D. H. Farms Co.

National Labor Relations Board - Board Decisions

Jun 5, 1972

197 N.L.R.B. 267 (N.L.R.B. 1972)

D. H. FARMS CO. 267
D. H. Farms Co . and United Dairy Workers, Local
83, Retail , Wholesale and Department Store Un-
ion, AFL-CIO. Case 7-CA-8766
June 5, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On December 13, 1971, Trial Examiner John P.
von Rohr issued the attached Decision in this
proceeding. Thereafter, General Counsel and Charg-
ing Party filed exceptions and supporting briefs, and
the Respondent filed cross-exceptions and a brief in
support of its exceptions and in objection to the
exceptions of the General Counsel and Charging
Party.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions only to the extent
consistent with the following:
On July 8, 1970, during the pendency of a petition
in Case 7-RC-10064, the Respondent laid off a
number of employees for economic reasons. Some
were recalled shortly thereafter, but others have not
been recalled.
In his Decision and Direction of Election in that
case, the Regional Director held, contrary to the
Respondent's contention, that the layoffs were
temporary in nature and that the laid-off employees
were eligible to vote. In the ensuing election held on
September 23, 1970, 10 votes were cast for the Union
and 18 against; in addition, there were 20 challenged
ballots, 19 having been challenged by the Respon-
dent on the ground that they were cast by perma-
nently laid-off employees. The Regional Director
again held that the employees were temporarily laid
off and therefore eligible to vote, and he directed that
their ballots be opened and counted. When they were
opened on February 26, 1971, the count reflected
that 19 of the challenged ballots had been cast for the
Union. Consequently, the Union was certified as the
employees' bargaining representative. The Respon-
dent contested the validity of this certification in
another proceeding (192 NLRB No. 15) and the
Board ordered the Respondent to bargain with the
Union. A petition to enforce the Board's Order is
pending in the Court of Appeals for the Sixth Circuit.
Subsequent to the count of the challenged ballots
and the Union's certification, the Respondent filled
certain vacancies by hiring individuals other than
those who had been laid off on July 8, 1970, without
offering the positions to any of the laid-off employ-
ees who had not yet been recalled. At issue in this
case is whether the Respondent by this conduct
violated Section 8(a)(1), (3), and (5) of the Act. The
Trial Examiner concluded that no violation existed.
For the reasons set forth hereinafter, we disagree.
As found by the Trial Examiner, Respondent
began operations in 1968, and the layoff of July 8,
1970, appears to be the first layoff of consequence
experienced by the Respondent. Thereafter, with
only three exceptions, all vacancies which arose
between the date of the layoff and the date the
challenged ballots were counted were filled by the
recall of employees who had thus been laid off.
These exceptions consisted of one employee who was
on leave of absence on the date of the layoff, one
who was placed on maternity leave on that date, and
one who quit subsequent to the layoff and was
thereafter rehired. Those laid-off employees who
returned to work prior to January 1, 1971, were
recalled as permanent employees with no loss of
service or benefits; one who returned in January
1971 was hired as a new employee.
There were no recalls or new hires by Respondent
between the date the challenged ballots were counted
and May 17, 1971. Between the latter date and the
time of the hearing in this proceeding, the Respon-
dent hired a number of employees for temporary
employment, and two employees for apparently
permanent employment. Four of these temporary
hires had previously worked for the Respondent for
varying periods between June 1968 and January
1970, and a fifth had worked for Respondent for an
unspecified 2-year period. The others (four temporary
and two permanent) had apparently never worked
for the Respondent. None of these positions was
offered to any of the laid-off employees although, as
noted, a number of them had not yet been recalled.
The General Counsel contends that the Respon-
dent hired individuals other than the laid-off employ-
ees to fill the foregoing positions to punish the laid-
off employees for having voted for the Union, as
revealed by the count of the challenged ballots on
February 26, 1971, and that the Respondent thereby
violated Section 8(a)(3) of the Act. The General
Counsel further contends that by changing its policy
from one of recalling laid-off employees with full
seniority and benefits to one of rehiring them as new
employees, and thereafter abandoning its policy of
recalling employees in layoff status to fill available
job vacancies, the Respondent has refused to bargain
with the - Union in violation of Section 8(a)(5).
