Maine Apple Growers

MAINE APPLE GROWERS Maine Apple Growers, Inc. and Truck Drivers, Warehousemen & Helpers Union Local No. 340, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America. Cases 1-CA-16832 and 1-RC- 16604 January 14, 1981 DECISION, ORDER, AND DIRECTION BY MEMBERS JENKINS, PENELI.O, AND TRUESDALE On September 30, 1980, Administrative Law Judge George F. McInerny issued the attached De- cision and Report on Challenges and Objections in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed a brief in answer to the General Counsel's exceptions. 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 and Report on Challenges and Ob- jections in light of the exceptions and briefs and has decided to affirm the rulings, findings, and con- clusions of the Administrative Law Judge only to the extent consistent herewith. 1. The Administrative Law Judge found that Re- spondent delayed recall of Jean Sylvester, Lorraine Litchfield, Roberta McAllister, Kelly McAllister, and Arlene Bennett on October 4, 1979, for legiti- mate business reasons. The General Counsel has ex- cepted to this finding, claiming that Respondent failed to recall the employees in retaliation for their participation in protected concerted activity. We find merit in this exception. The record establishes that when Respondent opened for the season on September 10, 1979,1 the packing department employees approached Ivan Smith, Respondent's manager, and, through their spokesperson, Jean Sylvester, asked Smith for a raise. Smith denied the request, and the employees returned to work, but Smith testified that the inci- dent had upset him and that he thereafter detected hostility among the employees. Shortly after the meeting with Smith, the pack- ing department employees delegated two of their number to approach Kenneth Cooper, a member of Respondent's board of directors, concerning their grievances. When these informal overtures failed to produce a satisfactory response, 14 of the employ- ees drafted and signed a letter of grievances, which they sent to the board of directors through Re- All dates are in 1979 unless otherwise indicated spondent's president, Leslie Boothby. Boothby re- ceived the letter on October 1. On October 2, on a regular visit to Respondent's facility, Boothby showed the letter to Smith and Cooper. Smith asked to be permitted to handle the matter himself, but Boothby and Cooper agreed that since the letter was addressed to the board of directors, the board should consider it at the next regular meet- ing to be held the following week. Smith testified that he was upset by the directors' decision. Prior to the meeting with Boothby and Cooper on October 1, Smith had laid off all the packers. The Administrative Law Judge found, and we agree, that short layoffs were commonly ordered at this time of year in response to decreased demand for packaged apples. On October 3, because an order had been placed by Respondent's broker for apples not yet packed, Smith recalled four senior employees whom he considered to require minimal supervision. On October 4, Smith recalled the re- maining laid-off employees, regardless of seniority status, except for Sylvester, Bennett, Litchfield, and the McAllisters. On October 4, the employees who had not been recalled met with Smith in his office and demanded to know why they were still on layoff status when less senior employees were working. The testimony regarding this confrontation was at times vague and conflicting, but it is clear that the discussion was heated, that Smith addressed most of his com- ments to the group as a whole, and that he in- formed them that the "agitation" must cease if the employees expected to retain their jobs. After the October 4 meeting, during the same afternoon, the employees spoke to Smith individ- ually, either at his office or by telephone, and all returned to work on October 5 except Sylvester, who, by her own choice, returned to work on Oc- tober 8. In presenting a prima facie case of wrongful motive in Respondent's delay in recalling the five employees, the General Counsel demonstrated that all the employees had, to Respondent's knowledge, participated in the demand for a wage increase and that one of them, Sylvester, had been spokesperson for the group. The General Counsel also demon- strated that each employee had signed the griev- ance letter addressed to the board of directors and that Smith had seen the letter on October 2, the day before he recalled the first group of laid-off employees. Moreover, Smith himself testified that he had been "very upset" both by the wage demand and the fact that the employees had confronted him as a group in making the demand and by the decision of Boothby and Cooper not to allow him to re- 254 NLRB No. 60 501 DECISIONS OF NA IONAL LABOR RELATIONS BOARD solve the grievances contained in the letter. 2 Smith admitted telling the employees that their "agitating talk" was the reason they had not been recalled. The General Counsel contends, and we agree, that Respondent delayed recall of these employees in order to punish them for engaging in protected ac- tivity. Respondent maintains, however, that it failed to recall the five employees because they were pri- marily responsible for low productivity in the packing department and that the delayed recall was therefore based on legitimate business concerns. Smith testified that three employees-Litchfield, Sylvester, and Roberta McAllister-talked so much on the packing line that neither they nor the em- ployees who stopped work to listen to them were able to meet an acceptable level of production. 3 Contrary to the Administrative Law Judge, we find that Respondent's asserted business justifica- tion for the delayed recall has not been substantiat- ed. Smith testified that production had been low for some time, but that he had never spoken to the employees about production levels because even with low productivity the employees were packing more apples than were being sold. When demand increased, Smith did not inform the employees that production must increase, nor did he ever establish packaging quotas. Moreover, Smith testified that he had never maintained or enforced a no-talking rule in the packing department and that when talking became a problem his practice was to separate the offend- ing employees and place them at different work stations. Smith admitted that the packers had always talked freely and that he had not counseled the laid-off employees either about talking on the 2 One of the grievances mentioned "a definite comnmunicationl block with Mr. Smith," and a poor atmosphere i the plant that made the em- ployees fear reprisals. 3 Smith testified that he was dissatisfied with the work perfornmance of Litchfield, Sylvester, and Roberta McAllister alone; that he had tried to recall Bennett hut had been unable to reach her: and that he had failed to recall Kelly McAllister because she lived with her mother, Roberta McAllister, and "the same phone would call both of them, and I wasn't ready to settle that problem at that particular moment" As to Kelly McAllister, our decisions establish that discrimination against an employee based on the union sympathies of a family member is a violation of the Act. See, e.g., Flav-O-Rich. Inc., 234 NLRB 101 , 1015 (1978). Because we find that Respondent failed to recall Roberta McAI- lister in retaliation for her involvement in protected concerted activity, we conclude that its asserted justification for failing to recall Kelly McAllister also violates Sec. 8(a)(1). With regard to Arlene Bennett, even if we accept Respondent's justifi- cation that it had tried to recall her for work on October 4. we note that when Smith encountered her in his office on the morning of October 4, he did not invite her to begin work but, instead, remarked that while he had not previously considered her part of the "group" he would do so thereafter. Because the General Counsel demonstrated that Respondent was aware of Bennett's participation in protected concerted activities, we find that Respondent has not carried its burden of demonstrating a legiti- mate reason for failing to recall her before October 5, and we, like Re- spondent, shall include her in the group entitled to relief. line or about their productivity. 4 Nor had he fol- lowed his past practice of moving their work sta- tions to alleviate the problem. We find that Respondent's statement to its em- ployees that the "agitation" had to cease, coupled with its unexplained deviation from its normal method of disciplining overly talkative employees, establishes its unlawful motivation in failing to recall them on October 4. Accordingly, we con- clude that Respondent violated Section 8(a)(l) of the Act by delaying recall of Sylvester, Litchfield, Bennett, and the McAllisters because they had re- quested a raise in wages and had directed a letter of grievances to Respondent's board of directors. In addition, we conclude that Respondent's state- ment that the "agitating talk" must cease constitut- ed, under the circumstances of this case, a threat in violation of Section 8(a)(l) of the Act, as it intend- ed to interfere with, restrain, and coerce the em- ployees in the exercise of their Section 7 rights. 