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision 1 and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge's rul- ings, findings,2 and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondent violated Section 8(a)(1) of the Act by coercively interrogat- ing employees concerning union activity, by threat- ening employees with discharge because of union activity, by prohibiting laid-off employees from en- gaging in union activity in nonwork areas, and by distributing procompany insignia in coercive cir- cumstances, but did not violate Section 8(a)(3) and (1) of the Act by the actions it took with respect to a layoff of one-third of its work force. For the rea- sons set forth below, we disagree with several of the judge's findings. 1. The Respondent, Schwartz Manufacturing Company, was primarily engaged in the manufac- ture, assembly, and nonretail sale and distribution of front-end loaders attachable to tractors. Ninety percent of the Respondent's sales were to Ford Motor Corporation. Ford communicated its orders to Schwartz through monthly Ford reports and periodic releases. In addition, the Respondent's i On September 16, 1986, the Charging Party filed a motion to partial- ly withdraw charge and to withdraw petition in Case 18-RC-13822 By Order dated September 29, 1986 , the Board granted the General Coun- sel's September 18, 1986 contingent motion in support of the Charging Party's motion, thereby dismissing the 8(a)(5) allegations of the complaint and severing Case 18-RC-13822 from this proceeding Accordingly, this Decision and Order involves no consideration of those portions of the judge's decision relating to the withdrawn proceedings 2 The Respondent , the General Counsel , and the Charging Party have excepted to some of the judge's credibility findings The Board's estab- lished 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 president, Harold Magowan, testified that contact was made with Ford at least once a week. The Ford report received late in each month specified for the current and following 3 months the firm number of loaders and other products Ford had committed to purchase and predicted possible orders for 4 additional months. The Respondent generally based its manpower needs on the 4- month "firm period" Ford was committed to pay for, after which the Respondent regarded the Ford reports as speculative. Ford directed Schwartz to ship loaders by means of releases. Although actual release orders in a given month might vary from commitments in the monthly reports, by year's end Ford generally sought to "net in" undershipments or to "net out" overshipments. In late May 19853 Magowan informed employ- ees of a vacation plant shutdown scheduled for early July and indicated the possibility of addition- al summer shutdowns. About the same time Plant Manager Robert Benage told employees that busi- ness looked good throughout the summer and fall. Benage stated he did not foresee any layoffs but would attempt to give employees 2 weeks' notice of any layoff.4 Although there was no union orga- nizational activity at the time, Benage also said that "there wouldn't be any union at Schwartz, that it wasn't going to be allowed." Employees began to discuss unionization during mid-June after management indicated that it did not intend to increase wages. On June 20 and 25, Assembly Foreman Denny Campbell interrogated two assemblers concerning union activity, particu- larly that of day-shift union activist Don Rol. Also on June 25 another assembler overheard Campbell tell an employee that if Don Rol were in his de- partment he would fire him. Campbell's explana- tion associated Rol's union activity with the state- ment overheard. We affirm the judge's finding that Campbell's interrogations and threat violated Sec- tion 8(a)(1) of the Act. Sometime during the third week in June the Re- spondent received the monthly Ford report. By June the Respondent had substantially overshipped loaders to Ford. In addition, its monthly average of loaders from January through June had been ap- proximately 500 loaders whereas Ford's June a All dates are in 1985 unless otherwise indicated 4 The Respondent had instituted a series of cumulative layoffs during the summer and early fall months of 1984 On July 28 , 1984, 18 employ- ees were laid off for between 1 and 3 months On August 31, 1984, 11 different employees and I employee recalled from the July layoff were laid off for between 6 weeks and 4 months On September 20, 1984, 18 different employees were laid off for between I and 6 months On Sep- tember 28, 1984 , four additional employees were laid off for between 2 weeks and 5 months 289 NLRB No. 7 SCHWARTZ MFG. CO. report reflected a drop to about 350 loaders for August. On Thursday, July 18, Benage announced to em- ployees that there would be a 1-week shutdown in early August because of a reduction in Ford's com- mitments for August. He also said that Ford busi- ness for the final quarter of the calendar year ap- peared to be picking up. He then expressed aware- ness of union activity and told the employees that the Company did not want or need a union. On Friday, July 19, the Respondent's production control manager told Magowan that the Respond- ent had received few Ford releases for July. There- after, the Respondent' s sales liaison confirmed that Ford would not send any more July releases and was in the process of "netting out" overshipments but would allow early shipments for August com- mitments. On Saturday, July 20, 40 or more employees at- tended a union meeting. Volunteers were solicited to serve on the Schwartz Workers Organizing Committee (SWOC). On Monday, July 22, the day-shift members of the organizing committee de- cided to wear buttons and distribute leaflets on Wednesday, July 24. A few day-shift employees wore organizing but- tons to work for the first time on Tuesday, July 23. Early that morning Benage gave employees assur- ances in the face of a rumor concerning an addi- tional shutdown in September. He stated "that the fall looked very good, that, you know we'd be building up for their fall requirements." At a regu- lar management production meeting later that same day Benage noted Ford's reduced commitments for August. Foremen were directed to select a skeleton crew for the scheduled 1-week August shutdown. Magowan cautioned that "netting out" could re- quire additional shutdowns. After Tuesday's production meeting Magowan received the July Ford report, which he described as "status quo."5 After reviewing the July report Magowan called Ford's representative, Grant Ventzke, who confirmed that Ford would com- mence "netting out" overshipments. According to Magowan's credited testimony, Ventzke stated that a survey of Ford's distribution points and dealers In fact, the July Ford report increased purchase commitments over those of the June report Compared with the 4-month "firm" period fig- ures in the June report, the July report showed for July, small loader purchase commitments remauung constant at 480, and large loader com- mitments increasing by 30 (from 45 to 75), for August, commitment for small loaders increasing by 30 (from 260 to 290) and large loaders un- changed at 80, and, for September, commitments for both small and large loaders unchanged (at 265 and 80, respectively) The July report also showed the number of loaders overshipped decreasing by 10 (259 in June, 249 in July) (The judge's decision indicates that the number of loaders overshipped was 281 in June and 259 in July, but an independent reading of the record shows the figures to be 259 and 249, respectively ) 875 indicated that the "bubble has burst," business was flat, warehouses were full, and the Respondent's shipments would have to be aligned with the re- quirements of the Ford plan over the next several months. On Wednesday, July 24, the Schwartz Workers Organizing Committee (SWOC) went public as planned. Several additional day-shift employees wore SWOC buttons to work and posted and dis- tributed a lengthy flyer detailing organizational rights. Magowan testified that "during the day of the 24th it became apparent to me, after reviewing the shippers and so on that probably a layoff was going to be inevitable. And it was probably during the morning of the 24th, early." That morning Magowan told Benage that "we ought to be look- ing at the framework of a layoff" and assessing its impact on the Respondent's overall operation. On Wednesday afternoon Benage met with Foremen Stettnichs and Campbell to select specific employ- ees for layoff. Based on Ford's "netting out" and the July Ford report, Benage calculated a 350- loader-per-month production average for August through October. Benage testified that he followed a procedure and formula employed for the previ- ous year's layoffs to determine requisite manpower reductions. On Thursday, July 25, final details of the layoff were approved. At Thursday's planned lunchtime organizing meeting, employees Rol and Gross contradicted Benage's July 18 statements concerning a competi- tor's lower wage scales. Foreman Stettnichs was present. 6 At the end of Thursday's day shift Benage called employees to a meeting that he acknowledged to be "about the Union." He told employees the Re- spondent did not want or need a union. He sug- gested that any problems could be worked out on a one-to-one basis between the employees and man- agement. He noted the possibility of strikes, the risks of fines or permanent replacement, and the concession bargaining occurring at a unionized fa- cility in the area. Benage then announced his decision to change from the planned shutdown to a layoff because, he stated, some employees had complained about fi- nancial difficulties that the general 1-week shut- down would cause. He also referred to the July report and Ford's intention to "net out," asserted 6 We find it unnecessary to decide whether Foreman Campbell unlaw- fully threatened employee Marlis Anderson on July 25 In light of our agreement with the judge that Campbell unlawfully threatened to dis- charge employee Don Rol, we conclude that the finding of any addition- al violation based on Campbell's conversation with Anderson would be cumulative and would not materially affect our remedial Order 876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that absent a layoff there would be additional fall shutdowns, and noted that this layoff like prior ones would be by seniority, department, and shift, with recall when work picked up. Thursday night and Friday morning SWOC con- ducted protest rallies. Employees voted over- whelmingly in favor of plantwide shutdowns in- stead of selected layoffs. Petitions and vote results were presented to and rejected by Benage. On late Friday, July 26, the Respondent posted a list of the laid-off employees by department and shift. Nine employees were laid off contrary to their seniority in their departments.' The layoff notice stated: "Due to the economy (or lack of orders), there will be a layoff until orders pick up. . . ." After the posting a large group of employees marched through office hallways protesting the layoff. Union organizer Robert Kingsley entered Benage's office and angrily told Benage that the layoff decision was discriminatory, and unfair labor practice charges would be filed. Meanwhile, em- ployees chanted union support and demanded rec- ognition of their vote. On Saturday, July 27, Magowan drafted a letter that was sent out to all laid-off employees on Monday under Benage's signature. The letter stated that due to the lack of foreseeable improvement in market conditions, the employees' layoff would be classified as permanent. About the same time, laid- off employees received personnel "change" notices that they had been "Discharged/Terminated .. . due to economic conditions." The Respondent had no practice of laying off employees permanently. Also, Benage acknowledged the employees' reten- tion of recall rights. On July 29 night-shift employees Lee Wigton, Greg DeVaney, and Steve Johanssen reported to work wearing their SWOC buttons. Benage greet- ed them at the door and asked DeVaney and Jo- hanssen whether they had been laid off. When they replied that they had not, Benage asked for their names and departments. Foremen Stettnichs and Campbell, grinning, confronted Wigton, asking him, "What are you doing here, Lee? You're laid off." The foremen's grins turned to frowns when Wigton told them he was not on the layoff list, and they proceeded to check the list. On August 8, eight of the laid-off employees were recalled with full backpay and eight other employees with less overall plant seniority were permanently laid off and issued similar termination The employees selected out of seniority were Ed Gross, Don Rol, Dale Clyde, Ed Blair, Dennis Reifers, Charles Bauerle, Jan Johnson, John DenBoer, and Craig Latterell All except Johnson and Latterell were members of the organizing committee from the day shift. Gross, Rol, and Blair attended the Union's initial organizing meeting on June 20. Gross, Rol, Blair, Clyde, and Reifers wore organizing buttons on July 24 notices. Management explained that "the recent layoffs were not accomplished in the fairest possi- ble manner consistent with both seniority and nec- essary operating considerations" and that its substi- tution was an attempt to minimize the possibility of litigation. The Ford report for August shows "netting out" of 119 small loaders and an increase of 17 commit- ments for large loaders. The September Ford report reflects that 32 more small loaders were "netted out," and large loader commitments in- creased by 2. At this point, the Respondent was overshipped by approximately 58 small and 59 large loaders for a total of 117 overshipments. The October Ford report shows the Respondent was undershipped by 69 small loaders but remained overshipped by 37 large loaders. Magowan testified that in late October the Respondent asked Ford to allow late shipments because the Respondent was unsure it could completely satisfy Ford's Novem- ber commitments. The November Ford report re- flected an increase in small loader undershipments from 69 to 211 and a reduction in large loader overshipments from 37 to 12. The record indicates that by December the Respondent was under- shipped by a total of approximately 300 loaders. The representation election was conducted on October 29. The Respondent received a substantial number of releases from Ford during the second week of November. Magowan testified that the Re- spondent had insufficient inventory to meet the in- creased demand. Effective November 18, the Re- spondent recalled the laid-off employees. When orders again increased during the second week of December the Respondent hired an additional 25 employees. The record indicates that, during the period of layoffs in 1984, when the 4-month average of Ford firm commitments decreased, the Respondent's complement of employees also decreased. When commitments increased again so did the Respond- ent's complement of employees. The record indi- cates that from April 1985 through January 1986 there was a steady rise in average 4-month commit- ments by Ford for total loaders. During the 1985 layoff period, even when the 4-month average Ford firm commitments were rising the employee complement did not change. It remained at a de- pressed level until 3 months later when employees were recalled in November after the representation election. During this 3-month layoff period a total of 102 loaders were "netted out" in August, a total of 30 loaders were "netted out" in September, and a total of 149 loaders were "netted out" in Octo- ber. By October, the Respondent had more than "netted out" the 249 overshipments present in July. SCHWARTZ MFG. CO. The Respondent did not recall employees until No- vember 18 when it was undershipped by a total of approximately 200 loaders. Applying Wright Line," the judge found that the General Counsel established a prima facie case demonstrating that retaliatory union animus con- tributed to the layoff decision. The judge then ana- lyzed the sufficiency of the Respondent's business justifications for its actions and found that the Re- spondent had demonstrated that it would have laid off employees and notified them that their layoff was permanent even in the absence of union activi- ty. We disagree with the judge's analysis. We find that the reasons advanced by the Respondent for its actions were pretextual. We agree that the General Counsel made a prima facie showing that the Respondent aborted its plant shutdown plans and decided to lay off one-third of its work force in order to discourage recently manifested employee support for union representation. It is uncontroverted that the Re- spondent was aware of and opposed to unioniza- tion. Even prior to the organizing campaign, Benage told employees that the Respondent would not allow a union. The Respondent's subsequent unfair labor practices demonstrated both adamant opposition to the Union's campaign and a willing- ness to defeat it through unlawful means. The timing and abruptness of the layoff decision further support an inference of illegal motivation. The layoff announcement occurred the day after SWOC went public with buttons and campaign lit- erature and within a few hours of a union meeting discrediting management. It occurred suddenly and without notice, despite a prior pledge by Benage to attempt to give 2 weeks' notice to employees. It represented a marked departure from manage- ment's earlier announced plans to meet its econom- ic and overproduction problems with a 1-week shutdown. Furthermore, the Respondent acknowl- edged making the layoff announcement only after detailed explication of its antiunion sentiment in a meeting called "about the Union." The import of the message was clear: the layoff was in retaliation for union activity. The Respondent primarily relies on the July Ford report and confirmation of Ford's plans to "net out" overshipments as business justification for the layoff. We reject this defense. The Respondent has failed to show that it received and relied on any adverse business information or unfavorable change in economic position not already known or suspected at the time it planned for its scheduled 1- 8 251 NLRB 1083 (1980), enfd. 622 F 2d 899 (1st Cu 1981), cert denied 455 U S. 989 (1982), approved in NLRB v Transportation Manage- ment Corp, 462 U S. 393 (1983) 877 week shutdown in August. It has also failed to prove that it was waiting for further confirmation of adverse information before deciding to switch from a shutdown to a layoff. Thus, on July 18 the Respondent announced and gave 2 weeks' advance notice of the August shutdown and explained that the shutdown was necessary because of the reduc- tion of orders in Ford's June program. On July 19 Magowan was apprised that Ford sent few July re- leases. Thereafter, his subordinates confirmed that Ford would "net out" overshipments. Neverthe- less, at the production meeting on Tuesday, July 23, management continued to plan for an August shutdown. There is no evidence that management discussed the alternative of a layoff. Moreover, early Tuesday morning the Respondent's plant manager told employees that rumors of a Septem- ber shutdown were unfounded, noting that the fall "looked very good." Suddenly plans changed. What happened be- tween Tuesday morning and Thursday afternoon to justify the abrupt change in plans from a scheduled temporary shutdown to an unexpected layoff? Apart from intensified union activity, the only in- tervening events were receipt of the July Ford report and a phone call made on the Respondent's initiative confirming that Ford would "net out" overshipments. Neither the phone call nor the July Ford report imparted any new or unanticipated economic information. They merely reaffirmed business information considered and presumably taken into account previously at the Tuesday morning production meeting discussion of shut- down plans. In particular, the July report was strikingly similar to the June report throughout the "firm period" and, in fact, reflected an increase in purchase commitments. The pretextual nature of the Respondent's eco- nomic defense is further underscored by the Re- spondent's inconsistency in explaining its layoff de- cision. Employees credibly testified that Benage at- tributed the layoff decision to expressions of em- ployee concern about the financial hardships of a shutdown. Although Benage referred to expres- sions of concern by three named employees, his testimony fails to disclose that he told them he would consider a layoff instead of a shutdown. In addition, his purported sensitivity to these employ- ees' complaints contrasts sharply with his apparent indifference to employees' overwhelming post- layoff expression of a preference for a shutdown vis-a-vis a layoff, to say nothing of his and his fore- men's expressions of surprise and consternation after they discovered that open union supporters had survived the layoff. 