Jamco (Johnson Architectural Metal Co.)

896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD JAMCO (Johnson Architectural Metal Company) and Glaziers, Architectural, Metal & Glass Workers Local Union 1940. Cases 10-CA- 22910 and 10-RC-13540 June 12 1989 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On April 4, 1988, Administrative Law Judge Hutton S. Brandon issued the attached decision. The Respondent filed exceptions and a supporting brief. i The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,2 and conclusions as modified and to adopt the recom- mended Order as modified. AMENDED CONCLUSIONS OF LAW 1. Substitute the following for Conclusion of Law 3. i The General Counsel and the Charging Party did not except to the judge's various dismissals of certain complaint allegations 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings We adopt the judge's finding that Project Manager Edell violated the Act by telling the employees that the Respondent would close, move, or change its name if the employees selected the Union In adopting, how- ever, we find it unnecessary to rely on the judge's statement (at sec II,B,4, par. 9) that there were no specific denials by the Respondent's witnesses of employee Fletcher's testimony on the point Instead, we base our finding that Edell actually made such a statement on the judge's spe- cifically crediting Fletcher's "believable testimony" and his reliance on Edell's admitted references to the closing of PPG, another union contrac- tor Further, in light of the clear threat of loss of jobs involved in Edell's unlawful statement, we find it unnecessary to pass on the judge's further finding that Edell also unlawfully threatened employees with the loss of jobs by telling them that the election of the Union would result in fewer jobs for the Respondent's employees because metal frame work would be assigned to the ironworkers In addition to finding an unlawful threat of plant closure, Member Cra- craft would affirm the judge's finding that the Respondent 's statement that the ironworkers would be brought in to handle the metal frames and the Respondent's employees who were then doing metal frames would go to the bench in the event the Union won the election was an unlawful threat ofjob loss in violation of Sec 8(a)(1) Given the judge's crediting on demeanor grounds of employees Kerr and Harris over Supervisors Maynard and Dennis, we further find it un- necessary to rely on the judge' s statement at sec II,C,2, par 2 that May- nard and Dennis failed to contradict Kerr's testimony that Maynard had said that their recall from layoff would probably be after "this Union business" was over In adopting the judge's findings on unlawful interrogation, Member Cracraft does not rely on Sunnyvale Medical Clinic, 277 NLRB 1217 (1985) "3. By coercively interrogating an employee re- garding his union membership or activities; and by threatening to close, move, or change its name if its employees selected the Union to represent them, the Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Sec- tion 8(a)(1) of the Act." 2. Substitute the following for Conclusion of Law 6. "6. The Union's Objections 1 and 7 have merit and are sustained, while Objections 3, 6, and 9 are without merit and are overruled, and Objection 8 need not be passed on." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, JAMCO (Johnson Ar- chitectural Metal Company), Atlanta, Georgia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees regarding their membership or activities on behalf of Gla- ziers, Architectural, Metal & Glass Workers Local Union 1940, or any other labor organization. (b) Threatening its employees that it will close its facility, move, or change its name if they select the above-named or any other labor organization to represent them. (c) Discriminatorily selecting employees for layoff or otherwise discriminating against employ- ees in order to discourage their activities on behalf of the above-named or any other labor organiza- tion. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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) Offer Roman Modest, Mitchell Kerr, Charles Russell, and Robert Harris immediate and full rein- statement to jobs occupied by them prior to any discrimination against them or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole with interest for any loss of earnings and other benefits suffered as a result of the discrimina- tion against them in the manner set forth in the remedy section of the decision. (b) 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, 294 NLRB No. 80 JAMCO and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the dis- charges will not be used against them in any way. (d) Post at its facility in Atlanta, Georgia, and all jobsites where it is currently doing business and employing employees in the unit described in Case 10-RC-13540, copies of the attached notice marked "Appendix."3 Copies of the notice, on forms pro- vided by the Regional Director for Region 10, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, 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. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. IT IS FURTHER ORDERED that the Union's Objec- tions 1 and 7 are sustained, that Objections 3, 6, and 9 are overruled, that the election conducted on October 14, 1987, is set aside, and that Case 10- RC-13540 is severed from Case 10-CA-22910 and remanded to the Regional Director for Region 10 to conduct a new election when the Regional Di- rector deems it appropriate. [Direction of Second Election omitted from pub- lication.] 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 " 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 897 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 coercively interrogate our em- ployees regarding their membership in, or activities on behalf of, Glaziers, Architectural, Metal & Glass Workers Local Union 1940, or any other labor organization. WE WILL NOT threaten to close, move, or change our name if employees select the above- named or any other labor organization to represent them. WE WILL NOT discriminatorily select our em- ployees for layoff or otherwise discriminate against them because of their union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL offer Roman Modest, Mitchell Kerr, Charles Russell, and Robert Harris immediate and full reinstatement to their former jobs or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and WE WILL make them whole with interest for any loss of pay they suffered as a result of the discrimination against them. WE WILL remove from our files any reference to the discharges of Roman Modest, Mitchell Kerr, Charles Russell, and Robert Harris and notify the employees in writing that this has been done and that the discharges will not be used against them in any way. JAMCO (JOHNSON ARCHITECTURAL METAL COMPANY) Gaye Nell Hymon, Esq., for the General Counsel. Mcned Stokes and John Underwood, Esqs., (Stokes, Sha- piro, & Wedge), of Atlanta, Georgia, for the Respond- ent-Employer. Paul L. Styles, Jr., Esq., (Blackburn, Schuster, King & King), of Atlanta, Georgia, for the Charging Party-Pe- titioner. DECISION STATEMENT OF THE CASE HUTTON S. BRANDON, Administrative Law Judge. This matter was tried at Atlanta, Georgia, on 10 and 11 February 1988. The charge was filed by Glaziers, Archi- tectural, Metal & Glass Workers Local Union 1940 (the 898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Union), on 5 October 1987,1 and amended 30 October and 4 November. The complaint issued on 23 November alleging that JAMCO (Johnson Architectural Metal Company) (Respondent or the Company), violated Sec- tion 8(a)(3) and (1) of the National Labor Relations Act (the Act). The issues presented are whether Respondent, (a) unlawfully interrogated employees regarding their union activities, (b) made various unlawful threats to em- ployees to discourage their union support, (c) made un- lawful promises to employees regarding wage increases and insurance benefits to dissuade them from supporting the Union, and (d) discriminatorily discharged four em- ployees on 4 September because of their activities on behalf of the Union