Ebb Tide Processing, Inc.

EBB TIDE PROCESSING, INC. Ebb Tide Processing, Inc. and Alaska Fishermen's Union, affiliated with Seafarers' International Union of North America, AFL-CIO. Case 19- CA-12005 September 30, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On September 4, 1981, Administrative Law Judge William L. Schmidt issued the attached De- cision in this proceeding. Thereafter, Respondent Ebb Tide Processing, Inc., filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions2 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Ebb Tide Processing, Inc., Anacortes, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph 2(b) and re- letter the subsequent paragraphs accordingly: "(b) Expunge from its files any reference to the discharges of Beulah Bray and Caryl Liles and notify them in writing that this has been done and I 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 credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. I In adopting the Administrative Law Judge's finding that Respondent violated Sec. 8(aXI) and (3) by laying off Beulah Bray, we also rely, in addition to the reasons stated by the Administrative Law Judge, on the fact that Bray's seniority entitled her, under the applicable collective-bar- gaining agreement, to be transferred rather than laid off. Member Zim- merman does not rely on this additional ground. 3 We shall modify the Administrative Law Judge's recommended Order so as to require Respondent to expunge from its files any reference to Beulah Bray's and Caryl Liles' discharges, and to notify them in writ- ing that this has been done and that evidence of this unlawful conduct will not be used as a basis for future personnel actions against them. See Sterling Sugars Inc. 261 NLRB 472 (1982). 264 NLRB No. 100 that evidence of this unlawful conduct will not be used as a basis for future personnel actions against them." 2. Substitute the attached notice for that of the Administrative Law Judge. 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 sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT question our employees con- cerning their activities on behalf of Alaska Fishermen's Union, affiliated with Seafarers' International Union of North America, AFL- CIO, or question or threaten our employees concerning their activities in connection with providing evidence during an investigation conducted by the National Labor Relations Board. WE WILL NOT lay off employees, cause em- ployees to transfer to other jobs, or assign em- ployees to particular jobs in order to retaliate against them for their activities on behalf of Alaska Fishermen's Union or their concerted activities for mutual aid and protection on the job. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees who choose to exercise the rights guaranteed by the National Labor Relations Act. WE WILL offer Beulah Bray and Caryl Liles reinstatement to their former positions, or, if such positions no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges previ- ously enjoyed and WE WILL make Bray and Liles whole for all losses suffered by them as a 739 DECISIONS OF NATIONAL LABOR RELATIONS BOARD result of our discrimination against them, with interest. WE WILL expunge from our files any refer- ence to the discharges of Beulah Bray and Caryl Liles and notify them in writing that this has been done and that evidence of this unlaw- ful conduct will not be used as a basis for future personnel actions against them. EBB TIDE PROCESSING, INC. DECISION STATEMENT OF THE CASE WILLIAM L. SCHMIDT, Administrative Law Judge: This matter was heard by me on 4 hearing days during the months of September and October 1980, at Mount Vernon, Washington. The case is based upon a charge and an amended charge filed by the Alaska Fishermen's Union, affiliated with the Seafarers' International Union of North America, AFL-CIO (Union), and a complaint issued on behalf of the General Counsel which alleges that Ebb Tide Processing, Inc. (Respondent), violated Section 8(a)(1), (3), and (4) of the Act.' The Respond- ent's answer, as amended, admits most of the preliminary allegations of the complaint but denies the commission of the alleged unfair labor parctices. 2 Upon the entire record herein, my observation of the witnesses who testified in this matter, and my careful consideration of the timely briefs filed by the General Counsel and the Respondent, I make the following: FINDINGS OF FACT I. THE ALLEGED UNFAIR LABOR PRACTICES A. The Background The Respondent, a Washington corporation which maintains an office and a plant in Anacortes, Washing- ton, is engaged in the business of processing and selling fresh fish and smoked fish-primarily salmon.3 The Re- spondent's Anacortes plant serves the Puget Sound salmon fishing industry. The Respondent is owned by Ivor and Jack Jones, Mi- chael Alfieri, and James Duffy. All but Duffy appear to be absentee owners having other businesses and profes- sions in the Seattle, Washingtion, area.4 These individ- uals acquired the plant in 1976 when it was in the course of a Chapter 11 reorganization and appointed Robert Barcott vice president and general manager of the plant. t The original charge was filed on January 4, 1980, and was amended on February 27, 1980. The complaint was issued by the Regional Direc- tor for Region 19 on February 27, 1980. 2 The answer is dated March 5, 1980. 3 The complaint alleges and the answer admits facts showing that the Respondent meets the Board's discretionary standard for asserting juris- diction on the basis of its direct or indirect outflow. The Respondent also admits, and I find, that it is an employer engaged in commerce within the meaining of Sec. 2(6) and (7) of the Act. 4 Certain evidence pertaining to the Caryl Liles termination indicates that Duffy is located in or about Anacortes. Barcott served in this capacity until early 1980 and was the only corporate officer regularly at the plant. 5 The events involved herein arose primarily during the 1979 salmon processing season which lasted approximate- ly from July through August. Prior to the 1979 salmon season, the Respondent's facility was designed to accom- modate only the processing of fresh fish. In late 1978, construction was commenced on an additional building to house a smoking operation. This facility was complet- ed and smoking operations commenced in March 1979. However, the smoking operation was interrupted during the months of July and August 1979 as the smokehouse was utilized almost exclusively during those 2 months for fresh fish butchering. When the smoking operation com- menced, it became known administratively as the smoked products division (but was commonly called the smoke- house) and the fresh fish processing operation continued to be known as the cannery. Subordinate to Barcott in the supervisory hierarchy at the beginning of the 1979 season were the cannery fore- man, John Fitzgerald, and the smoked products division manager, Gordon Sandvick. Margaret Archer was the assistant cannery foreman and Doyle Geer served as the leadman or assistant manager in the smoked products di- vision. William Wayne, one of the principal characters herein, started his employment at the Respondent's facili- ty primarily overseeing the operations at the dock in July 1979. In the latter part of September, Fitzgerald was terminated as the cannery foreman and Archer was promoted to replace him. In addition, in the early part of September, Sandvick was terminated as the smoked products division manager. Although there appears to be some agreement that Geer served as the interim manager of the smoked products division for at least 2 or 3 weeks following Sandvick's departure, there is a considerable dispute as to what occurred thereafter. The Union has represented the Respondent's produc- tion employees since 1976. The collective-bargaining agreement applicable to the time period involved herein was executed in July or August 1979. By its terms, that agreement was in effect from July 1, 1979, until July 15, 1980. B. The Pleadings The complaint alleges that the Respondent, acting through Wayne, violated Section 8(a)(l) of the Act by interrogating its employees on three separate occasions and threatening to discharge or lay off an employee on another occasion. The complaint also alleges that the Re- spondent, acting through Wayne, violated Section 8(a)(3) of the Act by transferring Beulah Bray to a less desirable position and changing Bray's status to that of an on-call employee in October 1979, and subsequently discharging Bray in December 1979. In addition, the complaint al- leges that the Respondent violated Section 8(a)(3) of the Act by discharging Doyle Geer and Caryl Liles. Finally, the complaint alleges that the Respondent violated Sec- 5 The other corporate officers were: Ivor Jones, president; Duffy, sec- retary; and Alfieri, treasurer. 