Alpha Biochemical Corp.

National Labor Relations Board - Board Decisions

Apr 21, 1989

293 N.L.R.B. 753 (N.L.R.B. 1989)

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