B. E. & K., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. E. & K., Inc. and Local Union 1165, United Brotherhood of Carpenters and Joiners of America, AFLCIO. Cases 11-CA-8035, 11- CA-8192, and 11-RC-4602 September 19, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On January 17, 1980, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. The General Counsel filed cross-exceptions to certain portions of the Ad- ministrative Law Judge's Decision, and a brief in support thereof. The General Counsel also filed a brief in support of that part of the Administrative Law Judge's Decision with which he agreed. Re- spondent filed a brief in answer to the General Counsel's exceptions. In addition to the above-men- tioned papers filed, Respondent filed a post-hearing motion in which it moved for a partial dismissal of the charges and allegations in the consolidated complaint concerning Cases 11-CA-8035, 11-CA- 8192, and 11-RC-4602. The General Counsel filed an opposition to Respondent's "Motion For Partial Dismissal." Respondent filed a response to the General Counsel's response to Respondent's motion for partial dismissal. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings,' find- ings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order.3 ' Subsequent to the hearing on the consolidated complaint, Respondent filed a "Motion for Partial Dismissal" of the consolidated complaint. The Administrative Law Judge stated that, inasmuch as the Administrative Law Judge's Decision was in the process of being issued, Respondent's motion was denied without prejudice and that Respondent could renew the motion. Respondent renewed said motion, to which the General Counsel filed an opposition. Having been duly considered, Respondent's motion is hereby denied as lacking in merit. s Both Respondent and the General Counsel have excepted to certain credibility findings made by the Administrative Law Judge, findings which were adverse to them respectively. It is the Board's established policy not to overrule an administrative law judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing his findings. s In resolving the issues raised by the challenged ballots in the repre- sentation proceeding, the Administrative Law Judge states that Objection I is sustained. However, elsewhere in his Decision it is clear that Objec- tion I is overruled. This inadvertence is hereby corrected. 252 NLRB No. 36 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, B. E. & K., Inc., Riegelwood, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. We agree with the reinstatement and make-whole remedy recommend- ed by the Administrative Law Judge regarding employees Richard and Drew Todd and F. M. Anderson. We find, however, that Sec. 12 of the Act, as referred to by the Administrative Law Judge at fn. 30, is inappli- cable to the facts of this case. While Member Penello agrees with his colleagues' adoption of the Ad- ministrative Law Judge's recommendation that the election in Case I I- RC-4602 should be set aside if a revised tally of ballots does not reveal that the Petitioner has received a majority of the ballots cast, he does not rely on Objection 5 where such conduct was not specifically alleged in a timely filed written objection. See his dissenting opinion in Dayton Tire 4 Rubber Co., 234 NLRB 504 (1978). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT lay off or otherwise discrimi- nate against employees in regard to hire or tenure of employment, or any term or condi- tion of employment, because of their union or protected concerted activities. WE WILL NOT lay off supervisors in order to interfere with employees' organizational rights. WE WILL NOT threaten employees with dis- charge, denial of raises, loss of jobs, placement on blacklists, or other reprisals because of their union activities or protected concerted activi- ties. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of the rights guaranteed them in Section 7 of the Act except to the extent that such rights may be affected by lawful agreements in ac- cordance with Section 8(a)(3) of the Act. WE WILL offer to each Thomas E. Goff, Terry Boring, R. L. Carter, James Eason, Richard S. Todd, Drew G. Todd, Sr., Harry W. Pridgen, William H. Robbins, F. M. An- derson, and David L. Dutton immediate and full reinstatement to his former position or, if such position no longer exists, to a substantial- ly equivalent position, without prejudice to his seniority or other rights previously enjoyed, 256 B. E. & K., INC. and WE WILL make him whole for any loss of pay or other benefits suffered by reason of the discrimination against him, plus interest. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization, except to the extent pro- vided by Section 8(a)(3) of the Act. B. E. a K., INC. DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This pro- ceeding, under Sections 10(b) and 9 of the National Labor Relations Act, as amended, was heard pursuant to due notice on May 29, 30, and 31, and June 1, 4, and 5, 1979, in Wilmington, North Carolina. The charge in Case I -CA-8035 was filed on Decem- ber 14, 1978. The first amended charge in Case I -CA- 8035 was filed on January 22, 1979. The charge in Case 11-CA-8192 was filed on March 1, 1979. The first amended charge in Case I l-CA-8192 was filed on March 14, 1979. The complaint in Case 11-CA-8035 in this matter was issued on February 7, 1979. The order consolidating cases and consolidated complaint in Cases 11-CA-8035 and 11-CA-8192 was issued on March 29, 1979. The petition in Case I l-RC-4602 was filed on October 20, 1978. A hearing on the issues raised by such petition was held on November 7, 1978. Thereafter, a Decision and Direction of Election was issued in said case on De- cember 5, 1978. Pursuant to such Decision and Direction of Election, a secret-ballot election under the supervision of the Regional Director for Region 11 was held on Jan- uary 4, 1979, in the bargaining unit found appropriate.' There were challenged ballots concerning such election which were sufficient in number to affect the results of the election.2 On January 10, 1979, the Union in Case I -RC-4602, filed timely objections to conduct affecting the results of the election. Thereafter, on April 27, 1979, the Regional Director for Region 11 issued a Supplemental Decision, Direction, and Order Consolidating Cases, whereby the Regional Director resolved certain challenged ballots, di- rected a hearing on certain other challenged ballots, found that there were issues to be resolved concerning the various objections and directed a hearing thereon, and, since unfair labor practice complaints alleged essen- tially the same issues as concerned in most of the objec- tions, consolidated the representation case (l-RC-4602) The unit found to be appropriate is: All millwrights, millwright apprentices and helpers employed at Re- spondent's Riegelwood, North Carolina, jobsite, excluding office clerical employees, electricians, roofers, masons, laborers, iron- workers, carpenters, field engineers, operating engineers, pipefitters, guards and supervisors as defined in the Act. a In said election, the tally of ballots reflects that there were 15 votes cast for the Union, 20 votes cast against the Union, and 18 challenged ballots. and the unfair labor practice cases (I l-CA-8035 and 11- CA-8192) for hearing. The issues presented for resolution of the challenged ballots involved in Case 11-RC-4602 concern the chal- lenges to the ballots of William H. Robbins, Richard S. Todd, Drew Todd, Sr., F. M. Anderson, R. L. Carter, Harry W. Pridgen, Terry Boring, David L. Dutton, Charles R. Hayes, William A. Gravitt, Thomas E. Goff, Billy Johnson, James Westbrook, and L. Woodrow Long. As to the challenges to the ballots of William H. Rob- bins, Richard S. Todd, Drew G. Todd, Sr., F. M. An- derson, R. L. Carter, Harry W. Pridgen, Terry Boring, and David Dutton, there is an issue as to whether such employees were or were not discriminatorily laid off on December 6, 1978, before the election held on January 4, 1979. As to the challenges to the ballots of William A. Gravitt and Thomas E. Goff, the issues include both a determination of whether they were supervisors within the meaning of the Act, and, if not, whether they were discharged or laid off on January 2, 1979, and December 6, 1978, respectively, in violation of Section 8(a)(3) and/ or (1) of the Act. As to the challenges to the ballots of Charles R. Hayes, Billy Johnson, and James Westbrook, the determinative issue is whether they were supervisors within the meaning of the Act. As to the challenge to the ballot of L. Woodrow Long, the issue is whether he was a millwright expediter and, as such, enjoyed a com- munity of interest with other employees in the appropri- ate collective-bargaining unit so as to be included there- in. The unfair labor practice issues concern whether there have been unlawful interrogation, threats, or discrimina- tory discharges within the meaning of the Act. Occur- ring between October 20, 1978, and January 4, 1979, such conduct is also in issue as objectionable conduct to the election held on January 4, 1979. The objection issues also concern certain conduct on January 4, 1979, relating to the alleged presence of supervisors around the polls, the "congregating" of voters, and a question of Re- spondent's attorney's remarks directed to certain individ- uals presenting themselves as "voters." All parties were afforded full opportunity to partici- pate in the proceeding. Briefs have been filed by the General Counsel and Respondent and have been consid- ered. Upon the entire record in the case and from my obser- vation of the witnesses, I hereby make the following: FINDINGS OF FACT3 1. THE BUSINESS OF RESPONDENT B. E. & K., Inc., herein called Respondent, is now, and has been at all times material herein, a Delaware corporation licensed to do business in the State of North Carolina, where it is engaged as a general contractor in the construction of a papermill at a construction site in Riegelwood, North Carolina. 3 The facts herein are based upon the pleadings and admissions therein. 