Monfort Of Colorado, Inc.Download PDFNational Labor Relations Board - Board DecisionsApr 6, 1990298 N.L.R.B. 73 (N.L.R.B. 1990) Copy Citation MONFORT OF COLORADO 73 Monfort of Colorado, 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, 27-CA-8716, and 27-RC-6368 April 6, 1990 DECISION , ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On November 22, 1985, Administrative Law Judge Roger B. Holmes issued the attached deci- sion . The General Counsel, the Charging Party, and the Respondent each filed exceptions and a supporting brief. The Respondent filed a brief in support of the judge's decision. The General Coun- sel and the Charging Party each filed briefs in reply to the Respondent's exceptions. The Re- spondent filed a brief in reply to the General Coun- sel'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 record in light of the exceptions and briefs and has decided to affirm the judge's rulings,' findings,2 and conclusions only to the extent consistent with this Decision and Order. This case involves the Respondent's Greeley, Colorado meat processing facility, which reopened in March 1982 after a 2-year closure. The com- plaint alleges that the Respondent committed nu- merous violations of Section 8(a)(4), (3), and (1) of the Act at the Greeley plant during the period from early 1982 until late 1983. In addition, objec- tions filed by the Union in Case 27-RC-6368 gen- erally parallel certain unfair labor practice allega- tions in contending that the Respondent engaged in conduct interfering with employees' free choice in an election held on June 24, 1983. The broadest issue presented in this case is whether the Respondent's hiring practices in re- opening the Greeley plant violated Section 8(a)(3) I The Charging Party excepts to the judge 's ruling denying its motion to strike certain testimony given by the Respondent 's group vice presi- dent, Michael L. Sanem We have reviewed Sanem's testimony and the relevant exhibits referred to during his testimony and we find no basis for reversing the judge's ruling. 2 The General Counsel and the Charging Party have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge 's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. and (1) by unlawfully discriminating against former production employees who had been represented by the Union and had struck in support of its bar- gaining position prior to the plant's closing in March 1980. The judge found that the Respondent did not -violate the Act either by the hiring criteria used or by the application of those criteria in making hiring decisions. Although we agree with the judge that the criteria were not facially dis- criminatory, we disagree with him as to the Re- spondent's application of the criteria and, accord- ingly, we find that the Respondent unlawfully dis- criminated against applicants from its preclosure unionized work force by disparately and more strictly adhering to its hiring criteria when consid- ering those applicants. These issues are discussed below in section I. With respect to other issues presented, we re- verse the judge's dismissal of the 8(a)(3) and (1) complaint allegation concerning the termination of James Little. This issue is discussed below in sec- tion II. We adopt, without 8(a)(3) and (4) viola- tions for individual acts of discipline and a refusal to rehire. We also adopt the judge's disposition of complaint allegations of 8(a)(1) violations except as set forth below in section III. Finally, we agree with the judge that the Respondent engaged in ob- jectionable conduct warranting the setting aside of the election results, as discussed below in section IV. I. 8(A)(3 ) AND (1) ISSUES CONCERNING THE HIRING PROCESS AT THE RESPONDENT'S REOPENED FACILITY A. Background The Respondent's operations at the Greeley plant involve the slaughter and processing of beef for sale to retailers and restaurant operations. The Union (through its predecessor)3 commenced rep- resentation of Greeley - production employees in 1962. A series of collective-bargaining agreements governed the parties' relationship from then until 1979. The last collective-bargaining agreement ex- pired on October 31, 1979. In negotiations for a new contract in 1979, the Respondent's position was that competitive pres- sures resulting from more than a decade of techno- logical and corporate changes in the meatpacking industry required significant reduction in labor costs and an increase in productivity. The parties were unable to agree on the Respondent's contract proposals reflecting this position. Consequently, all Z In 1980, the predecessor , Amalgamated Meat Cutters and Butcher Workmen of North America, Local 641, formally merged into the Union. 298 NLRB No. 16 74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Union's approximately 950 unit members went on strike on November 2, 1979. The strike lasted until January 14, 1980, when the Union made an unconditional mass offer to return to work without a contract after the Respondent announced that it would begin using replacement labor on that date. The poststrike period was marked by continuing employee protests and substantial grievance activi- ty. Unfair labor practice charges concerning the suspension or discharge of 142 employees during that period culminated in a 1982 informal settle- ment agreement providing for backpay and expunc- tion of disciplinary records. For undisputed economic reasons,4 the Respond- ent initiated a plantwide, temporary layoff in March 1980. On March 31, 1980, the Respondent notified employees that its board of directors had decided to close the plant and that the layoffs were perma- nent . The Respondent had more than 800 produc- tion employees at this time.5 On May 11, 1981, the Respondent reopened a meat storage freezer at the Greeley plant. After the Respondent notified and met with the Union, pref- erential rehire was given to three former employ- ees needed to staff the freezer. Under the collec- tive-bargaining agreement, which expired in 1979, laid-off employees lost all rights to seniority and reemployment after 1 year. Gene Meakins, the Re- spondent's vice president in charge of industrial re- lations and public relations, credibly testified that preferential rehire was nevertheless given in the freezer situation because of an outstanding pro- posed unfair labor practice settlement agreement that never actually went into effect. During the fall of 1981, there were preliminary discussions and actions taken with respect to re- opening the entire Greeley facility. In January 1982, the Respondent's president, Ken Monfort, discussed the hiring of employees with Vice Presi- dent Meakins and the Respondent's counsel. A de- cision was made to follow the hiring procedures and criteria that the Respondent had first used to staff the Grand Island, Nebraska meatpacking plant after its purchase by the Respondent in 1979.6 4 Greeley plant operations suffered substantial losses in each fiscal year from 1976 through 1980. s The Respondent estimates that it had 837 employees at the time of the plant's closure R Exhs. 194(a) and (c). That number includes 51 indi- viduals lured as strike replacements on January 14, 1980, and for whom there are no attendance cards. G C Exh 622. According to the testimo- ny of the Respondent 's witnesses , many of the replacements actually worked in nonunit positions after the strike In addition, the 837 employ- ee figure includes 21 individuals hired in September and October 1979 for whom no poststrike 1980 attendance cards exist G.C. Exh 623. 6 The Respondent's conduct at Grand Island has been the subject of extensive Board litigation . In Monfort of Colorado, 256 NLRB 612 (1981), enfd. sub nom Maritime Union v. NLRB, 683 F.2d 305 (9th Cir. 1982) (Monfort I), the Respondent was found to have unlawfully recognized and entered into a contract with a minority union "m order to avoid any B. The Respondent's Hiring Criteria Both the Grand Island and Greeley hiring stand- ards criteria, with the exception of the medical cri- teria, were developed by Meakins with the stated goal of hiring the best possible work force based on objective considerations. It is undisputed that the Grand Island operations were productive and profitable with the work force hired pursuant to these criteria, and the Respondent knew this when considering plans to reopen the Greeley plant. The Respondent's "Hiring Standards Criteria" for the Greeley reopening covered absenteeism, discipline, medical condition, accidents, interest and ability, days and hours of work, and attitude. In particular, the criterion for absenteeism disqualified an applicant for more than six "absents and/or tar- dies" during any of the last 3 years of active em- ployment; the criterion for discipline disqualified an applicant for receiving any written disciplinary action in the previous 3 years or for being dis- charged for cause during the previous 5 years; and the criterion for accidents disqualified an applicant for more than one lost-time accident in the last year of active employment or for a general history of being accident prone. The criteria gave no credit for industry skill and experience or for em- ployment at the Greeley plant prior to its closing. According to the credited testimony of numerous witnesses, skill or experience was not generally necessary or required for employment in produc- tion jobs in the meatpacking industry. The Greeley hiring criteria differed in some re- spects from the Grand Island criteria. The original Grand Island absenteeism criterion allowed an av- erage of six absences per year during the previous 2 years and did not combine "tardies"; that stand- ard was revised within 2 months to permit an annual average of 12 absences . In addition, the Grand Island disciplinary criterion contained an 18- month disqualification period and gave no special consideration to a prior discharge. According to the credited testimony of the Respondent's wit- nesses , the number of permissible absences varied in order to assure an adequate number of qualified applicants. Because the unemployment rate in claim for recognition and bargaining by a rival union , particularly the UFCW, the Union which represented the [predecessor 's] employees and the Employer's employees at its Greeley plant." 256 NLRB at 613 Thereafter, in Monfort of Colorado, 284 NLRB 1429 (1987), enfd sub nom. Food & Commercial Workers v. NLRB, 852 F.2d 1344 (D.C. Cir. 1988) (Monfort II), the Board found that "the Respondent engaged in a continuing pattern of violations including unlawful termination of union supporters, interrogations, threats of plant closings, promises of additional benefits and unproved working conditions , unilateral changes in working conditions, threats of discharge , solicitation of employee complaints, and grants of unlawful aid and assistance to one of two competing unions " 284 NLRB 1429 fn 3. MONFORT OF COLORADO 75 Greeley in 1982 was much higher than the unem- ployment rate in Grand Island in 1979, a more re- strictive standard was used. The variation in the length of the review period for the disciplinary cri- terion was attributed to the need to review at least 1 year of a former employee's preclosure record at the Greeley plant. Prior to the Greeley plant's closing, the Re- spondent's hiring process, including the consider- ation of prospective strike replacements in January 1980, did not include the use of written hiring cri- teria other than medical criteria, nor did it give consideration to an applicant's skill or experience in the industry. In addition, the 1982 Greeley hiring criteria for absenteeism differed from the standards at the plant before its closing. Reasonable attend- ance had then been defined as a maximum of three absences and two tardies (considered separately) per calendar quarter. The Respondent's "Health Services Screening Criteria" provided that an applicant would not be hired if that individual had a prior history of back surgery, tendonitis or carpal tunnel syndrome, or shoulder or joint fractures or surgeries. Such infir- mities often result from employment in meatpack- ing production jobs. An applicant might also be disqualified on the basis of a history of congenital or mechanical back problems, previous joint prob- lems, hypertension, diabetes, epilepsy, arthritis, car- diac problems, allergies, morbid obesity, hypersen- sitivity to heat or cold, or alcohol or drug depend- ency. These medical criteria were developed by Health Services Manager Kit Conklin. According to her credited testimony, she prepared the criteria based on her 14 years of experience, a small business out- line, and advice from the Respondent's physicians. During the application process described below, applicants were required to complete a medical his- tory questionnaire and to undergo a physical exam- ination and additional diagnostic studies if neces- sary. An applicant was not supposed to be hired if a medical restriction was placed on the applicant's ability to perform 'any job in the plant. An appli- cant with some of the aforementioned medical problems was not automatically disqualified if the condition was not severe and the applicant was under a doctor's care.? C. The Application and Hiring Process By letter dated January 19, 1982,8 Meakins ad- vised the Union that the Respondent planned to 4 In addition to the written hiring criteria , the Respondent asserted that it followed a policy disqualifying any applicant currently working for a subcontractor or another division of the Respondent. 8 Unless otherwise stated, all subsequent dates are in 1982. resume production in Greeley on March 1 and that applications for hourly production employees would be accepted beginning January 26. The letter also stated, "There shall be no preferential hiring status for any former Monfort employee. All persons interested in working for the company must apply, beginning on January 26, 1982."' No details were given about the manner, time, and lo- cation for applying. The letter also conveyed an offer to meet and bargain with the Union about a contract. By letter dated January 26, the Union's attorney informed Meakins of the Union's position that employees were entitled to be recalled in the order of their seniority. On January 25, the Respondent advertised in the local newspaper for applicants for employment at $5 per hour, no experience necessary. On January 26 and 27, approximately 1800 Monfort employ- ment applications were received at the Congrega- tional Church in Greeley by the Weld County ' Job Service, which forwarded all applications to the Respondent for processing. Former employees filed 237 of the applications. These applications provid- ed the applicant pool for the initial work force when the Greeley plant reopened. One of these applicants was former employee Raymond Swanson. According to Swanson's cred- ited testimony, the Union' s business representative Ron Bush encouraged former Monfort employees at an informal meeting in January to go to the church in order to file an application. While Swan- son was waiting in line to file his application at the church, the Respondent's assistant personnel man- ager Gary Ewing told him that he was wasting his time. Swanson was never rehired.9 The Job Service forwarded the applications to the Respondent without screening them. The Gree- ley plant personnel department staff, overseen by Personnel Director Jim Lovelady,10 reviewed the applications in random order and notified the Job Service of those applicants it wished to interview. The applications of former employees were not segregated in the initial review process. Their pre- closure personnel files were pulled and reviewed, however, when their applications came up for review by personnel and health services employees. If a former employee applicant's file disclosed a failure to meet the hiring criteria for absenteeism, discipline, or medical condition, that applicant was 9 Another former employee who spoke with Ewing about reemploy- ment approximately ' 6 months after the Greeley plant reopened was Robert Doty He credibly testified that Ewing told him that his chances for rehire were "slim to none." Doty never filed a formal Monfort appli- cation. 10 Lovelady had been personnel director at Grand Island from May 7, 1979, until he transferred to Greeley on January 10, 1982. 76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD rejected without a personal interview. The Re- spondent did not apply its hiring criterion for acci- dents to former employees. In addition, the Re- spondent gave no weight to performance ratings and recommendations about rehire, whether posi- tive or negative, made by supervisors in written termination reports prepared for each employee when the Greeley plant closed in March 1980.11 Interviews began in February. During each 15- minute interview, the Respondent informed the ap- plicant about the initial terms and conditions of em- ployment and elicited information about the appli- cant's willingness to work under those conditions at any available job. The applicant was disqualified if unwilling to accept the terms stated or to work a particular job. The interview also provided the basis for determining whether an applicant met the hiring criterion for attitude. The Respondent did not, however, apply the attitude criterion to former employees. During the interviews, applicants were also asked to sign authorization release forms requesting current and former employers to rate applicants in various job-related categories and to provide infor- mation on absences, lost-time accidents, discharge, or other discipline within the previous 36 months, and reemployment preference. The Respondent mailed 'authorization release forms to the employers of both former and nonformer employee applicants. The Respondent usually waited 7 days after mail- ing the forms before making a hiring decision. Ac- cording to Lovelady, only 50 percent of the forms were ever returned and only 25 to 50 percent of these had sufficient or complete information.12 The personnel office evaluated information de- rived from the application, interview rating form, and release form, if available. If the applicant met the Respondent's hiring criteria, the applicant was scheduled for a physical examination. Personnel Director Lovelady made all final hiring decisions based on the available information, including health services' recommendations. On February 5, the Union sent former Greeley employees form letters for individual requests that the Respondent recall by seniority and that the Re- spondent consider the form letter as a job applica- tion. On February 11, Meakins informed the Union as requested that approximately 237 former em- 11 G C Exhs. 76 and 77-416 show that 194 of 328 alleged discnmina- tees (59 percent) were unconditionally recommended for rehire in the ter- initiation reports These reports contained individual ratings (outstanding, above average, marginal, and unsatisfactory) for quality of work, produc- tivity, ability to get along with others, attendance and punctuality, and safety record. 12 According to Lovelady's credited testimony, 70 to 80 percent of the forms mailed during the Grand Island hiring process had been returned. The majority of these contained the prior employment information re- quested ployees had submitted formal applications through the Job Service in January 1982. The parties bargained on five occasions in Feb- ruary but were unable to reach an agreement.13 OIL February 17 and 24, the Union gave the Respond- ent a list of names of former employees who de- sired to return to work. Thereafter, Meakins sent letters to, at least some former employees notifying them about a special application session limited to former employees on March 17 and 18 . The Job Service received approximately 35 to 40 applica- tions on those dates from former employees who had not previously applied. In late February 1982, Ken Monfort made the final decision to reopen the plant on March 1. The Greeley plant reopened with 228 employees, 57 of whom were former employees. By letter dated March 25, Meakins informed the Union that only 61 of the 410 production employees on that date were former employees and that the Respondent was under no obligation to recognize or bargain with the Union. In May 1982, the original applicant pool had dwindled to approximately 200, although sales and production demands had increased faster than ex- pected. Accordingly, the Respondent resumed taking applications and continued to do so thereaf- ter on a daily basis. In addition, the Greeley at- tendance criterion was liberalized to permit appli- cants as many as 10 absences, rather than 6, in any of the previous 3 years. Applications from former employees who had, been rejected based on the more stringent initial standard were rechecked to determine whether they met the revised 10-ab- sences-per-year standard.14 No comparable re- check was made for nonformer employees. The Respondent's summary of its hiring process for the period from the March 1, 1982 reopening of the Greeley plant until November 198315 indicates that there were 7287 applicants. Of 369 applicants designated as former employees,16 160 (43.36 per- is There is no allegation that the Respondent had any legal obligation to bargain with the Union, nor is it alleged that the Respondent violated Sec. 8(a)(5) at any time. 14 It appears that 11 previously rejected former employee applicants were hired under the revised attendance standard. 15 R. Exh. 195 This exhibit, R Exhs. 194 (a)-(c), and numerous other documents were prepared for this litigation by Myra Monfort, the Re- spondent 's vice president and general counsel, based on her examination and interpretation of the Respondent 's personnel files She was assisted in this task by legal counsel, Lovelady, and Conklin. Myra Monfort did not herself play any part in the processing of applications for the Greeley plant in 1982. 16 The General Counsel contends that the Respondent 's list of former employees should not include 72 persons previously mentioned in fn. 5 for whom there are no 1980 attendance records, but should include 34 former employees who for various reasons were no longer working for the Respondent when the Greeley plant closed in March 1980. MONFORT OF COLORADO 77 cent) were hired, including 25 who allegedly were hired despite disqualifying information. Of 6918 nonformer applicants, 2990 (43.22 percent) were hired, including 54 allegedly hired despite disquali- fying information. Although the Respondent em- ployed approximately 800 production employees when fully staffed, substantial turnover accounted for the high number of total hires for the 18-month period involved. The General Counsel has introduced a summary with respect to 328 former employees who are al- leged discriminatees in this case.17 Seventy of these individuals did not file formal applications. Another 51 were hired on various dates, but the General Counsel alleges that they should have been hired earlier.18 With respect to the reasons for not rehiring al- leged discriminatees, the judge's review of another of the Respondent's summaries,19 as well as indi- vidual personnel files, indicates: 90 of those 207 al- leged discriminates who filed formal applications and were not hired did not meet the absenteeism criteria; 17 did not meet the discipline criterion; 26 did not meet the medical criteria;20 28 did not meet more than 1 of the absenteeism, discipline, and medical criterion; and 5 met all criteria but were not rehired in an "apparent error." Another 37 alleged discriminatees were not rehired based on information that they were no longer interested or could not be contacted. The remaining alleged dis- criminatees were not rehired for various individual reasons. There is no comparable specific evidence concerning the reasons for not hiring nonformer employee applicants. Lovelady testified that "hun- dreds" were disqualified on the basis of information from the authorization release forms and "a great number" were disqualified on the basis of attitude, an interview criterion not applied to former em- ployee applicants. 17 G.C. Exh. 76. Information in this 66-page summary is based on G C Exhs. 77-416, which are copies of the actual Monfort personnel records for the alleged discriminatees . Although the judge's decision refers at various points to 336 alleged discriminatees, the number originally al- leged in the complaint, we note that both the General Counsel's posth- earing brief and the brief in support of exceptions refer only to the 328 alleged discriminatees covered by the aforementioned exhibit. 18 This group of employees includes the 11 former employees hired after revision of the absenteeism criterion in May is R. Exhs. 194(a) and (b). The latter document covers the 34 alleged discrmunatees who the Respondent contends should not be included in an analysis of the preclosure work force because they allegedly quit vol- untanly prior to the 1980 plant closing. 20 A review of G C. Exh. 76 and underlying personnel files indicates that 20 alleged discriminatees were disqualified on the basis of medical history in their preclosure files, without any interview or subsequent medical examination in 1982. D. Analysis 1. The hiring criteria The judge enumerated several reasons for find- ing that the Respondent's hiring criteria did not violate Section 8(a)(3) and (1) of the Act. Although we agree with the judge that the criteria were not unlawful in design, we do not rely on all of his ra- tionale. First, we do not agree with the judge's analysis concerning the exculpatory significance of the statistical comparisons of overall hiring rates for former and nonformer employee applicants. On their face, these comparisons indicate that essential- ly the same percentage of applicants were hired from each group, and that a higher percentage of former employee applicants were "erroneously" hired although they failed to meet one or more of the Respondent's hiring standards. As fully dis- cussed in the section below concerning alleged dis- criminatory application of the hiring criteria, the "bottom line" statistical comparison that the judge found to be "very significant" does not preclude the General Counsel from establishing a prima facie case of discrimination and does not provide the Respondent with a complete defense to such a case . Second, we disavow the judge's reliance on the Respondent's productivity and cost charts pur- porting to show the higher productivity attained by the reopened Greeley plant work force and the Grand Island work force as compared with the preclosure Greeley work force. These documents were prepared for litigation long after the opera- tive decisions about hiring criteria were made and are therefore irrelevant to the issue of the Re- spondent's motivation when making those deci- sions . See Spencer Foods, 268 NLRB 1483, 1499 (1984), enfd. as modified sub nom. Food & Com- mercial Workers Local 152 v. NLRB, 768 F.2d 1463 (D.C. Cir. 1985). Finally, the, record does not sup- port the judge's conclusion that the Respondent's decision not to apply the subjective criterion of "attitude" or the lost-time accidents criterion to former employee applicants favored them. There is no specific evidence indicating how many non- former employee applicants were disqualified be- cause of either criterion; nor is there sufficient evi- dence indicating how many former employees would have failed to meet either criterion. Notwithstanding the above considerations, we agree with the judge that the General Counsel has not proved discrimination in the Respondent's design of its hiring criteria. The issue of discrimina- tory intent is a close one considering the factors on which we and the judge rely to assess the General Counsel's prima facie case of discrimination in the application of the criteria, as discussed below. On 78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the other hand, the preponderance of credited evi- dence is sufficient to negate any inference of an- tiunion discriminatory motivation in the criteria's design. In particular, although there are some dif- ferences, the criteria used at Greeley in 1982 were still quite similar to those developed and used for the Grand Island reopening in 1979. It is difficult to conclude that the Respondent's officials could have anticipated the 1982 Greeley plant reopening and were motivated by union animus toward former Greeley employees when designing hiring criteria for Grand Island. At that time, the Greeley plant was still unionized , had not yet closed, and in fact had not yet even been struck. We also fmd that, even without the irrelevant productivity comparison charts prepared for this litigation, there is sufficient credible evidence to support the legitimacy of the Respondent's desire to hire the best possible work force by remedying past production problems at Greeley through the use of revised written hiring standards proven to be effective in hiring a new work force at Grand Island. At the time the Respondent reopened the Greeley facility, Greeley preclosure information and Grand Island opening information demonstrat- ed that Greeley was unprofitable and inefficient and that Grand Island was profitable and efficient using a work force hired pursuant to the new crite- ria. Similarly, in specific reference to the medical criteria used at Greeley in 1982, Conklin's credited testimony established an empirical , nondiscrimina- tory basis for the design of these criteria. The differences between the specific criteria used at the respective facilities also fail to demonstrate unlawful design. The Respondent's witnesses credi- bly testified that they felt the more restrictive ab- senteeism criterion was a reasonable standard to secure sufficient numbers of qualified applicants be- cause unemployment in Greeley, Colorado, in 1982 was higher than it had been in Grand Island, Ne- braska, in 1979. There also is credible testimony that, unlike the situation at Grand Island, the Gree- ley plant had been closed for 2 years and the Re- spondent desired a more extended period of time to examine the attendance and discipline records of former employees. Furthermore, although the in- formation contained in former employees' files was obviously in the Respondent' s possession , the Re- spondent's officials did not review those files until after the criteria were established and the applica- tion process had begun. Therefore, we reject the argument that the absenteeism and discipline crite- ria were intentionally designed to eliminate former employees from the Respondent's initial comple- ment of the reopened work force. Even absent proof of specific discriminatory mo- tivation, however, the General Counsel and the Union argue that several of the Respondent's hiring criteria, either individually or collectively, were in- herently destructive of employee rights.21 The thrust of this argument is that the Respondent's re- fusal to give former employees preferential rehiring consideration, its disregard of the proven skill and experience of former employees, and its use of a strict absenteeism criterion, as well as medical cri- teria disqualifying persons for infirmities endemic to meatpacking jobs, had such adverse effects on the prior unionized work force that no independent proof of unlawful intent to discriminate was neces- sary. We find no merit in this argument. Initially, we find no statutory right of preferen- tial rehire for former employees permanently laid off for economic reasons 2 years earlier with no reasonable expectation of recall. It is undisputed that all contractual hiring preferences had expired by 1982, and there was no allegation that the Re- spondent had an obligation to bargain with the Union as the representative of Greeley production employees. In these circumstances, the Respondent was free to select its own work force and was not obligated to hire or to prefer in hiring any former employees, provided its refusal was not based on discriminatory reasons.22 The Respondent's failure to consider industry skill and experience also had no inherently destruc- tive effect on the statutory rights of unionized former employees. The Respondent did not ex- clude experienced workers from eligibility for rehire. Rather, it placed experience and inexperi- ence on equal footing, neither preferring nor inhib- iting the hiring of former unionized employees. The Respondent's conduct is clearly distinguishable from practices that a priori disqualify all or most of a group of prounion former employees from rehire.23 In addition, according to credited testimo- ny, neither the Respondent's past practice at Gree- ley and Grand Island nor the general meatpacking industry practice favored skill and experience as 21 See NLRB Y. Great Dane Trailers, 388 U.S. 26, 33 (1967). Inherently destructive conduct has been described as action which has "far reaching effects which would hinder future bargaining, or . . . discriminates solely upon the basis of participation in strikes or union activity," Portland Wil- lamette Co. v. NLRB, 534 F.2d 1331, 1334 (9th Cir 1976), or which cre- ates "visible and continuing obstacles to the future exercise of employee rights." Inter-Collegiate Press v. NLRB, 486 F.2d 837, 845 (8th Cir. 1973), cert denied 416 U.S 938 (1974) Accord: Amoco Oil Co., 285 NLRB 918, 920 (1987). 22 See, e.g., Mini-Industries, 255 NLRB 995, 1005 (1981). 29 See, e.g., Inland Container Corp., 267 NLRB 1187 (1983), and 275 NLRB 378 (1985), and Mason City Dressed Beef 23,1 NLRB 735 (1977), enfd. as modified sub nom. Packing House Services v. NLRB, 590 F.2d 688 (8th Cir. 1978), in which successor-employers refused to rehire unionized employees of the predecessor. See also Great Plains Beef Co., 241 NLRB 948 (1979) MONFORT OF COLORADO 79 hiring criteria for production jobs requiring few skills and little training. Although the documentary evidence indicates that the original absenteeism criterion at Greeley disqualified slightly more that one-third of the pre- closure work force, there is no evidence indicating that neutral application of this undisputedly pro- duction-related criterion would have had less of an impact on nonformer employee applicants. Finally, although the Respondent's medical criteria would on their face be likely to disqualify some former employees because they had worked in a packing plant where the risk of suffering from disqualifying injuries or illnesses was greater than for the general populace, none of these disabilities was a conse- quence solely of past employment with the Re- spondent. The criteria would similarly disqualify nonformer employee applicants who had worked for other meatpackers. Only applicants with no in- dustry experience might be "favored." In fact, the medical criteria effectively disqualified only a small percentage of former employee applicants. We conclude that the hiring criteria, considered separately or collectively, were not on their face inherently destructive of employee rights, bearing their own indicia of unlawful intent.24 We further conclude that the Respondent did not violate Sec- tion 8(a)(3) and (1) with respect to the design of its criteria for hiring a new work force at the Greeley plant in 1982. 