D. H. Farms Co.

D. H. FARMS CO. 267 D. H. Farms Co. and United Dairy Workers, Local 83, Retail, Wholesale and Department Store Un- ion, AFL-CIO. Case 7-CA-8766 June 5, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On December 13, 1971, Trial Examiner John P. von Rohr issued the attached Decision in this proceeding. Thereafter, General Counsel and Charg- ing Party filed exceptions and supporting briefs, and the Respondent filed cross-exceptions and a brief in support of its exceptions and in objection to the exceptions of the General Counsel and Charging Party. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions only to the extent consistent with the following: On July 8, 1970, during the pendency of a petition in Case 7-RC-10064, the Respondent laid off a number of employees for economic reasons. Some were recalled shortly thereafter, but others have not been recalled. In his Decision and Direction of Election in that case, the Regional Director held, contrary to the Respondent's contention, that the layoffs were temporary in nature and that the laid-off employees were eligible to vote. In the ensuing election held on September 23, 1970, 10 votes were cast for the Union and 18 against; in addition, there were 20 challenged ballots, 19 having been challenged by the Respon- dent on the ground that they were cast by perma- nently laid-off employees. The Regional Director again held that the employees were temporarily laid off and therefore eligible to vote, and he directed that their ballots be opened and counted. When they were opened on February 26, 1971, the count reflected that 19 of the challenged ballots had been cast for the Union. Consequently, the Union was certified as the employees' bargaining representative. The Respon- dent contested the validity of this certification in another proceeding (192 NLRB No. 15) and the Board ordered the Respondent to bargain with the Union. A petition to enforce the Board's Order is pending in the Court of Appeals for the Sixth Circuit. Subsequent to the count of the challenged ballots and the Union's certification, the Respondent filled certain vacancies by hiring individuals other than those who had been laid off on July 8, 1970, without offering the positions to any of the laid-off employ- ees who had not yet been recalled. At issue in this case is whether the Respondent by this conduct violated Section 8(a)(1), (3), and (5) of the Act. The Trial Examiner concluded that no violation existed. For the reasons set forth hereinafter, we disagree. As found by the Trial Examiner, Respondent began operations in 1968, and the layoff of July 8, 1970, appears to be the first layoff of consequence experienced by the Respondent. Thereafter, with only three exceptions, all vacancies which arose between the date of the layoff and the date the challenged ballots were counted were filled by the recall of employees who had thus been laid off. These exceptions consisted of one employee who was on leave of absence on the date of the layoff, one who was placed on maternity leave on that date, and one who quit subsequent to the layoff and was thereafter rehired. Those laid-off employees who returned to work prior to January 1, 1971, were recalled as permanent employees with no loss of service or benefits; one who returned in January 1971 was hired as a new employee. There were no recalls or new hires by Respondent between the date the challenged ballots were counted and May 17, 1971. Between the latter date and the time of the hearing in this proceeding, the Respon- dent hired a number of employees for temporary employment, and two employees for apparently permanent employment. Four of these temporary hires had previously worked for the Respondent for varying periods between June 1968 and January 1970, and a fifth had worked for Respondent for an unspecified 2-year period. The others (four temporary and two permanent) had apparently never worked for the Respondent. None of these positions was offered to any of the laid-off employees although, as noted, a number of them had not yet been recalled. The General Counsel contends that the Respon- dent hired individuals other than the laid-off employ- ees to fill the foregoing positions to punish the laid- off employees for having voted for the Union, as revealed by the count of the challenged ballots on February 26, 1971, and that the Respondent thereby violated Section 8(a)(3) of the Act. The General Counsel further contends that by changing its policy from one of recalling laid-off employees with full seniority and benefits to one of rehiring them as new employees, and thereafter abandoning its policy of recalling employees in layoff status to fill available job vacancies, the Respondent has refused to bargain with the - Union in violation of Section 8(a)(5). Contrary to the Trial Examiner, we find merit in these contentions. 