Paramount Poultry

PARAMOUNT POULTRY Cargill, Incorporated, d/h/a Paramount Poultry and Teamsters Local Union No. 769, affiliated with International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, AFL-CIO. Cases 12-CA-10452, 12-CA-10564, 12-CA-10571, and 12-CA-10595 June 12, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND DEVANEY On January 9, 1984, Administrative Law Judge Robert A. Gritta issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-exceptions and a brief in support and an answering brief. Thereafter, the General Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions2 only to the extent consistent with this Decision and Order. 1. The judge found, and we agree, that the Re- spondent violated Section 8(a)(5) and (1) by with- drawing recognition from the Union. Contrary to the judge, however, we find that the withdrawal of recognition occurred on November 9, 1982,3 when the Respondent refused the Union's request to bar- gain. The Union and the Respondent held their last bargaining session on October 21, and the Re- spondent was to contact the Union to arrange a date for the next session. On October 22 employee Billy Hudson gave copies of a petition4 to decerti- fy the Union to Branch Manager James Dygert. Dygert telephoned the Respondent's senior indus- trial relations department attorney Felix Ricco i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 No exceptions were filed to the judge's dismissal of the allegations that the Respondent unlawfully threatened to discharge employees 2 Except where otherwise indicated, all dates refer to 1982 The judge found that the Respondent's withdrawal of recognition did not occur until a later date on which the Respondent expressly withdrew recogni- tion from the Union 4 For the reasons stated by the judge, we affirm his findings that the petition, which was signed by 10 of the 14 unit employees, was unlawful- ly facilitated by the Respondent and further tainted by the Respondent's unlawful interrogations about the petition, promises of benefits if every- one signed the petition, and threats of closure if the Union was not decer- tified 867 about the petition the following week and mailed him a copy of it, which Ricco received on Novem- ber 1. Thereafter, in early November, Union Busi- ness Representative Stanley Lichtman twice tele- phoned Ricco to request a date to resume bargain- ing and inquired whether it was true that employ- ees had circulated a petition. On these occasions, Ricco refused to set a date for bargaining because his superior was out of town and he denied any knowledge of the petition. On November 9, Ricco telephoned Lichtman and informed him that the Respondent would not negotiate with the Union until the matter of the petition was settled with the Board. On December 12 Lichtman again requested that the Respondent meet to continue negotiations for a contract, and on January 5, 1983, the Re- spondent notified the Union in writing that "[b]ased on . . . objective evidence the Company presently refuses to negotiate with your organiza- tion." The totality of the Respondent's conduct per- suades us that the November 9 refusal to bargain was effectively a withdrawal of recognition. First, both of the Respondent's refusals of the Union's re- quests to resume bargaining were based on the peti- tion. Significantly, despite the Respondent's earlier assertion that it was awaiting resolution of the em- ployees' petition, no such resolution occurred be- tween the time of the initial refusal and the Re- spondent's January 5 communication.5 Further, it is apparent from Branch Manager Dygert's threat to employee Johnson, communicated by early No- vember, that the plant would close if the Union "came back into, the picture," that in the Respond- ent's view, the Union no longer retained its status as the representative of the unit employees. There- fore it is clear that the Respondent's course of con- duct from November 9 to January did not material- ly change. The only difference in the Respondent's treatment of the Union lies in the labels it chose to apply to its conduct. Accordingly, we find that the Respondent unlawfully withdrew recognition from the Union on November 9, as alleged by the Gen- eral Counsel. 2. We also disagree with the judge's finding that the Respondent did not unlawfully unilaterally change its holiday pay policy and vacation practice in December. The parties stipulated that the Re- spondent refused to provide employees Williams, Hudson, and Lorenzo Marshall holiday pay for 5 We note that although the Respondent filed a petition for an election based on the employees' petition on November 12, that petition was dis- missed by the Regional Director on February 2, 1983, nearly a month after the January communication Furthermore, even the filing of the election petition did not entitle the Respondent to engage in the conduct in issue here 294 NLRB No. 74 868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Christmas 1982 and New Year's 1983 based on a rule that an employee must work the scheduled workday immediately before and after a holiday in order to receive holiday pay. The three employees had not worked the Mondays following these holi- days, both of which fell on the weekend. The Gen- eral Counsel asserts that no such rule previously existed and that the Respondent's established past practice was that when holidays fell on a weekend the employees would receive the following Monday off and be paid for the holiday. The judge found that the record did not demonstrate with suf- ficient certainty that the latter was the Respond- ent's established past practice so as to permit a fording that the Respondent had changed its prac- tice. Williams testified that the Respondent's practice since his hire in 1973 was that when major holidays (including the Fourth of July, Christmas, and New Year's) fell on a weekend, the employees would be off the following Monday and receive holiday pay.6 Hudson and employee Ted Evans also testi- fied that this had been the Respondent's practice since their employment. Indeed, only one employee initially reported for work on the Monday morning following Christmas Day 1982.' The Respondent's own representatives apparent- ly shared the employees' understanding of the practice. Williams testified that when he confront- ed Branch Manager James Dygert over not receiv- ing holiday pay for Christmas 1982, Dygert did not defend the Respondent's refusal to pay him based on established practice. Instead, Dygert sought to explain that the Union had recently agreed in nego- tiations that employees must work the Monday fol- lowing a (weekend) holiday in order to receive holiday pay. He then showed Williams a copy of a union proposal on holiday benefits to support his assertion.8 The entire conversation was overheard by Evans, who corroborated Williams' testimony. Williams further testified that later that same day he spoke with Supervisor Ike Washington about not being paid. Williams reminded Washington of an earlier conversation they had in which Wash- ington told him that Dygert would not require him to work the Monday following Christmas in order B Williams did testify that in circumstances where the Respondent needed to make a special delivery on the Monday following a holiday, the Respondent would call in a driver to make the run 7 Others reported for work that Monday after being contacted (at the request of the Respondent) that morning Employees who worked that day were paid for the holiday and for the workday We note that the judge did not discredit any of the employees' testimony on this matter 8 The Respondent and the Union had been engaged in negotiations for an initial collective-bargaining agreement since April 1981 They had es- tablished as a ground rule for negotiations that no agreed-on terms would be implemented until a final contract was reached The Respondent does not contend that it reached a final, binding agreement with the Union at the time of the events in issue to receive holiday pay. Washington replied, "Yes that's what Jimmy [Dygert] said, but he must have changed his mind, evidently he changed his mind." Washington did not testify.9 On the basis of the foregoing, we conclude that the Respondent's es- tablished past practice was that when major holi- days fell on a weekend the employees would re- ceive the following Monday off and get paid for the holiday. Accordingly, by changing its practice, without notice to the Union, to require employees to work the scheduled workday immediately before and after a holiday in order to receive holi- day pay, the Respondent violated Section 8(a)(5) and (1) of the Act. With respect to vacation practice, the record es- tablishes that on December 15, the Respondent posted a memo signed by Supervisor Washington, stating that no employees would be permitted to take their vacations during the months of Novem- ber and December in the next year (1983). Accord- ing to Dygert, the Respondent never allowed vaca- tions during heavy production months, and Decem- ber was such a month. Later, the memo was al- tered to state that employees could not take vaca- tions in January 1983, and in fact no vacations were permitted until the end of March 1983. Em- ployees Williams and Evans testified that they were not aware of anyone's being denied a vaca- tion based on the level of production or the time of year. Significantly, the employees and Dygert testi- fied that the Respondent had not before posted a notice restricting