Contrary to the Trial Examiner, we find merit in
these contentions.
197 NLRB No. 47
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the alleged violation of Section
8(a)(3),, the record establishes that all employees
either recalled or "newly hired" between the date of
the July 8 layoff and the February 26 counting of the
challenged ballots were active employees on the date
of the layoff . The only exception was an employee
who was on leave of absence on that date. On the
other hand , none of the subsequent hires came from
that group , although a number of employees in that
group were still on layoff status. This obviously
represents such a significant change in Respondent's
hiring practices that we believe it is sufficient, when
considered in conjunction with the result of counting
the challenged ballots of the laid-off employees, to
establish the General Counsel ' s prima facie case, even
in the absence of other evidence of animus. We
further find , contrary to the Trial Examiner , that the
Respondent has failed to rebut this prima facie case.
We find no merit in the Respondent's contention
that the laid -off employees not recalled were perma-
nently laid-off employees whom it was not obligated
to recall . As noted above, the Board has found that
as of the date of the election they were all
temporarily laid-off employees , and the record herein
establishes that until the end of 1970 the Respondent,
in fact , treated them as temporarily laid-off employ-
ees. While , of course , their status is not frozen for all
time , the record herein fails to reflect any basis for
concluding that their status changed on or about
January 1, 1971, other than the Respondert's bare
statement that about such time it decided to treat
them as permanently laid-off employees, affirming,
in effect , the position it had maintained in the
representation proceeding since August 1970. More-
over , assuming arguendo that their status did change
from temporarily laid-off to permanently laid-off
employees , this does not of itself explain why
Respondent chose to hire others instead of them,
even to the extent of affirmatively seeking out certain
of the new employees whom it hired.
Thus, in the absence of any credible evidence of
legitimate business justification to sustain Respon-
dent 's actions, we find that the General Counsel has
sustained its burden of establishing that Respondent
discriminated against employees who voted for the
Union by changing its hiring practice to prevent their
reemployment.
With respect to the allegation that Respondent
unilaterally changed its policy of recalling laid-off
employees , we disagree with the Trial Examiner's
finding that no such policy existed . Based on the
plant manager's testimony in the related representa-
tion case and in the present case , we believe that
Respondent did have a policy of recalling laid-off
employees , a policy which was changed subsequent
to the representation election . The change in policy
was then implemented with the hiring of several
employees who were not among the employees
previously laid off.
We also disagree with the Trial Examiner's
conclusion that even if Respondent had unilaterally
changed its policy, no useful purpose would be
served by the issuance of a second bargaining order.
In this case , the unilateral action of the Respondent
is different in nature from the conduct covered in the
prior order. Moreover, the unilateral action taken by
Respondent has a tendency to undermine and
disparage the Union in the eyes of the employees in
the bargaining unit . It would, therefore , effectuate
the policies of the Act to issue an additional order
requiring Respondent to bargain with the Union.
Accordingly, we find that Respondent violated
Section 8 (a)(1), (3), and (5) of the Act by refusing to
recall certain laid-off employees and by unilaterally
changing its recall policy.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices , we shall order that it
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act. To remedy its refusal to bargain , we shall order
that the Respondent cease and desist from refusing
to bargain with the Union with respect to its policies
in regard to the return of employees on layoff or
unilaterally changing any term or condition of
employment of its employees in the appropriate
bargaining unit . We shall further order that the
Respondent cease and desist from the practice of
recalling employees other than those employees who
were permanent employees and were laid off in July
1970, and that in event of future vacancies it will
afford these employees preferential recall rights for
those vacancies . We shall further order that those
employees who would have been recalled shall be
made whole for any loss of pay that they may have
suffered , in the manner consistent with the Board's
policies in F. W. Woolworth Company, 90 NLRB 289.
