Early California Industries Inc.

National Labor Relations Board - Board Decisions

Mar 1, 1972

195 N.L.R.B. 671 (N.L.R.B. 1972)

COMET RICE MILLS 671
Comet Rice Mills Division Early California Industries
Inc. and United Rice Workers of Stuttgart. Case
26-CA-3911
March 1, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On July 13, 1971, Trial Examiner Paul E. Weil is-
sued his Decision in the above-entitled proceeding, at-
tached hereto, finding that Respondent had not en-
gaged in certain of the unfair labor practices alleged in
the complaint, but that, while it had in fact engaged in
one single violation of the Act, as alleged, "no useful
purpose would be served" by issuing a remedial order.
The Trial Examiner therefore recommended that the
complaint be dismissed in toto. Thereafter, General
Counsel filed exceptions to the Decision and a support-
ing brief, and Respondent filed cross-exceptions and a
brief in support of the Trial Examiner's Decision and
in opposition to General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed.' The rulings are, hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner as herein corrected' and modified.
1. The Trial Examiner found, and we agree, that
although Respondent's supervisor made a number of
antiunion remarks to employee Hampton in an effort to
discourage his prounion efforts, only one of these re-
marks clearly supported the alleged violation of Section
' Respondent excepts to the Trial Examiner's denial of its motion to
strike the testimony of Stanley Hampton. Respondent's motion was
grounded on General Counsel's refusal to produce Hampton's pretrial state-
ment pursuant to Section 102.118 of the Board's Rules and Regulations.
However, as the Respondent first requested Hampton's pretrial statement
after the witness had been examined, cross-examined, and excused, General
Counsel was not required to honor the request. See Canton Cotton Mills,
148 NLRB 464, 465, fn. 1. We therefore find no merit in Respondent's
exception.
? We hereby correct the inadvertent error of the Trial Examiner in sec-
tion II of his Decision in describing July 27 as the date on which Charles
Savage attempted to distribute membership cards in the plant. As elsewhere
set out by the Trial Examiner, the correct date is January 27 As requested
by General Counsel, we also correct the Trial Examiner's erroneous inter-
pretation of the antiunion remarks made by Supervisor Woodruff to em-
ployee Hampton on or about January 11, as including an admonition that
Hampton should "not cause a disturbance " A reading of Hampton's cred-
ited testimony on the subject shows that, on the occasion in question,
Hampton was told by Woodruff to give up his union efforts and that he
refrained from replying to Woodruff so as not to cause a disturbance.
195 NLRB No. 117
8(a)(1) of the Act. The remark in question was made
by Supervisor George Woodruff on or about January
27, 1971, 2 days before Respondent effected a reduction
in force which resulted in Hampton's layoff, and con-
tained a clear threat that Hampton had "better stop"
his union activities "right now" if he wished to keep his
job.3
2. We do not, however, agree with the Trial Exam-
iner that this is a case in which, because only one of the
severally alleged violations of the Act was found to be
proved, we should appropriately withold the issuance
of a remedial order. We regard a threat of job loss to
be a serious deterrent to organizational activity. This is
especially so where, as here, it is made in the context
of other expressions of hostility to unionization, albeit
permissible, and is addressed to the single employee
identified by management as an active solicitor of other
employees on behalf of the Union.4 We find, accord-
ingly, that it will effectuate the purposes of the Act to
issue our usual remedial order for the violation found.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of the Act.
2. United Rice Workers of Stuttgart is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. By threatening an employee with the loss of his job
if he did not refrain from engaging in organizational
activity on behalf of the Union, Respondent has en-
gaged in unfair labor practices defined in Section
8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Comet Rice
Mills Division Early California Industries Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with loss of their jobs if
they do not refrain from engaging in organizational
activity on behalf of the Union.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed under Section 7 of the Act.
' Woodruff's full statement to Hampton about the Union on the occasion
in question was as follows: "Nigger you might as well forget about it because
nobody is interested in it. If you have any plans for staying here in Comet
Rice Mill, you had better stop right now."
