McCain Foods, Inc.

McCAIN FOODS, INC. McCain Foods, Inc. and District No. 99, International Association of Machinists and Aerospace Workers, AFL-CIO. Case I CA 12843 MaN 25, 1978 DECISION AND ORDER BY MEMBERS PENELI O, Mt:RPHY. AND TRI FSDAI f On January 19, 1978, Administrative L.aw Judoe Michael O. Miller issued the attached Decision in this proceeding. Thereafter. General Counsel and Respondent filed exceptions and supporting briefs. and General Counsel also filed a brief in support of other portions of the Administrative Law, Judge's Decision. 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, findings.' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National l.abor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereb) orders that the Respondent, McCain Foods. Inc.. Ea- ston, Maine. its officers, agents. successors, and as- signs, shall take the action set forth in the said rec- ommended Order. I Respondent has excepted to certain credihilitl findings made hs the Administrative Law Judge. It is the Board's estihlished polios not It oser- rule an Administrative Law Judge's resolutions With respect Ito credlblihl unless the clear preponderance of all of the releslnil esidence ,onminnce us that the resolutions are incorrect Stonilrd Drl l al/ Prodw t. In(. 91 NILRB 544 (1950), enfd. 188 F2d 362 i( ( 3. 19511 We hane carefulIx examined the record and find no basis for reserving hi, findings DECISION STATEMENT OF THE CASE MICHAEL O. MILLER. Administrative Law Judge: I his case was heard on August 22, 23. and 24, 1977, in Presque Isle, Maine, based upon a charge filed on March 8. and amended on April 6. 1977, by District No. 99, Internation- al Association of Machinists and Aerospace Workers, AFL-CIO, herein the Union. The complaint, issued by the Acting Regional Director for Region I of the National ILa- bor Relations Board, herein the Board, on April 25, 1977. as thereafter amended, alleged that McCain Foods, Inc.. herein Respondent, violated Section 8(a)( I) and (3) of the National Labor Relations Act. as amended, by refusing to hire seven named employee-applicants because they had been active on behalf of the Union while employed bN Vahlsing Inc.., the prior owner of the plant involved hcrein.' All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to argue orally. Briefs, which have been carefullk considered, were filed bv the General Counsel and Respondent. I pont the entire record herein. including my careful ob- ser'sation of the Awitnesses and their demeanor, I make the FINDINGS OF FA[C1 I I11 RE:SPON.IENr's BUSINESS AND riE I NION'S LABOR ORGANIZATION STATUS Respondent. a Maine corporation, is engaged at Easton, Maine, in the manufacture, sale, and distribution of french fried potatoes. Jurisdiction is not in issue. I find and con- clude that Respondent is an employer, engaged in com- merce, within the meaning of Section 2(6) and (7) of the Act, I find and conclude that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. II DIE A Li(LED l NFAIR I ABOR PRACTICES A. Background For a number of years, Vahlsing, Inc., had owned and operated the Easton. Maine, plant, processing french fried potatoes. 1lnion organizational activities at this plant took place in 1971 and the Union was certified as the collective- bargaining representative of Vahlsing's production and maintenance employees in that year. Three collective-bar- gaining agreements were entered into between 1972 and 1975. Vahlsing ceased production at the Easton plant in June 1975 and all production employees were laid off at that time. Some employees. primarily those responsible for maintaining the refrigeration equipment and those in- volved in shipping the product. continued to work until August 1976. At that time. McCain Foods, Inc. acquired the former Vahlsing plant and facilities and began prepara- tions to resume potato production. McCain's processes and products were similar to Vahlsing. It intended to use, but improve, the same equipment and to produce a higher grade of product. Applications for employment were re- ceived from more than 1100 potential employees, including several hundred who had, at one time or another. worked at Vahlsing. and hiring began. A one shift, single line of production began in November 1977. Respondent contin- BHem\i.l ( (O', r., q . of Prequec Isle. M.reoe. appeared ,n eh.alf of , hkloi In. 236 NLRB No. 53 447 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ued to add employees throughout the fall of 1976 and win- ter of 1977. It is Respondent's selection of employees and its failure to hire certain employees formerly employed by Vahlsing and active in the Union which gives rise to this litigation. B. Staffing of the Easton Plant At the outset, hiring for the Easton plant was done by Wayne Kennard, the personnel manager from Respon- dent's plant at Washburn, Maine, and by Lester McIntosh, personnel manager of a plant owned by McCain Foods, Ltd., a Canadian corporation, in Florenceville, New Bruns- wick. Kennard's hiring was primarily of a basic mainte- nance force, although he interviewed some production workers. Beginning on October 18, 1976, the interviewing and hiring was done by Myles MacDonald, newly hired as Respondent's personnel manager for that plant. MacDon- ald had been Vahlsing's office manager at that plant from 1971 until May 1975. MacDonald interviewed and hired virtually all the production employees and many of the maintenance-type employees. Jack Downing, who had been Vahlsing's plant engineer continued in that capacity with Respondent. Respondent also retained Vaughn Fitz- herbert, who had been Vahlsing's production manager. According to MacDonald, Respondent intended to be- gin operations with a single production line with expecta- tions of adding a second line around December and a sec- ond shift sometime in the spring. To that end, Respondent received 1121 employment applications between Septem- ber 1976 and June 1977 and hired 213 employees mostly in November through January. Of those hired, approximately 73 (or 34 percent) had prior employment with Vahlsing at this plant. Most of those had worked for Vahlsing during the period when the Union represented the employees. At the time of the hearing, some employees were on seasonal layoff. Of the 87 actively employed at that time, 36 were former Vahlsing employees. MacDonald made all of the decisions in regard to hiring. He denied discussing the applicants