257 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During a 12-month representative period, Respondent received materials valued in excess of $50,000 for use at its Riegelwood, North Carolina, project from points and places directly outside the State of North Carolina. Re- spondent, during the same 12-month period, performed services valued in excess of $50,000 for customers locat- ed outside the State of North Carolina. As conceded by Respondent, and based upon the fore- going, it is concluded and found that Respondent is, and has been at all times material herein, an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local Union 1165, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Union, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. IIl. THE UNFAIR LABOR PRACTICES AND THE CHALLENGES AND OBJECTIONS A. Preliminary Issues; Supervisory Status4 At all times material herein, the following-named per- sons occupied the positions set opposite their respective names, and have been, and are now, agents of Respond- ent at its Riegelwood, North Carolina, jobsite, and are supervisors within the meaning of Section 2(11) of the Act: Larry Reinhardt-Project Superintendent D. C. Pope-Assistant Millwright Superintendent Jack Bell-Millwright Superintendent Willie Hayes-General Foreman Howard Tillotson-Personnel Manager B. The Setting Respondent, in mid-1978 and into early 1979, during the critical time period for this proceeding, was one of several general contractors working on the construction or overhauling of facilities at the Federal Paperboard Company's Riegelwood, North Carolina, papermill plant. On such job, Respondent employed employees skilled in various crafts. Total employment was 400 to 500 individ- uals. Employees in several crafts attempted to organize and to have representation by unions. Except for those employees employed as millwrights, there is no conten- tion that unfair labor practices have occurred. Respondent commenced work on the Federal project in July 1978. However, the first millwrights employed for the project were employed in early August 1978. Ap- parently, the first significant millwright work com- ' The facts are based on the pleadings and admissions therein and the record as a whole. Respondent denies liability for the acts of Willie Hayes and contends that Hayes was "an agent only on behalf of the Union." There is no evidence to reveal that Hayes was the agent of the Union with respect to the conduct contended to have been violative of the Act as engaged in by him. Nor does the evidence reveal that, in en- gaging in the conduct complained of, Hayes did other than communicate what he knew was or construed to be company policy. Nor does the evi- dence reveal circumstances that would have caused employees to believe that Hayes' statements were mere personal opinions. menced in early September 1978. At such time, Respond- ent had two millwright crews. In October, Respondent had increased its number of millwright crews to three; in early November, the number of millwright crews was in- creased to four; and on November 20, 1978, the number of millwright crews reached five. On December 6, 1978, Respondent laid off one of its millwright crews. Union activity with respect to some of the millwright employees commenced around mid-September 1978. On October 20, 1978, a representation petition was filed con- cerning the millwright employees. Thereafter, on No- vember 7, 1978, a representation hearing concerning such petition was held. Following this, around November 16, 1978, many millwright employees commenced wearing a red dot union label on their hardhats at work. There are issues as to whether Respondent engaged in unlawful interrogation as to employees' union desires, and made threats that interfered with employees' organi- zational rights during the latter part of November and early December 1978. Respondent's supervisors had indicated to the mill- wrights at the time of hiring that the work involved would last for some time, and that there would be work, including overtime, during a "shutdown."6 At the time of the December 6, 1978, layoff of Goff's crew, there had been no prior indication to the millwrights that there would be a layoff. On the day prior to the December 6, 1978, layoff, the Decision and Direction of Election in the representation case was issued by the Regional Di- rector for Region 11. There are issues as to whether there were acts viola- tive of Section 8(a)(3) and (1) of the Act engaged in by Respondent on or about the date of the representation election held on January 4, 1979. There are also issues as to whether other conduct occurred on January 4, 1979, which constituted objectionable conduct to the election held on that date. Further, there are issues as to whether certain challenges to ballots in said election should be sustained or overruled, and there are issues as to whether certain discharges of employees after January 4, 1979, were violative of Section 8(a)(3) and (1) of the Act. 6 C. The Unfair Labor Practices 1. Interrogation The General Counsel alleges and Respondent denies that Respondent, on various specified dates, interrogated its employees concerning their union membership, de- sires, and activities. The issues concerning interrogation relate to the con- duct of Jack Bell, Larry Reinhardt, and T. Michael Goodrich on certain dates. Some of the alleged and con- "Shutdown" apparently refers to the shutdown of a facility being worked on. It appears that shutdown work involves the usage of over- time in order to allow the facility to resume operations with as little loss of operating time as possible. I Some evidence was presented concerning notification of hirings at other jobs, of renewed hirings at the Federal project, and of offers of work elsewhere. Suffice it to say that none of this evidence constitutes evidence of offers of reinstatement of the type that would toll backpay due discriminatees. However as an evidentiary matter concerning the total question of discrimination, such evidence warrants consideration. 258 B. E. & K., INC. tended interrogation concerned the interrogation of Wil- liam Gravitt by Bell in November 1978 and the interro- gation of C. R. Hayes by Reinhardt in January 1979. As later set forth herein, I find that William Gravitt and C. R. Hayes are supervisors of Respondent within the meaning of the Act. Interrogation of such supervisors by Respondent concerning their or other union employees' membership, desires, or activities does not constitute conduct violative of Section 8(a)(l) of the Act. The alle- gations of unlawful conduct in such regard will be rec- ommended to be dismissed. Evidence relating to other conduct of Bell relating to interrogation of employees consists of stipulations as to what employee Watts would have testified to if present- ed as a witness and Bell's testimony relating to interroga- tion of employees. The General Counsel's complaint allegations relating to the interrogation of Watts were amended to allege that such interrogation occurred in mid-November and early December 1978. Bell's testimony relating to inter- rogation fixed such interrogation engaged in as occurring several days before the election on January 4, 1979. The issue of interrogation was fully litigated. Thus, the stipu- lation as to Watts' testimony was to the effect that Watts would testify that Bell questioned him as to how he was going to vote. Bell specifically denied that he asked em- ployees how they were going to vote, but testified that he did question "members" as to how they felt. It is ob- vious that Bell's admissions as to any interrogation has a direct bearing on the credibility of his denial of other specific interrogation. Whether alleged or not, such in- terrogation constituted conduct of an objectionable nature warranting the setting aside of the January 4, 1979, representation election. Whether alleged or not, such interrogation was fully litigated and warrants a finding of conduct violative of Section 8(a)(l) of the Act. 7 The facts clearly reveal that Bell questioned a number of employees several days before the election as to how they felt about the Union. There is no evidence that there existed a legitimate need or purpose for such inter- rogation, that employees were advised of a legitimate need or purpose for such interrogation, or that employ- ees were given assurances of nonreprisals concerning such interrogation. Accordingly, it is concluded and found that Respondent, by Bell, violated Section 8(aX)(1) of the Act by the interrogation of employees in early January, prior to January 4, 1979, as to how they felt about the Union. Such conduct also constituted objec- tionable conduct warranting the setting aside of the Jan- uary 4, 1979, representation election. As to the specific question of interrogation of Watts in mid-November or early December 1978, the stipulation as to Watts' testimony was to the effect that Bell ques- tioned him on several occasions as to how he was going 7 The General Counsel, at p. 10 of his brief, moves to amend his com- plaint allegation to specifically allege interrogation by Bell in early Janu- ary 1979. In view of the manner of litigation of the interrogation issue, I find it unnecessary to grant such motion. The matter has been fully liti- gated and warrants a finding. Were it necessary that the matter be for- mally alleged, I would find it necessary to issue an Order To Show Cause "Briefs" should not be used as a means of making "motions." See Montgomery Ward d Co., Incorporated, 228 NLRB 750, 753 (1977). to vote. Bell's testimony was to the effect that he specifi- cally denied questioning any employee as to how the em- ployees would vote. I give weight to the actual sworn testimony of Bell and credit Bell's testimony to such effect over the stipulated testimony of Watts. According- ly, the allegation of interrogation in such regard is dis- missed. The evidence also clearly reveals that around Novem- ber 29, 1979, Respondent's agent, T. Michael Goodrich, met with a number of millwrights and helpers in small group meetings. Goodrich's position with Respondent in- volved responsibility for administration on the construc- tion sites of the Company. Such included questions of safety, personnel, legal, insurance, and fringe benefits. The facts reveal that in general Goodrich presented Respondent's arguments as to why the employees did not need a union. A number of the General Counsel's wit- nesses testified with respect to the meetings with Good- rich and Pope. Goodrich and Pope also testified with re- spect to such meetings. Goodrich's testimony in major effect was a summary of what occurred in a general manner. Pope's testimony was to the effect that he had little recall of the specifics. I find the testimony of Rich- ard Todd, Drew Todd, William Robbins, and Anderson as to interrogation of employees by Goodrich at such meetings more credible and complete than the testimony of Goodrich or Pope. I credit the testimony of Richard Todd, Drew Todd, and Robbins that Goodrich asked employees why they felt they needed a union. There is no evidence of a legitimate need or purpose for such in- terrogation, no evidence that employees were advised of a legitimate need or purpose for such interrogation, and no evidence that employees were given assurances of nonreprisals as to such interrogation. Accordingly, it is concluded and found that Respondent, by Goodrich, en- gaged in interrogation of employees as to their union be- liefs in violation of Section 8(a)(l) of the Act. Such conduct of interrogation of employees about their union beliefs is not only violative of Section 8(aX)( of the Act, but it also constitutes objectionable conduct warranting the setting aside of the election held on Janu- ary 4, 1979. It is so found and concluded. 