M.P.C. Plating, Inc.

M.P.C. PLATING, INC. 583 M.P.C. Plating, Inc. and Local Union No. 507 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO.' Cases 8-CA-18513, 8- CA-18514, and 8-CA-18515 June 15, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On June 6, 1988, Administrative Law Judge Arline Pacht issued the attached decision. The General Counsel and the Charging Party filed ex- ceptions and supporting briefs ; and the Respondent filed limited cross-exceptions and a brief in support of its cross-exceptions and in answer to the General Counsel's and the Charging Party's 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 and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions as modified, and to adopt the recom- mended Order as modified.2 The judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging an employee supporter of the Union,3 and by sub- sequently discharging virtually the entire employee complement shortly after a majority of employees signed cards supporting the Union .4 The judge also found that the Respondent violated Section 8(a)(1) by engaging in interrogations, directing an employ- ee to engage in surveillance, creating the impres- sion of surveillance, and threatening to close the plant. The judge further found that the Respondent ' On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO. Accordingly, the caption has been amended. Y For the reasons set forth below, we shall modify the judge 's recom- mended Order to include a bargaining order. We also shall remedy the Respondent's unlawful conduct by ordering the Respondent to reestablish its permanent work force, which it abolished in the wake of the employ- ees' union or protected concerted activity. See, e.g., Baker Mfg. Ca, 269 NLRB 794, 817 (1984), enfd. in part and remanded in pertinent part 759 F.2d 1219 (5th Cir. 1985). Additionally, the judge, at fn. 29 of her deci- sion, left to the compliance stage a determination whether the Respond- ent offered reinstatement and backpay as of August 1985 to employees Billip, Buslee, Snyder, and Watts. Although we agree that the matter should be left to compliance , we find it appropriate to include in the Order a provision ordering the Respondent to offer reinstatement and backpay to these employees if it has not previously done so . See general- ly, Baker Mfg. Co., above at 794 fn. 2. 9 In adopting the judge's conclusion that the Respondent violated Sec 8(a)(3) and (1) by discharging employee Davis, we find it unnecessary to rely on the judge's finding that the Respondent departed from its own disciplinary policy by discharging Davis after he received two verbal warnings. 4In adopting the judge's conclusion that the Respondent unlawfully discharged its permanent employees on July 24, 1985, we do not rely on her finding that the Respondent was able to marshall $14 ,716 for strike- related legal fees by the end of July. violated Section 8(a)(5) and (1) by refusing to rec- ognize and bargain with the Union as the exclusive representative of its employees following the Union's request for recognition on July 24, 1985, because the Respondent's unlawful conduct inter- fered with the possibility of holding a fair election. Although the judge found that the unfair labor practices were "outrageous or pervasive," she de- clined to recommend a bargaining order in light of the complete employee turnover (which the judge noted was due mostly to the employees' own mis- conduct),5 and the passage of time since the unfair labor practices. She also observed that the unfair labor practices would not have a lingering effect on the Respondent's current work force, which was composed entirely of temporary employees.6 The General Counsel and the Charging Party except to the judge's failure to grant a bargaining order because of employee turnover and the pas- sage of time. We find merit to these exceptions. It is, of course, well settled that the Board will grant a bargaining order when the respondent has engaged in serious and pervasive unfair labor prac- tices that are likely to have a lingering effect on employee .choice in an election . See, e.g., Quality Aluminum Products, 278 NLRB 338 (1986), enfd. 813 F.2d 795 (6th Cir. 1987); NLRB v. Gissel Pack- ing Co., 395 U.S. 575 (1969). We agree with the judge's characterization of the Respondent's unfair labor practices here as outrageous or pervasive. We disagree, however, with her refusal to grant a bargaining order in the circumstances of this case. Under Board precedent, "the validity of a bar- gaining order depends on an evaluation of the situ- ation as of the time the unfair labor practices were committed." Highland Plastics, 256 NLRB 146, 147 (1981). Thus, the factors of turnover, as well as the passage of time, are irrelevant .? Regarding the Second Circuit precedent relied on by the judge, we note that this case does not arise in the jurisdic- tion of the Second Circuit and that not all courts share the Second Circuit's view regarding the rel- evance of posthearing developments . E.g., Piggly Wiggly v. NLRB, 705 F.2d 1537, 1543 fn. 9 (11th 8 The judge found that the Respondent did not violate the Act when, on August 5 and 8, 1985, it discharged 10 of its approximately 14 perma- nent employees for picket line misconduct, and further found that these 10 employees were not entitled to reinstatement . Additionally, the judge found that although the remaining four employees , Billip, Buslee, Snyder, and Anthony Watts, were entitled, inter alia, to reinstatement and, in fact, had been offered reinstatement , there was no showing that they returned to work for the Respondent 8 The judge found that the Respondent has been operating with a tem- porary employee complement since 1985. 7 See Massachusetts Coastal Seafoods, 293 NLRB 496, 500 fn. 10 (1989). Member Johansen finds it unnecessary to address the general relevance of turnover and the passage of time. He, like his colleagues , is satisfied that the evidence of turnover and passage of time does not warrant de- clining to grant a bargaining order here. 295 NLRB No. 65 584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Cir. 1983); Chromalloy Mining & Minerals v. NLRB, 620 F.2d 1120, 1131-1133 (5th Cir. 1980). Moreover, even assuming the relevance of turnov- er and passage of time, we find that such consider- ations do not warrant withholding an otherwise ap- propriate bargaining order here. Although it is true that none of the Respondent's current work force were employees at the time of the unfair labor practices, it would be unrealistic to conclude that the current work force would be unaware of the Respondent's unfair labor practices, particularly given the nature and gravity of these violations (e.g., the threat of plant closure and the discharge of the entire unit).8 In addition, there is no conten- tion that there has been complete turnover among the Respondent's managers and supervisors who committed the unfair labor practices found here. Further, notwithstanding the turnover and passage of time since the unfair labor practices occurred, to withhold a bargaining order in the circumstances here-the seriousness of the unfair labor practices and their impact on the entire unit-would effec- tively reward the Respondent for its own wrong- doing. Kona 60 Minute Photo, 277 NLRB 867, 871 (1985). Finally, to the extent that the judge relied on strike misconduct to deny a bargaining order, we find that this factor is not determinative in the cir- cumstances of this case. The Board views the deci- sion to withhold an otherwise appropriate bargain- ing order for union misconduct as an "extraordi- nary sanction,"9 and will weigh the union miscon- duct in light of all the circumstances of the case, including the extent to which the evidence shows deliberate planning of violence on the part of the union as well as the unfair labor practices commit- ted by the respondent.10 Prior cases in which the Board has withheld a bargaining order, most nota- bly Laura Modes Co., 144 NLRB 1592 (1963), and Allou Distributors, 201 NLRB 47 (1973), have in- volved circumstances in which a union sought to enforce its representation rights by encouraging or resorting to violent tactics. We agree with the judge that the strike misconduct here was serious. 8 In this regard, we also note that we are ordering the Respondent to reestablish a permanent work force and to offer reinstatement to four former employees if it has not already done so. We note that, with regard to this remedy, this case is distinguishable in some respects from Baker Mfg. Co v. NLRB, above, in which the court remanded the case with directions that the employer be allowed to liti- gate the appropriateness of ordering employees reinstated to jobs that had been abolished Here, the Respondent has continued to carry on all of its operations, at times with its own permanent work force and at times using temporary employees supplied by other employers 9 New Fairview Convalescent Home, 206 NLRB 688 (1973), enfd. 520 F 2d 1316 (2d Cir 1975), cert. denied 423 U.S 1053 (1976). 10 See generally Grede Foundries, 235 NLRB 363 (1978), enfd. as modi- fied 628 F.2d I (D.C. Cir. 1980). See also Massachusetts Coastal Seafoods, above at 501 We note, however, that although there is evidence that union agents were involved in blocking inci- dents there is no evidence that union agents were involved in or otherwise encouraged conduct in- volving threats or assaults on nonstrikers. I I We further note that the strike misconduct was the sub- ject of an unfair labor practice charge against the Union, which resulted in a Board settlement agree- ment on September 26, 1985 , and which would serve to remedy the alleged violations . Thus, con- sidering both the nature and the extent of the mis- conduct here, we do not find it sufficient to with- hold issuance of a bargaining order. See Jimmy Dean Meat Co., 227 NLRB 1012, 1040 (1977). Ac- cordingly, we shall order the Respondent to bar- gain with the Union as the exclusive representative of its employees. 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, M.P.C. Plating, Inc., Cleveland, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Cease and desist from (a) Asking employees to engage in surveillance of other employees. (b) Interrogating employees about their own or other employees' union activity. (c) Creating the impression that it is engaged in surveillance of its employees' union activities. (d) Threatening to close the facility if the em- ployees select the Union to represent them as their collective-bargaining agent. (e) Terminating or otherwise discriminating against its employees because they have engaged in union or protected concerted activity. (f) Refusing to recognize and bargain collective- ly concerning rates of pay, wages, hours of em- ployment, and other terms and conditions of em- ployment with Local Union No. 507 of the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL- CIO as the exclusive representative of employees in the following appropriate unit: All production and maintenance employees, in- cluding shipping and receiving employees em- ployed by Respondent M.P.C. at its Cleveland, Ohio facility, but excluding all office clerical employees, professional employees , guards and supervisors as defined in the Act. 11 We note that the judge expressly found that only a few employees were involved in the most flagrant misconduct M.P.C. PLATING, INC. 585 (g) In any other manner interfering with, re- straining, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain collectively with the Union as the exclusive representative of all the em- ployees in the above-described unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and embody any under- standing reached in a signed agreement. (b) Reinstitute a permanent work force. (c) Make employees Michelle Bady, Everett Davis, Ollie Gendraw, Mary Montville, Lawrence Officer, Rashad Shareef, and John Watts Jr. whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, with interest, in the manner set forth in the remedy sec- tion of the judge's decision. (d) Offer, if it has not already done so, to Frank Billip, Craig Buslee, Richard Snyder, and Anthony Watts full and immediate reinstatement to their former positions or, if those jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges pre- viously enjoyed and make them whole for any losses suffered, with interest. (e) Remove from its files any reference to the July 23, 1985 discharge of Everett Davis and the July 24, 1985 discharges of Michelle Bady, Frank Billip, Craig Buslee, Ollie Gendraw, Mary Mont- ville, Lawrence Officer, Rashad Shareef, Richard Snyder, John Watts Jr., and Anthony Watts and notify these employees in writing that this has been done and that the discharges will not be used against them in any way. (f) 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. (g) Post at its place of business in Cleveland, Ohio, copies of the attached notice marked "Ap- pendix." 