Maine Apple Growers

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 501 (N.L.R.B. 1981)

MAINE APPLE GROWERS
Maine Apple Growers, Inc. and Truck Drivers,
Warehousemen & Helpers Union Local No.
340, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Help-
ers of America. Cases 1-CA-16832 and 1-RC-
16604
January 14, 1981
DECISION, ORDER, AND DIRECTION
BY MEMBERS JENKINS, PENELI.O, AND
TRUESDALE
On September 30, 1980, Administrative Law
Judge George F. McInerny issued the attached De-
cision and Report on Challenges and Objections in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed a brief in answer to the General
Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision and Report on Challenges and Ob-
jections in light of the exceptions and briefs and
has decided to affirm the rulings, findings, and con-
clusions of the Administrative Law Judge only to
the extent consistent herewith.
1. The Administrative Law Judge found that Re-
spondent delayed recall of Jean Sylvester, Lorraine
Litchfield, Roberta McAllister, Kelly McAllister,
and Arlene Bennett on October 4, 1979, for legiti-
mate business reasons. The General Counsel has ex-
cepted to this finding, claiming that Respondent
failed to recall the employees in retaliation for their
participation in protected concerted activity. We
find merit in this exception.
The record establishes that when Respondent
opened for the season on September 10, 1979,1 the
packing department employees approached Ivan
Smith, Respondent's manager, and, through their
spokesperson, Jean Sylvester, asked Smith for a
raise. Smith denied the request, and the employees
returned to work, but Smith testified that the inci-
dent had upset him and that he thereafter detected
hostility among the employees.
Shortly after the meeting with Smith, the pack-
ing department employees delegated two of their
number to approach Kenneth Cooper, a member of
Respondent's board of directors, concerning their
grievances. When these informal overtures failed to
produce a satisfactory response, 14 of the employ-
ees drafted and signed a letter of grievances, which
they sent to the board of directors through Re-
All dates are in 1979 unless otherwise indicated
spondent's president, Leslie Boothby. Boothby re-
ceived the letter on October 1. On October 2, on a
regular visit to Respondent's facility, Boothby
showed the letter to Smith and Cooper. Smith
asked to be permitted to handle the matter himself,
but Boothby and Cooper agreed that since the
letter was addressed to the board of directors, the
board should consider it at the next regular meet-
ing to be held the following week. Smith testified
that he was upset by the directors' decision.
Prior to the meeting with Boothby and Cooper
on October 1, Smith had laid off all the packers.
The Administrative Law Judge found, and we
agree, that short layoffs were commonly ordered at
this time of year in response to decreased demand
for packaged apples. On October 3, because an
order had been placed by Respondent's broker for
apples not yet packed, Smith recalled four senior
employees whom he considered to require minimal
supervision. On October 4, Smith recalled the re-
maining laid-off employees, regardless of seniority
status, except for Sylvester, Bennett, Litchfield,
and the McAllisters.
On October 4, the employees who had not been
recalled met with Smith in his office and demanded
to know why they were still on layoff status when
less senior employees were working. The testimony
regarding this confrontation was at times vague
and conflicting, but it is clear that the discussion
was heated, that Smith addressed most of his com-
ments to the group as a whole, and that he in-
formed them that the "agitation" must cease if the
employees expected to retain their jobs.
After the October 4 meeting, during the same
afternoon, the employees spoke to Smith individ-
ually, either at his office or by telephone, and all
returned to work on October 5 except Sylvester,
who, by her own choice, returned to work on Oc-
tober 8.
In presenting a prima facie case of wrongful
motive in Respondent's delay in recalling the five
employees, the General Counsel demonstrated that
all the employees had, to Respondent's knowledge,
participated in the demand for a wage increase and
that one of them, Sylvester, had been spokesperson
for the group. The General Counsel also demon-
strated that each employee had signed the griev-
ance letter addressed to the board of directors and
that Smith had seen the letter on October 2, the
day before he recalled the first group of laid-off
employees.
Moreover, Smith himself testified that he had
been "very upset" both by the wage demand and
the fact that the employees had confronted him as
a group in making the demand and by the decision
of Boothby and Cooper not to allow him to re-
254 NLRB No. 60
501
DECISIONS OF NA IONAL LABOR RELATIONS BOARD
solve the grievances contained in the letter. 2 Smith
admitted telling the employees that their "agitating
talk" was the reason they had not been recalled.
The General Counsel contends, and we agree, that
Respondent delayed recall of these employees in
order to punish them for engaging in protected ac-
tivity.
Respondent maintains, however, that it failed to
recall the five employees because they were pri-
marily responsible for low productivity in the
packing department and that the delayed recall was
therefore based on legitimate business concerns.
Smith testified that three employees-Litchfield,
Sylvester, and Roberta McAllister-talked so much
on the packing line that neither they nor the em-
ployees who stopped work to listen to them were
able to meet an acceptable level of production. 3
Contrary to the Administrative Law Judge, we
find that Respondent's asserted business justifica-
tion for the delayed recall has not been substantiat-
ed. Smith testified that production had been low
for some time, but that he had never spoken to the
employees about production levels because even
with low productivity the employees were packing
more apples than were being sold. When demand
increased, Smith did not inform the employees that
production must increase, nor did he ever establish
packaging quotas.
Moreover, Smith testified that he had never
maintained or enforced a no-talking rule in the
packing department and that when talking became
a problem his practice was to separate the offend-
ing employees and place them at different work
stations. Smith admitted that the packers had
always talked freely and that he had not counseled
the laid-off employees either about talking on the
2 One of the grievances mentioned "a definite comnmunicationl block
with Mr. Smith," and a poor atmosphere i the plant that made the em-
ployees fear reprisals.
3 Smith testified that he was dissatisfied with the work perfornmance of
Litchfield, Sylvester, and Roberta McAllister alone; that he had tried to
recall Bennett hut had been unable to reach her: and that he had failed to
recall Kelly McAllister because she lived with her mother, Roberta
McAllister, and "the same phone would call both of them, and I wasn't
ready to settle that problem at that particular moment"
As to Kelly McAllister, our decisions establish that discrimination
against an employee based on the union sympathies of a family member is
a violation of the Act. See, e.g., Flav-O-Rich. Inc., 234 NLRB 101 , 1015
(1978). Because we find that Respondent failed to recall Roberta McAI-
lister in retaliation for her involvement in protected concerted activity,
we conclude that its asserted justification for failing to recall Kelly
McAllister also violates Sec. 8(a)(1).
With regard to Arlene Bennett, even if we accept Respondent's justifi-
cation that it had tried to recall her for work on October 4. we note that
when Smith encountered her in his office on the morning of October 4,
he did not invite her to begin work but, instead, remarked that while he
had not previously considered her part of the "group" he would do so
thereafter. Because the General Counsel demonstrated that Respondent
was aware of Bennett's participation in protected concerted activities, we
find that Respondent has not carried its burden of demonstrating a legiti-
mate reason for failing to recall her before October 5, and we, like Re-
spondent, shall include her in the group entitled to relief.
line or about their productivity. 4 Nor had he fol-
lowed his past practice of moving their work sta-
tions to alleviate the problem.
We find that Respondent's statement to its em-
ployees that the "agitation" had to cease, coupled
with its unexplained deviation from its normal
method of disciplining overly talkative employees,
establishes its unlawful motivation in failing to
recall them on October 4. Accordingly, we con-
clude that Respondent violated Section 8(a)(l) of
the Act by delaying recall of Sylvester, Litchfield,
Bennett, and the McAllisters because they had re-
quested a raise in wages and had directed a letter
of grievances to Respondent's board of directors.
In addition, we conclude that Respondent's state-
ment that the "agitating talk" must cease constitut-
ed, under the circumstances of this case, a threat in
violation of Section 8(a)(l) of the Act, as it intend-
ed to interfere with, restrain, and coerce the em-
ployees in the exercise of their Section 7 rights.