2. Threats of loss of jobs The General Counsel alleges and Respondent denies that Respondent "threatened its employees with loss of jobs if they selected the Union as their collective-bar- gaining representative." The issues concern the conduct of Pope on or around November 30, 1978, and of Rein- hardt on or around January 3, 1979.8 Anderson and Boring testified about one of the meet- ings held by Goodrich and Assistant Millwright Superin- tendent Pope with millwright helpers for discussion of the Company's position concerning the Union. Anderson and Boring credibly testified that the employees com- plained about wages and that Pope responded by telling the employees that, if they did not like the way things 8 The complaint alleged conduct of threats of loss of jobs by Bell in late December 1978. or early January 1979. No evidence was presented with respect to such allegation. Accordingly, such allegation will be rec- ommended to be dismissed. 259 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were being run, they did not have to stay, and that "it could be a lot worse," they could be getting nothing. Such conduct by Pope constitutes an implied threat of loss of jobs if the employees selected a union as their representative. Accordingly, it is concluded and found that Respondent, by such conduct, violated Section 8(aXI) of the Act. Such conduct also constituted objec- tionable conduct warranting the setting aside of the rep- resentation election held on January 4, 1979. It is so found and concluded. Richard and Drew Todd also credibly testified to re- marks by Pope made at a meeting Goodrich and Pope had with the millwrights around November 29 or 30, 1978. What occurred is revealed by the following cred- ited excerpts from Drew Todd's testimony: Q. Do you recall whether any of the millwrights spoke in the course of that meeting? A. Yes, sir, several of us did in the questions and answers. Q. Do you recall anyone else speaking during the meeting? A. Yes, sir, David Pope. Q. How did that come about? A. Richard Todd asked them and said that one reason that he asked, that he felt like one reason that he wanted the union was that he wanted to better himself with better pay; he felt that our State was one of the lowest paid States in the nation; and David Pope said to the effect that, if we didn't like the pay scale, we could move out of the State. Considering the above facts relating to Pope's state- ments to Richard Todd, I am persuaded that such con- duct by Pope constituted conduct violative of Section 8(a)(XI) of the Act and objectionable conduct by Re- spondent warranting the setting aside of the representa- tion election held on January 4, 1979. It is so concluded and found. The facts are clear that Project Superintendent Rein- hardt had a meeting with millwrights on January 3, 1979, spoke concerning the upcoming NLRB representation election, and was asked questions concerning the elec- tion. Reinhardt then made a statement to the employees that there were some companies that had a blacklist upon which they put names of employees who were affiliated with or voted for the Union. An employee asked Rein- hardt if Respondent had a blacklist. Reinhardt replied that he did not say that; that he had said other compa- nies had such lists and that if, employees affiliated with the Union or voted for the Union, their names were put on such lists and the employees would not then be able to get a job with such companies.9 * Respondent, in its brief, appears to contend that the blacklist issue was raised initially by a question from employees, and that Reinhardt's remarks about a blacklist was in response to such questions. Reinhardt's testimony was presented in a fragmented fashion. The testimony of Free- man and Tompkins as to the blacklist appeared more direct, complete, and reliable. A careful examination of such testimony reveals that em- ployee questions as to a blacklist arose after Reinhardt had introduced the idea of a blacklist into his talk. I credit the testimony of Freeman and Tompkins over Reinhardt's where in dispute. Considering the foregoing facts, I conclude and find that Respondent, by Reinhardt, on January 3, 1979, threatened employees with loss of jobs if they selected a union. Thus, Reinhardt introduced the idea of a blacklist into his talk, and explained the effect of a blacklist to the employees. Assuming that employees would believe Reinhardt's disavowal that Respondent kept a blacklist, it is clear that the employees would believe that their op- portunity for jobs with some other companies would be adversely affected by affiliation with the Union or if they voted the Union in at Respondent. One must consider the effect of a disavowal that Respondent would keep a blacklist in the context of the injection of the idea of a blacklist into Reinhardt's remarks to employees. Once the idea of blacklist has been injected by a responsible official, the reasonable and logical effect of such remarks relating to blacklists is the fear of loss of job opportunity with Respondent and with other employers. The most logical and reasonable inference as to the effect of a remark of disavowal that Respondent would keep a blacklist is that employees would consider it as a "nod" and "wink" and not intended as a true disavowal. Con- sidering this, I conclude and find that Respondent, by Reinhardt, threatened employees with loss of job oppor- tunity if they voted the Union in on January 4, 1979. Such conduct is violative of Section 8(a)(1) of the Act. It is so concluded and found. Such conduct also constitutes objectionable conduct warranting the setting aside of the representation election held on January 4, 1979. 3. Threat of denial of a raise The General Counsel alleges and Respondent denies that Respondent, by Jack Bell on January 4, 1979, threat- ened to deny its employees a raise if the Union were se- lected as their collective-bargaining representative. Before Christmas in 1978, millwright helper Chadwick asked Millwright Superintendent Bell for a raise. Bell told Chadwick that he would probably get a raise the first of the year after the "shutdown." After Christmas, Bell told Chadwick that he would give him a raise in the next week or two. On January 4, 1979, the morning before the representation election to be held in the after- noon, Bell showed Chadwick some papers about his raise that he, Bell, was turning in. What occurred then is re- vealed by the following excerpts from Bell's credited tes- timony: Q. What did you tell him when you showed it to him? A. He asked me could I show him when I put it in, and I had it down there, and I showed it to him; and I told him that I was putting it in for him, but if it didn't go through; that if it went through during this election, that if it went the other way, all raises would be frozen, and I couldn't answer his question and I couldn't tell him whether he would or wouldn't. Considering the foregoing, it is clear and I find and conclude that Respondent, by Bell, on January 4, 1979, threatened an employee that a raise would be denied if the Union were selected as the employees' collective-bar- 260 B. E. & K., INC. gaining representative. Such conduct is violative of Sec- tion 8(a)(1) of the Act. Such conduct, occurring before the January 4, 1979, representation election also consti- tutes objectionable conduct warranting the setting aside of said election. 4. Threat of futility The General Counsel alleges and Respondent denies that Respondent, by Respondent's agent on November 29, 1978, "advised employees that selecting the Union as their collective-bargaining representative would be futile." As has been indicated, Respondent's agent Goodrich and Assistant Millwright Superintendent Pope met with some millwrights and helpers at different meetings on or about November 29, 1979. At such meetings, Goodrich presented Respondent's viewpoint on the question of unionization. Richard Todd, Drew Todd, and Robbins testified to the effect that Goodrich, at the meeting with the millwrights, told the employees that Respondent would not negotiate as to any wage increases. Anderson testified that at Goodrich and Pope's meetings with mill- wright helpers that Goodrich told the helpers that, as to raises that the Union had promised, this was not neces- sarily so. Pope's testimony revealed that he had little recall as to what was said at the meetings with the mill- wrights and millwright helpers. Goodrich testified to the effect that at such meetings he told employees that, if the Union won the election, Respondent would have to bar- gain with the Union, and that any raise would by no means be automatic. Considering the testimony of all the witnesses, I am persuaded that the testimony of Richard Todd, Drew Todd, and Robbins that Goodrich had stated that Re- spondent would not negotiate as to wage increases con- stituted their conclusion of what he had said rather than an accurate recollection of what was said. I credit Goo- drich's denial that he had threatened that Respondent would not negotiate with the Union. Accordingly, the al- legations of conduct violative of Section 8 (a)(1) of the Act by threats of futility in selection of a bargaining agent will be recommended to be dismissed. 