197 NLRB No. 47 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the alleged violation of Section 8(a)(3),, the record establishes that all employees either recalled or "newly hired" between the date of the July 8 layoff and the February 26 counting of the challenged ballots were active employees on the date of the layoff . The only exception was an employee who was on leave of absence on that date. On the other hand, none of the subsequent hires came from that group, although a number of employees in that group were still on layoff status. This obviously represents such a significant change in Respondent's hiring practices that we believe it is sufficient, when considered in conjunction with the result of counting the challenged ballots of the laid-off employees, to establish the General Counsel's prima facie case, even in the absence of other evidence of animus. We further find, contrary to the Trial Examiner, that the Respondent has failed to rebut this prima facie case. We find no merit in the Respondent's contention that the laid-off employees not recalled were perma- nently laid-off employees whom it was not obligated to recall . As noted above, the Board has found that as of the date of the election they were all temporarily laid-off employees , and the record herein establishes that until the end of 1970 the Respondent, in fact, treated them as temporarily laid-off employ- ees. While, of course, their status is not frozen for all time, the record herein fails to reflect any basis for concluding that their status changed on or about January 1, 1971, other than the Respondert's bare statement that about such time it decided to treat them as permanently laid-off employees, affirming, in effect, the position it had maintained in the representation proceeding since August 1970. More- over, assuming arguendo that their status did change from temporarily laid-off to permanently laid-off employees, this does not of itself explain why Respondent chose to hire others instead of them, even to the extent of affirmatively seeking out certain of the new employees whom it hired. Thus, in the absence of any credible evidence of legitimate business justification to sustain Respon- dent's actions, we find that the General Counsel has sustained its burden of establishing that Respondent discriminated against employees who voted for the Union by changing its hiring practice to prevent their reemployment. With respect to the allegation that Respondent unilaterally changed its policy of recalling laid-off employees, we disagree with the Trial Examiner's finding that no such policy existed . Based on the plant manager's testimony in the related representa- tion case and in the present case, we believe that Respondent did have a policy of recalling laid-off employees, a policy which was changed subsequent to the representation election. The change in policy was then implemented with the hiring of several employees who were not among the employees previously laid off. We also disagree with the Trial Examiner's conclusion that even if Respondent had unilaterally changed its policy, no useful purpose would be served by the issuance of a second bargaining order. In this case, the unilateral action of the Respondent is different in nature from the conduct covered in the prior order. Moreover, the unilateral action taken by Respondent has a tendency to undermine and disparage the Union in the eyes of the employees in the bargaining unit. It would, therefore, effectuate the policies of the Act to issue an additional order requiring Respondent to bargain with the Union. Accordingly, we find that Respondent violated Section 8(a)(1), (3), and (5) of the Act by refusing to recall certain laid-off employees and by unilaterally changing its recall policy. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. To remedy its refusal to bargain , we shall order that the Respondent cease and desist from refusing to bargain with the Union with respect to its policies in regard to the return of employees on layoff or unilaterally changing any term or condition of employment of its employees in the appropriate bargaining unit. We shall further order that the Respondent cease and desist from the practice of recalling employees other than those employees who were permanent employees and were laid off in July 1970, and that in event of future vacancies it will afford these employees preferential recall rights for those vacancies . We shall further order that those employees who would have been recalled shall be made whole for any loss of pay that they may have suffered, in the manner consistent with the Board's policies in F. W. Woolworth Company, 90 NLRB 289. Interest on backpay shall be computed as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. We shall not at this time attempt to determine which of the employees would have been recalled for summer employment had the Respondent continued its practice. We shall leave such matters to the compli- ance stage of the proceeding. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. D. H. FARMS CO. 269 3. All production and maintenance employees, including animal care employees employed by the Respondent at its plant, located at 2755 Tooley Road, Howell, Michigan, but excluding office cleri- cal employees and guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material, the Union has been the exclusive certified representative of the employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 5. By unilaterally changing its policy for the recall of employees for summer work, the Employer has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act.. 6. The Respondent, in failing to recall the employees who had been permanently laid off for summer work during the summer of 1971, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(1) and (3) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, D. H. Farms Co., Howell, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Union with respect to its recall policies for the return of laid-off employees. (b) Hiring employees for any position that may occur in its manufacturing operation from sources other than those employees on its payroll at the time of the July 1970 layoff. (c) In any like or related manner interfering with the rights of employees guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of, the' Act: (a) Bargain collectively with the Union before modifying or changing any wages, hours, or terms and conditions of employment in the appropriate unit described above. (b) Make the employees adversely affected by the unilateral changes whole for any loss of pay, and in the event of future vacancies, afford these employees preferential recall rights for those vacancies. (c) Notify each of the laid-off employees, if presently serving in the Armed Forces of the United States, of the right to preferential recall, , upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the universal Military Training; and Service ' Act. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its plant in Howell, Michigan, copies of the attached notice marked "Appendix." i Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by an official representative of the Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 1 In the event that the Board's 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 pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain with United Dairy Workers, Local 83, Retail, Wholesale and Department Store Union, AFL-CIO, by unilater- ally changing our policies as to the return of laid- off employees. WE WILL NOT make any changes in our policies to return laid-off employees without bargaining with the collective-bargaining representative of our employees. WE WILL make whole any of the laid-off employees who suffered any loss of earnings from our failure to recall them for summer employ- ment. WE WILL recall any laid-off employees for any 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vacancies unless such policies are changed as a result of negotiations with the collective-bargain- ing representative. WE WILL bargain collectively with the Union before modifying wages, hours, or any other terms or conditions of employment. The appro- priate unit is: All production and maintenance employees, including animal care employees employed by the Respondent at its plant located at 2755 Tooley Road, Howell, Michigan; but excluding all office clerical employees and guards and supervisors as defined in the Act. D. H. FARMS Co. (Employer) Dated By (Representative) (Title) We will notify immediately the laid-off employees, if presently serving in the Armed Forces of the United States, of the right to preferential recall, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal, Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN P. VON ROHR, Trial Examiner: Upon a charge and an amended charge filed on June 11, 1971, and July 13, 1971, respectively, the General Counsel of the National Labor Relations Board, for the Regional Director for Region 7 (Detroit, Michigan) issued a complaint on July 22, 1971, against D. H. Farms Co., herein called the Respondent or the Company, alleging that it had engaged in certain unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, herein called the Act. The Respondent filed an answer denying the commission of any unfair labor practices. Pursuant to notice a hearing was held before Trial Examiner John P. von Rohr in Detroit, Michigan, on September 30 and October 1, 1971. Briefs have been received from the Respondent and from the Charging Party on November 3, 1971, and they have been carefully considered.' Upon the entire record in this case and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Michigan corporation with its principal office and place of business in Howell, Michigan, where it is engaged in the manufacture, sale, and distribution of disc reagents and in the processing of animal blood solutions. During the last calendar year, the Respondent shipped products valued in excess of $50,000 to points and places located outside the State of Michigan. During the same period, it received goods and materials valued in excess of $50,000 from points and places located across state lines. The Respondent concedes, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Dairy Workers, Local 83, Retail, Wholesale and Department Store Union, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background,- The Issues Upon a petition filed under Section 9(c) of the Act, involving a production and maintenance unit of Respon- dent's employees, a hearing in Case 7-RC-10064 was held on August 3, 1970. The only issue raised was the eligibility of approximately 24 employees who were laid off on July 8, 1970. Although the Respondent contended that these employees were laid off without any reasonable expectancy of recall, the Regional Director concluded, in his Decision and Direction of Election of August 24, 1970, that the July 8, 1970, layoff was intended to be temporary in nature and that the employees laid off at that time had a reasonable expectation of recall within a reasonable time in the future. Pursuant to the said Decision, an election was conducted on September 23, 1970, the results of which reflected that of approximately 57 eligible voters, 10 cast votes for, and 18 against, the Union, with 20 challenged ballots. Nineteen of the challenged ballots were challenged by the Respon- dent on the ground that the employees in question were permanently laid off with no expectancy of recall. On October 9, 1970, the Regional Director issued a Supplemental Decision wherein, pursuant to reasons stated therein, he overruled the challenges to all 20 ballots and ordered that the ballots be opened. Following the Board's denial of Respondent's request for review, the challenged ballots were opened on February 26, 1971. The revised tally showed that 19 of the challenged ballots were for the Union. Accordingly, on March 5, 1971, the Union was I The Respondent's unopposed motion to correct the transcript is hereby granted D. H FARMS CO. 271 certified as the collective-bargaining representative of all employees in the following unit found to be appropriate. All production