Enterplastics Industries, Inc.

742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Enterplastics Industries, Inc. and International Long- shoremen's and Warehousemen's Union, Local 6 and Anthony Currin, andWarehouse, Processing & Al- lied Workers, Local No. 6, International Long- shoremen's and Warehousemen's Union. Cases 20-CA-8634, 20-CA-8834, 20-CA-8842, and 20-RC-11332 May 5, 1975 - DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On June 25, 1974, Administrative Law Judge Earl- dean V. S. Robbins issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief. 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 brief and has decided to affirm the rulings, findings,' and conclusions' of the Administrative Law Judge and to adopt her recommended Order. Like the Administrative Law Judge, we find the evi- dence insufficient to establish that Currin was unlaw- fully discharged. Currin was hired July 26, 1973, as a probationary employee, and laid off on August 14 for business rea- sons. He appeared at the representation hearing on October 12 and 24, where he sat with the union repre- sentatives. On October 29, he was called back to work. He again attended the representation hearing on Octo- ber 31 at the side of the union representatives. On November 1, he was made a permanent employee, which entitled him to a raise in excess of 25 cents an hour. On November 2, he received notice that he was to be laid off temporarily on November 8, presumably for economic reasons. On November 5, he was ter- minated. These are the critical facts. If Respondent had any animosity against Currin for union reasons it would have had to stem from Currin's appearances at the representation hearing on the side of the Union be- I We hereby correct the inadvertent error in fn 8 of the Administrative Law Judge's Decision by changing "1973" to read "1972 " This error in no way affects the results in this case 2 Since the Adnumstrative Law Judge found that Respondent had coer- cively interrogated employees and unlawfully made promises of benefit to employees and required that Respondent cease and desist from such activi- ties, we find it unnecessary to consider the issues of whether Cid unlawfully interrogated employees; whether Turner or Ford unlawfully made promises of benefit, or whether Lee's remark "Why did you do Turner like that?" violated the Act since such a finding would not affect our Order tween October 12 and 31 or for some activity predating that. Yet, in the face of whatever activity Currin had engaged in to Respondent's knowledge, Respondent chose to recall this probationary employee who was on layoff and give him permanent status and a raise. This is not the action of an employer who was motivated to discharge Currin because of his prior demonstrated union adherence. And no intervening circumstance ap- pears between November 1, when Currin was given permanent status and a raise, and November 5, when he was discharged 'following plans to lay him off for business reasons, which might give rise to an inference of an unlawful motivation for the discharge.' Unable therefore, to find an unlawful motivation for the dis- charge, we are dismissing the complaint insofar as it alleges that the discharge violated the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Enterplastics Industries, Inc., San Fran- cisco, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order. MEMBER FANNING, dissenting in part: The Administrative Law Judge found that the Gen- eral Counsel failed to meet its burden of proving that Currin was discharged because of his union activities. I find, however, that sufficient evidence was presented to prove that the discharge was discriminatory. As stated by the Administrative Law Judge, the evi- dence adduced in support of the allegation of the dis- criminatory discharge is (1) Respondent's general anti- union campaign; (2) Turner's general threat on September 5 that employees would be laid off if they selected the Union as their collective-bargaining repre- sentative; (3) the August 31 interrogation of Currin by Turner as to his union sympathies; (4) Turner's telling Currin on August 31, "Don't you vote for the union and don't you tell nobody I told you that"; (5) Turner's September 7 threat to Currin, "Well, you know, we're all going to be out of jobs now"; (6) Currin's visible assistance given to counsel for the Union at the October hearings on the challenges herein; (7) Ward's October 29 remark to Currin, as he was making notes on infor- mation given by Ward, that he didn't have to tell the Union what she said. 3 The fact that Plant Manager Ward promised to "fix up the list" when complaints were made on September 24 because seniority had not been followed in the prior layoff is hardly a meaningful commitment or a signifi- cant circumstance attending the termination of Currm 217 NLRB No. 98 ENTERPLASTICS INDUSTRIES, INC. The Administrative Law Judge found that these facts were "certainly enough" to raise suspicions as to the discharge that Currin engaged in union activities of which Respondent had knowledge; that Respondent clearly suspected him of engaging in union activity at an even earlier date; that he was singled out and called into the office, asked to express an opinion as to Re- spondent's antiunion campaign material (found to be violative of Section 8(a)(1) of the Act); that he was again singled out as the recipient of Turner's threat that all employees would be laid off; and