Alpha Biochemical Corp.

ALPHA BIOCHEMICAL CORP Alpha Biochemical Corporation and Local Union 1- 369, Oil, Chemical and Atomic Workers Inter- national Union, affiliatd with Oil, Chemical and Atomic Workers International Union, AFL- CIO Case 19-CA-19074 April 21, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On September 20, 1988, Administrative Law Judge Gordon J Myatt issued the attached deci- sion The Respondent filed exceptions and a sup porting brief, and the General Counsel filed a brief in support of the judge's decision and an answering brief to the Respondent's exceptions 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 briefs and has decided to affirm the judge's rulings, findings,' 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, Alpha Bio- chemical Corporation, Richland, Washington, its its officers, agents, successors, and assigns, shall take the action set forth in the Order 1 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 The Respondent argues that because the Union did not request bar gaining over the layoffs of employees on April 13 and 20 1987 it there by waived its right to bargain over them In support of this argument the Respondent maintains that the Union knew of the layoffs for several days prior to their implementation Like the judge we reject the Respondent s contentions It is undisputed that the Respondent never notified the Union of its decision to lay off employees Furthermore when the Re spondent informed employees of its decision to implement layoffs for consecutive Mondays in April and May it was announced as a fait ac compli Notice of a fait accompli even had it been given to the Union does not constitute timely notice San Antonio Portland Cement Co 277 NLRB 309 313 (1985) and cases cited therein Under these circum stances we will not find a clear and unmistakable waiver of the Union s right to bargain over the layoffs In agreeing with the judge that the interrogations of employees Rouse and Hudlow violated Sec 8(a)(1) of the Act Member Cracraft does not rely on Sunnyvale Medical Clinic 277 NLRB 1217 (1985) Patti Hunter Esq, for the General Counsel Gary E Lofland Esq (Lofland & Associates), of Yakima, Washington for the Respondent Alex J Skalbanta Esq of Richland, Washington for the Charging Party DECISION STATEMENT OF THE CASE 753 GORDON J MYATT, Administrative Law Judge Upon a charge filed by Local Union 1-369, Oil Chemical and Atomic Workers International Union, affiliated with Oil, Chemical and Atomic Workers International Union, AFL-CIO (the Union) on April 17, 1987, against Alpha Biochemical Corporation (Respondent), the Regional Di rector for Region 19 issued a complaint and notice of hearing in this matter on June 8 1987 i The complaint alleges the Union was certified on April 7 as the exclu sive collective bargaining representative of Respondent s employees in the following appropriate unit All operators, chief operators, sanitation workers, maintenance shipping and receiving employees and laboratory technicians employed by Alpha Bio chemical Corporation at its Richland, Washington facility, excluding all office clerical employees, guards and supervisors as defined in the Act Further, that Respondent, acting through its supervisors and agents, unlawfully interrogated employees about their union sympathies and desires and the union activi ties of other employees 2 Next, that Respondent changed its work schedules and laid off employees on April 13 and 20 in retaliation for the employees engaging in pro tected concerted activities in support of the Union Also that on April 15 Respondent disciplined and terminated employee Robert Hudlow because he engaged in activi ties on behalf of the Union Finally, that Respondent changed its work schedules and laid off employees on the dates set forth above without prior notification to the Union or affording the Union an opportunity to negoti ate and bargain about such changes and layoffs as the ex clusive collective bargaining representative of the em ployees The complaint alleges that by the above con duct Respondent has violated Section 8(a)(1), (3) and (5) of the National Labor Relations Act (the Act) Respond ent filed an answer in which it admitted certain allega tions of the complaint, denied others, and specifically denied committing any unfair labor practices A hearing was held on this matter in Richland Wash ington on July 29 and 30 and September 17, 1987 All parties were represented by counsel and afforded full op portunity to examine and cross examine witnesses and to present material and relevant evidence on the issues Beefs were submitted by the General Counsel and Re spondent and they have been duly considered 3 On the entire record in this matter, and from my ob servation of the witnesses while testifying I make the following i All dates refer to the year 1987 unless otherwise indicated 8 The complaint was amended at the hearing to allege an additional act of unlawful interrogation 3 Counsel for the General Counsel filed a motion to strike portions of Respondents bnef on the ground that they were unsupported by the record evidence I find no merit to the motion and it is denied 293 NLRB No 92 754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I JURISDICTION Respondent, Alpha Biochemical Corporation, is a State of Washington corporation with an office and man ufactunng facility located in Richland, Washington There Respondent is engaged in the business of convert ing and processing raw starch obtained as a by product from potato processors, into commercial feed and food grade starch binders During the 12 months preceding the issuance of the complaint in this case, Respondent sold and shipped products valued in excess of $50,000 from its facilities located in Richland directly to custom ers located outside the State of Washington The plead ings admit, and I find, that Respondent is, and has been at all times material an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED Local Union 1-369, Oil, Chemical and Atomic Work ers International Union, affiliated with Oil Chemical and Atomic Workers International Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Background Facts Respondent, a Washington State corporation is wholly owned by Kanagefuchi Chemical Company of Osaka, Japan Respondent was established in 1981 to de velop and utilize a process-apparently unique in the United States-by which raw liquid starch, a by product secured from potato processing plants,' is converted into a powdered starch binder for commercial use in feeding and fattening eels The starch binder produced for this purpose is called feed grade' product Essentially, Respondents production process entails (1) Storing the liquid starch in refrigeration tanks to cool and maintain its quality (2) pumping the starch into a treatment tank where chemicals may be added if neces sary to alter the structure of the starch to meet the de sired product requirements (3) washing the starch in a vacuum filter with de mineralized water and then pump ing it into an adjustment tank where the starch can be adjusted to the desired consistency, (4) pumping the treated starch into steam heated drum dryers from which it is then cut off in dried form and conveyed to a grind er 5 (5) filtering the ground starch through the required * Respondent receives its supply of raw starch from a company with potato processing plants in Hermiston Oregon and Connell Washington 6 Because of the explosive nature of the dried starch (much like that of grain in storage tanks or warehouses) the grinder is equipped with an antiexplosive system known as the Fenwall system This system has a door that opens to allow a metal detector to attract and trip out any metal particles or objects that may have accidentally gotten into the dried product before reaching the grinder Thus the Fenwall system was designed to eliminate or minimize the possibility of a spark occurring in the grinder which would set off an explosion sized screens to get the desired particle size and (6) bag ging the product and storing it in Respondents ware house until shipment Normally, Respondent operates three shifts on a 24 hour basis, 5 days a week The first day of the workweek (Monday), however, is devoted to cleaning and mainte nance work which is accomplished while the equipment is cool Production then commences, either during the day or the afternoon shift and continues until the end of the graveyard shift on Saturday morning Initially, Respondents entire output was shipped to its parent company in Japan Approximately a year and a half after operations started, Respondent began selling small quantities of its product to customers in Hong Kong Taiwan and Korea Beginning sometime in 1987, shipments of feed grade product to Korea increased sub stantially The testimony indicates this was due to a policy adopted by the South Korean government in an ticipation of the 1988 Olympics Apparently the Korean government was encouraging its citizens to eliminate snakes from their diet and to substitute the use of eels Thus, the sales of Respondents product was substantially enhanced by this new demand from the Korean market In 1986 Respondent made major modifications on its production process to enable it to be licensed to produce a product for human consumption in the United States These modifications occurred between January and April 1986 As a result of these changes, Respondent was per mitted to market a food grade' product for use as fillers in commercially prepared foods such as soups and also in pharmaceuticals Respondents top management came from the parent company in Japan When Respondent was established in 1981, Hisada was Respondents top official as executive vice president and Seiya Nakayama was the secretary treasurer 6 Sometime in 1984 Hisada returned to Japan and Nakayama assumed his position as executive vice president and general manager Nakayama also retained all of his prior positions and responsibilities Respondents production employees and lower level management officials were hired locally Alva Caldwell Respondents former plant manager, was hired in Febru ary 1982 as the assistant plant manager' When Hisada returned to Japan Caldwell was promoted to plant man ager According to Caldwell s unrefuted testimony, at the time he was hired he was informed by Hisada that it was a Japanese philosophy that if employees performed their work properly they had jobs for life Respondents full complement of production employ ees totaled approximately 14 and until 1983 Caldwell was the only first line supervisor of the production workers In 1983 however Al Gould, then a chief oper ator, was promoted to the position of working foreman s The testimony indicates that Nakayama was the Kanagefuchi official who formulated the concept and developed the technology for the pro duction of the product Nakayama s initial responsibilities included fi nancing accounting quality control and research T Caldwell s employment with Respondent ended in February 1987 and the circumstances are discussed infra ALPHA BIOCHEMICAL CORP under Caldwell" Among the production employees, Robert Hudlow, an alleged discriminatee in this matter was the only mechanic employed by Respondent to per form all the maintenance work on the equipment From the inception of his employment in July 1982 until Octo ber 1986 Hudlow reported directly to and worked under the supervision of Caldwell B The Events at Respondent 's Facility Prior to February 1987 1 The Union s prior representation of the employees The Union first represented Respondents employees in 1983 The unrefuted testimony discloses that when the Union was seeking to organize the employees Nakayama told Caldwell to find out which employee was responsi ble for the organizing attempt and to fire him Since Caldwell was aware that Gould, then a chief operator, had helped