Atlantic Coast Fisheries

National Labor Relations Board - Board Decisions

Jun 23, 1970

183 N.L.R.B. 921 (N.L.R.B. 1970)

ATLANTIC COAST FISHERIES
Atlantic Coast Fisheries and Sea Food Workers'
Union Local 2, Series 1572, International
Longshoremen 's Association, AFL-CIO. Case
1-CA-6501'
June 23, 1970
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On March 23, 1970, Trial Examiner Herzel H.E.
Plaine issued his Decision in the above-entitled
matter, finding that Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner further found that Respondent had not
engaged in certain other unfair labor practices al-
leged in the complaint, and recommended that such
allegations be dismissed. Thereafter, the Respond-
ent and the Charging Party filed exceptions to the
Decision and supporting briefs, and the General
Counsel filed a brief in support of the Trial Ex-
aminer's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner to the extent consistent
herewith.
We agree with the Trial Examiner that Respond-
ent violated Section 8(a)(1) of the Act by creat-
ing the impression of surveillance of its employees'
union activity; threatening employees with
discharge for attending union meetings; and
threatening layoff, plant closure, and refusal to bar-
gain with the Union if employees chose the Union
as their bargaining representative. While we also
' This case had been consolidated for purposes of hearing with Case
1-RC-10,237, in which a consent election had been held and objections
thereto were filed by the Union By Order dated March 23, 1970, transfer-
ring this case to the Board, Case I-RC-10,237 was severed and remanded
to the Regional Director for Region I for further proceedings pursuant to
the agreement for consent election
2 Monroe Feed Store, 112 NLRB 1336, 1337, and cases cited therein at
fn 2
921
agree with the Trial Examiner that the record
establishes that the Employer violated Section
8(a)(1) of the Act by threatening a general layoff
just prior to the representation election in order to
discourage support for the Union, we find merit to
the Respondent's exception to the Trial Examiner's
finding that Respondent violated Section 8(a)(1) of
the Act by initiating a "sham seasonal layoff" for
that unlawful purpose. Specifically, we find, as con-
tended by the Respondent, that the question of
whether the layoff was a "sham" was neither al-
leged in the complaint nor fully litigated.
It has long been held that when an issue relating
to the subject matter of a complaint is fully litigated
at a hearing, the Trial Examiner and the Board are
expected to pass upon it even though it is not
specifically alleged to be an unfair labor practice in
the complaint.' Here the complaint, in paragraph
8(f), charged that on October 23, 1968, Respon-
dent, through supervisor Motto, "intimated a
seasonal layoff of its employees for the purpose of
discouraging their Union activity." There was
neither a specific nor a general allegation that the
Respondent effected a premature seasonal layoff in
order to discourage union activity. Testimony as to
the length of the regular season was taken at the
hearing, but only incidentally, with regard to the
voting eligibility of a part-time employee, Grace
Cook, an issue relevant to the representation case
which is not before us at this time.'
The Trial Examiner relied on the employment
records of Grace Cook for 2 years prior to the Oc-
tober 23, 1968, layoff in order to determine the
length of earlier fishing seasons . However, in the
past Respondent continued to employ some person-
nel, as fish were available, beyond the regular
season, and even if Grace Cook did work beyond
October in those years, she might have been "held
over." Thus, Grace Cook's payroll records, without
more, would not be an adequate gauge of the regu-
lar season , even if the sham layoff issue had been
raised. Further, there was uncontradicted testimony
that there has been a decline in the supply of fish,
believed to be the result of fishing operations of the
Russian fleet off the coast of Cape Cod and el-
sewhere, so that it is possible that the October 23
layoff, even if earlier than usual, was' occasioned by
short supply in 1968. In view of all the circum-
stances, we do not adopt the Trial Examiner's
3 In order to distinguish Grace Cook, a regular part-time employee, from
certain "drifters " whom the Respondent hired each season , the factual
question of the length of the season in past years was raised The Trial Ex-
aminer asked Supervisor Flores what she considered the employment
season to be Flores responded that it depends on the fish , the season lasted
approximately May through October She further stated that "If we had
fish until December , there would be work until December It is really from
June until late October
183 NLRB No. 77
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determination that the Respondent prematurely
laid off employees in violation of Section 8(a)(1).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent, At-
lantic Coast Fisheries, Provincetown, Mas-
sachusetts, its officers, agents, successors, and as-
signs, shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as modified below:
1. Delete the present paragraph 1(d) of the Trial
Examiner's Recommended Order and reletter para-
graph 1(e) as 1(d).
2. Delete the present paragraph 2(a) of the Trial
Examiner's Recommended Order and reletter para-
graphs 2(b) and 2(c) as 2(a) and 2(b), and sub-
stitute the following as the first sentence of the
paragraph redesignated as 2(a): "Post in its
establishment at Provincetown, Massachusetts, and
mail to each of its employees copies of the attached
notice marked `Appendix' ( using as the mailing list
the list of eligible employees of the October 29,
1968, election, with employees Grace Cook and
Ralph Fields included)."
3. Delete the fourth and sixth indented para-
graphs of the Appendix attached to the Trial Ex-
aminer's Decision.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASES
HERZEL H.E. PLAINE, Trial Examiner: Case
1-CA-6501 is an unfair labor practice proceeding
charging the Respondent with violations of Section
8(a)(1) of the National Labor Relations Act (the
Act). The complaint was issued May 14, 1969, on a
charge by the Union (the Charging Party) filed with
the Board on October 24, 1968.
Case 1-RC-10,237 is a representation proceed-
ing on a petition filed September 25, 1968, by the
Union (the Petitioner, also the Charging Party in
Case 1-CA-6501). The Union sought to represent
the production and maintenance employees at the
Respondent-Employer's plant in Provincetown,
Massachusetts, and an agreement for consent elec-
tion was executed on October 21, 1968. Along with
the charge of October 24 in Case 1-CA-6501, the
Union also filed a request to proceed in the
representation proceeding. An election was held on
October 29, 1968. The result was 16 votes for the
Union, 16 votes against the Union, and 3 chal-
lenged ballots. On the Union's objections to con-
duct affecting the results of the election, filed
November 1, the Regional Director reported
December 13, 1968, that two of the six objections
(Nos. 1 and 4 alleging that the Employer
threatened and coerced the employees and other-
wise interfered with the exercise of their self-or-
ganizational rights, and violated the Board's rules
relating to preelection conduct) "involve issues
substantially identical with those raised in the char-
ge" in Case 1-CA-6501 and needed resolution of
credibility issues by hearing;' and that determina-
tion of the challenges to the three uncounted bal-
lots also depended on credibility findings requiring
a hearing.