740 EBB TIDE PROCESSING, INC. tion 8(a)(4) of the Act by discharging Debra Fant on or about January 30, 1980. As noted, the answer denies the commission of the unfair labor practices and likewise denies the supervisory and agency status of Wayne. 6 C. The Discord in the Supervisory Hierarchy Immediately prior to the 1979 season, William Wayne, an experienced commercial fisherman and processor, was retained directly by the Respondent's board of directors independent of the local management. His initial assign- ment was to oversee the grading and species identifica- tion of fish and to ensure the proper icing of fish as there appeared to be a significant inventory shrinkage which the owners attributed primarily to problems at the dock when fish were initially unloaded and graded. Wayne came to encounter considerable difficulties with the other established supervisory personnel, most notably Margaret Archer who was Barcott's sister and Geer's sister-in-law. According to Suzzanne Mayes, Archer came to the office area where she worked as the secre- tary about the second day that Wayne was employed and told her that she was afraid Wayne was going to get her brother (Barcott) fired. Archer's concern appears to have developed into a deep distaste for Wayne. Thus, asked why she did not like Wayne, Archer testified: "He was obnoxious. He was abusive. He was unfair. I don't have the adjectives." Further, Archer testified: "He made several passes with sexual overtones to me. He made numerous crude remarks to me. On several occa- sions he asked me to go and get drunk with him. He put his hands on me. He was threatening and abusive." Moreover, Wayne appears not to have been overly ap- preciative of Archer and her relatives, Barcott and Geer. Thus, Archer testified that Wayne told her on at least two different occasions that he was going to have her fired; that he regarded Barcott as a "lazy S.O.B."; and that Geer was a "worm" and a "pipsqueak." Other credi- ble evidence shows that Archer, at one point, told some of the smokehouse employees to slow down in order to make Wayne look bad and on another occasion she called union representatives to report Wayne for doing unit work as a supervisor. At the hearing, Archer could not recall if she ever told anyone that she wanted to "get" Wayne or not. This internecine struggle among the Respondent's supervisors appears to have gone on nearly unchecked from Wayne's arrival in July until October 24, 1979, when Archer and Geer were discharged. The last casualty was Barcott, who was terminated in Febru- ary 1980. D. The Supervisory Issue The Respondent's principal defense with respect to many allegations in the complaint is that Wayne was not a supervisor until after October 24, 1979, when Geer was e More specifically, the answer admits only that Barcott was the gen- eral manager and Ivor Jones was the president of the Respondent at the times material hereto and denied that they were supervisors or agents within the meaning of the Act. On the basis of the evidence herein, I find that Barcott and Ivor Jones were supervisors and agents within the meaning of Sec. 2(11) and 2(13) of the Act, respectively, at all material times. removed as the manager of the smoked products divi- sion. Wane himself so testified.' I reject the Respond- ent's assertion that Geer was the manager of the smoked products division following the departure of Sandvick in early September 1979, and continued as such until his termination on or about October 24. On the contrary, I find that Geer served 2 to 3 weeks following Sandvick's departure as an interim manager and that at the time Wayne completed his work on the docks and moved into the smoked products division in late September 1979, he, for all intents and purposes, became its manager. As noted above, Wayne was recruited and served di- rectly at the pleasure of the Respondent's owners. When called initially as a witness by the General Counsel, Ivor Jones, the Respondent's president, testified that Wayne took charge of the smoked products division "probably in September, October" when they were actually smok- ing fish in the fall. The most graphic example of this fact is the evidence shown throughout the record that it was Wayne, not Geer, who occupied the sole office in the smoked products division building following the comple- tion of his assignment oni the docks. Notwithstanding Wayne's assertions that he was not in charge of the smoked products division during the critical period im- mediately prior to October 24, at one point in his testi- mony he even referred to the office as "my office." Moreover, the Fant-Liles overtime incident described below illustrates that Wayne was in complete charge of the operation, meting out overtime and assigning duties, as does the fact that the union representatives ap- proached Wayne, not Geer, on October 23 with Bray's written grievance, also discussed more fully below. Other evidence shows that Wayne was laying off and re- calling smokehouse employees in late September 1979. In addition, some of the Respondent's own employee wit- nesses-notably Ginger Rae Keltz and Sheila Morin-ac- knowledged that Wayne was in charge of the smoked products division during this disputed period. Similarly inconsistent with his assertion that he did not take over the smoked products division until October 24 is Wayne's own testimony that he sought Bray's reassign- ment for a short period each day in which to perform cleanup work in the smoked products division. Also de- scribed in more detail below is the fact that on October 22, 1979, the four owners held a special inquiry at the plant to investigate the alleged sexual harassment of em- ployees by Wayne-an event that cannot be explained by posturing Wayne as just another employee. Accordingly, I find that at all material times since late September 1979, Wayne, regardless of title, was in charge of the smoked products division, regularly exercised the authority of a supervisor within the meaning of Section 2(11) of the 7 Wayne's assertion in this regard can charitably be characterized as contrary to the overwhelming weight of the evidence. Having considered this assertion together with his denial of remarks attributed to him by the Respondent's attorney Alfien and other inconsistencies and improbabil- ities in his testimony. I have generally discredited Wayne's testimony where it conflicts with that of other witnesses. Moreover, my conclusion that Wayne's testimony on essential matters is not credible for the forego- ing reasons comports with the impression gained from having observed Wayne testify. 741 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act and was an agent of the Respondent within the meaning of Section 2(13) of the Act. E. The Alleged Discrimination and Interference 1. Beulah Bray Bray was first employed by the Respondent in May 1975. By the fall of 1979, Bray was second among the unit employees on the seniority list. Only Lorraine Sta- tion had greater seniority. In addition, Bray was secre- tary of the Union at the Respondent's plant, having been elected in November 1978. Bray was also one of the union delegates (steward) at the Respondent's plant during the 1979 season. In April 1979, Bray commenced working in the smoked products division approximately at the time it initially began operating. According to Doyle Geer, it was considered a privilege to work in the smoked products division and, as a consequence, many of the more senior employees were employed there. On September 20, 1979, Bray was put on call by Wayne, i.e., laid off from the smoked products division, and was not recalled until September 26, 1979. Bray tes- tified that, upon returning, she learned that "the men" had worked "while us girls were laid off," meaning Bray, Lorraine Station, and Margaret Station. After a few days, Bray was advised by Wayne that they were to be laid off again and Wayne added that he intended to have the men come in on the following Monday to butcher fish. Going further, Wayne told Bray that he would have "us girls" come in the following Tuesday in order to pack. This modus operandi, vis-a-vis "the men" and "us girls," disturbed Bray and she inquired of Wayne if he were aware that the "girls" had seniority over "the fellows." Bray testified that Wayne was "quite violent ... he exploded .... " According to Bray, Wayne as- serted that he got more out of the men and