293 N.L.R.B. 859 (N.L.R.B. 1989)

D & K Frozen Foods, Inc

National Labor Relations Board - Board DecisionsApr 27, 1989

293 N.L.R.B. 859 (N.L.R.B. 1989)

D & K FROZEN FOODS D & K Frozen Foods , Inc and Teamsters, Food Processing Employees, Public Employees, War ehousemen and Helpers , Local 760, affiliated with International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, AFL-CIO ' and International Union of Operating Engineers , Local #280, affiliated with International Union of Operating Engi- neers Cases 19-CA-19285 and 19-CA-19297 April 27, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, HIGGINS, AND DEVANEY On August 10, 1988, Administrative Law Judge Timothy D Nelson issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed a response to the exceptions The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order as modified 3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent, D & K Frozen Foods, Inc, Grandview, Washington, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified 1 Delete the phrase "Florida Steel Corp, 231 NLRB 651 (1977), see also" from paragraph 2(b) 2 Substitute the following paragraph for para- graph 2(c) "(c) Offer to the employees named below the employment status, pay rates, benefits, and posi- tions they enjoyed in the Teamsters unit under I On November 1 1987 the Teamsters International Union was read mitted to the AFL-CIO The caption has been amended to reflect that change 2 The Respondent has excepted to some of the judge s credibility find rags The Boards 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 3 We have conformed the recommended Order to that in State Distrib uting Co 282 NLRB 1048 (1987) and Shortway Suburban Lines 286 NLRB 323 (1987) Also the backpay period in this case commenced about August 1 1987 and computed in accordance with our holding in New Horizons for the Retarded 283 NLRB 1173 (1987) 859 Simplot 's operation or, if those positions no longer exist , in substantially equivalent positions , without prejudice to seniority or other rights and privileges enjoyed , discharging , if necessary , employees hired from sources other than Simplot Foods, Inc to make room for them, and make them whole, with interest , for any loss of earnings they may have suf fered by reason of the discrimination against them Backpay shall be computed as in F W Woolworth Co, 90 NLRB 289 (1950), plus interest as pre- scribed in New Horizons for the Retarded, supra The employees are Aispuro, Rosa Alaniz, Maria Beauchene, Kenneth Bermudez, Maria L Bianchi, Roy Bosquez , Maria I Brewer , Martin Allen Burmood , Darlene Ellen Cantu, Concepcion Carter, Glenn Cerullo , Virginia M Chinco, Cindy Cisneros , Antonia Cisneros, Mary Lou Cooke, Janet Lee Degollado, Juanita Deleon , Trina Rae Elliott , Timothy Lynn Everson, Clara Alice Fowler, Harold Fuentes , Susan Z Gallegos, Margarita Garza, Adam D Garza, Delia Gimlin, Elvia Gonzales , Daniel Gonzales, Romie Goulding, Kelly Guerrero , Alicia M Guffey, Gisela B Guffey, Julia Hickle, James Larson , Shirley M Longoria, Anjelita M Luther, Daphanie Luther, David Lynn Luther, Judith Elaine Manley, Marci Mia Marr, Phillip F Martinez, Antonia Martinez, Pablo Villareal Mendez, Daniel Moreno, Arthur D Moritzky, Polly H Mosqueda , Randall Ortiz, Candelario Partida, Lydia Pena, Alice Ramos, Sylvia Elena Rand, Diane Rocha, Sally Rodriguez, Herminia V Rodriguez, Olga Saenz, Irma Saenz, Rudy G Salinas, Eustolio Jr Sanchez, Apolonio H Saunders, Katherine Segovia, Mary Smith, Nona L Solis, Robert Martin Thiel, Steve Velez, David Waddle, Mark A Weber , Gayle C Wilcowski , Janeil 293 NLRB No 104 860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Lee, Donald Ray Williams, Sherry Kathlene" 3 Substitute the following for paragraph 2(d) "(d) Offer to Gary Burmood and Robert Bur- mood the positions in the Operating Engineers unit and the rates of pay they enjoyed under Simplot Foods, Inc without prejudice to their seniority and other rights and privileges , discharging , if neces sary, employees hired from sources other than Sim plot Foods, Inc 's Operating Engineers unit in order to make room for them, and make them whole for any losses of earnings they may have suffered by reason of the discrimination against them Backpay and interest are to be computed as set forth above in paragraphs 2(b) and (c) " 4 Substitute the attached notice for that of the administrative law judge APPENDIX 2 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa tives of their own choice To act together for other mutual aid or pro tection To choose not to engage in any of these protected concerted activities WE WILL NOT refuse to recognize and bargain collectively with the Teamsters, Food Processing Employees, Public Employees, Warehousemen and Helpers, Local 760, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse men and Helpers of America, AFL-CIO and the International Union of Operating Engineers, Local 280, affiliated with International Union of Operat- ing Engineers as the exclusive collective bargaining representatives of our employees in the production (Teamsters) and engineroom (Operating Engineers) units covered by the contracts between Simplot Foods, Inc and those Unions with respect to rates of pay, hours of work, and other terms and condi- tions of employment WE WILL NOT change any terms or conditions of employment of our employees in those units, in- cluding wages and pension and health and welfare coverages, without first giving those Unions a chance to bargain over such changes WE WILL NOT withhold job offers from appli cants, fail to hire them, alter their job titles or pay ment schemes, or otherwise discriminate against employees to avoid having to recognize and bar gain with the Teamsters or the Operating Engi neers or any other labor organization WE WILL NOT tell employees or applicants that we will not hire, or have not hired, certain of them, or have changed their title or pay scheme, in order to avoid recognizing and bargaining with the Union that represented them WE WILL NOT tell applicants or employees that we will operate nonunion WE WILL NOT in any like or related manner, interfere with, restrain , or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act WE WILL recognize and, on request, bargain col- lectively in good faith with the Teamsters and the Operating Engineers as the exclusive collective- bargaining representatives of the employees in their units with respect to rates of pay, wages, hours of work, and other terms and conditions of employ ment and, if an understanding is reached, WE WILL put it in writing and sign it WE WILL, on request of either the Teamsters or the Operating Engineers, cancel any departures from terms and conditions of employment that ex- isted immediately before we took over the Grand- view plant formerly operated by Simplot Foods, Inc and will retroactively restore preexisting terms and conditions of employment , including wage rates and benefit plans, and make our em- ployees whole by remitting all wages and benefits that would have been paid absent such departures, from August 1, 1987, until we negotiate in good faith with those Unions to agreement or to impasse WE WILL remit all payments we owe to the em- ployee benefit trusts established under Simplot s contracts with the Unions and reimburse our em- ployees for any expenses resulting from our failure to make these payments WE WILL offer to the employees named below the employment status, pay rates, benefits, and po- sitions they enjoyed under Simplot 's operation or, if such positions no longer exist, in substantially equivalent positions, without prejudice to seniority or other rights and privileges previously enjoyed, discharging, if necessary, employees we hired from sources other than Simplot Foods, Inc, to make room for them, and WE WILL make the employees named below whole, with interest, for any losses of earnings they may have suffered by reason of the D & K FROZEN FOODS discrimination against them These Teamsters unit employees are Aispuro , Rosa Longoria, Anjelita M Alaniz , Maria Luther , Daphante Beauchene, Kenneth Luther , David Lynn Bermudez , Maria Luther , Judith Elaine L Bianchi , Roy Manley , Marci Mia Bosquez , Maria I Marr , Phillip F Brewer , Martin Allen Martinez, Antonia Burmood , Darlene Ellen Martinez , Pablo Villareal Cantu , Concepcion Mendez , Daniel Carter , Glenn Moreno , Arthur D Cerrillo , Virginia M Moritzky , Polly H Chtnco , Cindy Mosqueda , Randall Cisneros, Antonia Ortiz , Candelario Cisneros, Mary Lou Partida, Lydia Cooke, Janet Lee Pena, Alice Degollado , Juanita Ramos , Sylvia Elena Deleon , Trina Rae Rand, Diane Elliott , Timothy Lynn Rocha, Sally Everson, Clara Alice Rodriguez , Herminia V Fowler , Harold Rodriguez, Olga Fuentes , Susan Z Saenz, Irma Gallegos , Margarita Saenz, Rudy G Garza , Adam D Salinas , Eustolio Jr Garza, Delia Sanchez , Apolonio H Gimlin , Elvia Saunders , Katherine Gonzales, Daniel Segovia, Mary Gonzales, Ronne Smith, Nona L Goulding , Kelly Solis , Robert Martin Guerrero, Alicia M Thiel, Steve Guffey, Gisela B Vehz, David Guffey, Julia Waddle, Mark A Hickle , James Weber , Gayle C Larson , Shirley M Wilcowski, Janeil Lee, Donald Ray Williams , Sherry Kathlene WE WILL offer Gary Burmood and Robert Bur- mood the employment status , rate of pay , benefits, and position in the Operating Engineers unit they enjoyed under Simplot Foods , Inc, without preju dice to their seniority and other rights and privi- leges , discharging , if necessary , any employees hired from sources other than Simplot Foods, Inc 's Operating Engineers unit in order to make room for them , and WE WILL make them whole, with interest for any losses of earnings they may 861 have suffered by reason of our discrimination against them D & K FROZEN FOODS, INC Eduardo Escamilla and George Hamano Esqs, for the General Counsel Gary E Lofland Esq, of Yakima, Washington, for the Respondent Kenneth J Pedersen Esq (Davies Roberts & Reid), of Se attle , Washington, for Charging Party Teamsters Local 760 Ron McLean, Business Representative, of Richland Washington for Charging Party Operating Engineers Local 280 DECISION STATEMENT OF THE CASE TIMOTHY D NELSON, Administrative Law Judge I heard these consolidated 8(a)(1), (3), and (5) cases in 5 days of trial proceedings held in Richland, Washington between December 8 and 16, 1987 (all dates are in 1987 unless I specify otherwise) They arose from separate timely unfair labor practice charges filed with the Re gional Director for Region 19 by the Charging Party Unions named in the case caption (collectively, Unions, separately, Teamsters and Operators) against D & K Frozen Foods, Inc (Respondent) 1 After investigating, the Regional Director issued an order consolidating cases and a consolidated complaint against Respondent on Sep tember 25 The complaint was subsequently amended in certain particulars shortly before, and during, the trial In its 8(a)(5) counts the complaint alleges in substance that Respondent owed-and violated-a successor s bargaining obligations to the Unions2 when, in connec tion with its takeover of a frozen food processing plant, it refused to recognize or bargain collectively with the Unions and unilaterally established initial terms and con ditions of employment for employees in the separate units traditionally represented by the Unions In its 8(a)(3) counts affecting the production unit his torically represented by the Teamsters, the complaint as amended, alleges that Respondent refused to hire 68 named employees of the predecessor as part of a num bers -conscious scheme conducted for the sole purpose of avoiding recognizing and bargaining with the Team sters 3 The amended 8(a)(3) counts affecting the unit his torically represented by the Operators allege essentially, that Respondent contrived by reassignments and other unit manipulations to create a one person unit for which no bargaining order could issue ' Teamsters filed charges in Case 19 -CA-19285 on August 5 Opera tors filed charges in Case 19-CA-19297 on August 10 2 See generally NLRB v Burns Security Services 406 U S 272 (1972) Falls River Dyeing Corp v NLRB 482 U S 27 (1987) S See the G C Exh 3 and note that an additional name on that amend ed listing of discnmmatees-Elva Maria Gonzales-was subsequently de feted from that listing by the General Counsels motion in the December 9 trial session 862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In its independent 8(a)(1) counts the complaint alleges that Respondent violated employee rights by generally announcing to applicants that it would operate on a nonunion' basis and, in a few instances by telling em ployees, in substance, that it would not hire or had not hired, more than 50 percent of its new complement from its predecessors ranks Respondent, which admittedly has refused from the start to recognize or bargain with either of the Unions admits that it generally announced an intention to oper ate nonunion, denies that any of its agents ever declared that it would refuse to, or had refused to, hire more than 50 percent of its complement from its predecessor s ranks and denies that its hiring and staffing procedures were unlawfully tainted Respondent avers that it was free not to recognize the Teamsters where the majority of its work force consisted of `new or outside hires,4 and that it was free not to recognize the Operators be cause the unit represented by the Operators ceased to be an appropriate one when, on commencing operations, Respondent used only one nonsupervisory employee to perform work traditionally represented by the Operators I will find that Respondents staffing schemes in the Teamsters and Operators units did, in fact, involve un lawful discrimination and manipulation, and that, but for that misconduct its employee complement in each unit would have been composed of a majority of its predeces sor s employees I will find no merit to Respondent s al ternative defense that it is a new operation because it processed only corn in the 1987 season As a conse quence of these findings, I will conclude that Respond ent violated Section 8(a)(3) and (5) substantially as al leged in the complaint I will also sustain the complaint s independent 8(a)(1) counts in some particulars but not others On the entire record, including the briefs filed by the General Counsel and Respondent 5 my assessments of each witness as he or she testified and my