that the unex- plained November 5 termination appears "somewhat abrupt." Since Respondent's participation in the proceeding was limited to the filing of an answer to the con- solidated complaint and attempts to gain a continuance of the hearing in this matter, the General Counsel's evidence stands unrebutted . I find no evidence in the record of any reason why Currin was discharged other than the circumstantial evidence which I find sufficient to establish a prima facie case that the discharge was in violation of the Act . One can, of course, speculate, as the Administrative Law Judge has done, that Re- spondent had some adequate and nondiscriminatory reasons for "abruptly" changing Currin's employment status from an employee about to be laid off presuma- bly for economic reasons to a discharged employee. Respondent, however, introduced no such evidence, though it had the burden to do so, if it were to rebut the General Counsel's prima facie case.' Considering the fact that Currin was laid off permanently while other less senior employees were retained, in the light of Respondent's promise to Currin and other em- ployees that seniority would be followed in such mat- ters, and in the light of the evidence demonstrating Respondent's hostility to Currin's activities and its at- tempts to discourage and restrain such activities, I am satisfied that the evidence supports a finding , which I would make, that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Currin. 4 See, e.g, National Automobile and Casualty Insurance Co., 199 NLRB 91 (1972). DECISION STATEMENT OF THE CASE EARLDEAN V. S. ROBBINS, Administrative Law Judge: These consolidated cases were tried before me in San Francisco, California, on April 4, 1974.' The charge m Case ' Except for the filing of an answer to the consolidated complaint and attempts to gain a continuance of the hearing in this matter , Respondent did not participate in the proceedings herein At the outset of the hearing, Garry Mathiason, Esq., of the law firm of Littler, Mendelson and Fastiff of San 743 20-CA-8634 was filed by International Longshoremen's and Warehousemen's Union Local 6, herein called the Union, on October 1, 1973, and amended on February 21, 1974. The charge in Case 20-CA-8834 was filed by the Union on December 18, 1973 , and amended on January 15 , 1974, and February 21, 1974. The charge in Case 20-CA-8842 was filed by Anthony Currin, an individual, on December 19, 1973, and amended on February 26, 1974 . Copies of all charges and amended charges were timely served on Respondent. The consolidated complaint issued February 27, 1974, alleging that Respondent had violated Section 8(a)(1) and (3) of the National Labor Relations Act. The petition in Case 20-RC-11332 was filed by the Union on April 18, 1973. Pursuant to a stipulation for certification upon consent elec- tion approved on August 20, 1973 , an election by secret ballot was conducted on September 7, 1973, which resulted in 8 ballots for and 5 against the Union, with 12 challenged bal- lots. On March 27, 1974, the Regional Director determined that the challenged ballots of Edna Yvonne Hill, Florizel Sarmento,2 Aida (Dominguez) Yagin,2 Erlinda Cabanilla,2 Robin Caplan Kimeldorf,3 and Jesus Terrado raised sub- stantial and material issues of fact requiring hearing and ordered that Case 20-RC-11332 be consolidated for purposes of hearing with Cases 20-CA-8634, 20-.CA-8834, and 20-CA-8842. The basic issues in the unfair labor practice cases herein are (1) whether Hill, Cabanilla, Yagin, Sarmento, Terrado, and Silfa Maria Acedillo were terminated or "permanently laid off' because of union activities; (2) whether certain conduct of Respondent is violative of Section 8(a)(1) of the Act, and (3) whether Anthony Currin was discharged because he en- gaged in union activities . As to the representation matter, if the employees named above are found to have been ter- minated or permanently laid off because of union activities, that finding will be dispositive of the challenges to their bal- lots. If they are found not to have been discriminatorily ter- minated or laid off, the issue will be whether they were tem- porarily or permanently laid off. This latter is the sole issue as to the Robin Kimeldorf challenge. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the brief filed by the General Counsel, I make the following: Francisco, California, made a limited appearance on behalf of Respondent for the sole purpose of moving for a continuance of the hearing to allow Respondent an opportunity to prepare its defense. Said motion was denied, and counsel withdrew. Whereupon Respondent's plant manager made an appearance on behalf of Respondent, sat through the testimony of General Counsel's first witness but participated in no manner, and then physically withdrew from the hearing room ' Counsel for Respondent filed an interim appeal with the Board from my denial of the motion for continuance, which appeal was denied subsequent to the closing of the hearing Thereafter, upon a motion by counsel for Respondent, and for good cause shown, an order issued herein reopening the record in this matter and setting a further heanng. Counsel for General Counsel submitted a motion for special per- mission to appeal to the Board from said order . On May 6,1974, Respond- ent withdrew its motion to reopen the record, on May 7, 1974 , counsel for General Counsel withdrew his motion for special permission to appeal from said order, and on May 14, 1974, an order issued closing the record in this matter. 