Rice Growers Association of California

RICE GROWERS ASSOC OF CALIF Rice Growers Association of California and Interna- tional Longshoremen's and Warehousemen's Union, Local 17 Case 20-CA-10440 June 10, 1976 DECISION AND ORDER By MEMBERS JENKINS, PENELLO, AND WALTHER On March 9, 1976, Administrative Law Judge Roger B Holmes issued the attached Decision in this proceeding Thereafter, the Respondent filed excep- tions and a supporting brief The General Counsel filed a motion to strike the exceptions I and a brief supporting 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 Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Rice Growers Associa- tion of California, West Sacramento, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order i The General Counsel has moved to strike Respondent's exceptions for failure to comply with Sec 102 46(b) of the Board s Rules and Regulations, Series 8, as amended, because, inter aha, they fail to specifically set forth the questions of procedure, fact, law, or policy to which exceptions are taken and fail to notify the Board or the General Counsel as to which statements or findings are not supported by the record Sec 102 46(b) of the Board s Rules states that any exception which does not comply with the require- ments of that section "may be disregarded " Although Respondent's excep- tions do not fully comply with the requirements of the rule, we have decided not to disregard them as they sufficiently designate the portions of the Deci- sion Respondent claimed were erroneous Swain Manufacturing Company 201 NLRB 681 (1973) In our opinion, however, Respondent's exceptions are without merit DECISION STATEMENT OF THE CASE ROGER B HOLMES, Administrative Law Judge The charge in this case was filed on July 21, 1975, by Interna- tional Longshoremen's and Warehousemen's Union, Local 663 17, herein called the Union The complaint was issued on October 6, 1975, on behalf of the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director for Region 20 An amendment to the complaint was issued on December 4, 1975 The com- plaint, as amended, alleges that Rice Growers Association of California, herein called the Respondent, has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, herein called the Act Respondent filed answers to the complaint and to the amendment to the complaint and denied the commis- sion of the alleged unfair labor practices The hearing was held before me on January 22 through 26, 1976, at Sacramento, California Briefs were filed by the General Counsel and by the Respondent and have been duly considered Upon the entire record and based upon my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT I JURISDICTION Respondent is, and at all times material herein has been, a California corporation with its principal office and place of business located in West Sacramento, California, where it is engaged in the business of rice milling and marketing Respondent, during the past calendar year preceding the issuance of the complaint, in the course and conduct of its business operations, received gross revenues in excess of $500,000, and during the same period of time purchased and received goods and materials valued in excess of $50,000 directly from sources located outside the State of California In addition, during the same period, Respon- dent sold and shipped goods and materials valued in excess of $50,000 directly to purchasers located outside the State of California Upon these admitted facts, I find that Respondent has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED It is admitted that the Union is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Issues The principal issues raised by the pleadings are whether Respondent violated Section 8(a)(1) of the Act by threaten- ing its employees with termination if they at any time dis- cussed the Union on Respondent's premises, promising its employees a pay raise to induce them to reject the Union as their collective-bargaining agent, interrogating its em- ployees regarding their union activity and the union activi- ties and sympathies of the other employees, threatening employees that Respondent would close down its plant if 224 NLRB No 102 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they designated or selected the Union as their collective- bargaining representative, threatening employees that they would be laid off or terminated if they designated or select- ed the Union as their collective-bargaining representative, threatening employees that Respondent would install a timeclock and institute other more onerous working condi- tions if they designated or selected the Union as their collective-bargaining representative, and threatening employees that Respondent would subcontract out their work if they designated or selected the Union as their col- lective-bargaming representative Also in issue is whether Respondent reduced on or about June 20, 1975, its employees' working hours by eliminating their overtime work because of their membership in or sup- port for the Union in violation of Section 8(a)(1) and (3) of the Act General Counsel further contends that Respondent vio- lated Section 8(a)(1) and (3) of the Act by laying off on July 14, 1975, four employees-Paul Reynolds, Dan Chres- tensen, Gary Domenighim, and Dennis Farris-because of their union activities and then terminating the same four employees on or about July 29, 1975, because of their union activities The General Counsel further contends that Paul Reynolds and Dennis Farris, who had been re- hired by Respondent at another facility on October 3, 1975, were terminated a second time on October 6, 1975, because of their union activities Respondent denied that it had engaged in any unfair labor practices and affirmatively alleged as a defense that the four individuals in question were terminated as em- ployees of Respondent in connection with a reduction in the work force and that the four employees so terminated were chosen on the basis of their prior work performance Respondent contends that neither the reduction in force nor the selection of the four employees was motivated by, or tended to discriminate against, the alleged concerted ac- tivities of the four employees i Finally, there is an issue as to whether Jim Nabors, fore- man at Respondent's Williams, California, facility, is a su- pervisor within the meaning of the Act The General Coun- sel alleges that Nabors is a supervisor and the Respondent contends that he is not i At the hearing Respondent pointed to the fact that the charge did not specify the allegations of violations of Sec 8(a)(1) of the Act Counsel for the General Counsel responded that the charge did contain a general allega- tion that Respondent had violated Sec 8(a)(1) in addition to the specific allegation that Respondent had violated Sec 8(a)(3) by discharging the four named employees In Texas Industries Inc, 139 NLRB 365, 366-367 (1962), the Board held It is well established that a charge is not a pleading, but merely serves to initiate a Board investigation to determine whether a complaint shall be issued Subject only to the requirement that there must be some relationship between the allegations in the complaint and the language of the charge, it is the function of the complaint, and not the charge, to serve notice upon a respondent of the particular conduct alleged to be violative of the Act Where, as here , the charge alleges, in general lan- guage, that Section 8(a)(1), as well as 8(a)(3), have been violated, with- out particularizing the conduct alleged to be violative of Section 8(a)(1), the charge is sufficient to support the specific allegations in the complaint of Section 8(a)(1) conduct during the 6-month period pre- ceding the service of the original charge, and subsequent thereto We therefore find that the charge was adequate to support the entire com- plaint B Background Respondent is a cooperative composed of approximately 2,000 members Respondent has four rice mills in Califor- nia It also operates six facilities at the present time in Cali- fornia for the drying and storage of rice These drying and storage facilities are located at West Sacramento , Merritt Station, Woodland, Biggs, Westside, and Williams The Westside facility is located near Willows, California, and is made up of two separate warehouses which are about 100 yards from each other One is known as the Westside warehouse and the other as the Riz warehouse However, they are collectively referred to by the Company, the employees, and therefore herein-simply as the West- side facility Riz is the older of the two warehouses and was purchased by the Respondent in June 1973 Prior to that time Respondent had operated just the one Westside ware- house at that particular location Employees work inter- changeably between the Riz and Westside warehouses The Westside facility is about 100 miles from Respondent's principal office in West Sacramento, California The Wil- liams, California, facility is about 14 miles south of the Westside facility and about that much closer to the West Sacramento office The Westside facility and the Williams facility are the only two of Respondent's locations which are involved in the alleged unfair labor practices in this proceeding The employees at Respondent's West Sacramento and Merritt Station drying and storage facilities have been rep- resented by the Charging Party for a number of years The collective-bargaining relationship with the Charging Party at the West Sacramento facility goes back to sometime during the 1930's and at Merritt Station at least to 1954 Prior to the filing of the charge which gave rise to the pres- ent proceeding, the Charging Party had not previously filed unfair labor practice charges against the Respondent The employees at the Woodland and Biggs facilities are repre- sented by the Teamsters Union Thus, at the time of the NLRB-conducted election at the Westside facility on July 18, 1975, the Westside facility was the only drying and storage facility of Respondent whose employees were not represented by a union The Williams warehouse was still under construction at that time and did not begin opera- tions until the fall of 1975 At least up until the time of the hearing in this proceeding on January 22-26, 1976, the employees at the Williams facility have remained unrepre- sented Pursuant to a representation petition filed with the Board, an election was conducted on July 18, 1975, among the employees at the Westside facility and the Union won by a vote of 12 to 0 The Union was thereafter certified and the parties have a collective-bargaining agreement covering the employees at the Westside facility 2 2 The layoffs of the four employees on July 14, 1975, took place prior to the Board election and the subsequent certification of the Union Therefore, the layoffs also occurred prior to the time that the parties entered into a collective-bargaining agreement covering the employees at the Westside fa- cility This would explain why a Collyer issue has not been raised by the parties in this litigation Collyer Insulated Wire, 192 NLRB 837 ( 1971) In any event, at this stage of the proceedings it would not be appropriate initially to raise a Collyer issue MacDonald Engineering Co, 202 NLRB 748 (1973) RICE GROWERS ASSOC OF CALIF C The Alleged Violations of Section 8(a)(1) of the Act In early May 1975, Richard Padgett, a working foreman, and three other employees at the Westside facility, Glen Slye, Dick Carney, and Mike Inouye, spoke with a mill- wright union job steward at the north end of Respondent's Westside warehouse The union job steward was not from the Charging Party but was a representative of a union to which a millwright belonged The millwright, named Greg, also was not an employee of the Respondent, but he was working for a contractor on renovations at Respondent's Westside facility The employees talked with the union steward about the union, wages, and other matters, but the union steward told them that he could not do much for them The conversation did not last very long Westside Superintendent Bob Roberts and still another millwright named Leo came walking in The employees who were talking with the millwright union job steward then left Later that same day, as Padgett was walking out of the sample room office, Superintendent Roberts told him "if we're going to talk union on the plant we can get fired, we do it off the job, at our own convenience, at our home " 