We do not adopt the Trial Examiner's suggestion that the coercive
impact of the unlawful act, or the need for a remedy therefor, turns in any
way on the presence or absence of evidence that there was a "substantial
employee interest in organization" or that the unlawful conduct in fact had
its intended effect.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which in our
judgment appears necessary and appropriate to effectu-
ate the purposes and policies of the Act.
(a) Post at its plant in Stuttgart, Arkansas, copies of
the attached notice marked "Appendix."5 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 26, after being duly signed by the Re-
spondent's authorized representative, shall be posted
by it immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall 'be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order,
what steps the Respondent taken to comply herewith.
IT IS FURTHER ORDERED that all allegations of the
complaint which charge Respondent with unfair labor
practices ' other than those found herein be, and the
same hereby are, dismissed.
MEMBER JENKINS, dissenting in part:
Like my colleagues, I would remedy the violation of
Section 8(a)(1) of the Act which the Trial Examiner
found.'
Unlike my colleagues, I would find that on other
occasions the Respondent 's supervisors , Belieu and
Woodwuff, expressed hostility to unionization which
exceeded permissible bounds . On separate occasions,
Belieu told Hampton "to forget about it, that [he]
didn't have a chance" and Woodruff told Hampton
that he "might as well give it up because no one was
interested." Each statement is coercive in character in
that each is an attempt to impress upon Hampton the
futility of his continuing to exercise the rights guaran-
teed to him by Section 7 of the Act. Moreover, the two
statements, together with Woodruff s subsequent state-
ment, which all agree is violative of the Act, evidence
' In the event that 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 NATIONAL LABOR RELATIONS BOARD" shall be changed
to read "POSTED PURSUANTTO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD."
' See fn. 3 of the majority opinion and the discussion relative thereto.
And see, e g, N.L.R.B. v Kopman-Woracek Shoe Mfg. Co., 158 F.2d 103,
105 (C.A. 8), enfg. as modified 66 NLRB 789.
It is not necessary, for proof of a violation of Section 8(a)(1) of the Act,
to show by direct evidence that any particular persons were in fact success-
fully restrained or coerced , it is enough if it is shown that the employer's
conduct has a natural tendency to do so. Henry L Seigel Co, Inc., 172
NLRB No. 88 (TXD, sec III, C, 5), enfd. as modified 417 F.2d 1206 (C.A
6), NL.R.B. v Crown Can Co., 138 F.2d 263, 267 (C.A. 8), enfg 42 NLRB
1160, cert. denied 321 U.S 769.
To ignore the small scale and individual violations of the Act would be
to encourage an increase in the number and severity of the violations of the
Act which we are charged to enforce. St Regis Paper Company, 192 NLRB
No. 87.
a general pattern or course of conduct which has a
natural tendency to interfere with, restrain, or coerce
Hampton in the exercise of his organization rights.
Accordingly, I would find that each statement, whether
considered alone, or in light of the totality of the Re-
spondent's conduct, is violative of Section 8(a)(1) of the
Act.7
I find, and apparently my colleagues do not find
otherwise, evidence in the record from which it may be
reasonably inferred that prior to Hampton's layoff, the
Respondent was aware of his union affiliation and ac-
tivity. As secretary of the Union, Hampton was con-
spicuous in his organizational efforts . He testified, with-
out denial, that 2 days before his layoff Supervisors
Woodruff and Belieu saw him take authorization cards
from Union President Savage. The meeting of the two
union officers was reported to Plant Manager Smith,
who then, if not before, became aware of the Union's
organizational campaign . Hampton further credibly
testified that, on the same day that he received the
authorization cards, Supervisor Woodruff warned him
to discontinue his organizational efforts unless he
wanted to lose his job. Based upon the foregoing, I see
no difficulty in finding that, prior to the time the Re-
spondent placed Hampton ' on layoff status, it had
knowledge of his union affiliation and activity, and
grave difficulty in finding that it did not.'