2. The Administrative Law Judge sustained the
challenges to the ballots of six employees laid off
from Respondent's night shift on or about October
24 and informed by letter sent on November 14, 5
days prior to the election held in Case -RC-
16604, that they would not be recalled for the re-
mainder of the packing season. The General Coun-
sel has excepted to the Administrative Law Judge's
disposition of the challenged ballots, arguing that
the conversion of layoff status from temporary to
permanent violated Section 8(a)(3) and (1) of the
Act because it was motivated by a desire to pre-
clude the employees from voting in the union elec-
tion. While we agree with the Administrative Law
Judge that Respondent converted the layoff status
for legitimate business reasons and that the action
therefore was not unlawful, we disagree with his
finding that the employees had no reasonable ex-
pectation of future employment and, on that basis,
his sustaining the challenges to their ballots.
In assessing the expectation of future employ-
ment among seasonal employees for purposes of
voting eligibility, the Board considers such factors
as the size of the area labor force,5 the stability of
the Employer's labor requirements and the extent
to which it is dependent upon seasonal labor,6 the
actual reemployment season-to-season of the
worker complement, 7 and the Employer's recall or
preference policy regarding seasonal employees. 8
' Smith testified that Lorraine I.itchfield. who had worked for Respoln-
dent during two presious scasons. had always been one of the worst pro-
ducers i the lant but that he had never befoire taken any steps to im-
prose her performance.
See, e g, Bau,,tr Foods, In, 1() NR1B 690 (1'971
See, e g., Klly Brothers Nurseries, In,- 140 NI R 82 (1962)
= Sec, e g P (; (;rayo, 128 NLRI 1026 (196))
See. e.g, Bauoier Food. Inc., upra.
502
MAINE APPLE GROWERS
is completely dependent on seasonal labor and that
its labor requirements remain relatively stable from
one season to the next. The record also reveals that
Respondent employs local labor drawn from a
small labor pool, and that the available work force
is further reduced by Respondent's practice of
hiring only nonprimary wage earners in its packing
department. Moreover, Respondent's personnel re-
cords indicate that a substantial number of employ-
ees are rehired each season.
The foregoing factors favor a conclusion that the
six employees in question have a reasonable expec-
tation of future employment even though their em-
ployment was terminated for the 1979-80 season by
Respondent's letter. In addition, Smith testified that
he had a practice of recalling old employees, al-
though, at another point in the hearing, he testified
that employees who did not work to the end of the
previous season lost seniority if rehired. The Ad-
ministrative Law Judge interpreted this testimony
to mean that Smith did not initiate rehire of em-
ployees who did not finish the previous season and
on that basis found that the permanently laid-off
employees had no reasonable expectation of future
employment. Our decisions establish, however, that
in order to sustain a finding of reasonable expecta-
tion of future employment, if other factors are fa-
vorable, the record need establish only that the sea-
sonal employees are permitted to reapply the next
season and that some of them are in fact rehired. 9
Since Respondent clearly permits former employ-
ees to reapply for work and in some cases acts on
their applications, ° we find that the six employees
laid off for the remainder of the season on Novem-
ber 14 have a reasonable expectation of future em-
ployment and shall overrule the challenges to their
ballots.
At the hearing, the Union withdrew its challenge
to the ballot of Ronald Thompson. Because
Thompson's ballot is now determinative of the re-
sults of the election, we shall order that it be
opened and counted along with the ballots of the
six employees discussed above.
THE REMEDY
Having found that Respondent interfered with,
restrained, and coerced Jean Sylvester, Lorraine
Litchfield, Arlene Bennett, Kelly McAllister, and
Roberta McAllister in the exercise of their Section
7 rights by threatening them and by failing to
recall them on October 4, 1979, we shall order that
9 See Kelly Brolhers Nurseries. Inc.. supra.
lo In addition to Kathryn Hanning, who as mentioned by the Ad-
ministrative Law Judge as a rehired employee, the record discloses that
Jane Stevens, Pauline Kirshner, and Debbie Trenoweth were also rehired
employees who had not worked consecutive seasons since their initial
employment
Respondent cease and desist therefrom and take
certain actions intended to effectuate the policies of
the Act. We shall order Respondent to make Jean
Sylvester, Lorraine Litchfield, Arlene Bennett,
Kelly McAllister, and Roberta McAllister whole
for any loss of earnings they may have suffered as
a result of the discrimination practiced against
them, with backpay computed in the manner pre-
scribed in F. W. Woolworth Company, 90 NLRB
289 (1950), and with interest thereon in the manner
prescribed in Florida Steel Corporation, 231 NLRB
651 (1977). "
AMENDED CONCLUSIONS OF LAW
By failing to recall Jean Sylvester, Lorraine
Litchfield, Arlene Bennett, Kelly McAllister, and
Roberta McAllister because they had engaged in
protected concerted activities and by making a
threat that tended to interfere with, restrain, and
coerce them in the exercise of their Section 7
rights, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Maine Apple Growers, Inc., Buckfield, Maine, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees because of their pro-
tected concerted activities.
(b) Failing to recall employees because of their
protected concerted activities.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Make Jean Sylvester, Lorraine Litchfield,
Arlene Bennett, Kelly McAllister, and Roberta
McAllister whole for any loss of earnings they may
have suffered as a result of the discrimination prac-
ticed against them, as provided in the section of
this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
I See, generally. Isis Plumbing eauring Co, 138 NLRB 716 (1962)
Member Jenkins would compute the interest due on backpay in accor-
dance with his partial dissent i Olympic Medical Corporation, 250 NLRB
14h 1080)
503
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its Buckfield, Maine, facility copies of
the attached notice marked "Appendix."' 2 Copies
of said notice, on forms provided by the Regional
Director for Region , after being duly signed by
Respondent's representative, shall be posted by Re-
spondent 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 Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the challenges to
the ballots of Kathryn Hanning, Wanda Keene,
Gail Howard, Kelly McAllister, Julie Jack, Susan
Kleeburger, and Ronald Thompson in the election
held on November 19, 1979, in Case -RC-16604
be, and they hereby are, overruled.
IT IS FURTHER ORDERED that Case -RC-16604
be, and it hereby is, remanded to the Regional Di-
rector for Region 1 as provided below.
DIRECTION
It is hereby directed that, as part of the investi-
gation to ascertain a representative for the purpose
of collective bargaining with the Respondent Em-
ployer, the Regional Director for Region I shall,
pursuant to the Board's Rules and Regulations,
within 10 days from the date of this Direction,
open and count the ballots cast by Kathryn Han-
ning, Wanda Keene, Gail Howard, Kelly McAllis-
ter, Julie Jack, Susan Kleeburger, and Ronald
Thompson, and thereafter cause to be served on
the parties a revised tally of ballots including there-
in the count of the above-named ballots. There-
after, the Regional Director shall issue the appro-
priate certification in accordance with the Board's
Rules and Regulations, Series 8, as amended.
2 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing all
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 sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT fail to recall employees be-
cause they have engaged in protected concert-
ed activities.
WE WILL NOT threaten employees because
they have engaged in protected concerted ac-
tivities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
their exercise of the rights guaranteed them in
Section 7 of the Act.
WE WILL make Jean Sylvester, Lorraine
Litchfield, Arlene Bennett, Kelly McAllister,
and Roberta McAllister whole for any loss of
earnings they may have suffered as a result of
the discrimination practiced against them, with
interest.
MAINE APPLE GROWERS, INC.
DECISION AND REPORT ON CHALLENGES
AND OBJECTIONS
GEORGE F. MCINERNY, Administrative Law Judge:
On November 13, 1979, Truck Drivers, Warehousemen
& Helpers Union Local No. 340, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen & Helpers of America, herein referred to as the
Union, filed the original charge in Case -CA-16832 al-
leging that Maine Apple Growers, Inc., herein referred
to as Respondent, or the Company, had engaged in and
was engaging in, unfair labor practices within the mean-
ing of Section 8(a)(1) and (3) of the National Labor Rela-
tions Act, as amended, 29 U.S.C. §151, e seq., herein re-
ferred to as the Act. The charge was amended on De-
cember 21, 1979, and thereafter on January 9, 1980, the
Regional Director for Region 1 of the National Labor
Relations Board, herein referred to as the Board, issued a
complaint alleging that Respondent had violated and was
violating Section 8(a)(1) and (3) the Act. On January 15,
1980, Respondent filed an answer to the complaint deny-
ing the commission of any unfair labor practices.