878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Finally, the Respondent failed to act consistently with its stated policy that this layoff, like prior ones, would be effectuated by seniority, depart- ment, and shift. Its original layoff selection includ- ed several open and active day-shift members of the organizing committee instead of certain night- shift employees with less seniority. Although per- haps not sufficient to establish an absolute rule for the Respondent's layoffs, there is ample evidence that, in past layoffs, less senior night-shift employ- ees had been laid off first. The Respondent explains its sudden change of plans as a legitimate response to deteriorating eco- nomic conditions, allegedly consistent with the Re- spondent's own past practice. We dispute neither the existence of economic problems nor the notion that the Respondent could have responded to those problems by laying off a substantial number of em- ployees, as it had done only a year earlier. In spite of so recent and substantial a past practice and the alleged cost advantages of layoffs vis-a-vis shut- downs, however, there is no evidence whatsoever that the Respondent considered layoff even as a contingent alternative to the planned shutdown until 2 days before implementing a layoff. Further- more, the Respondent belied reliance on any past practice of economically motivated layoffs by devi- ating from the 1984 layoff pattern in three signifi- cant ways: (1) it included in the initial layoff nine day-shift employees whose seniority would have entitled them to retain their jobs; (2) it took the un- precedented step of converting all affected employ- ees to permanent layoff status; and (3) even after completion of the "netting out" process, it waited until it was in a substantially undershipped position before recalling all laid-off employees at once on November 18, after the representation election. Based on the foregoing, we conclude that the General Counsel established a prima facie case of antiunion discrimination and that the Respondent failed to demonstrate that its sudden change from a scheduled 1-week shutdown to a layoff of one-third of its work force would have taken place even absent the Union's organizing campaign. Accord- ingly, we find that the July 26 layoff violated Sec- tion 8(a)(3) and (1) of the Act.9 In addition, since 9 Apart from the planned shutdown for the first week of August, the Respondent faded to make any kind of record establishing if, when, or to what extent employees would have been laid off or the plant would have been shut down after July 26 for nondiscriminatory reasons. We fmd Benage's bald assertions to employees when announcing the layoff, that absent a layoff additional plant shutdowns would be necessary, to be in- sufficient to meet the Respondent 's burden We leave for compliance pro- ceedings, the exact determination of amounts of backpay owing The de- termination of backpay owed by the Respondent shall take into account any reduction in backpay due to the scheduled 1-week August shutdown the Respondent's August 8 substitution layoff was merely a continuation of the initial layoff and was effectuated for the same unlawful discriminatory reasons (although redressing the burden initially placed on day-shift employees), we likewise find that such substitution violated Section 8(a)(3) and (1) of the Act. We also find contrary to the judge that the Re- spondent unlawfully converted the temporary layoff to permanent layoff or discharge. The differ- ence between permanent layoff and discharge does not matter here. In either instance it is clear that the July 29 permanent layoff letter and July 30 and August 8 personnel notices represented an adverse change in laid-off employees' employment status. Our finding of unlawful discrimination is based on all evidence of discriminatory motivation underly- ing the original layoff decision as set forth above. In addition, we rely on the timing of the personnel notices that were prepared and issued shortly after the July 26 employee protests and rallies. Further- more, although the Respondent had previously used layoffs to compensate for seasonal slack peri- ods, it had no practice of laying off employees per- manently. In sum, we conclude that the Respond- ent's change of the temporary layoff to permanent layoff or discharge violated Section 8(a)(3) and (1) of the Act. 2. On August 1 Benage excluded laid-off em- ployees Rol and Hallem from the lunchroom during the night-shift's break. Neither employee was engaged in a conversation or union activity at the time of their exclusion. Also, early one October morning prior to commencement of the day shift, Benage ordered laid-off employees Krueger and Miller to leave the employee lunchroom. Krueger and Miller had just completed distribution of union leaflets and were talking to fellow employees. The judge found that the first exclusion was lawful, but the second violated Section 8(a)(1). We find that both incidents of exclusion violated Section 8(a)(1). There was no rule limiting laid-off employees' access prior to the Union's campaign. The Respondent then selectively denied access to known union activists on the advent of the Union's campaign in order to discourage employees' orga- nizing activities. There is extensive evidence that both before and after these exclusions the Respond- ent tolerated other forms of nonunion access by in- dividuals not scheduled to work. Both before and after the layoff, laid-off and former employees, friends, and relatives were allowed access to both work and nonwork areas.10 10 Assembler Ron Jensen testified, "I never really heard of a policy It used to be an open door thing. If somebody wanted to come and see Continued SCHWARTZ MFG CO. 879 In these circumstances, we conclude that the Re- spondent's unprecedented and disparate denial of access to leading union adherents during the height of the Union's organizing campaign and in a con- text tainted by other unlawful conduct was coer- cive of union activities. Accordingly, we find that the Respondent's denial of access violated Section 8(a)(1) of the Act. 3. At the conclusion of an October 17 lunchroom meeting at which management urged employees not to vote for the Union, hats with company logo and "Vote No" buttons were brought into the lunchroom and distributed by a nonsupervisory employee. During the meeting management had en- couraged the employees to take and wear the hats. Representatives of management were not present during the distribution process but were in the area outside the lunchroom when one of the first em- ployees to leave exited. The judge found that the Respondent's October 17 distribution of procompany insignia constituted 8(a)(1) coercion. We disagree. Unlike the cases relied on by the judge,11 the evidence here fails to reveal either any direct involvement by supervisors in the distribution process or any evidence that the supervisors engaged in open surveillance of em- ployees leaving the lunchroom.12 Under these cir- cumstances, we conclude that the central availabil- ity of procompany insignia, in the absence of super- visory involvement in the distribution process or somebody, they'd just come and see them Until this union activity came, then they started kicking them out " Jensen testified that prior to this change in policy management allowed his father-in-law to visit on the shop floor Assembler Marty Anderson testified that a couple of weeks before the hearing two retirees visited with employees and management in the as- sembly area. Anderson also testified that during a short 1985 layoff laid- off employee Terry Ingalls, accompanied by her nephew, was observed talking with another employee near the paint booth Craig Latterell testified that in the fall of 1985 an employee's father visited the lunchroom during break, Sharon Hallem visited there while laid off in 1984, and an assembler's girlfriend was seen there several times Latterell observed Benage's October eviction of coworkers Miller and Krueger Benage hollered, "Get out " This surprised Latterell who had "never seen [Benage] kick anybody out" Finally, former employee Diana Enyeart testified that she frequently visited the shop and spoke with management after her 1984 layoff By contrast, Plant Manager Benage simply stated that he had asked a laid-off employee to leave plant premises prior to the August 1 exclusion. i i R L White Co, 262 NLRB 575 (1982), Tappan Co., 254 NLRB 656 (1981), and Pillowtex Corp, 234 NLRB 560 (1978) 12 The only evidence concerning the presence of management repre- sentatives outside the lunchroom when the employees left was the testi- mony of employee Fritz Fritz testified that he was one of the first em- ployees out the door at the end of the meeting and, when he left, he saw Management Representatives Miller, Benage, and Magowan outside the door There is no evidence concerning what these individuals were doing or how far from the door they were when Fritz saw them Based on this limited evidence, we find that it has been shown only that management representatives were somewhere outside the door when the first employ- ee left the meeting and that it has not been shown how far from the door the management representatives were or whether they observed the em- ployees, were engaged in conversation among themselves, or were in- volved in some other activity other evidence that management pressured employ- ees into making an observable choice or open ac- knowledgment concerning their campaign position, did not reasonably tend to interfere with employee rights under the Act. See Farah Mfg. Co., 204 NLRB 173 (1973); McDonald's, 214 NLRB 879 (1974); and Black Dot, Inc., 239 NLRB 929 (1978).13 AMENDED REMEDY Inasmuch as all the employees found to have been discriminatorily laid off were subsequently re- instated no further reinstatement order is warrant- ed. Inasmuch as discriminatees Charles Bauerle, Ed Blair, Dale Clyde, John DenBoer, Ed Gross, Jan Johnson, Craig Latterell, Dennis Reifers, and Don Rol were reinstated with full backpay, no further backpay order concerning them is warranted. Inas- much as discriminatees Hiram Anderson, Steve Blair, Terry Bohnenkamp, Romeo Eagle Horse, Randolph Ekanger, Sharon Hallem, Robert Hoff- man, Wesley Jaqua, Larry Krueger, Alan Law- rence, Dennis Lupkes, Mike McKee, John Miller, Arnold Peterson, Mike Sweir, Charles Temple, Richard VanMeveren, William Blair, Sheldon Bohms, Greg DeVaney, Mark Freese, Steve Jo- hannsen, Doyle Schubert, Kevin Tjepkes, and Lee Wigton were reinstated but received no backpay for the period during which they were unlawfully laid off, we shall order the Respondent to make them whole for any loss of earnings or other bene- fits suffered as a result of the discrimination against them. The loss of earnings and benefits incurred by these employees as a result of the unlawfully moti- vated layoffs shall be determined as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Re- tarded.14 ORDER The National Labor Relations Board orders that the Respondent, Schwartz Manufacturing Compa- ny, Sioux Falls, South Dakota, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating its employees in a coercive manner concerning their union membership, activi- i2 We disavow the judge's suggestion that McDonald's has been im- plicitly overruled 14 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1 , 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S C § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U S C. § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ties, and desires or the union membership, activi- ties, and desires of their fellow employees. (b) Threatening its employees with discharge be- cause of their union membership, activities, or de- sires. (c) Disparately denying access to nonwork areas of the plant to off-duty employees who are engag- ing or have engaged in union activities. (d) Laying off or discharging its employees for engaging in union or other protected concerted ac- tivity. (e) Discriminatorily selecting employees for layoff on the basis of their union membership, ac- tivities, or desires. (f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Make whole with interest discriminatees Hiram Anderson, Steve Blair, Terry Bohnenkamp, Romeo Eagle Horse, Randolph Ekanger, Sharon Hallem, Robert Hoffman, Wesley Jaqua, Larry Krueger, Alan Lawrence, Dennis Lupkes, Mike McKee, John Miller, Arnold Peterson, Mike Sweir, Charles Temple, Richard VanMeveren, William Blair, Sheldon Bohms, Greg DeVaney, Mark Freese, Steve Johannsen, Doyle Schubert, Kevin Tjepkes, and Lee Wigton 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 amended remedy section of this decision. (b) Remove from its files any reference to the July 26 and August 8 layoffs and/or discharges of the discriminatees listed in the amended remedy section of this decision and notify each of them in writing that this has been done and that evidence of these layoffs and/or discharges will not be used against them in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Sioux Falls, South Dakota plant copies of the attached notice marked "Appen- dix."15 Copies of the notice, on forms provided by 's 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 " the Regional Director for Region 18, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly 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 Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT interrogate you concerning your union membership, activities, or desires. WE WILL NOT threaten you with discharge be- cause of your union membership, activities, or de- sires. WE WILL NOT discriminatorily prohibit laid-off or other off-duty employees from engaging in union activities in nonwork areas of your premises. WE WILL NOT discharge you or place you on layoff for engaging in union or other protected concerted activity. WE WILL NOT discriminatorily select you for layoff on the basis of your union membership, ac- tivities, or desires. 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. WE WILL make whole with interest discrimina- tees Hiram Anderson, Steve Blair, Terry Bohnen- kamp, Romeo Eagle Horse, Randolph Ekanger, Sharon Hallem, Robert Hoffman, Wesley Jaqua, Larry Krueger, Alan Lawrence, Dennis Lupkes, SCHWARTZ MFG. CO. Mike McKee, John Miller, Arnold Peterson, Mike Sweir, Charles Temple, Richard VanMeveren, Wil- liam Blair, Sheldon Bohms, Greg DeVaney, Mark Freese, Steve Johannsen, Doyle Schubert, Kevin Tjepkes, and Lee Wigton for any loss of earnings and other benefits suffered as a result of the dis- crimination against them. WE WILL remove from our files any reference to the layoffs and/or discharges of the discriminatees and notify each of them in writing that we have done so and that evidence of these layoffs and/or discharges will not be used against them in any way. SCHWARTZ MANUFACTURING COM- PANY Mary E. Leary, Esq., for the General Counsel. R Clay Bennett Esq. and Joanne Ochsman, Esq. (Matkov, Griffin, Parsons Salzman & Madoff), of Chicago, Illi- nois, for the Respondent Employer. Robert Z. Lewis, Esq. and Robin Alexander, Esq., of New York, New York, and Robert Kingsley, of Sioux Falls, South Dakota, for the Charging Party Petitioner. DECISION STATEMENT OF THE CASE MICHAEL O. MILLER, Administrative Law Judge. This case was heard on 12 days between 14 January and 25 February 1986, in Sioux Falls, South Dakota, based on unfair labor practice charges filed by United Electrical, Radio and Machine Workers of America (UE) (the Union) on 5 August and 13 November 1985' and a com- plaint and amended consolidated complaint issued by the Regional Director for Region 18 of the National Labor Relations Board (the Board) on 3 October and 20 De- cember, respectively. The complaint alleges that Schwartz Manufacturing Company (Respondent or Schwartz) violated Section 8(a)(1), (3), and (5) of the Na- tional Labor Relations Act (the Act) by various state- ments and actions tending to interfere with, restrain, or coerce employees in the exercise of their statutory activi- ties, and by refusing to recognize and bargain with the Union. Respondent's timely filed answers deny the com- mission of any unfair labor practices. Consolidated for hearing with the complaints, pursuant to a Supplemental Decision and Order issued by the Acting Regional Di- rector on 26 December, are certain challenges and Union-filed objections in the election in Case 18-RC- 13822. All parties were afforded full opportunity to appear, to examine and to cross-examine witnesses, and to argue orally. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, the Union, and the Respondent. 1 All dates are 1985 unless otherwise specified 881 Based on the entire record,2 including my observation of the witnesses and their demeanor, I make the follow- ing FINDINGS OF FACT I. RESPONDENT'S BUSINESS AND THE UNION 'S LABOR ORGANIZATION STATUS-PRELIMINARY CONCLUSIONS OF LAW Respondent is a Delaware corporation with an office and plant in Sioux Falls, South Dakota, where it is en- gaged in the manufacture, assembly, and nonretail sale and distribution of front-end loaders, mixer feeder boxes, and related equipment. Jurisdiction is not in dispute. The complaint alleges, Respondent admits, and I find and conclude that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, Respondent admits, and I find and conclude that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICE ALLEGATIONS A. Background Schwartz is wholly owned by Amerequip Corpora- tion; the acquisition from Chromalloy became effective 22 December 1983. Production at Schwartz' Sioux Falls facility was, at the relevant time, limited almost com- pletely to various models and sizes of front-end loaders that are made to be attached to tractors. Schwartz sells approximately 90 percent of its front-end loader produc- tion directly to Ford Motor Corporation, Ford Tractor Operations (Ford); the remainder are manufactured to be attached to various other makes of tractors or to be sold to dealers and distributors. Although its Sioux Falls facility is the only one in- volved in these proceedings, Schwartz also maintains a facility in Lester Prairie, Minnesota, which manufactures parts for the front-end loaders as well as other farm and truck equipment. In addition to the two Schwartz manu- facturing facilities, Amerequip owns two other compa- nies: Arps Manufacturing in New Holstein, Wisconsin, and Brantly Manufacturing in Frederick, Oklahoma. Schwartz in Lester Prairie and Arps in New Holstein are both unionized facilities. There was no collective-bar- gaining representative at the Sioux Falls facility when the instant organizational activity began. B. The Facts-Chronologically About 10 June, following an indication that manage- ment had ruled out any wage increases in the near future for its Sioux Falls employees, some employees began to discuss the possibility of union organization. Together, Donald Rol and Robert Hoffman decided to contact the Union. Hoffman called Robert Kingsley, the Union's field organizer, and a meeting was scheduled for 20 June at the Union's headquarters. 