California Bake-N-Serv Ltd.

548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD California Bake-N-Serv Ltd. and Local No. 37, Bakery & Confectionery Workers International Union of America, AFL-CIO, CLC. Case 21-CA-14463 December 23, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On September 15, 1976, Administrative Law Judge Gerald A. Wacknov issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief in answer to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings,' findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, California Bake-N-Serve Ltd., Riverside, Cali- fornia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as modified below: 1. Substitute the following for paragraph 1(a): "(a) Threatening employees with layoff, discharge, or plant closure to discourage them from joining or assisting the Union, promising benefits to employees in order to encourage them to forego their support of the Union, and interrogating employees concerning their union membership, activities, and sympathies, and the union membership, activities, and sympathies of their fellow employees." 2. Substitute the attached notice for that of the Administrative Law Judge. 'Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd 188 F 2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In adopting the Administrative Law Judge's findings and recommenda- tions, we would not characterize as "illuminating" the emphasized portion of the quoted testimony of Burdett intended to explain the abrupt layoff of the entire second shift. Instead we view it as ambiguous. Certainly with respect to the ultimate issue concerning motivation of the layoff, the record is clear 227 NLRB No. 78 that this mass layoff occurred shortly after Shift Foreman Noble telephoned Burdett to inform him that a number of employees on the shift had just signed union cards The timing strongly suggests swift action to stamp out union activity, whether or not Respondent's concern for the product was also a consideration in taking action so abruptly. Based on the record as a whole, we have no difficulty in adopting the Administrative Law Judge's conclusion that the layoff was motivated by Respondent's union animus rather than the need to curtail inventory as allegedly discussed by management earlier in the day 3 We find that the record does not support the Administrative Law Judge's conclusion "that Respondent has discontinued its manufacturing operations " However, in view of the uncertainty as to the continuance of Respondent's business, if in fact it laid off the day shift as contemplated, we are adopting par. 2(e) of the Administrative Law Judge's recommended Order directing that individual copies of the attached notice be mailed to the homes of the employees. The Administrative Law Judge found, and we agree, that Respondent violated Sec. 8(aX1) of the Act by threatening plant closure if the Union came in. However, he inadvertently omitted from his recommended Order a specific provision for this violation and, accordingly , we shall modify his recommended Order 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 an opportuni- ty to present evidence and state their positions, the National Labor Relations Board has found that we have violated the National Labor Relations Act and has ordered us to post this notice, and to mail each employee a copy. The Act gives employees the following rights: To engage in self-organization To form, join, or assist unions To bargain collectively through represen- tatives of their own choosing To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from any or all such activities, except to the extent that the employees' bargaining representative and an employer have a collective-bargaining agreement which imposes a lawful requirement that employees become union members. WE WILL NOT threaten you with layoff, dis- charge, plant closure, or other reprisals in order to discourage you from joining or assisting Local No. 37, Bakery & Confectionery Workers Internation- al Union of America, AFL-CIO, CLC, or any other labor organization. WE WILL NOT promise you benefits in order to encourage you to forgo your support for the Union. WE WILL NOT interrogate employees concerning their, or any other employees', union membership CALIFORNIA BAKE-N-SERV LTD. or their activities or sympathy for any labor organization. WE WILL NOT lay off, fail to recall, or otherwise discriminate against you for engaging in activities on behalf of Local No. 37, Bakery & Confection- ery Workers International Union of America,, AFL-CIO, CLC, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by Section 7 of the National Labor Relations Act. WE WILL offer Gerald Crouch, Dianne Davis, Kathy Kelly, T. Malone, Richard Moreskini, W. J. Taylor, and Henry Tinoco immediate and full reinstatement to their former positions, dismiss- ing, if necessary, anyone who may have been hired or retained to perform the work which they had been performing or, if their former positions do not exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and WE WILL make them whole for any loss of pay they may have suffered as a result of our discrimination. If jobs are not immediately available for such employees, we shall place them on a preferential hiring list. CALIFORNIA BAKE-N- SERV LTD. DECISION STATEMENT OF THE CASE GERALD A. WACKNOV, Administrative Law Judge: Pur- suant to notice, a hearing with respect to this matter was held before me in Riverside, California, on July 15, 1976.1 The charge was filed on March 8 by Local No. 37, Bakery & Confectionery Workers International Union of America AFL-CIO, CLC (herein called the Union). The complaint, issued May 10, alleges violations by California Bake-N- Serv Ltd. (herein called Respondent) of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein called the Act). Respondent's answer, duly filed, denies the commission of any unfair labor practices. Each party was afforded a full opportunity to be heard, to call, examine and cross-examine witnesses, and to intro- duce relevant evidence. Since the close of the hearing, briefs have been received from the General Counsel and from Respondent's counsel. Upon the entire record, and based upon my observation of the demeanor of the witnesses and my consideration of the briefs submitted, I make the following: All dates or time penods herein are within 1976, unless stated to be otherwise. 2 At the hearing Respondent amended its answer to admit jurisdiction. FINDINGS OF FACT 1. JURISDICTION 549 Respondent, a Canadian enterprise located in Riverside, California, is engaged in the business of manufacturing and selling at wholesale prepackaged frozen bread and biscuit dough. In the course and conduct of its business operations, it annually purchases and receives goods and materials valued in excess of $50,000 directly from suppliers located outside the State of California. Respondent admits, and I find, that it is an employer engaged in commerce and in a business affecting 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, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues The principal issues raised by the pleadings, as amend- ed,2 are: 1. Whether Respondent, in violation of Section 8(a)(1) of the Act, threatened employees with discharge and plant closure; interrogated employees concerning their own union membership, sympathies, and activities, and those of other employees; and/or promised increased benefits to employees in order to encourage them to forgo their support for the Union. 