that he ad- dressed her argument with a lot of profanity. Bray re- treated for the time being and, on the following Monday, she was called to work by Archer to inventory in the cannery. According to Bray, on that same day, Lorraine Station was utilized to butcher in the smokehouse but Margaret Station, who, according to Bray, should have been working, was laid off.8 Bray testified that, when she next returned to work in the smoked products division, Wayne became overly so- licitous of her work and watched her work significantly more than other employees, leaving her with the impres- sion that he was looking for an excuse to fire her. As a consequence, Bray spoke to Archer about transferring to the cannery as Bray was fearful for her continued em- ployment if she remained in the smokehouse. Initially, Archer counseled Bray to "hang tough" in the smoke- house. However, following requests by Bray to Archer, Bray was granted a transfer to the cannery on October 8. On October 11, Bray was advised by Archer that she had to return to the smokehouse at 3 p.m. each day to perform cleaning chores.9 This development followed a I Throughout her testimony Bray appears to have confused butchering with fileting which, in fact, are two distinct operations. Generally speak- ing, very little butchering is performed in the usual course of the smoke- house work. 9 Normally the smokehouse shift ended at 4:30 p.m. stormy confrontation between Wayne and Archer which began that morning when Archer arrived for work. Ac- cording to Archer, Wayne approached her when she ar- rived and told her that he had spoken to Jack and Ivor Jones and that he wanted her fired or he was going to quit. Disturbed by Wayne's attitude, Archer went to Barcott and requested that they meet in an effort to re- solve the differences which existed between Wayne and herself. Barcott acquiesced and such a meeting was held with Barcott in his office at 10 that morning. At the outset of that meeting, Wayne told Barcott that he wanted Archer fired because she had transferred Bray and another smokehouse employee (Ray Wells) to the cannery and because Archer had given raises to employ- ees. According to Archer there was a discussion about whether or not she had overstepped her authority and that, by the time the meeting was concluded in Barcott's office, their dispute appeared to be resolved. However, according to Archer's version of the ensuing events, Wayne followed her into her office when the conversa- tion with Barcott was concluded. At this time, Wayne told Archer that she had better do as he said or she was going to get fired. Wayne then went on to tell Archer that he wanted Bray sent to the smokehouse every after- noon at 3 o'clock as Wayne wanted her to be his "washer woman" and that he was "going to make her scrub and put her down in front of the other people." In further reference to Bray, Wayne told Archer that he was going to get the "fat assed old bitch," that she was a union troublemaker, and that he was going to send her up the hill. In the course of the same conversation Wayne told Archer that the Union was "a bunch of pip- squeaks," that he wanted them out, and that he was out to break the Union. Later that afternoon, Archer direct- ed Bray to return to the smokehouse at 3 p.m. each day to do cleaning work. Geer attributed similiar remarks to Wayne. According to Geer, Wayne told him that he was tired of Bray writ- ing letters and making complaints to the Union, that he was going to get her, that he was going to make Bray his "washer woman," and that, even though she did not work under him, he was going to have her down on her knees scrubbing floors in the smokehouse. Debra Fant testified that after Bray was laid off, as de- scribed more fully below, Wayne told her that she would be taking over the cleanup chores which Bray had per- formed. Fant testified that Wayne told her in the pres- ence of Liles and Pat Malloy that he had taken care of the "spy" who was talking to the Union and threatening their jobs because they were lower in seniority. Al- though the foregoing remarks were denied by Wayne,l° there is evidence of Respondent's own agents that Wayne perceived of Bray as a troublemaker and a com- plainer and absolutely no evidence that such an attitude on Wayne's part pertained to anything other than Bray's l' The remarks attributed to Wayne by Geer allegedly occurred in the presence of Paul Dubuque, Roy Wells, and Pat Malloy. Wells and Du- buque did not testify. Malloy was called by the Respondent and corrobo- rated Wayne's denial of this conversation. The remarks attributed to Wayne by Fant were allegedly made in the presence of Caryl Liles and Pat Malloy. No inquiry was made of Liles or Malloy concerning this matter. 742 EBB TIDE PROCESSING, INC. complaints to Wayne and the Union about Wayne's se- niority practices. Thus, a response filed by attorney Al- fieri with the Washington Human Rights Department concerning a complaint filed by Bray with that agency contains the following: On October 10 she [Bray] requested a transfer from the smokehouse to the cannery division, which was granted. Mr. Wayne denies that he ever made any remarks that he would get rid of her or that she was an old women or that he verbally abused her. He may have said that she was a troublemaker be- cause she is a constant complainer and other em- ployees did not like working with her. At the hearing herein, Wayne even denied having made remarks similar to those ascribed to him by Alfieri in the Human Rights Department response. On October 22, Bray prepared a written grievance which she presented to Union Representative Carl Kos- kela concerning the lack of adherence to the seniority provisions of the collective-bargaining agreement. Among other things, Bray recited the events leading up to her transfer to the cannery from the smoked products division and her utilization for 1-1/2 hours each day at 3 p.m. in order to do cleaning work in the smoked prod- ucts division. According to this grievance, Bray was an- ticipating that on October 23 she would lose time from work because of the requirement that she appear at the smoked products division for cleaning work at 3 p.m. The grievance recites that, on October 22, Wayne in- formed her that it would not be necessary for her to per- form cleaning work on October 23 but the cannery crew was scheduled apparently prior to her receiving such in- formation and, as she normally was to be in the smoked products division for cleaning reasons, she was not scheduled for the cannery crew until noon. The griev- ance concludes by Bray complaining of Wayne, "a man- ager and non-union," butchering and racking while unit employees were off work. On October 23, Kogkela and another union representa- tive presented Bray's grievance to Wayne, I' who merely told them that he would take it under advisement. Short- ly thereafter, Wayne approached Bray and stated that he had heard that she had written a two-page complaint about him to the Union. Bray replied saying she merely told the truth. The following day, October 24, Wayne (according to Bray's uncontradicted testimony) advised Bray that it would not be necessary for her to do clean- ing work in the smoked products division any longer and that Barcott had a permanent position for Bray in the cannery. According to Bray, when she went to Barcott to inquire of the permanent position, she was advised that she was laid off as there was no work in the cannery at that time. Bray was on layoff from October 25 until November 17, when she reported to work in the can- nery. Work there continued until December 21, when the plant was closed for the holidays. Bray was not re- called for work again until August 1980. There is evi- dence that numerous other employees of lesser seniority 1i Koskela testified that before presenting the grievance Bray's name was removed from the document. worked in the smoked products division in the period from October 25 until March 1980. The complaint alleges that the Respondent violated Section 8(a)(1) and (3) of the Act by transferring Bray to a less desirable position and laying her off on or about October 24, 1979, and by discharging her on or about December 21, 1979. The General Counsel's brief conced- ed that Bray was recalled for work in August 1980, after the complaint had issued but no attempt was made to amend the complaint to delete the discharge allegation. The General Counsel asserts that Bray's transfer to the cannery on October 24, 1979, and her layoff on that date resulted from her action in protesting Wayne's action in disregarding seniority in selecting employees for layoff