Industrial Agrico Processing, Inc.

INDUSTRIAL AGRICO PROCESSING Industrial Agrico Processing, Inc. and General Teamsters Union, Local No. 431, International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America. Cases 32- CA-5626 and 32-RC-1835 28 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 31 August 1984 Administrative Law Judge Harold A. Kennedy issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed his posthearing brief in support of the judge's decision. 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,I and conclusions2 and to adopt the recommended Order as modified.3 The election results were four for the Union, eight against, and seven challenged ballots. The judge sustained four challenges, including the Union's challenges to Shawn Bakke, Deanne Bakke, and Daniel Arms whom the judge found in- eligible solely because they were related to the Re- spondent's general manager Jerry Bakke. In Bur- lington Food Store, 272 NLRB 336 (1984), we held that employees related to nonowner supervisors would be included in the unit unless the employees enjoyed "special status" on the job. The present record does not indicate whether Jerry Bakke's rel- atives had special privileges or benefits not accord- ed other employees. Accordingly, we sever Case 32-RC-1835, remand it to the Regional Director for the taking of evidence on the special status issue, and direct him to make a determination on I The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 The judge concluded that the Respondent discharged James LeBeau 3 June because of his union activities The judge found that LeBeau at- tended a union meeting 31 May, signed an authorization card, and began distributing cards to fellow employees, General Manager Bakke either knew or suspected LeBeau was actively supporting the Union, Bakke strongly opposed the Union, Supervisor Emmett Byrd told employee Ed Duval that the Respondent fired LeBeau for union activities, Controller Richard Bergeron, who effected the discharge, admitted to LeBeau the real reason was his union activities, and LeBeau's job performance was satisfactory The Respondent asserts that it discharged LeBeau because he loitered in Controller Bergeron's office We find, particularly given Bergeron's and Duval's testimony and a context of numerous unfair labor practices, that the Respondent failed to demonstrate that it would have discharged LeBeau even in the absence of his union activities 9 We conform the notice with the judge's recommended Order 711 the ballots of Shawn Bakke, Deanne Bakke, and Daniel Arms consistent with the Burlington Food test and take further appropriate action. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Industrial Agrico Processing, Inc., San Joaquin, California, its officers , agents, successors, and assigns , shall take the action set forth in the Order as modified , except that the attached notice is substituted for that of the administrative law judge. IT IS FURTHER ORDERED that Case 32-RC-1835 is severed from Case 32-CA-5626 and remanded to the Regional Director for appropriate evidentiary findings and determinations on Shawn Bakke's, Deanne Bakke's, and Daniel Arms' ballots, under the standard set forth in Burlington Food Store, 272 NLRB 336 ( 1984). If the challenges to at least two of their ballots are overruled, it is further ordered that the valid ballots be opened and counted, along with the ballots of James LeBeau , Donald Weeks, and Ray Mains . If the Union obtains a majority, it shall be certified as the bargaining representative of employees in the appropriate unit . If the Union does not obtain a majority , then because of the Re- spondent's unfair labor practices , the election shall be set aside and a new election conducted when the Regional Director deems appropriate. 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 violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge or otherwise discrimi- nate against any of you for supporting General Teamsters Union, Local 431, International Brother- 274 NLRB No. 102 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other union. WE WILL NOT violate Section 8(a)(1) of the Act by informing employees that we will issue a book- let that prohibits union activity; inform employees that they can either support the Company against the Union or leave; interrogate employees concern- ing their membership and/or activities on behalf of the Union; threaten employees with termination if they support the Union; interrogate employees as to whether their absence was due to attendance at a union meeting; inform employees that we will impose more onerous working conditions on em- ployees who support the Union; inform employees that we will refuse to negotiate and bargain with the Union; threaten to close down our facility if employees select the Union as their exclusive bar- gaining representative; inform employees that we will reduce wages of employees if they select the Union as their exclusive collective-bargaining rep- resentative; make any inquiry as to whether our employees will vote for the Union; state that we can ascertain how employees vote in an NLRB election; state that employees may lose their homes if they vote for the Union; inform employees that no union activity will be allowed; inform employ- ees that an employee has been terminated for union activity; inform employees that employees who had worked for another unionized company should never be employed; or inform employees that we do not intend to have employees who are repre- sented by a union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer James LeBeau, Chester Copher, and Lloyd Murry Jr. immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL expunge from our files any reference to the discriminatory action taken against them and notify each of them in writing that this has been done and that the evidence of our unlawful dis- crimination will not be used as a basis for future personnel action against them. INDUSTRIAL AGRICO PROCESSING, INC. DECISION STATEMENT,OF THE CASE HAROLD A. KENNEDY, Administrative Law Judge. These matters were heard before me on March 20 and 21, 1984, in Fresno, California. The unfair labor practice case, Case 32-CA-5626, is based on a charge filed by General Teamsters Union, Local No. 431, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union) on June 16 and August 16, 1983, and a complaint which issued August 29, 1983. The complaint alleges Re- spondent Industrial Agrico Processing, Inc. violated Sec- tion 8(a)(1) and (3) of the National Labor Relations Act (the Act) by discharging three of its employees, James A. LeBeau, Chester Copher, and Lloyd E. Murry Jr. The complaint also alleges that Respondent violated Sec- tion 8(a)(1) and (5) by failing and refusing to bargain in good faith with the Union. Finally, the complaint alleges Respondent violated Section 8(a)(1) of the Act through certain statements made in June 1983 by two of its offi- cials, General Manager Jerry Bakke and Foreman Emmett Byrd.' The other matter before me, Case 32-RC-1835, in- volves objections and challenges made in connection with an election conducted by the General Counsel on June 29, 1983. Summary of the Proceedings The complaint alleges Respondent terminated the three employees-Copher and Murry about June 13 and LeBeau about June 4, 1983-because they "joined or as- sisted the Union or engaged in other protected concerted activities for the purposes of collective bargaining or other mutual aid or protection." Paragraph 6(a) of the complaint alleges Respondent violated Section 8(a)(1) through statements made by Bakke at Respondent's facility in San Joaquin, California, as follows: 1. On several unknown dates in early June 1983, in- formed employees that they could either support Re- spondent against the Union or be considered against Re- spondent, and interrogated the employees concerning whether they supported Respondent or the Union 2. On an unknown date in June 1983: (a) Interrogated an employee regarding whether his absence from work was due to his attendance at a union meeting (b) Informed an employee that Respondent would impose more onerous working conditions on employees who supported the Union and thereby force the employ- ees to quit their employment with Respondent (c) Informed an employee that Respondent would refuse to negotiate and bargain with the Union even if the employees selected the Union to be their exclusive collective-bargaining representative ' The complaint alleges Bakke was also part owner of Respondent, but the record indicates he had no propriety interest At the time of the trial the whereabouts of Bakke were unknown INDUSTRIAL AGRICO PROCESSING (d) Threatened an employee that Respondent could shut down its San Joaquin, California facility if its em- ployees selected the Union to be their exclusive collec- tive-bargaining representative. (e) Informed an employee that Respondent would reduce the wages of certain of its employees if the Union were selected by employees to be their exclusive collec- tive-bargaining representative. 3. On an unknown date in the first week of June 1983, and in the presence of an employee: (a) Requested a person not employed by Respondent to find out whether an employee would vote for the Union during an upcoming NLRB representation elec- tion. (b) Instructed a person not employed by Respondent to inform an employee that Respondent could ascertain how employees would vote during an upcoming NLRB representative election. (c) Instructed a person not employed by Respondent to inform an employee that if certain employees voted for the Union during an upcoming NLRB representation election, Respondent would impose onerous working conditions on the employees and thereby casue the em- ployees to quit their employment with Respondent. 4 On an unknown date during the second week of June 1983, and during the course of a telephone conver- sation, informed an employee that the employee could lose his company-provided housing if he voted for the Union during an upcoming NLRB representation elec- tion. 5. About June 10, 1983. (a) Informed employees that it would issue to employ- ees a rule book prohibiting them from engaging in activi- ties on behalf of the Union. (b) Informed employees that they could support Re- spondent against the Union by refraining from engaging in activities on behalf of the Union or, in the alternative, by terminating their employment with Respondent. (c) Interrogated an employee concerning the employ- ee's membership in and/or activities on behalf of the Union. (d) Threatened employees that employees who sup- ported the Union would be immediately terminated. (e) Informed employees that Respondent would termi- nate all of its employees and replace them with a "whole new crew" if employees selected the Union to be their exclusive collective-bargaining representative. (f) Threatened employees with layoffs if they selected the Union to be their representative for the purpose of collective bargaining. Paragraph 6(b) of the complaint alleges Respondent violated Section 8(a)(1) about June 21, 1983, through statements of Bakke made at the Federal Building in Fresno, California, as follows 1. Informed employees that Respondent should never have hired individuals who had been affiliated with the Union prior to their employment by Respondent 2. Informed employees that Respondent did not intend to have its employees represented by the Union and would not be a unionized employer. Paragraph 6(c) of the complaint alleges Respondent violated Section 8(a)(1) of the Act during the second 713 week of June 1983 through statements made by Emmett Byrd at Respondent's San Joaquin, California facility as follows- 1. Informed an employee that another employee of Re- spondent had been terminated because of his membership in and/or activities on behalf of the Union. 2 Informed an employee that Respondent did not want any of its employees engaging in any activities on behalf of the Union The complaint also contains the following failure-to- bargain allegations: 1 The following described employees of Respondent constitute an appropriate unit within the meaning of Sec- tion 9(b) of the Act: All full-time and regular part-time employees em- ployed by Respondent at its 8105 South Lassen, San Joaquin, California facility; excluding feed lot and agricultural employees, professional employees, guards, and supervisors as defined in the Act. 2. A majority of the employees in such unit designated and selected the Union as their collective-bargaining rep- resentative at a time between May 3 and June 6, 1983. 