F & R Meat Co., Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1989

296 N.L.R.B. 759 (N.L.R.B. 1989)

F & R MEAT CO.
F & R Meat Co., Inc . and United Food and Com-
mercial Workers, Local No. 7. Cases 27-CA-
9651 and 27-CA-9902
September 26, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On April 6, 1988, Administrative Law Judge
Earldean V . S. Robbins issued the attached deci-
sion . The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a brief
in response to the Respondent 's exceptions.
The National Labor Relations Board has delegat-
ed' its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings, and
conclusions' and to adopt the recommended
Order.
The Respondent filed a motion to reopen the
record to introduce evidence of employee turnover
occurring subsequent to the hearing. In its motion,
the Respondent asserts that of the 11 employees in
the unit at the time of the commission of the unfair
labor practices only 3 employees remain. We deny
the motion to reopen the record because such evi-
dence is irrelevant under existing Board law con-
cerning factors governing the issuance of Gissel
bargaining orders. Highland Plastics, 256 NLRB
146, 147 (1981). Further, even if, contrary to Board
law, we were to consider employee turnover and
passage of time, the particular evidence proffered
here would not require a different result . See Sec-
tion 102 .48(d) of the Board 's Rules and Regula-
tions.
Even assuming the truth of the facts presented in
the Respondent 's motion , the unlawful conduct
continues to exert a chilling effect on employee
choice. One of the three employees currently in the
unit is discriminatee Melendez, whom the Respond-
ent unlawfully terminated . Further, although the
Respondent claims that discriminatee Griego re-
ceived a valid offer of reinstatement , it has not pre-
sented any evidence to support that assertion. In
light of the small size of the unit , the presence of
these discriminatees creates the potential that the
effects of the unfair labor practices linger, thereby
I The judge , in her conclusions of law , found that the Union represent-
ed a majority of the employees on April 6, 1986 , and that since April 7,
1986, the Respondent violated Sec . 8(a)(5) for refusing to recognize and
bargain with the Union However , the Union first achieved a card major-
ity on April 8 Accordingly , we find that the Respondent unlawfully
failed to recognize and bargain with the Union beginning on April 8,
1986
759
precluding holding a fair election . See Koons Ford
of Annapolis, 282 NLRB 506 (1986), enfd. 833 F.2d
310 (4th Cir. 1988). Moreover , the motion fails to
allege changes in ownership , management, or su-
pervision at the Respondent's plant . The continued
presence of the perpetrators of the unlawful acts
could still exert a coercive effect over the unit em-
ployees. Finally, there is no evidence that the
changes in the composition of the unit are not a
direct result of the unlawful conduct. See
Bridgeway Oldsmobile, 281 NLRB 1246 (1986).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , F & R Meat
Co., Inc., Denver, Colorado, its officers, agents,
successors, and assigns , shall take the action set
forth in the Order.
Michael W. Breeskin, Esq., for the General Counsel.
Robert G. Good, Esq., of Englewood, Colorado, for the
Respondent.
Ernest L. Duran Jr. Esq., of Wheat Ridge, Colorado, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law
Judge. This case was heard before me in Denver, Colo-
rado, on October 6, 7, and 8, 1987. The charge in Case
27-CA-9651 was filed by United Food & Commercial
Workers, Local No. 7 (the Union), and served on F & R
Meat Co., Inc. (Respondent), on April 25, 1986. The
complaint, which issued on June 11, 1986, alleges that
Respondent has violated Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act). An amendment
to complaint , which issued on November 5, 1986 , alleges
that Respondent has violated Section 8 (a)(1), (3), and (5)
of the Act. An amended charge in Case 27-CA-9651
was filed by the Union on November 12, 1986, and
served on Respondent on November 12 and December
18, 1986 . The charge in Case 27-CA-9902 was filed by
the Union on November 18, 1986 , and served on Re-
spondent on November 19 and December 18, 1986. An
amended consolidated complaint issued on December 18,
1986, an amendment to consolidated complaint issued on
September 21, 1987, and a second amendment to consoli-
dated complaint issued on September 29, 1987. As
amended , the amended consolidated complaint alleges
that Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1), (3), and (5) of the Act.
The principal issues herein are:
(1) Whether Respondent unlawfully threatened to
close its facility and threatened employees with dis-
charge and other reprisals if they supported the Union.
296 NLRB No. 95
760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(2) Whether Respondent promised and/or granted cer-
tain benefits to employees to induce them to abandon
their support of the Union.
(3) Whether Respondent imposed more onerous work-
ing conditions on employees because of their support for
the Union.
(4) Whether Respondent reduced the work hours of
Danny Apodaca because of his union or other protected
concerted activities.
(5) Whether Respondent laid off, and refused to recall,
Thomas Griego because of his union or other protected
concerted activities.
(6) Whether Respondent terminated Dennis Melendez
because of his union or other protected concerted activi-
ties.
(7) Whether the Union attained majority status in the
unit appropriate herein.
(8) Whether Respondent 's conduct warrants the issu-
ance of a bargaining order.
On the entire record herein, including my observation
of the demeanor of the witnesses, and after due consider-
ation of the posthearing briefs filed by the parties, I issue
the following
FINDINGS OF FACT
I. JURISDICTION
At all times material herein Respondent , a corporation
with an office and place of business in Denver , Colorado
(the facility), has been engaged in the processing of meat
products . In the course and conduct of the business oper-
ations, Respondent annually purchases and receives
goods, materials , and services valued in excess of
$50,000, directly from points and places outside the State
of Colorado.
The complaint alleges, Respondent admits, and I find
that Respondent is now, and has been at all times materi-
al herein , an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
If. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is now , and has been at all times material
herein , a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's Operations
Respondent is engaged in the wholesale selling of
meat . It purchases beef quarters from various suppliers
which are delivered to its facility by truck , unloaded by
a subcontractor , and placed in a holding cooler. Fore-
man Ernest Wright , an admitted supervisor, then breaks
the quarters in half to produce rounds and loins from the
hindquarter, and chucks and wings from the front quar-
ter. The semiquarters are hooked on rails and rolled to
the boning tables where Garland (Burt) Gibson, who
worked for Respondent in 1986 as a laborer," loads the
I At the time of the hearing herein, Garland was a working foreman.
semiquarters onto four 40-feet long boning tables. Two
boners are stationed at a table, and after boning the semi-
quarters , they throw the meat into a container , called a
"combo bin," which holds about 2000 pounds. When the
combo bin is full, it is moved to a floor scale . After this
meat is weighed and covered, it is loaded onto trucks for
shipment to Respondent 's customers.
Boneless beef pieces are placed in a stainless steel tub
which holds about 1000 pounds. Some of this meat is
ground and formed into ground beef patties. When
Gibson is not loading the boning tables, he runs the
grinder and the patty machine . Two other employees,
Nina McCready and Marsha Yacovetta, package ground
beef into 10-pound bags and boneless beef into 70-pound
boxes . Gibson and truckdriver Gerald Brunetti also help
with the bagging and boxing . All production employees,
including the truckdriver, are under Wright's supervi-
sion . Wright reports to Respondent 's vice president,
Richard (Rick) Elliott, the son of Respondent's sole
stockholder, Frank Elliott. Frank Elliott is also the
father of Yacovetta and of Sharon Weingart , the office
clerical employee.
B. Changes in Terms and Conditions of Employment
Made Prior to the Union Activity and the Alleged
Response of Employees Thereto
It is undisputed that on Friday, March 28, Wright in-
formed Respondent 's employees that effective April 1,
1986,2 Respondent would cease paying health insurance
premiums for dependents of employees and that any em-
ployee desiring coverage for family members could ar-
range to have payment for the additional premium de-
ducted from their paychecks.3
Richard Elliott (Elliott) testified that , in response to
this announcement, on Monday afternoon , March 31, the
boners began a slowdown which continued that entire
week. According to him, during that week, he spent a
majority of his day on the boning floor and production
slowed to about one-half the normal output.4 During this
week, he heard some of the boners expressing their dis-
pleasure, particularly Tom Griego, who kept saying, "I
can't tolerate this, I ain 't going to tolerate this and we
can't do this." Elliott further testified that although all of
the boners except leadman Glen Williams were slowing
down Clark, Griego, and Sada were more obvious than
the others because more beef was piling up in front of
them on the tables.
Wright corroborates Elliott in this regard . According
to Wright, shortly after the reduction in insurance bene-
fits was announced , he observed decreased production
on the part of all the boners with the exception of Wil-
liams, the most noticeable being Griego and Clark. They
failed to respond to his requests to pick up production,
and after the reduction in wages was announced, he ob-
8 All dates herein will be in 1986 unles otherwise indicated
a A written notice to this effect is dated March 27.
* Elliott testified that Respondent and most packers expect beef boners
to bone one beef per hour ; but during the week of March 31 that ended
Friday , April 4, the average production in Respondent 's facility was half
a beef an hour . There is other testimony that Respondent requires boners
to bone one-and-a -quarter beef per hour
F & R MEAT CO.
served Sada and sometimes Apodaca working even
slower than they had the previous week . Other employ-
ees did not slow down any further after they were noti-
fied of the wage reduction.
Wright denies that he or anyone threatened them. Ac-
cording to him, Elliott spent a lot of time in the boning
room during the period of the slowdown and on occa-
sion yelled at Wright in the presence of employees. Once
or twice he yelled at Wright , in the presence of employ-
ees, that the employees had to get production up. On an-
other occasion , in the presence of employees , he yelled if
they could not get the production up Wright could fire
them . He also said , until he was making money, he
would have to take the coffee out of the lunchroom; that
Wright should keep the employees on the floor working,
with fewer breaks ; that employees could not converse at
the worktable unless they increased their production; and
that Wright should remove the radio.
