Bonanza Farms, Inc

National Labor Relations Board - Board Decisions

Nov 15, 1988

291 N.L.R.B. 720 (N.L.R.B. 1988)

720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bonanza Farms , Inc and Robert E Willis Case 21-
CA-26004
November 15 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On August 16 1988 Administrative Law Judge
Richard J Boyce issued the attached decision The
Respondent filed exceptions and a supporting brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge s rulings findings 1 and
conclusions and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent Bonanza
Farms Inc El Centro California its officers
agents successors and assigns shall take the action
set forth in the Order
' The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
Robert R Petering Esq for the General Counsel
Larry A Dawson Esq (Dressler & Quesenberry) of El
Centro California for the Respondent
Robert E Willis of Salinas California pro se
DECISION
STATEMENT OF THE CASE
RICHARD J BOYCE Administrative Law Judge This
matter was tried in El Centro California on May 25 and
26 1988 The complaint based on a charge filed by
Robert E Willis issued on March 28 1988 was amend
ed during the trial and alleges that Bonanza Farms Inc
(Respondent) discharged Willis and two others Tim Noe
and Tim Crabtree on February 11 1988 thereby violat
Ing Section 8(a)(1) of the National Labor Relations Act
(Act) because they had engaged in statutorily protected
activities I
' Sec 8(a)(1) prohibits an employer from interfering with restraining
or coercing employees in the exercise of the rights guaranteed in section
7 of the Act Sec 7 guarantees employees the right to self-organization
to form join or assist labor organizations and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection
Respondent contends that Willis and Noe quit and
that Crabtree was laid off for reasons unrelated to pro
tected activities
II JURISDICTION
Respondent a California corporation operates a
produce packing shed in El Centro It annually sells and
ships commodities valued in excess of $50 000 directly to
customers outside California and thus is an employer en
gaged in and affecting commerce within Section 2(2)
(6) and (7) of the Act
III THE ALLEGED MISCONDUCT
A Evidence
1 Events predating August 11
Respondents dock foreman Mark Lyons operated the
vacuum cooler tubes in addition to performing certain
management functions 2 The latter sometimes required
that he leave the tubes in which case he either shut
them down or arranged for Noe or Willis to operate
them When the tubes were shut down the employees
loading lettuce into them perforce were idled This
meant loss of income for they were paid on a piece rate
basis
On February 9 Willis assertedly found that the tubes
had been shut down and that Lyons was nowhere
around He testified that he thereupon started them up
at the same time venting his frustration about Lyons to
coworkers Crabtree Noe and Mark Morrow They de
cided to confront Lyons on his return Willis continued
and in the resulting encounter attended by the four of
them he complained to Lyons
You have to keep the tubes running That s
how we make our money We work piece rate If
we worked by the hour I wouldn t care By
them shutting the tubes down we ve got to be there
longer and make less money per hour
Willis testified that Lyons got mad in response an
nouncing that he was the boss and that the incident
concluded on that note He added however that the
tension kind of blew over that night
The tubes again were down the afternoon of the
next day February 10 according to Willis prompting
him to speak once more with Crabtree Noe and
Morrow this time vowing with their concurrence not
to restart the tubes Willis testified that the group ap
proached Lyons anew when he later appeared Willis it
erated that Lyons had to keep those tubes running as
he recounted and Lyons replied If you don t like the
way I operate the tubes why don t you get somebody
else? Willis professedly rejoined [F]ine if that s
what it takes to keep them running and Lyons came
back that he was doing the best he could but had a
lot of other things to do Lyons ranted and
2 Lyons was promoted to foreman on January 5 1988
291 NLRB No 112
BONANZA FARMS 721
raved according to Willis and was all pushed out of
shape
The encounter lasted 15 to 20 minutes by Willis esti
mate
Crabtree testified that Willis complained to him on or
about February 8 about Lyons shutting the tubes
down and that he counseled moderation advising
Willis to just kind of let things go a little bit if they re
not real bad Willis fairly upset came to him again
on February 10 Crabtree recalled declaring that the sit
uation had been going on long enough whereupon the
two of them and Noe decided to confront Lyons and
get it taken care of
Lyons appeared on the dock about then according to
Crabtree prompting Crabtree to call out that the em
ployees had a problem Willis then jumped in per
Crabtree stating that there s been numerous times
Lyons had been shutting them tubes down and walking
off that Willis was tired of it and that Lyons was
taking money out of Willis pocket by not doing his
job
Crabtree testified that Lyons spoke with him and Noe
on the dock later that day conceding
I have been holding you guys up a little bit
They just got me running around too much
Do you think I ought to get another operator?