2. The requirement of a formal individual application As noted, the Respondent was entitled to consid- er all applicants for employment at the reopened Greeley facility on an equal nondiscriminatory basis, without giving any rehiring preference to former employees. Accordingly, we agree with the judge that the 'Respondent" was entitled to insist that all job applicants, including former employees, follow the same application procedures. Although it would seem that the Respondent could have ac- cepted individual union form letter applications, it 24 The General Counsel and the Union rely on Spencer Foods, supra, and Rushton & Mercier Woodworking Co, 203 NLRB 123 (1973), enfd. 502 F.2d 1160 (1st,Cir. 1974), cert. denied 419 U.S. 996 (1974), in support of their argument that the Respondent 's conduct was inherently destruc- tive. We find both cases distinguishable because of the foreseeable magni- tude of the adverse effects of hiring practices in those cases on employees who had engaged in protected union activities . In Rushton , a wholly owned subsidiary disguised as a continuance of the original employer re- opened 4 months after an economic shutdown , hired an entirely new work force, and engaged in a scheme to substitute a new, less expensive union for the one that had represented the laid -off employees . In Spencer Foods, the only hiring criterion identified as discriminatory was a pretex- tual antmepotism rule that precluded reemployment of approximately half of the unionized preclosure work force and was not consistently applied at the employer's other facilities. See Kessel Food Markets, 287 NLRB 426 (1987), enfd . 868 F.2d 881 (6th Cir. 1989). was not discriminatory to insist that all applicants file the same formal Monfort employment applica- tion for all production jobs. We reject the argument in exceptions that the Respondent deceitfully concealed the fact that it would not consider any person who submitted a form letter application through the Union in an effort to limit former unionized employees to a small fraction of its initial bargaining unit comple- ment. We agree with the judge's finding that the Respondent's application process was common knowledge in the community and was made avail- able for the exclusive benefit of former employees during special application sessions on March 17 and 18. In addition, we find that employee Raymond Swanson's testimony concerning discussion of the application process at a union meeting in January 1982 and written correspondence involving the Re- spondent, the Union, and former employees during February and early March belies any contention that the Union and former employees were left in the dark as to the need to submit an application ac- ceptable to the Respondent. Finally, although there is credited, uncontrovert- ed testimony about two instances when the Re- spondent's assistant personnel manager, Ewing, in- dicated to individual former employees the futility of filing a formal Monfort application, we fmd that these incidents are too few to warrant a general finding of futility justifying the failure to file such an application, considering the Respondent's other efforts to provide former employees opportunities to apply. Therefore, we adopt the judge's finding that the Respondent did not violate Section 8(a)(3) and (1) by failing to consider for employment those 70 former Greeley employees who failed to apply through the Respondent's formal hiring process. 3. Application of the criteria We agree with the judge that the General Coun- sel has established a prima facie case concerning discriminatory application of the hiring criteria with respect to those 258 alleged discriminatees who did file one or more formal Monfort job appli- cations. We find, however, that the judge failed to give proper weight in his evaluation of this prima facie case to a substantial body of evidence indicat- ing disparate treatment of former employees' appli- cations. Furthermore, given the evidence showing that the Respondent actually treated former em- ployees less favorably than nonformer employees in its application of the hiring criteria, we find that the judge erred in concluding that, as to all but five former Monfort employees who the Respond- ent essentially admitted were not rehired as a result of "error," the Respondent established a defense 80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD under Wright Line25 by showing that the final result of this process was the hiring of essentially equal percentages of the former employee and non- former employee applicant pools. Consequently, we find that the Respondent unlawfully discrimi- nated against former employee applicants by the manner in which it applied its hiring criteria. With respect to the General Counsel's prima facie showing, we agree with the judge that an in- ference of unlawful discriminatory motivation may be drawn from evidence of. the Respondent's knowledge of its former employees' union member- ship, participation in the 1979-1980 strike, and poststrike grievance and other protest activities; the Respondent's open hostility to the employees' union activities and to the possibility of unioniza- tion of the reopened Greeley plant work force; and the numerous unfair labor practices found here and in previously cited cases involving these parties at the Grand Island plant.26 The judge gave no weight, however, to the markedly disparate ways in which the Respondent used prior employment history as a basis for disqualifying former Greeley employee applicants. The Respondent had available and closely scruti- nized the personnel files of all former employees to verify whether they met its criteria. These files contained information on employees' absenteeism, discipline, and medical condition, which, in a sub- stantial majority of instances, constituted the exclu- sive basis for deciding not to rehire former employ- ees. By contrast, past employment records for non- former employee applicants were reviewed only if sufficient information was provided through the Respondent's use of authorization release forms to check references. These forms sought only attend- ance, discipline, and accident records, and they gave no guidance to employers about how to set forth such information in a manner permitting meaningful evaluation under the Respondent's hiring criteria. Lovelady's testimony indicates that no more than 25 percent, and perhaps as few as 12- 1/2 percent, of the forms were returned with suffi- cient information. The Respondent made no effort at followup. Nonformer employee applicants were presumed to meet the hiring criteria if there was no specific disqualifying information. The disparity resulting from the foregoing is striking. Even based on the Respondent's own sum- 25 251 NLRB 1083 (1980), enfd 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U S 989 (1982), approved in NLRB v. Transportation Manage- ment Corp., 462 U.S 393 (1983) 26 Contrary to the Respondent's contentions, this strong evidence of antiunion motivation is not outweighed by its willingness to communicate and negotiate with the Union prior to March 25, 1982, or by the fact that some of the Respondent 's employees at Greeley and at other facilities are represented by unions mary,27 36 percent of the 369 former employees who filed formal Monfort applications in 1982 were not hired because they failed to meet either or both of the criteria of absenteeism and disci- pline. (This does not include the 11 former employ- ee applicants hired only after the absenteeism crite- rion was revised.) On the other hand, the applica- tions of at least 75 percent of nonformer Monfort applicants must in practice have received no review at all with respect to these criteria. An ad- ditional 6 percent of former employee applicants were disqualified on the basis of at least 2-year-old medical information without the benefit of a cur- rent medical examination that apparently was of- fered to all nonformer employees who otherwise met, or were presumed to have met, the Respond- ent's hiring criteria. 28 Apart from the generalized statement by Love- lady that "hundreds" of nonformer employees were disqualified on the basis of authorization release form information and a "great number" were dis- qualified on the basis of attitude assessed during 15- minute interviews, there is no specific evidence showing why nonformer employee applicants were not hired. Whatever the factors may have been, it is obvious that fewer than one out of every four such applicants could have been disqualified on the basis of criteria that disqualified over 40 percent of former employee applicants and over 90 percent of 27 R. Exh . 195(c) In reviewing the evidence with respect to the Re- spondent 's reasons for not hiring each of the alleged discriminatees and in specifically finding that the Respondent violated Sec . 8(a)(3) by the "ap- parent error" of not hiring Michael Cervantes and Vince Chacon, the judge apparently accepted the General Counsel's contention that those 34 persons who left production unit jobs with the Respondent prior to the March 1980 closing should be considered in the group of former employ- ees. Twenty-four of these individuals did not meet the Respondent's original criteria for rehire. We agree with the General Counsel. For pur- poses of this litigation, the group of former employees should include all persons who worked in the union-represented unit from September 1979 and who had personnel records that the Respondent would review as part of the 1982 hiring process We also find merit in the General Coun- sel's argument that the Respondent has failed to prove that any of the 51 persons allegedly hired after the strike but for whom there are no 1980 attendance records worked in production jobs at the Greeley plant during the relevant preclosure period Most significantly, there is no evi- dence that any of these individuals had personnel records that would have been subject to review in considering their applications for employ- ment at the Greeley plant in 1982. The Respondent has treated each of them as meeting its hiring criteria. (We do not, however, agree with the General Counsel that the 21 individuals who were hired in September and October 1979, but for whom no 1980 attendance records exist, should be excluded from the total of former employee applicants.) Accordingly, the analysis in R Exh. 195(c) should be revised by adding the group of 34 and by subtracting the group of 51 from the total number of former employees . In sum, properly calculated, the total number of former em- ployees for purposes of comparison with the nonformer employee appli- cant group is 352. 28 The aforementioned percentages of former employees who failed to meet the absenteeism, discipline, and medical criteria would be even higher if R Exh . 194(c) was revised as discussed above. MONFORT OF COLORADO 81 all former employee applicants who were not hired.29 The Respondent contends that it would be un- reasonable to expect an employer to overlook spe- cific information about an employee's employment history when it has such information in its posses- sion . We do not, however, find fault with the Re- spondent's use per se of former employees' person- nel files. We find fault with that use in light of the Respondent's manifest lack of concern for obtain- ing comparable information in processing approxi- mately 6000 nonformer employee applications, even though experience and common sense would lead the Respondent to believe that many of these applicants (perhaps as many or more than former employee applicants) would not meet the criteria for absenteeism, discipline, and medical condition based on their past employment records. As in Spencer Foods, 268 NLRB at 1486 fn. 10, it is the use of former employees' personnel files to subject former employees to greater scrutiny that proves discrimination in violation of Section 8(a)(3). The discriminatory effect of an application proc- ess that in practice exempted most nonformer em- ployee applicants from reviewunder the absentee- ism, discipline, and past medical ' condition criteria was magnified by the disparately favorable manner in which the Respondent interpreted prior employ- ment information received about nonformer em- ployee applicants. As set forth below, the record contains numerous examples of practices involving stringent application of hiring criteria to former employee applicants as contrasted with lenient ap- plication of such criteria to nonformer employee applicants. Absenteeism: In evaluating absences per annum, the Respondent treated fractions of a year as full years for nonformer employee applicants without any corresponding projection of absences based on the number already incurred in the partial year. In addition, because Monfort's authorization release form requested only that a prior employer specify the number of absences during a 3-year period, the Respondent could not accurately apply its ab- sences-per-annum standard to nonformer employee 2n. The allegedly countervailing favorable treatment accorded former employee applicants by the Respondent 's decision not to apply the atti- tude criterion to them was obviously meaningless to those never accord- ed the personal interview in which the attitude of nonformer applicants was assessed . Furthermore, as previously stated , there is no evidentiary basis for determining how many former employee applicants would have been disqualified on the basis of attitude . The favorable effect of the deci- sion not to apply the accidents criterion to former employee applicants is likewise not apparent in the absence of any specific evidence indicating how many nonformer employee applicants were disqualified on this basis and how many former employee applicants would have been disqualified. Information about nonformer employees' accidents would likely come to the Respondent's attention only on the 25 percent or fewer authorization release forms that were useful in the hiring review process. applicants. Rather, it averaged their absences.30 Lovelady testified, however, that a former employ- ee's interim employment attendance record was considered only if the former employee worked a full year. In addition, the Respondent did not give former employees the benefit of averaging. Instead, former employees were disqualified if their ab- sences exceeded the standard set for any year within the review period. We also note that many nonformer employees were rated "poor" or "fair" in attendance by their previous employers on release forms. The Re- spondent essentially ignored these ratings unless the prior employer actually specified the number of days an employee was absent. Therefore, non- former employees such as Gregory Baladez, Angelo Benzor, Nancy Blum, and Brian Bray were hired, despite reference reports indicating they would not be rehired because of attendance prob- lems. Similarly , the Respondent disregarded sum- mary reference reports that nonformer employee applicants had been discharged or would not be re- hired because of poor attendance and absenteeism. Medical: The Respondent rejected 20 former em- ployee applicants for medical reasons based solely on 2-year old information contained in their medi- cal records. As in Spencer Foods, supra at 1486, a majority of the former employees who were reject- ed for medical reasons were disqualified without the benefit of a contemporary medical examina- tion.31 By contrast, nonformer employee appli- cants , including those who reported a potentially disqualifying medical condition, were given an op- portunity to undergo a current medical examina- tion. Several nonformer employees with potentially disqualifying conditions were hired after initially being deferred subject to additional medical review. 32 Several other nonformer employees were 30 For example , nonformer employee Betty Alirez was hired despite a reference check that revealed that she had been absent 22 days during her 2 years and 3 weeks of prior employment . Her absences were aver- aged over 3 years thereby satisfying the Respondent 's revised 10-ab- sences-per-year maximum. Similarly, nonformer employee applicant Nancy Blum's 90.9 hours of absence in 5 months of employment with a previous employer was acceptable as the result of a 2-year averaging period. 81 For example , former employee and Union Steward James Luttrell suffered a back sprain in 1979. After a period of convalescence, he re- turned to work with no medical restriction. Luttrell testified that he has had no further medical treatment . The Respondent refused to rehire Lut- trell or to afford him a current physical examination. Former employee Valentine `Rodriguez was not rehired because the Respondent's doctor imposed a 40-pound lifting restriction without the benefit of a current physical examination after review of medical records from another physi- cian who performed surgery on Rodriguez 4 years earlier. Following a short period of light-duty convalescence after this surgery, Rodriguez performed his former Monfort job and subsequent interim employment successfully despite lifting requirements which easily exceeded the 40- pound weight restriction. 32 Examples include Brian Buchanan, Alberto Eurest, Jose Florex, Pa- tricia Hard, Robert Hettinger, Jerry Ludkins, Wayne Moon, Myrtle Rogers, and Dennis Romines 82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD hired despite confirmed medical restrictions compa- rable to those which disqualified former employ- ees.33 Finally, we note that the Respondent hired several nonformer employee applicants who pos- sessed arguably worse medical histories than former employees denied rehire . 34 In sum , the Re- spondent displayed a willingness to accommodate nonformer employee applicants' physical limita- tions and medical conditions , but inexplicably denied such favorable application of its medical cri- teria to similarly situated former employees. Discipline: The application of the discipline crite- rion was disparate both because many disciplinary incidents concerning nonformer employee appli- cants escaped consideration by virtue of the Re- spondent's information-gathering process and be- cause, even when details of the discipline were known, the Respondent did not use an objective standard for determining what constituted disquali- fying discipline or discharge for "just cause." The Respondent's hiring criteria called for the rejection without qualification of any applicant who had re- ceived written disciplinary action within the previ- ous 3 years. The Respondent did not, however, reject nonformer employee applicants who had been disciplined unless their previous employers supplied the reasons for the discipline, and the Re- spondent did not ask the previous employers to fur- nish that particular information. Furthermore, no clear uniform standard was applied in assessing the significance of reasons that were known. Whether a particular notation on a nonformer employee ap- plicant's reference form was disqualifying depend- ed solely on Lovelady's subjective judgment.35 Al- 33 For example , nonformer employee Ernest Gauna Jr. was hired de- spite a medical restriction that he "can't climb ladders-work on plat- form etc " By contrast, three former employees , Susanna Cruz, Jimmy Mahck, and Leroy Mandez, were denied employment because of the same restriction . The Respondent hired nonformer employee Marcus McKenna with the restriction "no repetitive lifting over 40 pounds," but denied former employee Rodriguez rehire because of the same restriction. Likewise, it employed nonformer employee Jean Williamson despite her lifting restriction , but disqualified Mike Chacon and other discriminatees based on similar lifting restrictions The Respondent hired nonformer em- ployee Ralph Lewis despite a restriction indicating arthritis in both shoul- ders, "should not work in cold areas " It also hired nonformer employee Nancy Stewart with the restriction "no working around heavy machm- ery" and despite "numbness of low back." Former employee Henry Pargas, however , was summarily disqualified because of "generalized arthritis/tendomtis aggravated by cold, back problems (Chirp)." 34 For example, the Respondent hired nonformer employee Jerry Jud- kins notwithstanding knee surgery in 1982, a slipped disc requiring a back brace in 1980, and a, nervous breakdown in 1979. The Respondent hired nonformer employee Wayne Moon despite "numerous physical problems, very nervous & shaking-hands unsteady-alcoholic on antabuse." Moon, who had "vast boning experience," was restricted to a "no fine cutting or fine movement type job." 38 For example , nonformer employee Anthony Archibeque's authoriza- tion release form reported that he had been disciplined in writing and had walked off the job and would not be reemployed. Although the Respond- ent's own work rules classified walking off the job as grounds for mime- diate discharge , it hired Archibeque and considered him to have quit his former job voluntarily . Nonfqrmer employee Roberta Alver was fired though Lovelady testified that being counseled for job performance or receiving written warnings that did not result in any type of suspension would not constitute disqualifying discipline, he treated docu- ments in former employees' personnel files less fa- vorably than nonformer employee reference forms documenting substantially similar misconduct.36 Based on the foregoing, we find that the General Counsel has made a strong prima facie showing in support of the allegation that the Respondent en- gaged in an overall pattern of discrimination against former employees by disparately applying its hiring criteria. We must therefore determine whether the Respondent has met its burden under Wright Line, supra, of proving that it would not have hired the alleged discriminatees who filed formal Monfort applications even in the absence of their union and other protected concerted activi-, ties. Initially, we find that the judge has greatly mis- conceived the significance of statistical hiring com- parisons based on the Respondent's summary of ap- plications processed between January 1982 and De- cember 1983. Even assuming the accuracy of the statistical summary on which those comparisons are based,37 the salient fact, of which the judge lost sight, is that the General Counsel has_ proven a prima facie case of discrimination that does not from her previous job for not showing up. She too was considered a "voluntary quit" and hired as part of the Respondent 's initial comple- ment. 36 For example, former employee Alfred Pargas was denied rehire be- cause of purported disqualifying discipline consisting of a verbal repri- mand documented by a written letter concerning refusal to follow a su- pervisor 's instructions . Likewise, one of the reasons former employee Manuel Gaona was refused rehire was a letter in his personnel file that stated "company property and fellow employees ' property in locker." The letter does not contain any statement of discipline but merely warned Gaona that the practice of storing company equipment in lockers must be stopped By comparison, nonformer employee Jessie Flores was hired by the Respondent despite a prior discharge for "suspected theft or intention to do so." The other reason given for failing to rehire Gaona also indicates disparate treatment . The Respondent stated that its policy of not hiring employees currently working for its subcontractors preclud- ed hiring Gaona, yet the record indicates that the Respondent hired non- former employee Randy Varela despite the fact that he was working for the same subcontractor. 34 Except for our findings in fn 27, supra, we do not pass on the issues raised by exceptions to the ,fudge's uncritical acceptance of the Respond- ent's statistical comparisons as accurate . We find, however, that the judge could not establish the truth of factual assertions in the Respondent's summaries merely by crediting the testimony of Myra Monfort . Although this witness was responsible for compiling the summaries in preparation for litigation, she played no part in the hiring process and relied on the same raw record materials from which the General Counsel and the Charging Party have drawn markedly different summaries. As the judge himself noted, these competing summaries are all the product of partisan, subjective interpretation . He seemed , however, to overlook this observa- tion, as well as his accurate statement that the individual personnel records of the discriminatees provided a more complete basis for consid- ering the General Counsel's allegations and the Respondent's defenses, when he relied on the Respondent's summaries in making conclusions about the individual reasons assigned for not hiring the alleged discrimin- atees. MONFORT OF COLORADO 83 rely on statistical comparisons of hiring rates. Spe- cifically, the General Counsel has proven that (1) the application of the Respondent's hiring criteria disqualified numerous former employees on the basis of prior employment information that was either unavailable or overlooked with respect to nonformer employees; and (2) the application of the hiring criteria resulted from a discriminatory motive manifested by the Respondent's knowledge of and notorious, frequently unlawful, opposition to the former employees' union activities. The Respondent's statistical defense is therefore not directly responsive to the nonstatistical evi- dence of specific discriminatory treatment revealed by the prima facie case. Indeed, the Respondent's statistical comparisons would be meaningful only if it actually had applied the same hiring criteria to all applicants. As we have shown, however, it did not do that. In effect, it used two sharply different sets of criteria-a relatively stringent set for its former employees and a relatively lenient one for all other applicants. That this disparate treatment happened to produce roughly equal selection rates is simply a statistical artifact of no probative value (except insofar as it indicates that, had the Re- spondent evaluated the two groups of applicants by a common standard, former employees would have fared better than nonformer employees). In sum, the "bottom line" defense that former employee and nonemployee applicants were hired in virtually the same proportion to their respective applicant pools does not rebut the evidence of disparate treatment resulting from the threshold disqualifica- tion of former employee applicants on the basis of the absenteeism, discipline, and medical history cri- teria.38 We therefore find that the Respondent failed to show that it would not have hired any of the al- leged discriminatees who filed formal Monfort ap- plications even in the absence of their union mem- bership and activities. In this regard, we find that the bare assertion of individual reasons for disquali- fication set forth in the Respondent' s summaries is insufficient to meet the Respondent's burden under Wright Line. Disqualification for failing to meet the criteria for absenteeism; discipline, and medical condition must be considered suspect in light of the blatantly disparate manner in which the Respond- ent applied those criteria, or failed to apply them at all, to most nonformer employee applicants. Fur- thermore, in light of the overwhelming evidence of an overall pattern of discrimination in the hiring se Cf. Connecticut v. Teal, 457 U.S 440 (1982) ("bottom line" defense of higher promotion rate for eligible black candidates in Title VII case does not rebut evidence of disparate impact on protected group's thresh- hold opportunities to become eligible candidates). process and in the absence of any specific evidence concerning the reasons for disqualifying nonformer employee applications, we are not persuaded by other hearsay and subjectively interpreted reasons for not hiring alleged discriminatees, such as the al- leged receipt of information that an individual was no longer interested in employment. Finally, for es- sentially the same reasons , we fmd that the Re- spondent has failed to rebut the prima facie case of discrimination with respect to those alleged discri- minatees who the General Counsel contends would have been hired earlier but for the Respondent's disparate application of its hiring criteria. Based on the foregoing, we fmd that the General Counsel has proven that the Respondent discrimi- nated against former employees who sought reem- ployment at the reopened Greeley plant by dispar- ately applying its facially neutral hiring criteria to the detriment of those individuals. Accordingly, we further find that the Respondent violated Section 8(a)(3) and (1) of -the Act when it failed to rehire or delayed rehiring those alleged discriminatees who filed formal Monfort applications for reem- ployment at the Greeley plant. II. THE TERMINATION OF JAMES LITTLE James Little was discharged on March 10, 1983, purportedly for an unexcused absence based on his failure to report to the Respondent's nurse after sustaining a job-related injury. The judge found that Little's discharge did not violate Section 8(a)(3) of the Act. We disagree. In May 1982, Little was twice counseled about job performance .39 In July 1982, Little com- menced union organizational activities including at- tending union meetings and distributing cards. He joined the employee organizing committee in August. In late July or early August, Little told Supervisor George Osborn, who later became Lit- tle's supervisor, that Little wanted to get the Union back in the plant. On August 13, 1982, Little re- ceived a step 3 written warning for poor work. per- formance. On August 20, 1982, Little received a step 4 3-hour suspension. In a meeting about this discipline, Osborn, who had supervised Little for only 3 days, told Slaughter Production Superin- tendent Don Hergenreter that Little was creating trouble and not performing his job properly. After this suspension, Little was reassigned to the kill 99 The General Counsel and the Union contend that the Respondent failed to establish that such counseling formally placed Little in discipli- nary steps 1 and 2 of the Respondent's progressive disciplinary system. (Step 5 in the progressive disciplinary system means termination.) In light of our finding below that the step 5 termination of Little for an unex- cused absence was pretextual, we find it unnecessary to decide whether Little was in fact improperly accelerated through the disciplinary system 84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD floor, where he received no discipline but where he repeatedly heckled Supervisor Dean Behne and visitors touring the plant about unionism. On March 6, 1983, Little was reassigned from the kill floor to the sawdust coolers where he was supervised by Mike Voris for the remaining 4 days before his termination. On March 8, he cut a one- half-inch hole in his left ring finger. A doctor oper- ated and gave Little prescription medicine and a return-to-work slip for light-duty assignment the next day. On March 9, Little's wife telephoned the Respondent with a message that Little's "finger was swollen and sore, he knew he could not work that day . . . [and] if he felt better, he would prob- ably be in to see the nurse." Little never reported to work on March 9. He slept most of the day, later explaining that the medicine made him drowsy. When Little reported for work on March 10, Voris said that he would not have a troublemaker working for him and that he had heard from the kill floor that Little was always in trouble. Voris instructed Little to visit the nurse's station in prep- aration for light-duty work. When Little reported to the nurse, Conklin told him that he had been re- leased and had been expected to report for light- duty work the day before. Thereafter, Little briefly reported to the kill floor pending a midmorning interview with Voris and Hergenreter. At this ter- mination interview, Voris stated that Little had been tardy, was a troublemaker, and was not needed in his department. Hergenreter stated that Little had been expected to report for light-duty work the previous day. Little replied that his hand had swollen, he was sick at night, and he was unable to get any sleep. Hergenreter terminated Little for failure to report to the nurse, an action which he regarded as an unexcused absence. Hergenreter admitted during his testimony in this proceeding that absences re- sulting from injuries sustained on the job are ex- cused absences and, that the Respondent's published work rules and policies do not require an employee injured on the job to report to the nurse on the next workday.40 We agree with the judge that the General Coun- sel established a prima facie case of discriminatory motivation for Little's discharge based on the Re- spondent's history of union animus, knowledge of Little's and employees' union activities, and the nu- merous unfair labor practices that we have found. We disagree, however, with the judge's further 4° Superintendent Cecil Foote answered "Yes" when asked during his testimony whether he was "aware that employees have been terminated for failing to show up for work to do light-duty work after receiving an on-the-job injury." Foote did not further elaborate on this point conclusion that the Respondent met its burden under Wright Line, supra, by establishing that it would have terminated Little even in the absence of his union activities. Initially, we reject the judge's conclusion that the use of the terra. "troublemaker" referred to su- pervisory conversations about Little's disciplinary trouble rather than to Little's union activities. On two separate occasions, individuals who had super- vised Little for less than a week (Osborn and Voris) accused him of being a troublemaker and initiated discipline against him. In the first instance, Osborn was unfamiliar with Little's prior discipline but had been told by Little himself about his prounion sentiments. On the day he was terminat- ed, Voris told Little that he would not have a trou- blemaker working for him, and that Voris had heard from the kill floor that Little was always in trouble. Little received no discipline while assigned to the kill floor, but he did repeatedly vex Supervi- sor Behne with vociferous exhortations of union- ism. Finally, the references to Little's status as a troublemaker must be evaluated in conjunction with Supervisor Tom Galles' statement to employ- ee Arispe that employees who voted for the Union were a bunch of troublemakers and ought to be fired. The judge found, and we agree, that this statement violated Section 8(a)(1) of the Act. Under these circumstances, we conclude that the objections to Little as a troublemaker were euphe- mistic references to his union activities. The reference to Little as a troublemaker by the supervisor who initiated his termination warrants an inference that the subsequent reason given for his discharge, unexcused absence for failing to report to the nurse, was a pretext for an unlawful motivation to retaliate against Little for union ac- tivity. Further support for finding the Respondent's reason for terminating Little to be pretextual' can be drawn from Hergenreter's admission that an em- ployee's absence is not unexcused if the employee is unable to report for work following an on-the- job injury and that company work rules do not re- quire an employee who is injured on the job to report to the nurse the following day. The Re- spondent's witnesses failed to offer any credible ex- planation why, even if they reasonably expected Little to report to the nurse on March 9, they re- fused to accept Little's explanation that his' failure to report was attributable to continuing discomfort from, his on-the-job injury of the previous day.41 41 Contrary to the judge, we find that Foote' s passing acknowledge- ment that he was aware of employees being discharged for failing to report for work to perform light-duty work after sustaining an on-the-job injury is insufficient to rebut the prima facie evidence of discriminatory motivation MONFORT OF COLORADO 85 The Respondent knew that Little was injured and that Little's wife had reported his absence as a con- sequence of this injury.42 Based on the foregoing, we find that the Re- spondent's explanation for Little's termination fails to withstand scrutiny and is pretextual. According- ly, we conclude that Little's March 10, 1983 dis- charge violated Section 8(a)(3) and (1) of the Act. Ill. 8 (A)(1) ISSUES We find merit in the exceptions to the judge's failure to find that the Respondent violated Section 8(a)(1) by a threat and interrogation made by Su- pervisor Junior Urias in a conversation with em- ployee Esther Estrada. According to Estrada's credited testimony, Urias initiated a "casual con- versation" with her at her production machine in the week prior to the June 24 representation elec- tion. Urias asked whether Estrada liked her job and subsequently asked whether she had received a company leaflet explaining why employees should vote "no." After advising Estrada that he had extra leaflets, Urias asked how she felt about former workers coming in and if she realized that she might be losing her job. The judge acknowledged that Urias' comments were similar to other contemporaneous unlawful threats by the Respondent's president Ken Mon- fort" 3 and by other supervisors that former work- ers would replace the existing work force if the Union won the election. He nevertheless found that the statements made by Urias in this conversation were hot coercive because the comments concern- ing job loss were not linked to how Estrada would vote in the election. We disagree. Urias raised the election issue by referring to the Respondent's an- tiunion election literature. In the context of other more explicit threats of job loss to employees if they did not vote against the Union, we find that Urias' inquiry concerning Estrada's feelings on former workers returning and whether she realized that she might lose her job would reasonably tend to convey a coercive threat of job loss if Estrada voted for the Union. We further find that Urias' in- quiries sought to elicit information from Estrada, who was not shown to be an open union supporter, about her union sympathies and about how she in- tended to vote. Particularly in light of the Re- 42 Although the Respondent 's absence notification policy advised em- ployees that in cases of sickness where advance notice is impossible they are expected to call in personally , it is undisputed that the Respondent does not rely on the fact that Little's wife, rather than Little himself, called in as justification for Little's termination. 