to organize a union at a chemical plant where he previously worked, Caldwell promoted Gould to the supervisory position of working foreman, thereby eliminating the possibility that Gould would be a favor able vote for the Union 9 In addition to Gould, Hudlow was used by Respondent as an informant on the union activities of the other unit employees The unrefuted tes timony of Caldwell and Hudlow discloses that Hudlow attended union meetings and reported back to Caldwell and Nakayama about what occurred there He also re ported on employees conversations concerning the Union during lunch and break periods Caldwell stated that after the Union was voted in as the representative of the employees, Nakayama told him that Japanese management would not tolerate a union Nakayama also told Caldwell that he planned to negoti ate with the Union but would never reach an agreement on anything The Union's attempt to negotiate a collec tive bargaining agreement with Respondent was unsuc cessful and the Union threatened to pull the employees out on a strike Hudlow then led an effort to get the em ployees to decertify the Union 10 As a result, a number of the unit employees went to the Union and protested the proposed strike action Shortly thereafter the Union notified Respondent that it disclaimed any further repre sentative status for Respondent's employees After the Union s disclaimer Nakayama established an employee committee which negotiated directly with Caldwell and him on behalf of the employees The mem bers of the employee committee were appointed by Cald 8 Gould s promotion occurred during the time of the Union s first suc cessful attempt to become the representative of the employees and is dis cussed infra 9 Caldwell also testified he instructed Gould to find out which employ ee was responsible for the Unions organizing campaign He stated that Gould was never able to successfully get this information 10 The General Counsels renewed motion to receive into the record rejected proffered testimony detailing all of Hudlow s antiunion activities and management s support thereof is denied on the same grounds given at the hearing 755 well Hudlow was appointed to serve on the committee in 1984 and again in either 1985 or 1986 11 2 Respondents employment practices during slack periods of production As noted, Respondent followed the Japanese manage ment philosophy by which satisfactory employees could be assured of jobs for life Caldwell testified that when he hired new employees, he told them there would not be any layoffs during their employment The record es tablishes that in 1983-during the time the Union was the representative of the employees-Respondent ceased production for a period of 3 to 4 months Respondent s then sole customer, its parent company, was overstocked with product, and Respondents warehouse was filled with product inventory It is uncontroverted that Re spondent s management sought to retain the employees during this period of nonproduction Caldwell testified the employees continued to work on 'make work" projects at the plant, such as mowing the lawn, perform ing maintenance work, and scraping and painting the fa cility In addition, Respondent, although not party to a collective bargaining agreement with the Union, contact ed the Union and arrangements were made whereby the employees participated in a 'shared work program in conjunction with the State Unemployment Compensation Commission Under this arrangement, the employees worked 4 days a week for Respondent and were laid off 1 day a week for which they received compensation from the Unemployment Compensation Commission 12 Again, during the time that the major modifications were being made in 1986, the employees continued to work although the plant was not in production Howev er, their workweek, was reduced to 4 days during this time by Respondent encouraging the employees to vol untanly select to be off on' either a Monday or a Friday without pay, during each week This practice continued until production resumed after the modifications were completed The record also discloses that on several occasions Re spondent found itself without raw product because the plants of its supplier were not operating When this oc curred employees again were encouraged to voluntarily opt to be off on a Monday or a Friday without pay until the supply of raw product was resumed 3 The history of antagonism between Gould and Hudlow Gould was hired by Respondent in February 1982 as a chief operator Hudlow as noted, was hired in July of the same year as Respondents only maintenance me 1 i Hudlow was uncertain whether he served on the employee commit tee during both 1985 and 1986 He testified however he did so during one of the those years 12 As the collective bargaining representative the Union had to be a party to this arrangement The record does not disclose whether the Union or Respondent initiated participation in this program for the em ployees The testimony of Union Representative Jerry Cramer is unrefut ed however that the employee participation in the shared work program followed discussions between the union representative and Respondent s officials 756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD chanic Hudlow was responsible not only for performing mechanical maintenance work but also had the responsi bility for contacting vendors and ordering and maintain ing a supply of equipment parts for the machinery 13 In addition, he set up and maintained a preventive mainte nance (PM) schedule and performed all major overhauls on Respondents equipment He also set up and partici pated in the periodic inspections conducted by various state and Federal agencies Although the bulk of Hud low s work was performed in the operating area of the plant, his desk and telephone were located in the office area of Respondents facility Hudlow reported directly to Caldwell, who prioritized his daily maintenance work by directing which jobs were to be performed and the order in which this was to be accomplished each day Although Hudlow reported to Caldwell, he often went directly to Nakayama with problems he encountered in the plant 14 While the other employees took their breaks and ate their lunch in the plant lunchroom, Hudlow fre quently ate in the office area The testimony indicates that a personality clash devel oped between Gould and Hudlow from the inception of their employment together Caldwell testified that Gould and Hudlow were antagonistic toward each other from the time that Gould was a production employee After Gould was promoted to working foreman in 1983, this conflict intensified Gould continuously complained to Caldwell about Hudlow s performance as the mainte nance mechanic Gould complained that Hudlow took too long in making repairs, took too much time on his breaks and spent too much time on the telephone Gould also expressed resentment over the fact that he could not order Hudlow to make repairs that he felt should be made Whenever Gould told Hudlow to perform certain maintenance work, Hudlow would respond that he took his orders only from Caldwell and not from Gould Caldwell testified that on one occasion Gould became so angry because Hudlow would not accept maintenance orders from him that Gould asked to be demoted from foreman back to the position of a chief operator The constant conflict between Gould and Hudlow was well known throughout the plant Employee Diaz de scribed the two antagonists as the cobra and the mon goose Employees Rouse and Salmonson more charita bly stated that Gould and Hudlow did not get along well together The undisputed testimony also reveals that the contin uous clash between Gould and Hudlow over the years was also well known to Respondents management Cald well testified that Gould consistently complained to him about Hudlow's performance as the maintenance me chanic 15 Caldwell stated he never found any justifica tion for Gould s criticism of Hudlow s performance on the job Caldwell testified he repeatedly scolded Gould about his inability to get along with Hudlow Ac cording to Caldwell, Hudlow was an above average maintenance mechanic He stated that Hudlow was will ing to work extra hours on the job and would schedule his time off around the downtime at the plant Rather than take a full week off at a time, Hudlow would ar range to take off on either a Monday or a Friday Re garding the amount of time spent on breaks, Caldwell stated that management never rigidly enforced the time limits allotted for breaks 16 Caldwell stated he had never issued any warnings to Hudlow about his job perform ance, and only issued one warning to the employee in 1984 for coming to work late Nor was Nakayama unaware of the differences that ex isted in the plant between Gould and Hudlow Na kayama testified that Gould had been complaining about the manner in which Hudlow performed his job for over 4 to 5 years In October 1986, there was an explosion in the Fen wall system Although the system was designed to elimi nate the possibility of explosions, it was not 100 percent effective, and explosions were an ongoing problem at the plant In this instance, however it was discovered that the door that normally opened to expose the magnet had been sealed shut with silicone As a result of this incident, Nakayama decided to pro mote Gould to plant superintendent and put him in charge of the operation of the day shift Pursuant to this arrangement, Gould was to assume direct responsibility for all the maintenance work in the plant When Cald well informed Hudlow of the change Hudlow threat ened to quit because of his ongoing conflict with Gould However Caldwell set up a meeting involving Gould, Hudlow, Nakayama, and himself to straighten out the working relationship between Gould and Hudlow Ac cording to Hudlow Caldwell explained the change in the job responsibilities and stated that Gould would deal with the vendors in ordering parts He stated that this would give Hudlow more time to devote to his mainte nance work in the plant Gould asserted he wanted to work with Hudlow as one maintenance operation Hudlow testified that Nakayama mentioned that Hudlow had threatened to quit because of the change and Hudlow indicated he was uncertain how the situation would work out between him and Gould According to Hudlow's testimony, Nakayama stated that management did not want to lose Hudlow and was trying to make his job easier Nakayama urged Hudlow to work with Gould 17 1 a Hudlow estimated that he spent at least 18 to 20 percent of his working time on the telephone with the vendors ordering equipment parts 14 The record is replete with testimony that Hudlow and Nakayama enjoyed a close relationship not only in the workplace but also socially They went on fishing trips and bowled together Hudlow and his wife were also social guests at Nakayama s home 15 Gould testified that when he complained about Hudlow to Cald well the latter would come into the plant and harass the operators Be cause of this according to Gould he would cease his complaints for a while to prevent this retaliation against the production employees by Caldwell None of the employee witnesses however testified they were harassed by Caldwell as a result of Gould s complaints about Hudlow s performance 16 Respondents plant rules provided for two breaks of 15 minutes each during a shift and a 30-minute period for lunch The unrefuted testimony of employee witnesses discloses that the time limits for breaks were rou tinely extended by several employees and no disciplinary action was ever imposed by management 17 Hudlow s version of this meeting is not disputed in the record Na kayama testified he felt that the differences between Gould and Hudlow were straightened out as a result of the meeting ALPHA BIOCHEMICAL CORP Following the assumption of his new responsibilities, Gould instituted procedural changes