2 Respondent's unopposed motion to correct the record is granted and made a part of this record 882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD About 19 or 20 June, Rol approached Michael Sweir in the assembly department and asked Sweir to attend the meeting. Foreman Denny Campbel13 observed this from across the shop and asked Sweir what Rol had been talking about. Campbell continued, "He was talking about a union, wasn't he?" Following Sweir's continued noncommittal responses, Campbell stated, "Anytime Don Rol goes in another department, he's talking about trou- ble."4 Approximately seven employees-Edwin Gross, Mi- chael Sweir, Larry Cundy, Dave Swanson, Ed Blair, Sharon Hallem, and Don Rol-met with Kingsley on 20 June. They decided to canvass their departments to de- termine the extent of interest in organizing and to ask employees to come to the next meeting. Before lunch about 25 June, assembler Marlis "Marty" Anderson was approached by Campbell. Campbell told her, "Unions are really bad .. . because they can cost you a lot of money in union dues . . . . If you have any problems you can't go to your foreman, you have to go through a union steward." He then asked her, "Has Don Rol talked to you?" Anderson asked why and about what and Campbell replied, "Well, Don Rol's nothing but a forty-year old radical that's running around causing a lot of trouble, talking about unions, and doesn't know what he's talking about." After lunch, assembler Ed Gross overheard Campbell in conversation with shipping clerk Robert Deelstra. Campbell pointed out Don Rol, referred to him as "that fucker over there," and stated, "if he'd be in my depart- ment, he'd be a long ways down the road . . . I'd fire him .. . I'm glad it's Don Stettnichs' problem." Gross asked what Campbell meant and was told, "Rol over there, he's from one of them union people, trying to get the union in here . . look at them people down there at Morrell's."5 3 Respondent has admitted that Campbell is a statutory supervisor The complaint alleges the foregoing conversation as comprising un- lawful interrogation occurring about 20 June Sweir, however, placed this conversation as having occurred on 19 July The context of his testi- mony, indicating that Rol's conversation was his first knowledge of union activity, and the fact that he attended the 20 June union meeting establish that Sweir misstated the month s Campbell denied making inquiries concerning union activity or sug- gesting that Rol was making trouble and claimed that he only asked Sweir, "If Don Rol is down there talking to you, how can you get your work done?" Noting the relatively relaxed atmosphere in the plant con- cerning conversations between employees, the similarity between this statement and others attributed to Campbell , and the demeanor of the witnesses, I credit Sweir. Campbell admitted that he had a conversation with Anderson concern- ing his views on the Union wherein, after Anderson suggested that he talk to Don Rol, he asked, "Why would I want to talk to Don Rol? He's a forty-year old kid " He denied interrogating Anderson or threatening to discharge Rol His denial of the conversation with Deelstra and Gross was corroborated by Deelstra However, their denials were less convinc- ing than the affirmative testimony of Gross and Anderson In particular, I find Campbell's explanation of why he could not have had the conversa- tion with Deelstra, a statement to the effect that if he had wanted to fire Rol, he had the authority to do so and would not therefore have had to suggest that Rol's supervisor should fire him, unconvincing Campbell's possession of general supervisory authority over Rol in no way negates the possibility that he might have suggested that his discharge would be a good idea Similarly, I find Deelstra's denial of the alleged conversation unconvincing, when he was asked on direct examination whether such a conversation had taken place, he answered, "Not really " Although the General Counsel, on cross-examination, elicited a broader denial, I con- A few days after his first conversation with Anderson, Campbell returned and told her, "Unions are no good, we don't need `em in the shop." A second meeting was held at the Union's office on 26 June, attended by all the employees who had attended the first meeting except for Swanson and Cundy. About 10 additional employees also attended, including Marlis Anderson. Night-shift welder Lee Wigton did not attend the meeting but, at the request of Rol and Hoffman, so- licited the views of his fellow night-shift employees con- cerning the Union. Subsequent meetings were held on 1 July at Sharon Hallem's home and on 15 July at the home of Don Rol. At this latter meeting, plans were laid for a major rally to be held on Saturday, 20 July, at Sherman Park. On the afternoon of 18 July, Plant Manager Robert Benage spoke to employees and their foremen. Benage told them that they could anticipate a 1-week shutdown in August, as they had had in July, because of low pro- duction requirements for that month. But, he added, they need not worry about October, November, and Decem- ber as the Ford business appeared to be picking up. He then told the employees that he had heard rumors of union activity in the plant and stated that the Company did not want or need a union. He referred to the dues unionized employees would be expected to pay and told the employees that if the Company was organized, it could not be as competitive as Bushhog, which, with lower wage plants in Texas and Mexico, was seeking Ford's loader business. If Respondent lost its Ford busi- ness, Benage stated, it might just as well shut its doors. He then asked employees to report any threatening or harassing conduct by other employees and promised to take care of any such activities even if it meant discharg- ing the guilty employees. Late each month, Ford sends Schwartz its "Whole- goods Shipment Schedule," otherwise known as the Ford report. By that report, Ford obligates itself to pur- chase a given number of loaders over the next 4 months (although deliveries may be accelerated or postponed from one month to another) and predicts possible orders for 4 additional months . Ford authorizes Schwartz to ship the completed loaders, either to warehouses or di- rectly to dealers and distributors, by means of releases. At some times during the year, Schwartz has shipped fewer loaders than Ford has scheduled to that date, a condition known as "undershipped." On other occasions, Schwartz' shipments (based on releases) may actually be ahead of Ford's commitments or "overshipped." By the end of each calendar year, Ford generally seeks to bring the schedule and the shipments into balance either by "Netting in," i.e., increasing their commitments, or by "netting out," i.e., reducing the number of releases. On Friday, 19 July, Scott Jones, Respondent's produc- tion control manager, was advised that Ford would not be furnishing any more releases for July but would allow Respondent to begin shipping some of the loaders under its August commitments. He also learned that Ford in- clude that his answer on direct is indicative of an effort to avoid directly answering the question Finally, I note the similar conversation attributed to Campbell by employee Michael Sweir, supra SCHWARTZ MFG. CO. tended to "net out" over the next several months. At that point in time, according to the most recently re- ceived Ford report, that of June, Respondent was over- shipped to Ford by 229 small loaders and 52 large load- ers. "Netting out" would mean the reduction in ship- ments to Ford (and ultimately a reduction in production by this many loadrs. In the period of January through June 1985, Respondent had shipped an average of ap- proximately 200 large loaders and 360 small loaders to Ford each month.6 In July, Respondent shipped approxi- mately 459 small loaders and 84 large loaders to Ford. Pursuant to the June Ford report, Ford's commitment for August was only 260 small and 80 large loaders some of which had already been shipped in July; its September commitment was for 265 small and 80 large loaders. At least a portion of the "netting out" would apply against these reduced obligations. Jones advised Harold "Skip" Magowan, Schwartz' president, of the business conditions. Magowan decided to await receipt of the July Ford report, due shortly, before taking any action. On the afternoon of Saturday, 20 July, a union meet- ing attended by 40 or more employees was held at Sher- man Park in Sioux Falls. Sharon Hallem, Ed Gross, Lee Wigton, Doyle Schubert, Steve Johannsen, Don Rol, Robert Hoffman, Ed Blair, Dan Kirkpatrick, and Merritt Montgomery addressed the group regarding why they supported the Union. Volunteers were solicited to serve on the Schwartz Workers Organiziiig Committee (SWOC); Gross, Hallem, Rol, Wigton, Hoffman, Ed Blair, Marlis Anderson, Dale Clyde, Wesley Jaqua, Dan Kirkpatrick, Steve Johannsen, Donald Juhnke, John DenBoer, Merritt Montgomery, Charles Bauerle, Teresa Ingalls, Dennis Reifers, Greg DeVaney, Harlan Kruse, John Miller, Kevin T. Jepkes, Mark Freese, Doyle Schu- bert, Steven Noonan, and Sheldon Bohms volunteered. The day-shift members of the organizing committee met again on Monday, 22 July, to plan the week's activi- ties. They decided that the organizing committee would go public on Wednesday, 24 July, by wearing SWOC buttons and by distributing a flyer setting forth the em- ployees' legal rights with respect to organizational activi- ties. It was further decided that a meeting would be held on Thursday, 25 July, in the lunchroom, to refute Ben- age's statements concerning Bushhog, Respondent's com- petitor. At the start of the day shift on Tuesday, 23 July, Benage met with the employees to squelch a rumor con- cerning future plant shutdowns. He stressed, somewhat forcefully, that although there would be a 1-week shut- down in August as a result of the June Ford report, the fall season looked good and no shutdown was planned for September. Respondent's management, including its foremen, reg- ularly hold production meetings on Tuesday and Thurs- day mornings of each week. In the production meeting of Tuesday, 23 July, Benage noted the drop in Ford commitments, as reflected in the June Ford report, from approximately 500 loaders per month to about 350. B As shown by the accumulated plant shipment columns on the Ford reports 883 Magowan cautioned that the Ford report in conjunction with advice from Ford that it would begin in "netting out" indicated the possibility of additional shutdowns through the summer. Benage instructed the foremen to select a skeleton crew to work during the August shut- down. Among those present at the Tuesday production meet- ing was John Lindner, fabrication department leadman, and, at that time, acting foreman in place of Ron Hofer. Lindner was told to select three employees from his de- partment for the skeleton crew and, later that afternoon or the following morning, Lindner reported to Benage that he had made his selections. Critical to their argu- ments with respect to the timing of the layoff decision are the General Counsel's and the Union's contentions that this production meeting took place on Thursday morning, 25 July, rather than Tuesday, 23 July. To sup- port this contention they rely primarily on Lindner's tes- timony to that effect. Reliance is also placed on the testi- mony of Dennis Reifers, who recalled that his foreman, Campbell, asked him on Thursday afternoon to work during the August shutdown, and that of Ed Gross and Steve Johannsen, to whom Lindner subsequently (on 3 August) expressed his surprise at the timing of the layoff announcement. Although I am convinced that John Lindner made every effort to testify honestly and accurately regarding all matters about which he was interrogated, I am equal- ly convinced that his testimony concerning the date of this meeting was in error. In reaching this conclusion, I note that Lindner placed this meeting in the last week in July in response to a leading question; he appeared not to independently recall the week in which it occurred. More importantly, he testified with reasonable certainty that Scott Jones, the production control manager, was at the meeting. Jones, however, attended the Tuesday meet- ing but did not attend any meeting on Thursday, he was in Minneapolis attending a computer training course on that day. His testimony is corroborated by the expense voucher of Keith Brunsting, Respondent's controller. That voucher indicates that Jones traveled to Minneapo- lis with Brunsting in the latter's private automobile. At- tached to the voucher is a receipt indicating meals pur- chased for two people. I note further, in connection with this credibility resolution, that Don Rol testified that Stettnichs asked him to work on the skeleton crew for the August shutdown "several days before the announce- ment on Thursday, the 25th, that there would be a layoff." This is some further evidence that the foremen were directed to select the skeleton crew, and the em- ployees for that crew were selected, before Thursday, 25 July. On that Tuesday, but after the above-described pro- duction meeting, Magowan received the July Ford report, setting forth Ford's commitment for loaders for July through October. According to that report, Ford's commitment was for 480 small loaders and 75 large load- ers in July (already shipped), 290 small loaders and 80 large loaders in August (a slight improvement over the June report), 265 small loaders and 80 large loaders in September, and 435 small loaders and 145 large loaders 884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in October. The report also showed that Schwartz re- mained overshipped by 228 small and 31 large loaders as of July. After considering the July Ford report, Magowan called Ford's representative, Ventzke. Ventzke confirmed that Ford would commence "netting out." Ford's warehouses were full and business was flat, he told Magowan and, he said , shipments would be brought in line with the requirements of the Ford plan over the next several months. Magowan called Herbert Miller, Amerequip's vice president of operations and one of its owners, and suggested that a layoff, rather than a plantwide shutdown, might be indicated. Consideration of the layoff continued with discussions among Magowan, Benage, and Jones on Wednesday , 24 July.7 On Wednesday, Benage, with Foremen Stettnichs and Campbell, worked out the details of the layoff. Benage determined how many people he needed to retain to meet production demands and, he testified, the names of those to be laid off were determined between approxi- mately 10:30 a.m. and 1:30 p.m. On that same day, Magowan informed Miller of his determination that a layoff appeared to be inevitable. Miller directed Magowan to call him back on 25 July with the final de- tails regarding the extent of the layoff. Magowan com- plied and, between noon and 2 p.m. on Thursday, 25 July, Miller approved the layoff plans.8 Contemporaneous with management's deliberations concerning the layoff, at least some members of the Union's organizational committee appeared at work on Wednesday, 24 July, wearing their SWOC buttons. The committee also posted and distributed a lengthy flyer de- tailing employee organizational rights under the Act. At least some of the employees felt that their display of union support did not go unnoticed by Respondent's supervisors. Craig Latterell believed that Stettnichs stared at him and other employees who were "pro- union" and Mike Sweir felt that his foreman, Campbell, was less friendly and less willing to engage in casual con- versation once the emloyees began to wear SWOC but- tons. Dennis Reifers heard Foreman Doug Koepp tell Stettnichs that he only counted five people wearing but- tons. Ed Blair claimed that on 25 July, Foreman Stett- nichs "jumped" Dale Clyde and him "for not getting enough work done and spending too much time talking on the paint line." On 25 July, the first day Marlis An- derson wore her button in the plant, Sweir observed Campbell take notice of the button and walk away. To Anderson, it appeared that he walked in the direction of Contrary to the contentions of the Union, Benage's testimony in this proceeding, that he learned of the July Ford report from Magowan on Wednesday morning, 24 July, is not "totally mconsistent" with his testi- mony in the representation case hearing that he learned of it on "Monday, Tuesday, right in there " He did not testify in the earlier hear- ing with any certainty concerning the date. a Miller testified in the R case hearing but did not testify in the instant proceeding His testimony in the earlier hearing cannot be said to contra- dict Magowan's testimony here. Thus, while Miller testified on cross-ex- aannation (Tr R case 47) that he did not play an active role in the layoff decision until the following week, when he received a letter from the em- ployees (discussed infra), he also testified (on recross-examination (Tr. R case 71-72)) that he had discussions with Magowan about the need to reduce manpower and about the extent of the required reduction within a day of when Magowan received the July Ford report the office. Later that day, according to Anderson, Camp- bell returned. He told her: You know, if Herb Miller ever thought that there was going to be a union brought into this shop, Herb Miller would say "fuck you, get out, we don't need it" or . . . possibly he might negotiate a 20- cent hour raise, or maybe give you a holiday or take a holiday or something else away from you. ... If there were a union in the shop you might be able to be sent over to the paint line. Without a union in the shop you can be sent over to the paint line if you ran out of work in your own department, but if there was a union, they could still send you over to the paint line to work if you are out of work in your own department, but you might possi- bly have to work for their wages, rather than what you are making on your own in assembly. 9 At noon on Thursday, 25 July, Don Rol and Ed Gross addressed their fellow employees in the lunchroom to refute Benage's statements of the preceding week con- cerning Bushhog. Their investigation, they told the other employees, revealed that the wages paid the Bushhog workers surpassed those paid by Respondent and includ- ed annual cost-of-living increases . Moreover, contrary to what Benage had stated, Bushhog did not have a plant in Mexico; its production facilities were in Alabama, Texas, and Kansas. The wage comparison was written down and given to someone on the night shift for distribution there. Present in the lunchroom during this presentation was at least one supervisor, Don Stettnichs. At 3:10 p.m. on 25 July, Benage called the employees to a meeting. He opened the meeting by telling the em- ployees that Respondent did not want or need a union and suggested that any problems could be worked out on a one-to-one basis between the employees and manage- ment. He alluded to the possibility of strikes and the risks of fines or permanent replacement. He also spoke about other unionized facilities in the geographic area, Morrell and Litton, and mentioned the concession bargaining taking place at Morrell. After his opening remarks concerning unionization, Benage announced that Respondent had decided to con- vert the 1-week shutdown into a layoff of approximately 26 employees. He claimed that some employees had ap- proached him and complained that it would be easier on them if there were a layoff of some people rather than a shutdown involving everyone. He also told the employ- ees what the July Ford reports showed and of Ford's in- tention to "net out." He explained that if Respondent did not have a layoff, the plant would have to be shut down again in September and possibly October, for 2-week pe- e Campbell recalled making the statements concerning temporary transfers from one department to another in his conversation with Ander- son in June He essentially denied making the other statements attributed to him, asserting that he would not have discussed the Union with An- derson at that point and time because, by then, he was aware of her sup- port for the Union Anderson impressed me as the more credible witness of the two and Campbell's explanation of why he would not have made such statements to her seemed contrived . I therefore credit Anderson's testimony SCHWARTZ MFG. CO. nods of time. In response to questions, he stated that the layoffs would be by seniority, department, and shift and, when asked, said that even those wearing SWOC buttons would be recalled when worked picked up. After Benage's announcement of the layoff, the orga- nizing committee met at Sharon Hallem's home and set up a rally to be conducted that evening in the plant parking lot during the night-shift dinner break at 8:45 p.m. The rally was held as planned. Among the employ- ees who spoke were Ed Gross, Sharon Hallem, Don Rol, Dennis Reefers, Lee Wigton, and Steve Johannsen. There was considerable yelling and shouting and the employees were observed by Benage and some of the foremen. To counter Benage's claim that some employees preferred