2. Whether Respondent, in violation of Section 8(a)(3) and (1) of the Act, laid off seven employees on February 13, and has since failed and refused to reinstate them. B. Facts After acquiring an existing warehouse in the city of Riverside, California, Respondent, during the period ex- tending from late August to mid-November 1975, engaged in extensive remodeling of the warehouse in preparation for the commencement of its manufacturing operations, specif- ically, the production of varieties of frozen bread and biscuit dough, packaged and prepared for selling to grocery stores and grocery store chains located in the States of California and Hawaii .3 During this preproduction period, Respondent hired several employees as general laborers, and by November 18, 1975, has hired a total employee complement of approximately 20 employees in preparation for its two-shift production operations. Actual production commenced on about November 18, 1975. The employees, who acquired the necessary skills through a minimum amount of on-the-job training, were descriptively classified as mixers, cutters, sealers, and floaters, employees in the latter classification performing any work required. Dennis Burdett, general manager, is in charge of Respon- dent's operations. Sherri Rosette is office manager, person- 3 As of the date of the heanng Respondent had "recently" expanded its marketing areas to include the States of Washington and Oregon 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nel manager, and executive secretary. The foreman of the first shift was, initially, John Nobel,4 and the foreman of the second shift was, initially, Tony Weathers. Mike Phillips was later hired as a foreman. Burdett and Rosette hired all of Respondent's employees. Burdett, at- the hearing, readily admitted his antipathy toward labor organizations,5 and does not deny expressing his sentiments to assembled employees at group meetings-6 Such meetings were apparently prompted by the fact that a union representative appeared outside the plant in late October or early November 1975, and began distributing union literature.? On the first day of production, an orientation meeting for employees on both shifts was held. Nobel, the then day shift foreman, explained the nature of the work and stated that a union would not be needed at the plant. Burdett reiterated this remark, stating that Respondent didn't want a union, and further stating that the Respondent was attempting to exceed union wages and benefits, that things could be worked out without a union, and that if problems arose they should be discussed with Burdett. The record does not show the nature of the union activity between the date of the aforementioned group meeting and some indefinite date during the latter part of January, when one employee, Richard Moreskini, signed an, authorization card for the Union. However, union representatives' must have been continuing to engage in organizational efforts throughout this period of time, as Respondent held weekly group meetings apparently throughout January and Febru- ary for the purpose of 'discussing the Union. Some of the meetings were attended only by first shift employees, some only by second shifts employees, and some by both groups. During the course of one such meeting, Burdett stated that a union representative was outside -talking to the people and he did not- want the employees talking to the representative; that he had already told the the employees talking to the representative; that he had already told the employees from the very beginning that he did not want the Union, and that if any of the employees wanted to sign 4 The complaint alleges, and Respondent's answer denies, that Nobel is a supervisor within the meaning of the Act. It is clear that Nobel had the authority to effectively recommend the discharge of employees, and did responsibly direct the work of employees in other than a routine manner. While my findings of violation herein are not dependent upon Nobel's status, I nevertheless find that he is a supervisor within the meaning of the Act. 5 Thus, Burdett testified, _ - My feelings against unions are the same. . I feel that in today's society they have no place per se. They did [perform ] a wonderful job at the turn of the century when unscrupulous employers took advantage of employees, and I feel that any employer can negotiate with his employees without thehelp of a union 6 Burdett stated- When they [the employees] first started, I said that we wanted to keep this,a non-union organization, and if any problems did arse I would hope they would come and see me or see someone in the front office, and we would try to work them out without going to a union . . . Q. (By General` Counsel): Now, you talked about your feelings about the union. Everybody knew how you felt about the union, isn't that true, no secret about it? A . That's true. That [sic] I feel the same today. Q. You made it clear to all the employees that you didn't want a union in there and you didn't want them forming a union, is that correct? A. That's correct. union cards or wanted a union he could hire people who would not sign union cards. At a meeting during the first part of February, Burdett stated that if employees ever tried to bring a union into the plant those employees would be laid off, and another shift hired. At another meeting Burdett stated that Respondent had trouble with the union in the plants up in Canada, and they would not allow the Union down here; that he would just as soon shut the whole plant down and take the losses as have the Union come in. At still another meeting with the second shift in January, Burdett asked the employees what they thought of the Union, and said if the employees on the second shift signed cards he would get rid of them and hire a new shift .9 Respondent initially manufactured and marketed its frozen bread in single-loaf packages, each requiring individ- ual wrapping. It was soon discovered that either the grocery store chains or ultimate consumers would not accept this marketing arrangement, and Respondent then began pack- aging its bread in two and five-loaf packages, a method which caused Respondent to lay off four wrapping employ- ees, two from each shift, apparently sometime in January. During January, Weathers, the second shift foreman, was relieved of that position and made a truckdriver. Phillips was hired as the new second shift foreman, but was, in turn, after about 3 weeks, made first shift foreman. Nobel, the first shift foreman up to that point, was made second shift foreman. The Respondent maintains that the second shift, since before Christmas 1975, had gotten completely out of hand, initially because of the laxity of Foreman Weathers, thus accounting for the transfer of Weathers from second shift foreman to truckdriver. The new second shift foreman, Phillips, was resented by the second shift employees, allegedly because he was a recent hire, and the employees "kicked back pretty badly." Nobel, who was performing very satisfactorily on the first shift, was then selected as Q. (By Respondent's counsel): Before the layoff occurred many of these meetings in November, January or