with Fitzherbert or discussing any of the applicants, except for turbine and boiler operators, with Downing.2 MacDonald testified that he generally interviewed each applicant and based his hiring decisions on the interviews. reference checks, and personal knowledge of the applicants from prior employment. He hired employees who could report on very short notice and avoided those whose pres- ent employment necessitated giving some lengthy notice. He declined to hire such applicants because he felt that he could not guarantee anyone more than a few days work, was not sure that there would be a job available after a 2-week notice period, and did not want to interfere with present employment by just providing a few days work. He admitted that all of those who were hired continued to work until the seasonal shutdown in June; none of the em- ployees were laid off within a few days of the start of their employment. MacDonald denied that he had received any instructions, when he was hired, concerning the hiring or ' Diowning denied discussing ans of the applicants, other than for supel- visors positions. with MlcDl)tonald. avoidance of union activists. Kennard testified that he ap- plied similar standards in his hiring decisions. He consid- ered the applicant's availability for work, willingness to ro- tate shifts, work history, and his personal judgment of them. C. Failure To Hire the Alleged Discriminatees General Counsel contends that seven former Vahlsing employees, Kenneth Tidd, Lewis Adrian Parker, Carolyn Longley, Stella Ireland, Brenda Allen, Erma Oakes, and Clara Cheney, were denied employment because of their union involvement. 1. Kenneth Tidd had worked as a refrigeration mechanic and operator at Vahlsing for 8 years. Prior to his Vahlsing employment, Tidd had graduated from a refrigeration school, worked part-time in that field and then full-time for 8 years as a refrigeration mechanic and operator for anoth- er potato processor. The Union's 1971 organizational drive at Vahlsing had been started by Tidd and one other employee. Tidd solic- ited cards, was the Union's election observer, served as chief shop steward during the initial negotiations, and as a steward during the first contract term. He also participated in the initial negotiations. He again served as the Union's chief steward from December 1975 until the plant closed in August. As chief steward, he had superseniority and was the last employee to leave the plant. In his union capaci- ties, on grievances and other matters, Tidd had dealt with both Myles MacDonald and Vaughn Fitzherbert. About 2 weeks after he left Vahlsing at the end of Au- gust 1976, Tidd mailed an employment application to Re- spondent. He received no response. On September 17, 1976, when he subsequently learned that Kennard was conducting interviews, Tidd went to the Easton plant. As he filled out a second application, Kennard came out of the office, looked at the application, and told Tidd that it would be 2 or 3 weeks before they would be hiring anyone in refrigeration. Immediately prior to speaking to Tidd, Kennard had been interviewing Kenneth McKenney. McKenney was hired for the refrigeration department on September 17, 1976. Respondent had already hired Ronald McDougal for that department on September 16, 3 days after he had ap- plied. Tidd, McDougal and McKenney were the three re- frigeration department employees who had last worked for Vahlsing. 3 Tidd again interviewed with Kennard, a week later, at the State Employment Security Office. He filled out a third application and was told that it would take 2 or 3 days for his references to be checked. 4 When Tidd heard nothing from Respondent, he contacted the persons whom he had listed as his references. No inquiries had been made of them. Although Respondent did not contend that it relied upon seniority with Vahising. I note that both McDougal and McKenney had been emplo)ed by' Vhlsing longer than had Tidd. Kennard testified that he directed T idd to speak with MacDonald, as Kennard was resuming his responsibilities for the Washburn plant. Mac- Donald's testimony, however, establishes that he was not hired until earls October. Kennard thus could not have referred I idd to MacDonald In September. when their last conversation took place 448 McCAIN FOODS, INC. Ivan Buckingham, a former Vahlsing employee who had worked in maintenance and on the fryers but not in refrig- eration, applied for work on September 17, the same day that Tidd submitted his second application. Buckingham was hired in the refrigeration department on October 27. MacDonald. who was aware of Tidd's pending application when he hired Buckingham, testified that he chose Buck- ingham to achieve flexibility in work assignments. Buck- ingham, he said, had experience in both refrigeration and turbines. Buckingham's employment application lists his prior employment at International Refrigeration as a fork- lift operator and listed none of his job duties at Vahlsing. Someone, presumably an interviewer, had written "Main- tenance Refrigeration & Turbines" opposite the listing of Vahlsing as a prior employer on Buckingham's application. MacDonald contended that with Buckingham's experience on the turbines, he could be moved to that job in the event that another employee currently working on turbines. Ar- thur Rand, should be moved to the firer, in the further event that a second line was started. He acknowledged that Buckingham might require some training to work in the refrigeration department. Respondent also hired James Smith for the refrigeration department, on October 14. the day after he applied. He was not a prior Vahlsing employee and had not sought employment in any particular department. No explanation was offered why Smith was hired rather than Tidd. 2. Lewis Adrian Parker had worked for Vahlsing from March 1971 until August 1976. His Vahlsing employment began as a turbine helper. After 13 months, he was moved to the boilerroom where he progressed from helper to lead- man, with full responsiblity for the boiler operation in his shift. At one time, he had a helper working with him on the shift. In the course of his work, he had trained various other employees to work on the boilers, including Roger Bouchard. Kerry Tarbox, and Ken Hayden. Bouchard and Tarbox had been laid off in the spring of 1976. Hayden and Lawrence Howlett (another operator) had quit, and Parker was the last boiler operator