3. The Union is a labor organization as defined in Sec- tion 2(5) of the Act. 4. By virtue of Section 9(a) of the Act the Union has been the exclusive bargaining representatives of the em- ployees in the unit since June 6, 1983 5 The Union, about June 6, 1983, by a hand-delivered letter, requested Respondent to recognize and bargain with it with respect to terms and conditions of employ- ment for employees in the unit. 6. Since about June 6, 1983, Respondent has failed and refused to recognize or bargain with the Union The complaint further alleges that the challenged con- duct of Bakke and Byrd and the terminations of LeBeau, Copher, and Murry Jr. have precluded the holding of a fair election among the employees in the unit. With respect to Case 32-RC-1835, the following ob- jections filed by the Charging Party Union are before me for determination 1. Prior to the holding of the election the Employer, through Jerry Bakke, threatened employees with dis- . charge if they supported the Petitioner 2. Prior to the holding of the election the Employer, through Jerry Bakke, discriminatorily discharged em- ployees, and caused the constructive discharge of other employees, because of their support for and/or member- ship in the Petitioner. 3. Prior to the holding of the election the Employer, through Jerry Bakke, repeatedly threatened employees with plant closure and other economic consequences should Petitioner prevail in the representation election 4. Immediately prior to July 29, 1983, the Employer, through Jerry Bakke, flagrantly misrepresented the legal and economic consequences which would result should the Petitioner prevail in the representation election. 5. On July 29, 1983, the Employer, through Jerry Bakke, prevented eligible employees from voting in the representation election held herein. 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6 On July 29, 1983, at the representation election held in this matter, the Employer used a supervisor, Ray Mains, as its observer The ballots of the following persons were challenged by the Charging Party Union and are also before me for determination. Shawn Bakke Jim LeBeau Deanna Bakke Donald Weeks Daniel Arms Patricia Rojas Ray Mains The Union's challenges to Shawn Bakke, Deanna Bakke, and Arms are based on their relation to Jerry Bakke, general manager of Respondent. LeBeau and Weeks were challenged on the basis that their names were not on the Excelsior list. (The General Counsel also chal- lenged LeBeau and Weeks for the same reason.) Rojas was challenged on the basis she was not employed at the time of the election, and Mains was challenged on the basis he was a supervisor. The conduct involved in Objections 1, 2, 3, and 4, ac- cording to the Regional Director, involves "the same conduct" challenged in the complaint issued in Case 32- CA-5626 The Regional Director requests resolution of Objections 5 and 6, as well as the challenged ballots, in this consolidated proceeding in the interest of obtaining "substantial savings in time and expense to all concerned parties."2 Undisputed Matters Many of the issues raised by the complaint are not now in dispute By virtue of Respondent's answer (which was amended at the trial) and stipulations or con- cessions made during the trial, the following matters are found to be facts: 1 The original and first amended charges were filed and served as alleged in paragraph 1 of the complaint. 2 At all times material Respondent has been a Califor- nia corporation with an office and place of business in San Joaquin, California. It has been engaged in the busi- ness of feeding cattle and milling and producing agricul- tural products and during the year prior to issuance of the complaint, it purchased and received goods or serv- ices valued in excess of $50,000 directly from suppliers located outside of the State of California. 3 At all times material, Respondent has been an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act 4. The Union at all times material has been a labor or- ganization as defined in Section 2(5) of the Act. 5. Jerry Bakke and Emmett Byrd were at all times ma- terial supervisors and agents within the meaning of Sec- tion 2(11) and (13) of the Act. 6. The unit described above (set forth in par 9 of the complaint) has been at all times material an appropriate unit for purposes of collective bargaining under Section 9(b) of the Act. 2 The election conducted on July 29, 1983, resulted in a tally of ballots showing 30 eligible voters , 4 ballots for the Union , and 8 ballots against Thus the seven challenged ballots are determinative Respondent admits discharging LaBeau, Copher, and Murry as alleged in paragraph 7 of the complaint, but it denies the discharges were for protected conduct or were otherwise unlawful. It was stipulated that on June 6, 1983, the day the Union admittedly made a demand for recognition, there were 20 employees in the bargaining unit. The parties stipulated that "except for General Coun- sel [Exhibit] 8, there is no record in any of the three per- sonnel files whatsoever to give any kind of suggestion that the Employer was dissatisfied with the work per- formance of James LeBeau, Chester Copher and Lloyd Murry, Jr."3 The Evidence There were 15 witnesses who testified, 10 for the Gen- eral Counsel and 5 for Respondent. One witness called by the General Counsel, Ernest Martinez, mill supervisor at Industrial Agrico, was recalled and questioned again on Respondent's defense. Gillbert G. Grieve is currently employed by Teamsters Local 431 as a business representative. Grieve conducted a union organizational meeting at the Teamsters Union Hall located in Fresno, California, in the afternoon of May 31, 1983, with certain employees of Industrial Agrico, Inc. (Agrico) 4 His speech at this meeting con- cerned getting the Agrico employees to sign union au- thorization cards. Grieve testified that he explained to those present that by using the signed cards he would go to their employer for union recognition or submit them to the National Labor Relations Board so that an elec- tion could be held. Accordingly, Grieve said he passed out the authorization cards and that he received all of them back after being filled out and signed by the Agrico employees.5 Grieve also testified that he was present at an NLRB hearing to determine Agrico's unit eligibility which, he said, took place sometime in June or July 1983 at the Federal Building in Fresno.6 He indicated that others present included Agrico Official Jerry Bakke, Teamsters counsel, Respondent's counsel, and certain Agrico em- ployees, including Lloyd Murry Jr, Charles LeBeau, and Jim LeBeau Grieve stated that while at the hearing Bakke addressed a group which included Agrico em- ployees, saying that a "goon" had been out to his busi- 3 G C Exh 8 is a copy of a State of California form sent to Respond- ent in connection with a claim for unemployment benefits made by Jim LeBeau The exhibit indicates that Respondent reported to the State that LeBeau's employment was terminated because "he was not performing his job to employer's satisfaction " The exhibit also indicates that LeBeau "was performing to the best of his ability" and that "he had no prior warning " The State form also had boxes checked stating that the dis- charge was "not for misconduct in connection with work" 4 Grieve testified that he remembered Ernest Martinez , Jim LeBeau, Charles LeBeau, Daniel DellaMaggiore , Chester Copher, and Ray Mains being present at the meeting He said there was one other person there whose name he could not recall All dates refer to 1983 unless otherwise stated s The authorization cards of Copher , LeBeau, DellaMaggiore, Mains, Martinez, and LeBeau were admitted into evidence as G C Exhs 4(a)- (0 6 This hearing actually took place on June 21, 1983 INDUSTRIAL AGRICO PROCESSING 715 ness demanding union recognition.7 Grieve testified that Bakke also stated he was not going to be a "Penny- Newman "8 Bakke indicated, according to Grieve, that certain of his employees, particularly former Penny- Newman employees, Murry and Copher, were "rabble rousers" and "shit disturbers " Bakke stated "he didn't need . ex-Penny-Newman employees on his payroll." Bakke also made a comment directed toward LeBeau and Murry, in Grieve's opinion, to the effect that he should send flowers to some of his employees On cross- examination Grieve agreed that this statement of Bakke meant he should send flowers to the person who had called CAL-OSHA asking them to come out and investi- gate Agrico.9 During cross-examination Grieve acknowledged telling the Agrico employees present at the May 31 organiza- tion meeting that the purpose of having the authorization cards signed was to have an election conducted by the NLRB. Grieve said he pointed out that there was "no other obligation on their part at that point; that was just strictly for the NLRB or the employer to recognize the union as the bargaining agent." Also during cross-exami- nation, Grieve acknowledged that the comparison Bakke made between Agrico and Penny-Newman at the hear- ing could infer that it was unfair for a union to look at Agrico in the same way it would look at Penny- Newman. Also, Grieve said he had not taken Bakke's use of the word "goon" personally, adding that his "hide is very thick " Grieve testified that in response to his demand for recognition (G.C. Exh. 5) he received a letter from a law firm which indicated the appropriate way to resolve the representational question was to have the NLRB conduct an election. Richard A. Bergeron said he was employed by Agrico as controller from May 2 to June 17, 1983. His duties in- cluded processing the payroll for 21-22 employees as well as supervising 2 office employees and LeBeau He described LeBeau's job at Agrico as a parts chaser10 and later as shop mechanic. Bergeron testified that he found LeBeau to be an "excellent employee" who was always willing to work late if necessary. He said he was given the word to terminate LeBeau on Friday, June 3, by Jerry Bakke and that he carried out the termination process with LeBeau on Saturday, June 4. LeBeau told Bergeron that his discharge was probably due to his union organizing activities This was the first time, ac- cording to Bergeron, that he heard of union activity at Agrico Bergeron stated that, subsequent to LeBeau's discharge, Agrico's electrician Ray Mains began per- forming the duties of parts chaser I1 His rate of pay was $15 per hour as compared to LeBeau's which had been $5 Bergeron also stated that, based on the general au- thority he had from Joseph Jaoudi, Agrico's owner and principal stockholder, 12 Bergeron had raised LeBeau's wage to $7 50 per hour for the mechanical work he per- formed on a company sweeper. Bergeron said that he had the opportunity to discuss the subject of LeBeau's discharge with Jaoudi on the fol- lowing Tuesday after the discharge. According to Ber- geron, Jaoudi told him that Emmett Byrd, an Agrico su- pervisor, "had informed Bakke and that he and Jaoudi together had made the decision to fire LeBeau for union activity." 