and other concerted activities. The record shows relative to representation Case 10- RC-13540 that the petition was filed by the Union on 5 August. Following a representation case hearing on 21 August, a Decision and Direction of Election issued on 15 September and an election was held on 14 October. Of approximately 59 eligible voters, there were 13 votes for, and 39 against, representation with 7 challenged bal- lots. The Union timely filed nine numbered objections to the election on 26 October, and as noted, the Regional Director found the objections were largely coextensive with the allegations in the complaint in Case 10-CA- 22910, and in an order directing hearing and consolidat- mg cases, issued on 4 December, ordered that the repre- sentation case be consolidated with the unfair labor prac- tice case for hearing.2 On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel and Respondent and the oral argument of the Charging Party made at the hearing, I make the following metal framed curtain walls, with construction jobs in the Atlanta, Georgia metropolitan area as well as in Florida, Tennessee, and North Carolina. The Atlanta jobs, includ- ing the IBM Tower, Corporex, Concourse 5, and Lenox Hotel, are large multistoried commercial structures. In Florida Respondent was engaged in work at the North Carolina National Bank building in Tampa. Different work crews were employed at each of these locations with each location or job headed by a job superintend- ent. Hiring of employees was customarily done at each project, but Respondent had in the past maintained a corp of skilled employees that it transfered between projects as old jobs were completed and new ones begun. Respondent's employees historically had been unrepre- sented, and the record reveals no prior attempts by em- ployees at union representation. The record also fails to reveal precisely when the union organizational campaign involved in this case began, but it implies that it *began with Respondent's employment of Johnnie Lambert. Lambert testified for the General Counsel that he was hired by Respondent on 24 July, apparently at the IBM Tower jobsite and worked for 1 week during which time he obtained signatures on union authorization cards from an unspecified number of employees. Lambert was dis- charged by Respondent about 31 July, and although his discharge was alleged to be discriminatory by the Union in the initial and first amended charge no such allegation is contained in the last amended charge or the complaint allegations. The discharges, which were alleged in the complaint to be discriminatory and which were litigated are discussed below. B. The Alleged Independent 8(a)(1) Violations FINDINGS OF FACT 1. JURISDICTION Respondent is a Georgia corporation with an office and place of business in Atlanta, Georgia, where it is en- gaged in the erection of curtain walls, stone work, caulk- ing, and glazing. During the calendar year preceding is- suance of the complaint Respondent purchased and re- ceived at its Atlanta, Georgia jobsites materials and sup- plies valued in excess of $50,000 directly from suppliers located outside the State of Georgia. The complaint al- leges, Respondent's answer admits, and I fmd that Re- spondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The com- plaint also alleges, Respondent also admits, and I further fmd that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent, at the times material, was engaged in the building and construction industry installing and glazing ' All dates are in 1987, unless otherwise indicated 2 The withdrawal of Objections 2, 4, and 5 by the Union was approved in the order directing hearing 1. The conduct of Ray Maynard At all material times Ray Maynard was employed by Respondent as its job superintendent on the Concourse 5 site in north Atlanta. The complaint alleges that on 5 August Maynard interrogated employees concerning their union membership, activities, and desires. Roman Modest, an alleged discriminatee in this case, testified in support of this allegation that he sought a job from May- nard on 4 August at the Concourse 5 jobsite. Modest was briefly interviewed by Maynard, and as the two were headed toward Maynard's truck an unidentified air- conditioning worker commented to Maynard that he should hire Modest, that Modest was a good worker. Maynard then asked Modest if he were affiliated with a union, and Modest responded that he was trying to get on with the Union but that they were not taking any new members. Modest in fact was a member of the Union and had been since 1984. Following his hiring Modest participated in the Union's organizational effort and testified at the hearing in the representation case on 21 August. The General Counsel and Charging Party argue that Maynard's questioning Modest about his union affiliation was unlawful. Maynard, while a witness, did not deny the question Modest attributed to him. Accordingly, and because Modest's testimony was clear, straightforward, JAMCO and specific, I credit such testimony and find Maynard asked the question claimed by Modest. Not all question- ing of an employee regarding unions by a supervisor is unlawful. See Sunnyvale Medical Clinic, 277 NLRB 1217 (1985); Rossmore House, 269 NLRB 1176 (1984). Mayn- ard's question was not accompanied in this instance by any remark remotely suggesting any opposition to the Union. Indeed, while not giving an entirely truthful re- sponse to Maynard, Modest was not deterred from at least indicating his union sympathy by telling Maynard that he had tried to get into the Union. Moreover, Modest testified that he completed his application for employment with Respondent by voluntarily indicating which prior jobs he had worked on were union or non- union. Finally, Modest was obviously hired notwith- standing his revelation of an effort to join the Union. Under these circumstances, I view Maynard's question was casual and innocuous, and more related to, if any- thing, ascertaining Modest's experience rather than to his potential as a union organizer or supporter . I find Mayn- ard's question under the circumstances had no tendency to coerce, and I find Respondent did not violate Section 8(a)(1) of the Act by such question. The complaint also alleges that on or about 1 October Maynard threatened employees on the Concourse 5 job- site that it would be futile for the employees to select the Union as their collective-bargaining representative by saying Respondent would not "go Union" under any cir- cumstances. No evidence was adduced on this allegation, however, and it will be recommended that this complaint allegation be dismissed. 2. Conduct attributed to Tony Faulkner Tony Faulkner was employed by Respondent as its job superintendent on the IBM Tower. The complaint al- leges that Faulkner interrogated an employee regarding his union membership on the IBM jobsite on or about 29 July. Proof of the allegation rests on the testimony of Lambert who related that after he had been working on the job a couple of days, having been employed 24 July, Faulkner approached him and asked him if he was Union. Lambert replied that he belonged to the Operat- ing Engineers. Faulkner then further inquired why Lam- bert was not working out of the union hall and Lambert replied that he did not want to. Lambert expressed un- certainty about Faulkner's further response. While it ap- peared clear that Faulkner said Respondent was "not union," Lambert was unsure whether Faulkner added that Respondent "wasn't going union" or whether he said Respondent "didn't want a Union." In testifying for Respondent Faulker admitted that he asked Lambert questions about whether "he was carry- ing any kind of book or a card or anything for a refer- ence on how long he had been a member of a union or anything as far as experience-wise." He further admit- ted that Lambert replied he carried an Operator's card, and that Faulkner had asked why he wasn't operating equipment rather than glazing. Faulkner claimed that his questions were made in the context of trying to establish the extent of Lambert's glazing experience, since Lam- bert had demonstrated by his work that he was not an experienced glazier . In this regard, Faulkner testified that 899 the had asked Lambert, at the same time, the names of any companies for which Lambert had previously pre- formed glazing work. Weighing the testimony of Lambert against that of Faulkner I credit the former. Lambert impressed me as candid while Faulkner at times appeared evasive. More- over, I note that Faulkner did not specifically deny Lam- bert's testimony to the effect that Faulkner said Re- spondent was "not Union." That added remark was in- consistent with an innocent question about union mem- bership as an indicator of past experience. Further, the timing of Faulkner's questions, coming as they did only a few days after Lambert had been hired, are more in keeping with an effort to ascertain union proclivity or activity than to determine the extent of Lambert's experi- ence. In light of this, and considering Faulkner's further concession that sometime during Lambert 's brief 1 week of employment with Respondent Faulkner learned he was a union organizer, I conclude that it was more prob- able that Faulkner's questions were not innocuous. I find it more likely they were designed to discover or verify Lambert's Union proclivities. Considered in context with Faulkner's notation to Lambert that Respondent was not union I find Faulkner's questions tended to restrain or coerce employees in violation of Section 8(a)(1), as al- leged. An employee questioned under the circumstances found would not likely overlook the implication that union support would engender Respondent's displeasure with all its ramifications. The complaint also alleges that on or about 12 Octo- ber Faulker threatened employees at the Concourse 5 jobsite that Respondent would close its plant if employ- ees joined the Union or engaged in union activities. No evidence was adduced in support of this allegation. Ac- cordingly, dismissal of this complaint allegation will be recommended. 3. The unlawful conduct attributed to Albert Bell a. The supervisory status of Bell At the material times Albert Bell was employed by Respondent at its NCNB jobsite in Tampa, Florida. The complaint alleged, and Respondent denied , that Bell was a supervisor and that on or about 1 October he unlawful- ly promised Respondent's Tampa employees increased benefits if they refrained from union activities. Respond- ent contends that Bell was only a leadman and an eligi- ble employee as found in the Regional Director's Deci- sion and Direction of Election in Case 10-RC-13540. At the hearing, Respondent asserted that the General Coun- sel is precluded from taking a position inconsistent with the Regional Director's decision by claiming that Bell is a supervisor within the meaning of the Act. I find no merit to Respondent's contention. It is well settled that a representation case finding that an individual is not a su- pervisor is not binding in a subsequent unfair labor prac- tice proceeding involving, as here, a violation of Section 8(a)(1) of the Act, as opposed to an 8(a)(5) allegation which, would be deemed to be "related" to the represen- tation case findings and any resulting certification. See Williamson Memoral Hospital, 284 NLRB 37 (1987); Serv- 900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD U-Stores, Inc., 234 NLRB 1143 (1978), Greenbriar Hotel, 216 NLRB 721, 723 (1975). However, the Regional Di- rector's decision and the record in the representation case, of which I have taken administrative notice, have been considered by me in addition to the evidence pre- sented before me in the unfair labor practice proceeding in determining Bell's supervisory status. Bell, in his testimony before me, described himself as the foreman on the Tampa job, having been employed by Respondent for about 5 years. While Bell denied that he did any hiring and firing, he conceded that under the direction of A. J. Hege, job superintendent, Bell sched- uled work and kept the worktime of employees in a notebook. Any disputes about the accuracy of the time kept was resolved between Bell and the employee in- volved. He further conceded, and other record evidence supports the fact, that he granted time off to employees without going through Hege. Although, as noted, he did not directly hire or fire employees, Bell made recommen- dations to Hege regarding such actions, and he estimated that Hege followed his recommendations on hiring 75 percent of the time. However, Bell related that Hege "screens" the hirings. Bell testified he attends periodic meetings, usually bi- monthly, between Job Superintendent Hege and Project Manager Dave Edell. Further, in the absence of Hege, Bell as representative of Respondent attends meetings be- tween the job's general contractor and subcontractors. An estimate in the record by employee James Fletcher that Bell only worked with tools along with the employ- ees only 20 percent of the time was not specifically con- tradicted by Bell. Moreover, Bell admitted that Respond- ent had about four other "foremen" over a total of about 20 employees who "reported" to Bell as "head foreman," and that he with the other foremen distributed the work- load to the employees. Section 2(11) of the Act defines a supervisor as "any individual having authority . . . to lay off, recall, pro- mote, discharge, assign, reward, or discipline other em- ployees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such au- thority is not of a merely routine or clerical nature, but requires the use of independent judgment." Possession of one of these enumerated powers is sufficient to establish supervisory status. NLRB v. Edward G. Budd Mfg. Co., 169 F.2d 571, 576 (6th Cir. 1948), cert. denied 335 U.S. 908 (1949). I find Bell to be a supervisor. The evidence here specific to Bell as opposed to leadmen generally whether or not also called "foremen," fully establishes that Bell kept the time by which employees were paid Further, he adjusted any grievances on the accuracy of the time independently of the job superintendent. More- over, Bell even disciplined employees by docking them a specified amount of time for tardiness, which he deter- mined. It is further clear that Bell independently assigned work, and substituted for the project' superintendent in his absence even in meetings with the general contractor. In this respect, the record fully establishes that degree of discretion in control of employees which warrants the finding of Bell's supervisory status. b. The conduct of Bell The General Counsel's contention that Bell made un- lawful promises is based on the testimony of Tampa em- ployees Rudolph Guthrie and James Fletcher. According to Guthrie, around the first of October Bell approached him and Fletcher who were working together on the job and told the two that he realized that they were doing "frustrating work," and that "We're not promising you," and "We're not trying to buy your vote or anything like that," but that "We're going to see what we can do about getting you more money." Fletcher generally cor- roborated Guthrie's testimony, but added that Bell had previously told the employees that raises would be frozen until "this," an apparent reference to the union campaign, was all over with. Bell, further according to Fletcher told him and Guthrie that they were not sup- posed to give any raises, but "were going to try to see what we can do for you guys." Bell did not address, and thus did not deny, the re- marks regarding raises attributed to him by Guthrie and Fletcher. Thus, Guthrie and Fletcher are credited on this point. There was no evidence, however, that they were actually granted a wage increase prior to the election or even after the election The promise of benefits by an employer during an election campaign may constitute a subtle but nevertheless unlawful inducement if its pur- pose is to impinge of the employees freedom of choice in selecting union representation. See NLRB v. Exchange Parts Co., 375 U.S 405 (1964). Based on Guthrie' s testi- mony Bell made a point of stressing that he was not promising either man he would be successful in attempt- ing to secure a raise for them. The timing of Bell's remark obviously implies the promise of a raise based on union considerations, notwithstanding his assertion that no promise was being made. On the other hand, and con- sidering Respondent's prior announcement that wages would be frozen during the union campaign, there is no other evidence suggesting that Bell's statements were in- tended to be more than an effort to encourage employees who, by Fletcher's testimony, Bell recognized were car- rying more than their share of the work. Further, Bell did not condition his efforts toward a wage increase for the two on the outcome of the election or their support of the Union if in fact they did so support it. Under all these circumstances, I find it difficult to conclude that Bell's remarks constituted a promise of benefits to dis- courage union support despite his specific averments to the two employees to the contrary. Accordingly, I find Bell's remarks did not constitute a promise of benefits to discourage union support in violation of Section 8(a)(1) of the Act as alleged. 