retained. The State of Maine requires a license to operate boilers. Parker held a fourth class engineer's license, having pro- gressed from the boiler operator's license. Parker had been involved in two disputes with Vahising management, disputes which the General Counsel con- tends caused Respondent's management to reject him as an employee. During the winter of 1975, Vahlsing experi- enced financial difficulties and fell behind in paying its employees. According to Parker, some employees came to him and asked him if he could shut down the boilers in an effort to force the Company to pay them. After checking with the Union. Parker told Vaughn Fitzherbert that he would shut the boilers down unless the employees received their pay by noon. As a result of the threat, the employees were paid.5 Parker's role in this incident was corroborated IFitzherbert recalled two incidents when emplosees threatened toI shut down the boilers unless thes were paid. In the first. . group of file emplo- ees. including Howlett and Butler, but Hihoui Parker. were nolved. On the second occasion. he recalled Flowletl, Butler. Deslardin and V ilhlian Parker, he said, might have been there. ltzherhert testified Ihat tlw lett and [)esjardin did most of the talking by Roy Stevenson. The second incident involved Parker, Wendell Williams, and David Desjardin being written up by Jack Downing for refusing to perform certain mainte- nance work on the boilers while they were in operation. When the employees questioned the safety of the proce- dure, the writeup was thrown out. On September 15, 1976, Parker submitted an employ- ment application to Kennard who told Parker that he would get back to him. Not hearing from Respondent for several days. Parker returned to the plant. While waiting for an interview, Jack Downing came by and called him aside. According to the credibly offered testimony of Par- ker, Downing told him, "[Y]ou're going to have a hard time to get back in because Vaughn Fitzherbert had made the statement that you was a strong union man." This state- ment, as Downing related it to Parker, was made in the course of a meeting when applications were being re- viewed.6 Parker then waited to speak with the personnel man, was told that they were not hiring any boilerroom personnel at that time and that he would be contacted. On a subsequent visit to the plant, Parker spoke with two personnel men, both of whom had come from Flor- enceville. New Brunswick, Canada. One of them, he be- lieved, was Lester Macintosh. Parker mentioned that he had been referred to as a strong union man and explained what had happened in the dispute involving his threat to shut the boilers down. When he told the men how long he had been without pay, they stated that they did not blame him for his actions. He was also told "that McCain's did not "rant unions because they did not believe in dealing with a third party. If an employee had any grievance or had any complaints that they' would sooner the employee come directly to personnel and straighten it out person to person. Parker returned to the plant on October 18, 1976, the first day on which MacDonald assumed personnel respon- sibilities. MacDonald said that he had not gotten to the applications but would let Parker know. Parker never heard from Respondent subsequent to that date. About September 10. 1976. Kennard had interviewed and hired Lawrence Howlett. a licensed boiler operator who had previously worked for Vahlsing. Kennard's notes of the interview establish that Howlett was presently em- ployed but wanted to leave his current employment be- cause of dissatisfaction with the management. Kennard noted a statement by Howlett that he disliked the Union because he felt that it had been brought in by the manage- ment and that the employees had no say in it. On October 4. Respondent hired Winfield Murray for the boilerroom. Murray had never worked for Vahlsing and was less expe- rienced than Parker. On October 7. Respondent hired Ken- neth Hayden for the boilerroom. Hayden, who had applied 2 weeks after Parker, had been trained on the boilers by Parker. On October 25, MacDonald hired Richard Crane. Crane, who had applied on October 23, had neither a li- Do ) nin a:Idmitted speaking to Parker on this occasion but denied that he made the remark which Parker attributed to him Hlie tesifiled that he exchaneed reetings with Parker. called him aside because the acoustics were poowr In the personnel office. "alund asked him whN he anted to woIrk there I Iw vI unfa.ora.bls impressed with I)owning's lestimonial de- mrainor and ionnider his erqlon of this statement Iniplausible 449 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cense nor experience as a boiler operator. MacDonald tes- tified that he chose Crane because Howlett recommended him highly. MacDonald admitted that he had not checked with Downing or Fitzherbert for a recommendation on Parker, notwithstanding that Parker had listed them both as references. On January 14, 1977, MacDonald hired Roger Bouchard, who had less experience than, and had been trained by, Parker. MacDonald testified that he se- lected Bouchard because of his potential as leadman or supervisor. Parker had been a leadman with Vahlsing. On May 9, 1977, an inexperienced employee, unlicensed, was transferred into the boilerroom. 3. Carolyn (Holmes) Longlev had worked at Vahlsing, fulltime, from June 1968 until July 1975, on two shifts and in the trim, inspection, packing, carton, fresh pack, and laboratory departments. She was involved with the Union from its inception at Vahlsing. Longley participated in all three contract negotiations and chaired the negotiating committee for the last contract. She was a union steward in 1972 and was appointed chief steward in 1975. She served on the grievance committee in 1973 and chaired it in 1974 and both served on and chaired the safety committee. In 1975, she became vice president of the local. Longley con- tinued in that latter capacity even after her employment at Vahlsing had ended. In the course of her various union duties, Longley had met and discussed grievances and safety matters with Jack Downing and Vaughn Fitzherbert, both of whom assumed supervisory roles with McCain. Correspondence referring to her in her union capacities passed through Myles Mac- Donald, who was Vahlsing's office manager. In February 1976, as union vice president, Longley participated in col- lective