judgments of the inherent probabilities, I make these FINDINGS OF FACT I GENERAL OVERVIEW A Background Respondent is an eastern Washington vegetable proc essor,6 which, since August 1 has operated a freezing * Respondent also interposes an independent defense to the claim that it is a successor owing a bargaining obligation to the Teamsters in sub stance Respondent argues that even if it had staffed its work force pn manly with predecessor employees it would still not be a true successor because at the time of the takeover it only intended to process corn whereas its predecessor had processed other vegetables besides corn and therefore it is an essentially new operation b Although it involves leniency that I would not routinely be disposed to grant I have exercised my discretion in these unique circumstances to receive Respondents brief filed 5 business days past the January 22 1988 deadline for submission See my ruling on motions attached here as ap pendix I 6 In the year s period before the complaint issued Respondent a Washington corporation realized gross sales exceeding $500 000 and put chased or shipped more than $50000 worth of services or products di rectly from or to person outside Washington or to persons within Washington who in turn directly affected interstate commerce and packing plant in Grandview Washington which until that date, had been operated by Simplot Foods Inc ' Currently and historically, the Grandview plant em ploys a group of roughly 35 year round nonsupervisory employees, consisting of skilled maintenance and quality control workers It also requires an additional group of seasonal employees who at the peak of the peak season (when corn is processed), number as many as 125 Of these seasonals , roughly 30 work regularly not only dunng the fresh processing season, but also perform repack of already processed vegetables in periods when fresh vegetable processing does not dominate the plant s schedule As a consequence, those regular sea sonals work regularly during about 7 months of each year and they are grouped for many purposes with the year round skilled employees to comprise a total regu lar complement of 65 workers The remainder of the seasonals (roughly 95 of them) are called seasonal sea sonals, ' connoting that their work expectancy is limited to varying numbers of hours only during the fresh proc essing season itself, which begins in late spring or early summer and ends near October 1, with the windup of cor'i processing Historically, under Simplot s operation of the Grand view plant, and that of Simplot s predecessors, the Team sters was recognized as the exclusive representative of all year round and seasonal8 production, maintenance, and warehousing employees, but excluding (among others) three year round engine room technicians responsible for maintaining the plant s boiler compressor refrigera tion machinery for whom the Operators was historically recognized as the bargaining agent 9 The Teamsters and Operators each had separate labor agreements with Sim plot which after each basic contract had been extended by supplemental agreement were scheduled to expire on July 31, coinciding with the termination of Simplot s op eration of the Grandview plant Under the Teamsters contract with Simplot and practices associated with it the recall of seasonal employees was handled according to seniority, with a master seniority list being maintained and updated by agreement of the parties to reflect who was eligible for recall and in what order of preference ° An entity named Kenyon Cold Storage owns the Grandview plant building and conduct separate cold storage and shipment operations there in its own name under a separate labor agreement with the Team sters It has historically leased its vegetable processing and freezing facilt ty to a series of processors of which Simplot had been the most recent When Simplot gave notice in early 1987 that it would not renew its lease Respondent began negotiating with Kenyon By mid June Respondent and Kenyon had agreed that Respondent would step in on August 1 but due to financing complications it was then unclear whether Respondent would be a co -operator with Kenyon or a simple lessor and sole opera tor By early July Respondent had obtained necessary financing and had signed a lease similar to Simplot s and had agreed with Kenyon to take over the plant as a sole operator on August 1 8 The seasonal group referred to here includes both regular sea sonals and seasonal seasonals 9 The Teamsters unit also included employees responsible for main taming production equipment as distinguished from engineroom machin ery To distinguish the two units each of which included maintenance employees I will call the Teamsters unit the production unit and the Operators unit the engineroom unit I will use the same labels when describing Respondents operation D & K FROZEN FOODS Respondent began in earnest in early June to make ar rangements to take over the Grandview plant from Sim plot This had followed a determination over the previ ous months by its directors that the Grandview facility could profitably supplement its other operation in Walla Walla because it could handle corn whereas Walla Walla was not set up for corn 10 Simplot had already processed early ripening vegetables at the Grandview plant before Respondents August 1 takeover Normally, corn processing begins on August 1, but because corn ripened earlier than usual in eastern Washington in 1987, Simplot had already processed a week's worth of corn before it ceased operating in its own name on the evening of July 31 Thus, when Respondent stepped in on August 1, it took over exactly the same operation being conducted by Simplot on the day before the take over B The Unions ' Bargaining Demands As early as April 27, the Teamsters had written to Re spondent stating that It is our understanding that you have signed an agreement to initiate a corn processing operation at the now Simplot plant in Grandview," and asking to sit down with you in the near future to discuss your intentions as to the status of the members we represent Respondent did not reply, and the Team sters followed up with another letter on July 21, this time requesting that you contact our offices at your ear liest convenience in order that we may agree to a mutu ally satisfactory date and time that both parties can meet for the purpose of negotiations regarding the employees we currently represent ' On September 23 having again received no interim reply, the Teamsters wrote again to Respondent to renew our demand that you recognize Teamsters Local Union 760 as the representative of your employees at the Grandview plant for the purpose of collective bargaining The Operators had also written two letters to Respondent before August 1 (one on June 16, the other on July 27), in each case demanding negoti ations for a successor agreement, and, in the latter writing also specifying that the Operators claimed repre sentation rights for engineers in the engine room C Respondent's Hiring Arrangements Staffing On and After August 1 the Relevant `Numbers' Starting around June 29, Respondent had placed news paper advertisements for prospective workers in classifi cations historically represented by the Teamsters and the Operators it had directed all applicants to apply through the Washington State Department of Employment Secu rity (DES), which compiled all the applications from which Respondent made final selections July 10 was the cutoff date for the receipt of all applications On Re spondent s instructions DES agents told all applicants that Respondent would operate on a `nonunion" basis Respondent s agents made similar nonunion statements to groups of applicants whom it intended to hire 10 Since its takeover Respondent has made a decision to process sugar snap peas in the 1988 season in addition to corn and had begun to move pea processing equipment into the Grandview plant when this case was tried in December 863 On August 1 Respondent immediately put to work vir tually the entire managerial , supervisory, and office staff formerly employed by Simplot Respondent had not pub licly advertised for these nonunit classifications and, with the exceptions of first line supervisors it had not re quired those nonunit incumbents to make application through DES Respondent also put to work immediately a "core' group of 65 employees who had been hired from Sim plots ranks I I but only after they had submitted DES applications With limited exceptions, the core group workers hired by Respondent were the same persons who had worked for Simplot as year rounders or as regular seasonals in the production unit 12 On August 1 Respondent also put to work about 60 more outsiders, i e, production employees who had submitted applications through DES and who had not worked previously under Simplot's operation (or if a few of them had they had not worked at Grandview re cently enough to be carried on Simplot s seniority list) In the ensuing 2 months of processing fresh corn, Re spondent gradually hired the remainder of its peak season production employees solely from the ranks of those outside" applicants In staffing the production unit Respondent admittedly bypassed the 68 former Simplot workers named in the complaint, who had also filed applications with Respond ent through DES, and whose names were on the senior ity list maintained by Simplot With the exception of former production leadman , Larry Ortiz, the 68 alleged discnminatees were persons who were treated by Sim plot as seasonal seasonals 13 11 The General Counsel contends that 1 of the 65 (Robert Burmood) was a former engmeroom employee whose reassignment to a production maintenance classification by Respondent was part of Respondents numbers conscious manipulation of the engmeroom unit Also included in the total of 65 carryover employees was Larry Gibson a former en gineroom employee who was admittedly hired to continue n the same capacity The list of 65 carryovers also includes 4 persons (Ken Bigelow Harold Fine Sue Wolkenauer and Jim Wysong) who the General Coun sel contends were statutory supervisors in the production unit under Sim plot and remained as such under Respondents operation Respondent does not specifically contest that those four hold supervisory positions and the available evidence though sketchy suggests that they have power responsibly to direct their subord nates including lead persons who work under them and that they make effective recommendations to their superiors which affect the hire or retention of their subordinates I therefore find that they were statutory supervisors for Simplot and con tinued as such under Respondents employ 12 The exceptions adverted to here include the six persons referred to in the last footnote plus Candelano (Larry ) Ortiz who was a nonsuper visory production leadman in the regular Simplot group and who had applied but was not rehired by Respondent i2 Many of those 68 applicants named as discriminatees had been working for Simplot during processing in the month before Respondents takeover Pursuant to Simplot s seniority in recall arrangements with the Teamsters others among them would have been recalled supplementally by Simplot during peak production periods after August 1 had Simplot remained the operator Respondent concedes that all but a handful of the 68 persons named in the complaint were properly treatable as employ ees of Simplot as of July 31 even if they were not actually working for Simplot on that day As to the few remaining individuals the only dis pute which emerged at trial (one which neither party has pursued on brief and which I find is of no ultimate significance ) is whether as Re spondent seemed to claim at trial they had forfeited their seniority under Simplot s arrangement by failing to answer Simplot s calls for work in the earlier part of the 1987 processing season 864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondents weekly payroll of employees in former Teamsters represented classifications regularly ranged be tween 150 and 160 in the period from August 1 through October 3 (the last day of fresh processing) although the number of persons actually working on any given day in that period was often substantially lower, especially on 9 days when only one shift was scheduled 14 In late Sep tember and thereafter, Respondent gradually laid off seasonal seasonals, giving remaining work preference to persons in the core group consisting of year round ers and regular seasonals The General Counsel and Respondent stipulated at trial (and the General Counsel echoes this stipulated con clusion on brief) that Respondents full" complement in the production unit was not reached until late August or early September and that such full complement numbered 151 employees Accordingly, the General Counsel does not argue that a majority of Respondent s production employees in a full complement ever actu ally consisted of former Teamsters represented Simplot employees Rather, as noted, her attorneys predicate their claim that Respondent owed a bargaining obligation to the Teamsters on the supposition that but for Re spondent s discriminatory bypassing of the 68 persons named in the complaint, the full complement of 151 production unit employees in Respondents operation would have consisted overwhelmingly of former Simplot production unit employees 15 To staff its engineroom Respondent ended up hiring only two of the three boiler and compressor engineers who had traditionally staffed that department in Sim plot s operation It made one of them Gary Burmood, a salaried supervisor, even though he subsequently con tinued to work regularly with the tools and exercised only limited supervisory authority The other retained 14 See and compare R Exhs 5(a) and (b) Some of the number dis crepancies between the two exhibits are explained by payroll practices which may list a person working say on Monday as still employed on say Tuesday even if that person did not work on Tuesday (due to illness or scheduled day off) but was replaced by a substitute (also listed as employed on that second day) Other discrepancies are explained by the fact that only one shift of employees ( using between 78 and 103 em ployees) actually worked on certain days even while others were carried on the payroll as being currently employed on those one shift days 16 Exactly what complement should be used for