Wright thinks Elliott said something about earphones,
but he does not recall exactly what it was . He admits El-
liott may have said something about a plant shutdown
during this week , but he is not sure . Nor is he sure
whether, during this week, Elliott said, "Who in the fuck
do they think they are messing with? They better not
fuck with me." He thinks he did , but he is uncertain. El-
liott did say during this week, "He would not stand for
this god damn shit."
Apodaca, Clark, Griego, and Sada all testified they did
not engage in a slowdown and did not observe other em-
ployees doing so . Griego denies stating , "I can't tolerate
this." Griego also denies that any of the boners made re-
marks in an attempt to aggravate Elliott . According to
him, he had no reason to be upset about the reduction in
health benefits because his wife had full health insurance
coverage through her job. Further , during a conversa-
tion in February with Elliott regarding Respondent's fi-
nancial problems, he offered to let Respondent drop his
health insurance coverage . Clark also testified that the
reduction in health insurance coverage did not affect him
because he has no family requiring insurance coverage.
However, employee Dennis Melendez testified his pro-
duction did slow down after he learned of the reduction
in wages and he observed other boners slowing down
and taking more restroom breaks . He further testified
that during the period of the slowdown he saw beef ribs
piled high in front of Clark and Griego. Norman testified
the production of some of the employees slowed down
after the announcement of the reduction in insurance
benefits. According to him, they were especially slow
about 2 days after they were told about the reduction in
insurance benefits and continued until they decided to
contact the Union . Similarly, Gibson testified he also ob-
served the slowdown. According to him, he knows when
production slows because he has to load the boning
tables less often.
Based on the corroboration from Norman and Gibson,
I find that some of the boners did slow down their pro-
duction somewhat during the week following the de-
crease in health benefits . However, I do not credit Elliott
that production was decreased by one-half . Such a signif-
icant decrease could have been easily verified by Re-
spondent 's records . Yet, no such records were intro-
761
duced. Furthermore, if half of the beef from that week
had not been boned , then , contrary to Respondent's con-
tentions , Respondent would have had sufficient beef to
support production for at least the first 2 or 3 days of the
week of April 7 even if they received no additional de-
liveries . Similarly, in view of my credibility findings
below and since neither Clark nor Griego was personally
impacted by the reduction in health benefits , I do not
credit Elliott and Wright that Clark and Griego were the
most flagrant participants in the slowdown.
It is also undisputed that on April 4 Respondent an-
nounced a $ 1-an-hour reduction in pay for the boners.
Employee Thomas Griego testified that on April 4, be-
tween 11 :30 and noon in the lunchroom , Elliott told him
and employees Gibson, Dennis Melendez, and Jose Sada
that all of the boners would receive a $ 1-an-hour cut in
wages and if they did not like it they could find work
elsewhere.5 Later that day, according to Griego, Wright
told him Wright would also have to take a $ 1-an-hour
cut in wages.
Wright testified that on Friday, April 4, he met with
the employees and asked if they would take a $ 1-an-hour
rollback . He said Respondent was losing money and if
they did not do something Respondent could not survive
much longer. Griego asked what the alternative was.
Wright said the Company was losing money and if they
did not make money they would have to shut the plant
down. 6
Griego further testified that at the end of the shift he
spoke with Sada, Melendez, and employee Marion Clark
in the parking lot. They decided that in view of their 30-
hour workweek they could not afford to work for a re-
duced wage rate of $8 . 50 an hour . So around 2 p.m.,
they returned to the plant and talked to Wright. Accord-
ing to Griego, he told Wright he could not work for
$8.50 an hour with only 30 hours a week. After Wright
made a telephone call, he told them they would be paid
$9.50 an hour for the following week and then Respond-
ent would close the plant . According to Clark , at this
point, he said , "Well, if they are going to shut it down,
we may as well go to the unemployment office." He
later testified that it was after he mentioned something
about going to the unemployment office that Wright
made the telephone call, returned , and said they would
pay $9 . 50 an hour for the following week and then the
plant would be closed.
Marion Clark testified , without contradiction , that on
the evening of Saturday, April 5, Richard Elliott tele-
phoned him and said he did not know what Wright had
told the employees the previous day but, if they did not
want to work for $8.50 an hour on Monday morning,
there would probably be someone there to take their
place.
S Melendez corroborates this testimony
6 According to Wright , he was not instructed by Richard Elliott to
make this latter statement.
762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
C. The Union Activity and Elliott's Statements in
Response Thereto
On Sunday, April 6, Clark discussed with the other
employees the possibility of obtaining union representa-
tion . He then contacted Al Gollas, packing house direc-
tor for the Union, and later that day Gollas met with
several employees at Clark 's home . Present were Clark,
Ken Norman, Sada, Griego, and Danny Apodaca.
During the course of this meeting , all five of the employ-
ees present signed a petition which states : "We the em-
ployees of F & R Meat Co. choose UFCW Local 7 to be
our representatives [sic] for the purpose of collective bar-
gaining." They also agreed to be identified to Respond-
ent as union organizers . At some point during this meet-
ing, there was some discussion of returning to work the
following week , and Gollas advised them to do so.
According to the undenied testimony of Clark, which
I credit, on Sunday evening he telephoned Wright, told
him he had spoken to the other boners and they had all
agreed to return to work on Monday morning for $8.50
an hour. Wright said, "Okay, I'll see you then." Clark
further testified that when he reported to work on
Monday morning, April 7, he approached Elliott and
asked if Elliott wanted him to go to work. Elliott re-
plied, "Yes, if you want to go in there and go to work
for $8.50 an hour." Clark said, "Okay." Elliott said,
"Well, go to work." Griego testified that on April 7,
prior to the beginning of the shift, Elliott spoke to each
of the boners individually. When he spoke to Griego, he
asked if Griego would work for $8.50 an hour. Griego
said yes. Elliott said good.
Gollas testified that shortly after noon on Monday,
April 7, he and Union Representatives Ron Bush and
Stanislow Kania went to Respondent 's facility and asked
to speak to the person in charge . They were told Fore-
man Ernie Wright was there. Shortly thereafter, Wright
came out and introduced himself . According to Gollas,
he told Wright the Union represented a majority of the
employees,' and wanted to bargain for a contract. He
further stated that a neutral party could be selected to
check the cards or check the petition. He then gave
Wright his business card , a representation petition filed
with the Board that day, and a "known organizer" letter
identifying the five employees as organizers . Wright said
he would give the information to the owners but made
no reply either to the request to bargain or the offer for
a card check.
Wright testified that Gollas introduced himself as
president of the Union , handed him a letter, and asked
him to give it to management . Wright said he would.
According to him, he does not recall Gollas saying any-
thing else . Gollas said nothing about either a majority or
negotiating a contract. Bush and Kania testified in cor-
roboration of Gollas' account of what was said during
this conversation. Both of them testified they thought the
letter Gollas handed Wright was one demanding recogni-
tion and bargaining . Kania testified that in the normal
course of his duties he is involved in organizing and it is
7 According to Gollas, prior to this, he had spoken to Richard Berre-
lez, who indicated he was unable to attend the meeting but would sign a
union authorization card.
standard procedure , when the Union requests recogni-
tion , to give the employer a letter claiming majority
status and requesting recognition . According to him, it
would be very unusual not to use such a letter.
I credit Gollas as to what was said . In this regard, I
note that the April 7 representation petition which was
handed to Wright states a request for recognition was
made on April 7. I also note that Gollas was accompa-
nied by two other union representatives , a complement
more likely in the anticipation of a need for witnesses to
a request for recognition than merely to deliver a known
organizer letter. I also note that both Bush and Kania
corroborated Gollas in this regard . Further, I do not
credit Wright that Gollas introduced himself as president
of the Union.
Wright put the envelope from the Union on Elliott's
desk , and so informed Elliott by telephone . Shortly
thereafter , Elliott returned to the plant and read the doc-
uments left by the Union . Griego testified that at about
12:45 p.m. a red-faced Elliott burst through the door,
holding a piece of paper in his hand , and screamed,
"There's no way I am letting the fucking union in this
plant ."e He then went into the beef-holding cooler, so
Griego could not hear what was said . Norman testified
that Elliott yelled he would "shut the fucking door
before he would let a union in"; and told Wright if they
could not keep up to fire them and that he would take
away the radio and coffeepot. Norman also testified that
on April 8 he heard Elliott say he did not want to let a
union in and he would close the doors before he would
let a union in.
Clark testified that at about 12:45 p .m., Elliott came
into the cooler, yelled at Wright that they had told him
not to say anything to the employees , that he never did
talk to them . He further said he was not "going to stand
this god damn shit" and he wanted "no more talking on
the table , no more radio playing, and no more coffee."9
Clark also testified that on April 8 he heard Elliott tell
Wright and employee Burt Gibson that he was not going
to allow any union in the plant ; he would shut it down
before he would let them come in.
Apodaca testified that at about 12:30 p.m. in the cooler
that day he heard Elliott , in a loud voice , tell Wright he
did not want anyone to wear earphones anymore, he did
not want anyone talking , and if they did not keep up, he
would fire them. Elliott said, "Who in the fuck do they
think they are messing with, they'd better not be fucking
with me." He also said he was not going to have the
union in there at all. 10
Melendez testified he heard Elliott say , "The guys are
trying to get a union in." He further said he did not want
a union in there . According to Melendez , he could not
hear anything else because of the noise."
8 When questioned as to why his prehearing affidavit does not contain
this statement , Griego testified that at the time he gave the statement he
was only asked what Elliott said when he went into the cooler
9 In Clark 's prehearing affidavit he stated Elliott yelled . " I won't stand
for this god damn shit"; and said other things that Clark could not hear.
10 Apodaca's prehearing affidavit is in essential agreement with his tes-
timony
i i Since the boning tables are approximately 40 feet long , some of the
employees are stationed closer to the cooler than others Melendez testi-
fied that the cooler is 3 or 4 feet to the left of him.
F & R MEAT CO.