vacations. Contrary to the pur- ported policy, and in what was a peak period if Dygert's testimony is accurate, employee James Spears was permitted to take 3 weeks' vacation in December. , - We ford that the Respondent did not previously have a restrictive vacation policy and that, in adopting one, it acted unilaterally and unlawfully in disregard of its obligation to notify and bargain with the Union. As with the Respondent's asserted practice of requiring employees to work the Friday before, and the Monday after, a weekend holiday in order to be paid for the holiday, the employees clearly were unaware of any restrictive vacation policy. The employees who testified knew of no in- stance in which an employee had been denied a va- cation because of the production level. Their lack of knowledge is as indicative of the nonexistence of the purported policy as their ,failure to report for work the Monday after Christmas is of the nonexis- 9 The Respondent's failure to call Washington permits us to draw an inference that his testimony would have been adverse to the Respondent had he testified International Automated Machines, 285 NLRB 1122 (1987), Maxwell's Plum , 256 NLRB 211, 213 fn. 9 (1981), NLRB v Trans- portation Consultants, 607 F 2d 290, 296 (9th Cir. 1979) PARAMOUNT POULTRY tence theretofore of the asserted holiday pay policy. It is also noteworthy that no such policy had been posted before by the Respondent. Fur- thermore, the contention that the December 15 memo evidenced an established policy of prohibit- ing vacations in peak production periods is belied by the fact that it referred to months nearly a year away-., months in which, given the Respondent's fi- nancial problems, the level of production was hardly predictable. Allowing- Spears to take 3 weeks vacation in December 1982 is also inconsist- ent with the Respondent's claim. In any event, the Respondent's extension of the vacation ban through March 1983 could not have reflected increased production demand, given that the Respondent in January 1983 had reduced the drivers ' workweek and laid off half of its work force at the end of February 1983 as set forth in the judge's decision. Accordingly, we conclude that the Respondent violated Section 8(a)(5) and (1) by implementing a new vacation policy without notifying and bargain- ing with the Union. 3. We agree with the judge that the Respond- ent's reduction of the workweek from 5 days to 4 days and its layoff of half of its unit employees vio- lated Section 8(a)(5) and (1). However, regarding the layoff, we do not agree with him that the viola- tion stems merely from the Respondent 's failure to bargain over the "terms and substance" of the layoff or that the Respondent should be required to offer the employees reinstatement and give them full backpay. It is undisputed that in January 1983 the Re- spondent made a decision-not alleged by the Gen- eral Counsel to be subject to mandatory bargain- ing-to reduce its product line by selling only chicken products 1 ° and to drop certain customers. The parties stipulated that from February 3 to 25, 1983, the Respondent reduced the drivers' work- week, and on February 25, 1983 , laid off 7 of 14 unit employees . The Respondent did not notify the Union or afford the Union an opportunity to bar- gain about either of these matters. The General Counsel asserts that the Respondent was required to engage in effects bargaining con- cerning the layoff, i.e., to bargain over the effects of its decision to curtail business . The Respondent asserts that it had no duty to bargain whatsoever because the Union had lost its majority status as evidenced by the employee petition . We find that the decisions to reduce the workweek and to lay off employees were bargainable as effects of the de- cision to terminate part of its product line and cus- 10 The Respondent thereby eliminated beef and turkey products from its distribution system 869 tomer base and, accordingly, were themselves man- datory subjects of bargaining. In Litton Business Systems, 286 NLRB 817 (1987), the Board held that an employer 's decision- to lay off employees was an effect of a decision to transfer certain work and convert operations . Although the conversion decision was not alleged to be a manda- tory subject of bargaining , the Board in essence found that the decision to lay off employees was a mandatory subject. Supra at 820. The Board noted that the layoffs were not an inevitable consequence of the conversion and that the division in which the layoffs occurred remained a viable operation. As the layoffs were an effect of a decision relating to the scope and direction of business , the Board concluded that the appropriate remedy was a limit- ed backpay remedy.1' In the instant case , the decision to reduce the workweek and the layoff decision were effects of the decision concerning -the Respondent's product line and the Respondent was therefore required to give notice and allow the Union an opportunity to bargain ,over them, e.g., to bargain over the various ways by which this curtailment of the scope of the Respondent's operations might affect the work force. Litton Business Systems, supra at 820 fn. 8.12 The Respondent failed to do so. We therefore con- clude that the Respondent violated the Act by fail- ing to bargain over its decision to reduce the work- week and to lay off employees as effects of the conversion decision. Similarly, in this connection, we find that the Respondent further violated Section 8 (a)(5) and (1) of the Act by unilaterally changing the job classifi- cation and hours of employee Marchman Holmes after it instituted the layoffs . The record establishes that prior to the layoffs, Holmes was employed as a driver. As a result of the layoffs, although he was retained, he was made a warehouseman and as- signed to the night shift.13 The Respondent does 11 See Transmarine Navigation Corp, 170 NLRB 389 (1968) 12 As the Board noted in Litton, bargaining over the decision to lay off employees could include, among other things , selection of employees for layoff and alternatives to layoff In the instant case, the Respondent uni- laterally relied on continuous length of service for selection and required employees to sign an agreement opting either for termination with sever- ance and vacation pay or for layoff without severance and benefit pay- ments, the payments to be forfeited if the employees were not recalled within a 6-month period 13 Williams, the seventh employee selected for layoff, testified uncon- trovertedly that in a dispute over his seniority date, Dygert told him that if his (Williams') seniority date was what he believed it to be and not what Dygert had calculated, Holmes would have been laid off instead of Williams and Evans would have been reclassified from driver to ware- houseman and assigned to work nights We agree with the judge's findings that Williams was not discrimina- torily laid off in violation of Sec 8(a)(3) of the Act 870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD not dispute that it failed to confer with the Union concerning Holmes' reclassification to warehouse- man and reassignment to the night shift. Therefore, we find that the Respondent violated the Act, as alleged, by this conduct as well. AMENDED CONCLUSIONS OF LAW 1. Substitute the following for Conclusion of Law 3. "3. By withdrawing recognition from the Union about November 9, 1982, and by failing and refus- ing to notify and bargain with the Union concern- ing changes in the holiday pay policy and vacation practice, its decisions to reduce the workweek and lay off employees, and the change in employees' hours and classifications, the Respondent has en- gaged in unlawful refusals to bargain in violation of Sections 8(a)(5) and (1) of the Act." 2. Insert the following as Conclusion of Law 4 and renumber the remaining conclusions. "4. By failing and refusing to pay employees Dennis Williams, Billy Hudson, and Lorenzo Mar- shall holiday pay for Christmas 1982 and New Year's 1983 as a result of its unlawful change in holiday pay policy, the Respondent has violated Section 8(a)(5) and (1) of the Act." REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unilaterally changed its holiday pay policy and vacation prac- tice, we shall order that it cease and desist from giving effect to the changes and, on request, bar- gain with the Union about each of these subjects, and pay to employees Dennis Williams, Billy Hudson, and Lorenzo Marshall the holiday pay due them for Christmas 1982 and New Year's 1983, with interest as prescribed *in New Horizons for the Retarded, 283 NLRB 1173 (1987).14 Having found that the Respondent's unlawful re- duction of the workweek, layoff of unit employees, and reclassification and reassignment of employees were bargainable as effects of its lawful decision to curtail operations, we shall modify the judge's rec- ommended Order to delete the full status quo remedy.15 Rather, we shall order bargaining about 1' Interest on and after January 1, 1987, shall be computed at the "short-term Federal'rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C. § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U S C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 15 Litton, supra the lawful decision's effects, i.e., the reduction of the workweek, the layoff of seven employees, and the attendant reclassification and change in hours of another employee, if requested by the Union, and we shall order a limited backpay remedy