Monfort, Inc.

National Labor Relations Board - Board Decisions

Oct 21, 1992

309 N.L.R.B. 288 (N.L.R.B. 1992)

288
309 NLRB No. 32
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On April 6, 1990, the National Labor Relations Board issued its
original Decision and Order in this proceeding. Monfort of Colorado,
298 NLRB 73. Subsequently, the Respondent and the Union filed
petitions for review with the United States Court of Appeals for the
10th Circuit, and the Board filed a cross-application for enforcement
of its Order. On April 27, 1992, the court enforced the Board’s
Order except as to portions of the reinstatement and backpay remedy
discussed here, and it remanded the case to the Board to clarify the
remedy. Monfort, Inc. v. NLRB, 965 F.2d 1538.
On July 16, 1992, the Board notified the parties that it had accept-
ed the court’s remand and invited the filing of statements of posi-
tion. Thereafter, only the Union filed a statement of position.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
3 Monfort, Inc. v. NLRB, supra at 1547.
4 Id. 5 Id.
Monfort, Inc., formerly known as Monfort of Colo-
rado, Inc. and United Food and Commercial
Workers, AFL–CIO, Local Union No. 7-R,
a/k/a United Food and Commercial Workers,
AFL–CIO, Local Union No. 7. Cases 27–CA–
7742, 27–CA–8072, 27–CA–8316, 27–CA–8563,
and 27–CA–8716
October 21, 1992
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The sole task for the Board in this proceeding is to
modify its original remedy for mass hiring discrimina-
tion by the Respondent pursuant to the directions of
the United States Court of Appeals for the Tenth Cir-
cuit.1 The court has affirmed the Board’s finding, inter
alia, that the Respondent violated Section 8(a)(3) of
the Act by its discriminatory application of facially
neutral hiring criteria to disqualify former unionized
employees who sought reemployment at the Respond-
ent’s reopened plant. The court disagreed only with
that part of the Board’s remedy for this violation
which would have permitted the Respondent to prove
in compliance proceedings that it would not have hired
certain former employees if it had applied its neutral
criteria in a nondiscriminatory manner.
The court held that the Respondent, having elected
to litigate the issue of whether it would not have hired
former employees as part of its Wright Line defense,2
was precluded from relitigating this issue at the com-
pliance phase. Furthermore, the court expressed the
view that ‘‘permitting [the Respondent] to relitigate at
the compliance hearing whether it would have hired a
particular former-employee applicant is simply un-
workable in light of the unfair labor practices found in
this case,’’3 where the Respondent’s hiring decisions
for new applicants (those other than former employees)
were so ‘‘largely subjective.’’4 The court then re-
manded the case with instructions to clarify the rein-
statement and backpay remedy ‘‘so as to preclude
Monfort from relitigating issues that it chose to litigate
at the proceeding on the merits.’’5
Having accepted the court’s remand, we regard its
opinion as the law of the case. In our view, this means
that the Respondent is precluded from proving in com-
pliance that it would not have hired any former em-
ployee applicant either by a nondiscriminatory applica-
tion of its hiring criteria or by a nondiscriminatory ap-
plication of the more lenient, ‘‘largely subjective’’ cri-
teria applied to new applicants. Pursuant to the court’s
instructions, we shall amend the Board’s prior remedy.
SECOND AMENDED REMEDY
Having found that the Respondent violated Section
8(a)(3) and (1) by applying facially neutral hiring cri-
teria in a discriminatory manner to its former employ-
ees who submitted formal employment applications,
we shall order the Respondent to offer all former em-
ployee applicants who would have been hired on or
after March 1, 1982, employment in the positions for
which they would have been hired but for the Re-
spondent’s unlawful discrimination or, if those posi-
tions no longer exist, to substantially equivalent posi-
tions, dismissing, if necessary, any and all persons
hired to fill such positions. The Respondent shall also
place on a preferential hiring list all remaining
discriminatees who would have been hired but for the
lack of available jobs. Furthermore, we shall order the
Respondent to make whole all discriminatees for any
loss of wages and other benefits suffered as a result of
the unlawful failure to hire or delay in hiring them.