Sada testified he heard Elliott yelling, "Ernie, they
told me not to tell them a fucking thing . Ernie, I don't
tell them a fucking thing ." He further testified that El-
liott said other things which he cannot remember word
for word. When instructed to relate what was said as
nearly as he could recall , Sada testified that Elliott said
they were not going to have coffee anymore, there
would be no more headphones , no more breaks, and no
more radios played during company time . Elliott also
said, "Who the hell do they think they are fucking
with." They do not know who they are messing with.' 2
Wright admits that a red -faced Elliott came into the
boning room with the letter from the Union in his hand
and said something about a "god damn fucking union,"
he would close the place down, and "they think they
want a fucking union in here, I'll shut it down ." Accord-
ing to Wright, he doubts that employees on the boning
table could hear this latter statement but admits they
may have.
Elliott testified he became angry when he received the
union letter , went into the boning room, and started yell-
ing for Wright. When Wright came over, Elliott said,
"These god damn guys want a fucking union in this
plant." Wright said , "Rick, you better slow down" and
sent Elliott out the door to his office. He admits that,
before he left, he told Wright if there was a union
coming in they would not be able to operate and that he
said it loud enough for everyone to hear . He further
admits saying there would not be any union in the plant.
However , he denies saying he would close the doors of
the plant before he would let the Union come in . He also
denies saying anything else about the Union or making
threats.
Elliott denies making certain statements on April 7.
According to him , he did not say that if the employees
could not keep up , Wright should fire them , or that he
would not "stand for this god damn shit ." According to
him, he made those statements on April 4. He testified
that he said there would be no more headphones or
radios on April 3 or 4, not on April 7. He further denies
saying on April 7, "Who in the fuck do they think they
are messing with. They better not fuck with me." Ac-
cording to him, he said that to Ernie Wright on April 3
and told him the slowdown had to stop . He admits he
made these statements loud enough for employees to
hear . He further testified that he removed the coffeepot
on April 4.
Norman and Sada testified that prior to April 8 free
coffee was available to employees ; however, when they
were recalled after their April 7 layoff the coffeepot was
gone and the radio owned by Elliott had been removed.
Melendez testified the coffeepot was removed the week
ending April 4; and that during the slowdown , before
the advent of the Union, Elliott ceased providing free
12 Sada 's preheanng affidavit states, "Ernie , they told me not to tell
them fucking thing, and Ernie , I don't even tell them a fucking thing' He
said other things , but I didn ' t hear exactly what he said " Sada testified
that the other statements are not in his affidavit because he thought exact
quotes were required He admits that he did not hear exactly some
things, but he did hear the substance I found Sada to be an honest, reli-
able witness who was endeavoring to tell the truth , and I credit him in
this regard.
763
coffee, said they could not listen to the radio , and they
were going to the bathroom too often . He denies that
during the period of the slowdown either Wright or El-
liott threatened to close the plant.
The basic dispute as to what Elliott said on April 7 is
whether statements were made on that date regarding
firing employees , headphones , radios, not "stand [ing] for
this god damn shit" and "they better not fuck with me."
Elliott admits he made all of those statements but con-
tends they were made during the week of March 31, not
on April 7. I credit Melendez as to statements made by
Elliott only to the extent his testimony is consistent with
his prehearing affidavit or corroborated by other evi-
dence . In this regard , I note that his account of the
timing of certain statements by Elliott is inconsistent
with his prehearing affidavit given within less than 2
weeks after the events ; and the inherent incredibility of
his contention that certain statements regarding the
Union were made before the advent of the Union.
I credit the other employee witnesses as to both the
timing and the substance of these statements . Because of
the position of their work stations, all of them did not
hear everything said . However, every statement is cor-
roborated by at least one other witness . Further, Wright
admits that Elliott said he would close the plant before
he would let the Union in. Elliott denies saying he would
close the plant but admits he said Respondent would not
be able to operate if a union came in and also said there
would not be any union in the plant . Assuming, ar-
guendo, that he did use these words, an employee would
reasonably understand him to mean that Respondent's
operations would close down if a union came in. Fur-
ther, I found that Elliott was inclined to a more colorful
turn of phrase than that in his version.
In the circumstances, I find that the mutually corrobo-
rative testimony of Griego, Norman, Apodaca, Clark,
and Sada is the most reliable . I further find that a com-
posite of their testimony more accurately reflects what
occurred . I also credit Norman and Clark that on April 8
Elliott said he would close the plant before he would let
a union in. I further credit Norman and Sada that the
coffeepot had not been removed prior to their April 7
layoff, but was gone when they returned to work on
April 8 and 14, respectively.
D. Wright's Statement with Regard to Norman's
Wage Increase
Employee Ken Norman, a boner, testified that on
April 4 toward the end of the shift he heard Elliott ask
Wright if Norman was "involved with them other
guys." 13 Wright said no. Later that day, Wright told
Norman he had gotten him a $1-an-hour wage increase
from $7.50 to $8.50 an hour.
On April 7 Norman asked Wright if he was getting
$8.50 an hour . Wright said Norman would not get the
raise because of the labor dispute . 14 Norman said either
13 Norman understood him to be referring to the boners' reaction to
the reduction in insurance benefits.
14 Wright admits making this statement.
764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he got paid what the other boners were paid, or he
would quit. Wright then talked to Elliott and Elliott said
Norman should be paid $8.50 an hour until things
changed.
E. The April 7 and 8 Layoffs
Griego, Clark, Norman, and Sada testified, without
contradiction, that on April 7 Wright laid them off
before the end of the shift, allegedly for lack of work.
However, according to Clark, there was meat in the
cooler; and Norman testified there was enough work for
the entire day. According to Griego, as he was leaving
Respondent's facility on April 7, he heard Richard El-
liott tell Frank Elliott that a boner named Ken was in
town looking for work and they should hire him. Frank
Elliott said that would be a good idea. Griego and Sada
testified Wright told them to call him to find out if there
would be work on April 9. On the morning of April 8,
according to Clark, Wright telephoned him to report to
work that day, which he did. On that same day, accord-
ing to Norman, Wright called him to return to work.15
Sada was recalled on April 14. However, Griego was
never recalled.
Frank and Richard Elliott testified they canceled their
meat orders because they thought the boners had walked
off the job. Therefore, on April 7, there was very little
work. Sharon Weingart, Gibson, and Wright testified
that on April 4 all of the boners except Williams and
Norman took their tools's when they left the plant."
According to them, this is unusual as only Marion Clark
takes his tools home at night. Apodaca testified he took
his tools home to sharpen them but left his boots.' 8
Griego, Norman, Clark, and Sada testified that only
Clark left with his tools.
Weingart further testified that on Friday evening,
April 4, she spoke to Griego at the bowling alley. She
asked how the meeting at work went that day. Griego
said Wright had told the boners they would have to take
a $1-an-hour cut in wages; that they were quite upset
over it and had decided to walk. Weingart said, "Now
Tom you know this is temporary. Frank and I had a
meeting with the officers at the bank. They told us we
had to make some cuts. We either make cuts here now
or we would eventually have to close the business down
because we would not show any profits. We could not
meet the expenses we had." Griego replied, "Well, I'm
walking." Later that evening, Weingart repeated this
conversation to Frank Elliott. Griego admits he had a
15 Although Norman testified as to incidents which occurred at work
that day , he also gave testimony regarding his inability to return to work
because of a nonwork-related injury he had sustained which could possi-
bly be interpreted as having occurred that week However, upon a con-
sideration of the entire record, I conclude that Norman 's inability to
work because of an injury occurred in May , not April. Respondent's pay-
roll records indicate that he worked 39 hours during the week ending
April 11, 29 hours during the week ending April 18 , and 23 hours during
the week ending April 25 He last appeared on Respondent 's payroll the
week ending May 2
16 Only Weingart testified that Norman did not leave with his tools.
17 Melendez initially testified in agreement, but on cross -examination
testified that he saw only Sada and Clark leave with tools and that this
could have been on April 7.
16 Apodaca used the boots when he did cleaning after the other boners
left work.
conversation with Weingart at the bowling alley regard-
ing the pay cut during which Weingart explained the
reasons for, and the temporary nature of, the pay cut.
However, he denies saying anything regarding leaving
Respondent's employ.
Elliott testified that, at about 2:15 or 2:30 that after-
noon, Wright called him and said they had a problem;
that everyone was going to quit and had taken their tools
and left the plant. Elliott returned to the plant and asked
Wright what he thought was going on. Wright said he
was sure the boners had all quit. He said they had told
him they were leaving, they could not work with the re-
duced wages. Elliott then called Frank Elliott and told
him "all the guys had walked off the job" and they
should do something about the beef coming in. Frank El-
liott told him to make some phone calls and try to cancel
the beef orders. According to Elliott, he did attempt to
cancel the beef orders, and he was sure he canceled one
load. However, he had difficulty obtaining cancellation
for the other loads, so he turned that task over to Frank
Elliott.
Frank Elliott testified that beef is generally ordered on
Wednesday and Thursday for delivery the following
week. After he was told the boners had walked off the
job, he contacted Respondent's suppliers and was able to
cancel all but one of the orders.' 9 According to him, he
made some calls on Friday, but most of the calls to sup-
pliers were made on Monday. That evening, he went to
the bowling alley and asked Weingart to find out from
Griego the status of the boners and what their feelings
were. She told him Griego had told her they were going
to walk, that they were not going to return to work.
Frank Elliott also testified that they were surprised
when the boners reported to work on Monday morning.
Richard Elliott testified that on Monday morning he told
the boners he was surprised they were there and asked if
they were agreeing to work for the $8.50 an hour. They
all replied yes and went to work. Frank Elliott testified
that Respondent bones three to four full loads of beef a
week. A normal load has from 43 to 50 carcasses, weighs
40,000 to 45,000 pounds, and costs approximately
$40,000. Each boner is capable of boning one-and-a-quar-
ter to one-and-a-half carcasses an hour, and five boners
would bone approximately seven head of cattle an
hour.20 Deliveries were scheduled for Monday, Wednes-
day, and Thursday, April 7, 9, and 10; and since all but
one of these deliveries were canceled, layoffs became
necessary.
