Bonanza Farms, Inc

720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Bonanza Farms, Inc and Robert E Willis Case 21- CA-26004 November 15 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On August 16 1988 Administrative Law Judge Richard J Boyce issued the attached decision The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge s rulings findings 1 and conclusions and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent Bonanza Farms Inc El Centro California its officers agents successors and assigns shall take the action set forth in the Order ' The Respondent has excepted to some of the judge s credibility find rags 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 Robert R Petering Esq for the General Counsel Larry A Dawson Esq (Dressler & Quesenberry) of El Centro California for the Respondent Robert E Willis of Salinas California pro se DECISION STATEMENT OF THE CASE RICHARD J BOYCE Administrative Law Judge This matter was tried in El Centro California on May 25 and 26 1988 The complaint based on a charge filed by Robert E Willis issued on March 28 1988 was amend ed during the trial and alleges that Bonanza Farms Inc (Respondent) discharged Willis and two others Tim Noe and Tim Crabtree on February 11 1988 thereby violat Ing Section 8(a)(1) of the National Labor Relations Act (Act) because they had engaged in statutorily protected activities I ' Sec 8(a)(1) prohibits an employer from interfering with restraining or coercing employees in the exercise of the rights guaranteed in section 7 of the Act Sec 7 guarantees employees the right to self-organization to form join or assist labor organizations and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection Respondent contends that Willis and Noe quit and that Crabtree was laid off for reasons unrelated to pro tected activities II JURISDICTION Respondent a California corporation operates a produce packing shed in El Centro It annually sells and ships commodities valued in excess of $50 000 directly to customers outside California and thus is an employer en gaged in and affecting commerce within Section 2(2) (6) and (7) of the Act III THE ALLEGED MISCONDUCT A Evidence 1 Events predating August 11 Respondents dock foreman Mark Lyons operated the vacuum cooler tubes in addition to performing certain management functions 2 The latter sometimes required that he leave the tubes in which case he either shut them down or arranged for Noe or Willis to operate them When the tubes were shut down the employees loading lettuce into them perforce were idled This meant loss of income for they were paid on a piece rate basis On February 9 Willis assertedly found that the tubes had been shut down and that Lyons was nowhere around He testified that he thereupon started them up at the same time venting his frustration about Lyons to coworkers Crabtree Noe and Mark Morrow They de cided to confront Lyons on his return Willis continued and in the resulting encounter attended by the four of them he complained to Lyons You have to keep the tubes running That s how we make our money We work piece rate If we worked by the hour I wouldn t care By them shutting the tubes down we ve got to be there longer and make less money per hour Willis testified that Lyons got mad in response an nouncing that he was the boss and that the incident concluded on that note He added however that the tension kind of blew over that night The tubes again were down the afternoon of the next day February 10 according to Willis prompting him to speak once more with Crabtree Noe and Morrow this time vowing with their concurrence not to restart the tubes Willis testified that the group ap proached Lyons anew when he later appeared Willis it erated that Lyons had to keep those tubes running as he recounted and Lyons replied If you don t like the way I operate the tubes why don t you get somebody else? Willis professedly rejoined [F]ine if that s what it takes to keep them running and Lyons came back that he was doing the best he could but had a lot of other things to do Lyons ranted and 2 Lyons was promoted to foreman on January 5 1988 291 NLRB No 112 BONANZA FARMS 721 raved according to Willis and was all pushed out of shape The encounter lasted 15 to 20 minutes by Willis esti mate Crabtree testified that Willis complained to him on or about February 8 about Lyons shutting the tubes down and that he counseled moderation advising Willis to just kind of let things go a little bit if they re not real bad Willis fairly upset came to him again on February 10 Crabtree recalled declaring that the sit uation had been going on long enough whereupon the two of them and Noe decided to confront Lyons and get it taken care of Lyons appeared on the dock about then according to Crabtree prompting Crabtree to call out that the em ployees had a problem Willis then jumped in per Crabtree stating that there s been numerous times Lyons had been shutting them tubes down and walking off that Willis was tired of it and that Lyons was taking money out of Willis pocket by not doing his job Crabtree testified that Lyons spoke with him and Noe on the dock later that day conceding I have been holding you guys up a little bit They just got me running around too much Do you think I ought to get another operator? 