February, by that I mean group [sic] with the employees, did you ever make the statement that you could get people that were non-union, not everybody wanted a union? A. Yes, I did. T While Burdett testified that he did not become aware of any union activity until sometime in December 1975, I find that he was aware of such activity since its inception in October or November 1975 Such knowledge readily accounts for his statements to employees regarding the Union in November 1975, when manufacturing operations commenced. B The second shift is also variously referred to in the record as the swing shift and night shift. The hours of second shift employees were staggered to accommodate production variables, some employees beginning the shift at 2:30 p.m., some at 3 p.m., and some at 5 p.m Apparently the work of the shift customarily ended between the hours of 10.30 and 11 p.m. 9 The aforementioned statements attributed to Burdett are taken from the testimony of various employees. Burdett did admit making some of these statements, or statements of a similar nature, and did not deny having made certain statements not specifically admitted. To the extent that Burdett did deny such statements, I credit the employees' mutually corroborated testimony. CALIFORNIA BAKE-N-SERV LTD. 551 foreman to correct the alleged problems on the unruly second shift.10 §71381 Sometime during the- latter part of January, Moreskini, who had signed a union authorization card, was requested by a representative of the Union to solicit signatures of other employees on authorization cards. Moreskini then began talking with other second shift employees about the Union but; for reasons which do not appear in the record, did not distribute the authorization cards to other employ- ees until February 13. On that date, Moreskini gave the cards to second shift employee Jerry Crouch, who signed one and, in turn, gave cards to other second shift employ- ees, four of whom also signed cards on that day. Second shift employee Dianne Davis, having heard rumors of a layoff from first shift employees, and feeling an ominous atmosphere at the plant on February 13, asked Nobel whether she was going to be laid off. Nobel replied, "[N lot you-" . there will be some other ones but not you. " Apparently a similar conversation took- place between Nobel and employee Kathy Kelly that same evening. About 10 p.m. that night, Nobel called the second shift into the lunchroom and stated that all of the second shift employees were being immediately laid off because of "high production" until further notice 11 Kelly exclaimed that Nobel had lied to her and other employees regarding the layoff, and Nobel replied that Respondent has to -lie, is based on lies, and will not get anywhere without lying 12 At that time the entire second shift, comprised of seven employees, was laid off, namely: Gerald Crouch, Dianne Davis, Kathy Kelly, T. Malone, Richard Moreskini, W. J. Taylor, and Henry Tinoco. As noted previously, Nobel was discharged on February 17, the next working day following the February 131`ayoff.13 10 Nobel did not live up`to expectations either. His enthusiasm prompted one employee to threaten to kill him, with some justification, according to Rosette. The employee was initially discharged upon Nobel's recommenda- tion, but was later rehired as a replacement for a second shift employee. According to Rosette, Nobel was overly enthusiastic, stepped on a lot of toes, and lost touch with the human side. Nobel was discharged on February 17, his tenure short-lived, apparently because his mission of correcting the "problems" on the second shift had not been-accomplished. In fact, Nobel created more problems than he resolved. Thus, Burdett testified as follows- Well, the whole second shift was discontented, and they felt that if they brought the union in, it could solve their problem They felt they could have got rid of John Nobel, which was one of the sources of their problem. 11 Moreskini, who was not present at the meeting, was told by Nobel that the layoff was because of "lack of production," and that he would be called back to work on the second shift if production picked up. This conversation occurred as Moreskini was leaving the plant, shortly before the general announcement at 10 p.m. The employees who testified regarding the group meeting did not state that Nobel mentioned the possibility of their being recalled. 18 Nobel denied making these specific remarks, but admitted stating, when accused of lying, that "that was probably part of my job." I discredit Nobel's denial, and credit the mutually corroborative testimony of several employees. 13 Monday, February 16, 1976, being a holiday. 14 About the first part of March, Crouch phoned Nobel in an attempt to enlist his assistance in providing information regarding the layoff Crouch inquired whether Nobel had observed employees signing union cards on February 13, .and whether Nobel would "testify" on behalf of the laid-off employees. According to Crouch, Nobel replied that: [H ]e had seen what was being signed, and he said that he didn't see the actual card, that he knew what it was because of the activities that had been going on earlier and that he had called Dennis [Burdett] that Nobel, called as a witness by Respondent, testified that on the night of February 13 he did observe union cards being circulated and signed by employees, and phoned Burdett at home to report the matter. Nobel characterized the phone conversation with Burdett as a "lightweight call" having no real significance, and could not recall Burdett's response to, being informed about the union activity.14 Burdett recollects that Nobel phoned him at approximately 9 or 10 p.m. that night, and stated that he thought he saw Crouch, Kelly, "and the group" signing cards.- Burdett maintains that his response to this revelation was "[W]ell, it looks like just as well that we laid them off doesn't ' it " 15 On February 17, the next workday following the layoff, the first shift employees, concerned about the layoff, inquired about the matter through an informally selected spokesman, employee Michael Chaves. Apparently Burdett had anticipated an inquiry- of this nature, and, even before Chaves could pose the question, readily stated to Chaves that he probably already knew about the layoff, that Crouch had been passing out union cards, and that Burdett did not want "the unions" in the plant. Burdett agreed -to Chaves' request for a group meeting with the first shift employees that morning. Burdett told the assembled employees, according-to Chaves; that the layoff was due to overproduction, that the day shift did not have anything to worry about, and that he knew there were a few employees who signed union cards.16 During- the week following the layoff,, Moreskini had a conversation with Rosette regarding the possibility of his returning to work. Rosette informed him that he was laid, off because of excessive production and excessive invento- ry, and that he would be called back to that particular shift if production picked up. evening at around seven o'clock and that later that evening Dennis had called him back and told hum to lay off the whole shift because he did not know who had signed the cards and who didn't. Nobel, called as a witness by Respondent, and examined and cross- examined regarding this" phone 