111 talk to Shaner tonight 3
Crabtree averred that Lyons
come back a couple of more different times
that evening and just kind of shaking his head and
just saying that You know I have been hold
ing you guys up
up and pledging to talk to Shaner and take care of the
problem
Noe also testified that between the encounter initiated
by the employees and that initiated by Lyons he had a
10 to 15 minute one on one conversation with Lyons in
which Lyons pretty upset said he would talk to
Steve Shaner and try to straighten things out on it
Morrow testified that he met with Lyons twice as part
of a group- the evening of the 10th and a few days
before that He recalled that he Willis and Crabtree at
tended the first meeting which lasted probably 5 min
utes complaining to Lyons that he could not adequately
serve both as dock foreman and tube operator The en
counter on February 10 included Noe as well as the
other three according to Morrow and lasted 15 to 20
minutes and
we told him that we didn t think that he should
try to operate the tube and be the management too
if he can t do both that he should make a decision
between the two jobs
Morrow testified that Lyons was totally agreeable
apologizing for leaving the tube and causing the extra
hours we had to be down there
Lyons controverted the foregoing accounts in major
detail Although admitting that Willis complained to him
on February 8 or 9 that he was not operating the tubes
right and wasn t doing his job Lyons denied that any
other employees were present He further denied any
later encounters on the point singly or collectively with
Willis or anyone else He denied as well that he ever
acknowledged error regarding his operation of the
tubes to any employee
2 Events of February 11
Crabtree assertedly thought everything was patched up
and honed down at that point
Willis to the contrary Crabtree testified that the en
counter on February 10 was the only time the employees
as a group confronted Lyons about shutting down the
tubes
Noe testified that he Willis Crabtree and Morrow
had gotten together on February 9 and talked about
[Lyons] leaving our tubes and shutting us down from
loading lettuce resolving to call a meeting with him
[and] tell him what we felt A meeting ensued that
afternoon according to Noe with Willis telling Lyons
that he and Noe were tired of operating the tubes for
him Noe testified that Lyons then asked the others how
they felt and he Noe answered that he was tired of op
erating the tube for Lyons Noe recalled that the session
lasted about 20 minutes
Noe later testified that the above was one of two
meetings both on the same day in which all of us
had got together to talk to Lyons He then amended
that he could recall only the one group confrontation
but that Lyons went to the four complaining employees
afterwards acknowledging that he had been screwing
3 Steven Shaner Respondents controller who had installed Lyons as
dock foreman in early January
a Willis
Willis testified that as he was about to clock in at 8
a in February 11 Lyons asked if he had a problem
with Lyons work that he replied No not when you
do it that Lyons kind of got mad at that point men
tioning all this stuff he had to do besides operate the
tubes and that Willis rejoined Yeah I know that but
we ve got to keep the tubes running Lyons then of
fered per Willis You guys can just get somebody else
and he responded Fine we can do that
With that Willis proceeded Lyons started to walk
off and he turned around and he told me I was fired
This exchange followed according to Willis
Willis What do you mean I in fired? For what?
