Atlantic Coast Fisheries

National Labor Relations Board - Board DecisionsJun 23, 1970

183 N.L.R.B. 921 (N.L.R.B. 1970)

ATLANTIC COAST FISHERIES Atlantic Coast Fisheries and Sea Food Workers' Union Local 2, Series 1572, International Longshoremen 's Association, AFL-CIO. Case 1-CA-6501' June 23, 1970 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On March 23, 1970, Trial Examiner Herzel H.E. Plaine issued his Decision in the above-entitled matter, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that Respondent had not engaged in certain other unfair labor practices al- leged in the complaint, and recommended that such allegations be dismissed. Thereafter, the Respond- ent and the Charging Party filed exceptions to the Decision and supporting briefs, and the General Counsel filed a brief in support of the Trial Ex- aminer'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 powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner to the extent consistent herewith. We agree with the Trial Examiner that Respond- ent violated Section 8(a)(1) of the Act by creat- ing the impression of surveillance of its employees' union activity; threatening employees with discharge for attending union meetings; and threatening layoff, plant closure, and refusal to bar- gain with the Union if employees chose the Union as their bargaining representative. While we also ' This case had been consolidated for purposes of hearing with Case 1-RC-10,237, in which a consent election had been held and objections thereto were filed by the Union By Order dated March 23, 1970, transfer- ring this case to the Board, Case I-RC-10,237 was severed and remanded to the Regional Director for Region I for further proceedings pursuant to the agreement for consent election 2 Monroe Feed Store, 112 NLRB 1336, 1337, and cases cited therein at fn 2 921 agree with the Trial Examiner that the record establishes that the Employer violated Section 8(a)(1) of the Act by threatening a general layoff just prior to the representation election in order to discourage support for the Union, we find merit to the Respondent's exception to the Trial Examiner's finding that Respondent violated Section 8(a)(1) of the Act by initiating a "sham seasonal layoff" for that unlawful purpose. Specifically, we find, as con- tended by the Respondent, that the question of whether the layoff was a "sham" was neither al- leged in the complaint nor fully litigated. It has long been held that when an issue relating to the subject matter of a complaint is fully litigated at a hearing, the Trial Examiner and the Board are expected to pass upon it even though it is not specifically alleged to be an unfair labor practice in the complaint.' Here the complaint, in paragraph 8(f), charged that on October 23, 1968, Respon- dent, through supervisor Motto, "intimated a seasonal layoff of its employees for the purpose of discouraging their Union activity." There was neither a specific nor a general allegation that the Respondent effected a premature seasonal layoff in order to discourage union activity. Testimony as to the length of the regular season was taken at the hearing, but only incidentally, with regard to the voting eligibility of a part-time employee, Grace Cook, an issue relevant to the representation case which is not before us at this time.' The Trial Examiner relied on the employment records of Grace Cook for 2 years prior to the Oc- tober 23, 1968, layoff in order to determine the length of earlier fishing seasons . However, in the past Respondent continued to employ some person- nel, as fish were available, beyond the regular season, and even if Grace Cook did work beyond October in those years, she might have been "held over." Thus, Grace Cook's payroll records, without more, would not be an adequate gauge of the regu- lar season , even if the sham layoff issue had been raised. Further, there was uncontradicted testimony that there has been a decline in the supply of fish, believed to be the result of fishing operations of the Russian fleet off the coast of Cape Cod and el- sewhere, so that it is possible that the October 23 layoff, even if earlier than usual, was' occasioned by short supply in 1968. In view of all the circum- stances, we do not adopt the Trial Examiner's 3 In order to distinguish Grace Cook, a regular part-time employee, from certain "drifters " whom the Respondent hired each season , the factual question of the length of the season in past years was raised The Trial Ex- aminer asked Supervisor Flores what she considered the employment season to be Flores responded that it depends on the fish , the season lasted approximately May through October She further stated that "If we had fish until December , there would be work until December It is really from June until late October 183 NLRB No. 77 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD determination that the Respondent prematurely laid off employees in violation of Section 8(a)(1). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, At- lantic Coast Fisheries, Provincetown, Mas- sachusetts, its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Ex- aminer's Recommended Order, as modified below: 1. Delete the present paragraph 1(d) of the Trial Examiner's Recommended Order and reletter para- graph 1(e) as 1(d). 2. Delete the present paragraph 2(a) of the Trial Examiner's Recommended Order and reletter para- graphs 2(b) and 2(c) as 2(a) and 2(b), and sub- stitute the following as the first sentence of the paragraph redesignated as 2(a): "Post in its establishment at Provincetown, Massachusetts, and mail to each of its employees copies of the attached notice marked `Appendix' ( using as the mailing list the list of eligible employees of the October 29, 1968, election, with employees Grace Cook and Ralph Fields included)." 3. Delete the fourth and sixth indented para- graphs of the Appendix attached to the Trial Ex- aminer's Decision. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASES HERZEL H.E. PLAINE, Trial Examiner: Case 1-CA-6501 is an unfair labor practice proceeding charging the Respondent with violations of Section 8(a)(1) of the National Labor Relations Act (the Act). The complaint was issued May 14, 1969, on a charge by the Union (the Charging Party) filed with the Board on October 24, 1968. Case 1-RC-10,237 is a representation proceed- ing on a petition filed September 25, 1968, by the Union (the Petitioner, also the Charging Party in Case 1-CA-6501). The Union sought to represent the production and maintenance employees at the Respondent-Employer's plant in Provincetown, Massachusetts, and an agreement for consent elec- tion was executed on October 21, 1968. Along with the charge of October 24 in Case 1-CA-6501, the Union also filed a request to proceed in the representation proceeding. An election was held on October 29, 1968. The result was 16 votes for the Union, 16 votes against the Union, and 3 chal- lenged ballots. On the Union's objections to con- duct affecting the results of the election, filed November 1, the Regional Director reported December 13, 1968, that two of the six objections (Nos. 1 and 4 alleging that the Employer threatened and coerced the employees and other- wise interfered with the exercise of their self-or- ganizational rights, and violated the Board's rules relating to preelection conduct) "involve issues substantially identical with those raised in the char- ge" in Case 1-CA-6501 and needed resolution of credibility issues by hearing;' and that determina- tion of the challenges to the three uncounted bal- lots also depended on credibility findings requiring a hearing. Consequently, on May 14, 1969, the Regional Director issued an order consolidating for trial the unfair labor practice case and the unresolved