4. The statements attributed to Dave Edell The complaint, as amended at the hearing, alleged that Dave Edell, project manager for Respondent on the Tampa job, on or about 9 October, at the Tampa jobsite, threatened employees it would be futile for them to select the Union since Respondent would not sit down and negotiate with the Union, that employees would lose jobs if they engaged in Union activities, and that Re- spondent would close if employees joined or engaged in JAMCO union activities Again the General Counsel relied on the testimony of Guthrie and Fletcher to prove the allega- tions. Their testimony, discussed below, is mutually cor- roborative in some, but not all, respects. According to Guthrie's testimony, Edell spoke to as- sembled Tampa employees a week before the election and told employees that Respondent did not want to "go union," and that they were not going to go union. Edell added that if the employees wanted to go union, "fine," they could do so, but that Respondent would not sit down and negotiate. Further, Edell stated that all the Union wanted was their jobs working with the metal frames and explained that the Iron Workers Union would be brought in to handle the metal frames, that the Iron Workers' members sitting on the bench would "come in," and the Respondent's employees who were then doing the metal frame work would go on "the bench." Unlike Guthrie, Fletcher did not attribute any remark to Edell in the meeting to the effect that Respondent would not sit down and negotiate with the Union Indeed, on cross-examination Fletcher testified he did not hear Edell say that Respondent would not bargain or "anything like that." However, he did relate that Edell said it was Respondent's policy not to be union and that Respondent would "either close the doors or we will move to another location, or we will change our name." Moreover, Edell added that the Iron Workers would do all the metal work, and that Respondent "probably won't need half of you guys, because all you guys would be doing is setting glass." Edell concluded saying, "The Union doesn't need any more men," and "The Union wants your jobs." According to Fletcher, Edell referred to Pittsburgh Plate Glass Company (PPG), observed that it was the "only signed" union contractor in Atlanta, remarked "You all know what PPGs fixing to do," and said, "They're fixing to sell out or close the doors."3 While not entirely clear from Fletcher's testimony, it appears he believed the reference to PPG was made in the con- text of Edell's claim that the Union only wanted the jobs of Respondent's employees Edell, who was conceded by Respondent to be its agent although not a supervisor within the meaning of the'Act, testified that he did in fact have a meeting with the Tampa employees, but placed it on Monday, 12 Oc- ,tober. According to Edell, the meeting was intended to be a question and answer session, and he conceded that he made remarks regarding the closing of PPG and about the Iron Workers. Regarding the former he testi- fied it was discussed because it was a matter of interest to Respondent's employees, but he was initially vague with respect to how the subject was raised and the extent of his remarks on-the matter. With respect to the ironworkers, Edell failed to relate exactly what he told the employees, but he testified that it was his understand- ing that in the curtain wall business work was split be- tween the Iron Workers and the Glaziers, with Iron 3 Fletcher conceded that it was already common knowledge among employees that PPG was "fixing to either close the doors or go out of business " 901 Workers assuming work responsibility for anything in- volving metal [frames] and that Glaziers has responsibil- ity for glazing. Edell was not specifically asked, and thus did not specifically deny, the statement attributed to him by Guthrie to the effect that Respondent would not ne- gotiate with the Union Bell testified that he attended the meeting at which Edell spoke. He denied that Edell said that Respondent would not negotiate with the Union. Although he veri- fied the discussion regarding PPG at the meeting, his recollection of the context was that since PPG was clos- ing Respondent would be "filling the void." Bell, a former business agent of a local Glaziers Union in Tampa, also confirmed that Edell referred to the Iron Workers and testified that Edell said that the Iron Work- ers, who do the metal work, "would probably do most of the work, if there was an election." Job Superintendent Hege also testified regarding the meeting of 12 October and generally supported Bell's version of the remarks regarding PPG made at the meet- ing. He likewise testified that to his knowledge nothing was said to the effect Respondent would not negotiate with the Union. On cross-examination, Hege admitted that Edell had said that in a jurisdictional dispute the Iron Workers could "take work away from them." Although many other employees were identified as at- tending the 12 October meeting, no party sought to have them testify regarding Edell's remarks and assist the trier of fact in resolving the credibility conflicts outlined in the testimony set forth above. These conflicts must be re- solved on the basis of the record as it presently stands, considered as a whole, as well as on the demeanor of the witnesses. Initially, it is to be observed that Guthrie and Fletcher were employees of Respondent at the time of the hearing, and therefore were giving testimony adverse to their employer which could serve to put their jobs at risk. These circumstances serve to enhance their credibil- ity. See Georgia Rug Mill, 131 NLRB 1304, 1305 fn. 2 (1961). Considering this, and because both in demeanor gave the appearance of attempting to testify honestly and accurately, I would be inclined to credit them where their testimony is mutually corroborative or uncontra- dicted. However, each attributed remarks to Edell not heard by the other with Guthrie stating Edell said Re- spondent would not sit down and negotiate with the Union and Fletcher saying that Edell said Respondent would close and move if the Union was elected. Since Fletcher did not support Guthrie on the issue, and also because I find persuasive Bell's emphatic denial that Edell said Respondent would not negotiate with the Union, I find Edell did not make the remark claimed by Guthrie. Accordingly, I find no threat not to negotiate as such, and no violation of Section 8(a)(1) in this respect. On the other hand, however, I find no specific denials by Respondent's witnesses on the record of Fletcher's testimony to the effect that if the Union were elected Respondent would close, move, or change its name. Ac- cordingly, Fletcher's believable testimony, enhanced by Edell's admitted references to the closing of PPG, an- other union contractor, is credited. On Fletcher's cred- ited testimony, I find that Edell did, by his remarks, 902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD threaten that Respondent's operation would be closed in the event of union organization in violation of Section 8(a)(1) of the Act. All the witnesses agree that Edell alluded to the Iron Workers and indicated that the election of the Union would result in a loss of jobs to