3 Padgett testified that the conversation with the union job steward occurred during working hours at the warehouse and acknowledged at the hearing that he had not asked the Company whether or not the employees could take time off to talk with the union steward Glen Slye also acknowl- edged that he had not asked the plant superintendent whether they could take time out to talk to the two mill- wrights Superintendent Roberts said that he did walk in on a meeting with the millwright and some other person but that nothing was said while he was there However, Roberts said that he "kind of had a suspicion" as to what the meeting was about Roberts thought that he told Pad- gett that discussing the Union with the men was not al- lowed during working hours while all the men were work- ing During this period the employees at the Westside facility had a morning break or rest period and an af- ternoon break or rest period in addition to a half-hour lunch period Sometime later in May 1975, Padgett had a conversation with James T Munson, manager of the agricultural depart- ment for Respondent, in the superintendent's office at the Westside facility Padgett said that Munson told him that everyone was going to receive a raise by the first of June, that it would not be a large raise like it was during the last harvest, but it would be a big raise Padgett asked Munson if he could tell everybody and Munson replied that by all means he could do so The last raise which Padgett had received was in Septem- ber or October 1974 and it was a raise of $1 25 an hour Munson testified that he did have a conversation with 3 Throughout this proceeding I have credited the testimony given by Richard Padgett based particularly on his demeanor while he testified Pad- gett is an impressive witness who testified candidly and in my opinion with- out regard as to whether his answers would help or hurt either side in the litigation At another point, he described himself as a "perfectionist and he did give the impression of being a person who was striving to be as accurate as possible in his testimony Where there are any conflicts with Padgett s testimony I find that Padgett s testimony is the more reliable and I have credited him fully 665 Padgett about wages, but Munson thought that it occurred sometime during June or July 1975 Munson related that he had gotten the employees a raise of $1 or something the previous fall of 1974 and that he told Padgett that it was his intention to take up again the matter of wages with man- agement prior to the harvest in 1975 At the hearing, Mun- son explained that his idea was to set up a review of the employees' wages similar to management's review of the administrative wages or salaries in the Association which review occurred around October 15 or shortly before Munson explained that since the employees were nonunion he was going to try to set up the same type of wage review which Munson said "hadn't been done before " 4 In the early part of June 1975, Padgett and employee Slye had another conversation with the millwright named Greg In that conversation, Padgett asked Greg if he knew how to get in touch with the union which represented the employees of Respondent at its West Sacramento facility Greg said that he had a friend which he could contact Obie Brandon, president of Local 17 of the Charging Party, testified that in early June he received a telephone call from a millwright named Greg who asked him if he would be interested in organizing the workers at the Westside fa- cility Brandon told him that he was interested and Greg said that he would arrange for a meeting Either on June 6 or June 13, 1975, Padgett had another conversation with Munson in Superintendent Roberts' of- fice with Roberts present Padgett stated that Munson told him that Munson had heard that the employees were talk- ing union Padgett replied that, if the employees were and if he knew who they were, Padgett would fire them At the hearing, Padgett explained that his purpose in making that statement was so that it would end the union talk with Munson Padgett said it did have that effect because Mun- son went on to talk about something else Padgett said that Munson told him that because of the cleanup which had been necessitated at the Riz warehouse General Manager Robert Freeland was coming down on him Munson said that if he got fired then Bob Roberts would get fired, and if Roberts got fired then the whole crew would get fired 5 Munson testified that he had heard that there had been some talking about unions, and since he seemed to be the last one to know anything about what was going on in the union matter he asked Padgett what was going on Munson said that Padgett told him if anyone started talking about unions Padgett would fire them A union organizational meeting was held on June 18, 1975, at Padgett's house Local Union President Brandon and Secretary-Treasurer Lupe Martinez attended, along Employee Dennis Farris related a conversation which he had overheard on December 24, 1974, at the Company's Christmas party According to Farris, Glen Slye and Manager Munson were talking about unions, and Slye told Munson that he had been in a union before in the Bay Area Munson responded that from time to time the Company gave raises There followed general discussion about a union which Farris did not specify This incident was not alleged in the complaint and is beyond the 10(b) period I find nothing unlawful or coercive in the Christmas party conversation 5 In agreement with the position taken in Respondent's brief, I believe it is clear that these latter remarks about General Manager Freeland coming down on Munson and the possibility of discharging the whole crew were related to the State of California embargo placed on certain rice at the Riz warehouse and the need to clean up that warehouse rather than union activities I find nothing unlawful in those comments 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with 11 of Respondent's employees At the meeting, the employees discussed with the union representatives various topics, including the matters of wages which the employees might receive, the union hiring hall arrangements, seniority and health and welfare provisions All 11 employees at- tending the meeting signed union cards at that time The following day, the Union's headquarters in San Francisco sent a mailgram to the Respondent with a copy to Brandon at Local 17 The mailgram stated Please be advised we represent a majority of your warehouse employees for purposes of collective bar- gaining[ ] May we hear from you at your earliest con- vience [sic] regarding negotiations on wages, hours and working conditions There is a dispute as to when the mailgram was received by Respondent This will be discussed later herein concern- ing the demal of overtime work at Westside from on and after June 20, 1975 Padgett has another conversation with Munson some- time between June 20 and July 2, 1975 The conversation took place at work Padgett said that Munson told him to make sure to look at what the employees were getting into-joining the Union-to watch out and to ask a lot of questions because the employees could get burned if they were not careful Munson told him that the Merritt Siding facility had gone union and that Munson punches the em- ployees in and out whenever he wants to, and "just shoves them down the road " Padgett said that Munson told him it was to Munson's benefit, that Munson was glad that they were going union, that there would be no more favoritism with the employees, that he would just punch them in and out whenever he pleased and shut down the plant Munson said that he had no objection to the Union coming in 6 At the hearing Munson explained why he felt it would be better for him personally to have a union Munson testi- fied Well, when you have a man working for you ev- eryplace-I mean-in an administrative capacity, we'll say, you are constantly involved with them per- sonally One of the fellows' wife is going to have a baby or something So you tend to keep-in the case of working men, you tend to keep some of them work- ing and this sort of thing You worry about them, what they do, this and that, and so forth As far as I'm concerned as a manager, the union's a better deal It's theirjob to look after them I mean, when I need them, we punch them in, when I don't need them, we punch them out From manage- ment standpoint, it's a much easier thing for the man- agement person, to have the union handle all these things And it makes it more impersonal, and easier, in my view, at any rate On July 2, 1975, there was still another conversation in- volving the Union among Padgett, Slye, and Munson This took place near the south pit at the Westside facility Pad- gett stated that Munson told him that if the employees do join the Union, Paul Reynolds, Dennis Farris, and Mike Inouye had more seniority than Padgett did and therefore if they went union, Padgett would be laid off before those employees would About that time employee Slye pulled up on the forklift Padgett said that Munson again stated that it was to Munson's benefit for them to go union because after the harvest was over Munson could just pull all of the cards, punch the employees out, send them all "down the road," and lay off the whole crew Then Munson turned to Slye and asked Slye what he was going to do when he was laid off Munson asked if he was going to Sacramento and punch in at the union hall Slye said yes, whereupon Mun- son said that there were a lot of people at the hall waiting for jobs Munson asked Slye if he was going to go down there every day Slye said no, that he would stay home and try to find work, that if he could not find work, he would go on unemployment and wait for the Company to hire him back based on his seniority Slye asked Munson how long he could keep rice in the plant Munson replied that he had seen rice set for as long as 3 years Munson further stated that it would be cheaper if the employees went union Munson said he could get a contracting crew out of Sacramento to come and clean up the plant and he would save money in the long run Slye's testimony is substantial- ly similar to that given by Padgett However, Slye says that it was in the July 15, 1975, conversation with Munson where Munson told him that the rice could remain in the warehouse for up to 3 years and that the Company could have contractors come in and perform work and thereby save money Munson acknowledged at the hearing that he did discuss his understanding of the seniority system which the Union had at other locations of the Respondent However, Mun- son said he did this because of Padgett's concern about the seniority system Munson also acknowledged that he talked with Padgett and perhaps Slye about the mainte- nance work that was performed at Respondent's facility Munson said that he endeavored to explain to them that they could not handle all of the maintenance jobs and that it was the Company's practice in all of its plants to call in independent contractors to do certain work Munson said that he told them that on many occasions he would call in an independent contractor who had the personnel, the ex- pertise, the rigging, and the equipment to do a specific job Sometime subsequent to the foregoing conversation, Padgett had still another conversation with Munson con- cerning the Union Padgett said that Munson told him that Munson had been talking with employees Hodges and Slye about the Union and that they were kind of against the Union at the time Padgett said that he told Munson that, as for himself, he was voting no On July 15, 1975, there was another conversation in the Riz warehouse among Munson and employees Slye and Hodges According to Slye, Munson told them that Mun- son knew that he was not supposed to say anything about the Union or talk to them about it, but Munson said he would like to say a few things anyway Munson told them 6 This is based on Padgett's credited testimony 7 1 have credited the testimony given by Padgett and Slye RICE GROWERS ASSOC OF CALIF that if the Union goes through seniority will prevail He also said that a timeclock would be installed which would make things "impersonal or impartial " Munson said that when things got a little slow, he could pull their cards in- stead of keeping a few of them on, he could just shut down the place and punch them out Slye said that he asked Munson how long he could keep rice in the