in the maintenance operations He moved Hudlow s desk from the office area into the plant Gould took over full responsibility for contacting vendors and ordering equipment parts He also made all the arrangements for the periodic inspec tions at the plant by the various governmental agencies Prior to October 1986, Hudlow followed a practice of talking to the operators each morning when he came on his shift to find out what problems they were expenenc ing with the equipment Hudlow would also go over the logs kept by the operators on the other shifts to deter mine if there were any equipment problems Gould con sidered this to be unnecessary and a waste of valuable maintenance time Gould directed Hudlow to stop fol lowing this practice and to get his work instructions di rectly from him Gould also considered Hudlow's pre ventive maintenance program to be faulty He testified on direct examination that the oil in the gear boxes of the equipment had not been changed in 5 years On close questioning on cross examination, however, Gould ad mitted he based this assertion on the fact that he could find no record of the oil changes and thus assumed it was never done Contrary to Gould s claim in this regard, Hudlow testified he maintained a five page lubri cation chart and PM schedule that he showed to Gould when Gould took over the maintenance operation Hudlow stated Gould simplified this schedule to reduc ing it to one page and required Hudlow to follow it "I The testimony indicates that for several months after Gould instituted his new procedures for the maintenance operation the tension between him and Hudlow lessened to a degree and they developed a more amicable work mg relationship 4 The pressure to make Respondents facility a profitable operation The undisputed testimony reveals that after Respond ent invested in the extensive modifications in early 1986, to permit it to produce a food grade product Nakayama was under intense pressure from the parent company to make the operation profitable To achieve this Respond ent's parent company wrote off a $1 5 million indebted ness Respondent had with the parent and ordered Na kayama to effect economies in his operation The parent company also extended its guarantee of Respondent s bank loans through the fiscal year for 1987 Pursuant to these directives from the parent company Nakayama instructed Caldwell and Gould in December to come up with ways to cut costs in Respondents oper ation He directed them to order enough parts and sup plies of various types to last for a 6 month period By so doing, the expenditures would be on Respondents books for its fiscal year 1986 and thereby enhance its bottom line figure for fiscal year 1987 19 He also told Caldwell 18 Hudlow also kept a personal diary or log of all the maintenance work he performed in the plant Although Gould asserted he found no company records on the lubrication schedule he admitted he was aware of Hudlow s personal diary but never requested to inspect it Gould or dered Hudlow to stop keeping the personal log of his maintenance work 19 Respondent operated on a fiscal year beginning April 1 and ending on March 31 of the following year 757 to ascertain whether any of the production jobs could be eliminated, but Caldwell determined this was not feast ble Nakayama further testified that production employ ees were encouraged to take a voluntary day off each week without pay in order to cut costs C The Events Beginning in February 1987 At the beginning of February 1987, Nakayama re ceived a directive from his parent company instructing him to abolish Caldwell s job as a cost saving measure In spite of the dramatic increase in the sales of feed grade product to the Korean market in 1987, the record clearly indicates Respondents higher level management and its parent company considered the sale of food grade product essential to Respondents economic survival For example, employee Steven Stewart, Respondents receiv ing and shipping clerk, testified he was informed by Na kayama in February that Respondent was going to be producing at full capacity beginning in April According to Stewart, Nakayama said Respondent would be receiv ing two truckloads of raw product each day from their supplier instead of the usual one truckload However, Nakayama made it clear to Stewart that increased sales of the food grade product was critical to Respondent s continued survival Pursuant to the parent company directive, Nakayama called Caldwell in and advised him that he would be ter urinated by Respondent Nakayama and Caldwell worked out an arrangement for Caldwell to remain on Respondents payroll until March 6 In the interim, Cald well continued to come to the plant and assist in the transfer of his duties primarily to Gould but also to Na kayama s secretary The testimony indicates that knowledge of Caldwell s pending departure served to heighten an uneasiness the production employees were feeling about conditions at the plant Stewart testified he was informed by Caldwell in February that management intended to cut employees' wages and reduce their medical insurance coverage bene fits by 10 percent Stewart also stated that employees were upset because they felt production employee Beck worth had been bypassed for a promotion and Gould was displaying favoritism among the employees in the plant Stewart also testified that Hudlow told him in February about Respondents intention to cut wages and medical benefits and suggested that the employees now needed union representation Although he was actively opposed to the unionization of the employees in 1983 and was a leader in the decerti fication effort which resulted in the Union s disclaimer of representation, Hudlow testified his views about the need for union representation changed in the summer of 1986 He further stated that when Gould became the plant su perintendent in October he decided that such representa tion was necessary According to Hudlow, when it became known throughout the plant that Caldwell s job was being abolished more of the production employees began to agree with him Several employees, with Hudlow acting as spokesman, then went to the Union s offices and secured authorization cards which a number of the plant employees signed The record indicates that 758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Union filed a representation petition with the Board's Regional Office on February 17 Hudlow was selected by the employees to be their spokesman during the orga nizing effort On February 23 management discovered that five screens, which were stored in the warehouse, had been cut 20 The screens were used to sift the dried product to a particular particle size at the end of the grinding oper ation Because the screens were apparently cut in identi cal places, Nakayama concluded the damage was inten tionally inflicted There is conflicting testimony regard ing conversations asserted to have taken place between Gould and Hudlow, and between the two of them and Nakayama, in which the subject of discussion was the unionization of the employees and the damage to the screens Hudlow testified Gould came to him on February 11 and asked if Hudlow knew who cut the screens 21 When Hudlow replied he did not know, Gould stated that some employees were angry with management Hudlow agreed and stated that he knew one employee was con sulting an attorney because of the treatment he was re ceiving at the plant According to Hudlow, Gould then stated that if the employees felt a union or an attorney would help them, they were wrong Hudlow further tes tified that he suggested to Gould during the conversation that the latter set up a meeting between the two of them and Nakayama to discuss the problem regarding the damaged screens Hudlow testified that Gould arranged for the meeting to take place that afternoon in Yakaya ma s office According to the testimony of Hudlow, when he met with Nakayama and Gould, he told them he had talked with the other employees and the employees were work ing fairly with Respondent Hudlow stated Gould then questioned whether filing a petition for union representa tion was fair Hudlow further testified that Nakayama then asked him how many employees had signed cards for the Union and Hudlow responded that nine employ ees did so He stated Nakayama disputed this and said he thought only two or three employees signed cards Hudlow asserted he knew his count was correct because he was at the head of the line' and signed a card him self Hudlow also informed Nakayama that the employ ees had selected Hudlow as their spokesman, but Na kayama refused to recognize him as such During the conversation, according to Hudlow he told Nakayama and Gould that the employees were upset over the fail ure to promote Beckworth and the fact that Gould was displaying favoritism in the plant He also told them that Gould was ragging" employees who incurred his dis pleasure Hudlow stated he suggested that Nakayama re instate his "open door policy so the employees could 20 The date the damaged screens were discovered is established by a memorandum from Nakayama to the employees on February 25 (See R Exh 8) 2 i Although Hudlow emphatically placed the date of this conversation as February 1 I it is evident from the Nakayama memo that Hudlow s testimony was incorrect on this point come directly to him with problems without fear of rata liation for bypassing Gould 22 Gould on the other hand, testified to several conver sations with Hudlow in February He stated the first one took place sometime during the second week in Febru ary, after he was advised that Caldwell's job was being abolished as a cost cutting measure Gould testified he had an "informal discussion with Hudlow to smooth out their working relationship During the conversation, according to Gould, he asked Hudlow to stop visiting with employees during working hours, to stop taking so long to perform a maintenance job, and to stop making so many trips to the maintenance shop to get supplies he needed to perform a job Gould also requested that Hudlow stop stretching his break periods Gould stated that during January and February he observed Hudlow extending his breaks beyond the time limitations In sub sequent testimony, however, Gould changed this to indi cate that he observed Hudlow frequently extending his lunch periods during January and February 23 Gould denied that Hudlow requested a meeting with Nakayama during the course of this discussion Although Gould could not gibe a precise date, he tes tified he did have a discussion with Hudlow concerning the damage to the screens Gould acknowledged that during the discussion he told Hudlow that if he Gould found out who cut the screens, neither a lawyer nor a union would be able to protect that person Gould fur ther acknowledged that he participated in a meeting with Hudlow and Nakayama, but was unable to fix the date Gould admitted that during the course of this meeting Hudlow mentioned the employee support for the union ization effort in the plant Nakayama gave a different version of his meeting with Gould and Hudlow According to Nakayama this meet ing took place at the end of February or in mid March Nakayama stated that Hudlow told the management offs cials he was planning to leave Respondent within a few weeks and because he liked the Company, he would do something for them Nakayama testified that Hudlow recommended having the employees take a lie detector test regarding the damaged screens 24 The testimony re veals that Nakayama did at some period request that em ployees individually sign consents waiving objection to taking a polygraph examination concerning not only the 22 Apparently in prior years Nakayama followed an open door policy The record does not however reveal when this policy was no longer operative Sometime after the meeting-the precise date is not clear in the