River Ranch Fresh Foods, LLC

RIVER RANCH FRESH FOODS, LLC 351 NLRB No. 15 115 River Ranch Fresh Foods, LLC and General Team- sters, Warehousemen and Helpers Union, Local 890, IBT.1 Case 32–CA–19938 September 28, 2007 DECISION AND ORDER BY MEMBERS LIEBMAN, SCHAUMBER, AND KIRSANOW On January 8, 2004, Administrative Law Judge John J. McCarrick issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed an answering brief, and the Respondent filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions only to the extent consistent with this Decision and Or- der.3 The Respondent excepts to the judge’s finding that it violated Section 8(a)(3) of the Act by terminating em- ployee Eduardo Moran. For the reasons set forth below, we find merit in those exceptions and reverse the judge’s finding of the violation. The Respondent grows and processes vegetables. The Respondent began operating at its Salinas, California facility on June 19, 2002,4 after the Respondent’s owners (senior managers of the predecessor) purchased the assets of the business. The Respondent continued operations as 1 We have amended the caption to reflect the disaffiliation of the In- ternational Brotherhood of Teamsters from the AFL–CIO effective July 25, 2005. 2 The Respondent excepts to the judge’s findings at sec. III,B,1,d of his decision that it violated Sec. 8(a)(1) by Maintenance Manager Gary Elk’s interrogating and threatening employees on August 8, 2002, and to his findings at sec. III,B,1,h-k that it violated Sec. 8(a)(1) by Mainte- nance Supervisor Juan Cardoso’s threatening an employee on unspeci- fied dates in June and July 2002. We find it unnecessary to pass on these findings. The Respondent does not except to the judge’s finding, in sec. III,B,1,a of his decision, that the Respondent unlawfully interro- gated employees, or to his findings in sec. III,B,1,c,e, and g that the Respondent threatened employees. Thus, the findings of additional 8(a)(1) violations in sec. III,B,1,d and h-k of the judge’s decision would be cumulative because they would not materially affect the remedy for the Respondent’s misconduct. Since we do not pass on the judge’s 8(a)(1) findings in sec. III,B,1,d, we need not consider the Respondent’s exception to the judge’s deter- mination, in support of those findings, that the testimony of employee Felipe Jimenez should be discredited on the ground that Jimenez was currently employed by the Respondent. 3 We have modified the judge’s recommended Order to conform to the violations found. We have also substituted a new notice to conform to the Order as modified. There are no exceptions to the judge’s rec- ommendation that copies of the notice be posted in both English and Spanish. 4 All dates refer to 2002, unless otherwise specified. a successor, hiring all of the predecessor’s employees and setting the initial terms and conditions of employ- ment. The initial terms included a 90-day probationary period for all employees. The Union has represented the production and mainte- nance employees at the Salinas facility since 1993. The Respondent negotiated with the Union for a successor collective-bargaining agreement, which the parties con- cluded on August 9. The successor agreement was retro- active to July 1 and restored the 60-day probationary period that was applicable to certain bargaining unit em- ployees under the predecessor’s agreement. Under the terms of the collective-bargaining agreement, the Re- spondent could terminate a probationary employee for any nondiscriminatory reason. Eduardo Moran worked as a mechanic in the mainte- nance department and was covered by the 60-day proba- tionary period in the successor agreement. The Respon- dent discharged Moran and two other maintenance em- ployees on August 16, roughly 2 weeks before the end of their probationary periods.5 The issue here is whether Moran’s discharge during the probationary period was for a nondiscriminatory reason. Applying a Wright Line6 analysis, the judge found that the Respondent violated Section 8(a)(3) by firing Moran. The judge concluded that the General Counsel satisfied his initial burden of proving that the discharge was unlawfully motivated by showing that Moran engaged in union activities, that the Respondent was aware of his activities, and that the Respondent harbored animus to- ward Moran’s union activities as evidenced by five un- disputed 8(a)(1) violations involving Maintenance Su- pervisor Juan Cardoso.7 The judge also found the timing of Moran’s termination to be suspect.8 The judge then considered whether the Respondent satisfied its Wright Line rebuttal burden of establishing 5 The judge dismissed allegations that the Respondent’s discharge of the other two maintenance employees was unlawful. 6 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (lst Cir. 1981), cert. denied 455 U.S. 989 (1982). Regarding the Wright Line analysis, Member Schaumber notes that the Board and circuit courts of appeals have variously described the evidentiary elements of the General Counsel’s initial burden of proof under Wright Line, sometimes adding as an independent fourth element the necessity for there to be a causal nexus between the union animus and the adverse employment action. As stated in Shearer’s Foods, 340 NLRB 1093, 1094 fn. 4 (2003), because Wright Line is a causation analysis, Member Schaumber agrees with this addition to the formula- tion. 7 Since we find below that the Respondent showed that it would have discharged Moran even in the absence of his union activities, we need not pass on the Respondent’s exceptions to the judge’s reliance on remarks by a former manager in finding animus. 8 We disagree that the timing of the discharge was suspect. Our rea- sons for doing so are set forth below. See infra fn. 17. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 116 that it would have taken the same action even absent Moran’s protected conduct. The judge rejected the Re- spondent’s contention that Moran was terminated for failing to successfully complete his probationary period because of his poor work performance. Having found that the Respondent’s witnesses’ stated reasons for ter- minating Moran were inconsistent, the judge found them to be pretextual, and it was on this basis that he con- cluded that the true reason for the discharge was that Moran “talked to the Union and to employees about the Union.”9 Central to the judge’s conclusion that the Respondent’s proffered reasons for Moran’s termination were pretex- tual were two explicit findings: first, that Carolyn Hum- phreys, Respondent’s vice president of human resources, testified that “talking too much” was the only reason for the termination, and, second, that Humphreys’ testimony was inconsistent with the reasons for terminating Moran testified to by Maintenance Manager Gary Elk. We dis- agree with those findings. Viewed in context, the testi- mony regarding the reasons for Moran’s discharge is not inconsistent. Since it is not inconsistent, the judge’s finding based thereon—that the Respondent’s reasons for the discharge were pretextual—fails, and the validity of the Respondent’s proffered reasons for discharging Moran must be reexamined. As an initial matter, Humphreys did not in fact testify that “talking too much” was the only reason for Moran’s discharge. Counsel for the General Counsel questioned Humphreys at the hearing about her telephone conversa- tion with Elk concerning employees who might not make it through the probationary period. When asked what Elk said about Moran, Humphreys testified: “He said, while technically [Moran] may be a good mechanic, he spends far too much time talking on the job and not getting the work done” (emphasis added).10 Thus, contrary to the judge, the reason for discharging Moran that Humphreys testified Elk gave her was not simply that Moran was “talking too much,” but that because of his excessive talking Moran was “not getting the work done.” Signifi- cantly, Elk’s testimony about the telephone conversation is substantially the same. Elk testified that he told Hum- phreys: “As far as Moran, his basic work performance I think is what I mentioned to her. The guy spending more time talking than he is working” (emphasis added). 9 When an employer provides inconsistent or shifting reasons for its actions, a permissible inference is that the reasons proffered are mere pretexts designed to mask an unlawful motive. GATX Logistics, Inc., 323 NLRB 328, 335 (1997), enfd. mem. 165 F.3d 32 (7th Cir. 1998) (published in full 160 F.3d 353 (7th Cir. 1998)). 10 When the Respondent later called her to testify, Humphreys testi- fied consistently that Elk said that “instead of actually working, [Moran] was spending more time talking[.]” Further, in finding that Humphreys and Elk gave in- consistent reasons for the discharge, the judge took por- tions of Elk’s testimony out of context or otherwise dis- torted it. In this regard, the judge found that Elk testified that Moran did not know how to repair hoists. Elk did not so testify. Rather, consistent with what he told Hum- phreys, Elk testified that Moran took twice as long to rebuild a hoist “because he was basically screwing around in the shop and not doing his job.” The judge also found that Elk contradicted what he told Humphreys by testifying that Moran was “not a good mechanic” be- cause “he was not seeking information from more ex- perienced mechanics” and “was not reading instructional manuals.” But Elk was not at that point testifying about his reason for discharging Moran. Rather, Elk was re- sponding to a question about whether Moran was quali- fied for promotion to a position that demanded more skills and greater knowledge of the different equipment maintenance requirements. Elk’s reasons for considering Moran unqualified for promotion to a more demanding position are not inconsistent with his assessment of Moran as “technically . . . a good mechanic” in his then- current position.11 Finally, we disagree with the judge’s finding that there was an inconsistency between Humphreys’ testimony as to what Elk told her and what Elk told Respondent’s then vice president of logistics and processing, Dave Robin- son, in a conversation on August 16, the day Moran was discharged. During that conversation, Elk referred to an earlier warning for a “no-call, no-show” by Moran and said that Moran “hadn’t proved himself above and be- yond his lack of overall performance from that warn- ing.”12 First, the “no-call, no-show” was not itself as- serted as a reason for Moran’s discharge and therefore we need not consider it here. In any event, we note that an employer may have more than one reason for a dis- charge, and the mere fact that every reason is not recited each and every time its agents discuss them does not equate to the sort of after-the-fact shifting of reasons that 11 Moreover, even setting aside that the judge took Elk’s testimony that Moran was “not a good mechanic” out of context, any inconsis- tency between that testimony and Humphreys’ testimony that Elk said Moran “technically may be a good mechanic” is more apparent than real. Obviously, someone may be technically capable but still not be a good worker if he does not get his work done. In view of Humphreys’ and Elk’s otherwise consistent explanation of the basis for the dis- charge, any perceived inconsistency on this point is not meaningful. 