Contrary to my colleagues, I further find evidence in
the record from which it may be reasonably inferred
that Hampton's discharge was, at least in part, dis-
criminatorily motivated, so as to be violative of the
Act.' During an earlier layoff which occurred on Janu-
ary 11, 1971, Hampton was retained in preference to
more senior employees because of his proven ability
and versatility. There is no evidence that Hampton was
an active union adherent at the time'of the earlier layoff
or that, if he were, the Respondent knew this to be so.
Two days after Hampton was ' observed receiving au-
thorization cards from the president of the Union, the
Respondent determined that he was no longer needed
as an employee. He was told by his supervisor that he
was being laid off "due to pressure from the front
office." A more senior employee, Lee, was then as-
signed to Hampton's forklift job. The Respondent ex-
' RepublicAviation Corporation, 51 NLRB 1186, 1188, 1189, enfd. 142
F.2d 193 (C A 2), affd. 324 U.S. 793. See also N.L.R.B. v. Smith, 209 F.2d
905, 908 (C A. 9), enfg 101 NLRB 1172; and N.L.R.B. v. Kropp Forge Co.,
178 F.2d 822, 828 (C A 7), enfg. 68 NLRB 617, cert. denied 340 U S. 810.
a Shawnee Milling Co., 82 NLRB 1266, 1269, reversed on other grounds
184 F.2d 57 (C.A 10); TexasAluminum Co., Inc.'v N L.R.B., 435 F.2d 917,
919 (CA. 5), enfg .181 NLRB 73.
' Since the Respondent 's motive is an' intangible factor, direct proof
relative to it is generally impossible, and as a rule the motivation must be
inferred from the surrounding circumstances N.L.R.B. v Link-Belt Co.,
311 U.S. 584, 602, enfg. 12 NLRB 854, 110 F.2d 506 (C.A. 7), N.L.R.B.
v. Melrose Processing Co., 351 F.2d 693, 698 (C.A 8), enfg in part 146
NLRB 979, Shuttuck Denn Mining Corp. v. N.L.R.B., 362 F.2d 466, 470
(C.A. 9), enfg. 151 NLRB 1329
COMET RICE MILLS 673
plained its decision to lay off Hampton rather than Lee
as being impelled in part by its plans to activate ' a
second shift in the floor mill, a job in which Lee had
more experience than Hampton. However, the second
shift was never activated and Lee remained in the fork-
lift job as Hampton's replacement at least until March
19, 1971.
Under these circumstances, I would find that Hamp-
ton's layoff was inconsistent with the Respondent's
previous practice, against its apparent interest, and in-
consistent with its subsequent actions." Together with
the Respondent's implausible explanation for its action,
I note the leadership or prominence of Hampton in the
Union, the conspicuousness of his organizational
efforts, the warnings he received prior to his layoff, the
timing of his layoff in relation to the Respondent's
discovery of Hampton's union activity, the otherwise
satisfactory performance of Hampton, the absence of
layoff of other employees in Hampton's work cate-
gory," and the Respondent's continued need for such
employees.12
Considering the foregoing factors, there is no doubt
in my mind that Hampton's layoff was inspired by a
discriminatory motive for a purpose proscribed by the
Act and that the "economic" basis for the layoff was
utilized merely as a pretext to conceal the purpose of
the Respondent to eliminate Hampton, an active union
adherent. But even if it were assumed , arguendo, that
the Respondent had a valid "economic" basis for re-
ducing its workforce, I would, nevertheless, find, in
view of the foregoing indicia of discriminatory intent,
that the Respondent's selection of Hampton for layoff
was, at least in part, based upon his union affiliation
and activity." I, , therefore, would find that by placing
Hampton on layoff status the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act.
Based upon the foregoing , I conclude that the Re-
spondent violated Section S(a)(1) and (3) of the Act,
Accordingly, I would amend the Order set forth in the
majority opinion to require' the Respondent to cease
and desist from discouraging union activities of its em-
ployees by warning that it would be futile to engage in
such activities and by laying off Hampton because he
engaged in protected union activities. I would further
require the Respondent to offer Hampton full and im-
30 N.L.R.B. v Malone Knitting Company, 358 F.2d 880, 883 (C A 1),
enfg. 152 NLRB 643.