12 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly on receipt and maintained for 60 consecutive days in conspicuous places including all places 12 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." 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. (h) 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 ask you to engage in surveillance of other employees. WE WILL NOT interrogate you about your union sympathies or activities or those of others, nor ask you to report on the union activities of your co- workers. WE WILL NOT give you the impression that your union activities are under surveillance. WE WILL NOT threaten to close the facility in the event you select a union to represent you as your collective-bargaining agent. WE WILL NOT terminate or otherwise discrimi- nate against you because you have engaged in union or protected concerted activity. WE WILL NOT refuse to recognize or bargain collectively concerning rates of pay, wages, hours of employment, and other terms and conditions of employment with Local Union No. 507 of the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, AFL-CIO as the exclusive representative of all employees in the following appropriate unit: All production and maintenance employees, in- cluding shipping and receiving employees em- ployed by Respondent M.P.C. at its Cleveland, Ohio facility, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. 586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union as the exclusive representative of our employees and embody any understanding reached in a signed agreement. WE WILL reinstitute a permanent work force. WE WILL make Michelle Bady, Everett Davis, Ollie Gendraw, Mary Montville, Lawrence Officer, Rashad Shareef, and John Watts Jr. whole for any loss of earnings and other benefits resulting from their unlawful discharges, plus interest. WE WILL, if we have not already done so, offer Frank Billip, Craig Buslee, Richard Snyder, and Anthony Watts full and immediate reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions without preju- dice to their seniority or any other rights and privi- leges previously enjoyed and make them whole for any loss of earnings or other benefits resulting from their discharge, plus interest. WE WILL notify Michelle Bady , Frank Billip, Craig Buslee, Ollie Gendraw, Mary Montville, Lawrence Officer, Rashad Shareef, Richard Snyder, John Watts Jr. and Anthony Watts that we have removed from our files any reference to their discharges on July 24, 1985, and notify Everett Davis that we have removed from our files any reference to his discharge on July 23, 1985, and that the discharges will not be used against them in any way. M.P.C. PLATING, INC. Richard F. Mack, Esq., for the General Counsel.' Donald F. Wooddock, Esq., William L.S. Ross, Esq. (Calfee, Halter & Griswold), of Cleveland, Ohio, for the Respondent. Richard G. Ross, Esq. (Chattman, Garfield, Friedlander & Paul), of Cleveland, Ohio, for the Charging Party. DECISION STATEMENT OF THE CASE ARLINE PACHT, Administrative Law Judge. On charges and amended charges filed by Local Union No. 507 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union or Local 507),2 a third amended consolidated complaint issued on August 19, 1987, alleging that Re- spondent, M.P.C. Plating, Inc., violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act (the 1 Counsel for the General Counsel will be referred to as the General Counsel. a The charges in Cases 8-CA-18513, 18514, and 18515 were filed on August 23, 1985; the charge in Case 8-CA- 18514 was amended on Sep- tember 26 and on October 15, 1985. Act) (29 U.S.C. Sec. 151 et seq.). The Respondent filed timely answers denying any wrongdoing. The case was tried before me in Cleveland , Ohio, on December 8-11, 1987, and on January 11-14, 1988, at which time the parties had full opportunity to examine witnesses, to introduce documentary evidence, and present oral argument. The Issues As framed by the pleadings in this case , the issues to be resolved include: (1) Whether Respondent's agents independently violat- ed Section 8(a)(1) of the Act by interrogating an employ- ee and requesting that he engage in surveillance of his coworkers, creating the impression that they were sur- veilling the workers' union activities, and threatening to close the plant if the employees selected the Union to represent them. (2) Whether Respondent's effort to transfer its regular employees to the payroll of a temporary employment agency on July 23, 1985, was for sound business reasons or was discriminatorily motivated to avoid recognizing and bargaining with the union selected by the employees to represent them. (3) Whether the attempted transfer resulted in the con- structive discharge of Respondent's emloyees. (4) Whether, by ceasing to maintain a permanent work force on or about July 23, 1985, temporary employees as- signed to work at Respondent 's facility were denied the opportunity to obtain permanent employment and bene- fits. (5) Whether the Respondent properly discharged cer- tain employees on August 5, 1985, becuase of their al- leged picket line misconduct.3 After considering the witnesses' demeanor, the post- trial briefs submitted by the General Counsel and the Re- spondent, and on the entire record, pursuant to Section 10(c) of the Act, I make the following FINDINGS OF FACT JURISDICTIONAL FINDINGS Respondent, an Ohio corporation, with an office and place of business in Cleveland, Ohio, is engaged in the business of metal plating . Annually, in the conduct of its business operations, Respondent has sold and shipped products, goods, and materials valued in excess of $50,000 directly from its facility to points outside the State of Ohio. Accordingly, I find that Respondent is now, and has been at all times material here, an employ- er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Union is now, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. 8 Unless otherwise specified, all events indicated here took place in 1985. M.P.C. PLATING, INC. 587 The Relationship Between M.P.C. and Ger-Mar Respondent, a relatively small business engaged in buffing, polishing and plating metal parts , is wholly owned by corporation president, Albert Walcutt. His wife, Roseann Walcutt, who serves as corporate secre- tary-treasurer, also performs most bookkeeping tasks for the Company. Other supervisory personnel include the Walcutts' son-in-law, and plating foreman, David Piwarski, Benny Strozier, longtime foreman of the buff- ing department, and Joseph Roth, chemical engineer.4 During the period of time in which the events giving rise to these proceedings occurred , Respondent em- ployed some 30 production and maintenance workers. Approximately 14 or 15 of this number were permanent employees on the M.P.C. payroll ; the balance were em- ployees secured throught Ger-Mar Temps, an employ- ment agency owned by Marge Martens and Geri Nigro, who specialized in providing temporary employees for clerical and industrial jobs. On receiving telephone requests from Respondent's su- pervisors, Ger-Mar Temps referred workers from its reg- istry on an as-need basis. The temporary employees worked side by side with the permanent M.P.C. staff, performing similar work under M.P.C. supervisors: Each temporary worker maintained his or her own timecard whch was submitted to Ger-Mar on a weekly basis. The temporary agency billed Respondent at a rate of $4.40 an hour per employee, which covered the worker's individ- ual minimum wage rate of $3 .30 per hour and such items as unemployment and workmen's compensation. The temporary employees received no fringe benefits. Although a number of Respondent 's employees origi- nally started on a temporary basis,5 Ger-Mar and M.P.C. had no understanding or arrangement by which a tempo- rary worker could expect a permanent, full-time position. Rather, the prospect of a steady job with Respondent de- pended on the quality of the employee's work and whether a permanent opening became available. Indeed, the record is uncontroverted that during the first 6 months of 1985, there was extensive turnover among the temporary employees referred to M.P .C. Respondent did not fire unsatisfactory temporary employees ; rather su- pervisors signaled the temporary agency that they did not wish particular employees to return. By the latter part of June, Respondent had imposed a freeze on hiring any new permanent workers.6 The regular M.P.C. employees clearly enjoyed more desirable terms and conditions of employment than did their temporary counterparts . Generally, they earned be- * The complaint alleged and Respondent denied that Violet Rostrum was an inspector supervisor . Apart from one employee witness who re- ferred to her as the chief inspector, and invoices listing Rostrum as the person responsible for temporary employees assigned to inspection work, no other evidence appears in the record to clarify her status According- ly, I find that the General Counsel has not provided sufficient proof that V Rostrum is a supervisor within the meaning of the Act. As of July 23, eight of the M.P C permanent work force began as Ger-Mar referrals. 