Interest on backpay shall be computed as set forth in
Isis Plumbing & Heating Co., 138 NLRB 716. We
shall not at this time attempt to determine which of
the employees would have been recalled for summer
employment had the Respondent continued its
practice . We shall leave such matters to the compli-
ance stage of the proceeding.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
D. H. FARMS CO. 269
3. All production and maintenance employees,
including animal care employees employed by the
Respondent at its plant , located at 2755 Tooley
Road , Howell , Michigan , but excluding office cleri-
cal employees and guards and supervisors as defined
in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. At all times material, the Union has been the
exclusive certified representative of the employees in
the aforesaid unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours
of employment , and other terms and conditions of
employment.
5. By unilaterally changing its policy for the recall
of employees for summer work, the Employer has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the
Act..
6. The Respondent , in failing to recall the
employees who had been permanently laid off for
summer work during the summer of 1971, has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a)(1) and (3) of the
Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
D. H. Farms Co., Howell, Michigan, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union
with respect to its recall policies for the return of
laid-off employees.
(b) Hiring employees for any position that may
occur in its manufacturing operation from sources
other than those employees on its payroll at the time
of the July 1970 layoff.
(c) In any like or related manner interfering with
the rights of employees guaranteed in Section 7 of
the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of, the' Act:
(a) Bargain collectively with the Union before
modifying or changing any wages, hours, or terms
and conditions of employment in the appropriate
unit described above.
(b) Make the employees adversely affected by the
unilateral changes whole for any loss of pay, and in
the event of future vacancies, afford these employees
preferential recall rights for those vacancies.
(c) Notify each of the laid-off employees, if
presently serving in the Armed Forces of the United
States, of the right to preferential recall, , upon
application after discharge from the Armed Forces,
in accordance with the Selective Service Act and the
universal Military Training; and Service ' Act.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Post at its plant in Howell, Michigan, copies of
the attached notice marked "Appendix." i Copies of
said notice, on forms provided by the Regional
Director for Region 7, after being duly signed by an
official representative of the Respondent, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to its employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
1 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 National Labor Relations Board" shall read "Posted pursuant
to a Judgment of the United States Court of Appeals enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain with United
Dairy Workers, Local 83, Retail, Wholesale and
Department Store Union, AFL-CIO, by unilater-
ally changing our policies as to the return of laid-
off employees.
WE WILL NOT make any changes in our policies
to return laid-off employees without bargaining
with the collective-bargaining representative of
our employees.
WE WILL make whole any of the laid-off
employees who suffered any loss of earnings from
our failure to recall them for summer employ-
ment.
WE WILL recall any laid-off employees for any
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vacancies unless such policies are changed as a
result of negotiations with the collective-bargain-
ing representative.
WE WILL bargain collectively with the Union
before modifying wages, hours, or any other
terms or conditions of employment. The appro-
priate unit is:
All production and maintenance employees,
including animal care employees employed by the
Respondent at its plant located at 2755 Tooley
Road, Howell, Michigan; but excluding all office
clerical employees and guards and supervisors as
defined in the Act.
D. H. FARMS Co.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the laid-off employees, if
presently serving in the Armed Forces of the United
States, of the right to preferential recall, upon
application after discharge from the Armed Forces,
in accordance with the Selective Service Act and the
Universal, Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 500 Book Building, 1249 Washington
Boulevard, Detroit, Michigan 48226, Telephone
313-226-3200.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Trial Examiner: Upon a charge and
an amended charge filed on June 11, 1971, and July 13,
1971, respectively, the General Counsel of the National
Labor Relations Board, for the Regional Director for
Region 7 (Detroit, Michigan) issued a complaint on July
22, 1971, against D. H. Farms Co., herein called the
Respondent or the Company, alleging that it had engaged
in certain unfair labor practices within the meaning of
Section 8(a)(1), (3), and (5) of the National Labor
Relations Act, as amended, herein called the Act. The
Respondent filed an answer denying the commission of
any unfair labor practices.
Pursuant to notice a hearing was held before Trial
Examiner John P. von Rohr in Detroit, Michigan, on
September 30 and October 1, 1971. Briefs have been
received from the Respondent and from the Charging
Party on November 3, 1971, and they have been carefully
considered.'