Backpay for all discriminatees in this case shall be
computed in accordance with the formula set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), with in-
terest as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987). The Respondent will not be
permitted in compliance proceedings to rebut its rein-
statement and backpay obligations by relitigating the
issue whether it would not have hired the
discriminatees by a nondiscriminatory application of its
hiring criteria or the more lenient, largely subjective
criteria applied to new employee applicants.
ORDER
The National Labor Relations Board orders that the
Respondent, Monfort, Inc., formerly known as
Montfort of Colorado, Inc., Greeley, Colorado, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Board’s original Order reported at
298 NLRB 73 (1990), as modified below.
1. Substitute the following for paragraph 2(b).
‘‘(b) Offer Ruth De Vargas and those former em-
ployees whom it has unlawfully refused to rehire im-
289MONFORT, INC.
mediate and full reemployment in the positions for
which they would have been hired but for the Re-
spondent’s unlawful discrimination or, if those posi-
tions no longer exist, to substantially equivalent posi-
tions at the Respondent’s Greeley, Colorado plant,
without the loss of their seniority or any other benefits,
dismissing, if necessary, any and all persons hired to
fill such positions; make each of them, as well as those
former employees whom it has unlawfully delayed in
rehiring, whole for any loss of earnings and other ben-
efits resulting from the discrimination against them;
and place on a preferential hiring list all remaining
discriminatees who would have been hired but for the
lack of available jobs in the manner set forth in the
second amended remedy section of this decision.’’
2. In 298 NLRB 73 the notice was inadvertently
omitted from publication. We are adding the attached
notice to reflect that omission.
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 pro-
tected concerted activities.
All our employees have the right to join United Food
and Commercial Workers International Union, AFL–
CIO, or any other labor organization, or to refrain from
doing so.
WE WILL NOT threaten employees that, if United
Food and Commercial Workers International, AFL–
CIO, Local Union No. 7 wins a representation election,
our Company would settle an unfair labor practice
case, fire our present employees, and rehire our former
employees.
WE WILL NOT tell employees that if the Union lost
the representation election our Company would vigor-
ously fight an unfair labor practice case, even if it took
years to do so, before our Company would fire even
one present employee in order to rehire a former em-
ployee.
WE WILL NOT threaten employees that the plant will
be closed if the employees selected the Union to rep-
resent them.
WE WILL NOT threaten an employee by telling him
that the employees’ selection of the Union as their col-
lective-bargaining representative will cause the Greeley
plant to be closed again, and suggest to the employee
in the same conversation that the employees should
form their own organization to bargain with our Com-
pany instead of selecting the Union to represent them.
WE WILL NOT unlawfully interrogate employees con-
cerning their union sympathies.
WE WILL NOT tell an employee that employees who
voted for the Union were a bunch of troublemakers
and ought to be fired.
WE WILL NOT threaten an employee that the em-
ployees would lose their profit-sharing benefits if the
employees selected the Union as their collective-bar-
gaining representative.
WE WILL NOT threaten an employee with retaliation
for revealing statements made by a supervisor of our
Company, which had resulted in the Union’s filing of
unfair labor practice charges against our Company.
WE WILL NOT tell an employee that an employee
who would testify against our Company in an NLRB
hearing ought to be shot or abandoned on some island.
WE WILL NOT promise an employee free work
gloves if the employee votes against the Union.
WE WILL NOT tell an employee to solicit other com-
pany employees to sign a petition against the Union,
in the context of telling the same employee that he will
be sure to get a promotion to a leadman’s job.
WE WILL NOT create the impression of surveillance
by taking notes behind employees wearing union insig-
nia.