8 In the original complaint, Ger-Mar Temps was named as a respond- ent and joint employer with M P.C. On June 16, 1987, Ger-Mar entered into a unilateral settlement with the Board and consequently was not named as a respondent in the third amended complaint which issued thereafter tween $3 .75 to $4.50 an hour, with time and a half for overtime. Their fringe benefits included a company-paid single employee hospitalization policy, a $5000 life insur- ance plan, eight vacation days, three bereavement days, and a 1- to 2-week vacation program dependent on their length of service . In addition, the terms of a written policy provided that "each calendar quarter the Compa- ny will pay to all employees in good standing a portion of the profits earned during the previous quarter." (See R. Exh. 8a.)7 The quarterly amount paid , if any, was de- pendent on whether sufficient profits were earned. Em- ployees testified that they a received a profit -sharing dis- tribution in November 1984 and another in April 1985. Independent Allegations of 8(a)(1) Vidlations In late June, Rashad Shareef, one of the more senior and respected of the M.P.C. employees, began to discuss with fellow workers the need for a union to represent them in dealing with what they perceived to be un- healthy and unsafe working conditions in the plant. Just before starting his vacation at the end of June, Shareef asked buffing department foreman, Benny Strozier, for the name of the union which had previously represented the M.P.C. workers.8 He then revealed to Strozier that he itended to contact that union. He also mentioned this same intent to Violet Rostrum, whom he referred to as chief of the inspection department. During this same time period, that is, at the end of June, Shareef testified that both Walcutts directed him to "watch the employees" for they were "acting strange." Later that week, Shareef stated that Mrs. Walcutt asked him what he had learned and urged him to report to her if he discovered anything. Shareef maintained that he simply responded to this inquiry by stating that nothing had come to his attention. On July 1, while he was on his vacation, Shareef met with Teamsters Local 507's business agent, Terry Freeman. They discussed the situa- tion at M.P.C. and scheduled a meeting with the employ- ees for July 20. Shareef testified that he telephoned Stro- zier and told him of his meeting with Freeman. When Shareef returned to work on July 15, he was summoned to the Walcutt's office where, after welcom- ing him back, they asked what he knew about the advent of a union. Although Shareef pleaded ignorance, Walcutt threatened that he would close the plant before allowing a union to come in. Shareef further testified that as he was leaving work that same day, R. Walcutt said that she was sure a union effort was underway . She then re- lated several anecdotes which cast unions in a negative light and again urged Shareef to find out who was behind the union effort. She said that anyone instigating a union movement would be discharged immediately and repeated her husband's admonition that the plant would be closed before a union could make its presence felt. Shareef further stated that he telephoned Strozier that same evening in an effort to find out what the Walcutts actually knew . Strozier reportedly told him that R. Wal- 7 Respondent's exhibits will be referred to as R. Exh.; General Coun- sel's exhibits as G. C. Exh 8 The Charging Party Union, which previously had represented Re- spondent's employees, was decertified in 1982. 588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cutt had asked him to interrogate another employee, Frank Billip, about his knowledge of union activity, but later rescinded this instruction, telling Strozier that they already knew what was going on. Billip, presented as a witness by the General Counsel, testified that Strozier did ask him repeatedly on July 20 if he knew that the employees were trying to start a union. In response, Billip initially denied knowing of any union activity, but eventually, at Strozier's insistence, ad- mitted that an organizational effort was underway. Ac- cording to Billip, Strozier then said that "Al (Walcutt) already knew about it" and was "going to do something about it too." Billip maintained that Strozier repeated this comment on July 22. The Walcutts and Strozier denied making any of the unlawful statements attributed to them by either Shareef or Billip. The Discharge of Everett Davis Everett Davis, an M.P.C. production unit employee since November 1984, performed work as a lab techni- cian. In preparation for the union meeting of July 20, and at the request of Freeman , the Teamsters agent, Davis complied a list of complaints and problems con- cerning working conditions at the facility which affected him and fellow workers . He urged at least one other em- ployee to prepare a similar list of concerns. On July 15, Davis' supervisor, Dave Piwarski , appar- ently observed the list, for he asked Davis what on it. When Davis claimed that the list was personal , Piwarski called him into an office and interrogated him further. Davis continued to withhold the list until Piwarski threatened to confine him to the office until Mr. Walcutt arrived. Finally, Davis relented. After reviewing the items on the list, Piwarski turned it over to Joe Roth, Respondent's chemical engineer . An hour and one-half later, Davis was permitted to return to work. Later that day, Roth instructed Davis to present his complaints to him directly rather than writing them down.9 Three days later, on July 18, with Roth and Piwarski present, Walcutt interviewed Davis about the items on the list and various other concerns which Davis raised. Walcutt agreed to correct some of the matters, but rejected others. On the previous day, July 17, Davis received his first written warning, relating to an incident which occurred on July 15. As a lab technician, Davis was required to check the temperature of certain solutions in a tank used to heat metal parts. Accordingly, on July 15, Davis tested the temperature in the tank and found that it was below standard. He entered his findings on a lab report but did not orally call the matter to the attention of plat- ing foreman Piwarski , or the chemist, Joe Roth. Thereaf- ter, Frank Carter, the employee directly responsible for operating the machine, loaded the metal parts into the underheated tank without first rechecking the tempera- ture or the gauge as he was required to do. This resulted in ruined parts valued at serveral thousand dollars. Wal- cutt who had warned Carter in March for similar irre- ° Since Piwarski was not called as a witness and Roth did not refer to this matter when he testified, Davis' version of this episode is uncontro- verted sponsible conduct, discharged him on July 16. On July 17, Joe Roth gave Davis a written warning for contribut- ing to this same mishap, but told him not to worry since he and others also were to blame . Fearing for his job, Davis accepted the warning without protest. On July 20, Davis attended the scheduled union meet- ing and signed an authorization card . On July 22, he of- fered a blank authorization card to a temporary employ- ee and, when the card was signed, turned it over to Shareef. That same day, he and Frank Billip were dis- cussing the Union in the men's room and did not imme- diately notice that Walcutt had entered. Although Davis was not sure that Walcutt had overheard them, he sus- pected as much because Walcutt appeared to him to be angry and did not even greet them as he ordinarily would. Early the next morning, July 23, Walcutt discharged Davis. When Davis asked why he was being penalized for conduct which had occurred 8 days earlier, Walcutt told him that his role in the July 15 incident had just come to his attention and that he had not previously known that Davis had received two earlier warning for careless work conduct. In disbelief, Davis blurted out that he was sure his discharge was related to his union activity. Walcutt testified that his decision to discharge Davis was in accord with company rules . In fact, these rules provided, in pertinent part, that discharge would occur when an employee had committed three similar viola- tions, and where a written warning was given for the second violation. Walcutt explained that after reviewing the written warning given to Davis for his part in the July 15 tank incident, he prepared the following note: "Davis had been previously warned of grievous failures to perform his job. Both previous incidents resulted in large reject costs. Both were absolute disregard . . . and deliberate failure to do his job . The third failure resulted in a total line shutdown for 2 hours and was a continu- ation of previous problems." (R. Exh. c.) Davis subsequently applied for unemployment com- pensation. However, the hearing referee found that Davis was dismissed for just cause , and that "no compe- tent evidence has been introduced to establish the claim- ant's prior union activities in any way contributed to his discharge." (R. Exh. 10-B at 3.) The Employees Organize According to plan, Teamsters Business Agent Freeman met with M.P.C. and Ger-Mar employees on July 20. Freeman testified that after explaining the purpose of au- thorization cards to the group, he distributed a card to each employee at the meeting . When they had finished signing the cards in his presence , he collected an execut- ed card from everyone in attendance. Several days later, Shareef collected additonal signed cards from a handful of employees who were unable to attend the meeting. The cards, each of which was authenticated by either Freeman or Shareef, establish that by July 22 a majority of production and maintenance employees working at M.P.C. PLATING, INC. M.P.C. designated Teamsters Local 507 as their collec- tive-bargaining representative." 0 With authorization cards in hand from a substantial majority of employees working for Respondent, Freeman visited the M.P.C. facility on the morning of July 24 to request recognition . On his arrival, he observed Walcutt talking with a number of employees outside the plant, but as Freeman approached, Walcutt retreated indoors and spoke to Freeman through a window separating the reception area from the interior of the plant. Freeman advised Walcutt that he was seeking recognition and at- tempted to serve a letter which, signed by the Respond- ent, would constitute assent. Unable to hand the letter to Walcutt, Freeman left it on the window ledge. Walcutt claimed that he did not receive such a letter . The follow- ing day, April 25, the Union mailed a certified letter to the Respondent requesting recognition and bargaining. This letter was returned to the Union unopened, delivery refused. The Attempted Transfer of M.P.C. Employees to Ger-Mar On July 22, Walcutt telephoned Ger-Mar Temps to ar- range a meeting with Nigro on the following day. When Nigro arrived at the plant, the Walcutts advised her that they wished to transfer all of their regular employees to Ger-Mar's payroll immediately. Ger-Mar had little experience in performing a payroll- ing service but agreed to the undertaking." By the terms of the transfer, the M.P.C. work force wold become Ger-Mar employees but would continue to be assigned to work at M.P.C. Ger-Mar would be responsi- ble for such functions as issuing the employees' weekly paychecks and paying for workmen's and unemployment compensation . In return for performing these payrolling functions for the transferred workers, the Respondent would pay Ger-Mar a premium of 20 percent above each employee's hourly rate . Because Ger-Mar did provide holiday pay, Walcutt assured Nigro that Respondent would grant each transferee a 25-cent -an-hour increase to his or her current wage to offset the loss of this fringe benefit. Nigro also advised Respondent that Ger-Mar of- fered 1 week's paid vacation after an employee had worked 1600 hours. Although Ger-Mar did not have a medical plan for its temporary employees, Nigro offered to investigate whether such insurance could be obtained at a rate of 10 cents per man hour through a business as- sociation to which Ger-Mar belonged . Respondent agreed to compensate Ger-Mar for this expense. As Wal- cutt explained, Respondent did not intend to preserve its profit-sharing plan for the transferred employees since at that time there were no profits to share . No evidence was adduced that Respondent would continue to com- 1° The M.P.C. employees who signed authorization cards July 22 were Michelle Bady, Craig Buslee, John Champion, Everett Davis, Ollie Gen- draw, Glen Lester, Robert Lytle, Mary Montville, Lawrence Officer, Rashad Shareef, Anthony Watts, John Watts, and Frank Billip. The Ger- Mar employees who signed cards by the date were Willie Caston, Willie Hall, Dalion Russell, Samuel Taylor, Norman Ferguson, Leslie Harris, Nathaniel Parks, Marvin Jones, and Robert Minor. 