'conversation, stated that Crouch, not he, suggested the aforementioned sequence of events, but that Nobel denied the accuracy of Crouch's hypotheses, and stated to Crouch that he was going to remain "at least neutral." Respondent's counsel objected to Crouch's testimony on this 'point, and requested that it be disregarded as hearsay, maintaining that any statements by Nobel, subsequent to his employment relationship with Respondent, do not fall within the admission exception or any other exception to, the hearsay rule. Crouch appeared to have a vivid recollection of the conversation and testified credibly, and the alleged statements to Crouch by Nobel have an inherent plausibility. Further, Nobel did not appear= credible on this point, particularly in light of the fact that Nobel's testimony regarding his February 13 phone conversation with Burdett differs from Burdett's account of the conversation. Nevertheless, considering Nobel's obvious fivstration at being discharged (although while testifying for Respondent Nobel appeared to be a friendly witness, did not exhibit animosity toward Respondent , and even colored his testimony to Respondent's ends) and the fact that the Federal Rules of Evidence provide no specific exception to the hearsay rule mandating a contrary conclusion, I shall not rely on Crouch 's testimony as substantive evidence. However, such testimony maybe used for purposes of making credibility determinations. As noted, Ldo not credit Nobel's version of his February 13 conversation with Burdett. - 15 Respondent maintains that the decision to lay off the entire second shift was made earlier that day, between approximately 2 and 4 p.m, discussed below. 16 The record does not indicate whether Burdett was referring to first shift employees who may have signed union cards, or to the previously laid-off second shift employees who had signed cards. Burdett did not deny making the statements attributed to him by Chaves, whom I credit. 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On February 17, Crouch returned to the plant and explained to Burdett that because he was one of the first employees hired 17 he should be given preference for recall. Burdett thereupon told Crouch that he was aware of Crouch's union activity and,- for that reason, would not rehire him. Crouch asked whether his work performance was satisfactory, and Burdett replied that his work perfor- mance had no bearing on Respondent's failure to recall him.rs When Davis went to the plant on February 20 to pick up her check, she asked Burdett if she was going to be hired back. He replied that he did not know, because there were so many problems with that particular shift, and he had heard there was some union activity going on. Davis then volunteered that she had signed a union card, whereupon, Burdett inquired where she got the card and the names of other employees who also signed cards. Davis told him that Moreskini had brought the cards into the plant, that she received her card from Crouch, and that Kelly and Tinoco had also signed cards. Davis told Burdett that she had heard rumors about a layoff, and she had been told that signing a union card would secure her job. Burdett replied that the Union had no way of securing her job. Burdett again stated that he did not know whether he was going to recall the employees, "because he didn't know what he was going to do with the people that signed the cards." He said he would let Davis know whether she was "going to be recalled because he had to have a second shift within,2 weeks.19 Several weeks later Davis phoned the plant and asked Rosette about returning to work. Rosette said there was no work for her and that another second shift crew had been hired. About 2 weeks after the layoff, Kelly went to the plant and asked Burdett about being rehired. Burdett said that she was not being rehired because she had signed a union card and also because of lack of work. He asked Kelly who gave her the union card that she had signed, and Kelly refused to answer the question.20 The Respondent hired an entirely new second shift, and the new group of seven employees, some of whom had previously worked for the Respondent as part-time or "relief" employees, and/or had been previously laid off in January as a result of the change in Respondent's market- ing practices, commenced work on March 1. This group was allegedly laid off on March 19, and there has been no second shift since that date. Subsequent to March 19, the Respondent reduced its first shift employee complement from 13 employees to 10 or 11 employees and during the latter part of June further reduced the first shift comple- ment to 6 employees. At the hearing herein on July 15, Rosette announced that Respondent intended to layoff all remaining production employees on the following day, but would retain the office staff "just in case orders come in." 17 Crouch was hired in August 1975, during the construction or remodel- ing phase of Respondent's operations. is Burdett admitted stating to Crouch that he was disappointed in Crouch because of his feelings toward the Union . However, Burdett denied that there was discussion of Crouch's work performance. I credit Crouch. 19 Burdett did not deny this conversation, and, accordingly, I credit Davis. C. Respondent's Reasons for the February 13 Layoff and for Its Failure To Rehire the Seven Laid-Off Employees Respondent maintains that prior to the layoff its invento- ry of frozen bread products - had become excessive in relation to incoming orders for the products, and that therefore at least a temporary layoff was necessary until such time as a more favorable inventory-sales balance could be attained. Further, upon determining the necessity for such action, it was decided that the second shift employees should be laid off, rather than first shift employees, because of various personnel problems that Respondent was experiencing on the second shift. Subse- quent to the layoff, upon realizing the necessity ;for increased production, Respondent decided to begin anew with a more dedicated and less troublesome group of second shift employees. Rosette presented the Respon- dent's rationale as follows: Since we had all of the swing shift down , anyway, and with all of the problems that we had had, personnel problems and the stealing and the bad attitudes and not doing their work when they wanted to and grumbling and mumbling, we decided to start off clean as possible. We are too small a company to deal with that garbage, and we just got into the business and didn't have time for it. Rosette testified that the personnel problems on the second shift were recognized by Respondent prior to Christmas 1975, and that the problems worsened about the first part of January. She received "general feedback" from many employees in the nature of complaints that certain other employees were taking excessive lunch breaks, leaving the plant, playing cards during working hours, using narcotics and sleeping on the premises, and stealing bread or raw materials. On January 22, two employees resigned when confronted with charges of stealing merchandise; and another employee was discharged by Nobel shortly before the February 13 layoff for threatening to kill Nobel. The following is a composite of the testimony of Rosette, Nobel, and Phillips, regarding the attitude and work performance of each of the laid-off employees: 1. Gerald Crouch, according to Rosette, was on several occasions under the influence of narcotics, "probably not anything hard." Rosette did not observe the taking of drugs, but being very familiar with the effects of drugs as a result of working in an "adult school," Rosette could "just look at somebody and automatically . . . know." When asked why Crouch was not sent home on these occasions, some of which allegedly occurred before Christmas 1975, Rosette stated: First of all, it is not my position to send him home, and, secondly, he wasn't so bad off that I hoped-well, nothing ever happened. 