Iowa Beef Processors, Inc.

National Labor Relations Board - Board Decisions

Nov 10, 1970

186 N.L.R.B. 521 (N.L.R.B. 1970)

IOWA BEEF PROCESSORS, INC.
Iowa Beef Processors, Inc. and Amalgamated Meat
Cutters and Butcher Workmen of North America,
Local No. 340, AFL-CIO. Case 17-CA-4172
November 10, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On July 15, 1970, Trial Examiner Milton Janus
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in any
of the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed in
its entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Charging Party
filed exceptions to the Trial Examiner's Decision and
a supporting brief, and the Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
I In agreeing with the Trial Examiner that the complaint be dismissed in
its entirety , we do not rely on a letter from the Regional Director for
Region 17 , refusing to issue a complaint against the Respondent based
upon charges filed by this International Union (Case 17-CA-4135)
2 The Charging Party excepts to the credibility determinations of the
Trial Examiner After careful review of the record, we conclude that these
credibility findings are not contrary to the clear preponderance of all
relevant evidence Accordingly , we find no basis for disturbing these
findings Standard Dry Wall Products, Inc, 91 NLRB 544, enfd . 188 F 2d
362 (C A 3) We note that the Trial Examiner in one instance erroneously
referred to Minor as Moore, and erroneously stated in footnote 8 that
Minor was tardy on November 6, on which date he was absent for an
excused illness
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
521
MILTON JANUs , Trial Examiner : Amalgamated Meat
Cutters and Butcher Workmen of North America, Local
No. 340, AFL-CIO (hereafter called the Union or the
Charging Party), filed a charge on December 22, 1969, and
an amended charge on February 24, 1970. A complaint
based thereon was issued by the Regional Director for
Region 17 on March 4,' 1970, againstlIowa Beef Packers, Inc.1
(hereafter , the Respondent or the Company), alleging
violations of Section 8(a)(1), (3), and (4) of the Act.
I conducted a hearing in this matter at Emporia, Kansas,
on April? and 8, 1970 . Briefs were filed after the hearing by
the General Counsel , the Respondent , and the Charging
Party, and have been carefully considered in my determina-
tion of the matter . The General Counsel and Charging
Party also filed motions to correct the transcript of the
hearing in certain respects and, there being no opposition,
these are hereby granted.
Upon the entire record in this case, and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Respondent is a Delaware corporation which is engaged
in the slaughtering and processing of beef at a number of
plants in Midwestern States, including the plant at
Emporia , Kansas involved here . In the conduct of its
business at the Emporia plant it annually purchases goods
and services valued in excess of $50 ,000 directly from
outside the State of Kansas , and annually ships goods
directly to customers outside the same State which are
valued in excess of $50,000. I find that Respondent is an
employer engaged in commerce within the meaning of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party is a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
Background and Issues
The Company began beef slaughtering and processing
operations at its new plant at Emporia on May 15 , 1969.2
Almost immediately, a campaign to organize the plant
employees was begun by the Union, and a petition for a
Board-conducted election was filed on July 11. On August
I The answer to the complaint avers that the corporate name of the
Respondent has been changed to that shown in the caption of this case,
and that it is a Delaware, rather than an Iowa , corporation , as stated in the
complaint On motion of the General Counsel, the complaint was
thereupon amended at the hearing to reflect these changes
2 Unless specifically noted otherwise, dates and events referred to all
occurred in 1969
186 NLRB No. 48
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
20, a representation hearing was held which was attended
by seven plant employees who had been served with
subpenas by the Union.
The complaint alleged that one of these seven employees,
Kenneth Minor, was suspended from work for 3 days,
August 19-21, and that he, and another of the seven,
Charles Moore, were discharged on November 26, because
of their adherence to the Union and because they gave
testimony at a Board hearing on behalf of the Union. The
complaint also alleged that the plant's personnel director,
Copenhaver, coercively interrogated Moore, on or about
August 16, as to his and other employees' union activities.
Respondent's defenses are that Minor's suspension and
his and Moore's subsequent discharge were due to their
unexcused absences and tardiness, and were made in
accordance with its publicized rules on the subject, and that
they were treated no differently than other employees with
similar attendance records. As for the allegation that
Copenhaver interrogated Moore, the Company denied that
such conversation ever occurred.
Description of Plant Operations
During the period involved here, from May to November
1969, the Emporia plant employed about 120 employees,
and for much of that period it operated 10 hours per day, 6
days per week. Operations on the kill floor begin with the
knocker whose work starts at 5:25 a.m. The carcass is
suspended on a conveyor which moves it to the various
stations where it is broken up. There are about 100 different
stations where work on the carcass is done, and it takes
about 40 minutes to complete all operations on a single
carcass.