11 Ger-Mar previously had performed a payrolling function for an- other client by carrying a single retired employee on its payroll. 589 pensate the transferred employees for other company benefits such as the $5000 life insurance policy or be- reavement leave. Subsequent to this meeting, Nigro returned to her office and, together with Martens , prepared a letter of understanding setting forth the terms of Ger-Mar's pay- rolling agreement with Respondent. At Walcutt's re- quest, this letter of understanding expressly referred to meeting or contacts between the principals of Ger-Mar and M.P.C. which had taken place in November 1984, and April 1985, as if the proposed transfer of Respond- ent's employees had resulted from discussions on these earlier occasions. 12 In fact, Nigro and Martens were certain that they had never discussed the transfer of M.P.C. employees to the Ger-Mar payroll prior to July 23. In fact, as the women's testimony indicated, the only communication between Ger-Mar and Respondent in April 1985 concerned Wal- cutt's inquiry as to whether the agency carried insurance to protect M.P.C. against liability in case of injury to a temporary worker . On some earlier occasion , they also had discussed using temporary labor for the new plastics business. Walcutt testified that M.P.C. decided to transfer its employees to Ger-Mar because of the Company's declin- ing economic circumstances. From its inception in 1980, Respondent's business was highy leveraged. In 1985, after several successful years, the Walcutts had formed a new, allied corporation, M.P.C. plastics, and had pledged $50,000 in security to obtain $200,000 in bank loans as startup funds for the enterprise which was due to open in the fall. In addition, Respondent had loaned M.P.C. Plas- tics $177,000 for working capital. Since 1981, Respondent's accountant, Douglas New- comb, had advised the Walcutts to rely more heavily on temporary labor as a cost saving measure. Newcomb tes- tified that temporary agencies had lower workmen's and unemployment compensation rates than did Respondent. Also, by utilizing the temporary agency, Newcomb pointed out that the Respondent would be spared the ad- ministrative burdens of calculating and preparing weekly paychecks, and of having to pay the Federal and state payroll taxes. On June 20, 1985, Newcomb prepared an analysis of Respondent's financial return for the quarter ending April 30, and in a meeting with Walcutt , pointed out that labor costs had increased in ratio to net sales . He again urged Walcutt to turn to temporary labor as a way of reducing expenses. Walcutt did not heed his accountant's advice until a month later. On July 19, R. Walcutt determined that there was insufficient cash in Respondent's bank account to cover the payroll for that week. Walcutt testified that he concluded on July 22 that Respondent's immediate cash-flow problem could be resolved only by transfer- ring the employees to Ger-Mar. Respondent then would be spared the necessity of having sufficient cash on hand 12 The letter of July 23 stated, in pertinent part, that "In reference to our meetings of November 8, 1984 and April 26, 1985, concerning the usage of Ger-Mar Temps, we would like to offer the following to Manu- facturer's Plating Co...... (See G C. Exh. 32 ) 590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for the payroll, and would gain an additional 30 to 60 days before the Ger-Mar bill had to be paid, in addition to other cost savings that a transfer would bring about. On the afternoon of July 23, Walcutt met with the em- ployees to announce the proposed transfer plan. After explaining that the Company was running into financial difficulty, he explained the new terms and conditions of their employment in accordance with his understanding with Ger-Mar. Martens and Nigro returned to the M.P.C. facility while this meeting was in progress and heard Walcutt tell the employees , among other things, that they would be unable to work for the Respondent unless they agreed to the transfer. Although the women brought Ger-Mar application forms with them and were prepared to effectuate the transition immediately, very few of Respondent's employees were willing to even consider the move . Only two of the regular M.P.C. em- ployees agreed to sign up with Ger-Mar. On July 24, the Walcutts invited Martens and Nigro to a dinner meeting . On this occasion, the Walcutts repeat- edly stressed the need for Ger-Mar and Respondent to maintain a united front, mentioned the advent of a union for the first time, and assured the women that a lawyer whom they had retained, Ray Blankenship, would re- solve any problems that might arise.'3 Walcutt then asked Nigro and Martens to backdate to July 16 the July 23 letter which Ger-Mar had furnished to Respondent the previous afternoon. He also asked the women to pre- pare and backdate two additional letters which would document meetings between them on the dates refer- enced in the July 23 letter, explaining that Blankenship had proposed these stratagms to counteract any suspicion that might arise by virtue of the attempted transfer of M.P.C. employees to Ger-Mar. Initially, Martens and Nigro were willing to comply with Walcutt's request and even prepared a copy of the July 23 letter backdated to July 16. However, they soon had second thoughts about such machinations and never sent the letter. Subsequently, on or about August 16, after the Union had filed the charge giving rise to the in- stant complaint and a Board investigator had taken affi- davits of the Ger-Mar principals, Walcutt called the women and rescinded his request for the backdated cor- respondence. By that time, Ger-Mar had severed its busi- ness relationship with the Respondent. On the morning following the abortive transfer at- tempt, Shareef opened up the plant, as was his custom. When the Walcutts arrived, Walcutt urged Shareef to transfer to Ger-Mar so that he could continue to work at M.P.C. Instead or acquiesing, Shareef asked if the em- ployees could return as employees. Walcutt answered negatively, stating that he would have to lay off of fire people. He sent Shareef home to reconsider his refusal to transfer. Shareef returned to the facility later that morn- ing and found that the employees had not been permitted entry. The next day, both Ger-Mar and Respondent's employees began a strike which would last several months and cost most of the M.P.C. employees their jobs. 13 Blankenship is a labor consultant , not a lawyer. When the Respondent resumed production during the following week, it employed temporary labor supplied by Ger-Mar. Then, on or about August 8, Respondent reverted to a permanent work force of its own. This situ- ation continued until late 1985 or early 1986, when it again shifted to a completely temporary labor force sup- plied by firms other than Ger-Mar. Picket Line Activity The complaint alleges that on or about August 5, 1985, Respondent discharged 10 of its employees because of their involvement in strike activity . The Respondent ad- mitted the allegation but contended that its actions were justified by the employees' picket line misconduct.14 Based on video tapes which documented the picket line activity, and on uncontroverted testimony offered by Re- spondent's witnesses, the General Counsel moved to amend the complaint during the hearing to concede that the reinstatement rights of six strikers; that is Bady, Champion, Gendraw, Lytle, Lester, and Montville, ter- minated at the latest by August 8. The General Counsel further agreed that reinstatement rights ended on August 23 for John Watts, on August 28 for Rashad Shareef, and September 13 for Everett Davis.' 5 The strikers' picket-line conduct will be examined sep- arately below in order to determine whether and when they may have forfeited their right to reinstatement. Yet, in reviewing the picketers behavior on an individual basis, it is possible to overlook its collective impact. At all times, the picketing was a shared activity. On occa- sion, as many as 20 to 30 strikers, supporters, and union business agents milled about on the street in front of Re- spondent's plant. The picketing was successful enough to force the Respondent to cease doing business for the first few days of the strike. Even a temporary restraining order which a county court issued on August 8, was not enough to prevent intermittent blocking of plant en- trances. On many occasions, the nonstriking employees were permitted to pass through the picket line only with police assistance. Individuals responsible for particular acts of violence, which included personal assaults, shat- tering of car windshields, and sabotage of plant equip- ment, were not always identified . Nevertheless, such acts, viewed cumulatively, had to create an atmosphere of intimidation and give rise to apprehension that vio- lence could erupt at any time. In the face of abusive behavior by some, though cer- tainly not all of the picketers, Respondent 's agents and employees exercised considerable restraint . A police offi- cer responsible for overseeing labor relations during the strike, testified that Respondent overreacted on occasion by calling for police assistance more frequently than cir- cumstances might have warranted. However, no evi- dence was presented of provocative behavior by any person associated with the Respondent throughout the strike. A summary follows outlining the picket line ac- 14 Specifically, Respondent admitted that it discharged eight of the em- ployees on August 5, and three others on August 8. 15 The Respondent offered reinstatement to Frank Billip , Craig Buslee, Richard Snyder, and Anthony Watts as of August 26, 1985, in the event that it was found to have constructively discharged them M.P.C. PLATING, INC. tivities of each M .P.C. employees prior to the date of discharge. (1) Michelle Bady was one of a group of employees engaged in repeated incidents of blocking ingress and egress at various entrances to the M.P.C. plant on July 25, 26, 27, 29, August 2 , and beyond. On at least three of these dates, Respondent's agents filmed videotape which showed Bady, arms linked with other strikers, forming a human barricade outside the facility . Although not heard on the video tape, Walcutt recalled that on July 25, Bady called out to a supervisor, Jeff Weaver, "We know where you live." Respondent 's chemist, Joe Roth, testi- fied that Bady shouted as he approached the plant, "He's the . . . (expletive) maintenance man and he's not going to work today."Linda Bukky, an office clerical employ- ee, related that when she attempted to drive into the parking lot adjacent to the facility, Bady sat down in the middle of the driveway blocking the path . Walcutt fur- ther testified that on July 27, while Bady and others were blocking an entrance to the building, she deliberate- ly pushed Marge Martens. (2) John Champion was one of the more aggressive and strident of the strikers . He, too, participated in blocking access of nonstriking employees to the plant on July 25, 26, 27, and 29 and August 2. Roth testified that on the first day of the strike, Champion was one of four employees who surrounded him and prevented him from entering the facility. During this encounter, Roth was as- saulted by one of the four employees . On the same day, Champion and another employee positioned themselves beside a car driven by the Walcutt's son, Kirk, prevent- ing him from moving forward , while a