2. The Administrative Law Judge sustained the challenges to the ballots of six employees laid off from Respondent's night shift on or about October 24 and informed by letter sent on November 14, 5 days prior to the election held in Case -RC- 16604, that they would not be recalled for the re- mainder of the packing season. The General Coun- sel has excepted to the Administrative Law Judge's disposition of the challenged ballots, arguing that the conversion of layoff status from temporary to permanent violated Section 8(a)(3) and (1) of the Act because it was motivated by a desire to pre- clude the employees from voting in the union elec- tion. While we agree with the Administrative Law Judge that Respondent converted the layoff status for legitimate business reasons and that the action therefore was not unlawful, we disagree with his finding that the employees had no reasonable ex- pectation of future employment and, on that basis, his sustaining the challenges to their ballots. In assessing the expectation of future employ- ment among seasonal employees for purposes of voting eligibility, the Board considers such factors as the size of the area labor force,5 the stability of the Employer's labor requirements and the extent to which it is dependent upon seasonal labor,6 the actual reemployment season-to-season of the worker complement, 7 and the Employer's recall or preference policy regarding seasonal employees. 8 ' Smith testified that Lorraine I.itchfield. who had worked for Respoln- dent during two presious scasons. had always been one of the worst pro- ducers i the lant but that he had never befoire taken any steps to im- prose her performance. See, e g, Bau,,tr Foods, In, 1() NR1B 690 (1'971 See, e g., Klly Brothers Nurseries, In,- 140 NI R 82 (1962) = Sec, e g P (; (;rayo, 128 NLRI 1026 (196)) See. e.g, Bauoier Food. Inc., upra. 502 MAINE APPLE GROWERS is completely dependent on seasonal labor and that its labor requirements remain relatively stable from one season to the next. The record also reveals that Respondent employs local labor drawn from a small labor pool, and that the available work force is further reduced by Respondent's practice of hiring only nonprimary wage earners in its packing department. Moreover, Respondent's personnel re- cords indicate that a substantial number of employ- ees are rehired each season. The foregoing factors favor a conclusion that the six employees in question have a reasonable expec- tation of future employment even though their em- ployment was terminated for the 1979-80 season by Respondent's letter. In addition, Smith testified that he had a practice of recalling old employees, al- though, at another point in the hearing, he testified that employees who did not work to the end of the previous season lost seniority if rehired. The Ad- ministrative Law Judge interpreted this testimony to mean that Smith did not initiate rehire of em- ployees who did not finish the previous season and on that basis found that the permanently laid-off employees had no reasonable expectation of future employment. Our decisions establish, however, that in order to sustain a finding of reasonable expecta- tion of future employment, if other factors are fa- vorable, the record need establish only that the sea- sonal employees are permitted to reapply the next season and that some of them are in fact rehired. 9 Since Respondent clearly permits former employ- ees to reapply for work and in some cases acts on their applications, ° we find that the six employees laid off for the remainder of the season on Novem- ber 14 have a reasonable expectation of future em- ployment and shall overrule the challenges to their ballots. At the hearing, the Union withdrew its challenge to the ballot of Ronald Thompson. Because Thompson's ballot is now determinative of the re- sults of the election, we shall order that it be opened and counted along with the ballots of the six employees discussed above. THE REMEDY Having found that Respondent interfered with, restrained, and coerced Jean Sylvester, Lorraine Litchfield, Arlene Bennett, Kelly McAllister, and Roberta McAllister in the exercise of their Section 7 rights by threatening them and by failing to recall them on October 4, 1979, we shall order that 9 See Kelly Brolhers Nurseries. Inc.. supra. lo In addition to Kathryn Hanning, who as mentioned by the Ad- ministrative Law Judge as a rehired employee, the record discloses that Jane Stevens, Pauline Kirshner, and Debbie Trenoweth were also rehired employees who had not worked consecutive seasons since their initial employment Respondent cease and desist therefrom and take certain actions intended to effectuate the policies of the Act. We shall order Respondent to make Jean Sylvester, Lorraine Litchfield, Arlene Bennett, Kelly McAllister, and Roberta McAllister whole for any loss of earnings they may have suffered as a result of the discrimination practiced against them, with backpay computed in the manner pre- scribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and with interest thereon in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). " AMENDED CONCLUSIONS OF LAW By failing to recall Jean Sylvester, Lorraine Litchfield, Arlene Bennett, Kelly McAllister, and Roberta McAllister because they had engaged in protected concerted activities and by making a threat that tended to interfere with, restrain, and coerce them in the exercise of their Section 7 rights, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Maine Apple Growers, Inc., Buckfield, Maine, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees because of their pro- tected concerted activities. (b) Failing to recall employees because of their protected concerted activities. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Make Jean Sylvester, Lorraine Litchfield, Arlene Bennett, Kelly McAllister, and Roberta McAllister whole for any loss of earnings they may have suffered as a result of the discrimination prac- ticed against them, as provided in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, I See, generally. Isis Plumbing eauring Co, 138 NLRB 716 (1962) Member Jenkins would compute the interest due on backpay in accor- dance with his partial dissent i Olympic Medical Corporation, 250 NLRB 14h 1080) 503 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Buckfield, Maine, facility copies of the attached notice marked "Appendix."' 2 Copies of said notice, on forms provided by the Regional Director for Region , after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the challenges to the ballots of Kathryn Hanning, Wanda Keene, Gail Howard, Kelly McAllister, Julie Jack, Susan Kleeburger, and Ronald Thompson in the election held on November 19, 1979, in Case -RC-16604 be, and they hereby are, overruled. IT IS FURTHER ORDERED that Case -RC-16604 be, and it hereby is, remanded to the Regional Di- rector for Region 1 as provided below. DIRECTION It is hereby directed that, as part of the investi- gation to ascertain a representative for the purpose of collective bargaining with the Respondent Em- ployer, the Regional Director for Region I shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this Direction, open and count the ballots cast by Kathryn Han- ning, Wanda Keene, Gail Howard, Kelly McAllis- ter, Julie Jack, Susan Kleeburger, and Ronald Thompson, and thereafter cause to be served on the parties a revised tally of ballots including there- in the count of the above-named ballots. There- after, the Regional Director shall issue the appro- priate certification in accordance with the Board's Rules and Regulations, Series 8, as amended. 2 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 all Order of the National Labor Relations Board."'' APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all 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. WE WILL NOT fail to recall employees be- cause they have engaged in protected concert- ed activities. WE WILL NOT threaten employees because they have engaged in protected concerted ac- tivities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in their exercise of the rights guaranteed them in Section 7 of the Act. WE WILL make Jean Sylvester, Lorraine Litchfield, Arlene Bennett, Kelly McAllister, and Roberta McAllister whole for any loss of earnings they may have suffered as a result of the discrimination practiced against them, with interest. MAINE APPLE GROWERS, INC. DECISION AND REPORT ON CHALLENGES AND OBJECTIONS GEORGE F. MCINERNY, Administrative Law Judge: On November 13, 1979, Truck Drivers, Warehousemen & Helpers Union Local No. 340, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen & Helpers of America, herein referred to as the Union, filed the original charge in Case -CA-16832 al- leging that Maine Apple Growers, Inc., herein referred to as Respondent, or the Company, had engaged in and was engaging in, unfair labor practices within the mean- ing of Section 8(a)(1) and (3) of the National Labor Rela- tions Act, as amended, 29 U.S.C. §151, e seq., herein re- ferred to as the Act. The charge was amended on De- cember 21, 1979, and thereafter on January 9, 1980, the Regional Director for Region 1 of the National Labor Relations Board, herein referred to as the Board, issued a complaint alleging that Respondent had violated and was violating Section 8(a)(1) and (3) the Act. On January 15, 1980, Respondent filed an answer to the complaint deny- ing the commission of any unfair labor practices. Before filing the charge in Case -CA-16832 the Union had filed a petition in Case -RC-16604 in a unit consisting of all production and maintenance employees of the Company. On October 29, 1979, the Union and the Company entered into a Stipulation for Certification Upon Consent Election. Pursuant to this stipulation an 504 MAINE APPLE GROWERS election was conducted by the Board's Regional Office on November 19, 1979. The results of this election showed seven votes for the Union, eight votes against it, and seven challenged ballots. The challeged ballots are thus determinative of the results of the election. On No- vember 27, 1979, the Union filed with the said Regional Director objections to conduct by the Company affect- ing the results of the