Respondent's employees by virtue of assignment of the metal frame work to the Iron Workers. There was no evidence presented that such a consequence would legally follow the Union's election. Respondent contends, in effect, that the remarks of Edell regarding the Iron Workers were an expression of opinion of the possibility of jurisdictional disputes aris- ing between the Iron Workers and Glaziers Unions. Hege and Bell both testified that historically there have been disputes between the two unions regarding the metal work associated with glazing of the type done by Respondent, and that such disputes were common knowledge in the industry . As further evidence of such disputes Respondent in its brief cited a number of Board decisions in 8(b)(4)(D) cases involving jurisdictional dis- putes between these two unions necessitating Board reso- lution of the disputes under Section 10(k) of the Act. I find Edell's remarks constituted more than an expres- sion of opinion that jurisdictional disputes might be en- countered if the Glazers' were elected. Rather, I view his remarks as a direct threat of loss of jobs for his own testimony implies that he viewed the splitting of the work between the two unions with Iron Workers getting the metal work in curtain wall construction as an inevita- ble consequence of the Glazers' election. His remarks therefore lead employees to believe that a loss of jobs would follow election of the Glaziers . There was clearly no showing that such a loss would be based on a juris- dictional agreement between the two unions. Nor was there any explanation that any division of the work would have to follow Respondent's voluntary assignment of the metal work to the Iron Workers or that it be awarded by the Board to Iron Workers following a 10(k) hearing and after the Board had found reasonable cause to believe there had been a violation of Section 8(b)(4)(D) of the Act. Obviously, awards flowing from a 10(k) hearing are not predictable, since the Board must weigh many factors in making an award including the employer's prior assignment of the work . Such factors vary from case to case . Accordingly, there are too many imponderables left unexplained to the employees, and of which they could not otherwise be expected to be aware, which would preclude them from fairly understanding or evaluating Edell's remarks as other than a direct threat, particularly when considered in the context of the threat of closure found to have been made by Edell in the same "discussion." Cf. Gino Moreno Enterprises, 287 NLRB 1329 (1988); Eagle Comptronics, 263 NLRB 515 (1982). Respondent argues further that even if Edell's remarks on jurisdictional disputes constitute a misrepresentation of law it is not an objectionable or unlawful misrepresen- tation, citing Tri-Cast, Inc., 274 NLRB 377 (1985). In Tri-Cast the Board held that it would not overturn elec- tion results based on an employer 's misrepresentation of employee rights. Because I have found Edell's remarks were a direct unlawful threat of loss of work rather than a simple misrepresentation, I conclude Tri-Cast is inoppo- site. Edell's reference to the Iron Worker 's under all the above-noted circumstances where the Glaziers were seeking exclusive representation of the unit employees clearly threatened the loss of jobs by employees flowing from selection of the Union. I therefore find Edell's re- marks constituted the threat of job loss alleged in the complaint, and I find such remarks violated Section 8(a)(1) of the Act as alleged. 5. The alleged promises of dependent insurance coverage The complaint alleged that Repondent on or about 1 September at both its IBM jobsite in Atlanta and at its Tampa jobsite, through Job Superintendents Leroy Faulkner and A. J. Hege, promised its employees de- pendent insurance coverage if they refrained from join- ing or engaging in activities on behalf of the Union. Evi- dence regarding such a promise by Leroy Faulkner was never adduced . However, it is clear from the testimony of Douglas Davis, Respondent's comptroller, that on 12 August Respondent did grant employees the option for dependent insurance coverage with Respondent paying one-half the cost of such coverage . The announcement of this option was made to all employees on 12 August 1 week following the filing of the petition in the represen- tation case. However, Davis testified that George John- son Sr., Respondent's president, decided that Respondent would offer its employees dependent insurance coverage, and directed Davis in early June to solicit quotes from several insurance firms for employee dependent cover- age. Davis did so completing the process in late July. At that time, according to Davis , it was determined that none of the quotes received were better than that offered by the insurance carrier Respondent was then using. The offer of dependent coverage was not immediately imple- mented, and as a result of the filing of the representation case petition Respondent found it necessary to check with its counsel concerning implementation. As noted, Respondent announced the dependent coverage offer to all employees at all jobsites on 12 August . The only evi- dence adduced at the hearing corroborating Respond- ent's solicitation of quotes was a plan quote submitted to Respondent by State Mutual Insurance Company dated 23 June. There was no corroboration of Davis ' claim re- garding the time when the decision was made to offer employees partially paid dependent coverage. With respect to a promise of dependent insurance cov- erage by Hege at Tampa, Guthrie testified that a few days prior to the 14 October election in a meeting with employees on the Tampa jobsite the employees were wanting to know about group insurance for their fami- lies, and Hege responded that "it was in the process," and "they were seeing what they could do about getting group insurance." It is not entirely clear that Fletcher at- tended the meeting referred to by Guthrie , and he did not otherwise attribute any specific remarks regarding dependent insurance coverage to Hege . On the other hand he did testify that at meeting of employees with Edell within a couple of weeks of the election , "they," JAMCO apparently referring to Edell, said they were going to get dependent coverage for the employees. Elsewhere in his testimony Fletcher testified that on one occasion when Edell was on the job and bought dinner for the men the question of dependent coverage was raised by an employee and Edell responded, "Well, we're check- ing on some things and that's one of them." Fletcher could not establish the date of Edell's remark, but testi- fied it was made at the time the Tampa employees were not aware that a representation case petition was filed. It seems reasonable to conclude, therefore, that the Tampa employees were also not aware'of any union activity ef- fecting them at the time since it is clear that the unit the Union had sought in the representation case had not in- cluded employees outside those employed by Respond- ent in the Atlanta area.4 Edell did not testify regarding any statements made concerning dependent insurance coverage. In his testimo- ny, Hege acknowledged that the question of dependent insurance coverage came up many times "even before the thing came up on a vote." Hege further testified "we gave them the answer, `It's being worked on'." He was vague about exactly when he first learned that dependent coverage was implemented and said generally that it was before the election and after "notification" of the elec- tion. The absence of any degree of consensus concerning the timing of alleged promises of dependent coverage makes it exceedingly difficult to determine with any ac- curacy when Hege and Edell referred to the Respondent "working on" the insurance question. It seems reasonable to conclude, and I so conclude, that neither Hege nor Edell would have said Respondent was "working" on the matter after the point in time on 12 August when Re- spondent announced the offer of dependent coverage by distribution of a letter to employees with their pay- checks. This conclusion appears consistent with Fletcher's testimony that the employees did not know at the time of