Rice Growers Association of California

National Labor Relations Board - Board Decisions

Jun 10, 1976

224 N.L.R.B. 663 (N.L.R.B. 1976)

RICE GROWERS ASSOC OF CALIF
Rice Growers Association of California and Interna-
tional Longshoremen 's and Warehousemen 's Union,
Local 17 Case 20-CA-10440
June 10, 1976
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND WALTHER
On March 9, 1976, Administrative Law Judge
Roger B Holmes issued the attached Decision in this
proceeding Thereafter, the Respondent filed excep-
tions and a supporting brief The General Counsel
filed a motion to strike the exceptions I and a brief
supporting the Administrative Law Judge's Decision
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Rice Growers Associa-
tion of California, West Sacramento, California, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order
i The General Counsel has moved to strike Respondent's exceptions for
failure to comply with Sec 102 46(b) of the Board s Rules and Regulations,
Series 8, as amended, because, inter aha, they fail to specifically set forth the
questions of procedure, fact, law, or policy to which exceptions are taken
and fail to notify the Board or the General Counsel as to which statements
or findings are not supported by the record Sec 102 46(b) of the Board s
Rules states that any exception which does not comply with the require-
ments of that section "may be disregarded " Although Respondent's excep-
tions do not fully comply with the requirements of the rule, we have decided
not to disregard them as they sufficiently designate the portions of the Deci-
sion Respondent claimed were erroneous Swain Manufacturing Company
201 NLRB 681 (1973) In our opinion, however, Respondent's exceptions
are without merit
DECISION
STATEMENT OF THE CASE
ROGER B HOLMES, Administrative Law Judge The
charge in this case was filed on July 21, 1975, by Interna-
tional Longshoremen 's and Warehousemen 's Union, Local
663
17, herein called the Union The complaint was issued on
October 6, 1975, on behalf of the General Counsel of the
National Labor Relations Board, herein called the Board,
by the Regional Director for Region 20 An amendment to
the complaint was issued on December 4, 1975 The com-
plaint, as amended, alleges that Rice Growers Association
of California, herein called the Respondent, has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the National Labor Relations Act, herein called
the Act Respondent filed answers to the complaint and to
the amendment to the complaint and denied the commis-
sion of the alleged unfair labor practices
The hearing was held before me on January 22 through
26, 1976, at Sacramento, California Briefs were filed by
the General Counsel and by the Respondent and have
been duly considered
Upon the entire record and based upon my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent is, and at all times material herein has been,
a California corporation with its principal office and place
of business located in West Sacramento, California, where
it is engaged in the business of rice milling and marketing
Respondent, during the past calendar year preceding the
issuance of the complaint, in the course and conduct of its
business operations, received gross revenues in excess of
$500,000, and during the same period of time purchased
and received goods and materials valued in excess of
$50,000 directly from sources located outside the State of
California In addition, during the same period, Respon-
dent sold and shipped goods and materials valued in excess
of $50,000 directly to purchasers located outside the State
of California
Upon these admitted facts, I find that Respondent has
been at all times material herein an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
II THE LABOR ORGANIZATION INVOLVED
It is admitted that the Union is now, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Issues
The principal issues raised by the pleadings are whether
Respondent violated Section 8(a)(1) of the Act by threaten-
ing its employees with termination if they at any time dis-
cussed the Union on Respondent's premises, promising its
employees a pay raise to induce them to reject the Union
as their collective-bargaining agent, interrogating its em-
ployees regarding their union activity and the union activi-
ties and sympathies of the other employees, threatening
employees that Respondent would close down its plant if
224 NLRB No 102
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they designated or selected the Union as their collective-
bargaining representative, threatening employees that they
would be laid off or terminated if they designated or select-
ed the Union as their collective-bargaining representative,
threatening employees that Respondent would install a
timeclock and institute other more onerous working condi-
tions if they designated or selected the Union as their
collective-bargaining representative, and threatening
employees that Respondent would subcontract out their
work if they designated or selected the Union as their col-
lective-bargaming representative
Also in issue is whether Respondent reduced on or about
June 20, 1975, its employees' working hours by eliminating
their overtime work because of their membership in or sup-
port for the Union in violation of Section 8(a)(1) and (3) of
the Act
General Counsel further contends that Respondent vio-
lated Section 8(a)(1) and (3) of the Act by laying off on
July 14, 1975, four employees-Paul Reynolds, Dan Chres-
tensen, Gary Domenighim, and Dennis Farris-because of
their union activities and then terminating the same four
employees on or about July 29, 1975, because of their
union activities The General Counsel further contends
that Paul Reynolds and Dennis Farris, who had been re-
hired by Respondent at another facility on October 3,
1975, were terminated a second time on October 6, 1975,
because of their union activities
Respondent denied that it had engaged in any unfair
labor practices and affirmatively alleged as a defense that
the four individuals in question were terminated as em-
ployees of Respondent in connection with a reduction in
the work force and that the four employees so terminated
were chosen on the basis of their prior work performance
Respondent contends that neither the reduction in force
nor the selection of the four employees was motivated by,
or tended to discriminate against, the alleged concerted ac-
tivities of the four employees i
Finally, there is an issue as to whether Jim Nabors, fore-
man at Respondent's Williams, California, facility, is a su-
pervisor within the meaning of the Act The General Coun-
sel alleges that Nabors is a supervisor and the Respondent
contends that he is not
i At the hearing Respondent pointed to the fact that the charge did not
specify the allegations of violations of Sec 8(a)(1) of the Act Counsel for
the General Counsel responded that the charge did contain a general allega-
tion that Respondent had violated Sec 8(a)(1) in addition to the specific
allegation that Respondent had violated Sec 8(a)(3) by discharging the four
named employees In Texas Industries Inc, 139 NLRB 365, 366-367 (1962),
the Board held
It is well established that a charge is not a pleading , but merely serves
to initiate a Board investigation to determine whether a complaint shall
be issued Subject only to the requirement that there must be some
relationship between the allegations in the complaint and the language
of the charge, it is the function of the complaint, and not the charge, to
serve notice upon a respondent of the particular conduct alleged to be
violative of the Act Where, as here , the charge alleges , in general lan-
guage , that Section 8(a)(1), as well as 8(a)(3), have been violated, with-
out particularizing the conduct alleged to be violative of Section
8(a)(1), the charge is sufficient to support the specific allegations in the
complaint of Section 8(a)(1) conduct during the 6-month period pre-
ceding the service of the original charge , and subsequent thereto We
therefore find that the charge was adequate to support the entire com-
plaint
B Background
Respondent is a cooperative composed of approximately
2,000 members Respondent has four rice mills in Califor-
nia It also operates six facilities at the present time in Cali-
fornia for the drying and storage of rice These drying and
storage facilities are located at West Sacramento , Merritt
Station, Woodland, Biggs, Westside, and Williams
The Westside facility is located near Willows, California,
and is made up of two separate warehouses which are
about 100 yards from each other One is known as the
Westside warehouse and the other as the Riz warehouse
However, they are collectively referred to by the Company,
the employees, and therefore herein-simply as the West-
side facility Riz is the older of the two warehouses and was
purchased by the Respondent in June 1973 Prior to that
time Respondent had operated just the one Westside ware-
house at that particular location Employees work inter-
changeably between the Riz and Westside warehouses The
Westside facility is about 100 miles from Respondent's
principal office in West Sacramento, California The Wil-
liams, California, facility is about 14 miles south of the
Westside facility and about that much closer to the West
Sacramento office The Westside facility and the Williams
facility are the only two of Respondent's locations which
are involved in the alleged unfair labor practices in this
proceeding
The employees at Respondent's West Sacramento and
Merritt Station drying and storage facilities have been rep-
resented by the Charging Party for a number of years The
collective-bargaining relationship with the Charging Party
at the West Sacramento facility goes back to sometime
during the 1930's and at Merritt Station at least to 1954
Prior to the filing of the charge which gave rise to the pres-
ent proceeding, the Charging Party had not previously filed
unfair labor practice charges against the Respondent The
employees at the Woodland and Biggs facilities are repre-
sented by the Teamsters Union Thus, at the time of the
NLRB-conducted election at the Westside facility on July
18, 1975, the Westside facility was the only drying and
storage facility of Respondent whose employees were not
represented by a union The Williams warehouse was still
under construction at that time and did not begin opera-
tions until the fall of 1975 At least up until the time of the
hearing in this proceeding on January 22-26, 1976, the
employees at the Williams facility have remained unrepre-
sented
Pursuant to a representation petition filed with the
Board, an election was conducted on July 18, 1975, among
the employees at the Westside facility and the Union won
by a vote of 12 to 0 The Union was thereafter certified and
the parties have a collective-bargaining agreement covering
the employees at the Westside facility 2
2 The layoffs of the four employees on July 14, 1975, took place prior to
the Board election and the subsequent certification of the Union Therefore,
the layoffs also occurred prior to the time that the parties entered into a
collective -bargaining agreement covering the employees at the Westside fa-
cility This would explain why a Collyer issue has not been raised by the
parties in this litigation Collyer Insulated Wire, 192 NLRB 837 ( 1971) In
any event, at this stage of the proceedings it would not be appropriate
initially to raise a Collyer issue MacDonald Engineering Co, 202 NLRB 748
(1973)
RICE GROWERS ASSOC OF CALIF
C The Alleged Violations of Section 8(a)(1) of the Act
In early May 1975, Richard Padgett, a working foreman,
and three other employees at the Westside facility, Glen
Slye, Dick Carney, and Mike Inouye, spoke with a mill-
wright union job steward at the north end of Respondent's
Westside warehouse The union job steward was not from
the Charging Party but was a representative of a union to
which a millwright belonged The millwright, named Greg,
also was not an employee of the Respondent, but he was
working for a contractor on renovations at Respondent's
Westside facility The employees talked with the union
steward about the union, wages, and other matters, but the
union steward told them that he could not do much for
them The conversation did not last very long Westside
Superintendent Bob Roberts and still another millwright
named Leo came walking in The employees who were
talking with the millwright union job steward then left
Later that same day, as Padgett was walking out of the
sample room office, Superintendent Roberts told him "if
we're going to talk union on the plant we can get fired, we
do it off the job, at our own convenience, at our home " 3