5. Threats of discharge for distribution of union stickers The General Counsel alleges and Respondent denies that Respondent, by Willie Hayes in late November and on December 3, 1978, threatened employees with dis- charge if they distributed union stickers. Respondent has a rule against the distribution of litera- ture in working areas during working time. Apparently, in late November 1978, after some employees had com- 'o The withholding of a raise because of union involvement, pendency of election proceedings, or establishment of the Union as a bargaining representative constitutes conduct violative of Sec. 8(aXl) of the Act. Under such circumstances Respondent is required to handle planned raises in the same manner that such raises would have been handled in the absence of union involvement or election proceedings. The facts reveal that such a raise for Chadwick (reclassification and rate change) has not been effectuated. Such failure to grant a raise has not been al- leged to have been violative of the Act. In the absence of allegations thereto, findings of violative conduct thereto are not made. menced wearing union stickers in the form of red dot decals on their hardhats, Project Superintendent Rein- hardt and Millwright Superintendent Bell spoke to As- sistant Millwright Pope about the distribution of union literature or the red dots. Pope in turn spoke to General Foreman Willie Hayes. ' In late November 1978, General Foreman Hayes told employee Drew Todd in effect that Millwright Superin- tendent Pope had informed him that Richard Todd was passing out union literataure, the red dots, and that it was excused this time but that, if it occurred again, he would be fired. Around the same time, either shortly before or shortly afterwards, General Foreman Hayes spoke to a number of employees, including Drew Todd, Monty Anderson, and William Robbins. Hayes stated that Pope had said he did not want to see any more stickers on the job, that it showed belligerency, and that anyone passing out the stickers would be fired. The facts are clear that, as a general foreman, Willie Hayes was a supervisor and agent of Respondent. Re- spondent denies liability for the acts of Willie Hayes on the basis of a contention that Willie Hayes was acting as an agent for the Union. Willie Hayes admittedly is a union member and was sympathetic to the union cause. The facts, however, reveal that Hayes in his statements was relaying instructions from Pope. There is nothing in the record to reveal that Pope was acting on his own or pursuant to a desire to entrap Respondent in a violation of the Act. The statements by Hayes, not qualified as to the time or place of the restriction on the right to distrib- ute union literature, clearly constitutes threats violative of Section 8(a)(1) of the Act. Even if Hayes' statements were a misrepresentation of Pope's instructions, the facts clearly reveal that Hayes was not trying to entrap Re- spondent into a violation of the Act. The facts also clear- ly reveal that the statements by Hayes were not made in such a manner that employees would have reasonably believed the same to be mere personal opinion of one sympathetic to their union cause. Accordingly, it is con- cluded and found that Respondent, by Willie Hayes' statements concerning the liability of discharge for distri- bution of union literature, engaged in conduct violative of Section 8(a)(l) of the Act. Such conduct also consti- tutes objectionable conduct warranting the setting aside of the January 4, 1979, representation election. 6. Threats concerning the wearing union stickers The General Counsel alleges and Respondent denies that Respondent, by Willie Hayes in late November 1978 and by Jack Bell in late November and early December 1978, advised employees not to wear union stickers. '' Pope testified to the effect that he felt sure that he told Hayes to tell employees that they would be disciplined or discharged if they distribut- ed union literature in working areas on working time. Considering the clear evidence that Hayes' instructions or remarks to employees were not qualified as to working time or area, I am persuaded that the instructions to Hayes were not so qualified. Had the instructions been qualified, I would find no reason to believe that Hayes would not have qualified his remarks to employees. There is no evidence to reveal that Hayes, by re- laying instructions, was trying to entrap Respondent into a violation of the Act. 261 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The facts relating to the issue of Hayes' conduct in late November 1978, have been set forth in subsection 5 above. A finding that Hayes, by such conduct, threat- ened employees with discharge for distribution has been made. In such context, Hayes' statement to Drew Todd, Anderson, and Robbins that the wearing of union stick- ers revealed belligerency independently reveals a viola- tion of Section 8(aXl) of the Act. It is so concluded and found. Such conduct constitutes objectionable conduct warranting the setting aside of the representation election held on January 4, 1979. The evidence relating to Bell's conduct concerns state- ments made by Bell to Gravitt. As later set forth herein, Gravitt is found to be a supervisor within the meaning of the Act. Such statements by Bell to a supervisor not to wear union stickers does not constitute conduct violative of the Act. Accordingly, allegations of unlawful conduct in such regard will be recommended to be dismissed. 7. The December 6, 1978, layoffs On December 6, 1978, Respondent laid off Thomas E. Goff and the members of his crew. The General Counsel contends that the layoffs of such employees were discri- minatorily motivated in violation of Section 8(a)(3) and (I) of the Act. Respondent contends that the layoffs were based upon economic considerations. As has been indicated, Respondent's millwright work at the Riegelwood project commenced with the hiring of millwrights in August 1978. Respondent had two mill- wright crews in September and three crews in October 1978. On November 6, 1978, Respondent increased its millwright crews by the creation of a millwright crew to be headed by Thomas E. Goff. Goff, prior to such time, had been employed as a journeyman. 2 As has been indicated, union activity among the mill- wrights commenced in mid-September 1978. Employees Richard Todd and Billy Robbins were active at such time in getting fellow millwrights to sign union cards. Prior to November 16, 1978, Richard Todd and Monty Anderson were on C. R. Hayes' millwright crew. Around such time, C. R. Hayes' crew was scheduled to work in a place called the bleach plant. Because of the nature of the work and the possibility of chlorine leaks, employees were required to use masks. Because of this and the fact that Richard Todd and Anderson had beards, Richard Todd and Anderson were transferred to Billy Johnson's millwright crew. As of November 16, 1978, Drew Todd and William Robbins were also em- ployed on Johnson's millwright crew. At some point of time after November 16 and prior to November 21, 1978, some of Respondent's millwright employees commenced wearing red dot union stickers on their hardhats. Goff and several of the members of his crew were wearing red dots as of November 21, 1978.'3 On November 20 and 21, 1978, Respondent created a new millwright crew to be headed by Foremen West- Goff was initially employed as a journeyman millwright on Septem- ber 5, 1978. Is I have considered Goff's testimony and the testimony of all wit- nesses concerning the red dots. The evidence is not sufficient to establish that all of the employees on Goff's crew, except the ones transferred on November 21, 1978, were wearing "red dots." brook. Prior to such time, Westbrook had worked as a journeyman millwright."4 On November 20, 1978, expe- diter Long and millwrights Kelly and Ayres were trans- ferred to Westbrook's crew from Gravitt's crew. On No- vember 21, 1978, millwrights Hogan, Steedley, and Grimes, and helper Rampy were transferred to West- brook's crew from Goff's crew. None of the employees who were transferred from Goff's crew to Westbrook's crew had been wearing red dots on their hardhats. Two of the employees transferred from Goff's crew, Rampy and Grimes, were kin to members of Respondent's super- visory staff. On November 29, 1978, employees Richard Todd, Drew Todd, Robbins, and Anderson were transferred from Johnson's crew to Goff's crew. All of the employ- ees transferred from Johnson's crew to Goff's crew were employees who had been wearing red dot union stickers on their hardhats. As has been indicated, Respondent's agents, Goodrich and Assistant Millwright Superintendent Pope, met with some but not all of the millwright crews on November 29 and 30, 1978. Such meetings constituted in effect an inquiry into employee beliefs as to why they wanted a union. Around this time, Pope transmitted through lower echelon supervision to the Todds the fact that Respond- ent did not approve of the distribution or wearing of the red dots. The aforementioned facts constitute an integral part of the setting leading to the December 6, 1978, layoff of Goff's crew. Part of the setting, however, involves an understanding of the work involved in the installation of a Flakt pulp dryer, and Respondent's knowledge of the progress of the work and problems. Thus, the facts reveal that part of Respondent's Riegelwood project concerned work on the installation of a Flakt pulp dryer. Originally, it was expected that such work would occur around December 1, 1978. Thus, as of October 30, 1978, such work was expected to commence around December 1, 1978. The facts are clear that Respondent, as of Octo- ber 30, 1978, knew that Flakt, Inc., desired that the foun- dation for the Flakt pulp dryer be completed before erection work on it began as revealed by the following excerpts of minutes of the "Weekly Contractors' Coordi- nation Meeting" of October 30, 1978:'5 SIMECO stated that in a recent meeting with Mr. Karl-Erik Gustafsson of Flakt, Mr. Gustafsson had stated that the entire dryer foundation must be com- plete before erection work can begin. SIMECO stated that since the dryer foundation will not be complete until the end of November, the erector from Flakt will not be on the jobsite until around the first of December. Mr. Gustafsson would like to start bringing the damaged crates to the jobsite around the middle of November in order that the equipment can be uncrated and the extent of the damage analyzed. t' Westbrook was initially employed as a journeyman millwright on October 30, 1978. 'a It is noted that Respondent's officials were present at such meeting. 262 B. E. & K., INC. On December 4, 1978, Respondent was advised at the weekly contractors meeting that the Flakt pulp dryer in- stallation would be delayed until January 1979. Follow- ing this, on December 6, 1978, Respondent laid off Goff and those members of his crew who were working on that day. Thus, Foreman Goff, helpers Boring, Carter, Eason, and Anderson, and millwrights Richard Todd, Drew Todd, Pridgen, and Robbins were laid off. Mill- wright Sarvis, who had been working on Goff's crew but who did not work on December 6, 1978, was laid off. Dutton, who had worked on Goff's crew in the past but who for a number of days had been carried on other crew payroll sheets, was also laid off. It is clear, howev- er, that Respondent considered Dutton part of Goff's crew. Goff and all of the employees on his crew had been wearing union stickers on their hardhats. On December 6, 1978, Project Superintendent Rein- hardt told Goff and the crew members in effect that there would be rehirings and that they would be the first rehired. The General Counsel contends in effect that the No- vember 21 and 29 transfers from and to Goffs crew were done in such a way as to set up a discriminatory layoff of Goffs crew on December 6, 1978. Respondent contends that the layoff of Goff's crew on December 6, 1978, was economically motivated by the "unexpected" awareness of a need to delay work on the Flakt pulp dryer. Considering the facts, I am persuaded that the facts preponderate for a finding that Respondent, know- ing of the pending problem concerning the installation of the Flakt pulp dryer on November 21 and 29, attempted to load Goffs crew with union supporters so as to be able to lay them off on an economic pretext. Respondent contends, and presented evidence for the purpose of establishing, that Respondent's decision to lay off Goffs crew was because "unexpectedly" there arose a need to curtail work because of the delay concerning the installation of the Flakt pulp dryer. Much evidence was presented concerning the work, its status, and its scheduling. It suffices to say that such is persuasive evi- dence that Respondent would have been aware in early November, mid-November, and at all times of its plans and the status of the work.' 6 Further, I find that the facts reveal Respondent's awareness of a potential delay concerning the installation of the Flakt pulp dryer and whether or not a crew was really needed on November 20, 1978. This being so, the facts reveal that Respondent knew on November 20 that there was no real need to create a new millwright crew headed by Westbrook. Re- spondent contends that Westbrook and his crew were re- tained on December 6 because Westbrook had worked in the past for Respondent. I note, however, that West- brook was employed by Respondent at the time when Goff was selected to head a new millwright crew and when Westbrook continued as a journeyman millwright. 