12 Elk testified that when Robinson asked him about Moran, he (Elk) told Robinson that he did not think Moran was going to make it: [Moran] started off from the get-go behind . . . with a no-call no-show and a warning the first day of . . . [the] probationary period, and he hadn’t proved himself above and beyond his lack of overall perform- ance from that warning . . . . RIVER RANCH FRESH FOODS, LLC 117 may be indicative of pretext.13 Second, there is no in- consistency between Elk’s statement to Robinson that Moran “hadn’t proved himself above and beyond his lack of overall performance” and Humphreys’ testimony that Elk told her that “while technically [Moran] may be a good mechanic, he spends far too much time talking on the job and not getting the work done.”14 Elk’s statement to Robinson is simply another, more generalized way of characterizing Moran’s inadequate performance, which Humphreys and Elk more specifically and consistently described as talking too much and working too little. The Respondent’s witnesses did not, therefore, give inconsistent reasons for Moran’s discharge. Elk’s reason did not vary from what he told Humphreys: Moran was not performing his work. Thus, contrary to the judge, we find that the Respondent did not proffer pretextual rea- sons for discharging Moran. We further find that the Respondent’s proffered rea- sons for discharging Moran satisfied its rebuttal burden under Wright Line. In Elk’s opinion, Moran was not performing his work. The judge did not discredit Elk’s testimony in this regard.15 No evidence was introduced to contradict Elk’s assessment of Moran’s performance. Nor did any evidence establish that the Respondent en- gaged in disparate treatment by discharging Moran and retaining other employees with comparable performance deficiencies. Thus, the Respondent’s uncontradicted and consistent testimony, which the judge did not discredit, 13 See NACCO Materials Handling Group, Inc., 331 NLRB 1245, 1246 (2000) (finding that respondent did not offer varied justifications for discharge where officials consistently, albeit in different words, explained action as concern for maintaining safety, production, and discipline at plant); Zarda Bros. Dairy, Inc., 234 NLRB 93, 95 (1978) (finding testimony not contradictory but rather amplification of reasons for discharge); W. C. McQuaide v. NLRB, 133 F.3d 47, 50 (D.C. Cir. 1998) (finding that whether employee quit by not reporting for work or was discharged for failing to report was merely a matter of semantics, not a shifting of explanations). 14 In finding Elk’s statement to Robinson inconsistent, the judge quoted only part of Elk’s testimony, i.e., that Moran “hadn’t proved himself above and beyond.” Thus, the judge failed to consider the significance of Elk’s testimony that Moran had not, in fact, proven himself “above and beyond” his own lack of overall performance. 15 In discussing Elk’s criticism of Moran for “not seeking out infor- mation from more experienced mechanics” and “not reading instruction manuals,” the judge stated that he “found this reason for firing Moran incredible.” We give little weight to this finding because, as explained above, these were reasons for not promoting Moran, not reasons for firing him. But even assuming we deferred to this credibility finding, the judge did not discredit the totality of Elk’s testimony, nor did he discredit Elk’s testimony that Moran was “spending more time talking than he is working.” He merely found this testimony inconsistent with Humphreys’ testimony. As explained above, that finding does not withstand scrutiny. was that Moran was discharged because he was talking too much and not getting the work done.16 In sum, assuming that the General Counsel met his ini- tial burden under Wright Line of showing that Moran’s union activity was a motivating factor in his discharge, we find that the Respondent met its burden on rebuttal of showing that it would have discharged Moran even in the absence of that activity.17 As noted above, the Respon- dent could discharge a probationary employee for any nondiscriminatory reason.18 We find that this is what the Respondent did here. Accordingly, we reverse the judge’s finding that the Respondent violated Section 8(a)(3) by discharging Moran.19 16 We recognize that Moran’s supervisor, Cardoso, made unlawful statements related to Moran’s speaking to and about the Union. But we disagree with our colleague that the subject matter of Moran’s speech insulated him from discharge for his excessive talking and the resulting insufficiency of his work. Regardless of what Moran was talking about, the Respondent could legitimately discharge him for not getting the work done; and based on the record evidence discussed above, that is what it did. 17 We reject the judge’s finding that the timing of Moran’s discharge was suspect because it occurred “within weeks” of Moran’s union activity. Any inference here of suspicious timing is weakened, if not entirely offset, by the impending end of the probationary period, which influenced the timing of Moran’s termination as well as that of others. As stated above, when the Respondent took over operations from its predecessor, it set a 90-day probationary period as one of its initial terms and conditions of employment. Under the terms of the collec- tive-bargaining agreement which the parties concluded on August 9, the probationary period was 60 days for mechanics, including Moran. Since the contract was retroactive to July 1, the probationary period would conclude at the end of August. It is within this context that the timing of Moran’s discharge must be considered. Thus, when Elk called Humphreys between August 9 and 15 to discuss the possibility of terminating Moran and others, Humphreys told Elk that, with the contract ratification nearly complete, the probationary period would be over “more like the end of August versus the end of September.” She advised Elk that “if you’re going to make a determination . . . then you need to do it in their probationary period, because that’s what probation is truly about.” Our colleague says that the “decision to discharge Moran before the end of his probation reveals nothing about its reasons for discharging him.” We agree. The reason for the discharge was that Moran was not getting the work done. We mention the impending end of the proba- tionary period only to explain why we reject the judge’s finding that the timing of the discharge was suspect. 18 See Phillips Petroleum Co., 339 NLRB 916, 919 fn. 19 (2003) (noting employer’s wide degree of discretion to discharge probationary employees, absent discriminatory reasons). 19 Contrary to the majority, Member Liebman would adopt the judge’s conclusion that the Respondent unlawfully discharged Moran. She agrees with the judge that the General Counsel met his initial Wright Line burden by showing that Moran engaged in union activities, that the Respondent was aware of Moran’s union activities, and that the Respondent demonstrated antiunion animus. Regarding the Respon- dent’s knowledge of Moran’s union activities, Member Liebman finds it particularly revealing that only 2 days before Moran’s discharge, Supervisor Danny Jimenez hovered nearby while Moran and machine operator Omar discussed having Moran speak about the Union to the operators—who, Omar believed, were “trying to get rid of the Union.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 118 ORDER The National Labor Relations Board orders that the Respondent, River Ranch Fresh Foods, LLC, Salinas, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees about union support or union activities. (b) Prohibiting employees from talking about the Un- ion or with union agents. (c) Threatening employees with discipline or other ad- verse consequences for supporting the Union or for en- gaging in union activities. (d) Creating the impression that employees’ union ac- tivities are under surveillance. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. Thus, Member Liebman also agrees with the judge’s finding that the timing of Moran’s discharge supports a finding that it was unlawfully motivated. Contrary to the majority, she does not find that the upcom- ing end of Moran’s probationary period undermines other evidence of illegal motive. The Respondent’s decision to discharge Moran before the end of his probation reveals nothing about its reasons for discharg- ing him. Further, Member Liebman finds that the Respondent has not shown that it would have discharged Moran even in the absence of his union activity. The majority concludes that the Respondent lawfully fired Moran for excessive talking and the resulting insufficiency of his work. In Member Liebman’s view, however, this basis for Moran’s discharge is not independent of his union activity. The judge, in finding that the Respondent violated Sec. 8(a)(1) by seeking to prevent Moran from talking (a finding the majority adopts), reasonably concluded that “only talking about the Union or to Union representatives was prohibited.” In reaching this conclusion, the judge expressly rejected the Respondent’s claim that it was merely seeking to enhance employee productivity, based on uncontroverted evidence that other employees, including Cardoso, often spoke about nonwork subjects during working time and that employee Jeff Hudson was permitted to hold an antiunion meeting during working time. Member Liebman further agrees with the judge’s finding that Cardoso’s statement that Moran was “talking with the operators about the Union too much and stirring up the waters” reveals Cardoso’s true motive in restricting Moran’s union-related speech. In the absence of evidence that the Respondent’s frustration with Moran’s talking to other employees involved anything other than a concern over his talking about the Union, Member Liebman concludes that the ra- tionale that Moran was discharged for “talking too much and not get- ting the work done” cannot be meaningfully separated from Moran’s talking with and about the Union (which the Respondent’s unlawful warnings and interrogations had not succeeded in preventing). Because Moran’s protected union speech is inextricably intertwined with the Respondent’s assertedly-legitimate basis for his discharge, the Respon- dent has not shown that it would have discharged Moran in the absence of his union activity. (a) Within 14 days after service by the Region, post at its facility in Salinas, California, copies of the attached notice marked “Appendix”20 in both the English and Spanish languages. Copies of the notice, on forms pro- vided by the Regional Director for Region 32, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respon- dent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since May 1, 2002. (b) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE National Labor Relations Board An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT coercively question any employee about union support or union activities for General Teamsters, Warehousemen and Helpers Union, Local 890, IBT, or any other union. WE WILL NOT prohibit employees from talking about the union or with union agents. 