record-Nakayama posted a notice on the employee bulletin board announcing the resumption of his open-door policy 23 Hudlow denied that Gould ever had any conversations with him in which Gould admom hed him for taking too long on his breaks or his lunch period He testified that it was not until sometime in March that Gould asked him to talk to other employees about extending their lunch period during paydays Hudlow stated he acted on Gould s request and spoke to the other employees about this practice Employee Lawrence Rouse a chief operator testified that Hudlow usually adhered to the al Toted time limits for breaks and lunch even though many other employees made it a practice to extend their break and lunch periods 24 Although Nakayama was not completely fluent in English and ap peared to lack familiarity with some English phrases and terms he dem onstrated sufficient comprehensio i of English to respond logically and in telligently to questions put to him even though some questions had to be rephrased in terms with which he was more familiar ALPHA BIOCHEMICAL CORP damage to the screens, but also to the sealing of the Fen wall door with silicone The record, however, does not indicate whether this was pursuant to the purported sug gestion Nakayama testified was made by Hudlow or whether it was pursuant to a decision independently made by management 25 The testimony of the General Counsel's witnesses indi cate that after management became aware of the employ ees' unionization efforts, Gould and Nakayama spent more time monitoring the activities of the employees in the plant, especially that of Hudlow Hudlow testified that prior to the union organizing activity Nakayama was rarely in the plant at the start of the day shift He stated that after his meeting with Gould and Nakayama, however, Nakayama made it a practice to be in the lunchroom at the start of the day shift He also began sit ting in the lunchroom during employees' break and lunch periods, which was a practice he had not followed before Hudlow further stated that in the past when he greeted Nakayama, his greeting would be acknowledged in a friendly manner However, after the union activity began, Nakayama would not respond at all to his greet ings and would merely sit in the lunchroom and stare at him and the other employees Hudlow also stated that Nakayama began following him around in the plant, saying nothing at all to the employee According to Hudlow, Nakayama had never done this in the past On one occasion, Hudlow was talking to employee Beck worth in the plant about a problem Beckworth was expe nencing with the equipment he was operating Hudlow testified that Nakayama came up to them and told the employees they had better be discussing work and not the Union Employee Rouse testified that prior to the filing of the representation petition employees customarily talked to each other in the plant while working and they were not reprimanded by management He stated employees rou tinely extended their lunch and break periods during their shifts Rouse further testified that Gould began to warn the employees to observe the time limits for breaks and lunch and they decided to monitor themselves so that they would not exceed the limits Rouse also testi fled that Hudlow was one of the employees who usually adhered to the time alloted for lunch and breaks Ac cording to Rouse, however, Gould would constantly tell Hudlow to curtail the amount of time he spent talking to other employees in the plant Rouse was nearby when Nakayama spoke to Hudlow and Beckworth about their conversation relating to Beckworth's equipment Rouse stated that he heard Nakayama tell the employees they were not to talk about the Union during their working time Gould, on the other hand, testified that Hudlow re peatedly extended his breaks (later changed by Gould to extension of lunch periods), and continuously talked to employees in the plant while working Gould also testi fled that Hudlow continued to take too long in perform 25 During his testimony Gould made no mention of the fact that Hudlow suggested to management that lie detector tests be given to the employees Hudlow denied that he ever informed Nakayama or Gould during any meeting with the management officials that he intended to leave his employment with Respondent 759 ing his maintenance duties Because Hudlow s perform ance had not improved since their "informal' discussion the second week in February, Gould stated that he fre quently complained directly to Nakayama in February and March about Hudlow's job performance Nakayama testified that because of these complaints he began watching Hudlow closely in the plant to observe how Hudlow was performing his duties As noted, Nakayama and Caldwell had arranged for Caldwell to remain on Respondent's payroll until March 6 to enable him to transfer his duties to Gould and Na kayama s secretary Caldwell testified he completed his transition work sometime during the third week in Feb ruary, with the exception of taking Gould to meet the contact person at the plant of the supplier of raw prod uct in Connell, Washington Caldwell testified that during the drive to Connell, Gould mentioned the union activity occurring at Respondent's plant According to Caldwell, Gould told him that Hudlow was the leader in the effort to unionize the plant Caldwell also testified that Nakayama told him, after the representation petition was filed in February, that Nakayama was going to do what he did the last time the Union attempted to repre sent the employees Nakayama also told Caldwell the Union was not smart enough to get in [the plant 26 Rouse also testified that after the representation peti tion was filed he had several conversations in the plant with Gould about the possibility of the employees being represented by the Union Although Rouse could not recall the precise dates, 27 he stated he and Gould would discuss the good and bad points" of union representa tion During one such conversation, according to Rouse, Gould asked Rouse how he intended to vote in the elec tion and Rouse replied that he had not made up his mind Gould acknowledged having several conversations about the Union with Rouse Gould testified that some were initiated by him and others by Rouse Gould denied, however, that he asked Rouse how he intended to vote in the election After Nakayama posted the notice concerning his open door policy several employees went to him regard ing problems they were having in the plant Because Na kayama insisted that Gould be present during these dis cussions, the employees felt they could not freely express their complaints to Nakayama 28 Hudlow testified that employee Leonard asked him to try to arrange a meeting between the employees and Nakayama without Gould being present Hudlow went to Nakayama who in turn insisted that 100 percent of the employees sign a request to meet with him Hudlow then drafted a request that all the production employees signed (See G C Exh 7 ) The meeting between Nakayama and the employees was held in Nakayama's office in mid March Hudlow 28 Gould denied making this statement to Caldwell during the trip to Connell In addition to Gould identifying Hudlow as the leader of the union activity Caldwell stated he was also told by Nakayama s secretary that Hudlow was the person leading the organizing effort 27 Rouse recalled the conversations occurred during late February and early March 28 The record indicates that employees Leonard and Stewart were among those who attempted to individually express their complaints to Nakayama 760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD testified Nakayama opened the meeting by tossing blank consent forms for taking the polygraph examination on his desk The testimony is undisputed that Nakayama questioned why all the employees would sign a request to meet with him but would not sign the consent forms for the polygraph examination Hudlow asked whether Nakayama was conditioning the meeting with the em ployees on their signing the consent forms 29 Nakayama indicated that if he were willing to do something for the employees (meet with them on their complaints) they should be willing to do something for him (sign the poly graph consent forms) Nakayama then told the employ ees that if their complaints involved Gould he was not willing to discuss them without having Gould present The unrefuted testimony discloses that Hudlow then told Nakayama the very purpose of the meeting was to permit the employees to freely discuss their complaints about Gould Employee Rouse testified that Nakayama asked Hudlow who made him the spokesperson for the employees Hudlow replied that the employees had se lected him to be spokesperson and Nakayama stated he refused to recognize Hudlow in this capacity Nakayama continued to insist that he would not entertain any dis cussion on any complaints involving Gould and the em ployees then left his office Sometime shortly after the abortive meeting-the pre cise time is not established in the record-employee Beckworth came to Hudlow and complained that he was charged with an unexcused absence when he was off on a workday due to illness 30 Beckworth felt the absence should have been excused and that he should have been paid for that workday Hudlow and Beckworth went to Gould, and Hudlow pleaded Beckworth s cause Gould was adamant that Beckworth s absence was unexcused and refused to discuss the matter any further He then turned to Hudlow and told Hudlow to go help the clean up employees clean the dryer room In the past Hudlow had never performed cleanup work except as it pertained to his maintenance work and the maintenance room However, Hudlow did not protest and performed clean up work in the dryer room area for approximately 4 hours 31 The Board conducted election was held on March 30 Hudlow was the observer for the Union and Rouse was the employee observer for Respondent At the conclu sion of the election the tally of votes disclosed that a majority of the employees voted in favor of representa tion by the Union Rouse testified that after the results of the election were known he and employee Ole Leonard 29 Hudlow was one of the employees who had not signed a consent to take the polygraph examination 30 Apparently Respondent had a policy in which employees received their wages when their absences were excused under certain circum stances 31 Stewart testified it was unusual for Hudlow to ever be assigned gen era] cleanup work even though other employees from time to time had performed such duties Hudlow testified that with the exception of the maintenance room and the equipment control panels the cleanup work was generally performed by cleanup employees Gould on the other hand testified that Hudlow resented performing cleanup work and claimed that Respondent hired employees for that purpose Gould also acknowledged that he had made a mistake in charging Beckworth with an unexcused absence but asserted he had no recollection that Hudlow had interceded for Beckworth went over to Nakayama and apologized for the outcome of the election They assured Nakayama that they had voted against union representation 32 Rouse also testified that he observed Nakayama go over to Gould and he heard Nakayama tell Gould that Gould was the only one he could trust and he would never lose him' D The Events After the Employees Voted for Representation by the Union 1 The layoffs in April Stewart testified that several days after the election Nakayama came into the lunchroom where Respondent kept a monthly work schedule posted He stated Na kayama used a marking pen and crossed off Mondays in April and May as days the employees would be laid off According to Stewart, he had occasion later that day to be at a water fountain adjacent to the laboratory and overheard Nakayama discussing the layoffs with Tony Diaz, the laboratory technician