objec- tions and challenges in the representation case. THE ISSUES 1. The three challenges raised the following questions: (1) Whether employee Vincent Bonaviri had voluntarily quit his job prior to the election and was therefore ineligible to vote , as Respondent-Em- ployer2 contended, or was only away from his job because of illness and was prevented from returning by a general layoff, as the Union contended. (2) Whether employee Grace Cook was a casual employee not eligible to vote , as Respondent con- tended , or a regular part -time employee entitled to vote, as the Union contended. (3) Whether employee Ralph Fields was a super- visor within the meaning of the Act and ineligible to vote , as the Union contended , or a rank-and-file employee entitled to vote, as the Respondent con- tended. II. The questions raised by the complaint and the unresolved objections to conduct affecting the results of the election , and by Respondent's answer generally denying any wrongdoing, were: (1) Whether Respondent in the period following the filing of the representation petition and prior to the holding of the election ( September 25 to Oc- tober 29 , 1968): (1) Threatened to close the plant in reprisal for union organization of the plant; (2) created the impression of surveillance , and engaged in surveillance , of employees' attendance at union meetings ; ( 3) threatened discharge of employees if they attended union meetings ; ( 4) threatened that it would not sign a contract with the Union, and would close the plant rather than sign such a con- tract, to discourage employee support of the Union; (5) intimated, or engaged in, a false seasonal layoff of employees to discourage union activity; (6) ' The Regional Director found the other four objections to be without merit 4 Hereinafter called simply Respondent Bonaviri and Grace Cook were not included on the list of eligible employees prepared by Respondent and hence were challenged, technically by the Board agent but in fact by Respondent ATLANTIC COAST FISHERIES 923 questioned an employee on how she would vote, importuning her to vote against the Union; (7) caused an employee alleged to be engaged in union organizational activity to be removed and warned away from the plant premises by the police; and (2) If committed, whether any of the alleged misconduct interfered with the free choice of the employees in the representation election of Oc- tober 29, 1968. The cases were tried in Provincetown on June 11 and 12 and September 17, 1969.3 Counsel for all three parties have filed briefs. Upon the entire record of the case, including my observation of the witnesses , and after due con- sideration of the briefs, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent Atlantic Coast Fisheries is a Mas- sachusetts corporation with its principal office and place of business in Provincetown, Massachusetts, where it has been engaged in the processing and packing of fish, brought in by fishing boats, and the sale and distribution of the packaged fish. Since 1965, Respondent has been a wholly owned sub- sidiary of Live Fish Company of Pittsburgh, Pennsylvania, but the latter is not a named respond- ent or employer in these cases. Annually, Respondent ships from its Mas- sachusetts plant to points outside Massachusetts packaged fish valued in excess of $50,000. Respondent is engaged, as it admitted at trial, in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is, as Respondent also admitted at tri- al, a labor organization within the meaning of Sec- tion 2(5) of the Act. II. THE STATUS OF THE CHALLENGED EMPLOYEES A. Respondent's Business Operations The description of the plant and operation was provided largely by employees Fields and Bonaviri, by the nonresident office manager and accountant, Mrs. Elizabeth (Betty) Messenger, who spent most of her time as office manager of the parent com- pany in Pittsburgh and some of her time in Province- town, and by the resident office manager and bookkeeper, Mrs. Marguerite Flores. Respondent's plant is a three-story building that backs on the wharf in Provincetown and fronts on 3 The lapse between June and September was caused by the failure of witnesses subpenaed by the General Counsel to attend in June and the necessity to secure their attendance When attendance appeared assured for September a further short extension to September 17 was granted for the convenience of Respondent 4 Provincetown is a small town, at the tip of Cape Cod The town is about 3 miles in length on the very narrow peninsula of land between ocean and bay Because of national parklands on the ocean side, the town area is even narrower than the peninsula , accommodating only two main streets, Com- or faces Commercial Street, one of the two streets of any length in Provincetown.' There is also a small separate office building on the front or Com- mercial Street side of the plant. The plant processes and packs freshly caught fish, mainly whiting, brought to the Provincetown wharf by oceangoing fishing boats. The fishing is seasonal , principally from spring to winter, hence the employment for most of the employees has been seasonal with usually a winter layoff. Accord- ing to Office Manager Messenger, there has been a decline in the supply of whiting believed to be the result of the large-scale fishing operations of the Russian fishing fleet off the coast of Cape Cod and in other Atlantic Ocean fishing beds. The fish catches are brought the short distance from wharf to plant by truck and are hoisted to the third floor, where they are initially processed through a chopper and a scaler (removing heads and scales). The processing is continued on the first floor where the fish are opened by a "butterfly" machine, the bones removed (by three or four peo- ple working at the end of the butterfly machine), and the filleted fish washed. The fillets are then run, on a machine belt, through a cupola, out of which they come frozen, and are then packaged. The packages, five or ten pounds each, are then placed in a large freezer from whence they are loaded into motortruck trailers for shipment. The major packaging has been of frozen fish but there has been some packing of fresh fish, which also takes place on the first floor, where a brine for packing purposes is mixed. The second or middle floor of the plant is ap- parently used only for the 1-pound and 1/2-pound packaging of small whiting which are brought there in tubs. When this operation takes place, the ground- or first-floor crew moves up to the second floor and does the work. When a trailer is being loaded, the third-floor crew comes down to the first floor and participates in the loading. The production employees are entirely unskilled labor, with the possible exception of the operator of the butterfly machine who needs some skill (that apparently has come in this case from the long practice and experience of the operator, Ralph Fields).5 Full crews, according to employee Bonaviri, were about 12 to 15 employees on the third floor and about 10 to 12 employees on the first floor. According to Office Manager Messenger in the busy season there was a total of from 45 to 60 employees engaged in production. Some of these were not regular employees or even part-time employees who returned for work each year, ac- mercial and Bradford , that run approximately parallel the length of the town, about a city block apart, with rows of narrow connecting streets The year-round population of permanent residents is about 2,500 During the summer months , of course, there is a great influx of vacationers and visi- tors The testimony was that all of the permanent residents who worked in Respondent 's plant lived in this closely confined town area. 5 Only two persons were engaged in maintenance , Ernest Irmer , the