warehouse, and Munson said that he had seen the rice setting in warehous- es for 2 or 3 years Munson went on to say that instead of paying the employees union wages he could have contrac- tors come in and save money and do the same job that the employees were doing Employee Hodges said that he was present on July 15, 1975, during a conversation between Munson and Slye Hodges said that Munson told them that he wanted to keep things on an "impersonal basis " Munson told him that the Merritt Siding location had been having problems and that he had laid off the whole crew at one time, had hired back three men, and that things were working out all right Hodges said that Munson indicated that the problem had been over seniority Then Munson said he could install a timeclock at Westside, and before work got slack he could punch the men out Hodges also stated that Munson told them that rather than pay union scale Munson could con- tract out some of the work that they were doing at that time and save money Padgett also testified with regard to statements by Mun- son about a timeclock Padgett did not specify the date, but from the context of his testimony it appears that it oc- curred during a conversation in which Munson once again told Padgett that Munson had no objection to the Union coming in Munson told him that a timeclock was being put in and that there were timeclocks at other warehouses of the Company and that this warehouse would be treated the same Manager Munson testified that he did have a conversa- tion about installing a timeclock He believed that the con- versation was with Padgett and possibly Slye and Hodges Munson said that he told them that the Company would be installing a timeclock which Munson said was a standard procedure for all of the Company's system Munson stated, "I said that when and if they decide to go with the Union, I would install the timeclock, which I did, and that you would punch in and out " In the period between mid-August and early September 1975, there was another conversation among Munson and several employees at the warehouse Slye related the con- versation and said that Munson told them that Munson was going to get a lawyer and that the employees should do the same He said if the four persons were reinstated, Mun- son would have to lay off by seniority Munson then looked directly at employee John Padgett and told him that, if the four persons were reinstated by seniority, then Munson would have to lay John Padgett off and that he would have to go A few months after the Board-conducted election on July 18, 1975, Richard Padgett had a conversation with Munson in which Munson told him that he could hire a person named Harry who had a truck and that Harry could clean the plants down a lot faster and a lot cheaper 667 In December 1975, Richard Padgett had another conver- sation with Munson at which several employees were pres- ent Padgett stated that Munson was reading the charges and that Munson said that he knew where the charges came from Munson said that there were only three people with whom he had talked about the Union and he knew all three of them D Analysis and Conclusion Regarding 8(a)(1) Allegations While the conversation among Padgett and other em- ployees and the millwright job steward apparently oc- curred during the employees' working time, the prohibition stated by Superintendent Roberts against talking about the Union was not limited to working time The prohibition was broader than just forbidding employees from talking about the Union while they were actually engaged in per- forming work at the warehouse Instead, it covered the en- tire time the employees were at the Employer's location This is made clear by the reference to union talk being forbidden at "the plant" and that it should be done "off the job, at our own convenience, at our home " 8 The pro- hibition was backed up by a threat of discharge as the penalty for talking about the Union on the job Since the employees had morning and afternoon break periods and lunch periods, there were times during the employees' workday at the warehouse that the employees were not actually engaged in the performance of their work tasks Thus, Superintendent Roberts' threat of discharge unduly restricted employees' rights under Section 7 of the Act to engage in union solicitation during their nonworking time at Respondent's premises, i e, when they are not engaged in the actual performance of their job duties Pepsi-Cola Bottling Co of Los Angeles, 211 NLRB 870 (1974) See also Essex International, Inc, 211 NLRB 749 (1974) In these circumstances, I find that Respondent violated Section 8(a)(1) of the Act when Superintendent Roberts threatened Padgett that employees could be fired for talking about the Union at the plant Soon after the employees' initial inter- est in union organizing began in May 1975, the employees were promised a wage increase Manager Munson told Padgett this in late May 1975 Padgett wanted to know whether he could tell the other employees about the raise and Munson told him that he could do so Munson ac- knowledged that he had discussed wages with Padgett al- though he believed that their conversation was sometime during June or July and he only spoke of taking up the matter in October with management Based upon the cred- ited version given by Padgett, I find that Respondent by Manager Munson did promise in May 1975 its employees a wage increase so as to induce the employees to cease their interest in union activities or selecting a union to represent them, and thereby violated Section 8(a)(1) of the Act Granting such a wage increase at that time would have s As indicated earlier, I have credited the testimony of Richard Padgett throughout this proceeding I also find credible the testimony of Glen Slye Bill Hodges, and Dennis Farris and have credited their testimony in this case also based upon their demeanor 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been a departure from Respondent's past practice of giving a wage increase in October Manager Munson candidly stated that he had heard that there had been some talking about unions and, since he seemed to be the last one to learn about what was going on in the union matter, he asked Padgett what was going on This inquiry led Padgett to state that if the employees were talking about a union and he knew who they were he would fire them It is noteworthy that Respondent made no comment indicating disapproval of such a policy It is also noteworthy that later on Respondent changed Padgett's job duties so that he could circulate throughout the warehouse rather than be tied down to one particular job In the context of the numerous other unfair labor prac- tices violative of Section 8(a)(1) and (3) of the Act and interference with employees' rights which occurred in May, June, and July, during the period of the Union's organizing activities and representation election, I find this interroga- tion not to be a mere isolated and innocuous inquiry, but to be a violation of Section 8(a)(l) in these particular cir- cumstances Furthermore, it makes no difference whether Padgett himself felt coerced In N L R B v Illinois Tool Works, 153 F 2d 811 (C A 7, 1946), the court said In answer to these contentions it will be enough to say that this court has recognized that the test of inter- ference, restraint and coercion under § 8(1) of the Act does not turn on the employer's motive or on whether the coercion succeeded or failed The test is whether the employer engaged in conduct which, it may rea- sonably be said, tends to interfere with the free exer- cise of employee rights under the Act [Citations omit- ted ] With regard to the credited statements attributed to Manager Munson to install a timeclock at the Westside facility, to punch employees in and out, to lay them off from work, to terminate them, to subcontract out their work, and to close down the plant, all of these are coercive threats of the consequences of employees selecting a union to represent them These were changes from the way Re- spondent had operated at the Westside facility in the past, which would all become true if the employees selected the Union Contrary to Respondent's position set forth in its brief, I find that these were threats of reprisal and, there- fore, not privileged by Section 8(c) of the Act While the employer had timeclocks in its other plants where employees were already represented by a union, the installation of a new timeclock at Westside was used as a threat of more onerous working conditions if the Westside employees also voted for a union It is significant that the employer did not say that it was going to install a time- clock at Westside for any valid business or economic rea- son It was going to install the timeclock only because the employees selected a union It was the selection of a union which would cause the new timeclock to be installed at Westside Also, the selection of a union would bring about the new policy of punching employees in and out and lay- ing them off on a more strict basis The message conveyed in all of the threats was that em- ployees would lose their present advantages and would be dealt with more strictly by Respondent-not for any valid economic reason, but simply because the employees chose a union to represent them Respondent's tolerance or le- niency of the past was going to be over if the employees went union Respondent had subcontracted certain work in the past and again had done so in 1975 for the renovation and in- stallation work that was done at Westside In its brief Re- spondent urges that Munson was simply making state- ments of fact based on his experience However, the threat to subcontract work was not limited to that type, but in- stead the threat was to subcontract the work which the Westside employees were performing Employees were told by Respondent that it could subcontract their work and get it done cheaper if they selected a union When viewed in this context, it is clear that Respondent was not talking about the type of work which had normally been subcon- tracted to others in the past, but instead Respondent was talking about the work then being performed by the West- side employees In view of the foregoing and based on the credited testi- mony, I further find that Respondent by Manager Munson threatened employees that employees would be laid off from work, terminated, the plant closed, timeclocks in- stalled, and more onerous working conditions instituted, and that work performed by the employees would be sub- contracted if the employees designated or selected the Union as their collective-bargaining representative and thereby violated Section 8(a)(1) of the Act I am not un- mindful of Manager Munson's personal view that it would be easier for him as an administrator to deal with employ- ees covered by a union contract rather than employees who are unrepresented Nevertheless, whatever his personal feelings were, the statements made threatened adverse con- sequences to employees based plainly on the selection of a union to represent them E The Denial of Overtime Work On Friday, June 20, 1975, Respondent abruptly ended overtime work for employees at the Westside facility Su- perintendent Roberts announced that there would be no more overtime The company records disclose that most of the Westside employees had been regularly working some overtime hours in varying amounts up to that point in time The company records also show that after about a 5-week hia- tus overtime work was resumed for some employees at Westside during the last week of July for the payroll period which ended on August 1, 1975 Thereafter, overtime work continued at Westside for certain employees in varying amounts throughout August and for most employees through the fall months during the rice harvest period For example, after the resumption of overtime at Westside dur- ing the payroll period ending August 1, 1975, a total of four employees worked overtime for a total of 38 overtime hours The records show the following for August 1975 and into the beginning of the rice harvest RICE GROWERS ASSOC OF CALIF Payroll period endinao No. Employees Working Overtime Total No. Overtime Hours 8/1/75 4 38 8/7/75 4 57 8/15/75 4 32 8/22/75 7 80-1/2 8/29/75 7 106 9/5/75 7 14 9/13/75 2/ 11 406-1/4 9/20/75 21 654-1/2 The first load of rice arrived at the Westside facility on September 7, 1975, and thus the busy harvest period con- tinued thereafter through