election. After investigation the Re- gional Director concluded that the subject matter of sev- eral of the Union's objections was identical to matters in Case -CA-16832; and the status of certain of the chal- lenged ballots raised issues identical with other issues in the unfair labor practice cases; and, since he had already determined to issue a complaint in that unfair labor prac- tice case, that the matters raised in these objections and challenges should be resolved in a hearing before an ad- ministrative law judge together with the issues in the unfair labor practice case. Accordingly the Regional Director, when issuing the above-mentioned complaint, issued an order consolidat- ing Case -CA-16832 with Case -RC-16604. Pursuant to notice contained in said complaint, and subsequent orders, a hearing was held before me at Lewiston, Maine, on March 26, 27, and 28, 1980, at which all par- ties had the opportunity to present testimony and docu- mentary evidence, to examine and cross-examine wit- nesses, and to argue orally. After the hearing Respondent and the General Counsel submitted briefs, which have been carefully considered. Upon the entire record, including my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Maine Apple Growers, Inc.; is a Maine corporation having its principal office and place of business in the town of Buckfield, Maine, where it is engaged in the business of storing, sorting, and packing apples. It annu- ally receives goods and materials valued in excess of $50,000 directly from points outside the State of Maine, and annually ships goods valued at over $50,000 directly to points outside the State of Maine. The complaint al- leges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that Truck Drivers, Warehousemen & Helpers Union Local No. 340, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Despite the implications of its name, Maine Apple Growers, Inc., is not engaged in growing apples, but in storing and packing them. However Respondent does operate as a seasonal enterprise because of the nature of the product it handles. Within the broad category as a seasonal business there are both functional and temporal divisions to that business. Functionally, Respondent op- erates both as a storage facility and as a packer. Some customers use these facilities both for storage and pack- ing of their crop, while others, and this will become sig- nificant later, use the storage but remove and pack some or all of their own fruit. In addition to this division of Respondent's functions, the season is divided into three parts, the "fall-pack," "regular storage," and "controlled atmosphere" or "CA" seasons. The first division begins in September when the apples are picked and moved by the growers into the ware- house. As the apples are picked they are placed by vari- ety into large bins containing 15 bushels or boxes. 2 These bins are recorded by variety and grower and then are placed in storage by Respondent's employees. At this time, early in the season, the work of storing and pack- ing goes on simultaneously. According to the Company's manager, Ivan Smith, this is a busy and hectic time be- cause of the need to store the crop, and at the same time pack as much as possible because of favorable market conditions, and because apples packed in this fall-pack season do not require expensive storage. Thus, during the fall-pack Respondent hires as many packers as it can fit into its packing room to pack as much fruit as possi- ble. The fall-pack runs until about the end of October, by which time the growers have moved almost all their crop into the warehouse and the market demand has slacked off. The packing operation then begins to use regular storage fruit. This type of storage is basically re- frigerated storage where apples, depending on variety, are stored in rooms where a temperature range of 32 to 36 degrees is maintained. Business is not as good during this season except that Smith indicated there was some increase on account of the Thanksgiving and Christmas holidays. Packing of regular storage continues until about the middle of January when the first of the controlled atmo- sphere apples are ready to be used. 3 Controlled atmo- Respondent was once organized as a growers' cooperative, but some time prior to the events of this case became a corporation All of the shareholders, however, are growers. These shareholder-growers are enti- tled to reserve storage space with Respondent proportionally to the shares each owns. There are 17 shareholders, all of whom use the storage facility, and there are other growers using the facility who are not share- holders. The day-to-day operations are run by Manager Ivan Smith, but policy decisions are reserved to a five-person board of directors which meets monthly Two of the directors, Leslie Boothby, who is also the Company's president, and Kenneth Cooper, figure in the facts of this case. 2 It is curious to relate, but no one at this hearing was able to define a "bushel" except to say that a bushel was the quantity of apples which would fill a "standard eastern apple box." A couple of these were used to bring documents into the hearing and it appeared to me that they mea- sure about IR by 12 by 12 inches. This, then, is the basic trade unit dis- cussed in the hearing and mentioned in the exhibits. 3 There is, apparently, some sort of law or regulation which provides that these apples must remain in a controlled atmosphere for at least 90 days 505 I)ECISIONS OF NATIONAL, LABOR RELATIONS BO)ARD and by the replacement of oxygen in the storage facilities with nitrogen to retard the ripening of the apples and to prevent rot. This permits the packing and sale of fresh fruit on a year-round basis. At Respondent, however, all of the apples in its CA rooms are packed and sold gener- ally by the end of June. There is, I understand, some overlap in these three subseasons, depending on the size of the crop, demand, and other factors, but this is generally as it was described on the record of this hearing. The Company employs a varying number of packers during the period from September through June.4 Tradi- tionally all of the packers are women, and there is some evidence that none of these women are the primary wage earners in their families. Before the introduction of a grading machine about 5 years before the time of this hearing, the packers were paid on a piece-rate basis de- pending on the number of boxes they filled, but after the grader was purchased they were paid the minimum wage required by the Fair Labor Standards Act. Employment arrangements at the Company are in Ivan Smith's words, "loose." As manager, Smith handles all hiring, firing, and any disciplinary actions. There is, however, something of a pattern in the hiring process. Smith testified that jobs were not guaranteed from season to season. As he put it, there "has been no past agreement that they are automatically coming back." He added, however, that they have in the past, so it has been "a tradition," as the opening of the season ap- proached, called the employees who had been working at the end of the previous season and asked if they wanted to return. An analysis of the Company's payroll records submitted in evidence here shows that to be true.5 Of 12 employees on the payroll as of May 22, 1977, the last full payroll for the 1976-77 season, 8 ap- peared on the first full payroll of the 1977-78 season, the week ending September 11, 1977. The payroll for the week ending June 4, 1978, showed 22 names, and 15 of these appeared on the payroll for the week ending Sep- tember 17, 1978. The payroll for the final full week of the 1978-79 season showed 17 employees and 13 of those appeared on the first full payroll of the 1979-80 season. The payroll records also show considerable turnover. There seems to be a cadre of regular employees. Of the 12 employees listed on the May 22, 1977, payroll, 7 still were employed as of September 16, 1979. Beyond this group there are others who work for varying periods of time within the work year, and some who appear for a few weeks and then are gone. Thus, as Smith testified, he calls only the employees who were working at the end of the season, and fills his roster through new appli- cants. 4 While the bargaining unit in the stipulation is described as "all pro- duction and maintenance employees," and there is evidence that there were others in this category, the facts in this case concern exclusively the packers. I In reviewing these records I note that there is no breakdown be- tween packers and other bargaining unit employees. Thus, in making my computations I have eliminated the names of Ivan Smith, the manager, and Meredith Thompson, the bookkeeper, and counted all the others The fact that a few of these are evidently part-time workers is not really material. Smith also utilizes a rough-cut, highly personalized se- niority system in implementing the frequent in-season layoffs. He indicated, and the records bear out the fact, that it does not take long for an employee to become "old help" or to acquire seniority. Thus I year of steady work would give an employee, under Smith's system, the right to be called back for the next season. However, this seniority can be broken rather easily. An employee named Kathy Hanning had worked off and on for about 9 years, but she declined an offer to return from a layoff in January 1979 and was not called back in September.6 With this background, which I think is necessary for an understanding of the nature of the business and some of the Company's practices, I turn to the substantive facts. B. The October 4, 1979, Incident The 1979-80 fall-pack began on September 10, 1979. On that day there were 21 employees on the