Respondent's records show that a full load of beef was
received on April 7; another on April 9; and one on
April 14. According to Frank Elliott, when the boners
showed up for work on Monday, April 7, it was unan-
ticipated and consequently they had very little work for
anyone to do. Further, they were still afraid to place
orders, because they did not know what the situation
might be. Therefore, they mainly tried to bone the meat
already on hand. Respondent has no written confirma-
19 Frank Elliott testified that he canceled three orders for the week of
April 7
20 According to Griego , Respondent requires that the boners bone
one-and-a-quarter head an hour
F & R MEAT CO.
tion or notation of the cancellations or of the conversa-
tions with suppliers. Griego testified that on April 7 he
saw meat being unloaded from a truck when he arrived
at work. He further testified that at the end of the day
the meat cooler was full.
F. The Alleged Offer of a Wage Increase to Melendez
and Alleged Unlawful Statements Made by Elliott
to Melendez
Melendez testified that on April 8 Elliott asked him to
stay and help him clean the coolers because he needed to
get the meat out of the coolers. Melendez said he could
not do so because he had been injured and was going to
the doctor. Elliott said if Melendez would help him out
he would pay him $9.50 an hour. Melendez further testi-
fied that Elliott said, "I don't know why Tom [Griego]
would go to the Union. I've got him working here, and
he can't do the quota as it is, and I'm just doing him a
favor. I don't know why Tom would go to the Union."
According to Melendez' prehearing affidavit, as he
was leaving the plant on April 8 Elliott again confronted
him and said anyone backing the Union would not work
for him. Elliott further said Griego would no longer
work for him, and he would hire a whole new crew if
necessary. At the hearing, Melendez testified he was not
denying that those statements were made but was testify-
ing they were not made at that time. He does remember
Elliott telling Griego he was going to let him go and he
was not going to work there again but, according to
him, that was the previous week when raises were re-
duced. a 1
Elliott admits that on April 8 he offered Melendez an
additional dollar an hour if he would stay and finish
boning what was in the cooler. According to him, he did
so because it was all overtime, and Melendez would
have to do both boner's work and laborer's work. That
is, he would have to load the table, replace the beef in
the cooler when he finished boning, and clean up after
he finished. However, Melendez did not agree to stay.
G. The Removal of Apodaca's Cleanup Work
Apodaca testified, without contradiction, that prior to
the advent of the Union he worked 2-1/2 hours a week
cleaning up after production was over at $8.50 an hour.
He further testified, again without contradiction, that this
work was taken away from him on Tuesday, April 15.
21 The General Counsel argues that Melendez ' testimony that these
statements were made prior to the union activity is tantamount to a refus-
al to acknowledge the truth of the statement in his affidavit, and there-
fore that statement is admissible as substantive evidence I agree that in
the circumstances , herein , Melendez' testimony as to the timing of these
statements by Elliott is a refusal to acknowledge the truth of the state-
ment in his prehearing affidavit ; and that portion of his affidavit is re-
ceived into evidence as substantive evidence . Alvin J Bart & Co, 236
NLRB 242, 243 (1978), enfd. denied on other grounds 598 F.2d 1267 (2d
Cir. 1979); U S Y. Thompson, 708 F.2d 1294 (8th Cir . 1983) It is immate-
rial that the affidavit was given to the Union. See Michigan Products, 236
NLRB 1143, 1145-1146 (1978).
765
H. The Promise to Restore Wages and Health Benefits
to Their Pre-March 28 Level and the Subsequent
Restoration of Health Insurance Benefits
Frank Elliott admits that on or about July 16 he told
employees if Respondent's financial condition continued
to improve they would return the boners' wages to $9.50
an hour, would restore health insurance benefits for de-
pendents to employees, and might pay employees a
bonus. He also admitted that, on that date, health insur-
ance benefits for employees were restored to the pre-
March 28 level. Apodaca, Clark, and Brown testified in
essential corroboration of this testimony. Apodaca and
Brown testified they received the restored benefits about
a month later.
1. The Refusal to Recall Griego
Griego worked for Respondent as a beef boner from
July 1984 until he was laid off on April 7. At the time of
his layoff, Wright instructed him to call on April 8, 9,
and 10 to find out if there was work available. Griego
did call on those days and also on Monday, April 14.
Each time he was told there was no work available for
him. On April 14, Wright also told him that Wright
would call him when he was needed for work. Thereaf-
ter, on April 18, Griego and Melendez were the only
employees to testify at the representation hearing.
Griego has not been recalled to work even though two
new employees were hired as boners. Ed Brown was
hired in April for 2 days and then, beginning in May, he
worked full time until February or March 1987. Ron
Allen was hired in December. On April 21, Griego was
informed by letter that he was laid off effective April 21
because of lack of work. The letter which was signed by
Frank Elliott also thanked Griego for his "high quality
performance of work."
Wright and Elliott admit that after the layoff Elliott
told Wright the last employee to be recalled should be
Griego. Wright testified that following the layoff Rick
Elliott instructed him as to the order in which boners
should be recalled to work. Elliott said Griego was to be
the last one recalled and gave as a reason, "friction." He
further said Griego was the slowest boner they had. El-
liott testified he instructed Wright that if anyone was re-
called from that layoff to make sure Griego was the last
one. According to him, the reason for these instructions
was because, during the week of the slowdown, Griego
was "the worst and the leader of the whole darn thing
that started the slowdown that week because of the dis-
crepancy about his benefits."
According to Wright, at a conference attended by
him, Elliott, and Weingart, it was agreed to recall
Griego. Thereafter, he tried to reach Griego at least
three times, and perhaps four, by telephoning his home
on April 18, May 21, and one or two other times on
dates he can only recall as being after April 18. Howev-
er, no one ever answered the telephone so he quit trying.
He reported his lack of success to both Elliott and Wein-
gart. Frank Elliott testified he gave instructions for
Griego to be recalled and thereafter it was reported to
him that unsuccessful attempts were made to reach
Griego on April 18 and May 21. Further, according to
766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
him, he personally tried twice in April and May, unsuc-
cessfully, to reach Griego by telephone . He also testified
that, at some point, he received a request from the sher-
iffs department in Orange County, California, for a ref-
erence on Griego.22
Griego testified that he has lived at the same address
since November 1983 and has had the same telephone
number since September 1979. He further testified that
prior to the advent of the Union Griego and Elliott had
become friendly on a personal basis ; they attended sever-
al football games together , he and his wife had been in-
vited in 1985 to a Christmas party at Elliott 's home, as
was Gibson , Melendez, and Wright . Also, according to
Griego, he, Elliott, and Williams went to a bar together
approximately twice a week , and Griego bowled with
Weingart and Yacovetta on a weekly basis from Septem-
ber 1985 until June . Yet, neither Weingart nor Yacovetta
ever told him Respondent was attempting to recall him.
J. Melendez' Termination
Melendez was never told directly that he was termi-
nated . However, at the April 18 representation hearing,
Elliott testified he had hired Brown as a permanent em-
ployee to replace Melendez and that Melendez' termina-
tion was effective on April 15 when he received notice
that Melendez could not report to work for a month be-
cause of an injury . According to him , when he received
this notice, he decided to terminate Melendez because he
had to have someone immediately.
On April 29, according to Melendez , he met with
Frank Elliott at Frank Elliott 's request . Frank Elliott
asked why Melendez was doing what he was doing and
why he did not want to work for Respondent anymore.
Melendez said Frank Elliott was not normally around so
he did not know what was going on. Frank Elliott asked
what happened at the plant, what was going on over
there, why was everyone mad at them , why was every-
one going to walk off the job , and why was this happen-
ing? Thereafter, Melendez received a handwritten letter,
dated May 6 and signed by Frank Elliott, which stated,
"Dennis, I plan on putting you to work, at least part
time very soon, possibly May 8, 1986." On June 28 Me-
lendez signed a statement stating, "I quit working at
F&R Meat Co ., Inc., of my own accord ." Frank Elliott
asked him to have the statement notarized , which he did.
Melendez was rehired by Respondent about 5 weeks
prior to the hearing herein.
K. Conclusions as to the Alleged Threats
On April 7 Union Representative Gollas requested rec-
ognition and delivered to Wright a "known organizer"
letter and a copy of the representation petition filed that
day by the Union . Immediately after learning of this visit
and reading the letter and petition , an angry red-faced
Elliott responded by yelling to Wright, in the presence
of employees , various threats against employees . Elliott
and/or Wright admit that Elliott said , "The god damn
guys want a fucking union in this plant ." "Who the hell
do they think they are fucking with. They do not know
22 Griego testified he never left the State
who they are messing with "; "They think they want a
fucking union in here I'll shut it down "; and there would
not be any union in the plant . Employee witnesses credi-
bly testified that Elliott also said , "There's no way I am
letting the fucking union in this plant" ; that he would
"shut the fucking door before he would let a union in";
that he was not "going to stand this god damn shit"; and
he wanted "no more talking on the table, no more head-
phones, no more coffee , no more breaks and no more
radio playing on company time"; and if the employees
could not keep up , Wright should fire them. I find that
the purported direction of his remarks to Wright was a
ploy and that his statements were, in fact, directed to the
employees . I further find that these statements clearly
constitute threats of reprisal because of the employees'
union activities . Accordingly, I find that by the above
statements Respondent has violated Section 8(a)(1) of the
Act.
Further, based on the credited testimony of Norman
and Clark, I find that Respondent violated Section
8(a)(1) of the Act by Elliott's April 8 statements that he
was not going to allow any union in the plant; he would
shut it down before he would let them come in; that he
did not want to let a un ion in and he would close the
doors before he would let a union in. Respondent also
violated Section 8(a)(1) of the Act by telling Melendez
that anyone backing the Union would not work for him;
Tom Griego would no longer work for him, and he
would hire a whole new crew if necessary . I also find
that Respondent violated Section 8(a)(1) of the Act by
Wright's statement to Norman that he would not receive
a promised $ 1-an-hour wage increase because of the
"labor dispute."