Stewart testified Na kayama told Diaz the employees would be working on most of the Mondays he had scheduled for layoff but to keep it a secret Contrary to Stewart, Nakayama denied that he told Diaz the employees would be working on the Mondays scheduled for layoffs or that he told Diaz to keep the in formation a secret Diaz, called as a witness by Respond ent, also denied he was told this by Nakayama Diaz stated his work as the lab technician did not depend on the plant production According to Diaz, he was work ing on tests relating to the use of food grade product in pharmaceuticals when Nakayama told him that Diaz would have to work on Mondays to complete the tests Diaz further testified that Nakayama told him the layoffs on Monday were subject to change Although Nakayama marked the Mondays in April and May as days the employees would be laid off the evidence establishes that the employees were laid off only on two Mondays-April 13 and 20 Nakayama tests feed that Respondent had no raw product on hand on those days and the layoffs were a cost saving measure On cross examination Nakayama admitted that he had given Gould a raise in salary and had increased his secre tary s wages in excess of 20 percent in April Nakayama testified that Gould s salary was increased because Gould had completed his 90 day probationary period as plant superintendent He also stated that the secretary s duties and responsibilities had been increased partially as a result of the abolishment of Caldwell s position and she was given a substantial raise 33 According to Nakayama the increase in the wages paid to Gould and the secre tary were more than offset by the elimination of Cald well s salary Nakayama also asserted Respondent saved $3000 on its electrical bill by laying off the employees 1 day a week during April He acknowledged however, that Respondent began receiving two loads of raw prod 33 Both Rouse and Leonard were chief operators 33 In addition Nakayama acknowledged that Respondent loaned two Japanese employees funds with which to purchase automobiles He stated these were loans that were to be repaid from the employees salaries over a period of 4 to 5 years ALPHA BIOCHEMICAL CORP uct a day in April and was producing substantially more tonnage of product Unlike the procedure followed during the 1 day a week layoff in 1984, Nakayama did not notify the Union about the current layoff Nor were any arrangements made by Respondent for the employ ees to participate in the State s shared work program Stewart testified he asked Gould if the employees were going to be in the shared work program and Gould replied that it was no longer available On April 13, the first day he was laid off Stewart inquired at the Unem ployment Compensation Office and was informed that the shared work program was still in existence He re ported his findings to Gould when he returned to work the following day, but Gould failed to respond or to take any action on the information The employees then de cided to have Diaz mention the program directly to Na kayama After being approached by Diaz, Nakayama had his secretary prepare the forms and send them to the Union to permit the employees to be compensated for the day that they were to be off each week 34 The record indicates, however, that the employees did not participate in the shared work program because they were only laid off on two Mondays, i e, April 13 and 20 2 The boiler inspection on April 13 As noted, it was part of Hudlow s duties as the mainte trance mechanic to participate in all inspections of Re spondent s equipment conducted by state and Federal agencies On April 13, the first Monday the employees were laid off, a boiler inspection was conducted by a state agency Contrary to past practice, Gould scheduled employees Leonard and Rouse to work with the inspec tors Hudlow was laid off that day with the rest of the production employees According to Gould, after he became a plant superin tendent he changed the procedures so that all the em ployees in the plant could participate in the agency in spections Gould asserted this was the reason he sched uled the two chief operators to handle the boiler inspec tion on April 13 rather than Hudlow The testimony of Hudlow and Rouse on the other hand, indicates that Hudlow was the only employee who ever had the re sponsibility for handling the governmental inspections and, further Rouse was the only other employee who occasionally assisted him in these duties as 3 The discharge of Hudlow On April 15, Hudlow was called into Nakayama s office near the end of his shift to a meeting with Na kayama and Gould Hudlow was given a typed copy of a ` verbal warning to read This warning stated Hudlow had (1) slowed down his productivity, (2) extended his breaks and spent unnecessary time talking to other em ployees, (3) displayed a negative attitude, and (4) indicat 34 Nakayama testified he had forgotten about the program at the time he first imposed the I day layoffs 35 Hudlow s testimony is unrefuted that the packing in the recirculat ing pump was not properly put in when it was reassembled after the in spection and it leaked when the boiler was put into operation the next day Because of the continuous nature of Respondents operation the pump could not be reassembled properly until the boiler was down and cool on the following Monday 761 ed in February and March that he intended leaving Re spondent s employ, but had continued to remain there The warning gave Hudlow 30 days to improve his job performance or be subjected to disciplinary action, in cluding discharge (See G C Exh 10) Hudlow testified he briefly scanned the document and then put it in the pocket of his coveralls He told Na kayama and Gould that he would not discuss the matter with them without representation 36 He stated that as he attempted to go out of the office door Gould shut the door and blocked his way Nakayama demanded that Hudlow return the copy of the warning According to Hudlow, when he refused to give the document to Na kayama, the latter grabbed his arm and attempted to take the warning Hudlow stated the warning went through a slit in his coveralls and down his pants leg He testified that Nakayama then shoved him onto a couch and at tempted to extract the document by reaching up the leg of his coveralls Hudlow further stated that as he and Nakayama struggled, pieces of the document were torn off At this point, according to Hudlow Nakayama then directed Gould to call the police and Hudlow agreed that the police should be called The struggle continued and additional pieces of the document were torn off Hudlow stated Gould then said, `Give me the letter the warning , or you re fired " Hudlow then said if he were fired to let him out of the office and Gould replied, No, not without that letter Hudlow then tore the remaining portions of the warning into pieces and threw them onto Nakayama s desk 37 He then left the office Hudlow fur ther testified he decided to return to Nakayama s office where he found Gould sitting alone using the telephone According to Hudlow, he told Gould that he Hudlow was sorry about the whole mess" He further said to Gould, I've worked hard with you and this is the kind of crap you re pulling on me ' Gould did not respond in any manner to his statements and Hudlow left the office and returned to the plant lunchroom Gould subsequent ly came into the lunchroom and Hudlow asked if Gould were serious about firing him and if he had written up Hudlow s release (termination papers) Gould replied that he had not and Hudlow went back to the shop 38 After his shift was over, Hudlow went to the offices of the Union and informed Union Representative Cramer of the incident that occurred at the plant Cramer advised him to return to work the following morning as if noth ing had occurred because he had not been given his ter mination papers by Respondent Although Gould and Nakayama acknowledged that a struggle with Hudlow occurred in Nakayama s office on April 15, their version of this incident is different from that of Hudlow According to Gould, since his meeting with Hudlow in February, the employees job perform ance had not improved in any measure Gould testified 38 Hudlow s testimony indicates he used the expression representa Lion and he did not say union representation 37 Hudlow s testimony that additional copies of the warning were on Nakayama s desk prior to the struggle is unrefuted 38 Hudlow testified he feared leaving the plant without a release be cause of the possibility that management would later accuse him of leav ing work early without permission 762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that management made a decision on April 13 to issue a verbal warning to Hudlow to make certain that ne knew what was required of him Gould admitted on cross ex animation, however, that he and Nakayama met with Re spondent's attorney on April 6 Gould s handwritten cryptic notes, taken during this meeting, were introduced into evidence by the General Counsel These notes re vealed that much of what was contained in the warning subsequently given to Hudlow was discussed at this meeting on April 6, including an indication of required improvement of the asserted deficiencies in 30 days (See G C Exh 12) According to Gould, management had no intention to fire, suspend, or to discipline Hudlow at the time he was given the warning at the meeting on August 15 Gould stated that when Hudlow was handed the warning he glanced at it and threw it on Nakayama's desk and the document fell to the floor Gould further stated that Hudlow said he Hudlow was not taking any more of Gould's crap Gould denied that Hudlow said he would not discuss the warning without union representa tion He testified that Hudlow asked for a copy of the warning and Gould replied he could not have it if he did not read the document Hudlow then put the warning in his pocket, according to Gould, and headed for the door Gould acknowledged he blocked Hudlow s way and grabbed the employees arm in order to reach for the document Gould admitted that they were pushing and shoving each other Gould stated that Nakayama never pushed Hudlow nor did he attempt to reach into Hud low s pocket According to Gould, Nakayama went to the telephone and said he intended to call the police and Hudlow urged him to do so Gould further testified that Hudlow then took the warning and tore it up into pieces and threw it on Nakayama s desk Gould admitted that Hudlow asked if he were fired and Gould responded that he was Hudlow then walked out and went to the lunch room and claimed that he had been shoved around by Gould In the lunchroom, according to Gould, Hudlow demanded a termination letter and Gould responded that he was not prepared to give such a letter Nakayama was also present and cautioned Gould not to respond to Hudlow As in the case of Gould, Nakayama testified the deci sion to give a warning to Hudlow about his job perform ance was made 2 or 3 days before the actual meeting took place on April 15 Nakayama s testimony was simi lar to that of Gould in that he stated when Hudlow was given the warning in the office employee threw it to the floor According to Nakayama, Hudlow told Gould that he would not accept any shit from Gould 39 Na kayama stated that when he tried to retrieve the warning notice from the floor Hudlow grabbed it and put it in the pocket of his coveralls He further stated that he asked Hudlow to return the document because it was the ongi nal and told the employee he would give him a copy 40 36 In his testimony Nakayama indicated that he was shocked but did not indicate whether he was shocked by Hudlow s reaction or by the Ian guage used by Hudlow The unrefuted testimony however indicates that profane language was commonly used in the plant by all including Na kayama 40 On cross examination Nakayama admitted