majority -counting purposes in a seasonal industry which swells to peak employment for only a relatively short time is a difficult question I note that the employ ment data recited thus far might support an argument that viewed from an annual perspective former Simplot production employees did the majority of Respondents production work (including repack) on and after August 1 and even possibly that such former Simplot workers did the majority of the work done in the peak season (considering that only one shift comprised mainly of core group carryovers was scheduled on many of those peak season days) I note also from Plant Manager Crabtree s testimony that Crabtree advised Respondent s managers that the plant would require only 120 to 130 employees in the peak season-not the 151 which the parties stipulated were employed as a full complement in late August-early September But with the case pleaded litigated and argued solely as a but for case one in which the General Counsel has stipulated that Teamsters never represented an actual majority in Respondents full complement (a Burns inspired phrase of dubious import in this setting ) I will not pursue the validity of a potential alternative argument-that Respondent in fact employed a ma Ionty of former Simplot employees in the production unit at a time when it used a substantial and representative complement of production em ployees within the meaning of the Court s more recent decision in Fall River Dyeing Corp supra engineer Larry Gibson continued to be paid hourly Ini tially Respondent had intended to dispense entirely with the services of the third former Simplot engineer Robert Burmood Gary s brother At the last minute before take over, however, faced with Gary s resistance to this ar rangement, Respondent recalled Robert and installed him in a production maintenance slot traditionally associat ed with the Teamsters unit In refusing to recognize or bargain with the Unions, Respondent admittedly altered unilaterally the wage and benefit schemes in effect under Simplot s operation, in eluding discontinuing payments nto the contractually prescribed benefit trusts II ALLEGED UNFAIR LABOR PRACTICES A Alleged `Numbers Scheme for Hiring in the Production Unit Supplemental Findings and Conclusions 1 Introduction The cases are clear that an employer in a business takeover is not legally required to hire all or any of its predecessors employees, but neither may it discriminate against those predecessor workers in hiring, individually, or systematically, because of their union affiliation or be cause of some other union hostile consideration Here it is alleged that Respondents hiring was tainted by its desire to compose a work force in which less than a ma jority would consist of former Simplot workers, and thereby avoid the labor relations consequences under Burns and progeny which would attend its hiring of such a majority configuration 16 In concluding that this was exactly what happened, I will not rely on attenuated inferences from the circum stances nor on credibility resolutions about certain dis puted transactions 1' Rather, to find that Respondent used an inherently discriminatory hiring scheme to avoid successorship labor relations consequences in the produc tion unit I need rely only on what Respondent s agents admitted in their testimony about their legal understand ings their overall plans the instructions issued by top management to Respondents personnel director Frank Weehler concerning how to approach hiring for the Grandview plant's production unit and Weehler s admis lions concerning how he made hiring decisions in that unit 16 To that extent this case raises issues comparable to those dealt with in e g Kessel Food Markets 287 NLRB 426 (1987) State Distributing Co 282 NLRB 1048 (1987) Loves Barbecue Restaurant No 62 245 NLRB 78 124 (1979) enfd sub nom Kallman v NLRB 640 F 2d 1094 (9th Cir 1981) Potters Chalet Drug 233 NLRB 15 (1977) enfd mem 584 F 2d 980 (9th Cir 1978) Houston Distribution Services 227 NLRB 960 (1977) 14 In sec II C I will make findings about certain disputed conversa tions in which Respondent s agents are alleged to have made numbers or 50 percent admissions directly to employees and in one case to a Teamsters agent Although some of those findings tend to support my overall conclusions I do not find it necessary to rely on them for that purpose D & K FROZEN FOODS 865 2 Respondent's pretakeover planning, Weehler s and Fenner s admissions In their pretakeover deliberations, Respondent s agents were aware of the Burns established legal proposition that Respondent would inherit Simplot s recognitional and bargaining obligations to both the Teamsters and the Operators if a majority in each unit complement were to consist of carryovers from Simplot' s units Thus, Person nel Director Weehler who implemented the hiring and staffing program at Grandview, eventually acknowl edged, after much initial evasion, that If you hire more than 50 percent of the current Simplot work force, then therefore you have to recognize the union Sure, we were aware of this We discussed it " Weehler was referring in this regard to discussions in May among Respondent's board of directors and mem bers of its management team, headed by Keith Fenner, Respondents executive vice president and a board member Elaborating on these discussions, Fenner him self stated that the board had consulted with Attorney Gary Lofland and had been presented with certain op tions,' of which two were paramount, (1) we could hire all the Simplot employees and assume the bar gaining unit obligations that Simplot had with both unions , and (2) ' or we could hire on a nonunion basis and sort of let the percentages fall where they might And if we hired fewer than a majority of Simplot employees, we would not be obligated to bar gain with the union Later, referring to his hiring on a nonunion basis' remarks, Fenner explained that this meant that Respondent would let people know that we would be operating as a nonunion plant at the time [of] hiring It is clear from Weehler's testimony that Respondent s top managers had advised him of their wish-and even tually their firm intention-to operate the Grandview plant on a nonunion basis 18 Weehler denies however that he ever received specific instructions to limit his hiring of former Simplot workers to a minority of the new full complement From Fenner s testimony dis cussed below, I will find that Weehler was not being candid in this regard and from Weehler s own testimo ny, supplemented by that of Respondents personnel as 18 At various times Weehler and othe-s in Respondents management stated that their plans in this regard were somewhat fluid but they agreed generally (as Weehler plainly admitted though again only after some initial equivocation) that Respondent wished to operate nonunion and by mid June had announced to DES agents their intention to oper ate nonunion Another of Respondents vice presidents James Kimzey testified that Respondent in fact had been privately prepared to recog nize at least the Teamsters if circumstances were to force it to exercise that option He was referring to the fact that the Teamsters also repre rented a separate unit of workers employed by Kenyon Cold Storage at the Grandview facility that picketing by Teamsters at the Grandview plant after Respondents takeover might have caused those Kenyon em ployees to cease work in sympathy and that in such event Respondent was prepared to yield to the Teamsters demands for recognition rather than undergo a shutdown of its own and Kenyon s operations at a critical peak processing period Kimzey s testimony does not genuinely contra dict Weehler s admission that Respondent preferred from the start to operate nonunion at Grandview Plainly moreover Respondents pn vate intention to recognize the Teamsters-if forced by a picketing cam paign to do so-carnes no weight as evidence that Respondent was es sentially neutral or undecided about its preference regarding the union recognition question sistant, Barbara Miller I will find in any case that Weehler used an inherently discriminatory double stand and in hiring which was calculated to ensure that outsid ers would staff a majority of the production unit pose tions when processing reached a posttakeover peak Fenner s testimony alone indicates with reasonable clarity that Respondent had made at least a tentative management decision as early as the spring of 1987 not merely to let the percentages fall where they may," but had decided-and had so instructed Weehler-to tilt its hiring procedures in such a way as to make it probable that former Simplot employees would comprise only a minority in the new production operation Thus, explain mg how Respondent could confidently announce to pro spective employees even before the hiring process had begun that it intended to "operat[e] as a nonunion plant,' Fenner virtually admitted that this announcement reflect ed Respondent 's assumption that `fewer than a majority would , in fact , be hired from Simplot s ranks Fenner ob served , for example, that while it was important to op erate with a core of people ' with ` specialized skills (i e, the former Simplot employees who did, in fact , become the core group of Respondent 's employ ees referred to earlier), he explained further that the balance of the plant we felt could be operated by people who might be new to the plant and who had had gener ally some experience in the industry , but perhaps not at Grandview ' Moreover when recalled as a witness later, Fenner responded to these questions from the bench as follows (emphasis added) Q Was a corporate decision made to give any instructions whatsoever to Mr Weehler about how to proceed? THE WITNESS For one thing the Board asked that as much as possible we take steps to improve the work force that Simplot had there And hopeful ly with that the employees that we did bring back who were going to be the ones with the most training and specialties would be fewer than the majority, and we would then not be obligated to act and bargain with the union JUDGE NELSON How did the Board express that to Mr Weehler? In those terms or in slightly differ ent terms or how was it put to him? You talked about the desire as expressed by the Board THE WITNESS Whether or not the word 50 per cent was mentioned , I m sure the word majority list' [sic] was and that Mr Weehler was instructed to see if he could find through registration of all em ployees who had previously worked there and others who were available to see if there would be available to us a majority of satisfactory-good em ployees who had not worked for us before JUDGE NELSON Not worked for- THE WITNESS For Simplot before Fenner also soon acknowledged that Respondent had not received specific complaints or information in other form about a poor quality work force at the time Sim plot operated the plant 866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Perhaps the most striking of Fenner s admissions, how ever, was one he made out of court to Barbara Olm stead, a reporter for the Grandview Herald, in a telephone conversation on or about August 10 19 In that August 10 call, Olmstead told Fenner that she had talked to "some former Simplot employees who were very upset and who in fact had not been called and interviewed for their former positions, no longer had a job, didn t know why She then asked Fenner to explain why this sizeable group had not been rehired Fenner replied to this ques tion by saying that a law prohibits us from hiring more than 50 percent of the former employees, adding something to the effect, if [we] were going to be non union On August 12, the Herald published another story under Olmstead s byline, in which she quoted Fenner as saying There is a National Labor Relations Board regu lation which prevents us from hiring more than 50 percent of the former employees if you're going non union 20 1 Questioned by Respondent's counsel, Fenner admitted telling Olmstead words to the effect that federal law prohibits us-meaning D & K-from hiring more than 50 percent of the former employees if we are to be non union " He subsequently admitted that he had made this statement "in direct response to the question from Olm stead why Respondent had not hired many former Sim plot employees He explained at trial that he had inter preted' counsel's advice as implying that Respondent was free to bypass former Simplot workers if it wished to operate nonunion Further explaining his statement to Olmstead, he acknowledged that he never believed that there existed any flat legal ban against a successor's hiring more than 50 percent from the former operation Rather, he answered `yes" to my eventual suggestion that it was his understanding" that "if you want to op erate nonunion it would be inconsistent with that goal to hire more than 50 percent of former Simplot em ployees Clearly, this latter understanding was what Fenner was trying to impart to Olmstead, and so under stood that statement amounts to an admission that Re spondent did not hire more than a minority of applicants from Simplot s ranks because to have hired more than a minority would have triggered an unwanted obligation on Respondents part to recognize and bargain with the Teamsters Thus, although Weehler sought to leave the impres sion that he operated under no particular restraints inso far as hiring in the production unit was concerned, it is clear from Fenner s testimony alone that Weehler had been instructed to employ a procedure which it was hoped would result in fewer than a majority of former Simplot workers being hired in the new operation To be sure, one could infer from Fenner s testimony that Weehler had been likewise instructed not to go so far as to ignore the `core' group of the most skilled and expe nenced Simplot workers (the year rounders and regu lar seasonals whose hiring was deemed essential to a smooth running operation on takeover) but as Fenner himself explained, it was known that those core' work ers would not constitute a majority in the new operation at peak production, and it was expected moreover that the remainder of the plant s workers, who would consti tute an overall majority, could be drawn from an antici pated pool of outside ' applicants Accordingly, al though Respondent 's managers could not be positive at the planning stage that they could locate a majority pool of outsiders