43 In light of our agreement with the judge that the text of Monfort's election-eve speech unlawfully threatened that employees ' jobs were con- tingent on the outcome of the Board's representation election, we find it unnecessary to decide whether other aspects of the same speech inde- pendently violated Sec: 8(a)(1) of the Act spondent's other preelection unfair labor practices, we fmd that these inquiries constituted coercive in- terrogation under the standard set forth in Ross- more House, 269 NLRB 1176 (1984), affd. sub nom. Hotel & Restaurant Employees Local 11 a NLRB, 760 F.2d 1006 (9th Cit. 1985), and therefore violat- ed Section 8(a)(1) of the Act.44 We also find merit in the exceptions to the judge's failure to find that statements made by Su- pervisor Calvin Lee Mackey to employee Jerry Lee Adams about 3 weeks before the election were unlawful threats. Adams credibly testified that Mackey told him that "If the union were to come into the plant, the profit sharing would probably not be there . . . [but] if the union was not to go in there, our profit sharing would be good, it would probably be there. There was no definite answer either way." We find that Mackey's remarks un- lawfully implied a probability that the Respondent would act differently with respect to profit sharing if the Union was voted in. His prediction about the effects of unionization on profit sharing were not carefully phrased on the basis of objective fact suf- ficient to convey demonstrably probable conse= quences beyond the Respondent's control. See NLRI v. Gissel Packing Co., 395 U.S. 575, 618-620 (1969). Furthermore, Mackey's statement represents only a slightly less certain variation of Supervisor James Finney's definitive threats to employee Dana Huff in March 1983 that the Respondent's employ- ees would lose their profit sharing if they selected a union to represent them. We have affirmed the judge's finding that Finney's threats violated Sec- tion 8(a)(1). We likewise find that Mackey's similar statement to Adams had a reasonable tendency to coerce employees in the exercise of Section 7 rights and constituted an unlawful threat of eco- nomic reprisal to be taken solely on the Respond- ent's own initiative for reasons related to union ac- tivity. Finally, we find merit in the Union's exception to the judge's failure to find that the Respondent's fabrication supervisors violated Section 8(a)(1) in the week prior to the election when they stopped to take notes of an undisclosed nature while stand- ing behind employees in the fabrication line who were wearing union insignia . The notetaking was not routine; rather it focused only on union sup- porters .4 5 Fabrication workers wearing antiunion 44 We find it unnecessary to pass on any other issues of alleged unlaw- ful interrogation raised in the exceptions because any violation found would be cumulative and would not materially affect the remedy. 45 Employee Meracle, whose testimony was generally credited by the judge, testified without contradiction about the nonroutme aspect of the notetaking. $6 DECISIONS OF THE NATIONAL ,LABOR RELATIONS BOARD insignia or-no insignia did not receive similar scru- tiny. Contrary to the judge, we find that such con- duct .went beyond mere casual observation of open union activity and created the coercive impression of compiling a list of union supporters for which no good cause has been demonstrated. See, e.g., Programming & Systems, 275 NLRB 1147 (1985); Crown Cork & Seal Co., 254 NLRB 1340 ( 1981). Although, the Respondent's supervisors were not required to avert their eyes from open declarations of union sympathies, they were not permitted to convey the coercive impression that they were making a special effort during work to record the declarants. Consequently, we find that this conduct violated Section 8(a)(1). IV. PETITIONER'S OBJECTIONS TO THE JUNE 24, 1983 ELECTION On our conclusion that the Respondent violated Section 8(a)(3) and (1) by discriminatorily applying its hiring criteria, we reverse the judge and sustain the Petitioner-Union's Objection 28, regarding the failure by the Respondent to submit the names of the alleged discriminatees on the Excelsior list. See Kent Corp., 228 NLRB 72, 78 (1977). We further find that the additional 8(a)(1) violations found in section III above constituted objectionable con- duct. On the basis of this conduct, as well as those objections which the judge recommended sustain- ing, we shall order that the June 24, 1983 election be set aside and that a second election shall be con- ducted.46 AMENDED REMEDY We agree with the judge that the Respondent's unfair labor practices warrant a broad cease-and- desist order , requiring the Respondent to cease and desist from committing the specific violations found and from violating the Act "in any other manner ." Furthermore, the unfair labor practices found in this decision , in conjunction with those found by the judge, are so numerous , pervasive, and outrageous that for the reasons set forth in Monfort II, 284 NLRB at 1429-1430, 1479, we shall direct the Respondent to comply with special mailed and published notice remedies . 47 We shall 46 The Notice of Second Election should include language informing employees that the first election was set aside because the Board found that certain conduct by the Respondent interfered with the employees' free, choice. Lufkin Rule Co, 147 NLRB 341 (1964) 47 See also Teamsters Local 115 v. NLRB, 640 F.2d 392, 400-404 (D.C Cir. 1981 ) In light of our finding that Kenneth Monfort, the Respond- ent's president, has been found to have taken part in only two of the ac- tions found to be unlawful in this case , we will not require that he per- sonally read the contents of the notice to assembled employees . In Mon- fort II, Kenneth Monfort was personally involved in many of the viola- tions found . Accordingly, it was appropriate in that case to impose a notice-reading requirement on him personally . Indeed, in enforcing that also order the Respondent to comply with the fol- lowing special access remedies: (1) supply the Union, on request made within 1 year of the date of this Decision, Order, and Direction of Second Election, the names and addresses of its current employees; (2) on request, grant the Union and its representatives reasonable access to the Respond- ent's bulletin boards and all places where notices to employees are customarily posted; (3) on request, grant the Union reasonable access to its plant in nonwork areas during employees' nonwork time; (4) give notice of, and equal time and facilities for the Union to respond to, any address made by the Respondent to its employees on the question of union representation; and (5) afford the Union the right to deliver a 30-minute speech to employees on working time prior to any Board election which may be scheduled in which the Union is a partici- pant. Provisions (2) through (5) above shall apply for a period of 2 years from the date of the posting of the notice provided by the Order herein or until the Regional Director has issued an appropriate certification following a fair and free election, whichever comes first.48 The Board did not impose these access remedies in Monfort II because no objections had been filed to an election held at the Grand Island facility involved in that case. 284 NLRB at 1429-1430. In this case, by contrast, nu- merous objections to the conduct of the election have been upheld, and a second election has been ordered. Thus, the sole reason advanced by the Board for denying an access remedy in Monfort II does not exist here. Given the widespread and per- vasive nature of the Respondent's unfair labor practices and the need to assure a fair and free second election, we will impose the extraordinary access remedies sought by the Union. Having found that the Respondent violated Sec- tion 8(a)(3) and (1) by discharging former employ- ee James Little, we shall order the Respondent to offer Little immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prej- udice to his seniority or, any other rights or privi- portion of the Board's Order, the court of appeals stressed Kenneth Mon- fort's participation in numerous unlawful actions; it contrasted that case with Teamsters Local 115 v. NLRB, supra at 403-404, in which the court had denied enforcement of a similar provision because the individual or- dered to read the notice had participated in only one of the violations committed In light of the foregoing, we shall provide that the Board's notice be read to all employees by a company official or, at the Respond- ent's option , by a Board agent. See , e.g., J. P. Stevens & Co. v. NLRB, 380 F.2d 292, 305 (2d Cir. 1967), cert dewed 389 U.S. 1005 (1967); J. P. Stevens & Co., 167 NLRB 258 fn. 2 (1967), enfd . in relevant part 406 F.2d 1017 (4th Cir. 1968) 48 See, e.g, Haddon House Food Products, 242 NLRB 1057, 1058-1059 (1979), enfd. in relevant part sub nom. Teamsters Local 115 v. NLRB, supra. MONFORT OF COLORADO 87 leges previously enjoyed , and to make him whole for any loss of earnings suffered as a result of his unlawful termination . Having also found that the Respondent violated Section 8 (a)(3) and (1) by ap- plying facially neutral hiring criteria in a discrimi- natory manner to its former employees who sub- mitted formal employment applications, we shall order the Respondent to apply its hiring criteria to all applicants in a nondiscriminatory manner. In ad- dition, we shall order the Respondent to offer all former employee 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 Respondent's unlawful discrimination or, if those positions no longer exist , to substantial- ly equivalent positions , dismissing , if necessary, any and all persons hired to fill such positions . The Re-, spondent shall also place on a preferential hiring list all remaining discriminatees who would have been hired but for the lack of available jobs had the Respondent applied its hiring criteria in a non- discriminatory manner . 49 The Respondent, as wrongdoer, bears the burden of proving that it would not have hired former Greeley plant em- ployee applicants had they satisfied its hiring crite- ria as applied to nonformer employee applicants. 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 discharge and the unlawful failure to hire or delay in hiring them . Backpay for all discrimina- tees in this case shall be computed in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Retarded , 283 NLRB 1173 (1987). ORDER The National Labor Relations Board orders that the Respondent , Monfort of Colorado , Inc., Gree- ley, Colorado , its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees that, if the United Food and Commercial Workers International, AFL-CIO, Local Union No. 7 won the election, the Respondent would settle the outstanding unfair labor practice case against the Respondent , fire the present employees, and rehire the former employ- ees. (b) Telling employees that, if the Union lost the election , the Respondent would fight vigorously the outstanding unfair labor practice case against the Respondent , even if it took years to do so, before the Respondent would fire even one present employee in order to rehire a former employee (c) Threatening employees that the plant would be closed if the employees selected the Union to represent them. (d) Threatening an employee that the employees' selection of the Union as collective-bargaining rep- resentative would cause the Greeley plant to be closed again, and by suggesting in that context that the employees form their own organization to bar- gain with the Respondent instead of selecting the Union to represent them. (e) Unlawfully interrogating employees concern- ing their union sympathies. (f) Threatening that employees who voted for the Union were a bunch of troublemakers and ought to be fired. (g) Threatening that employees would lose their profit-sharing benefits if the employees selected the Union as their collective -bargaining representative. (h) Threatening an employee with retaliation for revealing statements made by, a supervisor of the Respondent , which had resulted in the Union's filing charges against the Respondent. (i) Threatening that an employee who would tes- tify against the Respondent in a Board hearing ought to be shot or abandoned on some island. (j) Promising an employee free work gloves if the employee voted against the Union. (k) Telling an employee to solicit other company employees to sign a petition against the Union, in the context of telling the same employee „ that he would be sure to, get a promotion to a leadman's job. (1) Unlawfully creating the impression of surveil- lance by taking notes behind employees wearing union insignia. (m) Disparately applying its work rules to permit employees to engage in antiunion activities in the plant while not permitting employees to engage in prounion activities. (n) Failing to rehire or delaying in rehiring, be- cause of past union membership and activities, former employees who filed Monfort applications for employment concerning production jobs at the reopened Greeley plant. (o) Refusing to rehire an employee because the Union had filed an unfair labor practice charge with the Board against the Respondent with regard to the Respondent 's termination of that employee. (p) Unlawfully terminating an employee because he engaged in union and/or protected concerted activities. (q) In any other manner interfering with, re- straining , or coercing employees in the exercise of 49 See Inland Container Corp, 275 NLRB 378, 380 (1985). the rights guaranteed them by Section 7 of the-Act. 88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) -Offer James Little immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him in the manner set forth in the amended remedy section of this decision. (b) Offer Ruth De Vargas and those former em- ployees whom it has unlawfully refused to rehire 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 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 benefits 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 had the Respondent applied its hiring criteria in a nondiscriminatory manner, in the manner set forth in the amended remedy section of this decision. (c) Remove from the Company's files any refer- ence to the unlawful discharge of James Little and the unlawful failure to rehire Ruth De Vargas and the former employees discussed above, and notify each discriminatee in writing that this has been done, and that the past discharge and/or failure to rehire will not be used against them in any way. (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, -timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Mail copies of the attached notice marked "Appendix,"50 on forms provided by the Regional Director for Region '27, after being signed by the Respondent's authorized representative, to each and every employee working at its Greeley, Colo- rado plant on the date on which such notice is 50 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." mailed, as well as to each and every discriminatee who worked or should have worked in its plant during the period of the Respondent's unfair labor practices. Additional copies of the notice shall be posted by the Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Mail and post in the same manner as de- scribed above a Spanish-language translation of the English-language notice. The Regional Director for Region 27 of the Board will provide copies of the Spanish-language translation for posting by the Re- spondent. (g) Publish in local newspapers of general circu- lation copies of the attached notice marked "Ap- pendix." Such notice shall be published twice weekly for a period of 4 weeks. (h) Convene during working time all employees at the Greeley, Colorado plant, by shifts, depart- ments, or otherwise, and have either a responsible official of the Respondent, at a departmental super- visory level or above, or a Board agent, read to the assembled employees the contents of the attached notice marked "Appendix." The Board shall be af- forded a reasonable opportunity to provide for the attendance of a Board agent at any assembly of em- ployees called for the purpose of reading such notice by an official of the Respondent. (i) On request of the Union made within 1 year of the issuance of the Order here, make available to the Union without delay a list of names and ad- dresses of all employees employed at the Greeley, Colorado plant at the time of the request. (j) Immediately on request of the Union, for a period of 2 years from the date on which the afore- said notice is posted or until the Regional Director has issued an appropriate certification following a fair and free election, whichever comes first, grant the Union and its representatives reasonable access to the Greeley, Colorado plant bulletin boards and all places where notices to employees are custom- arily posted. (k) Immediately on request of the Union, for a period of 2 years from the date on which the afore- said notice is posted or until the Regional Director has issued an appropriate certification following a fair and free election, whichever comes first, permit a reasonable number of union representa- tives access for reasonable periods of time to non- work areas, including but not limited to canteens, cafeterias, rest areas, and parking lots, within its Greeley, Colorado plant so that the Union may MONFORT OF COLORADO present its views on unionization to the employees, orally and in writing, in such areas during changes of shift, breaks, mealtimes, or other nonwork peri- ods. (1) In the event that during a period of 2 years following the date on which the aforesaid notice is posted, or until the Regional Director has issued an appropriate certification following a fair and free election, whichever comes first, any supervisor or agent of the Respondent convenes any group of employees at the Respondent's Greeley, Colorado plant and addresses them on the question of union representation, give the Union reasonable notice thereof and afford two union representatives a rea- sonable opportunity to be present at such speech and, on request, give one of them equal time and facilities to address the employees on the question of union representation. (m) In any election which the Board may sched- ule at the Respondent's Greeley, Colorado plant within a period of 2 years following the date on which the aforesaid notice is posted and in which the Union is a participant, permit, on request by the Union, at least two union representatives rea- sonable access to the plant and appropriate facili- ties to deliver a 30-minute speech to employees on working time, the date thereof to be not more than 10 working days but not less than 48 hours prior to any such election. (n) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the election con- ducted on June 24, 1'983, in Case 27-RC-6368 be set aside, and that the case be remanded to the Re- gional Director for Region 27 for further proceed- ings consistent with this decision. [Direction of Second Election omitted from pub- lication.] A. E. Roybal, Donald E. Chavez, and Michael J. Belo, Esqs., for the General Counsel. Warren L. Tomlinson, John M. Husband, and Michael M. Shultz, Esq.. (Holland & Hart), of Denver, Colorado; Charles E. Sykes, Esq. (Alaniz, Bruckner & Syke), of Houston, Texas; and Myra Monfort, Esq., of Greeley, Colorado, for the Respondent Employer. Martin D. Buckley and Philip Hornbein Jr., Esqs. (Horn- bein, MacDonald, Fattor & Buckley), of Denver, Colo- rado; S. Leslie Kleiman, Esq. (Jacobs, Burns, Sugarman & Orlove), for the Charging Party Petitioner. DECISION STATEMENT O1 THE CASE ROGER B . HOLMES , Administrative Law Judge. The original unfair labor practice charge in Case 27-CA-7742 was filed on 26 February 1982 by United Food and 89 Commercial Workers, Local Union No. 7-R, . a/k/a United Food and Commercial Workers, Local Union No. 7. The Charging Party will be referred to as the Union, the Charging Party, or the Petitioner.' The first amended unfair labor practice charge in Case 27-CA- 7742 was filed on 8 March 1982 by the Union. The second amended unfair labor practice charge in Case 27- CA-7742 was filed on 17 November 1983 by the Union. The General Counsel of the National Labor Relations Board issued on 21 September 1983, a second amended complaint, and notice of hearing in Case 27-CA-7742 against Monfort of Colorado, Inc. The Respondent will be referred to as the Employer, the Company, or the Re- spondent. The General Counsel's second amended com- plaint was further amended by the counsel for the Gen- eral Counsel during the course of the hearing. That com- plaint, as amended and as supplemented by lists of al- leged discriminatees by the counsel for the General Counsel, sets forth the General Counsel's unfair labor practice allegations in issue in this proceeding insofar as Case 27-CA-7742 is concerned.z The unfair labor practice charge in Case 27-CA-8072 was filed on 29 September 1982 by the Union against the Employer. A settlement agreement with the Employer was approved in that case on 13 April 1983 by the Re- gional Director for Region 27 of the Board. An order setting aside settlement agreement and complaint and notice of hearing was issued in Case 27-CA--8072 on 25 November 1983 by the Acting Regional Director for Region 27 of the Board. The original unfair labor practice charge in Case 27- CA-8316 was filed on 24 March 1983 by the Union against the Employer. The amended unfair labor practice charge in Case 27-CA-8316 was filed on 25 April 1983 by the Union against the Employer. The General Coun- sel of the Board issued on 13 September 1983 a com- plaint and notice of hearing in Case 27-CA-8316 against the Respondent. The unfair labor practice charge in Case 27-CA-8563 was filed on 5 October 1983 by the Union against the Employer. The General Counsel of the Board issued on 25 October 1983 a complaint and notice of hearing in Case 27-CA-8563 against the Respondent. The unfair labor practice charge in Case 27-CA-8716 was filed on 24 February 1984 by the Union against the Employer. The General Counsel of the Board issued on 8 May 1984 a complaint and notice of hearing in Case 27-CA-8716 against the Respondent. In the General Counsel's complaints, it is alleged that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the 1 The name of the Union appears as corrected on the first day of the hearing. 2 The formal documents and the numerous other exhibits pertaining to the legal pleadings in these cases are voluminous The foregoing and the following paragraphs in this section do not purport to recite all of the pleadings, motions, responses, and orders which are all in the exhibit file for reference by those who have a need to do so. Instead, as mmdicated above, the amended and supplemented document referred to sets forth the General Counsel's unfair labor practice allegations in issue in this pro- ceeding insofar as that case is concerned. The other cases will be treated similarly. 90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Act. In answers filed to the General Counsel's complaint, the Respondent denied the commission of the alleged unfair labor practices , and the Respondent raised certain affirmative defenses to those allegations. - The petition in Case 27-RC-6368 was filed on 19 No- vember 1982 by the Union which sought to be the col- lective-bargaining representative of a unit of the Employ- er's employees at the Employer's Greeley, Colorado plant . The representation election in Case 27-RC-6368 was conducted, on 24 June 1983 by the Board. The Union did not receive a majority of the valid votes cast at the election. The Union filed the petitioner's objec- tions to conduct affecting the results of the election in Case 27-RC-6368. Thereafter, the Regional Director for Region 27 of the Board issued on 25 August 1983 a Sup- plemental Decision , Director of Second Election, and Contingent Direction of Hearing . The Employer request- ed review of that decision by the Board in Washington, D.C. The Board granted on 13 October 1983 the Em- ployer's request , in part, and remanded the Petitioner's Objection 28 to the Regional Director for consolidation with Case 27-CA-7742 and the other objections for a full determination of the issues prevented . The Regional Director for Region 27 of the Board issued on 14 Octo- ber 1983 an order directing hearing, consolidating cases, and notice of hearing, wherein the issues involved in Ob- jections 2-5, 8, 10, 15, 17, 19, 23, and 28 were referred for hearing. The hearing in this proceeding was held on 53 days at Denver, Colorado. The hearing opened on 14 November 1983 and the hearing closed on 12 December 1984. The time for the filing of posthearing briefs was extended to 1 May 1985. The counsel for the General Counsel, the attorneys for the Charging Party, and the attorneys for the Respondent filed briefs, which were argued persua- sively from their respective points of view of the evi- dence and the legal issues in these cases. Not surprisingly in a transcript of the size or the one in this proceeding, the various court reporters who re- corded the hearing have made some errors in transcrib- ing what was said at the hearing . Nevertheless, those errors, such as the spelling of some names and words, are not truly significant in determining the issues in this proceeding. Those errors can be recognized easily by a knowledgeable person reading the transcript . One error which should be apparent, but may not be to everyone, is an error at transcript page 1953 which attributes to me the comments about "this big, stinking red herring." In reality, I did not make that argument. As indicated at transcript pages 1952 and 1953 , I afforded the attorneys another opportunity to make further comments on the pending matter, but the argument that follows on tran- script pages 1953 and 1954 was made by one of the counsel for the General Counsel and not by me. While other examples could be cited, the foregoing illustrates and furnishes one example of an error by the court re- porter which is not truly crucial or significant in deter- mining the issues presented in these cases. FINDINGS OF FACT 1. JURISDICTION The Respondent has been, at all times material, a Dela- ware corporation , and it has been engaged in the slaugh- ter and sale of beef at its facility located in Greeley, Col- orado. On an annual basis, the Respondent has sold and shipped products of a value which is in excess of $50,000 directly to points located outside the State of Colorado. Based on the foregoing facts admitted in the pleadings, and the evidence presented in these cases , I find that the Respondent has been , at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION Based on the pleadings and the evidence presented in these cases , I find that the Charging Party has been, at all times material, a labor organization within the mean- ing of Section 2(5) of the Act. III. THE WITNESSES AND CREDIBILITY RESOLUTIONS There were 73 persons who were called to testify as witnesses during the hearing in this proceeding . Some of those witnesses testified on more than one occasion during the course of the 53 days of the hearing. The transcript exceeds 9000 pages , and there are hundreds of pages contained in the exhibits. The findings of fact throughout this decision are based on the credited portions of the testimony by the wit- nesses; certain facts which were admitted to be true in the pleadings ; stipulations by the parties ; some facts which are not in dispute; and certain documentary evi- dence which was introduced by the parties at the hear- ing. In making credibility resolutions regarding the testimo- ny given by the witnesses, I have considered several fac- tors. Rather than reiterate the criteria with respect to each one of the 73 witnesses, I will set forth at the outset specifically the factors which have been considered by me in arriving at the credibility resolutions made in this proceeding. The first and most important factor considered by me in making credibility resolutions in this proceeding was the demeanor of each witness as the witness gave his or her testimony on the witness stand . I observed each wit- ness closely during both direct examination and cross-ex- amination of the witness . I heard each witness' manner of speaking and tone-particularly in replying to probing questions during cross -examination by the experienced attorneys in this proceeding . I also considered whether the witness spoke in a convincing manner , that is, wheth- er the witness appeared to be confident and knowledgea- ble of the facts he or she was relating and was relating those facts with assurance. I recognized the fact that many of the events in ques- tion in this proceeding had occurred long before the wit- nesses gave their testimony at the hearing . The percep- tion and memory of the witnesses regarding those past events , and their ability to relate those past events on the witness stand were tested at the hearing , particularly MONFORT OF COLORADO 91 during cross-examination by the attorneys in this pro- ceeding . I gave consideration to each witness ' percep- tion, memory, and ability to relate events in arriving at the credibility resolutions regarding each witness' testi- mony. Other factors I have considered include the witness' connection with one of the parties in the proceeding by reason of his or her employment position , and also the likelihood of a witness having an interest in the outcome of the proceeding . I have not discredited the testimony of any witness in this proceeding merely because of his or her connection with a party because of the witness' employment position, or the witness' possible interest in the outcome or the cases . However, I have not ignored those circumstances , and I have considered them along with the other factors mentioned here in weighing, eval- uating and arriving at credibility resolutions regarding the witness ' testimony in this proceeding. In addition to the foregoing factors regarding the credibility or each witness' testimony , I also have consid- ered the consistency , or the inconsistency , of the testimo- ny or a witness when that testimony is compared with the testimony of other witnesses and documentary evi- dence . I also have considered the probability , or the im- probability, of the version or events given by a witness in light of the record as a whole . In addition , I have con- sidered whether the 'record in this proceeding disclosed a basis for the witness' knowledge or the events that he or she related, and the reliability of that basis of the witness' knowledge . - Furthermore, I have considered all the mat- ters affecting credibility which were brought out on the record by the attorneys ' questions of the witnesses. In making credibility resolutions in this proceeding, I recognized that it has been well established that it is common that a trier of fact will believe some of the testi- mony of a witness, but the trier of fact will not believe all of the testimony of a witness . NLRB v. Universal Camera Corp ., 179 F .2d 749 (2d Cir. 1950). The 'court stated in Universal Camera, at 754: "It is no reason for re- fusing to accept everything that a witness says, because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all." That legal principle has been applied through- out in this proceeding with regard to the testimony of the witnesses. Using the criteria set forth above in this section, I found portions of a witness ' testimony to be credible, ac- curate, and reliable, while I found other portions of a witness' testimony not to be . However, the fact that a witness made a mistake or was in error with regard to a part of his testimony did not cause me to reject his entire testimony solely on that basis when other , parts of the witness' testimony were credible , accurate, and reliable. In many instances, a witness was confronted with a prehearing statement given by the witness at a point in time which was closer to the occurrence of the events about which the witness testified . I have considered any inconsistencies which were shown to exist between the witness' testimony at the hearing and the witness' pre- hearing statement . With regard to certain omissions from a witness' prehearing statement , I recognized that, "What a prospective witness will tell a pre -hearing inves- tigator will often depend upon how searching the ques- tions of the investigator are." Standard Forge & Axle Co., 170 NLRB 784, 786 (1968). I have also considered that, "Witnesses are frequently called upon to testify concern- ing matters they were not questioned about during inves- tigation . . . and sometimes also they recall for the first time on the stand matters previously forgotten ." Electri- cal Workers UE Local 601 (Westinghouse Electric), 180 NLRB 1062, 1066 (1970). Some portions of the testimony of a witness were not contradicted, but I have not accepted such testimony un- critically without evaluating it in accord with the legal principle set forth in Plasterers Local 394 (Burnham Bros.), 207 NLRB 147 (1973 ). The Board held in that case: A trier of fact need not accept uncontradicted testimony as true if it contains improbabilities or if there are reasonable grounds for concluding that it is false . It is well settled that a witness' testimony may be contradicted by circumstances as well as by statements and that demeanor may be considered in such circumstances." 