Each employee is required to be ready for work at his
station time , which is when the first carcass of the day is
due to reach his position. Thus, the last employees on the
line are expected to be at their station, ready to work, just
about 6 a.m. If an employee is absent or tardy, another
employee must double up or a substitute must be
immediately obtained.3
Company Rules and Practice on Attendance
The plant's attendance policy was formalized early in
June with the issuance of a four page letter entitled "New
Employee Information" (G.C. Exh. 7). It also distributed
wallet-sized cards to its employees (G.C. Exh. 6) giving
them the telephone number to call if they were going to be
absent or late. On the back of the card is a summary of the
Company's absentee and tardiness policy. There are some
differences between the two documents in details, but they
agree essentially in stating the policy to be that an
employee's first unexcused absence will result in a written
warning ; a second unexcused absence within a 6-month
period will result in a 3-day suspension; and the third, in
termination . Absence because of illness is defined as
unexcused if the employee calls in less than 30 minutes
3 The same thing happens if an employee is late in returning from a
break or mealtime . Being late on break is treated as an unauthorized
tardiness.
4 Infrequently, the device has failed to operate , so that employees who
had made a timely call would not have it properly noted . When this
happened , foremen were supposed to check back later with absent or tardy
before his shift starts, and it may be inferred from its actual
practice that, if he does not call in at all, his absence is
unexcused even though it was due to illness. Other
absences, for personal business or other good reasons, may
be granted by obtaining the foreman's approval in advance.
Three days' notice is asked for, but in practice, time off was
given even on one day's notice.
An employee who is going to be late must call in and give
the reason for his lateness. Tardiness two or three times in 1
month calls for a warning, and continued tardiness the
following month may result in suspension, while excessive
lateness will result in discharge. There is some fuzziness in
the Company's description of penalties for tardiness which
is also revealed in its actual practice, as shown in
Respondent Exhibit 3, a summary of discipline meted out
to 41 employees who were currently employed at the time
of the hearing. It shows that unexcused tardiness was
treated somewhat more leniently than unexcused absences,
and that tardiness was tolerated oftener than was strictly
required under the written policy. The tolerance may have
been due, however, simply to varying interpretations by
different individuals as to what constitutes "continued" or
"excessive" tardiness.
Calls to report absence or tardiness which are made
before 5 a.m. are received on an automatic recording device
attached to a telephone in the personnel office.4 A clerk
comes on duty in the personnel office at 5 a.m., plays back
the device, prepares a call-in sheet of the calls already
received, and takes down the necessary information from
employees who call in between 5 and 5:30 a.m. The
foreman then takes the call-in sheet just before going into
the production area. There he follows the conveyor line
observing what employees who have not called in are not at
their stations. He records these names in a notebook and
during, or at the end of the shift, he prepares his daily
report on which, among other information, he lists both
authorized and unauthorized absences and tardiness as of
the beginning of the shift as well as others that occur during
the day. The foreman's daily report then goes to the
personnel office where the absence or tardiness of each
employee, whether authorized or not, is transcribed on his
individual attendance card. The personnel director may
then call the foreman's attention to the fact that under the
policy some employee may be subject to warning,
suspension, or dismissal, or the foreman, on the basis of his
own examination of the records or recollection of the facts,
may decide on whatever disciplinary step is indicated.
Sometimes, something may be overlooked and some step in
the process is not taken when it could have been.
The Company's Attitude toward the Union
The Company admits that it tried to "sell" its employees
on the proposition that they did not need a union to
represent them. Its campaign to persuade them on that
point consisted, so far as the record shows, of remarks made
employees to learn if they had called in. The possibility exists that an
occasional employee would be overlooked, and his absence noted on his
attendance card as unauthorized even though he had called in on time.
There is an even slighter possibility that Minor or Moore or both were so
victimized, but, if it happened , I attribute it to human error rather than to a
deliberate company policy to "get something" on them.
IOWA BEEF PROCESSORS, INC.
by company officials at orientation meetings for the
employees held about May 15, when the plant opened, and
again early in July for employees hired after May 15. At
both orientation sessions an antiumon film "And Women
Must Weep" was shown to the assembled employees.5
The complaint does not allege that any remarks made by
company officials, or the showing of the film, at the
orientation sessions violated Section 8(a)(1), but the
General Counsel and the Union argue that they reveal the
Company's animus against the Union and the likelihood
that the suspension and discharges were motivated by the
same desire to counter the Union's effort to represent the
employees. It is true that an employer's animosity towards a
union may be shown by actions which are not in themselves
independent violations of Section 8(a)(1), and that it is a
factor to be considered in determining whether an
employer has violated the Act in other respects. (Sun
Hardware Co., Inc., 173 NLRB No. 143, fn. 1.) It is a matter
to be proved and, therefore, also a matter which the
employer may attempt to rebut with evidence of its own.