Padgett testified that the conversation with the union job
steward occurred during working hours at the warehouse
and acknowledged at the hearing that he had not asked the
Company whether or not the employees could take time off
to talk with the union steward Glen Slye also acknowl-
edged that he had not asked the plant superintendent
whether they could take time out to talk to the two mill-
wrights Superintendent Roberts said that he did walk in
on a meeting with the millwright and some other person
but that nothing was said while he was there However,
Roberts said that he "kind of had a suspicion" as to what
the meeting was about Roberts thought that he told Pad-
gett that discussing the Union with the men was not al-
lowed during working hours while all the men were work-
ing During this period the employees at the Westside
facility had a morning break or rest period and an af-
ternoon break or rest period in addition to a half-hour
lunch period
Sometime later in May 1975, Padgett had a conversation
with James T Munson, manager of the agricultural depart-
ment for Respondent, in the superintendent's office at the
Westside facility Padgett said that Munson told him that
everyone was going to receive a raise by the first of June,
that it would not be a large raise like it was during the last
harvest, but it would be a big raise Padgett asked Munson
if he could tell everybody and Munson replied that by all
means he could do so
The last raise which Padgett had received was in Septem-
ber or October 1974 and it was a raise of $1 25 an hour
Munson testified that he did have a conversation with
3 Throughout this proceeding I have credited the testimony given by
Richard Padgett based particularly on his demeanor while he testified Pad-
gett is an impressive witness who testified candidly and in my opinion with-
out regard as to whether his answers would help or hurt either side in the
litigation At another point, he described himself as a "perfectionist and he
did give the impression of being a person who was striving to be as accurate
as possible in his testimony Where there are any conflicts with Padgett s
testimony I find that Padgett s testimony is the more reliable and I have
credited him fully
665
Padgett about wages, but Munson thought that it occurred
sometime during June or July 1975 Munson related that
he had gotten the employees a raise of $1 or something the
previous fall of 1974 and that he told Padgett that it was his
intention to take up again the matter of wages with man-
agement prior to the harvest in 1975 At the hearing, Mun-
son explained that his idea was to set up a review of the
employees' wages similar to management's review of the
administrative wages or salaries in the Association which
review occurred around October 15 or shortly before
Munson explained that since the employees were nonunion
he was going to try to set up the same type of wage review
which Munson said "hadn't been done before " 4
In the early part of June 1975, Padgett and employee
Slye had another conversation with the millwright named
Greg In that conversation, Padgett asked Greg if he knew
how to get in touch with the union which represented the
employees of Respondent at its West Sacramento facility
Greg said that he had a friend which he could contact
Obie Brandon, president of Local 17 of the Charging Party,
testified that in early June he received a telephone call
from a millwright named Greg who asked him if he would
be interested in organizing the workers at the Westside fa-
cility Brandon told him that he was interested and Greg
said that he would arrange for a meeting
Either on June 6 or June 13, 1975, Padgett had another
conversation with Munson in Superintendent Roberts' of-
fice with Roberts present Padgett stated that Munson told
him that Munson had heard that the employees were talk-
ing union Padgett replied that, if the employees were and
if he knew who they were, Padgett would fire them At the
hearing, Padgett explained that his purpose in making that
statement was so that it would end the union talk with
Munson Padgett said it did have that effect because Mun-
son went on to talk about something else Padgett said that
Munson told him that because of the cleanup which had
been necessitated at the Riz warehouse General Manager
Robert Freeland was coming down on him Munson said
that if he got fired then Bob Roberts would get fired, and if
Roberts got fired then the whole crew would get fired 5
Munson testified that he had heard that there had been
some talking about unions, and since he seemed to be the
last one to know anything about what was going on in the
union matter he asked Padgett what was going on Munson
said that Padgett told him if anyone started talking about
unions Padgett would fire them
A union organizational meeting was held on June 18,
1975, at Padgett's house Local Union President Brandon
and Secretary-Treasurer Lupe Martinez attended, along
Employee Dennis Farris related a conversation which he had overheard
on December 24, 1974, at the Company's Christmas party According to
Farris, Glen Slye and Manager Munson were talking about unions, and Slye
told Munson that he had been in a union before in the Bay Area Munson
responded that from time to time the Company gave raises There followed
general discussion about a union which Farris did not specify This incident
was not alleged in the complaint and is beyond the 10(b) period I find
nothing unlawful or coercive in the Christmas party conversation
5 In agreement with the position taken in Respondent's brief, I believe it
is clear that these latter remarks about General Manager Freeland coming
down on Munson and the possibility of discharging the whole crew were
related to the State of California embargo placed on certain rice at the Riz
warehouse and the need to clean up that warehouse rather than union
activities I find nothing unlawful in those comments
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with 11 of Respondent's employees At the meeting, the
employees discussed with the union representatives various
topics, including the matters of wages which the employees
might receive, the union hiring hall arrangements, seniority
and health and welfare provisions All 11 employees at-
tending the meeting signed union cards at that time
The following day, the Union's headquarters in San
Francisco sent a mailgram to the Respondent with a copy
to Brandon at Local 17 The mailgram stated
Please be advised we represent a majority of your
warehouse employees for purposes of collective bar-
gaining[ ] May we hear from you at your earliest con-
vience [sic] regarding negotiations on wages, hours
and working conditions
There is a dispute as to when the mailgram was received
by Respondent This will be discussed later herein concern-
ing the demal of overtime work at Westside from on and
after June 20, 1975
Padgett has another conversation with Munson some-
time between June 20 and July 2, 1975 The conversation
took place at work Padgett said that Munson told him to
make sure to look at what the employees were getting
into-joining the Union-to watch out and to ask a lot of
questions because the employees could get burned if they
were not careful Munson told him that the Merritt Siding
facility had gone union and that Munson punches the em-
ployees in and out whenever he wants to, and "just shoves
them down the road " Padgett said that Munson told him it
was to Munson's benefit, that Munson was glad that they
were going union, that there would be no more favoritism
with the employees, that he would just punch them in and
out whenever he pleased and shut down the plant Munson
said that he had no objection to the Union coming in 6
At the hearing Munson explained why he felt it would be
better for him personally to have a union Munson testi-
fied
Well, when you have a man working for you ev-
eryplace-I mean-in an administrative capacity,
we'll say, you are constantly involved with them per-
sonally One of the fellows' wife is going to have a
baby or something So you tend to keep-in the case
of working men, you tend to keep some of them work-
ing and this sort of thing You worry about them, what
they do, this and that, and so forth As far as I'm
concerned as a manager, the union's a better deal It's
theirjob to look after them
I mean, when I need them, we punch them in, when I
don't need them, we punch them out From manage-
ment standpoint, it's a much easier thing for the man-
agement person, to have the union handle all these
things And it makes it more impersonal, and easier, in
my view, at any rate
On July 2, 1975, there was still another conversation in-
volving the Union among Padgett, Slye, and Munson This
took place near the south pit at the Westside facility Pad-
gett stated that Munson told him that if the employees do
join the Union, Paul Reynolds, Dennis Farris, and Mike
Inouye had more seniority than Padgett did and therefore
if they went union, Padgett would be laid off before those
employees would About that time employee Slye pulled up
on the forklift Padgett said that Munson again stated that
it was to Munson's benefit for them to go union because
after the harvest was over Munson could just pull all of the
cards, punch the employees out, send them all "down the
road," and lay off the whole crew Then Munson turned to
Slye and asked Slye what he was going to do when he was
laid off Munson asked if he was going to Sacramento and
punch in at the union hall Slye said yes, whereupon Mun-
son said that there were a lot of people at the hall waiting
for jobs Munson asked Slye if he was going to go down
there every day Slye said no, that he would stay home and
try to find work, that if he could not find work, he would
go on unemployment and wait for the Company to hire
him back based on his seniority Slye asked Munson how
long he could keep rice in the plant Munson replied that
he had seen rice set for as long as 3 years Munson further
stated that it would be cheaper if the employees went
union Munson said he could get a contracting crew out of
Sacramento to come and clean up the plant and he would
save money in the long run Slye's testimony is substantial-
ly similar to that given by Padgett However, Slye says that
it was in the July 15, 1975, conversation with Munson
where Munson told him that the rice could remain in the
warehouse for up to 3 years and that the Company could
have contractors come in and perform work and thereby
save money
Munson acknowledged at the hearing that he did discuss
his understanding of the seniority system which the Union
had at other locations of the Respondent However, Mun-
son said he did this because of Padgett's concern about the
seniority system Munson also acknowledged that he
talked with Padgett and perhaps Slye about the mainte-
nance work that was performed at Respondent's facility
Munson said that he endeavored to explain to them that
they could not handle all of the maintenance jobs and that
it was the Company's practice in all of its plants to call in
independent contractors to do certain work Munson said
that he told them that on many occasions he would call in
an independent contractor who had the personnel, the ex-
pertise, the rigging, and the equipment to do a specific job
Sometime subsequent to the foregoing conversation,
Padgett had still another conversation with Munson con-
cerning the Union Padgett said that Munson told him that
Munson had been talking with employees Hodges and Slye
about the Union and that they were kind of against the
Union at the time Padgett said that he told Munson that,
as for himself, he was voting no
On July 15, 1975, there was another conversation in the
Riz warehouse among Munson and employees Slye and
Hodges According to Slye, Munson told them that Mun-
son knew that he was not supposed to say anything about
the Union or talk to them about it, but Munson said he
would like to say a few things anyway Munson told them
6 This is based on Padgett's credited testimony 7 1 have credited the testimony given by Padgett and Slye
RICE GROWERS ASSOC OF CALIF
that if the Union goes through seniority will prevail He
also said that a timeclock would be installed which would
make things "impersonal or impartial " Munson said that
when things got a little slow, he could pull their cards in-
stead of keeping a few of them on, he could just shut down
the place and punch them out Slye said that he asked
Munson how long he could keep rice in the warehouse, and
Munson said that he had seen the rice setting in warehous-
es for 2 or 3 years Munson went on to say that instead of
paying the employees union wages he could have contrac-
tors come in and save money and do the same job that the