Upon the entire record in this case and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Michigan corporation with its
principal office and place of business in Howell, Michigan,
where it is engaged in the manufacture, sale, and
distribution of disc reagents and in the processing of
animal blood solutions. During the last calendar year, the
Respondent shipped products valued in excess of $50,000
to points and places located outside the State of Michigan.
During the same period, it received goods and materials
valued in excess of $50,000 from points and places located
across state lines.
The Respondent concedes, and I find, that it is engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Dairy Workers, Local 83, Retail , Wholesale and
Department Store Union, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background,- The Issues
Upon a petition filed under Section 9(c) of the Act,
involving a production and maintenance unit of Respon-
dent's employees, a hearing in Case 7-RC-10064 was held
on August 3, 1970. The only issue raised was the eligibility
of approximately 24 employees who were laid off on July 8,
1970. Although the Respondent contended that these
employees were laid off without any reasonable expectancy
of recall, the Regional Director concluded, in his Decision
and Direction of Election of August 24, 1970, that the July
8, 1970, layoff was intended to be temporary in nature and
that the employees laid off at that time had a reasonable
expectation of recall within a reasonable time in the future.
Pursuant to the said Decision, an election was conducted
on September 23, 1970, the results of which reflected that
of approximately 57 eligible voters, 10 cast votes for, and
18 against, the Union, with 20 challenged ballots. Nineteen
of the challenged ballots were challenged by the Respon-
dent on the ground that the employees in question were
permanently laid off with no expectancy of recall.
On October 9, 1970, the Regional Director issued a
Supplemental Decision wherein, pursuant to reasons stated
therein, he overruled the challenges to all 20 ballots and
ordered that the ballots be opened. Following the Board's
denial of Respondent's request for review, the challenged
ballots were opened on February 26, 1971. The revised
tally showed that 19 of the challenged ballots were for the
Union. Accordingly, on March 5, 1971, the Union was
I The Respondent's unopposed motion to correct the transcript is hereby
granted
D. H FARMS CO. 271
certified as the collective-bargaining representative of all
employees in the following unit found to be appropriate.
All production and maintenance employees, including
animal care employees, employed by the Employer at
its plant located at 2755 Torley Road, Howell,
Michigan, but excluding all office clerical employees
and guards and supervisors as defined in the Act.
Seeking to test the Board certification before a United
States circuit court of appeals, the Respondent admittedly
declined to meet and bargain with the Union. Without
detailing the procedural steps involved, suffice it to note
that on July 9, 1971, the Board issued a Decision and
Order (192 NLRB No. 15) wherein it found that by
refusing to bargain with the Union on or about March 8,
1971, the Respondent violated Section 8(a)(5) and (1) of
the Act.
The complaint alleges, first, that since May 17, 1971,
Respondent violated Section 8(a)(3) of the Act in that it
refused to recall "certain of its temporarily laid off
employees" because they voted for the Union in the above-
mentioned election. It is secondly alleged that Respondent
violated Section 8(a)(5) of the Act because it unilaterally
changed its recall policies and practices which it imple-
mented "in the hiring and employment of new employees
on a full time basis without first recalling those unit
employees who had been temporarily laid off and who
were on the preferential recall list."
B. The Alleged 8(a)(3) Violations
Respondent's production employees are engaged in
various phases of manufacturing impregnated paper
sensitivity discs. This operation involves impregnating
large sheets of paper with a chemical solution, cutting the
paper to the size of very small round discs (less than 1/2
inch in circumference), printing the paper with appropriate
dots, and placing the paper into transparent plastic
magazines on punch presses. The final operation also
involves the packing of weights, springs, and caps into the
magazine, following which the magazine is sealed and
labeled. While the entire operation may be difficult to
visualize, suffice it to note that the record establishes, and I
find, that the various operations performed by the
production employees is of a relatively unskilled nature. In
short, whether these operations be performed by hand or
by machine, new employees can be trained to perform any
of these operations in a matter of days, or at best, within a
week or two. As Respondent states in its brief, because of
the small size of the operation, there is considerable
interchange of employees within the manufacturing proc-
2 In 1968 and 1969, Respondent's total payroll consisted of approximate-
ly 35 and 45 employees, respectively These included approximately 16
production employees in 1968 and 26 in 1969
3 Although the evidence in the present case reflects that 42 employees
were laid off at this time (G C Exh 8), 1 note that the Regional Director, in
his Decision and Direction of Election dated August 24, 1970, found that 34
employees were laid off at this time . None of the parties attempted to
reconcile this discrepancy in the instant hearing However, whatever the
total number of employees laid off at this time, this is not a determinative
factor to the issue herein
4 Concerning the layoff, Respondent adduced testimony in the instant
case to the effect that in 1969 it hired a number of extra employees because
ess. The print shop employees, for example, may be
assigned to help manufacture and vice versa.