Here, the Company offered, and I received in evidence as
an exhibit, a letter from the Regional Director for Region
17 refusing to issue a complaint against the Company based
on charges filed by this International Union. In his letter,
the Regional Director noted that his investigation of the
charge had failed to reveal any scheme or design on the
Company's part to chill unionism at its other plants. It
seems to me then that the Company's animus against the
Union at the Emporia plant does not in itself indicate any
general propensity or proclivity on its part to violate the
Act.
Those in immediate charge of the kill floor, Foremen
Frahm and Lahr, both denied that they knew that Minor or
Moore had been active on behalf of the Union, and, since
their activities at the plant do not seem to have been
vigorously or openly pursued, I have no reason to doubt
Frahm's and Lahr's testimony on that score. However, they
were aware, as was Copenhaver, the personnel director,
that Minor and Moore had gone to a Board hearing
pursuant to subpenas served on them by the Union .6
Alleged Interrogation of Moore
The only independent violation of Section 8(a)(1)
litigated at the hearing is said to have occurred on Friday,
August 15, when Moore brought in to the personnel office
the subpena to attend a Board representation hearing on
August 20.
Moore testified on direct examination by the General
Counsel that he brought the subpena to the personnel office
and handed it to Copenhaver, who said to him, "I see you
got one too." Moore was then asked if anything else
occurred, and he said he could not recall. General Counsel
then asked him if Copenhaver had asked him how he had
got to know the Union. The question helped Moore to
5 The Board has held that under certain circumstances the showing of
this movie violates Sec 8(a)(1), but that under other circumstances it is
unnecessary to decide whether it does or does not Cf Kellwood Company,
178 NLRB No 8, and Hawthorn Company, 166 NLRB 251, with Louisburg
Sportswear Co, 173 NLRB No. 101. The decisions of the two courts of
appeals which have considered the problem have both held that the film,
though extremely partisan and propagandistic , does not convey a threat of
523
recall more of the conversation. He said that Copenhaver
had asked him where he had met the union man, and he
told him it was at Fanestil Packing, when he had worked
there and they had tried to organize a union . Copenhaver
then asked him, according to Moore, where he had signed a
union card, what time he got the subpena, and whether he
was given it on company property. With these answers,
Moore's recollection was against exhausted.
On examination by the Charging Party, Moore added
further information about his conversation with
Copenhaver-that he not only had asked him if he had
signed a union card, but who else had signed them, and
what he thought about the Union. Moore said that the
conversation lasted about 15 minutes.
On cross-examination, Moore said that Copenhaver had
also asked him if he could make a copy of the subpena, and
had told him, in response to a question of Moore's, that he
would not lose his job over the subpena. Moore confirmed
his earlier testimony that Copenhaver had asked him who
had given him the subpena, when and where he got it, and
where he had met McLean, the union organizer who had
served the subpena on him.
Respondent's testimony concerning Moore's subpena
was given by Kane, then a personnel clerk and now a
supervisor trainee for the Company, and by Copenhaver.
They presented quite a different picture from Moore's.
Copenhaver denied that he had had any conversation with
Moore about the subpena before the August 20 hearing, but
that Moore had come to see him a few days after the
hearing, had told him that he hadn't really wanted to go but
had to because of the subpena, and had asked him if he
would lose his job because of it. Copenhaver said he had
told Moore there would be no problem about it. He denied
asking Moore whether he had signed an authorization card
for the Union or about knowing the union man.
Kane testified that, a few days before the hearing, Moore
had come in to the personnel office and handed him the
subpena which the Union had served on him. Kane testified
that he had been given one or two other subpenas that day
from other employees, and so remarked to Moore about his
getting one too. Kane said he needed a copy of the subpena,
and told Moore to let his foreman know in advance that he
would be away the day of the hearing. Kane, like
Copenhaver, denied having said anything to Moore about
signing a union card, or having asked him how he knew the
union man or how he had been given his subpena.
Although Moore's answers about the subpena incident
almost had to be prodded out of him because of his initial
lack of recollection and his difficulty in telling a connected
narrative, I do not believe that his eventual answers on
direct examination were due to suggestive leading ques-
tions, as the Respondent contends. Nevertheless, even
though Moore was not led, I still believe that his story is not
to be credited. I found the impact of his testimony
considerably weakened by his piecemeal recall of one
reprisal or force and is therefore not a violation of Sec 8(a)(1). Southwire
Company v NLRB, 383 F 2d 235 (C.A. 5), and NLRB v. Hawthorn
Company, 404 F 2d 1205, 1213, (C A. 8), reversing 166 NLRB 251, on this
point
6 Of the seven employees whom the Union had subpenaed, Minor and
Moore had been discharged, three were still employed at the plant, and the
other two had left under circumstances not revealed at the hearing
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
significant fact after another as counsel sought to draw him
out. It sounded like an imperfectly memorized recital of
events which he could not remember directly. I have been
greatly concerned with reaching the proper resolution of
credibility as to this incident since it would be indicative of
Respondent's motivation as to the disciplinary action later
imposed on Minor and Moore, and I have therefore
attempted to sort out Moore' s manner of testifying, which
was unpersuasive, from his story as a whole, which was not
implausible. My judgment nevertheless has to fall definitely
on one side or the other since I cannot reconcile the
opposing versions. Based on those imponderable elements
denominated as demeanor, I credit the version of Kane and
Copenhaver, and therefore find that Moore gave his
subpena to Kane on August 15, and that neither Kane nor
Copenhaver, in his conversation with Moore about a week
later, questioned him about the Union or the circumstances
in which he had been served with a subpena.