and recall in the smokehouse. The Respondent asserts that Bray voluntarily transferred to the cannery and that her layoff on October 24 resulted from the fact that there was a general layoff of cannery employees on that date. The resolution of the issues pertaining to Bray depends almost entirely upon choosing between the competing credibility considerations posed by the witnesses called by each side. Given all of the attendant circumstances, I am satisfied that the most plausible and credible explana- tion for Bray's transfer from the smokehouse, her reas- signment to the smokehouse for short periods each day, and her subsequent layoff is found in the scenario depict- ed by the General Counsel's witnesses Bray, Archer, Geer, and Fant. By contrast Wayne's explanation of the events pertinent to Bray is highly improbable in several respects. Wayne's denial notwithstanding, Alfieri's letter to the Washington Human Rights Department makes it clear that Wayne regarded Bray as a troublemaker. The sole basis for such a characterization which appears in this record is Bray's efforts in seeking preference on layoffs and recalls for the more senior female employees in the smokehouse in late September and her own grievance of October 22. Alfieri's report is also consistent with Bray's testimony that Wayne "exploded" when she dared raise the subject of seniority with Wayne. Following this inci- dent, Bray's testimony that Wayne became solicitous to the point of placing her in fear of losing her job is con- sistent with the testimony of Greer and Archer to the effect that Wayne acknowledged that he was engaged in a campaign to get rid of Bray. Under these circum- stances, I find that Bray's transfer to the cannery on or about October 8, 1979, was not voluntary but was con- structive in nature designed to avoid Wayne's recrimina- tion which was motivated by Bray's protected activity. The events which followed lend further credence to this finding. Thus, considering the level of hostility which ex- isted between Wayne and Archer, I find it highly im- probable that Archer would grant Bray's transfer request and then almost immediately direct Bray to return to the smokehouse to perform cleaning chores absent consider- able compulsion on Archer's part which is explained in Archer's testimony. By contast, Wayne's explanation that Bray was reassigned to the smokehouse cleaning chores after he explained the need for cleanliness to Archer is most improbable. After all, Archer was not such a neo- 743 DECISIONS OF NATIONAL LABOR RELATIONS BOARD phyte in the fish processing business as to require an ex- planation concerning the need for cleanliness. It is also pertinent to note that the special need for Bray's cleaning talents lasted only 2 weeks notwithstanding that others on the smokehouse crew continued to work regularly until late January 1980. Furthermore, there is a clear ele- ment of deceit in Wayne's message to Bray on October 24 to the effect that her services would no longer be needed in the smokehouse as Barcott had a permanent job for her in the cannery. That Wayne merely seized this occasion when other cannery workers were being laid off to rid himself of Bray who had complained to the Union about Wayne only 2 days earlier is confirmed by Fant's testimony. There was considerable testimony that Bray lacked the skill to filet fish on a production basis as well as others in the smokehouse-most notably Wells and Malloy. Al- though the evidence indicates that Bray was not as skilled in this regard as others, this fact does not account entirely for the unavailability of work in the smokehouse for her especially where, as here, other evidence shows that less senior employees who lacked that skill altogeth- er were retained considerably beyond October 24. In summary, I find that Wayne commenced a cam- paign of harassment against Bray as a result of her com- plaints concerning seniority which led Bray to be trans- ferred on or about October 8, 1979; that when Bray was successful in obtaining a transfer, Wayne secured her reassignment for the purpose of continuing his campaign against her; and that following Bray's written grievance to the Union, Wayne simply discontinued his utilization of her at a time when he knew she would be laid off with the other cannery employees. By the foregoing con- duct, I find that the Respondent violated Section 8(a)(1) and (3) of the Act. I further find that Wayne's declara- tive statement to Bray on October 23 to the effect that he "heard" she had written a two-page complaint about him and had given it to the Union was done solely to confirm her participation in the grievance and, as such, was unlawful interrogation within the meaning of Sec- tion 8(a)(l) of the Act. 2. Caryl Liles Liles was initially employed by the Respondent in July 1979, and in the early part of September she was trans- ferred from the cannery to the smoked products division. According to Liles, shortly after her transfer to the smoked products division Wayne took her into the office and gave her a pep talk about learning the work and per- forming recordkeeping chores for him. For this effort, Liles was promised that she would become Wayne's "firsthand lady." Shortly after the middle of October, Liles and another young smoked products division worker, Debra Fant, were asked by Wayne to work overtime. At approxi- mately 7 p.m. on the particular evening, Wayne and an- other products division employee, Elmer Goodin, went into Wayne's office to have a beer. Liles and Fant were asked to join them. During the time that they were in the office, Archer came into the smoked products divi- sion building on at least two occasions and both Liles and Fant were fearful that Archer would observe them drinking beer. Nonetheless, nothing of consequence came to Archer's presence and the group of four continued chatting until about 7:30 p.m., when Wayne announced that he was going to the Scoha Restaurant and Bar in downtown Anacortes with Goodin to have dinner. Wayne instructed Liles and Fant to watch over some fish which were in the smoking ovens and to contact him at the restaurant if anything untoward occurred. By approximately 9 p.m., Liles and Fant completed the work that they were assigned to do and waited until ap- proximately 9:30 p.m. for Wayne's return. Finally, Liles contacted Wayne at the restaurant and told him that they had completed what they were to do and inquired about going home. Wayne authorized Fant to leave but told Liles to remain and watch the ovens. Following instruc- tions, Fant left and Liles remained. At approximately 11:45 p.m., Wayne and Goodin returned. Liles testified that both men were intoxicated to the point that they could hardly walk straight. At that time, Wayne looked over the work which Liles and Fant had performed, complimented Liles, put his arm around her, and invited her to join the two men for what would have been a nightcap. Liles refused and asked to be excused. Wayne permitted Liles to leave, tendering her a couple of smoked sockeye in appreciation. Liles claims to have been frightened by what she per- ceived as Wayne's drunken state and, after a couple of days, reported the incident to Archer. Although Liles gave no indication that she told any other employee of the incident, Archer asserted that she had earlier learned of the incident from another, unspecified employee. Ac- cording to Archer, Liles recited substantially the same story as is set forth above, which is based on Liles' cred- ited testimony. Archer testified that Liles told her that she was frightened by Wayne when he came back to work so drunk. Archer testified that she was very upset because of this and other events involving Wayne so she went to Barcott, told him of the Liles incident, and urged Bar- cott to call owner Duffy or the board of directors in order to have a meeting to "iron this thing out." Archer testified that Barcott contacted Duffy the following day and Duffy, Barcott, and herself met in Barcott's office. Archer relayed the story involving Fant and Liles work- ing late. According to Archer, Duffy remarked, "... what in the hell does he think we are running, some kind of whorehouse?" Duffy agreed to have the board of di- rectors make in inquiry into the incident. Ivor Jones testified that he was called initially by Duffy and informed of allegations that Wayne was sex- ually harassing female employees. Jones thought the alle- gations sufficiently serious to warrant an inquiry by the board of directors. As a consequence, all of the owners arrived at the plant on October 22 in order to investigate the incident involving Liles