chief engineer , conceded to be a supervisor within the meaning of the Act, and his assistant 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cording to Resident Office Manager Flores, but were ` drifters" who came in at the height of the summer season for a few days or a few hours' work and rarely came back again. During layoffs, when fish was not being packed, including the major winter layoff, four or five men would be kept on, usually engaged in clean up and maintenance type work. This practice was followed in connection with the last layoff on October 23, 1968 (6 days before the representation election). However operations were not resumed thereafter in the spring or summer of 1969, and had not been resumed at the conclusion of the trial in late Sep- tember 1969. Indeed the production supervisor, Anthony Motto, and the butterfly machine opera- tor, Ralph Fields, who, as in previous layoffs, were among the few carried beyond October 23, 1968, both ceased work on February 22, 1969, when Motto was discharged and Fields laid off, according to Fields. B. Vincent Bonaviri Bonaviri described himself as a "full time," or year-round, resident of Provincetown, who began work for Respondent in the summer of 1965. He was drafted into the armed services in October 1965, returned to civilian life in 1967, and resumed work with Respondent in May 1968. He was a general laborer, who worked primarily on the third floor of the plant but also on the first floor, helping unload fish brought up on the hoist, working on the cutting machine, carrying packaged fish into the freezer, and supplying ice for the freezer. After September 21, 1968, Bonaviri stopped coming in for work, and by the time of the general layoff, October 23, 1968, had not reported back for work, or notified the Employer why he was absent, or that he was coming back. Bonaviri's explanation was that he had developed an arm infection, which he said was gurry poisoning or a blood infection caused by spoiled fish,6 that he was told he had the infection by a Dr. Donald Hiebert of Provincetown, whom he said he saw on October 1 and visited for treatment thereafter every other day for 2 or 3 weeks, that Dr. Hiebert recommended he not go to work until the infection was cleared up, and that he did not go to work after the treatment ended because he assumed he was laid off along with the rest of the employees. Bonaviri testified that it was common knowledge among his fellow employees, including the son of his foreman (Supervisor Motto), all of whom lived in the tight little area comprising Provincetown (see fn. 4, above), that he had the infection and was coming back when it healed. He said he wore a There was no medical evidence offered Webster 's dictionary defines gurry as fishing offal, refuse from cutting up a whale, or a slimy gummy sub- stance scraped off the back of a whale r Bonaviri said he discussed his bandaged hand with Mrs Flores when he came in for his paycheck but did not talk about why he was not working If Bonavari came in for his paycheck in the last week in September, as Mrs bandage wrapped on his hand with guaze and to e as though it held a splint. Additionally, he said, he had not sought or taken work elsewhere. The difficulty with accepting Bonaviri's explana- tion was that it was not corroborated by any em- ployee, several of whom testified, or by any super- visor, or by Dr. Hiebert. Indeed the testimony of others contradicted Bonaviri, and some of his own actions were inconsistent with the explanation. The Employer's record that Bonaviri last worked in the period September 15-21, 1968 (included in Exh. R-1), was not in dispute. The bookkeeper and resident office manager, Mrs. Marguerite Flores (who was not claimed by anyone to be a supervisor within the meaning of the Act), testified that Bonaviri came in for his paycheck for the last period worked around September 25 (Bonaviri thought it might have been Friday, September 27, or Friday, October 4). According to Mrs. Flores, she had observed that the foreman had not listed Bonaviri for any hours of work during the week and asked him if he was working any more, and he said no, he was going to Boston to work. She handed him his check, she said, but there was no talk of in- jury to or infection of his hand and she saw no bandages on his hand. Mrs. Flores, also a town re- sident, said she saw Bonaviri later around town, in September and October, but saw no bandages on his hand. Both she and Bonaviri agreed that he made no report of injury, presented no doctor bill, and made no claim for workmen's compensation, although he testified he needed money and filed a claim for unemployment compensation on November 19 (a claim that was denied by the Mas- sachusetts authorities on the ground that he aban- doned his job without good cause, see Exh. R-1). Mrs. Flores testified she heard about the alleged gurry poisoning for the first time in connection with Bonaviri's claim in November for unemployment compensation .7 Employee Francis Joseph testified that Bonaviri was among the 10 or 12 employees who gathered outside the plant at 5 p.m. on September 25, 1968, to organize a union, but employee Joseph provided no evidence on the state of Bonaviri's health. Chief Engineer Ernest Irmer, also a town resident and a selectman of the town, testified that he saw this gathering of the employees and Bonaviri among them, but saw no bandage on Bonaviri's hand then or ever, and had no knowledge that Bonaviri had gurry poisoning. Bonaviri said he didn't bother to make claim for workmen's compensation because he had had gurry poisoning once before, in 1965, had filed a claim, and had received only $20; hence, it wasn't worth the bother. (There was no documentation or other Flores testified and as he conceded may have been the case, he had to in- vent the discussion with Mrs Flores about the bandage, since , by his own account , he did not begin to get medical advice and treatment until Oc- tober 1 and he did not treat the hand himself On the matter of going to Boston for work , Bonavin admitted to talk that he was going to Boston for work but said he didn 't actually go until January ATLANTIC COAST FISHERIES 925 support on this point.) However, Bonaviri did file for unemployment compensation benefits on November 19, 1968, because, he said, he needed some income, everybody at the plant had been laid off (October 23), and he assumed he would have been laid off too. He hadn't bothered to go back to the plant, he said, because if there had been work the plant would have notified him, and there was no sense in going back since there was no work. On December 6, 1968, the unemployment compensation claim was initially denied by the Massachusetts Division of Employment Security holding that Bonaviri left his job voluntarily without good cause , because he had failed to notify the Employer that he was ab- sent due to illness and had failed to notify the Em- ployer when he was able to return to work. On an appeal to the agency taken by Bonaviri (that resulted in a hearing on January 3, 1969, in which he participated but the Employer did not), the determination that he had abandoned his job was affirmed on January 8, 1969. Exhibit R-1. This decision, affirming the denial of the claim, noted also the absence of any medical evidence to substantiate Bonaviri's assertion that he had developed a hand infection that prevented him from working. At trial before me, Bonaviri produced what purported to be a medical bill that he had not produced at the unemployment com- pensation hearing. It was for $72 from Dr. Hiebert of Provincetown for medical services rendered Bonaviri in the period October 1 through October 12, 1968 (Exh. Charging Party-1). The bill in- dicated an infection of the right wrist with cellulitis (a subcutaneous inflammation of the connective tis- sue) and enlarged gland of the arm and axilla (arm- pit), and treatment by incision and drainage of the wrist, and by injections, involving in all eight office visits , the first on October 1 the last on October 12. This was the one and only "report" he had to sub- stantiate his claim of illness , said Bonaviri, yet, though it was dated November 13, 1968, and his claim of illness was in issue , he did not offer the bill at any stage of his claim for unemployment com- pensation filed November 19, in particular at the hearing of January 3, 1969.8 There was no explanation for the absence of, or inability to obtain, any evidence from Dr. Hiebert on the alleged illness , or any evidence supporting the authenticity of the bill. Taking into account the lack of any shred of live or other written corrobora- tion of the alleged illness and bill, the damaging testimony of two employees and fellow townspeo- ple of this small community suggesting that there was no illness , and the previous Tailure to produce the alleged bill in the unemployment compensation proceedings on at least two occasions when the fact of illness was under question, I am of the opinion that the alleged bill is of doubtful authenticity and of no value in establishing or corroborating Bonaviri's claim that he was kept away from his former job with Respondent by a disabling illness.9 Conclusion: In my view, the evidence has established that Bonaviri voluntarily quit his job with Respondent in or at the close of the week end- ing September 21, 1968, and that he was not an employee eligible to vote in the representation elec- tion of October 29, 1968. I recommend that the challenge to his ballot be sustained and that the bal- lot should not be opened or counted. C. Grace Cook Grace Cook is a year-round resident of Province- town who, for the past 6 or 7 years, has worked as a chambermaid in Provincetown resorts from spring to the end of the resort closedown in Oc- tober, and has then worked in Respondent's plant from October until Respondent's winter closedown. Her work for Respondent, coming at the end of Respondent 's season , was not usually full weeks' work. She came in each year, when her cham- bermaid's job ended, reported to the plant super- visor (Motto in 1968, she said) and, without filing any new papers or application, worked as work was available, until the winter layoff. She received the same rate of pay as others in her classification, and claimed and was paid unemployment compensation each year after the winter layoff. Thus, as indicated by her testimony and the payroll records produced by Respondent for calendar 1967 and 1968, Grace Cook had closed out the 1966 season with work in 5 weeks of early 1967 (the starting time in 1966 was not shown), had resumed for the 1967 season in the week ending September 30 and continued in the successive weeks of the 1967 season to the week ending January 13, 1968; and resumed again for the 1968 season in the week ending October 5, 1968.10 Cook worked in the week preceding the layoff of October 23, 1968, i.e., the week ending October 19, but not in the prior week ending Oc- tober 12, which was the payroll week accepted by the parties as the basis for Respondent preparing the eligibility list for the representation election, ac- cording to Office Manager Messenger, and the eligibility week stated in the notice of election. 6 Bonavin suggested that the bill was incomplete and did not show visits to the doctor later than October 12, but he provided no suggestion of what those dates were or why he did not get a corrected bill 8 Even if the alleged medical bill were accepted at face value, there has been no satisfactory explanation for Bonaviri not reporting to work between September 21 (the end of the week in which he last worked) and October I (when he was supposedly first examined by the doctor), or between October 12 (the last day of the alleged visits to the doctor that is shown on the bill) and October 23 (the day of the plant layoff), other than the explanation testified to by Mrs Flores, that Bonavin said he was going to Boston to work Counsel for the Union pointed to the testimony by Mrs Flores and Bonaviri that it was not unusual for regular employees to take occasional time off without calling in and without penalty for not reporting, but Mrs Flores testified that this habit had not extended to taking off several weeks and not calling in or reporting 10 The payroll record also shows 2 weeks at the end of April 1968 in which she worked This would indicate that Respondent 's startup of the plant for the 1968 season was at a time before Cook's chambermaid work season began , so that she had time to come into the plant before starting her summer resort work in 1968 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It became apparent at the trial that Mrs. Mes- senger omitted Grace Cook's name from the eligi- bility list because Cook's name did not show up in the payroll of the week ending October 12 and not because Respondent started out with doubts of her employee status. Mrs. Messenger testified that there were a few other women who, like Grace Cook, worked "a limited number of hours" and who were on the eligibility list and permitted to vote. Mrs. Messenger named Mary Perkins specifi- cally,[' who was on the payroll for the week ending October 12. But Mrs. Messenger didn't know and wasn't aware of Grace Cook (and Grace Cook didn't know her) until about October 23 when Cook came into the office to pick up her paycheck for the week ending October 19. She got her check from Mrs.Messenger (who was in the office for that week preceding the election) and asked if there was going to be an election. Mrs. Messenger told Cook yes, and the date, but, looking at the list on her desk from the payroll of the week ending October 12, also told Cook that she couldn't vote because her name was not on the eligibility list. The eligibili- t list had been filed with the Board's Regional Of- fice on October 18, 5 days earlier. When it became apparent at the trial that Respondent had not opposed but had included on the voting eligibility list other regular part-time ein- ployees, such as Mary Perkins, as an afterthought Office Manager Messenger suggested she should have challenged Perkins but did not. Conclusion: The so-called regular "full time" em- ployees of Respondent were for the most part only seasonal employees. In addition it was evident that Respondent needed and used a small group of regu- lar part-time employees, such as the women like Grace Cook, who made their livelihood by combin- ing summer hotel or other work with fall and early winter employment by Respondent. Grace Cook and the other women in this category were not among the summertime "drifters' who came through Provincetown and off the street for a few hours or days' employment at the peak of the fish- ing season, but were year-round town residents who presented themselves to and were employed by Respondent each year after their summer jobs ended. As in case of the regular "full time" em- ployees the days and hours of work for the regular part-time employees fluctuated with the availability of fish to be processed and packed except that the fluctuations for the part-time employees were greater overall, since these employees worked mainly in the waning days op each season. Nevertheless the regular part-timers shared a com- munity of interest in the working conditions with the other regular employees of the plant. Fresno Auto Auction, Inc., 167 NLRB 878 (1967); Midway Clover Farm Market, Inc., 175 NLRB 1038 (1969); The Joclin Manufacturing Company , 144 NLRB 778, 780 , 781-782( 1963). In my view employee Grace Cook was an em- ployee eligible to vote in the representation