to staff the "seasonal seasonals pro duction ranks it was clearly their desire to do so and they had clearly given Weehler the authority to staff a majority of the production positions with such outsiders provided that enough of them made application To that extent, their hiring plans were plainly informed ( taint ed is ultimately a better word) at the outset by a desire to give preference to outsiders over former Simplot workers when it came to staffing a majority of peak season production positions On brief, Respondent does not really dispute that it adopted a program of giving outsiders preference for the majority of the production jobs in the peak season Rather , in resisting the interpretation that this outside preference `tainted' its hiring program, Respondent places stress on that part of Fenner s testimony which refers to Respondents desire to improve" the work force, and argues that there is nothing unlawfully dis cnminatory in Respondents pursuing such a hiring goal In the circumstances I find this argument quite unten able For one thing, Respondent produced no evidence suggesting that the existing work force needed improve ment , for another, Fenner's vague reference to the di rectors desires to improve the work force was not well corroborated 21 Most importantly however, the claim that a genuine desire to improve the work force underlay Respondent's outsider preference scheme is of fectively rebutted by Weehler s own admissions dis cussed next concerning how he actually implemented 19 Olmstead had earlier been referred to Fenner and had spoken with him by phone on or about July 1 In that earlier conversation Olmstead had identified herself as a reporter for the Herald and had asked Fenner why Respondent had placed newspaper advertisements for applicants mentioning that many local citizens had contacted her paper expressing alarm or concern about whether current plantworkers would be rehired and whether the plant was going to be union Fenner had then replied that the employment ads were a standard procedure that it would be impractical to not hire experienced people but that a management decision had not been made yet about whether the plant was going to be union Olmstead s interview with Fenner had become part of a story under her byline published by the Herald on July 15 20 Olmstead s August 12 story also quoted the Board s assistant region al director for Region 19 as saying that there was no such regulation 21 This is an appropriate point to note that Respondent refused to produce copies of minutes of certain pertinent meetings of its board of directors which the General Counsel had subpoenaed In the circum stances it is appropriate to draw an inference adverse to Respondent- that the minutes would not corroborate indeed that they would contra dict any claim that Respondent looked to outsiders to staff the majority of its production ranks out of a nondiscriminatory desire to improve the work force An additional adverse inference is perhaps likewise war ranted-that the minutes would contradict Respondents agents to the extent they deny that Weehler was instructed to limit his hiring of former Simplot employees to a minority Because in any case Fenner substan tially admits that Weehler received instructions to limit hiring of former Simplot employees to a minonty I need not rely on any such latter infer ence D & K FROZEN FOODS the directions he had received from Respondents top management 3 Implementation of the hiring and selection process In briefest summary this is what Weehler admittedly did to locate and select employees for the takeover oper ation Weehler made contact with DES officials and secured their agreement to do preliminary screening and other paperwork associated with taking applications for work in the new operation He told DES agents that Respond ent would be nonunion" and instructed them to so advise all applicants He informed those officials that he wanted them to accumulate as many as 300 applications, even though the operation might require no more than about 150 workers at peak He also advised the DES agents that Respondent might decide, in the end, simply to hire solely from Simplot's ranks, and might ignore ap plications from other sources Weehler placed newspaper advertisements soliciting applications from the general public, and directed inter ested parties to apply through DES He made contact with two key managerial employees of Simplot, Marlin Crabtree, the plant manager , and Barbara Miller, the "personnel assistant' Miller maintained Simplot s se nionty list" used for the recall of seasonal employees, she was responsible for recalling employees from that list and was the most knowledgeable regarding the qualifica tions and work histories of employees on that list Weehler offered both Crabtree and Miller the same jobs in the new operation which they currently performed and they both eventually accepted these offers 22 He also arranged for Crabtree and Miller to post notices and otherwise to advise current Simplot employees (includ ing those on the seniority list who were not currently working at the plant) that they had until July 10 to apply through DES if they wished to work for Respondent after the takeover In Weehler s words, these preliminary efforts were all part of a plan to test the waters' to determine how many of Simplot s workers wished to stay on and to learn whether there would be enough good outside ap plicants so that Respondent would be in a position, if it decided to do so, to resort to outside hires to staff a ma jonty of peak season production positions As applications were accumulated in the late June to mid July period, Weehler instructed DES personnel to segregate those completed by Simplot s workers from those filed by outsiders By mid July, he had on hand not only the applications of the roughly 65 Simplot year round and regular" seasonal employees, but also those from another 68 persons on Simplot s seniority list (i e , those named in the complaint) all but one of whom (the exception being Larry Ortiz) fell into the seasonal sea sonals category In addition, Weehler had before him a 22 Crabtree did not formally accept this offer until approximately mid July it appears from Millers testimony that she had assumed from the nature of her regular contacts with Weehler that she would be invited to stay on but did not engage in a definite discussion on this point until the second or third week in July 867 separate stack of at least 85 applications (perhaps scores more) from outsiders with some prior food processing experience at other plants It was at around this mid July point, Weehler ex plained, that he prepared a separate list containing the names of the roughly 103 Simplot applicants and gave that list to Barbara Miller and Marlin Crabtree, asking them to identify which persons on that list had been above average workers for Simplot (he also used the term 110 percenters in explaining the types of employ ees whom he wished Crabtree and Miller to identify) Over the next day or so, Weehler says that Miller identi feed to Weehler as above average" the 65 persons whom Respondent eventually did hire as its core group and who had, under Simplot, similarly comprised its year round and regular seasonal complement of production and engineroom workers 23 Miller and Crabtree deny having received any specific instructions from Weehler to limit their above average" findings to a certain number I will assume for argu ment s sake that this is so Even if true, that fact does not disturb the other indications on which I rely to find that Weehler s hiring was nevertheless numbers" conscious For one thing, it was probable by its very terms that Weehler s instruction to identify only those above aver age" persons from the list of 103 former Simplot appli cants would yield a list of remaining eligibles which, almost by definition, would safely fall below one half of the number of peak period production employees Re spondent expected to employ For another, there was no need for Weehler to instruct Miller and Crabtree to limit their recommendations to a fixed number if, as it also ap pears, he was prepared to disregard any recommenda tions which would inconveniently elevate the numbers of the above average" group to a size larger than the "mi nonty" configuration which Respondent sought to employ Evidence supporting this latter assessment of Weehler's intentions may be found in Miller's testimony in which she reports that she actually gave above aver age" ratings to not only the 65 `regular Simplot em ployees whom Respondent did choose to retain, but also to an additional group of at least 20-30 seasonal season als" on Simplot s seniority list whom Weehler admittedly bypassed in favor of outside applicants 24 Weehler never 23 Miller and Crabtree agree that they conferred for only a brief time before deciding that the group of 65 regular met the above aver age criterion that Weehler had imposed 24 Miller states that she was the one due to her direct experience in dealing with the remaining irregulars (or seasonal seasonals ) who made such judgments about that latter category of applicants She says that after designating the 65 regulars as being above average she rec ommended an additional number of Simplot seasonal seasonals as also being above average She recalled at first that she named as many as 30 to 50 additional persons from that latter category as also being above average Later she reduced this estimate to probably 30-20 to 30 (Tr 669-672) Moreover she recalls that (unlike the written nota tions which she used to identify as above average the 65 regular em ployees appearing on Weehler s list of 103) she merely mentioned aloud the names of many others on that list (all of them seasonal seasonals) as being above average She could not recall whether Weehler took any notes or otherwise recorded names of the additional persons she recom mended from that latter group Thus even from Millers reduced esti Continued 868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD contradicted Millers testimony in this regard Thus, I take Millers testimony as true and find that Weehler s campaign to secure above average workers was a total sham, merely protective coloration to obscure that he was determined, no matter the results of Miller s and Crabtree s ratings, not to hire more than a minority of the new work force from Simplot s ranks I do not dwell further on the significance of Miller s revelations because I am satisfied from Weehler s own account that his above average program involved the imposition of a discriminatory double standard favoring outsiders which had no plausible relationship to a sup posed desire to improve the work force Thus (return mg to Weehler s story and ignoring Miller's revelations), Weehler admittedly gave no further hiring consideration to the 68 Simplot applicants whom Miller and Crabtree had failed to rate as above average He simply set their applications aside and then turned to the pile of outsiders applications as the source of the remainder of Respondents hires In this process he asked Miller to review the names of the outside applicants and to note any whom she knew from her own experience (with Simplot, or with other processors for whom she had worked) to be undesirable Thus in contrast to the above average standard which he claims to have used to assess former Simplot applicants, he imposed a facially different and less severe yardstick (not undesirable ) by which to judge the outside applicants Moreover, he ad mittedly never made any independent effort to check with the outside applicants previous employers to deter mine whether their former employers viewed those ap plicants as above average Neither did he make any effort to compare the written applications of the employ ees in the rejected Simplot group with those of the out siders Weehler was at his most uncomfortable in attempting to rationalize this apparent double standard On the one hand he tried for a time to suggest that it involved no double standard at all to prefer outsiders over any former Simplot employees who were not rated above average Thus he suggested in substance, that the very fact that an outsider was hungry and out of work made it more likely that the outsider would be an above average employee I find that Weehler did not genuinely believe what he was saying in this connection The obvious point made rhetorically by the General Counsel at trial was that the rejected Simplot applicants, too, would soon be hungry and out of work' and by parity of (absurd) reasoning would therefore be equally as entitled to be characterized as above average In any case, it was at around this point that Weehler began to backpedal, claiming that, after all, Respondent only needed warm bodies to staff the "seasonal seasonals production ranks-his self defeating point being appar ently, that Respondent did not really care whether the employees who were hired to staff the majority of pro duction jobs were above average mate it appears that she furnished to Weehler above average ratings for as many as 85-95 of the former Simplot employees who had made application-clearly a majority in the stipulated full complement of 151 I see no need to prolong my analysis of the record made by Respondents agents It is apparent that when Weehler consciously set aside the applications of the 68 persons named in the complaint and looked instead to the pool of outside applicants to fill remaining produc tion jobs, he was not genuinely seeking to improve the work force rather his actions are better explained as an implementation of a management plan which as Fenner substantially admitted, was primarily motivated by a desire to avoid an unwanted obligation to recognize the Teamsters Put another way, none of the complaint named discriminatees was rejected because he or she was nondiscriminatorily determined to be less qualified for hire than was the outsider hired to fill a production job I will therefore sustain the complaint insofar as it alleges that those 68 named former Simplot applicants were un lawfully denied hire solely because Respondent had de termined to staff a majority of production classifications with outsiders so as to avoid recognizing the Team sters 25 4 Special considerations affecting Larry Ortiz The foregoing findings apply not only to the class of former Simplot seasonal seasonals who were the