payroll, in- cluding, as I have noted, 13 who were on the final pay- roll for the 1978-79 season. At some time during that day the packers got together and agreed that they would ask Ivan Smith for a raise in wages. Employee Jean Syl- vester was chosen as spokesperson but they all ap- proached Smith as a group. Sylvester asked if it was pos- sible for them to get a raise, and Smith said no. When asked for a reason Smith explained that the Company was a minimum wage employer; that the Company did not hire primary wage eartners; and that the employees were eligible for unemployment compensation, which was not true in other shops. This conversation ended there but the matter did not. Smith testified that he was upset because the employees had approached him as a group. He also noted a hostile attitude toward him after this incident on the part of the packers. The employees, in turn, did not let the matter rest there. They met again after Smith's refusal to grant them a raise and decided to have one of their number, Roberta McAllister, call Kenneth Cooper, one of the di- rectors of Respondent. She called Cooper and asked him if he could arrange for them to attend a board meeting and talk to the directors about a raise. He said he would see what he could do and would get back to her. He never did. McAllister mentioned this conversation and its lack of results to Gail Howard, another employee. Howard volunteered to speak to Cooper if she saw him at church the next Sunday, September 23.7 She did so and Cooper informed her that he had not returned McAllister's call because his understanding was that Smith was going to talk to her and get a list of employee grievances. Smith did not ask McAllister for a list of grievances, so on September 27 the employees made up a list of their grievances. Jean Sylvester wrote it out in longhand and they mailed it to the board of directors. 8 The list of She did call Smith, however, and was rehired The circumstances of this and of Arlene Bennett's "resignation" will be discussed below. All dates herein are in 1979. ' The list was sent, certified mail, t Century Elm Farms, Inc., which apparently is Boothby's place of business since he identified the letter as Continued 506 MAINE APP'LE GROWERS grievances was headed, of course, by wages, but also in- cluded complaints about the fumes from a forklift in the shop, the lack of heat in the shop, lack of adequate cleanup time, and several safety items. They also ex- pressed concern about the lack of satisfactory communi- cations between Smith and themselves. They mentioned their fear that they would be "harmed" or laid off be- cause of the atmosphere in the shop. The letter was signed by 14 of the 21 employees. The letter was postmarked September 28 and appar- ently was received by Boothby on October 1. The em- ployees were under the impression that the board of di- rectors met on the first Tuesday of each month, whereas the meeting was in fact scheduled for the second Tues- day. Thus Boothby took the letter with him the next time he took a load of apples to the company warehouse. He met there, informally, with Smith and Cooper.9 Smith specified that this meeting occurred on October 2, which is consistent with Boothby's testimony, although the latter was unclear on the date. In any event the two directors and the manager discussed the letter. Smith urged them to let him handle the matter, but the direc- tors felt that since the letter was addressed to them they would discuss it at their next regular meeting on the fol- lowing Tuesday. Smith admitted that he was "very upset" by the letter, particularly because he did not need this kind of aggravation at this time of the year when the crop was coming in, and the pace was somewhat frantic in the shop.' In the meantime, during the previous week, Smith de- termined that there was too much packed fruit on hand so he determined to lay off the packers for a week in order to clear out the surplus. According to Smith this was something that happened every year. Accordingly all of the packers were laid off effective Monday, Octo- ber 1. I generally found Smith to be a credible witness. His appearance was candid and forthright and he made no effort to dissemble or dodge questions, even though, as when he admitted being very upset over the September 27 grievance letter, his testimony sometimes was con- trary to Respondent's interests. Further, his statements may be verified by reference to the production and pay- roll records submitted in evidence. On this layoff, for ex- ample, the payroll records show that all of the packers were laid off on October I and 2. The payrolls for previ- ous years show similar layoffs in roughly the same time period. In the 1976-77 season the packers worked 4 days in the weeks ending September 26 and October 3, and only 2 days in the week ending October 10. In the 1977- 78 season there was a 2-day layoff in the week ending October 9. In the 1978-79 season the employees worked short weeks from the week ending October 8 through November 12. During this week, Smith testified, the Company's broker called and ordered some apples which had not having been received by him. The return address on the letter was that of another employee, Geraldine Gammon. e Apparently Cooper's presence at the warehouse at that time was co- incidental. 0o He stated that he did about 40 percent of his annual work during the few weeks at the beginning of the season been packed. Smith agreed, and, on Wednesday, October 3, he called back four of those he considered his senior employees. For October 4 Smith called back the rest of the packers except for five, Roberta McAllister, her daughter Kelly McAllister, Jean Sylvester, Lorraine Litchfield, and Arlene Bennett. The employees got wind of this. Sylvester testified that she called Smith on the afternoon of October 3 and asked him why she had not been called back. He replied that he guessed she knew why. She then said that he could not call lower-seniority employees back before more senior employees. He said that he guessed she would find out that he could. With that she told him that they would see about that, and hung up the telephone. Kathy Hanning testified that Smith called her on Oc- tober 3 to come back to work the next day. She added that Smith told her there were going to be some changes and that some of the "girls" were not coming back "be- cause of the trouble they had caused." These "girls" were Lorraine Litchfield, Jean Sylvester, and Roberta McAllister. With this information the packers met in a group on the evening of October 3 at Jean Sylvester's house.12 They discussed the layoff and decided that they needed some kind of protection and representation. They deter- mined that they would try to get a union in, and Han- ning's husband called Adelard LeCompte, a Teamsters representative, and a meeting was set up with him for the following night at Hanning's house. On the morning of October 4 the five employees who had not been recalled went to Respondent's office to pick up layoff slips, which they needed to collect unem- ployment compensation, and, I suspect, to confront Smith as well. They picked up their layoff slips and did engage in a discussion with Smith. There is very little consistency in the several reports of this meeting by the employees who testified about it. Sylvester remembered nothing, she was upset. Bennett stated that Smith said to her at the beginning of the meeting that she was "not in- volved in this," and that he had tried to reach her on the day before to call her back. She did not remember too much more, but said she had done some "yelling" and was upset. She denied that she had quit during the meet- ing, but did admit that she had said that it was not doing any good to talk and that she "would wait outside for the girls." She then walked out. In contrast to these witnesses, who displayed a serious want of memory on this important incident, Kelly McAl- lister testified that the five employees went in as a group and Smith asked them to sit down and he would discuss the matter with them. When they started to ask why " The payroll for that date shows that these employees were Char- lotte Bradeen, who had, as shown on the September 27 grievance letter, 25 years with the Company; Jane Stevens, 18 years; Pauline Kirschner, 8 years; and Debbie Trenoweth, almost 4 years This accords with the se- niority claimed by each employee who signed the September 27 letter except that Kathy Hanning claimed 9 years As I have noted above, however, Hanning had not worked a full season in 1978-79 and thus, ac- cording to Smith's rule-of-thumb seniority system. was not entitled to that seniority. 