8 Jones on Evidence, 29.13 (6th ed. 1972). The Board specifically reaffirmed the foregoing in its decision in McCormick & Co., 254 NLRB 922 (1981). See also the court 's opinion in Glenroy Construction Co. v. NLRB, 527 F .2d 465 (7th Cir . 1975), enfg. 215 NLRB 866 (1974). While all the evidence contained in the record of this proceeding has been considered , the findings of fact set forth in this decision have been based on the record evi- dence which I found to be credible , accurate, and reli- able. The Board held, in part, in its decision in ABC Spe- cialty Foods, 234 NLRB 475 fn. 2 (1978): As the Board stated in Bishop and Malco, Inc., d1b/a Walker 's, 159 NLRB 1159, 1161 ( 1966), "The failure of [an Administrative Law Judge] to detail completely all conflicts in the evidence does not mean . . . that this conflicting evidence was not considered." Further, "[t]he absence of a statement of resolution of a conflict in specific testimony, or of an analysis of such testimony, does not mean that such did not occur." Stanley Oil Company, Inc., 213 NLRB 219, 221 (1974). Finally , as the Supreme Court stated in NLRB v. Pittsburgh Steamship Com- pany, 337 U . S. 656, 659 (1949), "[T]otal rejection of an opposed view cannot of itself impugn the integri- ty or competence of a trier of fact." IV. BACKGROUND EVIDENCE The earliest date on which it was alleged by the Gen- eral Counsel in this proceeding that the Respondent committed an unfair labor practice was 19 January 1982. All of the events which took place prior to that date have been considered by me as background evidence which assisted in understanding, evaluating , and making determinations with regard to the events which were al- leged to be unfair labor practices. In addition, there were 92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD events which occurred after 19 January 1982 and which were not alleged to constitute unfair labor practices, and those subsequent events placed the issues in context and gave a perspective for examining the events which were alleged by the General Counsel to be unfair labor prac- tices. Ken Monfort is the president and chief executive offi- cer of the Respondent . 3 He traced the Company's ori- gins back to a family farm which later developed into a cattle feedlot operation . In 1960 a packing plant was opened in Greeley, Colorado . For the first couple of years the business was called Greeley Capital Pack. Be- ginning in 1962 and continuing thereafter until the Gree- ley plant closed in March 1980 , the Respondent's pro- duction employees at the Company's Greeley plant were represented by the Charging Party Union and its prede- cessor . During that same span of 18 years, the mainte- nance and engineering employees at the Company's Greeley plant were represented by the Operating Engi- neers union . That union was still representing the em- ployees in that unit at the time of the hearing in this pro- ceeding . There were about 50 to 60 employees in the maintenance and engineering unit at the Greeley plant at the time of the hearing. In the latter part of the 1960s the meat packing indus- try began to undergo a significant change in its tradition- al method of operation . The Respondent and other meat- packers began to change to what is known as the boxed beef method of operation . Previously, meatpackers had slaughtered cattle; dressed them; and shipped the car- casses to their customers, such as a chain grocery store or a jobber , for example . Thereafter, the carcasses were cut into primals and subprimals and delivered to retailers or restaurants . The boxed beef method changed that op- eration so that the carcasses were fabricated at the pack- ing plant; the meat placed in vacuum packages and in boxes; and then distributed to the retailer or restaurant operation.4 Arden Walker formerly was vice president for indus- trial relations for IBP , Inc. He worked on a full-time basis for IBP from 1964 until August 1982 . Thereafter from August 1982 until July 1984, Walker worked on a part-time basis as a consultant to IBP . That company ini- tially was known as Iowa Beef Packers. Then it became Iowa Beef Processors . Finally , the company became known as IBP, Inc. According to Walker, IBP is the world 's largest slaughterer and processor of beef. Walker described at the hearing the change in IBP's method of operation which began in 1967 at its Dakota City, Nebraska plant. The new method was more like an assembly line at a 8 The first and the last names of Ken Monfort and Myra Monfort will be used in the decision to distinguish between references to each of them and also to distinguish between references to them and references to the Monfort company 4 The foregoing paragraphs are based on the credited testimony of Ken Monfort In addition to the matters set forth in sec. 3 of this decision, I have also given consideration to R. Exh . 144, which was a copy of an opinion issued on 1 December 1983 by Chief Judge Sherman G. Fine- silver of the United States District Court for the District of Colorado in the case of Monfort of Colorado Inc Y. Cargill, Inc., and Excel Corp. Ken Monfort testified at that trial in that civil proceeding and his testimony was credited by the court. manufacturing plant, except that in this instance, the car- cass was disassembled on the line and eventually placed in boxes for shipment to customers. Walker explained: The meat can flow past workers who then per- form one or two simple operations on the product and when the product has been through the total disassembly line, it's been broken down into primals and subprimals, it's been cryovaced to protect it into preserved shelf life, and then it's put into car- tons and shipped, transshipped in cartons which are extremely more efficient than hanging swinging meat, as the other is known. As a result of the new method of operation, Walker said that IBP "ended up with approximately 160 differ- ent job titles, exclusive of maintenance." Walker cited many specific instances where a new work force was employed, rather than the former work force being hired, when one company reopened a meat packing plant which had been closed by another compa- ny.5 As noted above, the entity now known as IBP, Inc., has undergone a couple of name changes over the years. For convenience, that entity usually will be referred to in this decision as IBP. Some other companies in the in- dustry also have undergone name changes, corporate re- organizations, mergers, or restructuring. It is not neces- sary here to detail the various changes with regard to those other companies. Understandably, some witnesses refer to one of those companies by a certain name, and other witnesses refer to the same company by another name. For convenience, I will use Excel to refer to what was once known as Missouri Beef Packers or MBP and later as MBP Excel, and still later as Excel Corporation after Cargill, Inc. acquired that operation. For conven- ience, I will use Swift Independent to refer to Swift In- dependent Packing Co., which is a unit of Swift Inde- pendent Corp. At the hearing, that entity was sometimes called SIPCO. Commencing in the late 1960s, a matter of continuing concern to Ken Monfort was what he perceived to be the disparity in the labor costs of the Respondent and the labor costs of IBP and Excel. (See R. Exh. 126 and the reply thereto, R. Exh. 127; and see also R. Exh. 128.) Whether Ken Monfort's perception in that regard was accurate is not an issue raised by the pleadings in this proceeding. Nevertheless, his perception regarding the Union is relevant in evaluating the Respondent's motiva- tion with regard to the General Counsel's 8(a)(3) allega- tions which will be discussed later. Gene Meakins is the Respondent's vice president of in- dustrial relations and public relations. Meakins has been with the Company since 1968. Meakins shared Ken Mon- fort's view with regard to the wage rates negotiated in the 1960s and the 1970s between the Respondent and the Union. Meakins said that Armour, Morrill,, Swift, and Wilson were considered in the late and mid-1960s to be the "big four" in the meat packing industry. The term s The foregoing paragraphs are based on the credited testimony of Walker. MONFORT OF COLORADO 93 "new breed" packers had reference to such companies as IBP and Excel. Meakins said that the Respondent was considered to be an independent meat packer during that period or time rather than one of the "new breed" meat packers. In the opinion of Meakins, the collective-bargaining agreements negotiated during that period of time be- tween the Respondent and the Union were more similar in economics, terms and conditions to those which the Union had negotiated with the "big four" meat packers than they were to the "new breed" packers. The Re- spondent took the bargaining position with the Union in the 1970 negotiations and thereafter that the Respondent was paying higher wage rates than his "new breed" competitors, and that the Respondent should not have the higher rates of the Union's master agreements with the "big four" packers. According to Meakins, the Union's position expressed to him was that the Union was seeking to get all the companies to increase their pay rates to those which were provided for in the master agreements. Meakins said that the Respondent was un- successful in its collective-bargaining agreements in 1970, 1973, 1976, and 1979, in achieving contract terms and ec- onomics like the Union had in its contracts with the "new breed" packers. Respondent's Exhibit 201 is a copy of a memo dated 9 August 1979 from Meakins and addressed to the Compa- ny's management personnel. The memo sets forth the Company's presentation to the Union at the opening of contract negotiations in 1979. Among other things, the memo reflected the Respondent's position at that time that "the Greeley Packing Plant had been placed at a competitive disadvantage in the boxed beef industry be- cause the Amalgamated Meat Cutters Union and others have negotiated contracts with Monfort's main competi- tors for much lower labor rates and benefits." Respond- ent's Exhibit 202 is a copy of a letter dated 11 October 1979 from Meakins and addressed to the Company's em- ployees. That letter reiterates, among other things, the Respondent's view that it had been placed by the Union in a competitive disadvantage in the boxed beef industry. Respondent's Exhibit 206 is a summary prepared by Meakins who compared the Company's 1979 final offer with provisions in five collective-bargaining agreements. Respondent's Exhibit 207 is a copy of a memo dated 30 January 1981 from Meakins to Ken Monfort wherein Meakins compared the Respondent's basic labor rates with those at IBP's Dakota City plants William L. Burns is employed in, the collective-bar- gaining department of UFCW. He had worked for UFCW for about 5 years at the time he testified at the hearing in this proceeding on 6 December 1984. Previ- ously, Burns had worked for about 14 years for the Amalgamated Meat Cutters and Butcher Workmen. Burns was the assistant director of research for the Amalgamated Meat Cutters at the time of its merger in 1979 with UFCW. Burns denied that the Union ever had a policy of at- tempting to put the Respondent at a competitive disad- vantage with other firms in the boxed beef industry. Burns testified: Our collective bargaining strategy was never to put any packer at a disadvantage. The strategy of the union-the International Union, since it con- ducted nationwide bargaining and set pattern bar- gaining policy was to achieve a uniformity as much as possible throughout the industry. The uniformity that would provide that most of the packers would pay a very similar rate. In that connection, the Union made surveys of the provisions of collective-bargaining agreements to which the Union was a party in order to compare the wage rates in effect in those agreements. Charging Party's Ex- hibit 127 is a copy of the results of such a survey of common labor rates as of 31 December 1975 in the Union's packinghouse agreements with employers who had 100 or more employees. The survey covered the rates of 109,521 employees. The Respondent's common labor wage rate for its Greeley plant is shown on page 5 of that exhibit as $5.82 an hour. The Union's "master agreement" common labor rate with the largest national packers at that time was $5.89 an hour. Charging Party's Exhibit 128 is a copy of a document prepared by Burns from collective-bargaining agreements which reflect wage rates , with certain employers, including the Re- spondent's facilities as of 1 May for each year from 1970 through 1982. Charging Party's Exhibit 130 is a copy of the opinion and decision of Arbitrator Lewis M. Gill in an interest arbitration proceeding between IBP and the Amalgamat- ed Meat Cutters and Butcher Workmen of North Amer- ica, AFL-CIO, Local Union No. 222. That document is dated 8 May 1974. In a strike settlement agreement, those parties had agreed on 23 January 1974 to arbitrate three issues : wage rates, a cost-of-living clause, and the duration of the contract. Charging Party's Exhibit 131 is a copy of an excerpt from the Respondent's 10K statement it had filed with the Securities and Exchange Commission for the fiscal year ending 3 September 1983. That document reflected that interest expense was a factor adversely affecting the Respondent's unit costs at its beef packing facilities. Charging Party's Exhibits 132 and 133 are copies of the Respondent's annual reports for 1979 and 1980, re- spectively.7 Michael L. Sanem is the Company's group vice presi- dent. He reports directly to Ken Monfort. Sanem has worked in various administrative positions for the Re- spondent since February 1978. Prior to that time, Sanem was employed by Spencer Foods at Spencer, Iowa, where he had worked for about 11 years. James Leonard is the group vice president, processing, beef processing, and sales for the Respondent. His office is located at the Company's corporate headquarters in Greeley. Leonard also reports directly to Ken Monfort. Sanem and Leon- ard pointed out that competing meat packers in the in- 6 The foregoing paragraphs are based on the credited testimony of Meakms and the documentary evidence indicated 7 The foregoing paragraphs are based on the credited testimony of Burns and the documentary evidence indicated 94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dustry, basically sold boxed beef products at about the same price at any given time. They said that the profit of a meat packer depended on two factors: labor costs and efficiency of the work force. Sanem elaborated that be- cause the buying price of cattle was about the same for meat packers, the margin of profit depended on: (1) what the labor costs were, (2) what the labor fringe benefits costs were; (3) what the total kill cost was; (4) what the productivity of the work force was; (5) how efficient the plant was; and (6) how many cattle can be processed at the facility. He further explained that there was very little difference in what buyers for supermarkets and sur- veyors would pay for boxed beef. The packers' quality and freight rates also are considered, but the buyers' job is to buy the boxed beef from the meat packer at the lowest price possible. Both Sanem and Leonard pointed to the fact that boxed beef is a commodity item. In his testimony, Walker said that the cost of cattle was about the same for meat packers in the industry, and that their selling price was about the same for the meat packers." Respondent's Exhibits 129 through 142 are copies of certain pages from the Company's annual reports which reflect certain "financial highlights" of the Company's business from 1966 through 1983. Respondent's Exhibit 143 is a page from the Company's quarterly report to the Securities and Exchange Commission pertaining to cer- tain financial information of the Company through 2 June 1984. Respondent's Exhibit 145 is a bar graph illus- trating the Company 's earnings and losses during the pe- riods from 1969 through 1983. Respondent's Exhibit 146 is a bar graph illustrating the pretax profits and losses at the Greeley plant during the fiscal years 1976 through 1983. The fiscal year losses at the Greeley facility are shown to be $1.5 million for fiscal 1976; $2.7 million for fiscal 1977; $1.7 million for fiscal 1978; and $3.5 million for fiscal 1979. The fiscal year 1980 loss at the Greeley plant is shown to be $6.4 million (September 1979 through March 1980). The fiscal year 1982 loss at the Greeley plant is shown to be $700,000 (March through August 1982). The fiscal year 1983 profit at the Greeley plant is shown to be $3.6 million. Respondent's Exhibits 146(a) through 146(i) are financial documents relating to the summary information which was received as Re- spondent's Exhibit 146. In the opinion of Ken Monfort, the turnaround in profits at the Greeley plant was attrib- utable to the labor cost and productivity at that plant.9 In August 1979, Ken Monfort spoke to the Colorado Meat Dealers Association at its annual convention in Colorado Springs, Colorado. He told the members of that association that the packers had to adopt a tough, competitive labor strategy. He also told them IBP had emerged with lower labor costs by absorbing long and costly strikes."0 Steve Thomas worked for the Respondent from Janu- ary 1970 through January 1975. During that period of time, Thomas was a department union steward, and he served on the Union's negotiating committee in bargain- ing for a contract with the Company in 1973. Thomas was elected to the position of business agent of the Union in December 1974, and he took office in February 1975. Thomas served as a union business agent until August 1981. During the period of time from 1975 to August 1981, Thomas was assigned by the Union to serv- ice the contract between the Union and the Respondent. During August and September 1981, Thomas was em- ployed as an organizer for the International Union, UFCW. Thereafter, he did not work for the Union until July 1982 when he returned to work for the Internation- al Union as the coordinator of the Union's organizing campaigns among the employees at the Respondent's Greeley and Grand Island plants. Thomas recalled at the hearing that there was a strike by the production employees at the Company's Greeley plant in November 1970. That strike lasted for 6 or 7 weeks. There was not another strike by the production employees at the Greeley plant until 2 November 1979.11 It was admitted in the pleadings that the Respondent and the Charging Party had been parties to several suc- cessive collective-bargaining agreements covering pro- duction employees, and that the most recent collective- bargaining agreement between those parties expired on 31 October 1979. General Counsel's Exhibit 31 is a copy of the former collective-bargaining agreement between the Respondent and the predecessor of the Charging Party Union. That contract had effective dates from 31 October 1976 through 31 October 1979. It was also ad- mitted in the pleadings that bargaining between the Re- spondent and the Charging Party in 1979 did not result in a new collective-bargaining agreement covering the production employees.12 Prior to the commencement of the strike on 2 Novem- ber 1979, there were approximately 950 union members in the bargaining unit represented by the Charging Party. The collective-bargaining agreement between the Charg- ing Party and the Respondent had contained a union-se- curity clause which required that employees in the unit become members of the Union after 30 days of employ- ment. Thomas said that there were a few probationary employees who were not members of the Union at the time the strike began. He estimated the number of such probationary employees to be 20 or 25. According to Thomas, all of the unit employees went out on strike on 2 November 1979. Those employees who returned to work for the Company after the strike was over retained their union membership. 1 s General Counsel's Exhibit 4 is a copy of a two-page news release issued by the Company on 27 December 1979. Among other things, the news release referred to statements by Samuel D. Addoms, who was president of the Company at the time. In part, the Company's news release stated: 8 The foregoing is based on the credited testimony of Sanem, Leonard, 11 The foregoing paragraphs are based on the credited testimony of and Walker Thomas. 9 The foregoing is based on the credited testimony of Ken Monfort 12 The foregoing is based on the pleadings and the documentary evi- and the'documentary evidence indicated dence indicated. - 10 The foregoing is based on the credited testimony of Ken Monfort. 13 The foregoing is based on the credited testimony of Thomas. MONFORT OF COLORADO 95 Addoms said the company will reopen the Gree- ley packing plant on Jan.- 14, 1980. "Hopefully," he said, "this can be done through a negotiated settle- ment with the union, but if not we will open the plant anyway. In the latter event, the company ex- pects to incur additional costs as replacement labor is trained to meet Monfort's performance stand- ards," he explained. General Counsel's Exhibit 5 is a copy of a memo dated 27 December 1979 from Addoms and addressed to the Company's employees. Among other things, the memo informed the employees that the Company planned to begin hiring permanent replacements on 14 January 1980 for those employees who remained on strike on and after that date.14 The strike of the production employees at the Greeley plant ended on the Saturday before 14 January 1980. At that time, the Union made an unconditional offer on behalf of the employees to return to work. The Compa- ny's Greeley plant reopened on Monday, 14 January 1980.15 Thomas said at the hearing that he did not recall making any statement in January 1980, when the em- ployees returned to work after the strike, to the effect that the Union intended to bargain from within the plant. Thomas denied making any statement to the effect that it was the Union's position or the Union's instructions to employees to make it hard on supervisors. Although there was no collective-bargaining agreement between the Company and the Union during January, February, and March 1980, the Company permitted the union offi- cials to visit the plant to conduct union business. The Company also permitted the Union to set up a table in the plant cafeteria and to collect union dues from em- ployees there. Thomas said that it was a matter of weeks before the plant returned to full operation after the strike was over. He said there were fewer production employees at the Company during January, February, and March 1980 be- cause the sheep kill operation was not restarted by the Company after the strike. Thomas explained that the elimination of the sheep kill operation resulted in the loss of 80 to 100, jobs. Thomas also stated that the night sani- tation work was subcontracted by the Company. Prior to any new employees being hired by the Company, the ex- isting work force was recalled to work in the order of their seniority. There were some employees who had been employed by the Company prior to the strike who did not return to work after the strike was over. In February 1980 some employees in a group went to the fabrication department manager's office to protest what they considered to be a job overload. As a result, some employees were fired, and some employees were suspended from work. The Union filed grievances and unfair labor, practice charges. Those matters were settled and the resolution was that the employees in question were paid backpay; reinstated in their jobs; and their records were supposed to be cleared. Thomas toured the Greeley plant with a group of union officials after the strike was over. During that tour, some employees hm the fabrication department pounded tables; shouted; cheered; and said things such as "Let's hear it for the union." The Company fired some of those employees for pounding on the table. The Union filed grievances and unfair labor practice charges regarding the Company's action. Those matters also were settled and the resolution was backpay for the employees in question; reinstatement; and the clearing of the employees' records. Between January 1980 and the time that the plant closed in March 1980, Thomas testified that there were "an excessively large number of grievances filed during that time and a good part of them related to suspensions and discharges that took place."16 Respondent's Exhibit 203 consists of three pages from the UFCW magazine entitled "Action" for March 1980. One page of that magazine publicized a nationwide boy- cott by the Union of the Respondent's products.17 It was admitted in the pleadings that the Respondent initiated in March 1980 a temporary layoff of employees at its Greeley meat packing facility. It was further admit- ted that the Respondent notified the employees by memorandum dated 31 March 1980 that their layoffs were "now permanent. It was also admitted that there were approximately 800 employees in the production unit at Greeley at the time of the layoff.18 General Counsel's Exhibit 6 is a copy of the memoran- dum dated 31 March 1980 from Meakins and addressed to the Greeley packing plant union employees. Among other things, the memo advised the employees of the de- cision on 28 March 1980' made by the Company's board of directors to cease operations at the Greeley packing plant on a permanent basis, and, as a result, the employ- ees' layoff from work was permanent. In part, the memo also stated: "We are immediately notifying other compa- nies with packing plants in the region that we have trained and skilled persons who may be interested in jobs." 19 According to Ken Monfort, the Company's Greeley plant was closed in March 1980 because it was unprofit- able. During the last 5 years that the plant had operated up to that time, it had lost about $15.8 million. Ken Monfort said that the cost of labor was a major reason that the plant was not profitable- The Company had at- tempted unsuccessfully to get some relief from the Union. Ken Monfort described the financial condition of the Respondent at the time the Greeley plant closed in March 1980 as being precarious. The Company had not complied with its loan agreements. At that time there were 10 banks and, 6 insurance companies involved in the Respondent's line of credit. Ken Monfort testified, "And over a period of three or four months that summer, we lost all six insurance companies and five of the ten banks in the line of credit and almost lost the company." The 18 The foregoing paragraphs are based on the credited testimony of Thomas. 14 The foregoing paragraphs- are based on the documentary evidence 17 The foregoing is based on documentary evidence. indicated 18 The foregoing is based on the pleadings in this proceeding. 15 The foregoing is based on the credited testimony of Meakins. 19 The foregoing is based on documentary evidence. 96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent attempted to sell the Greeley plant to one of its competitors and to other persons, but the Respondent was not successful in doing so. The number of corporate employees of the Respondent was cut in half. The Re- spondent reduced its Gilcrest feedlot from 75,000-80,000 head of cattle to about 2000 head of cattle. The Re- spondent also announced the closure of that feedlot, but business improved so the Respondent did not close it. By the end of 1980, the Respondent had a book value of $20 million. Of that amount, $15 million was carried on the Company's books as being the value of the Greeley plant.2 ° Respondent's Exhibit 204 is a copy of an informal NLRB settlement agreement, which was executed by the Union but not by the Employer. That agreement was ap- proved on 14 November 1980 by the Regional Director for Region 27 of the Board. The exhibit also contained a letter dated 18 November 1980 from the Regional Direc- tor for Region 27 of the Board to the Company's attor- neys. That letter advised them that the Regional Direc- tor was withdrawing the complaint issued against the Union and was dismissing the unfair labor practice charges filed by the Company in view of the settlement agreement. That was the final action in that matter.21 As requested, I have taken judicial notice of the Board's decision in Monfort of Colorado, 256 NLRB 612 (1981), enfd. 683 F.2d 305 (9th Cir. 1982), and the deci- sion of Administrative Law Judge John H. West which issued in 29 April 1985. With regard to the latter deci- sion, I recognize the fact that the administrative law judge's decision is subject to review by the Board in Washington, D.C. At the time that this decision is being written, I have not been notified that the Board has ruled on the exceptions to the administrative law judge's deci- sion . Those decisions involve the Respondent's Grand Island, Nebraska facility. Dan Pullins is an employee of the Respondent at that facility. According to the admin- istrative law judge's decision, Pullins testified at the hear- ing involving the Respondent's Grand Island facility. Thus, the parties already have had an opportunity to liti- gate the matters which Pullins testified to at the hearing in this proceeding. Therefore, I fmd that it is unneces- sary here to make findings on matters which have al- ready been litigated. Respondent's Exhibits 232, 233, 234, and 235 are copies of correspondence; an original unfair labor practice charge; and a first amended unfair labor practice charge pertaining to the Respondent's Grand Island facility. Samuel D. Henderson had worked for several years at what is known as the Flavorland plant in Denver. He worked there when it was operated by Bill Foxley. He continued to work at that facility when the Respondent operated that plant. Thereafter, Henderson continued his employment at that plant when it was operated by Cattle King. An independent union known as Employee Associa- tion No. 1 began representing the Flavorland employees in June 1979 while Flavorland was being operated by Foxley. Henderson held the position of chairman of the board with the Employee Association, and Leon Sim- mons was the secretary of that organization. The Em- ployee Association negotiated a contract with Flavor- land while it was operated by Foxley. That contract con- tinued in effect when the Respondent began operating the facility. Under the terms of that agreement, Foxley had provided an office for the Employee Association at $1 a year rental. The Respondent continued that practice when it operated the Flavorland facility.22 Respondent's Exhibit 154 is a copy- of the purchase agreement signed on 19 November 1979 wherein the Re- spondent purchased the Flavorland plant in Denver. Sec- tion 4 of that agreement entitled "Union Contract" pro- vided that the Respondent would assume and be bound by the terms of the collective-bargaining agreement be- tween the seller and Employee Association No. 1. Re- spondent's Exhibit 155 is a copy of the collective-bar- gaining agreement which had effective dates from 27 June 1979 through 27 June 1982. Article I, section 2, of that contract contains a successor clause.23 The Respondent ceased operating the Flavorland plant in December 1980. The facility was closed for about 4 or 5 months. Then, the Respondent leased the Flavorland plant to Cattle King. Subsequently, Cattle King closed its operation there, and it canceled the lease. Thereafter, the Respondent was unsuccessful in selling the Flavor- land facility. As a result, the Respondent donated in 1984 the facility to the National Western Stock Show.24 Henderson, Simmons, and Frank Covello, treasurer of the Employee Association, heard that the Respondent was going to reopen its Greeley plant. Henderson thought that this occurred in April 1981, but he ac- knowledged at the hearing that he might have the "dates mixed up," and this could have been in August 1981. Henderson seemed to be sure that the tour of the Gree- ley plant happened at the same time of the conversation which is described below. Henderson, Simmons, and Covello went to the Re- spondent's Greeley plant where they had a conversation with Ken Monfort, Meakins, and Sanem. Henderson, Simmons, or Covello asked the company representatives why the Company did not take the Denver plant back. At the hearing Henderson did not state what they were told in response to that inquiry. Henderson, Simmons, or Covello also asked the company, representatives how many employees would the Greeley plant "hold." Hen- derson did not relate at the hearing who responded, but he said the reply was 900. One of the Employee Associa- tion representatives asked the company representatives when the Greeley plant would reopen. Henderson did not say at the hearing who replied to that question, but he said that one of the company representatives told them that they previously had union problems, and they did not know, but sometime within a year, they may be opening. Someone asked what the wage rate would be, and the reply was $5.50. The Employee Association rep- resentatives were given a tour of the Greeley plant by Tom Weiler, who previously had been one of the Re- 22 The foregoing is based on the credited testimony of Henderson. 20 The foregoing is based on the credited testimony of Ken Monfort. 23 The foregoing is based on documentary evidence. 21 The foregoing is based on documentary evidence. 24 The foregoing is based on the credited testimony of Ken Monfort MONFORT OF COLORADO 97 spondent's managers when the Respondent had operated the Flavorland facility. During the tour, the Employee Association representatives made "some hints" to Willer that the Employee Association would like to get in the Greeley plant. Willer made no reply. The Employee As- sociation representatives also told Weller that the Em- ployee Association would like to get into the Greeley plant. Willer again made no reply, but he smiled. The Employee Association representatives asked Weiler whether the Company was going to put out applications when the Greeley plant opened. Weiler responded that he did not know, but is they wanted to get applications, they would have to go to the personnel office and get them prior to the plant's opening. The Employee Asso- ciation representatives also asked Weiler about the kitch- en at the Greeley plant and Who owned the vending ma- chines. Weiler replied that the vending machines had been left there when the Greeley plant had closed.25 In August 1981 Henderson and Simmons visited the Respondent's plant in Grand. Island, Nebraska. Both Henderson and Simmons were employed by Cattle King at that time. They had been sent to organize a union at other companies. Because they were in the geographical area of the Respondent's Grand Island plant, which Sim- mons had not yet seen, they drove about 50 miles to the guard shack at the Respondent's plant. Ken Monfort and some other persons were going through there at the time. Ken Monfort greeted them. Henderson and Sim- mons walked into the building with him. Henderson and Simmons looked ' at the layout of the kill floor at the plant, and then they went to the personnel office where they spoke with someone for 10 or 15 minutes. Hender- son did not know the identity of the person with whom they spoke. They then talked with some union officials whom Henderson knew, and then they departed Grand Island for Denver.26 On 11 May 1981, the Respondent reopened an oper- ation known as the Conco meat storage freezer at the Greeley packing plant. That operation stores and re- trieves frozen products in boxes. The Company imple- mented a preferential hiring process whereby former em- ployees of the Company were given preference in hiring at the Conco freezer operation. Meakins stated at the hearing that the Company had done so because of a set- tlement agreement which was in effect at that time, but was not' in effect after November 1981. The Company also notified the Charging Party about the planned re- opening of the freezer, and the Company met with the Union. General Counsel's Exhibit 7 is a copy of a letter dated 22 April 1981 from Meakins to the Union with regard to the planned reopening of the Conco freezer; the preferential hiring process for three or four former employees who would be needed at the freezer; and the Company's proposal for a contract. General Counsel's Exhibit 8 is a copy of the Company's later proposal to 25 The foregoing is based on the credited testimony of Henderson. Sanem testified that Weiler is the slaughter plant manager at the Re- spondent's Greeley plant, and that Weiler had been employed by the Company since 1961 Meakins testified that Weiler had been the slaughter manager at, the Flavorland plant when the Respondent had operated that facility. Weiler did not testify at the hearing in this proceeding. 