20 Burdett did not deny the substance of this conversation, but believed that there were two conversations with Kelly, during one of which, Burdett admitted, when asked by Kelly whether her union activity was the reason for not being recalled, Burdett replied "It might be." CALIFORNIA BAKE-N-SERV LTD. 553 Crouch felt very comfortable at work and would come to work and do what he wanted, because he was friends with the people; but he was never happy about working and always had something to complain about. His work was satisfactory, but attitude was bad, and he tended to be a little bit of a footdragger. Crouch was a reluctant worker and had to be constantly reminded of what his duties were, and should have known what needed to be done without being told. He slept on the job. 2. Dianne Davis did her job well enough when she wanted to but was absent a lot. Employees would trade shifts with her for her convenience, and it was difficult to schedule work. She exhibited a lack of cooperation, and was a reluctant worker. Her personal life took priority, rather than her job. 3. Kathy Kelly did a fantastic job when she worked at it or when she wanted to, but was easily influenced and picked up an attitude of grumbling and complaining, for which there may have been a valid cause. She was unhappy with Foreman Nobel because he was pushing too hard or "something," and was a reluctant worker. 4. Tom Malone was a "good guy" and did his job. He would do almost anything asked of him, but tended to stand around and read the paper if his work permitted it, rather than helping someone else. He was not satisfied with his job and was looking for work elsewhere. Malone had a lot of time off, more than the average (apparently because of a death infthe family). 5. Richard Moreskini was an excellent worker, and did his job well. He was eager and had good attendance. He took some time off; but nothing excessive. He caused no problems. 6. Willie Jean Taylor was a cheerful employee who added a lot of light to the plant. She worked hard. She was implicated, in instances of theft, but "we tried to be good guys and kept her on." She continued to do a good job, and did not have a bad attitude. She was a good employee, cooperative; dependable, delightful to have around. 7. Henry Tinoco was called in to fill holes created by absences. He did a fine job at first, then got into the general mood of things, which was pretty slow. They did not really know Tinoco that well because he had been hired about 1 week before the layoff. He did,everything asked of him as new employees usually do. Burdett, in explaining the economic justification for the layoff, maintained that throughout January and February, he had numerous discussions with Rosette, Nobel, and Phillips regarding Respondent's alarming inventory posi- tion, the lack of sales, and the additional fact that the recently constructed freezer, which was completed and made operational about the middle of January, was becoming filled.21 Burdett further stated that during this ,period, he had meetings with the principals of the Respon- dent in Canada, whom he would apparently meet with once a month, and that the management decision to lay- off employees was made 2 weeks prior to the actual layoff date, during the course of one such meeting held in Edmonton, Canada. At this particular meeting between Burdett and the principals and/or directors of Respondent, the entire economic posture of Respondent was discussed, more specifically, declining sales and sales potential, excessive costs of storing products in the cold storage warehouse, the newly constructed freezer becoming filled, and the product life of the bread. It was determined that if sales did not reach a certain leve122 then production would have to be curtailed. Rosette, during the course of her testimony, did not mention the prior determination allegedly made by Burdett and the principals in Edmonton, Canada, regarding the necessity to curtail production.23 She stated that on Thursday, February 12, the agenda for the regularly scheduled weekly staff meeting was discussed with Burdett, and the fact that production had to be cut, and that the most efficient manner of accomplishing this result would be to lay off the second shift, was considered to be a necessary agenda item. According to Rosette, at the regularly scheduled staff meeting the next day, Friday, February 13, attended by Burdett, Rosette, Nobel, and Phillips, there ensued a discussion of excessive inventory compared to current and predicted sales, and it was determined that the second shift would be laid off for as short a period as possible, until the inventory declined. Although Rosette acknowledged that during-the course of other staff meetings the fact that "we didn't want to have any union in there. We don't like unions," was often mentioned, nevertheless, there was no such discussion at that particular meeting. However, it was discussed that employees were nervous about the possibility of a layoff. Nobel testified that during the course of the meeting the performance and attitude of the second shift -employees were discussed. His testimony indicates that, while the freezer inventory problem was mentioned, there was no specific discussion of facts and figures underlying this problem. Nobel further stated that the Union or employees' union activity "probably" was mentioned at the meeting. Burdett's summarization of the meeting is as follows: It was decided at that meeting we had to .curtail production because we had no place to inventory the bread. It was a simple matter of logistics. You can't put it out in the street. The freezer was full. We just didn't know where to put the bread.24 21 Prior to this time, the Respondent had stored its products in a cold storage warehouse. 22 Burdett did not specify what this level was 23 I find it highly unusual that Rosette, as office manager, personnel manager, and executive secretary of Respondent , would not have been previously advised of the decision reached at the Edmonton meeting, assuming that, in fact, such a critical meeting took place. I find it even more unusual that Rosette, had she known of the Edmonton meeting would not have so testified as an important element of Respondent's defense. Rosette, having been called as a witness prior-to Burdett, did not have the benefit of Burdett's revelation. 