12 All of the packers were there except for Jane Stevens, Cynthia Ste- v'ens, Pauline Kirschner, and Charlotte Bradeen 507 DECISIONS OF NATIONAL LABOR RELATIONS BOARD low-seniority workers were working and they were not, Smith told Bennett that he did not think she was in the group but he guessed that, from the way she was acting, she wanted to be. He also told Kelly's mother, Roberta McAllister, that she was unproductive; he told Jean Syl- vester that she had a bad attitude; and told Kelly McAl- lister that she was "just an unfortunate member of the family." At the conclusion of this meeting Smith asked Kelly McAllister and Lorraine Litchfield to remain. He told Kelly that she was a good worker and he wanted to keep her there, and that he liked Lorraine's personality and wanted her to stay. He said he was not yet decided about the others. Roberta McAllister corroborated her daughter with respect to what Smith said to Bennett and Kelly, but added that he said that she, Roberta, spent too much time talking and not enough time working, and, further, that talking had a harmful effect on productivity. He said that productivity was substantially down in comparison to what he expected. This had been going on for some time and he felt he had to do something about it in order to retain productivity. Three of the employees made reference to the Septem- ber 27 letter. Sylvester said that Smith pulled the letter out of a drawer and waved it around, saying that the letter was not going any farther than him. Kelly McAl- lister did not say that she saw the letter, but she did tes- tify that Smith said that Charlotte Bradeen should not have signed it because she was a "floor person"13 and should have come to him, or told him about it, when "they first started it." Roberta McAllister said that Smith had the letter but said that the letter had nothing to do with why they were there. There are several postscripts to this meeting which are revealing of the real reason for the failure to call the five employees back and the motives behind the meeting itself. Sylvester testified that she called Smith later in the day and said that she wanted to talk to him about 4:30. He agreed and she came to the company office that afternoon. She told Smith that she wanted to come back to work. He replied that her negative attitude was caus- ing problems in the shop. He continued that he knew that she had problems at home but he did not want her bringing them into work with her. Finally, he added that he did not want any more "agitation out there."' 4 Bennett also called Smith later in the day on October 4. She apologized for "yelling" at the meeting that morn- ing, to which he replied that they had "burned a lot of bridges" that morning, and that he did not know wheth- er she would be working again. He then modified this to "maybe," and finally told her to come in in the morning. The next day Smith told Bennett again that he had not intended her to be in the group that were laid off. They talked about Sylvester, and Smith said that Sylvester was on the verge of a nervous breakdown, and that her nega- tive attitude was causing a lot of tension at work. Smith added that things would be a little tense for a while but :1 Bradeen described herself as a "floor lady" but there is no indica- tion that she exercises any supervisory functions. The payrolls show that she was receiving 45 cents more per hour than most other employees. 14 Sylvester did not return to work until October 8 but that was due to her own choice not to come in on Friday, October 5. in a week or two things should be back to normal. He also said that the agitation had to stop, that next time it would not be a layoff slip, they would be "done." Ben- nett returned to work on October 5. Roberta McAllister testified that she, too, called Smith later on the afternoon of October 4. She did not go into detail about this conversation but stated that he told her to come in in the morning and they would talk and "maybe" she could go back to work. She did go to work on the next morning, October 5, but she was not asked about any "talk" with Smith on her return on that day. Smith testified about problems that he encountered with employees' talking and about low productivity. He outlined things that he had done in the past, such as moving employees around or separating them to cut down on what he considered disruptive or "agitating" talk. He did admit that everybody talked all the time. According to Smith, Sylvester dominated the conversa- tion when she talked, to the point where those within earshot would stop work entirely. This situation was worse in 1979 than before, and Sylvester had a negative attitude as well. Lorraine Litchfield had an "incontrolla- bly bubbly" personality, in Smith's opinion and she was one of the lowest producers in the shop. He said that he had mentioned her talking to her, but had never given her a warning. Smith found Roberta McAllister, to be friendly, but given to too much talk. He had never given any warnings or suspensions to anyone for talking, up to October 4. Smith testified that he had a "very serious" production problem. He had noted it earlier but had not acted sooner because even with what he considered low pro- ductivity the employees were producing more than the Company's broker was selling. He had thought about this for a week or two, and, then, on October 3, he de- cided to take steps to correct this production problem. That afternoon he had a "heated" discussion with Syl- vester in which he told her she was having too much conversation and not enough production. He also ad- mitted talking to Hanning that afternoon but denied that he told her that four or five employees would not be coming back. Finally, Smith stated that Bennett had walked out of the meeting after announcing that she quit. In the October 4 meeting, Smith testified that he dis- cussed excessive talking and told the employees that they were spending too much time looking at each other in- stead of packing apples. He admitted that he talked about "agitation" but defined that word as meaning excessive talking, tying this in with the hostility he felt in the shop, due to the fact that he had denied the employees a raise. It is difficult for me to analyze the evidence on this meeting. Sylvester admitted to being upset and remem- bered only Smith waving the September 27 letter. Ben- nett was scarcely more instructive, admitting also to being upset and "yelling," eventually walking out of the meeting. Accordingly, I do not credit their version of what happended at the October 4 meeting. Neither Smith nor Roberta McAllister, both of whom appeared to me to be candid and truthful witnesses, was asked in detail about the events of that morning. Their testimony thus can be characterized as vignettes, rather 508 MAINE APPLE GROWERS than a whole picture of the meeting. Kelly McAllister, who also appeared to me to be a credible witness, could add little more to the testimony of her mother and Lor- raine Litchfield did not testify at all. 15 As a result, I infer and find that Smith called the em- ployees, or they had called him, into the October 4 meet- ing, and that he spoke mainly about productivity and ex- cessive talking. I find that the September 27 letter was mentioned but that Smith stated that the letter was not why they were there, and that Bradeen, as a floor person, should not have signed it. I infer further from the testimony of Sylvester, Bennett, and particularly that of Smith that the meeting was loud and stormy, and that Bennett walked out after announcing her intention to quit. I do not find that Smith told Kathy Hanning on October 3 that four or five employees would not be coming back to work. There is no evidence, and I do not find that Smith told an unnamed employee on October 3 that she, the unnamed employee, was part of the group that wanted the Union.' 6 Further I do not find that Smith said on October 4 that he did not know whether he would call the laid-off employees back to work, or that he did not like the way some of the packers ap- proached him as a group. Smith may have told the employees that he was teach- ing them a lesson, and he certainly did tell them on Oc- tober 4 that he wanted the "agitation" to stop. In analyz- ing these statements, however, I must consider Smith's motive, whether the statements were made, as he said, because he was concerned about production and talking, and he considered talking to be agitating; or whether these actions were the result of his concern over the em- ployees' concerted activity in approaching him for a raise, and then, after being rebuffed, taking their case to his superiors. The question under consideration is not, of course, a layoff as alleged in the complaint herein, but the recall from a layoff which had already been effected. As I have found above from Respondent's payroll records, and as admitted by Jean Sylvester in her testimony, layoffs at this time of the year are commonplace. There is no evi- dence that the layoff itself was discriminatorily motivat- ed, and it was ordered before the employees wrote their letter or mailed it to President Boothby. Thus I find that the layoff was ordered for legitimate business reasons. The payroll records show that all of the packers were laid off on October I and 2. On October 2 the letter ap- parently was brought to the warehouse by Boothby and he, Cooper, and Smith discussed it. Smith testified that he was "very upset" by the letter, and, presumably, by the fact that Boothby and Cooper decided that Smith should not handle the matters raised by the employees. On that same day, despite his concern over the letter, Smith testified that he received orders from Respond- ent's broker for additional quantities of apples, and he called back four employees for work on October 3. Those four employees had all signed the letter. Then, on October 3, Smith testified that he decided to do something about his concern over productivity by not calling back certain employees. I have examined Re- spondent's production records, and it appears that Smith did have cause for concern. Whatever the reason; the hostility Smith felt in the shop; the presence of a "worth- less" employee whose function apparently was to supply apples to the packers; or the presence of new employees; the production figures show a sharp decline. I have taken Respondent's figures, and, using the number of boxes packed divided by the number of packer days, ar- rived at a number of boxes packed per packer. Eliminat- ing the first 3 days admitted by Smith to be unrepresen- tative, I find the following: Packer o. vg. per days 1 7 packed packer 13 12-1/2 14 13-1/2 15 8 17 13 18 15 19 15 20 15 24 12 25 15 26 11-1/4 27 11-1/4 28 11-1/4 871 69.7 836 61.9 700 87.5 762 58.6 876 58.4 883 58.9 