26 The foregoing is based on the credited testimony of Henderson. the Union with regard to hiring three or four former company employees to work at the Congo freezer oper- ation when it reopened on 11 May 1981.27 Ken Monfort was questioned at the hearing as to whether he had made certain statements at the Compa- ny's annual meetings in January 1981 and January 1982. He did not recall telling the Company's shareholders at the January 1981 meeting that the Greeley plant was not obsolete and that it could be operated competitively with the right labor environment. However, Ken Monfort stated at the hearing that he believed the foregoing at that time, and that he probably did say that. Ken Mon- fort also stated at the hearing that he might have stated at the meeting that turnover problems at the Grand Island plant had meant 2000 workers were hired and trained to produce a work force of 800. Ken Monfort said at the hearing that he did not recall saying at the Company's January 1982 annual meeting that there had been labor problems at the Greeley plant, and that the problems were not likely to be repeated. However, Ken Monfort stated at the hearing that the foregoing was what he had believed, and it sounded like something he would have said. He also did not recall at the hearing that he stated at the same annual meeting that he was particularly impressed that the Grand Island hourly em- ployees had chosen not to be represented by a union; that they had union problems in Greeley, and they were not looking forward to union problems in Grand Island. However, Ken 'Monfort acknowledged at the hearing that the foregoing was his belief at that time, and he said that it did not sound like something he would not have said.28 I find that the foregoing represented Ken Mon- fort's beliefs in January 1981 and 1982, as he indicated in his testimony. Thus, I find that those beliefs are relevant to a consideration of the Respondent's motivation in con- nection with the General Counsel's 8(a)(3) allegations, whether or not ' Ken Monfort actually expressed those beliefs to the Company's shareholders at those annual meetings. There were a number of discussions within the Com- pany about reopening the Greeley plant. Ken Monfort discussed that subject with the Company's board of di- rectors; the Company's executive committee; and certain officers of the Company. The Company's fiscal year ends each August. In August 1981 the Company budgeted for the reopening of the Greeley plant, but a final decision was not made until the last few days of February 1982 to reopen the plant on 1 March 1982. Ken Monfort is the one who made'that final decision. He explained at the hearing that the major concerns with regard to making :a decision to reopen the plant were: (1) the financial condi- tion of the Company; (2) the availability of cattle; and (3) the availability of a market for meat. He acknowledged at the hearing that the cost, of labor also was a big con- cern. In December 1981 Ken Monfort met with the Compa- ny's bankers who set certain ground rules that had to be met before the plant reopened. Ken Monfort explained 27 The foregoing is based on the credited testimony of Meakms and documentary evidence. 2 s The foregoing is based on the credited testimony of Ken Monfort. 98 DECISIONS OF THE NATIONAL LABOR , RELATIONS BOARD that the five banks required that the Company meet its budget from 1 September through January 1982 before those banks would agree to lend the Company money to reopen the Greeley plant . In addition , the Company was required to have a certain amount of working capital; the Company 's debt-to-equity ratio would not exceed a cer- tain figure; and the Company 's borrowing needs would not exceed a certain figure . January 1982 also had to be a profitable month for the Company in order to meet those commitments. Ken Monfort informed Meakins that it appeared that the chances were better than even that the Company would be able to reopen the Greeley plant about 1 March . In January 1982 Ken Monfort discussed with Meakins and the Company's attorneys the hiring of em- ployees for the Greeley plant. The decision was made at that time that it was the Company 's preference to hire employees in line with how the Company had done that at the Grand Island plant . Ken Monfort explained at the hearing : "Well, it followed that that would be our pref- erence . But as I say , at the same time they were negotiat- ing with the union, so we did not know where we would end up." About 20 February 1982, Ken Monfort re- ceived the Company's financial figures with regard to the Company 's monthly results for January 1982. With regard to the reopening of the Greeley plant, Ken Mon- fort also testified: The primary -consideration was that the plant was there, we had been unable to sell it , it was too good a plant to let sit there empty forever. We needed the plant to operate, either by us or someone else, to process the cattle we feed in Greeley , and finan- cially we thought we could open it. And we deter- mined to open it, and then we determined to do it with a competitive labor rate. Ken Monfort acknowledged at the hearing that the Company would not have reopened the Greeley plant under the same hourly wage rates and conditions of em- ployment that had existed prior to the closure of the Greeley plant and because in his view, "we would not have been competitive in the industry."29 General Counsel 's Exhibit 9 is a copy of a letter dated 19 January 1982 from Meakins to the Charging Party Union . Among other things, the letter advised the Union that the Company planned to begin production at the Greeley plant on 1 March 1982, and that the Company would accept applications for employment on 26 January 1982 for hourly production employees . In part, the letter stated : "There shall be no preferential hiring status for any former Monfort employee . All persons interested in working for the company must apply, beginning on Jan- uary 26 , 1982 ." In that letter, the Company also offered to meet and bargain with the Union with regard to the wages, hours, and working conditions covering hourly production employees at the Greeley plant. Meakins also 29 The foregoing paragraphs are based on the credited testimony of Ken Monfort. enclosed the Company's contract proposal with his letter to the Union.30 Charging Party 's Exhibit 2 is a copy of a letter dated 26 January 1982 from Attorney Philip Hornbein Jr. to Meakins . The letter is in response to General Counsel's Exhibit 9 . Among other things, the letter stated: "It is the Union 's position that all employees who were laid off from work at the Greeley packing plant are entitled to be recalled in the order of their seniority."31 There is no allegation in the General Counsel's com- plaints that the Respondent had any legal obligation under the , Act to meet and to bargain with the Union at any time , nor is it alleged in the General Counsel's com- plaints that the Respondent violated Section 8(a)(5) of the Act in any manner. There were five meetings between the representatives of the Respondent and the representatives of the Union in February 1982 . Those meetings took place on 8, 17, and 24-26 February 1982 . General Counsel 's Exhibit 11 is a copy of a mailgram dated 18 February 1982 from Meakins to the Union . That document summarizes the Company's views of what the Company perceived to be delays by the Union in holding their bargaining sessions. Myra Monfort is the vice president, general counsel, and secretary of the Respondent . She has been employed on a full-time basis by the Company since 28 June 1976. Myra Monfort was one of the Company's representatives at the meetings with the Union in February 1982. She took notes at each one of the meetings . When she re- turned to her office after the meeting either the same day or the following day, she dictated from those notes to her secretary who prepared a typed version of her notes. When Myra Monfort received the typed versions from her secretary , she checked the typed versions for accura- cy against her handwritten notes . Respondent 's Exhibits 149-153 are copies of the typed versions . She acknowl- edged at the hearing that her notes of the meetings were not verbatim accounts and that at times her notes reflect- ed her characterizations . However, she stated that the notes accurately described what had transpired at the meetings. One of the representatives of the Union at the meet- ings with the Company was Ron Bush. Bush had worked for the Charging Party Union for the past 9 years at the time he testified at the hearing on 1 February 1984. Bush's handwritten notes with regard to the meetings be- tween the Union and the Company were attached to his prehearing affidavit , which was introduced into evidence as Respondent's Exhibit 12. - Another representative of the Union was Robert Bender. Bender has been a business representative of the Charging Party Union since January 1982 . Previously, he had been employed since 1973 for a UFCW local in Iowa . Bender participated in four out of the five meet- ings between the Union and the Company in February 1982 . The notes taken by Bender were introduced into evidence as General Counsel 's Exhibit 64. ao The foregoing is based on the credited testimony of Meakms and documentary evidence. 31 The foregoing is based on documentary evidence. MONFORT OF COLORADO 99 I have considered the testimony of Myra Monfort, Meakins, Bush, and Bender with regard to the five meet- ings between the Company and the Union. Rather than rely on the recollections of the witnesses regarding what was said at those meetings in 1982, I find that the notes dictated by Myra Monfort as reflected in Respondent's Exhibits 149 thru 153 are a more detailed and a more comprehensive account of what took place at those meetings . While there are some acknowledged character- izations by Myra Monfort, her characterizations can be recognized as such and given appropriate weight. The notes taken by others have been compared with Myra Monfort's accounts, but her accounts are more detailed and complete. As indicated earlier, there is no 8(a)(5) re- fusal-to-bargain allegation in the General Counsel's com- plaints. Under such circumstances, I find that it is not necessary to reproduce Myra Monfort's notes here. However, there were some exhibits which should be mentioned in this connection. The Union's proposal to the Company with regard to the rehire of former compa- ny employees is set forth in Respondent's Exhibit 13, which was submitted by the Union to the Company at the meeting on 17 February 1982. At that same meeting, the Union gave to the Company a list of names which the Union said were former employees who wished to return to work for the Company. A copy of that list was introduced into evidence as General Counsel's Exhibit 34. That document was supplemented verbally at the next meeting on 24 February 1982 with the addition of two names-Eddie Maltos and Juan R. Maltos. At that same meeting , the Union gave to the Company complet- ed copies of 'General Counsel's Exhibit 33, which the Union said were additional former employees who had communicated to the Union their desire and willingness to return to work at the Company. Copies of those filled-in forms were introduced into evidence as General Counsel's Exhibits, 35(a) through 35(hh). A list of only their names was introduced into evidence as Joint Exhib- it 5.32 In the opinion of Meakins, it would have been eco- nomically unsound for the Company to recall the former company employees as a group. Meakins said at the hearing: "Well, it was economically not sound. The union in negotiations had asked for recall. And we point- ed out to them that it was a cost factor, because they wanted their prior seniority and so forth to count toward all wages and, benefits." Meakins later also stated: "The union was asking for recall. The union never once in bar- gaining asked for preferential rehire." Meakins decided that the Company would hire a new work force. The former company employees who were rehired by the Company, as distinguished from being recalled to work after a layoff, would be hired as new employees along with persons who previously had not worked for the Company.33 General Counsel's Exhibit 10 is a copy of an advertise- ment placed by the Company in the "Help Wanted" sec- tion of the Greeley Tribune newspaper on Monday, 25 January 1982. The advertisement stated: WANTED MALE and FEMALE APPLICANTS NO EXPERIENCE NECESSARY Applications being accepted for MONFORT GREELEY PACKING PLANT PRODUCTION and MAINTENANCE WORK *Good wages and benefits ($5.00 per hour is proposed starting wage) Only apply in person. Weld County Department of Human Resources (Division of Employment) will make applications available at Congregational Church, 2101 16th Street, Greeley, between 8 a.m. and 5 p.m. beginning Tuesday, Jan. 26. An Equal Opportunity Employer Meakins said there was also a news story regarding the foregoing on the front page of the Greeley Tribune. In addition, there were news stories regarding the opening of the plant in the Denver newspaper. Meakins was not certain at the hearing, but he said the Company may have advertised for applicants on a Greeley radio sta- tion.34 Deborah Frazier had been a reporter for the Rocky Mountain News for 3 years at the time she testified at the hearing on 28 February 1984. Previously, Frazier had worked as a reporter for about 7-1/2- years for United Press International in Denver, and prior to that for the Cherry Creek School District. On 1 March 1982 Frazier telephoned Ken Monfort, and she informed him that the purpose of her calling him was to interview him for a newspaper article. At the hearing, she at first did not recall specifically what was said in her conversation on that occasion with Ken, Mon- fort. After examining the newspaper article she had writ- ten earlier, her recollection was refreshed, and she testi- fied: (1) that Ken Monfort had stated that about 20 per- cent of the people who had been hired had worked for the Company; (2) he anticipated that another 50 to 100 former company meatcutters would be hired; and (3) about 250 employees had been hired at the time of their conversation. General Counsel's Exhibit 29 is a copy of a newspaper article which appeared in the March 1982 edition of the Rocky Mountain News. Frazier wrote that account based on her shorthand notes which she had taken during her telephone conversation with Ken Monfort; her conversations with several other persons; and clip- pings in the files of the Rocky Mountain News. Accord- ing to Frazier, her notes were true and accurate, and the article she wrote for the newspaper reflected what was contained in her notes. Her practice was to discard her notes after a year's time except where she was following 32 The foregoing paragraphs are based on the credited testimony of Myra Monfort, Bush, and Bender and documentary evidence. 33 The foregoing is based on the credited testimony of Meakms. 34 The foregoing paragraphs are based on the credited testimony of Meakms and documentary evidence 100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD a story and where her notes contained telephone num- bers, associations, and things of that nature . Her notes of the 1 March 1982 conversation had been discarded prior to the time she testified at the hearing on 28 February 1984.35 When Ken Monfort had testified earlier at the hearing during his first appearance on the witness stand in this proceeding on 1 February 1984, he examined the news- paper article which later was introduced into evidence as General Counsel's Exhibit 29. He was questioned at that time about certain statements attributed to him in the newspaper article. Ken Monfort testified: "I don't re- member specifically saying that but I'm not saying I didn't say that. I presume I said that." Ken Monfort also testified: "I presume I assumed that, yes. As I say, I don't remember saying that but I have no reason to be- lieve I didn't."36 I fmd that the testimony of Frazier and General Coun- sel's Exhibit 29, on which her testimony was based after her recollection was refreshed, do not impeach the testi- mony of Ken Monfort. As indicated in Ken Monfort's testimony, he did not recall making the statements attrib- uted to him, but he did not deny having done so. I fmd Frazier's testimony to be credible, and that Ken Monfort did make the statements to her which she attributed to him. When the Company's Greeley plant reopened on 1 March 1982, it did not begin at full capacity. There were several reasons why that was so. One reason was the Company did not have the ability to finance a 100-per- cent maximum operation at that time. Other factors were: the Company had to get everything working again at the facility which had been closed almost 2 years; em- ployees had to become familiar with their jobs and de- velop their muscles for the work they had to perform; the Company had to develop its markets; and the Com- pany had to have cattle available to buy in gradually in- creasing numbers. For the first couple of months, the Creeley plant operated at about the same level that Ken Monfort had projected. However, it then increased faster than he had projected. Ken Monfort testified: "We were able to market the product better than I had expected, the product quality was better than I expected, and pro- ductivity was better than I expected." The Greeley plant reached full capacity in its operations about 12 to 14 months after it was reopened.37 Charging Party's Exhibit 1 consists of copies of an in- formal NLRB settlement agreement approved on 18 Feb- ruary 1982 between the Respondent and the Charging Party in other cases; a list of employees who were in- volved in that settlement agreement; and a letter dated 7 September 1982 from the Regional Director for Region 27 of NLRB wherein he closed those cases based on the Respondent's compliance with the terms of that settle- ment agreement. Among other things, the agreement provided for the expunction from the Company's records as The foregoing paragraphs are based on the credited testimony of Frazier any references to the suspension and/or termination of the employees involved therein.38 A copy of a booklet entitled "Monfort Employee Ben- efits" was received into evidence as Charging Party's Exhibit 19. The booklet indicates that it was issued in October 1982. Among the many sections in the booklet for company employees was one entitled "How We Feel About Unions." In that section, the Company described for employees what the Company's attitude and philoso- phy were about unions. It stated: As an employee, you are entitled to know how your Management feels about unions. You are enti- tled to know what Management's philosophy and attitude is in this respect. We're being candid with you now, so that there will be no misunderstandings later on. As you know, you are working under union-free conditions. Management's attitude and philosophy about unions are clear: we prefer to stay nonunion . We do not want a union here. You do not need to belong to a union in order to keep your job. We believe that our employees desire and respect a work situation where people are treated as indi- viduals. Our intention and goals are to achieve a work atmosphere based on individual treatment. Fair treatment works in two directions. Our philos- ophy is to maintain a work relationship where all employees receive fair, honest, and equitable treat- ment. When employees work under these kinds of conditions, it creates an atmosphere of mutual and continuous respect. If you feel you are not being treated fairly, we want to know about it! We feel that one good reason why we have been able to maintain a union-free work atmosphere stems from our objective of fair treatment in wages. Fair treatment in benefits. Fair treatment in work- ing conditions. When employees are treated fairly, unions are unnecessary. If you feel we are "falling down" in these areas, we want you to tell us! The next section in the booklet is entitled "Employee Guarantees," and it described_to employees the Compa- ny's views regarding promises often made by unions; union dues and initiation fees; company benefits in a non- union situation; and the effect of a strike situation on wages and benefits.39 Steve Thomas had been at the plant one or two times in August 1982. Thomas also held a meeting for compa- ny employees, and he solicited employees to sign union authorization cards at that time. Thomas denied at the hearing that he ever told anyone at any time that he worked for the NLRB. He also denied that he ever rep- resented himself to anyone that he was an agent or rep- resentative of the NLRB. Thomas estimated at the hear- ing that there were approximately 700 employees in the unit at the Greeley plant at the time the Union filed the representation petition on 19-November 1982 in Case 27- RC-6368. He estimated that he had submitted around 86 The foregoing is based on the credited testimony of Ken Monfort. 58 The foregoing is based on documentary evidence. 37 The foregoing is based on the credited testimony of Ken Monfort. 11 The foregoing paragraphs are based on documentary evidence. MONFORT OF COLORADO 101 500 union authorization cards to NLRB when he filed the representation petition. He acknowledged at the hearing that there could have been 490 such cards or as many as 520 such authorization cards at that time. Thomas said that all but 10 or 15 of those union authori- zation cards had been signed during the period from 1 August 1982 to the time the petition was filed on 19 No- vember 1982. He acknowledged that there was "quite high" turnover among the employee complement during that period of time. However, Thomas testified: "As best as we could tell, the only cards we turned over were active employee cards." He said that the Union had dis- carded the cards signed by employees who were no longer working at the Company. No union authorization cards were submitted in evidence at the hearing in this proceeding.40 The UFCW represented about 200 employees at the Respondent's portion foods plant in Greeley at the time that Ken Monfort testified on 11 September 1984. He said the UFCW also represented about seven or eight employees at the Respondent's San Francisco, California distributing company. Ken Monfort stated that the Teamsters union represented employees at branches of the Monfort Food Distributing Company in Greeley (be- tween 6 and 8 employees), and Denver (between 8 and 12 employees), and also about 200 employees at the Re- spondent's ground beef plant ' in Jacksonville, Florida. The Company has two feedlots. One is located near Gil- crest, Colorado, and one is located near Kersey, Colora- do. The latter feedlot also is called the Kuner feedlot. The employees at both feedlots have never been repre- sented by a union . The Respondent employed approxi- mately 3200 full-time employees at the time Ken Mon- fort testified on 11 September 1984. About 1100 of that number were employed at the Company's Greeley plant at that time.41 V. THE 8(A)(1) AND (3) ALLEGATIONS PERTAINING TO THE RESPONDENT'S HIRING CRITERIA A. Allegations The General Counsel's 8(a)(1) and (3) allegations per- taining to the Respondent's hiring criteria are set forth in paragraphs X, XVII(a), XVIII, and XII of the General Counsel's second amended complaint in Case 27-CA- 7742. Those allegations are: X On or about January 19, 1982, Respondent noti- fied the Union of its intention to resume operations at the Greeley meat packing plant on March 1, 1982. Respondent further notified the Union that application for hourly production work at the plant would be accepted on January 26, 1982, and that there would be no preferential hiring status for any former Monfort employee. 40 The foregoing is based on the credited testimony of Thomas 41 The foregoing is based on the credited testimony of Ken Monfort. XVII (a) On or about January 19, 1982, Respondent ini- tiated and instituted a hiring policy with criteria de- signed and/or which inherently had the effect that former employees who applied for employment on and after January 25, 1982, would not be hired in numbers sufficient to form a majority of unit em- ployees. XVIII Since on or about January 25, 1982, and continu- ing to date, Respondent has not considered skill or experience in the meat packing industry as criteria in determining the eligibility of applicants for em- ployment, which conduct is inherently destructive of the rights guaranteed employees by Section 7 of the Act. XII On or about February 25, 1982, Respondent, by Gene Meakins, announced to the Union that Re- spondent's criteria for hiring employees included considering past discipline, absenteeism, and possi- bly medical history, but would not include consider- ation of an applicant's skill and experience in the meat packing industry. B. Facts Ken Monfort described the Company's objectives in its criteria for the hiring of employees to work at the Greeley plant as being twofold. One company objective was to use a similar process as had been utilized earlier at the startup at the Company's plant in Grand Island. In Ken Monfort's view, the Grand Island plant was both productive and profitable. A second company objective was to be fair to all of the people who applied for jobs at the Greeley plant. Ken Monfort said the specific criteria to be used were developed by Meakins, and Ken Mon- fort did not play any role in developing those specific criteria. Ken Monfort further testified, "the only discus- sion we had was that it should be written criteria, one that I knew could be used evenhandedly." He said he did not instruct anyone to design criteria to rule out any specific percentage of former company employees, and no one on his staff had told him that they had done so. Ken Monfort said he did not give any instructions as to the percentage of former company employees to hire, and he had no idea what percentage of the former em- ployees would meet the criteria which was used. Ken Monfort was aware that skill and experience were not included in the Company's criteria for hiring em- ployees in production jobs at the Greeley plant. He said skill and experience had not been required or given weight in hiring production, employees when the Compa- ny's Grand Island plant was opened in the summer of 1979, nor at any time since then; that skill and experience was not a requirement for hiring at the Company's por- tion foods plant; and prior to the closure of the Compa- ny's Greeley plant in March 1980, skill and experience had not been given weight in making hiring decisions. 102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD However, with regard to the Greeley plant before its closure, he acknowledged that the seniority system in effect at that time would have required that the new em- ployee start in what he described as being a common la- borer job regardless of his skill and experience.42 While the Company did not consider skill and experi- ence in making a hiring decision, Meakins gave instruc- tions to the personnel department to permit the former employees of the Company who were rehired to return to the department where those former employees previ- ously had preferred to work. Meakins explained at the hearing that his reason for those instructions was to at- tempt to avoid a charge that the Company was assigning former employees to less desirable jobs. Meakins said that the personnel department assigned new employees to production departments and then the departments' su- pervisors assigned employees to particular jobs. Meakins acknowledged that the Company hired its supervisors "based on their knowledge and experience in the indus- try and ability to handle people." Meakins said that the Company also sought skilled maintenance people in hiring employees for its maintenance jobs. He said that the Company also required skills, such as typing skills, in hiring its clerical employees.43 Meakins is the one who developed the Company's hiring criteria. At the hearing, Meakins said that his prin- cipal goal in the hiring of production employees at the Greeley plant when it reopened was to hire the best pos- sible work force. Prior to the closure of the Greeley plant in March 1980, the Company did not have written hiring criteria for its production employees, other than medical criteria. While written applications were submit- ted to the Company by applicants for employment at the Greeley plant through March 1980, Meakins supported Ken Monfort's testimony that the Company did not con- sider skill and experience in hiring production employ- ees, and that production employees came to work at the Greeley plant as laborers through March 1980.44 General Counsel's Exhibit 12 is a copy of the Re- spondent's hiring criteria for production employees upon the reopening of the Greeley plant in March 1982. Part A is entitled "Job Service Screening Criteria" and was intended to be given to the Job Service of the Weld County Department of Human resources. At the hearing, Meakins did not recall whether a copy of part A was ac- tually given to the Job Service. In any event Meakins said that the function of the Weld County Job Service was simply to take employment applications and give those applications to the Company. The procedure was then for the Company to contact the Job Service to call in applicants for interviews by the Company. The Job Service was not to screen out any applicants for employ- ment. In the foregoing circumstances, I find that it is un- necessary to set forth part A of the hiring criteria be- cause Meakins' testimony and additional evidence set forth in section VI of this decision shows that the Job 42 The foregoing paragraphs are based on the credited testimony of Ken Monfort. 