1 3 Bergeron stated that he had a conversation with Bakke shortly afterward concerning unionism at Agrico Ac- cording to Bergeron, Bakke accused him of organizing the Union, which he denied. Bakke commented to him that he had a discussion with the owner of Penny- Newman about Lloyd Murry Sr., Lloyd Murry Jr., and Chester Copher who were ex-Penny-Newman employees then working for Agrico. Bergeron testified that Bakke claimed that he had examined personnel files with the owner of Penny-Newman and that the latter had report- ed that such employees were "not very good " Bakke said the Penny-Newman owner also said Murry and Copher "had started trouble." Bergeron said he told Bakke in response that Lloyd Murry Sr. had worked for Penny-Newman for 17 years and that it did not seem like Bakke had spoken with the owner at all. Bergeron was asked about the status of Jerry Bakke with Respondent According to Bergeron, Respondent's owner Jaoudi had stated that Bakke was a "partner in a corporation," that Bakke had gone through bankruptcy and would ultimately share in Respondent's profits. Jaoudi also told Bergeron that Bakke was primarily re- sponsible for handling sales for Respondent. Bergeron stated that certain of Bakke's relatives began working for Respondent shortly before Bergeron left the Company. Bakke's son, Shawn, worked in the scale house, his daughter, Deanna, worked in the office; and Bakke's cousin, Donald Weeks, did cement work Bergeron re- garded Weeks, who had no certificate of insurance for workmen's compensation purposes, as an employee, but Bakke had insisted that Weeks be treated as an independ- ent contractor Bergeron said a weekly paycheck was issued to Weeks which Bergeron thought was shared with Weeks' crew of three or four There was no with- holding from Weeks' paycheck except his last one, as Bergeron recalled. Bergeron testified that "Bakke came r Grieve said he had left a letter of demand dated June 6, 1983 (G C Exh 5), at Bakke's office but did not talk to him as Bakke was not there at the time 8 According to Grieve, Penny-Newman is a longstanding dairy and poultry feed manufacturer which had been unionized by Teamsters Local 431 for some time 0 But Grieve indicated he was not sure what Bakke's comments meant Grieve said "Mr Bakke was somewhat discombooberated [sic] that day, and it was very difficult to determine whether he had any relationship between one sentence and another, as far as I was concerned " 10 According to Bergeron, a parts chaser would pick up parts or mate- rials from town (usually Fresno) which were needed at Agrico in build- ing the new plant and refurbishing the feed mill 11 Mains' hours increased after Jim LeBeau was terminated Prior to June 3 , Mains had worked approximately 8 hours per day with the excep- tion of May 26 when he worked 12 hours Beginning June 7 he worked 9-1/4 hours, June 8, 8-1/4 hours, June 9, 11 hours, June 10, 16 hours, June 13 , 11-3/4 hours, June 14, 8-1/4 hours, and June 15, 9-1/4 hours i 2 Respondent conceded that Jaoudi was a supervisor at Agrico within the meaning of Sec 2(11) of the Act and an agent of Agrico under Sec. 2(13) of the Act 13 Although Bergeron did not specifically state what information Byrd gave Bakke, he inferred it concerned LeBeau's union activities Byrd later denied he told Bakke or Jaoudi of LeBeau's union activities. Ber- geron said he later told LeBeau that , based "primarily [on] a conversa. tion with Joe Jaoudi , he had been fired for union activity " 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in and screamingly told me I was fired" one Saturday in June 1983. Bergeron said Bakke "always thought" Ber- geron had organized the Union, and that Bakke told him that was the reason for his discharge Bergeron also talked with Jaoudi about his termination, but Jaoudi said nothing about union activity. Bergeron also testified that after his discharge he had contacted the California Unemployment Compensation Board and reported that Jim LeBeau had a good per- formance record, which enabled LeBeau to receive un- employment benefits. Bergeron said he furnished such as- sistance to LeBeau after LeBeau had contacted him and reported that benefits had been denied because Agrico had reported LeBeau was a "terrible employee." Ber- geron agreed that Bakke did not want LeBeau spending time around the office-that he should check with Fore- man Emmett Byrd about jobs to do "if there wasn't a parts chasing job at the time." Bergeron characterized his working relationship with Bakke as "tolerable " He conceded that there may have been some arguments, but if anyone raised his voice it was Bakke 14 James Anthony LeBeau, one of the three alleged discri- minatees, was hired by Tony Bakkeis as a laborer, parts chaser, and mechanic for Agrico from April 1983 to June 3, 1983 He said he worked primarily under Con- troller Bergeron, who supervised his parts chasing, but he also worked under Foreman Emmett Byrd. LeBeau testified that when he was hired by Tony Bakke he was informed that his job was permanent and that as soon as things got settled at Agrico there would be a wage in- crease for everyone. He said that he worked full time and also put in overtime on occasion.16 LeBeau stated that he received favorable comments concerning his work from Bergeron, Jaoudi, and Skip Semmrick, an- other Agrico supervisor at that time. He said he never received any negative criticism or oral warnings con- cerning his performance and was never suspended from work Bergeron told LeBeau on his last day of work that he would be getting a raise for "the good job" he was doing. LeBeau said he had attended the union meeting held on May 31 at the Teamsters hall and signed an authoriza- tion card while there He also stated that he later distrib- uted authorization cards among certain Agrico employ- ees and explained what they were for and how to fill them out. The cards he distributed, which he said were filled out in his presence, were received in evidence as General Counsel Exhibits 79(a)-(e).17 14 As noted, infra, Emmett Byrd testified that Bakke and Bergeron had a "terrible relationship" with "arguments at least once a day " is Other employees, including Jim LeBeau, had been hired by Tony Bakke It was never made clear what, if any, relationship there was be- tween Tony and Jerry Bakke 16 Copies of check stubs showing LeBeau's regular and overtime earn- ings were received as G C Exhs 6(a)-(d) 17 LeBeau testified that Grieve indicated that the authorization cards would enable Agrico employees to start a union and have a vote through the National Labor Relations Board " Grieve also stated, accord- ing to LeBeau, that the cards would help Grieve represent the employees and give them "some kind of security" in case "they find out we were having a Teamsters vote." LeBeau also said Grieve stated that the Union would send Respondent "a letter demanding recognition to see if they could negotiate a contract and bargaining order" LeBeau remembered With respect to his discharge, LeBeau testified that Bergeron told him that "they just don't want you around here no more " In a subsequent conversation with Ber- geron about a week later, however, Bergeron stated to him that "the reason [he] was fired was because of union activities." With respect to the representation hearing held in June 1983, LeBeau recounted that Bakke had addressed the Agrico employees present, saying that he was going to send flowers to LeBeau for turning him into OSHA, that none of the Agrico employees were permanent, and that "the bunch" of ex-Penny-Newman employees then work- ing for him were "troublemakers" which he was "going to do something about " LeBeau denied on cross-examination that Bakke had often mentioned to him to get out of the office and find something to do. LeBeau admitted, however, that there was an occasion when he was waiting for Bakke to sign a check, that Bakke did tell him to get out of the office and find something to do. Yvette Martinez is the wife of Agrico employee Ernest Martinez. Yvette Martinez testified that she had two conversations with Bakke regarding union activity. The first took place in early June in the office of Agrico and in the presence of secretary Patricia Rojas. The ex- change went as follows: Jerry had asked me if Ernie, my husband, would be voting for the union, which way he was voting. And I said I didn't know. And he said, "I'm going to give everyone different colored pens to see who voted for the union, yes or no," and if Ernie had voted for the union, he was going to make it so dif- ficult for him that he'd ma-that he'd want to quit his position. At that time, I asked him if he was se- rious, and he said yes. In a subsequent telephone conversation with Bakke, according to Yvette Martinez, Bakke again indicated that he was serious about what he had said to her in the office about making it difficult for her husband. He added that the Martinezes had "a home there" for which they paid no rent and he did not understand "why Ernie would want to vote for the union because it really wasn't worth it." Yvette Martinez said that she informed her husband of Bakke's remarks shortly after these conversa- tions with Bakke took place. Ernest S. Martinez has been an employee of Agrico since February 1983 and since January 1984 has been the mill supervisor. Martinez indicated that he had signed a union card at the Teamsters meeting on May 31, 1983. Martinez testified that he and Bakke had had a conversa- distributing cards to Eddie Duval , Robert Whitson, Robert Dawson, George Williams, and Doug Allen (on Agrico premises he thought except in the case of Williams) LeBeau said he told the Agrico employ- ees "basically the same thing"-that if they signed a card a secret-ballot election would be held LeBeau said "I just-I told them there would be a union election that I knew for sure and I didn 't know what was going to happen after that " LeBeau said he understood that signing of the cards did not obligate Agrico employees to pay dues and that no initi- ation fees would be required of them. He said he never became a member of the Union, and he never told a supervisor that he had distributed the cards INDUSTRIAL AGRICO PROCESSING tion regarding union activities approximately a week after the union meeting took place. He described the conversation as follows: Well, I came into the switch room and he asked me how come I didn't show up on a Saturday, and I told him I just took the day off And he came and said, "Well, I needed you here Where were you, at a union meeting or something ," to me I said, "No, I just took the day off." So then he goes, "Let's go down to my office " And he says that he wouldn't have any dealings to do with the union, that if he found anybody working for the union, that he would work 'em so hard that they would quit, and that he wouldn't-he would rather close down the plant than to deal with the union, and that, anyway, if you vote for the union, the union rate is four dol- lars an hour, so everybody'll have to take a cut in pay Q Do you recall anything regarding his saying what position he would take in negotiating with the union? A That he wouldn't negotiate with them Martinez stated that to his knowledge employee Skip Semmrick was an architect for Agrico who never hired or fired any employees but would talk to Emmett Byrd or Lloyd Murry Senior if he needed something done. On cross-examination Martinez said he understood that the NLRB election would be by secret ballot and that Bakke could not find out how he voted. Martinez was recalled two more times (on the case-in- chief and on rebuttal) to the stand by the General Coun- sel and another time by Respondent. During his first recall examination he stated that Jerry Bakke had told him around June 1 that Chester Copher and Lloyd Murry Sr. were former Penny-Newman employees and that Penny-Newman had trouble with them Testifying as a defense witness, Martinez said he had worked both regular and graveyard shifts for Respond- ent in June 1983 He indicated that if the Company "needed to run" he would have to work He said he was scheduled to work on the weekend of June 11 and 12 (Saturday and Sunday) but did not go to work those days. He stated that he went on the graveyard shift after that weekend, and his timecard corroborates his testimo- ny.18 Martinez also said he had a conversation with Lloyd Murry Jr in the switch room on June 13 during which Murry said he did not want to work nights or weekends and that Murry had discussed such with Bakke. Martinez indicated on cross-examination as a defense witness that he thought the regular weekday shift would have been adequate to handle the amount of material that was produced without any weekend work. He said he could not recall any extraordinary amount of material being brought into the plant for processing just prior to 18 Martinez' timecard (R Exh 1) indicates he worked from 6 57 am to 3 40 p in on Friday, June 10, that he worked from 6 59 a in to 12 57 p in on Monday , June 13 , and that he returned again that Monday night , to work the graveyard shift (starting at 11 25 p in and ending 7 37 a in June 14) 717 the weekend of June 11-12 He said the pellet mill could process about 3 tons an hour.' 9 Testifying again on rebuttal as the General Counsel's witness, Martinez was questioned about how much mate- rial could have been produced on the weekend of June 11-12-a period when he did not work He testified that "as I see it" the Company produced about 25 tons based on what he thought was in the finished tank on Friday and what was there on the following Monday It is clear from his testimony, however, that his testimony was based in part on "what Chester [Copher] told [him] "20 Edward L. Duval is currently employed by Agrico to work primarily as a parts purchaser ("I order and I chase the parts, pick them up"). He has previously worked as a loader operator for the Company 21 Duval testified that since Jim LeBeau's discharge in June 1983 parts have continued to be chased. Duval indicated that he was present on two occasions when Jerry Bakke made known his position concerning union activities at Agrico The first time, according to Duval, was at an employee meeting called by Bakke which took place in the scale room with 15 to 20 employees present.22 The