Lyons You re just fired
Willis For what the way I work? I do my work
I do everything I in supposed to be doing
Lyons You re fired Get off the property
Willis testified that he then asked if he could stay until
Noe and Crabtree got there that Lyons repeated Get
off the premises and that he complied
Lyons recounted the incident quite differently He tes
tified that he initiated it by asking Willis how he was
722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
doing that Willis answered I want to know what your
jobs going to be today that he replied that he was
going to operate the vacuum tube that Willis came
back that he Noe and Crabtree had talked about hiring
their own operator and that he remonstrated
I in the management here and I ve got the right to
direct the work force and if anybody s going to
hire an operator 111 hire an operator not you
Willis responded according to Lyons that Lyons had
been goofing around over there on that tube blah
blah blah and keeping us here longer and everything
like that and he countered that he had had problems
the last two days with the air compressor and prob
lems with this and that on that tube but thought he was
doing a good job Willis declared according to Lyons
Well you know what? You ve got to make your mind
up What are you going to be the boss or the worker?
Lyons assertedly replied [R]ight now I in the dock
foreman You re not just going to hire anybody
you want to operate the tube I should have a say so
on it
Lyons would have it that Willis thereupon proclaimed
Well I in not going to work under those conditions
and turned and walked off Willis stated while walking
away according to Lyons that he would wait for Noe
and Crabtree and Lyons directed him to wait for them
outside the gate
Willis denied on rebuttal that he told Lyons he
could not work under these conditions and [was] quit
ting Lyons denied that he intended to or did fire Willis
Crabtree testified that before he left for work the
morning of February 11 Willis came by his house re
porting They fired me
b Crabtree Noe
Crabtree Noe and Morrow arrived at work at the
same time Crabtree testified that Lyons met them be
tween the parking lot and the office telling Crabtree that
he no longer worked there then handing Noe his
timecard while stating Are you going to punch in?
The timeclock is in the office Noe went to the office
according to Crabtree presently returning to state It s
not 9 00 o clock yet Nine was Noes usual starting
time Crabtree continued that Lyons meanwhile gave
Morrow his card asking if he was going to punch in
and that Morrow grabbed the timecard and went about
his way
Crabtree testified that he followed Lyons as Lyons
walked away forcing this exchange
Crabtree Mark I want to know what s going
on?
Lyons I don t have to explain nothing to
nobody I in the fucking boss around here
Crabtree I think I deserve an explanation
Lyons I don t have to explain nothing to no
cocksuckers
Crabtree Mark be a man and turn around I
want to know what s going on
Lyons I don t need no backstabbing mother
fuckers around here you Timmy Noe or Robert
Willis
Crabtree [D]on t call me a cocksucker or a
motherfucker Neither one I am And further
more there was no backstabbing going on We
got together and we told you right to your face
Lyons You get the hell out of here
Crabtree I in not leaving
Lyons If you don t leave I in going to call the
sheriff and have you removed
Crabtree [Y]ou d better call him
Lyons then stormed into the office according to
Crabtree presently emerging to engage Noe in a little
argument Crabtree admittedly did not hear all that fol
lowed between Lyons and Noe but assertedly saw
Lyons remove his glasses and place a finger on Noe s
chest in such a way that he thought they were going to
go at it that is start a fight A fight however
did not materialize
Crabtree related that Noe instead announced that he
was going to Shaner and that Noe and Crabtree there
upon confronted Shaner in the office resulting in this
dialogue
Noe What s going on around here?
Shaner Not much
Noe Why is all this happening?