Consequently, on May 14, 1969, the Regional
Director issued an order consolidating for trial the
unfair labor practice case and the unresolved objec-
tions and challenges in the representation case.
THE ISSUES
1. The three challenges raised the following
questions:
(1) Whether employee Vincent Bonaviri had
voluntarily quit his job prior to the election and was
therefore ineligible to vote , as Respondent-Em-
ployer2 contended, or was only away from his job
because of illness and was prevented from returning
by a general layoff, as the Union contended.
(2) Whether employee Grace Cook was a casual
employee not eligible to vote , as Respondent con-
tended , or a regular part -time employee entitled to
vote, as the Union contended.
(3) Whether employee Ralph Fields was a super-
visor within the meaning of the Act and ineligible
to vote , as the Union contended , or a rank-and-file
employee entitled to vote, as the Respondent con-
tended.
II. The questions raised by the complaint and the
unresolved objections to conduct affecting the
results of the election , and by Respondent's answer
generally denying any wrongdoing, were:
(1) Whether Respondent in the period following
the filing of the representation petition and prior to
the holding of the election ( September 25 to Oc-
tober 29 , 1968): (1) Threatened to close the plant
in reprisal for union organization of the plant; (2)
created the impression of surveillance , and engaged
in surveillance , of employees' attendance at union
meetings ; ( 3) threatened discharge of employees if
they attended union meetings ; ( 4) threatened that
it would not sign a contract with the Union, and
would close the plant rather than sign such a con-
tract, to discourage employee support of the Union;
(5) intimated, or engaged in, a false seasonal layoff
of employees to discourage union activity; (6)
' The Regional Director found the other four objections to be without
merit
4 Hereinafter called simply Respondent Bonaviri and Grace Cook were
not included on the list of eligible employees prepared by Respondent and
hence were challenged, technically by the Board agent but in fact by
Respondent
ATLANTIC COAST FISHERIES 923
questioned an employee on how she would vote,
importuning her to vote against the Union; (7)
caused an employee alleged to be engaged in union
organizational activity to be removed and warned
away from the plant premises by the police; and
(2) If committed, whether any of the alleged
misconduct interfered with the free choice of the
employees in the representation election of Oc-
tober 29, 1968.
The cases were tried in Provincetown on June 11
and 12 and September 17, 1969.3 Counsel for all
three parties have filed briefs.
Upon the entire record of the case, including my
observation of the witnesses , and after due con-
sideration of the briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent Atlantic Coast Fisheries is a Mas-
sachusetts corporation with its principal office and
place of business in Provincetown, Massachusetts,
where it has been engaged in the processing and
packing of fish, brought in by fishing boats, and the
sale and distribution of the packaged fish. Since
1965, Respondent has been a wholly owned sub-
sidiary of Live Fish Company of Pittsburgh,
Pennsylvania, but the latter is not a named respond-
ent or employer in these cases.
Annually, Respondent ships from its Mas-
sachusetts plant to points outside Massachusetts
packaged fish valued in excess of $50,000.
Respondent is engaged, as it admitted at trial, in
commerce within the meaning of Section 2(6) and
(7) of the Act.
The Union is, as Respondent also admitted at tri-
al, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE STATUS OF THE CHALLENGED EMPLOYEES
A. Respondent's Business Operations
The description of the plant and operation was
provided largely by employees Fields and Bonaviri,
by the nonresident office manager and accountant,
Mrs. Elizabeth (Betty) Messenger, who spent most
of her time as office manager of the parent com-
pany in Pittsburgh and some of her time in Province-
town, and by the resident office manager and
bookkeeper, Mrs. Marguerite Flores.
Respondent's plant is a three-story building that
backs on the wharf in Provincetown and fronts on
3 The lapse between June and September was caused by the failure of
witnesses subpenaed by the General Counsel to attend in June and the
necessity to secure their attendance When attendance appeared assured
for September a further short extension to September 17 was granted for
the convenience of Respondent
4 Provincetown is a small town, at the tip of Cape Cod The town is about
3 miles in length on the very narrow peninsula of land between ocean and
bay Because of national parklands on the ocean side, the town area is even
narrower than the peninsula , accommodating only two main streets, Com-
or faces Commercial Street, one of the two streets
of any length in Provincetown.' There is also a
small separate office building on the front or Com-
mercial Street side of the plant.
The plant processes and packs freshly caught
fish, mainly whiting, brought to the Provincetown
wharf by oceangoing fishing boats. The fishing is
seasonal , principally from spring to winter, hence
the employment for most of the employees has
been seasonal with usually a winter layoff. Accord-
ing to Office Manager Messenger, there has been a
decline in the supply of whiting believed to be the
result of the large-scale fishing operations of the
Russian fishing fleet off the coast of Cape Cod and
in other Atlantic Ocean fishing beds.
The fish catches are brought the short distance
from wharf to plant by truck and are hoisted to the
third floor, where they are initially processed
through a chopper and a scaler (removing heads
and scales). The processing is continued on the first
floor where the fish are opened by a "butterfly"
machine, the bones removed (by three or four peo-
ple working at the end of the butterfly machine),
and the filleted fish washed. The fillets are then
run, on a machine belt, through a cupola, out of
which they come frozen, and are then packaged.
The packages, five or ten pounds each, are then
placed in a large freezer from whence they are
loaded into motortruck trailers for shipment.
The major packaging has been of frozen fish but
there has been some packing of fresh fish, which
also takes place on the first floor, where a brine for
packing purposes is mixed.
The second or middle floor of the plant is ap-
parently used only for the 1-pound and 1/2-pound
packaging of small whiting which are brought there
in tubs. When this operation takes place, the
ground- or first-floor crew moves up to the second
floor and does the work. When a trailer is being
loaded, the third-floor crew comes down to the first
floor and participates in the loading.
The production employees are entirely unskilled
labor, with the possible exception of the operator of
the butterfly machine who needs some skill (that
apparently has come in this case from the long
practice and experience of the operator, Ralph
Fields).5 Full crews, according to employee
Bonaviri, were about 12 to 15 employees on the
third floor and about 10 to 12 employees on the
first floor. According to Office Manager Messenger
in the busy season there was a total of from 45 to
60 employees engaged in production. Some of
these were not regular employees or even part-time
employees who returned for work each year, ac-
mercial and Bradford , that run approximately parallel the length of the
town, about a city block apart, with rows of narrow connecting streets The
year-round population of permanent residents is about 2,500 During the
summer months , of course, there is a great influx of vacationers and visi-
tors The testimony was that all of the permanent residents who worked in
Respondent 's plant lived in this closely confined town area.