111 talk to Shaner tonight 3 Crabtree averred that Lyons come back a couple of more different times that evening and just kind of shaking his head and just saying that You know I have been hold ing you guys up up and pledging to talk to Shaner and take care of the problem Noe also testified that between the encounter initiated by the employees and that initiated by Lyons he had a 10 to 15 minute one on one conversation with Lyons in which Lyons pretty upset said he would talk to Steve Shaner and try to straighten things out on it Morrow testified that he met with Lyons twice as part of a group- the evening of the 10th and a few days before that He recalled that he Willis and Crabtree at tended the first meeting which lasted probably 5 min utes complaining to Lyons that he could not adequately serve both as dock foreman and tube operator The en counter on February 10 included Noe as well as the other three according to Morrow and lasted 15 to 20 minutes and we told him that we didn t think that he should try to operate the tube and be the management too if he can t do both that he should make a decision between the two jobs Morrow testified that Lyons was totally agreeable apologizing for leaving the tube and causing the extra hours we had to be down there Lyons controverted the foregoing accounts in major detail Although admitting that Willis complained to him on February 8 or 9 that he was not operating the tubes right and wasn t doing his job Lyons denied that any other employees were present He further denied any later encounters on the point singly or collectively with Willis or anyone else He denied as well that he ever acknowledged error regarding his operation of the tubes to any employee 2 Events of February 11 Crabtree assertedly thought everything was patched up and honed down at that point Willis to the contrary Crabtree testified that the en counter on February 10 was the only time the employees as a group confronted Lyons about shutting down the tubes Noe testified that he Willis Crabtree and Morrow had gotten together on February 9 and talked about [Lyons] leaving our tubes and shutting us down from loading lettuce resolving to call a meeting with him [and] tell him what we felt A meeting ensued that afternoon according to Noe with Willis telling Lyons that he and Noe were tired of operating the tubes for him Noe testified that Lyons then asked the others how they felt and he Noe answered that he was tired of op erating the tube for Lyons Noe recalled that the session lasted about 20 minutes Noe later testified that the above was one of two meetings both on the same day in which all of us had got together to talk to Lyons He then amended that he could recall only the one group confrontation but that Lyons went to the four complaining employees afterwards acknowledging that he had been screwing 3 Steven Shaner Respondents controller who had installed Lyons as dock foreman in early January a Willis Willis testified that as he was about to clock in at 8 a in February 11 Lyons asked if he had a problem with Lyons work that he replied No not when you do it that Lyons kind of got mad at that point men tioning all this stuff he had to do besides operate the tubes and that Willis rejoined Yeah I know that but we ve got to keep the tubes running Lyons then of fered per Willis You guys can just get somebody else and he responded Fine we can do that With that Willis proceeded Lyons started to walk off and he turned around and he told me I was fired This exchange followed according to Willis Willis What do you mean I in fired? For what? Lyons You re just fired Willis For what the way I work? I do my work I do everything I in supposed to be doing Lyons You re fired Get off the property Willis testified that he then asked if he could stay until Noe and Crabtree got there that Lyons repeated Get off the premises and that he complied Lyons recounted the incident quite differently He tes tified that he initiated it by asking Willis how he was 722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD doing that Willis answered I want to know what your jobs going to be today that he replied that he was going to operate the vacuum tube that Willis came back that he Noe and Crabtree had talked about hiring their own operator and that he remonstrated I in the management here and I ve got the right to direct the work force and if anybody s going to hire an operator 111 hire an operator not you Willis responded according to Lyons that Lyons had been goofing around over there on that tube blah blah blah and keeping us here longer and everything like that and he countered that he had had problems the last two days with the air compressor and prob lems with this and that on that tube but thought he was doing a good job Willis declared according to Lyons Well you know what? You ve got to make your mind up What are you going to be the boss or the worker? Lyons assertedly replied [R]ight now I in the dock foreman You re not just going to hire anybody you want to operate the tube I should have a say so on it Lyons would have it that Willis thereupon proclaimed Well I in not going to work under those conditions and turned and walked off Willis stated while walking away according to Lyons that he would wait for Noe and Crabtree and Lyons directed him to wait for them outside the gate Willis denied on rebuttal that he told Lyons he could not work under these conditions and [was] quit ting Lyons denied that he intended to or did fire Willis Crabtree testified that before he left for