third employee smashed the rear window of the car with a baseball bat. Shattered glass sprayed over Kirk and his brother, Keith, who was in the passenger seat beside him. On July 26, Champion was captured on video tape yelling, "You're going to have a problem , Al." Walcutt testified that on the same day, he observed Champion 's body blocking and pushing Nigro as she attempted to enter the build- ing. Later, Champion entered the plant, burst into an office while holding an implement used in the production process, threatened Dave Piwarski . Chris McMahon, an M.P.C. employee who transferred to Ger -Mar and at- tempted to cross the picket line, identified Champion as one of several employees who shouted to him on July 27 that his wife and children were home alone , implying that they were defenseless in his absence. On August 2, Champion was one of a group of strikers who circled at the entrance of the plant's parking lot for an hour, pre- venting nonstriking employees from entering.16 (3) Although Everett Davis had been terminated on July 23, allegedly for cause, the Respondent discharged him again on August 5 for picket line misconduct. Davis was a mild-mannered, soft-spoken young man, but the video tape established that he participated in numerous episodes of blocking on July 25, 26, and 27. On this latter date, Davis planted himself in front of a car carry- ing three or four temporary employees who were at- tempting to enter the plant's parking lot. Further, Wal- 16 On August 18, 1985, Champion was murdered, a victim of domestic violence 591 cutt testified that on the same day, Davis grabbed one of the Ger-Mar temporary employees who tried to enter the facility. Davis also was one of the picketers who cir- cled at the entrance of Respondent driveway on August 2, delaying each car as it attempted to gain access to the parking lot. On August 12, Benny Strozier and Kirk Walcutt both testified that Davis was one of a few em- ployees who threw rocks and bricks over the plant roof and into the parking area on the other side . Davis denied that he had engaged in any rock throwing and added that he had seen no one else engage in such behavior either. I am inclined to credit Strozier and Walcutt's ac- count in this regard for they had no motive to single out Davis as a participant in the rock -throwing episode. (4) Ollie Gendraw, who hired by M.P.C. from Ger- Mar within recent weeks prior to the strike, did not take an especially active role in the picketing . The video tape shows that he engaged in picketing on only two occa- sions, July 29 and August 6. (5) Glen Lester prticipated in blocking the facility on July 25, 26, 27, and 29 and August 6. Nonstriking em- ployee McMahon identified Lester as among those who attempted to intimidate him by reminding him that his wife was home alone. Lester also threatened to beat McMahon if he tried to work. On July 27, Lester sat in the path of McMahon's car as he attempted to enter the plant parking lot. On that same day, Lester warned Wal- cutt that a truck which was loaded with goods for a cus- tomer "ain't going to make the trip." When Walcutt ex- amined the truck more closely, he found holes punched into the radiator. (6) At the outset of the strike, Robert Lytle engaged in an assault which in itself was sufficient to warrant his im- mediate discharge . Thus, Joe Roth testified without dis- pute that on July 25, Lytle grabbed him in a headlock, threw him against hi3 car and flipped him around, caus- ing Roth to fall to the sidewalk . The evidence also shows that Lytle engage in blocking on the same date and again on July 26 and 29 and August 2 and 5. On August 6, Lytle taunted a temporary employee, threw pebbles and water at him and kicked glass into the plant driveway. (7) Mary Montville also participated in blocking at Re- spondent's facility on July 25, 26, 27, and 29 and August 2 and 6. It should be noted that on July 25 and 26, the picketers succeeded in preventing any production at the facility. (8) The videotape showed that Lawrence Officer en- gaged in blocking at the facility on July 25, 26, and 27 and August 6. McMahon testified that Officer also inti- mated to him that his wife was in danger because she was home alone. Mr. Walcutt testified that Officer was among those who blocked his son Kirk 's car as he at- tempted to leave the facility, and warned that if Kirk left the building he was not going to get back in. (9) Rashad Shareef was not one of those who screamed threats or obscenities or who engaged in acts of violence. Nevertheless, he did join others in repeated- ly blocking access to and from the facility, and persisted in doing so for prolonged periods of time even when Walcutt entreated him to step aside . Thus, he was in- 592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD volved in blocking on July 25, 26, 27, and 29 and again on August 6 and 12. (10) John Watts also participated in blocking on July 25, 26, and 29 and August 2 and 6. Additionally, Strozier identified Watts as one those who threw rocks from one side of the building into the parking lot on the other side. As indicated previously , I have no reason to doubt the accuracy of Strozier's uncontroverted recollection with regard to Watts' participation in this misconduct. Discussion and Concluding Findings Respondent Engaged in Independent 8(a)(1) Violations As alleged in paragraphs 12, 13, and 14 of the com- plaint, on various occasions in mid-June and July, the Walcutt urged Shareef to engage in surveillance of his fellow employees, interrogated him and told him they would close the plant before recognizing the Union. Shareef, who testified in support of these allegations, was an impressive and credible witness . He was well- spoken, courteous, and possessed a quiet dignity. His peers thought highly of him and he clearly enjoyed the special respect and confidence of the Walcutts, at least prior to the strike. In contrast, the Walcutts engaged in undeniably dishonest conduct. Their willingness to fabri- cate documents gives rise to reservations about all of their testimony in this proceeding . Consequently, I am convinced that Shareef testified honestly about his con- versations with the Walcutts. However, in mid-June, even according to Shareef, the Walcutts did no more than ask him to closely observe his coworker who was "acting strange ." Shareef did not say that his employers suspected that the employees were en- gaged in union activity at that early date. Consequently, I do not find that their requests for surveillance in mid- June were unlawful under the Act. By mid-July, the Walcutts' suspicions and inquiries were quite focused. Thus, when Shareef returned to work on July 15, Walcutt asked what he knew about the Union. Clearly, the Walcutts regarded Shareef as an ally who occupied a special position of trust. Consequently, it is not at all surprising that Walcutt would confide that he would close the plant rather than allow the Union to represent the employees. Similarly, R. Walcutt revealed to Shareef that they knew of the union movement and asked him who was leading it.' 7 These comments, indi- cating surveillance of and interrogation about the em- ployees' union activities , together with threats in retalia- tion for such activity, violate Section 8(a)(1) of the Act. During the hearing, I granted the General Counsel's motion to amend the complaint to allege an additional violation based on Billip's testimony that Strozier told him the Walcutts knew about the union movement and were going to do something about it. Although Strozier denied having made the statements which Billip attrib- uted to him, I find Billip to be the more credible witness in this regard. He clearly recalled when his conversa- tions with Strozier took place, tying them to an event- the union meeting-that he could easily recall. More- over, although Billip was aligned with those who fa- vored union representation , he did not appear to harbor bias against the Respondent at the time of the hearing. In discrediting Strozier, I bear in mind that he continued to be in Respondent's employ at the time of this proceed- ing. Accordingly, I find that Respondent is liable for Strozier's statements to Billip which created the impres- sion that the employees' union activity was under sur- veillance. Respondent's Employees Were Unlawfully Discharged on July 24 The complaint alleges that Respondent constructively discharged its permanent employees by attempting to transfer them to the Ger-Mar payroll. Under well-settled precedent, a constructive discharge may occur under two sets of circumstances. The first occurs when a work- er's continued employment is conditioned on abandon- ment of rights guaranteed under the Act. See Remodeling by Oltmanns, 263 NLRB 1152, 1162 ( 1982). For example, the Board has found that employees were constructively discharged where continued employment was predicated on abandoning their union contract, t 8 resigning union membership, 19 or forfeiting their right to seek higher wages.20 A constructive discharge also may be found where it is shown that an employer imposed onerous working conditions on an employee in retaliation for his union activity and reasonably should have foreseen that the changed working conditions would induce that em- ployee to quit.2 t The evidence in this case is sufficient to support either of these theories . Thus, in accordance with the first formulation of constructive discharge out- lined above, the record establishes that the Respondent insisted that the employees had to transfer to the tempo- rary employment agency if they wish to continue work- ing at (but not for) M.P.C. The Employer took this action within a day or two after the employees had joined the Union. The Walcutts' statements to Shareef show they were quite aware of the employees' union ac- tivities. Therefore, it is fair to infer that Respondent took this action to divest itself of a permanent work force so as to evade its obligation to deal with the Union the em- ployees just had selected to represent them. The Respondent suggests in its brief that it could not have escaped responsibility under the Act to recognize or bargain with the Union since the complaint designated it as a joint employer with Ger-Mar. In this same vein, Respondent notes that the Teamsters made no distinction between Ger-Mar and M.P.C. employees, accepting au- thorization cards from both. However, when Walcutt de- 11 Proof that the Walcutts knew of the union movement is based on circumstantial rather than direct evidence In this regard , I note that Shareef told Rostrum and Strozier of his organizational efforts . It is pos- sible that one or both of them mentioned the Union's revival to the Wal- cutts without divulging who was responsible for it . Other evidence bear- ing on the Respondent's knowledge of union activity is discussed in the following section of this decision is Watt Electric Co., 273 NLRB 655 (1984); Crawford Door Sales Co., 226 NLRB 1144 ( 1976). 