5 Only two persons were engaged in maintenance , Ernest Irmer , the chief
engineer , conceded to be a supervisor within the meaning of the Act, and
his assistant
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cording to Resident Office Manager Flores, but
were ` drifters" who came in at the height of the
summer season for a few days or a few hours' work
and rarely came back again.
During layoffs, when fish was not being packed,
including the major winter layoff, four or five men
would be kept on, usually engaged in clean up and
maintenance type work. This practice was followed
in connection with the last layoff on October 23,
1968 (6 days before the representation election).
However operations were not resumed thereafter in
the spring or summer of 1969, and had not been
resumed at the conclusion of the trial in late Sep-
tember 1969. Indeed the production supervisor,
Anthony Motto, and the butterfly machine opera-
tor, Ralph Fields, who, as in previous layoffs, were
among the few carried beyond October 23, 1968,
both ceased work on February 22, 1969, when
Motto was discharged and Fields laid off, according
to Fields.
B. Vincent Bonaviri
Bonaviri described himself as a "full time," or
year-round, resident of Provincetown, who began
work for Respondent in the summer of 1965. He
was drafted into the armed services in October
1965, returned to civilian life in 1967, and resumed
work with Respondent in May 1968. He was a
general laborer, who worked primarily on the third
floor of the plant but also on the first floor, helping
unload fish brought up on the hoist, working on the
cutting machine, carrying packaged fish into the
freezer, and supplying ice for the freezer.
After September 21, 1968, Bonaviri stopped
coming in for work, and by the time of the general
layoff, October 23, 1968, had not reported back for
work, or notified the Employer why he was absent,
or that he was coming back.
Bonaviri's explanation was that he had developed
an arm infection, which he said was gurry poisoning
or a blood infection caused by spoiled fish,6 that he
was told he had the infection by a Dr. Donald
Hiebert of Provincetown, whom he said he saw on
October 1 and visited for treatment thereafter
every other day for 2 or 3 weeks, that Dr. Hiebert
recommended he not go to work until the infection
was cleared up, and that he did not go to work after
the treatment ended because he assumed he was
laid off along with the rest of the employees.
Bonaviri testified that it was common knowledge
among his fellow employees, including the son of
his foreman (Supervisor Motto), all of whom lived
in the tight little area comprising Provincetown (see
fn. 4, above), that he had the infection and was
coming back when it healed. He said he wore a
There was no medical evidence offered Webster 's dictionary defines
gurry as fishing offal, refuse from cutting up a whale, or a slimy gummy sub-
stance scraped off the back of a whale
r Bonaviri said he discussed his bandaged hand with Mrs Flores when he
came in for his paycheck but did not talk about why he was not working If
Bonavari came in for his paycheck in the last week in September, as Mrs
bandage wrapped on his hand with guaze and to e
as though it held a splint. Additionally, he said, he
had not sought or taken work elsewhere.
The difficulty with accepting Bonaviri's explana-
tion was that it was not corroborated by any em-
ployee, several of whom testified, or by any super-
visor, or by Dr. Hiebert. Indeed the testimony of
others contradicted Bonaviri, and some of his own
actions were inconsistent with the explanation.
The Employer's record that Bonaviri last worked
in the period September 15-21, 1968 (included in
Exh. R-1), was not in dispute. The bookkeeper and
resident office manager, Mrs. Marguerite Flores
(who was not claimed by anyone to be a supervisor
within the meaning of the Act), testified that
Bonaviri came in for his paycheck for the last
period worked around September 25 (Bonaviri
thought it might have been Friday, September 27,
or Friday, October 4). According to Mrs. Flores,
she had observed that the foreman had not listed
Bonaviri for any hours of work during the week and
asked him if he was working any more, and he said
no, he was going to Boston to work. She handed
him his check, she said, but there was no talk of in-
jury to or infection of his hand and she saw no
bandages on his hand. Mrs. Flores, also a town re-
sident, said she saw Bonaviri later around town, in
September and October, but saw no bandages on
his hand. Both she and Bonaviri agreed that he
made no report of injury, presented no doctor bill,
and made no claim for workmen's compensation,
although he testified he needed money and filed a
claim for unemployment compensation on
November 19 (a claim that was denied by the Mas-
sachusetts authorities on the ground that he aban-
doned his job without good cause, see Exh. R-1).
Mrs. Flores testified she heard about the alleged
gurry poisoning for the first time in connection with
Bonaviri's claim in November for unemployment
compensation .7
Employee Francis Joseph testified that Bonaviri
was among the 10 or 12 employees who gathered
outside the plant at 5 p.m. on September 25, 1968,
to organize a union, but employee Joseph provided
no evidence on the state of Bonaviri's health. Chief
Engineer Ernest Irmer, also a town resident and a
selectman of the town, testified that he saw this
gathering of the employees and Bonaviri among
them, but saw no bandage on Bonaviri's hand then
or ever, and had no knowledge that Bonaviri had
gurry poisoning.
Bonaviri said he didn't bother to make claim for
workmen's compensation because he had had gurry
poisoning once before, in 1965, had filed a claim,
and had received only $20; hence, it wasn't worth
the bother. (There was no documentation or other
Flores testified and as he conceded may have been the case, he had to in-
vent the discussion with Mrs Flores about the bandage, since , by his own
account , he did not begin to get medical advice and treatment until Oc-
tober 1 and he did not treat the hand himself On the matter of going to
Boston for work , Bonavin admitted to talk that he was going to Boston for
work but said he didn 't actually go until January
ATLANTIC COAST FISHERIES 925
support on this point.)
However, Bonaviri did file for unemployment
compensation benefits on November 19, 1968,
because, he said, he needed some income,
everybody at the plant had been laid off (October
23), and he assumed he would have been laid off
too. He hadn't bothered to go back to the plant, he
said, because if there had been work the plant
would have notified him, and there was no sense in
going back since there was no work. On December
6, 1968, the unemployment compensation claim
was initially denied by the Massachusetts Division
of Employment Security holding that Bonaviri left
his job voluntarily without good cause , because he
had failed to notify the Employer that he was ab-
sent due to illness and had failed to notify the Em-
ployer when he was able to return to work. On an
appeal to the agency taken by Bonaviri (that
resulted in a hearing on January 3, 1969, in which
he participated but the Employer did not), the
determination that he had abandoned his job was
affirmed on January 8, 1969. Exhibit R-1.