work the morning of February 11 Willis came by his house re porting They fired me b Crabtree Noe Crabtree Noe and Morrow arrived at work at the same time Crabtree testified that Lyons met them be tween the parking lot and the office telling Crabtree that he no longer worked there then handing Noe his timecard while stating Are you going to punch in? The timeclock is in the office Noe went to the office according to Crabtree presently returning to state It s not 9 00 o clock yet Nine was Noes usual starting time Crabtree continued that Lyons meanwhile gave Morrow his card asking if he was going to punch in and that Morrow grabbed the timecard and went about his way Crabtree testified that he followed Lyons as Lyons walked away forcing this exchange Crabtree Mark I want to know what s going on? Lyons I don t have to explain nothing to nobody I in the fucking boss around here Crabtree I think I deserve an explanation Lyons I don t have to explain nothing to no cocksuckers Crabtree Mark be a man and turn around I want to know what s going on Lyons I don t need no backstabbing mother fuckers around here you Timmy Noe or Robert Willis Crabtree [D]on t call me a cocksucker or a motherfucker Neither one I am And further more there was no backstabbing going on We got together and we told you right to your face Lyons You get the hell out of here Crabtree I in not leaving Lyons If you don t leave I in going to call the sheriff and have you removed Crabtree [Y]ou d better call him Lyons then stormed into the office according to Crabtree presently emerging to engage Noe in a little argument Crabtree admittedly did not hear all that fol lowed between Lyons and Noe but assertedly saw Lyons remove his glasses and place a finger on Noe s chest in such a way that he thought they were going to go at it that is start a fight A fight however did not materialize Crabtree related that Noe instead announced that he was going to Shaner and that Noe and Crabtree there upon confronted Shaner in the office resulting in this dialogue Noe What s going on around here? Shaner Not much Noe Why is all this happening? Shaner I thought we needed a change You know sometimes you have to be an asshole Noe testified that before encountering Lyons the morning of February 11 he Crabtree and Morrow went into the office to get their timecards that the cards were not in the rack and that Lyons came out on the dock screaming and yelling the cards in his back pocket Noe s recital went on that Lyons started arguing with us if we didn t like what he was doing to hit the gate that no one was going to tell him what to do Noe con tinued that Lyons shortly told [him] to go to work or hit the gate that he responded that it was not yet 9 am and that he went to a rotator forklift to put on a hose that had fallen off the night before Noe testified that Lyons then accused him of tam pering with the rotator and told him to leave and that he responded that he was not leaving and walked away Noe proceeded that Lyons followed me and took his glasses off and told me if I didn t leave he was going to kick my ass and he shoved me and I left Noe also testified that Lyons called him a backstabbing motherfucker at some point in this exchange to which Noe replied I didn t backstab you I told you right to your face Noe further testified that he heard Lyons tell Crabtree that morning that he was fired call him a backstab ber and tell him he couldn t count 4 4 A presumed reference to shortages of which more later BONANZA FARMS 723 Besides averring that his timecard was not in the rack on February 11 Noe testified that he never saw it His testimony was silent about an encounter with Shaner that day Morrow testified that Lyons had all the timecards in his hand when he confronted the three employees the morning of February 11 that the first thing he did was tell Tim Crabtree to hit the gate that he then asked Morrow if he worked there and that to Morrow s answer As far as I know I work here Lyons gave him his card and directed him to go to work About then according to Morrow Lyons and Noe started arguing and Lyons asked Noe to leave Mor row s account contained no particulars otherwise of the exchange between Lyons and Noe nor of that between Lyons and Crabtree Morrow testified that he performed Willis job on February 11 with Lyons performing his He insisted shown his timecard containing no indication that he punched in or out on February 11 and bearing a hand written notation that he was off sick that he indeed was present and that whoever wrote off sick on that is lying He expanded I forgot a lot to punch in and I was reprimanded for it several times The requirement that the employees clock in and out had been imposed only recently and had no bearing on their pay-which as noted was figured by the piece Lyons testified that he told Crabtree upon Crabtree s and Noes arrival February 11 that he was laying him off Lyons explained so he related that some wrong loadings had occurred the previous night for which Crabtree was responsible because his name was on the manifest and that Crabtree also had had problems with shortages and everything Crabtree responded per Lyons by stating that Respondent would be unable to handle the volume without him and Willis and by asking What did you fire Willis for? Lyons testified that he denied firing Willis and Crabtree quoted Willis to the contrary Lyons recounted that Noe then