Shaner I thought we needed a change You
know sometimes you have to be an asshole
Noe testified that before encountering Lyons the
morning of February 11 he Crabtree and Morrow went
into the office to get their timecards that the cards were
not in the rack and that Lyons came out on the dock
screaming and yelling the cards in his back pocket
Noe s recital went on that Lyons started arguing with
us if we didn t like what he was doing to hit the gate
that no one was going to tell him what to do Noe con
tinued that Lyons shortly told [him] to go to work or
hit the gate that he responded that it was not yet 9
am and that he went to a rotator forklift to put on a
hose that had fallen off the night before
Noe testified that Lyons then accused him of tam
pering with the rotator and told him to leave and
that he responded that he was not leaving and walked
away Noe proceeded that Lyons
followed me and took his glasses off and
told me if I didn t leave he was going to kick my
ass and he shoved me and I left
Noe also testified that Lyons called him a backstabbing
motherfucker at some point in this exchange to which
Noe replied I didn t backstab you I told you right to
your face
Noe further testified that he heard Lyons tell Crabtree
that morning that he was fired call him a backstab
ber and tell him he couldn t count 4
4 A presumed reference to shortages of which more later
BONANZA FARMS 723
Besides averring that his timecard was not in the rack
on February 11 Noe testified that he never saw it His
testimony was silent about an encounter with Shaner that
day
Morrow testified that Lyons had all the timecards in
his hand when he confronted the three employees the
morning of February 11 that the first thing he did was
tell Tim Crabtree to hit the gate that he then asked
Morrow if he worked there and that to Morrow s
answer As far as I know I work here Lyons gave
him his card and directed him to go to work
About then according to Morrow Lyons and Noe
started arguing and Lyons asked Noe to leave Mor
row s account contained no particulars otherwise of the
exchange between Lyons and Noe nor of that between
Lyons and Crabtree
Morrow testified that he performed Willis job on
February 11 with Lyons performing his He insisted
shown his timecard containing no indication that he
punched in or out on February 11 and bearing a hand
written notation that he was off sick that he indeed
was present and that whoever wrote off sick on that is
lying He expanded I forgot a lot to punch in and I
was reprimanded for it several times The requirement
that the employees clock in and out had been imposed
only recently and had no bearing on their pay-which
as noted was figured by the piece
Lyons testified that he told Crabtree upon Crabtree s
and Noes arrival February 11 that he was laying him
off Lyons explained so he related that some wrong
loadings had occurred the previous night for which
Crabtree was responsible because his name was on the
manifest and that Crabtree also had had problems with
shortages and everything Crabtree responded per
Lyons by stating that Respondent would be unable to
handle the volume without him and Willis and by
asking What did you fire Willis for? Lyons testified
that he denied firing Willis and Crabtree quoted Willis
to the contrary
Lyons recounted that Noe then injected alluding to
the Willis situation What did you do that for? and that
he came back Timmy just punch in and go to
work Ill take care of this problem here Noe stated
per Lyons that he was not going to go to work that
its not 900 o clock yet and Lyons said When it
gets 900 go ahead and go to work
Lyons continued that Crabtree shortly exclaimed
You cant fire me and that he shot back [I]f you
don t leave I in going to call the sheriff
With that Lyons testified he began to walk away
when he saw Noe messing with the rotator trying to
change the hoses or something and tear it up Lyons ad
monished Noe to just leave the equipment alone as he
recalled Noe declared [Y]ou won t load a box off this
dock 111 see to that and Lyons announced I in
going to call the sheriff on both you guys Lyons went
on that he presently said he had had problems with
loading that Noe retorted Well you know what s
wrong what your doing s wrong and Lyons answered
that he was just trying to get Noe to go to work
Lyons recalled that Crabtree then reentered the fray
telling me some more stuff prompting Lyons to pro
claim I don t want to hear it You re laid off and
that a it 111 just go inside and call the sheriff And
call the sheriff he did Crabtree and Noe left the prem
ises together before the sheriff's arrival
Lyons testified that he removed only Crabtree s time
card from the rack on February 11 that he had no in
tention to and did not fire Noe He testified elsewhere
that testing the rotator after Noe s departure 5 he found
Noe s card just setting there so he just picked it up
and went over to the office Lyons denied taking off his
glasses and poking Noe in the chest as if preparing to