'l Considering all of the evidence, the coordinating meetings between Respondent and other contractors, and the minutes of such meetings. I discredit Reinhardt's testimony to the effect that Respondent believed until December 4, 1978, that work could commence on the installation of the Flakt pulp dryer even if the foundation was not 100 percent com- plete, and initially ascertained on December 4, 1978, the need for a layoff. Considering the sum of evidence revealing Respond- ent's hostility toward the Union and the wearing of union stickers, the facts reveal that Respondent created a new crew so as to be able to transfer employees from and to Goffs crews so as to rid itself of some known union adherents by the elimination of Goffs crew. Such conduct reveals that the layoff of Goff on December 6, 1978, was violative of Section 8(a)(1) of the Act, and that the layoff of Goff's crew on December 6, 1978, was violative of Section 8(a)(3) and () of the Act.' 8. The discharge of Gravitt on January 2, 1979 The General Counsel alleges and Respondent denies that Respondent discharged William A. Gravitt on Janu- ary 2, 1979, in violation of Section 8(a)(3) and (1) of the Act. The facts relating to Gravitt's status reveal, as later set forth in the discussion concerning challenged ballots, that Gravitt was a supervisor within the meaning of the Act. The facts, as credited, reveal that Gravitt was dis- charged on January 2, 1979, on the pretext that he had been granted leave for 1 day but was absent for more days than he had been granted time off.' 8I would find that Gravitt, a union adherent, was discriminatorily dis- charged because of his union activity were he not a su- pervisor within the meaning of the Act. Gravitt, as a su- pervisor, does not come within the protective ambit of Section 8(a)(3) of the Act. Nor do the facts concerning Gravitt's discharge reveal that such discharge constituted interference with and restraint and coercion of employ- ees within the meaning of Section 8(a)(l) of the Act. Ac- cordingly, the allegation that Gravitt was discharged in violation of Section 8(a)(3) and (1) of the Act will be recommended to be dismissed. 9. The discharge of Charles R. Hayes on January 8, 1979 The General Counsel alleges and Respondent denies that Respondent discriminatorily discharged Charles R. Hayes on January 8, 1979, in violation of Section 8(a)(3) and (1) of the Act. The facts relating to Charles R. Hayes' status reveal, as later set forth in the discussion concerning challenged ballots, that Charles R. Hayes was a supervisor within the meaning of the Act. The credited facts clearly reveal that Charles R. Hayes was discharged on January 8, 1979, because of his union activity or beliefs. I would find that Charles R. Hayes, a union adherent, was discri- minatorily discharged because of his union activity or be- liefs were he not a supervisor within the meaning of the 17 Although Sarvis was a member of Goffs crew, neither the charge nor the complaint avers his layoff to be violative of the Act. Nor does the General Counsel contend that Sarvis' layoff is presented as an issue. I note that in all findings I have considered all evidence. Thus, I have con- sidered the various offers of jobs to the discriminatees. Such offers are consistent with a design to rid Respondent of union adherents at the time of a pending election. Such offers do not comport to be bona ide "rein- statement offers." The employment of such discriminatees in January and the wages paid at such time naturally count as offsetting earnings for compliance purposes. '' I credit Gravitt's testimony over that of Bel's and Futrell's as to the details concerning the granting of time off to Gravitt. 263 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act. Charles R. Hayes, as a supervisor, does not come within the protective ambit of Section 8(a)(3) of the Act. Nor do the facts concerning Charles R. Hayes' discharge reveal that such discharge constituted interference with, restraint, and coercion of employees within the meaning of Section 8(aX)(1) of the Act. Accordingly, the allegation that Charles R. Hayes was discharged in violation of Section 8(a)(3) and (1) of the Act will be recommended to be dismissed. 10. The Discharge of Cartrette February 26, 1979 Respondent discharged William C. Cartrette on Febru- ary 26, 1979, assertedly becase he used Federal Paper Mill vending canteen facilities contrary to written and oral instructions. The issue is whether the discharge was because as asserted or because of discriminatory reasons violative of Section 8(a)(3) and (1) of the Act. Respondent's work rules contain the following provi- sions relating to the use of facilities of enterprises for whom Respondent is performing work: BE&K employees are not allowed to use the mill facilities such as rest rooms, vending machines, drinking fountains, lunchrooms, etc. and are not permitted in any plant area other than where their services are required. William C. Cartrette was initially employed by Re- spondent on September 27, 1978, and worked thereafter until his discharge on February 26, 1979. At the time that Cartrette was hired he was told not to use Federal Paper Mill vending machines. There appears to be some question as to whether there were any vending machines set aside specifically for Respondent's employees' use at the time when Cartrette was initially hired. In any event, it appears that Respondent's employees used Federal Paper Mill vending machines not specifically designated for use by them until around the middle of February 1979. There appears to have been no problem as to such usage as far as Respondent's supervision or Federal Paper Mill was concerned until around the middle of February. The basic reason for Respondent's rule prohib- iting the use of facilities of the enterprise for which Re- spondent is performing work appears to be to avoid in- terference with the working of such enterprise. Because some of Respondent's work involved long hours, con- struction of new facilities, and repair of facilities during time of shutdown, it appears that the need for Respond- ent's rule was not great until around mid-February 1979. Around mid-February 1979, Federal Paper Mill had complained to Respondent concerning the use of its vending facilities by Respondent's personnel. Respond- ent, in mid-February 1979, instructed its foremen to in- struct the crews, and the foremen instructed the various crews, not to use Federal Paper Mill facilities. At such time, it is clear that there were vending facilities at desig- ne.ted places for use by Respondent's personnel. Coffee and candy, however, were not available at such designat- ed places. Foreman Bill Johnson, in mid-February 1979, instruct- ed his crew not to use the Federal Paper Mill canteens. On Johnson's crew were employees William C. Car- trette, Robert Cartrette, and Bill Prince. Around this time, many of the employees who had been wearing red dot union stickers on their hardhats had ceased wearing such stickers.'9 Bill Prince, a union official, and William C. Cartrette were the only members of Johnson's crew still wearing red dots on their hardhats. Later on the same day that Johnson had instructed his crew not to use Federal Paper Mill canteen facilities, Prince spoke to Superintendent Bell about the problem as is revealed by the following credited excerpts from Prince's testimony: 20 I asked him why we couldn't use the machine there any more, the Paper Machines any more, and he said, "Well, he had told Bill Johnson to tell us." I said, "We are losing money in there, and half of the time you can't get what you go after." He said, "If you would use the machine during breaktime, get in and out, and not abuse it, it would be okay." Apparently, a week after Johnson had instructed his crew not to use the Federal Paper Mill canteen facilities, Johnson repeated such instructions to his crew. Prince told Johnson of his discussion with Bell concerning the use of such facilities, and indicated that Bell had said it would be okay to use such canteen facilities during lunch and breaktime if employees got in and out quickly and did not abuse the use of such facilities. Johnson indicated that he would check with Bell about the matter. As of February 26, 1979, Johnson had not indicated to the em- ployees that he had checked with Bell or that his instruc- tions were changed. Apparently, around the time that Johnson had given instructions to his crew not to use Federal Paper Mill canteen facilities, Respondent posted the following notice in some of the Federal Paper Mill canteen facilities: NOTICE THE CANTEEN AREA OF FEDERAL PAPER BOARD MAINTENANCE SHOP IS OFF LIMITS TO BE&K EM- PLOYEES. 19 The representation election involved in this proceeding was held on January 4, 1979. The validity and results of said election were still pend- ing subject to challenges and objections. so After careful consideration of all of the evidence, I am persuaded and conclude and find that Bell merely explained the reason for the instructions and did not authorize future violations of the instructions. This determination has been made difficult by the failure of Respondent to cross-examine Prince and Robert Carrette concerning Bell's conversa- tion with Prince and by the failure to present Bell as a witness on such point even though Bell testified on other matters. Prince's other testimo- ny reveals that he either construed Bell's remarks as authorizing a viola- tion of such instructions or at least as furnishing a rationalization that se- rious discipline should not be given for violation of the instructions. It is clear that Robert Cartrette's testimony revealed a construction of Bell's remarks as amounting to authorization to violate the instructions. Howev- er, William C. Cartrette's testimony as to his statements to Pope after his discharge, to the effect that he knew he was not authorized to be in the canteen, and the continuation of instructions not to use the canteen and the posting of written notice relating thereto are persuasive evidence that Bell's remarks were in effect an explanation and not an authorization. 