bargaining negotiations at American Kitchen Foods, while MacDonald negotiated as a management rep- resentative. In November 1976, Longley and two union representatives handbilled the Washburn plant. There was also handbilling at Easton, although Longley apparently did not participate. Longley applied for work at McCain Foods on Decem- ber 6 and was interviewed by MacDonald. In the course of the interview, MacDonald discussed the pay, benefits, the Company's plan to start a second shift, and its intention to have employees rotate shifts. Longley, who lived in Cari- bou, Maine, about 30 minutes driving time from the plant, asked whether there was anyone else from Caribou em- ployed there so that a carpool might be arranged. She also told him that neither the transportation nor rotating shifts were any problem to her. She had a driver's license and a car. MacDonald made a notation on Longley's application, "trans" and "rotate," to indicate that they had discussed transportation and rotation of shifts. Longley never re- ceived a job offer from McCain Foods. MacDonald testified that Longley was a good employee, one he would hire. He did not hire Longley, however. "[blecause we had talked about a carpool up in Caribou, that she needed a carpool to drive." He acknowledged that the possibility of a carpool had been discussed very ca- sually, that possibly she had only said that it would be nice to have a carpool, and that he was probably in error in his impression that she wanted to form a carpool out of Cari- bou. He also made reference to the severity of winter weather in conjunction with the distance from Caribou. MacDonald hired Melba MacDougal for the trim and pack department on November II. MacDougal had been interviewed on September 17, 1976, by Kennard and Ken- nard had noted on her application that shift rotation would be a problem because, inter alia, of a lack of transporta- tion. Similarly, Pauline Howlett, whom Kennard had inter- viewed on October 14, 1976, was hired on January 13, 1977, notwithstanding that Kennard had noted that trans- portation would be a problem because she would have to secure a ride. Respondent's Exhibits I and 2 establish that among those whom Respondent hired were at least six em- ployees from Caribou, Maine. Additionally, ten employees who listed their home addresses in cities as far and further from the plant away than Caribou were hired. 7 Respon- dent's exhibits further establish that, subsequent to Longley's application, Respondent hired 57 employees in the trim and pack departments and in the laboratory. Of these, 41 had no prior employment with Vahlsing. 4. Stella Ireland had worked for Vahlsing in the trim- ming, inspection, and packing departments, on all three shifts, from January 1962 until June 1975. Unlike Longley, Ireland lived but 1-1/2 miles from the plant. Ireland was a member of the Union's committee during the negotiations in 1972, and was a shop steward from 1972 until 1975. She was involved, as steward, in two grievances in 1973 and 1974 and met with Vaughn Fitzherbert among other management representatives in regard to those griev- ances. She also served on the plant safety committee. Ireland submitted an employment application in the lat- ter part of September 1976. In October, she went to the plant to interview with MacDonald and spoke to him only briefly. MacDonald told her that while he tried to inter- view each applicant, there was nothing she could add to what he already knew about her. She asked him whether there would be any better jobs available and expressed an interest in applying for such jobs. He promised to keep her in mind. Thereafter, she called MacDonald several times, each time to be told that Respondent was not hiring. After she took other employment, on November 9, 1976, she again spoke with MacDonald. She testified that she told MacDonald that she could quit that job at any time, and denied that she told him that she needed 2 weeks' notice. She was never offered a job at McCain Foods. MacDonald testified that Ireland was a good worker, one whom he would hire at such a time as he would be able to give her 2 weeks' notice for her present employer. He testified to receiving an "impression" from speaking with her that she would need such a notice. He did not recall whether she specifically told him that. He also testified that he assumed that applicants with full-time employment would have to give their employers notice. According to MacDonald, he was not in a position to hire employees who required time before reporting because he could not tell, at the time he was hiring, whether a job would be available after 2 weeks. In fact, all of the persons who were hired, other than those who quit or terminated for cause, IThe cities involved were Limestone. Littleton, and Monticello. Maine. See Standard tighwua Mileage Guide, Rand MeNall & Co.. 1973, pp 258 259 450 McCAIN FOODS, INC. remained employed until the seasonal layoff, in May 1977. MacDonald acknowledged that some employees were hired notwithstanding that they had to give notice to cur- rent employers before they could report to McCain Foods. Thus, David Grivois' application indicated that he needed a "one week notice": however, he was hired because he had a good background as a skilled packaging machine operator, a category required in the plant. Richard Paradv. a fork lift operator, was hired even though his application indicated that he, too, would have to give a week's notice, 5. Brenda Allen's situation was similar to that of Ireland. She had worked for Vahlsing, as a trimmer, packer, and inspector, from February 1970 until June 1975. She served on the 1973 negotiating committee, when MacDonald and Fitzherbert were among those representing management, and was a shop steward from 1974 until laid off. She sub- mitted one application at the plant gate and another on September 28, 1976, at the State Employment Security Of- fice. On that latter occasion, she was told by Kennard that they had not hired any women yet, but he did not see why,. with her experience, she would not be hired. She told Ken- nard that she was employed at Aroostook Shoe and would have to give a 2-week notice before leaving. She subse- quently spoke to MacDonald and asked him if they were hiring former Vahlsing employees. She was told that none had been hired at that time, that this was a new company. not bound by the Vahising contract or seniority, and that they could hire whom they chose. On another occasion, she asked MacDonald whether her position as a steward and role on the negotiating committee would preclude her em- ployment. He replied, "As far as I'm concerned, that has nothing to do with it." MacDonald testified that he considered Allen a good worker, one whom he intends to hire. However, he did not hire her during the 1976-1977 season because her job at Aroostook Shoe required that she give notice before termi- nation. As noted, he claimed that he could not "allow a person to have two weeks notice and guarantee them a job at the time." According to Allen, Ethna McKeen and Beatrice ('row were hired by Respondent directly from their employment at Aroostook Shoe. Respondent's records indicate that Crow was hired on December 14, 1976. and McKeen on January 12. 