elec- tion . I recommend that the challenge to her ballot be overruled and that the ballot be opened and counted. D. Ralph Fields Ralph Fields worked for Respondent for approxi- mately 27 years. By his own description he was a fish handler or common laborer with authority over no one. He disclaimed any supervisory capacity or powers. According to Office Manager Messenger, Fields was the most experienced employee on the ground floor of the plant where he performed his principal duties. The testimony of Fields and of the resident office manager, Mrs. Flores, was that Fields was the operator of the butterfly machine, that when it was not in operation he carried and marked or sten- cilled cartons for the packing of fish, packed fish, worked in and out of the freezer, mixed the brine for the packing of fresh (as distinct from frozen) fish, helped loading trailers, helped unloading boats at the wharf, and, in those winters when he was kept on the payroll, did maintenance work. His pay was the regular hourly wage of $1.75 per hour paid the other employees, except that for those hours spent on the butterfly machine he was paid $2 per hour. If he worked overtime he was paid time and a half as were other employees who worked over- time. Former employee Bonaviri provided the only testimony suggesting that Fields had supervisory duties and was in charge of the ground or first floor of the plant. Bonaviri stated that Fields organized what the people did on the first floor, that he in- structed new people on the job, that he told em- ployees when to go off and when to report back for lunch and coffeebreaks and whether they might go home early. Bonaviri further testified that Super- visor Motto (admittedly a supervisor within the meaning of the Act) spent most of his time on the third floor, occasionally would be on the second floor whenever the ground-floor crew moved up to the second floor for the small packaging, but rarely came down to the first floor and then only to walk around for 5 minutes or less to see if everything was all right. If Motto had problems, he would talk to Fields, said Bonaviri. The problem with crediting Bonaviri's testimony on this subject was not only his apparent unrelia- bility as a witness , as indicated by the testimony on his own behalf covered under heading II, B, above, but also the fact, admitted by him, that he spent his principal time on the third floor and only a minor " Grace Cook also named a Mary Bents as one who had a summer cham - part of his time on the first floor, where Fields bermaid job, worked for Respondent about the same time as Cook, and spent most of his time , and that a large part of voted without challenge Bonaviri's first-floor time was spent in the freezer. ATLANTIC COAST FISHERIES Indeed Fields testified that he saw Bonaviri on the first floor only a few times and Fields contradicted most of what Bonaviri had to say about Fields' status and functions. According to Fields when he operated the but- terfly machine, with 120 fish going through it per minute , he could not take his eye off the machine and had no time to look around at what was going on in the shop. He said he was experienced on the machine and that Supervisor Motto could rely upon him to operate it properly, but could not rely upon him to keep an eye on the other employees when he worked the machine. Occasionally said Fields, he took the telephone calls that came from Super- visor Motto from the third floor, but more often they were taken by the employee who worked nearest the telephone, employee Pearl Camera, who relayed the messages to the employees con- cerned, such as the men in charge of the hoppers into which the fish were coming down from the third floor. Fields said he never took the telephone calls when he worked on the butterfly machine, else the work on the first floor would have come to a halt. Employee Camera also informed the em- ployees of Motto's directions on how long they were to work on the given day, and she informed Fields of Motto's directions on how long to operate the butterfly machine. Contrary to Bonaviri's testimony, Fields testified that Motto came down frequently to the first floor, and divided his time fairly evenly between the third and first floors . While Fields fed the butterfly machine, he said , Motto did not talk to him since he, Fields was unable to take his eyes off the machine while it was in operation. According to Fields, Supervisor Motto was in charge of the two working floors (floor one was not in operation when floor two was being used) and did not have to run up and down between floors to see that things were running well, that Motto's ob- servations as he moved about from third floor to first floor kept him informed, and that when a trailer was being loaded everybody, including Mot- to, came down to the first floor to participate in the loading and were directly under Motto's observa- tion. Fields testified that when he was not operating the butterfly machine he took physical part in, but did not oversee, the packaging operation (which was also done principally on the first floor). Bonaviri's testimony supported this assertion. In fact Bonaviri named an employee Morton as the one in charge of the packaging. Fields denied having any function in the hiring or firing of employees or in the assignment of work or training of new people, testifying that Supervisor Motto made the assignment and that new em- ployees were shown the simple tasks required by the persons already at their locations. Conclusion: In the face of the testimony which clearly suggests that Ralph Fields was a rank-and- file employee, counsel for the Union has advanced 927 the argument that a failure to find that employee Fields was a supervisor would mean accepting as true the incredible condition, and disproportionate ratio , of one 65-year -old supervisor ( Motto ) for ap- proximately 50 employees , spread through three floors and a loading dock. As already indicated , this was not the condition or ratio . Bonaviri 's testimony was that full crews were about 12 to 15 employees on the third floor and 10 to 12 employees on the first floor ( the num- bers were temporarily higher at summertime peak, according to Office Manager Messenger), and only two floors were used at any one time in a fairly sim- ple, unified operation requiring only manual labor and one skilled operator for the butterfly machine. Fields testified without contradiction , that when the loading dock was in use , all production employees participated in the loading under direct supervision of Supervisor Motto. Fields ' description of Supervisor Motto's coverage of the two operating floors did not in- dicate anything unusual or incredible about such supervision for this type of operation . The fact that new employees , including casual employees, could and did perform without any training is further in- dicative of the simplicity ofthe operation and the relatively small demand , per individual employee, upon supervision. Moreover , it was Bonaviri 's testimony that em- ployee Morton ( and not Fields) was in charge of the major ppackaging , which took place on the first floor . Fields agreed that he was not in charge, and testified that he took a physical part in the packag- ing when he was not operating the butterfly machine. The total testimony established that Fields was an employee who engaged in operating the butterfly machine and in other manual labor in and about the plant for 100 percent of his time, and that he was not a supervisor in any sense including within the meaning of the Act. His employment continued to and beyond the holding of the representation election of October 29, 1968. I recommend that the challenge to his ballot be overruled and that his ballot be opened and counted. III. THE