he had copies of the warning notice but wanted to retain the original because it had Hudlow s Nakayama testified that Hudlow refused to give him the document and turned to go through the office door He acknowledged that Gould blocked the door and that Hudlow and Gould shoved each other According to Nakayama, he insisted that Hudlow return the document because it was `company property and he threatened to call the police Nakayama denied that he pushed or shoved Hudlow during the struggle or that he reached up Hudlow s coverall leg to retrieve the warning He also denied that Hudlow asked for a union representative to be present during the meeting Nakayama acknowl edged that Hudlow asked Gould if he were fired and Gould told the employee that he was 41 On April 16 Hudlow returned to the plant at the be ginning of his shift and went through the lunchroom, where Gould and Nakayama were sitting at Gould s desk Hudlow testified he went directly to his locker to begin changing into his coveralls He stated that Gould and Nakayama came up behind him while he was in the locker room area Gould bent over and told him to leave the plant and return at 11 a m on Tuesday of the follow ing week for a meeting 42 Hudlow stated he backed out of the locker room into the lunchroom area and asked Gould in a loud voice to repeat his statement Sev eral employees were there at the time, including Diaz and Stewart According to Hudlow, he did this because of the incident that occurred in Nakayama s office the prior afternoon, and he wanted the other employees to hear Gould's instructions to him Hudlow testified Gould did not respond and Hudlow repeated his request Gould replied that Hudlow heard what he had said and asked the employee to leave the premises Hudlow stated he then said, It looks like I am getting a three day suspen sion Okay, fine You may end up paying me for it anyway '43 Gould and Nakayama testified that Gould told Hudlow in the locker room to leave the plant and report back on Monday of the following week at 11 a in Their testimony indicates this day was selected because the plant would not be in operation and they would have time for a meeting with Hudlow and Respondents attor ney They both stated Hudlow went into the lunchroom fingerprints on it He stated this would permit him to prove that Hudlow had received the warning Nakayama denied he was fearful that Hudlow would take the warning to the Union 41 On cross-examination Nakayama asserted that he did not under stand the word fired and after Hudlow left the office asked Gould what this term meant When Gould explained it meant termination of em ployment Nakayama when understood it Nakayama also testified that he was the only individual at the plant who could fire employees and Gould had no such authority He admitted however that during the meeting with Hudlow he did not state this to either Gould or Hudlow nor did he take any action to rescind Gould s discharge of Hudlow 42 Tuesday was April 21 43 At the heanng it was established that the first affidavit Hudlow gave to the Board indicated Gould told him to return on Tuesday April 20 at 11 am The affidavit also made further references to Tuesday as being April 20 when questioned by Respondents counsel Hudlow testi Pied his statement was taken by a Board agent at the Unions office When Hudlow mentioned Tuesday the Board agent asked others present what the calendar date was and the consensus was that the date was April 20 When it was subsequently discovered that the date in the first affidavit was incorrect Hudlow gave a second affidavit in which he iden tified Tuesday as being April 21 ALPHA BIOCHEMICAL CORP and asked Gould several times in a loud voice to repeat his instructions Each time according to Gould and Na kayama Gould told the employee to leave and return at 11 a in the following Monday Gould stated Hudlow left, saying he was going to have a couple of days off and Respondent was going to pay for it Nakayama testi feed he cautioned Gould not to respond any further to Hudlow in the lunchroom Stewart testified that when the incident occurred in the lunchroom he heard Gould tell Hudlow to go home and return at 11 am the following week He stated he did not hear Gould say a specific day Diaz, on the other hand, testified that Hudlow asked Gould three times in the lunchroom to repeat his instructions According to Diaz, Gould replied each time that Hudlow was to return at 11 a in on Monday 44 After Hudlow left Respondents plant he went to the Union s office and reported the events to Cramer The union representative advised Hudlow that he would have representation at the meeting with management on Tues day Cramer then hand delivered a letter to the plant and gave it to Gould The letter stated that Hudlow and Stewart were appointed the union stewards at the plant Further, that Stewart would serve alone in this capacity until Hudlow returned from his suspension (R Exh 1 )45 Cramer also made arrangements with Stewart to be present to represent Hudlow at the meeting with man agement on Tuesday morning Hudlow testified he and his family went fishing in Idaho over the weekend but returned on Sunday be cause his wife operated a day care center during the workweek He stated he assisted her at the center on Monday morning The plant employees had a meeting at the union office on Monday evening, April 20 Apparent ly during the course of the meeting, Hudlow remarked he had spent a couple of days fishing in Idaho Leonard, who attended the meeting, stated he thought Hudlow was scheduled to be at the plant that morning 46 Ac cording to Leonard, Hudlow replied What are they going to do pay [him] show up time?' When Hudlow arrived at the plant shortly before 11 a in on Tuesday he was met by Cramer outside of the plant Cramer advised Hudlow that if Stewart were unable to represent him at the meeting, Hudlow was to come outside and get Cramer to come in as his repre sentative Following his conversation with Cramer, Hudlow went into the plant and was met by Gould who 44 Diaz Respondents initial witness had completed his testimony without making any reference to the events that occurred in the lunch room on April 16 He was excused and remained in the area where the other witnesses including Gould were sequestered prior to testifying After putting on several other witnesses Respondents counsel requested permission to recall Diaz He was admonished about this practice but was permitted to do so It was then that Diaz was questioned about the events in the lunchroom During cross-examination on this matter Diaz admit ted that Gould had reminded him on several occasions that Hudlow had been instructed to return to the plant on Monday April 20 45 Nakayama testified he was not aware that Hudlow was a supporter of the Union until he received the letter from Cramer on April 16 46 Leonard s testimony on this point is confusing as he placed that Monday April 20 as the date the boiler inspection occurred at the plant The testimony does not disclose whether Leonard was also working at the plant on April 20 but it is clear that the other production employees were laid off on that date 763 informed Hudlow he was terminated Gould stated Hudlow was scheduled to meet with management the day before at 11 a in and failed to attend Therefore Re spondent was discharging him He gave Hudlow a letter of discharge which stated that Hudlow had been terms nated by Respondent on April 15 as a result of his ac tions when given the warning The letter further indicat ed that a meeting was scheduled for Monday, April 20 at 11 a in to permit Hudlow to offer an explanation for his conduct Because Hudlow failed to appear at the meet ing, the letter stated Respondent was upholding his dis charge (See G C Exh 9) Concluding Findings The General Counsel contends Respondent s manage ment unlawfully interrogated employees Hudlow and Rouse about their and other employees union activities As the record demonstrates there is considerable conflict in the testimony regarding these and other events alleged to be unlawful in this matter Having closely observed all the witnesses, I am persuaded that the testimony of Rouse and Hudlow is the more reliable and trustworthy concerning the events they witnessed or were involved in rather than the accounts given by Gould and Na kayama In so doing, I am not unmindful of Hudlow s tendency to frequently embellish his statements during his testimony, or his citing an inaccurate date as the time of his meeting with Gould and Nakayama in February Overall, however I find Hudlow s testimony to be candid and forthright and to be a truthful account of the events about which he testified As to the testimony of Gould and Nakayama, I find that in some instances their statements conflicted with that of each other For exam ple Nakayama denied being aware that Hudlow was a union supporter until he received a letter from Cramer on April 16 designating the employee a steward Gould, on the other hand, admitted on cross examination that there was a meeting between Nakayama Hudlow, and himself in which Hudlow mentioned employee support in the plant for the Union In addition, I find that both Nakayama and Gould exhibited a tendency to fabricate events out of whole cloth-such as Hudlow informing management he was leaving in 14 days-in order to cast their conduct in a more favorable light Accordingly I do not credit the testimony of Nakayama and Gould unless supported by other credited testimony or objec tive evidence in the record Turning to the complaint allegations, the record fully establishes that during the latter part of February and early March, Rouse and Gould engaged in several con versations during which they discussed the matter of unionization at the plant On occasion, these conversa tions were initiated by the employee and on others by Gould Rouse credibly testified that during one such conversation, Gould asked him how he intended to vote and he responded that he did not know Considering the totality of the circumstances in which this conversation occurred, I find Gould s direct inquiry as to how Rouse 764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD intended to vote to be unlawful 47 While it is true the conversations about the Union occurred in the work place-as opposed to a managerial office-and were sometimes initiated by Rouse, there is nothing in the record that demonstrates that Rouse had openly identi feed himself as a union supporter Indeed, his response to Gould s direct question tends to indicate the employee was not prepared to reveal his sympathies, one way or the other, to management In addition, Rouse s testimony clearly establishes that he was aware of management s hostility toward the unionization of the employees This is evidenced by Rouse s testimony concerning Nakayama following Hudlow around the plant and warning Hudlow and Beckworth that they had better be discuss ing a work problem and not the Union Thus, in these circumstances, I find Gould s question as to how Rouse intended to vote served no legitimate purpose and was a blatant attempt to discover if the employee was a union supporter Accordingly, I find Gould's question reason ably tended to interfere with the employees free exercise of his rights and violated Section 8(a)(1) of the Act Southwire Co, 282 NLRB 916 (1987), Raytheon Co , 279 NLRB 245 (1986) Clark Equipment Co 278 NLRB 498, 502-503 (1986) Turning to the meeting Hudlow had with Gould and Nakayama in February, I find that this meeting also re suited in interrogation that violated the Act It is clear from the objective evidence in the record, and contrary to Hudlow s testimony, this meeting took place after the damage occurred to the screens Further, it was initiated at Hudlow's request to address that matter with manage ment When Hudlow stated the employees were working hard and being fair