Before filing the charge in Case -CA-16832 the
Union had filed a petition in Case -RC-16604 in a unit
consisting of all production and maintenance employees
of the Company. On October 29, 1979, the Union and
the Company entered into a Stipulation for Certification
Upon Consent Election. Pursuant to this stipulation an
504
MAINE APPLE GROWERS
election was conducted by the Board's Regional Office
on November 19, 1979. The results of this election
showed seven votes for the Union, eight votes against it,
and seven challenged ballots. The challeged ballots are
thus determinative of the results of the election. On No-
vember 27, 1979, the Union filed with the said Regional
Director objections to conduct by the Company affect-
ing the results of the election. After investigation the Re-
gional Director concluded that the subject matter of sev-
eral of the Union's objections was identical to matters in
Case -CA-16832; and the status of certain of the chal-
lenged ballots raised issues identical with other issues in
the unfair labor practice cases; and, since he had already
determined to issue a complaint in that unfair labor prac-
tice case, that the matters raised in these objections and
challenges should be resolved in a hearing before an ad-
ministrative law judge together with the issues in the
unfair labor practice case.
Accordingly the Regional Director, when issuing the
above-mentioned complaint, issued an order consolidat-
ing Case -CA-16832 with Case -RC-16604. Pursuant
to notice contained in said complaint, and subsequent
orders, a hearing was held before me at Lewiston,
Maine, on March 26, 27, and 28, 1980, at which all par-
ties had the opportunity to present testimony and docu-
mentary evidence, to examine and cross-examine wit-
nesses, and to argue orally. After the hearing Respondent
and the General Counsel submitted briefs, which have
been carefully considered.
Upon the entire record, including my observation of
the witnesses and their demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Maine Apple Growers, Inc.; is a Maine corporation
having its principal office and place of business in the
town of Buckfield, Maine, where it is engaged in the
business of storing, sorting, and packing apples. It annu-
ally receives goods and materials valued in excess of
$50,000 directly from points outside the State of Maine,
and annually ships goods valued at over $50,000 directly
to points outside the State of Maine. The complaint al-
leges, the answer admits, and I find that Respondent is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that Truck Drivers, Warehousemen & Helpers Union
Local No. 340, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Despite the implications of its name, Maine Apple
Growers, Inc., is not engaged in growing apples, but in
storing and packing them. However Respondent does
operate as a seasonal enterprise because of the nature of
the product it handles. Within the broad category as a
seasonal business there are both functional and temporal
divisions to that business. Functionally, Respondent op-
erates both as a storage facility and as a packer. Some
customers use these facilities both for storage and pack-
ing of their crop, while others, and this will become sig-
nificant later, use the storage but remove and pack some
or all of their own fruit.
In addition to this division of Respondent's functions,
the season is divided into three parts, the "fall-pack,"
"regular storage," and "controlled atmosphere" or "CA"
seasons.
The first division begins in September when the apples
are picked and moved by the growers into the ware-
house. As the apples are picked they are placed by vari-
ety into large bins containing 15 bushels or boxes. 2
These bins are recorded by variety and grower and then
are placed in storage by Respondent's employees. At this
time, early in the season, the work of storing and pack-
ing goes on simultaneously. According to the Company's
manager, Ivan Smith, this is a busy and hectic time be-
cause of the need to store the crop, and at the same time
pack as much as possible because of favorable market
conditions, and because apples packed in this fall-pack
season do not require expensive storage. Thus, during
the fall-pack Respondent hires as many packers as it can
fit into its packing room to pack as much fruit as possi-
ble.
The fall-pack runs until about the end of October, by
which time the growers have moved almost all their
crop into the warehouse and the market demand has
slacked off. The packing operation then begins to use
regular storage fruit. This type of storage is basically re-
frigerated storage where apples, depending on variety,
are stored in rooms where a temperature range of 32 to
36 degrees is maintained. Business is not as good during
this season except that Smith indicated there was some
increase on account of the Thanksgiving and Christmas
holidays.
Packing of regular storage continues until about the
middle of January when the first of the controlled atmo-
sphere apples are ready to be used. 3 Controlled atmo-
Respondent was once organized as a growers' cooperative, but some
time prior to the events of this case became a corporation All of the
shareholders, however, are growers. These shareholder-growers are enti-
tled to reserve storage space with Respondent proportionally to the
shares each owns. There are 17 shareholders, all of whom use the storage
facility, and there are other growers using the facility who are not share-
holders. The day-to-day operations are run by Manager Ivan Smith, but
policy decisions are reserved to a five-person board of directors which
meets monthly Two of the directors, Leslie Boothby, who is also the
Company's president, and Kenneth Cooper, figure in the facts of this
case.
2 It is curious to relate, but no one at this hearing was able to define a
"bushel" except to say that a bushel was the quantity of apples which
would fill a "standard eastern apple box." A couple of these were used to
bring documents into the hearing and it appeared to me that they mea-
sure about IR by 12 by 12 inches. This, then, is the basic trade unit dis-
cussed in the hearing and mentioned in the exhibits.
3 There is, apparently, some sort of law or regulation which provides
that these apples must remain in a controlled atmosphere for at least 90
days
505
I)ECISIONS OF NATIONAL, LABOR RELATIONS BO)ARD
and by the replacement of oxygen in the storage facilities
with nitrogen to retard the ripening of the apples and to
prevent rot. This permits the packing and sale of fresh
fruit on a year-round basis. At Respondent, however, all
of the apples in its CA rooms are packed and sold gener-
ally by the end of June.
There is, I understand, some overlap in these three
subseasons, depending on the size of the crop, demand,
and other factors, but this is generally as it was described
on the record of this hearing.
The Company employs a varying number of packers
during the period from September through June.4 Tradi-
tionally all of the packers are women, and there is some
evidence that none of these women are the primary
wage earners in their families. Before the introduction of
a grading machine about 5 years before the time of this
hearing, the packers were paid on a piece-rate basis de-
pending on the number of boxes they filled, but after the
grader was purchased they were paid the minimum wage
required by the Fair Labor Standards Act.
Employment arrangements at the Company are in Ivan
Smith's words, "loose." As manager, Smith handles all
hiring, firing, and any disciplinary actions. There is,
however, something of a pattern in the hiring process.
Smith testified that jobs were not guaranteed from
season to season. As he put it, there "has been no past
agreement that they are automatically coming back." He
added, however, that they have in the past, so it has
been "a tradition," as the opening of the season ap-
proached, called the employees who had been working
at the end of the previous season and asked if they
wanted to return. An analysis of the Company's payroll
records submitted in evidence here shows that to be
true.5 Of 12 employees on the payroll as of May 22,
1977, the last full payroll for the 1976-77 season, 8 ap-
peared on the first full payroll of the 1977-78 season, the
week ending September 11, 1977. The payroll for the
week ending June 4, 1978, showed 22 names, and 15 of
these appeared on the payroll for the week ending Sep-
tember 17, 1978. The payroll for the final full week of
the 1978-79 season showed 17 employees and 13 of those
appeared on the first full payroll of the 1979-80 season.
The payroll records also show considerable turnover.
There seems to be a cadre of regular employees. Of the
12 employees listed on the May 22, 1977, payroll, 7 still
were employed as of September 16, 1979. Beyond this
group there are others who work for varying periods of
time within the work year, and some who appear for a
few weeks and then are gone. Thus, as Smith testified,
he calls only the employees who were working at the
end of the season, and fills his roster through new appli-
cants.
4 While the bargaining unit in the stipulation is described as "all pro-
duction and maintenance employees," and there is evidence that there
were others in this category, the facts in this case concern exclusively the
packers.
I In reviewing these records I note that there is no breakdown be-
tween packers and other bargaining unit employees. Thus, in making my
computations I have eliminated the names of Ivan Smith, the manager,
and Meredith Thompson, the bookkeeper, and counted all the others
The fact that a few of these are evidently part-time workers is not really
material.