20 If 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” RIVER RANCH FRESH FOODS, LLC 119 WE WILL NOT threaten employees with discipline or other adverse consequences for supporting the union. WE WILL NOT create the impression that employees’ union activities are under surveillance. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above, which are guaranteed you by Section 7 of the Act. RIVER RANCH FRESH FOODS, LLC Michelle Smith, Esq., for the General Counsel. Patrick Jordan, Esq. (Jordan Law Group), of San Rafael, Cali- fornia, for the Respondent. Michael Nelson, Esq. (Beeson, Tayer & Bodine), of Oakland, California, for the Charging Party. DECISION STATEMENT OF THE CASE JOHN J. MCCARRICK, Administrative Law Judge. This case was tried in Salinas, California, May 20–22, June 25–27, and August 13–15, 2003, upon General Counsel’s complaint1 that alleged River Ranch Fresh Foods, LLC (the Respondent) vio- lated Section 8(a)(1) and (3) of the Act by interrogating em- ployees about the union activities of another employee, by cre- ating the impression that union activities were under surveil- lance, by threatening an employee by saying that he could get into trouble for speaking with a union representative, by inter- rogating employees about their union sympathies, by threaten- ing employees with loss of benefits, by threatening discipline for talking to union representatives and by discharging Jose Rocha, Eduardo Moran, and Lorenzo Hernandez because of union or protected-concerted activities. The Respondent timely denied any wrongdoing. On the entire record, including my observation of the demeanor of the witnesses, and after consid- ering the briefs filed by the parties, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent, a Delaware corporation with an office and place of business in Salinas, California (Respondent’s facility), has been engaged in the cooling, processing, and distribution of produce grown by other entities. During the past 12 months, Respondent in conducting its business operations sold and shipped goods valued in excess of $50,000 directly to custom- ers located outside the State of California. The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the General Teamsters, Warehousemen, and Helpers Un- 1 At the hearing General Counsel moved to amend the complaint to allege at paragraph 5 that Ana Juarez Grijalva and Danny Jimenez were supervisors and agents within the meaning of the Act. I granted the General Counsel’s motion. Respondent admitted that Jimenez and Grijalva were agents of Respondent within the meaning of Sec. 2(13) of the Act but denied they were supervisors within the meaning of Sec. 2(11) of the Act. ion, Local 890, IBT, AFL–CIO (the Union) is a labor organiza- tion within the meaning of Section 2(5) of the Act. II. THE ISSUES 1. Did Respondent violate Section 8(a)(1) of the Act by: (a) Interrogating employees in May and late July 2002 about the union activity of another employee? (b) Creating the impression in May 2002 that employees’ un- ion activities were being kept under surveillance? (c) Threatening an employee with reprisal in May 2002 for talking to a union representative? (d) Threatening an employee with reprisal in June 2002 for talking to a union representative? (e) Creating the impression that an employee’s union activity was under surveillance in June 2002? (f) Threatening an employee with a warning for talking to the Union in June 2002? (g) Threatening an employee with a warning for talking to a union representative in late June 2002? (h) Threatening an employee with reprisal for talking to the Union in early July 2002? (i) Threatening an employee with reprisal for talking to the Union and for talking to employees about per diem in late July 2002? (j) Interrogating employees on August 7 or 8, 2002, about the union activity of another employee? (k) Threatening an employee on August 7 or 8, 2002 that the employee could get himself into trouble for speaking with a union representative? (l) Telling an employee on August 12, 2002 he could be dis- ciplined for talking with the Union? (m) Interrogating employees on August 12, 2002 about their union sympathies? (n) Threatening employees on August 12, 2002 with loss of benefits because of their support for the Union? 2. Did Respondent violate Section 8(a)(1) and (3) of the Act by discharging Jose Rocha, Eduardo Moran and Lorenzo Her- nandez because of their union or other protected concerted activities? III. ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Introduction The Respondent grows, washes, cuts, and packages vegeta- bles and lettuce at its facilities in Salinas and El Centro, Cali- fornia. The Respondent began operating its business on June 19, 2002.2 During the spring of 2002, Respondent’s owners purchased the assets of its predecessor, River Ranch Fresh Foods, Inc. (Inc.) a United Kingdom corporation. Respon- dent’s owners were the senior managers at Inc. When Respon- dent commenced operations, it had the same facilities, manag- ers, supervisors, and employees as Inc. The Respondent termi- nated all of Inc.’s employees and rehired all of them on about June 19. The Respondent’s supervisors and managers included CEO Jim Lucas, Vice President of Logistics and Processing Dave Robinson (Robinson), Vice President of Human Relations 2 All dates refer to 2002 unless otherwise specified. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 120 Carolyn Humphreys (Humphreys), Production Manager George Bean (Bean), night-shift Supervisors Jorge Manri- quez(Manriquez) and Daniel Jimenez(Jimenez), day shift Su- pervisor Oscar Rodriguez, Quality Assurance Manager Anne Pauly (Pauly), Maintenance Manager Gary Elk (Elk), and Maintenance Supervisor Juan Cardoso3 (Cardoso). Cardoso supervises about eight technicians and eight me- chanics that work two shifts. The first or day shift begins be- tween 4–5 a.m. and ends between 1–3 p.m. The second or night shift begins between 1–3 p.m. and ends between 12–2 a.m. There were two lead mechanics in the maintenance de- partment, Jose Rocha (Rocha) and Petronilo Solorzano (Solor- zano). Since July 30, 1993, the Union represented all full-time and regular part-time production and maintenance employees em- ployed by Inc. at its pre-cut vegetable processing plants in Salinas and El Centro, California, excluding harvesting em- ployees, tube operators, product-haul truckdrivers, outside clean-up employees, cooling and shipping dock employees, clerical employees, guards, and supervisors as defined in the Act. In addition, the Union and Inc. were parties to a collec- tive-bargaining agreement4 effective July 1, 2000 to June 30, 2004. The Respondent set the initial terms and conditions of em- ployment for the work force, including a probationary period of 60 days for mechanics and 90 days for all other employees including technicians. The collective-bargaining agreement provided that a probationary employee could be discharged for any reason.5 The Respondent and the Union entered into negotiations for a successor collective-bargaining agreement on about July 1. Respondent’s bargaining team consisted of attorney Patrick Jordan (Jordan), Robinson and Humphreys. The Union negoti- ating team included Union Representatives Michael Johnston (Johnston), Crescencio Diaz (Diaz), Union President Frank Gallegos (Gallegos) and Francisco Reynoso (Reynoso). The parties stipulated that bargaining sessions occurred on July 1 and August 7. At the July 1 meeting, the Union raised inclusion of the technicians, cooler area employees and forklift drivers in the bargaining unit. Robinson said he was not inter- ested. Gallegos asked Robinson if Respondent would recog- nize the Union if they gathered cards to show that employees were interested. Robinson said that the employees in those departments did not want the Union. Between bargaining sessions, on July 17 Robinson held a staff meeting with managers including Bean, Pauly, and Elk in which he told them, “We have no union contract, so we do not allow meetings with union shop stewards.”6 By the end of the August 7 morning bargaining session the only remaining issue was whether the technicians should be included in the bargaining unit. When it became clear that 3 Respondent stipulated that Cardoso was both a supervisor and an agent of Respondent within the meaning of the Act. I also find he was a supervisor within the meaning of the Act, having the authority to hire, assign work and responsibly direct employees. 4 R. Exh. 6. 5 Ibid, art. 5, sec.5.1.2 at p. 8. 6 GC Exh. 12, at p. RO39 and Tr. at p. 950. Respondent opposed the concept of including technicians in the bargaining unit, Johnston said they would accept the Respon- dent’s contract offer and file a unit clarification petition. Rob- inson replied, “In that case I’m withdrawing our offer for a collective bargaining agreement, and you can schedule some meetings and we’ll start from scratch to negotiate something.” Robinson left the room. When Robinson returned he said it was inappropriate for the Union to file a unit clarification peti- tion. He said that he had been talking to technicians and he did not believe that they wanted the Union. Robinson became an- gry and said he could kick himself in the ass for recognizing the Union. After Johnston told Robinson they had to recognize the Union, Robinson became angrier and said that he was never going to make this mistake again, that whatever contract they ended up with, he was going to make sure that when the con- tract expired he was getting the Union out.7 Twenty minutes after the Union left, Humphreys, Robinson, Elk, and Cardoso called a meeting with four technicians in Robinson’s office to advise the technicians that the Union wanted to represent them. Later that day, Elk called technician Jeff Hudson (Hudson) into his office and told him that the Union was attempting to represent the technicians. Hudson said he did not want to be in the Union and asked what he could do to keep the Union from representing them. Elk told him that a petition to that effect would have to be generated. Hudson said he would look into the matter. On August 8 Elk held a meeting with technicians during worktime. With Cardoso translating, Elk told employees that “the company wanted to know who were the ones that wanted the Union.” Elk said he thought that it was not necessary for the Union to defend them because they had good benefits. Elk also said that the technicians “could lose some benefits” if they had a union. Elk also said, “I’m not going to pay $30 to Jose Rocha to defend me, if I have a mouth to defend myself.”8 Later that day, Cardoso called technicians to a meeting in his office during worktime where Hudson told employees they had to fill out some paperwork so the Union would not bother them. a Eduardo Moran Eduardo Moran (Moran) worked for both Respondent and Inc. as a mechanic in the maintenance department since April 2001. Moran’s supervisors were Cardoso and Elk. The main- tenance department included both mechanics and technicians, however only mechanics are represented by the Union. During his job interview with Cardoso, Moran said that he had been a striker at his previous employer, Basic Foods. After he was hired, Moran’s duties with Respondent and Inc. included main- tenance of equipment. Every 6 weeks Moran rotated between the first and second shifts. While on the second shift Moran reported to Solorzano. 