19 NLRB v. Auto Fast Freight, 793 F.2d 1126 (9th Cir. 1984) Po 252 NLRB 1290. Si See Keller Mfg. Ca, 272 NLRB 763, 785 (1984); Crystal Princeton Refining Ca, 222 NLRB 1068 (1976). M.P.C. PLATING, INC. vised the transfer strategy, he undoubtedly had no notion that the Board would change that his company was a joint employer, with shared labor relations responsibility to employees who were no longer on his payroll. Fur- ther, it is the Board, and not the Teamsters, who ulti- mately determine whether temporary employees are ap- propriately included in a unit of production and mainte- nance employees. Thus, the Teamsters' acceptance of au- thorization cards from Ger-Mar employees was not dia- positive on that issue . As Shareef's and Billip's testimony revealed, the employees realized immediately that Re- spondent's purpose was to evade its duty to recognize and bargain with the Teamsters , and refused to transfer to Ger-Mar partly for that reason. An equally valid argument can be made that the Re- spondent offered the employees a Hobson's choice which it should have realized would be unacceptable ; that is, either to transfer to a temporary employment agency with their benefits reduced or quit working at M.P.C. Not every quit in response to a job transfer which en- tails changed working conditions will constitute a con- structive discharge . Rather, the transfer must be accom- panied by major adverse changes in working conditions. See, e.g., Van Pelt Fine Truckers, 238 NLRB 794 (1984). Respondent contends that since the level of M.P.C. workers' benefits would have remained generally the same if they transferred to Ger-Mar , their resistance to that transfer and decision to discontinue working is not protected by the Act. Contrary to Respondent's contention, accepting posi- tions with the temporary agency could have entailed a significant loss of benefits for the M.P.C. employees. Thus, continuation of a company paid health insurance plan was no certainty. Nigro merely told Walcutt that she would investigate whether group coverage could be obtained but gave him no guarantee of coverage or what it might cost. Respondent promised to pay for such a plan at 10 cents a man hour but made no commitment in the event that a higher fee would be involved. Nigro did acknowledge telling Walcutt that Ger-Mar had a paid vacation plan but her partner, Martens, was doubtful that the agency could absorb the cost of paid vacations from the 20-percent premium received for each employee. Moreover, Respondent did not indicated whether Ger- Mar would credit the employees for vacation time ac- crued at M.P.C. In addition, Respondent made no prom- ise to continue the $5000 life insurance policy for each employee or to preserve its policy on bereavement leave. At the time of transfer, Respondent may have had no profits to share under its existing profit-sharing plan, but the transfer forfeited the employees ' right to receive future profits should they materialize . Notwithstanding Respondent's assurances of continued employment, the workers were justifiably fearful of job loss under the new arrangement. Although the facts set forth above support an analysis of this case under a theory of constructive discharge, a more straightforward approach is available to reach the same result. Simply put, when the M.P.C. employees re- fused to transfer to the temporary agency, they did not have to quit for they were effectively and unlawfully dis- charged. 593 Respondent maintains that it did not fire its employees, constructively or otherwise, for had they agreed to transfer, they would continue to have held jobs at M.P.C. Respondent misses the point . It overlooks the ,fact that Walcutt unequivocally told the assembled em- ployees on July 23 that they would not have jobs unless they accepted employment with Ger-Mar. Working at the M.P.C. plant is not the same as working for M.P.C. on its payroll. When all but two of the M.P.C. employ- ees refused to transfer and were denied entry to the plant the following day, they needed no official statement from management to inform them they no longer held jobs with the Respondent. The fact of discharge does not depend on the formal words used to fire employees, but rather, on whether the employees reasonably believed that they had been discharged based on objectively mani- fested words or deeds of the employer. See Ridgeway Trucking Co., 243 NLRB 1048 (1979). Whether Respondent's actions toward its employees are analyzed as a constructive discharge or as a more conventional discharge under Section 8 (a)(3) of the Act, the General Counsel bears the burden of proving that the employees were engaged in protected concerted activity, that the employer had knowledge of that activity, and that it took adverse action against them based on that knowledge. See Wright Line, 251 NLRB 1083 (1980); enfd. 662 F.2d 899 (1st Cir. 1981); cert. denied 455 U.S. 989 (1982); approved in NLRB v. Transportation Manage- ment Corp., 462 U.S. 393 (1983). On applying the Wright Line standards here, I find that the General Counsel has adduced sufficient evidence to establish a prima facie case. By July 22, a majority of the M.P.C. employees had signed authorization cards . The Respondent asserts, however, that the Walcutts had no knowledge of union activity among its employees until July 24 when Team- sters agent Freeman appeared at the facility. Evidence from several sources belies this assertion . First, as found above, the Walcutts' statements to Shareef and Strozier's comments to Billip reveal not only knowledge of, but hostility toward, union activity for number of days prior to July 24. Equally damaging evidence that the Respondent knew of a union movement before July 24 flows from Wal- cutt's conversation with Nigro on the morning of July 23. It will be recalled that when he asked Nigro to pre- pare a letter memorializing the terms of their transfer agreement, Walcutt specifically requested that she refer to two earlier dates; one in November 1984, and the other in April 1985. The only reason to allude to these early dates, was to create the illusion that the payrolling scheme was conceived long before the Union 's arrival on the scene. No other legitimate explanation for his request is available for the backdated references had no bearing on the July effort to transfer the M.P.C. employees to the Ger-Mar payroll. Thus, Respondent's effort to create a false paper trail as early as July 23 supports the infer- ence that it knew of its employees ' union activity at that time and this knowledge impelled its decision to scuttle a permanent work force. The Board often has drawn an inference of unlawful motivation when a close connec- tion in time exists between employees' union activity and 594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD an employer's adverse response. See, e.g., Aluminum Technical Extrusions, 276 NLRB 1414, 1418 (1985); Lim- pert Bros., 276 NLRB 364, 374 (1985). Such an inference is warranted here. The abrupt nature of Respondent's decision to uproot its permanent work force further strengthens the Gov- ernment's case. Respondent's accountant had encouraged the Walcutts to resort to temporary labor for many years, most recently recommending this step on June 20. Yet, Walcutt took no action until a month later. Then, having waited all that time, he made a series of quick calculations based in part on unverified assumptions and arrived at a far-reaching business decision which he pushed to implement the very next day. Respondent's ex- traordinary haste suggests that it was attempting to escape from the Union's spectre, not financial distress. Respondent posits that it turned to the payrolling plan to remedy a short-range cash-flow problem as well as a long-term business decline . Where, as here, an employer offers a permissible reason to explain its actions, it must prove that it would have engaged in the same conduct even in the absence of its employees ' union activity. See Wright Line, supra. In attempting to prove the first prong of its business defense, that is, that the Respondent had an immediate cash-flow shortage, R. Walcutt presented the Company's business records which showed a cash shortage of $1335 in the cash disbursement journal for the week ending July 19. However, the Charging Party produced the journal page for the very next week which revealed that Respondent had income deposits on July 23 and 24 of approximately $ 14,000. By the end of that week, the journal showed total deposits of $31,000, disbursements of $22, 000, and a cash balance of $9654. (See C.P. Exh. 1.) Among those deposits was a sum of $10,000 trans- ferred from an M.P.C. savings account. Beyond those amounts if the Respondent still did not have the $6135 needed to cover its payroll , it also could have drawn against the $35,000 which remained in its line of credit . In addition, Respondent had another $40,000 in a savings account, only $25,000 of which was pledged as security for bank loans capitalizing the new plastics operation. Although the balance of these funds was committed to pay for operational expenses for the plastics enterprise, a short term, and modest invasion of this sum surely would not have affected Respondent's fi- nancial standing with its lenders. Somehow, Respondent was able to marshall $14,716 for strike-related legal fees by the end of July. Respondent located $540 as "show- up pay" for the temporary employees during the week ending July 26. With all of these funds available to it, I can give no credence to Respondent's claim of a cash- flow shortage so serious as to necessitate the precipitate abandonment of its permanent work force. The Respondent asserted that the purported cash-flow shortage was a reflection of an overall decline in its fi- nancial well being . Initially, Mr. Newcomb claimed that the Company's quarterly financial statement ending April 30 revealed a disturbing rise in the ratio of labor costs to sales, and that it was this factor which led him to recom- mend again that M.P.C. convert completely to tempo- rary labor. On cross-examination, Newcomb conceded that in a number of important respects, Respondent's economic profile was better in 1985 than it had been in 1984, a year which Newcomb described as very profitable. Thus, for example, the accountant acknowledged that the ratio of Respondent's total liabilities to its net worth was much improved in 1985 . Specifically, Respondent had re- duced its debt from a ratio of 19.3 to 1 in 1984 to 8.03 to 1 in 1985. (See R. Exh. 31.) It is true that the Company's net profits fell by $100,000 between 1984 and 1985. However, this drop was largely due to three factors : reduced sales, an in- crease in staff salaries (management and supervisors), of approximately $25,000, and increased entertainment and travel expenses. In fact, this last category of expenses was significant enough to draw special criticism from the accountant . (See R. Exh. 31 .) The record fails to show that Respondent took any steps to curb these expenses. Instead, all attention was focused on the purported rise in labor costs. Yet, in absolute terms, the cost to Re- spondent of direct and subcontracted labor (that is the MPC and Ger-Mar work force) was less in 1985 than in the preceding year. (Compare R. Exh. 4a with 4b.) Even Respondent's assertion that payrolling was less costly than maintaining a permanent workforce is open to question. When Walcutt calculated the savings which presumably would accrue if Ger-Mar took over the payrolling function, he failed to factor in the Company's cost of paying the transferred employees' medical insur- ance. His estimated saving of $2.52 per crew hour van- ishes if the 10-cent-per-man-hour cost of insurance cover- age is factored into the equation. In sum, there was neither a real or continuing cash- flow shortage and rising labor costs were not the root cause of whatever economic pinch Respondent 's was ex- periencing.22 It follows that Respondent's claim that economic necessity compelled the transfer of its work force is a sham. Since Respondent failed to credibly ex- plain why it had to transfer its employees to Ger-Mar and to discharge them when they refused the transfer shortly after learning of their desire for union