L. Conclusions as to Promises, Offers, and Grants of
Increased Benefits
It is undisputed that on April 8 Elliott asked Melendez
to stay after the end of the work shift and help him clean
the cooler, because he needed to get the meat out of the
cooler . It is further undisputed that he offered to pay
Melendez an extra dollar an hour for that work. The
General Counsel argues that Elliott's alleged concern re-
garding the beef in the cooler was a pretext and his real
motivation was to persuade Melendez to withhold his
support from the Union . Elliott contends that the extra
pay was offered because Melendez would be working
overtime and in addition to performing boner's work he
would have to do the laborer's work of loading the
table, returning the beef to the cooler, and cleaning up
after he finished.
I am not persuaded that this offer of an additional $1
an hour on a one-time basis for a few hours overtime
work involving additional responsibilities was an attempt
to persuade Melendez to abandon his support for the
Union. The maximum of $5 or $6 involved could not
reasonable be assumed to be much of an inducement to
abandon union activity which Elliott must have realized
was prompted by the $ 1-an-hour reduction in wage rate
and the elimination of health insurance coverage for de-
pendents. Rather, I conclude that Respondent was in a
bind because of the precipitous layoff of employees on
F & R MEAT CO. 767
April 7 and, following Melendez' initial refusal to stay,
attempted to induce him to change his mind by the offer
of an extra $ 1 an hour . I further find that because it was
overtime work, which involved a combination of job
functions , Respondent was not offering an increase in the
wage rate paid to boners . In all of the circumstances, I
find that by offering Melendez $9 . 50 an hour to perform
certain work after the end of his regular shift on April 8
Respondent did not violate Section 8(a)(1) of the Act.
The July 16 promise and grant of benefits
Frank Elliott admits he told employees if Respondent's
financial condition continued to improve the boners'
wages would be restored to $9.50 an hour, health insur-
ance coverage for dependents would be .restored, and the
employees might receive a bonus.
It is well established that the promise or grant of a
benefit during a union campaign raises an inference that
such promise or grant was designed to induce employees
to withhold their support from the Union . NLRB v. Ex-
change Parts Co., 375 U.S. 405 ( 1964). Here, the inference
is particularly strong since the promise of benefit was to
restore the benefits , in which reduction prompted the
union activity. In the absence of evidence to rebut the
inference, I find that Respondent violated Section 8(a)(1)
of the Act by promising to restore wages and health ben-
efits to their previous level and by promising that it
might give employees a bonus . I further find that Re-
spondent violated Section 8(a)(1) of the Act by restoring
health insurance coverage for dependents.
M. Conclusions as to the Alleged Violations of Section
8(a)(3) of the Act
1. The refusal to permit Apodaca to perform
cleanup work
Respondent does not dispute , or offer any explanation
for, refusing to allow Apodaca to continue to perform
cleanup work previously performed by him, thereby re-
ducing his hours of employment . In view of Apodaca
being identified to Respondent as an employee union or-
ganizer, and the threats of reprisal made by Elliott only
8 days previous , I find that Respondent violated Section
8(a)(1) and (3) of the Act by refusing to allow Apodaca
to continue to perform cleanup work.
3. Melendez ' termination
To support the complaint allegations that Melendez'
discharge was motivated by his union activities , the Gen-
eral Counsel has the initial burden of making a prima
facie showing sufficient to support an inference that Me-
lendez' union activities was a motivating factor in the de-
cision to discharge him. Once this is established, the
burden shifts to Respondent to demonstrate that Melen-
dez would have been discharged even in the absence of
any union activity. Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert . denied 455 U.S.
989 (1982); NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983).
Here, Respondent learned of its employees' union ac-
tivities on April 7 and on that same date Melendez and
Berrelez told Elliott they supported the Union. Elliott's
immediate response to the union activity included threats
to close the plant before he would let the Union in and
to discharge anyone who supported the Union. He also
laid off most of the boners before the end of the work-
day on April 7. Melendez and Griego testified at the rep-
resentation hearing . There, for the first time, Melendez
learned of his termination when Elliott testified that Me-
lendez was terminated on April 15 allegedly because of
an injury which made him unavailable for work for a
month . According to Elliott, he needed someone imme-
diately so he hired Brown as a permanent replacement
for Melendez. However, the evidence does not support
this contention . Brown testified that he first worked for
Respondent for only 2 days in April and then, in May,
he was hired full time. Respondent 's payroll records
show that he worked 8 hours during the week ending
April 11; 7-1/2 hours during the week ending April 25; 8
hours during the week ending May 23; and continued to
work full time thereafter. Thus Brown was not employed
full time until after the expiration of the month Melendez
required to recuperate from his illness . This belies El-
liott's contention of an immediate need to replace Melen-
dez.
In these circumstances, I find that the General Counsel
has made a prima facie showing that Melendez' union ac-
tivities was a motivating factor in his termination. I fur-
ther find that Respondent has failed to demonstrate that
Melendez would have been discharged even absent his
union activities . Accordingly, I find that by terminating
Melendez, Respondent has violated Section 8(a)(3) and
(1) of the Act.
2. The removal of the coffeepot
Respondent does not dispute that the coffeepot was re-
moved thereby depriving employees of the free coffee
they had previously enjoyed. Since I have credited
Norman and Sada that the coffeepot had not been re-
moved prior to their April 7 layoff and that it had been
removed when they returned to work on April 8 and 14,
respectively , and since removal of the coffeepot was one
of the threats of reprisals made by Elliott on April 7 in
response to the employees ' union activity , I find that Re-
spondent thereby violated Section 8(a)(1) and (3) of the
Act.
4. The layoff and refusal to recall Griego
On April 7, around 12 :30 or 1 p.m., Elliott learned of
the employees ' union activities and received a copy of
the NLRB representation petition filed by the Union and
a letter from the Union identifying five employees as
union organizers . All five of the employees listed were
boners . Later that day, two other boners , Melendez and
Berrelez, told Elliott they supported the Union . Immedi-
ately upon learning of the union activity , Elliott threat-
ened to close the plant before he would let a union in, to
fire any employee who could not keep up, and to take
away benefits such as free coffee and permission to listen
to a radio during work hours. At about 1:15 p.m., an
768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
hour before the end of the shift, production was halted
and the boners were told there was no more work for
them that day or for the following day. Yet, on April 8,
several of the boners were recalled , and again , Elliott
made threats to close the plant before he would let a
union in. He also told Melendez that anyone backing the
Union would not work for him; Tom Griego would not
work for him and he would hire a whole new crew if
necessary . Griego was never recalled , even though two
new boners were hired.
Respondent argues that there was no work for the
boners because they had walked off the job on April 4
prompting Respondent to cancel orders for beef deliv-
eries the following week. Again, the evidence does not
support Respondent 's position . Thus, even assuming, ar-
guendo, that on Friday, April 4 , Respondent had reason
to conclude the boners would not report to work on
Monday, April 7; on Sunday, April 6, Clark informed
Elliott the boners were willing to work at the reduced
wage rate and would all report for work on Monday. On
Monday, Elliott questioned the boners individually as to
their willingness to work at the reduced wage rate. They
assured him they were . Thus, almost all of the cancella-
tions-which with one exception , occurred on or after
Monday, April 7-occurred after their return to work.
Further, a load of beef was delivered on April 7 and at
the time of this layoff, the cooler was full of meat.
In these circumstances , Respondent 's argument regard-
ing lack of work is not convincing , nor is Respondent's
argument that the reason Griego was slated to be the last
boner recalled was his slowdown the previous week. As
set forth above, I found Elliott's and Wright' s account of
a slowdown to be rather exaggerated and conclude that
to the extent there was any slowdown , it was not signifi-
cant enough to have reasonably influenced such a deci-
sion . I also note that, despite Respondent 's assertions of
unsuccessful attempts to contact Griego, Griego was
present at the April 18 representation hearing and
bowled with Weingart and Yacovetta twice a week. Yet,
the desire to have him return to work was not communi-
cated to him on those occasions.
Based on the above, I find that the General Counsel
has made out a prima facie case that Griego's union ac-
tivities was a motivating factor in his layoff and the fail-
ure to recall him. I further find that Respondent has
failed to establish that Griego would have been laid off
and not recalled even in the absence of such union ac-
tivities . Accordingly, I find that Respondent violated
Section 8(a)(3) and (1) of the Act by the layoff of, and
the subsequent failure to recall , Griego.
N. The Unit
1. The status of cleanup personnel
The complaint alleges the appropriate unit as:
All production employees, including truckdrivers,
employed by Respondent at its Denver, Colorado
facility, but excluding office clerical employees,
clean up employees , meat peddlers , salesmen,
buyers, guards , temporary employees , casual em-
ployees, all other employees , and supervisors as de-
fined in the Act.
Respondent agrees with this description , with one excep-
tion . Respondent contends that cleanup employees
should not be excluded from the unit . Respondent's pay-
roll records show only one cleanup employee, Norman
Sage . However, it is undisputed that from the beginning
of Sage's employ , the actual cleanup work has been done
by both Sage and his wife, Kathy Sage . During the rep-
resentation hearing,23 Elliott testified that cleanup per-
sonnel work approximately 5 hours daily on the same
days worked by the boners and baggers. However, their
workday begins after the workday of the boners and
baggers ends . If the boners work overtime, cleanup is de-
layed . Wright tells them when they can commence their
workday . The cleanup personnel clean the plant, to meet
U.S. Department of Agriculture specifications , before the
production employees begin their workshift the follow-
ing day . They receive the same insurance and vacation
benefits as the boners, boxers, and baggers and, accord-
ing to Elliott, worked under Wright's supervision. How-
ever, Wright is only in the plant for an hour after the
production employees leave . Although the Sages work
approximately 5 hours a day, the actual hours worked
depends upon how long it takes to finish the cleanup
procedure . They are generally alone in the plant when
they do their work. No one actually supervises them at
work . They just work until all of the cleaning has been
done . They are paid $260 a week.