2 Name appears as corrected in the consolidated complaint and at the hearing. 3 Name appears as corrected at hearing 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I JURISDICTION Respondent is a California corporation with a place of business in San Francisco, California, where it is engaged in the manufacture and sale of plastic pens and plastic trays. During the year preceding the issuance of the complaint herein, Respondent, in the course and conduct of its business operations has sold and shipped products valued in excess of $50,000 directly to purchasers located outside the State of California. Upon the foregoing facts, which are admitted by Respond- ent, I find that Respondent is, and at all times material herein has been, an employer engaged in commerce and in opera- tions affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II LABOR ORGANIZATION- The complaint alleges, Respondent admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. 11 Supervisory Status of Sanders Ford and James Lee The complaint alleges, and Respondent denies,4 that at all times material Sanders Ford was plant manager and James Lee was foreman and that both of them were supervisors of Respondent within the meaning of Section 2(11) of the Act. The evidence shows that Sanders Ford was the plant manager immediately preceding Al Turner, an admitted supervisor. According to the uncontroverted testimony of Edna Hill, he was superior to Respondent 's other supervisory personnel. He was in complete charge of the shop and made the ultimate decisions as to what work would be done on a given day and he told employees what to do. He was also the person who laid off pen assembly employees on August 14, 1973.5 In these circumstances, I find that at the time of the incidents herein in which he was involved , Sanders Ford was a supervisor of Respondent within the meaning of Section 2(11) of the Act. Anthony Currin testified that after Al Turner was pro- moted to plant manager on or about August 17 , 1973, James Lee became his, foreman . Lee told employees what machines to use, what work to perform , when to take breaks, and when to return from breaks . • He was over the three to four em- ployees in the machine shop on that particular shift. He did the paper work for the shop , gave employees time off, and was the person who told Currin he was laid off. Accordingly, I find that he had the authority to responsibly direct employees and, at the time of the incidents herein in which he was 4 These supervisory allegations of the complaint are found in subpars. V(d) and (e). Respondent's answer admits, intera/ia, par IV (the allegation as to labor organization), and subpars V(a), (b), and (c) The answer denies, inter aka, subpars IV(d) and (e) Since par. IV was already admitted and there are no subpars IV(d) and (e), it is apparent that a typographical error occurred, Respondent having intended to deny subpars. V(d) and (e), I have so treated it General Counsel was put on notice at the hearing that I deemed the supervisory status of Ford and Lee to be denied and evidence was adduced in support of their alleged supervisory status All dates hereinafter are in 1973 unless otherwise stated involved, was a supervisor within the meaning of Section 2(11) of the Act. The Layoff of the Pen Assembly Employees and Related 8(a)(1) On August 1, the Union signed a request to proceed in- the representation matter herein. Thereafter in early August at the end of the shift, Plant Manager Sanders Ford called a meeting of all the employees in the pen assembly department. He said it was not true that when the new machines were received they would be fired. He said when the machinery arrived, the pen assembly employees would work in three shifts instead of two and there would be a smaller number of persons on each shift. He did not say whether the work force would be larger or smaller. He said some of the employees had been complaining about a lack of supplies, such as gloves and aprons, and that some employees wanted a dental plan. Ford said all of this would be taken care of. On August 14, Ford laid off all the employees in the pen assembly department because the supply of pen barrels had been exhausted.6 Ford said the barrels were on order and when they arrived, which would be in 2 or 3 days, the em- ployees would be called back to work. On August 20 or 21, while Kimeldorf was on layoff status, she was notified that the plant manager was having a meeting the next morning. The record is unclear as to all of the persons present but in response to an inquiry as to whether other employees from the pen department were present, Kimeldorf testified that Erlinda (Cabanilla) and Ida (proba- bly Aida Yagin) were there. Turner spoke to the employees. He said he was the new plant manager, that they were getting new equipment in, and that' when it was operative there would be three shifts and all of the employees would be called back to work. He further stated that there would be a new lunchroom, AM/FM radio, and a new medical and dental plan. Some of the employees who were then working a 37- 1/2-hour week wanted a 40-hour week. Turner said he could probably get that too. He said if the Union got in there would be certain job codes, that one would have to take a test in order to operate a machine or do, a certain job and if one couldn't pass the test, Respondent would have to get someone who could. On August 24 and 25, four of the pen assembly employees, including Hill, were called in to pack trays. Hill has not worked at Respondent's since August 25.' On Sep- tember 6, the day before the representation election herein, Hill was notified by letter that she was permanently laid off., There is no evidence in the record concerning the alleged termination or permanent layoff of Acedillo, Cabanilla, Ya- gin, Terrado, and Sarmento. It appears from General Coun- sel's brief that he is relying upon the following testimony of Edna Hill to establish these discharges. 