264 B. E. & K., INC. ANYONE CAUGHT IN THIS AREA IS SUBJECT TO TER- MINATION. L. N. REINHARDT On February 26, 1979, William C. Cartrette, during his 9 a.m. break period, went to a Federal Paper Mill ma- chine shop canteen. On the door of such canteen was posted the above referred to notice that the facilities were off limits for Respondent's personnel.2 t Cartrette went into the canteen and purchased a cup of coffee and a cracker. Assistant Superintendent Pope had seen Cartrette while he was on his way to the canteen. 2 2 Pope fol- lowed Cartrette to the canteen. While Pope was in the canteen, Cartrette spoke to Pope. Although Prince and Robert Cartrette were not with William C. Cartrette, they were in the canteen at the same time that he was. There is no evidence that Assist- ant Millwright Superintendent Pope saw Prince and Robert Cartrette in the Federal Paper Mill canteen. What occurred later is revealed by the following cred- ited excerpts from William C. Cartrette's testimony:2 3 A. Bill Johnson come to me about 9:30 and told me that I had been fired; and the reason was for being in the cafeteria; and that there was nothing that he could do about it, and to get my tools, and I think that he left to go get a truck. Q. Do you recall anything else that Mr. Pope said at that time? A. Mr. Pope came and wanted to know why I was still on the job. Q. No, I am sorry, excuse me, strike the question. Do you recall anything else that Mr. Johnson said at that time? A. Mr. Johnson said, he told me to get my tools, and he said that he couldn't do anything about it, and that was all. Q. You don't recall him saying anything else? A. He told me that there was nothing that he could do about my being fired. Q. Do you recall him saying anything else at that time? A. No, not that I recall. Q. Do you recall his mentioning any other per- son's name? A. I don't recall, other than David Pope's; he mentioned David's name, that David had fired me; and that he could do nothing about that, and that is the only thing that I recall his saying. Q. He said that "David had fired you?" A. That's right. " There is a dispute as to the wording of the notice. I credit Rein- hardt's testimony as to the notice and find the facts as set forth. " Prior to these events, Pope had caused an employee named Chad- wick to be warned when Pope believed he had used Federal Paper Mill vending facilities. 's There is a dispute as to whether William C. Cartrette of Pope swung first and as to what William C. Cartrette said. I have considered all of the testimony and evidence and find William C. Cartrette's testimo- ny the most credible. I am persuaded that Pope "misheard" what Car- trette said, believed that Cartrette had cursed him, and responded with a swing at Cartrette. Q. And that he could do nothing about it? A. That's right. Q. What happened next? A. I went to get my tools to have them checked out, and ; he went to get the truck to get my tools to have them checked out, and I was waiting on him until I could get my tools together. Q. And then what happened? A. And then David came by and asked me what I was still doing on the job; and he told me that as of 10:00 o'clock that my time had started or stopped; and that I should have been done off of the job. Q. Did you reply? A. I told him about the machine that had been taking my money, and he asked me if I knew that I wasn't supposed to be in the canteen, and then that was the first time that he had said anything to me about being over there; and I told him "yes, that I knew it," and I told him that I thought that he "was one of the sorriest superintendents that I had ever worked for;" and he replied back, "the same to you, mother fucker;" and he made a swing-like, I blocked him; and I hit him. The General Counsel contends in effect that Respond- ent discriminatorily discharged Cartrette because of his union activity of continuing to wear a union sticker. Re- spondent contends that the discharge of Cartrette was not discriminatorily motivated; that Cartrette was dis- charged because he violated instructions concerning stay- ing out of the Federal Paper Mill canteen. Considering all of the facts, I am persuaded and conclude and find that the facts are insufficient to reveal that the discharge of Cartrette was discriminatorily motivated. The overall facts reveal that Respondent had a problem concerning its employees' usage of Federal Paper Mill's canteen facilities in and around February 1979, that instructions had been given and repeated to the employees not to use such facilities, and that Respondent had posted a notice in an attempt to prevent usage of such facilities by its employees.2 4 Under such circumstances, the facts reveal that Respondent discharged Cartrette for cause and not for discriminatory reasons. The complaint allegation of discriminatory discharge of Cartrette will be recom- mended to be dismissed. D. The Challenged Ballots Certain ballots cast in the representation election held on January 4, 1979, in Case I -RC-4602 were chal- lenged. Of such challenged ballots, the challenges to the ballots of William H. Robbins, Richard S. Todd, Drew Todd, F. M. Anderson, R. L. Carter, Harry W. Pridgen, Terry Boring, David Dutton, Charles R. Hayes, William A. Gravitt, Tom Goff, Billy Johnson, James Westbrook, and L. Woodrow Long are presented for resolution in this proceeding. 24 have considered Respondent's warning to Chadwick and its dis- charge of Cartrette for essentially the same violation of rules. The overall circumstances. the repeated instructions, and the posted notice reveal facts negating evidence of discrimination. 265 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The resolution of the challenges to the ballots of Charles R. Hayes, William A. Gravitt, Tom Goff, Billy Johnson, and James Westbrook requires a determination as to whether such individuals are supervisors within the meaning of the Act. Although the extent of the authority of Hayes, Gravitt, Goff, Johnson, and Westbrook is in dispute, the facts are clear that such individuals are des- ignated as foremen, wear white hardhats as compared to the wearing of blue hardhats by rank-and-file employees, keep time records of employees on their crews, do not work with their tools, earn 75 cents per hour above the rate of millwrights, and do not have authority to hire and fire, but can allow crew members to have "early outs" from work. The facts are clear that each of these foremen have the same authority. There is some dispute as to the extent of the foremen's authority regarding rec- ommendations for hiring, firing, wage increases, and dis- cipline. Such dispute does not have to be resolved since the evidence relating to authority to direct work and to assign work reveals such individuals to be supervisors within the meaning of the Act. The credited testimony of Goff and C. R. Hayes clear- ly reveals that the crew foreman is told generally the kind of work to be done, that he selects the individual crew employee to assign to such work, and that he di- rects the work of the crew. The overall facts and the credited testimony of Goff and Hayes reveal, and I con- clude and find, that the foreman's selection for assign- ment of crew members and direction of work are per- formed in a nonroutine manner. The only exception to such degree of authority as to the assignment and direc- tion of work pertains to the assignment and direction of work of certain employees on Gravitt's crew. As to Gra- vitt, some of his crew were selected for assignment by the "Erector." However, there are some members of Gravitt's crew who were directed in their work and were assigned to work by Gravitt. Considering all of the above, I conclude and find that the crew foremen (Charles R. Hayes, William A. Gra- vitt, Tom Goff, Billy Johnson, and James Westbrook) possess the authority to responsibly select employees for assignment to work and to responsibly direct such em- ployees in their work in a nonroutine manner. By pos- sessing and exercising such authority, such crew foremen possess and exercise supervisory authority within the meaning of the Act and are supervisors within the mean- ing of the Act. Accordingly, it is found and concluded that Charles R. Hayes, William A. Gravitt, Thomas E. Goff, Billy John- son, and James Westbrook are supervisors within the meaning of the Act and recommended that the chal- lenges to their ballots be sustained. The resolution of challenges to the ballots of Terry Boring, R. L. Carter, Richard S. Todd, Drew Todd, Harry W. Pridgen, William H. Robbins, David Dutton, and F. M. Anderson requires consideration of two fac- tors. One factor for consideration is whether such indi- viduals had a reasonable expectancy of further employ- ment at the Riegelwood site. The other factor is whether such individuals were discriminatees within the meaning of Section 8(a)(3) and (1) of the Act. It has already been found that the above-named employees were discrimina- tees within the meaning of Section 8(a)(3) and (1) of the Act. Absent discriminatory considerations, the facts reveal that the employees laid off on December 6, 1978, had a reasonable expectation of further employment by Respondent at the Riegelwood project as of the time of the January 4, 1979, representation election held in Case 11-RC-4602. Thus, the project involved and Respond- ent's work plans envisioned a need for the hiring of addi- tional millwrights in the early part of 1979. Respondent's official's statements to the millwrights and millwright helpers had made it clear that the Riegelwood job was one involving the need for hiring of millwrights at a time after the December 6, 1978, layoffs. In fact, the reason for the December 6, 1978, layoffs was the necessary delay for a certain type of work. Project Manager Rein- hardt made it clear to the employees laid off on Decem- ber 6, 1978, that there would be a need for rehiring and that they would be the first to be hired or rehired on the Riegelwood project. At the hearing the Union argued that the facts reveal that the employees laid off on December 6, 1978, had a reasonable expectancy of employment on the Riegel- wood site as of January 4, 1979, the date of the represen- tation election held in Case I -RC-4602. Respondent, on brief, argues that the eligibility of laid off employees to vote in the election was litigated in the representation case and that the Regional Director had excluded laid off employees from the ranks of employees eligible to vote. I reject Respondent's contention that the Regional Director's representation case decision disposes of the status of employees laid off from the Riegelwood jobsite. The issue in the