Smith also utilizes a rough-cut, highly personalized se-
niority system in implementing the frequent in-season
layoffs. He indicated, and the records bear out the fact,
that it does not take long for an employee to become
"old help" or to acquire seniority. Thus I year of steady
work would give an employee, under Smith's system, the
right to be called back for the next season. However, this
seniority can be broken rather easily. An employee
named Kathy Hanning had worked off and on for about
9 years, but she declined an offer to return from a layoff
in January 1979 and was not called back in September.6
With this background, which I think is necessary for
an understanding of the nature of the business and some
of the Company's practices, I turn to the substantive
facts.
B. The October 4, 1979, Incident
The 1979-80 fall-pack began on September 10, 1979.
On that day there were 21 employees on the payroll, in-
cluding, as I have noted, 13 who were on the final pay-
roll for the 1978-79 season. At some time during that
day the packers got together and agreed that they would
ask Ivan Smith for a raise in wages. Employee Jean Syl-
vester was chosen as spokesperson but they all ap-
proached Smith as a group. Sylvester asked if it was pos-
sible for them to get a raise, and Smith said no. When
asked for a reason Smith explained that the Company
was a minimum wage employer; that the Company did
not hire primary wage eartners; and that the employees
were eligible for unemployment compensation, which
was not true in other shops.
This conversation ended there but the matter did not.
Smith testified that he was upset because the employees
had approached him as a group. He also noted a hostile
attitude toward him after this incident on the part of the
packers. The employees, in turn, did not let the matter
rest there. They met again after Smith's refusal to grant
them a raise and decided to have one of their number,
Roberta McAllister, call Kenneth Cooper, one of the di-
rectors of Respondent. She called Cooper and asked him
if he could arrange for them to attend a board meeting
and talk to the directors about a raise. He said he would
see what he could do and would get back to her. He
never did. McAllister mentioned this conversation and its
lack of results to Gail Howard, another employee.
Howard volunteered to speak to Cooper if she saw him
at church the next Sunday, September 23.7 She did so
and Cooper informed her that he had not returned
McAllister's call because his understanding was that
Smith was going to talk to her and get a list of employee
grievances.
Smith did not ask McAllister for a list of grievances,
so on September 27 the employees made up a list of their
grievances. Jean Sylvester wrote it out in longhand and
they mailed it to the board of directors. 8 The list of
She did call Smith, however, and was rehired The circumstances of
this and of Arlene Bennett's "resignation" will be discussed below.
All dates herein are in 1979.
' The list was sent, certified mail, t Century Elm Farms, Inc., which
apparently is Boothby's place of business since he identified the letter as
Continued
506
MAINE APP'LE GROWERS
grievances was headed, of course, by wages, but also in-
cluded complaints about the fumes from a forklift in the
shop, the lack of heat in the shop, lack of adequate
cleanup time, and several safety items. They also ex-
pressed concern about the lack of satisfactory communi-
cations between Smith and themselves. They mentioned
their fear that they would be "harmed" or laid off be-
cause of the atmosphere in the shop. The letter was
signed by 14 of the 21 employees.
The letter was postmarked September 28 and appar-
ently was received by Boothby on October 1. The em-
ployees were under the impression that the board of di-
rectors met on the first Tuesday of each month, whereas
the meeting was in fact scheduled for the second Tues-
day. Thus Boothby took the letter with him the next
time he took a load of apples to the company warehouse.
He met there, informally, with Smith and Cooper.9
Smith specified that this meeting occurred on October 2,
which is consistent with Boothby's testimony, although
the latter was unclear on the date. In any event the two
directors and the manager discussed the letter. Smith
urged them to let him handle the matter, but the direc-
tors felt that since the letter was addressed to them they
would discuss it at their next regular meeting on the fol-
lowing Tuesday. Smith admitted that he was "very
upset" by the letter, particularly because he did not need
this kind of aggravation at this time of the year when the
crop was coming in, and the pace was somewhat frantic
in the shop.'
In the meantime, during the previous week, Smith de-
termined that there was too much packed fruit on hand
so he determined to lay off the packers for a week in
order to clear out the surplus. According to Smith this
was something that happened every year. Accordingly
all of the packers were laid off effective Monday, Octo-
ber 1.
I generally found Smith to be a credible witness. His
appearance was candid and forthright and he made no
effort to dissemble or dodge questions, even though, as
when he admitted being very upset over the September
27 grievance letter, his testimony sometimes was con-
trary to Respondent's interests. Further, his statements
may be verified by reference to the production and pay-
roll records submitted in evidence. On this layoff, for ex-
ample, the payroll records show that all of the packers
were laid off on October I and 2. The payrolls for previ-
ous years show similar layoffs in roughly the same time
period. In the 1976-77 season the packers worked 4 days
in the weeks ending September 26 and October 3, and
only 2 days in the week ending October 10. In the 1977-
78 season there was a 2-day layoff in the week ending
October 9. In the 1978-79 season the employees worked
short weeks from the week ending October 8 through
November 12.
During this week, Smith testified, the Company's
broker called and ordered some apples which had not
having been received by him. The return address on the letter was that
of another employee, Geraldine Gammon.
e Apparently Cooper's presence at the warehouse at that time was co-
incidental.
0o He stated that he did about 40 percent of his annual work during
the few weeks at the beginning of the season
been packed. Smith agreed, and, on Wednesday, October
3, he called back four of those he considered his senior
employees. For October 4 Smith called back the rest
of the packers except for five, Roberta McAllister, her
daughter Kelly McAllister, Jean Sylvester, Lorraine
Litchfield, and Arlene Bennett.
The employees got wind of this. Sylvester testified
that she called Smith on the afternoon of October 3 and
asked him why she had not been called back. He replied
that he guessed she knew why. She then said that he
could not call lower-seniority employees back before
more senior employees. He said that he guessed she
would find out that he could. With that she told him that
they would see about that, and hung up the telephone.
Kathy Hanning testified that Smith called her on Oc-
tober 3 to come back to work the next day. She added
that Smith told her there were going to be some changes
and that some of the "girls" were not coming back "be-
cause of the trouble they had caused." These "girls"
were Lorraine Litchfield, Jean Sylvester, and Roberta
McAllister.
With this information the packers met in a group on
the evening of October 3 at Jean Sylvester's house.12
They discussed the layoff and decided that they needed
some kind of protection and representation. They deter-
mined that they would try to get a union in, and Han-
ning's husband called Adelard LeCompte, a Teamsters
representative, and a meeting was set up with him for
the following night at Hanning's house.
On the morning of October 4 the five employees who
had not been recalled went to Respondent's office to
pick up layoff slips, which they needed to collect unem-
ployment compensation, and, I suspect, to confront
Smith as well. They picked up their layoff slips and did
engage in a discussion with Smith. There is very little
consistency in the several reports of this meeting by the
employees who testified about it. Sylvester remembered
nothing, she was upset. Bennett stated that Smith said to
her at the beginning of the meeting that she was "not in-
volved in this," and that he had tried to reach her on the
day before to call her back. She did not remember too
much more, but said she had done some "yelling" and
was upset. She denied that she had quit during the meet-
ing, but did admit that she had said that it was not doing
any good to talk and that she "would wait outside for
the girls." She then walked out.
In contrast to these witnesses, who displayed a serious
want of memory on this important incident, Kelly McAl-
lister testified that the five employees went in as a group
and Smith asked them to sit down and he would discuss
the matter with them. When they started to ask why
" The payroll for that date shows that these employees were Char-
lotte Bradeen, who had, as shown on the September 27 grievance letter,
25 years with the Company; Jane Stevens, 18 years; Pauline Kirschner, 8
years; and Debbie Trenoweth, almost 4 years This accords with the se-
niority claimed by each employee who signed the September 27 letter
except that Kathy Hanning claimed 9 years As I have noted above,
however, Hanning had not worked a full season in 1978-79 and thus, ac-
cording to Smith's rule-of-thumb seniority system. was not entitled to
that seniority.