Weingart testified that when the Sages first started
working for Respondent , they requested , for tax pur-
poses, that they be issued only one check . According to
Weingart , they work 5 hours a day , 25 hours a week,
and each makes $5.20 per hour for a total of $10.40
hourly. If they miss a day's work, they are docked for
that day's pay. Only Norman Sage is covered as an em-
ployee under Respondent 's health insurance plan. Kathy
Sage is covered as his dependent . However, Respondent
pays for the dependent 's coverage . According to Wein-
gart , this is because she is considered an employee enti-
tled to health insurance coverage . Social security , Feder-
al, and state withholding taxes are deducted only for
Norman Sage. Nothing appears on Respondent 's records
to indicate that Kathy Sage is an employee receiving
wages from the Company. Norman Sage also owns Col-
orado Beef Luggers, a company under contract to Re-
spondent to unload beef delivered to Respondent's plant.
Weingart testified that the checks for Colorado Beef
Luggers are not made out to the company but rather are
made out to Norman Sage , individually, and that it is her
understanding that Norman runs Colorado Beef Luggers.
Rick Elliott testified that the Sages' hours vary, but
Weingart denies this . When questioned as to why they
work the exact same number of hours and minutes each
week , she testified , "They do the same thing everyday.
They know exactly the amount of time it 's going to take
them to do it." And, that's what they get paid for. She
further testified that the condition of the plant should be
23 The transcript of the representation hearing is part of the record
herein.
F & R MEAT CO.
the same everyday so their work would be exactly the
same each day. The Sages ' hours for cleanup work are
not recorded even though the hours worked by all other
employees are recorded . Weingart explained that this is
because they have worked there for so long their hours
do not vary; whereas the hours of all other employees
vary from week to week. The only variance in the
Sages' hours is if they do not work a day . Weingart testi-
fied that the Sages report to Wright the time they begin
work and how long they work. Further, according to
Weingart , Respondent would know if the Sages were
"goofing off and not putting in their full time" because
Yacovetta lives in a house, owned by Frank Elliott, lo-
cated on company premises directly behind the plant
where the Sages park their car; and the car is there for 5
hours every workday.
Melendez testified that several years ago he did the
cleanup work for a time after the cleanup man quit. Ac-
cording to him, every part of all machinery that has been
used , the boning line and the floor has to be washed so
that everything is completely clean without any meat or
fat being left on the floor , tables, or in the machinery.
He further testified that he was not paid an hourly rate
for the cleanup work . Rather, he was paid a set amount
under an arrangement made with Elliott . There was no
discussion regarding hours ; Elliott just told him he
would be paid a certain amount-around $125 or $130 a
week-to do the cleanup work regardless of the number
of hours he worked. He did cleanup work for probably
the last 6 or 7 months of his first term of employment
with Respondent, which ended roughly 3 years prior to
the representation hearing.
Melendez further testified that the condition of the
plant varied from day to day. Some days the grinder and
patty machines were used . Other days, those machines
were not used so they would not have to be cleaned.
Also, at times, meat is left in tubs or gondolas , covered
and placed in the freezer until the next day; and at other
times, all of the gondolas are empty and have to be
washed . His wife also helped him . Their hours varied. If
they had a good day and everything went right, they
could get done in 3-1/2 to 4 hours . On the other hand,
there were times when he stayed until 1 a.m. because he
had to clean up with cold water. According to him, the
time it took to do cleanup varied from 16 to 50 hours a
week . According to Melendez , the Sages perform the
same job currently.
The General Counsel argues that the Sages are inde-
pendent contractors and should be excluded from the
unit . It is well established that in determining the status
of persons alleged to be independent contractors, the
common law right-of-control test is used . This test has
been stated by the Board in News Syndicate Co., 164
NLRB 422 (1967), as follows:
Where the one for whom the services are per-
formed retains the right to control the manner and
means by which the result is to be accomplished,
the relationship is one of employment ; while, on the
other hand , where control is reserved only as to the
result sought , the relationship is that of an inde-
pendent contractor . The resolution of this question
769
depends on the facts of each case, and no one factor
is determinative.
Here the Sages performed their work, without supervi-
sion , while alone in the plant . Nothing in the record,
other than the bare assertion of Elliott, establishes that
they receive any kind of supervision . Rather, they
cleaned the plant according to specifications of, and to
pass inspection by, the U. S. Department of Agriculture.
In Air Transit, Inc., 271 NLRB 1108, the Board relied
upon the court's decision in Seafarers Local 777 (Yellow
Cab) v. NLRB, 603 F.2d 862, 872-873 (D.C. Cir. 1978),
in which the court refined the meaning of "right of con-
trol," in a case involving the independent contractor
status of taxicab drivers who leased their vehicles for a
flat fee . There the court stated:
Although this test essentially requires an "all of the
circumstances" approach and no one factor is deter-
minative . . . the extent of the actual supervision
exercised by a putative employer over the "means
and manner" of the worker's performance is the
most important element to be considered in deter-
mining whether or not one is dealing with inde-
pendent contractors or employees.
The court, as summarized by the Board in Air Transit,
supra at 1110, "identified the two dispositive elements as,
first, the company' s lack of control over the manner and
means by which the drivers conducted business after
leaving the garage and, second , the lack of any relation-
ship between the company's compensation and the
amount of fares collected." The court rejected the argu-
ment that Goverment-imposed regulations constitute
company control over the "means and manner" of a
worker's performance.
Here the only indications of an employer-employee re-
lationship are the employment benefits given to Norman
Sage and the payroll deductions of social security and
Federal and state withholding for Norman Sage. Kathy
Sage receives no benefits except those received because
of her status as the wife of Norman and does not appear
on Respondent 's payroll. There is no evidence that Re-
spondent has retained the right to control the actual
manner and means by which the Sages perform their
services except for the requirement that they be per-
formed in compliance with Government-imposed regula-
tions . Such a requirement does not constitute company
control. Air Transit, supra; Don Bass Trucking, 275
NLRB 1172, 1174 (1985); Precision Bulk Transport, 279
NLRB 437 (1986). Further, there is an absence of any re-
lationship between the Sages' compensation and the
number of hours required in the performance of their
services . In these circumstances , I find that the Sages are
independent contractors who should be excluded from
the unit.
2. The unit status of Yacovetta
The parties agree as to the unit description in all other
respects. However, there is some dispute as to whether
specific employees should be excluded from the unit.
Thus, Respondent would include Yacovetta, and the
770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
General Counsel would exclude her. It is undisputed that
she works as a combination boxer/bagger . However, she
is the daughter of Frank Elliott, the sole shareholder of
Respondent.
Section 2(3) of the Act provides, "The term 'employ-
ee' . . . shall not include . . . any individual employed
by his parent or spouse .. .." It is well established that
when the employer is a corporation , the Board has limit-
ed the Section 2(3) exclusion to children or spouses of a
shareholder having a 50-percent or more ownership in-
terest in a closely held corporation . 24 Cerni Motor Sales,
201 NLRB 918 (1973); Scandia, 167 NLRB 623 (1969);
Campbell-Harris, 263 NLRB 1143 (1982), enfd. 719 F.2d
292 (8th Cir. 1983); Central Broadcast Co., 280 NLRB
501 at 512 (1986); see also NLRB v. Action Automotive,
469 U.S. 490 at fn. 7 (1985). Accordingly, since Yaco-
vetta is the daughter of sole shareholder Frank Elliott,
she is not a statutory employee and should be excluded
from the unit.25
3. Martin Persichitti
In its brief, Respondent alleges that Martin Persichitti
should be included in the unit . However , there was no
mention of him either in the representation hearing or in
the hearing herein . At one point during the representa-
tion hearing, Richard Elliott was specifically asked if
there were any employees other than those already men-
tioned . In response Elliott named only one other employ-
ee, Ed Brown. After the close of the hearing herein, the
record was reopened for the limited purpose of receiving
the affidavit of Martin Persichitti dated January 20, 1988.
In that affidavit Persichitti stated that he worked for Re-
spondent from approximately the second week of Febru-
ary 1986 to approximately the second week of April
1986. During this period he worked solely as a salesman
and performed no production work. The Order to Show
Cause why the record should not be reopened to receive
Persichitti's affidavit required that any opposition be sup-
ported by sworn affidavits. However, Respondent's op-
position was not so supported and made no allegation
that Persichitti 's affidavit was inaccurate in any respect.
In these circumstances , I conclude that it is appropriate
to reopen the record to receive Persichitti's affidavit into
evidence.26 Accordingly, based on the sworn statement
of Persichitti , I find that as a salesman he should be ex-
cluded from the unit.
4. Glen Williams
Respondent would include Glen Williams in the unit.
The General Counsel would exclude him as a supervisor.
Elliott testified that Williams is the lead boner who sets
the pace for other boners. He reports for work an hour
before the other boners to set up their equipment. He
also leaves an hour later. He tells the employees when to
go on , and return from, break . However, there is a set
24 It is not necessary here to reach the Board doctrine of exclusion
based on special status
2 The cases cited by Respondent are inapposite in that they apply to
children or spouses of individuals who have less than 50 -percent owner-
ship in the employer
26 Persichitti's affidavit is received into evidence as G.C Exh 33
time for breaks. There is no evidence that Williams
makes the predetermination of this time . He also relays
to the boners instructions from Wright or Elliott that a
break is to be delayed . According to the undisputed testi-
mony of Elliott, Williams has no authority to hire or fire.
He does receive $ 1 an hour more than the other boners.
If the boners are not maintaining the proper pace, he will
tell them to pick up the pace. There is no evidence that
he reprimands boners, nor is there any evidence that he
has the authority to effectively recommend the hire, fire,
or discipline of employees.