representation case involved a conten- tion by Respondent that employees who had worked on other jobsites for Respondent, but not at Riegelwood, should be allowed to vote on the basis of reasonable ex- pectancy of employment in accordance with Daniel Con- struction Company, Inc., 133 NLRB 264 (1961). Such contention was rejected by the Regional Director. Such, however, does not dispose of the eligibility to vote by employees who were laid off from the Riegelwood job- site. Their eligibility to vote depends upon whether such employees had a reasonable expectancy of future em- ployment at the Riegelwood site. The facts clearly reveal that the employees laid off on December 6, 1978, had a reasonable expectancy of future employment at he Rie- gelwood site as of January 4, 1979. Accordingly, it is concluded and found that the challenges to the ballots of Terry Boring, R. L. Carter, Richard S. Todd, Drew Todd, Harry W. Pridgen, William H. Robbins, David Dutton, and F. M. Anderson should be overruled, and that their ballots should be opened and counted in Case I -RC-4602 with respect to the election held on January 4, 1979. The resolution of the challenge to the ballot of L. Woodrow Long concerns whether or not Long enjoyed a community of interest with the millwrights and help- ers. The Regional Director's Supplemental Decision, dated April 27, 1979, contained the following summary of facts and contentions concerning L. Woodrow Long: 266 B. E. & K., INC. L Woodrow Long was employed on or about Oc- tober 9 as an expediter. Although he is classified as a journeyman millwright, the evidence revealed that he has worked with his tools only a small portion of the time he has been employed at the project. As an expediter, Long is responsible for delivering equip- ment and tools to the various jobsites on the pro- ject. If the equipment is small, Long may deliver the equipment personally to the millwright crew re- sponsible for the installation. However, if it is large, Long will have the rigging department or iron- workers deliver it. Long uses the millwright super- intendent's office on occasion to maintain an equip- ment checklist. Long spends only about 10 percent of his time in contact with members of the mill- wright crew. The Employer contends that Long not only checks all incoming equipment and either delivers or assists in the delivery of said equipment to the various jobsites; he also spends 90 percent of his time working with the millwright craft employees, and does not service any other craft .... The evidence reveals that Long was employed as an expediter on October 9, 1978, and from this date until the date of the election on January 4, 1979, was carried on the payroll sheets of various millwright crews. Long's rate of pay was the same as that of a journeyman mill- wright. His duties consisted of locating millwright mate- rials, equipment, and tools from a general area where materials, equipment, and tools for various crafts were left, and of taking or seeing that such millwright materi- als, equipment, and tools were taken to the proper job- sites on the project. Although perhaps not absolutely es- sential, it is clear that Long's millwright experience con- stituted a helpful factor in his job performance. Long wears a white hardhat rather than a blue hardhat as worn by ordinary rank-and-file millwrights and help- ers. Long's work involves his travel over many areas of the project whereas the millwrights and helpers are es- sentially located in one work section at a time. Despite such distinctions, Long's work is closely related to and integrated with the millwrights' work. His rate of pay is geared to that of a journeyman millwright, and he is car- ried on millwright payrolls. The sum of the facts reveals that Long enjoyed a community of interest with the mill- wrights and millwright helpers. It is concluded that the challenge to Long's ballot should be overruled, and that such ballot should be opened and counted with respect to the January 4, 1979, representation election held in Case 11-RC-4602. E. The Objections 1. Objection I averred that "[Respondent], through its officers and agents, threatened its employees by sur- rounding the polling area with Fieldcraft supervisors." The Regional Director's Supplemental Decision set forth in effect that the evidence concerning such objec- tion related to contentions that Project Manager Rein- hardt and Millwright Superintendent Bell were in the polling area during the voting hours, and that Bell gath- ered the eligible employees at 4:30 p.m., and made them wait before allowing them to go to vote. As to this last contention, the Regional Director alluded to the Region- al Office's December 15 letter sent to the parties in con- firmation of the agreed upon election arrangements in which it was set forth that "Voters will release them- selves to vote and may vote at any time the poll is open." The Regional Director also alluded to a similar statement included in the "Notice of Election." The Regional Director's Supplemental Decision also set forth that Bell stated: . . .that on the day of the election he told the fore- men to have all of their people over by the finishing building at 4:30 p.m. When the men arrived, the foremen came with them. I told them to wait at the millwright tool trailer until the other men had voted. The foremen insisted on voting so I told them that they should vote after the other men had voted. When the others had voted I told the fore- men to go ahead and vote. This was a little after 5 p.m. The evidence presented at the hearing was to the effect that Bell told employees on January 4, 1979, to meet at the shipping and receiving area and to wait there until time to vote. There is no evidence that any eligible voter was restrained by Bell's conduct in such regard in any way from having an opportunity to vote at any time during the voting hours from 4:30 p.m. to 5:30 p.m. The statement in the letter of confirmation of election ar- rangements and in the Notice of Election to the effect that "Voters will release themselves to vote and may vote at any time the poll is open," is designed to insure that voters have full opportunity during the voting hours to exercise the right to vote, The procedure used by Bell of in effect releasing employees from work prior to the voting hours would not appear to have any effect of an interfering nature limiting the eligible employees' right to exercise their right to vote. The statement in the Region- al Director's Supplemental Decision as to what Bell stated would reveal that foremen were restrained in their attempt to vote until after the rank-and-file employees had voted. Since the facts reveal that such foremen were supervisors within the meaning of the Act, I am persuad- ed that such conduct by Bell, if such occurred,2 5 would not constitute conduct supporting a finding of objection- able conduct warranting the setting aside of the January 4, 1979, representation election. As indicated beforehand, I am persuaded, and conclude and find, that Bell's con- duct in having rank-and-file employees meet at the ship- ping and receiving area before the time that the polls opened does not constitute conduct of an objectionable nature warranting the setting aside of the January 4, 1979, representation election. Ward and Robbins testified to the effect that they at- tended a preelection conference on January 4, 1979, and that it was their understanding that no company officials or supervisors were to be in the immediate voting area during the voting hours. The facts reveal that the voting 25 Evidence as to this conduct referred to in the Regional Director's Supplemental Decision was not presented at the hearing in this matter. 267 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occurred in a conference room, that voters entered the conference room from a door on the right side, and that voters, after voting, proceeded out of the conference room by going through a door on the left side of the conference room. There is a hallway outside the confer- ence room and offices in the building complex. During the voting hours, several employees saw Reinhardt and other agents of Respondent at times in the hallway of the complex. There is no evidence that Reinhardt or the other agents of Respondent engaged in electioneering near the polls or acted in such a manner in or around the hallway so as to interfere with the employees' free exer- cise of their right to vote. The Union's understanding that Respondent's agents would not be allowed in the immediate voting area appears to be consistent with gen- eral principles applicable to the conduct of NLRB repre- sentation elections. The Union's understanding that the hallway area wherein Respondent's agents were ob- served during the voting time constituted an area where- in the presence of such agents was restricted appears to have been the Union's interpretation of what constituted the immediate voting area. In my opinion, the facts do not reveal that the area wherein Respondent's agents were observed to be was an immediate voting area. In summary, the evidence does not reveal that Re- spondent engaged in objectionable conduct as averred in Objection I. It is recommended that Objection I be over- ruled. 2. Objection II averred that "[Respondent], through its officers and agents, coerced and intimidated its employ- ees by laying off employees on Wednesday prior to the election on Thursday." This objection concerns the discharge of William A. Gravitt on January 2, 1979. The facts reveal that Gravitt was a supervisor within the meaning of the Act and that the discharge of Gravitt was not violative of the Act. Accordingly, it will be recommended that Objection II be overruled. 3. Objection III averred that "[Respondent], through its officers and agents, threatened apprentices with non- progression if the Union won the election. The evidence relating to this issue concerns statements by Goodrich concerning Respondent's ratio of appren- tices or helpers to millwrights and the ratio of appren- tices or helpers to millwrights under certain contracts the Union had with other employers. I credit Goodrich's testimony that his statements were of such a comparative nature. Under such circumstances, Goodrich's statements were not to be construed in the nature of expected acts of reprisals but rather in the nature of what employees could expect if the Union secured the type of contracts it had with other employers. Accordingly, such allegation of objectionable conduct is not supported by the evi- dence. It will be recommended that Objection III be overruled. 