6 This is from the testimony of Edna Hill and Robin Kuneldorf. Kimeldorf testified that she was told of her layoff by a Mr. Taylor whom she referred to as plant manager. Hill, however, testified that Ford was in charge of the shop and Taylor, who did the hiring , was in personnel. I credit Hill in this regard I There is no evidence in the record as to whether the other five employees named in par 7 of the consolidated complaint were ever recalled. 6 Hill had been employed by Respondent in the pen assembly department since November 1973. 11 ENTERPLASTICS INDUSTRIES,-INC. Q.^ And were you in temporary layoff status on that date? A. Well, that date I was-no, it was permanent. Q. I see. When did it become permanent? A. September 6. Q. The day preceding the election? A. Yes. Q. And you were informed? A, By letter, yes. Q. Did you, nevertheless, attempt to vote in the elec- tion on the 7th? A. I did. Q. And was your ballot accepted, or was it chal- lenged? A. It was challenged. Q. Fine. And did you have any personal knowledge of whether this occurred to any of the other ladies in the pen assembly department? A. Yes, I did have knowledge. Q. I see. And you were present when this occurred? A. I didn't hear you. Q. Never mind. Strike it. I find this testimony insufficient to establish that Cabanilla, Yagin, Sarmento, Terrado, and Acedillo were in fact ter- minated or permanently laid off. Accordingly, I conclude that General Counsel has failed to make a prima facie show- ing that they were discharged or permanently laid off on September 5, in violation of Section 8(a)(3) of the Act. As to the termination or permanent layoff of Edna Yvonne Hill, there is no evidence that she engaged in any union activity prior to her termination nor is there any evidence that Re- spondent knew or suspected she had engaged in such. It appears that General Counsel's theory is that all of the em- ployees in the pen assembly department were permanently laid off 1 or 2 days before the election in order to undermine the Union's support and affect the outcome of the election. That, however, is not the state of the record. The record shows one employee-Edna Hill-who was permanently laid off for some unspecified reason and no evidence that she engaged in any union activity. General Counsel has totally failed to meet his burden of proof. Accordingly, I conclude that the permanent layoff of Edna Yvonne Hill did not violate ,Section 8(a)(1) and (3) of the Act. Furthermore, since the consolidated complaint contains no allegations as to the above statements by Ford and Turner and in the absence of Respondent's participation in the hearing herein, it cannot be found that Respondent was put on notice or that the matter was fully litigated. Therefore, I make no findings as to these or other statements not alleged in the complaint. The Discharge of Anthony Currin, Threats, and Coercion Anthony J. Currin began his employment with Respond- ent on July 26, 1973. Shortly thereafter, he was laid off. On August 31, while he was in layoff status, Currin came in to Respondent's office to inquire as to when he would be re- called. He talked to Plant Manager Al Turner. Foreman Roy Freeman was also present for a portion of the conversation. Currin was given two letters. One, dated August 28 and signed by Al Turner, read: To: ANTHONY CURRIN 745 On Friday, September 7, 1973, you will make a very important decision regarding whether to be represented by a union or not. I feel it is my duty to give you some very frank financial information about Enterplastics which may help you make that decision. Unions are very good at making promises about what they will do for you. However, I am sure you recognize that these pro- mises are only as good as the company's ability to make them a reality. Our company has extreme financial prob- lems. In our financial report of July 31, 1973, we showed a loss of $300,000.00. Our current income is linked to contracts with the government which provide a fixed rate return, while our costs continue to increase. Also, the fact that we are working on government contracts makes it impossible for us to change our prices. Quite frankly, it is impossible for us to remain in business if our operating costs increase substantially. It has always been Enterplastics' philosophy to pay each of you the maximum the company can afford and still re- main competitive. Certainly, this policy will continue. Outside pressure from a union cannot create higher wages or benefits when a company doesn't have the ability to pay them. This pressure could very well, in my opinion, cause the company to close down since such demands could not be met. Another factor each of you should recognize is that a union brings expenses with it, such as possible arbitration and attorney's fees which, apart from compensation, could seriously injure the fi- nancial position of the company. Again, in