24 Respondent's new freezer, which became operational about the middle of January, is a large piece of equipment. Burdett, after testifying that the freezer was full, then stated that it was approximately two-thirds full at the time of the layoff. Employee Crouch, who, as part of his responsibilities, was required to physically count the number of cases of bread in the freezer twice each day and to maintain records of the inventory, stated that the freezer was aboult half full. The Respondent produced no records to show the amount of inventory in the freezer, even though such specific questions were posed to Burdett by counsel for the General Counsel. I credit Crouch, and find that the freezer was about half full on February 13. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Burdett also stated that the matter of the general discontent of the second shift was discussed at length.25 The meeting allegedly concluded with Burdett's instructions to Nobel to lay off the -entire second shift. Burdett's response to a question posed by Respondent's counsel is illuminating: Q. Did you instruct Nobel to lay off the shift at the end of their particular shift? A. Yes, we did. We didn't want to give them any previous warning [for] two reasons , one because of the attitude of the shift. We were scared what they would do if we told them they would be laid off two weeks from now. We thought that they might do some harm to the product, and it is a food product, and people are consuming it, and we have found foreign objects in it. [Emphasis supplied.] Burdett testified that Respondent entered the market in November 1975 with an introductory offer, which was not withdrawn until the end of February or first part of March. The product apparently proved to be highly successful, as in the months of January, February, and March the sales not only increased but doubled each succeeding month, so that in March, the sales had quadrupled from the month of January. During the last week of February , at which time the second shift had been laid off only 1 week , there was a "flurry of activity," and many of the retail chains "bought in very heavily" by placing orders substantially larger than normal because there was a promotion on (which had been on since Respondent started) and Respondent felt it had finally broken through and had obtained a good share of the market, and "the sales were coming again," 26 which warranted the need for more inventory, and, thus, the need for another second'shift. According to Rosette, the determination to hire another second shift was made at a'meeting on or prior to February 20, and she was` given full responsibility for hiring the new second shift within certain guidelines established by Bur- dett.27 Rosette explained her reasons for not recalling each of the former second shift employees as follows: Gerald Crouch- very grumpy, not willing to work, attitude rubbed off on other people;-"Dianne Davis -lots of absentee problems; tardiness, poor ,attitude; Kathy Kelly - attitude 25 The volume of production on the day shift and the night shift was the same, but Burdett and Rosette testified that problems with the quality of the bread and quality of the packaging was a problem only on the second shift. On one occasion, Burdett stated that he held a meeting with the second shift regarding the "problems" and admitted stating to the employees that he realized things were "more lax" on that shift, but he also knew that the "production was there" so he was not going to "come down hard on them " Burdett went on to explain that at this particular time he did not realize the employees' work habits were detrimental to the quality of the bread Burdett could not recall any further meetings with the second shift employees regarding "problems," although he initially testified that "we had a few group meetings" concerning the problems . Employee Crouch, on rebuttal, denied that any such meetings were held. I credit Crouch . Burdett's testimony on this point is evasive and contradictory. 26 What Burdett meant by this latter statement is a complete puzzle to me in light" of his previous - testimony that sales were already doubling each month. However, I am merely recounting Burdett's testimony here, not subscribing to it. About the first part of March, after the introductory offer was withdrawn from the market; sales dropped drastically to a' mere 10 percent of the previous month's "sales, thus causing the Respondent to have a "very, very rough" April, May, and June. The Respondent offered no business records in support of its economic defense. spoiled her work, got to the point where she only wanted to do what she wanted; Tom Malone - looking for another job, couldn't fmd him, believed he had taken another job or moved or something; Richard Morenskini - did a good job, but Respondent did not- know what his attitudes were, did not want to get back-into the same boat where they brought in anybody they were not sure of, Willie Jean Taylor- figured she had already been implicated in this stealing; Henry Tinoco - called a couple of tunes but he is hard to reach. As noted previously, on March 19 Respondent laid off the new second shift. Burdett explains the reason for this as an initial "misjudgment" in bringing the shift back, and a recurrence of the high inventory-low sales economic situation. A. Analysis and Conclusions 1. The 8(a)(1) violations -The complaint alleges, and I find, various violations of Section 8(a)(1) of the Act committed by General Manager Dennis Burdett. Burdett either admitted making many, of the statements found herein to be violative of the Act, or did not specifically deny making such statements. To the extent that Burdett's testimony is contradicted by the testimony of other witnesses, I credit them and discredit Burdett. In November 1975, Burdett stated -to the newly hired employees that a union would not be needed and that Respondent was attempting to exceed union wages and benefits. I fmd that by such promise of future benefit, Respondent violated Section 8(a)(1) of the Act. JFB Manufacturin& Inc., 208 NLRB 2 (1973); Plaskolite, Inc., -134 NLRB 754, 762 (1961), enfd. 309 F.2d 788 (C.A. 6, 1962). I further fmd that in January and February Burdett, during the course of various group meetings, threatened employees with plant closure, shift layoff, and individual discharge should they sign union cards, talk to union representatives, or otherwise engage in union activity. By such threats, I find that the Respondent violated` Section 8(a)(1) of the Act.28 At a meeting `in January, and in conversations with previously laid-off employees 29' Kelly 27 The employees must show a willingness to work , have a good attitude, and be the type of person who will comply with the foreman's instructions. 28 Such violations are alleged in the complaint to have occurred in November 1975 While the testimony of one witness, Crouch , may support such an allegation, I believe that the statements which Crouch attributes to Burdett, were not made until January or February . I base this conclusion on the fact that other employees, who apparently attended the same meetings as Crouch, did not testify that Burdett made such statements in November 1975, but, rather, at a later date. While the complaint alleges that such statements were made in November 1975, rather than in January and February, and while my findings of a violation is somewhat broader than the specific complaint allegation of threat of plant closure, nevertheless, the matters having been fully litigated , and there being no material variances from the complaint allegations, I conclude that such findings are clearly appropriate. Oak Hill Improvement Company, 170 NLRB 300, 301 (1968); The Madison Courser, Inc, 162 NLRB 550, 580 (1967), fn. 38; Southwestern of Dallas Optical Company and Tru-Optics, Inc, 153 NLRB 33,38 (1965). 