main targets of Respondents inherently discriminatory bypass ing scheme, but also to Larry Ortiz, a regular produc tion employee who, during the peak season was assigned to a lead position under Supervisor Harold Fine Crab tree testified somewhat conclusionarily that although Ortiz did a good job as a production worker, Ortiz su pervisors had complained about Ortiz to the effect that his lead position had gone to his head and had made him difficult" to work with- indeed, that this had been a regular problem when, in previous seasons, Ortiz had been assigned to lead positions For this reason says Crabtree Ortiz was designated by himself and Barbara Miller as not above average and was therefore by passed for consideration for any posttakeover production job This explanation was inherently curious (especially because Crabtree acknowledged that despite these al leged problems with Ortiz in prior seasons he was again assigned to such a lead position when corn processing began under Simplot in the week before Respondent s takeover) In any case I find from Respondents failure to corroborate Crabtree in these particulars and from Ortiz credited testimony regarding Crabtree s admissions 21 As noted earlier Respondent acknowledges that all 68 employees named in the amended complaint were persons being earned on Simplot s seniority list when Simplot ceased operating at Grandview But Respond ent contested at trial in a handful of cases whether certain of those em ployees despite the appearance of their names on that seniority list were properly included on that list in view of their allegedly disqualifying fail ure to accept work opportunities in the previous season For present put poses this is an insignificant point which neither party has bothered to pursue at the briefing stage Accordingly I will not decide it The fact is that Respondent ruled out from hiring consideration all of those appli cants as part of a numbers scheme which presumed at the time that they were part of Simplot s seasonal complement based on their inclu sion on Simplot s seniority list It therefore does not matter whether under an attenuated inquiry into Simplot s contractual arrangement and practice a few of them might not have been entitled to be on the se nionty list due to some prior forfeiture on their part of contractual rights to recall D & K FROZEN FOODS 869 on July 31 (see supplemental findings in sec II,C) that Ortiz was simply another victim of Respondents num bers conscious hiring program and, but for that pro gram he would have been rehired in a lead position after Respondent took over the Grandview plant B Alleged Manipulation of Engineroom Unit Supplemental Findings and Conclusions 1 Introductory summary These facts are not in dispute Gary Burmood s title under Simplot was `chief engineer, then an hourly paid position within the Operators bargaining unit He was the most senior of the three engineers responsible for maintaining the plant s engineroom boiler and compres sor, and had worked in that department for 16 years, under Simplot and its own predecessors The other engi neers in that department were Larry Gibson, the next most senior, and the least senior, Gary s brother, Robert Burmood Gary spent most of his time working with the tools and there is no evidence that he exercised 2(11) su pervisory authority while employed by Simplot At least during peak season processing under Simplot s operation, the engineroom was maintained around the clock, 7 days a week, with one engineer assigned to each 8 or 9 hour shift Respondent admittedly altered this arrangement, after much preliminary bargaining with Gary, it hired him, but converted his position to a salaried one in which he was denominated a supervisor even while he continued to spend virtually all his time doing traditional rank and file engineer work 26 As part of an arrange ment to placate Gary, Respondent hired Larry Gibson as a second, hourly paid, engineer , it continuously refused to rehire Robert Burmood into the engineroom, but eventually came to terms with Gary by hiring Robert in stead as a production maintenance technician on the plant floor Gary Burmood and Gibson began by each working separate 12 hour shifts, 7 days a week On or about August 20, responding to repeated demands from Gary Respondent agreed to let Gary hire an outsider Milton Hewell, to supplement the engineroom unit for the balance of the corn processing season After Hewell was hired the three engineers reverted to the traditional three shift coverage arrangement The General Counsels theory, in substance is that Re spondent was substantially motivated in making the fore going changes by a desire to achieve a situation in which it could claim that the current engineroom employed only one nonsupervisory former Simplot employee, thereby enabling it to defend against the Operators re 26 The General Counsel originally alleged in the complaint and Re spondent admitted that Gary Burmood was its supervisory agent at all times after the August 1 takeover In midtnal however dunng Gary s testimony the General Counsel moved to amend the complaint to delete the allegation that Gary was a supervisor After much colloguy I denied the General Counsels motion as untimely and likely to be disruptive to an orderly trial if we were now to litigate what had once been agreed by the parties-that Gary s position after the takeover was a supervisory one I allowed the General Counsel to plead in the alternative however that Respondents elevation of Gary to a supervisory position was an ele ment in a unit manipulation scheme calculated to defeat the Operators demand for recognition For all purposes below I assume that Gary s po sition after August 1 was a supervisory one if only marginally so cognitional demands by arguing that the engineroom unit was either inappropriate for bargaining as a one employ ee unit, or, alternatively (after Hewell was hired from outside), that former Simplot employees did not consti tute a majority in that unit Respondent claims in sub stance relying on Weehler s and Kimzey s testimony that Gary was made a supervisor because Respondent believed it important to have someone clearly in charge of the engineroom Also invoking those agents' testimony Respondent explains that it chose initially to use only two, rather than three, engineers because it in tended to process only corn, and could not be sure at takeover that it would require a third year round engi veer, accordingly, as Weehler and Kimzey each summar ily explained, Respondent planned to begin by operating with only two engineers (one being a supervisor), and if needed, to hire a third engineer later from outside, who might be used only during the peak season 2 Gary Burmood s testimony In testing these positions, I find it useful to refer in greater detail to the testimony of Gary Burmood, whom I found to be a generally credible and forthright witness, and who was not specifically contradicted in his account except in one respect, which I shall discuss in due course Gary testified that he was initially interviewed by Weehler at a local motel on July 28, where Weehler conducted interviews with other skilled Simplot employ ees he had decided to retain Weehler told Gary that he wanted Gary to accept a salaried position that he would be a working supervisor and that the plant would be nonunion Gary commented that he was not really interested in a salaried position He asked about Respondent s plans for the other two engineroom work ers Weehler replied that he hadn t talked to them or couldn t talk to them until he talked to me or something I can t remember his exact words Gary did not commit himself during this interview The next day July 29 Gary met again with Weehler in an office at the plant Gary again expressed disinterest in a salaried position causing Weehler to say that if he were paid hourly, his rate would be $1401 Gary again asked about the other two engineers and Weehler replied that if I [Gary] was on an hourly position neither one of those guys would be hired Gary rejoined, If they weren t coming back, I wasn t coming back Eventual ly Gary states that it became understood that if Gary would take a salaried position, Larry Gibson would be hired but that Bob [Burmood] was still out Gary then asked Is this because of a percentage deal on hiring or something? and Weehler never commented other than nodding his head affirmative ' Gary asked if the issue was money suggesting that if that were the issue in not hiring the other guys back that `we d try to make some concessions along those lines Weehler said that money wasn t the issue adding, in substance, that "if the union stayed in there the parties would be at log gerheads over the Company s wish to use a different pension and health and welfare plan There was addition al inconclusive discussion about whether Larry Gibson would be amenable to being included under a different 870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pension and health and welfare plan than the one cur rently maintained under the Operators contract with Simplot Weehler, who never gave a systematic account of these transactions, contradicted Gary's version in only one respect he denies that there was ever any mention of a percentage deal during the office discussion on July 29 Because of Gary's superior demeanor, I find that Gary did, in fact, ask if Respondents proposed engine room staffing and restructuring had something to do with a percentage deal, and that Weehler indicated by an affirmative nod that Gary was correct Moreover, Weehler did not contradict Gary and I therefore find, that Weehler told Gary that neither Larry Gibson nor Robert Burmood would be recalled if Gary were to insist on remaining as an hourly paid engineer And, in the absence of any denial by Weehler, I further find from Gary that Respondent's reasons for opposing recognizing the Operators was an element in Weehler s discussion with Gary of the staffing arrangements On July 31, on the afternoon before Respondent s takeover, no clear arrangement had yet been worked out between Weehler and Gary Burmood Respondent had arranged to `borrow some outside engineers from a dif ferent plant to staff the engineroom in the event Gary and Respondent could not come to terms Crabtree ad vised Gary that the outside engineers would be coming in that evening to observe how the engineroom `was fired up' Gary called Operators' Business Agent Ron McLean with this news, and McLean came to the plant Shortly afterward Respondents Vice President Kimzey arrived, and a meeting was held involving Gary Bur mood, McLean, Kimzey, Crabtree, and Weehler At the outset Kimzey told McLean that the Company did not intend to bargain with the Operators and commented that McLean had no business being present Interpreting the presence of the outside engineers as a signal that Re spondent would not hire any of the Simplot engineers (and also signaling that he was not prepared to agree to Respondents current proposed terms of employment), Gary asked if he and his fellows would be allowed to return to the plant the next day to remove their tools Kimzey agreed that they could do so Later that evening, however Crabtree summoned Gary to his office and told Gary, They re going to offer Bob a job in the [production] Maintenance Department and keep Larry on Shortly afterward, Kimzey, Weehler, and Crabtree arranged to meet with Gary at the Elks Club, as a 'quiet place to talk At the Elks Club, Respond ent s agents again asked if Gary would accept a salaried job if the company would hire Bob upstairs' as a me chanic, and would retain Gibson in the engineroom Gary then reluctantly agreed, having earlier been coun seled by McLean that he should do whatever he had to do to maintain his job and those of the other engineers It was not until later that evening, as Weehler admits that Weehler formally offered positions to Gibson and Robert Burmood After Respondent's takeover, Gary soon determined that there was too much work for him and Gibson to handle alone, each working 12 hours per day 7 days a week As early as August 2 he began to press Weehler to give him permission to transfer his brother Robert back to an engineers position from his production mainte nance assignment Gary recalls, regarding the proposal to bring Robert back, that Weehler first said, '111 have to discuss that with [Respondents attorney] Gary Lo fland About a week later Weehler returned to say that they couldn't do it at that time at all and possibly he said next corn season " Weehler admits Gary pressed to have Robert returned and states that he replied by saying we should discuss that maybe in a year He does not directly deny Gary s testimony that he had stated he would have to discuss with Gary Lofland the possibility of bringing Robert back to fill the third engi neer s position Because Weehler does not deny this ele ment of Gary s account, I credit Gary on the point Having been rebuffed in his wish to bring Robert back into the department, Gary obtained some resumes from qualified outsiders from Weehler, and obtained Weehler s permission to hire one of them, Milton Hewell, to work the balance of the corn season 3 Concluding analysis I conclude from the foregoing findings that Respond ent's staffing and restructuring of the engineroom is best explained in terms of an unlawful discriminatory plan to avoid the duty to recognize the Operators by creating a unit so composed as to be either inappropriate (a one em ployee unit) or, alternatively, one in which only one of the two nonsupervisory engineers would come from Simplot s ranks Similarly for reasons elaborated below, I find quite unpersuasive Respondent's attempts to justify these actions in terms of a nondiscriminatory plan made solely for reasons of efficiency In the first place, I cannot ignore in this section what I have otherwise found regarding Respondents discrimina tion in staffing the production unit to defeat the Team sters representational rights Those findings lead me to believe that Respondent had similar intentions when it came to composing its engineroom complement-even if, because of unique considerations in that unit Respondent was obliged to resort to a somewhat different scheme to accomplish the same purpose Even if I were to ignore Respondents discrimination in staffing the production unit, however, I would still reach my same ultimate conclusions By July 29, Weehler