In addition to the above manufacturing operations,
Respondent also has a laboratory located in the rear of the
plant. The lab operation involves injecting rabbits and
other animals such as goats, sheep, and horses with
solutions and then bleeding the animals. The employees
engaged in this operation are classified as laboratory
employees. Respondent also employs several maintenance
employees to take care of the animals and to perform
general out-of-doors farm work such as haying. Except for
the rare occasion when a production employee may be
called upon to lend some assistance in the laboratory, there
is no interchange of employees between the laboratory and
production operations.
Respondent's plant was completed in 1968 and opera-
tions began in about the middle or latter part of that year.2
On July 8, 1970, the Respondent laid off 34 or 42
production employees.3 Significantly, there is no evidence,
either of a direct or background nature, which would
warrant any inference that the layoff was prompted by
anything other than lawful economic considerations.4
Approximately 15 of the employees laid off on July 8,
1970, were recalled within 2 weeks thereafter. Several
others were recalled at later dates. In any event, at the time
of the previously mentioned representation hearing, there
remained 24 employees who had not been recalled.
Although Respondent at this time asserted that these
employees did not have any reasonable expectation of
recall and therefore were ineligible to vote, the Regional
Director found that the layoffs were intended to be
temporary and that accordingly the employees in question
were eligible to vote.
As previously noted, 20 ballots were challenged at the
election, 19 of these by Respondent. Pursuant to further
order, the ballots were opened on February 26, 1971, at
which time it was found that 19 of the 20 ballots were for
the Union. Only one of these challenged voters (all these
having been included in the July 8, 1970, layoff) having
been recalled by Respondent after February 26, 1961, it
appears that the remaining 18 employees are the subjects
of the General Counsel's complaint as being the alleged
discnminatees herein.5
Turning to the facts in this case, it should be preliminari-
ly noted that Respondent now appears to concede that at
the time of the July 8, 1970, layoff, Respondent contem-
plated these layoffs to be of a temporary nature. Thus, in
apparent acceptance of the testimony of two employees
laid off at that time, 6 Respondent in its brief states as fact
the following: "The laid off employees were initially told
that the plant was closing down for a few days and the
of a particular problem in production According to Respondent, the July 8,
1970, layoff was a result of a resolution of this production problem and also
because of a catchup in its backlog of work
5 Contrary to the usual practice wherein the General Counsel's
complaint properly specifies the names and numbers of employees alleged
to be "8(a)3's", the complaint in this case simply alleges that since May
1971, Respondent unlawfully refused to recall "certain of its temporarily laid
off employees" because they had voted for the Union in the election held on
September 23, 1970 ( Emphasis supplied)
6 Nancy King and Barbara Hardy, both of whom were called as General
Counsel witnesses in the instant hearing
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company would let them know, or that the layoff would
probably be for 3 or 4 days." Moreover, in this connection,
Respondent's bnef further states: "Up until January 1,
1971, the Company recalled [certain of the laid off]
employees with no loss of service or benefits. . . . In
January, 1971, however the Company decided that if Mr.
Savitskie were to call back any more laid off employees, it
would be on the basis that they were new hires."