" The' possibility that some prior layoffs may have been economically
justified or that future layoffs may be anticipated is no defense for the
selection of Hampton for layoff on the basis of his union adherence or
affiliation See, e g ., F. R Mallory & Co. v. N.LR.B., 422 F.2d 757, 760
(C.A 7), enfg. in part 175 NLRB 308; and N.L . R B. v. Deena Products Co.,
195 F .2d 330 , 334-335 (C A. 7), enfg . 93 NLRB 549 , cert denied 344 U.S
827.
11 See Tulsa-Whisenhunt Funeral Homes, Inc ., 195 NLRB No 20 (TXD,
sec. III, D).
13 Ibid, at p . 16, and see cases cited in Mead & Mount Construction Co.
v. N.L.R .B., 411 F.2d 1154 , 1154-57 (C.A. 8).
mediate reinstatement to his former position or a posi-
tion substantially equivalent thereto, without prejudice
to his seniority or other rights and privileges. More-
over , I would require the Respondent to make Hamp-
ton whole for any loss of wages he may have suffered
from January 29, 1971, the date of his layoff, to the date
of a valid offer of reinstatement by the Respondent.
Finally, I would require the Respondent to refrain from
all such conduct in the future and to post appropriate
notices.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees:
WE WILL NOT threaten employees with loss of
their jobs if they do not refrain from engaging in
organizational activity on behalf of the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
COMET RICE MILLS
DIVISION EARLY
CALIFORNIA INDUSTRIES
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 746 Federal Office Building, 167 North Main
Street, Memphis , Tennessee 38103 , Telephone 901-
534-3161.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner: On February 4, 1971, the
United Rice Workers of Stuttgart, hereinafter called the
Union, filed a charge with the Regional Director for Region
26 of the National Labor Relations Board , hereinafter called
the Board, alleging that Comet Rice Mills Division Early
California Industries Inc., hereinafter called Respondent, vi-
olated Section 8(a)(1) of the Act by various acts and conduct.
Thereafter on February 22 the Union amended its charge,
alleging in addition a violation of Section 8(a)(3) in the dis-
charge of an employee , Hampton . On March 17, 1971, the
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director for Region 26 issued a complaint and no-
tice'of hearing alleging violations of Section 8(a)(1) and (3)
of the Act by Respondent by threatening employees with
discharge, warning employees that their union activities were
futile and discharging Stanley Hampton because he joined or
assisted the Union or engaged in union or concerted activi-
ties. By its duly filed answer Respondent admitted various
jurisdictional facts, denied that the Union was a labor organi-
zation and denied the commission of any unfair labor prac-
tices. The matter came on for hearing before ine on June 1,
1971, at Stuttgart, Arkansas. All parties were present and
represented at the hearing. All had an opportunity to call
witnesses, examine and cross-examine them, to adduce rele-
vant and material evidence, to argue on the record and to file
briefs. Briefs were received from the General Counsel and
Respondent.
Upon the entire record in this matter and in consideration
of the briefs I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is a corporation engaged at Stuttgart , Arkan-
sas, in processing , packaging and distribution of rice and
related products . Annually Respondent in the conduct of this
operation purchases and receives at its Stuttgart , Arkansas,
plant goods and materials valued in excess of $50,000 shipped
directly from points located outside the State of Arkansas and
annually sells and ships products valued in excess of $50,000
from its Stuttgart location directly to points located outside
the State of Arkansas . Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The General Counsel alleges that the Union is a labor
organization within the meaning of the Act. This the Re-
spondent denies. The record reveals that Charles A. Savage,
an employee of Respondent, after correspondence with the
Department of Labor and the Little Rock, Arkansas, resident
office of the National Labor Relations Board relating to the
formation of labor organizations, commenced a campaign to
organize his fellow employees at the Stuttgart plant. Among
employees he talked to were Stanley Hampton, the alleged
discriminatee herein. The purpose in organizing the Union
was to negotiate with Respondent concerning the wages,
hours and working conditions of the employees of Respond-
ent at the Stuttgart plant, but this purpose never came to
fruition . Savage became the president and remains as such,
Hampton the secretary. What other offices existed and who
held them is not disclosed by the record. Within a weep of
Savage's receipt from the Board's residential office of docu-
mentary matter relating to the formation of a labor organiza-
tion, Savage was discharged. He continued to attempt to
organize employees, meeting with them on several occasions
during work breaks and at a meeting at the local church. Only
three employees attended the meeting. On July 27 Savage,
having had union membership cards printed, attempted to
distribute them to employees in the plant through Hampton.