and maintenance employees, including animal care employees, employed by the Employer at its plant located at 2755 Torley Road, Howell, Michigan, but excluding all office clerical employees and guards and supervisors as defined in the Act. Seeking to test the Board certification before a United States circuit court of appeals, the Respondent admittedly declined to meet and bargain with the Union. Without detailing the procedural steps involved, suffice it to note that on July 9, 1971, the Board issued a Decision and Order (192 NLRB No. 15) wherein it found that by refusing to bargain with the Union on or about March 8, 1971, the Respondent violated Section 8(a)(5) and (1) of the Act. The complaint alleges, first, that since May 17, 1971, Respondent violated Section 8(a)(3) of the Act in that it refused to recall "certain of its temporarily laid off employees" because they voted for the Union in the above- mentioned election. It is secondly alleged that Respondent violated Section 8(a)(5) of the Act because it unilaterally changed its recall policies and practices which it imple- mented "in the hiring and employment of new employees on a full time basis without first recalling those unit employees who had been temporarily laid off and who were on the preferential recall list." B. The Alleged 8(a)(3) Violations Respondent's production employees are engaged in various phases of manufacturing impregnated paper sensitivity discs. This operation involves impregnating large sheets of paper with a chemical solution, cutting the paper to the size of very small round discs (less than 1/2 inch in circumference), printing the paper with appropriate dots, and placing the paper into transparent plastic magazines on punch presses. The final operation also involves the packing of weights, springs, and caps into the magazine, following which the magazine is sealed and labeled. While the entire operation may be difficult to visualize, suffice it to note that the record establishes, and I find, that the various operations performed by the production employees is of a relatively unskilled nature. In short, whether these operations be performed by hand or by machine, new employees can be trained to perform any of these operations in a matter of days, or at best, within a week or two. As Respondent states in its brief, because of the small size of the operation, there is considerable interchange of employees within the manufacturing proc- 2 In 1968 and 1969, Respondent's total payroll consisted of approximate- ly 35 and 45 employees, respectively These included approximately 16 production employees in 1968 and 26 in 1969 3 Although the evidence in the present case reflects that 42 employees were laid off at this time (G C Exh 8), 1 note that the Regional Director, in his Decision and Direction of Election dated August 24, 1970, found that 34 employees were laid off at this time . None of the parties attempted to reconcile this discrepancy in the instant hearing However, whatever the total number of employees laid off at this time, this is not a determinative factor to the issue herein 4 Concerning the layoff, Respondent adduced testimony in the instant case to the effect that in 1969 it hired a number of extra employees because ess. The print shop employees, for example, may be assigned to help manufacture and vice versa. In addition to the above manufacturing operations, Respondent also has a laboratory located in the rear of the plant. The lab operation involves injecting rabbits and other animals such as goats, sheep, and horses with solutions and then bleeding the animals. The employees engaged in this operation are classified as laboratory employees. Respondent also employs several maintenance employees to take care of the animals and to perform general out-of-doors farm work such as haying. Except for the rare occasion when a production employee may be called upon to lend some assistance in the laboratory, there is no interchange of employees between the laboratory and production operations. Respondent's plant was completed in 1968 and opera- tions began in about the middle or latter part of that year.2 On July 8, 1970, the Respondent laid off 34 or 42 production employees.3 Significantly, there is no evidence, either of a direct or background nature, which would warrant any inference that the layoff was prompted by anything other than lawful economic considerations.4 Approximately 15 of the employees laid off on July 8, 1970, were recalled within 2 weeks thereafter. Several others were recalled at later dates. In any event, at the time of the previously mentioned representation hearing, there remained 24 employees who had not been recalled. Although Respondent at this time asserted that these employees did not have any reasonable expectation of recall and therefore were ineligible to vote, the Regional Director found that the layoffs were intended to be temporary and that accordingly the employees in question were eligible to vote. As previously noted, 20 ballots were challenged at the election, 19 of these by Respondent. Pursuant to further order, the ballots were opened on February 26, 1971, at which time it was found that 19 of the 20 ballots were for the Union. Only one of these challenged voters (all these having been included in the July 8, 1970, layoff) having been recalled by Respondent after February 26, 1961, it appears that the remaining 18 employees are the subjects of the General Counsel's complaint as being the alleged discnminatees herein.5 Turning to the facts in this case, it should be preliminari- ly noted that Respondent now appears to concede that at the time of the July 8, 1970, layoff, Respondent contem- plated