which had been reported to them. Among others, they interviewed Liles who report- ed the late night incident which allegedly occurred with Wayne. Liles also told the owners that Wayne had previ- ously asked her out; that he had told her of a bar he could get her in even though she was under age; and that he was verbally abusive. In the course of the inquiry 744 EBB TIDE PROCESSING. INC. to Liles, she was asked if Archer had put her up to the complaint and Liles denied that was the case. However, Wayne and Suzzanne Mayes were also interviewed. Jones testified that Wayne denied the incident reported by Liles and was amazed at the allegation that he had touched Liles or was attempting to "get in her pants.' The apparent purpose of interviewing Mayes was to get a firsthand estimate of precisely what was going on among the supervisors at the facility as Mayes, the office secretary, was in a position to overhear many of their conversations. Mayes testified that she told the board of directors about "everything." Archer asserts that she was also interveiwed by the board of directors during the in- quiry which was conducted in Barcott's office and that Ivor Jones accused her, "of being an agitator, of going to union meetings, and telling the people to draw up union complaints; and that at that time, he presented a letter that Bea [Bray] had written to the union." Jones and Alfieri both dispute that Archer was interviewed in Barcott's office in the course of the October 22 inquiry. Instead, both men assert that there was a conversation among the three of them in their automobile following the conclusion of the meeting. Because of impressions which the board of directors formed in the course of the inquiry, Archer and her brother-in-law, Geer, were ter- minated on October 24, as will be described in further detail below. On October 30, it was brought to Wayne's attention by Lorraine Station that Liles was suffering from herpes and Station questioned whether Liles should continue working in the smokehouse. Wayne confronted Liles and confirmed the report. As a consequence, Wayne request- ed that Liles leave at noon and either bring a note from her treating physician or have the physician call him di- rectly to assure him that the infection would not pose a hazard in her work. Wayne and Liles do not seriously dispute the events of October 30. According to Liles, she returned to work the follow- ing morning at approximately 7:30 and, in the presence of Pat Malloy, Wayne asked if she had brought the re- quested health certificate. Liles reported that she had but that she had forgotten to bring it with her from the glove compartment in her automobile which was in the plant parking lot. Liles testified that Wayne then told her not to bother because she would not need it as she was being laid off because they were starting to make salmon jerky and would not need as many employees. The evi- dence establishes that no other smoked products division employees were laid off at or about this time. Liles testi- fied that she was upset as she believed Wayne had been most satisfied with her work and had promised contin- ued employment as long as there was work to do. Wayne disputes Liles' version of the events of the morning of October 31. According to Wayne, Liles came into the smokehouse without the requested health certifi- cate and asserted that she had left the note at home. Wayne testified that he told Liles that she could not return to work without the certificate and that Liles then left and has not reported back to work since that time. Although Pat Malloy was called as a witness in connec- tion with other matters by the Respondent, no inquiry was made of Malloy's knowledge of the events of the morning of October 31. On the basis of the extrinsic evidence, I have conclud- ed that Wayne's version of the events on the morning of October 31 is not truthful. Thus, under the collective- bargaining agreement in effect, one of the basis for termi- nating employees without a prior written warning is the failure to report to work or report an absence for 2 con- secutive days. Under Wayne's version of the events, Liles would clearly have been subject to termination. In- asmuch as Wayne issued a written warning to employee Debra Fant (which is discussed more fully below) in the middle of November which warned her of the possibility of termination for failing to properly notify the Respond- ent concerning "tardiness," it does not seem plausible to excuse Wayne's failure to terminate Liles on the notion that he was unaware that it was the Respondent's policy to terminate employees who fail to report for work. Ac- cording to Mayes' testimony and the collective-bargain- ing agreement, a terminated employee forfeits accrued vacation pay. Mayes also testified that terminated em- ployees do not have their insurance benefits continued until their accrued benefits are used up as do laid-off em- ployees. Nevertheless, in Liles' instance, her medical in- surance was continued through the entire month of No- vember and, in early April 1980, Liles was paid her ac- crued vacation pay, both consistent with her testimony that she was laid off. In view of these circumstances and the fact that the Respondent, once having called Malloy as a witness, made no inquiry of him in an effort to dis- pute the testimony given by Liles about the events on the morning of October 31, 1 find that Liles' assertion that she was laid off by Wayne on October 31 is credi- ble. Having concluded that Liles' testimony concerning her employment after October 31 is credible, and that Wayne's version is obviously not truthful, the inference that Liles' layoff resulted from her central role in the board of director's inquiry into Wayne's conduct is the only explanation contained in this record for her invol- untary departure from the Respondent's employ on Oc- tober 31. There is no indication that since her layoff Liles was ever recalled. In asserting that Liles' action in complaining first to Archer and then to the Respondent's board of directors about the late night incident with Wayne, the General Counsel argues that Liles was engaged in concerted ac- tivity. Thus, the General Counsel argued as follows on brief: Respondent's conduct in discharging or laying off Liles was in retaliation for her concerted protected activities and thus violative of Section 8(a)(1) of the Act as she was acting for the mutual aid and protec- tion of other women employees. [Emphasis supplied.] In Air Surrey Corporation, 229 NLRB 1064 (1977), the Board observed that the solitary activities of an employ- ee may be considered to be concerted in nature if they relate to conditions of employment that are matters of mutual conern to all affected employees. However, absent direct evidence that a matter complained of was of concern to other employees, there must be some basis 745 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to presume that the matter complained of was of such moment as to be of concern to the other employees. See, e.g., Capitol Ornamental Concrete Specialties, Inc., 248 NLRB 851 (1980); Midland Frame Division. Midland-Ross Corporation, 216 NLRB 302 (1975). In this case, the Gen- eral Counsel presented no direct evidence that the mat- ters complained of by Liles was of moment to other em- ployees so the question is reduced to whether or not, in the circumstances shown to exist here, it is reasonable to presume that the matters complained of by Liles would be of some moment to other employees. I am satisfied that, in complaining first to Archer and then to the Respondent's board of directors, Liles was engaged in a form of concerted activity. Thus, in my judgment, it is reasonable to presume that complaints about being confronted by a supervisor (whether or not there were any amorous advances) whose sobriety is open to considerable question after 16 hours on the job is a matter which would be of considerable moment to all employees except those who may bear some personal animus toward the complaining employee. Moreover, Ivor Jones testified that the board of directors conducted its unusual inquiry when it learned of the incident be- cause of the Respondent's concern for its other female employees. Hence, it would be paradoxical to presume, in light of the circumstances and Jones' testimony, that the matter was of no moment to other employees of the Respondent. Accordingly, I find that, by complaining first to Archer and then to the Respondent's board of di- rectors concerning Wayne's conduct on the evening in question, Liles was engaged in a form of concerted activ- ity. 2 Having concluded that