a layoff to a shutdown, a vote was taken on that question. A similar rally and vote was conducted for the incoming day shift at 6 a.m. on Friday, 26 July. The morning edi- tion of the Argus-Leader, the Sioux Falls newspaper, carried an article about the scheduled layoff and the em- ployees' protest. The article featured a photograph of an angry Don Rol and comments by Ed Gross. Respondent's lunchroom, used by both employees and supervisors, contains three bulletin boards. Two of those boards are glass enclosed and are maintained for the use of Respondent. The third is an uncovered board on which employees may post notices, including such things as personal ads selling cars or boats. Early in the Union's campaign, this third board was also used for the posting of some organizational literature. The Union's flyer, set- ting forth the employees' legal rights in an organizational campaign, in addition to being distributed to the employ- ees in the plant, was posted on this bulletin board on about Wednesday, 24 July. On 25 July, Ed Gross saw Foreman Don Stettnichs exit; he was carrying a piece of paper in one hand and the cup in the other. Shortly thereafter, when Gross went into the lunchroom he ob- served that the Union's "Legal Rights" posting was no longer on the bulletin board. On the following morning, 26 July, Gross observed that Don Rol's notes comparing the Bushhog wages with Respondent's was posted on the bulletin board along with a copy of the newspaper article featuring Rol's pic- ture. At 7:20 a.m. that day, Gross claimed, he observed Foreman Campbell remove the wage comparison from the bulletin board. Later that same day, he claimed he observed Campbell and Stettnichs standing by the bulle- tin board, looking at the posted newspaper article. He heard Campbell say, "What a mug," and Stettnichs re- spond, "Wouldn't you like your daughter to bring home something like that." He then saw Campbell take this newspaper article off the board, roll it up, and pocket it. Campbell and Stettnichs admit the conversation attrib- uted to them with regard to the newspaper article but claim that it took place in the front office where copies of the newspaper itself, and not reproductions of the arti- cle, were laying about. Both deny removing any union literature from the employee bulletin board, stating that they knew from a prior Board case that to do so might constitute a violation of the statute. Stettnichs did admit to removing a copy of the newspaper article from the Company's glass-covered bulletin board. Two unit em- ployees, Merle and Ken Baatz, admit to removing union 885 postings from the open bulletin board on a number of oc- casions. Noting that no employee other than Gross testified to actual observations of supervisors removing union post- ings, that Gross did not actually see Stettnichs remove the "Legal Rights" posting, that Merle and Ken Baatz admitted that they had removed some postings, and final- ly noting the candor of both Campbell and Stettnichs concerning the postings and their actions and comments with regard to them, I credit Stettnichs and, in this in- stance, Campbell. The General Counsel has failed to prove that Respondent's supervisors removed union post- ings from the bulletin boards or otherwise prohibited em- ployees from posting union literature. As previously described, the organizing committee conducted their own "election" among the employees to determine whether the employees favored complete plant shutdowns or selected layoffs. The organizing com- mittee also solicited signatures on petitions asking that the Employer recognize the employees' vote. The peti- tions and vote results, overwhelmingly favoring shut- downs, were presented to Benage by noon on Friday, 26 July. Benage recalled that it was Don Rol and Sharon Hallem who brought him the petitions; he also acknowl- edged that Marlis Anderson and Daryl Huff spoke to him about the vote and the petitions. Employee Craig Latterell also claimed to be in the front of the group when the petitions were presented to Benage at the con- clusion of Benage's lunch hour. At the end of the day shift on Friday, Respondent posted, in a locked case, a list of 26 laid-off employees, by shift and department-10 The notice stated: "Due to the economy (or lack of orders), there will be a layoff until orders pick up ...." For seniority purposes, Schwartz uses the date Amere- quip acquired the Sioux Falls plant from Chromalloy, 22 December 1983, rather than the employees' earlier dates of hire by Chromalloy. Of those listed for layoff, nine" were laid off while persons in their departments with less Schwartz or less Chromalloy's seniority were retained. The remaining 1712 were the least senior employees in their departments. About 3:30 on Friday afternoon, after the layoff list was posted, between 35 and 50 employees gathered at the plant and entered the office. They were accompanied by the union representatives, including Bob Kingsley. Two employees, Don Juhnke and either Greg DeVaney or Charles Bauerle attempted to talk with Benage in the latter's office. Benage followed an apparent company practice of never holding a discussion with more than one employee at a time and insisted that he would only talk to one or the other of these individuals. Juhnke stayed in Benage's office until Kingsley learned that he 10 The list, R Exh. 5, actually contained 28 names Two employees, Kent Schumacher and Thomas Leesch, quit 11 Charles Bauerle, Ed Blair, Dale Clyde, John DenBoer, Ed Gross, Jan Johnson, Craig Latterell, Dennis Reifers, and Don Rol 12 Hiram Anderson, Steve Blair, Terry Bohnenkamp, Romeo Eagle Horse, Randolph Ekanger, Sharon Hallem, Robert Hoffman, Wesley Jaqua, Larry Krueger, Alan Lawrence, Dennis Lupkes, Mike McKee, John Miller, Arnold Peterson, Mike Sweir, Charles Temple, and Richard VanMeveren 886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was in there on his own. Kingsley entered Benage's office, there was a loud and angry confrontation, and Juhnke and Kingsley exited. During this time, the re- maining employees were in the office hallway chanting their support for the Union and their demands that Re- spondent recognize their vote. At one point, Don Rol di- rected a common, obscene gesture at Foreman Campbell. During this protest, Ed Gross was standing near the office of Donna Lucas, the accounts payable clerk. Ac- cording to Gross, Foreman Douglas Koepp'3 looked out of that office, laughed, and was heard to say, "them union fuckers they sure got their just." Koepp denied making any such statement or even looking out of the office during the demonstration. Lucas and Kathryn Thaler, a billing clerk, who were in the office with Koepp during at least part of the demonstration, did not hear Koepp make any such statement. No employees were called by the General Counsel to corroborate Gross' testimony. Considering all the foregoing circum- stances, including the confusion inherent in the situation, the noise, the evidence tending to corroborate Koepp, and Koepp's credible demeanor and appearance, I credit Koepp's testimony and find that the General Counsel has failed to sustain her burden of proving that Koepp made the remark attributed to him by Gross. The demonstration or protest in Respondent's offices lasted between 5 and 10 minutes. The employees left, continuing their chants. Benage admitted that he saw, in addition to DeVaney and Juhnke, Hallem, Rol, Larry Krueger, Charles Temple, and John Miller participating in the demonstration. Also participating were Gross, Marty Barber, Teresa Ingalls, Dale Clyde, and many others. On Monday, 29 July, Respondent sent a letter, over Benage's signature, to each of the laid-off employees, purporting to "clarify . . . current and future status with the Company." The letter stated, inter alia, the follow- ing: Last Friday, 27 employees, including yourself, were layed [sic] off. The reduction in force, among the largest we have ever had, cut our production staff by almost 30%. Unfortunately, we do not see any end in sight to the depressed market conditions which the Company has been experiencing. As you know, the agricultural implements business has been stagnant for quite some time, and our forecasts do not show any improvements at all for the next one and a half to two years. Consequently, I fmd it necessary to inform you that your layoff must be classified as a permanent [sic] one. I wish that the news were better, but it would only be optimistic "Wishful Thinking" if we said there was any chance of you being recalled to work in the next two years, or ever. This letter, according to Magowan, was drafted on Sat- urday, 27 July, and typed for Benage's signature on Monday. As claimed by Magowan, it issued because he felt it would be more fair to the employees if they knew ' 8 Respondent admits Koepp's supervisory status. of the improbability of their recall. About the same time that they received this letter, the employees also re- ceived change notices, dated "7-30-85," stating that they had been "Discharged/Terminated" as of "7-26-85" "due to economic conditions." Notwithstanding the lan- guage of these letters and change notices, Benage ac- knowledged that the employees retained recall rights. When employees Lee Wigton, Greg DeVaney, and Steve Johannsen reported for work on the night shift of 29 July, wearing their SWOC buttons, they were greeted at the door by Benage. Benage asked DeVaney and Jo- hannsen whether they had been laid off and, when they said that they had not, asked for their names and depart- ments. Campbell and Stettnichs came up to Wigton, smil- ing or grinning, and asked him, "What are you doing here, Lee? You're laid off." When Wigton told them that he had not been on the layoff list, their grins changed to frowns and they proceeded to check the list. Benage claims that he was not very familiar with the employees on the night shift and was meeting everyone at the door, allegedly because of the incident in his office with Kingsley and the accompanying disturbance on Friday afternoon. He does not deny the questions attrib- uted to him by DeVaney and Johannsen. Similarly, Stett- nichs admits questioning Wigton. He claims that he raised the question because Douglas Koepp had suggest- ed that Wigton had been laid off. There was no denial of Wigton's claim that the supervisory grins changed to frowns when they learned that Wigton was not among those laid off. DeVaney, at least, observed no other employees wear- ing SWOC buttons on the evening of 29 July. No other evidence was adduced to establish that any employees other than these three were or were not wearing such buttons that evening. About the first of August, laid-off employees Don Rol and Sharon Hallem came into the company lunchroom during the night-shift's lunch break. They were observed by Benage and Magowan. Magowan, stating that they were on private property, ordered them to leave. Neither Hallem nor Rol claimed that he or she engaged in union activity when this occurred. Benage recalled that neither was talking to any other employee when he observed them and ordered them out. Benage asserted that he or- dered them to leave because they had been part of what he referred to as the 26 July "mob scene" and he wanted to avoid a repetition of that event. It is essentially uncon- tradicted that, both before and after this incident, laid-off employees, former employees, and friends and relatives of employees came into the lunchroom and, on occasion, on to the shop floor. Sometimes they were observed by or spoke to members of supervision. Benage and Camp- bell claimed that, on some occasions, they had asked laid-off employees to leave the premises. Their testimony was uncontradicted. On 30 July, Marlis Anderson, Ed Gross, Lee Wigton, and Don Rol wrote a long letter to Herbert Miller. They outlined the events surrounding the layoff, the employee vote on the question of a layoff or a shutdown, and Ben- age's refusal to consider the results of that vote. They also intimated that the layoff was discriminatory and SCHWARTZ MFG. CO. 887 asked Miller to meet with the organizing committee and a representative of the Union. Miller responded on 1 August, disclaiming any recog- nition of the organizing committee and asserting business justifications for the layoff. He stated, however, as fol- lows: Seniority was considered in layoffs that were made last week just as it has been in the past. I will review these layoffs to make sure that seniority was respected to the greatest extent possible. On 1 August, the Union held a meeting at a local motel. At this time a substantial number of employees signed union authorization cards. Other employees signed cards in response to individual solicitations else- where. A total of 58 employees, out of 90 then in the unit, signed authorization cards between 1 and 3 August. On 2 August, the Union demanded recognition as rep- resentative of Respondent's employees in the following unit, admitted by Respondent to be appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time production and maintenance employees employed by the Employer at its Sioux Falls, South Dakota facility , including shipping ad receiving department employees, group leaders, and truckdrivers, excluding office clerical employees, plant industrial engineer , production control clerks, production control helper, cycle counter, guards and supervisors as defined in the Act. Respondent declined to voluntarily grant recognition. On 5 August, the Union filed ULP charges, alleging the layoff as violative of Section 8(a)(3) and (1). On 6 August, the Union filed a petition, Case 18-RC-13822, seeking certification as the employees' collective-bargain- ing representative. On the morning of 8 August, nine of the laid-off em- ployees were called to a meeting with Miller, Magowan, and Benage Those employees were Ed Gross, Don Rol, Charles Bauerle, Dale Clyde, John DenBoer, Jan John- son, Craig Latterell, Dennis Reifers, and Steve Blair. The last-named individual was there by mistake; Re- spondent had intended to call Ed Blair. Miller reviewed the layoff and told them that mistakes had been made, that they had been improperly selected for layoff. They (except for Steve Blair) were all reinstated with backpay; DenBoer declined reinstatement. Miller also discussed the economic reasons for the layoff with these employ- ees. Before the meeting concluded, Rol told Respond- ent's managers that the Union's organizational efforts would continue. Magowan replied, "That's the other matter we don't want to talk about." Ed Blair was called to a similar meeting the following morning. He was also told of the Company's conclusion that mistakes had been made in the layoffs and that he was being recalled with backpay. Magowan concluded, stating, "Now things are back to normal I see you are still wearing your button." Blair acknowledged that he was and stated that he would continue to do so.14 Magowan testified that Respondent took this action, following receipt of the employees' letter, so that the layoff would follow overall plant seniority, by depart- ments, without regard to shifts, and in order to reduce the possibility of litigation. On the same day that the eight employees were re- called, Respondent called William Blair, Sheldon Bohms, Greg DeVaney, Mark Freese, Steve Johannsen, Doyle Schubert, Kevin Tjepkes, and Lee Wigton into the office to be told that they were going to be permanently laid off because of economic conditions. They were also told, "when and if business picked up," they would be re- called. The change notices they received stated that each of them had been "terminated due to economic condi- tions." With the exception of DeVaney and Wigton, all these employees had been hired after 22 December 1983. Wigton's seniority date was 14 November 1983 and De- Vaney's was 12 December 1983. At the conclusion of the recall and substitution, the 26 persons who had been laid off were those who had the least overall plant seniority in their departments, without regard to shift. A hearing on the Union's representation petition was held on 23 August 1985. The principle issue litigated was the eligibility to vote of those who had been laid off. Re- spondent acknowledged, at that time, that the laid-off employees had recall rights but disputed whether they had a reasonable expectancy of recall. The issue was not resolved at that time. In light of the pending unfair labor practices charges, that issue was necessarily deferred to this proceeding. The laid-off or terminated employees, it was determined, were to vote challenged ballots. The Regional Director's Decision and Direction of Election issued on 1 October and the election was scheduled for 29 October. On 28 August, at the Union's request, Respondent posted a notice in the plant stating: "laid off employees have recall rights for a period equal to their Schwartz/- Amerequip seniority, up to a maximum of one year." In the early afternoon of 4 September, Foreman Koepp observed Ed Blair and Dale Clyde performing their work (cleaning and chipping loader parts on the spray painting line in preparation for painting) at a pace that he deemed inordinately slow. He reported this to their foreman, Stettnichs, asking whether it should take 20 minutes for the employees to do a single rack of parts. When Stettnichs replied that it should not, Koepp in- formed him that these employees were taking that long. Together, they observed Blair and Clyde and their ob- servations corroborated Koepp's earlier impression. Stett- nichs then got a report of the morning's production. Ac- cording to Stettnichs, Clyde and Blair had completed 39 racks that day, averaging 20 minutes per rack. Stettnichs spoke to both employees about their production, warning them that they were working too slowly and spending too much time talking. Shortly thereafter, he gave them documented verbal warnings, repeating what they had 14 Magowan did not contradict Blaze's testimony 888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD been told. Nothing was said linking their warnings to their union activity. Clyde and Blair deny that they were working slowly on 4 September and point out that the two of them were doing the work of three men; Harlan Fluit, who normal- ly wire brushed the parts prior to their chipping and cleaning, was absent. Their pace, they claimed, was not such as to slow down production as they were still ahead of the spray painters.' 5 This is not the first time that employees have been given written warnings for "loafing" on the job. Re- spondent introduced two such warnings that Stettnichs had previously given other employees. Neither is this in- cident the only time in the recent past when these two employees had been warned about the pace of their work. On 25 July, Stettnichs had spoken to the two of them, "chewing them out" for not getting enough work done and spending too much time talking . Again, about 13 August, after both of them had been recalled from the layoff, Campbell "jumped" them with an accusation that they were spending too much time talking. Although Blair and Clyde deny that the 25 July or 13 August verbal warnings were justified, neither of these incidents is alleged in the complaint to have been discriminatorily motivated and the General Counsel has expressly dis- claimed any intention to so allege them. I must therefore assume that they were not so motivated. The record con- tains no indication that other union supporters were dis- ciplined, fairly or unfairly, following the onset of union activity. Respondent has adduced evidence through other em- ployees to the effect that, during the period of the layoff, Clyde repeatedly stated that he did not intend to work at a full pace and that he would not work overtime until everyone was called back to work. Similarly, Blair was quoted as saying that he would not work overtime until everyone was called back from the layoff. Although these statements were testified to by employees who were generally opposed to the Union's campaign, they were credibly offered and not contradicted. On the other hand, the testimony of both Blair and Clyde was less than fully credible with respect to the work they were doing on 4 September. Blair was sarcastic and Clyde was a somewhat belligerent and evasive witness. Just before work on a morning in October,'s Robert Kingsley, Sharon Hallem, Larry Krueger, and John Miller were distributing union leaflets at the entrance to the lunchroom. Krueger and Miller entered the lunch- room. They had passed out their leaflets and were talk- ing to their fellow employees when the 6:55 a.m. warn- ing buzzer rang. About that point, Benage, who had been alerted to their presence by Campbell, entered the lunchroom and ordered them to leave. 