12 All of the packers were there except for Jane Stevens, Cynthia Ste-
v'ens, Pauline Kirschner, and Charlotte Bradeen
507
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
low-seniority workers were working and they were not,
Smith told Bennett that he did not think she was in the
group but he guessed that, from the way she was acting,
she wanted to be. He also told Kelly's mother, Roberta
McAllister, that she was unproductive; he told Jean Syl-
vester that she had a bad attitude; and told Kelly McAl-
lister that she was "just an unfortunate member of the
family." At the conclusion of this meeting Smith asked
Kelly McAllister and Lorraine Litchfield to remain. He
told Kelly that she was a good worker and he wanted to
keep her there, and that he liked Lorraine's personality
and wanted her to stay. He said he was not yet decided
about the others.
Roberta McAllister corroborated her daughter with
respect to what Smith said to Bennett and Kelly, but
added that he said that she, Roberta, spent too much
time talking and not enough time working, and, further,
that talking had a harmful effect on productivity. He said
that productivity was substantially down in comparison
to what he expected. This had been going on for some
time and he felt he had to do something about it in order
to retain productivity.
Three of the employees made reference to the Septem-
ber 27 letter. Sylvester said that Smith pulled the letter
out of a drawer and waved it around, saying that the
letter was not going any farther than him. Kelly McAl-
lister did not say that she saw the letter, but she did tes-
tify that Smith said that Charlotte Bradeen should not
have signed it because she was a "floor person"13 and
should have come to him, or told him about it, when
"they first started it." Roberta McAllister said that Smith
had the letter but said that the letter had nothing to do
with why they were there.
There are several postscripts to this meeting which are
revealing of the real reason for the failure to call the five
employees back and the motives behind the meeting
itself. Sylvester testified that she called Smith later in the
day and said that she wanted to talk to him about 4:30.
He agreed and she came to the company office that
afternoon. She told Smith that she wanted to come back
to work. He replied that her negative attitude was caus-
ing problems in the shop. He continued that he knew
that she had problems at home but he did not want her
bringing them into work with her. Finally, he added that
he did not want any more "agitation out there."' 4
Bennett also called Smith later in the day on October
4. She apologized for "yelling" at the meeting that morn-
ing, to which he replied that they had "burned a lot of
bridges" that morning, and that he did not know wheth-
er she would be working again. He then modified this to
"maybe," and finally told her to come in in the morning.
The next day Smith told Bennett again that he had not
intended her to be in the group that were laid off. They
talked about Sylvester, and Smith said that Sylvester was
on the verge of a nervous breakdown, and that her nega-
tive attitude was causing a lot of tension at work. Smith
added that things would be a little tense for a while but
:1 Bradeen described herself as a "floor lady" but there is no indica-
tion that she exercises any supervisory functions. The payrolls show that
she was receiving 45 cents more per hour than most other employees.
14 Sylvester did not return to work until October 8 but that was due to
her own choice not to come in on Friday, October 5.
in a week or two things should be back to normal. He
also said that the agitation had to stop, that next time it
would not be a layoff slip, they would be "done." Ben-
nett returned to work on October 5.
Roberta McAllister testified that she, too, called Smith
later on the afternoon of October 4. She did not go into
detail about this conversation but stated that he told her
to come in in the morning and they would talk and
"maybe" she could go back to work. She did go to work
on the next morning, October 5, but she was not asked
about any "talk" with Smith on her return on that day.
Smith testified about problems that he encountered
with employees' talking and about low productivity. He
outlined things that he had done in the past, such as
moving employees around or separating them to cut
down on what he considered disruptive or "agitating"
talk. He did admit that everybody talked all the time.
According to Smith, Sylvester dominated the conversa-
tion when she talked, to the point where those within
earshot would stop work entirely. This situation was
worse in 1979 than before, and Sylvester had a negative
attitude as well. Lorraine Litchfield had an "incontrolla-
bly bubbly" personality, in Smith's opinion and she was
one of the lowest producers in the shop. He said that he
had mentioned her talking to her, but had never given
her a warning. Smith found Roberta McAllister, to be
friendly, but given to too much talk. He had never given
any warnings or suspensions to anyone for talking, up to
October 4.
Smith testified that he had a "very serious" production
problem. He had noted it earlier but had not acted
sooner because even with what he considered low pro-
ductivity the employees were producing more than the
Company's broker was selling. He had thought about
this for a week or two, and, then, on October 3, he de-
cided to take steps to correct this production problem.
That afternoon he had a "heated" discussion with Syl-
vester in which he told her she was having too much
conversation and not enough production. He also ad-
mitted talking to Hanning that afternoon but denied that
he told her that four or five employees would not be
coming back. Finally, Smith stated that Bennett had
walked out of the meeting after announcing that she quit.
In the October 4 meeting, Smith testified that he dis-
cussed excessive talking and told the employees that they
were spending too much time looking at each other in-
stead of packing apples. He admitted that he talked about
"agitation" but defined that word as meaning excessive
talking, tying this in with the hostility he felt in the shop,
due to the fact that he had denied the employees a raise.
It is difficult for me to analyze the evidence on this
meeting. Sylvester admitted to being upset and remem-
bered only Smith waving the September 27 letter. Ben-
nett was scarcely more instructive, admitting also to
being upset and "yelling," eventually walking out of the
meeting. Accordingly, I do not credit their version of
what happended at the October 4 meeting.
Neither Smith nor Roberta McAllister, both of whom
appeared to me to be candid and truthful witnesses, was
asked in detail about the events of that morning. Their
testimony thus can be characterized as vignettes, rather
508
MAINE APPLE GROWERS
than a whole picture of the meeting. Kelly McAllister,
who also appeared to me to be a credible witness, could
add little more to the testimony of her mother and Lor-
raine Litchfield did not testify at all. 15
As a result, I infer and find that Smith called the em-
ployees, or they had called him, into the October 4 meet-
ing, and that he spoke mainly about productivity and ex-
cessive talking. I find that the September 27 letter was
mentioned but that Smith stated that the letter was not
why they were there, and that Bradeen, as a floor
person, should not have signed it. I infer further from
the testimony of Sylvester, Bennett, and particularly that
of Smith that the meeting was loud and stormy, and that
Bennett walked out after announcing her intention to
quit. I do not find that Smith told Kathy Hanning on
October 3 that four or five employees would not be
coming back to work. There is no evidence, and I do not
find that Smith told an unnamed employee on October 3
that she, the unnamed employee, was part of the group
that wanted the Union.' 6 Further I do not find that
Smith said on October 4 that he did not know whether
he would call the laid-off employees back to work, or
that he did not like the way some of the packers ap-
proached him as a group.
Smith may have told the employees that he was teach-
ing them a lesson, and he certainly did tell them on Oc-
tober 4 that he wanted the "agitation" to stop. In analyz-
ing these statements, however, I must consider Smith's
motive, whether the statements were made, as he said,
because he was concerned about production and talking,
and he considered talking to be agitating; or whether
these actions were the result of his concern over the em-
ployees' concerted activity in approaching him for a
raise, and then, after being rebuffed, taking their case to
his superiors.
The question under consideration is not, of course, a
layoff as alleged in the complaint herein, but the recall
from a layoff which had already been effected. As I have
found above from Respondent's payroll records, and as
admitted by Jean Sylvester in her testimony, layoffs at
this time of the year are commonplace. There is no evi-
dence that the layoff itself was discriminatorily motivat-
ed, and it was ordered before the employees wrote their
letter or mailed it to President Boothby. Thus I find that
the layoff was ordered for legitimate business reasons.
The payroll records show that all of the packers were
laid off on October I and 2. On October 2 the letter ap-
parently was brought to the warehouse by Boothby and
he, Cooper, and Smith discussed it. Smith testified that
he was "very upset" by the letter, and, presumably, by
the fact that Boothby and Cooper decided that Smith
should not handle the matters raised by the employees.
On that same day, despite his concern over the letter,
Smith testified that he received orders from Respond-
ent's broker for additional quantities of apples, and he
called back four employees for work on October 3.
Those four employees had all signed the letter.