This decision, affirming the denial of the claim,
noted also the absence of any medical evidence to
substantiate Bonaviri's assertion that he had
developed a hand infection that prevented him
from working. At trial before me, Bonaviri
produced what purported to be a medical bill that
he had not produced at the unemployment com-
pensation hearing. It was for $72 from Dr. Hiebert
of Provincetown for medical services rendered
Bonaviri in the period October 1 through October
12, 1968 (Exh. Charging Party-1). The bill in-
dicated an infection of the right wrist with cellulitis
(a subcutaneous inflammation of the connective tis-
sue) and enlarged gland of the arm and axilla (arm-
pit), and treatment by incision and drainage of the
wrist, and by injections, involving in all eight office
visits , the first on October 1 the last on October 12.
This was the one and only "report" he had to sub-
stantiate his claim of illness , said Bonaviri, yet,
though it was dated November 13, 1968, and his
claim of illness was in issue , he did not offer the bill
at any stage of his claim for unemployment com-
pensation filed November 19, in particular at the
hearing of January 3, 1969.8
There was no explanation for the absence of, or
inability to obtain, any evidence from Dr. Hiebert
on the alleged illness , or any evidence supporting
the authenticity of the bill. Taking into account the
lack of any shred of live or other written corrobora-
tion of the alleged illness and bill, the damaging
testimony of two employees and fellow townspeo-
ple of this small community suggesting that there
was no illness , and the previous Tailure to produce
the alleged bill in the unemployment compensation
proceedings on at least two occasions when the fact
of illness was under question, I am of the opinion
that the alleged bill is of doubtful authenticity and
of no value in establishing or corroborating
Bonaviri's claim that he was kept away from his
former job with Respondent by a disabling illness.9
Conclusion: In my view, the evidence has
established that Bonaviri voluntarily quit his job
with Respondent in or at the close of the week end-
ing September 21, 1968, and that he was not an
employee eligible to vote in the representation elec-
tion of October 29, 1968. I recommend that the
challenge to his ballot be sustained and that the bal-
lot should not be opened or counted.
C. Grace Cook
Grace Cook is a year-round resident of Province-
town who, for the past 6 or 7 years, has worked
as a chambermaid in Provincetown resorts from
spring to the end of the resort closedown in Oc-
tober, and has then worked in Respondent's plant
from October until Respondent's winter closedown.
Her work for Respondent, coming at the end of
Respondent 's season , was not usually full weeks'
work. She came in each year, when her cham-
bermaid's job ended, reported to the plant super-
visor (Motto in 1968, she said) and, without filing
any new papers or application, worked as work was
available, until the winter layoff. She received the
same rate of pay as others in her classification, and
claimed and was paid unemployment compensation
each year after the winter layoff. Thus, as indicated
by her testimony and the payroll records produced
by Respondent for calendar 1967 and 1968, Grace
Cook had closed out the 1966 season with work in
5 weeks of early 1967 (the starting time in 1966
was not shown), had resumed for the 1967 season
in the week ending September 30 and continued in
the successive weeks of the 1967 season to the
week ending January 13, 1968; and resumed again
for the 1968 season in the week ending October 5,
1968.10 Cook worked in the week preceding the
layoff of October 23, 1968, i.e., the week ending
October 19, but not in the prior week ending Oc-
tober 12, which was the payroll week accepted by
the parties as the basis for Respondent preparing
the eligibility list for the representation election, ac-
cording to Office Manager Messenger, and the
eligibility week stated in the notice of election.
6 Bonavin suggested that the bill was incomplete and did not show visits
to the doctor later than October 12, but he provided no suggestion of what
those dates were or why he did not get a corrected bill
8 Even if the alleged medical bill were accepted at face value, there has
been no satisfactory explanation for Bonaviri not reporting to work
between September 21 (the end of the week in which he last worked) and
October I (when he was supposedly first examined by the doctor), or
between October 12 (the last day of the alleged visits to the doctor that is
shown on the bill) and October 23 (the day of the plant layoff), other than
the explanation testified to by Mrs Flores, that Bonavin said he was going
to Boston to work Counsel for the Union pointed to the testimony by Mrs
Flores and Bonaviri that it was not unusual for regular employees to take
occasional time off without calling in and without penalty for not reporting,
but Mrs Flores testified that this habit had not extended to taking off
several weeks and not calling in or reporting
10 The payroll record also shows 2 weeks at the end of April 1968 in
which she worked This would indicate that Respondent 's startup of the
plant for the 1968 season was at a time before Cook's chambermaid work
season began , so that she had time to come into the plant before starting
her summer resort work in 1968
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It became apparent at the trial that Mrs. Mes-
senger omitted Grace Cook's name from the eligi-
bility list because Cook's name did not show up in
the payroll of the week ending October 12 and not
because Respondent started out with doubts of her
employee status. Mrs. Messenger testified that
there were a few other women who, like Grace
Cook, worked "a limited number of hours" and
who were on the eligibility list and permitted to
vote. Mrs. Messenger named Mary Perkins specifi-
cally,[' who was on the payroll for the week ending
October 12. But Mrs. Messenger didn't know and
wasn't aware of Grace Cook (and Grace Cook
didn't know her) until about October 23 when
Cook came into the office to pick up her paycheck
for the week ending October 19. She got her check
from Mrs.Messenger (who was in the office for that
week preceding the election) and asked if there was
going to be an election. Mrs. Messenger told Cook
yes, and the date, but, looking at the list on her
desk from the payroll of the week ending October
12, also told Cook that she couldn't vote because
her name was not on the eligibility list. The eligibili-
t list had been filed with the Board's Regional Of-
fice on October 18, 5 days earlier.
When it became apparent at the trial that
Respondent had not opposed but had included on
the voting eligibility list other regular part-time ein-
ployees, such as Mary Perkins, as an afterthought
Office Manager Messenger suggested she should
have challenged Perkins but did not.
Conclusion: The so-called regular "full time" em-
ployees of Respondent were for the most part only
seasonal employees. In addition it was evident that
Respondent needed and used a small group of regu-
lar part-time employees, such as the women like
Grace Cook, who made their livelihood by combin-
ing summer hotel or other work with fall and early
winter employment by Respondent. Grace Cook
and the other women in this category were not
among the summertime "drifters' who came
through Provincetown and off the street for a few
hours or days' employment at the peak of the fish-
ing season, but were year-round town residents who
presented themselves to and were employed by
Respondent each year after their summer jobs
ended. As in case of the regular "full time" em-
ployees the days and hours of work for the regular
part-time employees fluctuated with the availability
of fish to be processed and packed except that the
fluctuations for the part-time employees were
greater overall, since these employees worked
mainly in the waning days op each season.
Nevertheless the regular part-timers shared a com-
munity of interest in the working conditions with
the other regular employees of the plant. Fresno
Auto Auction, Inc., 167 NLRB 878 (1967); Midway
Clover Farm Market, Inc., 175 NLRB 1038 (1969);
The Joclin Manufacturing Company , 144 NLRB
778, 780 , 781-782( 1963).