15 Stettnichs acknowledged that his calculations with respect to Clyde failed to take into account that Clyde was doing Flint's work during the morning hours However, as he told the employees, the warnings were based on his own observations of their work pace and talking that day 16 The General Counsel contends that this incident happened on 4 Oc- tober, Respondent contends that it occurred on 29 October, the day of the NLRB election I do not believe that the date makes a difference with respect to the legality of Respondent's conduct here Respondent held meetings with the employees at the end of each shift on 17 October to state Respondent's opposition to the Union's campaign.'' Magowan, Miller, and Benage were present for the day-shift meeting. At the conclusion of the meeting, Miller announced that the Company had hats and "Vote No" buttons for the em- ployees; he expressed the hope everyone would take one. As the employees left the meeting, Dave Koepp, and em- ployee and the son of a foreman, offered each of them a black baseball-style cap with the Amerequip logo to which had been affixed two "Vote No" buttons. One was a white button, 3 inches in diameter, containing the words "Vote Right-Vote No." The second button, I- 3/4 inches in diameter, was orange with white lettering stating, "Vote No." Although the employees were en- couraged to take and wear these hats, the credible evi- dence establishes that the management representatives were not present in the lunchroom when employees ac- cepted or refused them. I s The representation election was conducted on 29 Oc- tober in afternoon and evening sessions. There were 23 votes cast for the Union, 31 cast against it, and 25 chal- lenged ballots that were sufficient in number to affect the results of the election. Both the Employer and the Union filed timely objections to the conduct of the election. The Employer's objections were overruled by the Acting Regional Director in the Supplemental Decision and Order that issued on 26 December. Certain of the Union's objections, those that were contemporaneous with its unfair labor practice charges, were found to raise substantial issues warranting a hearing and, together with the challenges, were consolidated for hearing with the instant complaint. All the laid-off employees were recalled by Respond- ent on 18 November. C. Analysis and Conclusions 1. The 8(a)(1) allegations-prelayoff a. Interrogation The complaint alleges that Foreman Denny Campbell unlawfully interrogated employees on or about 20 and 25 June. I have found that Campbell questioned employees Mike Sweir and Marlis Anderson whether Don Rol, an- other employee, was talking about unions. In the course of his questioning, Campbell referred to Rol as "talking trouble" and disparaged both Rol and unions generally. Examining these incidents under the totality of circum- 17 The General Counsel makes no contentions concerning Magowan's remarks at these meetings. 18 Magowan's testimony to this effect was corroborated by Benage and several employees. One employee, Marv Fritz, testified that he was the first employee out the door at the meeting's conclusion. When he ex- cited, he saw Miller, Benage, and Magowan outside the door . Only Ed Blair testified that the management representatives were still present when the hats were distributed I find his testimony less convincing and less credible than that of Magowan , Benage, and other employees Simi- larly, I reject his testimony to the effect that he subsequently saw Fore- man Stettmchs passing out "Vote No" buttons to employees on the paint line Stettmchs and the only two employees identified by Blair as having received these buttons from Stettnichs contradicted Blair's testimony, their denials were more credible than Blair's affirmative testimony SCHWARTZ MFG. CO. 889 stances test required by Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985), 1 must find them to be violative of Section 8(axl). None of the employees involved were known union adherents at that point in time, Campbell initiated the conversations, he questioned two employees about the union activity of a third employee, for which there can be no justification, and his questioning was in the context of remarks hostile to both union activity and to the employee he suspected of engaging in it. b. Threats On 25 June, Ed Gross overheard Campbell state that if Don Rol were in his department, he would be fired. Campbell explained to Gross that it was Rol's union ac- tivity that would cause him to fire Rol. No citation of authorities is required to demonstrate that such a threat violates Section 8(a)(l). On 25 July, Campbell told Marlis Anderson what he thought Herb Miller, Respondent's vice president, would do if Miller thought that the employees were going to unionize. In a somewhat disjointed statement, he suggest- ed that Miller might say, "Fuck you, get out, we don't need it." Although there is no evidence that Miller had, if fact, ever made such a threat, Campbell's statement that he might clearly threatens retaliation against em- ployees for union activity. See Dryers Grand Ice Cream, 279 NLRB 817 (1986) (Member Johansen dissenting), where the Board, in the context of a representation case, stated at 817: Here, Burns [a supervisor] did not expressly threat- en that he would use his own authority to retaliate against employees who failed to support the Union . .. Bums repeated the theme that the employees had no job security without the Union and, by his reference to a fellow supervisor . . fueled fears that if the Union lost the election, prounion employ- ees would be discharged by others in management for pretextual reasons . . . . [W]e find that [a] .. . supervisor who himself threatens retaliation, or who by virtue of his equal standing with fellow supervi- sors, suggests that other supervisors will retaliate against prounion advocates . . . reasonably tends to effectively coerce employees in the exercise of their free choice in the election. See also NLRB v. Gissel Packing Co., 395 U.S. 575, 616- 617 (1969), where the Court pointed out that the evalua- tion of employer threats must take into account "the nec- essary tendency" of employees "to pick up intended im- plications . . . that might be more readily dismissed by a more disinterested ear." The Court also pointed out that a "prediction must be carefully phrased on the basis of objective fact to convey . . . demonstrably probable consequences beyond [the employer's] control ... . Campbell's statement was not such a carefully proscribed prediction. Moreover, I do not find the statement to be ambiguous merely because it does not say who would be discharged, as agreed by Respondent. And, even if the statement were to be deemed ambiguous, the burden of clarifying it would fall on its creator and, there being no clarification, whatever ambiguity exists must be con- strued against Respondent. Pennypower Shopping News, 253 NLRB 85 (1980). Campbell's statement to Anderson, I find, constitutes an additional threat in violation of Sec- tion 8(a)(1). c. Prohibiting the posting of union literature The complaint alleges that Respondent's supervisors discriminatorily removed prounion postings from an em- ployee-use bulletin board, thereby demonstrating a prohi- bition against such postings. There was no contention that Respondent actually promulgated any rule against such postings and I have found the evidence insufficient to sustain the General Counsel's burden that Respond- ent's supervisors removed prounion postings. According- ly, I shall recommend that this allegation be dismissed. 2. The 8(a)(1) allegation-postlayoff a. Implied threat The General Counsel contends, but I have found insuf- ficient evidence to establish, that Foreman Douglas Koepp stated in reference to the laid-off employees, "Them union flickers sure got their justs." I shall there- fore recommend that this allegation be dismissed.19 b. Exclusion of laid-off employees from the lunchroom-Objectionable conduct and 8(a)(1) On 1 August, Magowan and Benage observed Rol and Hallem in the lunchroom during the night-shift's break and ordered them to leave. Although Rol and Hallem were open union supporters, they were not engaged in any union activity at that time. Their exclusion, although not entirely contrary to company policy, was unusual; most frequently, off-duty or laid-off employees, retirees, and employees' family and friends were allowed to enter the plant without interference. They were excluded, Benage explained, because they had participated in the disturbance in the office on 26 July and he feared a repe- tition of that event. On either 4 or 29 October, laid-off employees Larry Krueger and John Miller, with others, were distributing union literature outside the plant entrance before the start of work. Miller and Krueger went in to the lunch- room, where they passed out some additional flyers and left some on the tables. When the 5-minute warning buzzer rang, they had just completed their distribution of union literature and were talking to some of their fellow employees; at that point, Benage observed them and or- dered them from the plant. Contrary to Respondent's contention, I find that they were still engaged in a con- tinuous course of union activity at the point of their ex- pulsion. 19 Even if I were to have found the statement made as alleged, it would add little support to the General Counsel's 8(a)(3) allegations as Koepp was not involved in either the layoff decision or the selection of employees for layoff. See John J Hudson, Inc, 275 NLRB 874 (1985) (Member Dennis dissenting) 890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Although I would agree with Respondent that it did not violate Section 8(a)(1) by its 1 August order that Rol and Hallem leave the premises, both because they were not engaged in any union activity at that time and be- cause Respondent had a reason to fear that the recent 26 July incident might be repeated, I cannot agree that its expulsion of Krueger and Miller was similarly protected. In Continental Bus System, 229 NLRB 1262 (1977) (Chairman Fanning concurring, Member Walter dissent- ing), the Board narrowly construed its earlier holding in GTE Lenkurt, Inc., 204 NLRB 921 (1973), and stated at 1262: In order to effectuate the policies of the Act, a no- access rule is valid only if it (1) limits access solely with respect to the interior of the plant and other working areas; (2) is clearly disseminated to all em- ployees; and (3) applies to off-duty employees seek- ing access to the plant for any purpose and not just to those employees engaging in union activity. Except when justified by business reasons, a rule which denies off-duty employees entry to parking lots, gates, and other nonworking areas will be found invalid. See also Tri-County Medical Center, 222 NLRB 1089 (1976). Krueger and Miller were off-duty employees2o who were engaged in union activities in the plant lunch- room, nonwork area. See Hudson Oxygen Therapy Sales, 264 NLRB 61, 72 (1982). Inasmuch as Respondent did not have any clearly disseminated rule nondiscriminatori- ly denying access to off-duty employees for all purposes, and, in fact, had no uniformly applied rule at all, its ex- clusion of these employees who were engaging in union activity must be found unlawful, at least in the absence of a valid business reason for their exclusion. Respond- ent's reliance on the 26 July scene in its offices is insuffi- cient to justify this exclusion. Even assuming that the 26 July incident was so intolerable as to permit some exclu- sions, that incident had occurred between 2 and 3 months earlier, under unique circumstances (the sudden announcement of the layoff), and there had been no fur- ther incidents of a like nature notwithstanding that the parties were engaged in a hotly contested representation contest. Respondent no longer had a reasonable basis to fear repetition of that event. Respondent, on brief, also alluded to the hostile feelings potentially harbored by laid-off employees and the possibility that such employ- ees might seek to "get even" or disrupt work. This is sheer speculation, based on nothing that had occurred, and speculation must not be allowed to determine the permissible scope of employee union activity. According- ly, I find that by prohibiting off-duty employees from en- gaging in union activities in nonwork areas of the plant, Respondent has violated Section 8(a)(1). c. Distribution of procompany insignia-Objectionable conduct and 8(a)(1) About 17 October, at the conclusion of a meeting where Respondent's managers urged the employees not to vote for the Union, hats with the Amerequip logo and "Vote No" buttons were distributed. They were brought into the lunchroom by a nonsupervisory employee who also distributed them. Respondent's management urged the employees to take and wear the hats but, as I have found, were not present when the hats were distributed. Notwithstanding this finding, the question remains whether Respondent's distribution of these hats and but- tons was a coercive attempt to make employees declare their company or union support. In Farah Mfg., 204 NLRB 173 (1973), the employer made procompany badges available to employees by placing them in an open box in a location where both employees and supervisors could take them. The Board, affirming the decision of the administrative law judge, held that inasmuch as merely providing a supply of the badges at a central location did not pressure the employ- ees into accepting or rejecting them, there was no coer- cion in violation of Section 8(a)(1). The facts in Farah were distinguished from Garland Knitting Mills, 170 NLRB 821 (1968), where impermissible pressure was found in the actions of supervisors who, by distributing the badges, observed who accepted or rejected them. In McDonald's, 214 NLRB 879 (1974), the Board (Member Jenkins dissenting on other grounds) applied Farah to a situation wherein the supervisors merely wore "Vote No" badges and only gave them to employees who re- quested them. Concluding that Farah held that mere dis- tribution, without pressure being placed on the employ- ees to wear open proclamations of support, was not vio- lative of Section 8(a)(l), the Board dismissed the interro- gation allegation. Similarly, in Black Dot, 239 NLRB 929 (1978), a representation case, the Board concluded that an "employer's conduct in merely making buttons avail- able to employees on a voluntary basis, in the absence of supervisory involvement in the distribution process and unaccompanied by independent coercive conduct," was not objectionable conduct.21 In Pillowtex Corp., 234 NLRB 560 (1978), the Board found the requisite coercive conduct, sufficient to set aside an election, in the actions of a supervisor who passed a box of "Vote No" buttons in front of each em- ployee and placed a button of each employee's machine. The Board note that: 20 As discussed hereinafter, I have concluded that the laid-off employ- ees had a reasonable expectation of recall Their status is therefore that of off-duty employees See S. B Thomas, 256 NLRB 791 (1981), holding that if laid -off employees do not have a reasonable expectation of recall, they are not considered as off-duty employees for the purposes of the Board's no-access rules Implicit in S B Thomas is the holding that laid- off employees with a reasonable expectation are to be treated as off-duty employees under such rules. Moreover, pursuant to the Decision and Di- rection of Election, these laid -off employees were to cast challenged bal- lots in the forthcoming election , they were thus vitally interested, as em- ployees, in the outcome of that election When employees are approached by a supervisor and offered buttons such as the ones in issue, they have only two alternatives: accept the buttons and thereby acknowledge opposition to the Union; or 21 The Board also noted that although "a more stringent standard ap- plies to conduct alleged to be objectionable," it believed that Farah and McDonald's provided adequate criterion to ensure that laboratory condi- tions were met SCHWARTZ MFG. CO. reject them, and thereby indicate their support for the Union. In either case, the fact that the employ- ees must make an observable choice is a form of in- terrogation. Furthermore, should employees feel compelled to choose a button containing a message opposite to their views, that is coercion and it like- wise interferes with the election. Pillowtex was applied by the Board in Tappan Co., 254 NLRB 656 (1981) (Member Penello dissenting), where a supervisor merely carried "Vote No" buttons and antiun- ion T-shirts while he inspected the work of his employ- ees and only gave them to those who asked for them. On the basis of that conduct, the Board reversed the deci- sion of an administrative law judge, found objectionable conduct,22 and set aside the election. Neither the judge nor the Board distinguished or otherwise referred to Farah or McDonald s. It would seem that McDonald's, at least, has been implicitly overruled. Finally, in R. L. White Co., 262 NLRB 575, 589 (1982), supervisors carried boxes of procompany T-shirts, in sufficient numbers for each employee to take one, into their departments and made them available to the em- ployees. On those facts, and without regard to whatever statements may have been made by the supervisors, the administrative law judge stated: [T]he T-shirts were obviously meant to be worn and to wear a T-shirt of this type implies the em- ployee was in favor of the Company and opposed to the Union. By offering to employees these T- shirts, the Company clearly was attempting to get employees to make an open acknowledgement of their position in favor of the Company and opposed to the Union. The Board expressly agreed that the Respondent had violated Section 8(a)(1) by distributing and coercively encouraging employees to wear the procompany T- shirts. Applying the foregoing cases to the facts of this case, I am persuaded that Respondent's distribution of the caps with the "Vote No" buttons was coercive conduct viola- tive of Section 8(a)(1), capable of interfering with the conduct of the election, whether Respondent' s manage- ment remained in the lunchroom while the hats were dis- tributed. The hats, like the T-shirts in R. L. White, were obviously meant to be worn; if worn, they would display an employee's leanings most vividly; Respondent's top management provided the hats with the attached badges in sufficient numbers so that everyone could take one; and the highest official with whom the employees would deal personally urged them to take and wear the hats. Moreover, those top management personnel were imme- diately outside the lunchroom when at least some of the employees exited the meeting. These circumstances are as coercive as those present in R. L. White, Tappan, and Pillowtex. 