Edell's remarks whether a representation pe- tition had been filed. In light of this conclusion, I find the testimony of Guthrie and Fletcher (and that of Hege and Edell for that matter) unreliable to the extent it indi- cates that Hege and Edell told employees after 12 August that Respondent was "working" on dependent insurance coverage. It is likewise unreliable, I find, in es- tablishing that Hege and Edell made such remarks be- tween the time of Respondent's acquiring knowledge of the union campaign and the time on 12 August when the offer of dependent coverage was made.5 Accordingly, I " Although the Union did not seek initially to include the Tampa em- ployees in the unit it appears that based on organizer Lambert's testimo- ny in the representation case Lambert visited the Tampa jobsite on 7 August s The record does not reveal exactly when Respondent becamde aware of the union campaign although it apparently was around the time of Lambert's discharge in late July Further, it does not show exactly when the union activity started, although it suggests it was contemporaneous with Lambert's employment on 24 July There was thus a period of 3 weeks at least between the time when both Guthrie and Fletcher were employed on 1 July and the advent of union activity when Edell and Hege could have made the remarks about "working" on the dependent insurance coverage Such remarks during this would be entirely consist- ent with Davis's testimony that during this period Respondent was seek- ing quotes on the insurance coverage 903 am unable to conclude that either Hege or Edell made an unlawful promise of benefit to employees at the Tampa jobsite in order to interfere with employee union activity. Moreover, since it has not been established that the "promises" were made following the filing of the representation petition and within the critical objections period prior to the election, I cannot find that such al- leged "promises" constituted objectionable conduct The fact remains, however, that Respondent did grant a benefit in the form of partially paid dependent insur- ance coverage to employees after it was aware of the union activity and the filing of the petition. However, Respondent's actual grant of dependent insurance cover- age was not alleged in the complaint as a violation, and while the circumstances of the announcement and grant of its benefit was set forth on the record no amendment of the complaint was urged by the General Counsel. Moreover, in the Charging Party's closing argument Re- spondent's grant of this benefit was only alluded to as "suspicious" and no illegality finding urged. The General Counsel's brief also does not attack the granting of the benefit, and Respondent's brief does not argue the issue of the legality of the grant itself. Under these circum- stances, I find it unnecessary to make any specific con- clusion regarding the legality of Respondent's grant of partially paid dependent insurance coverage to employ- ees. C. The Layoffs 1. The evidence It is undisputed that Respondent on 4 September at its Concourse 5 jobsite in the Atlanta area terminated or laid off four employees, Roman Modest, Mitchell Kerr, Robert Harris, and Charles Russell. The complaint al- leges that these four were discharged because of their membership in, and activities on behalf of the Union. Re- spondent's defense is that the layoffs or terminations were based on economic considerations, and that the se- lections for layoff were based strictly on seniority. Respondent's records showed that Modest and Harris were hired on 3 August Kerr was hired on 31 July, while Russell was hired on 25 August by Job Superin- tendent Maynard at Kerr's request, Kerr explaining that he and Harris needed a "riding partner" for their com- mute to the job from their north Georgia homes. Mo- dest's union background has already been noted. Further, Modest testified that following employment by Respond- ent he participated in the union campaign, and gave testi- mony on behalf of the Union at the 21 August represen- tation case hearing . Kerr was also active for the Union and testified he had been sent by the Union to seek a job with Respondent. In addition, Kerr solicited and ob- tained a union authorization card from Russell dated 27 August. Harris had been a union member prior to his employ- ment by Respondent, and following such employment, according to Harris' testimony, which was uncontradict- ed in this regard, he was seen by Maynard posting union literature on the jobsite. Further, like Kerr, Harris had been sent by the Union to seek employment with Re- 904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent with the instruction that he should be a "role model" employee. He conceded in his testimony that his pay was supplemented by the Union. Finally, Harris also testified for the Union at the representation case hearing. Kerr's testimony was that on 4 September he was working on the job with Harris when Maynard and Randy Dennis, project manager for Respondent on the Concourse 5 job, the construction of a 34-story building, came up to the floor on which Kerr and Harris were working. Maynard came over and told them that he was going to have to lay them off because "they" found out that the union hall sent Kerr and Harris down there to get a job. Maynard further stated that the matter was out of his hands. Harris protested loudly but Maynard re- peated that it was out of his hands. Harris' testimony is generally consistent with that of Kerr. Harris added, however, that he had earlier heard "hints" from May- nard that there would be a layoff. 6 Kerr further testified that immediately after being ad- vised of the layoff by Maynard he walked over to the gang box with Maynard to empty his too] belt. The two discussed the matter further, and Kerr asked Maynard how long he figured they would be laid off Maynard re- plied that he would try to get them back to work as soon as he could, but ^ that it would probably be after "this Union business" was over Modest's testimony concerning the layoff was simply that Maynard separately told him he had been chosen to be laid off and said the reason was for lack of work. He further testified that he had learned form another con- tractor's employee the day before that Respondent would be laying off employees. What Russell was told regarding his layoff was not revealed since Russell did not testify. However, Russell, Harris, Modest, and Kerr all received separation notices showing "Lack of Work" as the reason for separation. It is undisputed that Respondent had a substantial amount of work left to perform on the Concourse 5 job, and that it proceeded to perform work on the job with additional employees transferred from other jobsites. It is likewise undisputed that Respondent had found no fault with the work of the four laid off employees. Indeed, Maynard admitted that Kerr and Harris were probably above average in their work compared with employees retained. On the other hand, it is clear and undisputed that the four alleged discriminatees were in fact the least senior employees on Respondent's work force in the At- lanta area at the time of the layoff Respondent concedes, however, that it had not followed strict seniority in past layoffs. Under the Board's decision in Wright Line, 251 NLRB 1083 (1980), 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the General Counsel is required in attempting to establish an 8(a)(3) and (1) violation to "make a prima facie showing sufficient to support the in- ference that protected conduct was a motivating factor" in the employer's decision [to terminate an employee]. Once this is established, the burden will shift to the em- ployer to demonstrate that the same action would have taken place even in the absence of protected conduct. Wright Line, supra, at 1089. By showing that the four employees laid off had been engaged in union activitiy, that Respondent was aware of that involvement as re- flected in Maynard's alleged comment to Kerr and Harris that Respondent had learned they had been sent by the Union, ,that Respondent harbored union animus as revealed in the 8(a)(1) violations found, that Maynard stated the layoff selections