In my view employee Grace Cook was an em-
ployee eligible to vote in the representation elec-
tion . I recommend that the challenge to her ballot
be overruled and that the ballot be opened and
counted.
D. Ralph Fields
Ralph Fields worked for Respondent for approxi-
mately 27 years. By his own description he was a
fish handler or common laborer with authority over
no one. He disclaimed any supervisory capacity or
powers.
According to Office Manager Messenger, Fields
was the most experienced employee on the ground
floor of the plant where he performed his principal
duties.
The testimony of Fields and of the resident office
manager, Mrs. Flores, was that Fields was the
operator of the butterfly machine, that when it was
not in operation he carried and marked or sten-
cilled cartons for the packing of fish, packed fish,
worked in and out of the freezer, mixed the brine
for the packing of fresh (as distinct from frozen)
fish, helped loading trailers, helped unloading boats
at the wharf, and, in those winters when he was
kept on the payroll, did maintenance work. His pay
was the regular hourly wage of $1.75 per hour paid
the other employees, except that for those hours
spent on the butterfly machine he was paid $2 per
hour. If he worked overtime he was paid time and a
half as were other employees who worked over-
time.
Former employee Bonaviri provided the only
testimony suggesting that Fields had supervisory
duties and was in charge of the ground or first floor
of the plant. Bonaviri stated that Fields organized
what the people did on the first floor, that he in-
structed new people on the job, that he told em-
ployees when to go off and when to report back for
lunch and coffeebreaks and whether they might go
home early. Bonaviri further testified that Super-
visor Motto (admittedly a supervisor within the
meaning of the Act) spent most of his time on the
third floor, occasionally would be on the second
floor whenever the ground-floor crew moved up to
the second floor for the small packaging, but rarely
came down to the first floor and then only to walk
around for 5 minutes or less to see if everything was
all right. If Motto had problems, he would talk to
Fields, said Bonaviri.
The problem with crediting Bonaviri's testimony
on this subject was not only his apparent unrelia-
bility as a witness , as indicated by the testimony on
his own behalf covered under heading II, B, above,
but also the fact, admitted by him, that he spent his
principal time on the third floor and only a minor
" Grace Cook also named a Mary Bents as one who had a summer cham -
part of his time on the first floor, where Fields
bermaid job, worked for Respondent about the same time as Cook, and spent most of his time , and that a large part of
voted without challenge Bonaviri's first-floor time was spent in the freezer.
ATLANTIC COAST FISHERIES
Indeed Fields testified that he saw Bonaviri on the
first floor only a few times and Fields contradicted
most of what Bonaviri had to say about Fields'
status and functions.
According to Fields when he operated the but-
terfly machine, with 120 fish going through it per
minute , he could not take his eye off the machine
and had no time to look around at what was going
on in the shop. He said he was experienced on the
machine and that Supervisor Motto could rely upon
him to operate it properly, but could not rely upon
him to keep an eye on the other employees when
he worked the machine. Occasionally said Fields,
he took the telephone calls that came from Super-
visor Motto from the third floor, but more often
they were taken by the employee who worked
nearest the telephone, employee Pearl Camera,
who relayed the messages to the employees con-
cerned, such as the men in charge of the hoppers
into which the fish were coming down from the
third floor. Fields said he never took the telephone
calls when he worked on the butterfly machine, else
the work on the first floor would have come to a
halt. Employee Camera also informed the em-
ployees of Motto's directions on how long they
were to work on the given day, and she informed
Fields of Motto's directions on how long to operate
the butterfly machine.
Contrary to Bonaviri's testimony, Fields testified
that Motto came down frequently to the first floor,
and divided his time fairly evenly between the third
and first floors . While Fields fed the butterfly
machine, he said , Motto did not talk to him since
he, Fields was unable to take his eyes off the
machine while it was in operation.
According to Fields, Supervisor Motto was in
charge of the two working floors (floor one was not
in operation when floor two was being used) and
did not have to run up and down between floors to
see that things were running well, that Motto's ob-
servations as he moved about from third floor to
first floor kept him informed, and that when a
trailer was being loaded everybody, including Mot-
to, came down to the first floor to participate in the
loading and were directly under Motto's observa-
tion.
Fields testified that when he was not operating
the butterfly machine he took physical part in, but
did not oversee, the packaging operation (which
was also done principally on the first floor).
Bonaviri's testimony supported this assertion. In
fact Bonaviri named an employee Morton as the
one in charge of the packaging.
Fields denied having any function in the hiring or
firing of employees or in the assignment of work or
training of new people, testifying that Supervisor
Motto made the assignment and that new em-
ployees were shown the simple tasks required by
the persons already at their locations.
Conclusion: In the face of the testimony which
clearly suggests that Ralph Fields was a rank-and-
file employee, counsel for the Union has advanced
927
the argument that a failure to find that employee
Fields was a supervisor would mean accepting as
true the incredible condition, and disproportionate
ratio , of one 65-year -old supervisor ( Motto ) for ap-
proximately 50 employees , spread through three
floors and a loading dock.
As already indicated , this was not the condition
or ratio . Bonaviri 's testimony was that full crews
were about 12 to 15 employees on the third floor
and 10 to 12 employees on the first floor ( the num-
bers were temporarily higher at summertime peak,
according to Office Manager Messenger), and only
two floors were used at any one time in a fairly sim-
ple, unified operation requiring only manual labor
and one skilled operator for the butterfly machine.
Fields testified without contradiction , that when the
loading dock was in use , all production employees
participated in the loading under direct supervision
of Supervisor Motto.
Fields ' description of Supervisor Motto's
coverage of the two operating floors did not in-
dicate anything unusual or incredible about such
supervision for this type of operation . The fact that
new employees , including casual employees, could
and did perform without any training is further in-
dicative of the simplicity ofthe operation and the
relatively small demand , per individual employee,
upon supervision.
Moreover , it was Bonaviri 's testimony that em-
ployee Morton ( and not Fields) was in charge of
the major ppackaging , which took place on the first
floor . Fields agreed that he was not in charge, and
testified that he took a physical part in the packag-
ing when he was not operating the butterfly
machine.
The total testimony established that Fields was an
employee who engaged in operating the butterfly
machine and in other manual labor in and about
the plant for 100 percent of his time, and that he
was not a supervisor in any sense including within
the meaning of the Act. His employment continued
to and beyond the holding of the representation
election of October 29, 1968.
I recommend that the challenge to his ballot be
overruled and that his ballot be opened and
counted.