29 Interrogation of laid-off and unlawfully discharged (infra) employees is violative of the Act. Walton Manufacturing Company, 124 NLRB 1331, 1332, fn. 2 (1959), enfd. as modified 286 F.2d 16 (C.A. 5, 1961), 369 U.S. 404 (1962), on remand 322 F.2d 187 (C.A. 5, 1963); Chesterfield Chrome Co., 203 NLRB 36(1973). -- - CALIFORNIA BAKE-N-SERV LTD. 555 and Davis,30 in February, Burdett interrogated employees regarding their union activity and the union activity- of other employees. I find, by such conduct, that Respondent violated Section 8(a)(1)- of the Act. Webb -Tractor and Equipment Company, 167 NLRB 381(1967). 2. The 8(a)(3) violations Respondent-appears to take the position that the necessi- ty for the February-13 layoff was motivated exclusively by economic considerations and that, once having decided that a layoff was necessary, the second shift was appropri- ately selected, not on the basis of the union activity by the second shift employees, but rather because of the personnel and production problems on the second shift. - -Respondent's economic defense does not make sense. Rosette and Burdett both clearly testified that sales or orders were declining in January. Burdett emphasized this alleged fact by stating that grocery chains such as Safeway, Alpha Beta, and Certified initially bought large amounts of the product and "then stopped buying." However, Burdett also testified that sales "doubled every month [during January, February, and March] and we thought we were here to stay and the company was going to be a success, so we were building inventories." (Emphasis supplied.) Thus, on the one hand, Respondent maintains that the layoff was due to a low sales-high inventory position and, concurrent- ly, during the same period of time, that sales were doubling every month, and - Respondent was building inventories. Significantly, despite this confusing and contradictory testimony, Respondent did not choose to offer any docu- mentary evidence to support whichever position, or perhaps both, =it considered plausible. Central Press of California, -210 NLRB 765 (1974); Missouri—Transit Company,- 116 NLRB 587, 588 (1956), affd. 250 F.2d 261 (C.A., 8, 1957). Given a large freezer only half full after nearly an entire month's production was stored in it, what does Burdett mean when he states that "we had to curtail production because we had no place to inventory the bread. It was a simple matter of logistics"? And given the fact that two shifts had worked steadily since the, commencement of Respondent's operations and that sales were doubling each month,- how could- an excessive inventory have been accumulated? The illogical premises upon which Respon- dent relies result in conclusions suffering-the same infirmi- ties. , . - Other questions remain unanswered. If Respondent's customers stopped buying, and an -economic layoff was imminent, then why did Respondent hire a-new, second shift employee, Tinoco, only 1 week prior to.the layoff, and why-did Respondent even consider giving the employees 2 weeks' notice prior to the layoff? Further, what precipitated the sudden reversal of Respondent's economic-decline only 30 Whether Burdett or Davis initiated the conversation regarding the Union is immaterial The resulting interrogation of Davis is nevertheless -violative of the Act. Benner Glass Co, 209 NLRB-686; 687-688 (1974). 31 The fact that Respondent may not have known the extent of union activity of each employee in the group laid off is immaterial under the circumstances. Scott Gross Company, Inc., 197 NLRB 420,424 (1972); Rosen Sanitary Wiping Cloth Co., Inc., supra. Webber American, Inc., 194 NLRB 692, 697 (1971). - 32 Respondent has shown flagrant disrespect for the underlying purposes of the Act. It announced to its employees that it had problems with the union I week following the layoff? These are not merely rhetorical questions..-Rather; they are material points of inquiry deserving cogent answers. Such answers have not been forthcoming from Respondent. . Considering the background of union animus which this Respondent admittedly harbors, and which it emphatically and`"unlawfully exhibited to its employees on- frequent occasions beginning with their, very first day of `employ- ment, and further considering Respondent's totally spe- cious economic defense and its statements to assembled groups of employees that their union activity would result in their layoff or discharge, and the statements to various employees subsequent to the layoff that union activity was its cause, I have no difficulty in concluding that indeed it was.31 Aliceville Cotton Mild Inc., 193 NLRB 885 (1971); Rosen .Sanitary Wiping Cloth Co., Inc., 154 NLRB 1185 (1965). Accordingly, I fmd that by laying off employees Gerald Crouch, Dianne Davis, Kathy Kelly, T. Malone, Richard Moreskini, W. J. Taylor, and Henry Tinoco on February 13 Respondent violated Section 8(a)(3) and (1) of the Act. I further find that, but for their union activity, those above-named, employees would have been continu- ously, employed at least through March 19, when the new - second shift was allegedly laid off.32 Respondent's decision -to hire an -entirely new second shift complement rather than to recall the former employ- ees is allegedly based on its- evaluation of the work performance and attitude- of the former second - shift employees, both collectively and singly-. The alleged prob- lems with the second shift are detailed above, and will not be reiterated here. Suffice it to say that Respondent's witnesses conjuredup every conceivable employee deficien- cy, from taking narcotics to poor attitude and, penultimate- ly, to Rosette's classic remark about Moreskini, "We just didn't know what his attitudes were." Thus, as far as the result accomplished, that is, Respondent's failure to recall the laid-off employees, not knowing an employee's attitude was tantamount to the taking of drugs. However, as noted above, even the alleged taking of drugs did not present a problem of sufficient seriousness to warrant disciplinary action by Rosette. Respondent was not averse to discharg- ing employees for cause, and did so in January and February. Having done so,-it may fairly be presumed that those employees who were not so discharged were perform- ing up, to Respondent's reasonable expectations. Burdett's admissions show Respondent's true motivations. Thus, Burdett, simultaneously with the unlawful interrogation of employees, regarding their, union activity and the union activity of other employees, explained to employees Crouch, Davis, and Kelly that second shift union activity in general and/or their union activity in particular was--the in Canada, and would just as soon shut the whole plant down. Burdett testified that the March 19 layoff was occasioned by the same "economic" circumstances that- precipitated the February 13 layoff. Having found the Respondent's economic defense to the February 13 layoff to be completely without foundation, it would also appear that the March 19 layoff is equally suspect. It is difficult to believe that after such a rapid growth Respondent's business operations , have now dwindled to a mere office