UNFAIR LABOR PRACTICE A. Alleged Interrogation, Surveillance, Threats of Layoff and Plant Closure According to John Donegan, Jr., president and business agent of the Union, the campaign to or- ganize Respondent 's employees began in July 1968. On the day the Union filed the petition for a representation election, September 25, 1968, at or about 5 p.m., approximately 10 or 12 of the em- ployees met with a union representative outside the plant, on Commercial Street, in full view of Super- visor Motto's office on the third floor. On this occa- sion a number of the employees signed union 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authorization cards, according to employee Francis Joseph , who said he saw Supervisor Motto watching the meeting from his office window. Employee Joseph testified that earlier that day, about midday , a number of the employees had met in the same place and arranged with the union representative for the 5 o 'clock meeting. Also about midday, employee Joseph was accosted on the third floor of the plant by Supervisor Motto (known also as Mucka), who said he understood there was a union meeting to be held that night. Employee Joseph said he didn 't know , he hadn't heard , whereupon , according to Joseph , Supervisor Motto said , "If I was you , I wouldn 't go. They want to get rid of you . I am the only one who is holding onto you. If you go , I don't know what will happen." Employee Joseph also testified , on cross-ex- amination , that he had been warned by Supervisor Motto not to discuss union business in the plant. Supervisor Motto did not testify , and employee Francis Joseph 's testimony was not contradicted. I credit his testimony. A few days thereafter employee George Joseph, Jr., who had signed a union authorization card, was engaged in conversation with Supervisor Motto. Motto, according to George Joseph , said the "guys are going to get a big suprise if the Union gets in. If the l pion gets in they are going to lay you off." Employee George Joseph had to have his recol- lection refreshed , by a reading of a statement given by him some time prior to trial to a Board investiga- tor, in order to recall quoted language ; neverthe- less, once his recollection was refreshed, he was clear that Motto had told him this . Supervisor Motto did not testify , and employee George Joseph 's testimony was uncontradicted . I credit his testimony. Union President Donegan testified that on Oc- tober 7, 1968, at an informal conference on the Union 's representation petition , held at the Board's Regional Office in Boston , Management Consultant Jason , conceded to be an agent of Respondent and representing Respondent at the conference, told the two union representatives (the witness Donegan was one of them) and their lawyer, Flamm, in the presence of employees Virginia Perkins , Francis Joseph , Howie Adams, and George Joseph , Sr., that he, Jason would "just go back and close the plant." Upon being admonished by the Board representa- tive present to refrain from such talk, Jason replied "I'm an old dog at this business so don't tell me how to run it . I'll see that the plant is closed." Respondent 's counsel , in his brief, argued that if these statements were made they were testified to out of context by witness Donegan. However, at trial neither Jason nor the other representative of Respondent , who had accom- panied Jason to the conference , took the stand to either refute the statements or to explain the con- text or circumstances in which the statements were made any differently than Donegan had . I credit Donegan's testimony. On October 23, 1968, according to employee Francis Joseph, when he went to the office to pick up his check, Supervisor Motto told him that "everybody is laid off" except four or five employees to clean freezers and do other cleanup work. This was 6 days before the representation election. In the late afternoon of the same day employee Francis Joseph saw Office Manager Messenger out- side her office and introduced himself. According to employee Joseph he said to Mrs. Messenger he was for the Union, to get a living wage and better conditions, and she told him the Union was not going to win but if it won Bernie (Benkowitz, pre- sident of the company) was not going to recognize it and might close the plant before he would recog- nize it. Employee Joseph told her of a union meet- ing that was to be held and invited her to come, but she said she could not attend. Mrs. Messenger agreed that employee Joseph ac- costed her outside her office and invited her to a union meeting, to talk to the employees she said, but denied saying that President Benkowitz would not recognize the Union or would close the plant. Mrs. Messenger testified that she laughed at the in- vitation to the union meeting and said, "you can't be serious," because she thought employee Joseph smelled of alcohol; but the circumstances also sug- gest she was amused that in the face of her clearly expressed opposition she should be invited to the union meeting . She conceded she was opposed to the Union, and she was concerned with the out- come, because she had made this second visit and second week's stay in Provincetown in the month of October (which covered the preelection and elec- tion days), whereas normally she came in from Pittsburgh only, once per month for an approximate week's stay. As already noted, talk by management representatives of shutdown and layoff in opposing the Union was already in the air and in my view of the evidence Office Manager Messenger was a con- tributor in this instance. I credit employee Francis Joseph's testimony. Employee Grace Cook also came to the plant on October 23 to get her paycheck, as related under heading II,C, above, and got her check from Office Manager Messenger. Neither woman knew the other before then. According to employee Cook, Mrs. Messenger asked her if she was for the Union and when Cook said she didn't know, Mrs. Mes- senger allegedly asked Cook if she would come to the office on the day of the voting, "to vote against the Union because the Company couldn't afford it." Mrs. Messenger's testimony was quite different. She said that after employee Cook identified herself and got her paycheck, she asked if there was going to be an election. Mrs. Messenger said she told Cook yes, and the date, but, looking at the eligibili- ty list on her desk, from the payroll of the week ending October 12, also told Cook that she could not vote because her name was not on the eligibility ATLANTIC COAST FISHERIES 929 list. The week ending October 12 was the agreed period for determining eligibility, and was so specified in the Board notice of election that had been mailed or delivered to Respondent on Oc- tober 21. Employee Cook had not worked in the week ending October 12, and her name was not among the list of eligible voters supplied by Respondent and received at the Board's Regional Office on October 18. However Cook had worked in the week preceding the eligibility week, the week ending October 5, and in the week following Oc- tober 12, the week ending October 19; but Mrs. Messenger didn't know Grace Cook or become aware of her until they met on October 23. In the direct conflict of testimony between em- ployee Cook and Office Manager Messenger, while I have already recognized Mrs. Messengers interest in the defeat of the Union, the circumstances of the encounter suggest it was improbable that she would question a person she regarded as ineligible to vote about the person's views on the Union and impor- tune the person to vote (particularly after getting the evasive answer, if the question was asked and answered as claimed). I do not credit employee Cook's account of the encounter. The representation election was scheduled for, and