Elliott testified that Williams keeps a record of em-
ployees' hours in Wright 's absence and that it is "his
privilege to write the hours down, even if Wright is
there." However, he is not required to do so when
Wright is present . Griego testified during the representa-
tion hearing that Wright keeps track of employees'
hours, that at the end of the day he goes into the lunch-
room and records in handwriting the hours worked.
Griego also testified that aside from telling employees
when they need to pick the pace up, he does not give
any instructions to boners. Williams works at the boning
table during the entire shift. According to Griego,
Wright is around the boning area 3 to 4 hours a day. In
all of the circumstances , I conclude that any instructions
given by Williams to the other boners is of a routine
nature not requiring independent judgment . Accordingly,
I find that he is not a supervisor within the meaning of
Section 2(11) of the Act and that he should be included
in the bargaining unit.
5. David Shelton
During the representation hearing, Richard Elliott tes-
tified that David Shelton is a part-time truckdriver em-
ployed on a call -in basis . Respondent , in its posthearing
brief does not contend that Shelton should be included in
the unit. According to Elliott, Shelton had not worked
for Respondent for at least 1 month before the represen-
tation hearing . He admits Frank Elliott wanted to make
some cuts so Respondent has tried to use only the regu-
lar employees . He denied that Shelton was laid off per-
manently, and testified he would be recalled if business
got better. According to him, he told Shelton if they
could get in some work, he would definitely call him.
When asked if he had any expectation at this time that
Shelton would be recalled in the near future, he an-
swered, "None." Respondent's payroll records show that
Shelton did not work for Respondent in 1986.
It is well settled that a laid-off employee is entitled to
vote in a representation election if the employee has a
reasonable expectancy of recall in the near future. How-
ever,
absence any employer 's past experience or future
plans, where an employee is given no estimate as to
the duration of the layoff or any specific indication
as to when , if at all, he will be recalled there is no
reasonable expectancy . Vague statements by the
employer as to the "chance" or "possibility" of the
employee being rehired do not provide an adequate
basis for concluding that the employee had a rea-
F & R MEAT CO.
sonable expectancy of reemployment . [Foam Fabri-
cators of Minnesota , 273 NLRB 511 at 512 ( 1984).]
In the circumstances herein , I find that Shelton had no
reasonable expectancy of recall in the near future and,
therefore , should be excluded from the unit.
6. Wright , Elliott, and Weingart
The parties stipulated that Wright and Richard Elliott
are supervisors and should be excluded from the unit.
They also stipulated that Weingart is an office clerical
employee who should be excluded from the unit.
7. Ed Brown
It is unclear from Respondent 's records when Ed
Brown was first employed by Respondent . He testified
he does not recall the exact date he first worked for Re-
spondent ; however, he worked for them the first time for
2 days . Respondent 's records show he worked 8 hours
during the week ending April 11; 7-1/2 hours during the
week ending April 25; and 8 hours during the week
ending May 23 . Thereafter he worked full time until
February or March 1987 when he was laid off. Accord-
ing to his testimony , it was when he began work in May
that he was given a steady job . Further, Elliott testified
that Brown was hired as a permanent employee to re-
place Melendez and that he was hired on the date of the
representation hearing , April 18. Thus, Elliott appears to
be conceding that any previous work done by him was
as a casual employee . Further, Respondent 's records in-
dicate that Brown did not work that week , only worked
1 day the following week , and did not work again until
the week ending May 30 when according to Brown, he
was hired full time . In these circumstances , I find that
Brown's employment prior to May was as a casual em-
ployee.
I find that on April 7 the appropriate unit consisted of
the following employees:
Marion Clark
Thomas Griego
Danny Apodaca
Jose Sada
Kenneth Norman
Dennis Melendez
Richard Berrelez
Nina McCready
Gerald Brunetti
Glen Williams
Garland (Burt) Gibson
On April 6, Clark, Norman , Griego, Sada, and Apodaca
signed a document which stated they wished to be repre-
sented by the Union. On that same day, Berrelez in-
formed the union representative he was unable to attend
the meeting but he also wished to be represented by the
Union. On April 7 Al Gollas gave Clark blank union au-
thorization cards . On April 8 union authorization cards
were signed by Griego, Norman, Clark, Apodaca, Berre-
771
lez, and Sada . 27 Melendez signed a card on April 9. Ed
Brown signed a union authorization card on June 28. Ac-
cordingly , I find that the Union represented a majority
of the employees in the appropriate unit as of April 6,
and that this majority was memorialized by the signing
of union authorization cards on April 8.
0. The Appropriateness of a Bargaining Order
I have found above that the Union represented a ma-
jority of Respondent 's employees in the appropriate unit
as of April 6 and had a card majority as of April 8. I
further find that the Union's April 7 demand for recogni-
tion was a continuing one and that in view of Respond-
ent's swift , unlawful response to that demand further de-
mands would be futile. J. P. Stevens & Co., 244 NLRB
407, 423 (1979); Area Disposal, 200 NLRB 350, 352
(1972). Further, the filing of the petition and its process-
ing through a hearing is further indicia of a continuing
demand . See Hardy-Herpolsheimer, 173 NLRB 1109, 1122
(1968).
Thus, the issue herein is whether the Union is entitled
to recognition based on a card count or whether Re-
spondent may lawfully refuse such recognition until the
Union establishes its majority in an election conducted
by the Board pursuant to Section 9 of the Act. In NLRB
v. Gissel Packing Co., 395 U.S. 575, 614 (1969), the Su-
preme Court approved the Board's use of bargaining
orders as remedies in cases marked by substantial em-
ployer misconduct which has the "tendency to under-
mine the Union's majority strength and impede the elec-
tion process" and which were of "such a nature that
their coercive effects cannot be eliminated by the appli-
cation of traditional remedies , with the result that a fair
and reliable election cannot be held."
I find that Respondent 's misconduct meets the Gissel
test . Respondent 's violations were swift and severe.
Threats of plant closure are among the type of unfair
labor practices which destroy election conditions for a
longer period of time than others. Gissel, supra, 395 U.S.
at 611, fn. 31. Further, where as here, Respondent's un-
lawful conduct came within 2 hours of the Union's
demand , the swiftness of Respondent's response demon-
strated that the penalty for union support would be
severe . Coupled with the threats was the shutdown of
production prior to the end of the workday and the in-
forming of employees that no work was available the fol-
lowing day. The failure to recall Griego and the dis-
charge of Melendez indicated to employees that Elliott's
threats were serious and that he would implement them
if they continued to support the Union. This conduct,
and the subsequent promise to restore the benefits which
had prompted the union activity, had coercive effects
which cannot be eliminated by the application of tradi-
tional remedies.
In view of the small size of the unit, the timing and
seriousness of Respondent 's violations, and the substan-
tial percentage of unit employees directly affected by
27 Norman , Clark, and Sada dated their cards April 6 because they as-
sumed that the card should bear the same date as the petition authorizing
the union representation.
772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent's unlawful conduct, I find that Respondent's
unfair labor practices would tend to undermine the
Union's majority status and impede the election process
and that "the possibility of erasing the effects of past
practices and of insuring a fair election (or a fair rerun)
by the use of traditional remedies, though present, is
slight and that employee sentiment once expressed
through cards would, on balance, be better protected by
a bargaining order." Gissel, 395 U.S. at 614-615. Accord-
ingly, I find that a bargaining order is warranted28 and
that Respondent has violated Section 8(a)(5) and (1) of
the Act by failing and refusing since April 8 to recognize
and bargain collectively with the Union as the exclusive
collective-bargaining representative of its employees in
the appropriate unit and by unilaterally, without notifica-
tion to or consultation with the Union, granting health
insurance benefits to unit employees by restoring these
benefits to the level they were at on or before March 28,
1986.
CONCLUSIONS OF LAW
1. Respondent, F & R Meat Co., Inc., is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. United Food & Commercial Workers, Local No. 7,
is a labor organization within the meaning of Section
2(5) of the Act.
3. The following unit is appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act:
All production employees, including truckdrivers,
employed by Respondent at its Denver, Colorado,
facility, but excluding office clerical employees,
clean up employees, meat peddlers, salesmen,
buyers, guards, temporary employees, casual em-
ployees, all other employees, and supervisors as de-
fined in the Act.
4. Since April 6, 1986, the Union has represented a
majority of the employees in the above -described appro-
priate bargaining unit and has been the exclusive collec-
tive-bargaining representative of said employees for the
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
5. Since April 7, 1986, and continuing to date, the
Union has requested , and is requesting , the Respondent
to bargain collectively with it as the exclusive collective-
bargaining representative of the employees in the above-
described unit with respect to their rates of pay , wages,
hours of employment , and other terms and conditions of
employment.
6. Since April 7, 1986, Respondent has violated Sec-
tion 8(a)(5) and ( 1) of the Act by failing and refusing to
28 In reaching this conclusion I have carefully considered , and reject,
Respondent 's argument that a bargaining order is inappropriate because
of an unreasonable lapse of time between the Union 's attainment of ma-
jority status and the issuance of a bargaining order The lasting effects of
Respondent 's serious misconduct cannot easily be eradicated by the mere
passage of time . "The passage of time, though regrettable , is unavoidable,
and is not a sufficient basis for denying the bargaining order ." Quality
Aluminum Products, 278 NLRB 338 at 340 (1986)
recognize and bargain collectively with the Union as the
exclusive collective-bargaining representative of its em-
ployees in the above-described unit.
7. By unilaterally, without notice to or consultation
with the above-named Union, granting health insurance
benefits to its employees, by restoring these benefits to
the level they were at on or before March 28, 1986, Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
8. Respondent has discriminated against its employees
because of their union activities and has thereby engaged
in unfair labor practices in violation of Section 8(a)(3)
and (1) of the Act by:
(a) Laying off Thomas Griego on April 7, 1986, and
thereafter failing and refusing to recall him.