788 52.5 687 57.3 869 57.9 808 71.8 756 67.2 698 61.3 Smith testified that as a general rule he expected a production level of 60 boxes per day from each packer. It is evident from these figures that, while there was some improvement after September 25, there was some problem which was interfering with the figures. If Smith, from his own observation of the workplace and the packers, assigned blame for this problem to three of the packers, Sylvester, Litchfield, and Roberta McAllister, there is no evidence to show that he was incorrect. There is no disagreement that Smith told Arlene Bennett Is Meredith Thompson, the Company's bookkeeper. and a witness to the meeting, was no help as she remembered nothing about it '6 As far as can be determined from the record, the Union was not mentioned until the meeting at Sylvester's house on the evening of Octo- ber 3 '' These figures are derived by dividing the actual number of packers by 8 hours [he plyr)saro shtos that there ,sas no ortine orked by the packers dring this period 509 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the morning of October 4 that she was not part of "the group," that he had tried to reach her the day before, and she could go right to work. He also told Kelly McAllister that she was an "unfortunate member of the family" which Kelly, and I, took to mean that he would have called her back but for the fact that she lived at home with her mother, and he was not going to put the mother back to work at that time. Thus there is no question about the makeup of the group, and from the meeting of October 4, and the subsequent meetings, that Smith was concerned only about these three women. There seems little question but that all three of these employees participated in the meeting with Smith on September 10. Sylvester acted as spokesman for the group in an action that certainly constituted protected concerted activity. Subsequently, Sylvester actually wrote the letter of September 27, and Litchfield and Ro- berta McAllister signed it. There is no evidence, howev- er, that Litchfield or McAllister participated to any greater or lesser extent in this concerted activity than any of the other packers, including Bradeen, Kirschner, Stevens, and Trenoweth, who were identified by Sylves- ter as being at the September 10 meeting, who signed the September 27 letter, and who were all called back on October 3 according to Smith's seniority system. Of those who were called back on October 4, Geraldine Gammon had used her name and address as the return address on the envelope containing the September 27 letter, and had signed it. Others who signed and were called back on October 4 were Betty Boucher, Kathy Hanning, Wanda Keene, and Gail Howard. Other than Sylvester's activities, there is no indication that any of these employees did anything, or participated in activities other than those described, in relation to the request for a raise or the September 27 letter. In Sylvester's case there is no dispute that Smith did not point to her activi- ties in the shop, but attributed her difficulties to "prob- lems at home." It does not, then, appear to me, particularly in the ab- sence of any evidence showing hostility or animus by Smith toward the legitimate activities of the employees, that the General Counsel has shown by a preponderance of the credible evidence, that Smith's failure to recall Sylvester, Litchfield, Bennett, and the McAllisters was in retaliation for, or to discourage, the employees' concert- ed activities. None of the facts either before or after the events of October 4 reveal the slightest inclination on the part of Respondent either through Smith or the direc- tors, to use unlawful means to deter concerted, and later union, activities by its employees. C. The Speeches to Employees Continuing the chronology of events at Respondent's shop, the employees met on the evening of October 4, at Kathy Hanning's home, with Adelard LeCompte. There they signed cards for the Union, and, on October 5, Le- Compte wrote to Smith requesting recognition as the bargaining representative of Respondent's employees. Concurrently, LeCompte filed the petition in Case 1- RC-16604 with the Board's Regional Office. On October 15 Respondent established a night shift and assigned Bennett, Keene, Hanning, Howard, and Kelly McAllister to that shift. According to Smith the night shift was started because of a problem encountered by two growers, some of whose apples had developed problems with either "russet" or "rust." It was impossi- ble to process these apples in regular production because so many had to be culled, and the shop floor was too crowded during the day to permit this task to be per- formed at the same time as regular production. There were 5,000 to 7,000 boxes to be sorted, with approxi- mately 30 percent to be rejected and put into bins from which cider is made, and the remainder to go back into controlled atmosphere storage. Smith used his seniority system as the basis for selecting those assigned to the night shift. As noted above, he did not consider Hanning to be a senior employee because of her breaks in service, and he considered that Bennett had lost her seniority by quitting during the October 4 meeting.' 8 The night shift worked two nights during the week ending October 21.'9 The five employees on the night shift were joined on October 22 by two new employees, Julie Jack and Susan Kleeburger. They worked three nights in that week, and on September 24 Smith told Bennett that they would finish that night. They were laid off and Smith would let them know when there was more work avail- able. Bennett was returned to the day shift, and Keene, Hanning, Howard, Kleeburger, Jack, and Kelly McAllis- ter were laid off. On the following Monday, October 29, representatives of the Union and the Company met at the Board's office in Boston and agreed on the terms of the Stipulation for Certification Upon Consent Election in Case 1-CA- 16604. Smith was in attendance for the Company. He noted there the presence of Hanning, Howard, and Kelly McAllister, assuming that because they were sitting with the union representative they were on the Union's side. On November 7 the employees were assembled in the work room, and they were addressed by Respondent's attorney, Stephen P. Beale.2 0 At this meeting Beale stated that he was going to outline the Board's election procedures for the employees. He did so, then told the employees that his next comments would be in favor of 18 I have found that she did in fact quit, but then was rehired the next morning. There is no allegation in the complaint concerning the seniority system, or Smith's implementation of it in this instance. " The day shift worked only 2 days that week. 20 This is not alleged in the complaint to be a violation of law. Beale's speech was alleged in the objections filed by the Union to be one ground for setting aside the election. This specific objection was later withdrawn by the Union with the permission of the Regional Director. I would ordi- narily make no findings on this issue but for the fact that the General Counsel moved, near to the conclusion of this hearing, to conform the pleadings to the facts. On being questioned the General Counsel stated that the purpose of this motion was really to include as a violation of Sec. 8(a)(l) of the Act certain statements of Boothby made at a meeting on November 16. Contrary to General Counsel's assertion in his brief, he did not move to amend the complaint itself. Although I stated at one point in this record that I was denying such a motion, the record shows that a motion to amend the complaint was not made I reaffirm my denial of the motion to conform the pleadings to the facts. In my opinion it is improper and unfair to attempt to amend the complaint by means of a motion intended to remedy technical distinctions between the pleadings and the proof However, the granting of that motion would open up this November 7 incident as well to the possibility of findings of further vio- lations of law. Accordingly, I will make findings on this issue in case my ruling is later reversed 510 MAINE APPLE GROWERS the Company. He proceeded to discuss economic and unfair labor practice strikes. I do not credit the testimony of Sylvester that Beale asked them if they had all heard of Jimmy Hoffa, and that he stressed violence accompanying a strike, "two by fours" through the windows of cars, slashed tires "and so on." Nor do I credit the testimony of Bennett that Beale talked "mostly" about strikes. No one else clearly recalled what Beale said, although Charlotte Bradeen re- called that Bennett was the person who brought up the question of replacements for economic strikers, and she did say that "everyone" was talking about what would happen in a strike. Pauline Kirschner testified that Beale had brought up the fact that there was a strike at a trucking company called Sanborn's in which the Team- sters was involved, but that he said only that he had a newspaper article which anyone could read. I cannot find from this rather vague testimony that these remarks constituted a violation of Section 8(a)(l) of the Act. There was no clearly established threat or promise of benefit. Apparently the employees joined in and asked questions and participated in discussions, but there was no indication of intimidation, coercion, or un- truthfulness in the evidence on this meeting. On November 16 there was a second meeting in the shop, again attended by all the employees who were working that day.2 ' At this meeting Leslie Boothby, the president, Kenneth Cooper, a director, and Beale, all spoke to the employees. There is no real dispute about this meeting. There may be some disagreements