26 4. Objection IV averred that "[Respondent], through its officers and agents, turned employees back from the polling area during the voting period. The Regional Director's "Supplemental Decision" and the litigation in this case reveal that this objection con- a6 Such conduct was not alleged as an unfair labor practice. cerns the conduct of Respondent's attorney, Weathersby, in talking to Richard and Drew Todd and Anderson while they were proceeding to the polling place around the commencement of voting on January 4, 1979. There is a dispute as to the facts between the testimo- nial versions of the Todds and Weathersby. I am per- suaded that all of these witnesses attempted to testify truthfully. Of such witnesses, I am persuaded that Weathersby's testimony is more accurate and that the Todds' testimony constituted in effect their conclusion of what Weathersby's statements had meant. What occurred is revealed by the following findings of fact and excerpts from the testimony: The arrangements for the election, as revealed in Field Examiner Reese's December 15, 1978, letter to the par- ties, provided that, in the event persons not presently employed appeared at the Company asserting the right to vote, they were to be admitted to the polling place at any time the polls were open to confer with the Board agent in charge. On January 4, 1979, the two Todds and Anderson ap- peared at a construction gate near the scheduled polling site. They had been advised by letter of the voting time and voting site. When the Todds and Anderson first ap- peared at 4:15, a person from Respondent's personnel office advised them that they would have to come back at 4:30 p.m. and sign in before going in to vote. Around 4:30 p.m., they signed in and proceeded toward the poll- ing place. What occurred then is revealed by the follow- ing credited excerpts from Weathersby's testimony: 27 Q. What happened when you started walking back? A. About that time, there were three or four people who were trying to come in and the guard was trying to stop them. I heard her say, "you can't go in, you can't go in the project, you have to go to the personnel trailer," or words to that effect. They went right on past her. I walked up to them, and I said, "you are on private property, you are trespass- ing, and you could get arrested; if you are coming in to vote, I can assure you that everybody that wants to vote will be allowed to vote." At that point, one of them said, said to me, "Who are you?" I answered, "I am BE&K's lawyer. But you cannot talk to me within 24 hours of the election." They walked on past, and I turned around, and saw them getting in line to vote. I went in what has been described here as the exit door, went back to Larry Reinhardt's office, and I sat there until 5:30 when we went to count the votes. It is undisputed that the Todds and Anderson voted without further incident. 28 2 I have carefully considered Weathersby's relationship as an attorney with Respondent in my determination of credibility. as Evidence has been presented, however, to the effect that the Todds' and Anderson's involvement in such an incident resulted in a letter from Federal Paper Board Company, Inc., to Respondent wherein it was ex- pressed that the two Todds and Anderson would no longer be permitted to work at the site. 268 B. E. & K., INC. As voters, the two Todds and Anderson had the right to have the election on January 4, 1979, conducted under the auspices and control of the NLRB as an arm of the U.S. Government. Weathersby's conduct was tantamount to the assertion of control of the election procedures by a party thereto and interfered with a free and untram- meled exercise of voting rights by the Todds and Ander- son by injection of the possibility of arrest for the exer- cise of a protected right. Such individuals very well might have voted out of anger or out of fear, either of which destroys the laboratory conditions of an NLRB representation election. Under these circumstances, whether Weathersby's conduct was intentional or not, Weathersby's conduct constituted conduct which inter- fered with the holding of a free and untrammeled elec- tion on January 4, 1979. Accordingly, it is recommended that Objection IV be sustained. 5. Objection V averred "By these and other acts [Re- spondent], coerced, intimidated, and threatened its em- ployees in their free exercise of choice as guaranteed under the Act." The findings of unfair labor practices occurring be- tween October 20, 1978, and January 4, 1979, as previ- ously set forth, support a finding and conclusion that Ob- jection V is supported and should be sustained. Thus, the facts relating to interrogation by Bell on January 4, 1979, and by Goodrich in late November 1978, the threats by Pope in late November 1978, the threats of denial of raises by Bell, the threats by Hayes relating to the wear- ing of union stickers, and the discriminatory layoffs on December 6, 1978, all require a finding that Objection V is supported and warrant a setting aside of the January 4, 1979, representation election. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's oper- ations described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. v. THE REMEDY Having found that Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Having found that Respondent laid off Thomas E. Goff in violation of Section 8(a)(1) of the Act, and laid off Terry Boring, R. L. Carter, James Eason, Richard S. Todd, Drew G. Todd, Sr., Harry W. Pridgen, William H. Robbins, David L. Dutton, and F. M. Anderson in violation of Section 8(a)(3) and (1) of the Act, the rec- ommended Order will provide that Respondent offer each reinstatement to his job, and make each whole for any loss of earnings or other benefits within the meaning and in accord with the Board's Decisions in F. W. Wool- worth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977),29 except as specifi- cally modified by the wording of such recommended Order. Because of the character of the unfair labor practices herein found, the recommended Order will provide that Respondent cease and desist from in any other manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 30 Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent B. E. & K., Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union 1165, United Brotherhood of Carpen- ters and Joiners of America, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. By laying off Thomas E. Goff, Respondent inter- fered with employees' organizational rights and thereby violated Section 8(a)(1) of the Act. 4. By laying off employees Terry Boring, R. L. Carter, James Eason, Richard S. Todd, Drew G. Todd, Sr., Harry W. Pridgen, William H. Robbins, F. M. Anderson, and David L. Dutton, Respondent has discouraged mem- bership in a labor organization by discriminating in regard to tenure of employment, thereby engaging in unfair labor practices in violation of Section 8(a)(3) and (I) of the Act. 5. By the foregoing and by interfering with, restrain- ing, and coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER3 1 The Respondent, B. E. & K., Inc., Riegelwood, North Carolina, its officers, agents, successors, and assigns, shall: I. Cease and desist from: 29 See, generally, Isis Plumbing d Heating Cao., 138 NLRB 716 (1962). S I note that the instant proceeding reveals that Respondent and Fed- eral Paper Mill have exchanged communications concerning keeping the Todds and Anderson off of the Federal Paper Mill site because of the events of January 4. 1979. Such employees were engaged in a protected right of participating in an NLRB representation election. Such rights are not to be denied or interfered with by private parties. The Regular remedy shall be ordered for the violative conduct found. All persons should be aware that attempted frustration of such rights may expose such parties to the penalties of Sec. 12 of the Act. 3l In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 269 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Laying off or otherwise discriminating against em- ployees in regard to their hire or tenure of employment or any term or condition of employment because of their union or protected concerted activities. (b) Laying off supervisors in order to interfere with employees' organizational rights. (c) Threatening employees with discharge, denial of raises, loss of jobs, placement on blacklists, or other re- prisals because of their union activities or protected con- certed activities. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Thomas E. Goff, Terry Boring, R. L. Carter, James Eason, Richard S. Todd, Drew G. Todd, Sr., Harry W. Pridgen, William H. Robbins, F. M. An- derson, and David L. Dutton immediate and full rein- statement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of pay or other benefits they may have suf- fered by reason of the discrimination against them in the manner described above in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at Respondent's project at Riegelwood, North Carolina, and at its main office, copies of the attached notice marked "Appendix."3 2 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by Respondent's authorized rep- resentative, shall be posted by it immediately upon re- 3: In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." ceipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director for Region 11, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of unlaw- ful conduct not specifically found to be violative herein be dismissed. With respect to the challenges to ballots and the ob- jections to the representation election held on January 4, 1979, in Case I 1-RC-4602, it is hereby ordered that: . The challenges to the ballots of Charles R. Hayes, William A. Gravitt, Thomas E. Goff, Billy Johnson, and James Westbrook be sustained. 2. The challenges to the ballots of L. Woodrow Long, William H. Robbins, Richard S. Todd, Drew G. Todd, Sr., F. M. Anderson, R. L. Carter, Harry W. Pridgen, Terry Boring, and David L. Dutton be overruled, that such ballots be opened and counted, that a revised tally of ballots reflecting the results of the counting of such ballots as opened as referred to above be issued, and that, if such revised tally of ballots reveals that a majority of ballots has been cast for the Union in said January 4, 1979, representation election, the appropriate certifica- tion of exclusive representative status be issued. 3. Objections II and III be overruled. 33 4. Objections I, IV, and V be sustained, and, if the Union does not receive a majority of the ballots cast in the election held on January 4, 1979, the election held on January 4, 1979, be set aside and Case 11l-RC-4602 be severed from Cases I l-CA-8035 and 1 l-CA-8192 and be remanded to the Regional Director of Region 11 to conduct a new election when he deems the circum- stances permit the free choice of a bargaining representa- tive. :3 Objection II averred that "[Respondent], through its officers and agents, coerced and intimidated its employees by laying off employees on Wednesday prior to the election on Thursday." Objection III averred that "[Respondent], through its officers and agents, threatened appren- tices with nonprogression if the Union won the election." 270