held, beginning at 1 p.m. on October 29, 1968. Just before noon, Office Manager Messenger left her office for a nearby restaurant and was followed into the restaurant by employee Howie Adams. He came directly to her table, and demanded access to the plant claiming he was a union official. His angry manner , and his leaning over her with a knife hang- ing from his belt, frightened Mrs. Messenger, she said. She returned to the plant, apparently followed by Adams, and asked Chief Engineer Irmer to get the police. Irmer called the police asking them, he said, to restrain Adams from coming on the proper- ty because he had followed Mrs. Messenger, was wearing a knife, and she was afraid of him. A police officer removed Adams from the premises, said Irmer, but apparently Adams was permitted to come back at voting time, according to Mrs. Mes- senger , and presumably voted. Adams did not testi- fy and there was no testimony by any one else con- cerning his conduct on October 29. According to Mrs. Messenger, employee Adams had no need to wear or to use a knife in his work. Those men required to cut fish used machines and large cutting knives kept in the plant. Adams had been reprimanded on a previous occasion by Super- visor Motto, and warned to dispense with wearing a knife, because he had threatened another em- ployee. Apparently Adams had complied because, said Mrs. Messenger , she saw him wearing the knife for the first time in the restaurant. I credit her testimony concerning the Adams matter. representation petition to the holding of the elec- tion (September 25-October 29, 1968 ), Respond- ent, through Supervisor Motto, Agent Jason, and Office Manager Messenger , threatened substantial reprisals against the employees if they supported and voted for the Union as their bargaining representative , in violation of Section 8(a)(1) of the Act. Employee Francis Joseph was threatened with discharge by Supervisor Motto, on September 25, if Joseph persisted in attending union meetings. In this connection Supervisor Motto further interfered with employee rights under Section 7 of the Act, by indicating his awareness to employee Joseph of the union meeting or meetings and creating the impres- sion that the employees' union activities were under surveillance. 12 Supervisor Motto also threatened , several days after September 25, in his conversation with em- ployee George Joseph , Jr., that there would be a general layoff if the Union came into the plant. Agent Jason , in discussing the representation petition , threatened on October 7, in the presence of four employees and three union representatives, to see that the plant would be closed . N.L.R.B. v. Gissel Packing Company , Inc., 395 U . S. 575, 618-620 (1969); N. L.R.B. v . Milco, Inc., 388 F.2d 133, 136-137 (C.A. 2, 1968). Sixteen days later, and six days before the elec- tion, on October 23 , the plant operation was shut down by a general layoff in which only a few em- ployees were retained to do the necessary plant cleanup attendant on a shutdown . Respondent made no announcement or explanation to its em- ployees and , at trial , provided no evidence or ex- planation concerning its occurrence, nature , cause, or contemplated duration . The only evidence came from two employees , Francis Joseph and Ralph Fields. Employee Francis Joseph was informed by Su- pervisor Motto on October 23 that all employees were laid off except four or five to do the cleanup. Employee Fields testified that he and Supervisor Motto were among- the few employees retained after October 23, but that Motto was discharged and he , Fields , laid off in February 1969, that operations were not resumed in the spring or summer of 1969, and that the closedown had con- tinued since October 23, 1968. The complaint, paragraph 8(f), charged that on October 23 , 1968, Respondent, through Supervisor Motto , " intimated a seasonal layoff of its em- ployees for the purpose of discouraging their Union activity ." The payroll records ( Res. Exh . R-2 for Grace Cook ) indicated that the 1966 season went well into early 1967, and that the 1967 season went to at least January 1968. Hence it cannot be as- B. Conclusions Re Section 8(a)(1) The foregoing summary of the evidence establishes that, in the period from the filing of the " 1 do not regard the alleged observance by Supervisor Motto from his office window of the union meeting held on the street as a violation Motto was obviously where he had a right to be and the employees and union representative took the chance of being observed 930 DECISIONS OF NATIONAL sumed that the closedown on October 23, 1968, was actually occasioned by seasonal necessity. With the layoff effectuated 6 days before the representa- tion election, on the heels of the threats to close the plant and to layoff the employees, and on the same day that Office Manager Messenger told employee Francis Joseph (also in violation of the Act) that if the Union won Respondent would close rather than recognize it, the burden of explanation of the layoff shifted to the Respondent, N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 33-34 (1967). Absent explanation, the general layoff of October 23, 1968, would appear to have been a further act of intimidation by Respondent to discourage the em- ployees from supporting the Union in the then forthcoming election of October 29, in violation of Section 8(a)(1) of the Act.13 The evidence did not sustain a finding that Respondent interrogated employee Grace Cook on how she intended to vote in the representation elec- tion (paragraph 8(e) of the complaint), nor a find- ing that Respondent wrongfully excluded employee Howie Adams from its property (paragraph 8(g) of the complaint). Accordingly, paragraphs 8(e) and (g) of the complaint should be dismissed. C. Objections to Conduct Affecting the Election The substantial violations of Section 8(a)(1) of the Act, committed by Respondent between the fil- ing of the petition for a representation election and the holding of the election, destroyed the "labora- tory conditions," Neuhoff Brothers Packers, Inc. v. N.L.R.B., 362 F.2d 611, 613 (C.A. 5, 1966), desirable for the conduct of a Board election, and interfered with the free choice of the employees. Indeed, "conduct violative of Section 8(a)(1) is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election ... because the test of conduct which may interfere with the `laboratory conditions' for an election is considerably more restrictive than the conduct which amounts to interference, restraint, or coer- cion which violates Section 8(a)(1)." Dal-Tex Opti- cal Company, Inc., 137 NLRB 1782, 1786-87 (1962); Pace, Inc., 167 NLRB 1089 (1967), and cases cited therein. A fortiori, the Union has established its Objec- tions 1 and 4 to the conduct of Respondent affect- ing the results of the election. Accordingly, if on the revised tally of the ballots the Union has not received a majority of the valid ballots cast in the election, I recommend that the election be set aside and, upon the Union's request, that a new election be held, after severance of Case 1-RC-10,237 from the consolidated proceeding. Wendling Printing Company, 177 NLRB 544 (1969). "The complaint did not charge any violation of Section 8(a)(3) of the Act, as it well might have , in this instance LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. By creating the impression of surveillance of its employees' union activity, by threatening em- ployees with discharge for attendin g union meetings and with layoff, plant closure, and refusal to bar- gain with the Union, if employees chose the Union as their bargaining representative, and by initiating a sham seasonal layoff just prior to the representa- tion election in order to discourage employee sup- port of the Union, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 3. Paragraph 8(e) of the complaint, alleging that Respondent unlawfully interrogated employees on how they intended to vote at the Board-conducted representation election, and paragraph 8(g) of the complaint, alleging that Respondent caused an em- ployee to be wrongfully excluded from its property to discourage union activity, are dismissed for in- sufficiency of evidence. 