III. THE UNFAIR LABOR PRACTICE
A. Alleged Interrogation, Surveillance, Threats of
Layoff and Plant Closure
According to John Donegan, Jr., president and
business agent of the Union, the campaign to or-
ganize Respondent 's employees began in July 1968.
On the day the Union filed the petition for a
representation election, September 25, 1968, at or
about 5 p.m., approximately 10 or 12 of the em-
ployees met with a union representative outside the
plant, on Commercial Street, in full view of Super-
visor Motto's office on the third floor. On this occa-
sion a number of the employees signed union
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorization cards, according to employee Francis
Joseph , who said he saw Supervisor Motto watching
the meeting from his office window.
Employee Joseph testified that earlier that day,
about midday , a number of the employees had met
in the same place and arranged with the union
representative for the 5 o 'clock meeting. Also
about midday, employee Joseph was accosted on
the third floor of the plant by Supervisor Motto
(known also as Mucka), who said he understood
there was a union meeting to be held that night.
Employee Joseph said he didn 't know , he hadn't
heard , whereupon , according to Joseph , Supervisor
Motto said , "If I was you , I wouldn 't go. They
want to get rid of you . I am the only one who is
holding onto you. If you go , I don't know what will
happen."
Employee Joseph also testified , on cross-ex-
amination , that he had been warned by Supervisor
Motto not to discuss union business in the plant.
Supervisor Motto did not testify , and employee
Francis Joseph 's testimony was not contradicted. I
credit his testimony.
A few days thereafter employee George Joseph,
Jr., who had signed a union authorization card, was
engaged in conversation with Supervisor Motto.
Motto, according to George Joseph , said the "guys
are going to get a big suprise if the Union gets in. If
the l pion gets in they are going to lay you off."
Employee George Joseph had to have his recol-
lection refreshed , by a reading of a statement given
by him some time prior to trial to a Board investiga-
tor, in order to recall quoted language ; neverthe-
less, once his recollection was refreshed, he was
clear that Motto had told him this . Supervisor
Motto did not testify , and employee George
Joseph 's testimony was uncontradicted . I credit his
testimony.
Union President Donegan testified that on Oc-
tober 7, 1968, at an informal conference on the
Union 's representation petition , held at the Board's
Regional Office in Boston , Management Consultant
Jason , conceded to be an agent of Respondent and
representing Respondent at the conference, told
the two union representatives (the witness Donegan
was one of them) and their lawyer, Flamm, in the
presence of employees Virginia Perkins , Francis
Joseph , Howie Adams, and George Joseph , Sr., that
he, Jason would "just go back and close the plant."
Upon being admonished by the Board representa-
tive present to refrain from such talk, Jason replied
"I'm an old dog at this business so don't tell me
how to run it . I'll see that the plant is closed."
Respondent 's counsel , in his brief, argued that if
these statements were made they were testified to
out of context by witness Donegan.
However, at trial neither Jason nor the other
representative of Respondent , who had accom-
panied Jason to the conference , took the stand to
either refute the statements or to explain the con-
text or circumstances in which the statements were
made any differently than Donegan had . I credit
Donegan's testimony.
On October 23, 1968, according to employee
Francis Joseph, when he went to the office to pick
up his check, Supervisor Motto told him that
"everybody is laid off" except four or five employees
to clean freezers and do other cleanup work. This
was 6 days before the representation election.
In the late afternoon of the same day employee
Francis Joseph saw Office Manager Messenger out-
side her office and introduced himself. According
to employee Joseph he said to Mrs. Messenger he
was for the Union, to get a living wage and better
conditions, and she told him the Union was not
going to win but if it won Bernie (Benkowitz, pre-
sident of the company) was not going to recognize
it and might close the plant before he would recog-
nize it. Employee Joseph told her of a union meet-
ing that was to be held and invited her to come, but
she said she could not attend.
Mrs. Messenger agreed that employee Joseph ac-
costed her outside her office and invited her to a
union meeting, to talk to the employees she said,
but denied saying that President Benkowitz would
not recognize the Union or would close the plant.
Mrs. Messenger testified that she laughed at the in-
vitation to the union meeting and said, "you can't
be serious," because she thought employee Joseph
smelled of alcohol; but the circumstances also sug-
gest she was amused that in the face of her clearly
expressed opposition she should be invited to the
union meeting . She conceded she was opposed to
the Union, and she was concerned with the out-
come, because she had made this second visit and
second week's stay in Provincetown in the month of
October (which covered the preelection and elec-
tion days), whereas normally she came in from
Pittsburgh only, once per month for an approximate
week's stay. As already noted, talk by management
representatives of shutdown and layoff in opposing
the Union was already in the air and in my view of
the evidence Office Manager Messenger was a con-
tributor in this instance. I credit employee Francis
Joseph's testimony.
Employee Grace Cook also came to the plant on
October 23 to get her paycheck, as related under
heading II,C, above, and got her check from Office
Manager Messenger. Neither woman knew the
other before then. According to employee Cook,
Mrs. Messenger asked her if she was for the Union
and when Cook said she didn't know, Mrs. Mes-
senger allegedly asked Cook if she would come to
the office on the day of the voting, "to vote against
the Union because the Company couldn't afford
it."
Mrs. Messenger's testimony was quite different.
She said that after employee Cook identified herself
and got her paycheck, she asked if there was going
to be an election. Mrs. Messenger said she told
Cook yes, and the date, but, looking at the eligibili-
ty list on her desk, from the payroll of the week
ending October 12, also told Cook that she could
not vote because her name was not on the eligibility
ATLANTIC COAST FISHERIES 929
list. The week ending October 12 was the agreed
period for determining eligibility, and was so
specified in the Board notice of election that had
been mailed or delivered to Respondent on Oc-
tober 21. Employee Cook had not worked in the
week ending October 12, and her name was not
among the list of eligible voters supplied by
Respondent and received at the Board's Regional
Office on October 18. However Cook had worked
in the week preceding the eligibility week, the week
ending October 5, and in the week following Oc-
tober 12, the week ending October 19; but Mrs.
Messenger didn't know Grace Cook or become
aware of her until they met on October 23.
In the direct conflict of testimony between em-
ployee Cook and Office Manager Messenger, while
I have already recognized Mrs. Messengers interest
in the defeat of the Union, the circumstances of the
encounter suggest it was improbable that she would
question a person she regarded as ineligible to vote
about the person's views on the Union and impor-
tune the person to vote (particularly after getting
the evasive answer, if the question was asked and
answered as claimed). I do not credit employee
Cook's account of the encounter.
The representation election was scheduled for,
and held, beginning at 1 p.m. on October 29, 1968.