gist of Bakke's remarks, according to Duval, was elicited on direct as follows- Q. What did Mr Bakke say to the group assem- bled? A. He was informing us that he never had a union, never will, and he wouldn't allow a union. Q. Do you recall anything further that he said to you, to the group gathered there? A. Yes. He looked amongst all the workers and said, "Either you're for-either you're for the union . If you are, you won't work for me If you're not, you have your job." And he also stated that when he hired new employees, that he would make up a-a booklet stating if you hired on for this job, this is the way it's going to be Q And by "this is the way it's going to be," did he-did- A. No union, no union activity at all Q Do you recall anything further that he said to the group? A He more or less-well, he told us that if union activity occurred, that he would shut the place down, or, in other words, he would hire a new group of people to come in Added to that, he also told us that as far as being permanent employees and temporary-temporary employees, that-he 18 Respondent 's owner and president Joseph Jaoudi later testified that the mill operation had been disappointing and at that point the mill had been operated only on a test basis He indicated that Martinez had mis- stated the capacity of the mill At "three ton an hour," Jaoudi said, "[Y]ou go bankrupt in 30 days " 20 Copher later testified himself that he did not look at the tank on Monday, which was the day he was dismissed 21 Duval said he quit working for Respondent in July 1983, but re- turned to work around late October He stated that in addition to pur- chasing parts he continues to operate the loader and does "maintenance work on the equipment " 22 Duval stated that the employee meeting took place approximately I week after he signed an authorization card (G C Exh 7(b) dated July 1, 1983) 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD looked at me and another co-worker, since we had the majority of the time, we had most seniority, and said , "If anything, you two are the only permanent employees we have." And that was me and Doug Allen. Q. On that note of temporary and permanent em- ployee status, do you recall him saying what effect, if any, being temporary or permanent would have in regards to union activity? A. In regards to that, the statement that he made of that would be that these people would be let go, as far as-there would be no vote. Q. Do you recall anything further as to what he said? A. Yes. He mentioned the CETA program to me also, as far as bringing in workers, that government would pay half their wages, to replace people Q Do you recall anything further? A. I'm puzzled a little bit here. Q. Do you recall whether or not he addressed any-any employee in particular? A Yes. He . . . he made a statement as regards to Daniel DellaMaggiore, looked at him eye to eye and said, "What do you think of this, Daniel?" And Daniel walked . . got up and walked out. Q. When Bakke said this, did he specify what he meant by this? "What do you think of this," is- A. Oh. In other words, if you wanted the union to come in, you might as well walk out the door, so. That's what it .. . that's what it was. Daniel got up and walked out. Duval said that a second conversation took place 4 to 6 days afterward when he, Doug Allen, and Frank Morrow were working on a waterline. Duval stated that Bakke again reiterated his position by declaring that either they were for him or against him. Duval said that "for the reasons being of having a family" he "went along" with Bakke. Duval stated he had a discussion with another supervi- sor at Agrico, Emmett Byrd Duval said he asked Byrd whether he might be the "next [to go] in regards to having union activity." Byrd replied, according to Duval, that LeBeau had been fired for union activity He recalled no other response but after seeing his affidavit stated that "Jerry Bakke would not allow union activity in his organization."23 Duval also articulated what he observed as the job duties of employee Ray Mains. He said Mains had been an electrician at Agrico until the early part of 1983 when he was given new duties previously performed by Lloyd Murry Sr., the mill foreman Duval testified that Mains was given a "temporary rate" and supervised a crew of three workers-Lloyd Murry Jr., Ernest Martinez, and Chester Copher-a position Mains held up until the time Duval left Agrico temporarily just before the election. Duval was asked about Skip Semmrick. Duval indicated in response that Semmrick, an engineering draftsman, was made a temporary supervisor at a time when man- 23 In testifying for Respondent, Byrd denied ever telling Duval that LeBeau's union activities resulted in his discharge agement was not "too good" and Tony Bakke had been let go. On cross-examination Duval stated that he had quit Agrico 3 days prior to the NLRB election but had been rehired by Agrico sometime in October 1983. He also testified that he and Doug Allen had told Jerry Bakke at the employee meeting that they signed authorization cards, but Duval never told Bakke, Byrd, or anyone else in management where he had gotten his card Duval said he had a succession of supervisors to whom he was answerable. The first was the man who hired him, Tony Bakke, then Skip Semmrick, next Ray Mains, and finally Emmett Byrd who was placed in charge of the feed mill before Duval left in July. As to Main's supervisory function, Duval agreed that Mains worked primarily as an electrician and that Duval never actually saw Mains give an order to anyone other than himself Duval also agreed that because of his experience as an electrician Mains could have been pointing out problems to workmen that needed correction. Daniel DellaMaggiore was an employee of Agrico from mid-April 1983 to early June 1983. DellaMaggiore testi- fied that at the employee meeting held at Agrico's scale house a week or so after the union meeting (May 31) Bakke stated the employees were either for the Union or for the Company. He quoted Bakke as saying, "[I]f you were for the union, you could leave now," also, that if employees for the union keep on working he would "make it harder . . you would quit." According to DellaMaggiore, Bakke went on to ask him specifically how he felt about the Union and the Company personally. DellaMaggiore replied by saying that he did not know. It was "real sudden," and "I just didn't know what to say." DellaMaggiore said Bakke told everyone that he "could fire everybody who was for the union and within a couple of days he could hire a whole new crew from somewhere else " Also, according to DellaMaggiore, Bakke said he planned to issue a handbook which would explain that there would be no union at Agrico. DellaMaggiore testified on cross-examination that after this employee meeting he had a discussion with Bakke. He said he told Bakke that he was going to quit because he felt Agrico was in a state of disarray and he did not want to "be troubled." He said he also asked Bakke about receiving unemployment, and Bakke replied that he would put DellaMaggiore down as being laid off so he could receive unemployment benefits. DellaMaggiore testified that Bakke never stated he would terminate him, but had looked straight at him as "he knew I signed one of the cards." DellaMaggiore acknowleged, however, that he never actually told Bakke that he had signed an authorization card. Charles J. LeBeau, the father of discharged employee Jim LeBeau, was also an employee of Agrico in 1983 Charles LeBeau testified that he attended the union meeting on May 31. He said that Gil Grieve explained how if they filled out the authorization cards, he would INDUSTRIAL AGRICO PROCESSING represent the employees "with the company, with bar- gaining and the election "24 Charles LeBeau said he was hurt on the job on May 28 and did not return after his disability because he "felt there was no job" for him at Agrico. He testified on re- direct that when hired by Tony Bakke, he was told he could "come to work here and you could retire from the company " Manuel R. Sousa is currently employed by Penny- Newman Grain Company as office manager and secre- tary-treasurer of the corporation He is in charge of per- sonnel and payroll records. Sousa stated that he met Jerry Bakke on one occasion when Bakke came to his personnel office, but denied that Bakke has ever been al- lowed to go through the personnel or payroll records of Penny-Newman. Sousa also denied that he ever gave Bakke any information regarding any employees at Penny-Newman Sousa agreed on cross-examination that Frank Moradian, the president of Penny-Newman, has access to company files but expressed doubt that Bakke was ever given access to them Also on cross-examina- tion Sousa stated that the meeting between him and Bakke occurred several years ago. Sousa thought Penny- Newman had been organized by Teamsters Local 431 as long as 35 years ago Chester Copher was employed by Agrico as a pellet mill operator from May 3 until June 1983. Copher testi- fied that he never received any negative criticism of his job performance during the time he was at Agrico. He stated that he had worked as a pellet mill operator for many years with other companies including Brown Feed & Seed (3 years), Derad Warehouse (4-1/2 years), and Penny-Newman (7 years) Copher said his usual hours of work at Agrico were from 7 a.m to 3 p.m. but that on certain days just prior to his discharge he came to work at 7 a m. and was sent home at 11 a.m. to return at 4 p.m. Copher said that he complied with these new hours assigned and stated that he never told anyone in manage- ment that he was opposed to working a swing or evening shift Copher testified that he was present at the May 31 union meeting and that he had previously been a Team- sters member when he worked for Penny-Newman.25 Copher stated on cross-examination that he was laid off at Penny-Newman because of a change in the method of operation of the mill there Copher was asked on cross-examination whether he re- called being scheduled to work at Agrico on the week- end of June 11 and 12, 1983, and whether he had failed to show up for work He answered such questions in the affirmative and explained he was ill at the time. Quoting from his direct examination- 24 When asked on cross-examination if he had discussed his testimony with anyone since the morning session of the trial, LeBeau answered that he had discussed the union meeting and whether Grieve had referred the use of the cards to obtain an election or for representation purposes An authorization card he signed is in evidence as G C Exh 4(b) 25 Copher also testified that Business Representative Grieve explained at the union meeting that the authorization cards would be used to obtain an election Copher also stated that Grieve "said something about the" cards being used in demanding recognition 719 I called in on a Friday and told them that I was sick. That's why I didn't work that weekend. Q Okay Who had told you to work that week- end? A Well, they said that, you know, that it was going to run through the weekend Q. Okay Do you remember A. And Jerry Bakke's the one that told . . . said it. Copher stated that this was the first weekend he had been scheduled to work and also said he was unaware of whether Ernest Martinez or Lloyd Murry Jr. was also scheduled for that same weekend. Copher reported to work at Agrico on the following Monday, June 13, and was terminated that day.26 Lloyd E Murry Jr. was employed at Agrico as a pellet mill operator on June 3, 1983, and discharged 10 days later on June 13. Murray stated that his father, who was then employed at Agrico, told him to see about a job there. He said he went to Agrtco on June 3, 1983, and was hired that day by Jerry Bakke. Bakke asked him about his prior experience, and Murry responded that he had previously worked at Penny-Newman. Murry said he told Bakke he had been a member of the Union while employed at Penny-Newman. During the same conversa- tion, Murry said he explained to Bakke that he had "half and half" custody of his children which precluded him from working nights or weekends. Murry said Bakke told him his position would be full time. Additionally, during this same discussion, Murry said Bakke told him that he would receive a raise in 90 days. Murry said his work was never criticized while he was at Agrico Murry stated that he received and signed a union au- thorization card (G C. Exh. 9), dated June 6, 1983, at Agrico from Jim LeBeau Murry also testified about his attendance at the June 21, 1983 NLRB representative hearing in Fresno. Murry stated that Bakke came over to the group