To get to the crux of this case, it is undisputed that in the
late spring of 1971 Respondent employed four girls to
perform temporary summer work in the manufacturing
operations. Each of these girls had been employed by
Respondent in a similar capacity during the summer of
1969. It is the General Counsel's position that Respondent
should have recalled four of the above-noted 18 employees
who were still on layoff to these positions and that its
failure to do so was premised on antiumon considerations,
i.e., the fact that after the opening of the challenged ballots
they were known by Respondent to have voted for the
Union in the representation election. For the reasons noted
below, I find that the preponderance of the evidence does
not sustain this position.
The employees who were hired and their tenure of
service are as follows:
Date of Date
Name Hire Terminated
Rebecca Liddell 5/17/71 8/18/71
Karen Davis 5/17/71 7/16/71
Grace Dunn 6/1/71 8/20/71
Barbara Scheuerman 6/1/71 8/20/71
With respect to the employment of these employees in
1969, their employment records reflect as follows: Karen
Davis worked from June 2, 1969, to August, 1969, when she
quit to go to college. Rebecca Liddell worked from June 18,
1969, to August 23, 1969, when she left to return to college.
Grace Dunn was hired on June 18, 1968, and worked until
August 22, 1969, at which time she quit to return to college.
Barbara Scheuerman was hired in June 1969, with the
understanding that she was to work for the summer. On
September 24, 1969, she asked for full employment, was
granted the same, and worked on a full-time basis until
January 30, 1970, at which time she quit to go to college.?
With respect to all the aforesaid employees, the record
further reflects that they were told when first hired that
they were being hired as temporary employees and that as
such they would not receive the same fringe benefits as the
r This much was stipulated to by the parties. Citing p. 207 of the
transcript , Respondent states in its bnef that Scheuerman asked for full-
time employment in September 1969 because her college plans had fallen
through However, this reason does not appear either on the cited page nor,
insofar as I can find, does it appear elsewhere in the transcript
8 Unrefuted testimony of Grace Stetler, Respondent's office manager
Although somewhat ambiguous as to time, Stetler 's testimony appears to
reflect that these employees were advised of the temporary nature of their
employment in 1971 as well as 1969.
9 As Respondent points out, in view of the layoff of employees on July 8,
1970, there obviously was no need for additional help in the summer of
1970 Seef n 4,infra
is 1 do not regard the Respondent 's failure to bargain with the Union (as
regular employees, such as health insurance , paid holidays,
and paid vacations.8 As to the procuring of these
employees to work in the summer of 1971, the testimony of
Leonard J. Savitskie, the plant manager, and Grace Stetler,
the office manager, reveals that Liddell and Davis were
hired after they personally came to the plant to apply for
work. Dunn and Scheuerman, whose applications were
retained in the files, were hired after being called by
Savitskie.
Upon consideration of all the foregoing, I am convinced
and find that a preponderance of the evidence does not
sustain the allegation that Respondent violated Section
8(a)(3) and (1) of the Act by its hire of the four above-
named employees for temporary positions in the summer
months of 1971, rather than to fill these positions from the
group of 19 regular employees who had not been recalled
from the layoff which occurred on July 8, 1970. As
indicated, the four girls hired for the 1971 summer months
had all worked in previous summer months as temporary
employees. All were college students or prospective college
students and all were hired for the 1971 summer again on
the basis that they would be temporary employees.9
Accordingly, and particularly in the absence of any
showing whatsoever of union animus on behalf of the
Respondent, I fail to see where General Counsel has
proven discrimination against any of the group of 19 laid-
off regular employees who were not engaged to fill these
positions.10
Aside from the foregoing, it is noted that one Nancy
Galarneau was hired to work for 1 week beginning on
September 17, 1971. Garlarneau had previously worked for
Respondent as a supervisory trainee. She had applied for a
job about a month earlier and she was hired only to
perform a particular job (involving certain impregnating of
paper) for which she was qualified. Her employment was
terminated on September 24, 1971. Not only does
Respondent appear to have good reason for taking on
Galarbeau at this time , but I fail to see where this isolated
incident adds any merit to the General Counsel's case.