22 No exceptions had been taken to the judge's recommended dismissal of the 8(a)(1) allegations 891 3. Section 8(a)(3) a. The layoff of 26 employees In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), the Board set forth the fol- lowing causation test to be applied in all discrimination cases turning on employer motivation: First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. Once this is es- tablished, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. Resolution of all the 8(a)(3) allegations of the instant case turns on the question of motivation; accordingly, the Wright Line test provides the analytical framework for the discussion that follows.23 In determining whether a prima facie case has been presented, the trier of fact "must view the General Counsel's evidence in isolation, apart from the respond- ent's proffered defense." Hillside Bus Corp., 262 NLRB 1254 at 1254 (1982), Member Jenkins dissenting on other grounds. So viewed, I am satisfied that the General Counsel has presented a prima facie case. There was open and extensive union activity, Respondent's supervi- sors, including those who participated in the decision to lay off the employees and in the selection of the employ- ees to be laid off, were aware of the union activity both generally and specifically with regard to certain especial- ly active employees. And, there was evidence which if credited,24 would tend to establish animus toward those who would engage in union activity. In this latter regard, I note the interrogations and threats attributed to Dennis Campbell, a supervisor who participated in the selection of some of the employees for layoff. Lemon Drop Inn, 269 NLRB 1007 (1984). The most significant factor supporting the General Counsel's prima facie case is timing, always a relevant consideration in determining motivation. Lemon Drop Inn, supra. Here, the layoff an- nouncement constituted an abrupt change from manage- ment's earlier announced plans to have a 1-week plant shutdown, and that announcement came quickly on the heels of two open, in-plant demonstrations of union sup- port, the wearing of SWOC buttons on Wednesday, 24 July, and the lunchroom meeting to refute Benage's 22 In so concluding, I reject the Union's argument that Respondent's conduct was so inherently destructive of employee rights that, under Radio Officers Union v NLRB, 347 U S 17 (1954), and NLRB v Great Dane Trailers, 388 U S 26 (1967), "no proof of intent is necessary, and business considerations are not a defense " Unlike the employers' conduct in Radio Officers, Great Dane, and subsequent cases applying this princi- ple, Respondent's conduct was not, on its face, directed at union mem- bers qua union members. See Metropolitan Edison Co v NLRB, 460 NLRB 693 (1983), and cases cited Moreover, as the Board stated in Wright Line at 1088, "Of course, the discharge of an employee, in and of itself, is not normally an inherently destructive act which would obviate the requirement of showing an improper motive." 24 See SME Cement, Inc, 267 NLRB 763 fn 1 (1983). 892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bushhog statements at noon on 25 July.25 Moreover, Re- spondent made the announcement in the context of an- tiunion, though lawful, remarks. Of significance, too, to the General Counsel's prima facie case are Respondent's apparent failures to comply with an earlier stated promise to try to give employees greater notice of layoffs and the apparent failure to more strictly follow plant or departmental seniority. In this latter regard, I note that the majority of those selected out of overall (or Chromalloy) seniority for inclusion in the layoff were among those who had openly proclaimed their membership on the organizing committee and had otherwise been among the most active union propo- nents.26 Finally, I note what appears to be surprise, and possibly consternation, on the part of Benage, Campbell, and Stettnichs when Wigton, Devaney, and Johannsen, known union supporters, showed up for work on 29 July, not having been laid off. Having concluded that the General Counsel has estab- lished a prima facie case of discriminatory motivation, it is appropriate to turn to Respondent's affirmative de- fenses. Respondent's defense to the 8(a)(3) allegations is based primarily on Respondent 's intimate relationship with Ford. Ninety percent of Schwartz' business comes from Ford; all parties agree that it is appropriate to ex- amine Respondent's economic defense through the busi- ness it does with Ford. In particular, Respondent points to the Ford reports and Ford's announced decision to "net out" as business justification for the layoff. Second- arily, Respondent relies on the bleak farm economy and its expected effect on a producer of farm equipment. In this regard it must be noted that whatever merit there may be to the contentions of the General Counsel and the Union that Respondent's small loaders (those used on tractors of less than about 40 horsepower) sold most fre- quently to noncommercial "hobby" farmers, construction firms, and landscapers, where the economy was thriving, it remains clear that a substantial portion of Respondent's business was tied to the farm economy. No one disputes the fact that the large loaders are farm equipment. Those large loaders normally constitute about one-third of Re- spondent's sales,27 by units, and as they sell for about 25 Contrary to the General Counsel 's contention on brief, Respondent never asserted that the layoff was announced to the employees on Tues- day, 23 July. 26 Totally lacking in merit is the Union's statistical argument based on the claim that 23 of the 26 laid-off employees "were Union supporters and had signed Union cards " In fact, at the time of the layoff, no em- ployees had signed union authorization cards, those cards were not signed until 1 August and the fact that the laid-off employees signed cards at that time is no evidence that they , or the less senior employees generally, were union supporters at the time of the layoffs. 27 It is misleading to characterize the large loader sales as comprising only 20 percent of Respondent's business, as both the General Counsel and the Union did on brief, by examining only those months surrounding the election Those were the months when this particular aspect of Re- spondent's business suffered the worst decline Moreover, with respect to the question of who purchases small loaders, I have serious questions concerning the accuracy of the Union's sampling methods. A less than representative sampling of dealers would skew the results substantially and there is no showing that the dealers sampled were located in farming communities or represented a fair cross-sampling of Ford tractor dealers. twice the price of the small loaders, large loaders ac- count for about one-half of Respondent's sales, in dollars. Large loaders, and thus the farm economy, are unques- tionably important to Respondent's considerations. Al- though the parties disagreed regarding the significance of the farm economy to Schwartz, everyone agreed that the farm economy, in general, looked bleak. As previously noted, sometime usually in the latter half of each month, Respondent receives the Ford report, detailing Ford's loader commitments for the next 4 months and projecting purchases for 4 months beyond that. The Ford reports for April and June (there was no May report) indicated a substantial drop in both large and small loader commitments in the summer with some signs of improvement in the fall. Thus, although small loader shipments had averaged around 400 per month in 1984 and about 380 per month in the first 5 months of 1985 and large loaders had averaged between 190 and 200 month during the same periods, the April report in- dicated a reduction in commitments for small loaders to 175, 145, and 150 in May, June, and July, respectively, and in large loaders to 190, 35, and 25 for the same months. The employees were advised, in a meeting in May, that the summer looked slow, that there could be some down weeks during the summer, but that there were favorable indications for the fall. Benage told the employees that he would try to give them 2 weeks' notice of layoffs. Although there was no union activity going on at that time, he used the occasion to tell the employees that management was opposed to unioniza- tion. In June, the next Ford report was received. Large loader commitments were still well below average, 135, 45, 80, and 80 for June, July, August, and September, re- spectively. Similarly, the small loader commitments for those months were 289, 480, 260, and 265. As of this report, Schwartz had moved into a substantial over- shipped position on both large (+52) and small (+229) loaders. Had a 1-week vacation shutdown in July not al- ready been scheduled, according to Magowan, some form of curtailment would have been necessary to bal- ance production and commitments. On 18 July, Plant Manager Benage announced that there would be an addi- tional 1-week plant shutdown in August, because of the lowered production requirements. He used this meeting, also, to take note of the union activity and to lawfully state Respondent's objections to organization. On 19 July, Respondent was informed that Ford was going to "net out," i.e., bring shipments down to the level of its commitments. Few releases were in hand for additional July shipments; no more would be furnished but Respondent was authorized to ship some of August's commitments in July. On 23 July, Respondent received the July Ford report and further confirmation of Ford's intention to "net out." The July Ford report was little different from June's. The small loader commitments were for 480 in July, 290 in August, 265 in September, and 485 in October. The large loader commitments were 75, 80, 80, and 145 for those same months. The less firm projections for November, December, January, and Feb- ruary, however, showed significant improvement. Ac- SCHWARTZ MFG. CO. cording to that report, Schwartz was 228 small and 31 large loaders overshipped in July. About 250 of the 370 (combined large and small) loaders committed for August were shipped in July. At the time of the layoff, Respondent had 93 unit em- ployees, approximately its average complement since the first of the year. In the same timespan, it had shipped an average of approximately 560 loaders per month, of which about 35 percent were large loaders. According to Benage's calculations, with Ford netting out, Respondent would only have to produce about 350 loaders per month, a total of about 1100 in August, September, and October. Benage followed the procedure he had used for previous layoffs: taking 15.5 hours as the average direct labor time to produce a loader, adding to that a 20-per- cent "fudge factor," and 35 percent plus several extra employees for indirect labor, and finally figuring 160 man hours per month, he concluded that a work force of 62 would suffice for the necessary production.28 In fact, Respondent shipped a total of 1046 loaders, 764 small and 282 large, to Ford in August through Oc- tober, and increased its loader inventory from 40 to 183 (large and small). During the same time period, there was a reduction in small loader overshipments from 228 to only 58, and only a small increase in large loader overshipments from 31 to 59.29 Respondent notes that since Amerequip acquired Schwartz, it has laid off employees when necessary to balance productive capacities with commitments. The in- stant layoff may have been its longest lasting single layoff, but it was neither its only layoff nor its deepest one. On 1 July 1984 Respondent had 125 production and maintenance employees, was overshipped by 277 small loaders (although undershipped by 19 large ones), and had Ford reports indicating declines in Ford commit- ments in much the same magnitudes as those that were to occur in 1985. As in 1985, the 1984 decline occurred most heavily in large loaders. Respondent laid off 18 em- ployees on 28 July 1984, recalled 2 but laid off 12 more at the end of August 1984, and laid off an additional 22 employees in September. By 1 October 1984 there had been a 45-percent reduction in the work force to 69. In mid-October 21 were recalled and the work force reached its new peak of 100 on 14 January 1985. Re- spondent also testified that layoffs were, for a number of reasons, more efficient than repeated plant shutdowns, including the loss of productivity on shutting down and starting up and the inability to respond quickly to orders during a shutdown. Those reasons appear to be reasona- ble and logical. The record contains no evidence that Respondent had previously used repeated plant shut- 28 Benage's calculations were, if anything, generous Taking Ford's commitments for the 3-month period following July and reducing that by the number of loaders overslupped , Schwartz would only have had to produce 274 large loaders and 812 small loaders to meet its Ford commit- ments Had Benage used these figures, and determined necessary man- power levels using the more specific number of hours required to manu- facture large and small loaders (18 and 14, respectively), he could have reduced manpower levels by another 8 or 10 employees 29 Respondent went to an understupped position on small loaders in November (-69) and December (-211) although remaining slightly over- shipped in large loaders until the end of the year, concluding with over- shipments of 37 large loaders in November and 12 in December 893 downs to balance manpower and production require- ments. The Union's economist, testifying as an expert witness, acknowledged that a layoff or a reduction in force of some other nature was required by the Ford reports and Ford's stated intention to begin netting out as of late July. He also acknowledged that Respondent's buildup of inventory indicated that, at least into October, Re- spondent had sufficient manpower to meet its demands for production. The General Counsel and the Union, al- though conceding that Respondent had some economic justification for its reduction in force, contend neverthe- less that the sudden change from a scheduled 1-week layoff to a "permanent" layoff of one-third of the em- ployees was discriminatory. They rely on the Employer's alleged animus, timing, shifting defenses, and the absence of sufficient economic justification for the drastic action taken. I find their assertions with respect to the layoff itself insufficient to overcome Respondent's affirmative defense. In reaching this conclusion, I take note of the fact that, although suspicious, the timing of the layoff deci- sion is coincidental with receipt of the July Ford report and Ford's stated intention to net out. It also occurred at almost precisely the same time of year as the major layoff in 1984. Moreover, although the General Counsel and the Union make much of their contention that the layoff occurred within hours of open union activity within the shop, it is clear that Respondent had knowl- edge of the union activity for some time prior to the layoff, rendering that layoff somewhat less precipitous than claimed. Further, although the General Counsel correctly asserts that announcements of the layoff in the context of antiunion remarks would normally justify a connection being made between the two, I must note that Benage used other meetings to make antiunion re- marks, even when there was no union activity in progress. The regularity with which he did this, together with the absence of any unlawful statements, tends to negate the significance of the juxtaposition of his remarks with the announcement. In this same vein, although I have found that there were some 8(a)(1) violations committed before the layoff, I consider it significant that they were all committed by a single first-line supervisor who was not involved in the decision to have a layoff. There were no further viola- tions of Section 8(a)(1) for almost 2 months after the lay- offs and those that subsequently occurred were not "hall- mark" violations. See NLRB v. Jamaica Towing, 632 F.2d 208 (2d Cir. 1980). Animus there was, but not of a suffi- cient weight to overcome valid explanations of substan- tial business justification for a layoff that was, at least as to scope and timing, consistent with past practice. See Plessey Materials Corp., 263 NLRB 1392, 1404 (1982). The General Counsel and the Union contend that Re- spondent has raised shifting defenses, changing its case from the representation hearing to this proceeding. I find no substantial inconsistencies. They were different pro- ceedings, raising different, albeit somewhat similar, issues. At issue in the R case hearing was the laid-off em- ployees' expectation of recall; Schwartz did not, at that 894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD time, bear any burden of establishing the validity of the layoff and thus was not called on to present all the rea- sons it took the action it did. Its failure, for example, to explain in the R case why it deemed alternating shut- downs with workweeks to be inefficient, does not render that explanation incredible when it was offered in the C case. Finally, in this regard, it seems clear that Respondent's layoff decision was a reasonable and effective response to its declining production requirements. Perhaps Re- spondent could have looked further ahead to Ford's pro- jections for November, December, January, and Febru- ary; made the cut less deep; and increased inventory more. Perhaps it could have acceded to the employees' desires and utilized repeated shutdowns rather than the layoff. Perhaps it could have recalled the employees sooner. However, the action it took was one of the courses available to it, consistent with what it had done in the past, to meet its needs, and even the Union's expert could not say that it was an unreasonable or in- valid choice. Indeed, as a careful analysis of the figures shows, Respondent did not even go as far as its own cal- culations would have permitted in reducing its work force. To conclude that Respondent should have fol- lowed some different course of action to deal with the decreased demand for its products would require the trier of fact to substitute his business judgment for that of Respondent. That I cannot do. Albritton Communications, 271 NLRB 201, 204 (1984); Garay & Co., 261 NLRB 490, 495 (1982), where the employer's economic defense pre- vailed notwithstanding stronger evidence of unlawfully expressed animus than exists here and equally suspicious timing. Accordingly, I shall recommend dismissal of the allegation that the layoff of 26 July violated Section 8(a)(3). b. Discriminatory selection for layoff (1) In general Approximately two-thirds of Respondent's work force was employed by Chromalloy before Amerequip 's acqui- sition of the Sioux Falls plant on 22 December 1983. As previously noted, 22 December 1983 is the earliest se- niority date recognized or utilized by Respondent , as evi- denced by uncontradicted testimony and the monthly se- niority lists. Plant Manager Benage, together with Foremen Camp- bell and Stettnichs, selected the employees to be laid off. Their selections, they claimed, were made on the basis of Amerequip seniority , by department and by shift. Where employees had the same seniority (i.e., 22 December 1983), determinations were made on the employees ' abili- ty, versatility, and work habits . This was consistent with Respondent's practice in prior layoffs, according to Magowan. S° There was no evidence that Respondent so There is some evidence, in essentially nonspecific testimony of van- ous employees, that the selection of employees for prior layoffs had sometimes been marred by favoritism. Similarly, there was some general testimony indicating that, in at least some layoffs, the night shift where there was the heaviest concentration of less senior employees was elimi- nated first, with more senior night-shift employees being transferred to the day shift The record is not sufficiently specific to establish either fa- had ever utilized the employees' Chromalloy seniority as a basis for layoff selection. Of the 26 employees selected to be laid off on 26 July, 9 were laid off while Respondent retained others in their departments, but not necessarily on their shifts, with less Chromalloy and, in some cases, less Amerequip seniority. Seven of the nine were SWOC members, at least five of whom had openly proclaimed that membership on Wednesday, 24 July. The General Counsel contends that it was their union activity that motivated Respondent to select them. The General Counsel also notes the recep- tion Lee Wigton, Greg DeVaney, and Steven Johannsen received when reporting to work on 29 July, surprise at their presence, as arguably indicating Respondent's inten- tion to include all known SWOC members in the layoff. Respondent, noting that a selection for layoff based on total Chromalloy-Amerequip seniority would have been contrary to past practice (and would have, and ultimate- ly did, result in the layoff of at least as many SWOC members),91 contends that its selection process was non- discriminatory. The selection process, like the layoff as a whole, must be evaluated pursuant to the Wright Line test. (2) Jan Johnson and Charles Bauerle-fabrication department, days In the absence of the foremen, Benage selected the persons to be laid off on both the day and night shifts from department 51, fabrication. Laid off from the night shift were Randolph Ekanger, Hiram Anderson, and Steve Blair, the three least senior employees on that shift. Laid off from the day shift were Wesley Jaqua, Jan Johnson, and