48 The foregoing paragraphs are based on the credited testimony of Meakins 44 The foregoing is based on the credited testimony of Meakins Service did not screen out any applicants for employ- ment. Part B of the Respondent's hiring criteria at the Gree- ley plant when it reopened in March 1982 is entitled "Hiring Standards Criteria (Personnel Department)." Meakins gave part B of the Company's hiring criteria to Jim Lovelady, who is the personnel director at the Re- spondent's Greeley packing plant. Lovelady has held that position since 10 January 1982. Prior to that time, Lovelady was the personnel director at the Respondent's Grand Island plant. Lovelady began his employment at Grand Island on 7 May 1979. Meakins instructed Love- lady at the time he gave Lovelady part B of the hiring criteria that the criteria regarding "Accidents" and "At- titude" could not be applied to former employees of the Company. Part B of the Respondent's hiring criteria states: Hiring Standards Criteria (Personnel Department) Monfort Packing Plant Hourly Production Maintenance Employees (For Use In Making Hiring Decisions) ABSENTEEISM: No more than six (6) absents and/or tardies a year during any of the last three (3) years of active employment. EXPERIENCE: No experience is necessary. The Company feels it is wholly qualified and able to adequately train production employees. DISCIPLINE: No written disciplinary action from Employer in the last three (3) years of active employment. Discharged from any previous em- ployment for just cause during the last five (5) years. MEDICAL: Must be physically fit for packing plant labor. Problems of shoulder, joints, knees or legs, tendonitis, carpal tunnel syndrome, back, respi- ratory or current chemical dependency will exclude the applicant from future consideration. ACCIDENTS: No more than one (1) lost time accident in the last year of active employment, or a general history of being accident prone. INTEREST AND ABILITY: Applicant must be willing to work where assigned and cannot specify production area. DAYS AND HOURS OF WORK: Applicant must be willing to work any assigned day or night shifts and work any or all days of the week. ATTITUDE: To be screened by Monfort em- ployment representative during interview. Monfort representative will make recommendations regard- ing hiring after interview rating. PROBATIONARY: Employee must be willing to accept employment under Monfort proposals which include a strict 90-day probationary period. In May 1982 the Respondent changed the hiring crite- ria for "Absenteeism." That criteria was changed to: "No more than ten (10) absents and/or tardies a year during any of the last three (3) years of active employ- ment." (See G.C. Exh. 18.) After the Company changed the "Absenteeism" criteria in May 1982, Meakins said MONFORT OF COLORADO 103 that "we went back and double checked to make sure that there was no one excluded," based on the previous criteria for "Absenteeism." In computing the number of absences by an employee, the Company has had a policy of counting absences on consecutive days as just one ab- sence. Absences excused by a supervisor are not counted against the employee. Part C of the Respondent's hiring criteria is entitled "Health Service Screening Criteria." Part C states: Health Services Screening Criteria New Hire and Re-Hire of Hourly Production and Maintenance Employees Pre-Placement Evaluation to be Done Prior to Hire. Monfort Health Services Will Do: 1, Complete Pre-Placement Health Questionnaire 2. Draw Blood and Urine Samples and Send To Lab For CBC and Urinalysis 3. Per Form Back Exam 4. Give JAMAR Grip Test 5. Visual Eye-Chart Test 6. Baseline Audiogram Where Equipment Avail- able Should Health Services Determine Upon Comple- tion of Above Evaluation There are Health or Injury Problems That Need Further Diagnostic Studies, They Will Make Appropriate Arrange- ments With a Physician Selected By The Company. Examples of Conditions 'Which may Require Fur- ther Diagnostic Studies or, Defer From Employ- ment: 1. History of Congenital or Mechanical Back Problems 2. Previous Joint Problems (Elbows, Knees, Shoulder) 3. Hypertension, Diabetes, Epilepsy, Arthritis, Cardiac, Allergies, Morbid, Obesity, Hypersensiti- vity to Heat or Cold, Alcohol or Drug Dependen- cy, Etc. As All Individuals Hired Must be Able to Perform any Job Available in the Plant, Individuals will be Deferred for Hire or Re-Hire if Prior History of. 1. Back Surgery 2. Tendonitis or Carpal Tunnel Syndrome 3. Shoulder or Joint Fractures or Surgeries 4. Fall Below Acceptable Level on the Grip Test We Will Not do Back and Chest X-Rays Where Monfort Health Services are Available to do the Pre-Placement Evaluation Including Back Exam, Unless Evaluation and/or Exam by Health Services Warrants Doing Them. Upon Completion of Evaluation, Health Services will Report to Personnel as to Recommendations Regarding Hiring. Personnel may not Hire When Health Services Recommendations are Against Hiring. A Pool of Prospective Employees who Have Been Accepted for Employment by Both Personnel and Health Services can Then be Established From Which Supervisory Personnel can Draw. Meakins said that the JAMAR grip test subsequently was not used by the Company because Meakins believed it was a subjective test, and he desired to have objective criteria. Meakins said that no applicant for employment at the Greeley plant was rejected because of a failure to pass the JAMAR grip test.45 Part C of the Respondent's hiring criteria was pre- pared by Kit Conklin. She had been the health services manager for the Respondent for 14 years at the time she testified at the hearing on 20 September 1984. Conklin is a registered nurse. She prepared the criteria based upon her past experience; a small business outline; and advice from the Company's doctors. Conklin had used the same criteria in screening applicants for employment at the Company's Grand Island plant. In her opinion, the health services screening criteria was used successfully at the Grand Island plant in hiring an effective employee work force. Conklin said that Meakins did not have anything to do with the development of the health services screening criteria. However, towards the end of February 1982 Conklin and Meakins discussed the use of the JAMAR grip test and decided to discontinue that test because it was subjective, rather than objective. Conklin said some nonformer employee applicants had been screened out in the beginning because of the JAMAR grip test, but she knew' of no former employee applicants who had been screened out because of the JAMAR test. Some former employee applicants had been retested on the JAMAR grip test, but they were not refused employment on that ground. No company official, including Meakins and Lo- velady, told her how she was to apply the health serv- ices screening criteria. It was left entirely to her discre- tion. Conklin explained at the hearing that some restrictions by the Company's doctors would not disqualify an appli- cant for employment. She gave some examples as being diabetes, hypertension, and epilepsy when those condi- tions were under,a doctor's care. Cardiac conditions also would not disqualify an applicant depending on the se- verity of the conditions. Allergies would not disqualify an applicant depending upon what the applicant was al- lergic to. Tendinitis and carpal tunnel syndrome would not disqualify an applicant if those conditions were not severe.46 - During the time that Steve Thomas was a union stew- ard at the Company and later as a full -time union busi- ness- representative, Thomas was present at meetings which Conklin also attended. Thomas said - Conklin at- tended monthly safety meetings as one of the manage- 45 The foregoing paragraphs are based on the credited testimony of Meakins and documentary evidence 48 The foregoing paragraphs are based on the credited testimony of Conklin 104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment committee members, and Thomas said he met with her on numerous occasions concerning grievances which the Union had filed. Sometimes Conklin represented company management in workmen's compensation hear- ings where Thomas was representing employee claim- ants. On numerous occasions Conklin testified at work- men's compensation hearings on behalf of the Company. About a week or 10 days before the election at the Greeley plant in June 1983, the Company held a contest whereby groceries and beef loins were to be awarded to the employee who guessed how many strikes the UFCW had. The groceries were said to be the equivalent of a year's union dues. The groceries were placed in a truck in the Company's parking lot. At the preelection confer- ence on the day before the election, Thomas observed Conklin in the back of the truck, and she appeared to be rearranging the groceries.47 Robyn Robbins had worked as an industrial hygienist for 2-1/2 years for the United Food and Commercial Workers International Union in Washington, D.C., at the time she testified at the hearing in this proceeding on 21 June 1984. Based on her research and analysis of statis- tics and information compiled by government agencies and certain large meatpackers, Robbins found that the greatest types of injury or illness occurring to meatpack- ing employees were what are called repetitive trauma disorders.' She found the most common such disorder was carpal tunnel syndrome. Tendinitis is one of the other common repetitive trauma disorders. Robbins found that the next most frequent injuries or illnesses among employees in the meatpacking industry were: sprain and strain types of injuries, particularly involving lower back pain, laceration from knives, dermatosis, and bacterial infections. In addition, she found meatpacking employees faced such potential hazards as working on slippery floors and working with large cutting machines. Charging Party's Exhibit 26 is a copy of a booklet en- titled "Meatpacking and Dressing, a Safety Committee Walkaround Guide for the Workplace." The booklet was written by Robbins and published by UFCW. The book- let sets forth in greater detail the findings of Robbins on that subject. One of the sources utilized by Robbins in preparing Charging Party's Exhibit 26 was an annual publication of the Bureau of Labor Statistics of the De- partment of Labor. A copy of one such BLS publication entitled "Occupational Injuries and Illnesses in the United States by Industry, 1981" was introduced into evidence as Charging Party's Exhibit 27. The statistics shown on Charging Party's Exhibit 28 regarding injury and illness incidence rates per 100 full-time workers were compiled from Charging Party's Exhibit 27. Three arti- cles which had appeared In the Monthly Labor Review, a publication of the Department of Labor, were intro- duced into evidence as Charging Party's Exhibits 29, 30, and 31. Charging 'Party's Exhibit 29 is entitled "Motion- related wrist disorders traced to industries, occupational groups." Charging Party's Exhibit 30 is entitled "Injuries at work are fewer among older employees." Charging Party's Exhibit 31 is entitled "Absence from work 47 The foregoing paragraphs are based on the credited testimony of Thomas among full-time employees." Each article reflects the re- search and views of the government officials named therein. Charging Party's Exhibit 32 illustrates the type of log and information required to be maintained and submitted by an employer to the Department of Labor. It is the type of information utilized in Charging Party's Exhibits 27 and 28.48 Several witnesses testified at the hearing with regard to what they considered to be the Company's success in using similar hiring criteria in staffing the Grand Island plant. Meakins had developed in the spring of 1979 the Company's hiring criteria for applicants at the Grand Island plant. In the opinion of Meakins, the use of that criteria at the Grand Island plant resulted in "an efficient work force and one of the most productive plants in the industry." General Counsel's Exhibit 23 is a copy of the hiring criteria used at the Company's Grand Island plant. The hiring criteria at Greeley and the hiring criteria at Grand Island are similar, but they are not identical. The catego- ries, such as "Absenteeism," "Experience," "Discipline," etc., are the same in each case, but all of the specific cri- teria are not. For example, the first category in the hiring criteria for both the Greeley plant and the Grand Island plant is "Absenteeism." In the Grand Island crite- ria for that category, it originally stated: "No more than an average of six days absent per year during the last two (2) years." Subsequently, that criteria was changed on 6 September 1979 by Meakins to read: "No more than an average of twelve days absent per year during the past two years (worker's compensation absents do not count toward absenteeism in this instance only)." (See G.C. Exh. 24.) As noted earlier, being absent on consec- utive days was counted by the Respondent as just one absence.49 Ken Monfort said that the Company's Grand Island plant was profitable and productive at the time the Com- pany reopened the Greeley plant in March 1982. Ken Monfort said that the Grand Island plant continued to be profitable and productive through the time that he testi- fied at the hearing on 11 September 1984.50 Sanem said that the Company opened the Grand Island plant in August 1979, and within the first 4 to 6 weeks, he concluded that the work force was more pro- ductive and efficient than the Greeley work force had been at that time. Sanem said that a second shift was begun at the Grand Island facility about 6 to 8 weeks earlier than the Company originally had anticipated.51 In the opinion of Leonard, the Company's Grand Island work force was probably one of the most, if not the most, productive and efficient work forces in the nation. Leonard said applicants for employment at the Company's Grand Island facility were not required to have packinghouse experience in order to be hired there, 48 The foregoing is based on the credited testimony of Robbins and documentary evidence 49 The foregoing is based on the credited testimony of Meakins and documentary evidence so The foregoing is based on the credited testimony of Ken Monfort 51 The foregoing is based on the credited testimony of Sanem. MONFORT OF COLORADO nor were applicants given any preference for having such experience. 52 Lovelady said that he knew from his own experience at the Company's Grand Island plant that the hiring cri- teria "had worked there" to get the Company the best work force available.53 Some other witnesses testified with regard to the hiring practices at other meat packing companies. Walker said that IBP has not given credit to applicants for employment for their skill and experience in the meat packing industry, when IBP had hired production em- ployees at its plants. When IBP reopened a plant in Storm Lake, Iowa, which previously had been operated by Hi-Grade, IBP did not employ the former work force. Instead, IBP used the same hiring criteria which the Respondent had used at the Respondent's Grand Island facility. IBP also used an authorization release form like the one that the Respondent had utilized. In the opinion of Walker, the new employees at the Storm Lake plant were "an outstanding work force," and the Storm Lake plant became profitable in a matter of weeks. Thereafter, IBP utilized the same hiring criteria when it reopened a plant in Geneseo, Illinois. In the opinion of Walker, the new employees at the Geneseo plant were "a fine work force."-'4 Robert D. Londgren is the general manager at the Des Moines, Iowa plant of Swift Independent. That plant was reopened by Swift Independent in January 1981 after it had been closed for approximately 18 or 19 months by Swift & Company. When Swift Independent reopened that plant, it did not hire the former work force as a group. Swift Independent did not require that applicants have any particular skill or prior packing plant experi- ence, nor was any preference given to applicants who had skill or experience in packing plants, Londgren said that Swift Independent considered such important factors as absenteeism, tardiness, and physical condition. He said that Swift Independent also considered industrial injuries of the applicant and the reason why the applicant had left his last employment. Swift Independent tried to check the employment references of the applicants by telephone, but Swift Independent did not mail letters to those former employers. Swift Independent had the per- sonnel records of former employees of Swift & Compa- ny, and Swift Independent checked those personnel records. In the opinion of Londgren, the productivity and the efficiency of the Swift Independent work force at the Des Moines plant was excellent. After the plant reopened in January 1981, the plant became profitable by August 1981.55 During the 8 years that Leonard had worked for Excel prior to his going to Work for the Respondent, Excel did not require that applicants for employment at its new or expanded packing plants have prior packing plant experience.56 52 The foregoing is based on the credited testimony of Leonard 52 The foregoing is based on the credited testimony of Lovelady 54 The foregoing is based on the credited testimony of Walker. 55 The foregoing is based on the credited testimony of Londgren. 5 5 The foregoing is based on the credited testimony of Leonard. 105 Several witnesses testified with regard to the factors of skill and experience in connection with the production jobs performed at the Company's Greeley plant, and a video tape was presented to show the actual perform- ance of certain production jobs at the Greeley plant. Re- spondent's Exhibit 158 is a video tape taken on 15 days during regular working hours at the Respondent's Gree- ley facility from sometime in August 1983 to the latter part of September 1983. The video tape was played at the hearing on 14 September 1984 during the testimony of George R. Lindblade. The video tape was made by Lindblade of G. R. Lindblade Co. of Sioux City, Iowa. That company is an industrial and commercial photo- graphic firm specializing in video tape production. Lindblade has been recognized as an expert in his field of work. The video tape depicts various jobs performed by production employees at the Respondent's Greeley facili- ty. Each job shown on the tape is preceded by an intro- ductory title so that a viewer will know what type of job will follow. The video tape is in color without sound. A timer is used on the tape.57 Dr. Marvin E. Mundel is a registered professional in- dustrial engineer who is self-employed in his consulting engineering firm called M. E. Mundel and Associates. He testified as an expert witness at the hearing in this proceeding. Based on Dr. Mundel's expertise and his ob- servations of the work performed at the Company's Greeley plant, he concluded there were only four pro- duction jobs at the facility which required skill. He testi- fied: There were four: running the complex hamburger patty maker, the rather complex hamburger packag- ing machines, and, certainly, the person who direct- ed the flow of trimmings to obtain the proper lean and fat mix. Those were the only jobs in which I observed skill. Dr. Mundel defined skill as being "the result of the combination of knowledge, adaptability, and habituation, with knowledge being a highly important component." With regard to the other jobs at the Company's Gree- ley plant, Dr. Mundel pointed to the repetitive nature of their jobs in cutting meat . In his opinion, there were no production jobs which could not be learned in just 1 day. Learning in that sense meant to acquire the knowl- edge of the sequence of the cuts and where to apply the cuts to the meat . In his opinion, it would take a week for a person, without any physical impediment, to build up speed and the strength to work at boning the blade, which Dr. Mundel considered to be the most difficult production job in the plant to learn. Respondent's Exhib- its 183 through 186 are copies of analyses prepared by Dr. Mundel on the jobs shown on the video tape which was introduced as Respondent's Exhibit 158.511 In the opinion of Meakins, the production jobs at the Greeley plant could be learned in 2 days. He said it 57 The foregoing is based on the credited testimony of Lindblade and documentary evidence. 55 The foregoing is based on the credited testimony of Dr Mundel and documentary evidence 106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD would take a couple of weeks for the employee's muscles to become conditioned to where he could perform the job adequately. Some jobs require more effort to per- form, and some jobs have less desirable working condi- tions. The Company has seven group wage rates. Groups one through four have a 10-cent-an-hour increase at each grade level. At the time Meakins testified at the hearing on 1 February 1984, 96 percent of the Company's Gree- ley production employees were within those first four groups. Group five paid 55 cents an hour above the base rate. Group six paid 65 cents an hour above the base rate. Group seven paid 75 cents an hour above the base rate. General Counsel's Exhibits 27 and 28 are copies of lists of the pay groups for production employees at the Greeley plant.59 In the opinion of Leonard, it takes from 15 to 35 min- utes to train an employee to perform one of the produc- tion jobs in the fabrication department at the Greeley plant. Leonard said that it took from 1 week for a very good employee, and from 3 to 5 weeks for a slower em- ployee, to reach an acceptable level of speed in perform- ing a job in the fabrication department.60 Paul Villa worked for the Respondent from 1964 through March 1980. He performed the jobs of cleanup, lugger, hook washer, tender puller, chuck boner, and utility man. As a utility man, Villa performed the jobs of other employees in the fabrication department when those employees took their breaks. Villa had performed the job of pulling tenders for 2 years prior to the closing of the Greeley plant in March 1980. When Villa was re- hired by the Company and performed that job in March and April 1982, Villa learned that the Company used more flexible knives for pulling tenders. In the opinion of Villa, pulling tenders was the most difficult job at the plant. He estimated that he pulled on an average day about 45 filet mignons an hour. In the opinion of Villa, it took 2 to 3 weeks for employees to become efficient in performing the job of pulling tenders. Although Villa had performed the job of boning chucks for 1-1/2 years during his earlier employment with the Company, Villa said the job was changed to a new method of boning chucks when he performed that job in May 1982 at the Company. He had to learn the new method just like any inexperienced employee would have to do. The only ad- vantage Villa had was he knew how to keep his knife sharp. He said it took him a week to learn the new meth- ods and it took new employees about 2 weeks to do so. Villa said he boned 30 to 33 chucks an hour on an aver- age day. Next to the job of tender puller, Villa consid- ered chuck boning the most difficult and most strenuous job in the plant.61 In the opinion of Jose Varela, it took at least 1 or 2 weeks of training to learn the mechanics of the job of clod puller. However, he acknowledged at the hearing that he did not receive that much training when he was rehired by the Company after the plant reopened. In- stead, someone just spent a short period of time with Varela and taught him the basic cuts. Varela said a person would not know how to do the actual cuts on the meat in 1 day. Varela had learned the cuts earlier prior to the time that the plant had closed by watching other employees and helping them. Varela said that there was no change when he was rehired in May 1982 in the method of performing the job of pulling clods from the way the job had been performed previously. In his opin- ion, the job was more difficult to perform in 1982 be- cause the Company required more cuts to be made than before. Varela said that the method of marking hinds had been changed in 1982 from the method used previously. The new method was to cut the flank before marking the hind. The old method was just the reverse. In the opin- ion of Varela, the new method was easier.62 Gerald Aragon acknowledged at the hearing in this proceeding that he had testified in his unemployment proceeding that it was possible to learn "the mechanics of the job," that is where to cut, in 1 day. He acknowl- edged as he testified that it would take longer to build up speed and durance.63 Joe Gonzales said that Supervisor David Howe taught him the mechanics of cutting down chucks by showing him how to make the cuts. Gonzales said it was an easy job to learn the mechanics of the job, but it took some time to build up speed.64 In the opinion of Sanem, it did not take skill or prior packing plant experience to perform the production jobs at the Company's Greeley plant. He said the majority of the new employees with no experience could be trained to perform kill floor jobs at the Greeley plant on the first day. He said it might take 10 to 12 days for an employee to get his muscles acclimated to the job, and the employ- ee acclimated to his workplace. Since March 1982 through the time that Sanem testified at the hearing on 18 September 1984, the duties performed by the produc- tion employees at the Greeley plant have remained virtu- ally the same. There have been no significant engineering changes at the facility. The only difference in the pro- duction process is that the Company no longer places shrouds on the cattle. s s Respondent's Exhibit 159 is a graph which depicts for the Greeley plant the "cattle per man hour" or produc- tivity in the beef slaughter division at the Greeley pack- ing plant during the period of time from the week ending September 1982 through the week ending 19 March 1983 as compared to the time periods of the week ending 1 September 1979 to 1 November 1979 and from 4 January 1980 through the week ending 15 March 1980. The graph shows that the productivity of the employees was greater during that 1982-1983 time period than it had been in that 1979-1980 time period. Respondent's Exhibit 160 is a graph depicting for the Greeley plant the "kill floor cattle per man hour" figures for the time period of the week ending 3 July 1982 through the week ending 12 March 1983 as compared to the time periods of the week ending 30 June to I No- ss The foregoing is based on the credited testimony of Mealans and documentary evidence. 60 The foregoing is based on the credited testimony of Leonard. 81 The foregoing is based on the credited testimony of Villa. 61 The foregoing is based on the credited testimony of Varela. 89 The foregoing is based on the credited testimony of Aragon 64 The foregoing is based on the credited testimony of Gonzales 85 The foregoing is based on the credited testimony of Sanem. MONFORT OF COLORADO 107 vember 1979 and from 14 January 1980 through the week ending 8 March 1980. The graph shows greater productivity for the employees during that 1982-1983 time period than for the employees during the 1979-1980 time period. Respondent's Exhibit 161 is a graph which depicts for the Greeley plant the average weekly net chain speed during the time period of the week ending 3 July 1982 through the week ending 12 March 1983 as compared to the time periods of the week ending 30 June to 1 No- vember 1979 and from 14 January 1980 through the week ending 8 March 1980. The graph shows that on the average the chain speed was greater at the Greeley plant in that 1982-1983 time period than it was in that 1979- 1980 time period. Respondent's Exhibit 162 is a graph which depicts for the Greeley plant the "total kill cost per head" at the Greeley plant during the time period for the week ending 4 September 1982 through 19 March 1983 as compared to the time periods for the week ending 1 Sep- tember to 1 November 1979 and from 14 January 1980 through the week ending 15 March 1980. The graph shows that the Company costs on the average were lower during that 1982-1983 time period as compared to that 1979-1980 time period. Respondent's Exhibit 181 is a graph also entitled "total kill cost per head" which aids the Company's Grand Island plant for the time period for the week ending 5 September 1981 through the week ending 20 March 1982. The graph shows that on the average the Grand Island plant had lower costs in that category than the Greeley plant had for the designated time periods. Respondent's Exhibit 163 is a graph which depicts for the Greeley plant the "labor cost per head" of cattle for the time period for the week ending 4 September 1982 through the week ending 19 March 1983 as compared to the time periods for the week ending 1 September to 1 November 1979 and 14 January 1980 through the week ending 15 March 1980. The graph shows that on the av- erage the labor cost per head was lower, during that 1982-1983 time period than during that 1979-1980 time period. Respondent's Exhibit 182 is a graph entitled "labor cost per head" which adds the Company's Grand Island plant for the time period of the week ending 5 Septem- ber 1981 through the week ending 20 March 1982. The graph shows that on the average the Grand Island plant had lower costs in that category than did the Greeley plant during the 1979-1980 time period, and when ad- justed to the Greeley plant's 1982-1983 labor rates, Grand Island had lower costs in that category on an ad- justed basis than Greeley did in both the designated 1979-1980 and 1982-1983 time periods. Respondent's Exhibit 164 is a graph which depicts for the Greeley plant the "offal pounds per head" for the time period for the week ending 3 July 1982 through the week ending 19 March 1983 as compared to the time pe- riods for the week ending 30 June to 1 November 1979 and from 4 January 1980 through the week ending 15 March 1980. The graph shows that on the average more offal was produced by employees in that 1982-1983 time period than was produced by employees during that 1979-1980 time period. Respondent's Exhibits 165 and 166 are graphs depict- ing for the Greeley plant the percentage of number 2 hides and the percentage of number 3 hides, respectively, during the time period for the week ending 3 July 1982 through the week ending 19 March 1983 as compared to the time period for the week ending 30 June to 1 No- vember 1979 and from 14 January 1980 through the week ending 15 March 1980. The graphs show that on the average the employees produced less of the number 2 and 3 hides, which are less valuable than number 1 hides, during that 1982-1983 time period than the employees produced in that 1979-1980 time period. General Counsel's Exhibit 608 is a copy of a summary sheet prepared by the Company's controller showing the percentage of number 2 and 3 hides from 6 March through 11 December 1982 at the Greeley plant. The summary shows that for the first 4 months after the plant reopened the average production of number 2 and 3 hides were greater than they were after 3 July 1982, and closer to the combined average figures for the 1979--1980 time period. Respondent's Exhibit 167 is a graph entitled "produc- tion claim analysis (per head) based on total dollars and production for fabrication and slaughter fiscal year com- parison." The graph shows that such claims filed by the Company's customers against the Company were less in fiscal years 1982 (March to September 1982) and 1983 (full fiscal year) than they were in fiscal year 1980 (Sep- tember 1979 through March 1980).66 The Charging Party moved to strike certain of the tes- timony given by Sanem on redirect examination which pertained to the Company's Grand Island plant; Spencer Foods; IBP; and Excel. In the Charging Party's view, those matters earlier had not been brought up during Sanem's direct examination and cross-examination, and, therefore, were inappropriate for redirect examination. I conclude that Sanem had testified briefly about the Grand Island facility; his former employer, Spencer Foods; and two of the Company's competitors, IBP and Excel. He earlier had not been questioned about the de- tailed comparisons as he was on redirect examination, but I conclude that his redirect examination regarding them should not be stricken in light of his extensive testi- mony regarding the Greeley plant's statistics as shown in Respondent's Exhibits 159 through 167 and General Counsel's Exhibit 608. Respondent's Exhibit 170 is a graph which depicts for the beef fabrication division at the Greeley plant the "cattle per man hour" during the time period from Sep- tember 1982 through March 1983 and from September 1979 through March 1980, except for the period of the strike from 1 November 1979 through 14 January 1980. While I have examined General Counsel's Exhibits 609 and 610, I fmd that Leonard explained why adjustments had been made on the graphs and charts prepared under his supervision because of the difference in boning 100 percent of the carcass and boning approximately 87 per- 66 The foregoing paragraphs are based on documentary evidence. 108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cent of the carcass. Leonard explained at the hearing that the adjustments were made to make things compara- ble. The graph shows that on the average the "cattle per man hour" figure was higher for that 1982- 1983 time period than for the 1975-1980 time period. Respondent 's Exhibit 171 was a graph which depicts for the beef fabrication division at the Greeley plant the "average weekly net chain speed" during the time period from September 1982 through March 1983, and from September 1979 through March 1980, except for the period of the strike from 1 November 1979 through 14 January 1980. The graph shows that the "average weekly net chain speed" was greater during that 1982- 1983 time period than for the 1979-1980 time period. Respondent's Exhibit 173 is a graph which depicts for the beef fabrication division at the Greeley plant the "labor cost per head" of cattle during the time period from September 1982 through March 1983 and from September 1979 through March 1980, except for the period of the strike from 1 November 1979 through 14 January 1980. The graph shows the "labor cost per head" was lower during that 1982-1983 time period than it was during that 1979-1980 time period both on an actual basis and on a basis which adjusted the 1979-1980 wage rates to the 1982-1983 wage rates. Respondent's Exhibit 177 is a graph which contains the same information as Respondent's Exhibit 173 with the addition of "labor cost per head" information for the Grand Island work force for the time period September 1981 through March 1982. The graph shows that on the average the Grand Island employees' "labor cost per head" was lower than the Greeley employees during that 1979-1980 time period on an actual basis and lower on an adjusted basis during that September and October 1979 time period when the Greeley 1979-1980 wage rates were adjusted to the Greeley 1982-1983 wage rates. The Grand Island "labor cost per head" was higher than the Greeley plant employees on an adjusted basis for that January-March 1980 time period, and for the Greeley plant employees during that 1982-1983 time period. Respondent's Exhibit 180 is a graph which shows the same information as on Respondent's Exhibits 173 and 177 plus information for those time periods for the Grand Island employees where their 1981-1982 wage rates were adjusted to the 1982-1983 wage rates at the Greeley plant. On an adjusted basis for that time period for those employees, the cost at the Grand Island plant was less than that of the Greeley plant employees during that 1979-1980 time period on an actual basis and on an adjusted basis, but higher than the Greeley plant employ- ees during that 1982-1983 time period. Respondent's Exhibit 174 is a graph which depicts the Greeley packing plant sales in millions of dollars for each month from March 1982 to August 1983. The graph shows that the sales for each month in that time period in round figures were: $8.5 million; $18.7 million; $30.1 million ; $26.8 million; $37.5 million; and $37 million. Respondent's Exhibit 175 is a graph which depicts the Greeley packing plant sales in millions of dollars during each quarter of the Respondent's 1983 and 1984 fiscal years. The Company's fiscal year begins each September. Thus, the Company's 1983 fiscal year began in, Septem- ber 1982. The graph shows the quarterly sales (per mil- lion) for those periods of time were: $108.4 million; $125.3 million; $129.3 million; $135.9 million; $131.4 mil- lion; $135.4 million; $138.4 million; and $137.7 million. Respondent's Exhibit 178 is a graph which depicts for the beef fabrication division at the Company's Greeley plant the "total processing cost per head" during the September through March time periods in 1982-1983 and in 1979-1980, except from 1 November 1979 through 14 January 1980. The graph shows the average processing cost was lower for that 1982-1983 time period after the plant had reopened, than it had been during that 1979- 1980 time period on both an actual basis and on a basis where the 1979-1980 wage rates were adjusted to the 1982-1983 wage rates. Respondent's Exhibit 179 is a graph which shows the same information as on Respondent's Exhibit 178 plus in- formation for the September through March time period in 1981-1982 for the Company's Grand Island work force. The graph shows that the average processing cost was lower for that 1981-1982 time period for the Grand Island employees than it was for the beef fabrication di- vision Greeley plant employees in those time periods de- scribed with regard to Respondent's 178, both on an actual basis and on a basis where the 1981-1982 Grand Island plant wage rates were adjusted to the 1982-1983 Greeley plant wage rates. 