my opinion, these financial pressures could make it difficult for us to stay in business. Please don't feel that the future of this company has no hope. We are working as hard as possible to make Enterplastics a success and hopefully, our financial posi- tion will improve in the future. At this time, we would expect that our employees will share in that growth as they have in the past. However, a union at this time, in my opinion, could increase operating costs, which could put the company out of business. ENTERPLASTICS' FUTURE IS YOUR FUTURE VOTE NOON SEPT. 7, 1973. The other, dated August 31 and signed by Respondent's president, Dr. Henry Lucas, Jr., read: To: All Employees I am sure most of you recognize the need for a minority owned and operated manufacturing company within the minority community which could provide jobs and better the lives of the members of the com- munity. For the past three years, we have directed our effort toward building and developing such a business. During this period, we have faced many problems and setback for various reasons. For the first time in the San Francisco area we have a chance to build a sizeable minority manufacturing company which could hire black, brown and yellow peo- 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pie, but once again, we are threatened with a possible setback. On September 7, 1973, you must decide whether En- terplastics is to become a union or non-union shop. We don't know anything about the racial policy of the ILWU Local 6, but I am sure most of you know the early history of trade unions in this country. There is no single institution in this country which has discriminated more against minorities than trade unions. Discrimination is the single most cause of the poor conditions of our communities and the problem we face in acquiring jobs. Re-evaluate your own personal experience as it relates to the white control society we live in and decide your vote on September 7, 1973. Turner asked Currin to read the letters. When he finished, -Turner asked Currin what he thought about it, to which Currin replied "Right on." Turner then said "Don't you vote for the Union, and don't you tell nobody I told you that." Another employee, Duckworth, came into the office. Turner gave Duckworth the same two letters to read and when Duckworth finished, Turner asked him "What do you think about these letters?" Duckworth said "I'm for whatever the majority wants." Turner said, "Well, how do you know the majority wants the Union?" Duckworth replied, "Well, you know, I'm for the majority, anyway. Whatever the majority wants is cool with me." Considering the context of the letters, the interrogation of Currin and Duckworth as to what they thought about the letters was designed to induce them to reveal their views regarding the Union. In this circumstance, and in view of Respondent's strong antiunion campaign, the fact that they were called into the office, that Turner was the plant manager, and in the context of Turner's statement to Currin that he was not to vote for the Union, I find that this interro- gation had a coercive effect upon these employees and was violative of Section 8(a)(1) of the Act. Spartus Corporation, 195 NLRB 134 (1972). On September 5, Respondent had a meeting of its first- and second-shift employees. Turner and Freeman were there throughout the meeting. Turner distributed to the employees some written questions and answers regarding the Union.' He then said he had been to the union hall, that there were over 200 people there, and there was no way Respondent's employees could get a job. At about that time, Dr. Lucas arrived. Turner said Dr. Lucas wanted to talk to them. Dr. Lucas said the Union never did anything for him, that he had been fighting for the black people and had been trying to get jobs. He also said he had a dental program for everybody and held up a sheet that had some information on it about a dental program. 10 Lucas said he had to go and turned the meeting over to Turner. Turner said, "I bet you if the Union comes 9 The questions and answers indicated Respondent's opposition to the Union. There are no allegations that this material was violative of Sec 8(a)(1) of the Act, and I make no findings in this regard. 10 No dental program was then in effect nor is there any evidence that the possibility of such a program had been announced prior to Respondent's preelection campaign. in, I bet you we all get laid off."- Turner also distributed to the employees some information on Respondent's financial status. Lucas' statement regarding a dental program was a clear promise of benefit. The evidence shows that_a dental program was not,mentioned by Respondent prior to August 1, when the Union signed the request to proceed in the representation matter herein. In these circumstances, and in view of Respon- dent's antiunion campaign, specifically the context of that particular meeting which was devoted solely to Respondent's antiunion propaganda, I find that Lucas' statement that he had a dental program for everyone constituted interference, restraint, and coercion in violation of Section 8(a)(1) of the Act. Mid-Ohio Automotive, Inc., 200 NLRB 680 (1972). I also find violative of Section 8(a)(1) of the Act Turner's statement "I bet you if the Union comes in, I bet you we all get laid off." Swift Produce, Inc., 203 NLRB 360 (1973). The election was held on September 7. On that same day after the close of the election, Foreman