had already betrayed a rather strong disposition on Respondent's part to restructure the engineroom in such a way as to defeat any claim by the Operators that they were entitled to be recognized He had indicated by a nod of the head to Gary Burmood that a percentage deal' underlay Respondent's resistance to hiring Gary in his traditional hourly paid role-and to rehiring Larry Gibson and Robert Burmood at all if Gary were to insist on remaining hourly paid This was perhaps enough in itself to give the lie to Respondent's claim that it was somehow independently important that Gary be treated as a nonunit supervisor, for what was implicit in Weehler's comments was that it might be acceptable, after all, for Gary to retain his former status, but, if so only if neither Larry Gibson nor Robert Burmood were then recalled, and outsiders were then hired as the D & K FROZEN FOODS second' or third engineers Moreover Respondent s insistence on the importance of making Gary into a su pervisor is independently curious, given its own claim that it intended at the start to staff the engineroom with only one other engineer This intention necessarily im plied that each engineer would work on a separate shift, and therefore, that Gary would not be in a position to directly "supervise the second engineer The transactions thereafter further bespeak, in my view, a determination on Respondents part to allow the three former Simplot engineers to be rehired only if the rehiring could be structured so as to avoid having more than one of them in a nonsupervisory position in the en gineroom Thus, Respondent, in its anxiety to retain Gary, was forced to contrive an arrangement which would keep both Gibson and Robert Burmood em ployed, but one which would not result in both of them working in their former department In this regard, it is also hard to accept that Respondent ever genuinely be lieved that the engineroom could be staffed with only two persons, each working 12 hour shifts, 7 days a week Clearly, Respondent's agents must not have been in doubt at any point about the need for a third engineer, at least during the peak corn processing which was already underway when Respondent took over It therefore is difficult to understand, except in terms of a discriminato ry motivation, why Respondent did not take a more ob vious step at the start to placate Gary-by bringing back Robert, as well, into the engineroom, at least until the corn harvest was processed And Weehler s response when pressed immediately by Gary after the takeover to bring Robert back-that he would have to discuss that proposal with Respondent's labor counsel, Gary Lof land-is another highly telling bit of evidence showing that labor relations considerations, rather than ordinary business ones , were the principal factors influencing the way in which Respondent chose to staff and structure the engineroom Finally, Respondent s eventual agree ment to allow Gary to hire an outsider Hewell, to round out the engineroom crew simply points further to what was by now obvious-that the engineroom needed three engineers and that Respondent was at all costs deter mined not to have it staffed by more than one nonsuper visory former Simplot employee Consistent with the main thrust of the amended com plaint, I find that Respondent s elevation of Gary Bur mood to a supervisory position, and its refusal to reem ploy Robert Burmood in the engineroom unit were re lated elements in an unlawful discriminatory scheme to manipulate the engineroom unit so as to defeat the Oper ators' recognitional claims 27 Relatedly, I conclude that, but for that unlawful scheme, Respondent would have hired Gary Burmood Larry Gibson, and Robert Bur mood to perform the engineroom work according to the traditional arrangement in that department, and, particu larly that Respondent would not have conferred super visory duties on Gary Burmood, nor converted his pose 27 I find this situation analogous to an employers unlawful mampula Lion of unit positions to defeat an initial organizing campaign such as that presented in Sand< Motel 280 NLRB 132 (1986) 871 tion to a salaried one, absent a desire to defeat the Oper ators recognitional claims C Independent 8(a)(1) Allegations Relating to Statements by Respondents Agents that Respondent Would Hire or had Hired Less Than a Majority from Simplot's Ranks in Order to Avoid Union Recognition I introduce this section by noting that there was much confusion among bargaining unit employees about Re spondent s intentions once it became known that Re spondent would take over the Grandview plant Every one agrees that one of the many rumors' which were then in circulation was the '50 percent rumor, in which employees heard (mainly from other employees) that Re spondent would refuse to bring back more than 50 per cent of Simplot s production workers 1 By Crabtree (To Ortiz) Both Crabtree and Ortiz agree that they had a discussion about Ortiz future employment on July 31, in the afternoon preceding Respondent s takeover Ortiz recalls it this way Although he had made applica tion through DES, Ortiz had not been told he would be rehired by Respondent At about 3 p in on July 31, still in doubt about whether he would be hired, Ortiz went to Crabtree s office and asked about his future status Crab tree replied, You're definitely not going to be hired " Ortiz asked, What s the reason Crabtree replied that the reason was this company coming in was nonunion and they were only going to hire a certain percentage because they wanted to break the union And if [Ortiz] was to be hired that day, it would offset their percentage Ortiz responded that he understood and did not wish to get Crabtree in trouble, whereupon Crabtree re plied, I have to do what the company wants me to do Crabtree was not asked by Respondents counsel to comment on this transaction, but, queried separately by me, he recalled only that, Larry came in and wanted to know if there was any possibility that he could still be considered to be hired And I said that there could be, I would talk to Frank [Weehler] And then the next thing he asked me was if he found another job, if I would give him a reference and I said I definitely would Respond ent chose not to develop Crabtree s testimony any fur ther in this regard Obviously Crabtree s and Ortiz versions are inharmo pious I found Crabtree's account unusual and incom plete, and found it further suspicious that Respondent s counsel never asked Crabtree directly to admit or deny Ortiz' version nor to elaborate on his own statement that he had agreed to pursue the issue of Ortiz' rehire with Weehler Ortiz, by contrast, gave a coherent seemingly candid, and complete account of this transaction and the surrounding events I discredit Crabtree s version and credit Ortiz' to find that Crabtree stated that the reason that Respondent would not hire him was that to do so would 'offset their percentages and would impair Re spondent s plan to break the union There is no question that an employer violates Section 8(a)(1) when it advises a job applicant that he will not be hired because to do so would interfere with the employ 0 872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD er s desire to defeat a union 's claim for representation 28 Respondent does not challenge this legal proposition, but argues instead that it cannot be held responsible for Crabtree s pre August 1 statements because until August 1, Crabtree was not Respondent's agent In the circum stances Respondents arguments are not well founded As of July 31 though not yet on Respondents payroll, Crabtree (like Miller) had already performed assignments for Respondent relating to the staffing of the new plant (including by helping to designate for Respondents ben efit which of Simplot s employees were above aver age '), he had accepted employment with Respondent, and, at the time of his conversation with Ortiz was within 24 hours of formally taking over as Respondent s plant manager He clearly played a transitional role on Respondent's behalf before August 1, and I therefore conclude that Respondent had already begun to use Crabtree as its agent and had invested Crabtree with the apparent authority to speak on its behalf by the July 31 point when he spoke with Ortiz I therefore conclude that Respondent is responsible for Crabtree's statements on July 31, and that by those statements, Respondent violated Section 8(a)(1) (To Costlow) I do not find credible the testimony of Teamsters Business Agent Ronald Costlow to the extent he claims that Crabtree admitted to Costlow during a meeting at some ill defined point in July that Respondent would hire fewer than 50 percent of its employees from Simplot s ranks in order to be nonunion Costlow claimed to recall this when called by Respondent as a witness on another matter Crabtree denies making such a statement and Costlow s own testimony was suspicious ly vague and shifting on this point Moreover it suggest ed improvisation on Costlow s part that he did not reveal this information until after the General Counsel had rested his case in chief without ever calling Costlow as a witness Because I would not rely on Costlow s testimo ny, I need not decide (a) whether Crabtree occupied an agency status with Respondent at the point he met with Costlow in July or (b) even if so whether Crabtree s statement, made only to a nonemployee union agent would implicate employees rights under Section 7 of the Act (To Dillman and Kennedy) Production mechanics Randy Dillman and David Kennedy each testified some what harmoniously about a conversation they held with Crabtree on the corn cutter deck occurring around the middle or latter part of June Kennedy recalled perti nently that Crabtree said that it was going to be hard for the guys in the engineroom with D & K appar ently wanting to go nonunion and only three guys there, they would have to maybe take out 50 percent of the people to make it work or something and that was really going to be tough on them guys adding that we [the production mechanics] probably wouldn t have to worry about our jobs, he didn t think Dillman who seemed to me more studiedly evasive, uncomfortable, and reluctant in having been subpoenaed to testify, recalled without prodding that Crabtree said that there was going to be 28 E g Kessel Food Markets supra 287 NLRB 426 ( 1987) and cases cited a lot of new faces, and, after Dillman asked him if Re spondent wanted the union out ' answered That s ex actly right Asked further by Dillman how this would affect the engine room,' Crabtree replied, I don t know what they re going to do about the engine room The handwriting is on the wall Pressed by the General Counsel, Dillman eventually agreed that the subject of percentages was brought up, but stated that he could not now recall what had been said on that subject This is the relevant portion of Crabtree s examination by Respondents counsel on the corn cutter' conversa tion Q Now, approximately June 20th did you ever have a conversation with Randy Dillman and Dave Kennedy on a cutter deck where you stated that there would be lots of new faces in the plant, that D & K wanted the union out, that the hand writing was on the wall, and that D & K had to cut 50 percent of the people to make it work? Did you ever have any conversations like that? A I remember having conversations with a lot of people, but I don t remember ever ever stating that to that detail at all, never I found Crabtree generally to be an uncomfortable witness, his recollections often seemed shaped or summa ry in nature By comparison, both Dillman and Kennedy seemed more reliable in their recollections and between the latter two, I was most impressed by the seeming candor of Kennedy I therefore rely on Kennedy s ac count to find that Crabtree effectively told the two me chanics that D & K apparently wanted to go non union and, to make it work, would probably refuse to hire more than 50 percent of Simplot s workers and that this would impact most heavily on the job prospects of the three employees in the engineroom However in contrast to my conclusion that Crabtree was Respondents agent when he spoke to Ortiz on July 31, I cannot find that Crabtree occupied any such status as early as the middle or latter part of June Thus the record does not demonstrate that Crabtree had as of that point accepted Respondents outstanding offer to contin ue as plant manager nor that Respondent had begun to use him to perform assignments on its behalf nor that Respondent had made him privy to its likely hiring plans Accordingly when he spoke to Dillman and Ken nedy Crabtree was not invested with apparent authority to speak for Respondent and by the nature of his re marks, as found above, he was apparently speculating (however accurately) about Respondents intentions To that extent, his remarks were indistinguishable from the employees standpoint from other speculations or rumors then in circulation to the effect that Respond ent intended not to rehire more than 50 percent of Sim plot s workers I therefore conclude that Respondent cannot be held responsible for Crabtree s remarks to Dillman and Kennedy 2 By Kimzey Everyone agrees that Vice President Kimzey held a pep talk meeting with the production mechanics on D & K FROZEN FOODS the morning of August 1 Dillman recalls that one of the mechanics asked Kimzey why do people have to lose their jobs? and that Kimzey replied that it was an un fortunate thing that we couldn't hire a hundred percent of the people or we would have had to recognize the union [and that] Most of the people who lost their jobs were short term, six month to two year employees or people who didn t want to be there anyway Kimzey and Supervisor James Wysong also testified concerning the peptalk meeting Kimzey recalled that One of the mechanics asked if it were true that if we hired 50 percent or more than 50 percent of the people that were members in the union, would we have to be union And I responded to that question as I told him that the way I understood it was that if we hired more than 50 percent of the members of the union, that we would have to recognize them and bargain with them' He denied having said that Respondent would not hire more than 50 percent of the former Simplot em ployees (a quote which no one had attributed to him) Wysong's testimony was useless in helping to resolve the discrepancy He struck me as doing his