Then, on October 3, Smith testified that he decided to
do something about his concern over productivity by not
calling back certain employees. I have examined Re-
spondent's production records, and it appears that Smith
did have cause for concern. Whatever the reason; the
hostility Smith felt in the shop; the presence of a "worth-
less" employee whose function apparently was to supply
apples to the packers; or the presence of new employees;
the production figures show a sharp decline. I have
taken Respondent's figures, and, using the number of
boxes packed divided by the number of packer days, ar-
rived at a number of boxes packed per packer. Eliminat-
ing the first 3 days admitted by Smith to be unrepresen-
tative, I find the following:
Packer o. vg. per
days 1 7 packed packer
13 12-1/2
14 13-1/2
15 8
17 13
18 15
19 15
20 15
24 12
25 15
26 11-1/4
27 11-1/4
28 11-1/4
871 69.7
836 61.9
700 87.5
762 58.6
876 58.4
883 58.9
788 52.5
687 57.3
869 57.9
808 71.8
756 67.2
698 61.3
Smith testified that as a general rule he expected a
production level of 60 boxes per day from each packer.
It is evident from these figures that, while there was
some improvement after September 25, there was some
problem which was interfering with the figures. If Smith,
from his own observation of the workplace and the
packers, assigned blame for this problem to three of the
packers, Sylvester, Litchfield, and Roberta McAllister,
there is no evidence to show that he was incorrect.
There is no disagreement that Smith told Arlene Bennett
Is Meredith Thompson, the Company's bookkeeper. and a witness to
the meeting, was no help as she remembered nothing about it
'6 As far as can be determined from the record, the Union was not
mentioned until the meeting at Sylvester's house on the evening of Octo-
ber 3
'' These figures are derived by dividing the actual number of packers
by 8 hours [he plyr)saro shtos that there ,sas no ortine orked by the
packers dring this period
509
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the morning of October 4 that she was not part of
"the group," that he had tried to reach her the day
before, and she could go right to work. He also told
Kelly McAllister that she was an "unfortunate member
of the family" which Kelly, and I, took to mean that he
would have called her back but for the fact that she
lived at home with her mother, and he was not going to
put the mother back to work at that time. Thus there is
no question about the makeup of the group, and from the
meeting of October 4, and the subsequent meetings, that
Smith was concerned only about these three women.
There seems little question but that all three of these
employees participated in the meeting with Smith on
September 10. Sylvester acted as spokesman for the
group in an action that certainly constituted protected
concerted activity. Subsequently, Sylvester actually
wrote the letter of September 27, and Litchfield and Ro-
berta McAllister signed it. There is no evidence, howev-
er, that Litchfield or McAllister participated to any
greater or lesser extent in this concerted activity than
any of the other packers, including Bradeen, Kirschner,
Stevens, and Trenoweth, who were identified by Sylves-
ter as being at the September 10 meeting, who signed the
September 27 letter, and who were all called back on
October 3 according to Smith's seniority system. Of
those who were called back on October 4, Geraldine
Gammon had used her name and address as the return
address on the envelope containing the September 27
letter, and had signed it. Others who signed and were
called back on October 4 were Betty Boucher, Kathy
Hanning, Wanda Keene, and Gail Howard. Other than
Sylvester's activities, there is no indication that any of
these employees did anything, or participated in activities
other than those described, in relation to the request for
a raise or the September 27 letter. In Sylvester's case
there is no dispute that Smith did not point to her activi-
ties in the shop, but attributed her difficulties to "prob-
lems at home."
It does not, then, appear to me, particularly in the ab-
sence of any evidence showing hostility or animus by
Smith toward the legitimate activities of the employees,
that the General Counsel has shown by a preponderance
of the credible evidence, that Smith's failure to recall
Sylvester, Litchfield, Bennett, and the McAllisters was in
retaliation for, or to discourage, the employees' concert-
ed activities. None of the facts either before or after the
events of October 4 reveal the slightest inclination on the
part of Respondent either through Smith or the direc-
tors, to use unlawful means to deter concerted, and later
union, activities by its employees.
C. The Speeches to Employees
Continuing the chronology of events at Respondent's
shop, the employees met on the evening of October 4, at
Kathy Hanning's home, with Adelard LeCompte. There
they signed cards for the Union, and, on October 5, Le-
Compte wrote to Smith requesting recognition as the
bargaining representative of Respondent's employees.
Concurrently, LeCompte filed the petition in Case 1-
RC-16604 with the Board's Regional Office.
On October 15 Respondent established a night shift
and assigned Bennett, Keene, Hanning, Howard, and
Kelly McAllister to that shift. According to Smith the
night shift was started because of a problem encountered
by two growers, some of whose apples had developed
problems with either "russet" or "rust." It was impossi-
ble to process these apples in regular production because
so many had to be culled, and the shop floor was too
crowded during the day to permit this task to be per-
formed at the same time as regular production. There
were 5,000 to 7,000 boxes to be sorted, with approxi-
mately 30 percent to be rejected and put into bins from
which cider is made, and the remainder to go back into
controlled atmosphere storage. Smith used his seniority
system as the basis for selecting those assigned to the
night shift. As noted above, he did not consider Hanning
to be a senior employee because of her breaks in service,
and he considered that Bennett had lost her seniority by
quitting during the October 4 meeting.' 8 The night shift
worked two nights during the week ending October
21.'9 The five employees on the night shift were joined
on October 22 by two new employees, Julie Jack and
Susan Kleeburger. They worked three nights in that
week, and on September 24 Smith told Bennett that they
would finish that night. They were laid off and Smith
would let them know when there was more work avail-
able. Bennett was returned to the day shift, and Keene,
Hanning, Howard, Kleeburger, Jack, and Kelly McAllis-
ter were laid off.
On the following Monday, October 29, representatives
of the Union and the Company met at the Board's office
in Boston and agreed on the terms of the Stipulation for
Certification Upon Consent Election in Case 1-CA-
16604. Smith was in attendance for the Company. He
noted there the presence of Hanning, Howard, and Kelly
McAllister, assuming that because they were sitting with
the union representative they were on the Union's side.
On November 7 the employees were assembled in the
work room, and they were addressed by Respondent's
attorney, Stephen P. Beale.2 0 At this meeting Beale
stated that he was going to outline the Board's election
procedures for the employees. He did so, then told the
employees that his next comments would be in favor of
18 I have found that she did in fact quit, but then was rehired the next
morning. There is no allegation in the complaint concerning the seniority
system, or Smith's implementation of it in this instance.
" The day shift worked only 2 days that week.
20 This is not alleged in the complaint to be a violation of law. Beale's
speech was alleged in the objections filed by the Union to be one ground
for setting aside the election. This specific objection was later withdrawn
by the Union with the permission of the Regional Director. I would ordi-
narily make no findings on this issue but for the fact that the General
Counsel moved, near to the conclusion of this hearing, to conform the
pleadings to the facts. On being questioned the General Counsel stated
that the purpose of this motion was really to include as a violation of
Sec. 8(a)(l) of the Act certain statements of Boothby made at a meeting
on November 16. Contrary to General Counsel's assertion in his brief, he
did not move to amend the complaint itself. Although I stated at one
point in this record that I was denying such a motion, the record shows
that a motion to amend the complaint was not made I reaffirm my denial
of the motion to conform the pleadings to the facts. In my opinion it is
improper and unfair to attempt to amend the complaint by means of a
motion intended to remedy technical distinctions between the pleadings
and the proof However, the granting of that motion would open up this
November 7 incident as well to the possibility of findings of further vio-
lations of law. Accordingly, I will make findings on this issue in case my
ruling is later reversed
510
MAINE APPLE GROWERS
the Company. He proceeded to discuss economic and
unfair labor practice strikes.
I do not credit the testimony of Sylvester that Beale
asked them if they had all heard of Jimmy Hoffa, and
that he stressed violence accompanying a strike, "two by
fours" through the windows of cars, slashed tires "and
so on." Nor do I credit the testimony of Bennett that
Beale talked "mostly" about strikes. No one else clearly
recalled what Beale said, although Charlotte Bradeen re-
called that Bennett was the person who brought up the
question of replacements for economic strikers, and she
did say that "everyone" was talking about what would
happen in a strike. Pauline Kirschner testified that Beale
had brought up the fact that there was a strike at a
trucking company called Sanborn's in which the Team-
sters was involved, but that he said only that he had a
newspaper article which anyone could read.