employees were doing
Employee Hodges said that he was present on July 15,
1975, during a conversation between Munson and Slye
Hodges said that Munson told them that he wanted to keep
things on an "impersonal basis " Munson told him that the
Merritt Siding location had been having problems and that
he had laid off the whole crew at one time, had hired back
three men, and that things were working out all right
Hodges said that Munson indicated that the problem had
been over seniority Then Munson said he could install a
timeclock at Westside, and before work got slack he could
punch the men out Hodges also stated that Munson told
them that rather than pay union scale Munson could con-
tract out some of the work that they were doing at that
time and save money
Padgett also testified with regard to statements by Mun-
son about a timeclock Padgett did not specify the date, but
from the context of his testimony it appears that it oc-
curred during a conversation in which Munson once again
told Padgett that Munson had no objection to the Union
coming in Munson told him that a timeclock was being
put in and that there were timeclocks at other warehouses
of the Company and that this warehouse would be treated
the same
Manager Munson testified that he did have a conversa-
tion about installing a timeclock He believed that the con-
versation was with Padgett and possibly Slye and Hodges
Munson said that he told them that the Company would be
installing a timeclock which Munson said was a standard
procedure for all of the Company's system Munson stated,
"I said that when and if they decide to go with the Union,
I would install the timeclock, which I did, and that you
would punch in and out "
In the period between mid-August and early September
1975, there was another conversation among Munson and
several employees at the warehouse Slye related the con-
versation and said that Munson told them that Munson
was going to get a lawyer and that the employees should do
the same He said if the four persons were reinstated, Mun-
son would have to lay off by seniority Munson then
looked directly at employee John Padgett and told him
that, if the four persons were reinstated by seniority, then
Munson would have to lay John Padgett off and that he
would have to go
A few months after the Board-conducted election on
July 18, 1975, Richard Padgett had a conversation with
Munson in which Munson told him that he could hire a
person named Harry who had a truck and that Harry
could clean the plants down a lot faster and a lot cheaper
667
In December 1975, Richard Padgett had another conver-
sation with Munson at which several employees were pres-
ent Padgett stated that Munson was reading the charges
and that Munson said that he knew where the charges
came from Munson said that there were only three people
with whom he had talked about the Union and he knew all
three of them
D Analysis and Conclusion Regarding 8(a)(1) Allegations
While the conversation among Padgett and other em-
ployees and the millwright job steward apparently oc-
curred during the employees' working time, the prohibition
stated by Superintendent Roberts against talking about the
Union was not limited to working time The prohibition
was broader than just forbidding employees from talking
about the Union while they were actually engaged in per-
forming work at the warehouse Instead, it covered the en-
tire time the employees were at the Employer's location
This is made clear by the reference to union talk being
forbidden at "the plant" and that it should be done "off
the job, at our own convenience, at our home " 8 The pro-
hibition was backed up by a threat of discharge as the
penalty for talking about the Union on the job Since the
employees had morning and afternoon break periods and
lunch periods, there were times during the employees'
workday at the warehouse that the employees were not
actually engaged in the performance of their work tasks
Thus, Superintendent Roberts' threat of discharge unduly
restricted employees' rights under Section 7 of the Act to
engage in union solicitation during their nonworking time
at Respondent's premises, i e, when they are not engaged
in the actual performance of their job duties Pepsi-Cola
Bottling Co of Los Angeles, 211 NLRB 870 (1974) See also
Essex International, Inc, 211 NLRB 749 (1974) In these
circumstances, I find that Respondent violated Section
8(a)(1) of the Act when Superintendent Roberts threatened
Padgett that employees could be fired for talking about the
Union at the plant Soon after the employees' initial inter-
est in union organizing began in May 1975, the employees
were promised a wage increase Manager Munson told
Padgett this in late May 1975 Padgett wanted to know
whether he could tell the other employees about the raise
and Munson told him that he could do so Munson ac-
knowledged that he had discussed wages with Padgett al-
though he believed that their conversation was sometime
during June or July and he only spoke of taking up the
matter in October with management Based upon the cred-
ited version given by Padgett, I find that Respondent by
Manager Munson did promise in May 1975 its employees a
wage increase so as to induce the employees to cease their
interest in union activities or selecting a union to represent
them, and thereby violated Section 8(a)(1) of the Act
Granting such a wage increase at that time would have
s
As indicated earlier, I have credited the testimony of Richard Padgett
throughout this proceeding I also find credible the testimony of Glen Slye
Bill Hodges, and Dennis Farris and have credited their testimony in this
case also based upon their demeanor
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been a departure from Respondent's past practice of giving
a wage increase in October
Manager Munson candidly stated that he had heard that
there had been some talking about unions and, since he
seemed to be the last one to learn about what was going on
in the union matter, he asked Padgett what was going on
This inquiry led Padgett to state that if the employees were
talking about a union and he knew who they were he
would fire them It is noteworthy that Respondent made
no comment indicating disapproval of such a policy It is
also noteworthy that later on Respondent changed
Padgett's job duties so that he could circulate throughout
the warehouse rather than be tied down to one particular
job
In the context of the numerous other unfair labor prac-
tices violative of Section 8(a)(1) and (3) of the Act and
interference with employees' rights which occurred in May,
June, and July, during the period of the Union's organizing
activities and representation election, I find this interroga-
tion not to be a mere isolated and innocuous inquiry, but
to be a violation of Section 8(a)(l) in these particular cir-
cumstances Furthermore, it makes no difference whether
Padgett himself felt coerced In N L R B v Illinois Tool
Works, 153 F 2d 811 (C A 7, 1946), the court said
In answer to these contentions it will be enough to
say that this court has recognized that the test of inter-
ference, restraint and coercion under § 8(1) of the Act
does not turn on the employer's motive or on whether
the coercion succeeded or failed The test is whether
the employer engaged in conduct which, it may rea-
sonably be said, tends to interfere with the free exer-
cise of employee rights under the Act [Citations omit-
ted ]
With regard to the credited statements attributed to
Manager Munson to install a timeclock at the Westside
facility, to punch employees in and out, to lay them off
from work, to terminate them, to subcontract out their
work, and to close down the plant, all of these are coercive
threats of the consequences of employees selecting a union
to represent them These were changes from the way Re-
spondent had operated at the Westside facility in the past,
which would all become true if the employees selected the
Union Contrary to Respondent's position set forth in its
brief, I find that these were threats of reprisal and, there-
fore, not privileged by Section 8(c) of the Act
While the employer had timeclocks in its other plants
where employees were already represented by a union, the
installation of a new timeclock at Westside was used as a
threat of more onerous working conditions if the Westside
employees also voted for a union It is significant that the
employer did not say that it was going to install a time-
clock at Westside for any valid business or economic rea-
son It was going to install the timeclock only because the
employees selected a union It was the selection of a union
which would cause the new timeclock to be installed at
Westside Also, the selection of a union would bring about
the new policy of punching employees in and out and lay-
ing them off on a more strict basis
The message conveyed in all of the threats was that em-
ployees would lose their present advantages and would be
dealt with more strictly by Respondent-not for any valid
economic reason, but simply because the employees chose
a union to represent them Respondent's tolerance or le-
niency of the past was going to be over if the employees
went union
Respondent had subcontracted certain work in the past
and again had done so in 1975 for the renovation and in-
stallation work that was done at Westside In its brief Re-
spondent urges that Munson was simply making state-
ments of fact based on his experience However, the threat
to subcontract work was not limited to that type, but in-
stead the threat was to subcontract the work which the
Westside employees were performing Employees were told
by Respondent that it could subcontract their work and get
it done cheaper if they selected a union When viewed in
this context, it is clear that Respondent was not talking
about the type of work which had normally been subcon-
tracted to others in the past, but instead Respondent was
talking about the work then being performed by the West-
side employees
In view of the foregoing and based on the credited testi-
mony, I further find that Respondent by Manager Munson
threatened employees that employees would be laid off
from work, terminated, the plant closed, timeclocks in-
stalled, and more onerous working conditions instituted,
and that work performed by the employees would be sub-
contracted if the employees designated or selected the
Union as their collective-bargaining representative and
thereby violated Section 8(a)(1) of the Act I am not un-
mindful of Manager Munson's personal view that it would
be easier for him as an administrator to deal with employ-
ees covered by a union contract rather than employees who
are unrepresented Nevertheless, whatever his personal
feelings were, the statements made threatened adverse con-
sequences to employees based plainly on the selection of a
union to represent them
E The Denial of Overtime Work
On Friday, June 20, 1975, Respondent abruptly ended
overtime work for employees at the Westside facility Su-
perintendent Roberts announced that there would be no
more overtime
The company records disclose that most of the Westside
employees had been regularly working some overtime
hours in varying amounts up to that point in time The
company records also show that after about a 5-week hia-
tus overtime work was resumed for some employees at
Westside during the last week of July for the payroll period
which ended on August 1, 1975 Thereafter, overtime work
continued at Westside for certain employees in varying
amounts throughout August and for most employees
through the fall months during the rice harvest period For
example, after the resumption of overtime at Westside dur-
ing the payroll period ending August 1, 1975, a total of four
employees worked overtime for a total of 38 overtime
hours The records show the following for August 1975 and
into the beginning of the rice harvest
RICE GROWERS ASSOC OF CALIF
Payroll
period
endinao
No. Employees
Working
Overtime
Total No.
Overtime
Hours
8/1/75 4 38
8/7/75 4 57
8/15/75 4 32
8/22/75 7 80-1/2
8/29/75 7 106
9/5/75 7 14
9/13/75 2/ 11 406-1/4
9/20/75 21 654-1/2
The first load of rice arrived at the Westside facility on
September 7, 1975, and thus the busy harvest period con-
tinued thereafter through November
However, for the 5-week period from June 20, 1975, until
the last week of July 1975, Respondent did not grant over-
time work to its Westside employees Looking back to
1974, the company records reveal that a total of seven
Westside employees regularly worked overtime during the
comparable time period in the previous year from June 21,
1974, through August 2, 1974 The company records show
Payroll
period
ending
No. Employees
Working
Overtime
Total No.