Wayne's explanation for Liles' layoff is not truthful, it is reasonable to infer from this record that the real explanation for her layoff is that Wayne retaliated against her because of her report of the overtime incident to Archer and the board of directors. As it is my conclusion that by doing so Liles was acting concertedly, I find that the Respondent, in laying Liles off, violated Section 8(a)(1) of the Act. 3. Doyle Geer Doyle Geer commenced working for the Respondent in 1978 when the smoked products division was initially being organized. Geer described his position as leadman- assistant manager of the smoked products division under Sandvick. Following Sandvick's departure in early Sep- tember 1979, Geer served as the interim manager until Wayne took charge of the smoked products division in late September. According to Geer, Barcott advised him at the time when Wayne was transferred from the docks that he was to revert back to his leadman-assistant man- ager position. Moreover, Geer testified that during the period when he served as the interim manager there were in effect no employees working in the smoked products division. Although it was disputed that Geer was a member of the Union, there is undisputed evidence 12 In so concluding, I find it unnecessary here to determine whether or not Wayne's conduct could be categorized as tantamount to unlawful ha- rassment of female employees. Whether or not a complaint concerning working conditions is meritorious is not normally relevant in determining the question related to the concerted nature of the protest. that Geer served on the Union's negotiating committee during the negotiations for the 1979 collective-bargaining agreement. There is evidence that, upon Wayne's arrival in the smoked products division, friction soon developed be- tween Wayne and Geer. Thus, as noted above, Geer was allegedly referred to by Wayne as a "worm and pip- squeak." Geer asserted that part of the friction resulted from his attempts to defend some of the smoked prod- ucts' employees from Wayne's hostile assessments. Ac- cording to Geer, he confronted Wayne on one occasion in early October about remarks between Wayne and Ray Wells on the previous evening. Wayne responded in a most hostile fashion saying that Wells was a "no good lying son-of-a-bitch . . . that he was not to be trusted, that he was a troublemaker and that he wanted him fired." Geer testified that he told Wayne that, because the plant was a union shop, he could not fire people just because he did not like them and that Wells had thereto- fore worked hard in the smokehouse. According to Geer, Wayne responded by saying "fuck the union"-a remark, according to Geer, Wayne used on a number of occasions after that. Subsequently, Geer, at Wells' re- quest, acted as a go-between with Archer in obtaining Wells' transfer to the cannery. It is most unlikely that this conduct endeared Geer to Wayne. On another occa- sion, Geer alleges that Wayne asserted that Myra Strom ought to be fired, and again Geer reminded Wayne that he could not fire employees simply because he did not like them. According to Geer, on October 15 Wayne advised him in the presence of Barcott ahd Archer that he was being "reduced to the lowest private in the smokehouse." Geer testified that he was also told by Wayne that henceforth he was to take his orders from Pat Malloy, another em- ployee in the smokehouse. There is no evidence as to what, if anything, precipitated this action on Wayne's part. Wayne denied that it occurred and Malloy denied ever being placed in charge of other employees in the smoked products division. Geer's discharge occurred on October 24, 1979, only 9 days after allegedly being reduced to the "lowest private in the smokehouse." As Geer recounted the circum- stances at that time, Barcott came to him about 3:30 p.m. and told him to punch out by 4 p.m. as he would not be needed again. In addition, Barcott advised Geer to come to the office and get a check for his time plus 2 weeks' severance pay and his accrued vacation. When Geer went to the office, he asked Barcott why he was termi- nated, and Barcott simply advised him that it was be- cause he could not get along with Wayne. According to Ivor Jones, the board of directors met in Seattle following the trip to Anacortes for the Liles' in- quiry and decided some fundamental changes had to be made. Jones described the elements of the decision in the following manner: . . .part of our decision was that there would be a policy change, that we were aware of what the policies were at other plants along with our own 746 EBB TIDE PROCESSING, INC. and felt that there was just too much of an inter- family mixture in this plant. I said there were a few things that have to take place here. We have to start reducing the amount of overhead we have in the plant when it is not oper- ating, we need to have a quality product which we were not getting out of the plant, we needed more people working and less walking around, and that we had to have a chain of command that you were not trying to tell a sister or a mother or a brother or a cousin what to do. Because of these four things that we brought up at this meeting [in Seattle], we felt that we had given more than a fair chance for these things to take place with the present people we had in com- mand there and that it was time to change the su- pervisory help there and to bring in different help come the following season. That was not the only reason. There was a lack of work at that time. There were [sic] not a lot of work going on to war- rant these type of people being there on a year around basis. Bob Barcolt agreed at this time that we were right. I had Bob Barcott come down to Delta Marine at Seattle and I told him these things. He agreed with me 100 percent. He said it is difficult, sometimes, to run an operation when you have rela- tives in it. Sometimes you need them and you cannot find anybody else, and it is difficult to termi- nate anybody that is a relative or a cousin or a brother. This made it a lot easier for him, coming from the board of directors, that this would, in fact, what took place. Barcott did not testify nor was his absence explained. Archer was terminated at the same time. The General Counsel, contrary to the Respondent, contends that, to the extent that Geer did have any su- pervisory indicia as the leadman-assistant manager of the smoked products division, his authority in this regard ef- fectively terminated when Wayne reduced Geer to "the lowest private in the smokehouse" on October 15. As- suming arguendo that this is the case, the allegation that the Respondent violated Section 8(a)(3) by its termina- tion of Geer is simply not supported by a preponderance of the evidence herein. The General Counsel relies upon Geer's defense of certain smoked products division workers and his ad- vancement of the collective-bargaining agreement in his conversations with Wayne concerning Wayne's desire to terminate certain employees as the basis for the Respond- ent's action against Geer. Having concluded that Wayne did terminate Bray in violation of Section 8(a)(3) of the Act and that Liles was surreptitiously eliminated by Wayne, there is substantial reason to believe that Wayne harbored a significant amount of ill will toward the Union and anyone else who attempted to question his au- thority. However, the nexus between Wayne's hostility, Geer's protected activity, if any, and his discharge by Barcott is glaringly absent. As noted, Geer's alleged re- duction to the lowest private in the smokehouse on Oc- tober 15 is-insofar as the record evidence is con- cerned-totally unexplained. Although both Barcott and Archer were allegedly present, one did not testify at all and the other provided no explanation of what caused this particular disturbance. In going further to seek an explanation for Geer's discharge, the record is likewise without explanation except for the reasonably plausible explanation provided by Ivor Jones. If, as the General Counsel asserts, Geer's protected or union activity played any role in the decision to discharge him, it is highly likely that Geer's brother-in-law, Barcott, would have known of it and the fact that he may not have known of it makes it most likely that the protected activ- ity relied upon by the General Counsel was not the cause of Geer's termination. Hence, Barcott's absence as a witness is exceedingly significant because it tends to support the latter inference; to wit, Geer's protected ac- tivity had nothing to do with his termination. Having been terminated himself in February 1980, the Respond- ent's failure to call Barcott-especially in view of Ar- cher's demonstrated hostility-provides a reasonable ex- planation for the Respondent not seeking to utilize Bar- cott as a cooperative witness in support of Jones' testi- mony. By contrast, the General Counsel provided no such explanation for the failure to call Barcott. And in these circumstances, it is reasonable to presume that Bar- cott would not support Geer's claim that any union or protected activity motivated his discharge. As the Su- preme Court long ago observed: "The production of weak evidence when strong evidence is available can only lead to the conclusion that the strong would have been adverse." Interstate Circuit, Inc. v. U.S., 306 U.S. 208. 