of Agrico em- ployees and made a statement to the effect that he had checked the Penny-Newman personnel files of Lloyd Murry Jr, Lloyd Murry Sr., and Chester Copher and commented that Penny-Newman employees were "trou- blemakers " Joseph A. Jaoudi is the owner and president of Agrico He described its business during direct examination as follows: 26 There is an inconsistency between the testimony Copher gave on the General Counsel's case-in-chief and what he gave on rebuttal He ini- tially indicated he called in sick on Friday, June 10, but later claimed on rebuttal he worked between 7 and 9 p in (being off work between 1 l a in and 4 p m) that day When asked if he could estimate the amounts of material in a tank on Friday and Monday, Copher said he had not had a chance to look in the tank He also stated on rebuttal that he was called in to work by Emmett Byrd on Monday, June 13, but was dismissed when he showed up at 4 p m that day (Ernest Martinez had previously testified that Copher was at work on Friday, June 10, and had reported to him on the amounts in the tank on that day and later on Monday) It was stipulated at the hearing that Copher's personnel file did not contain any timecards for June 1983 Copher also stated on rebuttal that Robert Dawson began chasing parts after Jim LeBeau was discharged 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Industrial Agrico was formed to set up a congen- eration power plant, a biomass congeneration power plant, whereby we take the agricultural waste, like chicken manure, cotton gin trash, we use the used rice hull In other words, the intent be is that you take the chicken manure from the poultry houses where it is mixed with rice hull or shavings; you separate . . . you have a process to separate the . . . the used rice hull and shavings You use that as solid fuel You burn it in a biomass burner. You generate energy, and this heat will do two func- tions. In the first phase, is supposed to do a drying operation. In the second phase, that heat, you should send it through a boiler, you generate steam; and then the steam will drive a turbine. And the excess heat that you wind up . . . you use that for drying. Right now, up till now, we are still in the first phase. We have not even declared the first phase operational. So that is the main goal of the plant. As far as the mill, it was a side issue It was . it was there; there was a feed lot. When I was . when I bought the site, Jerry Bakke led me to be- lieve in three months he could have 10,000 heads of cattle in there. And supposedly, we fix the mill for about 75,000 dollars, and all will be nice and rosy. We spent three quarters of a million dollars on that mill, and I think till about two weeks ago we were not able to get more than ten ton an hour out of the rollers. And I want to correct something here. Three ton an hour, you go bankrupt in 30 days. There's no way you can operate a mill unless it is producing at least, minimum 15 ton an hour in order to be anywhere economical. All the work we have done was strictly testing. And up till now, un- fortunately, when we got the mill running, the market is not there; and the cattle are not there In other words, this 10,000 head of cattle I was prom- ised they're going to be in the feed lot, the only cattle we have right now is a couple o' hundred heads that I bought myself. Supposedly, we were going to attract ranchers to bring cattle and so on. So this is basically where we are. Q. Okay. Now, Mr. Bakke is no longer employed by the company, is that . . . . A. No, sir. Q. . correct? A. Mr. Bakke, unfortunately, he did not have an orange peel contract. He owed the people 250,000 dollars to California Citrus which he did not de- clare to the bankruptcy court in Reno in . yeah, in Las Vegas, sorry; it was transferred later on. And Mr. Bakke did not generate any business for the company . . . . Jaoudi described Jerry Bakke's position at Agrico as a salesman.27 He said Bakke had authority to hire and fire 27 Jaoudi described Bakke's duties as follows during cross-examination He was supposed to promote business for Industrial Agrico, and originally let's start from the beginning Originally, he was sup- posed to secure the citrus pulp contracts, which actually are for the biomass plant, in other word, for dehydration And and unfortu- employees but denied that Bakke was ever a corporate officer or had any "direct" interest in Agrtco 28 Jaoudi testified that Bakke left Agrico sometime in the fall of 198329 when some of his allegedly questionable business practices came to Jaoudi's attention. According to Jaoudi, Bakke generated virtually no business for Agrico and had defrauded the Company. Jaoudi stated that Bakke had been indicted by the district attorney in Fresno and that his whereabouts were unknown. In contrast to Bergeron's testimony that he and Bakke had a "tolerable" relationship, Jaoudi claimed that Ber- geron and Bakke did not get along well at all Jaoudi ar- ticulated that Bergeron had been discharged because Jaoudi felt Bergeron had extended the scope of his job duties beyond that of accountant/controller and that he was not satisfied with Bergeron's performance of the ac- counting functions. Jaoudi indicated that it had been more his decision than Bakke's to discharge Bergeron. Jaoudi denied that Bakke ever stated to him that Jim LeBeau was fired for union activities. Jaoudi testified that he got along well with unions and that he had a union shop in his other operations .30 He said he did feel a union was premature at Agrico because the plant was not yet completed and "the election was kind of forced on me." He testified that he indicated to Agrico workers at the employee meeting held a few days before the election to "vote your own conscience." Jaoudi denied ever telling Bergeron that Byrd or Bakke ever informed him that Jim LeBeau had been dis- nately, he did not I had to do them myself, California Citrus and Riverbend Beyond that, he was supposed to go out and solicit busi- ness from the feeders, you know, to feed the dairies, major dairies, and secure some business, be it for the orange peel or for whatever the mill and and the rollers will produce, right, either rolled products or milled products I mean, pelletized products, excuse me So that was his function 28 Jaoudi explained Bakke's interest in Agrico during direct examina- tion as follows The only thing, when we bought the plant from the bankruptcy court, there was supposed to be 35 percent of the profit that would go to the unsecured creditors That's part of the condition of the purchase of the plant Q And and had Mr Bakke been in some way involved at that plant before the time that that you A Yea, Q purchased it? A Mr Bakke owned the feed lot and he was in default six hundred thousand dollars, to Mr Thomas And we took it through the bankruptcy court We had to get the approval of the unsecured creditors before we were able to finalize the transaction And I bought the plant free of lien, that was one of my conditions, that that the only thing I agreed to is that for Mr Bakke doing cer- tain considerations, that is supplying an orange peel contract because supposedly of his knowledge of the valley, of all the cattle people, the the feed lot operation, the mill, the pellet mill, and all of this, I I have to play ignorance [sic] here because at the time when I bought the plant, I was not very familiar with mills and pellet mills I can't say I'm not very familiar with mills and pellet mills I can't say I'm not now after spending three quarter of a mil- lion dollars, but I am at that time I didn't And so Mr Bakke, while we were building the plant, he was trying to help out, support the-to fill the gap because basically we're going through a con- struction phase and not a production phase 29 Jaoudi expressed difficulty in remembering exactly when Bakke left Agrico so Jaoudi asserted that this other operation included a chain of import export warehouses, a food business, and a family-owned palm oil planta- tion, all located in West Africa INDUSTRIAL AGRICO PROCESSING charged for union activity. He denied that Bakke ever told him he had fired anyone for union activity. Jaoudi stated that he often saw Agrico employees sitting in Ber- geron's office, which was located next to his, and that he thought he had indicated to Bergeron and Bakke his dis- pleasure concerning that situation.31 Jaoudi stated that the amount of time he spent at Agrico in May and June 1983 was around 2 or 3 days per week On cross-examination Jaoudl downplayed the parts chasing function at Agrico He testified that 90 percent of the parts required at Agrico were delivered. He ex- plained that only if someone happened to be in the area or if it was an emergency situation would it be necessary to send someone for a part.32 Chasing parts, Jaoudi maintained , was not a full-time job According to Jaoudi, the total mill output between August 1982 and August 1983 equaled only the amount that would be produced during a 2-week period in a fully functioning mill He said that at the time of the trial, the pellet mill at Agrico was operating on a part- time or on-again , off-again basis. According to Jaoudi, Bakke had been overly optimistic, and the Company had operated three shifts on two different occasions. Jaoudi indicated that he felt Bakke had not been very accurate in estimating how much material could be produced or sold. William Edward Allen testified he had been employed by Agrico as a painter and maintenance person for ap- proximately a year and a half. He stated that Lloyd Murry Jr. once told Ernest Martinez and himself that he did not want to work nights or weekends but Murry's reason was never given. Allen also had conversations with Bakke concerning both the discharge of Jim LeBeau and Lloyd Murry Jr. Allen said Bakke indicated that LeBeau was dismissed because he often saw LeBeau "wandering around and didn't think he was doing his job " With regard to Lloyd Murry Jr, Bakke told him that Murry was let go because he was not willing to work nights or weekends and that it was not right for the other employees to have to work when he would not. Allen stated that no supervisor at Agrico had ever told him that either LeBeau or Murry had been dis- charged for union activity John "Jack" McDermott has been employed since August 1983 as the general manager of Agrico McDer- mott testified that Jerry Bakke was not "officially dis- charged" but left of his own volition around the first week of September 1983 after "some of his misdoings" were uncovered. McDermott stated that Agrico current- ly employed someone in a position of parts chaser named Ed Duval who also does purchasing and "other duties." McDermott estimated the percentage of Duval's time currently spent on pricing and chasing parts around 30- 40 percent. McDermott indicated that he thought the amount of time spent chasing parts is greater now than in the past due to the "extensive refurbishment" in progress at the time of Agrico McDermott said that 31 Jaoudl said he thought that there were more than one employee who chased parts, but he did not "get involved to that level " 32 He indicated that the only kinds of parts that had to be picked up were items like a switch, bolt, screw, or a motor on occasion 721 parts chasing had always been necessary since he had been at Agrico and various individuals had chased parts, including Emmett Byrd, who also had authority to pur- chase parts 33 Emmett Byrd was employed by Agrico from January 1983 to January 1984. He had been in charge of the feed lot part of Agrico's operations, had supervised approxi- mately 15 employees in another section of the plant and later took over as mill supervisor when Lloyd Murry Sr went on disability Byrd said he observed Bakke "irritat- ed" at Jim LeBeau on two occasions. Byrd testified that he was present once in Bergeron's office when Bakke told LeBeau to stop hanging around the office, adding that if he could not find something to do Byrd would provide something. Byrd said this conversation occurred in early June. Another discussion took place a few days later when Byrd was present in Bakke's office. Byrd stated that Bakke saw LeBeau walk by his office and Bakke angrily told Byrd that it was the last time LeBeau was going to come into, the office. Bakke then said he was going to let LeBeau go. According to Byrd, Bakke and Bergeron had "a terri- ble relationship." "They fought," he said, "at least on av- erage of once a day; maybe three or four." Byrd said he also supervised Donald Weeks who was the concrete contractor at Agrico from May through July 1983. Byrd stated that Weeks had a crew of two