4. Grace Cook and Ralph Fields were employees of Respondent entitled to vote in the representation election of October 29, 1968, and to have their bal- lots counted. Vincent Bonaviri had been an em- ployee of Respondent who quit his job in or at the close of the week ending September 21, 1968, and was not an employee eligible to vote in the representation election of October 29, 1968, or en- titled to have his ballot counted. 5. The unfair labor practices of the Respondent committed in the period between the filing of the representation petition and the holding of the elec- tion interfered with the free choice of the em- ployees, and warrants setting aside the election, if the Union has not received a ma ority on the revised tally of the ballots, and the holding of a new election if the Union requests it. THE REMEDY I shall recommend that Respondent cease and desist from its unfair labor practices, and not only post but mail to each employee a copy of the notice provided for herein, since the employees continue to be in "layoff" status. As a roster of employees, for mailing and other purposes specified herein, Respondent shall use the voting eligibility list of the October 29, 1968, election as modified by this deci- sion. I shall also recommend that upon resumption of plant operations Respondent shall notify each of the employees on the roster and reinstate each of them who applies to his former or similar job, giv- ing priority to employees on the roster who apply over new employees, and subject to Respondent making whole for any resulting loss of earnings any applying employee who is refused reinstatement within 5 days after his application. Any such loss of ATLANTIC COAST FISHERIES earnings shall be computed on a quarterly basis with interest at 6 percent per annum, in accordance with established Board practice. Summarizing what I have already said regarding the representation case, I recommend, after severance of the representation case from the con- solidated proceeding, that the Regional Director revise the tally of the ballots, after opening and counting the ballots of employees Grace Cook and Ralph Fields, and discarding the ballot of ineligible former employee Vincent Bonaviri; and, because the preelection misconduct of Respondent inter- fered with a free choice by the employees in the election, if the revised tally does not give the Union a majority of the valid ballots cast in the election, I further recommend that the Regional Director set aside the election and cause another election to be conducted, upon application of the Union. RECOMMENDED ORDER Upon the basis of the foregoing findings and con- clusions, and upon the entire record, I recommend that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Creating the impression that the union ac- tivity of the employees is under the Employer's sur- veillance. (b) Threatening employees with discharge or other reprisal if they attend union meetings. (c) Threatening employees that they will be laid off, or that the plant will be closed, or that the Em- ployer will not recognize and bargain with the Union, if the employees choose the Union as their collective-bargaining representative. (d) Initiating and continuing a sham seasonal layoff of the employees to discourage their choos- ing and supporting the Union as their collective- bargaining representative. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act: (a) Upon resumption of plant operations, notify each of the employees ( using as a roster the list of eligible employees of the October 29, 1968, elec- tion, with employees Grace Cook and Ralph Fields included), and reinstate each of them, who applies, to his former or similar job, giving priority to em- ployees on the roster befoie hiring replacements. Make whole each such applying employee for any loss of earnings, if Respondent should refuse to reinstate him, so long as the refusal continues, beginning 5 days after the employee applied for reinstatement and computing the loss of earnings in the manner set out in the section of this decision entitled "The Remedy." Preserve and make availa- ble to the Board or its agents any records necessary 931 to effectuate the provisions of this paragraph of the order. (b) Post in its establishment at Provincetown, Massachusetts, and mail to each of its employees, copies of the attached notice marked "Appendix"" (using as mailing list the roster of employees pro- vided for in paragraph 2(a), above). Immediately upon receipt of copies of said notice, on forms to be provided by the Regional Director for Region 1 (Boston , Massachusetts), Respondent shall cause the copies to be signed by one of its authorized representatives and mailed to its employees and posted. The posted copies shall be maintained for a period of 60 consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted if the plant and offices are open and accessible to the em- ployees, and if not open and accessible to the em- ployees, then on the exteriors of the plant and of- fice doors. Reasonable steps shall be taken by Respondent to insure that the posted notices are firmly secured, and are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply therewith.' 11 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations, and Recommended Order herein shall, as provided in Section 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 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 Na- tional Labor Relations Board " shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 1S In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing , within 10 days from the date of this Order , what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all sides had the opportunity to present their evidence the National Labor Rela- tions Board has found that we violated the Act, and has told us to post this notice and to keep our word about what we say in this notice. WE WILL NOT watch or give you the impres- sion we are watching your union activities. WE WILL NOT threaten to fire you or other- wise punish you because you attend union meetings. 427-258 O-LT - 74 - 60 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT threaten to lay you off, or to close the plant , or to refuse to recognize and bargain with the Union, if you choose the Union to represent you as your bargaining agent. WE WILL NOT initiate or continue a pre- tended seasonal layoff to discourage you from choosing and supporting the Union as your bargaining agent. WE WILL NOT in any manner interfere with your right to join, vote for, or be represented by a labor union. WE WILL, upon resuming plant operations, notify each of you and offer back to each who applies his old or similar job, giving you preference before hiring replacements. If we should fail to reinstate an applying employee within 5 days after his application WE WILL pay him for any resulting loss of earnings suffered by him. You are free to become or remain, or to refrain from becoming or remaining, members of Sea Food Workers' Union Local 2, Series 1572, International Longshoremen 's Association , AFL-CIO, or any other labor union. ATLANTIC COAST FISHERIES (Employer) Dated By (Representative) (Ti itle) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 20th Floor, John F. Kennedy Federal Building, Cambridge and New Sudbury Streets, Boston, Massachusetts, Telephone 223-3300.