fight
John Spycher a production employee for Respondent
since its inception in 1986 testified that Lyons told him
on February 11 before the arrival of Noe and Crabtree
that he was going to put [Spycher] back on the lettuce
loader in Crabtree s stead a little earlier than ex
pected because of the shortages that had been occurring
and kept occurring Lyons also said according to
Spycher that he had given Crabtree so many chances
to rectify it and couldn t go on Spycher testified
as well that he heard Lyons tell Crabtree that morning
that he was putting Spycher back on the loading fork
lift because of the shortages that Respondent had given
Crabtree many chances and just couldn t afford the
shortages anymore Spycher additionally averred that
he heard Noe tell Lyons with reference to Crabtree
Well if he goes I in going
Shaner testi1 ying briefly denied any conversation
with Noe or Ci abtree on February 11 Regarding Crab
tree s attribution to him of the remark that sometimes
you have to be an asshole Shaner testified that he said
something to that effect when he spoke to the employees
in early January about effecting cost cutting measures
Lyons testified that he was going to lay [Crabtree]
off because of slow volume given that the broccoli
season was ending that he was going down to six
guys The choice he added was between [Crabtree]
and Willis - the last guys hired 6 and he decided on
Crabtree although more senior than Willis because of
some shortages blamable on Crabtree and some disci
pline problems with him The decision he went
on was basically his alone made the night of Febru
ary 10 He probably would have told Crabtree then
he testified but he [had] left Asked if he had dis
cussed the decision with anyone else in management
Lyons testified
No Not that I can remember to be honest
with you You know I may have told someone but
I don t-I cant remember you know if I did or
not no
Lyons did not explain why he adhered to his decision to
lay off Crabtree even after Willis departure earlier on
February 11 He did testify however that part of
what pushed him over the edge concerning Crab
tree was i loading mistake the night of February 10
s Lyons testified that it was unharmed also that he would not have
fired Noe for his alleged tampering
6 Both were hired in December 1987
724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
whereby 240 boxes of the wrong brand of lettuce-Hoss
rather than Salinas Lettuce Farmers-was placed in a
shipment to Michigan Pressed on cross examination
about the harm of this Lyons conceded that the custom
er would suffer none and that he wouldn t dis
charge a guy right off the bat for it He was unable
moreover to make a cogent case of harm to Respondent
Crabtree Noe and Willis all testified on rebuttal that
they first heard about this alleged loading mistake when
it came up during the trial
Regarding the shortages or erroneous loading counts
for which Lyons ostensibly held Crabtree responsible
Lyons testified that he spoke with Crabtree about the
problem six or seven times at least that he warned
Crabtree twice and that he thought he suspended Crab
tree three days on the 16th of January for not
punching in and for shortages Neither of the warnings
nor the suspension was documented Crabtree acknowl
edged that Lyons spoke to him about short counts
probably three or four times even enlisting Spycher to
impart his counting know how for a time Crabtree dis
puted however that he was suspended for that reason
contending that he missed one day of work for not
punching in the timeclock 7 Spycher testified that be
sides engaging him to tutor Crabtree the one time Lyons
mentioned the problem of shortages to Sp ycher at least
half a dozen times saying that Respondent was very
upset about them and just couldn t afford to keep
having them The record contains no evidence that the
problem resurfaced at any time proximate to Crabtree s
termination
The departures of Willis Noe and Ciabtree left Re
spondent shorthanded for a time
IV CONCLUSIONS AND REASONS
Crabtree inarguably was discharged on February 11
The threshold issue concerning Willis and Noe is wheth
er they quit as Respondent would have it or were dis
charged I credit Willis that Lyons expressly told him he
was fired 8 and while the Noe situation is less explicit
Lyons admitted pronouncement to Crabtree and Noe
that he was going to call the sheriff on both to get
them off the premises bespeaks a forced rather than vol
untary severance as do Lyons remark to Noe that he
would kick [his] ass if he did not leave 9 and his corn
ment to Crabtree I don t need no backstabbing mother
fuckers around here you Timmy Noe or Robert
Willis 10
' Addressing Lyons assertion that he was suspended for 3 days Crab
tree testified that he was absent 3 days by prearrangement to attend an
automobile racing event and that he neglected to punch in on his return
so was told to take that day off as well Crabtree corcededly was