The record does not disclose the degree to which this attempt
was successful. Hampton was laid off on January 29,, 2 days
later, and shortly thereafter Savage was forbidden to enter
Respondent's premises. It does not appear that anything fur-
ther in the nature of union activity has taken place at Re-
spondent's plant.
Respondent contends that inasmuch as the Union never
filed necessary documents with the Department of Labor it
never qualified as a labor organization.
Section 2(5) of the Act defines a labor organization as "any
organization of any kind , or any agency or employee repre-
sentation committee or plan , in which employees participate
and which exists for the purpose, in whole or in part, of
dealing with employers concerning grievances , labor dis-
putes, wages, rates of pay, hours of employment, or condi-
tions of work ." Clearly Mr. Savage 's attempted organization
envisaged participation by employees (both Mr. Savage and
Mr. Hampton were employees) and existed in whole for the
statutory purposes although they never came to fruition. I
find that the Union is a labor organization within the meaning
of Section 2(5) of the Act. The "requirements" to which
Respondent refers may become relevant when and if the
Union becomes the collective-bargaining agent of Respond-
ent's employees but at the present stage of its organization
they are not essential to its existence.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
After obtaining information on the formation of labor or-
ganizations as set forth above Charles Savage was discharged
on either December 18 or December 21, 1970. He had
theretofore been talking with various employees about form-
ing a labor organization. Either on the morning or the after-
noon of December 21 he returned to the plant during the
break, one of which occurs at 10 a.m. and the other at 3 p.m.,
and went to the breakroom where some 15 or 20 employees
of the packing and shipping department were present playing
cards and drinking. Also present was a supervisor, Joseph
Belieu, who was playing cards with one of the employees.
Savage told the assembled employees that he had been laid off
but that that would not effect the organizing which he had
undertaken and informed and talked with' them about the
need for a union. The following Wednesday, which was pay-
day, Savage returned to the plant to collect his paycheck. The
checks had not arrived and he again , went to the breakroom
at 3 p.m. where the same employees and Belieu were present.
He again addressed the employees, urging them to join the
Union and announced that there would be a union meeting
on December 26 at the Bethel AME Church in Stuttgart.
Belieu denied having been present on the first occasion but
admitted that he was present on the second occasion and he
admitted also hearing Savage talk about union organization
and reporting that fact to his superior thereafter.
The meeting was held at the church on December 26.
Three employees were present.
On January 11 Stanley Hampton, who had been named as
the secretary of the Union, learned that his name was on the
layoff list for that day. He went to his foreman and reminded
him that when he had hired him he had told him that the job
would be permanent. His foreman told' him that he was re-
quired' to cut down his force but that he had made, arrange-
ments with another foreman for Hampton to transfer to the
packing department and advised Hampton to go and talk to
the other foreman which Hampton did. He was then trans-
ferred to the packing department and went to work as a
forklift driver.
Sometime thereafter, according to Hampton, George
Woodruff, a minor supervisor in the shipping department,
accosted him and advised him not to cause a disturbance and
that none of the employees were interested in the Union. Also
during this period of time Belieu advised Hampton to forget
the Union because no one was interested in it.
In the latter part of January Charles Savage had cards
printed that stated "This is to certify that gives his
support as a member in the labor union United Rice Workers
of Stuttgart, Arkansas 72160" with provisions for date and
signatures of the president and secretary. On January 27 he
COMET RICE MILLS 675
went to the plant and went into the breakroom at 3 p.m.
looking for Hampton. Hampton was at work at the time, and
Savage set out to look for him. As he saw Hampton on his
forklift he noted Woodruff behind him but did not speak to
him. He handed the cards to Hampton, Hampton looked at
them and put them in his jacket pocket and Savage left the
plant. This incident, as well as the other incidents of Savage's
entry into the plant after his layoff, was reported to W. J.