276 (1939). Although it may be true that Doyle Geer was a victim of Wayne's union hostility, the Gener- al Counsel has not proven that to be the case here. I shall, therefore, recommend that the complaint be dis- missed as to Geer. 4. Debra Fant Debra Fant was employed by the Respondent from July 1979 through January 1980 when she was laid off. During the first 2 months of her employment, Fant work in the cannery and thereafter she was transferred to the smoked products division. In the early part of November 1979, Fant was injured in a motorcycle accident and was absent from work for a few days. Upon her return, Wayne assigned Fant to clean his apartment on the premises of the Respondent's plant. At noon on that date, Fant asked to be released from work as her injury had commenced bleeding in the morning and she desired medical attention. Wayne au- thorized her absence, told her to take as much time as she needed, but to call in and advise him as to whether or not she would be in to work each day. Fant testified that, by noontime when she was released from work, she had completed cleaning all of the apartment save the bathroom. 747 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As a result of the flareup of Fant's injury, she was absent from work for 3-1/2 additional days. When Fant reported back to work, she noticed immediately that her timecard was not in place so she set out to learn why. Upon doing so, Wayne allegedly called her into his office, shut the door, and informed her that she was "through" because she had not called in as instructed while she was absent from work and that she had not satisfactorily cleaned the bathroom of his apartment. For some reason not explained by the record herein, Wayne appears to have had a change of heart about terminating Fant as it appears that she continued to work following this conversation. However, approximately a week later, Fant was told by Wayne to go to the office as the secre- tary had a letter for her. The letter (dated November 9, 1979) turned out to be a warning letter signed by Wayne reciting that Fant's work performance and tardiness record were below par. The letter also advised Fant that absent immediate improvement she would be terminated. After receiving the warning letter, Fant confronted Wayne about it and Wayne advised her that, if she did not like the letter, she "didn't have to work here." Making no progress on her her own to obtain redress for what she perceived as an egregious wrong, Fant next contacted Union Representative Koskela. Approximately 2 weeks after receiving the written reprimand, Fant, Koskela, and John Kaschak, a union steward, met with Wayne in his office about the warning letter. At this time, Koskela requested that Wayne remove the letter from Fant's personnel file. Fant testified that Wayne "just blew up and called her a poor worker with a bad attitude and a filthy mouth who always talked back." Needless to say, Wayne did not act favorably on Koske- la's request. Subsequently, it appears that Fant sought recourse through several Governmental agencies. Between the above meeting in Wayne's office and the latter part of January 1980, Fant testified that she attended several meetings with agents of the EEOC, the Human Rights Department, and the NLRB but, by the time of the hear- ing in this matter, her recollection of these meetings was dim and confused. There is no evidence as to whether or not Fant took any action with the Washington Human Rights Department or the Equal Employment Opportu- nity Commission prior to her layoff on January 30. The record demonstrates that Fant's name was initially in- cluded specifically in an NLRB charge when the instant charge was amended on February 27. However, the evi- dence shows that Fant's initial affidavit to the NLRB was dated February 4, 1980, and Fant testified that she met with a Labor Board agent prior to the time that she executed her affidavit. According to Fant, on January 24, 1980, an NLRB agent visited the Respondent's premises and went to the office. Fant also testified that Wayne went to the office. Insofar as appears in this record, Fant assumed that the NLRB agent and Wayne spoke together in the office on January 24. Moreover, according to Fant's testimony, when Wayne returned from the office, he asked her if she had said anything to the NLRB agent as her name had come up during the meeting. Fant denied that she had said anything to the NLRB agent. Wayne did not di- rectly deny that such a conversation occurred. Instead, he testified only that he did not learn of any complaint which had been made by Fant until the early to middle part of February. On January 30, 1980, Wayne informed Fant and Sheila Morin that they were being laid off at the end of the shift that day. Other evidence indicates that three or four other employees were laid off on the same date and the following day other more senior employees were also laid off as work in the smokehouse available at that time had been completed. The evidence also discloses that, on February 21, some of the smokehouse employees were recalled for a short duration, laid off again, and were not recalled until the latter part of March. Following a brief period of employment in late March, the smokehouse employees were laid off again for the remainder of the season. After learning of her layoff on January 30, Fant went to Wayne again and inquired as to whether or not he had removed the warning letter from her personnel file. According to Fant's uncontradicted testimony, Wayne replied that he had not because she had written things on him and, when Fant inquired what Wayne meant by that, Wayne allegedly replied, "you'll find out." The complaint alleges that Fant was laid off in viola- tion of Section 8(a)(4) of the Act. Here it was clearly demonstrated that Fant and nearly all, if not all, of the unit employees in the smokehouse were laid off on Janu- ary 30 and 31 because there was no work. The General Counsel made no effort whatsoever to reconcile this evi- dence with the 8(a)(4) allegation in the complaint. As it appears that all of the smoked products division unit em- ployees were laid off at the same time as Fant or the fol- lowing day, it is my conclusion that such a reconciliation is impossible. Hence, I shall recommend that paragraph 9(a) of the complaint be dismissed. Paragraph 9(b) of the complaint alleges that the Re- spondent has failed and refused to reinstate Fant since January 30, 1980. To the extent that this allegation may be construed to mean that the Respondent has not re- called Fant following her layoff on January 30, 1980, I find that the General Counsel has failed to sustain the burden of proof in such respect. Thus, the record herein fails to establish that any individual of lesser seniority or skill was recalled after January 30, 1980, save the brief recalls in the latter part of February and March or that any new employee has been hired since the date of Fant's layoff to replace her. Moreover, Fant testified that in late February, she went to California on a trip and the record does not indicate when Fant returned. Fant also testified that she left her mother's address and telephone number with the Respondent and speculated that she would have known of any attempts to recall her through her mother, but Fant's mother was not called as a wit- ness. Wayne testified that there was in fact an attempt to recall Fant, and other evidence establishes that in May 1980 the Respondent wrote to Fant concerning her medical insurance coverage and the letter was returned to the Respondent undelivered. Accordingly, I find that the General Counsel has failed to establish paragraph 9(b) of the complaint by a preponderance of the evi- 748 EBB TIDE PROCESSING, INC. dence and I shall recommend, therefore, that it be dis- missed. Fant's uncontradicted testimony that Wayne inquired of her on January 24 as to whether or not she had