November However, for the 5-week period from June 20, 1975, until the last week of July 1975, Respondent did not grant over- time work to its Westside employees Looking back to 1974, the company records reveal that a total of seven Westside employees regularly worked overtime during the comparable time period in the previous year from June 21, 1974, through August 2, 1974 The company records show Payroll period ending No. Employees Working Overtime Total No. Overtime Hours 6/21/74 7 70 6/28/74 7 69 7/5/74 7 50 7/12/74 7 67-1/2 7/19/74 7 70 7/26/74 7 82 8/2/74 7 79 Thus, in a comparable time period in 1974 , there was overtime work on a regular weekly basis at Westside in various amounts for seven employees each week Padgett said that Superintendent Roberts had just hand- ed out the paychecks at the end of the day when he turned back and said that there would be "no more overtime, from 8 00 in the morning till 4 30 p m from now on " Padgett said that Roberts announced this on the same day that Roberts had opened a letter with Obie Brandon's name on it This was the mailgram referred to earlier in this Deci- sion which had been sent from the Charging Party's office in San Francisco, but which bore the name of "Obie Bran- don, President ILWU Local 17 " ' The payroll period ending date was changed from Fridays to Saturdays at that time The "Code to Pay Records' attached to Respondent's 1975 pay records is inaccurate with regard to pay periods 311-314 Pay period 311 ended on September 13, pay period 312 ended on September 20, and pay period 313 ended on September 27, 1975 There was no pay period 314 according to the pay records themselves 669 Padgett placed the occurrence of this event as a day or two after the union meeting on June 18, 1975, at his house and a day or two after Virgil Foster was hired Company personnel records show June 18, 1975, as the day that Vir- gil Foster started work at the Company Employee Bill Hodges also testified that Superintendent Roberts an- nounced that there would be no more overtime after Rob- erts had passed out the paychecks on June 20, 1975 Ii Superintendent Roberts testified that he stopped over- time work on June 20, 1975, because "every morning when I drove up to the plant at 8 00, they were all coming out of the coffee room So, I dust took the overtime away " Rob- erts claimed that he had spoken to Padgett earlier about the employees drinking coffee in the morning instead of soaking seed He said the employees improved for awhile and then got slack again There is a dispute as to when the Union's mailgram was received Padgett testified that the mailgram was received by Superintendent Roberts on the same day that he told the employees that there would be no more overtime Su- perintendent Roberts was not certain of the date or even the day of the week on which the letter was received by him, but he felt sure that he had telephoned Munson on the same day that he received the mailgram Both Manager Munson and Secretary-Treasurer Roger Stratton testified that they were notified of the Union's mailgram on Mon- day, June 23, 1975, since they were attending a golf tourna- ment on Friday, June 20, 1975 At the trial Roberts acknowledged that he had previous- ly given an affidavit to a Board agent in which Roberts had said that he thought that he had received the Union's letter prior to the time that he announced that there would be no more overtime F Analysis and Conclusion Regarding Denial of Overtime Work Based on the credited testimony of Padgett, I find that Superintendent Roberts told the employees that there would be no more overtime work on the same day that Roberts received the Union's mailgram claiming that it represented a majority of the Westside employees While Munson and Stratton apparently did not learn of the Union's letter until the following Monday, they did not make the decision to cease overtime work at Westside It was Roberts' decision to do so It is significant that Roberts did not assert that there was a lack of work to warrant a reduction in overtime He did not claim that he eliminated overtime work at Westside because there was not that much work to do He based his decision solely on the employees' alleged drinking of coffee "every morning " While the seed cleaning and seed soaking tasks had been completed by that time and the additional work caused by the state embargo at the Riz warehouse had been done, Roberts made no claim of lack of work on or after June 20, 1975 The company payroll records for 1974 indicated that during a comparable time period in 1974 overtime work was regularly performed by seven em- ployees at Westside 10 As previously indicated, I have credited the testimony of Padgett and Hodges 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I do not credit Roberts' claim that he ended the overtime work because of coffee drinking which had been going on for some unspecified time Instead, I conclude that the Union's claim of majority status was received by Roberts on June 20, 1975, and later on that same day he abruptly canceled overtime work because of the employees' union activities The Board-conducted election was held on Friday, July 18, 1975, and the Union won the election Within 10 days to 2 weeks later, Respondent resumed giving overtime work to its Westside employees However, for the period of time from the receipt of the Union's claim of majority sta- tus on June 20, 1975, until about 10 days to 2 weeks after the Union's election victory, Respondent denied overtime work to its Westside employees I find that Respondent violated Section 8(a)(1) and (3) of the Act by reducing its employees' working hours by denying them overtime work from about June 20, 1975, because of their union activities G The Alleged Discriminatory Terminations 1 Paul Reynolds Reynolds worked for the Respondent from August 1972 until July 14, 1975, when he was laid off from work at the Westside facility Dennis Farris, Gary Domenighini, and Dan Chrestensen were also laid off at the same time Reyn- olds and Farris were later rehired by the Respondent on October 3, 1975, at its Williams, California, facility They worked there for 3 days until they were terminated a sec- ond time by Respondent on October 6, 1975 Reynolds performed several different duties at the West- side warehouse during his employment, but one of his du- ties was to operate a machine known as a scalper The green rice runs through the scalper when it comes into the warehouse and before the rice goes into the bins His per- formance in operating the scalper in the fall of 1974 is an issue here Reynolds attended the employees' union meeting at Padgett's house on June 18, 1975 He said that Padgett had approached him at work either the day before or the morn- ing of the meeting and asked him if he would attend Reyn- olds signed a union card along with all the other 11 em- ployees who were present at the meeting In addition to attending the meeting, Reynolds said that he occasionally discussed the Union at the warehouse with other employ- ees with whom he was working, but there would be just a word or two or three said on those occasions About 4 30 on the afternoon of July 14, 1975, Reynolds went to the room where the employees kept their lunch buckets He noticed that a sign was posted on the outside of the door, so he stopped to read it The sign was a notice about the NLRB election which was scheduled to be con- ducted on Friday of that week He picked up his lunch bucket and then went outside the room where he was talk- ing with some other persons Dick Padgett came out and said to Reynolds, "Here's your check You're laid off " Reynolds asked him why and Padgett replied that he did not know why and that they had not told him While Padgett informed Reynolds and the other three employees who were laid off on July 14, 1975, of their layoff by the company, it is clear that Padgett did not make the decision to lay off these four employees Instead, Pad- gett was carrying out the instructions which he had been given by Jim Munson, manager of the argicultural depart- ment The previous Friday, July 10, Munson had told Pad- gett that Reynolds, Farris, Chrestensen, and Domenighim were going to be laid off after the cleanup was done Pad- gett said that he did not bother to worry about it because they never finish cleaning up since it is a task that goes on and on However, the following Monday Padgett was called into Superintendent Roberts' office, where Roberts and Munson were present Padgett said that Munson handed him four checks and told him that these four men were laid off, but for Padgett to tell the employees that they could come back to vote Padgett said, "I probably looked goofy to them, because I just stood there with my mouth open " He said that neither Munson nor Roberts asked for his opinion Padgett then left the office and went out and gave the checks to the four employees and advised them that they were laid off When he was asked the reason for the layoff by one of the employees, he told him that he did not know Reynolds had never been laid off previously by the Company Reynolds said that there was cleanup work and maintenance work which remained to be done at the time that he was laid off He said the work being done by the millwrights in putting in new dryers, replacing augers, and putting new buckets on the elevators had created quite a mess in the warehouse which needed cleaning up On the day following the layoff of the four employees, Obie Brandon, president of the Charging Party, telephoned Robert Freeland, general manager of the Respondent, con- cerning the layoffs it Brandon asked whether the four em- ployees who had been laid off on July 14 would be eligible to vote in the election to be held on July 18 Freeland told Brandon that there would be no opposition to their voting, that the employees were laid off, and that they would be eligible to vote Brandon asked Freeland what the reason was for the layoff and Freeland said it was a lack of work Freeland was scheduled to go on a 3-week vacation at that time so he advised Brandon to communicate further with Roger Stratton, secretary-treasurer of the Respondent On Thursday, July 17, 1975, Brandon telephoned Strat- ton and asked him if the four employees who had been laid off were going to be eligible to vote in the election Stratton said that they were Brandon then asked Stratton for the reasons for the layoff and Stratton said that they did not have a contract there and therefore the seniority clause did not apply Stratton said that he would hire, fire, or lay off anyone that he felt like On July 21, 1975, Brandon again telephoned Stratton and told him that he had heard that they were going to hire some new employees Therefore, Brandon asked if Stratton was going to give the four employees who were laid off an opportunity to be reinstated He said that Stratton told him that Stratton would have to talk to Jim Munson On July 29, 1975, Brandon and Stratton had still another conversa- tion by telephone in which Stratton told Brandon that the employees were "undesirable" and that they were not per- 11 Freeland did not testify at the hearing I credit the testimony given by Brandon regarding this and subsequent conversations RICE GROWERS ASSOC OF CALIF forming their work as required Brandon asked Stratton for a letter from him to this effect and Stratton said that Mun- son had some documents concerning the reasons for the layoff Brandon also requested that the documents be sent to him Stratton said he would do so However, upon ad- vice of counsel, Stratton did not prepare such a letter for Brandon nor did he send any documents to Brandon Stratton testified that he did speak with Brandon on sev- eral different occasions concerning the laid-off employees, but he said he described the employees as being "incompe- tent" rather than "undesirable " Stratton said that there was some confusion as to the use of the term "layoff" ver- sus "termination" and that regardless of the terminology which he used the intent by Munson had been that the four, employees would not be rehired "and to me that is a termi- nation " There were apparently subsequent discussions re- garding the status of the four employees among the parties Respondent took the position that these were in the nature of settlement negotiations rather than contract negotia- tions In any event, a motion to strike the testimony re- garding the subsequent discussions was granted at the