representa- tion, I conclude that it would not have taken the same action in the absence of the employees ' union activity. Ger-Mar Employees Were Not Denied Opportunity for Permanent Employment The complaint alleges that the 15 Ger-Mar temporary employees assigned to work at Respondent 's plant on July 23, were denied the opportunity for full-time perma- nent employment when M .P.C. disbanded its own work force. Evidentiary underpinnings which might support this allegation are scant. The General Counsel merely ad- duced testimony that 8 of the 14 employees on Respond- ent's permanent payroll as of July 23, had started out as referrals from Ger-Mar Temps. However, Martens con- firmed that Ger-Mar had no agreement or understanding 22 The record suggests that Respondent may have been temporarily overextended as a result of committing its resources to starting the new plastics business. M.P.C. PLATING, INC. with Respondent which would assure permanent em- ployment to any temporary employee . In fact, serveral witnesses testified that in the months prior to the strike, there was excessive turnover in the ranks of the tempo- rary employees assigned to the Respondent. Walcutt testified without dispute that adding a tempo- rary employee to the permanent payroll depended on the individual's skills and Respondent 's needs. Since no evi- dence was introduced to show whether any of the Ger- Mar employees listed in paragraph 17 of the complaint were particularly skilled , I have no basis to conclude that any of them would have been offered full -time jobs. Further according to uncontradicted testimony, a hiring freeze was imposed in late June, making it all the more unlikely that any temporary employee would be added to Respondent's permanent staff. For the foregoing reasons I conclude that insufficient evidence was adduced to prove which, of any, of the employees listed in paragraph 17 of the complaint was denied an opportunity for full-time employment with the Respondent. Consequently, paragraphs 17, 18, and 19 of the complaint shall be dismissed. Everett Davis' Discharge Violated Section 8(a)(3) and (1) The General Counsel submits, in substance, that Ever- ett Davis was discharge on July 23 because Walcutt sus- pected him of assisting the Union after learning that Davis had complied a list of complaints regarding work- ing conditions. In defense, Respondent contends that Davis was fired solely because of negligent work per- formance. Here, too, the search for the true reason moti- vating Davis' discharge requires analysis in accordance with Wright Line, supra. As detailed above, the evidence establishes that Wal- cutt grew increasingly suspicious of the Union's resur- gence and by July 23, had decided to jettison the perma- nent staff in order to avoid dealing with the Teamsters. The evidence supporting the conclusion that Respondent had knowledge that the employees supported the Union has been discussed above and need not be repeated again, although such findings are relevant to establishing Re- spondent's knowledge prior to taking any action against Davis. Although I have found that Respondent clearly knew of the union movement, there is some reason to be- lieve, based on R. Walcutt's query to Shareef, that it did not know who, in particular, had fomented the union movement. Against this backdrop, Walcutt learned that Davis had prepared a list containing his and other employees' com- plaints about ther working conditions . Because Walcutt clearly understood that Davis had conferred with other employees and was presenting their concerns as well as his own, if follows that he was engaged in concerted ac- tivity protected under Section 7 of the Act. See Oakes Machine Corp., 288 NLRB 456 (1988). The amount of time and attention which Piwarski , Roth, and then, Wal- cutt spent addressing Davis' concerns suggests that they invested his little list with far more significance than might be warranted under ordinary circumstances. If Walcutt was willing to go so far as to divest employees of their permanent employment status with Respondent 595 in order to be rid of the Union, then it is equally reason- able to infer that he would be willing to discharge a single employee whose discontent with working condi- tions could easily be translated into support for and com- plicity with that Union. Respondent claims that Davis was fired on July 23 be- cause of his involvement in the events which led to Frank Carter's discharge a week earlier on July 16. Wal- cutt explained that this lapse of time was due to his ab- sence from the office between July 17 and 23. On his return, Roth's written warning to Davis first came to his attention. Walcutt's explanation for the curiously belated timing of Davis' discharge does not withstand scrutiny. As owner and chief operating officer of a plant with a permanent labor force of only 15 employees , Walcutt certainly was familiar with every worker's assigned tasks. Therefore, when he fired Carter on July 16 for loading a machine without verifying that it was properly heated, he needed no reminder that Davis was responsi- ble for testing the temperature before Carter did. Fur- ther, in claiming that he was not in his office from July 17 to 23, Walcutt apparently forgot that on July 18, he had an extended discussion in his office with Davis about his list of concerns. One day before their meeting, Roth had given Davis the written warning and placed a copy on Walcutt's desk. Yet, Walcutt failed to allude to the warning or to Davis' involvement in the Carter affair during their talk . Thus, on July 18 Walcutt could not have been much concerned about Davis' vaunted care- lessness. Moreover, both Piwarski and Roth were present during the July 18 interview and they, too, were silent about the Carter incident. Not until 5 or 6 days later, when he already knew of the union movement, did Wal- cutt profess to take a dim view of Davis' "grievous fail- ures." (R. Exh. 10.c) Of course, Davis was not the only employee who joined the Union, but he was the only employee to speak up about adverse working conditions, thereby singling himself out as a malcontent. Written company policy provided that employees could be suspended or discharged for a third infraction after two previous warnings, the second of which was to be in writing . Davis had received only two verbal warn- ings. Nevertheless, Walcutt disregarded this policy and seized on Davis' work error as an excuse to terminate him.23 Having chosen not to discipline Davis at the time that Carter was discharged, I conclude that Walcuttt would not have fired him on July 23 were it not for the connection he drew between Davis' list of concerns and his support for the Union . In other words, I find that the Respondent has failed to prove that it would not have terminated Davis irrespective of his suspected union ac- 89 Davis testified without refute that on July 15, he noted the tempera- ture reading on a log as he was required to do His error was that he did not orally bring his findings to Supervisor Piwarski's attention. However, Piwarski was as, if not more, responsible than Davis for permitting Carter to load the improperly heated tank, since he surely had access to Davis' log entry as well as a subsequent opportunity to check the gauge and thereby determine whether the equipment was ready. Roth assured Davis that Piwarski shared the blame for this incident, but Piwarski, the Walcutts' son-in-law, was not reprimanded for his negligence in this matter 596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tivity. It follows that Davis' discharge violated Section 8(a)(3) and (1) of the Act. Citing as authority, D. H. Martin Petroleum Co., 280 NLRB 547 (1986), the Respondent submits that I should follow a referee's decision for the State of Ohio Unem- ployment Compensation Board of Review who conclud- ed that Davis was fired for cause. Respondent's reliance on Martin Petroleum is misplaced for that case simply held that the record should be reopened to admit a per- viously unavailable decision of a state unemployment agency. The Board went on to state there at 547 fn. 1: We do not find such decision controlling, howev- er, because the state agancy's determination was rendered under a statue with different definitions, policies and purposes from the National Labor Re- lations Act. Moverover, our decision, as well as that of the judge, "must be based upon a independ- ent consideration and evaluation of the evidence re- ceived in this unfair labor -practice proceeding." [Ci- tation omitted.] In the instant case, as in D. H. Martin Petroleum, I do not find the referee's decision controlling. It offers no in- sights which would alter my conclusion that Davis was discharged for discriminatory reasons. The Strikers Were Properly Discharged for Picket Line Misconduct In striking on July 25, the M.P.C. employees were protesting Respondent's attempt to compel their transfer to a temporary agency and discharging them when they refused to comply. Thus, because they were responding to their employer's unlawful effort to evade recognizing their designated collective-bargaining representative, the M.P.C. employees were engaged in an unfair labor prac- tice strike. As a matter of law, unfair labor practice strikers may not be discharged or permanently replaced, but are enti- tled to reinstatement to their former jobs on offering un- conditonally to return to work. However, strikers who have been guilty of strike misconduct need not be rein- stated and may forfeit the protection of the Act if they are discharged. But not every act of misconduct will de- prive a striker of the Act's protections . In determining what sort of conduct will be regarded as sufficiently egregious to justify discharge or a denial of reinstate- ment, the Board has adopted an objective test which asks "whether the misconduct is such that, under the circum- stances existing, it may reasonably tend to coerce or in- timidate employees in the exercise of rights protected under the Act.24 Recently in Tube Craft Inc., 287 NLRB 491 (1987), the Board had occasion to apply the Clear Pine Molding de- cision to picket-line conduct marked by successive acts of blocking. In Tube Craft, the blocking took place over a span of 4 days, involved from four to five employees in episodes lasting between 2-1/2 and 65 minutes. The blocking prevented ingress and egress of delivery trucks 24 Clear Pine Molding, 268 NLRB 1044 (1984), quoting NLRB v. W. C McQuaide, Inc., 552 F.2d 519, 527 (3d Cir. 1977). but did not disturb nonstriking employees from working. On these facts, the Board found "a pattern of conduct evidencing a strategy of refusing to limit the picketing to peaceful appeals for support of the strike Id. at 493." Consequently, the Board found in Tube Craft that the conduct of the stikers was unprotected and that the Re- spondent had lawfully discharged them for their miscon- duct. The blocking described in Tube Craft was as raucous as conduct at a tea party compared to the blocking which took place during the strike at M.P.C. In the present case, video tapes supplemented by testimony es- tablished that from the outset , the picketers were doing more than attempting to rationally persuade people about the merits of their cause so that they might voluntarily decline to enter the facility . Rather, the blocking was carried out in a manner which was purposely intended to prevent both workers and supervisors from entering the facility and to shut the place down. The picketers roved in front of the facility in sizable numbers, at least during the first few weeks of the strike.25 Moreover, they