Overtime
Hours
6/21/74 7 70
6/28/74 7 69
7/5/74 7 50
7/12/74 7 67-1/2
7/19/74 7 70
7/26/74 7 82
8/2/74 7 79
Thus, in a comparable time period in 1974 , there was
overtime work on a regular weekly basis at Westside in
various amounts for seven employees each week
Padgett said that Superintendent Roberts had just hand-
ed out the paychecks at the end of the day when he turned
back and said that there would be "no more overtime, from
8 00 in the morning till 4 30 p m from now on " Padgett
said that Roberts announced this on the same day that
Roberts had opened a letter with Obie Brandon 's name on
it This was the mailgram referred to earlier in this Deci-
sion which had been sent from the Charging Party's office
in San Francisco , but which bore the name of "Obie Bran-
don, President ILWU Local 17 "
' The payroll period ending date was changed from Fridays to Saturdays
at that time The "Code to Pay Records' attached to Respondent's 1975 pay
records is inaccurate with regard to pay periods 311-314 Pay period 311
ended on September 13, pay period 312 ended on September 20, and pay
period 313 ended on September 27, 1975 There was no pay period 314
according to the pay records themselves
669
Padgett placed the occurrence of this event as a day or
two after the union meeting on June 18, 1975, at his house
and a day or two after Virgil Foster was hired Company
personnel records show June 18, 1975, as the day that Vir-
gil Foster started work at the Company Employee Bill
Hodges also testified that Superintendent Roberts an-
nounced that there would be no more overtime after Rob-
erts had passed out the paychecks on June 20, 1975 Ii
Superintendent Roberts testified that he stopped over-
time work on June 20, 1975, because "every morning when
I drove up to the plant at 8 00, they were all coming out of
the coffee room So, I dust took the overtime away " Rob-
erts claimed that he had spoken to Padgett earlier about
the employees drinking coffee in the morning instead of
soaking seed He said the employees improved for awhile
and then got slack again
There is a dispute as to when the Union's mailgram was
received Padgett testified that the mailgram was received
by Superintendent Roberts on the same day that he told
the employees that there would be no more overtime Su-
perintendent Roberts was not certain of the date or even
the day of the week on which the letter was received by
him, but he felt sure that he had telephoned Munson on the
same day that he received the mailgram Both Manager
Munson and Secretary-Treasurer Roger Stratton testified
that they were notified of the Union's mailgram on Mon-
day, June 23, 1975, since they were attending a golf tourna-
ment on Friday, June 20, 1975
At the trial Roberts acknowledged that he had previous-
ly given an affidavit to a Board agent in which Roberts had
said that he thought that he had received the Union's letter
prior to the time that he announced that there would be no
more overtime
F Analysis and Conclusion Regarding Denial of Overtime
Work
Based on the credited testimony of Padgett, I find that
Superintendent Roberts told the employees that there
would be no more overtime work on the same day that
Roberts received the Union's mailgram claiming that it
represented a majority of the Westside employees While
Munson and Stratton apparently did not learn of the
Union's letter until the following Monday, they did not
make the decision to cease overtime work at Westside It
was Roberts' decision to do so
It is significant that Roberts did not assert that there was
a lack of work to warrant a reduction in overtime He did
not claim that he eliminated overtime work at Westside
because there was not that much work to do He based his
decision solely on the employees' alleged drinking of coffee
"every morning " While the seed cleaning and seed soaking
tasks had been completed by that time and the additional
work caused by the state embargo at the Riz warehouse
had been done, Roberts made no claim of lack of work on
or after June 20, 1975 The company payroll records for
1974 indicated that during a comparable time period in
1974 overtime work was regularly performed by seven em-
ployees at Westside
10 As previously indicated, I have credited the testimony of Padgett and
Hodges
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I do not credit Roberts' claim that he ended the overtime
work because of coffee drinking which had been going on
for some unspecified time Instead, I conclude that the
Union's claim of majority status was received by Roberts
on June 20, 1975, and later on that same day he abruptly
canceled overtime work because of the employees' union
activities
The Board-conducted election was held on Friday, July
18, 1975, and the Union won the election Within 10 days
to 2 weeks later, Respondent resumed giving overtime
work to its Westside employees However, for the period of
time from the receipt of the Union's claim of majority sta-
tus on June 20, 1975, until about 10 days to 2 weeks after
the Union's election victory, Respondent denied overtime
work to its Westside employees
I find that Respondent violated Section 8(a)(1) and (3)
of the Act by reducing its employees' working hours by
denying them overtime work from about June 20, 1975,
because of their union activities
G The Alleged Discriminatory Terminations
1 Paul Reynolds
Reynolds worked for the Respondent from August 1972
until July 14, 1975, when he was laid off from work at the
Westside facility Dennis Farris, Gary Domenighini, and
Dan Chrestensen were also laid off at the same time Reyn-
olds and Farris were later rehired by the Respondent on
October 3, 1975, at its Williams, California, facility They
worked there for 3 days until they were terminated a sec-
ond time by Respondent on October 6, 1975
Reynolds performed several different duties at the West-
side warehouse during his employment, but one of his du-
ties was to operate a machine known as a scalper The
green rice runs through the scalper when it comes into the
warehouse and before the rice goes into the bins His per-
formance in operating the scalper in the fall of 1974 is an
issue here
Reynolds attended the employees' union meeting at
Padgett's house on June 18, 1975 He said that Padgett had
approached him at work either the day before or the morn-
ing of the meeting and asked him if he would attend Reyn-
olds signed a union card along with all the other 11 em-
ployees who were present at the meeting In addition to
attending the meeting, Reynolds said that he occasionally
discussed the Union at the warehouse with other employ-
ees with whom he was working, but there would be just a
word or two or three said on those occasions
About 4 30 on the afternoon of July 14, 1975, Reynolds
went to the room where the employees kept their lunch
buckets He noticed that a sign was posted on the outside
of the door, so he stopped to read it The sign was a notice
about the NLRB election which was scheduled to be con-
ducted on Friday of that week He picked up his lunch
bucket and then went outside the room where he was talk-
ing with some other persons Dick Padgett came out and
said to Reynolds, "Here's your check You're laid off "
Reynolds asked him why and Padgett replied that he did
not know why and that they had not told him
While Padgett informed Reynolds and the other three
employees who were laid off on July 14, 1975, of their
layoff by the company, it is clear that Padgett did not make
the decision to lay off these four employees Instead, Pad-
gett was carrying out the instructions which he had been
given by Jim Munson, manager of the argicultural depart-
ment The previous Friday, July 10, Munson had told Pad-
gett that Reynolds, Farris, Chrestensen, and Domenighim
were going to be laid off after the cleanup was done Pad-
gett said that he did not bother to worry about it because
they never finish cleaning up since it is a task that goes on
and on However, the following Monday Padgett was
called into Superintendent Roberts' office, where Roberts
and Munson were present Padgett said that Munson
handed him four checks and told him that these four men
were laid off, but for Padgett to tell the employees that
they could come back to vote Padgett said, "I probably
looked goofy to them, because I just stood there with my
mouth open " He said that neither Munson nor Roberts
asked for his opinion Padgett then left the office and went
out and gave the checks to the four employees and advised
them that they were laid off When he was asked the reason
for the layoff by one of the employees, he told him that he
did not know
Reynolds had never been laid off previously by the
Company Reynolds said that there was cleanup work and
maintenance work which remained to be done at the time
that he was laid off He said the work being done by the
millwrights in putting in new dryers, replacing augers, and
putting new buckets on the elevators had created quite a
mess in the warehouse which needed cleaning up
On the day following the layoff of the four employees,
Obie Brandon, president of the Charging Party, telephoned
Robert Freeland, general manager of the Respondent, con-
cerning the layoffs it Brandon asked whether the four em-
ployees who had been laid off on July 14 would be eligible
to vote in the election to be held on July 18 Freeland told
Brandon that there would be no opposition to their voting,
that the employees were laid off, and that they would be
eligible to vote Brandon asked Freeland what the reason
was for the layoff and Freeland said it was a lack of work
Freeland was scheduled to go on a 3-week vacation at that
time so he advised Brandon to communicate further with
Roger Stratton, secretary-treasurer of the Respondent
On Thursday, July 17, 1975, Brandon telephoned Strat-
ton and asked him if the four employees who had been laid
off were going to be eligible to vote in the election Stratton
said that they were Brandon then asked Stratton for the
reasons for the layoff and Stratton said that they did not
have a contract there and therefore the seniority clause did
not apply Stratton said that he would hire, fire, or lay off
anyone that he felt like
On July 21, 1975, Brandon again telephoned Stratton
and told him that he had heard that they were going to hire
some new employees Therefore, Brandon asked if Stratton
was going to give the four employees who were laid off an
opportunity to be reinstated He said that Stratton told him
that Stratton would have to talk to Jim Munson On July
29, 1975, Brandon and Stratton had still another conversa-
tion by telephone in which Stratton told Brandon that the
employees were "undesirable" and that they were not per-
11 Freeland did not testify at the hearing I credit the testimony given by
Brandon regarding this and subsequent conversations
RICE GROWERS ASSOC OF CALIF
forming their work as required Brandon asked Stratton for
a letter from him to this effect and Stratton said that Mun-
son had some documents concerning the reasons for the
layoff Brandon also requested that the documents be sent
to him Stratton said he would do so However, upon ad-
vice of counsel, Stratton did not prepare such a letter for
Brandon nor did he send any documents to Brandon
Stratton testified that he did speak with Brandon on sev-
eral different occasions concerning the laid-off employees,
but he said he described the employees as being "incompe-
tent" rather than "undesirable " Stratton said that there
was some confusion as to the use of the term "layoff" ver-
sus "termination" and that regardless of the terminology
which he used the intent by Munson had been that the four,
employees would not be rehired "and to me that is a termi-
nation " There were apparently subsequent discussions re-
garding the status of the four employees among the parties
Respondent took the position that these were in the nature
of settlement negotiations rather than contract negotia-
tions In any event, a motion to strike the testimony re-
garding the subsequent discussions was granted at the
hearing and that testimony has therefore not been consid-
ered
Subsequently, Dennis Farris, who had been laid off on
July 14, 1975, at the Westside facility, called Reynolds and
asked Reynolds if he wanted to go down to Respondent's
Williams, California, plant since he had heard they were
getting ready to hire employees About the first of October
1975, they went to the Williams plant and spoke with Su-
perintendent Ron Bayne They introduced themselves to
Bayne, and Bayne told him that he wished that they had