best to avoid re calling anything which might be unfavorable to Re spondent s litigation position, and denied even that the subject of hiring percentages had ever been raised, thus contradicting both Kimzey and Dillman Clearly, the central factual issue is not whether there was some reference to hiring percentages by Kimzey, but whether he made percentage remarks in response to a question why certain employees had not been hired (as Dillman recalled), or whether (as Kimzey himself re called) he simply made an abstract statement of his un derstanding of the law in response to an equally abstract inquiry from a member of his audience Neither Kimzey nor Dillman betrayed any obvious demeanoral deficien cies when testifying about this meeting, but I found Kim zey s account less probable The record otherwise shows that there was much resentment on the part of the Sim plot employees who were rehired over the fact that Re spondent had not rehired many of their fellows and it is therefore plausible as Dillman stated, that an employee would have voiced this concern at the peptalk meeting Relatedly it is hard to accept (as Kimzey s account im plies) that an employee would have merely raised an ab stract question of law in that meeting Moreover, I infer from Fenner s less guarded testimony, and from his ad mitted statements to reporter Olmstead that Respond ent s agents believed in early August that there had been nothing wrong in limiting hiring of former Simplot workers to a minority in order to defeat union recogni tional claims Accordingly, I credit Dillman in this regard and find that Kimzey told employees in the pep talk meeting in substance that many of their fellow workers had not been rehired because to have done so would have triggered an unwanted union recognition ob ligation on Respondents part I further find that such a statement necessarily interferes with, restrains , or coerces employees in the exercise of Section 7 rights and thereby it violated Section 8(a)(1) 873 3 By Fenner Although the complaint does not treat it as an inde pendent violation, I conclude that Respondent violated Section 8(a)(1) when Fenner told journalist Barbara Olmstead on August 10, in substance that the reason that Respondent had not hired more than 50 percent of its employees from the ranks of former Simplot workers was that to have done so would have triggered an un wanted obligation on Respondents part to recognize the Union Fenner knew he was talking to a reporter who was covering a story of interest to the community and who was specifically seeking Fenner s response to ques tions raised by former Simplot employees about Re spondent's failure to recall many of them It was foresee able that Fenner s replies would be published to the com munity, including to Respondents current employees and the former Simplot employees whom Respondent had unlawfully bypassed Olmstead did, in fact, publish Fen ner s replies, and her story may be presumed to have been read by among others, former Simplot employees and current employees of Respondent These facts were fully litigated and are not subject to any reasonable dispute Where it was foreseeable that Olmstead would publish Fenner s replies to her ques tions, I find that Respondent violated Section 8(a)(1) when Fenner communicated to employees through Olm stead that Respondent had not hired many of Simplot s workers in order to avoid recognizing the Union 4 By Weehler Also not alleged as an independent 8(a)(1) violation was Weehler s nod of the head affirmance to Gary Burmood s question whether a percentage deal under lay Respondent s unwillingness to recall either Robert Burmood or Larry Gibson unless Gary would accept a salaried supervisory position Because these facts were fully litigated I will also find that Weehler s conduct in this instance violated Section 8(a)(1) 5 Pretakeover statements that Respondent would operate on a nonunion basis Respondent admits that its own agents regularly told job applicants before the takeover that it would operate nonunion and that it likewise instructed DES agents to pass that message along to such applicants The com plaint as amended alleges that Respondent violated Sec tion 8(a)(1) by communicating those messages to apple cants The question whether, or under what circumstances, a potential successor to a union represented business may announce in advance to jobseekers that it intends to op erate on a `nonunion basis is one which I highlighted at the trial as an issue for briefing, noting for the parties benefit that in a different context than the one presented here I had decided that such statements were privi leged 29 but noting as well that I had so far discovered no clearly controlling Board precedent 29 See Pacific Glass Industries JD-(SF)-113-87 slip op at 26-31 find mg that alleged successor s nonunion statements made at a time when Continued 874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I have since discovered the Board's recent decision in Kessel Food Markets, 287 NLRB 426 (1987),30 which I now find to be dispositive, at least in the present context In Kessel, the Board stated as follows Under Burns, the purchasing employer has an obli gation to recognize and bargain with the union if a majority of the purchasers employees were previ ously employed by the seller and were represented by the union Thus the employer does not know whether it will be union or nonunion until it has hired its work force 31 When an employer tells ap plicants that the company will be nonunion before it hires its employees, the employer indicates to the applicants that it intends to discriminate against the seller s employees to ensure its nonunion status Thus, such statements are coercive and violate Sec Lion 8(a)(1) On the strength of Kessel, I conclude that Respondent violated Section 8(a)(1) when its agents (including, for these purposes, DES personnel) told job applicants that Respondent would be "nonunion D Concluding Analyses Regarding the Successorship Issues and the Violations of Section 8(a)(5) I have found that, but for its discriminatory hiring and staffing schemes in the two units, Respondent would have continued to employ former Simplot employees to staff the majority of positions in those units The cases are clear that takeover employers who resort to such dis criminatory practices will normally be treated notwith standing the actual configuration of their new comple ments, as successors to the recognitional and bargaining obligations under which their business predecessors oper ated 31 Respondent seeks to escape this result by arguing that even if it unlawfully discriminated in hiring and staffing, it still should not be treated as a labor relations successor because it runs an essentially different" oper ation than the one run by Simplot The only factor cited by Respondent in this regard is that on takeover it it was still in doubt whether a majority of predecessor s employees would accept jobs in the takeover operation were lawful No party took excep pons and the Board entered an order dismissing the complaint pro forma See also Bay Area Mack 293 NLRB No 13 JD slip op at 14-16 (Mar 8 1989) where again in a different context from this one I recom mended dismissal of an 8(a)(1) allegation linked to the successor having told job applicants at a time when it was not clear that the predecessors employees would comprise a majority in the takeover operation that the new operation would start up nonunion 30 Coincidentally the Board decided Kessel on the day this tnal record was closed 31 In making this observation the Board was apparently referring to a more typical takeover situation It should be recalled however that the Burns court recognized that there would sometimes exist exceptional cir cumstances in which it would be perfectly clear even before the take over employer has hired its work force that at least a majority of its workers would consist of its union represented predecessor s employees and in such cases that it would be appropriate for the takeover em ployer to initially consult with the incumbent union before establishing initial terms of employment for the new work force Burns Security supra 406 U S at 294-295 32 See Kessel Food Markets supra and State Distributing Co supra 206 NLRB 1048 and other authorities cited above at In 16 processed only corn whereas Simplot processed other vegetables I find this defense untenable The record leaves no doubt that Respondents operation on and after August 1 was indistinguishable from Simplot s operation as it exist ed on July 31, save only for the identities of some of the employees Respondent put to work Moreover, even if one takes into account that Simplot customarily had processed other vegetables than corn (which it was proc essing in the week before the takeover), Respondent has not demonstrated that the skills required of employees, nor the general conditions under which they work, are materially affected by the type of vegetables they proc ess Moreover, at the time of the takeover, Respondent was entertaining the possibility that it would later proc ess sugar snap peas at Grandview-a possibility which later ripened to actuality In any event, the cases are clear that successorship obligations are not defeated by the mere fact that only a portion of a former union rep resented operation is subject to the sale or transfer to a new owner so long as the employees in the conveyed portion constitute a separate appropriate unit, and they comprise a majority of the unit under the new oper ation ' 33 Here , Respondent does not question the appro pnateness of either the historical production unit repre sented by the Teamsters or the historical engineroom unit represented by the Operators, 34 and , as noted, Re spondent has not demonstrated that the fact that it took over intending to process fewer types of vegetables than Simplot did has had any impact on the continuing appro pnateness of those units Accordingly, here, as in Stewart Granite, supra it may be said that, The fact that Respondent has had more modest aspirations [than its predecessor] seems almost irrelevant This has had no demonstrable effect on the terms and conditions under which employees at the plant have tradition ally worked there and therefore this factor cannot be said to have raised any genuine question as to whether the Union s representative status ought to be continued under Respondent s operation 35 Accordingly Respondent is a successor to Simplot s labor relations obligations to the Teamsters and the Op erators and it plainly violated those obligations by refus ing those unions demands to be recognized and to bar gain collectively over all terms and conditions of em ployment affecting employees in the respective units 36 33 Stewart Granite Enterprises 255 NLRB 569 573 (1981) and cases cited there cited with approval in Louis Pappas Restaurant 275 NLRB 1519 1520 (1985) 34 In the case of the engineroom unit Respondent clearly cannot rely on the fruits of its discriminatory manipulations of that unit after takeover to claim that the engineroom unit is no longer appropriate because it now employee only one nonsupervisory employee in that unit on a year round basis Independently to the extent that peak season complements have been focused on by the parties as the relevant complements for majon ty -counting purposes it follows that in fact the engineroom comple ment included at least two nonsupervisory employees (Gibson and Hewell) and therefore that the engineroom unit continued to be an ap propnate unit even if Respondents elevation of Gary Burmood to a su pervisory position were not treated as an unlawful discriminatory act as Id at 573 and cases cited there 3a Respondents unlawful discrimination in refusing to rehire substan tial numbers of its predecessors employees Greengate Mall 209 NLRB 37 39 (1974) and cases cited there D & K FROZEN FOODS Moreover, where, but for its discriminatory hiring and staffing schemes, Respondent would have employed former Simplot employees as a majority in its production and engineroom complements, Respondent cannot now be heard to argue that it was nevertheless free to estab lish initial terms in those units rather, by its discnmi natory behavior, Respondent forfeited any right it might otherwise have enjoyed under Burns unilaterally to impose `initial terms respecting wages and other condi tions of employment in the new operation 37 CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Teamsters and the Operators are each labor or ganizations within the meaning of Section 2(5) of the Act 3 Appropriate units for collective bargaining are the ones defined in and covered by the most recent collec tive bargaining agreements between Simplot Foods, Inc and the Teamsters and the Operators which, as estab lished by the pleadings, are properly described as fol lows (a) (Teamsters' Unit) All production, maintenance , and warehouse em ployees of Respondent employed at Respondent's processing plant and warehouse in Grandview, Washington , or sheds or lots adjacent thereto, where commodities or materials are processed or stored , but excluding office and clerical employees, superintendents , assistant superintendents , field per sonnel , guards , nurses , medical technicians , refriger ation personnel , and supervisors as defined in the Act (b) (Operators' Unit) All employees of Respondent at its Grandview, Washington facility who operate and maintain the refrigeration equipment , but excluding all other em ployees , guards and supervisors as defined in the Act 4 By failing and refusing to hire the 68 persons named in the amended complaint38 to positions in the Team sters unit, Respondent unlawfully discriminated against employees with respect to hire, tenure, or other terms and conditions of employment, and thereby has engaged in, and is engaging in unfair labor practices within the meaning of Section 8(a)(3), and, derivatively 8(a)(1) of the Act 5 By refusing to hire Gary Burmood to his former po sition in the Operators' unit and by instead elevating him to a salaried, supervisory position in that unit, and by re fusing to hire Robert Burmood to his former position in that unit, Respondent has unlawfully discriminated against employees with respect to hire, tenure, or other 87 State Distributing Co supra citing Potters Chalet Drug supra and Loves Barbecue Restaurant supra enfd in pertinent part by the Ninth