persons-his brother and Bakke's brother-in-law, a man named Arms Byrd also stated that Arms had been at Agrico for a long time but was laid off on July 18, 1983. Byrd also testified that he was not aware of any type of written or verbal warning system that supervisors were supposed to use at Agrico. Byrd denied that he had told Duval that LeBeau had been discharged for union activity. Byrd also denied he told Bakke or Jaoudi that LeBeau should be dismissed for union activity. Byrd as- serted that after LeBeau's dismissal no one held the spe- cific position of parts chaser. He said after Bergeron left parts chasing was rare, and he usually did it himself, along with other duties. Byrd disagreed with Jaoudi's testimony that bolts and switches were the only types of parts which had to be chased. Byrd explained that these materials were sup- plied to Agrico "on a regular basis" by a salesman from Hopper Steel.34 Byrd testified that the Company began operating three shifts in approximately mid-June and that as of his last day at Agrico in January 1984 the plant was still operat- ing on a three-shift basis.35 Byrd stated that Lloyd 33 McDermott indicated that since he arrived at Agrico in August 1983 there had also been general laborer duties to perform Kenny Mohr had performed such work as well as chased parts McDermott said parts chasing was now limited primarily to keep the dehydration plant operat- ing A document, R Exh 2, was introduced through McDermott which shows the cost of Agrico's payroll, on monthly basis, from January through November 1983 and the amount of monthly sales of milling products (broken down under "custom milling," "manufactured feed" and "rolled grain") for the same period 34 Byrd said Agnco is located 4 miles north of San Joaquin and 25-27 miles southwest of Fresno 3s Byrd said Lloyd Murry Sr was the mill supervisor at that time and left when he hurt his back in early June Timecards of several employees Cont,nued 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Murry Sr, Chester Copher, Lloyd Murry Jr, and Ernest Martinez were scheduled to work the weekend on June 11-12, but that they did not report for this assignment Byrd then testified that Bakke notified him and asked him to procure Ray Mains to work and that he did so Byrd said that he and Mains, along with Bakke (on Sunday only), Robert Dawson, Doug Allen, Elgin Sum- mers, and Daniel Arms worked over the weekend at the pellet mill. The operation was "excellent," he said, with the mill being down only for an hour and 15 minutes during a 36-hour period. Byrd stated that he had a conversation with Lloyd Murry Jr on the day he was discharged and that Murry told him he had been let go because he could not work nights. Byrd said Murry did not say anything about being let go for union activities. Regarding Chester Copher's job performance at Agrico, Byrd testified that during a discussion with Lloyd Murry Sr., Bakke and himself, Murry Sr had told Bakke that he felt Copher needed a couple of weeks more of training before going on the evening shift After Murry left, according to Byrd, Bakke stated that he was "not going to put up with that," adding that if Copher with his experience did not know how to run a pellet mill at that point "he never will " Byrd said he believed this conversation took place on Thursday, June 9.36 Byrd testified that around June 10-12 Agrico had on hand at least 500 tons of raw pelleting materials, "maybe a hundred tons of barley" alone He said the pellet mill could produce at that time 2 to 3 tons an hour Byrd identified and testified concerning a list of em- ployees who had worked under him at Agrico. The list (G C. Exh. 6), which Respondent offered to show "the tremendous amount of turnover" at Agrico, indicates the employee's name, dates of employment, and reason for leaving 37 On cross-examination Byrd stated that approximately 2 to 2-1/2 hours of his workday during the January-May period were spent in feeding and caring for cattle at the feed lot which was located a distance away from the mill operations After two other employees were hired in May to perform feed lot duties, he was required to spend only 5 to 10 minutes each day at the feed lots, making sure such employees performed their job duties properly Byrd stated that after Murry Sr left in June the number of employees Byrd supervised increased from 12 to 15 to 20 to 25. He had occasion, he said, to comment negatively on the job performance of employees that he supervised. Byrd noted that there was a "healthy grape- vine" at Agrico so that events involving anyone at Agrico would become common knowledge. He said he would speak with Bakke about 3 or 4 times a day in June, but he denied being involved in the decisions to who worked during the January 1983-January 1984 time period were in- troduced by Respondent to show that Agrico did operate on a three-shift basis (R Exhs 3, 4, and 5) as Byrd said he understood Murry Jr and Copher were hired to be crew chiefs for the extra shifts 37 Byrd testified that the list was compiled by a secretary but not under his direction He did not know why Donald Weeks and his brother were not on the list He said that the information on the list was correct to his knowledge, but he had not himself verified the information on the exhibit by examining pertinent company records dismiss James LeBeau, Chester Copher, and Lloyd Murry Jr. He recalled observing Copher at work on an evening shift under Lloyd Murry Sr about a week before Copher was discharged Byrd stated that Copher indicated that evening that he did not like working late shifts, but Byrd agreed that he never heard Copher say he would not do so Byrd indicated he thought Copher had been fired because of his absence from work on the week of June 11-12. Byrd testified that sometime at the end of May Bakke had asked Byrd if he had heard rumors that union cards were being circulated at Agrico and whether he had "any ideas." Bakke questioned him "about everybody," including Jim LeBeau, Lloyd Murry Jr., and Chester Copher, and his knowledge of their participation. Bakke "singled out about a dozen" who he suspected of circu- lating cards, according to Byrd. Byrd recalled that at a meeting with Bakke, Bakke told him he had seen an at- torney and had decided to fight the union election Byrd said Bakke had stated a couple of days before the June 10 employee meeting that "he could hold a meeting." Byrd said he did not attend the meeting. Byrd testified that during the week after James LeBeau had been discharged by Ray Mains he made "one parts chase"; also, that Robert Dawson "could have went after a part or two" but "went straight to work in the mill." Byrd said he took over the job of chasing parts "in a limited form because we made a dramatic change" at that time. Trips were made to Fresno, which took an hour and 15 minutes, only when "absolutely necessary " Byrd testified that subsequent to the discharge of LeBeau, Copher, and Murry, two trainees were hired to work in the mill operations. Byrd stated that, although he supervised the mill workers, he personally had little experience himself in running the machines He said he had watched Copher closely that one evening and also seen Murry Sr. work "real close." Byrd indicated that on the weekend he rounded up workers (June 11-12). Bakke was "pretty upset" and had directed that Ray Mains be brought in to get the pellet mill operating. Byrd said. . . . And maybe he was being irrational, but, you know, so we went in, took two hours, it took us at least two hours to get it fired up because we weren't that familiar with the buttons and the auger-auger movements, and . . . I wasn't because I had been working directly with it Eventually, we figured it out and fired out the machine up That's how it happened. Byrd said he did not recall any comment of Bakke that indicated a connection between union activity and the absence from work that weekend of Copher, Lloyd, Murry Jr., and Ernest Martinez. Byrd said Bakke had in- dicated that Jaoudi "was on his back," and he wanted the mill to operate. Finally, Byrd testified that to his knowledge James LeBeau had no problems with other employees follow- ing directions or attitude toward work He said he had no part in providing the information that Agrico had fur- INDUSTRIAL AGRICO PROCESSING nished the State in connection with LeBeau's claim for unemployment benefits 38 Discussion and Conclusions 1. The alleged unlawful statements The evidence is persuasive that Jerry Bakke was strongly opposed to the Union and communicated such hostility in remarks he made at the employee meeting held at the Agrico facility in San Joaquin on June 10, at the representation hearing held at the Federal building in Fresno on June 21, and during conversations with indi- vidual employees 39 Such remarks of Bakke included threatening and other coercive statements which fall within the allegations of the complaint and the proscrip- tion of Section 8(a)(1) of the Act. The credible testimony of Edward Duval alone con- vinces me that Bakke did, in the presence of employees assembled at the June 10 employee meeting, make re- marks which established virtually all of the allegations of paragraph 6(a)(5) of the complaint 40 Such remarks in- cluded statements to the effect that Bakke would prepare a booklet for new hires that would inform them that at Agrico there would no union, no union activity at all; employees may keep their jobs if they are against the Union, otherwise they may as well leave; that he had never allowed a union before and never would in the future; that employees at Agrico have only temporary status and that Bakke would let them go, either by shut- ting the facility down or by hiring a new group of em- ployees, in order to keep the Union out; and, addressing Daniel DellaMaggiore, "What do you think about the union, Daniel?" (inviting a statement as to DellaMag- giore's sentiments about the union).41 Duval's testimony concerning other remarks of Bakke, uttered a few days later in the presence of Doug Allen and Frank Morrow, sustained that part of paragraph 6(a)(1) which alleges Bakke told employees that they could either support Respondent or the Union-"either you're for me or against me "42 38 G C Exh 10, a copy of the Company's response signed by John J McDermott (referred to supra), indicates that he was let go because of "poor working habits, unable to follow directions," and had "a very poor atttitude as far as working with his fellow employees " as Bakke also expressed antiunion remarks to Yvette Martinez, wife of Agrico employee Ernest Martinez , in two separate "interrogations" which were promptly passed along by Yvette Martinez to her husband 40 As the General Counsel 's attorney points out in his brief, Bakke in effect issued an ultimatum to Agrico employees on June 10-either sup- port the Company against the Union or you will be gone Some of the allegations of par 6 (a)(5) are repetitive (as well as repeti- tive of other allegations of par 6 (a)), and no purpose is served by making cumulative findings Subpars iv , v, and vi are duplicative , and the latter two subparagraphs are being dismissed for that reason 41 DellaMaggiore , also a credible witness , corroborated Duval's testi- mony that Bakke had singled him out at the June 10 meeting to state whether he was for or against the Union-a question he was understand- ably reluctant to answer at the time DellaMaggiore also gave credible testimony in support of other allegations of par 6(a)(5)-"you could leave now" if you are for the Union, and if not "I can make it hard on you", "a little handbook" for old and new employees so they would know "the union wasn 't going to be there", and "he could fire everybody who was for the union" and then "hire a whole new crew " 42 The allegation is actually repetitive of par 6(a)(5) It is not apparent that Bakke also interrogated Duval , Allen, and Morrow at that time, but par 6(a)(5)(ui), a similar allegation , I have found sustained 723 Ernest Martinez, currently a supervisory employee of Respondent and one who impressed me as a forthright witness, established the substance of the allegations of paragraph 6(a)(2).43 Martinez persuasively testified that Bakke asked if he had failed to show on Saturday, June 11, because of a union meeting Bakke then impressed on Martinez that he would not negotiate with the Union, that he would close the Agrico plant down rather than deal with the Union and that he would take reprisals against persons engaging in union activity by working them harder and for less money Martinez was also coercively questioned and threat- ened by Bakke through two conversations