been down there a couple of weeks earlier because he could
have used them as operators, but now all the work he had
to do was warehouse work They told Bayne that they
would work in the warehouse Bayne said fine and that he
would call them in a few days Reynolds specifically asked
Bayne if he knew about the trouble at the Willows plant
and Bayne said that he did Reynolds told Bayne that they
were two of the people who were in the middle of that
Superintendent Bayne replied that he did not care about
that, that all he wanted was workers He told them that
they were not union at the Williams warehouse and that
they had no plans to go union Bayne said he would pay
them $5 an hour if they wanted to work They accepted
and a few days later Bayne called them to work
Reynolds and Farris worked at the Williams warehouse
for only 3 days On October 6, 1975, they found that their
timecards had been pulled from the rack so they went to
see their foreman, Jim Nabors 12 Nabors had their time-
cards and told them that he had been ordered to pull them
Nabors said that he did not want to, but they had ordered
him to do it and that there was nothing he could do Reyn-
olds asked if this was because of their work Nabors told
him no, that their work was satisfactory Nabors said that
he wanted them and needed them Nabors said that he was
12 Jim Nabors was not called as a witness by any party to testify at the
trial The conversations involving Nabors are based on the credited testimo-
ny of Reynolds and Farris
One of the issues in this case is whether Foreman Nabors is a supervisor
That issue is discussed later in this Decision After reviewing the record, I
have concluded that Nabors is a supervisor of Respondent within the mean-
ing of Sec 2(11) of the Act
671
getting down to 8-hour work shifts in the warehouse, but
now that he would have to go to a 12-hour work shift by
letting Reynolds and Farris go Nabors said that they had
called back a second time and asked to keep Reynolds and
Farris, but they were turned down Nabors said that they
were told that the two employees had been terminated at
Westside Reynolds replied that if they had been terminat-
ed at Westside it was done after they were laid off Nabors
said that he believed that and that they had asked a lot of
questions Finally, Nabors said he believed that Reynolds
and Farris were getting laid off "on account of the Union"
and were "getting shafted " 13
Superintendent Bayne did not make the decision to ter-
minate them at the Williams warehouse Instead, Bayne
stated that his foreman, Nabors, had received a call from
Sacramento stating that Reynolds and Farris had been ter-
minated from the Westside facility and that they had to be
laid off from Williams because they had been terminated
and could no longer work for the Company
Respondent's reasons for laying off Reynolds on July 14,
1975, were summarized at the hearing by Manager Mun-
son who made the decision to lay off the four employees
Munson gave four separate bases for the layoff of Reyn-
olds They were (1) some damaged rice which had been
discovered in January 1975, (2) some dirty seed which had
been sent to a customer in May 1975, (3) the cleaning of a
tunnel at the warehouse in June and July 1975, and (4)
"just general observation on a day-to-day basis during this
period from January 1 on "
The first basis for Reynolds' layoff given at the hearing
by Respondent involved the discovery of some heat-dam-
aged rice in January 1975 The apparent reason for the
heat damage of the stored rice was that the air from the
fans could not circulate properly because there were pock-
ets of straw and chaff in the rice The heat damage in-
volved about 6,000 hundredweight bags of rice Of those
6,000 bags about 1,650 bags had to be sold as sample grade
rice which is the lowest classification of rice 14
Munson and Roberts investigated the cause of the heat-
damaged rice in January 1975 After inspecting the rice,
they concluded that the rice had not been properly scalped
by the scalping machine Some of the rice apparently had
bypassed the scalping machine and gone into the bin Since
Paul Reynolds was the top man operator on the south scal-
per, both Munson and Roberts concluded that Reynolds
was to blame for the straw and chaff getting past the scalp-
ing machine and into the stored rice One of the dryer
operators named Hart reported to Munson that he had
13 This account is based on a composite of the credited testimony of
Reynolds and Farris I recognize that Nabors was expressing his own belief
or opinion that the termination was 'on account of the Union " Nabors
made it clear to the two employees that he did not make the decision to fire
them and that he was merely carrying out orders Nevertheless, Nabors had
talked with the headquarters office about their termination Since Nabors
did not testify, the basis for forming his belief is unknown
14 Munson explained that there were six different grades of rice with the
number one grade being the highest and the lowest grade being sample
grade Respondent's rice was grade number one extra fancy, which back in
January 1975 was selling for about $23 or $24 a hundredweight Sample
grade rice is usually sold to breweries Munson estimated that the price in
January 1975 for sample grade would be from $7 to $10 a hundredweight
Thus, the sale of 1,650 bags of rice as sample grade represented a substantial
loss of revenue to the Respondent
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
observed on numerous occasions that the scalper was not
running, but he did not know why
It is undisputed that nothing whatsoever was said to
Reynolds concerning this in January 1975 or at any time
thereafter
Reynolds acknowledged at the hearing that he was oper-
ating the south scalper at the time Reynolds described an
incident during the 1974 harvest where the belt broke and
the scalper ceased operation He said he promptly reported
this to Superintendent Roberts and asked what he should
do in the meantime while he looked for another scalper
belt According to Reynolds , Roberts told him, "Bypass it
That's all we can do " Reynolds also described other times
when the scalping machine could not handle a large in-
crease in the flow of rice and some of it was bypassed by
the machine 15
Padgett also described malfunctions by the scalping ma-
chine during the harvest of the next fall in 1975 and that he
brought this to the attention of Superintendent Roberts
Padgett made some adjustments to the machine so that it
would not go on bypass and let the straw fall through
The second basis given at the hearing for the layoff of
Reynolds involved some "dirty seed " This incident took
place in May 1975 when a customer called Munson to
complain that some seed shipped to him by Respondent
was dirty In cleaning the rice seed , the process should re-
move chaff , straw , and water grass seed Apparently, this
dirty seed contained such materials which should have
been removed when the rice went through the cleaner Paul
Reynolds was the night operator on the seed cleaner at the
time Padgett testified that on a couple of occasions he had
found the screens on the cleaner dirty when he arrived at
the warehouse at 5 o'clock in the morning This led Super-
intendent Roberts and Manager Munson to conclude that
Reynolds was responsible for the dirty seed It is also un-
disputed that nothing whatsoever was said to Reynolds
prior to his layoff concerning any responsibility or blame
for the dirty seed
The third basis given at the hearing by Respondent for
the layoff of Reynolds involved the cleaning of a tunnel at
the warehouse The tunnel is about 7 or 8 feet high and
about 7 or 8 feet wide and is made of concrete During the
week of June 20 and the following week, Padgett and
Hodges were putting up cement forms in the tunnel in
preparation for cementing the bottom of the bins The
work done by Padgett and Hodges involved the use of ply-
wood , two-by-fours , saws, nails, and hammers in the tun-
nel In the latter part of June , Superintendent Roberts told
Padgett to have some men clean the tunnel Padgett in turn
asked Reynolds and employee Gary Domenighini to clean
the tunnel Because a compressed air line was broken at
that time, the employees could not follow the usual proce-
dure of sweeping out the tunnel and vacuuming it They
proceeded to clean the tunnel , but when Padgett inspected
it, he found that it needed to be cleaned a second time
Padgett said at the hearing that he was a perfectionist,
"And when you clean an area , you got to have it clean just
like your wife vacuums your rug And this is the way I look
at things " Padgett said , "I told them I wanted it spic-and-
15 1 found Reynolds to be a credible witness based on his demeanor at the
hearing and have credited his testimony
span , just like you can eat off the floor" Reynolds and
Domenighini proceeded with the second cleaning of the
tunnel and they were cleaning it at the time of their layoff
on July 14, 1975 Other than Padgett's instruction to them
to reclean the tunnel a second time , nothing else was said
to them by the Respondent concerning their work in clean-
ing the tunnel
While Padgett testified that he personally inspected the
tunnel and gave the instructions to Reynolds and Domeni-
ghini to clean the tunnel a second time, Munson gave a
different version He said that he inspected the tunnel and
had a long conversation with Padgett regarding the clean-
up of the tunnel Munson said that the tunnel had to be
cleaned two or three times and that he told Padgett that the
whole facility as well as the tunnel had to be as clean as
your kitchen Munson said that Padgett assured him that
that was the way it would be and Padgett went back down
the tunnel Munson said he did not remember whether it
was the second or third time, but that Padgett got the tun-
nel pretty well cleaned As I have indicated previously, I
have credited Padgett's testimony throughout as being the
most reliable
The fourth and final basis given at the hearing for
Respondent 's layoff of Reynolds involved a general obser-
vation of his work from January 1, 1975, to the time of his
layoff on July 14, 1975 No specifics were given concerning
this general observation However, Munson related a long
term plan which he had in mind for upgrading the physical
facilities and the personnel at the Westside facility Mun-
son said that he had been discussing the Westside facility
with General Manager Freeland for over 2 years However,
during 1974, Munson was occupied with making improve-
ments in the operation of the Merritt Station facility He
explained that he set up different job classifications at the
Merritt facility and reduced the number of full-time em-
ployees from seven to two or three during the regular sea-
son Munson said that in January 1975 he decided that he
would take a close look at the Westside facility with regard
to its operations and its personnel His aim was to have "a
highly qualified crew" which could handle such day-to-day
maintenance problems as changing a motor or pushing a
broom He said that he and Roberts had talked about this
in January 1975 Munson also recommended physical im-
provements at the Westside facility which included exten-
sive remodeling and some new construction Munson
pointed to a state embargo which was placed on the Riz
warehouse on March 18 , 1975, as having an effect on his
plans Munson said, "The embargo just speeded up my
decision and the necessary decision to go ahead with a
complete renovation of the place " There were 42,000 bags
of rice which were embargoed by the State of California
following an inspection in which live mice and mice pellets
were found in the rice The embargo was in effect for less
than 3 weeks from March 18 to April 4, 1975 , according to
Superintendent Roberts During that time, however, the
employees were busily involved in skimming off 6 inches of
rice from the top and placing it away from the embargoed
area The rice that was skimmed off was sold as feed Re-
spondent did not place the blame for the state embargo on
any individual The Riz warehouse as described as being
an old warehouse when Respondent purchased it in 1973
RICE GROWERS ASSOC OF CALIF
Munson testified that he postponed his review of person-
nel at the Westside facility because of the cleanup at the
Riz warehouse which was made necessary by the placing of
the state embargo Munson said that in late May or early
June he talked with Roberts and Padgett regarding the sit-