The 8(a)(3) and (4) Allegations
Employee turnover during the first 10 months of the
plant's operations was quite high. With a normal comple-
ment of about 120, there were during that period about 450
employees who had quit or been terminated. Of the
employees at work in late March 1970, about 40 had been
either warned once or had already been suspended for 3
days for violations of the Company's rules on tardiness and
absenteeism.
Kenneth Minor
On Saturday, August 16, Minor brought in to the
personnel office the subpena which the Union had served
on him the day before. Minor had had his third unexcused
absence on August 14, and was suspended for 3 days,
Tuesday through Thursday, August 19-21. A critical issue
here is whether Minor was notified that he was suspended
on August 15, the day before the Company teamed he had
been subpenaed, or on August 18, after it had learned about
it.
Before discussing that issue, it would be helpful to set out
Minor's attendance record as portrayed in company
documents, together with Minor's recollections on the
matter. Minor had been employed in the construction of
the plant and had been transferred to production work on
the kill floor when operations began on May 15. His
attendance record on construction work was poor, but with
the beginning of production new attitudes and policies
came into effect, and Minor's attendance record was wiped
clean.
In establishing Minor's absences and tardiness on various
dates I have used his individual card record (G.C. Exh. 3),
his timecards (G.C. Exh. 4), and the supervisor's daily
reports for the pertinent dates (Resp. Exh. 6A-6G). These
are all records prepared in the usual course of the
Company's business. There are differences between them as
to Minor's attendance, but they appear to me to be due to
faulty copying and other human errors, and not to
deliberate fabrication or falsification on the part of the
Company. Thus, Minor's first unexcused absence is dated
May 31 on General Counsel Exhibit 3, while his timecard
for that week shows that he worked on May 31 but had not
on May 30. His second unexcused absence was August 1.
He was given an employee warning notice , known in the
plant as a white slip. It is General Counsel Exhibit 9, is
dated August 1, and reads as follows: "Employee has
violated the absentee policy on call ins. He is warned that
another violation will result in a 3 day suspension."
His third unexcused absence was on August 14, and he
was then given a second warning notice (G.C. Exh. 10)
reading as follows : "Employee was absent without
permission for the second time . He is receiving a 3 day
suspension beginning 8-19-69. He is also being warned that
the next violation will result in termination." Minor
returned to work on August 22, but was away from work
the next day because of an excused illness . For Thursday,
September 18, his attendance card is marked "Late-no
call." His timecard for that day shows that he worked 10
hours, but for September 19, it shows that he punched in
about a half hour late. On October 18 and 22, he had
excused absences to take his wife to and from the hospital.
For October 27, there is a notation on his attendance
card, "Late-no call" and his timecard shows that he was
late that day. The attendance card for the next day notes
that he was late, although his timecard shows that he
punched in shortly before 6 a.m. However, he may have
punched in before his station time and yet have been late in
getting to his station. On November 6 he had an excused
sickness; on November 8, he is marked with an unexcused
tardiness, which is borne out by his timecard, and on
November 26, he is marked with a "Late-no call." This is
the day he was discharged. Moore admits he did not get in
to work until about 8:30 a.m., but he testified that he called
in more than 30 minutes before his station time.
Minor's Credibility
There are parts of Minor's testimony, not directly
relevant to the major issues here, which seem to me to
reveal the uncertainty and inaccuracy of his recollection
and thus bear directly on the credibility of other more
important items in his testimony.
1. Minor testified that he wasn't sure that the timecards
which Respondent introduced as his were actually those
which he had punched, because he insisted that he had put
identifying marks on many of them, while those which were
introduced had no such marks. However, the testimony of
Respondent's pay clerk describing how the timecards for
each employee are prepared at the main office by computer
convinces me that Minor deliberately tried to cast doubt on
the Company's effort to establish the authenticity of its
records.
2. Minor first testified, without hesitance, that he had
been absent without excuse on August 12, but then
admitted after being shown his timecard, that he had in fact
been absent on August 14. Although a seemingly unimpor-
tant variation, attributable to the likelihood that one cannot
recall months later exactly on what day an event occurred,
it appears to me to be significant in the light of his
testimony about his suspension on August 19-21. Minor
would want to show that his unexcused absence in mid-
August was not the real cause of his suspension, but that it
was instead the Union's subpena which induced the
IOWA BEEF PROCESSORS, INC.