Just before noon, Office Manager Messenger left
her office for a nearby restaurant and was followed
into the restaurant by employee Howie Adams. He
came directly to her table, and demanded access to
the plant claiming he was a union official. His angry
manner , and his leaning over her with a knife hang-
ing from his belt, frightened Mrs. Messenger, she
said. She returned to the plant, apparently followed
by Adams, and asked Chief Engineer Irmer to get
the police. Irmer called the police asking them, he
said, to restrain Adams from coming on the proper-
ty because he had followed Mrs. Messenger, was
wearing a knife, and she was afraid of him. A police
officer removed Adams from the premises, said
Irmer, but apparently Adams was permitted to
come back at voting time, according to Mrs. Mes-
senger , and presumably voted. Adams did not testi-
fy and there was no testimony by any one else con-
cerning his conduct on October 29.
According to Mrs. Messenger, employee Adams
had no need to wear or to use a knife in his work.
Those men required to cut fish used machines and
large cutting knives kept in the plant. Adams had
been reprimanded on a previous occasion by Super-
visor Motto, and warned to dispense with wearing a
knife, because he had threatened another em-
ployee. Apparently Adams had complied because,
said Mrs. Messenger , she saw him wearing the knife
for the first time in the restaurant. I credit her
testimony concerning the Adams matter.
representation petition to the holding of the elec-
tion (September 25-October 29, 1968 ), Respond-
ent, through Supervisor Motto, Agent Jason, and
Office Manager Messenger , threatened substantial
reprisals against the employees if they supported
and voted for the Union as their bargaining
representative , in violation of Section 8(a)(1) of
the Act.
Employee Francis Joseph was threatened with
discharge by Supervisor Motto, on September 25, if
Joseph persisted in attending union meetings. In
this connection Supervisor Motto further interfered
with employee rights under Section 7 of the Act, by
indicating his awareness to employee Joseph of the
union meeting or meetings and creating the impres-
sion that the employees' union activities were under
surveillance. 12
Supervisor Motto also threatened , several days
after September 25, in his conversation with em-
ployee George Joseph , Jr., that there would be a
general layoff if the Union came into the plant.
Agent Jason , in discussing the representation
petition , threatened on October 7, in the presence
of four employees and three union representatives,
to see that the plant would be closed . N.L.R.B. v.
Gissel Packing Company , Inc., 395 U . S. 575,
618-620 (1969); N. L.R.B. v . Milco, Inc., 388 F.2d
133, 136-137 (C.A. 2, 1968).
Sixteen days later, and six days before the elec-
tion, on October 23 , the plant operation was shut
down by a general layoff in which only a few em-
ployees were retained to do the necessary plant
cleanup attendant on a shutdown . Respondent
made no announcement or explanation to its em-
ployees and , at trial , provided no evidence or ex-
planation concerning its occurrence, nature , cause,
or contemplated duration . The only evidence came
from two employees , Francis Joseph and Ralph
Fields.
Employee Francis Joseph was informed by Su-
pervisor Motto on October 23 that all employees
were laid off except four or five to do the cleanup.
Employee Fields testified that he and Supervisor
Motto were among- the few employees retained
after October 23, but that Motto was discharged
and he , Fields , laid off in February 1969, that
operations were not resumed in the spring or
summer of 1969, and that the closedown had con-
tinued since October 23, 1968.
The complaint, paragraph 8(f), charged that on
October 23 , 1968, Respondent, through Supervisor
Motto , " intimated a seasonal layoff of its em-
ployees for the purpose of discouraging their Union
activity ." The payroll records ( Res. Exh . R-2 for
Grace Cook ) indicated that the 1966 season went
well into early 1967, and that the 1967 season went
to at least January 1968. Hence it cannot be as-
B. Conclusions Re Section 8(a)(1)
The foregoing summary of the evidence
establishes that, in the period from the filing of the
" 1 do not regard the alleged observance by Supervisor Motto from his
office window of the union meeting held on the street as a violation Motto
was obviously where he had a right to be and the employees and union
representative took the chance of being observed
930 DECISIONS OF NATIONAL
sumed that the closedown on October 23, 1968,
was actually occasioned by seasonal necessity. With
the layoff effectuated 6 days before the representa-
tion election, on the heels of the threats to close the
plant and to layoff the employees, and on the same
day that Office Manager Messenger told employee
Francis Joseph (also in violation of the Act) that if
the Union won Respondent would close rather than
recognize it, the burden of explanation of the layoff
shifted to the Respondent, N.L.R.B. v. Great Dane
Trailers, Inc., 388 U.S. 26, 33-34 (1967). Absent
explanation, the general layoff of October 23,
1968, would appear to have been a further act of
intimidation by Respondent to discourage the em-
ployees from supporting the Union in the then
forthcoming election of October 29, in violation of
Section 8(a)(1) of the Act.13
The evidence did not sustain a finding that
Respondent interrogated employee Grace Cook on
how she intended to vote in the representation elec-
tion (paragraph 8(e) of the complaint), nor a find-
ing that Respondent wrongfully excluded employee
Howie Adams from its property (paragraph 8(g) of
the complaint). Accordingly, paragraphs 8(e) and
(g) of the complaint should be dismissed.
C. Objections to Conduct Affecting the Election
The substantial violations of Section 8(a)(1) of
the Act, committed by Respondent between the fil-
ing of the petition for a representation election and
the holding of the election, destroyed the "labora-
tory conditions," Neuhoff Brothers Packers, Inc. v.
N.L.R.B., 362 F.2d 611, 613 (C.A. 5, 1966),
desirable for the conduct of a Board election, and
interfered with the free choice of the employees.
Indeed, "conduct violative of Section 8(a)(1) is, a
fortiori, conduct which interferes with the exercise
of a free and untrammeled choice in an election ...
because the test of conduct which may interfere
with the `laboratory conditions' for an election is
considerably more restrictive than the conduct
which amounts to interference, restraint, or coer-
cion which violates Section 8(a)(1)." Dal-Tex Opti-
cal Company, Inc., 137 NLRB 1782, 1786-87
(1962); Pace, Inc., 167 NLRB 1089 (1967), and
cases cited therein.
A fortiori, the Union has established its Objec-
tions 1 and 4 to the conduct of Respondent affect-
ing the results of the election.
Accordingly, if on the revised tally of the ballots
the Union has not received a majority of the valid
ballots cast in the election, I recommend that the
election be set aside and, upon the Union's request,
that a new election be held, after severance of Case
1-RC-10,237 from the consolidated proceeding.
Wendling Printing Company, 177 NLRB 544
(1969).