Bakke had with Yvette Martinez, a credible witness. (She reported Bakke's remarks to her husband Ernest immediately ) Bakke asked in conversations with Yvette Martinez whether Ernest Martinez would be voting for the Union and added that he would make it "so difficult" for her husband that he would want to quit Bakke indicated to Yvette Martinez that he would know how employees would vote (through use of colored pens), that he was serious about (prohibiting) employee union activity, and that the Martinez family would lose its rent free home if Martinez were to vote for the Union. Thus, paragraph 6(a)(4) and the substance of the allegations of paragraph 6(a)(3) were sustained 44 Duvall also testified credibly that Foreman Emmett Byrd had told him, following James LeBeau's discharge, that Bakke "would not allow union activity" and that LeBeau had been discharged "for stirring up union activ- ity." Such testimony sustained paragraph 6(c) of the complaint.45 The testimony of Union Official Gilbert Grieve, James LeBeau, and Lloyd Murry Jr, all credible witnesses, gave testimony concerning the comments Bakke made at the June 21 representative hearing and sustained the sub- stance of his allegations of paragraph 6(b) of the com- plaint It is clear from such testimony that Bakke stated before a group there, which included Agrico employees and union representatives, that he did not want persons working at Agrico who had previously worked for Penny-Newman, a union employer, and that he was going to take action against Agrico employees who met such description. He claimed that he had checked with Penny-Newman about ex-Penny-Newman employees who were at the time employed at Agrico Bakke specifi- cally referred to two ex-Penny-Newman employees then working at Agrico, Chester Copher (who was not present at the representative hearing) and Lloyd Murry Jr. He referred to ex-Penny Newman employees general- 43 The allegations contained in the subpart (Q, (u), and (iii) of par 6(a)(2) are, again, somewhat duplicative 44 The allegations contained in par 6 (a)(3) are somewhat repetitive, and it is, of course, only necessary to make one finding that a particular statement was made, if it was, however , many times it may have been uttered 45 Byrd denied telling LeBeau he had been fired for stirring up union activity, but Duval, currently an employee of Respondent, impressed me as a more credible witness than Byrd Byrd , whose conduct is challenged in the complaint, seemed anxious to support Agrico whenever possible even though he was no longer an employee of the Company when he appeared as a witness 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly as -"rabble rousers" and troublemakers, and Copher and the Murrys particularly as "shit disturbers." Bakke also referred to James LeBeau, implying, by stating that he was sending him flowers, that action as to him was for having "turned [Bakke] in to OSHA." 2. The discharges I find that Respondent unlawfully discharged James LeBeau for union activity It is clear from the record that Bakke was well aware of union activity at Agrico prior to June 3, the day LeBeau was terminated. With Byrd acknowledging that there was "a healthy grapevine" at work at Agrico, Bakke probably knew LeBeau had been distributing union authorization cards early on Byrd testified that Bakke stated in late May that he suspected that LeBeau had been circulating cards. In any event, there is con- vincing evidence that Respondent's own supervisors had expressly stated that • LeBeau had been discharged for union activity. Such evidence is certainly persuasive proof of Respondent's - true motive in discharging LeBeau Byrd told Ed Duval that LeBeau was fired for stirring up union activity, and on another occasion a few days after LeBeau's discharge, former controller Richard Bergeron told LeBeau that he had been fired for union activity.46 I reject Respondent's contention that "the fact that Jim LeBeau may have attended a union meeting and signed a union authorization card is purely coincidental." In light of the persuasive testimony of both Duval and Bergeron, Respondent did not demonstrate that it would have terminated Jim LeBeau for "hanging around the office area," "for wandering around or staring out the window," because it no longer needed a full-time parts chaser or for any other valid business reason 47 James LeBeau had worked for Respondent as a laborer and as a mechanic, as well as a parts chaser, in a satisfactory manner, and I am convinced Respondent terminated him only because of his union activities. The timing of the discharges of Chester Copher and Lloyd Murry Jr , the disparate treatment involved in such actions, and the credible testimony concerning statements attributed to Bakke persuade me that both of these employees were terminated for union activity as al- leged. 46 Byrd denied that he had stated LeBeau had been discharged for union activity, but I credit the testimony of Duval , a more impressive witness than Byrd, to the effect Byrd did so The source of Bergeron's information was Agrico 's owner and president Joe Jaoudi, who had in- formed Bergeron that he and Bakke together had made the decision to fire LeBeau for union activity Bergeron, who had been dismissed by Re- spondent, was not an unbiased witness, but I credit his testimony on this point Jaoudi did not deny Bergeron 's statement directly He made a gen- eral statement as to his view of unions and indicated that Bakke had not told him that LeBeau had been discharged for union activity 4' A report of Respondent , submitted under the name of John McDer- mott, to a California unemployment office gave other reasons for Jim Le- Beau's dismissal-poor working habits, unable to follow directions, and poor attitude (G C Exh 10) William Edward Allen testified that Bakke told him that LeBeau was let go because he wandered around and did not do his job The credited testimony of Duval and Bergeron, however, convinces me that Bakke communicated to them his real motive for dis- missing LeBeau-his union activity Bakke in effect admitted at the June 21 representative hearing that he had discharged Murry Junior and Copher for an antiunion reason He publicly declared that he did not want "shit disturbers" such as these two former Penny-Newman employees working at Agrico. Bergeron, who was accused by Bakke of helping to organize Agrico employees, testified credibly that short- ly after LeBeau's discharge on June 3 Bakke said he had checked on both Murry Junior and Copher at their former employer, Penny-Newman, and that he regarded them as troublemakers and agitators While Copher and Murry Junior were absent from work on the weekend of June 11 and 12, 1983, Ernest Martinez , who was not subjected to any discipline, also failed to report for work that weekend . It is apparent that on Monday, June 13, the day of the discharge, Bakke suspected that Copher and Murry Junior were in- volved in union organizing activity at Agrico which he had forcefully denounced only the previous Friday at the employee meeting. He thus took sudden action by summarily dismissing both employees. Union activity at Agrico was obviously very much on Bakke's mind be- cause he specifically asked Ernest Martinez if his absence from work the previous weekend had been due to his at- tendance at a union meeting It is evident that Bakke be- lieved Martinez was not involved in union activity and accepted his assertion that he "just took the day off' and therefore took no retaliatory action against him. At the employee meeting held on Friday, June 10, Bakke made it plain that any Agrico employee suspected of union activity would be in trouble. When Copher and Murry Junior failed to show up for work on the week- end, Bakke was ready to take reprisals against them and promptly did so. There is further evidence that Copher and Murry Jun- ior's discharges were a result of union activity. Emmett Byrd, the former foreman of Agrico who was not cer- tainly biased against Agrico, testified that Bakke had in- dicated during a conversation with him in late May that Bakke suspected Copher and Murry Junior, as well as Charles LeBeau, had been involved in the distribution of union cards I believe, and find, that Copher's and Murry Jr.'s union activity was the real motivation for their dis- charge. A refusal to work on a scheduled shift is of course a legitimate basis for the discharge of an employ- ee as Respondent argues, but I reject the notion that either Copher or Murry Junior was fired for such reason.48 48 1 give no credence to Byrd's claim that Murry Junior told him he was let go for not being able to work I give no weight to William Edward Allen's assertion that Bakke had stated that Murry Junior had been let go because he was unable to work nights and weekends I credit Murry Junior's testimony that he had explained his custody arrangement at the outset of his employment and Bakke was agreeable to Murry Junior working only on weekdays I give no weight to Byrd's claim that he thought Copher had been dismissed for being absent from work on the weekend of June 11 and 12 Copher's testimony as to whether he worked on Friday, June 10, is contradictory, but such fact does not negate the persuasive evidence that he was terminated for union activity Continued INDUSTRIAL AGRICO PROCESSING I reject Respondent's contention (citing Wright Line, 251 NLRB 1083 (1980), modified 662 F.2d 899 (1st Cir. 1981); NLRB v Transportation Management Corp., 462 U.S. 393 (1983)) that "the employer had shown that Mr. Jim LeBeau, Mr. Murry Jr and Mr. Copher would have been terminated anyway regardless of any union activity in which they may have been involved." In support of such argument Respondent relies on the testimony of Re- spondent's president and owner, Jaoudi, and the sup- posed` feelings and observations of Agrico's absent super- visor, Jerry Bakke. Such evidence was unconvincing.49 The Alleged Duty of Agrico to Bargain The parties stipulated at the hearing that on June 6, the date on which the Union requested recognition, the appropriate unit consisted of 20 employees The General Counsel presented 12 authorization cards (see G.C Exhs 4(a)-(f), 7(a)(e), and 9). If 2 or more of the 12 were in- valid, there was no duty on the part of Respondent to recognize and bargain with the Union. Gourmet Foods, 270 NLRB 578 (1984) The record does not establish that the Union obtained valid cards from a majority of Agrico employees. Gilbert Grieve, the Union's business representative, was asked on cross-examination whether he had explained at the May 31 union meeting to the six employees who signed cards while there-Chester Copher, Charles LeBeau, Daniel DellaMaggiore, Ray Mains, Ernest Martinez, and James LeBeau-that "the sole purpose for the card was for the union to seek" an NLRB election. Grieve answered the question affirmatively Said Grieve- That's what I pointed out to the people, that there was no other-no other obligation on their part at that point; that was just strictly for the NLRB or the employer to recognize the union as bargaining agent. Quoting further from Grieve's cross-examination- Q. Okay. So did they understand, though, that- that there would either be an election conducted by the National Labor Relations Board or by the Cali- fornia State Conciliation Service, at some time in the future? A. They understood that. Q. And that's what the card was-was to be used for? A. Yes, sir. The General Counsel's evidence as to the amount of material available for processing and the amount of milling product produced during the weekend of June I I and 12 was not particularly persuasive, but such fact in no way contradicts the evidence that Copher and Murry Junior were terminated for union activity 49 Jaoudi did not impress me as being knowledgeable of the day-to-day operations at Agrico or credible on contradicted points Respondent indi- cates that it was unable to present relevant evidence because of the ab- sence of its former supervisor, but such fact can hardly operate to bolster Respondent's position or prejudice the General Counsel's and the Charg- ing Party's I believe, and find, that the reasons Respondent cites for the discharge of all three employees , if not pretextual, were certainly not shown to weigh "more heavily" than their union activity in the determination to discharge them See Roure Bertrand Dupont, Inc, 271 NLRB 443 (1984) 725 The attorneys for the General Counsel and the Union sought to rehabilitate the witness on redirect through the use of leading questions, suggesting that there might be additional purposes of the card I remain convinced, however, from careful examination