Company to suspend him. Thus, the longer the interval
between his unexcused absence and the service of the
suspension notice on him, the greater the suspicion that
what had really motivated the suspension was the subpena
which the Company learned about on August 16.
As to another item of Minor's testimony, more critical to
the relevant issues, I also do not credit him. Minor testified
that the suspension notice was handed him on Monday,
August 18, rather than on Friday, August 15, the day after
his unexcused absence. Frahm, the kill floor foreman,
testified that he presumed the date he gave Minor the
suspension notice was August 15, which would be the day
Minor returned to work after his unexcused absence as well
as the day before Minor turned in his subpena to the
personnel office. Frahm's presumption is undoubtedly
based on his practice of handing out an employee's warning
slip the day he returned to work after an unexcused
absence. Minor's absence was recorded on the supervisor's
daily report for August 14, and, in accordance with the
normal practice, would have been transcribed on Minor's
attendance card the following day, when too the appropri-
ate disciplinary action would be taken.
On the other hand, there is some doubt about Frahm's
testimony which tends to support Minor's testimony that he
was not given the suspension notice until Monday, August
18. It is that the suspension was to begin on August 19. It
would be the Company's normal practice to have the 3-day
suspension begin the day after the employee was handed his
notice, so that in the case of Minor, since his suspension
began on the 19th, it could be inferred that he did not
receive his notice until the 18th, after the Company learned
of the subpena and, as the General Counsel and Charging
Party argue, in retaliation for Minor's presumed sympathy
for the Union. The Company's answer to that is that Frahm
decided not to suspend Minor for Saturday, Monday, and
Tuesday because it was going to be shorthanded on
Saturday and also didn't want to give him an extended
weekend which he might have wanted. Here again, there
are indicators with respect to Frahm's testimony which
point in either direction. The Company has suspended
employees for 3 days on one or both sides of a Sunday more
often than it has suspended an employee in the middle of a
week, but on a few occasions (see Barger in Resp. Exh. 4
and Wilburn Bell in Resp. Exh. 3) it suspended an
employee for an unexcused absence in one week, beginning
on Tuesday of the following week.
On the whole, I am persuaded that Frahm handed Minor
his suspension notice on August 15 rather than on Monday,
August 18. First, Minor finally admitted that he was absent
on the 14th, as the Company's records indicate. They also
show that Minor had two previous unexcused absences,
and that he had been given his first warning slip after his
absence on August 1.7 So, when Minor returned to work on
August 15, the normal procedure would be to suspend him
for 3 days, nor would there be any good reason for Frahm
to have held off giving him the notice for another 2 working
r Minor's credibility was further impaired for me by his denial that he
had ever been given a first warning slip. I find it difficult to believe that the
Company would have concocted so complicated a scheme as to fake
Minor's attendance record in order to lay a foundation for the second
warning slip.
E Whether or not Minor honestly could not recall any previous
525
days. Even though the suspension was not to begin until
August 19, the Company's reason for the delay is not
farfetched. I therefore find that neither Copenhaver nor
Frahm knew that Minor had been served with the Union's
subpena when he was told on the 15th that his suspension
was to begin the following week.
Minor came back to work on August 22, after his
suspension. On August 23, he was absent for an excused
illness . On September 18 or 19, (the latter date according to
his timecard) he was late to work without having called. He
was given two excused absences in October when his wife
was in the hospital. Later that month he was tardy on two
consecutive days, according to his attendance record. On
November 8, he had an unexcused tardiness, and on
November 26, the day of his discharge, he was said to be
"late unexcused." At his discharge interview, Minor told
Copenhaver that he could not remember ever being late
other than that morning, and his tardiness that day should
have been excused, he contended, because of a timely call.8
To show that Minor's discharge on November 26 was
based on a pretext to conceal a discriminatory motive, the
General Counsel offered testimony by an employee, Van
Fossen, and by Minor, to establish that Minor called the
plant that morning at least a half hour before his station
time to report that he would be late because he could not
get his car started. Van Fossen testified that he was in the
first aid room, which adjoins the personnel office, shortly
after 5 a.m. when he heard Minor identify himself on the
telephone and say that he would be in later because of car
trouble. Minor's testimony as to the time of his call overlaps
Van Fossen's somewhat, but his estimate is that he called
between 5:15 and 5:30.
Minor's operation that day was "low back" and his
station time was a little after 6 a.m.9 Frahm testified that he
checks the call-in sheet in the personnel office just before he
goes onto the kill floor at the start of the day's operations.
On his daily report for November 26 (Resp. Exh. 5j), he
entered Minor's name as an unauthorized absence with the
notation "Late no call." He also testified that the notation
meant that Minor had not made a valid call, that is, one
made at least 30 minutes before his station time.