were based on union concerns (at least with respect to Kerr and Harris and, inferential- ly, Modest and Russell since it was necessary to lay them off to reach Kerr's seniority level), that Respondent had substantial work left to be done on the Concourse 5 job at the time of the layoffs, and that Respondent had not followed strict seniority in past layoffs, the General Counsel, I conclude, has established the required prima facie case that the layoff selections were based on union considerations in violation of Section 8(a)(3) and (1) of ,the Act. The burden therefore shifts to Respondent to demonstrate or establish that the layoffs would have taken place, and the layoff selections would have been the same, even in the absence of union activity generally or the specific activities of those selected for layoff. The Respondent justifies the layoff based on economic reasons as related in the testimony of Comptroller Davis. Thus, Davis testified that in early September work was winding down on Respondent's IBM Tower job, and during a regular project manager's meeting on 1 Septem- ber the IBM Tower Job Superintendent Tony Faulkner advised Johnson, that he could no longer keep five of his men busy. It was, according to Davis, common practice to shift employees from one location to another. Thus, other job superintendents were queried whether they could use extra men. None could. Accordingly, Johnson made the decision to lay off five men, and while Re- spondent concedes that it had not followed strict seniori- ty in past layoffs, Johnson after consulting with his coun- sel decided the layoff should follow strict seniority. Davis by examining Respondent's records prepared a list of Respondent's least senior employees on 3 September. Johnson chose the four alleged discriminatees and one other individual. The separations were thereafter effected on 4 September although it was discovered that the fifth individual set for layoff, M. A. Johnson who worked on the IBM job and had a seniority date of 12 August had already quit. 6 Maynard had told employees earlier in the morning that a layoff was possible However, Maynard testified he did not know at that time which employees would be laid off Davis explained in his testimony that senior- ity dates had to be pulled from Respondent's computer and no one previ- ously knew who were the least senior employees in the overall unit in- cluding several jobsites Although Respondent may not have known prior to the computer run precisely all the least senior employees, I am persuaded Respondent and George Johnson Sr, in particular, who close- ly supervised hiring in August, were generally aware of who had been most recently hired 2. Arguments and conclusions Davis' testimony regarding the necessity for a layoff was not contradicted. Further, a compilation of hours worked by Respondent's Atlanta employees prepared by Davis confirms that the total employee hours expended on the IBM job began winding down in late June, and while the total hours varied somewhat from week to week, a substantial drop in excess of 200 man-hours took JAMCO place between the week ending 4 and 11 September. Thereafter, the total hours continued to decrease until the job was completely finished in late December. There was a similar decrease in total hours in Respondent's other worksites over the same period except for the Con- course 5 site, which showed only a 17-man-hour drop between 4 and 11 September and an increase of from 120 to over 200 man-hours in the following weeks. Based on Davis' uncontradicted and otherwise credible testimony and the unrebutted figures regarding the overall decrease in hours on all jobs, I must conclude the evidence is suf- ficient to establish that the decision to implement a layoff was warranted. Accordingly, I find that the decision to implement a layoff was not unlawful. There remains the issue of whether the selections for layoff were discriminatorily motivated in violation of Section 8(a)(3) and (1) of the Act as the General Counsel and Charging Party argue. The resolution of at least one aspect of this issue rests on whether Kerr and Harris are credited over Maynard and Dennis. Having evaluated the demeanor and testimony of these four witnesses con- sidered in the context of the record as a whole I credit the former two over the latter Both Kerr and Harris im- pressed me as sincere and candid witnesses making an honest atttempt to factually and accurately relate what had transpired at the time of their layoffs. Moreover, while Maynard and Dennis denied that Maynard told either Kerr or Harris that Respondent had found that the Union had sent them down to get the jobs, both May- nard and Dennis failed to contradict Kerr's testimony at the gang box that Maynard said that their recall from layoff would probably be after "this Union business" was over. This undented remark clearly reveals that union considerations were a factor in the layoff selections and tends to support the testimony of Kerr and Harris re- garding what they were told was the basis for their layoff selection. I also note in this regard that while Dennis claimed in his testimony that it was Harris who made the statement to Maynard and Dennis that he was being laid off because of their relationship to the Union, Dennis made no claim that either he or Maynard specifi- cally disavowed Harris' assertion. - Crediting Kerr and Harris, and noting Respondent's concession that it had not strictly followed seniority in prior layoffs, I must conclude that Respondent has failed to demonstrate in the face of the General Counsel's prima facie case that Respondent would have selected the alleged discriminatees for layoff even in the absence of their union involvement.' I find therefore that Re- While there was no evidence that Respondent was specifically aware of Russell's union sympathies or that he had signed a union authorization card, it could reasonably conclude that he was a likely union supporter by virtue of his employment at the request of Kerr, a known union "plant," and his riding to work with Kerr and Harris In any event, even if Respondent was not aware of Russell's union inclinations, he was nev- ertheless the object of unlawful discrimination It is well settled that an employer's discharge of uncommitted or neutral employees during a union campaign in order to "cover" or facilitate discriminatory conduct against "targeted" union employees is violative of Sec 8(a)(1) and (3) of the Act See Dawson Carbide Industries, 273 NLRB 382, 389 (1984) 905 spondent violated Section 8(a)(3) and (1) of the Act as alleged.8 Even if I were to credit the testimony of Maynard and Dennis that Kerr and Harris were not told that they were selected for layoff because Respondent found they had been sent to the job by the Union, I would still find their layoffs unlawful. This is because Respondent in using seniority as the sole criteria for the layoffs here was not being consistent with its past practice in making layoff selections. In the past seniority had only been one of a number of factors considered in selecting individuals for layoffs. Moreover, the change to a strict seniorty system in the case sub judice was, based on Davis' testi- mony, specifically responsive to the union campaign among Respondent's employees. Thus, while Respondent has shown that it's past practice was also to shift em- ployees between jobsites to avoid layoffs, there was no evidence submitted that it would have specifically select- ed the four discriminatees for layoff here if seniority had not been the sole criteria utilized for their layoff selec- tion. Respondent asserts that seniority was selected as the fairest and most objective standard to use in the lay- offs here, and less likely to raise objections from the Union than the more subjective standards previously used. Thus, Respondent argues it was compelled to select employees for layoff by seniority. It also argues that the Board's decision in Jones Ceilings, Inc., 263 NLRB 469 (1982), supports its position here. In Jones Ceilings the employer in the face of a union election peti- tion selected one of its three truckdrivers for layoff on the basis of seniority after