7 Robinson admitted saying, “I will do everything I can to get rid of this Union.” Tr. at 854. 8 Both Elk and Felipe Jimenez denied Elk made these statements. I credit Hernandez’ version. Hernandez impressed me as a credible witness who was responsive to questions and exhibited no hostility, unlike Elk. Jimenez, a current employee of Respondent had an interest in providing favorable testimony for his employer. RIVER RANCH FRESH FOODS, LLC 121 In the fall of 2001, Moran had conversations with both Car- doso and Elk where other mechanics were present. Moran told both Cardoso and Elk that the mechanics wanted training to improve their skills and wanted to discuss issues concerning the seasonal move to El Centro, including the amount of per diem Inc. provided.9 After these conversations, Inc. terminated Moran in October 2001 for failing to notify his supervisor about a 1-week absence due to illness. Moran contends he notified Cardoso that he would be absent. The Union filed a grievance concerning Moran’s termination and as a result, Moran was reinstated. On about June 6, Moran received a written offer of employ- ment from the Respondent.10 Ana Juarez11 (Juarez), a human resources department employee, gave it to Moran. When Moran asked if the Union knew about the terms the Respondent set in the employment offer, Juarez told Moran that the new administration said there was no Union and if you want to keep your job sign the paper work. After June 6, Moran spoke to union representatives several times at the Respondent’s facility and learned that the Union was trying to organize Respondent’s technicians. On June 18, at about 5 p.m., Moran told Elk that he would be absent for the rest of the night shift in order to see his doctor about his swollen knee. Moran told Elk he needed several days off and Elk gave his approval. On June 19, Moran faxed a doctor’s note12 to Respondent and called both Cardoso and Elk’s offices and left messages that he would be out until June 23 or 24 due to his gouty knee. Moran returned to work on June 23. On June 25 Elk gave Moran a written warning13 for failure to notify Respondent at least an hour before the start of his shift that he would be absent. In July and August Moran had conversations with employees about the Union. Cardoso admitted that he saw Moran talking to union representatives in the cafeteria during Moran’s lunchbreak in June, July, and August. Further, Cardoso said he told Elk in June, July, and August about Moran’s union activi- ties. According to Elk, Cardoso told him in July that Moran was going over his lunch period talking to Union Representa- tive Diaz. However, Cardoso denied that Moran was taking too much time talking to union representatives. Cardoso told Elk that Moran was using too much time talking about the Union during work hours. However, Cardoso admitted that he often talked to employees during worktime. Unlike production em- ployees the mechanics often had down time when they had no maintenance calls. Elk admitted that in August he heard “scut- tlebutt that Moran wanted to be the maintenance department shop steward. In July a machine operator named Omar told Moran that he heard the operators were trying to get rid of the Union. On about August 14, Omar and Moran had another conversation in Respondent’s production area. Omar asked 9 Each year in about November Inc. shifted its operations and em- ployees to El Centro, California for about 5 months. Inc. paid per diem to employees who traveled from Salinas to El Centro. 10 R. Exh. 1. 11 The parties stipulated that Juarez is an agent of Respondent within the meaning of the Act. 12 GC Exh. 5(b). 13 GC Exh. 5(a). Moran if he would speak to the operators about the Union. Moran agreed to speak to the operators about his experience with the Union and the strike at Basic Foods. During this con- versation, production supervisor, Danny Jimenez,14 came within 2 feet of Moran and Omar two or three times. He was present for 10–15 seconds each time. Humphreys testified that the only reason Moran was fired was for talking too much. Between August 9 and 15 Elk called Humphreys to get permission to fire Moran and told her that while technically Moran was a good mechanic, he spent far too much time talking on the job. Elk gave contradictory testimony that Moran was not a good mechanic because he was not seek- ing out information from more experienced mechanics and was not reading instruction manuals.15 Elk also said that Moran did not know how to repair hoists. However, Cardoso said that by June, Moran was no longer working on hoists. Moreover, Car- doso said he did not know Moran was having trouble repairing hoists until after August 16. Elk also testified that he had two conversations with Robin- son about terminating Moran. The first conversation was the third week of July. Elk told Robinson there were two employ- ees who might not make it through probation, Moran and Ro- cha. The second conversation was the morning of August 16. Elk told Robinson that Hernandez was not worth keeping be- cause of his attitude, that Moran wasn’t going to make it be- cause of his no-call/no-show and because, “he hadn’t proved himself above and beyond.” Elk also said Rocha was a disap- pointment and wasn’t meeting expectations. Elk said, “at that point the decision was made to, I guess, do terminations that day in one fell swoop so that it wouldn’t extend out and create panic amongst the maintenance department.” On August 16, Elk told Moran that he was being fired for failing to successfully complete his probationary period.16 When Moran asked for a union representative, an unknown man said he could not have a union representative since there was no contract. Moran was escorted from the Respondent’s facility by the unknown man and Juarez. Moran said he re- ceived no other discipline and received no complaints from Respondent or Inc. about his work performance. b. Lorenzo Hernandez Lorenzo Hernandez (Hernandez), also known by the nick- name “Scorpion,” worked for both Respondent and Inc. since 1994. Hernandez became a technician in about 1999. Hern- danez’ supervisors were Elk and Cardoso. Hernandez mainly 14 The Respondent admitted that Danny Jimenez is an agent but de- nied he is a supervisor within the meaning of the Act. Danny Jimenez is a Hayssen supervisor, responsible for 15 Hayssen machines and 140– 150 employees. Five supervisors reported to Jimenez and he was in charge of the operation of the all the Hayssen machines for his shift. I find Danny Jimenez is a supervisor within the meaning of Sec. 2(11) and an agent within the meaning of Sec. 2(13) of the Act. 15 Since Moran’s primary language is Spanish and Elk speaks only English, it is hard to understand how Elk would have known if Moran asked more experienced mechanics questions in Spanish. Elk’s as- sumption that Moran did not read technical manuals is speculation. 16 GC Exh. 4. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 122 serviced the Hayssen machines on the day shift in July and August. In November 2001, Hernandez spoke with Cardoso after Moran had been fired. Cardoso told Hernandez that Moran had been fired and would not be back. Cardoso said “people who speak about politics won’t last long at work.” In May Hernandez had a conversation with Cardoso. With Rocha, Guzman, and Rodriguez17 present, Cardoso asked how long Moran had been speaking with the union representative. Cardoso said Moran is taking too many privileges and he could fuck him up. Hernandez replied that Moran was a union leader. Cardoso said he isn’t anything. Cardoso said I will wait a few minutes and that if he is there longer than his time for lunch, I will screw him up.18 A month later, while in the lunchroom with Hernandez, Rocha, Rodriguez, Guzman, and Salazar, Car- doso said Moran shouldn’t have been talking to the union rep- resentative during worktime and if Moran took too long he would screw him. In June Hernandez received an application for employment with Respondent from Juarez. At a June 19 meeting with main- tenance employees Elk told the employees that Respondent was a new company and that they were all probationary employees for 90 days. When employees asked what probationary em- ployees were, Elk said that they could be fired for any reason. In June Hernandez spoke to three fellow technicians about organizing the Union. Hernandez said Moran thought it would be a good idea for the technicians to join the Union so it would not be so easy for the Respondent to terminate them. The next day Hernandez told Moran about his conversation with the technicians concerning joining the Union. Toward the end of June, Hernandez talked to Moran and Rocha about the Union, per diem rates and other terms and conditions of employment at work. Hernandez was also present with other employees, in- cluding Rocha and Moran in a meeting with Robinson where employees asked for higher per diem rates. In early August, Elk and Cardoso held a meeting during worktime with the technicians. Cardoso translated for Elk who speaks little Spanish. Elk asked who wanted the Union. Elk said that he and Robinson did not think it was necessary for the Union to defend the technicians. He said Respondent had good benefits and the technicians could lose benefits with the Union. Elk said he would not pay Rocha $30 to defend me if I have a mouth to defend myself. One technician said the Union had a lot of money. Elk then said electrician, Jeff Hudson (Hudson) will give you a paper to fill out so the Union won’t bother