It is not possible to say whether the kill started exactly at
5:25 or as late as 5:30 or how much more than 30 minutes it
took for a carcass to reach the last operation but, in any
event, it is my impression that an employee's telephone call
to report his absence or tardiness had to be received in the
personnel office at least 30 minutes before his station time,
but not later than the time the foreman examined the call-in
list just before he proceeded to the kill floor. The call-in list
for November 26 was not produced or called for by any
party. If Frahm left the personnel office about 5:25, then it
is possible that Minor's call, if made between then and 5:30,
was not communicated to him. This difference of about 5
minutes may serve to reconcile Minor's account that he
called in no later than 5:30 and Frahm's testimony that
Minor's name was not on the call-in list. This may have
tardiness, the fact is that his timecards show that he was late on September
19, twice in the week ending November 1, and again on November 6.
9 Employee Foltz was assigned by Frahm to take over Minor's job
about 6:15 a.m from someone who was already perfornung it.
"Lowbacking" is farther down the line than Foltz's regular job that day,
and Foltzs station time on that job was about 6 a in.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worked out, since Minor's operation was apparently one of
the last on the line, that a call from Minor, to be considered
valid, had in fact to be received as much as 40 minutes
before his station time. This may have been unfair to
Minor, but I am not convinced that his call on November
26, whenever it was received, was deliberately not recorded
or passed on to Frahm in order to establish a basis for his
discharge.
Charles Moore
Moore started working for the Company on May 31, and
was discharged with Minor on November 26. He had
testified at the Board representation hearing in August,
pursuant to the Union's subpena.
His attendance record (G.C. Exh. 2) indicates an
unexcused absence on June 7; late three times on June 21;
late unexcused on June 25 and July 19; late at break on
October 20 and 21; late-no call on October 23; left early
on October 24 (this was in fact excused, as will be explained
later); an unexcused absence the next day, October 25;
another unexcused absence on November 6; suspension for
3 days beginning November 8; and a final unexcused
tardiness on November 26, leading to his discharge.
There is no serious dispute about Moore's unexcused
tardiness before October, although Moore's recollection
about them is vague. I see no reason to believe that Moore's
attendance record does not accurately reflect what was
shown on his timecards and what his supervisors actually
observed. Thus, assuming the accuracy of its records, the
Company was justified in discharging Moore under its
established policy on unexcused absences and tardiness.10
It will be noted that Moore's suspension and discharge
both took place almost 3 months after his testimony at the
Board hearing, and that the complaint does not allege that
his suspension was discriminatorily motivated. Much of the
General Counsel's case as to Moore's discharge is directed
toward showing that he had valid excuses for some of his
absences which are charged as unexcused, from which the
inference is to be drawn that the Company was searching
for a pretext to discharge him in order to conceal its desire
to punish him for his union adherence.
The Absence on October 25
Moore had arranged with a friend to drive him to
Topeka, Kansas, on Friday, October 24, to get eyeglasses.
He first asked Lahr, the assistant foreman in the kill
department, for permission to go, but Lahr told him to see
Frahm, the foreman. Moore then spoke to Frahm who gave
him permission to go, about 11 a.m. Frahm asked him if he
would be back at work later that day because he was
shorthanded. Moore said he would, if his friend would
drive him back in time.11 Moore did not return on Friday,
and he neither called in nor returned to work on Saturday,
October 25. He was charged with an unexcused absence for
Saturday, and when he was given a warning slip for it, he
did not say that he thought he had permission to be absent
that day.
This testimony came out on cross-examination the first
day of the hearing . The next day, on redirect examination,
Moore testified that Frahm had first asked him whether he
could be back that afternoon, and had then asked him if he
would be back on Saturday, to which Moore responded
that he would try to make it . Frahm denied that Moore had
said anything to him about the possibility of his not being at
work on Saturday . I do not credit Moore's recollection that
Frahm asked him if he would make it back on Saturday.
Since Frahm thought that Moore might be able to return to
work Friday afternoon, it seems to me that Frahm would
have no reason to suspect that Moore might not make it
back by the following day.
The Absence on November 6
Moore had to be in Lawrence, Kansas , on urgent
personal business on Thursday, November 6. He testified
that he had asked Assistant Foreman Lahr on Monday and
Tuesday for permission to be off, and that Lahr had
granted it. Lahr testified that he had told Moore to ask
Frahm, the foreman. Moore did not ask Frahm, he said,
because Frahm was away from the plant that day. Moore
did not come in to work on November 6, and Lahr, who
made out the foreman's daily report for that day, noted
Moore's absence as authorized. When Frahm checked the
report, he asked Lahr about the reason for Moore's
absence, and it was then discovered that Moore had not
asked Frahm for permission to be away. When Moore
returned the next day, Frahm handed him a suspension
notice. Moore protested, saying he had gotten Lahr's
permission to be off, and Frahm then said he would check it
again with Lahr. Lahr then reconfirmed to Frahm that he
had not given Moore a leave of absence, and Frahm told
him to personally hand Moore the suspension notice.