Circuit 640 F 2d at 1102-1103 38 The names of the persons in question are affirmatively set forth in my recommended Order infra and are repeated in my recommended re medial notice to employees attached here as Appendix 2 875 terms and conditions of employment, and thereby has en gaged in, and is engaging in unfair labor practices within the meaning of Section 8(a)(3), and, derivatively 8(a)(1), of the Act 6 But for its unlawful discrimination described above in paragraphs 4 and 5, a majority of Respondents em ployees in the Teamsters unit and the Operators' unit would have consisted of employees previously employed by Simplot in those Units and, as a consequence thereof, the Teamsters and the Operators have been at all times material, and are now, the exclusive representatives of Respondent's employees in those respective units for pur- poses of collective bargaining, within the meaning of Section 9(a) of the Act 7 By failing and refusing to recognize and bargain with the Teamsters and the Operators as the exclusive collective bargaining representatives of employees in their respective units, by unilaterally establishing initial terms and conditions of employment in each of those units , and by unilaterally varying from the terms and conditions of employment previously enjoyed by em ployees in those units under Simplot s operation, Re spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and, de nvatively, (1), of the Act 8 When its Agents Crabtree, Kimzey, Weehler, and Fenner told employees, in substance, that Respondent would limit, or had limited, its hiring of former Simplot employees to a minority in the new operation, and when, at Respondents behest, representatives of the Washing ton State Department of Employment Security told job applicants that Respondents Grandview operation would be `nonunion, Respondent interfered with, restrained, and coerced employees in the exercise of the rights guar anteed in Section 7 of the Act, and thereby has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act THE REMEDY, RECOMMENDED ORDER My recommended Order requires that Respondent cease and desist from its unfair labor practices and that it take affirmative action necessary to restore the status quo ante its violations 39 My proposed Order requires Respondent affirmatively to offer reinstatement to the 68 employees named in the complaint who were denied hire in the production unit, and to restore Gary Burmood and Robert Burmood to the positions in the engineroom unit which they occupied under Simplot s operation of that department that, if necessary it discharge employees hired from sources other than Simplot s ranks in order to make room for them, and that it make all such employ ees whole, with interest, for any losses in wages or bene fits they may have suffered as a result of Respondent's unlawful discrimination against them 40 Respondent is 99 My recommended remedy is chiefly informed by the Board s discus sion in State Distributing Co supra 40 All the employees in question except Larry Ortiz were seasonal em ployees with perference for recall linked to their seniority It is contem plated that Ortiz be reinstated to a year round regular position con sistent with his status before he was unlawfully denied rehire Consistent Continued 876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD also required on request, to recognize and bargain collec Lively in good faith with the Teamsters and the Opera tors in the respective units elsewhere found appropriate here, and, on request of the Teamsters or the Operators, to cancel any of its unilateral departures from terms and conditions of employment, including rates of pay and benefits, as established in Simplot s labor agreements with the Teamsters and the Operators With respect to all employees in the two units, Respondent shall make them whole by remitting to them and to the benefit trusts established by Simplot s labor agreements with the Teamsters and the Operators, all wages and benefits that would have been paid under those Simplot labor agree ments absent Respondents unlawful conduct,4 i from August 1, 1987, until Respondent shall have negotiated in good faith to agreement or impasse with the Unions On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed42 ORDER Respondent D & K Frozen Foods, Inc, Grandview Washington, its officers, agents, successors, and assigns, shall I Cease and desist from (a) Refusing to recognize and bargain collectively with the Teamsters and the Operators as the exclusive collec tive bargaining representatives of its employees in the Teamsters' and Operators' units elsewhere found appro priate here, with respect to rates of pay, hours of work, and other terms and conditions of employment (b) Changing any term or condition of employment of its employees in those units including wages and pension and health and welfare coverages, without first giving those Unions a chance to bargain over such changes (c) Withholding offers from employees failing to hire them altering their job titles functions, or payment schemes, or otherwise discriminating against employees to avoid having to recognize and bargain with the Team sters or the Operators or any other labor organization (d) Telling employees or applicants that it will not hire, or has not hired, certain of them or has changed their title or pay scheme, in order to avoid recognizing and bargaining with the union which represented them (e) Telling job applicants or employees that it will op erate nonunion (f) 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) Recognize, and, on request, bargain collectively in good faith with the Teamsters and the Operators as the exclusive collective bargaining representatives of the em ployees in the units elsewhere found appropriate herein, with respect to rates of pay, wages, hours of work, and other terms and conditions of employment and, if an un derstanding is reached, embody it in a signed document (b) On request of either the Teamsters or the Opera tors cancel any departures from terms and conditions of employment that existed immediately before its takeover of the Grandview plant formerly operated by Simplot Foods, Inc, retroactively restoring preexisting terms and conditions of employment including wage rates and ben efit plans, and make the employees whole by remitting all wages and benefits that would have been paid absent such departures from August 1, 1987, until it negotiates in good faith with those Unions to agreement or to im passe The remission of wages shall be computed as in Ogle Protection Service, 183 NLRB 682 (1970), enfd 444 F 2d 502 (6th Cir 1971), plus interest as prescribed in Florida Steel Corp 231 NLRB 651 (1977), see also New Horizons for the Retarded 283 NLRB 1173 (1987) The Respondent shall remit all payments it owes to the em ployee benefit trusts and reimburse its employees in the manner set forth in Kraft Plumbing & Heating 252 NLRB 891 fn 2 (1980), enfd mem 661 F 2d 940 (9th Cir 1981), for any expenses resulting from Respondent s failure to make these payments Any amounts that the Respondent must pay into the benefit trusts shall be de termined in the manner set forth in Merryweather Optical Co, 240 NLRB 1213 (1979) (c) Offer to the employees named below the employ ment status pay rates benefits and positions they en toyed in the Teamsters unit under Simplot s operation, without prejudice to seniority or other rights and privi leges previously enjoyed discharging if necessary em ployees hired from sources other than Simplot Foods Inc to make room for them, and make them whole, with interest for any losses of earnings they may have suf fered by reason of the discrimination against them Back pay shall be computed as in F W Woolworth Co 90 NLRB 289 (1950) plus interest as prescribed in Florida Steel, and New Horizons for the Retarded supra The em ployees are with the remedies for the 8 (a)(3) and (5) violations generally provided here I contemplate that the 67 seasonal discnmmatees shall be restored to the preference for recall position they would have occupied under Simplot s agreement with the Teamsters and that their backpay and future preference for recall shall be calculated on the assumption they would have been recalled and retained in the 1998 peak season and ensu mg repack periods according to their seniority 41 The make whole remedy requires Respondent to remit any pay ments it owes the benefit trusts and to reimburse unit employees for any expenses they may have incurred from Respondents failure to make timely trust payments on their behalves 42 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 Aispuro Rosa Alaniz, Maria Beauchene Kenneth Bermudez, Maria L Bianchi, Roy Bosquez, Maria I Brewer Martin Allen Burmood, Darlene Ellen Cantu Concepcion Carter, Glenn Cerrillo Virginia M Longoria Anjelita M Luther Daphanie Luther David Lynn Luther, Judith Elaine Manley, Marci Mia Marr, Phillip F Martinez Antonia Martinez Pablo Villareal Mendez Daniel Moreno Arthur D Montzky, Polly H D & K FROZEN FOODS Chinco, Cindy Cisneros Antonia Cisneros, Mary Lou Cooke, Janet Lee Degollado Juanita Deleon Trina Rae Elliott Timothy Lynn Everson, Clara Alice Fowler, Harold Fuentes, Susan Z Gallegos, Margarita Garza, Adam D Garza Delia Gimlin, Elvia Gonzales, Daniel Gonzales, Romie Goulding, Kelly Guerrero, Alicia M Guffey, Gisela B Guffey, Julia Hickle, James Larson, Shirley M Lee, Donald Ray Mosqueda, Randall Ortiz, Candelario Partida Lydia Pena Alice Ramos, Sylvia Elena Rand Diane Rocha, Sally Rodriguez, Herminia V Rodriguez, Olga Saenz, Irma Saenz, Rudy G Salinas Eustolio Jr Sanchez, Apolonio H Saunders, Katherine Segovia, Mary Smith, Nona L Solis, Robert Martin Thiel, Steve Veliz, David Waddle, Mark A Weber, Gayle C Wilcowski Janeil Williams, Sherry Kathlene (d) Restore Gary Burmood and Robert Burmood to the positions in the Operators unit and rates of pay they enjoyed under Simplot Foods Inc, without prejudice to their seniority and other rights and privileges discharg ing, if necessary, employees hired from sources other than Simplot Foods, Inc s Operators unit in order to make room for them and make them whole for any losses of earnings they may have suffered by reason of the discrimination against them Backpay and interest are to be computed as set forth above in paragraphs 2(b) and (c) (e) 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 nee essary to analyze the amount of backpay due under the terms of this Order (f) Post at its plant in Grandview Washington copies of the attached notice marked Appendix 2 43 Copies of the notice on forms provided by the Regional Direc tor for Region 19 after being signed by the Respondent s authorized representative, shall be posted by the Re spondent 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 Respond ent to ensure that the notices are not altered, defaced, or covered by any other material (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 49 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX 1 RULING ON MOTIONS ASSOCIATED WITH RESPONDENT'S UNTIMELY BRIEF 877 Under the deadline I announced on the record at this trial s conclusion, briefs were due on January 22 1988, a deadline complied with by the General Counsel but not by Respondent Respondent first lodged with me a motion on January 22 in which he averred incorrectly that briefs were due on January 27 and requested a dead line extension to February 3 Counsel for the General Counsel opposed that motion, noting that January 22 was the due date recorded in the trial transcript Re spondent submitted on January 27 another motion to accept late submission enclosing its brief, dated January 26 The General Counsel subsequently filed a motion to strike Respondents brief to which Respondent filed a brief in opposition, averring that its original belief that briefs were due on January 27 was based on Respond ent s counsel s mistaken notation at the time I entered the deadline order I hereby grant Respondents motion to accept late submission and deny the General Counsel s motion to strike The General Counsel correctly notes that Respond ent s motion for an extension was untimely filed inas much as Section 102 42 of the Board s Rules and Regula tions requires such a motion to be filed no later than 3 days prior to the deadline for submission of briefs In nevertheless electing to receive and give consideration to Respondents brief I note first that it is apparently within my discretion to do so because Rule 102 121 pro vides that the Rules and Regulations shall be liberally construed to effectuate the purposes and provisions of the Act See also Otis Elevator Co 255 NLRB 235 240-241 fn 1 (1981) Avatar Inc 262 NLRB 1058 (1982) In exercising that discretion in Respondent s favor in this instance, I rely on the following consider ations (1) Even though Respondent was in possession of the General Counsels brief for roughly 5 days before it mailed its own brief the General Counsels positions on the facts and the legal issues were well known by the time trial concluded Accordingly the General Counsel has not established it has been specifically prejudiced by Respondents opportunity to view the prosecution brief before submitting the defense brief 1 (2) Respondent s late submission arises in unique circumstances involving a claim of simple mistake of fact as to the deadline date (3) the General Counsel does not represent that Re spondent s counsel has abused deadlines in the past and (4) in a lengthy case such as this one, briefs can be a sig nificant aid to the trial judge in locating relevant testimo ny and exhibits, and in narrowing the range of questions which might otherwise appear from a study of the record to be in at least nominal dispute accordingly I ' Having studied Respondents brief I find nothing in it which mdi cates that it was geared to reply to contentions made in the General Counsels brief as opposed to contentions which the General Counsel had previously disclosed in pleadings or during the trial Had I detected such indications I might have afforded the General Counsel a compara ble reply opportunity which the General Counsel has not sought in any case 878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD am reluctant to review and decide this case without the the only way to determine whether Respondents brief potential benefit of a helpful brief from Respondent, and might help me in deciding this case is to study it