you. 17 I credit Hernandez’ version of the facts. I found Hernandez a credible witness who gave responsive answers with specificity, detail and no hostility. Rodriguez, who denied Cardoso interrogated or threatened employees regarding Moran’s union activities, was a reluc- tant witness who gave inconsistent answers, denying he spoke with Respondent’s counsel before giving testimony, only later to admit he spoke with counsel. Rodriguez also denied that Cardoso said Moran was talking about the Union too much. Cardoso himself admitted he thought Moran was taking too much time talking about the Union and reported this to Elk. 18 Cardoso denied using profane language. However he essentially admitted telling employees not to talk to union representatives or to talk about union or other protected concerted subjects during worktime. Elk said this is a private meeting and I don’t want the mechan- ics to find out.19 During worktime about an hour later, Cardoso announced that there would be another meeting in his office. Several tech- nicians were present with Cardoso and Hudson. Cardoso left the office and Hudson said he had a paper the technicians had to fill out so the Union won’t bother you. Since the document was in English, it was not handed out. A few days before Hernandez’ termination on August 16, Cardoso asked Hernandez where Moran was because he was talking too much with the operators about the Union and that he was stirring up the water too much. There was considerable testimony from the Respondent’s witnesses concerning Hernandez’ attitude. Danny Jimenez, the Hayssen night supervisor said that he complained to Elk and Cardoso that technicians failed to re- spond to maintenance calls from Hayssen operators. In June and July, Jimenez told Cardoso his operators complained about Hernandez’ bad attitude. However, Jimenez said that after July Hernandez’ performance improved. Jorge Manriquez was also a night-shift Hayssen supervisor. In June, July, and August Manriquez complained to Bean about Hernandez’ performance. Manriquez said Hernandez was hos- tile to his operators and that he received frequent complaints from the operators about Hernandez’ abuse toward them. Sev- eral operators said they did not want to work with Hernandez. Cardoso said that in June, July, and August he received com- plaints from Danny Jimenez and Hayssen operators about Her- nandez’ abuse and reported these complaints to Elk. Bean said that in June, July, and August his shift supervisors, Danny Jimenez, Oscar Rodriguez, and Jorge Manriquez com- plained about both Hernandez. They complained about Her- nandez’ hostile, aggressive attitude toward their Hayssen opera- tors. Bean said he relayed these complaints to Elk. On August 16, Elk terminated Hernandez. The termination notice stated Hernandez was terminated for failure to meet the probationary period.20 Before his termination, Hernandez had only one disciplinary action for being late in 2001. c. Jose Rocha Jose Rocha (Rocha) worked for both Respondent and Inc. since 1991 as a mechanic. Rocha had been a lead mechanic for about 2 years. As lead mechanic, Rocha performed the most difficult jobs and trained employees. Rocha worked on the first shift from about 5 a.m. to 3:30 p.m. in June, July, and August and his immediate supervisor was Cardoso. Cardoso said that by June he had removed most of Rocha’s lead duties and Rocha was only repairing equipment. In late June Cardoso was in the maintenance shop with Ro- cha, Cardoso told Rocha to, “call it to Moran’s attention be- cause it was during company time and he could get a warning.” Moran had just been talking to Union Representative Crescen- 19 Elk denied asking who wanted the Union. I credit Hernandez’ version of the facts. Elk was a hostile witness whose memory required frequent refreshing with leading questions and reference to various documents. Moreover, Cardoso did not corroborate Elk’s version of the facts of the August meeting. 20 GC Exh. 6. RIVER RANCH FRESH FOODS, LLC 123 cio Diaz. About a week later in early July when Moran was speaking to union representatives in the cafeteria, Cardoso told Rocha to call it to Moran’s attention he should not be talking to the Union. At the same time, Cardoso also told Rocha not to talk to the Union. In mid June in the maintenance shop with other mechanics present Cardoso told Rocha not to talk to the union people because he could give Rocha a warning. In Car- doso’s office in late July, Cardoso told Rocha not to talk too much to the Union. In late June, Rocha spoke to employees in the maintenance shop and in the lunchroom about the amount of per diem em- ployees were getting for work in El Centro. In early July Ro- cha and four to six other employees, including Moran and Her- nandez met with the Respondent’s vice president for opera- tions, Robinson. Guillermo Salazar told Robinson the employ- ees were not getting enough per diem. Robinson told the em- ployees that they were on company time and to go back to work. In late July in the lunchroom Rocha and Moran were talking to operators about per diem rates. Cardoso told Rocha and Moran not to talk during work hours with operators about per diem. In early August Rocha spoke with Lupe Diaz, a su- pervisor in the production department. Rocha told Diaz that the employees were getting too little per diem. Diaz said that you will never compare to our per diem. In July mechanics complained that technicians were per- forming work normally done by mechanics. At a meeting in the maintenance shop with all technicians and mechanics pre- sent, Rocha complained to Cardoso that technicians were doing mechanic’s work. When Cardoso denied that technicians were taking away work, Rocha replied that technicians were taking hours of work away from mechanics. The Respondent contends that Rocha was fired because he did not respond to service calls, disregarded safety issues and was a bad example for other employees. In June, July, and August Manriquez complained to Bean about Rocha’s performance. Manriquez said his operators were complaining about Rocha’s lack of timeliness in responding to their calls. Manriquez said he had to look for Rocha several times. Bean said that in June, July, and August his shift supervisors, Danny Jimenez, Oscar Rodriguez, and Jorge Manriquez com- plained about Rocha. They complained about Rocha’s slow response to their service calls. Bean said he relayed these com- plaints to Elk.21 Pauly, Respondent’s Quality Assurance Manager, testified that the washer/flume, a piece of equipment used to wash let- tuce and vegetables, is a critical control point, i.e., a point in the process where a consumer of Respondent’s product could be harmed. The flume trap in the washer is checked regularly to ensure that no foreign material has gotten into the product. 21 It is undisputed that during Rocha’s probationary period in June, July, and August Danny Jimenez, and Jorge Manriquez both worked the night shift while Rocha worked the day shift. Yet Jimenez’ and Manriquez’ testimony is consistent that they were complaining about Rocha’s lack of diligence at night. Since Rocha and Hernandez worked the day shift during most of the probationary period, I find that Re- spondent’s contention that these supervisors complained about Rocha and Hernandez during their probationary period is dubious. When the washer/flume is serviced, old parts must be removed to prevent them from getting into the product. On June 21, washers were found in two bags of salad and the production lines were shut down for 30–35 minutes. More washers were found at the end of the flume. During her inves- tigation of this incident, Pauly learned that Rocha had most recently worked on the flume. When she confronted him, Ro- cha admitted he had worked on the flume and used washers like those found in the bags of salad. They went to the flume and found additional washers on the flume and on the floor. Rocha admitted he had not removed the loose washers from the flume. In late July Pauly called Rocha because metal shards were found in the broccoli line. Rocha said he was unable to assist because he was busy.22 In August washers and a nut were found in room four where product is prepared. Pauly said that good manufacturing prac- tice requirements (GMP), produced by the FDA, require that there be no foreign materials such as washers in the vicinity of product. These washers were found within 5 feet of the product. According to Elk, unidentified mechanics told him Rocha left the washers on the floor when he replaced a railing. Elk told Pauly he had assigned Rocha to remove the railing. While Rocha admitted that he removed and repaired railings as part of his duties, he denied leaving any hardware in the production area. There is no evidence that Rocha ever received a written warning for during his probationary period. On August 16, Respondent terminated Rocha for failure to meet his probationary period.23 B. The Analysis 1. The 8(a)(1) allegations The complaint sets forth four instances of 8(a)(1) conduct and in her brief counsel for the General Counsel argues that there are seven additional examples of 8(a)(1) conduct that are not alleged in the complaint.24 The 8(a)(1) allegations dis- cussed below in paragraphs a-d were contained in the com- plaint. 22 Rocha denied that Pauly asked his assistance in finding metal shards or that he refused to provide assistance. I credit Pauly’s version of the facts. I found Pauly to be a credible witness who was responsive to questions, provided detailed answers and expressed no hostility. I found Rocha a nonresponsive witness who had to be admonished to answer questions. I found Rocha untruthful, particularly about receiv- ing lockout training. 23 GC Exh. 9. 24 An unpled but fully litigated matter may support an unfair labor practice finding despite a lack of an allegation in the complaint. Hi- Tech Cable Corp., 319 NLRB 280 (1995) Meisner Electric, Inc., 316 NLRB 597 (1995); “It is well settled that the Board may find and remedy a violation even in the absence of a specific allegation in the complaint if the issue is closely connected to the subject matter of the complaint and has been fully litigated.” Pergament United States, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. (1990). Here the complaint alleges other violations of Sec. 8(a)(1), including interroga- tions and threats. The additional allegations set forth in counsel for the General Counsel’s brief were fully litigated at the hearing. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 124 a. On an unknown date in May and late July 2002, Cardoso interrogated employees about the Union activity of another employee. In evaluating whether interrogation of employees concerning protected concerted activity violates Section 8(a)(1) of the Act, the Board has considered the totality of the circumstances. The Board considers whether under all the circumstances the ques- tioning at issue would reasonably tend to coerce the employee at whom it is directed so that he or she would feel restrained from exercising rights protected by Section 7 of the Act. West- wood Health Care Center, 330 NLRB 935, 939 (2000). See also Rossmore House, 269 NLRB 1176, 1178 fn 2 (1984). In Westwood Healthcare Center, supra at 939, the Board dis- cussed the test to determine whether interrogation is unlawful. The Board stated in Westwood, We agree with our dissenting colleague that the applicable test for determining whether the questioning of an employee con- stitutes an unlawful interrogation is the totality-of-the- circumstances test adopted by the Board in Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel Employees Un- ion Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985), and adhered to by the Board for the past 15 years.16 We also agree that in analyzing alleged interrogations under the Rossmore House test, it is appropriate to consider what have come to be known as “the Bourne factors,” so named because they were first set out in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964). Those factors are: (1) The background, i.e. is there a history of employer hostility and discrimination? (2) The nature of the information sought, e.g., did the interrogator appear to be seeking information on which to base taking action against individual employees? (3) The identity of the questioner, i.e. how high was he in the company hierarchy? (4) Place and method of interrogation, e.g. was em- ployee called from work to the boss’s office? Was there an atmosphere of unnatural formality? (5) Truthfulness of the reply. In analyzing whether interrogation of employees con- cerning protected concerted activity violates Section 8(a)(1) of the Act, the Board has considered the totality of the circumstances. In the final analysis, our task is to de- termine whether under all the circumstances the question- ing at issue would reasonably tend to coerce the employee at whom it is directed so that he or she would feel re- strained from exercising rights protected by Section 7 of the Act. Westwood Health Care Center, 330 NLRB 935, 939 (2000). See also Rossmore House, 269 NLRB 1176, 1178 fn. 2 (1984). See Cumberland Farms, 307 NLRB 1479 (1992). The record reflects that in May Cardoso had a conversation with Hernandez with Rocha, Guzman, and Rodriguez present. Cardoso asked how long Moran had been speaking with the union representative. However, as discussed below, Cardoso’s interrogation of Hernandez was part of a larger effort by Car- doso and Elk to discourage employees from discussion union and other protected concerted activity. Thus, there is evidence that Cardoso not only inquired about where Moran was but warned employees not to speak to the Union or about the Union during work or company time. Cardoso threatened Moran and Rocha with discipline for speaking with union representatives. Elk also interrogated employees about their union sympathies and threatened loss of benefits. Respondent contends that Cardoso, in warning Moran and Rocha, was merely enforcing employer policy so that employ- ees would be productive and not engage in nonwork-related activity during working time. However, the evidence does not support this argument. There is evidence that other employees, including Cardoso, discussed nonwork subjects on worktime. In this regard, Respondent permitted Hudson to conduct a meeting on worktime to discuss preventing the Union from representing technicians. It appears that only talking about the Union or to union representatives was prohibited. Moreover, Cardoso’s statement to Hernandez that Moran was, “talking with the operators about the Union too much and stirring up the waters” belies his true motive in limiting employees from talk- ing about the Union. Under all of the circumstances, noting the numerous in- stances of threats and interrogations, I find that Cardoso’s May interrogation of employees about Moran’s union activity vio- lated Section 8(a)(1) of the Act. There is no evidence that Cardoso interrogated an employee about the union activity of another employee in July and I will dismiss that portion of the complaint. b. On or about August 7 or 8, 2002, Cardoso interrogated employees about the Union activity of another employee and threatened that the employee could get himself into trouble for speaking with a Union representative. There is no evidence that Cardoso interrogated employees about other employee’s union activities or threatened employ- ees for speaking to the Union on or about August 7 or 8. I will dismiss this allegation of the complaint. c. On or about August 12, 2002, Cardoso told an employee he could be disciplined for talking with the Union. The basic test for a violation of Section 8(a)(1) is whether under all the circumstances the employer’s conduct reasonably tended to restrain, coerce, or interfere with employees’ rights guaranteed by the Act. Mediplex of Danbury, 314 NLRB 470, 472, (1994). See, e.g., Sunnyside Home Care Project, 308 NLRB 346 fn. 1 (1992), citing American Freightways Co., 124 NLRB 146, 147 (1959). A few days before Hernandez’ termination on August 16, Cardoso asked Hernandez where Moran was because he was talking too much with the operators about the Union and that he was stirring up the water too much. When viewed in the total- ity of the circumstances, the clear implication behind Cardoso’s statement that Moran was talking too much to the operators about the Union and stirring up the water too much was a threat of reprisal. As such this statement would reasonably tend to restrain, coerce, and interfere with both Moran and Hernandez’ Section 7 rights and violated Section 8(a)(1) of the Act. RIVER RANCH FRESH FOODS, LLC 125 d. On or about August 12, 2002, Elk interrogated employees about their Union sympathies and threatened them with loss of benefits because of their support for the Union. In general, it is unlawful for an employer to inquire as to the union sentiments of its employees. President Riverboat Casi- nos of Missouri, 329 NLRB 77 (1999). In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), when an employer makes a prediction as to what effects unionization may have on its company, such a prediction is lawful where it is “carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization.” Gissel at 618. On August 8 Elk held a meeting with technicians during worktime. With Cardoso translating, Elk told employees that, “the company wanted to know who were the ones that wanted the Union.” Elk said he thought that it was not necessary for the Union to defend them because they had good benefits. Elk also said that the technicians “could lose some benefits” if they had a union. Elk also said, “I’m not going to pay $30 to Jose Rocha to defend me, if I have a mouth to defend myself.” Elk’s interrogation of employees as to which employees, “wanted the Union” is coercive of employees’ rights guaran- teed by Section 7 of the Act. President Riverboat Casinos of Missouri, supra. Under Gissel, it is the Respondent’s burden to show that Elk’s statement was justified by objective evidence. See, e.g., Schaumburg Hyundai, 318 NLRB 449, 450 (1995); see also Zim’s Foodliner, Inc. v. NLRB, 495 F.2d 1131, 1137 (7th Cir, 1974) (finding that Gissel places a “severe burden” on employ- ers seeking to justify predictions concerning the consequences of unionization). Gissel requires more than a mere belief to make such a prediction lawful, because “employees, who are particularly sensitive to rumors of plant closings, take such hints as coercive threats rather than honest forecasts.” Gissel at 619. See also Turner Shoe Co., 249 NLRB 144, 146 (1980). In this case Elk’s prediction that employees could lose some benefits if they had a union was not justified by any objective evidence beyond Elk’s mere belief and was not protected speech but rather was designed to threaten and coerce employ- ees so that they would not exercise their Section 7 rights. Both Elk’s interrogation and threat that employees would lose bene- fits violated Section 8(a)(1) of the Act. Paragraphs e through k involve the violations of Section 8(a)(1) of the Act alleged in Counsel for the General Counsel’s brief and fully litigated at the hearing. e. In May 2002, Cardoso threatened to “fuck up” Moran for talking to Union representative Reynoso. During Cardoso’s May interrogation of Hernandez about Moran speaking with the Union, Cardoso said Moran is taking too many privileges and he could fuck him up. In Beverly Health & Rehabilitation Services, 335 NLRB 635 (2001), the Board found an employer’s statement that employ- ees who supported the Union were “going to get screwed” was coercive of employees’ rights and violated Section 8(a)(1) of the Act. I find Cardoso’s statement, in the context of Moran speaking with the Union, that he could “fuck him up” was de- signed to chill Moran’s Section 7 rights and violated Section 8(a)(1) of the Act. f. In May 2002, Cardoso created the impression that Moran’s Union activities were under surveillance. The Board’s test for determining whether an employer has created an impression of surveillance is whether the employee would reasonably assume from the statement in question that his union activities had been placed under surveillance. In United Charter Service, 306 NLRB 150 (1992), the Board held: The Board does not require employees to attempt to keep their activities secret before an employer can be found to have cre- ated an unlawful impression of surveillance.... Further, the Board does not require that an employer’s words on their face reveal that the employer acquired its knowledge of the em- ployee’s activities by unlawful means. Id. at 151. The Board further explained: The idea behind finding ‘an impression of surveillance’ as a violation of Section 8(a)(1) of the Act is that employees should be free to participate in union organizing campaigns without the fear that members of management are peering over their shoulders, taking note of who is involved in union activities, and in what particular ways. Citing Flexsteel Indus- tries, 311 NLRB 257 (1993). Tres Estrellas de Oro, 329 NLRB 50, 50 (1999). In the course of Cardoso’s May interrogation of Hernandez concerning Moran speaking with union representatives, Car- doso said I will wait a few minutes and that if he is there longer than his time for lunch, I will screw him up. Cardoso’s clear implication to the employees was that he was going to wait and observe Moran’s union activities. Such a statement would lead employees to reasonably believe that their and Moran’s union activities were being observed and it violates Section 8(a)(1) of the Act. g. In June Cardoso threatened Moran and created the impres- sion that his Union activities were under surveillance