James Lee walked over to where Curnn was working and said, "Why did you do Turner like that?" Currin assuming that he was talking about the election, said, "You don't know how I voted." Turner came up at this time and said, "Well, you know, we're all going to be out of jobs now." Viewed in its entire context, including the ambiguity of the statement, I find the evidence insufficient to establish that Lee's question constitutes interference, restraint, or coercion. In-so finding, I note that Turner was not present during this exchange and I therefore do not consider his statement as part of the context. Therefore, notwithstanding Currin's as- sumption that Lee was referring to the election, I find nothing in the evidence to support this assumption. Furthermore, Turner's appearance and remarks effectively prevented any attempt Lee might have made to clarify his question so no inference can be drawn from the fact that Lee said nothing to negate Currin's expressed assumption that he was referring to the election or any inference that he was attempting to induce Currin to reveal how he voted in the election. Accord- ingly, I conclude that Lee's remark was not violative of Sec- tion 8(a)(1) of the Act. In view of the timing-minutes after the ballot count-the result of the election, eight for and five against the Union, and my finding that Turner had previously threatened that employees would be laid off because of their union activi- ties, I find that Turner's remark that "We're all going to be out of jobs now" constituted a threat of loss of employment because employees had shown a preference for union repre- sentation. Such statement is therefore violative of Section 8(a)(1) of the Act. ff On September 24,-Currin, along with employees Jordan and Roy Hirohama, went to the office of Plant Manager Roberta Ward" and asked why she was not laying off em- ployees in accordance with seniority. She said she planned to, that she was going to "fix up the list." Hearings were held on October 16 and 24 as to the chal- lenges in the representation matter herein. Currin, along with Hirohama and Jordan, sat with the Union and suggested " There was a quick succession of plant managers in August and Septem- ber. First Ford, then Turner, and finally Ward. Turner and Ward are admit- ted supervisors ENTERPLASTICS INDUSTRIES, INC. certain questions to be asked by the Union's counsel. On October 29, Currin was called back to work. On that day, Ward gave him some information about some materials. As she talked, Currin made notes as was his usual practice. Ward said to him, "You don't have to go back and tell the Union that.." Currin replied that he always kept notes. On October 31, another hearing on challenges was held . Again Currin sat with the Union and suggested questions to counsel. On November 1, Currin received notice of personnel action effective October 2612 that he had become a permanent em- ployee and received a raise in excess of 25 cents an hour. On November 2, Ward gave Currin a notice that he would be laid off as of November 8. On November 5, when Currin reported to work, Ward told him he was terminated and gave him a letter. There is no evidence in the record as to what reason he was given, if any, for his termination or as to the contents of the letter he was given at his termination. General Counsel contends that Currin was discharged be- cause of his union activities . In my opinion, General Counsel has not met his burden of proof in this regard . The evidence adduced in support of the allegation of discriminatory dis- charge is (1) Respondent's general antiunion campaign, (2) Turner's general threat on September 5 that employees would be ]laid off if they selected the Union as their collective-bar- gaining representative ; (3) the August 31 interrogation of Currin by Turner as to his union sympathies; (4) Turner telling Currin on August 31 "Don't you vote for the Union and don't you tell nobody I told you that." (5) Turner's September 7 threat to Currin, "Well, you know, we're all going to be out of jobs now." (6) Currin's visible assistance given to counsel for the Union at the October hearing on the challenges herein; (7) Ward's October 29 remark to Currin, as he was making notes on information given by Ward, that he didn't have to tell the Union what she said. This is cer- tainly enough to raise suspicions as to his discharge . Currin engaged in union activities of which Respondent had knowl- edge. Respondent clearly suspected him of engaging in union activity at an even earlier date. Thus he was singled out and called into the office and asked toy express an opinion as to Respondent's antiunion campaign material, an interrogation which I have found was designed to induce him to express his views on the Union and was violative of Section 8(a)(1) of the Act. He was again singled out as the recipient of Turner's threat that all employees would be laid off . There are, how- ever, flaws in General Counsel's case which I deem fatal. One, the animus directed at Currin and the general threat of layoff was made by Turner who was no longer plant manager when Currin was terminated. Two, there is absolutely no evidence in the record as to what reason, if any, Currin was given for his termination. The evidence does establish that he was given a letter of termination. This letter was not introduced into evidence. In these circumstances I am unwilling to infer that there existed no good reason for Currin 's discharge. I think' that in the absence of direct evidence of illegal motivation, it is incumbent upon General Counsel to either establish that Currin was given no reason for his termination or that the reason he was given was pretextual . This General Counsel has failed to do. Furthermore, the evidence tending to sup- 12 Respondent has a 90-day probationary period. 