67 In view of the General Counsel's allegations that the Respondent's hiring criteria were designed and/or inher- ently had the effect of discriminating against former em- ployees of the Company, I also have examined the statis- tical results of the Respondent's hiring criteria. I recog- nize that the statistical results are not the sole factor to be considered. However, if the Respondent's criteria in- herently discriminated against former employees of the Company, then the statistical results should reveal such inherent discrimination. I found it relevant to ascertain what percentage of former employees of the Company, who had filed Mon- fort applications for employment, were rehired by the Respondent. I also found it relevant to ascertain what percentage of nonformer employees of the Company, who had filed Monfort applications for employment, were hired by the Respondent. Then the two percent- ages of the hiring of former employees versus nonformer employees could be compared. For reasons which I will set forth in section VI of this decision, I have concluded that the Respondent's requirement that all applicants fill out and submit a Monfort application for employment was not discriminatory. Thus, I have not found relevant the comparison of figures for those persons who did not submit a Monfort application. The testimony of two expert witnesses, Charging Party's Exhibit 123 and Respondent's Exhibit 195, as re- vised on 11 December 1984, were helpful in making the comparison which I found to be relevant. Dr. Edward W. Karnes is a professor of psychology and department chairman of the psychology department 67 The foregoing paragraphs are based on the testimony of Leonard and documentary evidence. MONFORT OF COLORADO 109 at Metropolitan State College in Denver. Charging Party's Exhibit 122 is a copy of the resume of Dr. Karnes. Dr. Karnes testified at the hearing in this pro- ceeding as an expert witness in the fields of human fac- tors engineering and statistics. Dr. Karnes explained at the hearing the concept of a statistically significant dif- ference. He testified: "The concept of a statistically sig- nificant difference between any two statistical measures means that you are basicly ruling out the effects of chance as a cause in the observed difference between the two statistics." I conclude from the calculations made by Dr. Karnes that there is no reliable difference between the percent of former company employees, who had filed a Monfort ap- plication for employment, and were hired by the Compa- ny, and the percent of nonformer employees who had filed a Monfort application for employment, and were hired by the Company. Dr. Karnes utilized figures from the summary of hiring data, which was introduced into evidence as Charging Party's Exhibit 121 in making his computations as shown on Charging Party's Exhibit 123. The number of former employees who filed a Monfort application for employment was 371. The number of former employees who filed a Monfort application for employment and were hired was 164. Thus, 44.2 percent of that category of former employees were hired by the Respondent. The number of nonformer employees who filed a Monfort application for employment was 6918. The number of nonformer employees who filed a Mon- fort application for employment and were hired was 2986. Thus, 43.2 percent of the nonformer employees in that category were hired. Comparing the figures of 44.2 percent with 43.2 percent shows the lack of a significant difference in those two hiring figures. Respondent's Exhibit 195 was revised on 11 December 1984, and, therefore, the figures utilized in the compari- son are slightly different. As shown on Respondent's Ex- hibit 195, the number of former company employees who filed a ,Monfort application for employment was 369. The number of former company employees who filed a Monfort application for employment and were hired was 160. Thus, the percent of the former employ- ees in that category who were hired was 43.36 percent. As shown on Respondent's Exhibit 195, the number of nonformer employees who filed a Monfort application for employment was 6918. The number of nonformer employees who filed a Monfort application for employ- ment and who were hired was 290. Thus, the percent- age of nonformer employees in that category who were hired was 43122' percent. A comparison of those two fig- ures, 43.36 and 43.22 percent shows the lack of any sig- nificant difference in the two percentages. Dr. Finis R. Welch is a professor of economics at the University of California at Los Angeles and the president of Welch Associates, which is an economic consulting firm. Dr. Welch also is chairman of the board of Unicom Research Corporation, which specializes in economic re- search for the Federal Government. A copy of Dr. Welch's resume was received, into evidence as Respond- ent's Exhibit 199. Dr. Welch testified as an expert wit- ness at the hearing in this proceeding. Both Dr. Karnes and Dr. Welch agree, after perform- ing a Z test of the appropriate figures, that the difference in the percentage of former employees who had filed Monfort applications for employment and who were hired by the Company, is not statistically significant or reliably different from the percentage of nonformer em- ployees who had filed Monfort applications for employ- ment and who were hired by the Company. Depending on the figures used, the Z test results were .38 or .395, both of which figures are not statistically significant or reliably different. C. Conclusions I found to be very significant the statistics set forth above which show a statistical result that makes it less probable, rather than more probable, that the Company's hiring criteria were designed to discriminate against former employees of the Company, or that the hiring cri- teria were "inherently destructive" of employees' rights. The statistics are just one factor I have considered, and not the sole factor. By examining the statistical results, I consider such an examination not to be merely a "num- bers game," but an examination of the law of probabil- ities. In a different context, the United States Court of Appeals for the Fifth Circuit commented on inferences which are based on a common recognition of probabil- ities in its decision in NLRB v. Cameo, Inc., 340 F.2d 803 (5th Cir. 1965). The court held at 809: One of the basic premises of Universal Camera is that, "The findings of the examiner are to be con- sidered along with the consistency and inherent probability of testimony." 340 U.S. at 496, 71 S.Ct. 469, 95 L.Ed. 472. [Emphasis added.] This principle is part of the trend towards more liberal rules gov- erning evidence and methods of proof: "However halting its progress, the trend in litigation is toward a rational inquiry into truth, in which the tribunal considers everything `logically probative of some matter requiring to be proved."' 340 U.S. at 497, 71 S.Ct. at 469. The trend includes inferences based on common sense recognition of probabilities. Camco argues against the Board's playing a "numbers game." But courts have long accepted an inference 'of discrimination based on the percentage of discharged employees involved in union activi- ties. Courts should. A man cannot cross a street without first having made a flash calculation of his chances of reaching the other side, based on his ex- perience with the law of probabilities. As indicated above, I conclude that in this proceeding the statistical results of the application of the Company's hiring criteria are very significant. Another result which I conclude is significant is the increased productivity of the Greeley plant employees and the lower costs there after the Company's hiring cri- teria had been applied. The work force which resulted from the use of the Company's hiring criteria surpassed in economic terms the record established by the former work force at the plant. I conclude the graphs and charts noted above are an indication that the Company's hiring 110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD criteria were designed for valid economic reasons, rather than discriminatory reasons. I also found it significant that the Respondent had used similar categories of hiring criteria in staffing its Grand Island plant, and that the evidence showed that the Respondent had been pleased for economic reasons with the results of having used similar criteria there. There were different opinions expressed by the wit- nesses as to the length of time that it took to teach an employee how to perform his job. I conclude that the weight of the evidence is that it took a very short time. In this connection, I found the testimony of expert wit- ness, Dr. Mundel , to be persuasive . I conclude from his testimony that there were only four production jobs at the Company's Greeley plant which required skill; that the production jobs could be learned in 1 day; and that the jobs were repetitive in nature. Thus, I conclude that the evidence showed that an applicant's skill and experi- ence were not important factors in considering applica- tions for production jobs. I further conclude the evi- dence showed that an applicant 's skill and experience had not been considered by the Respondent during the many years the Greeley plant had been operated prior to its closure in March 1980 . Thus, there was no past prac- tice by the Company of giving consideration to skill and experience in hiring for production jobs. The evidence also showed that the Respondent has not considered an applicant 's skill and experience in hiring for production jobs at its portion foods facility, and the evidence showed that some other companies in the meat packing industry have not considered an applicant's skill and ex- perience. In the foregoing circumstances, I conclude that the Respondent's lack of consideration of an applicant's skill and experience in its hiring criteria for production jobs at the Greeley plant was not "inherently destructive" of employees' rights under the Act. The United States Court of Appeals for the Third Circuit discussed the "in- herently destructive " concept in its opinion in Vesuvius Crucible Co. v. NLRB, 668 F.2d 162 (3d Cir. 1981). The court said at 169-170: The Supreme Court has stated that conduct is in- herently destructive if it "carries with it 'unavoid- able consequences which the employer not only foresaw but which he must have intended' and thus bears `its own indicia of intent."' Great Dane, supra, 388 U.S. at 33, 87 S.Ct. at 1797 (quoting NLRB v. Erie Resistor Corp., 373 U.S. 221, 228, 231, 83 S.Ct. 1139, 1145, 1147, 10 L.Ed. 2d 308 (1963)). General- ly, those courts that have addressed the question have described "inherently destructive" conduct as that "with far reaching effects which would hinder future bargaining, or conduct which discriminates solely upon the basis of participation in strikes or union activity." Portland Willamette Co. v. NLRB, 534 F.2d 1331, 1334 (9th Cir. 1976). Put another way, "inherently destructive" conduct is "that which creates visible and continuing obstacles to the future exercise of employee rights." Inter-Colle- giate Press, Graphic Arts Division v. NLRB, 486 F.2d 837, 845 (8th Cir. 1973) (citing Note, Lockouts- Employers' Lockout with Temporary Replacements Is an Unfair Labor Practice, 85 Har. L.Rev. 680, 686 (1972), cert. denied, 416 U.S. 938, 94 S.Ct. 1939, 40 L.Ed. 2d 288 (1974). For the reasons summarized above and based on the findings of fact, I conclude the evidence in this proceed- ing does not support the concept of Respondent's con- duct being "inherently destructive" of employees ' rights. With regard to the health services screening criteria prepared by Conklin, I have considered Thomas' testi- mony regarding Conklin. I conclude that Conklin's man- agement position and participation in the grocery display are not a basis for finding that the criteria she developed were discriminatory . I also considered Robbins' testimo- ny regarding injuries and illnesses common to employees in the meat packing industry . I conclude from Conklin's testimony that Conklin has shown a nondiscriminatory basis for her selection of the health services screening criteria based on her status as an RN ; her years of expe- rience as health services manager; and her conversations with physicians. Finally, I note that the evidence showed that the Re- spondent favored former employees over nonformer em- ployees in not applying the usually subjective criteria of "attitude" to former employees. The "accidents" criteria also was not applied to former employees. In view of the foregoing, I recommend to the Board that the allegations in paragraphs X, XVII(a), XVIII, and XII of the General Counsel's complaint in Case 27- CA-7742 be dismissed. VT. THE 8 (A) (1) AND (3) ALLEGATIONS PERTAINING TO THE RESPONDENT'S ALLEGED DISCRIMINATORY APPLICATION OF ITS HIRING CRITERIA A. Allegations The General Counsel's 8(a)(1) and (3) allegations per- taining to the Respondent's alleged discriminatory appli- cation of its hiring criteria are set forth in paragraphs XVII(b), XI, XIII, XIV, XV, and XVI of the General Counsel's second amended complaint in Case 27-CA- 7742. Those paragraphs are: XVII (b) Since on or about January 25, 1982, and con- tinuing to date, Respondent has applied the hiring criteria described above in subparagraph XVII(a) in such a manner that former employees who applied for employment on and after January 25, 1982, would not be hired in numbers sufficient to form a majority of unit employees. XI On or about February 18, 1982, Respondent noti- fied the Union that hiring would commence on Feb- ruary 22, 1982. XIII On or about March 1, 1982, Respondent com- menced operations at its Greeley meat packing MONFORT OF COLORADO 111 plant with an initial complement of 228 employees additional Monfort applications for employment filed by of which 57 were former employees of Respondent. former employees of the Company In March 1982. He XIV On or about March 25, 1982, Respondent was en- gaged in production at the plant with a production employees complement of 410 of which 61 were former employees. As a consequence of the forego- ing, Respondent announced it was under no obliga- tion to recognize the Union as the collective-bar- gaining representative of the present complement of employees. XV On or about June 4, 1982, Respondent was en- gaged in production at the plant with a production employee complement of 599. Of the total number of applicants, 318 were former Greeley hourly pro- duction employees. The total number of such former employees who received an offer of employ- ment was 133. XVI On or about January 14, 1983, Respondent was engaged in production at the plant with production employee complement of 817. Of the total number of applicants to the above date, 358 were former employees and 155 of these have received an offer of employment. B. Facts The Respondent accepted Monfort applications for employment to work at the Greeley plant on 26 and 27 January 1982 at the Congregational Church in Greeley for anyone who wanted to apply for work when the Greeley plant reopened. The Respondent also accepted Monfort applications for employment to work at the Greeley plant on 17 and 18 March 1982 at the_ Island 'Grove Park 4-H Building only for former employees of the Company. The Respondent has accepted Monfort ap- plications for employment to work at the Greeley plant since the first or second week in May 1982, and continu- ing thereafter, for anyone who wanted to apply for work. The Respondent utilized the Weld County Depart- ment of Human Resources (Division of Employment) as the exclusive means for filing a Monfort application for employment both in production jobs and maintenance jobs at the Greeley plant. Thal government agency usu- ally was referred to at the hearing for convenience as the Job Service. The Respondent has accepted Monfort ap- plications for employment in clerical positions at the Re- spondent's corporate office and headquarters, which are located about 1 or 1-1/2 miles from the Greeley packing plant. In order for a person to file a Monfort application for employment on 17 and 18 March 1982 at the Island Grove Park, the person had to bring with him a letter to identify himself as a former employee of the Company because the Job Service only accepted Monfort applica- tions for employment from former employees at that time . Meakins estimated that there were around 35 to 38 said that number excludes some former employees who also had filed Monfort applications in January 1982 and filed a second Monfort application in March 1982. Both former employees of the Company and non- former employees of the Company were required to file a Monfort application for employment in order to be considered for employment by the Company. General Counsel's Exhibit 13 is a copy of a Monfort application for an hourly employment job. That form has been used by the Respondent since January 1982. Respondent's Ex- hibit 217 is a copy of the former application for employ- ment which had been used by the Company at its Gree- ley plant prior to the closure of that plant in March 1980.611 Judy Griego is the employment opportunities delivery system director for the Weld County government. Griego had held that position for 4-1/2 years at the time she testified in this proceeding on 5 April 1984. She man- ages the Weld County Job Service, and she directs all of the subsidized programs for employment and training in Weld County. General Counsel's Exhibit 427 is a copy of the job order prepared by the Job Service with regard to taking applications for employment with the Respondent both in January and March 1982. General Counsel's Exhibit 426 is a copy of a page from the Dictionary of Occupa- tional Titles which the Job Service utilized in selecting a job number for the job order. General Counsel's Exhibit 428 is a copy of the agreement for exclusive referral of applicants from the Job Service to the Company. It is dated 21 April 1982. At the time that the Job Service took Monfort applica- tions for employment in January 1982 at the Congrega- tional Church in Greeley, Griego said that the unem- ployment rate was quite high in Weld County. She esti- mated that the unemployment rate was between 7 and 8 percent at that point in time. Griego said that the Com- pany supplied the Monfort application forms to the Job Service for applicants to fill out. She said that she had a receptionist and seven full-time staff personnel at the Congregational Church in January 1982 to handle the applicants. She stated that over 1700 applications were received at that time. It is undisputed that there were long lines of applicants for employment at the church. The Job Service did not screen out any applicants for employment with the Respondent. The Job Service did not make any decisions on behalf of the Respondent to employ anyone or not to employ anyone. Instead, the Job Service performed a clerical function or a ministerial function whereby the Job Service accepted applications for employment and submitted those applications to the Respondent for consideration. Ray Swanson was the only witness who testified at the hearing who asserted that the Job -Service segregated the employment applica- tions by placing the applications of former ;employees on the floor at the church. I do not credit Swanson' s asser- 6 8 The foregoing paragraphs are based on the credited testimony of Meakins, Lovelady, and documentary evidence. 112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion based on the criteria previously mentioned in section III of this decision . In addition , Swanson was the only witness to testify to that fact, and other credible evi- dence indicates that the Job Service did not screen out any applicants for employment. As noted above, an additional opportunity for filing Monfort applications for employment at the Greeley plant was extended only to former employees of the Company on 17 and 18 March 1982 at the Island Grove Park. The Job Service followed the same procedure with regard to accepting applications as it had done in Janu- ary. The only difference was the Job Service had a smaller staff at that time to accept the applications which were limited to former employees of the Company.69 General Counsel's Exhibit 32 is a copy of a form letter dated 5 February 1982 from the Charging Party which was mailed by the Charging Party to the former employ- ees of the Company for whom the Charging Party had an address at the time the plant had closed in March 1980. In part, the Charging Party's letter stated: As you may have heard, Monfort has announced that it will reopen its Greeley plant on March 1, 1982. As an employee who worked in the Greeley plant before it was shut down in 1980, you have se- niority and are entitled to be recalled to work. However, Monfort does not intend to do this. To the contrary, Monfort intends to hire an entirely new work force to replace old employees. The best way of making certain your right to a job and your seniority are protected is to notify Monfort that you desire to return to work. We sug- gest that you do this by letter. Enclosed is a form of a letter which you can use for this purpose. It should be sent by certified mail, or personally deliv- ered to the Monfort corporate offices north of Greeley. Use the enclosed label for your conven- ience. Also, one copy of this letter should be sent to Local 7 in the enclosed business reply envelope. We must not permit Monfort to get away with its vicious scheme to cheat its employees out of their jobs and seniority . Please sign and mail the enclosed letter today! General Counsel's Exhibit 33 is a copy of the form letter which was enclosed with General Counsel's Exhib- it 32. In part, it stated: I understand that you intend to resume operation of the Greeley packing plant on March 1, 1982. I expect to be recalled to, my job in the Greeley plant on the basis of seniority. I am ready, able and will- ing to return to work. I will appreciate your prompt response to my re- quest to be recalled to work. If it is the Company's position that I must submit an application to be hired as a new employee, then please consider and accept this as such an applica- tion, which I submit, without waiving my seniority or my right to be recalled to work. I will, of 69 The foregoing is based on the credited testimony of Gnego and documentary evidence. course, submit to whatever physical examination may be required by the Company, and supply you with whatever additional information you may re- quest. Charging Party's Exhibit 4 is a copy of a letter dated 11 February 1982 from Meakins to John Urban, secre- tary-treasurer of the Union. Among other things, the letter stated , in response to the Union 's request, that ap- proximately 237 former employees of the Company had submitted applications for employment with the Compa- ny in January 1982. Charging Party's Exhibit 5 is a copy of a letter dated 18 February 1982 from Attorney Philip Hornbein Jr. to Attorney Warren L. Tomlinson. Among other things, the letter stated that the persons named on the list given by the Union to the Company were ready, able and eager to return to work. The letter also requested that the Company advise the Union if the Company had not received a communication from any person on the list re- garding his desire and expectation to be recalled to work. During meetings between the Company and the Union, Meakins was given a list of names by the Union. Those names were supposed to be former employees of the Company who were interested in jobs when the plant reopened . Meakins told the Union that he would notify the persons named on that list and set up a special application date for them. Joint Exhibit 5 is a copy of the list of names which was given to the Company by the Union during the last half of the month of February 1982 as persons who were interested in employment at the Greeley plant. That list contains 32 names. General Counsel's Exhibit 21 is a copy of a letter dated 25 February 1982 from Meakins and addressed to "former employee." In part, that letter stated: We have been advised in writing that you desire to become employed at Monfort's Greeley Packing Plant. As you probably know, Monfort took appli- cations for employment for work on January 26 and 27, 1982, and we are not presently taking applica- tions. Nevertheless, if you desire to submit an em- ployment application and have not previously done so, the application will be accepted and you will be considered for employment. You will receive another letter shortly which will advise you when and where to appear to com- plete an employment application. Betty Johnston is the personnel manager for the Re- spondent 's corporate division and assistant to Meakins. She has held those positions since February 1982 . Previ- ously, Johnston was administrative assistant to the finan- cial officer of the Company. General Counsel's Exhibit 67 is a copy of a letter dated 3 March 1982 from Mea- kins and addressed to "former employee." In part, the letter stated: We have been advised in writing that you desire to become employed at Monfort's Greeley packing plant which reopened on March 1, 1982. As you MONFORT OF COLORADO probably know, Monfort took applications for em ployment for work at the Greeley packing plant on January 26 and 27, 1982, and we are not presently taking applications. Nevertheless, if you have not al- ready applied and if you desire to submit an em- ployment application, it will be accepted and you will be considered for employment. You should apply in person during the hours of 9 a.m. and 4 p.m. on March 17 and 18, 1982 at Four H Building, 425 North 15th Avenue, Island Grove Park, Greeley, Colorado. When you appear, please bring this letter with you and ask to see a represent- ative of the Human Resources Division of Weld County. Since we will not be accepting applications generally at that time, this letter will identify you as a person who may submit an employment applica- tion. Meakins prepared the text of General Counsel's Exhib- it 67, and the letter was typed by Johnston. Respondent's Exhibit 147 is a list of the names of persons to whom Johnston mailed a copy of General Counsel's Exhibit 67. Johnston obtained those names and addresses from sever- al sources. One such source was General Counsel's Ex- hibit 34, which is a list of names given to her by Mea- kins. Another source was a form letter like General Counsel's Exhibit 35(a), which certain former employees of the Company had sent to the Respondent and which contained their addresses. Other sources were personal letters the Company received; telephone calls to the Company; personal visits to the Company by, former em- ployees who' had indicated a desire to return to work and who gave the Company their current addresses; and company personnel files and payroll files, which had the addresses of former employees. Johnston prepared ad- dress labels; put those labels on envelopes; inserted a copy of General Counsel's Exhibit 67 in each envelope; and took the envelopes to the Company mailroom for mailing by regular first class mail. At the hearing, John- ston estimated that between 20 and 50 such letters were returned to the Company because there was an incorrect address or no forwarding address. With regard to those letters returned to the Company by the Postal Service, Johnston 'made an attempt to find a correct address in the Company's old personnel files. If another address was found, Johnston remailed the letter to that address. If Johnston could not find another address, she retained the letter in the Company's files. Respondent's Exhibit 148 is a copy of a letter dated 3 March 1982 from Meakins to John Urban of the Charg- ing Party Union. Attached to that letter was a copy of General Counsel's Exhibit 67. Attached to the exhibit were photocopies of documents pertaining to certified mail service of the letter. In part, the letter stated: I have enclosed a sample of the letter which is being sent to all former employees from whom the Company has received a written request for em- ployment at the Greeley plant, and who have not previously submitted a formal application, including those who submitted the written requests we re- ceived from you on February 26, 1982. 113 For your information, 57 former employees of the plant were among the 228 initial complement of employees. The initial terms and conditions of em- ployment at the plant are those represented by the Company's implementation on March 1, 1982 of the economic provisions contained in its final offer made on February 26, 1982. Respondent's Exhibits 193 through 198 are lists of Re- spondent's employees in the following categories: pro- duction employees on 25 March 1982; maintenance and clerical employees, and management support employees from 1 March 1982 to 1 September 1983. General Counsel's Exhibit 16 is a copy of a letter dated 25 March 1982 from Meakins to Urban. General Counsel's Exhibit 16 was in response to a letter dated 22 March 1982 from Attorney Philip Hornbein Jr. to Attor- ney Warren L. Tomlinson. A copy of that letter was in- troduced into evidence as Charging Party's Exhibit 6. Among other things, that letter had requested a meeting to negotiate with the Company. General Counsel's Ex- hibit 16 asserted the Company's position that the Compa- ny was under no obligation to recognize the Union. The letter asserted that the initial complement of production employees when the Greeley plant reopened totaled 228 of whom 57 were former employees of the Company. The letter further asserted that as,of 25 March 1982, the production complement totaled 410 of whom 61 were former employees of the Company. At the hearing, Mea- kins explained that those figures were arrived at hurried- ly by the personnel department on short notice, and they 25 might be inaccurate by a few numbers. In his prehear- ing affidavit, Meakins had stated that as of 15 April 1982, the production complement at the Greeley plant totaled 520 of whom 75 were former employees of the Compa- ny. General Counsel's Exhibit 612 consists of copies of two letters. One letter dated 30 June 1982 was from Company Attorney T. Jay Thompson to the General Counsel's Division of Advice in Washington, D.C. Among other things, the letter stated that as of 4 June 1982 the production complement at the Greeley plant to- taled 599; 2456 employment applications had been re- ceived of which 318 applications were from former em- ployees; and 133 `former employees, or 41.8 percent of those who had applied, had been offered employment by the Company. The other part of General Counsel's Ex- hibit 612 was a copy of a letter dated '26 January 1983 from Company Attorney Warren L. Tomlinson to the Regional Office of the Board in Denver. Among other things, that letter stated that as of 14 January 1983, the production complement at the Greeley plant totaled 817; 6699 employment applications which had been received through 6 November 1982 had been processed by the Company as of 14 January 1983, of which 358 applica- tions were from former employees; and 155 former em- ployees, or 43.3 percent of those who applied, had been offered employment by the Company.' ° 70 The foregomg paragraphs are based on the credited testimony of Meakins, Johnston, and documentary evidence 114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Meakins informed Lovelady of the hiring criteria to be applied and gave him a copy of the Company's written hiring criteria. A copy of the hiring criteria was intro- duced into evidence as General Counsel's Exhibit 12. Meakins instructed Lovelady to hire those individuals who met Part B of the criteria. Lovelady is the one who made the hiring decisions with regard to he applicants for employment at the Greeley plant. Lovelady said that Meakins instructed him to disregard the "attitude" factor in making hiring decisions with regard to the former em- ployees. The "attitude" of the nonformer employee ap- plicants was considered by Lovelady. Lovelady said that a large number of nonformer employee applicants were rejected because of their attitude. Lovelady also testified: "I was told to take this criteria and use it and hire the best work force available, not using any particular group anywhere, just hire the people that passed." Recommen- dations on the Company's termination reports with regard to former company employees were not consid- ered by Lovelady in making hiring decisions because those recommendations were subjective, rather than ob- jective. Meakins instructed Lovelady not to consider those recommendations for that reason. Respondent's Ex- hibits 224 through 231 are copies of termination reports with regard to former employees of the employer who had been terminated when the Greeley plant closed. Al- though there were recommendations on those termina- tion reports not to rehire those former employees, those former employees were rehired by the Respondent. Re- spondent's Exhibits 221, 222, and 223 showed that former employees of the Respondent were rehired by the Respondent even though they had put restrictions on their applications for employment. Lovelady did give consideration to the employment record of former em- ployees who had been employed by other employers after the Greeley plant had closed in March 1980.71 The applications for employment were brought from the Job Service to the _ Company's personnel office and placed on a long work counter. The applications first were examined to see whether all of the blanks were filled in. When an application disclosed that the applicant previously had worked or the Company, the employee's personnel records were obtained, and the employee's ap- plication was returned to the same stack it originally was in. Lovelady said that at no point was there any segrega- tion of the applications between former employees and nonformer employees. The Company's personnel depart- ment notify the Job Service of the names of applicants the Company ganted to interview. The Job Service had the responsibility' for contacting the applicants; schedul- ing interviews at 15 minute intervals; and giving them re- ferral card to take to the personnel office. Respondent's Exhibits 59 through 65 are copies of cor- respondence with attachments from the Job Service to the Company. The attachments list the names and appli- cant numbers of persons whom the Job Service informed the Company were not interested in an employment interview because of a lack of interest; because of a fail- ure to pick up a referral card or to show up for an inter- 71 The foregoing is based on the credited testimony of Lovelady and documentary evidence. view; or because they did not respond to communica- tions from the Job Service. Respondent's Exhibit 66 is a copy of a letter dated 22 September 1982 with an attach- ment pertaining to a statistical analysis of the 1706 initial applications for employment with a company. The analy- sis breaks down those applicants into the categories of sex, veterans, education, currently employed, physically handicapped, last hourly wage received, previous type of job time unemployed, and residence. The Company began interviewing applicants for em- ployment during the first week of February 1982. During the interviews at the Company's personnel office, appli- cants were requested to sign authorization release forms whereby the Respondent would check with the appli- cants' current and previous employers. On a daily basis, copies of such authorization release forms were mailed to the applicants' former employers. General Counsel's Ex- hibit 15 is a copy of an authorization release form which applicants were requested to sign at the time of their interviews. The form authorized the applicants' former employers to furnish certain information about the, appli- cant to the Respondent. The form stated: AUTHORIZATION RELEASE The below named person has applied for a position in our Greeley, packing plant, stating former em- ployment with your firm. We would appreciate your cooperation in supplying MONFORT OF COLORADO, INC. with the data requested, and returning this form in the enclosed envelope. All in- formation received will be held in strictest confi- dence. Thank you for your assistance. Sincerely yours, Monfort of Colorado, Inc. P.O. Box G, Greeley, CO 80632-0350 Packing Plant Personnel Dept. AUTHORIZATION TO RELEASE INFORMATION I, , authorize to fur- nish any information , reports, or copies of records which may be requested by Monfort of Colorado, Inc. I release such persons from claims , or liabilities as a result of disclosure , whether favorable or unfa- vorable . (It is agreeable to me that a photo copy of this release is acceptable.) Signature Date Social Security Number Date(s) of employment to Quality of Work Excellent Good Fair Poor No Opportunity To Observe MONFORT OF COLORADO 115 Quality of Work Conduct Attendance/Tardiness Attitude about Work Relationships with others Initiative Potential Number of days absent and/or tardy during past three years while employed by your company Did this person have any work-related accidents while working for you? Yes - No - If yes, how many and how many resulted in lost time?- Was employee discharged? Yes No -. Was this person disciplined in writing in the last 36 months of employment? Yes No Reason for leaving Would you re-employ? Yes No If no, why? Comments: Signature Title When the Respondent mailed copies of the authoriza- tion release forms to former employers of applicants, the Respondent included stamped, self-addressed envelopes for returning the forms to the Respondent. The Respond- ent mailed out authorization release forms to the employ- ers of both former employees of the Respondent and nonformer employees of the Respondent. The respondent mailed out the authorization release forms both for appli- cants for production jobs and applicants for maintenance jobs at the Greeley plant. The Company's wage rates and working conditions were discussed during the interviews ; the applicants were told that they could be assigned to work anywhere in the Greeley facility; and the applicants were told that they must pass a physical examination.72 The persons in the personnel department at the Com- pany who conducted the interviews also filled out rating forms with regard to the applicants . General Counsel's Exhibit 14 is a copy of such a form. The applications were then placed alphabetically in a pending file to await further processing. The personnel office had five tele- phone lines, and applicants frequently were calling that office in February and March 1982 regarding the status of their applications.' 