these layoffs to be of a temporary nature. Thus, in apparent acceptance of the testimony of two employees laid off at that time, 6 Respondent in its brief states as fact the following: "The laid off employees were initially told that the plant was closing down for a few days and the of a particular problem in production According to Respondent, the July 8, 1970, layoff was a result of a resolution of this production problem and also because of a catchup in its backlog of work 5 Contrary to the usual practice wherein the General Counsel's complaint properly specifies the names and numbers of employees alleged to be "8(a)3's", the complaint in this case simply alleges that since May 1971, Respondent unlawfully refused to recall "certain of its temporarily laid off employees" because they had voted for the Union in the election held on September 23, 1970 (Emphasis supplied) 6 Nancy King and Barbara Hardy, both of whom were called as General Counsel witnesses in the instant hearing 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company would let them know, or that the layoff would probably be for 3 or 4 days." Moreover, in this connection, Respondent's bnef further states: "Up until January 1, 1971, the Company recalled [certain of the laid off] employees with no loss of service or benefits. . . . In January, 1971, however the Company decided that if Mr. Savitskie were to call back any more laid off employees, it would be on the basis that they were new hires." To get to the crux of this case, it is undisputed that in the late spring of 1971 Respondent employed four girls to perform temporary summer work in the manufacturing operations. Each of these girls had been employed by Respondent in a similar capacity during the summer of 1969. It is the General Counsel's position that Respondent should have recalled four of the above-noted 18 employees who were still on layoff to these positions and that its failure to do so was premised on antiumon considerations, i.e., the fact that after the opening of the challenged ballots they were known by Respondent to have voted for the Union in the representation election. For the reasons noted below, I find that the preponderance of the evidence does not sustain this position. The employees who were hired and their tenure of service are as follows: Date of Date Name Hire Terminated Rebecca Liddell 5/17/71 8/18/71 Karen Davis 5/17/71 7/16/71 Grace Dunn 6/1/71 8/20/71 Barbara Scheuerman 6/1/71 8/20/71 With respect to the employment of these employees in 1969, their employment records reflect as follows: Karen Davis worked from June 2, 1969, to August, 1969, when she quit to go to college. Rebecca Liddell worked from June 18, 1969, to August 23, 1969, when she left to return to college. Grace Dunn was hired on June 18, 1968, and worked until August 22, 1969, at which time she quit to return to college. Barbara Scheuerman was hired in June 1969, with the understanding that she was to work for the summer. On September 24, 1969, she asked for full employment, was granted the same, and worked on a full-time basis until January 30, 1970, at which time she quit to go to college.? With respect to all the aforesaid employees, the record further reflects that they were told when first hired that they were being hired as temporary employees and that as such they would not receive the same fringe benefits as the r This much was stipulated to by the parties. Citing p. 207 of the transcript, Respondent states in its bnef that Scheuerman asked for full- time employment in September 1969 because her college plans had fallen through However, this reason does not appear either on the cited page nor, insofar as I can find, does it appear elsewhere in the transcript 8 Unrefuted testimony of Grace Stetler, Respondent's office manager Although somewhat ambiguous as to time, Stetler's testimony appears to reflect that these employees were advised of the temporary nature of their employment in 1971 as well as 1969. 9 As Respondent points out, in view of the layoff of employees on July 8, 1970, there obviously was no need for additional help in the summer of 1970 Seef n 4,infra is 1 do not regard the Respondent 's failure to bargain with the Union (as regular employees, such as health insurance, paid holidays, and paid vacations.8 As to the procuring of these employees to work in the summer of 1971, the testimony of Leonard J. Savitskie, the plant manager, and Grace Stetler, the office manager, reveals that Liddell and Davis were hired after they personally came to the plant to apply for work. Dunn and Scheuerman, whose applications were retained in the files, were hired after being called by Savitskie. Upon consideration of all the foregoing, I am convinced and find that a preponderance of the evidence does not sustain the allegation that Respondent violated Section 8(a)(3) and (1) of the Act by its hire of the four above- named employees for temporary positions in the summer months of 1971, rather than to fill these positions from the group of 19 regular employees who had not been recalled from the layoff which occurred on July 8, 1970. As indicated, the four girls hired for the 1971 summer months had all worked in previous summer months as temporary employees. All were college students or prospective college students and all were hired for the 1971 summer again on the basis that they would be temporary employees.9 Accordingly, and particularly in the absence of any showing whatsoever of union animus on behalf of the Respondent, I fail to see where General Counsel has proven discrimination against any of the group of 19 laid- off regular employees who were not engaged to fill these positions.10 Aside