anal- ogous to that required in Transmarine Navigation Corp., supra. The purpose of the limited backpay remedy is to provide a situation in which the par- ties' bargaining position with respect to the issue of effects bargaining is not entirely devoid of econom- ic consequences for the Respondent. Accordingly, the Respondent shall pay employees backpay at the rate of their normal wages when in the Respond- ent's employ from 5 days after the date of this De- cision and Order until the occurrence of the earli- est of the following conditions: (1) the date the Re- spondent bargains to agreement with the Union on those subjects pertaining to the effects of its deci- sion to lay off unit employees and change classifi- cations and hours; (2) a bona fide impasse in bar- gaining; (3) the failure of the Union to request bar- gaining within 5 days of this Decision and Order, or to commence negotiations within 5 days of the Respondent's notice of its desire to bargain with the Union; or (4) the subsequent failure of the Union to bargain in good faith, but in no event shall the sum paid to any of these employees exceed the amount he or she would have earned as wages from February 25, 1983, the date on which the Respondent laid off the employees, to the time he or she was recalled or secured equivalent em- ployment elsewhere, or the date on which the Re- spondent shall have offered to bargain, whichever occurs sooner; provided, however, that in no event shall this sum be less than what these employees would have earned for a 2-week period at the rate of their normal wages before the reduction of the workweek, and with respect to Marchman Holmes, before his reclassification and reassignment. ORDER The National Labor Relations Board orders that the Respondent, Cargill Incorporated, d/b/a Para- mount Poultry, Miami, Florida, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain collective- ly with the Union as the exclusive collective-bar- gaining representative of the employees in the fol- lowing appropriate unit: All regular full-time drivers and warehouse- men employed by the Respondent at its Miami, Florida, plant; excluding all other em- ployees, office clerical employees , sales em- PARAMOUNT POULTRY ployees, management trainees, guards, and su- pervisors as defined in the Act. (b) Unlawfully facilitating and encouraging em- ployees to withdraw their support from the Union. (c) Interrogating its employees about their union sympathies or those of other employees. (d) Promising employees increased benefits to withdraw their support from the Union. (e) Threatening employees with plant closure if the Union continued to represent unit employees. (f) Unilaterally and without bargaining with the Union changing bargaining unit employees' holiday pay and vacation benefits, reducing their work- week, laying them off, and reclassifying and reas- signing them. (g) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Recognize and bargain, on request, in good faith with the Union as the exclusive representative of the employees in the appropriate unit concern- ing terms and conditions of employment and, if an understanding is reached, embody it in a signed agreement. (b) On request, bargain collectively with the Union concerning the reduction of the employees' workweek and their layoff and reclassification and reassignment, as effects of its decision to curtail op- erations and consolidate routes, and reduce to writ- ing any agreement reached as a result of such bar- gaining. (c) Pay the laid-off employees and employee Marchman Holmes their normal wages as set forth in the remedy section of this Decision and Order. (d) Make whole Dennis Williams, Billy Hudson, and Lorenzo Marshall for any loss of pay they may have suffered as a result of the Respondent's denial of holiday pay for Christmas 1982 and New Year's 1983, with interest in the manner set forth in the amended remedy section of this Decision and Order. (e) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at its plant in Miami, Florida, copies of the attached notice marked "Appendix."16 Copies 16 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 871 of the notice, on forms provided by the Regional Director for Region 12, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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 ordered us to post and abide by this notice. WE WILL NOT refuse to recognize and bargain collectively with Teamsters Local Union No. 769, affiliated with International Brotherhood of Team- sters, Chauffuers, Warehousemen and Helpers of America, AFL-CIO as the exclusive collective-bar- gaining representative of the employees in the fol- lowing appropriate unit: All regular full-time drivers and warehouse- men employed by us at our Miami, Florida, plant; excluding all other employees, office clerical employees, sales employees, manage- ment trainees, guards and supervisors as de- fined in the Act. WE WILL NOT facilitate and encourage our em- ployees to withdraw their support from the Union. WE WILL NOT interrogate our employees about their union sympathies or those of other employ- ees. WE WILL NOT promise our employees increased benefits for withdrawing their support from the Union. WE WILL NOT threaten our employees with plant closure if the Union continues to represent them. WE WILL NOT unilaterally change our holiday pay policy and vacation practice. WE WILL NOT unilaterally reduce the workweek, lay off employees, or reclassify and reassign them. 872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize and bargain on request with the Union as the exclusive representative of our employees in the above-described unit. WE WILL, on request, bargain collectively with the Union concerning the reduction in the work- week, layoff of employees, and reclassification and reassignment of employees, as effects of our deci- sion to curtail operations and consolidate routes, and reduce to writing any agreement reached as a result of such bargaining. WE WILL make whole Dennis Williams, Billy Hudson, and Lorenzo Marshall for losses suffered as a result of our unlawful refusal to pay them holi- day pay for Christmas and New Year's 1982, with interest. WE WILL pay the laid-off employees and em- ployee Marchman Holmes their normal wages. CARGIL, INCORPORATED D/B/A PARAMOUNT POULTRY Upon the entire record in this cases and from my ob- servation of the witnesses and their demeanor on the wit- ness stand, and upon substantive, reliable evidence con- sidered along with the consistency and inherent probabil- ity of testimony, I make the following FINDINGS' OF FACT I. JURISDICTION AND STATUS OF LABOR ORGANIZATION-PRELIMINARY CONCLUSIONS OF LAW The complaint alleges, Respondent admits, and I find that Cargill, Incorporated, d/b/a Paramount Poultry, is a Delaware corporation engaged in the wholesale distribu- tion of poultry in Miami, Florida. Jurisdiction is not in issue. Cargill, Incorporated, d/b/a Paramount Poultry, in the past 12 months, in the course and conduct of its busi- ness operations purchased and received at its Miami fa- cility goods and materials valued in excess of $50,000 di- rectly from points located outside the State of Florida. I conclude and find that Cargill, Incorporated, d/b/a Para- mount Poultry is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, Respondent admits, and I con- clude and find that the Union is a labor organization within the meaning of Section 2(5) of the Act. Bruce A. Harris, Esq., for the General Counsel. Felix A. Ricco and Albert J. Suflca, Esqs., of Minneapolis, Minnesota, for the Respondent. Bruce Bhtman, Esq. (Schwartz, Klein, Steinhardt & Weiss, P.A.), of North Miami Beach, Florida, for the Charg- ing Party. DECISION STATEMENT OF THE CASE ROBERT A. GRITTA, Administrative Law Judge. These cases were tried before me on April 4 and 5, 1983 in Miami, Florida, based upon charges filed by Teamsters Local Union No. 769 (the Union) on November 29, 1982, and several dates in February 1983 and an amended com- plaint issued by the Regional Director for Region 12 of the National Labor Relations Board on March 16, 1983. The complaint alleged that Gargill, Incorporated, d/b/a Paramount Poultry (Respondent) violated Section 8(a)(1), (3), and (5) of the Act by subjecting its employ- ees to threats of reprisals, promises of benefits, and inter- rogations of union activities culminating in an unlawful petition to expel the Union as the employees bargaining representative with the Respondent ultimately withdraw- ing recognition from the Union. Respondent's timely answer denied the commission of any unfair labor prac- tices. All parties hereto were afforded full opportunity to be heard, to examine and cross-examine witnesses, to intro- duce evidence, and to argue orally. Briefs were submit- ted by General Counsel and Respondent. Both briefs were duly considered. II. BACKGROUND Respondent operates poultry processing plants in sev- eral locations in Georgia and Florida. The processed poultry is warehoused in various locations from which retail customers are serviced. The Miami distribution warehouse is the subject of this case. The employees at the Miami warehouse are classified as warehousemen and drivers and have been represented by the Union since February 10, 1981, the date of the Union's certification. All company records for 1982 and prior years were lost in the Miami riots of 1982, during which the plant and office were destroyed by fire. The parties began negotiations on April 13, 1981 and met at