1977. MacDonald denied that Crow was work- ing at another job at the time he hired her and denied that he knew McKeen was employed elsewhere when she was hired. I credit MacDonald's recollection in this instance.' 6. Erma Oakes had worked both day and evening shifts, in the trim, pack, and inspection departments at Vahlsing from 1968 until production ceased in 1975. 'Neither Crow, nor McKeen testified Mc Keen's emplo, menl applicillcn only indicated that she was emploNed at Aro,.)sto k Shoe throuigh Septerl her. when she filed her applicatiion No emplosment appili;ll, n or other records specificall) pertaining to (Cro, s ere a.dduced I no t that \llcn testified to her recollection that Respondent hired ( row In mFebruilrs ol March 1977. the compilations from Respondent's rec rds estabihh th.at C'row was hired in December 1976. Based upon this ecidence thai Allen', recollection ma! hase been fault., and the lack of eldence ti cotrrolhslc her testimon). I must conclude that General ( ounsel ha fadiled to ctlibhih that Respondent hired SMcKeen and (Cros, despilre kLnos llce 'If aIsN re quirement that theN, gie notice to Iheir current emplo!er In february 1975, Oakes had filed a grievance concern- ing the manner in which the employees were moved among the various work stations. She filed the grievance with chief steward Robert Menendez and participated in a meeting between the Union and management. She recalled that Vaughn Fitzherbert and. possibly also Jack Downing. were present. Oakes served on the Union's negotiating commit- tee for the last contract and was appointed to, but had little involvement with, the safety committee. Oakes filed an employment application in late Septem- ber 1976. Around January 14 or 15. 1977, after learning that a friend (Arlene Ladner) had been hired, Oakes called Macl)onald with whom she was personally acquainted. She asked if the, were hiring and told MacDonald that she would like to have a job to earn some money inasmuch as her son was getting married in the spring. She told him that the wedding was to be held in California and that she wished to attend. Oakes denied telling MacDonald that she was looking for part-time or temporary employment. Mac- Donald told her that they were not hiring. In early February, Oakes' husband. Glenn, called Mac- Donald and asked if Respondent was doing any hiring. MacDonald told him that they were not. Glenn Oakes asked MacDonald whether his wife's union membership had anything to do with her not being hired. MacDonald denied that it had. Glenn Oakes reiterated that his wife wanted a job particularly to earn money to finance a trip on the Memorial Day weekend. MacDonald told him that he had promised jobs to about 10 women. Glenn Oakes denied that he told MacDonald that Erma Oakes was seek- ing pa;rt-time or temporary work. MaclDonald testified that he considered Erma Oakes to be a good employee. one whom he intended to hire at such time as she was seeking full-time permanent employment. How ever, from the statements made to him concerning the trip to California. MacDonald claimed to have understood that she was seeking only temporary or part-time employ- ment. Subsequent to Erma Oakes' telephonic request for em- ployment in January, Respondent hired 26 female employ- ees. only 9 of whom had prior experience with Vahlsing. Twelve were hired between January 17 and January 20, another 6 were hired on February 15, 1977. 7. (Cmlrt (Chenel was employed by Vahlsing, in packing. trimming and inspection, from 1966 to June 1975. She served on the initial union negotiating committee for a pe- riod of time and as union steward from 1972 until 1974. In 1974, Cheney had an occasion to complain to supervision that some employees were using offensive language in the plant. Management disciplined two employees, discharging a plant worker and suspending one who worked on the potato farm. At the request of the discharged employee, Chenex called the home of the other employee and spoke to that emploxee's wife to learn what discipline had been accorded him. (Cheney was thereafter called into the office hb, lacDonald and the floor supervisor. Elizabeth Smith, and asked wh` she had made that call. She was then told that Mac Donald did not think that she had any right to take such action and that she should not do it againl. ' li,, t~i i ow nN . nd. Lin r ri it a,liced 451 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cheney filed an application for employment at McCain Foods on September 28, 1976, indicating at the time that she was willing to rotate shifts. She called the plant twice thereafter. On the first occasion, she was told that they were not hiring but would call her when the hiring started. On the second occasion, November 9, 1976, she told Mac- Donald that she wanted to work for Respondent. He made no reply. Respondent has not offered her a job. MacDonald stated that he was familiar with Cheney from her employment at Vahlsing and at Potato Service. He considered her work satisfactory but her skills limited and, he testified, was initially seeking employees with greater promotion potential.'0 D. Additional Evidence Relating to Union Animus Respondent pointed out that in the course of staffing this plant, it hired some individuals who had been active in the Union. Thus, Lee DeLong and Bradford Henderson, who served on the union negotiating committee for the final contract and whose names appear as signatories there- to along with Tidd, Longley (Holmes), and Oakes, were hired. Henderson had also been vice president of the Union when that contract was signed; however, he left