hearing and that testimony has therefore not been consid- ered Subsequently, Dennis Farris, who had been laid off on July 14, 1975, at the Westside facility, called Reynolds and asked Reynolds if he wanted to go down to Respondent's Williams, California, plant since he had heard they were getting ready to hire employees About the first of October 1975, they went to the Williams plant and spoke with Su- perintendent Ron Bayne They introduced themselves to Bayne, and Bayne told him that he wished that they had been down there a couple of weeks earlier because he could have used them as operators, but now all the work he had to do was warehouse work They told Bayne that they would work in the warehouse Bayne said fine and that he would call them in a few days Reynolds specifically asked Bayne if he knew about the trouble at the Willows plant and Bayne said that he did Reynolds told Bayne that they were two of the people who were in the middle of that Superintendent Bayne replied that he did not care about that, that all he wanted was workers He told them that they were not union at the Williams warehouse and that they had no plans to go union Bayne said he would pay them $5 an hour if they wanted to work They accepted and a few days later Bayne called them to work Reynolds and Farris worked at the Williams warehouse for only 3 days On October 6, 1975, they found that their timecards had been pulled from the rack so they went to see their foreman, Jim Nabors 12 Nabors had their time- cards and told them that he had been ordered to pull them Nabors said that he did not want to, but they had ordered him to do it and that there was nothing he could do Reyn- olds asked if this was because of their work Nabors told him no, that their work was satisfactory Nabors said that he wanted them and needed them Nabors said that he was 12 Jim Nabors was not called as a witness by any party to testify at the trial The conversations involving Nabors are based on the credited testimo- ny of Reynolds and Farris One of the issues in this case is whether Foreman Nabors is a supervisor That issue is discussed later in this Decision After reviewing the record, I have concluded that Nabors is a supervisor of Respondent within the mean- ing of Sec 2(11) of the Act 671 getting down to 8-hour work shifts in the warehouse, but now that he would have to go to a 12-hour work shift by letting Reynolds and Farris go Nabors said that they had called back a second time and asked to keep Reynolds and Farris, but they were turned down Nabors said that they were told that the two employees had been terminated at Westside Reynolds replied that if they had been terminat- ed at Westside it was done after they were laid off Nabors said that he believed that and that they had asked a lot of questions Finally, Nabors said he believed that Reynolds and Farris were getting laid off "on account of the Union" and were "getting shafted " 13 Superintendent Bayne did not make the decision to ter- minate them at the Williams warehouse Instead, Bayne stated that his foreman, Nabors, had received a call from Sacramento stating that Reynolds and Farris had been ter- minated from the Westside facility and that they had to be laid off from Williams because they had been terminated and could no longer work for the Company Respondent's reasons for laying off Reynolds on July 14, 1975, were summarized at the hearing by Manager Mun- son who made the decision to lay off the four employees Munson gave four separate bases for the layoff of Reyn- olds They were (1) some damaged rice which had been discovered in January 1975, (2) some dirty seed which had been sent to a customer in May 1975, (3) the cleaning of a tunnel at the warehouse in June and July 1975, and (4) "just general observation on a day-to-day basis during this period from January 1 on " The first basis for Reynolds' layoff given at the hearing by Respondent involved the discovery of some heat-dam- aged rice in January 1975 The apparent reason for the heat damage of the stored rice was that the air from the fans could not circulate properly because there were pock- ets of straw and chaff in the rice The heat damage in- volved about 6,000 hundredweight bags of rice Of those 6,000 bags about 1,650 bags had to be sold as sample grade rice which is the lowest classification of rice 14 Munson and Roberts investigated the cause of the heat- damaged rice in January 1975 After inspecting the rice, they concluded that the rice had not been properly scalped by the scalping machine Some of the rice apparently had bypassed the scalping machine and gone into the bin Since Paul Reynolds was the top man operator on the south scal- per, both Munson and Roberts concluded that Reynolds was to blame for the straw and chaff getting past the scalp- ing machine and into the stored rice One of the dryer operators named Hart reported to Munson that he had 13 This account is based on a composite of the credited testimony of Reynolds and Farris I recognize that Nabors was expressing his own belief or opinion that the termination was 'on account of the Union " Nabors made it clear to the two employees that he did not make the decision to fire them and that he was merely carrying out orders Nevertheless, Nabors had talked with the headquarters office about their termination Since Nabors did not testify, the basis for forming his belief is unknown 14 Munson explained that there were six different grades of rice with the number one grade being the highest and the lowest grade being sample grade Respondent's rice was grade number one extra fancy, which back in January 1975 was selling for about $23 or $24 a hundredweight Sample grade rice is usually sold to breweries Munson estimated that the price in January 1975 for sample grade would be from $7 to $10 a hundredweight Thus, the sale of 1,650 bags of rice as sample grade represented a substantial loss of revenue to the Respondent 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD observed on numerous occasions that the scalper was not running, but he did not know why It is undisputed that nothing whatsoever was said to Reynolds concerning this in January 1975 or at any time thereafter Reynolds acknowledged at the hearing that he was oper- ating the south scalper at the time Reynolds described an incident during the 1974 harvest where the belt broke and the scalper ceased operation He said he promptly reported this to Superintendent Roberts and asked what he should do in the meantime while he looked for another scalper belt According to Reynolds , Roberts told him, "Bypass it That's all we can do " Reynolds also described other times when the scalping machine could not handle a large in- crease in the flow of rice and some of it was bypassed by the machine 15 Padgett also described malfunctions by the scalping ma- chine during the harvest of the next fall in 1975 and that he brought this to the attention of Superintendent Roberts Padgett made some adjustments to the machine so that it would not go on bypass and let the straw fall through The second basis given at the hearing for the layoff of Reynolds involved some "dirty seed " This incident took place in May 1975 when a customer called Munson to complain that some seed shipped to him by Respondent was dirty In cleaning the rice seed , the process should re- move chaff, straw, and water grass seed Apparently, this dirty seed contained such materials which should have been removed when the rice went through the cleaner Paul Reynolds was the night operator on the seed cleaner at the time Padgett testified that on a couple of occasions he had found the screens on the cleaner dirty when he arrived at the warehouse at 5 o'clock in the morning This led Super- intendent Roberts and Manager Munson to conclude that Reynolds was responsible for the dirty seed It is also un- disputed that nothing whatsoever was said to Reynolds prior to his layoff concerning any responsibility or blame for the dirty seed The third basis given at the hearing by Respondent for the layoff of Reynolds involved the cleaning of a tunnel at the warehouse The tunnel is about 7 or 8 feet high and about 7 or 8 feet wide and is made of concrete During the week of June 20 and the following week, Padgett and Hodges were putting up cement forms in the tunnel in preparation for cementing the bottom of the bins The work done by Padgett and Hodges involved the use of ply- wood, two-by-fours, saws, nails, and hammers in the tun- nel In the latter part of June , Superintendent Roberts told Padgett to have some men clean the tunnel Padgett in turn asked Reynolds and employee Gary Domenighini to clean the tunnel Because a compressed air line was broken at that time, the employees could not follow the usual proce- dure of sweeping out the tunnel and vacuuming it They proceeded to clean the tunnel, but when Padgett inspected it, he found that it needed to be cleaned a second time Padgett said at the hearing that he was a perfectionist, "And when you clean an area, you got to have it clean just like your wife vacuums your rug And this is the way I look at things " Padgett said, "I told them I wanted it spic-and- 15 1 found Reynolds to be a credible witness based on his demeanor at the hearing and have credited his testimony span, just like you can eat off the floor" Reynolds and Domenighini proceeded with the second cleaning of the tunnel and they were cleaning it at the time of their layoff on July 14, 1975 Other than Padgett's instruction to them to reclean the tunnel a second time , nothing else was said to them by the Respondent concerning their work in clean- ing the tunnel While Padgett testified that he personally inspected the tunnel and gave the instructions to Reynolds and Domeni- ghini to clean the tunnel a second time, Munson gave a different version He said that he inspected the tunnel and had a long conversation with Padgett regarding the clean- up of the tunnel Munson said that the tunnel had to be cleaned two or three times and that he told Padgett that the whole facility as well as the tunnel had to be as clean as your kitchen Munson said that Padgett assured him that that was the way it would be and Padgett went back down the tunnel Munson said he did not remember whether it was the second or third time, but that Padgett got the tun- nel pretty well cleaned As I have indicated previously, I have credited Padgett's testimony throughout as being the most reliable The fourth and final basis given at the hearing for Respondent's layoff of Reynolds involved a general obser- vation of his work from January 1, 1975, to the time of his layoff on July 14, 1975 No specifics were given concerning this general observation However, Munson related a long term plan which he had in mind for upgrading the physical facilities and the personnel at the Westside facility Mun- son said that he had been discussing the Westside facility with General Manager Freeland for over 2 years However, during 1974, Munson was occupied with making improve- ments in the operation of the Merritt Station facility He explained that he set up different job classifications at the Merritt facility and reduced the number of full-time em- ployees from seven to two or three during the regular sea- son Munson said that in January 1975 he decided that he would take a close look at the Westside facility with regard to its operations and its personnel His aim was to have "a highly qualified crew" which could handle such day-to-day maintenance problems as changing a motor or pushing a broom He said that he and Roberts had talked about this in January 1975 Munson also recommended physical im- provements at the Westside facility which included exten- sive remodeling and some new construction Munson pointed to a state embargo which was placed on the Riz warehouse on March 18, 1975, as having an effect on his plans Munson said, "The embargo just speeded up my decision and the necessary decision to go ahead with a complete renovation of the place " There were 42,000 bags of rice which were embargoed by the State of California following an inspection in which live mice and mice pellets were found in the rice The embargo was in effect for less than 3 weeks from March 18 to April 4, 1975 , according to Superintendent Roberts During that time, however, the employees were busily involved in skimming off 6 inches of rice from the top and placing it away from the embargoed area The rice that was skimmed off