747 port illegal motivation is weakened , or possibly even negated, by the fact that the activity, knowledge, and animus all oc- curred prior to November 1, when Currin was notified that his status was changed from probationary employee to regu- lar employee and he received a raise in excess of 25 cents an hour. On November 2, he was notified that he would be laid off as of November 8. There is no contention that this tempo- rary layoff was illegally motivated. It is true that, in the circumstances, his unexplained November 5 termination ap- pears somewhat abrupt, but the state of the record does not permit this lack of explanation to be attributed to Respondent so no adverse inferences can be drawn therefrom. It would appear more likely, if Respondent was seeking an excuse to rid itself of Currin, that he would have been discharged prior to his conversion from a probationary employee. Permitting him to become a regular employee and to receive a raise does not appear to be the action of an employer determined to rid itself of an unwanted union adherent , and there is no evidence in the record of an intervening circumstance which would buttress General Counsel's contention of illegal motivation. In all of the circumstances, therefore, I fmd that the evidence is insufficient to establish that Currin was discharged in viola- tion of Section 8(a)(1) and (3) of the Act. The Change in Work Schedule An additional hearing on the challenges in the representa- tion matter herein was held on November 14. On November 15, the following notice dated November 15 and signed by Roberta Ward, plant manager, was distributed to all em- ployees: TO ALL EMPLOYEES BECAUSE AN EMPLOYEE STATED IN FRONT OF THE NATIONAL LABOR RELATIONS BOARD AND THE UNION YESTERDAY AT THE HEARING THAT IF YOU WORKED SATURDAY IT WOULD BE TIME AND ONE HALF, WE WILL NOT WORK SATURDAY WE WILL CLOSE ON THURSDAY MORNING AT 8 OOA M AND REOPEN ON FRIDAY MORNING AT 8.00A M YOUR CHECKS WILL STILL BE READY ON WEDNESDAY AT 1 OOA M I AM SORRY FOR THIS AS I THOUGHT EVERYONE WOULD ENJOY A FOUR DAY WEEKEND WITH THERE [SIC] FAMILY I ALSO THOUGHT THAT I WAS TRYING TO DO A FAVOR FOR THE EMPLOYEES AND GET A BETTER RELATIONSHIP BETWEEN MYSELF AND THE EM- PLOYEES BUT BECAUSE OF PAST DIFFERENCES I GUESS CERTAIN PEOPLE DO NOT BELIEVE THIS THIS WAS MY IDEA FULLY AND WHAT EVER I DECIDE ON THE FLOOR IS MY RESPONSIBILITY AND -NO ONE ELSES I WAS GOING TO TRY AND ARRANGE THE SAME SET UP FOR CHRISTMAS AND NEW YEARS BUT UNDER THE CIRCUMSTANCES THIS WILL NOT BE POSSIBLE I GUESS EVERYTHING I TRY WILL BE QUESTIONED, OR CHARGES FILED AGAINST THE COMPANY, SO I WILL NOT TRY ANY MORE WE WILL GO STRICTLY BY THE BOOK AND THE RULES ANYONE WHO DOES NOT WORK THE DAY BEFORE AND THE DAY AFTER A HOLIDAY WILL NOT BE PAID FOR THE HOLIDAY 13 '748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General'Counsel's theory is that by posting this bulletin which altered the employees' work schedule, Respondent at- tempted to retaliate against its employees for having engaged in the protected activity of mentioning their employment conditions at a Board hearing on challenges . In my opinion the statement "Because an employee stated in front of the National Labor Relations Board and the Union yesterday at the hearing that if you worked Saturday it would be time and one half, we will not work Saturday" is not by itself sufficient to establish illegal motivation for the change in schedule, and there is no evidence to place the bulletin in any context. There is no evidence or contention that Respondent had any general animus toward employees who testified at the hearing. There is no evidence as to whether employees normally worked on Saturdays or whether they were paid time and a half if they did work on Saturday, nor is there evidence that the sched- uled Saturday work could be considered as a benefit which the Respondent decided to withhold. The third paragraph appears to indicate some previous intention to give employees a 4-day weekend which would seem to be a benefit; however, working on Saturday would break up the weekend just as effectively as working on Friday would . In fact, any finding that this bulletin itself constituted interference, restraint, and coercion would have to rest in large part on speculation. Standing alone, the import of the bulletin would seem to be that Respondent had not planned to give employees premium pay for that Saturday's work and was unwilling to risk possi- ble repercussions from failure to do so. Under some circum- stances, this might be violative of the Act. Under others it would not. In these circumstances I find the evidence is insuf- ficient to establish that by posting these bulletins, Respondent changed the employees' work schedule in violation of Section 8(a)(1) of the Act. The Challenged Ballots In view of my finding that Hill, Cabanilla, Yagin, Sar- mento, and Terrado were not terminated or permanently laid off in violation of Section 8(a)(1) and (3) of the Act, the sole issue as to the challenges is whether the above-named em- ployees and Robin Caplan Kimeldorf were laid off tem- porarily