uation at the Westside warehouse In particular he dis-
cussed the damaged rice in the warehouse and the seed
cleaning of rice Padgett testified that in the early part of
June 1975 Munson had told Superintendent Roberts not to
tie down Padgett on any one job, but instead to let Padgett
circulate through the warehouse and make sure that all of
the jobs were getting done Padgett did not say that any
specific persons were discussed at that time Instead, he
testified that it was on Friday, July 10, 1975, when Munson
informed him of the four specific individuals who Munson
had decided to lay off from work I credit Padgett's ver-
sion
Superintendent Roberts took a vacation during the first
2 weeks of July During that time Munson spent more time
than was his usual practice at the Westside facility
With regard to the timing of his decision to lay off the
four employees on July 14, 1975, Munson stated
It was in my mind for several months It was not an
easy thing to do I mean , regardless of how people
may look at it, it's not an easy thing to do And I knew
that in order to carry out my program, that it was
necessary And I made the decision over the weekend
to do it the coming week And I decided to start it out
that way on Monday
Munson said that the Company began to build up the
crew at the Westside facility after the first of September
1975, and at the peak of the harvest the number of employ-
ees at Westside was 20 to 25 or perhaps a little more 16 He
said that the large part of the crew was kept on about a
month after the harvest was over which would make it al-
most to Christmas 1975
According to Padgett , the rice harvest season usually be-
gins around the end of August or first of September of each
year, depending upon the type of rice involved In 1975
harvest season, the first load of rice arrived at Westside on
September 7, 1975 Padgett said that the dryers at the
Westside warehouses were not ready to receive the rice
when it first arrived However, the rice was not turned
away but was brought in to the warehouse Padgett said
that there was still work needed to be done at that time and
they had to assign a crew to the warehouses to get them
ready The Westside facility had been improved during
1975 as far as handling additional capacity Superintendent
Roberts pointed out that the new augers were larger than
the old ones and that the dryers had been revamped The
type of rice received in 1975 was a different type also,
known as 1600 rice which is a short -grain rice It is undis-
puted that the State of California experienced its largest
rice crop ever in 1975 Accordingly, the Westside facility
received 1,200,000 bags hundredweight of 1600 rice in
1975 This compares with a total intake of 762,000 hun-
dredweight in 1974 of a rice known as Cal-Rose Addition-
16 Personnel records show that 14 employees were hired at the Westside
warehouse between September 8 and 27, 1975
673
ally, during the 1975 harvest season the Westside facility
did not experience any loss of time due to shutdown of its
dryers and it was the only one of Respondent's facilities to
accomplish this during the 1975 harvest
2 Dennis Farris
Farris first began work for the Respondent in September
1969 and worked during the harvest period He was laid off
at the end of the harvest and did not return to work for the
Company until October 1973 He worked thereafter until
the end of 1974 when he was laid off He returned to work
for Respondent once again on March 26, 1975, and worked
until he was laid off on July 14, 1975, at the same time that
Reynolds, Domenighini , and Chrestensen were laid off
Farris said that there was a lot of cleanup work to be done
when he was laid off He was laid off in a similar manner
as was Reynolds and the other employees by Padgett hand-
ing him his paycheck and informing him of the layoff
Farris did general cleanup work at Westside and, when-
ever it was necessary, he ran the mechanical sweeper there
He discussed the Union with the other employees once
or twice during lunch hour at the warehouse He attended
the union meeting on June 18 , 1975, at Padgett's house
where he signed a union card along with all the other em-
ployees
Sometime in late September 1975, Farris had a conversa-
tion with Superintendent Roberts Roberts is a neighbor of
Farris The conversation took place in Farris ' yard and
covered general subjects During that conversation Farris
asked Roberts who was running the new Williams plant
Roberts gave him the name and address of Superintendent
Bayne Farris said that Roberts told him, "maybe he can
do you some good If he can't maybe you can drive a truck
for me in my own field " As a result of that conversation,
Farris and Reynolds went to the Williams warehouse
where they were both hired and worked from October 3,
1975, to October 6, 1975, when both were once again termi-
nated
The reason advanced by the Respondent for the layoff
of Farris was "the type of work that he was doing and the
way he was doing it-every time I would come around the
corner of the warehouse , he'd be leaning on a hoe or a
broom, or something like that " On that basis , Manager
Munson concluded that Farris did not fit into the person-
nel program which he had in mind
Farris said that there were no prescribed break or rest
periods at the time he was hoeing and sweeping He said
that he and other employees took breaks on occasion and
rested on their hoes He explained that the temperature
reached 107 to 108 degrees and he would just stop for
awhile Farris said that he was never criticized for stopping
work while he was hoeing or sweeping Farris impressed
me as a credible witness and I have credited his testimony
Employee Glen Slye also said that he had worked with a
hoe and broom for Respondent and that he had rested
occasionally and had observed other employees similarly
do so many times
3 Gary Domenighini
Domenighini worked for the Respondent for approxi-
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mately 2 years before his layoff on July 14, 1975 He had
not been laid off previously by the Company He worked
at the top of the dryer at the warehouse during drying
season and at other times worked as a cleanup person
He learned of the union meeting to be held at Padgett's
house while he was at the warehouse one day He attended
the meeting and signed a union card
Domenighim was laid off in the same manner and at the
same time as the other three employees involved herein
With regard to the reasons for the layoff of Domenighi-
ni, Manager Munson said, "Back to the previous fall, his
work habits After that, I had been watching him from the
fall, and right up straight through to July 14th " Munson
continued, "My conclusion was that his attitude, his work
performance was not in keeping with the type of personnel
that I wanted at that plant "
The reference to the previous fall refers to what Respon-
dent termed the "Cheney incident" and the "LeGrande in-
cident " The "Cheney incident" took place during the fall
of 1974 when Domenighmi worked for a month or so as a
dryer man at the LeGrande warehouse He said that he was
told by Fulcher, a field representative of the Respondent,
to go to the Cheney warehouse Fulcher was not a supervi-
sor The conversation took place by telephone After Do-
menighmi hung up, he telephoned his superintendent,
Roberts, at the Westside,facility, and told him about his
conversation with Fulcher Roberts said that he would call
Domenighini back Roberts did call him back and told Do-
menighmi to come to work at the Westside plant the next
day, which he did Munson said that he had told Fulcher to
tell Domenighini to go over to the Cheney warehouse, but
Fulcher was not called as a witness, and Domenighini did
not state that Fulcher told him he was acting on Munson's
order I credit Domenighim's testimony
The "LeGrande incident," according to Munson, was his
observing Domenighmi on two or three occasions in Octo-
ber 1974 come out of his pickup truck while the dryers
were running at the LeGrande warehouse Domenighini
acknowledged that once or twice a day he took a rest pen-
od in his truck while the other employee on duty watched
the dryers
4 Dan Chrestensen
Chrestensen worked for the Respondent for the brief pe-
riod of May 19, 1975, through July 14, 1975, when he was
laid off with the other three employees involved herein His
job was that of a sweeper
He discussed the Union during lunch on June 15, 1975,
at the Riz warehouse with Reynolds, Farris, and some
other employees On June 18 he attended the union meet-
ing at Padgett's house where he also signed a union card
At times subsequent to the union meeting and before his
layoff, Chrestensen discussed the Union at the plant with
other employees 17
He was laid off in the same manner and at the same time
as the other three employees previously discussed He said
17 There is no discernible conflict between his testimony at the hearing
and a previous affidavit given to a Board agent because his conversation
with Roberts, which he related at the hearing, evidently took place after the
time when Chrestensen gave the affidavit I have credited his testimony
that there was a lot of cleanup work to be done at the plant
at the time of his layoff
With regard to the reasons for the layoff of Chrestensen,
Manager Munson stated at the hearing, "It's the same
thing with Mr Chrestensen However, he was just a young
man, he was only there a couple of months, but basically
he just didn't fit into my long-range plans for men "
Chrestensen is 19 years old He said that he had previ-
ously informed Superintendent Roberts that he had taken
courses in welding and sheet metal
H Analysis and Conclusion Regarding Discriminatory
Terminations
The reasons given by Respondent at the hearing for the
initial layoff and termination of the four employees in
question for the most part concern past events which Re-
spondent knew about, but took no action on, until after
union organizing activity had commenced at the ware-
house The cleaning of the tunnel by Reynolds and Do-
menighini was currently going on at the time of their lay-
off, but the two employees were satisfactorily recleaning
the tunnel a second time when they were laid off even
though they did not have the use of the equipment ordina-
rily utilized to sweep and vacuum the tunnel The other
reasons involved past events For example, the damaged
rice was discovered in January 1975 Respondent suffered
a financial loss of a substantial amount of money because
of the damaged rice The Respondent believed at the time
that Reynolds was responsible Yet, nothing whatsoever
was said to him about this There was no request for even
an explanation from Reynolds There was no warning to
him, no criticism, and no mention of this incident to Reyn-
olds The same is true with regard to the alleged "dirty
seed" in May 1975 The Company again felt that Reynolds
was to blame Yet, the Company took no action at that
time
Respondent, in effect, tolerated or condoned what it felt
were serious mistakes on Reynolds' part until the employ-
ees at Westside began union organizational activities It
was only after the election was scheduled and the election
notice posted that Respondent took action, just 4 days be-
fore the representation election
In a similar manner Respondent pointed to the fall of
1974 regarding the alleged "Cheney incident" and "Le-
Grande incident" concerning Domenighini as a reason for
discharging him in July 1975 Respondent knew about
those incidents for many months and felt that Domenighi-
ni was at fault, but again took no action until after union
activities began As to Farris, it was said that he had been
observed leaning on a hoe or broom at times in the past,
yet, other employees did so and no action was taken to
discipline Farris, warn him in any manner, or lay him off
from work until after the union organizational activities
took place Other reasons advanced for the layoff of the
four employees were highly subjective and general ones
regarding the employees' attitudes or that they would not
fit into Respondent's program I find that the reasons given
by Respondent for the layoffs and discharges of the four
employees are pretexts
RICE GROWERS ASSOC OF CALIF
Manager Munson's handwritten note listed the employ-
ees at Westside as of June 30, 1975, and also as of July 15,
1975 There are checkmarks after the names of Reynolds,
Chrestensen, Domenighim, and Farris, the word "off" with
a line through it beside the names of John Padgett, Reyn-
olds, Domemghini, and Farris, and asterisks by the names