union office prior to his termination from Vahlsing be- cause of a dispute within the Local. Weldon Williams, who had served on the negotiating, safety, and grievance com- mittees and had been a steward, was hired by McCain Foods, Ltd., in New Brunswick, Canada. Others among those hired who had served on negotiating committees and as stewards were Richard Butler, Morris Estey, Elmer Wat- son, and Walter Ciesielski. When the Union handbilled Respondent's Washburn, Maine, plant, Personnel Manager Kennard received in- structions to talk to all of the employees, tell them of Re- spondent's wages and benefits as compared to other com- panies, and tell them that McCain was a nonorganized company and preferred to remain that way. Kennard sent each of the Washburn employees a letter which discussed the Union's card solicitation efforts and sought to discour- age card signing. In the course of interviewing job applicants, Ken- nard sometimes made notes. In regard to applicants Jones and McAnaney, Kennard noted that their present employ- ment was with nonunionized employers. On Grover Cropley's application, for a supervisory position, Kennard wrote that Cropley was not part of the bargaining unit. He noted, in regard to Lawrence Hlowlett. that Howlett was dissatisfied with the management where he was working and that Howlett did not like the union because the em- ployer had put it in without giving the employees a voice in the matter. Vera Driscoll credibly testified that, when she called MacDonald in mid-December to inquire about job open- ings, he asked her whether she had ever been in the Union while employed at Vahlsing. She told him that she had worked there prior to the advent of the Union. He had no job opening for her. When Roy Stevenson and Athill 10 Chenev was older than a;11 of Ithe Illluilcrnme l ld pac.Lkers whon Relpul-o denI hired. I o nims ohseivallion, .he Aio suffered fronm ai heaniriLg prT bhe i Grant applied, they were told by MacDonald that McCain had no union and would try to work without one, that they would handle their grievances with the Company. Mac- Donald subsequently offered Grant a job. MacDonald denied telling employees that he did not want a union at McCain Foods or that there would be no union there. He admitted telling applicants that McCain was a nonunion operation which provided benefits similar to those under a union contract. E. Additional Evidence Regarding Knowledge of Union A ctivities As previously noted. MacDonald, Downing, and Fitz- herbert had all worked in supervisory capacities for Vahl- sing during the Union's tenure as bargaining agent. Mac- Donald had been Vahlsing's office manager and, as such, was one of the recipients of correspondence from the Union, including correspondence which informed the em- ployer of the names of all union officers and stewards. MacDonald participated in the 1973 contract negotiations and, while he testified that he was not present during the 1975 negotiations, signed the contract dated March 1, 1975, on behalf of management. Fitzherbert was also a management signatory. Longley, Oakes, and Tidd were among those who executed the contract for the Union. While collective-bargaining representative, the Union maintained a file cabinet at the plant which contained its correspondence and other documents. Only the union offi- cers had keys to this cabinet. Longley examined the cabi- net before she was laid off by Vahlsing and, at the time she left, the cabinet still contained those documents and re- mained locked. Subsequent to McCain's acquisition of the plant, that file cabinet was removed from the plant and sent to the Vahlsing powerhouse. When Longley examined the cabinet in February 1977, she found it empty of ev- erything but a few odds and ends. No evidence was ad- duced establishing what happened to the contents. F. Analysis and Conclusions "The Board has never held that the National Labor Re- lations Act itself requires that an employer . . . who pur- chases the assets of a business be obligated to hire all of the employees of the predecessor . . . However, an employer who declines to hire employees solely because they are members of a union commits a §8(a)(3) unfair labor prac- tice." N.L.R.B. r. Burns International Security Services, Inc., et al., 406 U.S. 272, 280-281, fn. 5 (1972). The problem is to ascertain Respondent's true, underlying motive (N.L.R.B. v. Jones and Laugilin Steel Corp.. 301 U.S. 1, 45-46 (1937) ), and the burden of proving that an employer's hir- ing decisions were improperly motivated rests with the General Counsel. Western Tug and Barge Corporation, 207 NLRB 163 (1973). In assessing a respondent's motivation, the Board deems it appropriate to consider certain established factors: knowledge of union activities, animus toward such activi- ties, and the validity of the reasons asserted for the person- nel actions taken. See, for example, Publishers' Offset, Inc., 225 NLRB 1045 (1976): Jeffrev P. Jenks d.bh, a Jenks Car- 452 McCAIN FOODS, INC. tage Compan,, 219 NLRB 368 (1975). In the instant case, Respondent cannot credibly be heard to deny knowledge of the alleged discriminatees' union activities. T'he role of its present supervisory force in those activities is simply too substantial. Thus. I note that all correspondence from the Union came through Mac- Donald, and that MacDonald. Fitzherbert, and Downing (in varying degrees) all participated in negotiations, griev- ances, and other disputes with the employees in question. In the same vein, while the record is not heavv with evidence of animus. Respondent's interest in the union backgrounds of its employee applicants and its preference to operate without a union presence at the Easton plant is clear. The complaint alleged that Respondent violated Section 8(a)(1) of the Act when Jack Downing told an employee, Parker, that he had not been recommended for hire be- cause of his strong rInion support. I have credited Parker's testimony as to this evidence. Such a statement clearly in- terferes with, restrains, and coerces employees in the exer- cise of their statutory rights to join and support labor orga- nizations. Respondent has thereby violated Section 8(a)( 1 and I so find. The complaint further alleged. and I have found. that MacDonald asked applicant Vera Driscoll whether she had been a union member when employed by Vahlsing. No justification was offered for such an inquirN and, particu- larly in