various times through October 21, 1982. During the week of October 21, 1982 a decertification petition began circulating among the employees. The petition was signed by 10 of Respondent's 14 employees. The fol- lowing month Respondent decided that its employees no longer wished to be represented by the Union and filed an RM petition dated November 12, 1982, requesting an election among its employees to determine whether the Union was still the exclusive representative of the ware- house employees. Union charges of unlawful refusal to bargain were filed on November 29, 1982. On December 9, 1982 the Union, by letter, requested collective bargain- ing with the Respondent. Respondent by letter of Janu- ary 5, 1983, refused to negotiate further with the Union citing the employee petition as objective evidence of the Union's loss of majority status. Subsequently, during ' General Counsel's unopposed motion to correct the record references to "MacMilhan" is granted as filed and received into the record as G.C. Exh 16 PARAMOUNT POULTRY February 1983, the Union filed three additional charges of unfair labor practices. The Regional Office of the Board dismissed the Respondent 's election petition on February 2, 1983, and on February 10, 1983, the Re- spondent sought review of the dismissal. On March 16, 1983, the Board denied Respondent's review and the Re- gional Office issued a consolidated complaint incorporat- ing all four charges filed by the Union. The pertinent portions of witnesses testimony is summarized below. III. THE ALLEGED UNFAIR LABOR PRACTICES James Dygert testified that he has been employed by Respondent for 9 years as the assistant manager in Miami. In October 1982 he was promoted to branch manager of the Miami distribution center. He had overall responsibility for the center, and Washington, the ware- house manager, was in charge of the drivers. The drivers had varying work schedules determined by when their truck was loaded. Sometimes drivers would help load their trucks, otherwise the warehousemen loaded the trucks. When Dygert assumed his manager duties two of his supervisors, James Dent and Al Rhodes, came down from headquarters to speak to all employees on October 14, 1982 The total complement of employees numbered about 28, 14 in the bargaining unit and 14 office clerical and sales personnel. Dent and Rhodes spoke about the economic and production problems of the Company. In particular, quality problems of the truckloads and bad ac- counts receivable were discussed with the employees. Albeit Dygert did not recall any discussion of wages in the meeting he did recall being approached by several employees asking about raises after the meeting. Dent stated to employees on each occasion that while they were in contract negotiations it would be determined at the bargaining table and that was all he could tell them. Dygert denied that any employees asked him anything about the Union Dygert stated that Respondent's holi- day pay practice, both before and after December 28, 1982, was to pay employees for a holiday not worked if the employee worked the day before and the day after the holiday. This policy applied particularly where the day before and day after were scheduled workdays either because of the workload or the presence of the holiday on a weekend, e.g., November, December, and January are heavy work months due to the national holi- days of Thanksgiving, Christmas, and New Year's. During less productive holidays which fall on weekends, the employees may get the following Monday or the pre- ceding Friday as the holiday and thereby not be required to work on the Monday which is actually the day after the Sunday holiday or the Friday which is the day before the Saturday holiday. Due to varying holiday de- mands for the product, the policy applied at a given time depends upon what holiday is in question. Three employ- ees, Dennis Williams, Billy Hudson, and Lorenzo Mar- shall, did not work the Mondays following Christmas 1982 and New Year's 1983 and did not receive holiday pay for the two holidays. The 11 other employees worked both Mondays and received pay for both holi- days. Between Christmas and New Year's Dygert re- minded the three employees that the scheduled workday following the holiday had to be worked to receive the 873 holiday pay. On` December 27; Williams had specifically objected to not being paid and Dygert simply reminded him of the holiday policy. Vacation policy is also determined by workload. The choice of vacation time for all employees is controlled by seniority of the employees during those months when production demands allow for vacations. November, De- cember, and January have always been heavy production months and therefore vacations have always been cur- tailed. Vacations are allowed during the less productive months. All employees are on one seniority list and choices are made by seniority. "In 1982 and 83 we disal- lowed vacations in February and March as well due to the production changes that were being incorporated." Dygert was not aware of a particular employee taking a vacation in December 1982 but he admitted that the em- ployee could have been given special permission for a vacation at that time. Admittedly, Respondent did not notify or consult with the Union about scheduling work- days after holidays or disallowing vacations in Novem- ber and December 1982 or January and February 1983. Layoffs are determined by plantwide seniority for em- ployees in the bargaining unit. One layoff occurred in October 1982. There were too many drivers on the pay- roll. Isaiah Lovett was the most junior employee on the payroll and was laid off. The layoff in February 1983 fol- lowed seniority and was not limited to employees in the bargaining unit. Prior to the layoff, on January 31, 1983, the drivers began a 4-day week which was a reduction from the usual 5-day week. The 4-day week continued up to February 25, the day of the layoff. On February 23, before the layoff, there were 14 employees on the payroll classified as warehousemen or drivers. Two driv- ers, M. Holmes and Ted Evans, were given thelchoice of working as a warehouseman rather than being laid off as a driver. Both accepted the warehouse position and Holmes changed his shift time from 7 a.m to 3 p.m. Dygert then determined the seniority of the other 13 em- ployees for layoff purposes and informed them individ- ually of their layoff. When he notified Dennis Williams of his layoff, Williams questioned his seniority date and apprised Dygert of a letter given to him by the prior manager which recognized his original hire date for se- niority. Dygert told Williams to get the letter, and if it was valid, Williams would replace Holmes on the pay- roll and Holmes would be laid off. Williams brought in the letter which Dygert copied. Dygert checked with headquarters and learned that Williams ' original date of hire (6-4-73) was intended to apply only to retirement and vacation eligibility. Dygert made this fact known to Williams and continued with the layoff. Of the 14 plant employees, 7 were laid off but with an option. Each could accept severance pay and pay for all benefits and waive any recall rights or they could accept the layoff without any benefits pay and chance a recall within 6 months. If not recalled in 6 months, all benefits including recall would be lost. In addition to the drivers and ware- housemen, seven employees from management, clerical, and sales positions were laid off the same day The 10 routes previously manned were reduced into 5 routes by consolidating the service territories. 874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Following the layoff notification to employees, Dygert was called by a competitor, Goldkist poultry. Williams had applied for a job at Goldkist reciting the impending .layoff at Respondent. The Goldkist manager wanted to hire three employees and asked Dygert if any other em- ployees would be laid off. Dygert named three other em- ployees, Billy Hudson, Robert Johnson, and William De- shazior. Dygert then apprised the three employees of the openings at Goldkist. Dygert denied stating to any employee that if it were not for the Union he would fire a number of employees. Dygert testified, that Respondents trucks do not haul poultry from Jacksonville to Miami. Although Williams was a union committeeman, Dygert denied having any conversations with him about negotiations.2 He further denied stating that the plant would close if the union re- Imained or asking Williams to talk to other employees about becoming nonunion. Dygert became aware of em- ployee's sentiments regarding "no union" on October 22, 1982. Before work Hudson came to the office and stated to Dygert, "With you as manger we don't need the Union. We feel we don't need the Union. I'm getting this petition together." Hudson then showed the petition con- taining eight names to Dygert. Dygert looked at the peti- tion and handed it back to Hudson. Hudson pocketed the petition and went to work. Dygert called the company lawyer who instructed him to tell the employee to talk to the National Labor Relations Board. That afternoon when Hudson was checking in after finishing his route, Dygert told him that he should contact the National Labor Relations Board office in Tampa. A week later Hudson gave a copy of the petition containing 10 names to Dygert and he mailed it to Respondent's Counsel. Dygert denied that Hudson later attempted to withdraw the petition but he recalled that Hudson