or permanently. The critical question in this regard is whether these employees enjoyed a reasonable expectancy of recall as of September 7, the date of the election. It is well settled that this question depends on objective factors, such as the past experience of the employer, the employer's future plans, and the circumstances of the layoff, including what the employees were told as to the likelihood of recall. D. H. Farms Co., 206 NLRB 111 (1973). The evidence set forth above in section IV hereof shows that Hill, Cabanilla, Yagin, Sarmento, Terrado, and Kimel- dorf were laid off on August 14. All of them worked assem- bling plastic pens. The supply of pen barrels ran out on August 14. When it was ascertained that there were no pen barrels in supply, these employees were told that the barrels were on order and they would be-recalled as soon as the barrels arrived. These circumstances establish a clear expect- 13 The letter given to second-shift employees was identical except the time of closing and reopening reflected the second-shift hours and the last para- graph was not included ancy of recall. With the exception of Hill, no intervening circumstance occurred to negate this expectancy of recall as of the date of the election, which was only 3 weeks after the layoff. There were representations by Counsel both as to the subsequent status of Respondent's business and as to perma- nent layoffs subsequent to August 14; however, there is no evidence in support thereof. In these circumstances, I find that at the time of the election Cabanilla, Yagin, Sarmento, Terrado, and Kimeldorf were employees on temporary layoff who enjoyed a reasonable expectancy of recall. Accordingly, I recommend that the challenge to their ballots be overruled. On September 6, Edna Hill received a written notice that she was permanently laid off. There is no evidence, nor con- tention that as of September 6 and thereafter, she had any reasonable expectancy of recall. In these circumstances, and since I have found that her September 6 layoff was not viola- tive of the Act, I shall recommend that the challenge to her ballot be sustained. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employees about their union activities and sympathies, by threatening employees that union organization or representation would result in layoffs and/or discharges, and by promising employees economic benefits to induce them to withdraw, or withhold, their sup- port from the Union, Respondent has interfered with, re- strained, and coerced its employees in the exercise of their rights under Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 4. Respondent has not violated Section 8(a)(1) of the Act as alleged in subparagraphs VI(a), (b), (c), and (i) of the consolidated complaint herein or in any respect other than those specifically found. 5. Respondent has not violated Section 8(a)(1) and (3) of the Act as alleged in paragraph VII of the consolidated com- plaint herein. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that the Respondent be ordered to cease and desist therefrom and from infringing in any like or related manner upon its employees' Section 7 rights, and that it take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, conclu- sions of law and the entire record in this proceeding and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend the following: ENTERPLASTICS INDUSTRIES, INC. ORDER14 Respondent, Enterplastics Industries, Inc., its officers, agents, successors and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees about their union membership, sympathies and desires, threatening employees that union organization or representation will result in layoffs and/or discharges and promising employees dental programs or other economic benefits to induce them to withdraw, or withhold, their support from the Union. (b) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effec- tuate the policies of the Act. (a) Post at its plant in San Francisco, California, copies of the attached notice marked "Appendix."" Copies of the no- tice; on forms provided by the Regional Director for Region 20, after being duly signed by the Respondent's representa- tive, shall be posted by the Respondent immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. ][T IS FURTHER ORDERED that the complaint be dismissed in- sofar as it alleges violations of Section 8(a)(3) of the Act, and of ,Section 8(a)(1) of the Act other than as specifically found herein. l[T IS FURTHER ORDERED that Case 2 0-RC-l 1332 be re- manded to the Regional Director to open and count the ballots of Florizel Sarmento, Aida (Dominguez) Yagin, Er- linda Cabanilla, Robin Caplan Kimeldorf, and Jesus Terrado, 749 to issue a revised tally of ballots and to take such further action as then becomes appropriate. 14 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 herem 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. 15 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relation Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things. WE WILL NOT interrogate you concerning your union membership, sympathies, or desires. WE WILL NOT threaten to lay off or discharge you for engaging in union activities. WE WILL NOT promise you dental programs or other benefits to induce you to withhold, or withdraw, your support from the Union. WE WILL NOT do anything that interferes with, re- strains, or coerces employees with respect to these rights. ENTERPLASTICS INDUSTRIES, INC