by tell- ing Hernandez that Moran shouldn’t be talking to the Union representative during work time and that if Moran took too long he was “screwed.” In June, while in the lunchroom with Hernandez, Rocha, Rodriguez, Guzman, and Salazar, Cardoso said Moran shouldn’t have been talking to the union representative during worktime and if Moran took too long he would screw him. Like the statement Cardoso made in May, this statement cre- ated the reasonable impression that Cardoso had been observ- ing Moran’s conversations with the union representative and that there would be adverse consequences. Both statements violated Section 8(a)(1) of the Act. Beverly Health & Rehabili- tation Services, 335 NLRB 635 (2001);Tres Estrellas de Oro, 329 NLRB 50, 50 (1999). h. In June 2002, Cardoso threatened Rocha by telling him that he could get a warning for talking to the Union. In mid-June Cardoso was in the maintenance shop with Ro- cha and other mechanics. Cardoso told Rocha not to talk to the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 126 Union or he would issue a warning. An employer’s threat of suspension for engaging in union activities violates the Act. Bestway Trucking, Inc., 310 NLRB 651, 671 (1993); Q-1 Motor Express, 308 NLRB 1267, 1277 (1992). Cardoso’s threat to issue Rocha a warning for talking to the Union was coercive of his rights guaranteed under the Act and violated Section 8(a)(1) of the Act. i. In late June, Cardoso threatened Moran by telling Rocha to talk to Moran about talking to Union representative Diaz dur- ing company time and telling him he could get a warning. The record shows in late June Cardoso was in the mainte- nance shop with Rocha, Cardoso told Rocha to call it to Moran’s attention “because it was during company time and he could get a warning.” Moran had just been talking to Union Representative Crescencio Diaz. Having found above that Cardoso had no legitimate basis for limiting Moran’s conversations with union representatives, since only union contact was prohibited, Cardoso’s statements violated Section 8(a)(1) of the Act. Bestway Trucking, Inc., 310 NLRB 651, 671 (1993); Q-1 Motor Express, 308 NLRB 1267, 1277 (1992). j. In early July Cardoso threatened Rocha by telling him not to talk to the Union. In early July when Moran was speaking to union representa- tives in the cafeteria, Cardoso told Rocha to call it to Moran’s attention he should not be talking to the Union. At the same time, Cardoso also told Rocha not to talk to the Union. Like the statements Cardoso made above in paragraph I, the threat to Rocha violated Section 8(a)(1) of the Act. k. In late July Cardoso threatened Rocha by telling him not to talk to the Union and not to talk so much about per diem. In late July in the lunchroom Rocha and Moran were talking to operators about per diem rates. Cardoso told Rocha not to talk during work hours with operators about per diem. In Car- doso’s office in late July, Cardoso told Rocha not to talk too much to the Union. Both of Cardoso’s statements violated Section 8(a)(1) of the Act. Cardoso was attempting to limit Rocha’s ability to exercise Section 7 rights. Bestway Trucking, Inc., supra; Q-1 Motor Express, supra. 2. The 8(a)(3) allegations General Counsel contends that Respondent terminated Moran, Hernandez, and Rocha because they engaged in union activities. Respondent argues that it terminated Moran, Her- nandez, and Rocha because they failed to complete their proba- tionary period successfully. Section 8(a)(3) of the Act prohibits employers from dis- criminating in regard to an employee’s, “tenure of employment . . . to encourage or discourage membership in any labor or- ganization.”25 In 8(a)(3) cases the employer’s motivation is frequently in issue, therefore the Board applies a causation test to resolve such questions. Wright Line, 251 NLRB 1083, 1088 (1980). The Wright Line test requires the General Counsel to make a 25 29 U.S.C. § 158(a)(3). prima facie showing sufficient to support an inference that the employee’s protected conduct motivated the employer’s ad- verse action. “The critical elements of discrimination cases are protected activity known to the employer and hostility toward the protected activity.” Western Plant, 322 NLRB 183, 194 (1996). Although not conclusive, timing is usually a significant element in finding a prima facie case of discrimination. Id. at 194. The General Counsel has the initial burden of establishing that union activity was a motivating factor in Respondent’s action alleged to constitute discrimination in violation of Sec- tion 8(a)(3) of the Act. Once General Counsel has established its prima facie case, the burden shifts to Respondent to show that it would have taken the disciplinary action in the absence of protected activity. Wright Line, supra. The standard in evaluating the lawfulness of a discharge does not change simply because the person discharged is a proba- tionary employee. While an employer has wide discretion in deciding to terminate a probationary employee, an employer may not fire such an employee for discriminatory reasons. Phillips Petroleum Co., 339 NLRB 916, 919 fn 19 (2003). a. Eduardo Moran Moran engaged in union activities on behalf of the Union as well as other protected-concerted activity. After June 6, Moran spoke to union representatives several times at the Respon- dent’s facility and learned that the Union was trying to organize Respondent’s technicians. In July and August Moran had con- versations with employees about the Union. In July a machine operator named Omar told Moran that he heard the operators were trying to get rid of the Union. On about August 14, Omar and Moran had another conversation in the Respondent’s pro- duction area. Omar asked Moran if he would speak to the op- erators about the Union. Moran agreed to speak to the operators about his experience with the Union and the strike at Basic Foods. In July Moran, Hernandez, and Rocha met with Robin- son to discuss per diem rates in El Centro. Robinson said they were on company time, they were wasting their time and to get back to work. The Respondent was aware of Moran’s union and protected- concerted activity. In addition to his presence at the July meet- ing with Robinson where the employees tried to discuss per diem, Cardoso admitted that he saw Moran talking to union representatives in the cafeteria during Moran’s lunchbreak in June, July, and August. Further, Cardoso said he told Elk in June, July, and August about Moran’s union activities. Accord- ing to Elk, Cardoso told him in July that Moran was going over his lunch period talking to Union Representative Diaz. How- ever, Cardoso denied that Moran was taking too much time talking to union representatives. Cardoso told Elk that Moran was using too much time talking about the Union during work hours. Elk admitted that in August he heard “scuttlebutt” that Moran wanted to be the maintenance department shop steward. On about August 14, Omar and Moran had a conversation in Respondent’s production area. Omar asked Moran if he would speak to the operators about the Union. Moran agreed to speak to the operators about his experience with the Union and the strike at Basic Foods. During this conversation Production RIVER RANCH FRESH FOODS, LLC 127 Supervisor Danny Jimenez came within 2 feet of Moran and Omar two or three times. He was present for 10–15 seconds each time. There is evidence of Respondent’s antiunion animus directed toward Moran by Cardoso. In May Cardoso had a conversation with Hernandez in which Cardoso asked how long Moran had been speaking with the union representative. Cardoso said Moran is taking too many privileges and he could fuck him up. Hernandez replied that Moran was a union leader. Cardoso said he isn’t anything. Cardoso said I will wait a few minutes and that if he is there longer than his time for lunch, I will fuck him up. A month later, while in the lunchroom with Hernandez, Rocha, Rodriguez, Guzman, and Salazar, Cardoso said Moran shouldn’t have been talking to the union representative during work time and if Moran took too long he would screw him. A few days before his termination on August 16, Cardoso asked Hernandez where Moran was because he was talking too much with the operators about the Union and that he was stirring up the water too much. The timing of Moran’s termination is also suspect as it oc- curred within weeks of his union activities that the Respondent, through Supervisors Elk and Cardoso, was well aware of. I find that General Counsel has established a prima facie case that Respondent terminated Moran because of his union and other protected concerted activity. The burden shifts to the Respondent to establish it would have terminated Moran even in the absence of his union and other protected concerted activ- ity. The Respondent contends it fired Moran because he talked too much. Humphreys testified that the only reason Moran was fired was for talking too much. Between August 9 and 15 Elk called Humphreys to get permission to fire Moran and told her that while technically Moran was a good mechanic, he spent far too much time talking on the job. Elk gave contradictory testi- mony that Moran was not a good mechanic because he was not seeking out information from more experienced mechanics and was not reading instruction manuals. I have found this reason for firing Moran incredible. Elk also said that Moran did not know how to repair hoists. However, Cardoso said that by June, the start of the probationary period, Moran was no longer working on hoists. Moreover, Cardoso said he did not know Moran was having trouble repairing hoists until after August 16. Elk also testified that he had two conversations with Robin- son about terminating Moran. The first conversation was the third week of July. Elk told Robinson there were two employ- ees who might not make it through probation, Moran and Ro- cha. By this time both Elk and Cardoso were aware of Moran’s union activity and Cardoso had threatened Moran. The second conversation was the morning of August 16 after Elk had inter- rogated employees and after Robinson had expressed his ani- mus toward the Union. It was not until August 16 that the deci- sion was made to terminate Moran. The reasons for firing Moran proffered by Elk, that Moran wasn’t going to make it because of his no-call/no-show and because, “he hadn’t proved himself above and beyond,” are inconsistent with the reasons given by Humphreys and are not supported by the evidence. Elk told Humphreys that Moran was a good worker, he just talked too much. I find that the reasons proffered by Respon- dent for Moran’s termination are pretext and the reason Re- spondent fired Moran was because he talked to the Union and to employees about the Union, as the Respondent’s witnesses have admitted. I find Respondent violated Section 8(a)(1) and (3) of