mentioned someone was pressuring one of the employees to remove his name from the petition. Dygert told Hudson that the petition had been mailed to company counsel. Hudson asked, "What can I do?" Dygert told Hudson to do what he thought he should do. Although Respondent does not have a no-solicitation rule and solicitations occur fre- quently, Dygert was not aware when the employee peti- tion was circulated. Dygert only saw the petition twice, when Hudson handed it to him on two occasions. Dygert did not ask any employees about signing or at- tempt to ascertain how the signing was progressing. Dygert also denied that he allowed Hudson to use the company phone to call the National Labor Relations Board or the company Xerox machine to make copies of the petition, although employees freely used the phone or the machine to make whatever copies they needed. Dygert further denied that he discussed increases in 2 Ted Evans was the other committeeman Billy Hudson testified that he had worked as a driver for Respondent for 4 years Hudson attended the employee meeting in mid-October at which James Dent and Al Rhodes spoke to employees During the meeting Hudson asked two ques- tions One was, "When was we going to get a raise?" Rhodes replied that the Company could not give a raise because of the negotiations with the Union The second question was, "How long before negotiations with the Union would be over?" Rhodes replied that it could take a year or two more before the negotiations would be completed wages or benefits or insulation from discharge if the em- ployees got rid of the Union. On Monday, October 18, Hudson went to Dygert's office. Hudson asked Dygert how to go about getting rid of the Union. Hudson testified, -"He said, that I would have to get a list of the majority names of the people on the branch, on the job, to be able to do something about it, and that's when I decided to make this list up." That evening at home, Hudson prepared the handwritten peti- tion and the next day began circulating it in the plant for signatures. During the afternoon, Dygert asked how the petition was going. Hudson told Dygert that two others had signed. Dygert said he could try to get "us a dollar raise" without the Union. The next day Dygert again asked Hudson how it was going with the petition. When Hudson told him that he had a few more, Dygert said, "Keep up the good work." Hudson was relaying Dy- gert's "dollar raise" message to the employees when he approached them about signing the petition. Several of the employees wanted to wait until the negotiating meet- ing on Thursday of that week was over before they signed. Others had expressed fear of discharge if they lose the Union. When Hudson told Dygert what the em- ployees feared, Dygert told Hudson, "no one would be fired by getting rid of the Union." On Friday after the negotiating meeting, four employees came to Hudson and asked for the petition. Each signed the petition, then Hudson took it to the company machine and made three or four copies. He took one copy to Dygert's office and gave it to him. That evening after work Dygert told Hudson, "Here's the number to Tampa's office where you have to get it processed." Hudson, in Dygert's pres- ence, used the plant phone but did not get an answer. The plant phone was always available for employees to use whenever they had to make a call. The following Monday, several employees voiced opposition to con- tinuing the effort to get rid of the Union. That afternoon Dygert asked Hudson if the Labor Board had been noti- fied. Hudson responded that he had decided not to call since some of the guys had changed their minds about getting rid of the Union. Hudson said he did not wish to go through with it. Dygert said, "I can live with the Union or without it." In December 1982 when Hudson learned that the em- ployees were scheduled to work Monday after Christmas and New Year's he voiced an objection to his supervisor, Washington. Hudson told Washington the employees were supposed to get Monday off and that he was not going to work. Washington said okay, nothing more. Hudson did not work either Monday following the two holidays. The Friday of the layoff, Dygert informed Hudson that there were openings at Goldkist if he wanted to work there. At first Hudson said he did not, but on Sat- urday Hudson did go to Goldkist and was hired. Dennis Williams testified that he began employment with Respondent as a driver in June 1973. He separated from his employment in December 1978 and returned in September 1979. Upon returning to work, Branch Man- ager MacMillan told Williams that since he was only gone 9 months there would not be any loss of time. Mac- PARAMOUNT POULTRY Millan said he would process the paperwork so the se- niority date would be 1973. In 1980, after MacMillan re- tired, the question of vacation eligibility for Williams came up and it was decided in favor of Williams based upon his 1973 hire date When the Union became the representative, Williams participated in the negotiations as a union committeeman. Some time before Dygert became branch manager he told Williams that the Com- pany did not need a union. Dygert also stated, "If the Union stays in the plant is going to close." Dygert then asked Williams to talk to the employees to try to get them to change their affiliation with the Union. Williams responded, "I'd see," but never did talk to the employees about it. At a later time Williams overheard Dygert talk- ing to a Paramount driver from Jacksonville while his truck was at the plant. Williams recalled that the truck had Cargill on the door, and had a load of eggs from Jacksonville. As Williams came through the door he heard Dygert say to the Jacksonville driver, "If the Union wasn't involved I would fire a bunch of the em- ployees." Williams did not hear anything else. Williams attended the employee meeting in October at which Rhodes and Dygert spoke. He recalled that Hudson asked when the employees were going to get a raise and Rhodes answered not while the negotiations with the Union were in progress. Williams stated that all drivers got raises at the same time and usually once or twice a year. The last such raise was given in 1980. A few days later, Dygert again stated that the plant would close if the Union stayed in. Dygert also repeated his re- quest of Williams that he talk to the employees about going nonunion . The week of Christmas Williams was sick and did not see the employee petition being circulat- ed. Williams testified that the holiday policy at the plant has been the same since his employment started. When major holidays like July 4, Christmas or, New Year's fell on a weekend the employees would be off the following Monday. Williams recalled specifically that in 1976 when Christmas fell on Saturday the whole plant got the fol- lowing Monday off and received holiday pay. The fol- lowing week the plant was off Monday after New Year's and again received holiday pay. The only exceptions would occur if customers had to be serviced on the Mondays. If so the branch manager called someone in to service the customers, otherwise all employees were off and received holiday pay. The only time a Monday fol- lowing a weekend holiday was a workday was Christmas 1982 and New Year's 1983. Both Mondays were sched- uled workdays. Dygert told the employees that all were needed to work and those choosing not to work should notify Washington, their supervisor. Dygert added that the employees who come in Monday would get an extra 8 hours and the ones that did not come in would still get paid for Christmas. Later Williams, Hudson, and Mar- shall told Washington they would not come to work on the Monday after Christmas. Tuesday, December 28, Williams returned to work and learned he would not be paid for Christmas. He went to Dygert's office to con- firm whether he would be paid or not. Dygert's reply was, "Now, you know you weren't going to get paid." Williams restated what he understood Dygert to have 875 said, that those who do not work the Monday would still get paid for Christmas. Dygert said, "No, you're not going to get paid," and showed Williams a copy of the holiday clause recently negotiated. Williams looked at it and said, "yes, but there is no contract." Dygert stated that the plant has been under the Union the last 2 years and you have to go by the union rules. Williams told Dygert that he was going to consult with the union rep- resentative. Later, Williams did talk to Washington about the holiday pay. Washington told Williams that evidently Dygert changed his mind because originally he did say everybody would be paid for Christmas whether they worked the Monday after or not. Williams stated that in past years there has not been any period of the year when employees could not take vacations. The first year that management had denied va- cations to employees during November and December and January and February was 1982. Additionally, until January 1983 employees were always scheduled for a 5 day workweek, unless a holiday fell during the week Dygert met with the employees in January 1983 and told them that there would be reductions in the plant and some changes in products. Dygert did not detail the re- ductions or the product changes. Williams route was di- minishing since the Company was discontinuing beef and turkeys and continuing only chickens Some customers were lost due to the singular chicken product. On February 23, when Williams learned of his coming layoff, he went to