said anything to the NLRB representative is typical of the type of inquiries which the Board has held on numerous occasions to violate Section 8(a)(l) of the Act. Under or- dinary circumstances, the coercive nature of such inquir- ies can be inferred from the fact that a legitimate reason for asking about such matters is lacking or there is a rea- sonable basis to believe that a reprisal may result. Blue Flash Express, Inc., 109 NLRB 591 (1954). Having con- cluded that Wayne had previously demonstrated consid- erable hostility to protected activities of the Respond- ent's employees, I find that there is a reasonable basis upon which to conclude that the inquiry was coercive in nature. Accordingly, I find that the Respondent violated Section 8(a)(l) of the Act by Wayne's inquiry of Fant on January 24, 1980. The alleged remark by Wayne, to the effect that he would not remove the warning letter in Fant's personnel file because she had "written things about" him and the response that Fant would "find out" when she inquired as to what he meant by the earlier remark, forms the basis for the 8(a)(l) allegation in paragraph 5(d) of the complaint. Specifically, that paragraph alleges that on or about January 30, 1980, the Respondent, acting through Wayne, threatened to discharge or lay off an employee because of her union and/or protected concerted activi- ties. Fant's own testimony establishes that these remarks were made after she had been informed of her layoff. Al- though in the context these remarks were made there was no specific threat of discharge or layoff, Wayne's re- marks do indicate that he contemplated some unspecified reprisal which, insofar as this record discloses, relates back to Fant's statements to the Labor Board agent. Ac- cordingly, I find Wayne's remarks on this occasion to be an unspecified threat of reprisal because of Fant's pro- tected activity and, thus, violative of Section 8(a)(l). 11. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, oc- curring in connection with the operations of the Re- spondent described in section 1, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. III. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, it is recommended that the Respondent be ordered to cease and desist therefrom and to take certain affirmative action described below which is designed to effectuate the policies of the Act. Affirmatively, it is recommended that the Respondent be ordered to offer Beulah Bray and Caryl Liles immedi- ate and full reinstatement to their former positions in the smoked products division or, if such positions no longer exist, to substantially equivalent positions without preju-. dice to their seniority or any other rights and privileges which they previously enjoyed.' 3 To the extent that the Respondent's ability to effectuate the requirement that Bray and Liles be reinstated to their former positions be- cause of the seasonal nature of its operations in the event these two individuals accept the Respondent's offer of reinstatement, the Respondent shall be obliged to place Bray and Liles on its recall list for the smoked products division and return them to work in accord with the se- niority which they previously enjoyed and the seniority practices employed with respect to others employed in the smoked products division.' 4 It is also recommended that the Respondent be ordered to make Bray and Liles whole for the losses which they suffered as a result of the discrimination found to have been practiced against them herein. Backpay shall be computed in the manner provided by the Board in F W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon as provided by the Board in Olympic Medical Corporation, 250 NLRB 146 (1980), and Florida Steel Corporation, 231 NLRB 651 (1977). And see, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Finally, it is recommended that the Respondent be ordered to post the notice to employ- ees attached hereto as the appendix for a period of 60 consecutive days when a representative complement of its employees are actively employed in order that em- ployees may be apprised of their rights under the Act and the Respondent's obligations to remedy its unfair labor practices. ' 5 CONCLUSIONS OF LAW I. The Respondent is an employee within the meaning of Section 2(2) of the Act engaged in commerce or in an industry affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By laying off Caryl Liles on October 31, 1979; by coercively interrogating Beulah Bray on or about Octo- ber 23, 1979, and Debra Fant on or about January 24, 1980; and by threatening Debra Fant with unspecified re- prisals on January 30, 1980, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By causing Beulah Bray to transfer from the smoked products division to the cannery on or about October 8, 1979; by reassigning Beulah Bray to cleaning duties in the smoked products division on or about October 11, 1979; and by laying off Beulah Bray on or about October 24, 1979, the Respondent engaged in unfair labor prac- '1 With respect to Bray, the remedial action contemplated here pre- supposes that she will be reinstated to the position which she held prior to seeking a transfer to the cannery on or about October 8, 1979. 14 Although some evidence herein suggests that for layoff and recall purposes the employees in the cannery and the smokehouse were treated independently, this question appears to be a disputed contract matter not litigated herein. Hence, the remedial order here requires that the Re- spondent treat Bray and Liles in the same fashion as other employees of similar seniority. is The normal posting period is modified herein because of the season- al nature of the Respondent's operation. 749 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tices within the meaning of Section 8(a)(1) and (3) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent has not engaged in any other unfair labor practice alleged in the complaint. Pursuant to Section 10(c) of the Act and upon the foregoing findings of fact, conclusions of law and the entire record herein, I hereby issue the following recom- mended: ORDER' 6 The Respondent, Ebb Tide Processing, Inc., Ana- cortes, Washington, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their union or other protected concerted activities or their conduct in assisting the National Labor Relations Board in the course of its investigation of unfair labor practices. (b) Threatening employees who assist the National Labor Relations Board in the course of its investigation of unfair labor practices. (c) Laying employees off, causing employees to seek transfers from their normal and regular positions of em- ployment, or assigning employees particular duties in re- taliation for engaging in activities on behalf of Alaska Fishermen's Union, affiliated with Seafarers' Internation- al Union of North America, AFL-CIO, or because its employees have exercised other rights guaranteed to them in Section 7 of the Act. (d) In any like or related manner interfering with, re- straining, or coercing employees because they choose to engage in activities on behalf of the aforementioned labor organization or discriminating against employees in regard to their hire or tenure of employment or any term or condition of employment in order to encourage or :6 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, bhe adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. discourage membership in a labor organization except to the extent permitted by an agreement described in Sec- tion 8(a)(3) of the Act. 2. Take the following affirmative action in order to ef- fectuate the policies of the Act: (a) Offer immediate and full reinstatement to Beulah Bray and Caryl Liles and make them whole for the losses which they incurred as a result of the discrimina- tion against them in the manner specified in the section above entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary or useful to a determination of the amount of backpay due under the terms of this order and the propriety of any offer of reinstatement made to Beulah Bray and Caryl Liles. (c) Post at its Anacortes, Washington, plant copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by the Respondent's representative, shall be posted by the Respondent imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order. what steps the Respondent has taken to comply herewith. ITl IS FURTHER ORDERED that the complaint be, and the same hereby is, dismissed with respect to all allega- tions of the complaint not proven by the General Coun- sel. I7 In the event that this 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 750