of the record that Grieve's explanation operated to cancel out the language used on the authorization cards.50 See NLRB v. Gissel Packing Co., 395 U.S. 575 (1969);51 also Sambo's Restau- rant, 269 NLRB 1187 (1984). Some of the words Grieve used on redirect tended to confirm the idea that the Union's authorization cards were to be used only for the purpose of holding an election. Quoting from a portion of Grieve's direct testimony That there was no obligation on their part for money, there was no promises being made other than upon presentation of these cards to the Nation- al Labor Relations Board, when the employer fur- nished his list, the NLRB checked the list, they would then, if these cards were proper, they would then hold an election at some point in time. I believe, and find, that Grieve, a credible witness, thought it sufficient for the Union's purpose to obtain signatures on enough cards (30 percent) to petition the NLRB for an election and thus used words which, in effect, directed prospective card signers to ignore the printed words appearing above the signature line.52 While it was not shown that Respondent was under a duty to recognize and bargain with the Union, Respond- ent's unlawful conduct does require the holding of a new election-at a time and place to be determined by the Regional Director. The Objections and Challenges Certain of the objections filed in Case 32-RC-1835 are based on the same conduct challenged in the complaint 50 The cards distributed by Grieve called for the signer to "authorize Local 431 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America to represent me in negotiations for better wages, hours and working conditions " 51 The Supreme Court stated in Gissel that In resolving the conflict among the circuits in favor of approving the Board's Cumberland rule, we think it sufficient to point out that employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature There is nothing inconsistent in handing an employee a card that says the signer authorizes the union to represent him and then telling him that the card will prob- ably be used first to get an election 52 Charles LeBeau testified that "Gil [Grieve] told us that if we would sign the cards, that he would represent us with the company, be our rep- resentative, and that we would have an election " Such testimony, coming as it did after he had discussed the difference between the use of an authorization card to obtain an election as against its use for represen- tation purposes during a recess and after he heard other testimony on the subject, I do not regard to be probative, and I will disregard it James LeBeau identified five additional cards that he had solicited, but it is not necessary to pass on their validity The explanation he made to Agrico employees who signed such cards is not at all clear, although his understanding as to the use of the cards was undoubtedly based on what Grieve had stated at the May 31 meeting Lloyd Murry Jr identified his signed authorization card which he obtained from James LeBeau LeBeau indicated , according to Murry, that the purpose of the card was to "get a union going " 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Case 32-CA-5626 and found sustained herein Ac- cordingly, I find Objections 1, 2, and 3 sustained as fol- lows. I Agrico did, through Jerry Bakke, prior to the election, threaten employees with discharge if they supported the Union. 2. Agrico did, through Jerry Bakke, prior to the election discriminatorily discharge three employees, James A. LeBeau, Chester Copher, and Lloyd E. Murry Jr, because of their support of the Union.ss 3. Agrico did, through Jerry Bakke, prior to July 29, 1983, threaten employees with plant closure and other reprisals should the Union win representation of Agrico employees Objection 4 is repetitive and will be dismissed as being cumulative.54 Objections 5 and 6 were not sustained and will be dis- missed. There is no evidence that Jerry Bakke attempted to prevent anyone from voting. Neither is there evidence that Ray Mains acted as an observer while acting as a supervisor. The Union's challenges to Shawn Bakke, Deanna Bakke, and Daniel Arms were sustained as the record in- dicates that they were related to Jerry Bakke, Respond- ent's general manager, during the relevant period. There is no evidence, one way or the other, whether the names of James LeBeau and Donald Weeks were on the Excel- sior list, so the challenges as to them will be dismissed. The challenge to Patricia Rojas was sustained , but the challenge to Ray Mains is dismissed There is evidence that Rojas left Respondent's employment on July 18, 11 days before the election. It was not established that Mains was a supervisor at the time of the election.55 On the foregoing findings of fact, and on the entire record in the proceeding, I enter the following CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by: a. Informing employees that it would issue a booklet that would prohibit union activities. b. Informing employees that they could support the Company against the Union or terminate their employ- ment relation. 13 Charles LeBeau and Daniel DellaMaggiore left Respondent's em- ployment, but the record does not establish that either of them or any other employee was constructively discharged 54 Citing Midland National Life Insurance Co, 263 NLRB 127 (1982), Respondent points out that the Board is no longer concerned with mis- representation of the type alleged in Objection 4. 55 Edward Duval testified that Mains, who worked as an electrician for Respondent , was made a temporary supervisor of the mill crew "for a while" Duval said he never saw Mains give orders to others but was once told by Mains to do some restocking Duval said Mains continued to work "mostly " as an electrician and was not in charge of a crew when Duval left Respondent's employment 3 days prior to the election c Interrogating employees concerning employees' membership and/or activities on behalf of the Union. d. Threatening employees with termination if they sup- ported the Union e. Interrogating an employee as to whether his absence was due to his attendance at a union meeting f. Informing an employee that Respondent would impose more onerous working conditions on employees who supported the Union, causing them to quit. g. Informing an employee that Respondent Would refuse to negotiate and bargain with the Union even if the employees should select the union as their exclusive collective-bargaining representative. h Threatening to close down its San Joaquin, Califor- nia facility if the employees should select the union as their exclusive collective-bargaining representative. i Informing an employee that Respondent would reduce wages of certain employees should the employees select the Union as their exclusive collective-bargaining representative. j. Inquiring as to whether an employee would vote for the Union. k. Stating that Respondent could ascertain how Agrico employees would vote in an upcoming NLRB election. 1. Stating an employee could lose his rent free home if he voted for the Union. in. Informing employees that no union activity would be allowed at Agrico. n. Informing an employee that another employee had been terminated for stirring up union activity. o. Informing employees that employees who had worked for another unionized company should never have been employed by Respondent. p. Informing employees that Respondent did not intend to have employees who were represented by the Union. 4. Respondent violated Section 8(a)(1) and (3) by dis- charging James A. LeBeau, Chester Copher, and Lloyd E Murry Jr. for engaging in union activities. 5 It was not established that Respondent violated Sec- tion 8(a)(1) and (5) by failing to recognize and bargain with the Union, or that Respondent violated the Act in any other manner as alleged. THE REMEDY Having found that Respondent engaged in certain unfair labor practices in violation of Section 8(a)(1) of the Act, I find that it is necessary that Respondent be or- dered to cease and desist from the unfair labor practices found and from any like or related acts which infringe upon employees' Section 7 rights, and to take certain af- firmative action designed to effectuate the policies of the Act. In view of the fact that Respondent unlawfully ter- minated James A. LeBeau, Chester Copher, and Lloyd E. Murry Jr., I shall recommend that Respondent be or- dered to offer each of them immediate and full reinstate- ment to their former positions, or, if such are not avail- able, ones which are substantially equivalent thereto, without prejudice to their seniority and other rights and privileges. They are to be made whole for any loss of earnings suffered by reason of the discrimination All INDUSTRIAL AGRICO PROCESSING 727 backpay is to be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), Isis Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, Industrial Agrico Processing, Inc., San Joaquin, California, its officers, agents, sucessors, and assigns, shall 1. Cease and desist from (a) Informing employees that it will issue a booklet that prohibits union activities (b) Informing employees that they can either support the Company against the Union or terminate their em- ployment relation. (c) Interrogating employees concerning employees' membership and/or activities on behalf of the Union (d) Threatening employees with termination if they support the Union. (e) Interrogating an employee as to whether his ab- sence was due to his attendance at a union meeting (f) Informing an employee that Respondent will impose more onerous working conditions on employees who support the Union. (g) Informing an employee that Respondent will refuse to negotiate and bargain with the Union. (h) Threatening to close down its facility if the em- ployees select the Union as their exclusive collective-bar- gaining representative. (i) Informing an employee that Respondent will reduce wages of employees if they select the Union as their ex- clusive collective-bargaining representative. (1) Inquiring as to whether employees will vote for the Union (k) Stating that it can ascertain how employees will vote in an NLRB election. (1) Stating that an employee may lose his home if he votes for the Union (m) Informing employees that no union activity will be allowed. (n) Informing an employee that another employee was terminated for union activity. (o) Informing employees that employees who had worked for another, unionized company should never have been employed by Respondent. (p) Informing employees that Respondent does not intend to have employees who are represented by the Union. (q) Discouraging membership in, or support of a union, by discharging employees or by otherwise dis- criminating in any manner in respect to their tenure of employment or any term or condition of employment. (r) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act 2. Take the following affirmative action designed to ef- fectuate the purpose and policies of the Act (a) Offer James A. LeBeau, Chester Copher, and Lloyd E Murry Jr immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy sec- tion of the decision. (b) Remove from its files any reference to the unlawful discharges of James A. LeBeau, Chester Copher, and Lloyd E. Murry Jr. in writing that this has been done and that the discharges will not be used against them in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of business at its San Joaquin, Cali- fornia facility copies of the attached notice marked "Ap- pendix."57 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint be dis- missed with respect to all allegations of violations not specifically found herein. Finally, it is further ordered that Case 32-RC-1835 be severed from Case 32-CA- 5626 and returned to the Regional Director for Region 32 for the purpose of holding a new election as soon as feasible, under the supervision of the Regional Director for Region 32, and at such time and place as the Region- al Director deems circumstances afford free choice of a bargaining representative. 56 If no exceptions are filed as provided by Sec 102 46 of the Board's 54 If this Order is enforced by a Judgment of a United States Court of Rules and Regulations, the findings, conclusions, and recommended Appeals, the words in the notice reading "Posted by Order of the Na- Order shall, as provided in Sec 102 48 of the Rules, be adopted by the tional Labor Relations Board" shall read "Posted Pursuant to a Judgment Board and all objections to them shall be deemed waived for all pur- of the United States Court of Appeals Enforcing an Order of the Nation- poses al Labor Relations Board "