Dygert's office. Dygert informed him that as of Friday, February 25, he was being terminated and gave him two papers to sign for severance and ac- crued vacation pay. Williams exclaimed that his hire date was 1973 but Dygert said, "No, your hire date was in 1979, 41 months of service." Williams told Dygert of his letter of November 1980 which he said was in his file. Dygert got Williams' file but the letter was not in the file. Williams suggested that Dygert check with Wooten because he had the letter previously. Dygert asked, "If you got such a letter, would you agree to work nights?" Williams responded, "Yes, I don't want to lose my job " Dygert told Williams to get the letter. Williams went home, got the letter, and returned to the plant He pre- sented the letter to Dygert, who said he would check it out The next day, Thursday, Williams reported for work and saw the work schedule posted for the following week. His name was not on it. Williams went to Dygert's office and asked why his name was omitted. Dygert re- plied that the letter only related to vacations and pen- sions. Dygert stated that Cargill did not reinstate anyone after they have been gone a year and a half. Williams said he was only gone 9 months. Dygert repeated that the period was a year and a half. Dygert told Williams that he had two options: to sign for the termination and severance or a 6-month layoff. Williams said his seniority was not right and he was not going to sign Dygert said the Company would make a decision on Williams refusal to sign. The conversation ended and Williams left. Wil- liams did not work Friday but rather sought employment elsewhere. He applied at Goldkist but did not get the job. Williams testified that Hudson and Johnson were hired at Goldkist. 876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Later Dygert contacted Williams in an attempt to fi- nalize the severance and vacation pay due him. Williams told Dygert that he needed the money so Dygert ar- ranged for Williams to get it. Washington called Wil- liams to come in for his money. Williams went to the office where Wooten and Dygert presented his checks and the option papers to sign. The papers still had 41 months so Williams still refused to sign. Ted Evans testified that he has been employed by Re- spondent for 4 years as a driver He has been a union committeeman since the Union started. Evans attended the October 1982 meeting of employees in which James Dygert and Al Rhodes spoke. Dygert answered Hud- son's question about raises. Dygert said he cannot talk about raises because the Company is in negotiations with the Union. Rhodes added that he did not like dealing with a union because the Company could do better with- out them. After the meeting Evans saw Hudson going around and talking to the employees about signing a peti- tion. Hudson did not, however, approach Evans and Evans never actually saw the petition. Evans stated that the holiday practice, when holidays fell on the weekend, had been to get Monday off and get paid for the holiday. When holidays fell on weekdays the employees always had to work the day before and the day after to get paid for the holiday. Christmas 1982 he came in off the road and heard that work would be scheduled on Monday after Christmas and New Years. Evan's talked to Washington and confirmed that Monday work was volunteer but whether you worked or not you would be paid for the holiday. Evans worked the Friday before Christmas 1982 and reported for work the Monday following. Dygert was asking where the other drivers were. Evans told Dygert that he had said the guys could work or not. Dygert said, "No" he had not said that. Dygert told Evans to get them if they want to be paid for Monday Dygert gave Evans his route sheet and Evans left. Evans picked up Robert Johnson and brought him in to work. The next day Evans heard Dygert and Williams arguing about the hol- iday pay. Evans testified that Dygert told Williams, "he should know better than that, because during negotia- tions, the Union contract stated that you had to work the day after. He should know better because he was on the committee." Additionally, the only year that Evans knew of any restrictions on vacation months was 1982. The vacation notice posted in December 1982 was the first time vacations were disallowed in November, De- cember, January, or February. In late January 1983 Evans attended a meeting of drivers in which Dygert stated that there was going to be a big change in the Company. Dygert did not detail the changes but thereaf- ter the drivers went from a 5-day week to a 4-day week. A couple of days prior to the February layoff, Dygert spoke to the drivers and particularly to Evans. Dygert said that he had a piece of paper about Williams' seniori- ty and if the Company accepted what Williams' paper said that Evans would move to night shift and Williams would remain as driver on days. Holmes would be laid off if Evans moved to night shift. If Williams' paper was not accepted Evans would remain as driver and Holmes would go to night shift with Williams getting laid off. Evans was not moved to night shift and is still driving on days. Stanley Lichtman testified that in November 1982, in a phone conversation with Respondent's counsel, Ricco, in response to the Union's request for another meeting date, said the Respondent was not going to negotiate with the Union until the matter of the employee petition was fi- nalized. Lichtman also stated that the Respondent did not contact the Union about any changes made at the plant relative to vacations, holidays, workweeks, curtail- ment of business, or layoffs of employees. The Union, after the fact, by letter objected to any changes being made without negotiations but did not receive a timely response from the Respondent. Lichtman also testified that the ground rules for the negotiations included no proposals to be effective until an entire agreement was reached. At no time did the Union or the Company request implementation of any proposals agreed upon. At the last negotiating session October 21, 1982, the Respondent made a counterpropos- al on wages for each of 3 years of the proposed contract but the Union rejected it. Each party had changed its po- sition on wages during negotiations but no agreement had been reached. Robert Johnson testified that he was employed by Re- spondent for 4 years as a driver. Johnson stated that shortly after the employee meeting in October 1982 he was approached by Hudson with the employee petition. Johnson elected to postpone his signing until after the upcoming negotiation meeting. between the Union and Respondent. During the time the petition was being cir- culated, Dygert asked Johnson if everybody was going to sign the petition. Johnson replied that most employees were undecided and like he was awaiting the outcome of the current negotiation meeting. Dygert told Johnson that it would mean "a dollar raise" if everybody signed the petition to get the Union out. Several weeks later Dygert initiated a conversation with Johnson asking, "What was going on with the Union thing." Johnson re- plied that the employees had a meeting the past Saturday but nothing definite came from it. Dygert stated that if the Union came back into the picture the plant would close up. Dygert added that he and Washington would go to Jacksonville but the employees would go "bye- bye." Later Dygert placed a phone call to Dent and asked Johnson to speak to Dent. Dent asked Johnson what the employees were doing about getting the Union out. Dent stated that Cargill did not need a union be- cause the Company could do more for the employees than the Union could. Dent characterized the Respond- ent as a family organization without a union. Dent ended the conversation by telling Johnson to see what he could do. The day following the last negotiating meeting Hudson circulated the petition in the warehouse telling everyone that Dygert said getting the Union out would mean "a dollar raise." Johnson and others signed that day. Within a week Johnson thought he had made a mis- take because the $1 raise had dropped to 75 cents, at least that is what the employees in the warehouse were passing around. PARAMOUNT POULTRY On February 23, 1983, Dygert told Johnson that he would be laid off on Friday. Johnson worked his regular run on Friday and when he checked in Dygert said that he and Washington had found a job for Johnson at Gold- kist. Dygert told Johnson who to see at Goldkist and the following day Johnson was employed by Goldkist. Hudson and Deshazior were also employed by Goldkist after the layoff. James Dent testified that he was em- ployed by Respondent as the southeastern regional man- ager located in Jacksonville, Florida. Dent was promoted to his position shortly before his appearance in Miami for the October 14 meeting. One purpose of the meeting was to meet the Miami employees. Dent primarily spoke to the employees about "account receivables" problems and how the drivers could help eliminate some of the prob- lems. Toward the end of the half-hour meeting an em- ployee asked when a raise in wages could be expected. Dent replied that the Company and Union were in the midst of negotiations and it was not giving any raises now. Also since the employees had chosen the Union as their representative any raises or benefits would have to result from negotiations. Dent referred the inquiry to Al Rhodes because he was current on the substance of the negotiations Rhodes in turn told the