consulting with its attorney. The Board found the layoff to be justified and the basis for layoff selection was not pretextual or unlawful In reaching this conclusion the Board found other evidence in the case insufficient to show a connection between the layoff selection and the union activity. Jones Ceilings and other cases cited in Respondent's brief,9 in which senior- ity was found to be a nondiscriminatory basis for layoff, are distinguishable from the instant case for unlike here the cited cases do not appear to have involved a clear departure from prior practice. Accordingly, it must be concluded, and I so conclude, that the layoffs were a direct consequence of a change in the basis for layoff selection, which change was a direct response to union activity. The four were, for this fur- ther reason and in the absence of evidence that they would otherwise have been selected for layoff, the ob- jects of discrimination which tended to discourage mem- bership in a labor organization in violation of Section 8(a)(3) and (1) of the Act. 8 The fact that Respondent attempted to recall the discriminatees in December, and did recall Kerr, does not detract from this conclusion Since the complaint had already issued at the time of the claimed recall efforts, it is not clear that such efforts were not responsive only to the complaint rather than demonstrating the absence of any discrimination in the initial layoffs 9 Daswson Carbide Industries, supra, A 3 Schmidt Co, 269 NLRB 579 (1984), Femco Machine Co, 238 NLRB 816 (1978), Triangle Sheet Metal Works, 238 NLRB 517 (1978), Alberts, Inc, 213 NLRB 686 (1974) 906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD III. THE OBJECTIONS TO THE ELECTIONS Objection 1 The Union's Objection 1 to the election complaint of the discriminatory layoffs of Harris, Kerr, Modest, and Russell on 4 September. Having found above that such layoffs were in fact discriminatory, I find that this objec- tion has merit and shall recommend that it be sustained. Objection 3 In this objection the Union asserted that Respondent granted additional insurance coverage to employees during the pendency of the representation petition. As al- ready noted, the complaint does not allege an unlawful grant of a benefit in the form of additional insurance coverage, only an unlawful promise of such. The evi- dence regarding Respondent's grant to employees the option for dependent insurance coverage has, however, already been discussed. Based on Davis' testimony, un- contradicted in this regard and which I find credible, it is clear that Respondent was in fact "working on" de- pendent insurance coverage for employees prior to the advent of the union campaign. It is clear and well settled that an employer faced with a union campaign among its employees must proceed in the same manner as it would have done had the Union not been conducting its cam- paign. See, e.g., Russell Stover Candies, 221 NLRB 441 (1975); Gerbes Super Market, 213 NLRB 803, 810 (1974). Since I find credible Davis' testimony also that Respond- ent had already decided to offer employees dependent coverage prior to the union campaign and that such offer was delayed only because of the search for the lowest possible rates, I conclude that Respondent in offering de- pendent insurance coverage to employees on 12 August was simply effectuating a decision already made. I there- fore find the offer was not designed to interfere with the election and did not have that effect. I shall recommend that this objection be overruled. Objection 6 The Union's 'Objection 6 asserts that Respondent promised permanent employment to employees if they would reject the Union as their exclusive bargaining rep- resentative. This claim is not coextensive with any alle- gation of the complaint, and no independent evidence was adduced by the Charging Party to substantiate it. Accordingly, no merit is found to this objection and it will be recommended that it be overruled. Objection 7 Objection 7 states that Respondent threatened to start another company to operate nonunion if the employees voted for representation. This contention appears to be coextensive with the complaint allegation that Respond- ent would close its "plant" if the employees engaged in Union activities, and is supported by the credited testi- mony of Fletcher regarding statements of Edell already discussed above to the effect Respondent would close, move, or change its name if employees organized. I found such remark to constitute an unlawful threat viola- tive of Section 8(a)(1). Conduct that violates Section 8(a)(1) is a fortiori conduct which interferes with an election. Dal-Tex Optical Co., 137 NLRB 1782, 1786 (1962). I therefore find merit to this objection and shall recommend that it be sustained. Objection 8 The Union contends in this objection that Respondent threatened employees with discharge and loss of jobs if the Union were designated as the collective-bargaining representative. The objection appears to be coextensive with the complaint allegation concerning remarks attrib- uted to Edell by Guthrie and Fletcher previously dis- cussed. I found such remarks by Edell alluding to loss of work to the Iron Workers as a result of organization by the Union constituted an unlawful threat violative of Section 8(a)(1). I likewise find it to constitute objection- able conduct occurring within the critical period. Ac- cordingly, merit is found to this objection and I shall recommend that it be sustained. Objection 9 The Union's Objection 9 is a "catch all" objection re- ferring only to "other acts and conduct" of the Respond- ent and outlines no specific actions on the Respondent's part. No independent evidence was adduced in support of this objection concurring within the critical period be- tween the filing of the petition and the holding of the election. Accordingly, no merit is found to this objection and it will be recommended that it be overruled. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By coercively interrogating an employee regarding his union membership or activities; by threatenting to close, move, or change its name if its employees selected the Union to represent them, and by threatening its em- ployees with the loss of jobs if they selected the Union to represent them, Respondent engaged in , and is engag- ing in, unfair labor practices within the meaning of Sec- tion 8(a)(1) of the Act. 4. By discriminatorily laying off Roman Modest, Mitchell Kerr, Charles Russell, and Robert Harris on 4 ,September 1987, because of their union activities and in- volvement, Respondent engaged in, and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The unfair labor practices set forth in paragraphs 3 and 4 above affect commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 6. The Union's Objections 1, 7, and 8, have merit and must be sustained, while Objections 3, 6, and 9 are with- out merit and must be overruled. 7. Except as found in paragraphs 3 and 4 above, the General Counsel has failed to establish by a preponder- ance of evidence that Respondent violated the Act in any other manner alleged in the complaint. JAMCO 907 THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I find it necessary to order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the purposes of the Act. Having further found that Respondent discriminatorily laid off employees Roman Modest, Mitchell Kerr, Charles Russell, and Robert Harris because of their union activities, It is recommend that Respondent be or- dered to reinstate them to the positions they held prior to their layoffs or, if those positions no longer exist, to substantially equivalent positions, and make them whole for any loss of earnings and benefits suffered by them as a result of their discriminatory layoffs. Backpay is to be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).10 Any dispute as to when any of the discriminatees re- turned to work or whether Respondent made a valid offer to return them to work can best be resolved at the compliance stage of this case. [Recommended Order omitted from publication.] 10 Under New Horizons, interest is computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26USC §6621