was sold as feed Re- spondent did not place the blame for the state embargo on any individual The Riz warehouse as described as being an old warehouse when Respondent purchased it in 1973 RICE GROWERS ASSOC OF CALIF Munson testified that he postponed his review of person- nel at the Westside facility because of the cleanup at the Riz warehouse which was made necessary by the placing of the state embargo Munson said that in late May or early June he talked with Roberts and Padgett regarding the sit- uation at the Westside warehouse In particular he dis- cussed the damaged rice in the warehouse and the seed cleaning of rice Padgett testified that in the early part of June 1975 Munson had told Superintendent Roberts not to tie down Padgett on any one job, but instead to let Padgett circulate through the warehouse and make sure that all of the jobs were getting done Padgett did not say that any specific persons were discussed at that time Instead, he testified that it was on Friday, July 10, 1975, when Munson informed him of the four specific individuals who Munson had decided to lay off from work I credit Padgett's ver- sion Superintendent Roberts took a vacation during the first 2 weeks of July During that time Munson spent more time than was his usual practice at the Westside facility With regard to the timing of his decision to lay off the four employees on July 14, 1975, Munson stated It was in my mind for several months It was not an easy thing to do I mean, regardless of how people may look at it, it's not an easy thing to do And I knew that in order to carry out my program, that it was necessary And I made the decision over the weekend to do it the coming week And I decided to start it out that way on Monday Munson said that the Company began to build up the crew at the Westside facility after the first of September 1975, and at the peak of the harvest the number of employ- ees at Westside was 20 to 25 or perhaps a little more 16 He said that the large part of the crew was kept on about a month after the harvest was over which would make it al- most to Christmas 1975 According to Padgett, the rice harvest season usually be- gins around the end of August or first of September of each year, depending upon the type of rice involved In 1975 harvest season, the first load of rice arrived at Westside on September 7, 1975 Padgett said that the dryers at the Westside warehouses were not ready to receive the rice when it first arrived However, the rice was not turned away but was brought in to the warehouse Padgett said that there was still work needed to be done at that time and they had to assign a crew to the warehouses to get them ready The Westside facility had been improved during 1975 as far as handling additional capacity Superintendent Roberts pointed out that the new augers were larger than the old ones and that the dryers had been revamped The type of rice received in 1975 was a different type also, known as 1600 rice which is a short-grain rice It is undis- puted that the State of California experienced its largest rice crop ever in 1975 Accordingly, the Westside facility received 1,200,000 bags hundredweight of 1600 rice in 1975 This compares with a total intake of 762,000 hun- dredweight in 1974 of a rice known as Cal-Rose Addition- 16 Personnel records show that 14 employees were hired at the Westside warehouse between September 8 and 27, 1975 673 ally, during the 1975 harvest season the Westside facility did not experience any loss of time due to shutdown of its dryers and it was the only one of Respondent's facilities to accomplish this during the 1975 harvest 2 Dennis Farris Farris first began work for the Respondent in September 1969 and worked during the harvest period He was laid off at the end of the harvest and did not return to work for the Company until October 1973 He worked thereafter until the end of 1974 when he was laid off He returned to work for Respondent once again on March 26, 1975, and worked until he was laid off on July 14, 1975, at the same time that Reynolds, Domenighini, and Chrestensen were laid off Farris said that there was a lot of cleanup work to be done when he was laid off He was laid off in a similar manner as was Reynolds and the other employees by Padgett hand- ing him his paycheck and informing him of the layoff Farris did general cleanup work at Westside and, when- ever it was necessary, he ran the mechanical sweeper there He discussed the Union with the other employees once or twice during lunch hour at the warehouse He attended the union meeting on June 18 , 1975, at Padgett's house where he signed a union card along with all the other em- ployees Sometime in late September 1975, Farris had a conversa- tion with Superintendent Roberts Roberts is a neighbor of Farris The conversation took place in Farris' yard and covered general subjects During that conversation Farris asked Roberts who was running the new Williams plant Roberts gave him the name and address of Superintendent Bayne Farris said that Roberts told him, "maybe he can do you some good If he can't maybe you can drive a truck for me in my own field " As a result of that conversation, Farris and Reynolds went to the Williams warehouse where they were both hired and worked from October 3, 1975, to October 6, 1975, when both were once again termi- nated The reason advanced by the Respondent for the layoff of Farris was "the type of work that he was doing and the way he was doing it-every time I would come around the corner of the warehouse, he'd be leaning on a hoe or a broom, or something like that " On that basis, Manager Munson concluded that Farris did not fit into the person- nel program which he had in mind Farris said that there were no prescribed break or rest periods at the time he was hoeing and sweeping He said that he and other employees took breaks on occasion and rested on their hoes He explained that the temperature reached 107 to 108 degrees and he would just stop for awhile Farris said that he was never criticized for stopping work while he was hoeing or sweeping Farris impressed me as a credible witness and I have credited his testimony Employee Glen Slye also said that he had worked with a hoe and broom for Respondent and that he had rested occasionally and had observed other employees similarly do so many times 3 Gary Domenighini Domenighini worked for the Respondent for approxi- 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mately 2 years before his layoff on July 14, 1975 He had not been laid off previously by the Company He worked at the top of the dryer at the warehouse during drying season and at other times worked as a cleanup person He learned of the union meeting to be held at Padgett's house while he was at the warehouse one day He attended the meeting and signed a union card Domenighim was laid off in the same manner and at the same time as the other three employees involved herein With regard to the reasons for the layoff of Domenighi- ni, Manager Munson said, "Back to the previous fall, his work habits After that, I had been watching him from the fall, and right up straight through to July 14th " Munson continued, "My conclusion was that his attitude, his work performance was not in keeping with the type of personnel that I wanted at that plant " The reference to the previous fall refers to what Respon- dent termed the "Cheney incident" and the "LeGrande in- cident " The "Cheney incident" took place during the fall of 1974 when Domenighmi worked for a month or so as a dryer man at the LeGrande warehouse He said that he was told by Fulcher, a field representative of the Respondent, to go to the Cheney warehouse Fulcher was not a supervi- sor The conversation took place by telephone After Do- menighmi hung up, he telephoned his superintendent, Roberts, at the Westside,facility, and told him about his conversation with Fulcher Roberts said that he would call Domenighini back Roberts did call him back and told Do- menighmi to come to work at the Westside plant the next day, which he did Munson said that he had told Fulcher to tell Domenighini to go over to the Cheney warehouse, but Fulcher was not called as a witness, and Domenighini did not state that Fulcher told him he was acting on Munson's order I credit Domenighim's testimony The "LeGrande incident," according to Munson, was his observing Domenighmi on two or three occasions in Octo- ber 1974 come out of his pickup truck while the dryers were running at the LeGrande warehouse Domenighini acknowledged that once or twice a day he took a rest pen- od in his truck while the other employee on duty watched the dryers 4 Dan Chrestensen Chrestensen worked for the Respondent for the brief pe- riod of May 19, 1975, through July 14, 1975, when he was laid off with the other three employees involved herein His job was that of a sweeper He discussed the Union during lunch on June 15, 1975, at the Riz warehouse with Reynolds, Farris, and some other employees On June 18 he attended the union meet- ing at Padgett's house where he also signed a union card At times subsequent to the union meeting and before his layoff, Chrestensen discussed the Union at the plant with other employees 17 He was laid off in the same manner and at the same time as the other three employees previously discussed He said 17 There is no discernible conflict between his testimony at the hearing and a previous affidavit given to a Board agent because his conversation with Roberts, which he related at the hearing, evidently took place after the time when Chrestensen gave the affidavit I have credited his testimony that there was a lot of cleanup work to be done at the plant at the time of his layoff With regard to the reasons for the layoff of Chrestensen, Manager Munson stated at the hearing, "It's the same thing with Mr Chrestensen However, he was just a young man, he was only there a couple of months, but basically he just didn't fit into my long-range plans for men " Chrestensen is 19 years old He said that he had previ- ously informed Superintendent Roberts that he had taken courses in welding and sheet metal H Analysis and Conclusion Regarding Discriminatory Terminations The reasons given by Respondent at the hearing for the initial layoff and termination of the four employees in question for the most part concern past events which Re- spondent knew about, but took no action on, until after union organizing activity had commenced at the ware- house The cleaning of the tunnel by Reynolds and Do- menighini was currently going on at the time of their lay- off, but the two employees were satisfactorily recleaning the tunnel a second time when they were laid off even though they did not have the use of the equipment ordina- rily utilized to sweep and vacuum the tunnel The other reasons involved past events For example, the damaged rice was discovered in January 1975 Respondent suffered a financial loss of a substantial amount of money because of the damaged rice The Respondent believed at the time that Reynolds was responsible Yet, nothing whatsoever was said to him about this There was no request for even an explanation from Reynolds There was no warning to him, no criticism, and no mention of this incident to Reyn- olds The same is true with regard to the alleged "dirty seed" in May 1975 The Company again felt that Reynolds was to blame Yet, the Company took no action at that time Respondent, in effect, tolerated or condoned what it felt were serious mistakes on Reynolds' part until the employ- ees at Westside began union organizational activities It was only after the election was scheduled and the election notice posted that Respondent took action, just 4 days be- fore the representation election In a similar manner Respondent pointed to the fall of 1974 regarding the alleged "Cheney incident" and "Le- Grande incident" concerning Domenighini as a reason for discharging him in July 1975 Respondent knew about those incidents for many months and felt that Domenighi- ni was at fault, but again took no action until after union activities began As to Farris, it was said that he had been observed leaning on a hoe or broom at times in the past, yet, other employees did so and no action was taken to discipline Farris, warn him in any manner, or lay him off from work until after the union organizational activities took place Other reasons advanced for the layoff of the four employees were highly subjective and general ones regarding