Additionally, the record reveals that Respondent hired two
individuals to work in the laboratory as temporary
employees during the summer months of 1971.11 Since the
group of 19 alleged discriminatees were not former
laboratory employees, I find Respondent did not discrimi-
nate against them by the hiring of these employees.12
Finally, there is some testimony about overtime work, as
well as some vague testimony to the effect that Respondent
no longer performs work that it previously performed. As
noted in the preceding footnote, the General Counsel did
not file a brief. And from his brief oral argument, I am not
shown in the companion case ) indicative of union animus . This is the only
route it could take in the exercise of its lawful right to test the Board's
certification . In the usual cases involving alleged discnmmatioi ., union
animus is almost always demonstrated by some overt expression of hostility
by an employer toward the union As indicated , there is a complete absence
of any such union animus in the instant case.
11 These were Lisa Radebach and Mary Muncie , both of whom were
employed from June 14, 1971, to August 27, 1971
12 The General Counsel did not file a bnef in this case. I have made the
above findings in the event of any possible contention by him that the hiring
of these employees (Galarneau, Radebach, and Muncie) is evidence of the
discrimination alleged in para . 12 of the complaint.
D. H. FARMS CO. 273
sure if he seriously contends that Respondent granted
excessive overtime or that it deliberately contracted out
work previously performed, all in order to avoid recalling
the remaining group of 19 laid-off employees. However,
assuming this to be a theory of the case, the evidence fails
to support any such contention. As to overtime, Dorothy
Keeley, a supervisor presently employed by Respondent
and called as a General Counsel witness, testified merely
that "last Saturday" all the employees worked overtime.
On cross-examination, however, Keeley conceded that the
plant was not working more overtime since the layoff than
it had prior to the layoff.13 Concerning work no longer
being performed, employee Barbara Mathews testified that
the once-performed work of placing magazines into six
packs is no longer being performed. When asked when this
work ceased, Mathews merely responded, "I really cannot
say for sure . Since the layoff." From this testimony, one
might conclude that this could have well occurred prior to
the opening of the challenged ballots, indeed, even prior to
the Direction of Election. Obviously, therefore, I can draw
rio inference that Respondent dropped this part of its
operation (and there is no indication as to how much work
this operation entailed) as part of a scheme to avoid
recalling any of the 19 employees in question.
Upon the entire record in this case, and for the reasons
stated above, I find that a preponderance of the evidence
does not establish that Respondent discnminated against
the remaining group of laid-off employees in violation of
Section 8(a)(3) and (1) of the Act, as alleged in the
complaint. Accordingly, it is recommended that this
allegation be dismissed.
C. The Alleged 8(a)(5) Violation
The complaint alleges, in essence , that Respondent
refused to bargain with the Union concerning "changes in
its existing seniority and preferential recall policies and
practices , in the hiring and employment of new employees
on a full time basis without first recalling those unit
employees who had been previously temporarily laid off
and who were on the preferential recall list."
As is apparent, the above allegation pertains to the
situation involving the remaining group of 19 employees
who were not recalled after having been laid off on July 8,
1970, all of which has been discussed in the preceding
section. With respect to this allegation, suffice it to say that
inasmuch as the July 8 layoff was the first general layoff
ever experienced by the Respondent, it is obvious that
there can be no previously established policy concerning
the recall of laid-off employees with which Respondent can
be charged of having unilaterally changed. In any event,
there is presently in effect a Board Order directing
Respondent to bargain with the Union. Should this Order
be enforced by a U. S. court of appeals, this Order would
require Respondent to bargain over all matters encom-
passed within the meaning of Section 9(a) of the Act.
Accordingly, even if Respondent here engaged in any
further violation of Section 8(a)(5) of the Act, no useful
purpose would be served by the issuance of a second
bargaining order.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact,
pursuant to Section 10(c) of the Act, and upon the entire
record in this case , it is recommended that the complaint
be dismissed in its entirety.
13 Keeley also testified that she asked Savitskie about getting more help this testimony was proferred by the General Counsel , it clearly adds nothing
Savitskie replied, she said , that they had sufficient help to take care of the to the case
work, but that he would procure additional help when needed Although