with Respondent, Gould protested and implied that seeking to unionize the plant was not fair It was then that Nakayama asked Hudlow how many employees signed union authorization cards When Hudlow stated nine employees did Nakayama disputed his figure and Hudlow insisted his knowledge was cor rect because he was the foremost to do so and was the spokesman for the employees In this context I find that Nakayama s efforts to determine the number of employ ees who were supporting the Union tended to be coer cive and interfered with their statutory rights Although Hudlow publicly announced himself to be the lead union adherent Nakayama's questions concerning the extent of the union support among the other employees served no purpose other than to gain knowledge of the extent of the union support in the plant This is true even though Nakayama did not seek to have Hudlow identify the other union supporters Accordingly, I find that by inter rogating Hudlow in his office about how many employ ees signed authorization cards Nakayama engaged in conduct that tended to coerce and interfere with the rights guaranteed the employees under Section 7 and violated Section 8(a)(1) of the Act Cf Link Mfg Co, 281 NLRB 294 (1986) I also find the record demonstrates the General Coun sel has presented a prima facie case establishing that the 47 See Rossmore House 269 NLRB 1176 (1984) enfd sub nom Hotel & Restaurant Employees Local 11 v NLRB 760 F 2d 1006 (9th Cir 1985) Sunnyvale Medical Clinic 277 NLRB 1217 (1985) layoffs of the production employees on April 13 and 20 were in retaliation for the employees voting in favor of union representation in the election Stewart's testimony is unrefuted that in February both Nakayama and Gould informed him Respondent would be receiving two ship ments of raw product a day instead of the usual one in April, and would begin operating at full production ca pacity Nakayama s testimony about the allocation of Re spondent's monthly costs for electrical power to the pro duction of each ton of finished product further substanti ates Stewart's testimony that Respondent was operating at full capacity in April Respondents power costs per ton of product dropped from $90 per ton in January and February to $50 per ton in April and May because of the substantial increase in the production tonnage In addition, the timing of the layoffs and the manner in which they were imposed belie Respondents claim that the layoffs were merely instituted as a cost saving meas ure It was only 2 days after the election that Nakayama came into the lunchroom and abruptly marked Mondays off on the monthly work schedules for April and May In prior periods of slow production Respondents em ployees were encouraged to voluntarily take 1 day off a week without pay Furthermore in 1984 when there was an involuntary layoff of 1 day a week Respondent en tered into the shared work program with the Union to enable the employees to receive compensation for the day they would be off each week None of these ar rangements, however, were offered to the employees by Respondent when the layoff was imposed immediately after the election 48 An additional factor which demonstrates the retahato ry motive for the layoffs is that Rouse and Leonard were permitted to work on the first Monday that the other employees were laid off These two individuals were the only employees who immediately after the election apologized to Nakayama for the election results and stated they voted against the Union In my judgment this serves to strengthen the inference that Respondent was intent on rewarding employees who were loyal and retaliating against the other employees This is especially true because Rouse and Leonard were called on to per form work on the layoff Monday which was customari ly performed by Hudlow during all prior state and Fed eral inspections Finally, the fact that the employees were laid off only for two consecutive Mondays, rather than all the Mondays designated by Nakayama, casts fur ther doubt of the validity of Respondents claim that the layoffs were for economic reasons The record demon strates Respondent began operating at full capacity in April, and the short period of the layoffs indicates that Respondent needed the employees to work a full work week to meet its production needs '8 1 attach no credence to Nakayama s claim that he forgot about the employees participating in the shared work program I find that Gould s inaction on the information supplied by Stewart regarding the continued existence of the shared work program more typified Respondents atti tude about the employees receiving compensation for their layoff days immediately after the election Nor does the fact that Nakayama subse quently began the process to qualify the employees for the program after Diaz spoke to him alter my finding in this regard ALPHA BIOCHEMICAL CORP 765 In sum, I find Respondent has failed to conclusively rebut the General Counsels prima facie case establishing that the employees were laid off on April 13 and 20 for unlawful reasons See Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982), approved in NLRB v Transportation Management Corp, 462 U S 393 (1983) I further find Respondents claim that the layoffs were for economic reasons is pretextual and not supported by a preponder ance of the credible evidence in the record The timing of the layoffs (2 days after the election), the departure from past practice in the manner by which the layoffs were effectuated, by permitting employees who an nounced they voted against the Union to work dunng the layoffs, and the imposition of the layoffs during a time of full production cause me to conclude that the layoffs were retaliatory and not for the reasons asserted by the Respondent See Keystone Lamp Mfg Corp, 284 NLRB 626 (1987) Burger King Corp 279 NLRB 227 (1986), Dr Frederick Davidowitz D D S, 277 NLRB 1046 (1985) Accordingly, I find Respondent laid off the em ployees on April 13 and 20 in retaliation for their having voted in favor of union representation and by so doing, Respondent has violated Section 8(3) and (1) of the Act Next, I find the Respondent unlawfully dicharged Hudlow oil. April 15 I discredit Gould s assertion that Hudlow performed his job poorly, extended his lunch or break periods, and was constantly talking to employees in the plant while working It is evident from the testi mony that the clash between Hudlow and Gould had been an ongoing situation over a period of 5 years, and that this was known not only by Caldwell but also by Nakayama I credit Caldwell s testimony that there was never any justification for Gould's complaints against Hudlow and the employee performed his work in a better than average fashion Furthermore, it is apparent from the record testimony that Nakayama attached virtu ally no importance to Gould s complaints about Hud low s job performance prior to the union activity Indeed, the record fully establishes that Nakayama and Hudlow enjoyed a relationship beyond the workplace and frequently socialized with each other and went on fishing trips together Once it became known however that Hudlow was the leading union adherent in the plant, Nakayama s attitude toward the employee abruptly changed Indicative of this change was the fact that after Hudlow announced his leading role in the unionization effort to Gould and Nakayama in the meeting in Nakaya ma's office Nakayama ceased responding to greetings from Hudlow and began following him around in the plant 49 The record establishes that Nakayama was fol lowing Hudlow around the plant to make certain the em ployee did not engage in any activities concerning the Union 49 I do not credit Nakayama s testimony in that he was unaware of Hudlow s role in the unionization effort until he received a letter from the Union appointing the employee as one of the stewards on April 16 As noted Gould admitted Hudlow talked about the union support in the plant dunng his discussion with Gould and Nakayama in February I also credit Caldwell s testimony that Gould stated Hudlow was the leader of the union movement among the employees during the drive to Connell Washington A further example of Nakayama s changed attitude toward Hudlow and his resentment of Hudlow's union activities was demonstrated during the meeting he held with the employees in mid March The purpose of this meeting was to discuss their complaints and the manner in which Gould was supervising their activities There, Nakayama not only refused to permit any discussion without Gould being present-although he previously agreed to hold the meeting without Gould being there- but also informed Hudlow he did not recognize Hudlow as the spokesperson for the employees In addition Hudlow who was among the unlawfully laid off employees in April The fact that Hudlow was laid off on April 13 clearly underscores the retaliatory motive underlying the purported need for the layoffs Hudlow was Respondents only maintenance mechanic and had always been the primary person to participate in the state and Federal inspections of Respondents equip ment 50 On the basis of the above, I find the record fully estab lishes that Respondent s management never gave any credence to Gould s complaints against Hudlow over a 5 year period, and did not find his job performance un satisfactory until management learned the employee was the leading union adherent in the plant Therefore, I fur ther find the evidence amply supports the inference that the written oral warning was issued to Hudlow in re taliation for his union activities and the Union s success in the election I also find the asserted job deficiencies al leged in the warning were pretextual They were nothing more than a recital of the same complaints expressed by Gould over the years and which management, until now, considered baseless Moreover, the decision to issue the warning to Hudlow was made within a week after the Union won the election, and this timing further under scores the pretextual nature of the complaints about Hudlow s job performance 51 In these circumstances, it is evident that the issuance of the warning to Hudlow on April 15 was for an unlaw ful purpose It is also evident that when the employee re fused to discuss the matters contained in the warning without representation and placed the document in his pocket, Gould provoked the ensuing physical struggle by blocking Hudlow s egress from the office, and by shov ing and grabbing the employee in an attempt to retrieve the copy It is clear from the testimony that Nakayama had other copies of the warning on his desk and no useful purpose was served by insisting that Hudlow return the copy given to him 52 Therefore I find that so I fully discredit Gould s claim that after he became plant supenn tendent in October of the prior year he began using other plant employ ees for the agency inspections The testimony reveals that Rouse was the only other person who on occasion was assigned to assist Hudlow in these duties and even then in a secondary capacity 51 Nakayama and Gould s testimony that the decision to issue the warning to Hudlow was made on April 12 or 13 when in fact the evi dence establishes it was made dunng a meeting with Respondents attor ney April 6 further serves to emphasize the unreliability of the testimony of Nakayama and Gould 52 I find Nakayama s claim to be specious that he needed the original copy because it contained Hudlow s fingerprints and would prove the employee had seen the document '66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Gould's firing of Hudlow, after the struggle initiated by Gould, was a disproportionate response to Hudlow s re fusal to return the copy of the warning to Nakayama It also demonstrates the lengths to which Respondent's management was prepared to go to rid itself of the lead ing union adherent in the plants s Although