the employees' attitudes or that they would not fit into Respondent's program I find that the reasons given by Respondent for the layoffs and discharges of the four employees are pretexts RICE GROWERS ASSOC OF CALIF Manager Munson's handwritten note listed the employ- ees at Westside as of June 30, 1975, and also as of July 15, 1975 There are checkmarks after the names of Reynolds, Chrestensen, Domenighim, and Farris, the word "off" with a line through it beside the names of John Padgett, Reyn- olds, Domemghini, and Farris, and asterisks by the names of John Padgett, Dick Padgett, Glen Slye, Bill Hodges, and Mike Inouye The preparation of that note began on or after June 30, 1975, and thus it was prepared after union activity had commenced at the Westside warehouse, after the Union's mailgram had been received, and after the NLRB letter advising Respondent of the filing of the repre- sentation petition by the Union had been received Thus, the note does not establish that Munson had decided on the layoff of these employees prior to the commencement of union activity There were only 12 employees at Respondent's Westside facility at the time of the layoff The employees talked about the Union briefly at the warehouse and all attended the union meeting on June 18, 1975, at Padgett's house where all signed union cards In Century Lumber Company, Inc, 168 NLRB 221 (1967), the Board said Although Respondent's specific knowledge of the ac- tivities of Lutz and Meredith is amply demonstrated by Russell's presence during their discussions of the Union, we also find, on the basis of the small size of the plant, the nature of the interrogation, and the tim- ing of the discharges in relation to Respondent's other unfair labor practices, an adequate basis for inferring that Respondent knew or had reason to believe that all the alleged discnminatees were union protagonists But we also note that in the view we take of the case, even assuming that Respondent was unaware of the union membership of Henkensiefken and Sewell, our ultimate result herein would not be altered For, as set forth below, we are satisfied that the record amply demonstrates that Respondent discriminated against all these employees to discourage union activity gener- ally, and it is settled principle that where, as here, "an employer lays off a group of employees, for discrimi- natory reasons, such conduct is unlawful as to all employees in that group, even as to those employees whose union sympathies are unknown to the em- ployer " I find the Board's rationale in Century Lumber to be applicable in these circumstances although the union cards in this case were signed at the union meeting rather than at the plant Respondent shifted its position on the initial layoff on July 14, 1975, from what appeared at first to be a tempo- rary layoff to what later became a permanent discharge Respondent in its brief urges that there was an apparent lack of communication between Respondent and the Union which led to a misunderstanding or "momentary confusion" as to the status of the four employees It seems to me that Respondent's three management officials made it clear to the Union and the employees involved that the four employees were laid off from work, but subsequently changed their status to a discharge after the election Gen- eral Manager Freeland told the Union on the very next day 675 after the layoff that the employees were laid off for lack of work and could vote in the election Freeland stated a clear and consistent position Since employees who are in layoff status and who have a reasonable expectancy of recall are eligible to vote in NLRB elections, this was a consistent and logical position Higgins, Inc, 111 NLRB 797, 799 (1955) Employees who are discharged for cause prior to an election would not be eligible to vote Regardless of wheth- er Freeland was familiar with election eligibility rules, it is clear that he unequivocally told the Union that the four employees were laid off for lack of work and could vote Secretary-Treasurer Stratton repeated 2 days later to Brandon that the four employees could vote in the election Munson had previously told Padgett on July 14 that the employees were laid off and could vote in the election All of these statements by three different management officials in the beginning indicated a layoff from work Nothing was said at that point in time about the employees being fired or discharged The Company did not tell the employ- ees anything other than the fact that they were laid off and could vote Nevertheless, Respondent's position shifted subsequent to the union election and by July 29 Stratton informed Brandon that he had talked with Munson and that the employees were "undesirable " Thus, what had ap- peared for 2 weeks to have been a temporary layoff was changed by Respondent into a permanent discharge I have carefully considered the long term collective-bar- gaining history of Respondent at its four other facilities which are not involved in this case Respondent in its brief points to this fact to show the absence of a history of union animus The collective-bargaining relationship extends back over many years and is noteworthy for its complete absence of prior unfair labor practice charges over such a long period of time However, the fact that Respondent has had collective-bargaining agreements covering its employ- ees at four locations does not necessarily mean that this Respondent would welcome union organization of its em- ployees at a fifth location Certainly, the threats which were made by Respondent during the course of the union activities at the Westside facility indicate that Respondent was definitely opposed to a union coming into its Westside facility, notwithstanding the amicable bargaining relation- ship at other locations While both Manager Munson and Secretary-Treasurer Stratton recounted that General Man- ager Freeland said that Respondent would do nothing to interfere with the employees' election, that is not what ac- tually took place here In view of (1) the union animus evidenced by the num- erous violations of Section 8(a)(1) of the Act found previ- ously herein, (2) the timing of the initial layoff dust 4 days prior to the scheduled election on union representation, (3) the layoff of the four employees without any prior warn- ing, (4) the fact that no reasons or explanation for the layoff were given to the employees at the time of the lay- off, (5) the shifting nature of Respondent's action, from a layoff which appeared at first to be temporary since the Company repeatedly said that the four employees were en- titled to vote in the election, to a permanent discharge shortly after the Union won the election, (6) the fact that this was a small plant of only 12 employees and the fact that by the time of the layoff on July 14, 1975, Respondent 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was well aware of the Union's representation petition and the scheduled election to be conducted by the NLRB on July 18, 1975, (7) the fact that the four employees in ques- tion all signed union cards, attended a union meeting, and talked about the Union at the warehouse, and (8) the fact that the reasons advanced at the hearing in January 1976 have been found to be pretexts, I find that Respondent laid off Paul Reynolds, Dennis Farris, Gary Domenighini, and Dan Chrestensen on July 14, 1975, and subsequently termi- nated them on July 29, 1975, because of their union activi- ties and to discourage employees from supporting the Union With regard to the second termination of Reynolds and Farris at the Williams warehouse, it is clear, and I find, that they were discharged by Respondent a second time on October 6, 1975, because of their first discharge by Re- spondent in July which I have found to be unlawful Their work at the Williams warehouse was satisfactory and they were needed for work there at the new warehouse The remarks of Superintendent Bayne when they were hired, and Foreman Nabors when they were fired, both show that there was work available for them to perform at Wil- liams 18 When Superintendent Bayne hired them, he indi- cated a lack of concern on his part about any union activi- ties Bayne was more concerned about the work that needed to be done at the warehouse rather than the union activities at Westside It is significant that Superintendent Bayne did not decide to fire Reynolds and Farris It was a decision made elsewhere and relayed to Foreman Nabors at Williams Nabors' remarks demonstrate the need for the two men to continue work at the Williams facility and his comments reveal his efforts to try to persuade Sacramento to change the decision by his calling back and asking to keep the two men at work Thus, I find that Respondent's second discharge of Reynolds and Farris on October 6, 1975, at its Williams warehouse was discrimmatonly motivated as was Respondent's first unlawful discharge of them in July and that Respondent thereby again violated Section 8(a)(1) and (3) by discharging them a second time I The Alleged Supervisory Status of Jim Nabors The General Counsel contends that Jim Nabors, the foreman at Respondent's Williams, California, warehouse, is a supervisor within the meaning of the Act Respondent contends that Foreman Nabors is not a supervisor and moved to strike all testimony regarding statements attribut- ed to Nabors I reserved ruling on Respondent's motion at the hearing and indicated that I would rule on the motion in this Decision after full consideration of the record re- garding the status of Foreman Nabors Both Paul Reynolds and Dennis Farris worked for the brief period of 3 days from October 3 to October 6, 1975, at the Williams warehouse As noted earlier, they were in- 18 The supervisory status of Foreman Nabors is in issue in this proceed- ing That issue is fully discussed in the next section of this Decision For the reasons set forth therein, I have found that Foreman Nabors is a supervisor within the meaning of Sec 2(11) of the Act formed by Foreman Nabors of their second termination by Respondent on October 6 Plant Superintendent Ron Bayne introduced Farris to Warehouse Foreman Nabors Farris said that Bayne told him "This is your warehouse foreman This is the guy you'll be working for right here He'll show you what to do and get you lured out " Thereafter, Farris only dealt with Nabors concerning his work Reynolds was told by Superintendent Bayne that Fore- man Nabors "was in complete charge of the warehouse" and to contact Nabors Thereafter, Reynolds received his instructions regarding his work from Nabors rather than Superintendent Bayne Nabors first instructed them to sweep the warehouse where dirt and trash were present When that job was finished, Nabors told them to set up the tunnels and screen them Nabors also instructed them to stand and wait where the rice was to come down the tun- nels and when the rice came down the tunnels to tie the screens According to Reynolds, Nabors not only told them exactly what jobs to do, but also told them when they were to come to work and when they could leave work to go home Nabors was not called as a witness by any party Superintendent Bayne testified that Nabors was "fore- man over the whole operation dryers, warehouse, all " In October 1975 there were three buildings at the Williams, California, facility in which employees worked and there were approximately 20 to 25 employees working at Wil- hams Superintendent Bayne discussed the work schedule with Foreman Nabors and Nabors gave him information with respect to the work that was going on at the facility and they discussed where the men were needed Bayne said that Nabors did not have the authority to hire employees or to discharge employees With regard to any disciplinary problems, Nabors was supposed to discuss them with Bayne If an employee was not doing his job correctly, Nabors was to let Bayne know about it and they would discuss what was going on However, it something at the facility was not running properly, then Nabors was to take steps to get it corrected Bayne said that if an employee became ill at work, then he could go to Nabors and ask Nabors if he could leave the premises If a machine mal- functioned, then the employees would go to Nabors and inform him of it and Nabors would be the one to take care of the problem Nabors could move an employee in the sweeper or warehouseman classification from one job to another The dryer operators and