of John Padgett, Dick Padgett, Glen Slye, Bill Hodges, and
Mike Inouye The preparation of that note began on or
after June 30, 1975, and thus it was prepared after union
activity had commenced at the Westside warehouse, after
the Union's mailgram had been received, and after the
NLRB letter advising Respondent of the filing of the repre-
sentation petition by the Union had been received Thus,
the note does not establish that Munson had decided on
the layoff of these employees prior to the commencement
of union activity
There were only 12 employees at Respondent's Westside
facility at the time of the layoff The employees talked
about the Union briefly at the warehouse and all attended
the union meeting on June 18, 1975, at Padgett's house
where all signed union cards In Century Lumber Company,
Inc, 168 NLRB 221 (1967), the Board said
Although Respondent's specific knowledge of the ac-
tivities of Lutz and Meredith is amply demonstrated
by Russell's presence during their discussions of the
Union, we also find, on the basis of the small size of
the plant, the nature of the interrogation, and the tim-
ing of the discharges in relation to Respondent's other
unfair labor practices, an adequate basis for inferring
that Respondent knew or had reason to believe that all
the alleged discnminatees were union protagonists
But we also note that in the view we take of the case,
even assuming that Respondent was unaware of the
union membership of Henkensiefken and Sewell, our
ultimate result herein would not be altered For, as set
forth below, we are satisfied that the record amply
demonstrates that Respondent discriminated against
all these employees to discourage union activity gener-
ally, and it is settled principle that where, as here, "an
employer lays off a group of employees, for discrimi-
natory reasons, such conduct is unlawful as to all
employees in that group, even as to those employees
whose union sympathies are unknown to the em-
ployer "
I find the Board's rationale in Century Lumber to be
applicable in these circumstances although the union cards
in this case were signed at the union meeting rather than at
the plant
Respondent shifted its position on the initial layoff on
July 14, 1975, from what appeared at first to be a tempo-
rary layoff to what later became a permanent discharge
Respondent in its brief urges that there was an apparent
lack of communication between Respondent and the
Union which led to a misunderstanding or "momentary
confusion" as to the status of the four employees It seems
to me that Respondent's three management officials made
it clear to the Union and the employees involved that the
four employees were laid off from work, but subsequently
changed their status to a discharge after the election Gen-
eral Manager Freeland told the Union on the very next day
675
after the layoff that the employees were laid off for lack of
work and could vote in the election Freeland stated a clear
and consistent position Since employees who are in layoff
status and who have a reasonable expectancy of recall are
eligible to vote in NLRB elections, this was a consistent
and logical position Higgins, Inc, 111 NLRB 797, 799
(1955) Employees who are discharged for cause prior to an
election would not be eligible to vote Regardless of wheth-
er Freeland was familiar with election eligibility rules, it is
clear that he unequivocally told the Union that the four
employees were laid off for lack of work and could vote
Secretary-Treasurer Stratton repeated 2 days later to
Brandon that the four employees could vote in the election
Munson had previously told Padgett on July 14 that the
employees were laid off and could vote in the election All
of these statements by three different management officials
in the beginning indicated a layoff from work Nothing
was said at that point in time about the employees being
fired or discharged The Company did not tell the employ-
ees anything other than the fact that they were laid off and
could vote Nevertheless, Respondent's position shifted
subsequent to the union election and by July 29 Stratton
informed Brandon that he had talked with Munson and
that the employees were "undesirable " Thus, what had ap-
peared for 2 weeks to have been a temporary layoff was
changed by Respondent into a permanent discharge
I have carefully considered the long term collective-bar-
gaining history of Respondent at its four other facilities
which are not involved in this case Respondent in its brief
points to this fact to show the absence of a history of union
animus The collective-bargaining relationship extends
back over many years and is noteworthy for its complete
absence of prior unfair labor practice charges over such a
long period of time However, the fact that Respondent has
had collective-bargaining agreements covering its employ-
ees at four locations does not necessarily mean that this
Respondent would welcome union organization of its em-
ployees at a fifth location Certainly, the threats which
were made by Respondent during the course of the union
activities at the Westside facility indicate that Respondent
was definitely opposed to a union coming into its Westside
facility, notwithstanding the amicable bargaining relation-
ship at other locations While both Manager Munson and
Secretary-Treasurer Stratton recounted that General Man-
ager Freeland said that Respondent would do nothing to
interfere with the employees' election, that is not what ac-
tually took place here
In view of (1) the union animus evidenced by the num-
erous violations of Section 8(a)(1) of the Act found previ-
ously herein, (2) the timing of the initial layoff dust 4 days
prior to the scheduled election on union representation, (3)
the layoff of the four employees without any prior warn-
ing, (4) the fact that no reasons or explanation for the
layoff were given to the employees at the time of the lay-
off, (5) the shifting nature of Respondent's action, from a
layoff which appeared at first to be temporary since the
Company repeatedly said that the four employees were en-
titled to vote in the election, to a permanent discharge
shortly after the Union won the election, (6) the fact that
this was a small plant of only 12 employees and the fact
that by the time of the layoff on July 14, 1975, Respondent
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was well aware of the Union's representation petition and
the scheduled election to be conducted by the NLRB on
July 18, 1975, (7) the fact that the four employees in ques-
tion all signed union cards, attended a union meeting, and
talked about the Union at the warehouse, and (8) the fact
that the reasons advanced at the hearing in January 1976
have been found to be pretexts, I find that Respondent laid
off Paul Reynolds, Dennis Farris, Gary Domenighini, and
Dan Chrestensen on July 14, 1975, and subsequently termi-
nated them on July 29, 1975, because of their union activi-
ties and to discourage employees from supporting the
Union
With regard to the second termination of Reynolds and
Farris at the Williams warehouse, it is clear, and I find,
that they were discharged by Respondent a second time on
October 6, 1975, because of their first discharge by Re-
spondent in July which I have found to be unlawful Their
work at the Williams warehouse was satisfactory and they
were needed for work there at the new warehouse The
remarks of Superintendent Bayne when they were hired,
and Foreman Nabors when they were fired, both show that
there was work available for them to perform at Wil-
liams 18 When Superintendent Bayne hired them, he indi-
cated a lack of concern on his part about any union activi-
ties Bayne was more concerned about the work that
needed to be done at the warehouse rather than the union
activities at Westside It is significant that Superintendent
Bayne did not decide to fire Reynolds and Farris It was a
decision made elsewhere and relayed to Foreman Nabors
at Williams Nabors' remarks demonstrate the need for the
two men to continue work at the Williams facility and his
comments reveal his efforts to try to persuade Sacramento
to change the decision by his calling back and asking to
keep the two men at work
Thus, I find that Respondent's second discharge of
Reynolds and Farris on October 6, 1975, at its Williams
warehouse was discrimmatonly motivated as was
Respondent's first unlawful discharge of them in July and
that Respondent thereby again violated Section 8(a)(1) and
(3) by discharging them a second time
I The Alleged Supervisory Status of Jim Nabors
The General Counsel contends that Jim Nabors, the
foreman at Respondent's Williams, California, warehouse,
is a supervisor within the meaning of the Act Respondent
contends that Foreman Nabors is not a supervisor and
moved to strike all testimony regarding statements attribut-
ed to Nabors I reserved ruling on Respondent's motion at
the hearing and indicated that I would rule on the motion
in this Decision after full consideration of the record re-
garding the status of Foreman Nabors
Both Paul Reynolds and Dennis Farris worked for the
brief period of 3 days from October 3 to October 6, 1975,
at the Williams warehouse As noted earlier, they were in-
18 The supervisory status of Foreman Nabors is in issue in this proceed-
ing That issue is fully discussed in the next section of this Decision For the
reasons set forth therein, I have found that Foreman Nabors is a supervisor
within the meaning of Sec 2(11) of the Act
formed by Foreman Nabors of their second termination by
Respondent on October 6
Plant Superintendent Ron Bayne introduced Farris to
Warehouse Foreman Nabors Farris said that Bayne told
him "This is your warehouse foreman This is the guy
you'll be working for right here He'll show you what to do
and get you lured out " Thereafter, Farris only dealt with
Nabors concerning his work
Reynolds was told by Superintendent Bayne that Fore-
man Nabors "was in complete charge of the warehouse"
and to contact Nabors Thereafter, Reynolds received his
instructions regarding his work from Nabors rather than
Superintendent Bayne Nabors first instructed them to
sweep the warehouse where dirt and trash were present
When that job was finished, Nabors told them to set up the
tunnels and screen them Nabors also instructed them to
stand and wait where the rice was to come down the tun-
nels and when the rice came down the tunnels to tie the
screens According to Reynolds, Nabors not only told
them exactly what jobs to do, but also told them when they
were to come to work and when they could leave work to
go home
Nabors was not called as a witness by any party
Superintendent Bayne testified that Nabors was "fore-
man over the whole operation dryers, warehouse, all " In
October 1975 there were three buildings at the Williams,
California, facility in which employees worked and there
were approximately 20 to 25 employees working at Wil-
hams Superintendent Bayne discussed the work schedule
with Foreman Nabors and Nabors gave him information
with respect to the work that was going on at the facility
and they discussed where the men were needed Bayne said
that Nabors did not have the authority to hire employees
or to discharge employees With regard to any disciplinary
problems, Nabors was supposed to discuss them with
Bayne If an employee was not doing his job correctly,
Nabors was to let Bayne know about it and they would
discuss what was going on However, it something at the
facility was not running properly, then Nabors was to take
steps to get it corrected Bayne said that if an employee
became ill at work, then he could go to Nabors and ask
Nabors if he could leave the premises If a machine mal-
functioned, then the employees would go to Nabors and
inform him of it and Nabors would be the one to take care
of the problem Nabors could move an employee in the
sweeper or warehouseman classification from one job to
another The dryer operators and suboperators, however,
remained in their same jobs
Nabors was paid on an hourly basis and received about
80 cents an hour more than the average employee
J Analysis and Conclusion Regarding Jim Nabors
It is not necessary that an individual meet all of the
criteria set forth in Section 2(11) of the Act in order to be
found to be a supervisor It is sufficient that an individual
meet any one of the criteria set forth in that section Ohio
Power Company v NLRB, 176 F 2d 385 (C A 6, 1949),
cert denied 338 U S 899 Here the evidence reveals that at
the times material herein in October 1975 Foreman Nabors