(b) Terminating Dennis Melendez on April 15, 1986.
(c) Reducing on and after April 15, 1986, the hours of
employment of Danny Apodaca by refusing to allow him
to perform clean up work he had previously performed.
(d) Ceasing on April 8, 1986, to provide free coffee to
its employees.
9. Respondent has interfered with, restrained, and co-
erced its employees in the exercise of their rights guaran-
teed in Section 7 of the Act, and has thereby engaged in
unfair labor practices in violation of Section 8(a)(1) of
the Act by:
(a) Threatening employees with plant closure if they
continued to support or assist the Union.
(b) Telling employees there would not be any union in
Respondent's plant.
(c) Threatening to discharge employees if they could
not keep up their production.
(d) Telling employees Respondent would not stand for
their union activities.
(e) Threatening employees with the removal of head-
phones, radios, and free coffee because of their union ac-
tivities.
(f) Threatening employees with the elimination of un-
scheduled restroom breaks and the prohibition of talking
at their work stations during worktime because of their
union activities.
(g) Telling employees that anyone backing the Union
would not work for Respondent, that a fellow employee
would no longer work for Respondent because of his
union activity, and that Respondent would hire an entire
new crew if necessary.
(h) Telling an employee he would not receive a previ-
ously promised pay raise because of union activities.
(i) Inducing employees to withdraw their support from
the Union by promising employees that if Respondent's
financial condition continued to improve Respondent
would rescind the wage cut they had previously re-
ceived, would restore health insurance coverage for de-
pendents to its employees, and might pay employees a
bonus.
(j) Responding to employees' union activities by telling
employees, "Who in the fuck do they think they are
messing with, they. had better not fuck with me."
10. Respondent did not engage in unfair labor prac-
tices, as alleged in the complaint, by offering an employ-
ee $1 more per hour than was paid to other employees.
F & R MEAT CO. 773
11. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY29
Having found that Respondent has engaged in certain
unfair labor practices , I recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent has discharged Dennis
Melendez and has laid off and failed and refused to recall
Thomas Griego in violation of Section 8(a)(3) and (1) of
the Act, I recommend that Respondent be ordered to
offer Melendez , to the extent it has not already done so,
and to offer Griego immediate and full reinstatement to
their former positions or, if those positions no longer
exist , to substantially equivalent positions , without preju-
dice to their seniority or other benefits or privileges, and
that each of them be made whole for any loss of earnings
incurred as a result of the discrimination against him,
with backpay to be computed as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), and with interest as
set forth in Florida Steel Corp., 231 NLRB 651 (1962),
and New Horizons for the Retarded, 283 NLRB 1173
(1987). Since Danny Apodaca is no longer in Respond-
ent's employ, I will not recommend that he be allowed
to perform the cleanup work previously performed by
him.
As the unfair labor practices committed by Respond-
ent were serious and go to the very heart of the Act, I
shall recommend that it cease and desist therefrom and in
any manner from interfering with, restraining, and coerc-
ing its employees in the exercise of the rights guaranteed
to them in Section 7 of the Act.30
In view of Respondent 's extensive and pervasive unfair
labor practices which were calculated to destroy the
Union's previously enjoyed majority status, and my con-
clusion that the application of the traditional cease-and-
desist order and authorization of a representation election
will not eradicate the lingering effects of Respondent's
unfair labor practices or deter their recurrence so that
the holding of a free and uncoerced election is virtually
impossible, I will recommend the issuance of an order re-
quiring Respondent to recognize and bargain with the
Union as the exclusive collective-bargaining representa-
tive of the Respondent's employees in the appropriate
unit.31
On the foregoing findings of fact, conclusions of law,
and the entire record I issue the following recommend-
ed32
29 1 find that the circumstances herein do not warrant a visitatorial
clause remedy as requested by the General Counsel Cherokee Marine
Terminal, 287 NLRB 1080 (1988)
20 Hichmott Foods, 242 NLRB 1357 (1979)
31 NLRB Y. G,ssel Packing Co, supra.
32 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall , as provided in Sec 102 .48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ORDER
The Respondent, F & R Meat Co., Inc., Denver, Colo-
rado, its officers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Refusing to recognize United Food & Commercial
Workers, Local No. 7, as the exclusive collective-bar-
gaining representative of its employees in the appropriate
unit set forth below:
All production employees , including truckdrivers,
employed by Respondent at its Denver , Colorado,
facility, but excluding office clerical employees,
clean up employees , meat peddlers , salesmen,
buyers, guards, temporary employees , casual em-
ployees, all other employees , and supervisors as de-
fined in the Act.
(b) Unilaterally granting health insurance benefits to its
employees by restoring those benefits to their pre-March
28, 1986 level.33
(c) Terminating , laying off, or otherwise discriminating
against employees because of their union activities.
(d) Ceasing, or threatening to cease , to provide free
coffee to its employees because of their union activities.
(e) Reducing the hours of employment of employees
because of their union activities by refusing to allow
them to perform cleanup work they had previously per-
formed.
(f) Threatening employees with plant closure and/or
discharge if they continued to support or assist the
Union.
(g) Telling employees there will not be any union in
Respondent's plant and that Respondent will not stand
for their union activities.
(h) Threatening employees with the prohibition of use
of headphones , playing of radios, unscheduled restroom
breaks, and talking at their work stations during work-
time because of their union activities.
(i) Threatening employees with unidentified reprisals
because of their union activities.
(j) Telling employees that anyone backing the Union
will not work for Respondent, that a fellow employee
identified to Respondent as a union organizer will no
longer work for Respondent and that Respondent will
hire a whole new crew if necessary.
(k) Telling employees they would not receive a previ-
ously promised raise because of the union activities.
(1) Inducing employees to withhold their support from
the Union by promising them that if Respondent 's finan-
cial condition continued to improve Respondent would
rescind the wage cut they previously received, would re-
store health insurance coverage for dependents to its em-
ployees, and might pay employees a bonus.
(m) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
32 Nothing herein is to be interpreted as requiring Respondent to with-
draw these increased benefits
774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) Recognize and, on request, bargain with United
Food & Commercial Workers, Local No. 7, as the exclu-
sive representative of the employees in the appropriate
unit set forth above with respect to rates of pay, wages,
hours, and other terms and conditions of employment
and, if an understanding is reached , embody the under-
standing in a written signed agreement.
(b) Reinstitute the provision of free coffee for employ-
ees.
(c) Offer to Dennis Melendez, to the extent it has not
already done so, and to Thomas Griego immediate and
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions , without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed, and make them whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against them , in the manner set forth
in the remedy section of this decision.
(d) Expunge from its files any reference to the April 7,
1986 layoff of Thomas Griego and the April 15 termina-
tion of Dennis Melendez.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying , all pay-
roll records , social security payment records , timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at its Denver, Colorado facility, copies of the
attached notice marked, "Appendix."34 Copies of the
notice, on forms provided by the Regional Director for
Region 27 , after being signed by the Respondent's au-
thorized representative , shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
a' If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT terminate or layoff our employees be-
cause of their union activities.
WE WILL NOT cease, or threaten to cease, providing
free coffee to our employees because of their union ac-
tivities.
WE WILL NOT reduce the hours of employment of our
employees because of their union activities by refusing to
allow them to perform cleanup work they had previous-
ly performed.
WE WILL NOT threaten our employees with plant clo-
sure if they continue to support or assist the Union.
WE WILL NOT tell our employees there will not be any
union in our plant.
WE WILL NOT threaten our employees with discharge
because of their union activities.
WE WILL NOT tell our employees we will not stand for
their union activities.
WE WILL NOT threaten our employees with the prohi-
bition of their use of headphones, playing of radios, un-
scheduled restroom breaks, and talking at their work sta-
tion during worktime because of their union activities.
WE WILL NOT threaten our employees with unidenti-
fied reprisals because of their union activities.
WE WILL NOT tell our employees that anyone backing
the Union will not work for us, that a fellow employee
identified to us as a union organizer will no longer work
for us and that we will hire an entire new crew if neces-
sary.
WE WILL NOT tell our employees they will not receive
previously promised wage increases because of their
union activities.
WE WILL NOT induce our employees to withhold their
support from the Union by promising them that if our fi-
nancial condition continues to improve we will rescind
the wage cut they previously received, restore health in-
surance coverage for dependents to our employees, and
that we might pay them a bonus.
WE WILL NOT refuse to recognize or bargain with
United Food & Commercial Workers, Local No. 7, as
the exclusive representative of our employees in the unit
described below.
WE WILL NOT unilaterally increase health insurance
benefits by restoring such benefits to their previous level.
WE WILL NOT in any other manner interfere with, re-
strain , or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL recognize and, on request, bargain with
United Food & Commercial Workers, Local No. 7, as
the exclusive representative of the employees in the unit
described below respecting rates of pay, wages, hours, or
other terms and conditions of employment and, if an un-
derstanding is reached , embody such understanding in a
signed agreement . The bargaining unit is:
F & R MEAT CO 775
All production employees , including truckdrivers,
employed by Respondent at its Denver, Colorado,
facility, but excluding office clerical employees,
clean up employees , meat peddlers, salesmen,
buyers, guards, temporary employees , casual em-
ployees, all other employees , and supervisors as de-
fined in the Act.
WE WILL offer to Dennis Melendez to the extent we
have not already done so and to Thomas Griego immedi-
ate and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges previously enjoyed and WE WILL make
each of them whole for any loss of earnings and other
benefits resulting from his discharge , less any net interim
earnings , plus interest.
WE WILL notify each of them that we have removed
from our files any reference to his discharge or layoff
and that the discharge or layoff will not be used against
him in any way.
WE WILL resume providing free coffee to our employ-
ees.
All our employees are free to become or remain, or
refuse to become or remain, members of United Food &
Commercial Workers, Local No. 7, or any other labor
organization.
F & R MEAT Co., INC.