employees that Ted Evans could fill them in on where the parties stood at that time because he was on the negotiating team. Dent recalled that one employee stated, "If you'd have had Mr. Dygert down here instead of Dick Dillow we wouldn't have no union." Dent denied that any remarks were made about the possible length of negotiations or the acceptable status of the Union as representative by himself or Rhodes. Dent admitted a phone conversation in Dygert's office with employee Johnson but denied that the Union or the employee petition was discussed. Al Rhodes testified that he is production manager in the home office of Minneapolis, Minnesota. The Miami plant is within his area of responsibility Rhodes stated that he answered the employees inquiry about a raise in- crease at the October meeting by telling the employees that negotiations were in progress and any wage increase would be determined through the negotiation. One em- ployee stated that it had been a long time since a raise was given. Rhodes said, "yes" and referred the employ- ees to Ted Evans who was on the negotiating committee and could give the employees the current status of those negotiations. Rhodes added that the Company could not discuss wages outside negotiations. One employee asked, "What would we [the Company] do if the plant wasn't union." Rhodes replied, "Our policy is to review the wages once a year, which may or may not result in a wage increase." Rhodes denied that he made any refer- ence to his like or dislike of dealing with a union or that without a union any benefits or wages would change Counsel Ricco testified that he drafted the letter to Williams which was signed by Manager Dillow and ex- plained the use of Williams' prior hire date as a seniority date. Ricco stated that he, Dillow, and an attorney aide met with Williams ' to explain his various eligibilities based upon his prior hire date. Ricco told Williams his seniority date for layoffs would be his most recent hire date. 877 With regard to the contract negotiations on October 21, 1982, Ricco at the end of the meeting told the Union that he would get back to them about further meetings. After receiving the employee petition consisting of 10 names, Ricco did not contact the Union about negotiat- ing until January 1983 subsequent to his receipt of a union letter on December 22, 1982, requesting bargaining to continue. A, letter was sent to the Union dated Janu- ary 5, 1983, refusing to meet or negotiate further with the Union due to the employees signed petition which the Employer had received in November 1982. Analysis and Conclusions Threat of Discharge General Counsel alleges that an overheard conversa- tion in fragmented form between Dygert and some person not employed by Cargill constitutes a threat of discharge. Employee Williams only heard the one state- ment and has no knowledge of the context in which it was made. Dygert said, "If the Union wasn't involved I would fire a bunch of the employees." Not every state- ment mentioning "union" and alluding to "discharges" is threatening to employees. I find that to be the case here. Dygert's statement standing alone and particularly being directed to someone other than Respondent's employees does not make out a threat against Williams or his fellow employees. I conclude and find that Dygert's statement to an unknown person does not constitute a threat of dis- charge to his employees. The Meeting of October 14, 1983 Several employees testified to their recall of the em- ployees meeting with Dent and Rhodes on October 14, 1982. None of the employees recalled any statement by Dent or Rhodes promising employees any increase in benefits to get rid of the Union. Therefore, the substance of the employee meeting does not overstep , the bounds defined in Section 7 of the Act The meeting was, how- ever, the springboard to the employee decertification pe- tition circulated the second half of October 1982. General Counsel in brief argues for an additional 8(a)(1) violation based upon remarks made by Dent and Rhodes at the meeting . The complaint is silent in this regard and the substance was not litigated , to my satis- faction, to constitute a justiciable issue. Moreover, the remedy sought by General Counsel would not augment that imposed otherwise in this case. I therefore will not make a finding of a threat to suspend wages due to nego- tiations. Employee Petition to Decertify Hudson credibly testified that after the meeting ended he asked Dygert how to go about getting rid of the Union. Dygert suggested a majority list of employees at the Miami branch indicating their desire to get rid of the Union. Hudson, at home that evening, titled a piece of paper and began talking to employees the next day. Al- though Dygert's response to Hudson's inquiry as to the mechanics of getting rid of the Union is not, in and of itself, an encroachment upon employees' rights, when 878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD coupled with the interim interrogations by Dygert and the promise to get employees $1 an hour more if the pe- tition is successful, a violation is made out. Hudson cre- dibly testified that Dygert asked how the signatures were coming and, upon learning that employees were slow signing, told Hudson that he would try to get the em- ployees a $ 1 raise if the Union, was out of, the way. Hudson on subsequent days induced employees to sign the petition by, restating Dygert's offer of $1-an-hour raise At one point Hudson responded to Dygert that the employees were afraid that if they did get rid of the Union they would be discharged. Dygert told Hudson that no one would be fired for helping to get rid of the Union. When the petition was presented to Dygert in completed form he told Hudson that he must contact the National Labor Relations Board. Hudson's use of the company phone to call the Tampa Board office and the company machine to make copies, did not represent an unusual use of company facilities and therefore does not contribute to the vice involved with the petition. Dy- gert's inquiry of Hudson the following day as to whether the Labor Board had been notified is an additional taint on the employee petition and particularly since Hudson informed Dygert that several employees changed their minds about getting rid of the Union which prompted Hudson to abandon the petition. Dygert denied that he offered any wage 'increase to employees for signing and further denied that he made any inquiries of the peti- tion's progress. The snail-like progress of the petition under Hudson's guidance more plausibly would cause Dygert to inquire and offer a wage increase, than not. Additionally employee Johnson credibly testified that Dygert asked him if everybody was signing the petition and when Johnson told Dygert that most employees were waiting to see if anything materialized in negotia- tions, Dygert stated that it would mean a $1 raise if ev- erybody signed the petition. Dygert, in an attempt to shore up the seemingly failing petition, told Johnson that if the Union came back into the picture the plant would close. Albeit Dygert denies any statement to Johnson about the plant closing, I credit the forthright testimony of Johnson rather than the curt denial of Dygert. John- son detailed a phone conversation he had with Dent wherein Dent asked what the employees were doing to get the Union out and stated that the Company could do more for the employees than the Union could do Dent reminded Johnson that without a union the Company could operate as a family organization and told Johnson to see what he could do to get employees to sign. Dent denied that the conversation with Johnson contained any union or employee petition references I find it hard to believe that Dent in his capacity as regional manager would have anything else to speak to Johnson about and, consequently, I credit Johnson's version of the phone call and discredit Dent's denial . Based upon the above, I conclude and find that Respondent unlawfully facilitated the signing of the employee petition and attendant to its proven interest in the employee petition did interrogate employees about the petition's progress, promise employ- ees a wage increase if the employees signed the petition, and threatened to close the plant if the petition was not finalized to get the Union out of the picture. Withdrawal of Recognition/Refusal to Bargain Admittedly the Union was the exclusive representative of Respondent's employees, therefore absent substantial changes in the Union's status the employees continue to be represented. -General Counsel alleged a withdrawal of recognition by Respondent in early November 1982. The evidence, however, only evinced a failure of the parties to agree to a negotiating meeting. Respondent did on January 5, 1983, withdraw recognition from the Union and refused to meet further to negotiate a contract. Re- spondent's basis for its action was the employee petition to decertify circulated in November 1982. In view of the previous finding related to the employee petition of Oc- tober 22, 1983, and particularly in the absence of addi- tional evidence of the Union's loss of majority status, I conclude and find that Respondent unlawfully withdrew recognition from the Union and refused to bargain fur- ther in bad faith. Respondent's contention in brief that General Counsel has the burden to establish that, the Union was in fact the majority representative at all times material is erroneous Rather Respondent has the. burden to