Respondent asserts that Hudlow was not, and did not consider himself, discharged on April 15, the record does not support this contention When Hudlow returned to work the following morning, he was ordered by Gould to leave the premises and return at 11 a in the following Tuesday 54 It is clear that the meeting sched uled for the following week was to permit management to determine whether it would rescind the discharge, which was already in effect, and not for the purpose of deciding whether Hudlow's employment should be ter minated in the first instance Respondents efforts to es tablish Monday, April 20, as the date the meeting was to be held and its upholding of the prior discharge when Hudlow appeared on Tuesday for the meeting, further serve to demonstrate Respondent s willingness to seize on events, unlawfully initiated by it, to rid itself of the employee responsible for the unionization of the plant Accordingly, I find that Respondent discharged Hudlow on April 15, 1987, for discriminatory reasons in violation of Section 8(a)(3) and (1) of the Act BASF Wyandotte Corp, 278 NLRB 173 (1986), Dr Frederick Davidowitz, supra Finally, I find Respondent also violated Section 8(a)(5) of the Act by failing to notify and, on request, bargain with the Union about the scheduled layoffs that were im posed after the election The Board in a very recent case has held that an employers decision to lay off employees for economic reasons is a mandatory subject of bargain ing and the employer must provide notice to and bar gain with the union concerning the layoff decision as well as effects of that decision See Lapeer Foundry Ma chine, 289 NLRB 952 (1988) Thus even if Respondent s asserted economic justification for the April layoffs were valid-rather than pretextual as I have found-it is clear Respondent was obligated to first notify the Union and afford an opportunity to timely bargain about the layoff decision and the effects of that decision on the unit em ployees Since as the record clearly establishes that Re spondent failed to meet this obligation in any manner, it is axiomatic that Respondent violated Section 8(a)(5) and (1) of the Act Ss sa Contrary to the contention of the General Counsel I do not deem it necessary to determine whether during the meeting Hudlow invoked his rights under the holding in NLRB v J Weingarten 420 U S 251 (1975) The complaint does not allege a Weingarten violation and a resolution of this issue is not necessary to this decision 54I do not credit the testimony of either Gould or Nakayama that Hudlow was told to return the following Monday Nor do I credit the testimony of Diaz on this point The circumstances in which Diaz was recalled to testify about the date casts serious doubts about the reliability of his testimony ss I reject Respondents claim that the Union waived its right to bar gain about the layoffs as being totally without merit CONCLUSIONS OF LAW 1 The Respondent, Alpha Biochemical Corporation, is an employer within the meaning of Section 2(2), (6), and (7) of the Act 2 Local Union 1-369, Oil, Chemical and Atomic Workers International Union, affiliated with Oil, Chemi cal and Atomic Workers International Union, AFL-CIO is a labor organization within the meaning of Section 2(5) 3 The above named Union is the exclusive collective bargaining representative of the employees in the follow mg appropriate unit All operators, chief operators, sanitation workers, maintenance, shipping and receiving employees and laboratory technicians employed by Alpha Bio chemical Corporation at its Richland, Washington facility, excluding all office clerical employees, guards and supervisors as defined in the Act 4 By unlawfully interrogating employees about their union sentiments and desires and the union sentiments and desires of other employees Respondent violated Section 8(a)(1) of the Act 5 By unlawfully laying off employees on April 13 and 20, 1987, in retaliation for engaging in union and other protected concerted activities, Respondent violated Sec tion 8(a)(3) and (1) of the Act 6 By unlawfully issuing a disciplinary warning and subsequently discharging an employee for engaging in union and other protected concerted activities, Respond ent violated Section 8(a)(3) and (1) of the Act 7 By laying off employees without first notifying and affording the Union an opportunity, on timely request to bargain about the decision to lay off and the effects of that decision, Respondent violated Section 8(a)(5) and (1) of the Act 8 The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in unfair labor practices violating Section 8(a)(1), (3) and (5) of the Act it shall be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act 56 Having further found Respondent unlawfully laid off employees on April 13 and 20, 1987, it shall be ordered it to make these employees whole for any loss of earnings and other benefits they may have suffered as a result of the discrimination against them Having also found that Respondent unlawfully issued a disciplinary warning to Robert Hudlow on April 15 and also unlawfully dis charged Hudlow on that date, Respondent shall be or se The General Counsel s brief includes a request for a visitatorial clause authorizing the Board for compliance purposes to obtain discov ery from Respondent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing this Order Under the guidelines set out by the Board in Cherokee Marine Ter minal 287 NLRB 1080 (1988) I find it unnecessary to include such a clause Therefore the request is denied ALPHA BIOCHEMICAL CORP dered to offer this employee immediate and full reinstate ment to his former position or, if that job no longer exists, to a substantially equivalent position, without prej udice to his seniority or other rights and privileges Re spondent shall also make whole Robert Hudlow for any loss of earnings and other benefits he may have suffered as a result of the discrimination against him In addition, Respondent shall expunge from his records all docu ments relating to the unlawful disciplinary warning issued to him on April 15 and notify the employee, in writing, that this has been done All backpay shall be computed in the manner set forth in F W Woolworth Co, 90 NLRB 289 (1950), with interest thereon comput ed in the manner prescribed in New Horizons for the Re tarded, 283 NLRB 1173 (1987) 54 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed58 ORDER The Respondent, Alpha Biochemical Corporation, Richland, Washington, its officers, agents, successors, and assigns, shall 1 Cease and desist trom (a) Laying off employees in retaliation for their engag ing in union and other protected concerted activities (b) Unlawfully interrogating employees about their union sentiments or the union sentiments of other em ployees (c) Unlawfully issuing warnings to and discharging employees for engaging in union and other protected concerted activities (d) Laying off employees without first notifying and affording the Union, as their collective bargaining repre sentative, an opportunity, on timely request, to bargain about the decision to lay off and the effects of that deci ston (e) In any like or related manner interfering with, re straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action designed to of fectuate the policies of the Act (a) Make whole the employees who were unlawfully laid off on April 13 and 20 1987, in the manner set forth in the remedy section of this decision for any loss of earnings and other benefits they may have suffered as a result of the discrimination against them (b) Offer Robert Hudlow immediate and full reinstate ment to his former job or, if that position no longer exists, to a substantially equivalent job without prejudice to his seniority or other rights and privileges previously enjoyed In addition, make Hudlow whole, in the manner set forth in the remedy section set forth in this decision for any loss of earnings and other benefits he may have suffered by reason of the discrimination against him Fur ther, expunge all documents relating to his unlawful dis 64 See generally Isis Plumbing Co 138 NLRB 716 (1962) sa 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 767 charge and the unlawful disciplinary warning given to him on April 15, 1987, and notify the employee, in writ ing, that this has been done and evidence of the unlawful warning and discharge will not be used as a basis for future personnel action against him (c) Notify the above named Union of any decision to lay off unit employees and, on timely request, bargain with the Union in good faith regarding the decision to lay off employees and the effects of that decision (d) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and compliance with the terms of this Order (e) Post at its Richland, Washington facility copies of the attached notice marked `Appendix 1159 Copies of said notice, on forms provided by the Regional Director for Region 19, after being signed by Respondents authorized representatives, shall be posted by Respondent immedi ately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places, in cluding all places where notices to employees are cus tomanly posted Reasonable steps shall be taken by Re spondent to ensure that said notices are not altered, de faced, or covered by any other material (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply 69 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 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 or dered 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 representatives of their own choice To act together for other mutual aid or protec tion To choose not to engage in any of these protect ed concerted activities WE WILL NOT unlawfully interrogate our employees about their union sentiments or the union sentiments of other employees 768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT unlawfully lay off employees in retalia tion for their engaging in union or other protected con certed activities WE WILL NOT unlawfully issue disciplinary warnings to employees or discharge employees for engaging in union and other protected concerted activities WE WILL NOT lay off employees without first notify ing and affording the Union , as their collective bargain ing representative, an opportunity to bargain , on timely request about the decision to lay off and the effects of that decision WE WILL NOT in any like manner interfere with, re strain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the National Labor Re lations Act WE WILL make our employees whole for any loss of earnings or other benefits they may have suffered as a result of the unlawful layoffs on April 13 and 20 1987 WE WILL offer full reinstatement to Robert Hudlow to his former job or, if that position no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges, and WE WILL make him whole for any loss of earnings or other bene fits with interest he may have suffered because of our discrimination against him WE WILL expunge from our files and records all refer ences to the disciplinary warning and the discharge of Robert Hudlow on April 15, 1987, and WE WILL notify this employee, in writing that this has been done and that the evidence of these unlawful actions will not be used in any manner as a basis for future personnel action against him WE WILL notify the Union of any decision to lay off employees and afford the Union an opportunity, on timely request, to bargain about the decision to lay off and the effects of that decision on our employees in the following appropriate bargaining unit All operators chief operators, sanitation workers, maintenance, shipping and receiving employees and laboratory technicians employed by Alpha Bio chemical Corporation at its Richland Washington facility, excluding all office clerical employees, guards and supervisors as defined in the Act ALPHA BIOCHEMICAL CORPORATION