I cannot find from this rather vague testimony that
these remarks constituted a violation of Section 8(a)(l) of
the Act. There was no clearly established threat or
promise of benefit. Apparently the employees joined in
and asked questions and participated in discussions, but
there was no indication of intimidation, coercion, or un-
truthfulness in the evidence on this meeting.
On November 16 there was a second meeting in the
shop, again attended by all the employees who were
working that day.2 ' At this meeting Leslie Boothby, the
president, Kenneth Cooper, a director, and Beale, all
spoke to the employees.
There is no real dispute about this meeting. There may
be some disagreements about what Beale said to
Boothby, but these have no relation to the essential facts.
Boothby spoke first, introducing himself and telling them
that the directors had received the September 27 letter,
but could not answer it because, before they met on Oc-
tober 9, they also received the demand for recognition
from the Union. He went on to talk about the forklift,
one of the subjects of the September 27 letter, and told
the employees that the Company had been trying to get
a second-hand electric forklift since the mid-August di-
rectors' meeting.2 2 Boothby also said that none of the
other things in the letter seemed impossible "for us to
work out between ourselves," and added that, therefore,
he saw no reason for the intervention of the Union, and
urged the employees "to vote no for the Union."
Kenneth Cooper spoke briefly and told the employees
that the timing of the letter was poor, in regard to
wages, mainly because business conditions were unsure,
and that January would be a better time to discuss
wages. Beale also spoke about the adjustments to wages
in January due to the increased minimum wage mandat-
ed by the Fair Labor Standards Act.
I can find no violation of law in Boothby's statement
that the Company could not act on the September 27
letter because of the intervening demand for recognition
by the Union. The precedents in this kind of situation
seem to say that the employer, when faced with a
demand for recognition, or a petition for an election,
21 The payroll record shows that all the packers who were not on
layoff status on that day were actually working
22 The minutes of the August 14, 1979, directors' meeting shosw that
this statement was accurate.
should not vary its procedures merely on that account.
If, for example, a wage increase is due employees under
an established employer practice, it has been held to be
an unfair labor practice to fail to grant such increases
solely because of the presence of the Union. It has been
held to be an additional unfair labor practice for manage-
ment, then, to blame and place the onus on the union for
the fact that the employees did not receive their accus-
tomed increase. KDEN Broadcasting Compary, a wholly
owned subsidiary of North American Broadcasting Compa-
ny, Inc., 225 NLRB 25 (1976).
Here the complaint does not allege that the Company's
failure to follow its usual practice is a violation of law,
but does allege that Boothby's statement to employees
that Respondent had not answered the employees' letter
of September 27 does violate the law. However, there is
no benefit occurring here. There is no evidence that the
employees had, ever before, submitted such a letter, or
attempted to negotiate with their employer in that way.
Thus they were denied no benefits, and the Company's
refusal in the face of the Union demand for recognition
was correct in not dealing, at that point, with the em-
ployees individually or as an ad hoc group about griev-
ances.
The complaint further alleges that Cooper's remark
about September being a bad time to discuss wages is a
violation of law. Again I do not agree. It seems from
Cooper's remarks that he was merely restating for these
employees the practice in the industry to talk about
wages after the uncertainties of the harvest and the holi-
day season are over. Additionally I note Smith's testimo-
ny that adjustments at Respondent take place in January
when the minimum wage customarily rises, and adjust-
ments are made to others working above the minimum.
There were no implications of threats or promises in
Cooper's statements and I cannot find these statements to
be other than an exercise of free speech protected by
Section 8(c) of the Act.
As I have noted above, the General Counsel attempted
at the close of the hearing to amend the complaint
through a motion to conform the pleadings to the proof.
I have further noted my disapproval of the use of this
method in the prosecution of unfair labor practices. Thus
I denied the General Counsel's motion and there is no
further allegation in the complaint concerning the No-
vember 16 meeting. 23
D. The Conversation of Layoff Status
On October 24, as has been described above, the night
shift at Respondent's plant was terminated and six of the
people formerly employed on that shift were laid off. At
the time of the layoff Smith expected that the employees
:' In case I am reversed by the Board on this point I note further that
I have relied for my findings as to the November 16b meeting on the
credible testimony of Boothby I found the versions of this meeting rlal
ed by employees to be vague and inconclusive, and marked by a confu-
sion as to just what Boothby said On the basis of these findings I would
not find violations of Sec. 8(a)(1) in Boothby's remarks on the forklift or
on he comments on the grievance letter The forklift had been autho-
rized long before the events of this case, and Boolhhy's generalized com-
ments on grievances cannot be taken to be an agreement to adjust those
grievances. or a promise of any benefits
511
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who had been laid off would return in mid or late No-
vember for the holiday season. He told Gail Howard
that there would be 4 or 5 weeks' work from late No-
vember to early January when they opened the con-
trolled atmosphere rooms. He did not feel that there
would be any work during the controlled atmosphere
season for these laid-off employees, but, at the end of
October, there were 35,000 to 37,000 boxes in regular
storage to be packed by approximately January 20.
Smith's estimates were based on several factors. First,
the crop in 1979-80 was substantially larger than that in
1978-79, 157,159 boxes against 121,531. Second, one of
Respondent's stockholder-growers, Thaine Eastman, had
informed Smith that he was building his own storage and
packing facility, and that he would be withdrawing
about 9,400 boxes from controlled atmosphere storage to
pack himself. This reduced the number of bushels to be
packed by Respondent during the controlled atmosphere
season to 61,164 boxes. Thus Smith could estimate in Oc-
tober that he would not require the services of the laid-
off employees during the controlled atmosphere season.
Third, while he was aware of Eastman's construction of
his own warehouse, Smith was convinced that the new
facility would not be ready during the regular storage
season from mid-October until January. Thus he rea-
soned that the 12,000 to 13,000 boxes of Eastman apples
in regular storage would all be packed by Respondent,
and there would be work for at least some of the laid-off
employees during this regular storage season. To Smith,
then, his statements to Gail Howard were based on fig-
ures that he had available and his reasonable expectations
of the amount of work that had to be done.
Eastman's storage and packing facility, however, was
completed in early November, and on November 8 East-
man called Smith and told him that he was going to
begin removing what would be a total of 6,000 boxes
from Respondent's regular storage in about 2 weeks from
that date. This would reduce the 35,000 boxes remaining
in regular storage to 29,000 and, Smith felt, would fore-
close the return of the laid off employees. Smith had in
mind that they would be called again when there was
work. He was mindful, too, of the pending election, so
on November 9 he called Attorney Beale and asked him
if he could lay off the "girls" permanently because he
had left them with the feeling that they were coming
back and he wanted to let them know that there would
be no more work that year. Beale advised Smith first to
get a letter from Eastman on the withdrawal of the 6,000
boxes, then told Smith he would think about the matter
over the weekend and contact him the first of the fol-
lowing week.
On November 12 Beale and Smith talked again and
Beale advised Smith to send a letter to each of the laid-
off employees advising them that they would not be re-
called. Smith did this and on November 13 mailed out
the letters.
The complaint in this case does not allege that the Oc-
tober 24 layoff was a violation of law, but it does allege
that the conversion of this layoff from temporary to per-
manent is a violation. Certainly the union activity of
Hanning, Keene, and Kelly McAllister was established
by their presence at the representation case conference in
Boston on October 29. It is reasonable to infer that Re-
spondent was also aware of Howard's attendance at
union meetings and her support for the Union. From my
own experience I am aware that vote counting before a
Labor Board election is an integral, if risky, concomitant
of management strategy in such affairs. From this I find,
and I do not think there is any question on this, that the
letters would not have been sent to the employees on
November 13 if it were not for the pendency of the peti-
tion in Case 1-RC-16604.
But the letter is merely a circumstance. The real ques-
tion is the status of these six individuals. That status can
be determined by a review of Respondent's past prac-
tices, bearing in mind that both the union election and
Thaine Eastman's withdrawal of regular storage apples
were novel and unique circumstances. In this regard I
have examined Respondent's payrolls for the period from
1976 to 1980. These records show considerable variations
in the size of the crew.2 4 Generally there is a larger staff
at the beginning of the season when, as Smith testified,
there is an effort to pack as much as possible of the fall-
pack. Then there is a drop in the size of the work force
for a few weeks in October and early November, picking
up again from mid-November to early January, then
trailing off slightly for the controlled atmosphere season.