Smith,' the plant manager . Smith issued orders that if Mr.
Savage had anything to discuss he was to go to the office and
discuss it with Smith; he was not to go into the plant. The
same day Woodruff again addressed himself to Hampton and
told him again to forget the Union and that if he had any
plans for staying with the Company he had better stop now.
Woodruff generally denied ever giving any kind of a warning
to employees against joining the Union or participating in
union activity but did not specifically deny the statements
attributed to him. Hampton testified that when he was
handed the cards by Savage, Woodruff and Belieu were
nearby and saw him take the cards. This was not denied by
Woodruff or Belieu . On January 29 Foreman Rittman called
Hampton and told him that he was laid off due to pressure
from the front office.
Discussion and Conclusions
General Counsel contends that the statements by Woodruff
and Belieu to 'Hampton advising him to forget the union
organization because no employees were interested are viola-
tive. I do not agree there is anything coercive in the state-
ments. They were not couched in terms of threat or warning,
and I see no coercive impact in them. With regard to the
statement by Woodruff, however, advising Hampton to forget
it and coupling his advice with the statement that is Hampton
had plans for staying with the Company he had better stop
organizing now, as to which I credit Hampton, I believe this
is clearly coercive and violative of Section,8(a)(1) of the Act.
With regard to Hampton's layoff Respondent contends
that he was laid off due to economic conditions and points to
the fact that he was retained beyond the time when his senior-
ity would have'warranted, at the time he was transferred to
the forklift job, and that thereafter when he was laid off on
January 29 his place was taken by another employee with
several years more seniority than he and with a greater
capacity to run the flour mill, a necessary occupation in the
plant. It appeared that on the day that Hampton and two
other employees were scheduled to be laid off orders were
received pursuant to which the flour mill was put into opera-
tion (it had not operated for a month at this time) and it has
continued in operation on a single-shift basis until the time
of the hearing. Because three employees were to have been
laid off and it takes two to run the operation, two employees
were transfered to the flour mill and a third employee, who
is a capable flour mill operator, was transfered into Hamp-
ton's forklift job.
Respondent produced evidence that is uncontradicted that
the selection of employees for layoff is made first on the basis
of the ability of the employee to do the job and secondly,
among employees of equal ability, on seniority. There is no
question that Hampton had only 3 months' seniority at the
time of his layoff but was a particularly capable employee. It
is for this reason that he was put on the forklift job when he
was first to have been laid off after having worked in the rice
mill. Respondent ultimately laid off almost half of its work
force and is presently operating with a force reduced to about
60 percent of its normal quota of employees. The employee
that took Hampton's place was at least comparable to him in
the operation of the flour mill and had several years' seniority
over Hampton. There is no evidence that the antiunion atti-
tude displayed by Woodruff, a third line supervisor, is a
reflection of similar feelings on behalf of Smith, the plant
manager , or of Respondent in other regards. This is not a
situation where the layoff is demonstrated to have been per-
manent because Hampton was not recalled. No employees
have been recalled and Respondent is by no means sure that
additional layoffs will not be necessitated. On the record
before me I cannot find that' the occasion for Hampton's
layoff was his union activity rather than the economic prob-
lems besetting Respondent. Accordingly I shall recommend
the dismissal of the complaint insofar as the layoff is alleged
to be violative.
THE REMEDY
The isolated incident of a violation which I have found
above does not appear to me to warrant a-formal finding of
illegal conduct or the issuance of the regular Board Order
with the posting of notices and possible further enforcement
proceedings. There is no indication on the record that any
attitudes of any employees were affected in any regard by the
threat of Woodruff to Hampton or in fact that any substantial
interest in organizing by the employees ever existed. I think
no useful purpose would be served by a formal cease-and-
desist order in this case and shall therefore recommend dis-
missal of the complaint.
RECOMMENDED ORDER
For the foregoing reasons and in consideration of the entire
record I recommend dismissal of the complaint.