sloppy about punching his card
8 Willis demeanor in the telling carried greater conviction than did
Lyons testifying to the contrary
9 I credit Noe and Crabtree that Lyons removed his glasses and other
wise assumed a posture as if preparing to fight Noe and I credit Noe that
Lyons made this remark Their testimonial demeanors were more persua
sive than Lyons regarding the incident
10 Crediting Crabtree s detailed and cogent account
That Lyons was contemplating the discharge of Noe
along with Crabtree and even Morrow dependent on
their reactions is evident moreover from his having
their timecards in hand or pocket when confronting
them the morning of February 11 't Shaner s answer to
Noe that morning that a change was needed and some
times you have to be an asshole likewise suggests ad
verse action 12 I therefore find that Willis and Noe as
well as Crabtree were discharged
The next issue is causation The analytical approach to
be taken in that regard is as prescribed in Wright Line
[W]e shall henceforth employ the following causa
tion test in all cases alleging violation of Section
8(a)(3) or violations of Section 8(a)(1) turning on
employer motivation First we shall require that the
General Counsel make a prima facie showing suffi
dent to support the inference that protected con
duct was a motivating factor in the employer s
decision Once this is established the burden will
shift to the employer to demonstrate that the same
action would have taken place even in the absence
of the protected conduct 13
I conclude that the General Counsel has made a puma
facie showing that a motivating factor in each discharge
was the affected employees engagement in statutorily
protected activities My reasons for this conclusion are
1 Although the testimony of the three dischargees and
Morrow lacked internal consistency in various respects I
am persuaded that they shared a concern over the way
Lyons operation of the cooling tubes affected their earn
ings that they discussed that concern among themselves
that they concertedly raised it with Lyons on February
10 if not earlier i4 and that Willis revealed the concer
tedness of their concern again on the 11th before anyone
was discharged by telling Lyons that he Noe and Crab
tree had talked about hiring their own operator 15
2 Further I conclude that the employees concerted
activities in this regard were for their mutual aid or
protection in the context of terms or conditions of em
Crabtree Noe and Morrow were altogether convincing that Lyons
had their timecards Lyons to the contrary was not (Morrow s insist
ence that he worked that day despite what might be inferred from his
timecard likewise was convincing )
12I credit Crabtree despite the absence of corroboration from Noe
that Shaner so spoke Crabtree came across generally as a sincere and
competent witness Shaner s denial on the other hand was rendered me
chanically and without conviction
13 251 NLRB 1083 1089 (1980) This formulation received Supreme
Court approval in NLRB Y Transportation Management Corp 462 U S
393 (1983)
1 Willis Noe Crabtree and Morrow generally evinced conscientious
ness during their recitals whereas Lyons denial that they concertedly
spoke to him before the discharges did not I agree with the observation
in the General Counsel s brief that the discrepancies among the three dis
chargees and Morrow show that they did not conspire to fabricate a
story And carefully observing them as they testified I formed the im
pression that they had not received much of the usual and perfectly ethi
cal pretrial preparation either that (with the exception of Crabtree) ar
ticulation is not their forte and that counsel were not particularly assidu
ous in exacting precision from them
15 Per Lyons testimony
BONANZA FARMS
ployment and thus were protected by Section 7 of the
Act 16
3 The three discharges occurred the same morning
indicating a common motive and came on the heels of
the dischargees protected protest activities suggesting a
causal connection Such a connection also is revealed by
Lyons accompanying references to the dischargees as
backstabbers and the like-manifest allusions to their
protected activities and unlikely concomitants of busi
ness as usual terminations 17
4 Respondents mischaracterization of its actions
against Willis and Noe contending that they quit be
trays its feeling that deception was essential to the suc
cess of its case regarding those two
With respect to Respondents burden under Wright
Line given the General Counsels prima facie showing I
conclude that it has failed to demonstrate that the same
action would have taken place even in the absence of the
protected conduct Its discredited contention that Willis
and Noe quit necessarily defeats the presence of overrid
ing justification for their discharges and my reasons for
concluding that it has failed to make the requisite dem
onstration as concerns Crabtree are as follows
1 Crabtree was terminated after Willis belying Lyons