Charles Bauerle, the three least senior em- ployees on that shift. There were, however, three em- ployees remaining on the night shift who had less Amer- equip seniority than Johnson and Bauerle. They were Harlan Kruse, Mark Freese, and William Blair. The Gen- eral Counsel contends that Johnson and Bauerle were discriminatorily selected for layoff from the day shift over these less senior night-shift employees. With respect to those contentions, I find, the General Counsel has failed to establish a prima facie case. In so fording, I note that following seniority within the department and shift, as Respondent did, was contrary to no clearly estab- lished company policy. More significantly, I note that Jan Johnson had not engaged in any union activity and the only union activity engaged in by Bauerle before the layoff list was posted was SWOC membership, a fact that the General Counsel failed to prove was known to Respondent. Knowledge is an element on which the General Counsel bears the burden of proof. Heatilator Fireplace, 249 NLRB 544 fn. 3 (1980). And, I further note that had Respondent selected, in their place, the least senior employees in fabrication on the night shift, at least one of those, Mark Freese, would similarly have been a SWOC member. Accordingly, I shall recommend vontism or elimination of the night shift to be the general rule for Re- spondent's layoffs. Si Of the eight ultimately laid off in the place of those whom the Union deemed discriminatorily selected for layoff, seven were SWOC members SCHWARTZ MFG. CO. 895 that the allegations with respect to Jan Johnson and Charles Bauerle be dismissed. (3) John DenBoer, Don Rol, and Craig Latterell- welding, day shift Don Stettnichs selected the welders to be laid off. Four individuals from the night shift, those with the least Amerequip seniority, were chosen first: Thomas Leesch (who quit), Terry Bohnenkamp, John Miller, and Rich- ard VanMeveren. Of these, only John Miller was a SWOC member. Eight welders from the day shift were slated for layoff. Four were chosen on the basis of their Amerequip seniority, Dennis Lupkes, Larry Krueger, Charles Temple, and Arnold Peterson. None of these employees had any demonstrable union activity. There was no one on the day shift in the welding department with a seniority date after 22 December 1983 who was not laid off. The fifth day-shift welder selected was Robert Hoffman, one of the initiators of the union activi- ty, an open union supporter and SWOC member. His se- lection, however, was consistent with his overall seniori- ty and is not alleged to be separately discriminatory. The last three selected were John DenBoer, Craig Latterell, and Don Rol. John DenBoer was a member of SWOC; the record contains no evidence of any other union activity or of company knowledge of his union activity. He was more senior than a number of other welders on both the day and night shifts if seniority under Chromalloy, contrary to company practice, were to be considered. DenBoer had not been laid off in 1984; four night-shift employees with less overall seniority, Wigton, DeVaney, Gerdes, and Kirkpatrick, had been laid off at one time or another during that year, but were not laid off at this time. Three of these four, I note, were active SWOC members. Stettnichs selected DenBoer, he claimed, because al- though DenBoer was a good worker, he tended to dis- rupt other employees with conversation while he took breathers from his work. Stettnichs' observation of this was corroborated by Donnie Juhnke, a SWOC member and union supporter. The General Counsel has failed to prove either em- ployer knowledge of John DenBoer's union activity or disparate treatment, elements critical to her prima facie case. Moreover, even if I were to assume that Respond- ent's failure to lay off first from the night shift, or to consider dates of hire before Amerequip's acquisition, were contrary to prior practice and were somehow to surmount the knowledge hurdle, I would still have to find for Respondent with respect to this employee. Re- spondent has proffered a legitimate and credible explana- tion for his selection and, had it chosen someone with less Chromalloy seniority from the night shift, it would have had to choose between four other employees, the two least senior of whom, Wigton and DeVaney, were more openly supportive of the Union than DenBoer was. Craig Latterell attended the July 20 meeting in Sher- man Park but did not become a member of SWOC or wear a SWOC button. Without indicating how Stettnichs acquired knowledge of his alleged support for the Union, Latterell testified that, after the union activity became public, he observed Stettnichs directing cold stares at him and at other union supporters. On 26 July he was in the front of the crowd that presented a request to Benage to honor the employees' vote favoring a shut- down. Latterell had begun working for Chromalloy at another plant in 1973 but had not transferred to Sioux Falls until November 1983. If the later date is used for seniority purposes, there were only two persons in the department with lower Chromalloy seniority than he, Wigton and DeVaney, both on the night shift and both open union supporters. Stettnichs selected Latterell for layoff on the basis that he had spent the least amount of time in the department; Stettnichs' testimony is uncontra- dicted. Here, as in the case of John DenBoer, I must find that no prima facie case has been made. Lacking is both evi- dence of any overt union activity and employer knowl- edge of his union proclivity. I shall therefore recommend that the allegations with respect to John DenBoer and Craig Latterell be dismissed. Unlike the individual employees previously discussed, Don Rol was openly and actively involved in the Union's campaign. He and Hoffman initiated it, meetings were held in his home, he solicited support for it by can- vassing employees in the shop, he spoke at the Sherman Park rally of 20 July, he was a SWOC member, he wore his SWOC button on 24 July, and he addressed his fellow employees in the lunchroom at noon on 25 July, refuting Benage's claims concerning Respondent's com- petition. His union activity was known to supervision, particularly Stettnichs and Campbell. And, the 8(a)(1) violations attributable to Campbell establish Campbell's animus toward unions generally and toward Rol as a union activist in particular. By this evidence, the General Counsel has established a strong prima facie case of dis- criminatory selection. According to Stettnichs, all the employees to be laid off were basically good workers; he chose Rol because he believed Rol to be the newest person in the depart- ment. Rol was, in fact, the least senior employee in that department on the day shift, but only if Chromalloy se- niority was considered. Considering Amerequip seniority however placed him on a par with all the others. In light of Respondent's position that it deemed all those em- ployed on 22 December 1983 to have equal seniority, its reliance on Chromalloy seniority to justify the selection of Rol, without comparing his work habits, tardiness, productivity, or versatility, is inconsistent with its past practice and insufficient to overcome the General Coun- sel's prima facie case. Accordingly, I must conclude that Respondent laid off Don Rol because of his union activi- ty, in violation of Section 8(a)(3). (4) Dennis Reifers and Edwin Gross-assembly Three persons were laid off from the assembly depart- ment, all from the day shift, including two class A as- semblers, Dennis Reifers and Edwin Gross. Respondent retained Doyle Schubert, a class B (and therefore less skilled and less versatile) assembler on the night shift who had less Amerequip seniority than either of them. It also retained on the day shift two class A assemblers, Marlis Anderson and Marty Barber, and one class B as- 896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sembler, Ward Jenson, who had less Chromalloy seniori- ty than they did. Reifers was a SWOC member who dis- played his membership button openly on 24 July and ob- served supervisors taking note of those who wore the buttons. He spoke to the employees outside the plant on the evening of 25 July. Gross attended all the meetings, addressed the employees in Sherman Park, was a SWOC member, wore his button on 24 July, and spoke before the employees and Stettnichs at noon on 25 July. Of those assemblers retained, Marlis Anderson and Schubert were SWOC members. She did not wear her button until 25 July, after the time when Respondent claimed the se- lections for layoff were made. Schubert was one of the speakers at Sherman Park. Reifers and Gross were selected for layoff by Camp- bell, their foreman. He selected Reifers for layoff, he claimed, because, for the past 7 or 8 years, Reifers had been primarily crating loaders, which was work others could do. Additionally, he noted, Reifers did only a min- imum amount of work and frequently yelled at Anderson to slow down. He chose to retain Marty Barber because of Barber's experience on mixer boxes, Ward Jenson be- cause Jenson had been on mounting kits the longest, and Marlis Anderson because she was the best person on the small loader jig. Anderson corroborated Campbell's claim that Reifers had, on occasion, told her to slow down. She testified, however, that she was a very fast worker, that others have also protested her pace, and that Reifers' statements to her were in the nature of jokes that did not affect her performance. Reifers testified that he did a number of things besides crating loaders, including working on mixer boxes, and his testimony was corroborated by both Anderson and Campbell. Campbell admitted that Reifers' efficiency rating was 100 percent, although Respondent downplayed the significance of this figure, noting that all, or nearly all, employees were so rated. There was no evidence that Reifers had ever been reprimanded or dis- ciplined for not working to his capacity or for suggesting that others slow their work pace. According to Campbell, he selected Gross, whom he acknowledged to be experienced in various jobs, because of Gross' record of tardiness and because Gross did not put out any extra effort in his work. Gross' absentee cal- enders, which Campbell did not have before him when the choices were made, reveal that Gross was tardy 8 times in 1983, 23 times in 1984 including 13 times by the end of July, and only 5 times in 1985. There is no evi- dence in this record with respect to how Gross' record of tardiness compares with that of other employees who were not laid off. The record does establish that Re- spondent did not lay off Gross in 1984, when his tardi- ness record was much worse; in that year, Schubert was laid off. There is also no evidence in this record indicat- ing that Gross was ever reprimanded or disciplined for failing to work to his full capacity. Based on the foregoing, I must conclude that the Gen- eral Counsel has established a prima facie case of dis- crimination with respect to both Reifers and Gross that Respondent has failed to rebut. Reifers and Gross were both known union supporters who worked for, and were chosen for layoff by, Campbell. Campbell is the one su- pervisor with strongly demonstrated antiunion animus. The reasons asserted by Campbell for their selection, moreover, do not withstand scrutiny. Gross and Reifers were both experienced assemblers, capable of, and expe- rienced at, doing a number of different jobs, as their "A" classifications would attest. Respondent retained two class B assemblers who, by definition were less versatile; one was retained specifically because he had worked at a single job for a long time. The retention of these class B assemblers is directly contrary to Respondent's claim that it endeavored to retain the most versatile employees. I note, too, that no one was selected for layoff among the night-shift assemblers, contrary to the pattern in all other departments, even though the person with least se- niority in the department, Doyle Schubert, was on that shift. With respect to Reifers, I would particularly note that supervision either did not know of his "slow down" statements or did not take them seriously at any time before the layoffs. If they had knowledge and took them seriously, they most assuredly would have taken some corrective action; attempts to slow down the work of other employees is not the kind of conduct the manage- ment of any company would tolerate lightly. Similarly, I cannot credit Campbell's alleged reliance on Gross' tardi- ness record. He received no warnings for tardiness during Amerequip's ownership of the plant and his record was markedly better than it had been in 1984 when he was not included among those to be laid off. Fi- nally, I note the absence of any evidence or even claim that Gross' tardiness was any worse than that of others who were retained. Accordingly, I must conclude that Respondent laid Dennis Reifers and Edwin Gross off because of their union activity, in violation of Section 8(a)(3) and (1). (5) Dale Clyde and Edwin Blair-paint department Five people were selected for layoff from the paint de- partment, three production helpers with the lowest Amerequip seniority from the night shift and spray paint- er Dale Clyde and production helper Ed Blair from the day shift. Retained on the night shift were two employ- ees with lower Amerequip seniority than Clyde and Blair; one was Sheldon Bohms, a spray painter, and the other was Steven Johannsen, a production helper. There was no one retained on the day shift with a post-22 De- cember 1983 hiring date; Merle Baatz, Kenny Baatz, and Richard Thompson, painters, and Robert Hadrath and Teresa Ingalls, production helpers, who had lower Chro- malloy seniority, were not laid off. Dale Clyde was a SWOC member who wore his button to work on 24 July. Ed Blair was active from the beginning, attending union meetings, speaking at Sher- man Park on July 20, and wearing his button as a member of SWOC on 24 July. However, there were also SWOC members among the paint department employees who were not laid off: Steve Johannsen (who also spoke at Sherman Park), Teresa Ingalls, Steve Noonan, and Sheldon Bohms. Merle and Kenny Baatz, who were re- tained, were opposed to the Union; they removed some union postings and placed certain antiunion literature on SCHWARTZ MFG. CO. 897 the bulletin boards. However, there was no evidence that their views on the Union were known to Respondent at the time of the layoffs. Don Stettnichs selected the day-shift paint department employees to be laid off. He initially selected Kenny Baatz, whom he believed to be the newest employe in the department, and Ed Blair, whom he deemed to be the slowest. However, he decided to keep Baatz and lay off Clyde (who was actually the newest painter) after Campbell suggested that he would have a problem if he kept Clyde and not Baatz. Baatz, Campbell claimed, was a better painter and Clyde had a problem getting along with people. Campbell's opinion of Clyde's work was corroborated by another painter, Thompson, but disput- ed to some extent by assembler Marlis Anderson. Both Thompson and Anderson gave testimony tending to cor- roborate Campbell with respect to Clyde's argumentati- veness. Blair's change notices from July 1983 through April 1985 all note that he was a good worker; however, his evaluation for 1984 stated that he was only "fair." Stettnichs' choice of Clyde as one of the painters to be laid off, on Campbell's suggestion, after having first se- lected Ken Baatz, is very suspicious. Clyde supported the Union's campaign and Baatz opposed it and Camp- bell was the most openly antiunion supervisor in the plant. However, even if one assumes that Clyde's union activity was noted by Respondent, there is no evidence that Baatz was known to be antiunion. Moreover, Re- spondent has put forth a plausible explanation for the substitution, one that was corroborated by other employ- ees, and has thus overcome the General Counsel's prima facie case. Similarly, assuming that a prima facie case has been made out with respect to Blair's layoff, I must find that it had been rebutted by Respondent's evidence. Stettnichs' explanation, that he chose Blair because Blair was the slowest, is supported by Blair's 1984 evaluation. It is further supported by the oral reprimands for insuffi- cient productivity and talking given Blair and Clyde on 25 July and 13 August, which the General Counsel did not allege to have been discriminatory, and by the writ- ten warning of 4 September, regarding which I have found insufficient evidence of discriminatory motivation, as discussed infra. Accordingly, I shall recommend that the allegations with respect to the layoffs of Dale Clyde and Ed Blair be dismissed. c. Recall and substitution On 8 August, the nine employees discussed immediate- ly above were offered immediate reinstatement and full backpay for the time they had lost. All but DenBoer ac- cepted reinstatement. Eight other employees with lower departmental seniority were laid off in their stead. The recall and substitution followed Herb Miller's receipt of the employees' 30 July letter, Miller's pledge to examine the layoff to ensure that it was done fairly, and the Union's unfair labor practice charges. The layoff, as re- constituted, followed overall (including Chromalloy) plant seniority, by departments, without regard to what shifts the employees were working on. It was, Magowan testified, done at least in part to reduce the possibility of litigation. 32 The General Counsel and the Union contend that the substitution of eight employees for others earlier laid off is but a continuation of what they alleged to be the un- lawful conduct involved in the 26 July layoff. As I have found the evidence insufficient to establish that the 26 July layoff was discriminatorily motivated, it follows that the substitution of eight other employees, to make that layoff conform to overall plant seniority, has similar- ly not been proven to be discriminatorily motivated. Ac- cordingly, I shall recommend that this allegation be dis- missed. d. Layoff or discharge? About 29 July, Respondent sent each of the laid-off employees a letter stating that, in view of its forecasts in- dicating no likely improvement in the agricultural imple- ment business for the next 18 months to 2 years, there was little chance of their being recalled with the next 2 years or ever . Accordingly, they were told, their layoffs were being classified as permanent . The change notices that issued about 30 July , and those that issued 8 August, similarly stated that the employees had been "dis- charged/terminated." Based on this evidence, the Gener- al Counsel alleges that Respondent converted the status of the employees from layoff to discharge in violation of Section 8(a)(3). Respondent, citing evidence that at all times, both before and after 29 July, the employees were told they would be recalled when and if work picked up, denies that the employees had been discharged . Respond- ent also relies on the employees ' own unemployment compensation claims describing themselves as having been laid off for lack of work , the Company's failure to contest any of those claims, and the Union's position in the representation case that the employees had a reasona- ble expectation of recall as evidencing that the employ- ees and their representative did not reasonably believe that they had been discharged . In Ridgeway Trucking Co., 243 NLRB 1048, 1049 (1979), enfd. 622 F.2d 1222 (5th Cir. 1980), employees who were engaged in a work stoppage seeking better wages were ordered to either go to work or leave the premises . Similarly, in Workroom for Designers, 274 NLRB 840 (1985), protesting workers were told that if they walked out they would be consid- ered as having quit. In both cases, the employees were found to have been discharged , the Board stating: The test for determining "whether [an employ- er's] statements constitute an unlawful discharge de- pends on whether they would reasonably lead the employees to believe that they had been discharged . .. . It is sufficient if the words or actions of the employer would logically lead a prudent person to believe his tenure had been terminated." 