injected alluding to the Willis situation What did you do that for? and that he came back Timmy just punch in and go to work Ill take care of this problem here Noe stated per Lyons that he was not going to go to work that its not 900 o clock yet and Lyons said When it gets 900 go ahead and go to work Lyons continued that Crabtree shortly exclaimed You cant fire me and that he shot back [I]f you don t leave I in going to call the sheriff With that Lyons testified he began to walk away when he saw Noe messing with the rotator trying to change the hoses or something and tear it up Lyons ad monished Noe to just leave the equipment alone as he recalled Noe declared [Y]ou won t load a box off this dock 111 see to that and Lyons announced I in going to call the sheriff on both you guys Lyons went on that he presently said he had had problems with loading that Noe retorted Well you know what s wrong what your doing s wrong and Lyons answered that he was just trying to get Noe to go to work Lyons recalled that Crabtree then reentered the fray telling me some more stuff prompting Lyons to pro claim I don t want to hear it You re laid off and that a it 111 just go inside and call the sheriff And call the sheriff he did Crabtree and Noe left the prem ises together before the sheriff's arrival Lyons testified that he removed only Crabtree s time card from the rack on February 11 that he had no in tention to and did not fire Noe He testified elsewhere that testing the rotator after Noe s departure 5 he found Noe s card just setting there so he just picked it up and went over to the office Lyons denied taking off his glasses and poking Noe in the chest as if preparing to fight John Spycher a production employee for Respondent since its inception in 1986 testified that Lyons told him on February 11 before the arrival of Noe and Crabtree that he was going to put [Spycher] back on the lettuce loader in Crabtree s stead a little earlier than ex pected because of the shortages that had been occurring and kept occurring Lyons also said according to Spycher that he had given Crabtree so many chances to rectify it and couldn t go on Spycher testified as well that he heard Lyons tell Crabtree that morning that he was putting Spycher back on the loading fork lift because of the shortages that Respondent had given Crabtree many chances and just couldn t afford the shortages anymore Spycher additionally averred that he heard Noe tell Lyons with reference to Crabtree Well if he goes I in going Shaner testi1 ying briefly denied any conversation with Noe or Ci abtree on February 11 Regarding Crab tree s attribution to him of the remark that sometimes you have to be an asshole Shaner testified that he said something to that effect when he spoke to the employees in early January about effecting cost cutting measures Lyons testified that he was going to lay [Crabtree] off because of slow volume given that the broccoli season was ending that he was going down to six guys The choice he added was between [Crabtree] and Willis - the last guys hired 6 and he decided on Crabtree although more senior than Willis because of some shortages blamable on Crabtree and some disci pline problems with him The decision he went on was basically his alone made the night of Febru ary 10 He probably would have told Crabtree then he testified but he [had] left Asked if he had dis cussed the decision with anyone else in management Lyons testified No Not that I can remember to be honest with you You know I may have told someone but I don t-I cant remember you know if I did or not no Lyons did not explain why he adhered to his decision to lay off Crabtree even after Willis departure earlier on February 11 He did testify however that part of what pushed him over the edge concerning Crab tree was i loading mistake the night of February 10 s Lyons testified that it was unharmed also that he would not have fired Noe for his alleged tampering 6 Both were hired in December 1987 724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD whereby 240 boxes of the wrong brand of lettuce-Hoss rather than Salinas Lettuce Farmers-was placed in a shipment to Michigan Pressed on cross examination about the harm of this Lyons conceded that the custom er would suffer none and that he wouldn t dis charge a guy right off the bat for it He was unable moreover to make a cogent case of harm to Respondent Crabtree Noe and Willis all testified on rebuttal that they first heard about this alleged loading mistake when it came up during the trial Regarding the shortages or erroneous loading counts for which Lyons ostensibly held Crabtree responsible Lyons testified that he spoke with Crabtree about the problem six or seven times at least that he warned Crabtree twice and that he thought he suspended Crab tree three days on the 16th of January for not punching in and for shortages Neither of the warnings nor the suspension was documented Crabtree acknowl edged that Lyons spoke to him about short counts probably three or four times even enlisting Spycher to impart his counting know how for a time Crabtree dis puted however that he was suspended for that reason contending that he missed one day of work for not punching in the timeclock 7 Spycher testified that be sides engaging him to tutor Crabtree the one time Lyons mentioned the problem of shortages to Sp ycher at least half a dozen times saying that Respondent was very