the Act by terminating Moran. b. Lorenzo Hernandez Hernandez also engaged in union activity. In June Hernan- dez had a conversation with three fellow technicians about organizing the Union. Hernandez said Moran thought it would be a good idea for the technicians to join the Union so it would not be so easy for Respondent to terminate them. The next day Hernandez spoke to Moran about his conversation with the other technicians about joining the Union. After June 19 Her- nandez talked to Moran and Rocha about the Union, per diem rates and other terms and conditions of employment at work. Hernandez was also present with other employees, including Rocha and Moran in a meeting with Robinson where employ- ees asked for higher per diem rates. There is no evidence that Respondent’s was aware of Her- nandez’ union activity. While Hernandez was present in early July at the meeting with Robinson where employees raised the issue of per diem, there is no evidence that Hernandez was an active participant or even spoke up during the meeting. More- over, there is no evidence that the Respondent harbored any animus toward Hernandez for his role in the meeting. Knowledge of union or other protected-concerted activity is an essential element of General Counsel’s prima facie case in establishing a violation of Section 8(a)(1) and (3) of the Act. Western Plant, 322 NLRB 183, 194 (1996). Counsel for the General Counsel argues knowledge should be inferred from discrediting Elk, from Hernandez’ association with Moran at work and from Hernandez’ failure to provide Cardoso with information about Moran’s union activity. The discrediting of Elk’s testimony cannot, without other evidence, establish facts essential to General Counsel’s case. The mere fact that Her- nandez associated with Moran or that Moran did not provide information to Cardoso about Moran likewise does not estab- lish the essential element of employer knowledge of Hernan- dez’ union or protected activity. Pace Industries, 320 NLRB 661 (1996). I do not find, in the absence of antiunion animus directed at Hernandez, that his participation in the early July meeting with Robinson was sufficient to establish that Hernan- dez’ presence in that meeting supplied the reason for his dis- charge. I find that the General Counsel has failed to establish a prima facie case that Respondent terminated Hernandez for engaging in union or protected-concerted activity and I will dismiss that portion of the complaint. c. Jose Rocha Rocha too was engaged in union activity. It is apparent that Rocha spoke with union representatives at work because Car- doso told him to refrain from doing so. In early July when Moran was speaking to union representatives in the cafeteria, Cardoso told Rocha to call it to Moran’s attention he should not be talking to the Union. At the same time, Cardoso told Rocha not to talk to the Union. In mid-June in the maintenance shop DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 128 with other mechanics present Cardoso told Rocha not to talk to the union people because he could give Rocha a warning. In Cardoso’s office in late July, Cardoso told Rocha not to talk too much to the Union. Thus, by June Cardoso was aware of Ro- cha’s union activity and warned him not to speak to union peo- ple. Elk’s statement to the technicians on August 8 that, “I’m not going to pay $30 to Jose Rocha to defend me, if I have a mouth to defend myself” is evidence of Respondent’s knowl- edge of Rocha’s union activity or support for the Union. In addition Rocha was engaged in protected activity. After June 19, Rocha spoke to employees in the maintenance shop and in the lunchroom about the amount of per diem employees were getting for work in El Centro. In early July Rocha and four to six other employees, including Moran and Hernandez met with Respondent’s vice president for operations, Robinson. Guillermo Salazar told Robinson the employees were not get- ting enough per diem. Robinson told the employees that they were on company time and to go back to work. In late July in the lunchroom Rocha and Moran were talking to operators about per diem rates. Cardoso told Rocha and Moran not to talk during work hours with operators about per diem. As of July Cardoso was also aware of Rocha’s protected activity and told him to refrain from talking to employees. Respondent’s animus toward Rocha’s union and protected activities was supplied by Cardoso’s warnings to Rocha to stop engaging in them as well as Elk’s statement to technicians on August 8 that made reference to Rocha. I find that General Counsel has established a prima facie case that the Respondent terminated Rocha for engaging in union and protected-concerted activities. The burden shifts to the Respondent to show it would have fired Rocha in the ab- sence of his union or protected-concerted activity. The Respondent contends it terminated Rocha for not re- sponding to calls, his disregard of safety issues, his lack of urgency and the poor example he set for others. While I am dubious about the complaints lodged against Ro- cha for his failure to timely respond to service calls by supervi- sors Jimenez and Manriquez since they worked the night shift and Rocha worked the day shift in June, July and August, Re- spondent had valid grievances against Rocha for disregard of safety concerns. Rocha admits that on June 21, while working on the flume he failed to remove loose washers. Later washers were found in two bags of salad, causing a shut down of the production lines for 30–35 minutes. This was a serious breach of safety consid- erations since the flume is a critical control point, i.e., a point in the process where a consumer of Respondent’s product could be harmed. Pauly spoke to Rocha about her safety concerns. Rocha admits that Adelina Izquierdo, a quality assurance em- ployee, found the washers in the shaker and told him not to let it happen again. In late July Rocha demonstrated his lack of concern for the safety of the consuming public when he refused to assist Pauly because metal shards were found in the broccoli line. Pauly reported her displeasure with Rocha to Elk. In August, about 10 days before he was terminated, Rocha admitted he was working on a railing in room four where prod- uct is prepared when washers and a nut were found on the floor in the vicinity of the railing. This too was a serious breach of safety rules as good manufacturing practice regulations (GMP), produced by the FDA, require that there be no foreign materials such as washers in the vicinity of product. These washers were found within 5 feet of the product. Pauly again complained to Elk that Rocha needed to understand her concerns. These three incidents, standing alone provided Respondent with sufficient justification for terminating Rocha. Counsel for the General Counsel contends that Respondent’s evidence regarding the safety issues was fabricated. However, I have credited the testimony of Pauly, whose observations form the basis for Respondent’s decision to terminate Rocha. Moreover, Rocha admitted leaving the washers on the flume and admitted he was responsible for the railings in room 4. In addition, General Counsel takes the position that Respon- dent should have provided Rocha with written warnings. By failing to follow its established disciplinary practice with re- spect to Rocha, General Counsel contends Respondent demon- strated disparate treatment of Rocha and showed its true pur- pose was to terminate him for engaging in union or protected concerted activity. Respondent contends that during the probationary period no warnings were necessary since Respondent did not have to provide just cause for discharge. I am mindful that an employer need not act with perfect con- sistency or justice in administering its business, and that I am not free to substitute my own for valid, even if seemingly harsh business judgments. Denholme & Mohr, Inc., 292 NLRB 61 (1988). As has been frequently pointed out, management may discharge for good reason, a bad reason, or no reason at all. Great Plains Beef Co., 241 NLRB 948 (1979). There is no dispute that all of Respondent’s employees, in- cluding Rocha, were subject to a period of probation in June, July, and August. Under Spruce Up26 Respondent, as a succes- sor employer, set initial terms and conditions of employment, including a period of probation for all employees. Under the collective-bargaining agreement with the Union, Respondent could terminate a probationary employee for any non- discriminatory reason. While there are numerous examples that supervisors continued to provide warnings during the proba- tionary period, there is no evidence that this was required by Respondent. As Respondent argues, it had no reason to docu- ment discipline during probation since any nondiscriminatory cause was sufficient to terminate an employee. During the probationary period Respondent likewise had no reason to pro- vide progressive discipline since any individual valid cause was sufficient to terminate an employee. I conclude that Respon- dent’s failure to warn Rocha for his safety lapses does not dem- onstrate disparate treatment indicative of an unlawful motive but rather is consistent with Rocha’s probationary period. Pace Industries, 320 NLRB 661 (1996). I find that Respondent has established that it would have terminated Rocha despite his union or protected-concerted activity. I will dismiss this por- tion of the complaint. 26 Spruce Up Corp., 209 NLRB 194 (1974). RIVER RANCH FRESH FOODS, LLC 129 CONCLUSIONS OF LAW 1. By terminating Eduardo Moran on August 16, 2002 Re- spondent River Ranch Fresh Foods, LLC has engaged in unfair labor practices affecting commerce within the meaning of Sec- tion 8(a)(1) and (3) and Section 2(6) and (7) of the Act. 2. By interrogating employees about the union activity of another employee, by threatening an employee with discipline for talking to a union representative, by interrogating employ- ees about their union sympathies, by threatening employees with loss of benefits if they supported the Union and by creat- ing the impression that an employee’s union activities were under surveillance Respondent River Ranch Fresh Foods, LLC violated Section 8(a)(1) and Section 2(6) and (7) of the Act. 3. Respondent River Ranch Fresh Foods, LLC has not oth- erwise violated Section 8(a)(1), or (3) of the Act, as alleged in the complaint. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. The Respondent having discriminatorily discharged an em- ployee, it must offer him reinstatement and make him whole for any loss of earnings and other benefits, computed on a quarterly basis from date of discharge to date of proper offer of rein- statement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as com- puted in New Horizons for the Retarded, 283 NLRB 1173 (1987). [Recommended Order omitted from publication.]