suboperators, however, remained in their same jobs Nabors was paid on an hourly basis and received about 80 cents an hour more than the average employee J Analysis and Conclusion Regarding Jim Nabors It is not necessary that an individual meet all of the criteria set forth in Section 2(11) of the Act in order to be found to be a supervisor It is sufficient that an individual meet any one of the criteria set forth in that section Ohio Power Company v NLRB, 176 F 2d 385 (C A 6, 1949), cert denied 338 U S 899 Here the evidence reveals that at the times material herein in October 1975 Foreman Nabors did responsibly direct the work of employees He instruct- RICE GROWERS ASSOC OF CALIF ed the employees as to the jobs to be performed and he changed them from one job to another and had the author- ity to do so He told the two employees involved here when to come to work and how long they were to work during the day He also had the authority to excuse employees from work because of illness There are some similarities between Foreman Nabors at the Williams facility and Working Foreman Richard Pad- gett at the Westside warehouse Both were involved in in- forming the employees of their termination Padgett was involved in the July 14, 1975, termination at Westside and Nabors in the October 6, 1975, termination at Williams However, in both instances it is clear that each one was carrying out the decision which had been made by others Both Nabors and Padgett gave instructions to employees regarding their work, but the record shows, based on the testimony of Reynolds, Farris, and Bayne, all of whom I credit in this regard, that Nabors possessed and exercised more authority over the employees in deciding what jobs the employees would work on, what hours the employees would work, when the employees would work overtime, and when employees could leave work While supervisory titles are certainly not determinative of a supervisory issue, and while wage rates also are not determinative, there is a contrast here in both title and wage rate Nabors was a "foreman" who was in complete charge of the Williams warehouse, whereas Padgett was a "working foreman" at Westwide Nabors received about 80 cents an hour more than the average employee whereas Padgett received about 25 cents an hour more The parties stipulated that Padgett was not a supervisor within the meaning of the Act at least through the NLRB-conducted election on July 18, 1975 As indicated above, while there are some similarities be- tween Nabors and Padgett with regard to their work duties, I find that Nabors possessed and exercised supervisory au- thority within the meaning of the Act and that at the times material herein in October 1975 Nabors was a supervisor as defined in the Act Accordingly, I hereby deny the Respondent's motion to strike all of the testimony concern- ing statements made by Nabors Since I have found Na- bors to be a supervisor, then Respondent is responsible for his actions and statements 19 IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes bur- 19 Because I have found Nabors to be a supervisor within the meaning of the Act, it is unnecessary for me to decide whether Nabors, if not in fact vested with actual supervisory authority, was placed in a position by Re- spondent whereby employees would reasonably believe that he was acting as an agent on its behalf Paramount Trends, Inc, 222 NLRB 141 (1976) It may be that Respondent cloaked Nabors with at least apparent authority to speak on its behalf and thereby make Nabors' statements attributable to Respondent, but it is unnecessary to decide that question in view of the supervisory findings with respect to Nabors See also Broyhill Company, 210 NLRB 288, 294 (1974), The Bama Company 145 NLRB 1141, 1143 (1964) 677 dening and obstructing commerce and the free flow of commerce Upon the basis of the foregoing findings of fact and upon the entire record, I make the following CONCLUSIONS OF LAW I Rice Growers Association of California is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 International Longshoremen's and Warehousemen's Union, Local 17, is a labor organization within the mean- ing of Section 2(5) of the Act 3 Foreman Jim Nabors is, and has been at all times material herein, a supervisor of Respondent within the meaning of Section 2(11) of the Act at its Williams, Cali- fornia, facility 4 By threatening employees with discharge if they talked about the Union during their nonworking time at Respondent's premises, by promising employees a wage increase to induce them to cease their union activities, or not to select a union to represent them, by interrogating employees about their union activities and the union activi- ties or sympathies of other of its employees, by threatening employees with layoff from work, termination, plant clo- sure, installation of timeclocks, institution of more onerous working conditions, and subcontracting of work performed by the employees if the employees designated or selected the Union to represent them, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act 5 By laying off from work, discharging, and failing to reinstate Paul Reynolds, Dennis Farris, Gary Domenighi- ni, and Dan Chrestensen because of their union activities and in order to discourage employees from supporting the Union and by reducing employees' working hours by deny- ing them overtime work at its Westside facility from on or about June 20, 1975, because of the union activities of its employees, Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (3) of the Act 6 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act Having found that Respondent unlawfully laid off from work, discharged, and failed to reinstate employees Paul Reynolds, Dennis Farris, Gary Domenighmi, and Dan Chrestensen, I shall recommend that Respondent offer to each of them immediate and full reinstatement to their for- mer jobs or, if those jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges I shall also recommend that Respondent make them whole for any loss of earnings suf- fered as a result of the discrimination against them by pay- 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment to them of sums of money equal to that which they normally would have earned as wages from the date of their termination to the date of said offers of reinstatement, less net earnings during such period Backpay is to be com- puted on a quarterly basis in the manner prescribed by the Board in F W Woolworth Company, 90 NLRB 289 (1950), and with interest thereon as prescribed by the Board in Isis Plumbing & Heating Co, 138 NLRB 716 (1962) Having further found that Respondent reduced the working hours of its employees by denying them overtime work at its Westside facility at Willows, California, from on or about June 20, 1975, because of the union activities of its employees, I shall further recommend that Respon- dent make whole each employee for his loss of earnings attributable to Respondent's discrimination against them by payment to each employee the amount he would have earned, absent discrimination, plus interest thereon In view of the nature of the Respondent's unfair labor practices found herein, I shall recommend that the Re- spondent cease and desist from infringing in any other manner on the rights of its employees guaranteed by Sec- tion 7 of the Act Brom Machine and Foundry Co, 222 NLRB 74 (1976), Skrl Die Casting, Inc, 222 NLRB 85 (1976), NLRB v Entwistle Mfg Co, 120 F 2d 532, 536 (CA 4, 1941) Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to the provisions of Section 10(c) of the Act, I hereby issue the following recommended ORDER20 The Respondent, Rice Growers Association of Califor- nia, shall 1 Cease and desist from (a) Threatening employees with discharge if they talk about the Union during their nonworking time on the com- pany premises (b) Promising employees a wage increase to induce them to cease their union activities, or not to select a union to represent them (c) Interrogating employees about their union activities or the union activities or sympathies of other of its employ- ees (d) Threatening employees with layoff from work, ter- mination, plant closure, installation of timeclocks, institu- tion of more onerous working conditions, and subcontract- ing of work performed by its employees because employees designate or select a union to represent them in collective bargaining (e) Laying off employees from work, discharging them or failing to reinstate them because of their activities on behalf of, or to discourage employees from supporting, In- ternational Longshoremen's and Warehousemen's Union, Local 17, or any other labor organization 20 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board the findings conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes (f) Reducing employees' working hours by denying them overtime work because of their union activities (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaran- teed them by Section 7 of the Act 2 Take the following affirmative action which is neces- sary to effectuate the policies of the Act (a) Offer Paul Reynolds, Dennis Farris, Gary Domeni- ghim, and Dan Chrestensen immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges (b) Make whole Paul Reynolds, Dennis Farris, Gary Domenighmi, and Dan Chrestensen for any loss of earn- ings suffered as a result of the discrimination against them in the manner set forth in the section of this Decision enti- tled "The Remedy " (c) Make whole those employees who were denied over- time at the Westside facility of Respondent at Willows, California, from on or about June 20, 1975, because of the union activities of its employees in the manner set forth in the section of this Decision entitled "The Remedy " (d) 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 and compute the amounts of backpay due under the terms of this Order (e) Post at its Westside and Riz warehouse facilities at Willows, California, and also at its Williams, California, facility, copies of the attached notice marked "Appen- dix " 21 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (f) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith 21 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 After a hearing at which all parties had the opportunity to present evidence, the National Labor Relations Board found that we violated the National Labor Relations Act and has ordered us to post this notice RICE GROWERS ASSOC OF CALIF The Act gives employees the following rights To organize themselves To form, join, or help unions To bargain as a group through representatives they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things WE WILL NOT threaten employees with discharge if they talk about the Union during their nonworking time on the company premises WE WILL NOT promise employees a wage increase to induce them to cease their union activities, or not to select a union to represent them WE WILL NOT question employees about their union activities or the union activities or sympathies of other of our employees WE WILL NOT threaten employees with layoff from work, termination, plant closure, installation of time- clocks, institution of more onerous working condi- tions, and subcontracting of work performed by our employees because our employees designate or select a union to represent them WE WILL NOT lay off employees from work, discharge them, or fail to reinstate them because of their activi- 679 ties on behalf of, or in order to discourage employees from supporting, International Longshoremen's and Warehousemen's Union, Local 17, or any other labor organization WE WILL offer Paul Reynolds, Dennis Farris, Gary Domenighini, and Dan Chrestensen immediate and full reinstatement to their formerjobs or, if thosejobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges WE WILL reimburse Paul Reynolds, Dennis Farris, Gary Domenighini, and Dan Chrestensen for their loss of wages suffered as a result of the discrimination against them, together with 6-percent interest WE WILL NOT reduce our employees' working hours by denying them overtime work because of their union activities WE WILL reimburse those employees who were de- nied overtime work at our Westside facility from on or about June 20, 1975, because of the union activities of our employees, for their lost wages together with 6- percent interest WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act RICE GROWERS ASSOCIATION OF CALIFORNIA