about what Beale said to Boothby, but these have no relation to the essential facts. Boothby spoke first, introducing himself and telling them that the directors had received the September 27 letter, but could not answer it because, before they met on Oc- tober 9, they also received the demand for recognition from the Union. He went on to talk about the forklift, one of the subjects of the September 27 letter, and told the employees that the Company had been trying to get a second-hand electric forklift since the mid-August di- rectors' meeting.2 2 Boothby also said that none of the other things in the letter seemed impossible "for us to work out between ourselves," and added that, therefore, he saw no reason for the intervention of the Union, and urged the employees "to vote no for the Union." Kenneth Cooper spoke briefly and told the employees that the timing of the letter was poor, in regard to wages, mainly because business conditions were unsure, and that January would be a better time to discuss wages. Beale also spoke about the adjustments to wages in January due to the increased minimum wage mandat- ed by the Fair Labor Standards Act. I can find no violation of law in Boothby's statement that the Company could not act on the September 27 letter because of the intervening demand for recognition by the Union. The precedents in this kind of situation seem to say that the employer, when faced with a demand for recognition, or a petition for an election, 21 The payroll record shows that all the packers who were not on layoff status on that day were actually working 22 The minutes of the August 14, 1979, directors' meeting shosw that this statement was accurate. should not vary its procedures merely on that account. If, for example, a wage increase is due employees under an established employer practice, it has been held to be an unfair labor practice to fail to grant such increases solely because of the presence of the Union. It has been held to be an additional unfair labor practice for manage- ment, then, to blame and place the onus on the union for the fact that the employees did not receive their accus- tomed increase. KDEN Broadcasting Compary, a wholly owned subsidiary of North American Broadcasting Compa- ny, Inc., 225 NLRB 25 (1976). Here the complaint does not allege that the Company's failure to follow its usual practice is a violation of law, but does allege that Boothby's statement to employees that Respondent had not answered the employees' letter of September 27 does violate the law. However, there is no benefit occurring here. There is no evidence that the employees had, ever before, submitted such a letter, or attempted to negotiate with their employer in that way. Thus they were denied no benefits, and the Company's refusal in the face of the Union demand for recognition was correct in not dealing, at that point, with the em- ployees individually or as an ad hoc group about griev- ances. The complaint further alleges that Cooper's remark about September being a bad time to discuss wages is a violation of law. Again I do not agree. It seems from Cooper's remarks that he was merely restating for these employees the practice in the industry to talk about wages after the uncertainties of the harvest and the holi- day season are over. Additionally I note Smith's testimo- ny that adjustments at Respondent take place in January when the minimum wage customarily rises, and adjust- ments are made to others working above the minimum. There were no implications of threats or promises in Cooper's statements and I cannot find these statements to be other than an exercise of free speech protected by Section 8(c) of the Act. As I have noted above, the General Counsel attempted at the close of the hearing to amend the complaint through a motion to conform the pleadings to the proof. I have further noted my disapproval of the use of this method in the prosecution of unfair labor practices. Thus I denied the General Counsel's motion and there is no further allegation in the complaint concerning the No- vember 16 meeting. 23 D. The Conversation of Layoff Status On October 24, as has been described above, the night shift at Respondent's plant was terminated and six of the people formerly employed on that shift were laid off. At the time of the layoff Smith expected that the employees :' In case I am reversed by the Board on this point I note further that I have relied for my findings as to the November 16b meeting on the credible testimony of Boothby I found the versions of this meeting rlal ed by employees to be vague and inconclusive, and marked by a confu- sion as to just what Boothby said On the basis of these findings I would not find violations of Sec. 8(a)(1) in Boothby's remarks on the forklift or on he comments on the grievance letter The forklift had been autho- rized long before the events of this case, and Boolhhy's generalized com- ments on grievances cannot be taken to be an agreement to adjust those grievances. or a promise of any benefits 511 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who had been laid off would return in mid or late No- vember for the holiday season. He told Gail Howard that there would be 4 or 5 weeks' work from late No- vember to early January when they opened the con- trolled atmosphere rooms. He did not feel that there would be any work during the controlled atmosphere season for these laid-off employees, but, at the end of October, there were 35,000 to 37,000 boxes in regular storage to be packed by approximately January 20. Smith's estimates were based on several factors. First, the crop in 1979-80 was substantially larger than that in 1978-79, 157,159 boxes against 121,531. Second, one of Respondent's stockholder-growers, Thaine Eastman, had informed Smith that he was building his own storage and packing facility, and that he would be withdrawing about 9,400 boxes from controlled atmosphere storage to pack himself. This reduced the number of bushels to be packed by Respondent during the controlled atmosphere season to 61,164 boxes. Thus Smith could estimate in Oc- tober that he would not require the services of the laid- off employees during the controlled atmosphere season. Third, while he was aware of Eastman's construction of his own warehouse, Smith was convinced that the new facility would not be ready during the regular storage season from mid-October until January. Thus he rea- soned that the 12,000 to 13,000 boxes of Eastman apples in regular storage would all be packed by Respondent, and there would be work for at least some of the laid-off employees during this regular storage season. To Smith, then, his statements to Gail Howard were based on fig- ures that he had available and his reasonable expectations of the amount of work that had to be done. Eastman's storage and packing facility, however, was completed in early November, and on November 8 East- man called Smith and told him that he was going to begin removing what would be a total of 6,000 boxes from Respondent's regular storage in about 2 weeks from that date. This would reduce the 35,000 boxes remaining in regular storage to 29,000 and, Smith felt, would fore- close the return of the laid off employees. Smith had in mind that they would be called again when there was work. He was mindful, too, of the pending election, so on November 9 he called Attorney Beale and asked him if he could lay off the "girls" permanently because he had left them with the feeling that they were coming back and he wanted to let them know that there would be no more work that year. Beale advised Smith first to get a letter from Eastman on the withdrawal of the 6,000 boxes, then told Smith he would think about the matter over the weekend and contact him the first of the fol- lowing week. On November 12 Beale and Smith talked again and Beale advised Smith to send a letter to each of the laid- off employees advising them that they would not be re- called. Smith did this and on November 13 mailed out the letters. The complaint in this case does not allege that the Oc- tober 24 layoff was a violation of law, but it does allege that the conversion of this layoff from temporary to per- manent is a violation. Certainly the union activity of Hanning, Keene, and Kelly McAllister was established by their presence at the representation case conference in Boston on October 29. It is reasonable to infer that Re- spondent was also aware of Howard's attendance at union meetings and her support for the Union. From my own experience I am aware that vote counting before a Labor Board election is an integral, if risky, concomitant of management strategy in such affairs. From this I find, and I do not think there is any question on this, that the letters would not have been sent to the employees on November 13 if it were not for the pendency of the peti- tion in Case 1-RC-16604. But the letter is merely a circumstance. The real ques- tion is the status of these six individuals. That status can be determined by a review of Respondent's past prac- tices, bearing in mind that both the union election and Thaine Eastman's withdrawal of regular storage apples were novel and unique circumstances. In this regard I have examined Respondent's payrolls for the period from 1976 to 1980. These records show considerable variations in the size of the crew.2 4 Generally there is a larger staff at the beginning of the season when, as Smith testified, there is an effort to pack as much as possible of the fall- pack. Then there is a drop in the size of the work force for a few weeks in October and early November, picking up again from mid-November to early January, then trailing off slightly for the controlled atmosphere season. The figures from 1976-77, with a total of 105,799 boxes handled, shows a crew of 15 or 16 from September 1225 to October 17, then 12 to 13 down to the week ending November 21 when it picked up to 17 or 18 through Jan- uary 9, when it dropped to 16, then 15 in the next week and down to an average of 12 or 13 for the rest of the year. In 1977-78, with a bumper crop of 177,509 boxes handled by Respondent, the figures are larger but the pattern is similar. The crew sizes began with an average of 20, going down hardly at all in mid-October and in- creasing to 30 and even up to 34 in the period November 13 to January 1, then again dropping to an average of 23 or 24 from then until the end of the packing season on June 4, 1979. In 1978-79, with a substantially smaller crop, 121,531 boxes, the pattern is somewhat different. The year opened with a crew of 22 to 24 up until Octo- ber 15, then tapered off to 10 to 12 through December 24, then increased to 13 or 14 for the next 3, although the 3 weeks provided less than 5 days of work. Then in the week ending January 21, the crew increased to 17 to 19 and remained the same until the end of the season. 