When Frahm was at work, he was the only one in his
department who could authorize absences. Moore was
aware of this procedure since, just a few weeks earlier, when
he wanted to go to Topeka, and had asked Lahr for
permission, Lahr had told him to get Frahm's approval. On
being asked, Frahm had approved Moore's leave. Yet, this
time, according to Moore, it was Lahr who had given him
permission to take Thursday off.
The issue to be decided is whether Lahr did in fact give
Moore a leave of absence for Thursday, November 6, either
because he exceeded his authority or because Frahm was
not at work the days that Moore had asked. I do not believe
that Lahr would grant time off to an employee in advance,
while Frahm was on duty but would, as he had done with
Moore once before, tell him to see Frahm. But was Frahm
at work the Monday and Tuesday preceding November 6,
when Moore says that Lahr told him he could be off?
Frahm testified that he had been away from the plant on a
Monday and for 2 or 3 hours the next day on some
unspecified dates between October 1969 and April 1970. It
is possible that it was the very Monday on which Moore
10 As a matter of fact, Moore received two first warning slips , on July overlooked when he was given another notice after he had been transferred
21 and October 27, before receiving a second , or suspension notice on to the kill department.
November 7. The mixup occurred because the July slip had been issued 11 According to the Rand-McNally Standard Highway Mileage Guide,
when Moore was working , in the offal department , and had been Emporia is 58 miles from Topeka.
IOWA BEEF PROCESSORS , INC. 527
had asked Lahr. But Frahm would have been back at the
plant most of Tuesday and all of Wednesday, available to
consider Moore's request to be away on Thursday.
Assuming that Frahm was not at the plant on Monday,
Lahr would know when Frahm was due back and, since
Moore's request was made a few days in advance, I credit
Lahr's testimony that he had told Moore to get Frahm's
permission to be away. Since Moore did not, Frahm was
justified in treating Moore's absence on November 6 as
unauthorized.
Late on November 26
The day he was discharged, November 26, Moore was 2
or 3 hours late in reporting to work, without having called
in. Moore's reason for being late is one I regard
sympathetically, but it is obvious from what has gone
before that the Company gave little consideration to good
excuses for failing to call in on time.
The Brucker-Kane Conversation
Mendoza and Kane agree on, which persuades me that
Kane's version that he was relating a pool hall rumor is
more credible than Mendoza's, that Kane was revealing the
antiunion motivation behind the discharges. It is their
agreement that Kane began the conversation with Brucker
by asking him if he had heard the latest. The question is a
rhetorical one, set by linguistic convention for passing on a
bit of information one has heard, without vouching for its
accuracy, particularly when it is said in a joking manner.
Also, Kane's testimony that he had told Brucker that the
rumor concerned Minor and Moore going to a recent union
meeting seems more credible than Mendoza's that Kane
had said Minor and Moore were discharged for going to
"that hearing," since the hearing to which Kane was
referring had happened 3 months before, and would not
therefore be immediately understood by Brucker. Since
Kane was saying that the discharges were for having gone
to a union meeting in the past week, it becomes more likely
that Kane was merely relating an item of secondhand
misinformation.
As part of his case to prove the Company's improper
motive in discharging Minor and Moore, the General
Counsel called employee Mendoza to testify concerning a
conversation he had overheard a few days after the
discharges. On the Saturday following the discharges, at or
about 5:15 a.m., Mendoza was in the first aid room, which
adjoins the personnel office, when he overheard Pat Kane,
a personnel clerk, talking with Brucker, a leadman.
According to Mendoza, Kane asked Brucker if he had
heard the latest, to which Brucker answered "no." Kane
then asked him if he knew what the real reason was that
they had fired Minor and Moore. Again, Brucker said "no."
Kane then said it was "for going to that hearing" and went
on to say that they had gotten $45 for going, and for that
kind of money, he would have gone too. Mendoza was
positive that Kane had not said that he was passing on a
rumor as to why Minor and Moore had been discharged.
As was to be expected, Brucker's and Kane's versions
differ significantly from Mendoza's. According to Brucker,
Kane had said to him in a joking manner that he had heard
downtown (or some equivalent) that Moore had been fired
because of his union activities. Brucker did not recall Kane
mentioning Minor's name.
Kane said he had asked Brucker, while Mendoza was
there, if he had heard the latest, and then went on to say
that he had heard people saying that the reason Minor and
Moore were discharged was because they had gone to a
union meeting in Kansas City the night, or the week, before
they had been discharged, and that they were supposed to
have gotten $45 for attending. Kane testified that he had
heard this in a pool hall.
Was Kane revealing the true, hitherto secret, reason for
the discharge, or was he passing on pool hall gossip?