staff; "just incase orders come in," and an empty freezer. Backpay and reinstatement issues, in the compliance stage of this proceeding, should be carefully investigated and considered, under the curious circumstances herein- 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paramount factor in determining their eligibility for re- call.33 While such a conclusion does not affect the backpay remedy herein, I nevertheless fmd an additional specific violation of Section 8(a)(3) and (1) of the Act in Respon- dent's failure to recall the seven named employees. Respon- dent's feeble and unsupported assertion that employees Malone and Tinoco could not be located is discredited. In any event these employees, as well, of course, as the other five employees, are entitled to a valid offer of reinstatement. . CONCLUSIONS OF LAW 1. California Bake-N-Serv Ltd. is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local No. 37, Bakery & Confectionery Workers International Union of America, AFL-CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening employees with layoff or discharge in order to discourage them -from joining or assisting the Union; by promising benefits to employees in order to encourage them to forgo their support of the Union; and by interrogating employees concerning their union member- ship, activities, and sympathies and the union membership, activities, and sympathies of their fellow employees, I find that Respondent has violated Section 8(a)(1) of the Act. 4. By laying off employees Gerald Crouch, Dianne Davis, Kathy Kelly, T. Malone, Richard Moreskini, W. J. Taylor, and Henry Tinoco on February 13, I fmd that Respondent has discriminated in regard to hire or tenure of employment or any term or condition of employment to discourage membership in a labor organization in violation of Section 8(a)(3) and (1) of the Act. 5. By failing and refusing to recall employees Gerald Crouch, Dianne Davis, Kathy Kelly, T. Malone, Richard Moreskini, W. J. Taylor, and Henry Tinoco on or about March 1, I find that Respondent has discriminated in regard to hire or tenure of employment or any term or condition of employment to discourage membership in a labor organization in violation of Section 8(a)(3) and (1) of the Act. Tim REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirma- tive action to effectuate the policies of the Act. Respondent will be required -to offer Gerald Crouch, Dianne Davis, Kathy Kelly, T. Malone, Richard Moreski- ni, W. J. Taylor, and Henry Tinoco reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority' or other rights and privileges, dismissing, if necessary, anyone who may have been hired to perform the work which they had been performing; and to place said employees for whom jobs are not immediately available, pursuant to the above, on a preferential hiring list accord- ing to seniority, to the extent possible. Additionally, Respondent will be ordered to make these employees whole for any loss of earnings they may have suffered by reason of their unlawful layoff, with backpay to be computed on a quarterly basis, making deductions for interim earnings, and with interest to be paid at the rate of 6 percent per annum. F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1,962). Further, as it appears that Respondent has discontinued its manufacturing operations, the Respondent will be required, in addition to posting the recommended notice to employees, infra, to mail to the home address of each employee who was or has been on Respondent's payroll from February 12, 1976, until the date such notices are mailed, a signed and dated copy of such notice. Such mailing is necessary to effectively advise employees of Respondent's unlawful conduct and of Respondent's obli- gations as a result thereof. See Westinghouse Electric Corporation, 188 NLRB 885 (1971). Upon the foregoing findings of fact, conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER Respondent, California Bake-N-Serv Ltd., Riverside, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with layoff or discharge in order to discourage them from joining or assisting the Union, promising benefits to employees in order to encour- age them to forgo their support of the Union, and interrogating employees concerning their union member- ship, activities, and sympathies, and the union membership, activities, and sympathies of their fellow employees. (b) Laying off, refusing to recall from layoff, or otherwise discriminating against employees with regard to hire or tenure of employment or any term or condition of employ- ment for engaging in activities on behalf of a labor organization or for otherwise engaging in activity prohibit- ed by Section 7 of the Act. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 ,of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Gerald Crouch, Dianne Davis, Kathy Kelly, T. Malone, Richard Moreskini, W. J. Taylor, and Henry Tinoco immediate and full reinstatement to their former positions of employment, dismissing, if necessary, anyone who may have been hired to perform the work that they had been performing, or, if their former positions do not exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them 33 Some indication of the depths of Respondent's antipathy toward the Rules and Regulations of the National Labor Relations Board, the findings, Union may be perceived as a result of Respondent's preference in rehiring an conclusions, and recommended Order herein shall, as provided in Sec 102.48 employee who had been previously discharged forthreatemng to kill Nobel, of the Rules and Regulations, be adopted by the Board and become its rather than,-again, Moreskini, whose "attitudes" were apparently suspect findings, conclusions, and Order, and all objections thereto shall be deemed 34 In the event no exceptions are filed as provided by Sec. 102.46 of the waived for all purposes. CALIFORNIA BAKE-N-SERV LTD. whole for any loss of pay they may have suffered as a result of the discrimination against them in the manner set forth above in the section entitled "The Remedy." (b) Place said employees for whom jobs are not immedi- ately available on a preferential hiring list, according to seniority, to the extent possible. (c) Preserve and upon request, make available to the Board or its agents, for examination and copying, all payroll and other records, including but not limited to, sales records, inventory records, instructions to salesmen or outside sales organizations, and profit and loss records, necessary to determine the backpay entitlements and reinstatement rights set forth in "The Remedy" section of this Decision. (d) Post at its Riverside, California, facility copies of the attached notice marked "Appendix."35 Copies of said 35 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 557 notice, on forms provided by the Regional Director for Region 21, after being duly signed by an authorized representative of Respondent, shall be posted by Respon- dent immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by Respon- dent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Mail a duly signed copy of the attached notice marked "Appendix" to the home address of each employee who was on or has been on Respondent's payroll from February 12, 1976, until the date such notice is mailed. (f) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."