the context of personnel manager to job applicant, such a question tends to interfere with an employee's exer- cise of statutory rights. Accordingly, I find that by this inquiry, Respondent has further violated Section 8(a)( I) and evidenced its interest in the applicants' union activi- ties. There was no evidence indicating whether Kennard's no- tations concerning the union backgrounds or attitudes of some applicants resulted from his questions or from infor- mation volunteered by the applicants. However, the mere fact that such notations were made evidences Respondent's concern over such backgrounds, contrary to Respondent's claimed disinterest. Similarly, the instructions to Kennard vis-a-vis what should be told employees when the t[nion was handbilling the Washburn plant. and MacDonald's statements to some applicants that McCain had no union, would try to work without one, and that grievances swould be handled directly with the C'ompany. give further evi- dence of Respondent's hostility toward the representation of its employees by a labor organization. As the record contains evidence of Respondent's knowl- edge of the applicant's union activities and its hostilitv thereto, it is appropriate to consider the reasons it has as- signed for failing to hire the particular individuals. Reasons which are unconvincing or invalid will tend to support General ('ounsel's allegations of unlawful discriminatinon Paramount Metal & Finishing ( o.. Inc.. ned Pai- ilrllnt Plating Co., In ., 225 NLRB 464 ( 1970). Kenneth Tidd had been extrenimel active in the union activities at Vahlsing. He was also a highly experienced. skilled employee with a substantial employment history there. Yet his applications were ignored. his references left unchecked, and he was mislead about the hiring that was going on in the department w hicuh he had left onil a short while before. And, although Respondent claimed that it was particularly anxious to hire skilled employees, other employees with less experience in the refrigeration field were hired with either no explanation or, as in the case of Buckingham. with an explanation based upon highly spe- culative contingencies. Adrian Parker, while less active in the Union, had been involved in a significant event, the threat of a concerted work stoppage to force prompt payment of wages. More- over, as is evidenced by Downing's statement, he was thought to be a "strong union man." Parker was passed over for less experienced and, in some cases, untrained and unlicensed employees. His experience as a leadman was ignored. His references were allegedly unchecked, even though they were close at hand (Supervisors Downing and Fitzherbert). and even though Respondent claimed to have hired someone else based upon a strong recommendation from a nonsupervisory employee. Like Tidd. Carolyn Longley had been a long term Vahls- ing employee with varied work experience and had been verN active in union affairs. Respondent's asserted reason for not hiring her, that MacDonald believed she had prob- lems in transportation and with shift rotation, are inconsis- tent with what she told him in regard to these questions. They are also inconsistent with other personnel actions taken by Macl)onald: at least two employees were hired notwithstanding express problems with transportation and rotation. Further, MacDonald's additional suggestion that he considered the distance she lived from the plant to pose a potential problem in view of the severe winter weather is inconsistent with the hiring of a number of employees who lived in the same town as Longley or even further away. MacDonald claimed that he did not hire Stella Ireland and Brenda Allen because both were employed elsewhere and he understood or believed that they would have to give notice to their present employers. He could not, he testi- fied. assure anyone of a job after 2 weeks. Yet, for those hired, the work wsas steady until the end of the season. Moreoser, Respondent was not averse to hiring an appli- cant who had to give notice when it particularly desired that employee. Not all those so hired were truly skilled ertployees; Parad? was a forklift operator. Based upon the foregoing, noting the extent of their union activ ity. Respondent's knowledge of and animus to- ward that actlxits, particularly as evidenced by Downing's statement to Parker, and the unconvincing reasons Re- spondent has asserted for refusing to hire them, I must conclude that General Counsel has established that the re- fusals to hire Tidd, Parker, LongleN, Ireland, and Allen violated Section 8(a)(3) and (1) of the Act. But for that union activmit, I believe. they would have been hired. That other union members were hired does not preclude such a finding. "Obviousl. ain employer is not required to Irefuse to hire] all union activists before being found in violation of the Act. " Br,lrhil/l ( orarli.v, 210 NLRB 288, 296 ( 1974); .4,meirican ( ;rkctrim.s Corpor,larion, 233 NL.RB 1279 (1977). Few, if ans. other emplo) ees were as active as these. More- over, to refuse to hire anri former union members would simpls haic been too obvious. I reach. howkeser, a contrari conclusion as to ()akes and C(heney. Their union activities were of a lesser degree. and 453 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the reasons ascribed to the failure to hire them were not so patently invalid as to support a conclusion of discrimina- tory motivation. When Erma Oakes asked MacDonald for a job, she mentioned a limited and specific financial need. a trip she intended to take. From this, MacDonald assumed that she was seeking only temporary or part-time employment and he testified that he declined to hire her because of that assumption. His assumption, I find, was not unreasonable in light of what he was told. In light of MacDonald's re- peated assertions that he could not guarantee anyone more than a couple of days of employment, it would seem that any assumed time limitation on the duration of Oakes' em- ployment should not have been a detriment in his consider- ation of her application. However, the records of Respon- dent's hiring indicate that Respondent was seeking permanent employees. No temporary or part-time employ- ees were hired. Accordingly, I am unable to conclude that General Counsel has sustained her burden of proving that Respondent did not have, and apply, a valid reason for not hiring Erma Oakes. Similarly, I must conclude