Because of his job in the personnel office he could have
been privy to Copenhaver's motives, although why he
should reveal them to Brucker in earshot of a possibly
unfriendly employee is hard to understand.12 There was,
however, something in the conversation which both
Disparity of Treatment
The General Counsel and Charging Party argue that,
even if Moore and Minor were technically subject to
discharge under the Company's policy, it nevertheless
interpreted its policy more harshly for these two than it did
for others, because it intended to discriminate against them.
The question requires a comparison of their records with
that of other employees who had been disciplined for
absence and tardiness.
Recapitulating Minor's attendance record: he was given
his first warning slip on August 1, after his second
unexcused absence; was suspended after his next unex-
cused absence on August 14; was then late unexcused three
times between September 18 and November 8; and was
discharged on November 26, after being late again.
Moore's first notice, dated July 21, was a warning for
coming in late, and his attendance record shows that he had
been late on 3 different days and had been absent once up
to that point; through an oversight he was given another
first warning slip on October 27, instead of being suspended
for his unexcused absence on October 25; he had also been
late returning from break on 2 consecutive days in October;
he was given a suspension notice on November 7 for being
away without permission the day before, and was warned,
in accordance with the stated policy, that another violation
would be grounds for termination. On November 26, he
was again late unexcused, and this resulted in his discharge.
Among the other 14 employees whom the Company
discharged in the first 10 months of its operations for
violation of attendance rules (Resp. Exh. 4), there are also
variations in their treatment, based apparently on the mix
of unexcused absences and tardiness. In accordance with
the Company's policy, unexcused tardiness was treated
somewhat more leniently than unexcused absences. Thus,
comparing employees Hernandez and Johnson, the former
was suspended for two consecutive unexcused absences
and was discharged on his third, while the latter was given a
12 Mendoza was one of the seven employees whom the Union had
subpenaed although Kane said he did not know that at the time
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
warning slip after three unexcused lates , suspended after
being late four more times , and was then discharged after
two more lates.
Again, McGuire was warned on his first unexcused
absence , suspended after the next two, and terminated after
one more such absence , while Tabares was not given a
warning slip until his fifth unexcused late, was suspended
on his second unexcused late thereafter , was again
suspended after two more unexcused lates , and was finally
discharged after another two lates.
Just as summary as McGuire 's was the discipline meted
out to Van Syoc and Hess-the former was warned for his
first unexcused absence , suspended for the next, and
terminated for the third , while the latter fared only slightly
better . He was given a warning slip on his second
unexcused absence , and was first suspended, then terminat-
ed for his next two unexcused absences.
Of the 14 employees whose attendance records are
summarized in Respondent 's Exhibit 4, I would say that
Whitaker was treated most leniently. He was given a verbal
warning for his first unexcused absence , was suspended
after another two unexcused absences , but was then
allowed six "late unexcused" before being given a final
verbal warning . He was then terminated on his next late
unexcused.
Minor and Moore were not treated as summarily as Van
Syoc, Hess, McGuire , or Hernandez, nor are there any
significantly noteworthy differences between the attend-
ance records of Minor and Moore , on the one hand, and
those of Johnson , Tabares, or Whitaker.
It would prolong this Decision unduly to compare in
detail the treatment given to Minor and Moore with that
given to the 40 employees listed in Respondent's Exhibit 3,
who have been disciplined for violations of the Company's
attendance policy, up to and including 3-day suspensions. I
have checked the actions taken against the offenses
committed , and have found no wide swings in the treatment
which has been accorded them. If the Company singled out
Minor and Moore for reasons other than their poor
attendance , it cannot be verified from a comparison of their
records with that of 50 other employees.
It is always possible , considering that employees are
given little or no opportunity to see or question the entries
on their attendance records, that injustices have resulted in
some cases from errors in copying , from breakdown in
communication between personnel office and foremen, and
from a refusal to accept as excuses for lateness or absence
explanations which might be satisfactory to more tolerant
supervision. There are some possible instances of such
injustices in the case of Minor's and Moore 's employment,
but I have not been persuaded that they were due to any
strong antipathy toward them because of their union
activities, if company officials even knew about them, or
because they had testified at the representation hearing
petitioned for by the Union . I therefore find that the
allegations of the complaint as to discrimination against
Minor or Moore have not been proved , and I shall
recommend their dismissal.13
Upon the basis of the foregoing findings of fact and
conclusions and the entire record in this case, I make the
following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2 (6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The General Counsel has failed to establish by a
preponderance of the evidence that the Respondent
engaged in the unfair labor practices alleged in the
complaint.
RECOMMENDED ORDER
I recommend that the complaint herein be dismissed in
its entirety.
13 South Carolina Industries , Inc., 181 NLRB No. 164 ; Trojan Steel
Corporation, 180 NLRB No . 107; and Maryland Cup Corporation, 178
NLRB No. 59.