did responsibly direct the work of employees He instruct-
RICE GROWERS ASSOC OF CALIF
ed the employees as to the jobs to be performed and he
changed them from one job to another and had the author-
ity to do so He told the two employees involved here when
to come to work and how long they were to work during
the day He also had the authority to excuse employees
from work because of illness
There are some similarities between Foreman Nabors at
the Williams facility and Working Foreman Richard Pad-
gett at the Westside warehouse Both were involved in in-
forming the employees of their termination Padgett was
involved in the July 14, 1975, termination at Westside and
Nabors in the October 6, 1975, termination at Williams
However, in both instances it is clear that each one was
carrying out the decision which had been made by others
Both Nabors and Padgett gave instructions to employees
regarding their work, but the record shows, based on the
testimony of Reynolds, Farris, and Bayne, all of whom I
credit in this regard, that Nabors possessed and exercised
more authority over the employees in deciding what jobs
the employees would work on, what hours the employees
would work, when the employees would work overtime,
and when employees could leave work While supervisory
titles are certainly not determinative of a supervisory issue,
and while wage rates also are not determinative, there is a
contrast here in both title and wage rate Nabors was a
"foreman" who was in complete charge of the Williams
warehouse, whereas Padgett was a "working foreman" at
Westwide Nabors received about 80 cents an hour more
than the average employee whereas Padgett received about
25 cents an hour more The parties stipulated that Padgett
was not a supervisor within the meaning of the Act at least
through the NLRB-conducted election on July 18, 1975
As indicated above, while there are some similarities be-
tween Nabors and Padgett with regard to their work duties,
I find that Nabors possessed and exercised supervisory au-
thority within the meaning of the Act and that at the times
material herein in October 1975 Nabors was a supervisor
as defined in the Act Accordingly, I hereby deny the
Respondent's motion to strike all of the testimony concern-
ing statements made by Nabors Since I have found Na-
bors to be a supervisor, then Respondent is responsible for
his actions and statements 19
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes bur-
19 Because I have found Nabors to be a supervisor within the meaning of
the Act, it is unnecessary for me to decide whether Nabors, if not in fact
vested with actual supervisory authority, was placed in a position by Re-
spondent whereby employees would reasonably believe that he was acting
as an agent on its behalf Paramount Trends, Inc, 222 NLRB 141 (1976) It
may be that Respondent cloaked Nabors with at least apparent authority to
speak on its behalf and thereby make Nabors' statements attributable to
Respondent, but it is unnecessary to decide that question in view of the
supervisory findings with respect to Nabors See also Broyhill Company, 210
NLRB 288, 294 (1974), The Bama Company 145 NLRB 1141, 1143 (1964)
677
dening and obstructing commerce and the free flow of
commerce
Upon the basis of the foregoing findings of fact and
upon the entire record, I make the following
CONCLUSIONS OF LAW
I Rice Growers Association of California is an employ-
er engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
2 International Longshoremen's and Warehousemen's
Union, Local 17, is a labor organization within the mean-
ing of Section 2(5) of the Act
3 Foreman Jim Nabors is, and has been at all times
material herein, a supervisor of Respondent within the
meaning of Section 2(11) of the Act at its Williams, Cali-
fornia, facility
4 By threatening employees with discharge if they
talked about the Union during their nonworking time at
Respondent's premises, by promising employees a wage
increase to induce them to cease their union activities, or
not to select a union to represent them, by interrogating
employees about their union activities and the union activi-
ties or sympathies of other of its employees, by threatening
employees with layoff from work, termination, plant clo-
sure, installation of timeclocks, institution of more onerous
working conditions, and subcontracting of work performed
by the employees if the employees designated or selected
the Union to represent them, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act
5 By laying off from work, discharging, and failing to
reinstate Paul Reynolds, Dennis Farris, Gary Domenighi-
ni, and Dan Chrestensen because of their union activities
and in order to discourage employees from supporting the
Union and by reducing employees' working hours by deny-
ing them overtime work at its Westside facility from on or
about June 20, 1975, because of the union activities of its
employees, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (3) of the
Act
6 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom and that it take certain affirmative action
to effectuate the policies of the Act
Having found that Respondent unlawfully laid off from
work, discharged, and failed to reinstate employees Paul
Reynolds, Dennis Farris, Gary Domenighmi, and Dan
Chrestensen, I shall recommend that Respondent offer to
each of them immediate and full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substantially
equivalent positions without prejudice to their seniority or
other rights and privileges I shall also recommend that
Respondent make them whole for any loss of earnings suf-
fered as a result of the discrimination against them by pay-
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment to them of sums of money equal to that which they
normally would have earned as wages from the date of
their termination to the date of said offers of reinstatement,
less net earnings during such period Backpay is to be com-
puted on a quarterly basis in the manner prescribed by the
Board in F W Woolworth Company, 90 NLRB 289 (1950),
and with interest thereon as prescribed by the Board in Isis
Plumbing & Heating Co, 138 NLRB 716 (1962)
Having further found that Respondent reduced the
working hours of its employees by denying them overtime
work at its Westside facility at Willows, California, from
on or about June 20, 1975, because of the union activities
of its employees, I shall further recommend that Respon-
dent make whole each employee for his loss of earnings
attributable to Respondent's discrimination against them
by payment to each employee the amount he would have
earned, absent discrimination, plus interest thereon
In view of the nature of the Respondent's unfair labor
practices found herein, I shall recommend that the Re-
spondent cease and desist from infringing in any other
manner on the rights of its employees guaranteed by Sec-
tion 7 of the Act Brom Machine and Foundry Co, 222
NLRB 74 (1976), Skrl Die Casting, Inc, 222 NLRB 85
(1976), NLRB v Entwistle Mfg Co, 120 F 2d 532, 536
(CA 4, 1941)
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to the provisions of Section 10(c) of the Act, I
hereby issue the following recommended
ORDER20
The Respondent, Rice Growers Association of Califor-
nia, shall
1 Cease and desist from
(a) Threatening employees with discharge if they talk
about the Union during their nonworking time on the com-
pany premises
(b) Promising employees a wage increase to induce them
to cease their union activities, or not to select a union to
represent them
(c) Interrogating employees about their union activities
or the union activities or sympathies of other of its employ-
ees
(d) Threatening employees with layoff from work, ter-
mination, plant closure, installation of timeclocks, institu-
tion of more onerous working conditions, and subcontract-
ing of work performed by its employees because employees
designate or select a union to represent them in collective
bargaining
(e) Laying off employees from work, discharging them
or failing to reinstate them because of their activities on
behalf of, or to discourage employees from supporting, In-
ternational Longshoremen's and Warehousemen's Union,
Local 17, or any other labor organization
20 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions and Order, and all objections thereto shall be
deemed waived for all purposes
(f) Reducing employees' working hours by denying
them overtime work because of their union activities
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed them by Section 7 of the Act
2 Take the following affirmative action which is neces-
sary to effectuate the policies of the Act
(a) Offer Paul Reynolds, Dennis Farris, Gary Domeni-
ghim, and Dan Chrestensen immediate and full reinstate-
ment to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions without prejudice to
their seniority or other rights and privileges
(b) Make whole Paul Reynolds, Dennis Farris, Gary
Domenighmi, and Dan Chrestensen for any loss of earn-
ings suffered as a result of the discrimination against them
in the manner set forth in the section of this Decision enti-
tled "The Remedy "
(c) Make whole those employees who were denied over-
time at the Westside facility of Respondent at Willows,
California, from on or about June 20, 1975, because of the
union activities of its employees in the manner set forth in
the section of this Decision entitled "The Remedy "
(d) Preserve and, upon 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 neces-
sary to analyze and compute the amounts of backpay due
under the terms of this Order
(e) Post at its Westside and Riz warehouse facilities at
Willows, California, and also at its Williams, California,
facility, copies of the attached notice marked "Appen-
dix " 21 Copies of said notice, on forms provided by the
Regional Director for Region 20, after being duly signed
by an authorized representative of the Respondent, shall
be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material
(f) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith
21 In the event that the Board s Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading "Posted by
Order of the National Labor Relations Board shall read ' Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportunity to
present evidence, the National Labor Relations Board
found that we violated the National Labor Relations Act
and has ordered us to post this notice
RICE GROWERS ASSOC OF CALIF
The Act gives employees the following rights
To organize themselves
To form, join, or help unions
To bargain as a group through representatives
they choose
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any or all of these things
WE WILL NOT threaten employees with discharge if
they talk about the Union during their nonworking
time on the company premises
WE WILL NOT promise employees a wage increase to
induce them to cease their union activities, or not to
select a union to represent them
WE WILL NOT question employees about their union
activities or the union activities or sympathies of other
of our employees
WE WILL NOT threaten employees with layoff from
work, termination, plant closure, installation of time-
clocks, institution of more onerous working condi-
tions, and subcontracting of work performed by our
employees because our employees designate or select a
union to represent them
WE WILL NOT lay off employees from work, discharge
them, or fail to reinstate them because of their activi-
679
ties on behalf of, or in order to discourage employees
from supporting, International Longshoremen's and
Warehousemen's Union, Local 17, or any other labor
organization
WE WILL offer Paul Reynolds, Dennis Farris, Gary
Domenighini, and Dan Chrestensen immediate and
full reinstatement to their formerjobs or, if thosejobs
no longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights and
privileges
WE WILL reimburse Paul Reynolds, Dennis Farris,
Gary Domenighini, and Dan Chrestensen for their
loss of wages suffered as a result of the discrimination
against them, together with 6-percent interest
WE WILL NOT reduce our employees' working hours
by denying them overtime work because of their union
activities
WE WILL reimburse those employees who were de-
nied overtime work at our Westside facility from on or
about June 20, 1975, because of the union activities of
our employees, for their lost wages together with 6-
percent interest
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act
RICE GROWERS ASSOCIATION OF CALIFORNIA