upset about them and just couldn t afford to keep having them The record contains no evidence that the problem resurfaced at any time proximate to Crabtree s termination The departures of Willis Noe and Ciabtree left Re spondent shorthanded for a time IV CONCLUSIONS AND REASONS Crabtree inarguably was discharged on February 11 The threshold issue concerning Willis and Noe is wheth er they quit as Respondent would have it or were dis charged I credit Willis that Lyons expressly told him he was fired 8 and while the Noe situation is less explicit Lyons admitted pronouncement to Crabtree and Noe that he was going to call the sheriff on both to get them off the premises bespeaks a forced rather than vol untary severance as do Lyons remark to Noe that he would kick [his] ass if he did not leave 9 and his corn ment to Crabtree I don t need no backstabbing mother fuckers around here you Timmy Noe or Robert Willis 10 ' Addressing Lyons assertion that he was suspended for 3 days Crab tree testified that he was absent 3 days by prearrangement to attend an automobile racing event and that he neglected to punch in on his return so was told to take that day off as well Crabtree corcededly was sloppy about punching his card 8 Willis demeanor in the telling carried greater conviction than did Lyons testifying to the contrary 9 I credit Noe and Crabtree that Lyons removed his glasses and other wise assumed a posture as if preparing to fight Noe and I credit Noe that Lyons made this remark Their testimonial demeanors were more persua sive than Lyons regarding the incident 10 Crediting Crabtree s detailed and cogent account That Lyons was contemplating the discharge of Noe along with Crabtree and even Morrow dependent on their reactions is evident moreover from his having their timecards in hand or pocket when confronting them the morning of February 11 't Shaner s answer to Noe that morning that a change was needed and some times you have to be an asshole likewise suggests ad verse action 12 I therefore find that Willis and Noe as well as Crabtree were discharged The next issue is causation The analytical approach to be taken in that regard is as prescribed in Wright Line [W]e shall henceforth employ the following causa tion test in all cases alleging violation of Section 8(a)(3) or violations of Section 8(a)(1) turning on employer motivation First we shall require that the General Counsel make a prima facie showing suffi dent to support the inference that protected con duct was a motivating factor in the employer s decision Once this is established the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct 13 I conclude that the General Counsel has made a puma facie showing that a motivating factor in each discharge was the affected employees engagement in statutorily protected activities My reasons for this conclusion are 1 Although the testimony of the three dischargees and Morrow lacked internal consistency in various respects I am persuaded that they shared a concern over the way Lyons operation of the cooling tubes affected their earn ings that they discussed that concern among themselves that they concertedly raised it with Lyons on February 10 if not earlier i4 and that Willis revealed the concer tedness of their concern again on the 11th before anyone was discharged by telling Lyons that he Noe and Crab tree had talked about hiring their own operator 15 2 Further I conclude that the employees concerted activities in this regard were for their mutual aid or protection in the context of terms or conditions of em Crabtree Noe and Morrow were altogether convincing that Lyons had their timecards Lyons to the contrary was not (Morrow s insist ence that he worked that day despite what might be inferred from his timecard likewise was convincing ) 12I credit Crabtree despite the absence of corroboration from Noe that Shaner so spoke Crabtree came across generally as a sincere and competent witness Shaner s denial on the other hand was rendered me chanically and without conviction 13 251 NLRB 1083 1089 (1980) This formulation received Supreme Court approval in NLRB Y Transportation Management Corp 462 U S 393 (1983) 1 Willis Noe Crabtree and Morrow generally evinced conscientious ness during their recitals whereas Lyons denial that they concertedly spoke to him before the discharges did not I agree with the observation in the General Counsel s brief that the discrepancies among the three dis chargees and Morrow show that they did not conspire to fabricate a story And carefully observing them as they testified I formed the im pression that they had not received much of the usual and perfectly ethi cal pretrial preparation either that (with the exception of Crabtree) ar ticulation is not their forte and that counsel were not particularly assidu ous in exacting precision from them 15 Per Lyons testimony BONANZA FARMS ployment and thus were protected by Section 7 of the Act 16 3 The three discharges occurred the same morning indicating a common motive and came on the heels of the dischargees protected protest activities suggesting a causal connection Such a connection also is revealed by Lyons accompanying references to the dischargees as backstabbers and the like-manifest allusions to their protected activities and unlikely concomitants of busi ness as usual terminations 17 4 Respondents mischaracterization of its actions against Willis and Noe contending