32 Contrary to the Union' s contention, offers of reinstatement and backpay aimed at minimizing potential liability are not properly consid- ered admissions by a respondent that it was unlawfully motivated in its initial layoff or discharge decisions See Virginia Street Discount Liquors, 240 NLRB 988, 1007 (1979), Rudy Patrick Co, 204 NLRB 564 fn 2 (1973), and Alamo Express Inc, 200 NLRB 178 (1972) 898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In each of the foregoing cases, words amounting to something less than a clear statement that the employee was discharged were found to convey the intention to discharge. On the other hand in Valley Bakery, 226 NLRB 532 (1976), an employee who had been told to "go home" following an outburst at his employer and who deemed himself to have been discharged by those words was found not to have been discharged. Rather, it was determined, he had "jumped the gun" or acted un- reasonably in reaching such a hasty conclusion. In Maine Apple Growers, 254 NLRB 501 (1981), season- al workers who had been temporarily laid off were in- formed by letter that they would not be recalled. The administrative law judge concluded that the employer had a legitimate business reason for not recalling them; he also concluded that the employer would not have told them so if there had not been a representation case pend- ing wherein the employer was seeking to prevent or dis- courage those employees from voting. The Board found, contrary to the judge, that the employees enjoyed a rea- sonable expectation of recall; it did not, however, disturb his conclusion that the employer did not violate Section 8(a)(3) or (1) by converting the layoffs from temporary to permanent or by so informing the employees. The instant case lies somewhere in the midst of the foregoing cases. The employees were informed that, in view of business forecasts, they should consider their layoffs as permanent. Respondent relied on the perma- nent layoff letter in the representation case to support its position that these employees had no reasonable expecta- tion of recall and, one must suspect that the letter was prepared and sent in anticipation of the filing of a repre- sentation petition, in order to preserve just such an argu- ment. Respondent had no practice of laying off employ- ees permanently.33 And, at the same time that the em- ployees were sent the letters and the change notices, they were informed that they still had recall rights; they would be recalled if business picked up within a period of 1 year or the length of their employment, whichever was less, pursuant to Respondent's seniority policies. Their recall rights were voiced orally on 26 July, 8 August, and at the representation case hearing on 23 August. The recall policy was posted in the plant, at the Union's request, about 28 August. Moreover, as Re- spondent noted, the employees considered themselves laid off, not discharged, at least for the purpose of unem- ployment compensation, the employer did not dispute their UC claims, and the Union has, at all times, main- tained that the employees had only been laid off tempo- rarily and expected to be recalled. Whether Respondent's motive in sending out the 30 July change notices and the 29 July letter was to lay a foundation for arguments to 8' The few change notices placed in evidence (R Exhs 51, 52, 53, and 54) that indicated that a given employee had been terminated or dis- charged "due to economic conditions" or "lack of work" do not establish such a practice Three of the four are for an employee with only 4 to 6 weeks of employment and only one was for a unit employee Two of the four issued in months when Respondent was not laying off other employ- ees and only two issued at times when Respondent was laying off em- ployees in any numbers. Even in the latter two cases, it appears that only these two employees were told that they were being terminated All the rest of those laid off at the same times were simply told that they were being laid off be made in a representation case it expected to see filed or to fairly advise the employees that they should not idly await recall, I am satisfied from all the above that Respondent did not intend to discharge the employees. I am also convinced that the employees could not (and did not) reasonably interpret Respondent's action as a dis- charge. Accordingly, I shall recommend dismissal of this allegation. e. The reprimand of Clyde and Blair The General Counsel contends that the 4 September warnings given to Clyde and Blair for spending too much time talking and for working too slowly were mo- tivated by their union activity. The evidence, I find, is insufficient to support this contention. Such warnings were consistent with Respondent's practices, these em- ployees had previously been warned for similar conduct, and they had been observed working slowly and talking. Their slow work pace was consistent with their own stated intentions concerning working in the face of what they deemed to be a discriminatory layoff, nothing was said to them linking the discipline to their union activity, and no other union supporters were similarly disciplined. The warnings may not have been entirely fair in light of Harlan Fluitt's absence from the line that day, but I cannot find that they were discriminatory. Accordingly, I shall recommend that this allegation be dismissed. 4. The alleged refusal to bargain Such limited unfair labor practices as I have found to have occurred do not rise to the level of either "outra- geous," "pervasive," or "extensive" as those terms are used in NLRB v. Gissel Packing Co., 395 NLRB 575 (1969), and its progeny to define when a bargaining order on the basis of authorization cards, without an election, is warranted. Virtually all the violations I have found involve Section 8(a)(1) and the most serious of those, involving the actions of a single first-line supervi- sor, occurred near the outset of the campaign. See Clark Equipment Co., 278 NLRB 498 (1986). As previously noted, none of the postlayoff violations were of the "hallmark" variety and such 8(a)(3) violations as I have found were essentially remedied by the Employer, who quickly reinstated all the employees about whom there was a question of discriminatory selection, with backpay. I cannot find that such violations, in these circumstances, preclude the possibility that the application of traditional remedies will permit a fair election to be conducted. Ac- cordingly, I find it unnecessary to resolve Respondent's contentions with respect to the validity of 10 of the au- thorization cards and I shall recommend that the com- plaint's 8(a)(5) allegation be dismissed. SCHWARTZ MFG CO 899 III. THE REPRESENTATION CASE A. The Challenged Ballots 1. The laid-off employees-a reasonable expectancy of recall The ballots of 24 laid-off employees were challenged by the Board agent conducting the election.34 Schwartz and the Union agree that the issue with respect to the eligibility of these voters is whether they had a reasona- ble expectancy of recall in the near and foreseeable future at the time of the election. "In determining wheth- er laid-off employees have a reasonable expectancy of recall, the Board evaluates `objective factors' which in- clude `the employer's past experience, the employer's future plans, the circumstances of the layoff, and what the employee[s] w[ere] told about the likelihood of recall."' Atlas Metal Spinning Co., 266 NLRB 180 (1983); Tenneco Automotive, 273 NLRB 103, 105 (1984); Fabrica- tors of Minnesota, 273 NLRB 511 (1984). I am convinced that application of the foregoing standard to the facts of the instant case requires a con- clusion that the laid-off employees enjoyed a reasonable expectancy of recall and were eligible voters. First, I note that Respondent's was a cyclical business, with its annual low point falling in the summer and business gen- erally picking up in the fall. In line with the seasonal nature of its business, it regularly laid off and then re- called employees. That practice is recognized by Schwartz' seniority practices, whereby employees retain both seniority and recall rights for a period equal to the lesser of either 1 year or the length of their employment, and its insurance practices, whereby laid-off employees are instructed on how to convert their group to individ- ual coverage. Such conversion facilitates re-entry into the group on recall and manifests a continuing interest in the terms and conditions of employment within the unit. Atlas Metal Spinning, supra. Schwartz, however, contends that 1985 was different from prior years, that its business was at an extremely depressed level for the 3 months preceding the election with a continued poor outlook for many months thereaf- ter, that the agricultural industry that it served was in a severe slump, that tractor prices were increasing, that its shipments were going into Ford's warehouses indicating slow retail sales, and that its inventory was up. The record, however, shows that the situation was not nearly as bleak as Respondent describes it. Portions of the farm economy were depressed but some farmers were making money, depending on their crops or their business acumen. Much of Schwartz' business, moreover, was in small loaders; those loaders were not all destined for the farm economy and Schwartz was seeing increased sales in those loaders. Ford had predicted 6000 loader orders in 1986, with increased orders for small loaders, as evi- denced by Schwartz' own OEM report of 27 September 1985; this was an improvement over 1985, at least in total numbers. And, the Ford reports did not indicate any reason to be overly pessimistic. The report for Septem- ber 1985, the last report received before the election, in- dicated substantial increases in Ford commitments for October, November, and December 1985 and January 1986 over the corresponding months of a year earlier. The October Ford report, dated 1 November, continued to show improvement over most of the months of a year before. Further, although inventory was at 183 pieces in October, up from 40 in August, it fell rapidly thereafter, to 71 by November. Even at 183, Schwartz had only about one-half a month's production in inventory. At the same time, Respondent had reduced its overshipped posi- tion very substantially by October and continued that trend until it was undershipped by nearly 70 small load- ers and overshipped by only 37 large loaders by Novem- ber. Schwartz was even further undershipped by the end of the year. By the time of the election, and thereafter, Respondent no longer had reason to be concerned with the prospect of Ford's continuing to "net out." Further, unlike the employers in Tenneco Automative, supra, Foam Fabricators, supra, and S & G Concrete, 274 NLRB 895 (1985), where the Board found no reasonable expectancy of recall, Schwartz was not engaged in any longterm effort to reduce the size of its work force. Nei- ther was it faced with the loss of a major customer or with new sources of competition. Every indication this Employer and the employees had at the time of the elec- tion tended to indicate that Schwartz' business was pick- ing up and was going to continue in much the same fash- ion, and at much the same levels, as it had since Amere- quip acquired the plant. Finally, the Board's test calls for consideration of what the employees were told when they were laid off. The employees were told, on the one hand, that their layoffs were "permanent" or that they were "discharged." That statement, I suspect, was purposely phrased with an eye toward the representation case Respondent expected to see filed. On the other hand, the employees were also re- peatedly assured that they would be recalled when work picked up. Based on their prior experience with this Em- ployer, and the statements earlier made by the Employer in May and July, they could anticipate that work would pick up in the fall, as it had in the past. I conclude that what the employees were told generally supports their reasonable expectancy of recall. At most, the statements that they were permanently laid off neutralize the state- ments about recall when work picks up and are neutral- ized in turn by them. Accordingly, I must conclude that the 24 laid-off em- ployees had a reasonable expectancy of recall at the time of the election and were eligible voters whose ballots should be opened and counted. I shall therefore recom- mend that the challenges to their ballots be overruled. 14 The 24 are Arnold Peterson, Larry Krueger, Michael McKee, John Miller, Doyle Schubert, Kevin Tjepkes, Steve Johansen , Robert Hoff- man, Hiram Anderson, Charles Temple, Wesley Jaqua, Dennis Lupkes, Mark Freese, Sharon Hallem, Sheldon Bohms, Michael Sweir, Greg De- Vaney, Richard VanMeveren , Randolph Ekanger, Lee Wigton, Steve Blair, William Blair, Terry Bohnenkamp, and Alan Lawrence 2. The supervisory status of Charles Erickson The Union challenged the ballot of Charles Erickson, nominally a group leader included within the unit, on the grounds that he was a statutory supervisor. As only the 900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Union proffered evidence on this issue , the following facts are undisputed: Until May 1985, Dave Steenblock was the night-shift supervisor, over all the departments, and Erickson was the welding department group leader. In May, Steen- block left and Erickson was the only person remaining on the night shift with authority on behalf of manage- ment, overseeing 20 to 30 employees . He continued in this capacity until December . During this period, he was referred to by management as the foreman in at least one notice to employees (U. Exh . 1), he wrote comments on employee change notices concerning the employees' work habits and efficiency and signed those notices as the foreman . Those change notices were cosigned by higher management (U. Exhs. 2, 3, 4, 6, and 7(a)-(i)). He granted vacation leave on his own authority, he issued at least one written reprimand threatening discharge (U. Exh. 5), he orally reprimanded at least one employee, he assigned and checked work , he called job applicants who had formerly worked at the Company and told them to report for work , and he interviewed and hired at least one employee. In order to establish that an individual is a supervisor within the meaning of Section 2(11) of the Act, it is only necessary that one show that the individual , exercising independent judgment, has the authority to do any one of the following : "hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or to effectively recommend such action . . . ." The undisputed evidence establishes that Erickson possessed, for at least 5 months before the elec- tion, and continuing for several months after that , the au- thority to hire, to assign, to discipline, and to responsibly direct the employees on the night shift. Indeed, if he did not, those employees would have been unsupervised during this entire period. Accordingly, I find that he was a statutory supervisor at the time of the election and rec- ommend that the Union-Petitioner's challenge to his ballot be sustained. B. The Objections Consolidated for hearing with the unfair labor practice allegations and challenges were four union -filed objec- tions to the conduct of the election plus one allegation uncovered in the course of the investigation . All these objections track unfair labor practice allegations. As previously set forth, I have found that Schwartz did not discriminatorily lay off or employees on 8 August. Similarly, I have found that it did not discrimin- atorily discipline Dale Clyde and Ed Blair on 4 Septem- ber. Accordingly, I shall recommend that the objections to this conduct be overruled. Union Objection 3 alleges as objectionable conduct the Employers' ejection of Larry Krueger and John Miller from the plant lunchroom about 4 October. Its Objection 6 alleges the Employer's coercive distribution of hats and "Vote No" buttons about 17 October . I have found both of these actions, which occurred after the petition was filed, violative of Section 8(a)(1). Pursuant to the Board's usual policy, a new election is to be directed "whenever an unfair labor practice occurs during the critical period since `[c]onduct violative of Section 8(a)(1) is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election ."' Dal-Tex Optical Co., 137 NLRB 1782, 1786 (1962), quoted with approval in Clark Equipment Co., 278 NLRB 498, 505 (1986). Schwartz, however, argues that even if this conduct is found violative of Section 8(a)(1), it is de minimis , minor, or technical in nature, affected only a few employees and, therefore, should not result in the election being set aside. I cannot agree. Unlike the conduct involved in Clark Equipment, supra, General Felt Industries, 269 NLRB 474 (1984), and Coca-Cola Bottling Co., 232 NLRB 717 (1977), and contrary to the Employer 's asser- tion, the conduct here affected and was known to virtu- ally every employee in the unit . Krueger and Miller were ordered out of the lunchroom while they were en- gaged in conversation with other employees ; those other employees could not help but observe their ejection. Further, that ejection potentially precluded Miller and Krueger from reaching more employees with their prounion message . Schwartz' second violation within the critical period reached even more employees; the hats and "Vote No" buttons were distributed in meetings in- volving all the employees on both shifts . Moreover, the Board has already held that the coercive distribution of antiunion insignia tends to restrain employee free choice and, in and of itself, warrants that the election be set aside. Tappan Co., 254 NLRB 656 (1981) (Member Pen- ello dissenting); Pillowtex Corp., 234 NLRB 560 (1978). Finally, I take note of the fact that here, unlike Clark Equipment and General Felt, the vote was close, 23 to 31. The unfair labor practices clearly reached enough em- ployees to have had some effect on the outcome. C. Challenges and Objections-Conclusion I have heretofore recommended that 24 of the chal- lenged ballots be opened and counted . In the event that the revised tally of ballots establishes that the Union has secured a majority of the valid votes cast, a Certification of Representative should issue. If it does not, I recom- mend that the election conducted on 29 October 1985 be set aside on the basis of Union Objections 3 and 6, and a rerun election be conducted. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Inasmuch as Don Rol, Edwin Gross, and Dennis Reifers, the em- ployees whom I found to have been discriminatorily laid off, were reinstated with full backpay, no further rein- statement or backpay order is warranted. FURTHER CONCLUSIONS OF LAW I. By interrogating its employees concerning their union membership, activities, and desires or the union membership, activities, and desires of their fellow em- ployees; by threatening employees with discharge be- cause they engaged in union activities ; by discriminaton- SCHWARTZ MFG. CO. ly prohibiting laid-off employees from engaging in union activity in nonwork areas of the plant; and by coercively distributing antiunion insignia in such a way as to inter- rogate employees concerning their support for the Union or for the Company, Respondent has interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act, thereby violating Section 8(a)(1) of the Act. 2. By discriminatorily selecting Don Rol, Edwin Gross, and Dennis Reifers for layoff because they en- gaged in union activities , Respondent has discriminated against those employees because of their union activities in violation of Section 8(a)(3) and (1) of the Act. 3. The unfair labor practices enumerated above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 901 4. Respondent has not engaged in any unfair labor practices not specifically found herein. 5. The employees who were laid off on 26 July and 8 August 1985 had a reasonable expectancy of recall at the time of the election were eligible voters in that election, and the challenges to their ballots must be overruled. 6. Charles Erickson was a supervisor within the mean- ing of Section 2(11) of the Act, and the challenge to his ballot must be sustained. 7. Certain of the unfair labor practices set forth in sub- paragraph (1), above, occurring after 6 August 1985, have interfered with the employees' rights to a free and untrammeled choice in the election conducted in Case 18-RC-13822 on 29 October 1985 and have tainted the results of that election. [Recommended Oider omitted from publication.]