The figures from 1976-77, with a total of 105,799 boxes
handled, shows a crew of 15 or 16 from September 1225
to October 17, then 12 to 13 down to the week ending
November 21 when it picked up to 17 or 18 through Jan-
uary 9, when it dropped to 16, then 15 in the next week
and down to an average of 12 or 13 for the rest of the
year. In 1977-78, with a bumper crop of 177,509 boxes
handled by Respondent, the figures are larger but the
pattern is similar. The crew sizes began with an average
of 20, going down hardly at all in mid-October and in-
creasing to 30 and even up to 34 in the period November
13 to January 1, then again dropping to an average of 23
or 24 from then until the end of the packing season on
June 4, 1979. In 1978-79, with a substantially smaller
crop, 121,531 boxes, the pattern is somewhat different.
The year opened with a crew of 22 to 24 up until Octo-
ber 15, then tapered off to 10 to 12 through December
24, then increased to 13 or 14 for the next 3, although
the 3 weeks provided less than 5 days of work. Then in
the week ending January 21, the crew increased to 17 to
19 and remained the same until the end of the season. 26
This difference can be explained by the fact that even
though the total crop was smaller, the quantity placed in
controlled atmosphere was kept fairly constant, probably
because of the premium prices which can be charged for
out-of-season fruit, and thus the quantities packed in fall-
pack, and particularly in regular storage, were substan-
tially reduced.
The 1979-80 season shows a similar pattern down to
the week ending October 28, with a crew of 21 to 23,
but then it dropped to 16, then to 14 or 15, and remained
at that level down to the week just prior to the opening
4 As previously noted. I have counted all members of the crew, not
just packers, because there is no separation on the payrolls themselves
These dates are the end of each payroll week cited.
'I There was a total of 20 short weeks during this season.
512
MAINE APPLE GROWERS
of this hearing. A review of Respondent's production
statistics for the period from the opening of the fall-pack
season on September 10 shows high production up until
October 12, and from that point on, while there is some
variation in the figures, the figures remain fairly constant
with a range of about 450 to 800 boxes per day packed.
There is no variation from this during the holiday season
and the figures run fairly consistent right down to the
end of the year. The payrolls also do not show any addi-
tional employees hired from the time the night shift was
terminated until the time of this hearing.
From all of this I find that there was a pattern of em-
ployment which resulted in more employees being hired
at the beginning of the season, then a drop, then, during
the holiday season, an increase, with a fall to a fairly
constant level of employment from mid-January to the
end of the season. This is consistent with Smith's testi-
mony about his estimates for possible re-employment of
the laid-off employees. The withdrawal of the Eastman
apples changed all that, and the payroll and production
figures show that there was a real change in circum-
stances. 27
At this point I think it is clear, and I find, that the six
laid-off employees would not have been called back in
the 1979-80 season. The question of their status in these
circumstances would depend on Respondent's practice
with respect to such employees. I have previously re-
viewed Ivan Smith's seniority system, and found that
under that system employees who were not working at
the end of one season were not called for work at the
beginning of the next season. Further, employees who
called Smith seeking work were hired in the order they
called and were treated as new employees even though
some of them, like Kathy Hanning, may have had years
of experience with Respondent. Thus the six employees
laid off on October 24 might have been considered in
temporary layoff status until November 8, when it
became apparent to Smith that he would not have suffi-
cient work for them in the regular storage part of the
season. There is no question that they would not have
worked during the packing of the controlled atmosphere
crop. From that point, the laid-off employees had no rea-
sonable expectation of recall during the 1979-80 season.
Nor did they have any expectation under Smith's prac-
tice of recall for the 1980-81 season, and if they did
work during that season they would do so as new em-
ployees in the order they called Smith during the
summer.
I do not believe that the November 13 letters to the
laid-off employees, although admittedly those letters
were written at least partially in response to the presence
of the Union, can operate to change the status of the em-
ployees from permanent to temporary layoff. In the ab-
sence of any indication of hostility or animus toward the
Union, or the union activities of the employees here, I
cannot find that the composition and distribution of the
November 13 letter constitutes a violation of law.
21 The final figures on withdrawals from regular storage totaled 9.270
boxes. The production figures show that there had not previouly been
any withdrawals from regular storage.
IV. REPORT ON CHALLENGED BALLOTS
The record shows that the tally of ballots in Case I-
RC-16604 resulted in seven votes for the Union (Peti-
tioner), eight votes against the Petitioner, and seven chal-
lenged ballots. In his Report on Objections and Chal-
lenged Ballots dated December 19, 1979, the Regional
Director for Region I referred the resolution of these
challenged ballots to me along with the issues in Case I-
CA- 16832.
The ballots of Kathryn Hanning, Wanda Keene, Gail
Howard, Kelly McAllister, Julie Jack, and Susan Klee-
burger were challenged by the Employer on the grounds
that they were no longer employed by the Employer on
the day of the election, November 19, 1979. Since I have
already found, in connection with the allegation in the
complaint, that the status of these employees was unlaw-
fully changed, that these employees were in fact perma-
nently laid off with no reasonable expectation of recall, I
recommend that the challenges to their ballots be sus-
tained. Sierra Lingerie Company, 191 NLRB 844 (1971).
The ballot of Ronald Thompson was challenged by
the Union on the ground that he was a casual employee.
During the hearing the Union withdrew this challenge.
However, it appears that this single vote cannot affect
the results of the election. Therefore I recommend that
the ballot not be opened and counted.
V. REPORT ON OBJECTIONS
On November 27, 1979, the Union filed several objec-
tions to conduct affecting the results of the election.
Two of these objections were withdrawn with the ap-
proval of the Regional Director and three were referred
to me for resolution. These are:
I. On or about November 14 the Employer dis-
charged four employees in response to their union
activity.
3. On November 16 the Employer promised em-
ployees that their grievance would be resolved if
they abandoned their union activities.
5. By these and other actions during the course
of Union campaign the Employer has interfered
with the employees' rights as guaranteed by Section
7 of the National Labor Relations Act.
With regard to Objection 1, I have found that six em-
ployees were advised on November 13 that they would
not be recalled, but that this was merely a memorializa-
tion of a decision previously made as the result of
changed and unique circumstances, and in accordance
with the Company's previous practice. The layoff was a
legitimate business decision in response to the proposed
withdrawal of Thaine Eastman's apples, and thus cannot
be interpreted either as a discharge, as alleged here, or a
device to disenfranchise employees. Thus I do not find
that this action tended to interfere with the free choice
of employees.
513
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Considering the remarks of Boothby and Cooper at
the November 16 meeting, as encompassed in Objections
3 and 5, I can find no interference with the election pro-
cess. As I have found Boothby's remarks to be as he re-
membered them in his affidavit which was introduced as
evidence and in his testimony, I find that he specifically
denied that he could respond to the employees' griev-
ances, but that in line with a board of directors' decision
made long before the grievance letter of September 27,
or the advent of the Union on October 4, the purchase of
an electric forklift had been authorized. Boothby went
on to say that none of the other things in the letter
seemed impossible for them to work out between them,
and that he saw no reason for the intervention of the
Union. This last is at best ambiguous and does not alter
Boothby's prior statement that the directors could not
answer the letter because that could be construed as
promising benefits in order to "affect the campaign."
Cooper's remarks likewise contain nothing which
would require me to recommend that the election be set
aside. He merely voiced his own opinion, based on the
practice at his own place of business, that January is a
better time than September for growers28 to discuss
wages.
In these circumstances, therefore, I do not find that
the November 16 discussions interfered with the results
of the election. Uarco, Incorporated, 216 NLRB 1 (1974).
I therefore recommend to the Board that these objec-
tions be overruled and the results certified by the Board.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(5) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has not engaged in any violations of
Section 8(a)(1) and (3) of the Act.
[Recommended Order for dismissal omitted from pub-
lication.]
2' Bearing in mind that Respondent's directors are all growers them-
selves.
514