show otherwise. Further, General Counsel alleges several unilateral acts of Respondent to be additional refusals to bargain. Namely, the changing of its existing vacation policy; the changing of its existing holiday pay practice; the reduc- tion of the 5-day week for drivers to a 4-day week, and the layoff of half the work force. Although General Counsel does not attack the unilateral curtailment of a portion of the business as violative, he does contend that Respondent was obligated to bargain with the Union over the effects upon the bargaining unit employees The record evidence does not with certainty establish what the Respondent's past practice was with regard to vacations and holiday pay. Uncontroverted evidence does show that in 1976 and 1977 the employees did get the Monday off following weekend Christmas and New Year's holidays and received holiday pay. However, the record also shows that when workdays are scheduled the employees must work and the past,practice of receiving holiday pay required that employees work the scheduled days before and after a holiday. Additionally, the uncon- troverted evidence shows that 1982 and 1983 were the first years that employees were denied the entire months of November, December, January, and February in which to schedule vacations, however, the Respondent's policy of not allowing vacations during heavy produc- tion periods is not questioned by employee's testimony. Neither does General Counsel deny that Respondent can exercise some control over scheduling workdays and va- cations without resorting to negotiations with the Union. The tentative agreements reached by the parties in nego- tiation respecting holiday pay and vacations is not proba- tive of the past practice other than to support the record evidence evincing no change. Albeit past holidays may have included Mondays off, there is insufficient evidence to establish that Respondent unilaterally changed its ex- isting holiday practice in violation of the Act. In addi- tion, the scheduling of vacations in past years during cer- tain months of the year, without more, does not establish PARAMOUNT POULTRY that Respondent unilaterally changed its vacation sched- uling policy in violation of the Act. It is undisputed that Respondent suffered economic losses (without regard to the reasons) which caused a curtailment of services and further General Counsel does not allege the curtailment as a unilateral conduct in vio- lation of the Act. What General Counsel does allege is that Respondent must bargain with the Union over the effects of the losses, including Respondent's decision to change the drivers workweek from 5 days to 4 days. Having established previously Respondent's obligation to continue bargaining with the Union and having found Respondent's withdrawal of recognition to be violative of the Act, it follows that Respondent erred in not con- sulting the Union on changes brought about by the loss of business. During a continuing obligation to bargain a Respondent is never free to effectuate changes in work- ing conditions of its unit employees without negotiation. Here Respondent bypassed the bargaining representative and unilaterally reduced the drivers' workweek. Clearly Respondent violated Section 8(a)(5) of the Act. Albeit the reduction in workweek may be the only viable solu- tion and sound business judgment the Union by virtue of its representative status must be consulted before the fact. An additional change was unilaterally effected by Respondent when in February 1983 it decided to layoff 7 employees out of a unit of 14 employees. Here again, sound business judgment may have dictated a layoff but the Union has the right to negotiate the terms of the layoff and the selection of employees to be laid off. Re- spondent's use of seniority in selecting employees for layoff does not obviate the obligation to bargain with the Union. Particularly, in view of the dispute over Wil- liams' seniority date for layoff purposes. On this record I cannot conclude and find that Respondent discriminatori- ly selected Williams for layoff, but I can conclude and find that the controversy over Williams' seniority date stems from uncertainty. Williams relies on a letter from Respondent restoring his seniority to his initial date of hire. Respondent contends that Williams' original hire date applies only to retirement income and vacation weeks due. However, the subject letter, authored by Re- spondent unequivocally states that for seniority purposes Williams' hire date is June 4, 1973 Respondent's argu- ment that to reorganize William's original date for se- niority would be unfair to other unit employees is no more efficacious now than it was in November 1980 when the letter was drafted. Moreover, Dygert, when apprised of the existence of the letter, simply told Wil- liams and Evans that if the letter did in fact support Wil- liams' contention the layoff selection would be altered accordingly. As previously noted, the record evidence does not support a discriminatory selection of Williams for layoff but any remedy ordered may necessarily in- clude recovery of lost wages and out-of-pocket expenses due to the negotiations between the parties possibly re- sulting in reinstatement for Williams To put it another way, if the Union is successful in negotiating no layoff for Williams the status quo ante remedy would include lost wages which in effect would be an 8(a)(3) remedy for an 8(a)(5) violation. I do not consider the assessment of an 8(a)(3) remedy in this circumstance to be any more 879 than the resolution of an uncertainty against the party creating the uncertainty. Accordingly, I shall include in the remedy an order to bargain with the Union over the terms and substance of the layoff which occurred on February 25, 1983, and if the negotiations result in the recognition of Williams' original date of hire for layoff purposes he shall be made whole for Respondent's action in terminating his employment. Further, the option given to all employees laid off in February 1983 and deter- mined unilaterally by Respondent may as a result of ne- gotiations include wages and benefits not previously paid for laid-off employees. ADDITIONAL CONCLUSIONS OF LAW 1. All regular full-time drivers and warehousemen em- ployed by the employer at its Miami, Florida plant, ex- cluding all other employees, office clerical employees, sales employees, management trainees, guards and super- visors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. At all times since February 10, 1981, the Union, by virtue of Section 9(a) of the Act, has been, and is, the exclusive representative of the employees in said unit for the purposes of collective bargaining. 3. By withdrawing recognition from the Union on or about January 5, 1983, and by refusing to bargain with the Union over reducing the 5-day workweek for drivers and selecting employees for layoff, the Respondent has engaged in an unlawful refusal to bargain in violation of Section 8(a)(1) and (5) of the Act. 4. Respondent, by facilitating and encouraging its em- ployees to circulate and sign a petition to withdraw their support from the Union, has violated Section 8(a)(1) of the Act. 5. Respondent through its branch manager, James Dygert, coercively interrogated employees, threatened employees with closure of the plant if the Union re- mained the employees representative, and promised em- ployees wage benefits if they got rid of the Union, in violation of Section 8(a)(1) of the Act. 6. Respondent through its regional manager, James Dent, coercively interrogated employees and promised employees better benefits without the Union, in violation of Section 8(a)(l) of the Act. 7. General Counsel has not sustained his burden of proof for any other allegations in his complaint. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order the Respondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the poli- cies of the Act. The Respondent having unlawfully selected employees for layoff by failing to negotiate with the employees ex- clusive representative, I find it necessary to order it to offer them full reinstatement to their former position or, if those positions no longer exist, to substantially equiva- 880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lent positions, with backpay computed on a quarterly basis and interest thereon to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977),3 or with a difference in severance pay previously calculated by Respondent from February 25, 1983, the date of layoff to the. date of proper offer of reinstatement , if any, results from negotiations between the parties to determine the proper selection and number of employees to be laid off and the proper amounts of money to be received by each employee. 3 See generally Isis Plumbing Co, 138 NLRB 716 (1962) Unlike Penntech Papers, 263 NLRB 264 (1982), cited by General Counsel , the instant case did not occur during the term of a contract . Here, any contract has been frustrated by Respondents unlawful conduct. In my view to adequately remedy the past conduct the parties must be placed in a posture as if the conduct had not oc- curred . The limited remedy of Penntech could result in no liability for respondent and under the circumstances of this case that would be unconscionable . Likewise to use a preferential hire list would disallow the union its rights by statute to negotiate all the terms of a layoff, in- cluding recall rights. [Recommended Order omitted from publication.]