did not simply patrol, they occasionally linked arms to form a formidable phalanx . Picketing appeared to be conduct- ed at all entrances to the facility ; periodically, picketers ran from one entrance to another when they observed a truck or automobile appear on the scene. Indeed, the picketing on July 25 and 26 was so intense that all pro- duction was halted. The Board does not regard profanity alone as objec- tionable conduct . However, where as here, a crowd of picketers yell and scream, the cumulative effect of their profane shouting takes on a menacing character. Only a relatively few employees were responsible for the most flagrant misdeeds, including verbal threats and physical assaults. However, each of the 10 employees whom Re- spondent discharged on August 5 or 8, was engaged in blocking on successive dates in a manner sufficient to show "'a pattern of conduct evidencing a strategy" which would reasonably tend to coerce and intimidate nonstriking employees and management and justify their discharge. Consequently, applying the standards set forth in Clear Pine Molding and Tube Craft, to the evidence set forth above, I conclude that the Respondent had an honest, uncontroverted belief that the strikers had engaged in strike misconduct26 and therefore, was justified in dis- charging Michelle Bady, John Champion, Everett Davis, Glen Lester, Robert Lytle, Mary Montville, and Rashad Shareef on August 5, and, Ollie Gendraw, Lawrence Of- ficer, and John Watts on August 8. Thus, of the original unit of 14 employees working for the Respondent as of July 23, 1985, only the following four were entitled to and indeed, were offered immediate reinstatement as of August 26: Frank Billip, Craig Buslee, Richard Snyder, and Anthony Watts. 251 did not observe all of the many hours of videotape, finding after a point, that the material was cumulative. 26 See Axelson, Inc., 285 NLRB 862 (1987) M.P.C. PLATING, INC. 597 A Bargaining Order Is Not Warranted When Teamsters agent Freemam went to Respondent's facility on July 24 to seek recognition, a majority of the M.P.C. employees had voluntarily signed authorization cards which unambiguously designated the Teamsters as their collective-bargaining representative. The unit, de- scribed in the complaint to include "all production and maintenance employees, including shipping and receiving employees employed by the Respondent at its Cleveland, Ohio, facility" clearly was appropriate under Board standards. Thus, the unit included employees who shared a community of interests with respect to their wages, hours, and working conditions; paralleled the Company's organizational structure and, reflected the desires of the employees. Although Walcutt attempted to evade Free- man, I nevertheless find that the Teamster agent effec- tively communicated the Union's interest in obtaining recognition on behalf of the employees. Rather than respond to the Union's request, Respond- ent's owner committed an offense of major magnitude, obliterating the entire bargaining unit . Such conduct, la- belled a "hallmark" violation, clearly interfered with the possibility of holding a fair election at that time. Given such aggravated circumstances, Respondent's refusal to recognize and bargain with the Union violates Section 8(a)(5) and (1) of the Act. The General Counsel submits that a bargaining order is needed to remedy the Respondent's misconduct pursu- ant to the principles set forth in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). In Gissel, the Supreme Court held that although an election is the preferred method for the expression of employee preference regarding union representation, the Board could impose a bargain- ing order where the employer's misconduct was likely to have a lasting adverse impact on employee free choice. Id. at 614-615. The Board has not often withheld a bargaining order where, as here, the employer's violations were found to be outrageous or prevasive. See NLRB v. Jamaica Towing, Inc., 632 F.2d 208, 212 (2d Cir. 1980); Quality Aluminum Products, 278 NLRB 338 (1986). Even sub- stantial employee turnover and the passage of time may not prevent issuance of a bargaining order where Hall- mark violations are concerned, for the Board has recog- nized that to take such factors into account would merely afford "an added inducement to the employer to indulge in unfair labor practices in order to defeat the union in an election . He will have as an ally, in addition to the attrition of union suppoart inevitably springing from delay in accomplishing results, the fact that turnov- er itself will help him, so that the longer he can hold out the better his chances of victory will be." Justak Bros. & Co., 253 NLRB 1054 ( 1980), enfd. 664 F.2d 1074 (7th Cir. 1981). However, employee turnover and lapse of time may not be disregarded. As Judge Friendly pointed out in NLRB v. General Stencils, Inc., 472 F.2d 170, 176 fn. 5 (2d Cir. 1972): round a future elections , changes in personnel and the passage of time are relevant considerations. .. . In the present case, the record shows that the turnover has been far greater than 100 percent . Ten of the original fourteen unit members never returned to work due to their own conduct and not to any wrongdoing by the Respondent . Four members of the unit were offered rein- statement, but the record failed to disclose whether any of them accepted the offer. If they did return, they have long since left since as Walcutt indicated, Respondent has been functioning with an entirely temporary labor force since late 1985 . The first set of replacements hired during the course of the strike presumably knew of the Respondent's treatment of their predecessors. At that time, a bargaining order still would have been a more re- liable expression of employee desires than an election. But from 1985 through the date of the instant proceed- ing, the Respondent had relied on subcontracted labor. Typically, temporary employees come and go. Therefor, even if such employees were included in an appropriate unit, I would have to indulge in rank speculation to assume that Respondent's 1985 unfair labor practices had an enduring, coercive effect on them. The General Counsel suggests that the Respondent should be ordered to bargain with the Union about its decision to convert to temporary employees . It seems a futile gesture to compel bargaining on behalf of employ- ees who have long since voluntarily left Respondent's employ. 27 Four years have elapsed since the strike began. The circumstances are changed . It is time for the parties to put the past behind them and start anew. 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. Respondent, through its President Albert Walcutt, violated Section 8(a)(1) of the Act on July 15 by request- ing employee Rashad Shareef to engage in surveillance of employees' union activities, and on July 22, by threat- ening to close the facility if employees designated the Union as their collective-bargaining representative. 4. The Respondent, acting through its agent , Roseanne Walcutt, violated Section 8(a)(1) of the Act on July 22, by interrogating Rashad Shareef about the employees' union activities, and by threatening that the facility would be closed if the Union was selected as the em- ployees' representative. 5. The Respondent through its supervisor, Benny Stro- zier, violated Section 8(a)(1) of the Act by making state- ments to employee Frank Billip on July 20 and 22, 1985, which created the impression that the employees' union activity was under surveillance. 6. On July 23, Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Everett Davis because of his support for the Union. Where the focus is thus on asserting employee choice and examining the conditions likely to sur- 27 The General Counsel did not move to amend the complaint to allege that the shift to temporary labor in late 1985 was unlawful 598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 7. On July 24, 1985, by effectively discharging em- ployees who refused to transfer to the payroll of Ger- Mar Temps, Respondent violated Section 8(a)(3) and (1) of the Act. 8. The strike which commenced on July 25 was an unfair labor practice strike. 9. The Respondent did not violate the Act by dis- charging Michelle Bady, John Champion, Everett Davis, Glen Lester, Robert Lytle, Mary Montville, and Rashad Shareef on August 5, and Ollie Gendraw , Lawrence Of- ficer, and John Watts, Jr. on August 8, 1985, for picket- line misconduct. 10. The Respondent did not deny temporary employ- ees assigned to work at the facility on July 23 an oppor- tunity for permanent employment. 11. On or about July 20, a majority of employees des- ignated the Union as their collective -bargaining repre- sentative for an appropriate unit within the meaning of Section 9(b) of the Act, described as follows: All production and maintenance employees, in- cluding shipping and receiving employees employed by Respondent at its Cleveland, Ohio facility, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. 12. On or about July 24, the Union requested, orally and in writing, that the Respondent recognize and bar- gain with it as the duly authorized, exclusive bargaining representative for employees in the above -described unit. 13. On July 24, the Respondent unlawfully withheld recognition from the Union. 14. By its unfair labor practices described above in paragraphs 3 through 7 and by its refusal to recognize the Union on July 24, Respondent violated Section 8(a)(5) and (1) of the Act. 15. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY 1. Having found that Respondent violated the Act in certain respects, I shall recommend that it be required to cease and desist therefrom . Because Respondent's viola- tions strike at the core of the employees' organizational efforts, affected every member of the unit, and were committed by its chief officers, I conclude that a broad order is required to restrain Respondent from in any other manner infringing on employees ' rights to engage in union and protected concerted activity. 2. Affirmatively, Respondent shall be ordered to make the following employees whole for any loss of pay suf- fered by reason of their unlawful discharge to the dates they were validly discharged, less any net earnings during that period, in accordance with the Board's for- mula 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):28 Everett Davis from July 23 to August 5, 1985; Michelle Bady, Mary Mont- ville, and Rashad Shareef from July 24 to August 5, 1985; and Ollie Gendraw, Lawrence Officer, and John Watts from July 24 to August 8, 1985.29 In accordance with Board policy, I shall deny any backpay due to John Champion (or his estate), Glen Lester, and Robert Lytle, because of their responsibility for or involvement in particularly egregious picket-line misconduct. See Axelson, Inc., supra. [Recommended Order omitted from publication.] 28 Under New Horizons, interest is computed at the "short-term Federal rate" for the underpaying of taxes as set out in the 1986 amendment to 26 U.S C. § 6621. Interest accrued before January 1, 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp., 231 NLRB 651 (1977). ae It is my understanding that Respondent offered reinstatement and backpay as of August 26, 1985 , to the following employees. Frank Billip, Craig Buslee, Richard Snyder, and Anthony Watts In the event Re- spondent had not offered full reinstatement and backpay to them in ac- cordance with the Board's formula described above , then, Respondent shall be required to do so . This matter is best resolved during the compli- ance stage of this proceeding.