26 This difference can be explained by the fact that even though the total crop was smaller, the quantity placed in controlled atmosphere was kept fairly constant, probably because of the premium prices which can be charged for out-of-season fruit, and thus the quantities packed in fall- pack, and particularly in regular storage, were substan- tially reduced. The 1979-80 season shows a similar pattern down to the week ending October 28, with a crew of 21 to 23, but then it dropped to 16, then to 14 or 15, and remained at that level down to the week just prior to the opening 4 As previously noted. I have counted all members of the crew, not just packers, because there is no separation on the payrolls themselves These dates are the end of each payroll week cited. 'I There was a total of 20 short weeks during this season. 512 MAINE APPLE GROWERS of this hearing. A review of Respondent's production statistics for the period from the opening of the fall-pack season on September 10 shows high production up until October 12, and from that point on, while there is some variation in the figures, the figures remain fairly constant with a range of about 450 to 800 boxes per day packed. There is no variation from this during the holiday season and the figures run fairly consistent right down to the end of the year. The payrolls also do not show any addi- tional employees hired from the time the night shift was terminated until the time of this hearing. From all of this I find that there was a pattern of em- ployment which resulted in more employees being hired at the beginning of the season, then a drop, then, during the holiday season, an increase, with a fall to a fairly constant level of employment from mid-January to the end of the season. This is consistent with Smith's testi- mony about his estimates for possible re-employment of the laid-off employees. The withdrawal of the Eastman apples changed all that, and the payroll and production figures show that there was a real change in circum- stances. 27 At this point I think it is clear, and I find, that the six laid-off employees would not have been called back in the 1979-80 season. The question of their status in these circumstances would depend on Respondent's practice with respect to such employees. I have previously re- viewed Ivan Smith's seniority system, and found that under that system employees who were not working at the end of one season were not called for work at the beginning of the next season. Further, employees who called Smith seeking work were hired in the order they called and were treated as new employees even though some of them, like Kathy Hanning, may have had years of experience with Respondent. Thus the six employees laid off on October 24 might have been considered in temporary layoff status until November 8, when it became apparent to Smith that he would not have suffi- cient work for them in the regular storage part of the season. There is no question that they would not have worked during the packing of the controlled atmosphere crop. From that point, the laid-off employees had no rea- sonable expectation of recall during the 1979-80 season. Nor did they have any expectation under Smith's prac- tice of recall for the 1980-81 season, and if they did work during that season they would do so as new em- ployees in the order they called Smith during the summer. I do not believe that the November 13 letters to the laid-off employees, although admittedly those letters were written at least partially in response to the presence of the Union, can operate to change the status of the em- ployees from permanent to temporary layoff. In the ab- sence of any indication of hostility or animus toward the Union, or the union activities of the employees here, I cannot find that the composition and distribution of the November 13 letter constitutes a violation of law. 21 The final figures on withdrawals from regular storage totaled 9.270 boxes. The production figures show that there had not previouly been any withdrawals from regular storage. IV. REPORT ON CHALLENGED BALLOTS The record shows that the tally of ballots in Case I- RC-16604 resulted in seven votes for the Union (Peti- tioner), eight votes against the Petitioner, and seven chal- lenged ballots. In his Report on Objections and Chal- lenged Ballots dated December 19, 1979, the Regional Director for Region I referred the resolution of these challenged ballots to me along with the issues in Case I- CA- 16832. The ballots of Kathryn Hanning, Wanda Keene, Gail Howard, Kelly McAllister, Julie Jack, and Susan Klee- burger were challenged by the Employer on the grounds that they were no longer employed by the Employer on the day of the election, November 19, 1979. Since I have already found, in connection with the allegation in the complaint, that the status of these employees was unlaw- fully changed, that these employees were in fact perma- nently laid off with no reasonable expectation of recall, I recommend that the challenges to their ballots be sus- tained. Sierra Lingerie Company, 191 NLRB 844 (1971). The ballot of Ronald Thompson was challenged by the Union on the ground that he was a casual employee. During the hearing the Union withdrew this challenge. However, it appears that this single vote cannot affect the results of the election. Therefore I recommend that the ballot not be opened and counted. V. REPORT ON OBJECTIONS On November 27, 1979, the Union filed several objec- tions to conduct affecting the results of the election. Two of these objections were withdrawn with the ap- proval of the Regional Director and three were referred to me for resolution. These are: I. On or about November 14 the Employer dis- charged four employees in response to their union activity. 3. On November 16 the Employer promised em- ployees that their grievance would be resolved if they abandoned their union activities. 5. By these and other actions during the course of Union campaign the Employer has interfered with the employees' rights as guaranteed by Section 7 of the National Labor Relations Act. With regard to Objection 1, I have found that six em- ployees were advised on November 13 that they would not be recalled, but that this was merely a memorializa- tion of a decision previously made as the result of changed and unique circumstances, and in accordance with the Company's previous practice. The layoff was a legitimate business decision in response to the proposed withdrawal of Thaine Eastman's apples, and thus cannot be interpreted either as a discharge, as alleged here, or a device to disenfranchise employees. Thus I do not find that this action tended to interfere with the free choice of employees. 513 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Considering the remarks of Boothby and Cooper at the November 16 meeting, as encompassed in Objections 3 and 5, I can find no interference with the election pro- cess. As I have found Boothby's remarks to be as he re- membered them in his affidavit which was introduced as evidence and in his testimony, I find that he specifically denied that he could respond to the employees' griev- ances, but that in line with a board of directors' decision made long before the grievance letter of September 27, or the advent of the Union on October 4, the purchase of an electric forklift had been authorized. Boothby went on to say that none of the other things in the letter seemed impossible for them to work out between them, and that he saw no reason for the intervention of the Union. This last is at best ambiguous and does not alter Boothby's prior statement that the directors could not answer the letter because that could be construed as promising benefits in order to "affect the campaign." Cooper's remarks likewise contain nothing which would require me to recommend that the election be set aside. He merely voiced his own opinion, based on the practice at his own place of business, that January is a better time than September for growers28 to discuss wages. In these circumstances, therefore, I do not find that the November 16 discussions interfered with the results of the election. Uarco, Incorporated, 216 NLRB 1 (1974). I therefore recommend to the Board that these objec- tions be overruled and the results certified by the Board. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(5) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not engaged in any violations of Section 8(a)(1) and (3) of the Act. [Recommended Order for dismissal omitted from pub- lication.] 2' Bearing in mind that Respondent's directors are all growers them- selves. 514