from the foregoing, it is noted that one Nancy Galarneau was hired to work for 1 week beginning on September 17, 1971. Garlarneau had previously worked for Respondent as a supervisory trainee. She had applied for a job about a month earlier and she was hired only to perform a particular job (involving certain impregnating of paper) for which she was qualified. Her employment was terminated on September 24, 1971. Not only does Respondent appear to have good reason for taking on Galarbeau at this time, but I fail to see where this isolated incident adds any merit to the General Counsel's case. Additionally, the record reveals that Respondent hired two individuals to work in the laboratory as temporary employees during the summer months of 1971.11 Since the group of 19 alleged discriminatees were not former laboratory employees, I find Respondent did not discrimi- nate against them by the hiring of these employees.12 Finally, there is some testimony about overtime work, as well as some vague testimony to the effect that Respondent no longer performs work that it previously performed. As noted in the preceding footnote, the General Counsel did not file a brief. And from his brief oral argument, I am not shown in the companion case) indicative of union animus. This is the only route it could take in the exercise of its lawful right to test the Board's certification. In the usual cases involving alleged discnmmatioi ., union animus is almost always demonstrated by some overt expression of hostility by an employer toward the union As indicated, there is a complete absence of any such union animus in the instant case. 11 These were Lisa Radebach and Mary Muncie , both of whom were employed from June 14, 1971, to August 27, 1971 12 The General Counsel did not file a bnef in this case. I have made the above findings in the event of any possible contention by him that the hiring of these employees (Galarneau, Radebach, and Muncie) is evidence of the discrimination alleged in para. 12 of the complaint. D. H. FARMS CO. 273 sure if he seriously contends that Respondent granted excessive overtime or that it deliberately contracted out work previously performed, all in order to avoid recalling the remaining group of 19 laid-off employees. However, assuming this to be a theory of the case, the evidence fails to support any such contention. As to overtime, Dorothy Keeley, a supervisor presently employed by Respondent and called as a General Counsel witness, testified merely that "last Saturday" all the employees worked overtime. On cross-examination, however, Keeley conceded that the plant was not working more overtime since the layoff than it had prior to the layoff.13 Concerning work no longer being performed, employee Barbara Mathews testified that the once-performed work of placing magazines into six packs is no longer being performed. When asked when this work ceased, Mathews merely responded, "I really cannot say for sure . Since the layoff." From this testimony, one might conclude that this could have well occurred prior to the opening of the challenged ballots, indeed, even prior to the Direction of Election. Obviously, therefore, I can draw rio inference that Respondent dropped this part of its operation (and there is no indication as to how much work this operation entailed) as part of a scheme to avoid recalling any of the 19 employees in question. Upon the entire record in this case, and for the reasons stated above, I find that a preponderance of the evidence does not establish that Respondent discnminated against the remaining group of laid-off employees in violation of Section 8(a)(3) and (1) of the Act, as alleged in the complaint. Accordingly, it is recommended that this allegation be dismissed. C. The Alleged 8(a)(5) Violation The complaint alleges, in essence, that Respondent refused to bargain with the Union concerning "changes in its existing seniority and preferential recall policies and practices, in the hiring and employment of new employees on a full time basis without first recalling those unit employees who had been previously temporarily laid off and who were on the preferential recall list." As is apparent, the above allegation pertains to the situation involving the remaining group of 19 employees who were not recalled after having been laid off on July 8, 1970, all of which has been discussed in the preceding section. With respect to this allegation, suffice it to say that inasmuch as the July 8 layoff was the first general layoff ever experienced by the Respondent, it is obvious that there can be no previously established policy concerning the recall of laid-off employees with which Respondent can be charged of having unilaterally changed. In any event, there is presently in effect a Board Order directing Respondent to bargain with the Union. Should this Order be enforced by a U. S. court of appeals, this Order would require Respondent to bargain over all matters encom- passed within the meaning of Section 9(a) of the Act. Accordingly, even if Respondent here engaged in any further violation of Section 8(a)(5) of the Act, no useful purpose would be served by the issuance of a second bargaining order. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, pursuant to Section 10(c) of the Act, and upon the entire record in this case, it is recommended that the complaint be dismissed in its entirety. 13 Keeley also testified that she asked Savitskie about getting more help this testimony was proferred by the General Counsel , it clearly adds nothing Savitskie replied, she said , that they had sufficient help to take care of the to the case work, but that he would procure additional help when needed Although