"The complaint did not charge any violation of Section 8(a)(3) of the
Act, as it well might have , in this instance
LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. By creating the impression of surveillance of
its employees' union activity, by threatening em-
ployees with discharge for attendin g union meetings
and with layoff, plant closure, and refusal to bar-
gain with the Union, if employees chose the Union
as their bargaining representative, and by initiating
a sham seasonal layoff just prior to the representa-
tion election in order to discourage employee sup-
port of the Union, Respondent engaged in unfair
labor practices within the meaning of Section
8(a)(1) of the Act.
2. These unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the
Act.
3. Paragraph 8(e) of the complaint, alleging that
Respondent unlawfully interrogated employees on
how they intended to vote at the Board-conducted
representation election, and paragraph 8(g) of the
complaint, alleging that Respondent caused an em-
ployee to be wrongfully excluded from its property
to discourage union activity, are dismissed for in-
sufficiency of evidence.
4. Grace Cook and Ralph Fields were employees
of Respondent entitled to vote in the representation
election of October 29, 1968, and to have their bal-
lots counted. Vincent Bonaviri had been an em-
ployee of Respondent who quit his job in or at the
close of the week ending September 21, 1968, and
was not an employee eligible to vote in the
representation election of October 29, 1968, or en-
titled to have his ballot counted.
5. The unfair labor practices of the Respondent
committed in the period between the filing of the
representation petition and the holding of the elec-
tion interfered with the free choice of the em-
ployees, and warrants setting aside the election, if
the Union has not received a ma ority on the
revised tally of the ballots, and the holding of a new
election if the Union requests it.
THE REMEDY
I shall recommend that Respondent cease and
desist from its unfair labor practices, and not only
post but mail to each employee a copy of the notice
provided for herein, since the employees continue
to be in "layoff" status. As a roster of employees,
for mailing and other purposes specified herein,
Respondent shall use the voting eligibility list of the
October 29, 1968, election as modified by this deci-
sion.
I shall also recommend that upon resumption of
plant operations Respondent shall notify each of
the employees on the roster and reinstate each of
them who applies to his former or similar job, giv-
ing priority to employees on the roster who apply
over new employees, and subject to Respondent
making whole for any resulting loss of earnings any
applying employee who is refused reinstatement
within 5 days after his application. Any such loss of
ATLANTIC COAST FISHERIES
earnings shall be computed on a quarterly basis
with interest at 6 percent per annum, in accordance
with established Board practice.
Summarizing what I have already said regarding
the representation case, I recommend, after
severance of the representation case from the con-
solidated proceeding, that the Regional Director
revise the tally of the ballots, after opening and
counting the ballots of employees Grace Cook and
Ralph Fields, and discarding the ballot of ineligible
former employee Vincent Bonaviri; and, because
the preelection misconduct of Respondent inter-
fered with a free choice by the employees in the
election, if the revised tally does not give the Union
a majority of the valid ballots cast in the election, I
further recommend that the Regional Director set
aside the election and cause another election to be
conducted, upon application of the Union.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and con-
clusions, and upon the entire record, I recommend
that Respondent, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Creating the impression that the union ac-
tivity of the employees is under the Employer's sur-
veillance.
(b) Threatening employees with discharge or
other reprisal if they attend union meetings.
(c) Threatening employees that they will be laid
off, or that the plant will be closed, or that the Em-
ployer will not recognize and bargain with the
Union, if the employees choose the Union as their
collective-bargaining representative.
(d) Initiating and continuing a sham seasonal
layoff of the employees to discourage their choos-
ing and supporting the Union as their collective-
bargaining representative.
(e) In any other manner interfering with,
restraining, or coercing employees in the exercise
of their rights guaranteed under Section 7 of the
Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Upon resumption of plant operations, notify
each of the employees ( using as a roster the list of
eligible employees of the October 29, 1968, elec-
tion, with employees Grace Cook and Ralph Fields
included), and reinstate each of them, who applies,
to his former or similar job, giving priority to em-
ployees on the roster befoie hiring replacements.
Make whole each such applying employee for any
loss of earnings, if Respondent should refuse to
reinstate him, so long as the refusal continues,
beginning 5 days after the employee applied for
reinstatement and computing the loss of earnings in
the manner set out in the section of this decision
entitled "The Remedy." Preserve and make availa-
ble to the Board or its agents any records necessary
931
to effectuate the provisions of this paragraph of the
order.
(b) Post in its establishment at Provincetown,
Massachusetts, and mail to each of its employees,
copies of the attached notice marked "Appendix""
(using as mailing list the roster of employees pro-
vided for in paragraph 2(a), above). Immediately
upon receipt of copies of said notice, on forms to
be provided by the Regional Director for Region 1
(Boston , Massachusetts), Respondent shall cause
the copies to be signed by one of its authorized
representatives and mailed to its employees and
posted. The posted copies shall be maintained for a
period of 60 consecutive days thereafter in con-
spicuous places, including all places where notices
to employees are customarily posted if the plant
and offices are open and accessible to the em-
ployees, and if not open and accessible to the em-
ployees, then on the exteriors of the plant and of-
fice doors. Reasonable steps shall be taken by
Respondent to insure that the posted notices are
firmly secured, and are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 1, in
writing, within 20 days from the receipt of this
Decision, what steps the Respondent has taken to
comply therewith.'
11 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations, and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board " shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
1S In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing , within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all sides had the opportunity
to present their evidence the National Labor Rela-
tions Board has found that we violated the Act, and
has told us to post this notice and to keep our word
about what we say in this notice.
WE WILL NOT watch or give you the impres-
sion we are watching your union activities.
WE WILL NOT threaten to fire you or other-
wise punish you because you attend union
meetings.
427-258 O-LT - 74 - 60
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten to lay you off, or to
close the plant , or to refuse to recognize and
bargain with the Union, if you choose the
Union to represent you as your bargaining
agent.
WE WILL NOT initiate or continue a pre-
tended seasonal layoff to discourage you from
choosing and supporting the Union as your
bargaining agent.
WE WILL NOT in any manner interfere with
your right to join, vote for, or be represented
by a labor union.
WE WILL, upon resuming plant operations,
notify each of you and offer back to each who
applies his old or similar job, giving you
preference before hiring replacements. If we
should fail to reinstate an applying employee
within 5 days after his application WE WILL pay
him for any resulting loss of earnings suffered
by him.
You are free to become or remain, or to refrain
from becoming or remaining, members of Sea Food
Workers' Union Local 2, Series 1572, International
Longshoremen 's Association , AFL-CIO, or any
other labor union.
ATLANTIC COAST
FISHERIES
(Employer)
Dated By
(Representative) (Ti itle)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 20th Floor, John F. Kennedy
Federal Building, Cambridge and New Sudbury
Streets, Boston, Massachusetts, Telephone
223-3300.