that they quit be trays its feeling that deception was essential to the suc cess of its case regarding those two With respect to Respondents burden under Wright Line given the General Counsels prima facie showing I conclude that it has failed to demonstrate that the same action would have taken place even in the absence of the protected conduct Its discredited contention that Willis and Noe quit necessarily defeats the presence of overrid ing justification for their discharges and my reasons for concluding that it has failed to make the requisite dem onstration as concerns Crabtree are as follows 1 Crabtree was terminated after Willis belying Lyons testimony that the end of the broccoli season dictated a reduction in force and that the choice was between Crabtree and Willis 2 The three discharges on February 11 left Respond ent shorthanded further belying reduced manpower needs as a factor 3 Lyons testimony was unconvincing that a loading mistake the night of February 10 was part of' what pushed him over the edge regarding Crabtree as was his testimony that he cited some wrong loadings when informing Crabtree of his termination Not only was this testimony nebulous in content but Lyons de meanor in the presentation lacked certitude Further al though palpably sympathetic to Respondent Spycher did not indicate in his recital that Lyons said anything about such a mistake to him or to Crabtree and the record otherwise fails to corroborate Lyons in this regard Fi nally the weight of evidence establishes that this mis take if it occurred was of slight significance which sug gests that Lyons raised it pretextuously 4 Although Crabtree evidently had counting problems from time to time and both Noe and Spycher corrobo rated Lyons assertion that he cited this to Crabtree on February 11 the absence of evidence that the problem occurred at any time proximate to February 11 likewise indicates pretext 5 Lyons tentativeness in content and demeanor when asked if he discussed the Crabtree decision with anyone else in management weakened his companion testimony that the decision was basically his alone and thus undermined his credibility in general regarding that 6 E g NLRB Y City Disposal Systems 465 U S 822 830 (1984) El Gran Combo 284 NLRB 1115 1117 (1987) Independent Stations Co 284 NLRB 394 (1987) Salisbury Hotel 283 NLRB 685 685 (1987) Joseph De Rario DMD PA 283 NLRB 592 (1987) Meyers Industries 281 NLRB 882 (1986) 17 Crabtree and Noe were convincing that Lyons referred to them in this manner 725 decision Further indicative that Lyons did not act alone was Shaner s sometimes you have to be an asshole remark to Noe on February 11 In sum the evidence that the discharges were trig gered by improper employer motivation is substantial and Respondents answering evidence is nonexistent con cerning Willis and Noe and singularly unpersuasive with respect to Crabtree I conclude therefore that the dis charges violated Section 8(a)(1) as alleged CONCLUSION OF LAW By discharging Robert Willis Tim Noe and Tim Crabtree on February 11 1988 Respondent in each in stance violated Section 8(a)(1) of the Act On these findings of fact and conclusion of law and on the entire record I issue the following recommended" ORDER The Respondent Bonanza Farms Inc El Centro California its officers agents successors and assigns shall I Cease and desist from (a) Discharging employees because they engaged in protected concerted activities for their mutual aid or protection (b) In any like or related manner interfering with re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) At the earliest opportunity given the seasonal nature of Respondents operation offer Robert Willis Tim Noe and Tim Crabtree full reinstatement to their former jobs or if those jobs no longer exist to substan tially equivalent positions without prejudice to their se niority 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 Respondents unlaw ful discharges of them on February 11 1988 19 (b) Remove from its files any reference to the unlawful discharges and notify Willis Noe and Crabtree in writ ing 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 in El Centro Califor nia English and Spanish language copies of the attached 18 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses 19 Backpay shall be computed in accordance with F W Woolworth Co 90 NLRB 289 (1950) with interest in accordance with New Horizons for the Retarded 283 NLRB 1173 (1987) Under New Horizons interest is computed at the short term federal rate for underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD notice marked Appendix 20 Copies of the notice on forms provided by the Regional Director for Region 21 after being signed by the Respondents authorized repre sentative 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 customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other maten al (e) Mail English and Spanish language copies of said notice to all employees employed at its El Centro pack ing shed on February 11 1988 at their last known ad dresses 21 (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply 20 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board 21 Mailing is necessary because of the seasonal nature of Respondents business to ensure that all employees employed at the time of Respond ent s misconduct are meaningfully informed of their statutory rights Yolo Transport 286 NLRB 1087 1099 fn 52 (1987)