WE WILL NOT disparately apply our work rules to
permit employees to engage in antiunion activities in
the plant while refusing to permit employees to engage
in prounion activities.
WE WILL NOT fail to rehire or delay in rehiring, be-
cause of past union membership and activities, former
employees of our Company after they have filed Mon-
fort applications for employment concerning produc-
tion jobs at our Company’s Greeley plant.
WE WILL NOT refuse to rehire an employee because
the Union has filed an unfair labor practice charge
with the NLRB against our Company concerning our
Company’s termination of that employee.
WE WILL NOT unlawfully discharge any of our em-
ployees or discriminate against them in any manner be-
cause of their union affiliation or because they engage
in union activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL offer James Little immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and WE WILL make him whole
with interest for any loss of earnings and other benefits
suffered as a result of the discrimination against him.
WE WILL offer to Ruth DeVargas and to all former
employees who filed Monfort applications but were
not rehired because of their past union membership
and activities immediate and full reemployment in the
positions for which they would have been hired but for
the Respondent’s unlawful discrimination or, if those
positions no longer exist, to substantially equivalent
positions at our Company’s Greeley plant, without the
loss of their seniority or any other benefits dating from
the time we should have hired them, dismissing, if
necessary, any and all persons hired to fill such posi-
tions, and WE WILL place on a preferential hiring list
all remaining individuals who would have been hired
but for the lack of available jobs.
WE WILL make whole Ruth DeVargas and each of
those former employees whom we unlawfully failed to
hire or delayed in rehiring for any loss of earnings and
other benefits resulting from our discrimination against
them, less any interim earnings, plus interest.
WE WILL remove from our Company’s files any ref-
erences to our unlawful discharge of James Little and
to our unlawful failure to rehire Ruth DeVargas and
the former employees mentioned above, and WE WILL
notify each one of them in writing that this has been
done, and that the past discharge or failure to rehire
will not be used against them in any way.
WE WILL mail copies of this notice to all our em-
ployees and to the discriminatees mentioned above; WE
WILL publish copies of this notice in local newspapers;
and WE WILL read this notice to all our employees, or
WE WILL permit an agent of the NLRB to read this no-
tice to all our employees.
WE WILL, on request of the Union made within 1
year of the issuance of the Board’s Decision, Order,
and Direction of Second Election, make available to
the Union without delay a list of names and addresses
of all employees employed at the Greeley, Colorado
plant at the time of the request.
WE WILL, immediately on request of the Union, for
a period of 2 years from the date on which this notice
is posted or until the Regional Director of the NLRB
certifies the results of a fair and free election, which-
ever comes first, grant the Union and its representa-
tives reasonable access to our bulletin boards and all
places where notices to employees are customarily
posted.
WE WILL, immediately on request of the Union, for
a period of 2 years from the date on which this notice
is posted or until the Regional Director certifies the re-
sults of a fair and free election, whichever comes first,
permit a reasonable number of union representatives
access for reasonable periods of time to our plant in
nonwork areas during employees’ nonworktime so that
the Union may present its views on unionization to
employees, orally and in writing.
WE WILL, for a period of 2 years from the date on
which this notice is posted or until the Regional Direc-
tor certifies the results of a fair and free election,
whichever comes first, give the Union reasonable no-
tice and give two union representatives a reasonable
opportunity to be present if we gather together any
group of our employees on worktime at our plant and
speak to them on the question of union representation,
and WE WILL, on request, give one of the Union’s rep-
resentatives equal time and facilities also to speak to
you on the question of union representation.
WE WILL, in any election which the NLRB may
schedule at our Greeley plant within 2 years of the
posting of this notice and in which the Union is a par-
ticipant, permit, on request by the Union, at least two
union representatives access to the plant and appro-
priate facilities to speak to you for 30 minutes on
working time. This speech will take place not more
than 10 working days, but not less than 48 hours, prior
to the election.
MONFORT OF COLORADO, INC.