testimony that the end of the broccoli season dictated a
reduction in force and that the choice was between
Crabtree and Willis
2 The three discharges on February 11 left Respond
ent shorthanded further belying reduced manpower
needs as a factor
3 Lyons testimony was unconvincing that a loading
mistake the night of February 10 was part of' what
pushed him over the edge regarding Crabtree as
was his testimony that he cited some wrong loadings
when informing Crabtree of his termination Not only
was this testimony nebulous in content but Lyons de
meanor in the presentation lacked certitude Further al
though palpably sympathetic to Respondent Spycher did
not indicate in his recital that Lyons said anything about
such a mistake to him or to Crabtree and the record
otherwise fails to corroborate Lyons in this regard Fi
nally the weight of evidence establishes that this mis
take if it occurred was of slight significance which sug
gests that Lyons raised it pretextuously
4 Although Crabtree evidently had counting problems
from time to time and both Noe and Spycher corrobo
rated Lyons assertion that he cited this to Crabtree on
February 11 the absence of evidence that the problem
occurred at any time proximate to February 11 likewise
indicates pretext
5 Lyons tentativeness in content and demeanor
when asked if he discussed the Crabtree decision with
anyone else in management weakened his companion
testimony that the decision was basically his alone and
thus undermined his credibility in general regarding that
6 E g NLRB Y City Disposal Systems 465 U S 822 830 (1984) El
Gran Combo 284 NLRB 1115 1117 (1987) Independent Stations Co 284
NLRB 394 (1987) Salisbury Hotel 283 NLRB 685 685 (1987) Joseph De
Rario DMD PA 283 NLRB 592 (1987) Meyers Industries 281 NLRB
882 (1986)
17 Crabtree and Noe were convincing that Lyons referred to them in
this manner
725
decision Further indicative that Lyons did not act alone
was Shaner s sometimes you have to be an asshole
remark to Noe on February 11
In sum the evidence that the discharges were trig
gered by improper employer motivation is substantial
and Respondents answering evidence is nonexistent con
cerning Willis and Noe and singularly unpersuasive with
respect to Crabtree I conclude therefore that the dis
charges violated Section 8(a)(1) as alleged
CONCLUSION OF LAW
By discharging Robert Willis Tim Noe and Tim
Crabtree on February 11 1988 Respondent in each in
stance violated Section 8(a)(1) of the Act
On these findings of fact and conclusion of law and on
the entire record I issue the following recommended"
ORDER
The Respondent Bonanza Farms Inc El Centro
California its officers agents successors and assigns
shall
I Cease and desist from
(a) Discharging employees because they engaged in
protected concerted activities for their mutual aid or
protection
(b) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) At the earliest opportunity given the seasonal
nature of Respondents operation offer Robert Willis
Tim Noe and Tim Crabtree full reinstatement to their
former jobs or if those jobs no longer exist to substan
tially equivalent positions without prejudice to their se
niority or any other rights or privileges previously en
joyed and make them whole for any loss of earnings and
other benefits suffered as a result of Respondents unlaw
ful discharges of them on February 11 1988 19
(b) Remove from its files any reference to the unlawful
discharges and notify Willis Noe and Crabtree in writ
ing that this has been done and that the discharges will
not be used against them in any way
(c) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its place of business in El Centro Califor
nia English and Spanish language copies of the attached
18 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
19 Backpay shall be computed in accordance with F W Woolworth
Co 90 NLRB 289 (1950) with interest in accordance with New Horizons
for the Retarded 283 NLRB 1173 (1987) Under New Horizons interest is
computed at the short term federal rate for underpayment of taxes as
set out in the 1986 amendment to 26 U S C § 6621
726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
notice marked Appendix 20 Copies of the notice on
forms provided by the Regional Director for Region 21
after being signed by the Respondents authorized repre
sentative shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered defaced or covered by any other maten
al
(e) Mail English and Spanish language copies of said
notice to all employees employed at its El Centro pack
ing shed on February 11 1988 at their last known ad
dresses 21
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply
20 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
21 Mailing is necessary because of the seasonal nature of Respondents
business to ensure that all employees employed at the time of Respond
ent s misconduct are meaningfully informed of their statutory rights Yolo
Transport 286 NLRB 1087 1099 fn 52 (1987)