that the General Counsel has failed to establish that the refusal to hire Clara Cheney violated Section 8(a)(3). Cheney's applications for employ- ment were made when Respondent was initially staffing the plant and Respondent's contention that it was seeking employees of greater potential could not be said to be obvi- ously unreasonable or invalid, particularly at that time. The record does not contain evidence that others were treated differently than Cheney. I note, in this regard, that the hiring records establish no pattern or preference for those who filled early applications. In some cases, Respon- dent went back to applications filed some months before. In other cases, applicants were hired within days of their seeking employment notwithstanding that other acceptable applications were pending. CONCLUSIONS OF LAW 1. By telling a job applicant that he was unlikely to be hired because of his union membership and activities and by questioning a job applicant about her union member- ship and activities, Respondent has interfered with, re- strained, and coerced its employees in the exercise of rights guaranteed them under Section 7 of the Act, thereby vio- lating Section 8(a)(1) of the Act. 2. By refusing to hire Kenneth Tidd, Lewis Adrian Par- ker, Carolyn Longley, Stella Ireland, and Brenda Allen be- cause of their union membership and activities, Respon- dent has discriminated in regard to the hire and tenure of employment, in violation of Section 8(a)(3) and (1) of the Act. 3. The unfair labor practices enumerated above are un- fair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 4. Respondent has not engaged in any unfair labor prac- tices not specifically found herein. THE REMEDY As Respondent has been found to have engaged in un- fair labor practices, I shall recommend that it be required to take certain action, as set forth below, designed to effec- tuate the policies of the Act. As I have found that Respondent discriminatorily re- fused to hire Kenneth Tidd, Lewis Adrian Parker, Carolyn Longley, Stella Ireland, and Brenda Allen, I shall recom- mend that it be required to offer them immediate employ- ment to the positions for which they applied or, if such are not available, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges. It will be further recommended that Respondent be re- quired to make these employees whole for any loss of earn- ings suffered by reason of the refusal to hire them. All backpay is to be computed with interest in accordance with the formula in F W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977)." Since discriminatory refusals to hire, like discriminatory discharges, go "to the very heart" of the Act, I shall recom- mend that a broad order be entered herein. N.L.R.B. v. Entwistle Manufacturing Company, 120 F.2d 532, 536 (C.A. 4, 1941): Ann Lee Sportswear, Inc., 220 NLRB 982 (1975). Finally, the recommended Order will require Respon- dent to cease and desist from the unfair labor practices and to post a notice indicating compliance with these require- ments. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 12 The Respondent. McCain Foods, Inc., Easton, Maine, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Questioning applicants for employment about their union membership or activities and telling applicants for employment that they are unlikely to be hired because of their union membership or activities. (b) Refusing to hire applicants for employment because of their membership in, or activities on behalf of District 99, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the purposes of the Act: (a) Offer Kenneth Tidd, Lewis Adrian Parker, Carolyn Longley, Stella Ireland, and Brenda Allen immediate em- ployment in the positions for which they applied or, if no longer available, substantially equivalent positions, without loss of seniority or other rights and privileges, and make See, generally, Isis Plumbing & Heating Co. 138 NLRB 716 (1962) 12 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 byh the Board and become its findings. conclusions, and Order. and all objections thereto shall be deemed saived for all purposes 454 McCAIN FOODS, INC. them whole for any loss of earnings they may have suffered by reason of the discrimination against them. in accor- dance with the provisions of the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (c) Post at its plant at Easton, Maine, copies of the at- tached notice marked "Appendix." "3 Copies of this notice, on forms provided by the Regional Director for Region I, after being duly signed by Respondent's authorized repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by Respondent to in- sure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed inso- far as it alleges violations of the Act not specifically found herein. ~3 In the event that this Order is enforced bs a Judgment of the t nted States Court of Appeals. the words in the notice reading "Posted bs Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the Utnited States Court of Appeals Enforcing an Order of the National I.ahor Relations Board." that we violated the National Labor Relations Act and has ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or help a union To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all these things. Wv WILt Nor do anything that restrains or coerces employees with respect to these rights. More specifi- call): WF. Wul.t NOl refuse to hire applicants for employ- ment because of their membership in or activities on behalf of District No. 99, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization. WE WI.L NOT question applicants for employment about their union membership or activities. WE WiLL NOT tell applicants for employment that they are unlikely to be hired because of their union membership or activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights as set forth above. WE WIltt offer the following named persons employ- ment at the positions for which they applied, or sub- stantially equivalent positions, without prejudice to their seniority and other rights and privileges, and WE w'I L make them whole for any loss of earnings, with interest. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAI. LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had a chance to give evidence, the National Labor Relations Board has found Kenneth Tidd Lewis Adrian Parker Brenda Allen Carolyn Longley Stella Ireland M(CiN', FOODS. INC 455