3 Lorin J. Kramer is the supervisor of mail processing for the United States Postal Service in Greeley. The Postal Service has one post office in Greeley. Mail is de- livered to the Greeley post office between 5 and 5:30 a.m. and again at 7 a .m. With regard to first class mail, it is placed in post office boxes at the post office between 6 a.m. and 11 a.m. The Respondent has a post office box there. In addition, the Respondent has what is known as "back door caller service," which means the Respondent has an armored car which makes two pickups at the post office during the morning. Mail is dispatched from the Greeley post office three times during the afternoon shift. Respondent's Exhibit 125 is a map of the United States which shows the service commitments of the Postal Service for the delivery of first class mail deposited by 6:15 p.m. at the Greeley post office. The area shown in green on the map is the eastern half of the State of Colo- rado, which includes Greeley. Within that area, a letter deposited as described above should be delivered the next day . Kramer said that such first class mail was de- livered in 1982 within that geographical area the next day between 90 to 95 percent of the time. The area on the map shown in red or purple should receive first class mail the second day. Kramer said that was actually done by the Postal Service 89 to 93 percent of the time. The area shown in blue on the map should receive first class mail the third day. First class mail deposited within the eastern Colorado area which is shown in green on the map, should be delivered the next day within that same eastern Colorado area. Kramer said that included deliv- ery on rural routes.' 4 At the outset of the hiring process in Greeley during February and March 1982, Lovelady decided to wait 7 to 10 days for the return of the authorization release forms. However, things changed in the spring of 1982. Lovelady testified: In the spring of '82 we had a big push for pro- duction. Our plant was turning out more product than we had really anticipated. We had a bigger customer base . I needed more people, and so I would have probably made some commitments without waiting seven to ten. [I] would go on the basis of what information I had. I found out that some of the forms that we got back would come back within a couple of days. I also found out that there Were a lot of organizations that I wasn 't going to get , forms back from. So I would take that into consideration when I made a decision to hire. Lovelady estimated that only about 50 percent of the authorization release forms were returned to the Re- spondent by other employers. The majority of those forms that were returned were incomplete . Some of the forms only had dates of hire and dates of termination. At the Grand Island plant, Lovelady said that about 70 per- cent to 80 percent of the authorization release forms had been returned to the Respondent by former employers of the applicants. The majority of those forms that were re- turned to the Respondent at Grand Island contained the information which the Respondent had requested. In a situation where an applicant's authorization re- lease forms had not been returned to the Respondent, and the applicant contacted the Respondent's personnel office, Lovelady sometimes made a hiring decision simply based on the information that he had at that time. 72 The foregoing paragraphs are based on the credited testimony of Lovelady, Meakins , and documentary evidence. 7 S The foregoing is based on the credited testimony of Lovelady. 74 The foregoing is based on the credited testimony of Kramer and documentary evidence. 116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In a situation where an applicant had been hired as an employee by the Respondent , and the Respondent then received an authorization release form from his former employer which indicated that the employee did not meet the Company 's hiring criteria, the Respondent did not discharge that employee . If the employee had lied to the Respondent with regard to his medical history, then the Company might have disciplined that employee.75 If an applicant met the Company 's hiring criteria, then the applicant was notified to take a physical examination. The Company's health services department made the de- cision as to whether the applicant met the Company's medical screening criteria . With regard to former em- ployee applicants , their health services file at the Compa- ny was checked against the health services screening cri- teria . Some former employee applicants were screened out based on their medical records during their earlier employment with the Respondent where their medical records indicated that the employee did not meet the Company 's criteria. The health services department used a form such as General Counsel 's Exhibit 240(h) to record information regarding the applicant . The form included a medical history of the applicant . One of nurses checked the appli- cant's height, weight, blood pressure , back and eyes. Blood and urine samples were taken to be sent to a labo- ratory for analysis . The applicant then was sent to the University of Northern Colorado for a hearing examina- tion . At the time that Conklin testified at the hearing on 20 September 1984, the hearing test was being performed in the Company's health services department. The results of the physical examination were reviewed by Conklin of her assistant to make sure that there were no errors. A decision was then made as to whether the applicant was fit physically for hiring by the Company; or would be deferred which meant the applicant would not be hired ; or would be sent for examination by a com- pany physician . Conklin testified : "We tended to lean toward the safe side, and if there was any question at all and we did not consider the employee to be almost abso- lutely free of any kind of medical conditions, we referred them to the doctor for an opinion." Conklin said that the Company 's physician always rec- ommended applicants for employment, even though the physician listed restrictions on the applicants . Conklin ex- plained at the hearing : "He considers everyone to be em- ployable to some degree." However, when Conklin ob- served the physician's restrictions , such as "no climbing, platform work, etc." On General Counsel 's Exhibit 240(h), she indicated on the applicant 's form that he be deferred, which meant not to be hired . Conklin explained that the criteria provided that "All individuals must be able to perform any job in the plant ." Thus, if there was a restriction placed on the applicant by the physician, Conklin recommended that the applicant not be hired. Conklin acknowledged at the hearing that a couple of nonformer applicants were hired by the Company al- though they did not meet the health services screening criteria for back surgery , tendinitis , carpal tunnel syn- 75 The foregoing paragraphs are based on the credited testimony of Lovelady. drome, and shoulder or joint fractures or surgeries. She explained at the hearing that those applicants had not disclosed that information at the time they were screened, and that information was not discovered until later on.7 6 If the Company's health services department informed Lovelady that the applicant had passed the physical or met the Company's medical criteria, then Lovelady made the decision as to whether to offer employment to the applicant. 7 7 Lovelady estimated that about one-third of the em- ployment applications received in January 1982 had been processed by the time the Greeley plant reopened on I March 1982. By the first of May 1982, about 200 em- ployment applications had not yet been examined by Lovelady. Gary Ewing and Donna Headron in the Com- pany's personnel department also examined employment applications, but no decisions were made until Lovelady had looked at the applications. Lovelady personally par- ticipated in making every hiring decision at the Greeley plant. Ewing was the assistant personnel director at the Greeley plant from mid-January 1982 until August 1983. On 10 or 12 May 1982, Lovelady rechecked earlier ap- plications to determine if the applicants met the new hiring criteria for absenteeism, which had been increased at that time from 6 to 10 absences and/or tardies a year during any of the last 3 years of active employment. Lovelady did not project what an applicant's absences or tardies might be over a year's time if the applicant had absences or tardies during his employment of less than a year's time . To illustrate the point, if an applicant worked for 6 months and had 5 absences, Lovelady did not assume that the applicant would have had 10 ab- sences if the applicant had worked for a full year for his former employer. DuBois was a contractor of the Respondent to per- form sanitation work at the Greeley plant. The Respond- ent and DuBois had an agreement whereby the Respond- ent did not hire employees of DuBois away from that contractor, and DuBois did not hire employees away from the Respondent.? e Respondent's Exhibit 208 is a copy of a list prepared by Meakins which shows the employees whose names were on union organizing lists furnished to the Compa- ny. The exhibit shows their date of hire and date of ter- mination, if applicable. After the document was prepared by Meakins, Jerry Lee Adams' employment with the Company ended.79 Respondent's Exhibit 114 is a copy of a letter dated 21 January 1980 from Thomas to the Company. The letter listed the names of 18 persons as being union stewards at the plant. They were: Bob Doty-chief, Bob Bray-as- sistant chief, Ernie Deterra, Jim Hager, Lonny Murphy, Ray Miller, Ron Schaiffer, Gary Deluna, Larry Miller, 76 The ' foregoing paragraphs are based on the credited testimony of Conklin, Lovelady, and documentary evidence 77 The foregoing is based on the credited testimony of Lovelady 78 The foregoing paragraphs are based on the credited testimony of Lovelady 79 The foregoing is based on the credited testimony of Meakms and documentary evidence. MONFORT OF COLORADO 117 Alan Krieger, George Downing, Leonard Gonzales, Vidal Flores, Claude Auch, Bob Gronquist, Gary Knight, Harold Van Beber, and Jim Cook. Respondent's Exhibit 115 is a copy of a list on the Company's letterhead dated 25 January 1980 with the names and work locations of the union stewards. Those names were: Bob Doty, Bob Bray, Jim Hager, Lonnie Murphy, Jim Cook, Arlie Wright, Gary Deluna, Gary Bolken, Larry Miller, Gabino Lara, Ernie Derrera, Larry Schmitz, Thirston Wilson, Vidal Flores, Harold Vanbebber, Julius Pfiefer, Gary Knight, Gary Carwin, Bob Gronquist, Glen Rutten, and Jim Lutterell. Although the collective -bargaining agreement between the Company and the Union had required that the Union notify the Company in writing as to who the union stew- ards were, Thomas said that it was not the practice of the Union to do so. He explained that Respondent's Ex- hibits 114 and 115 were one of the few exceptions to that practice. Thomas acknowledged that some of the former union stewards never applied to return to work for the Company when the Greeley plant reopened.80 Respondent 's Exhibit 209 is a list of the names of former union stewards at the Company who did not apply for employment with the Respondent. Respond- ent's Exhibit 210 is a list of the names of former union stewards at the Company who either were hired or eliminated themselves from consideration for employ- ment . That list shows four as being hired and three as having eliminated themselves from consideration for em- ployment.8 t General Counsel's Exhibits 37 through 416 are copies of certain of the personnel records of the alleged discri- minatees . Those .documents reveal whether the alleged discriminatee filed a Monfort application for employ- ment, as well as the contents of that application. Where they are available and applicable, there are documents such as the former employee's "attendance and punctual- ity record;" warning notices; authorization release form's from former employers; certain medical information; and letters from the Job Service listing applicants who were no longer interested in employment or who had failed to report for an interview . Termination reports usually were' included where available. Where an employee had been rehired, a computer printout was included. Some of the foregoing , information is reflected in General Coun- sel's Exhibit ' 76, but I found an examination of General Counsel's Exhibits 37 through 416 to provide a more complete basis for considering the General Counsel's al- legations regarding the alleged discriminatees and the Respondent's defenses with regard to them.82 Various summaries of certain information taken from voluminous documents and various analyses of those summaries were introduced at the hearing. I have wei ed the summaries and analyses with the under- stanmg that those documents reflect the particular party's view of what information is relevant, and, in some instances , the documents reflect the subjective con- So the foregoing paragraphs are based on the credited testimony of Thomas and documentary evidence. 81 the foregoing is based on the credited testimony of Meakins and documentary evidence. 82 The foregoing is based on documentary evidence. clusions of the preparer. To take one example, General Counsel's Exhibit 76 regarding the group of alleged dis- criminatees reflects, among other things , whether the former employee had been recommended for rehire by his former supervisor when the employee's employment had terminated with the Company. In the General Coun- sel's view that information was pertinent , whereas in the Respondent 's view it was not because that was not a part of the Company's hiring criteria, and the Company did not rely upon such recommendations in determining whether to hire former employee applicants. Julie A . Fairman is employed as a labor -management relations aide in the Board 's Denver Regional Office. She assisted the three attorneys who represented the General Counsel in this proceeding and other Regional Office employees in the examination of voluminous records and in the preparation of certain of the General Counsel's summaries. Debra A. Elsas is a law clerk in the law firm of Horn- bein, MacDonald, Fattor, and Buckley, which law firm represents the Union in this preceeding . Elsas also works for the city and county of Denver in performing reloca- tion work for Denver's airport expansion project. She as- sisted in the preparation of certain of the Charging Party's summaries. The terms "active employees" and "inactive employ- ees" as used in this proceeding derive from the process used by the General Counsel 's agents in examining the Respondent 's personnel records. The "active employees" were those employees who were rehired by the Compa- ny on or after I March 1982 and who were still em- ployed by the Respondent in November 1983 . The "inac- tive employees" were those employees who were hired by the Company on or after 1 March 1982, but who were not employed by the Respondent in November 1983 . Thus, the terms "active employees " and "inactive employees" were used in that context as a practical and convenient designation for the examination of the Re- spondent ' s personnel records and preparation of summa- ries.$3 General Counsel's Exhibits 68(a), (b), (c), and (d) and General Counsel's Exhibit 69 are summaries of "inactive employees" and active employees , as those terms were used in this proceeding, with regard to their previous employment and reference checks regarding their past employment. General Counsel's Exhibits 70 and 71 are summaries of employees who the General Counsel urged were hired in 6 or fewer days from the date of their au- thorization release forms. Respondent's Exhibits 187 through 191 are the Respondent 's responses and analyses of General Counsel's Exhibits 70 and 71. Respondent's Exhibit 192 is the Respondent's analysis of General Counsel's Exhibits 68 through 71. General Counsel's Exhibits 72 and 73 are summaries of "times called , restrictions and experience" of "inactive employees" and "active employees." General Counsel's Exhibits 74 and 75 are summaries of disciplinary actions taken against both categories of employees . General 83 The foregoing paragraphs are based on the credited testimony of Fairman, Elsas, and documentary evidence. 118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Counsel's Exhibit 76 is a summary of the names and cer- tain information regarding them pertaining to the group of alleged discriminatees in Case 27-CA-7742. Respondent's Exhibit 194(a) is the Respondent's "Workforce Analysis" of "all production employees em- ployed at the Greeley plant who were terminated from employment by reason of the plant closure on March 31, 1980." Respondent's Exhibit 194(b) lists former company employees who were not employed at the time of the plant closure on 31 March 1980, but who are listed on General Counsel's Exhibit 76 as alleged discriminatees. Respondent's Exhibit 194(c) is the Respondent's "De- tailed Analysis of Employees Employed at Plant Clo- sure." General Counsel's Exhibit 622 is a list of employ- ees from Respondent's Exhibit 194(a) who had been hired on 14 January 1980 and who had no 1980 attend- ance card. General Counsel's Exhibit 623 is a list of em- ployees from Respondent's Exhibit 194(a) who were hired in September or October 1979, but who had no 1980 attendance card. In addition, the parties stipulated that Joe M. Cortez, Kurt Kulp, and Odella Salazar had 1980 attendance cards in their files, but there were no markings on the cards. General Counsel's Exhibit 624 is a list of names from Respondent's Exhibit 194(a) who did not meet the original criteria for attendance, but who met the revised criteria. General Counsel's Exhibit 625 is a list of names from Respondent's Exhibit 194(a) who were not union members at the time the Greeley plant had closed in March 1980. Charging Party's Exhibit 119 is the Charging Party's analysis of Respondent's Exhibit 193. Charging Party's Exhibit 120 is the Charging Party's view of additional nonformer employees who had been hired by 25 March 1982, but who were not listed on Respondent's Exhibit 193. Charging Party's Exhibit 121 is the Charging Party's "Summary of Hiring Data" based on the Charg- ing Party's examination of other exhibits and certain tes- timony. Respondent's Exhibit 220 is the Respondent's analysis of Charging Party's Exhibit 119, which was the analysis of Respondent's Exhibit 193.84 Respondent's Exhibit 213 is a list of the employees who transferred to the Greeley packing plant from other divisions of the Respondent. The list shows their names, dates of hire, dates of transfers, the divisions they previ- ously worked in, and their rates of pay both before and after their transfer. With regard to the pay rates for the employees who transferred from the Grand Island facili- ty, the parties stipulated that the rates could not be lower than $6.70 an hour nor higher than $7.55 an hour.85 Respondent's Exhibit 195, as revised on 11 December 1984, presents an "Overall Summary" of the statistics with regard to the applications for employment in pro- duction jobs at the Greeley plant since January 1982. It stated:86 84 The foregoing paragraphs are based on documentary evidence 85 The foregoing is based on documentary evidence and a stipulation by the parties. 86 The following is based on documentary evidence. Overall Summary Total Number of Applicants-7,287 Total Number of Former Employees Who Ap- plied-369 Total Number of Former Employees Hired-160 Total Number of Non-Former Applicants Hired-2,990 Total Number of Non-Former Applications- 6,918 Did Not Wait Six Days Former Employees Who Were Hired-16 or 217 Total Number of Employees Hired-3,150 Total Number of Non-Former Applicants Reject- ed-3,928 Total Applications Rejected-4,137 Former Employees Hired Even Though Dis- qualifying Information-25 Non-Former Applicants Who Were Hired Even Though Disqualifying Information-54 Non-Former Applicants Hired and Did Not Wait Six Days-667 or 3650 ' Employed at time of plant closure z Eleven of seventeen are former employees who were not em- ployed by Monfort at time of closure 8 The number 650 is derived from subtracting 17 from 667 be- cause in the case of the 17 their authorization release form re- vealed that former employer was out of business or unable to con- tact. General Counsel 's Exhibit 3(z) as amended by General Counsel's Exhibit 65 on 31 January 1984, contains the names of 336 alleged discriminatees in Case 27 -CA-7742. Of those 336 persons , 20 testified at the hearing in this proceeding . Of those 336 persons , 70 did not file a Mon- fort application for employment . Of those 336 persons, 51 were hired by the Respondent, but the General Coun- sel alleged that they should have been hired earlier. The 20 alleged discriminatees in Case 27 -CA-7742 who testified at the hearing in this proceeding will be discussed first. They were : Gerald E. Aragon, Charles B. Baird, Bob Bray, Mike Chacon, Billy John Channel, Robert Doty , Justus Drake , George Gow, Frank Guer- rero, Pete Guerrero, James Hager, James R. Jirecek, James E. Luttrell, Lonny Owen Murphy, Julius Pfeifer, Valentine Rodriguez , Dennis Roth , Manuel M. Salazar Jr., Raymond L. Swanson, and Jose Varela. Aragon and Varela also will be discussed later in this decision in sec- tion XIV and section XII respectively with regard to ad- ditional 8(a)(1) and (3) allegations pertaining to each one of them. Gerald Aragon was employed by the employer from 12 May 1982 to 19 October 1983. Previously, he was em- ployed by the Respondent from November 1964 to 18 March 1980 . During the 16 years of his initial employ- ment with the Company, Aragon was suspended for 2 weeks on one occasion along with 40 or 50 other em- ployees who had left their work location . He was termi- nated in 1975 for smoking marijuana in the Company's locker room . Aragon filed a grievance which went to ar- bitration. The arbitrator ruled that Aragon would be sus- pended from work for 6 months, and then he would be MONFORT OF COLORADO 119 returned to work with full seniority and other rights. The March 1980 ratings on General Counsel 's Exhibit 90(f) were not discussed with Aragon . Aragon began his work for the Respondent as a beef lugger in 1964. Then he worked in the shipping department , and he later worked in the beef fabrication department performing the jobs of boning strips and pulling tenders. Aragon submitted a Monfort application for employ- ment at the Island Grove Park on 17 March 1982. (See G.C. Exh. 90(a).) He acknowledged at the hearing that he had read in the Greeley Tribune newspaper about the initial application process at the Congregational Church, but he was working at Great Western Sugar at that time. He explained that when he drove by the church on two separate days, the lines were long , and he decided not to apply at that time. On 12 May 1982 the Respondent rehired Aragon at $5 an hour. The Company did so by mistake as Aragon did not meet the Company's hiring criteria . About 3 days before he was rehired , Aragon had an interview with Gary Ewing. No one else was present during the inter- view . Ewing told Aragon that the Employer 's plant was resuming operations after 2 years of being closed; that the plant was going to be run nonunion at that time; and did Aragon have any objections or anything to say about it. Aragon made no reply to Ewing . Ewing also told Aragon that some changes had been made in the method of production ; that Aragon would not necessarily be working in the job he had before ; and that he could be assigned anywhere in the packing plant. Separately , Aragon also had a meeting with a foreman and a trainer with regard to what was expected of him in his job. Those interviews also occurred prior to the time Aragon was rehired . Subsequently , Aragon received a copy of the Company's work rules and policies. (See G.C. Exh. 17.) His first job after being rehired by the Company was boning strips in the beef fabrication department. Ara- gon's supervisor was Steve Buhlke . Aragon previously had boned strips for 3 or 4 years, and he had pulled tenders for about the same amount of time . When he was rehired, the job had been changed so that Aragon per- formed only one-half of the job that he had done previ- ously . He sent the product down the line where the next person on the line completed the other half of the job. Buhlke told the employees the way he wanted the job to be performed . Possibly within a week, Aragon was able "to pull count on strips."87 Charles Baird began working for the Respondent in December 1967, and he continued to work there until the plant closed in March 1980. Baird worked in sheep kill for 5 years ; then in the fabrication department on four different jobs for a total of 4 years ; and finally he worked in the hamburger department on four different jobs for a total of 4 years. Baird was a member of the Charging Party Union throughout his employment with the Company. About 3 weeks after the plant closed, Baird received a letter from the Company that the layoff was made permanent ; that he should seek other employ- 89 The foregoing paragraphs are based on the credited testimony of Aragon. ment; and if he wanted job recommendations , to advise the Company. In May 1980, Baird began working for Douglas Roof- ing in Greeley, and he was still working for that compa- ny at the time he testified at the hearing on 18 May 1984. Baird did not file a Monfort application for employment in 1982 , or at anytime thereafter . I have considered his testimony regarding his lack of knowledge that the Re- spondent was accepting applications in January and again in March 1982 for former employees of the Com- pany. As indicated previously , the Respondent has also been accepting applications since May 1982 for anyone who wished to apply for employment at the Greeley plant. I do not credit Baird 's assertion of his lack of knowledge of the Company 's accepting applications. While he testified that he was out of town during week- days in Merino, Colorado, on a roofing job for Douglas Roofing from Thanksgiving 1981 to February 1982, Baird acknowledged that he returned to his home on weekends . Merino is approximately 115 miles from Gree- ley. Baird also acknowledged at the hearing that he had read in the Greeley Tribune newspaper that the Re- spondent was planning to reopen its Greeley plant in March 1982. Baird also acknowledged that a neighbor of his had filed a Monfort application for employment in January 1982 at the church . Baird also acknowledged that he had read in the newspaper about a union meet- ing. He attended that meeting and he was told by the Union that the Company was going to reopen the Gree- ley plant . That meeting was held on 25 February 1982. He filled out General Counsel 's Exhibit 35(c) at that meeting , and the union representatives told him that they would turn in the document to the Company . Thereafter, he did not receive any communication from the Compa- ny. As indicated above, I have concluded that the matter of accepting Monfort applications for employment was a matter of common knowledge in the community, and I can not credit Baird 's assertion that he had no knowl- edge with regard to the taking of applications. Between the time the plant closed in March 1980 and March 1982, Baird was not aware of any physical or health problems that he had which would have prevent- ed him from returning to work at the Company. Baird sustained injuries at work in 1968 , 1971 , and 1972, but from 1972 to 1980 he did not have any injuries. During his employment with the Respondent, Baird was disciplined only once. That occurred in 1978 when he was suspended from work for I day . At that time the Company posted a notice by noon Friday regarding the employees' being required to work on Saturday. The notice that was posted on that occasion incorrectly listed Friday's date, rather than Saturday 's date , The employ- ees who worked that Saturday noticed the incorrect date. They worked only a half day that Saturday, and then they left although they had been scheduled to work a full shift. A grievance was filed regarding ' the suspen- sions of the employees, but Baird did not know what the outcome of that grievance was. In 1973 a supervisor named Buldecker did not permit Baird to sign up for a bid job because Buldecker thought that Baird was accident prone . Baird's attendance record 120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD at the Company; quality of work; productivity; ability to get along with others; and his safety record at the Com- pany were not discussed with him.88 Bob Bray was employed by the Respondent from 1967 until the Greeley plant closed in March 1980. Bray was a union steward in sheep kill for 5 or 6 years, and he was a chief union steward on the kill floor for about 2 years during the last years before the plant closed. Bray did not file a Monfort application for employ- ment. Bray acknowledged at the hearing that he had read in the newspaper in January 1982 that the Company was going to take applications at the church later that month. Bray said that he did not apply for work at Mon- fort because he was driving a truck, and he was out of town at the time. Bray said that he did send the Compa- ny a letter which stated that he would like to go to work there. Bray received a reply from the Company which stated that the Company was not taking applications at that time. (See G.C. Exhs. 33, 21, and 471.) Bray did not receive a copy of General Counsel's Exhibit 67 which is a letter dated 3 March 1982 from Meakins regarding the taking of applications at the Island Grove Park in March 1982. As indicated previously, I have concluded that the taking of Monfort applications for employment in Janu- ary and March 1982 were matters of common knowledge within the community. In the opinion of Bray, his attendance record at the Company was good. He did not receive any warnings or any discipline. Bray said that he also did not have any physical problems that would have prevented him from returning to work for the Company in March 1982. With regard to the Company's termination report concerning him, Bray said that he was never told that his work pro- ductivity was anything but acceptable, nor was he told that he would not work with management . (See G.C. Exh. 107(a).) Bray said at the hearing that he worked with management in his role as a union steward. Bray said at the hearing that after the strike had ended, the number of grievances filed by employees in- creased. In assessing the credibility of Bray, I have con- sidered Respondent's Exhibit 110, which was offered for impeachment purposes. Respondent's Exhibit 110 is an affidavit given by Bray on 4 December 1979. I conclude that the affidavit does not impeach his testimony at the hearing. Bray stated on direct examination by the coun- sel for the General Counsel that the number of griev- ances filed by employees increased after the strike was over, but he did not state that there were no problems or grievances prior to that strike. On cross-examination by the attorney for the Respondent, Bray again said the number of grievances had increased following the strike. Bray also stated on cross-examination that supervisors were harassing employees in October 1979 and they were doing the same in January and February 1980. He also said that there were problems all the time. During cross-examination he was confronted with page 3 of his 4 December 1979 affidavit wherein Bray had stated: About the last two weeks in October 1979, there had been some problems on the kill floor; Hank Brown, Hal McCullough, Gary Goodwin, person- nel manager, Glenn Schmidt, supervisor sheep kill and 80-85 sheep kill employees were present at a meeting. After being read that portion of his affidavit, Bray said he did not recall it. I conclude the foregoing does not establish the impeachment of Bray 's testimony.89 Mike Chacon worked for the Respondent from 25 No- vember 1965 until the Greeley plant closed. Chacon was a member of the Union during that entire period of em- ployment, and he participated in the strike in 1979. He first worked for about 3 years as a meat lugger at the Company. Then he worked at truck spotting for the Company which involved driving trucks in the yard to the Company's loading docks. Next he worked as a fork- lift operator at the Company. Finally, Chacon worked as a scaler for the Company. The latter three jobs did not require that he lift weights. In May 1981 Gary Goodwin telephoned Chacon about the possibility of his working at the Respondent's Conco freezer plant. Chacon went to the Respondent's corpo- rate office in Greeley where he met with Goodwin. Goodwin told Chacon that he would be considered as a new employee, so Chacon had to fill out an application and take a physical examination . Goodwin instructed Chacon as to where to go to get his physical examina- tion. Chacon took the physical at that time. Dr. Groves told Chacon that he had back problems, and he had to limit him to lifting 45 pounds. Chacon asked Dr. Groves to raise the limit to 50 pounds, but Dr. Groves said no, and that he could not do that because that was'about the limit for an injury such as Chacon had had. Chacon received a telephone call that night at his house from Goodwin. Goodwin told him the results of his physical were okay, except for Chacon's ;back and that the doctor had placed a 40 pound weight limit on what Chacon could lift. Goodwin told Chacon that he did not think Chacon would be able to do the job. Goodwin also said there was going to be a lot of heavy lifting involved in that job. Goodwin told Chacon that if and when they ever got the packinghouse going again, they would find a place for Chacon. An unfair labor practice charge was filed with the NLRB in 1981 with regard to the Company's failure to hire Chacon. Respondent's Exhibit 7 is a copy of a letter dated 25 June 1981 from the Regional Director for Region 27 of the Board with regard to the results of the investigation in Case 27-CA-7317. The Regional Direc- tor refused to issue a complaint against the Company re- garding the failure to hire Chacon on 11 May 1981. The Regional Director concluded, in part, "the investigation reflects that Chacon' s denial of employment was related solely to his not passing the required physical examina- 88 The foregoing paragraphs are based on the credited testimony of 89 The foregoing paragraphs are based on the credited testimony of Baird with the exception noted previously. Bray MONFORT OF COLORADO tion and was in no way related to any union consider- ations."9° At the hearing Chacon explained that he had sustained an on-the-job injury to his back in 1971, but afterwards he had continued to work for the Company until the Greeley plant closed. He had surgery on his back in 1971, and he was told that he had a degenerative disc. Chacon filed a workmen's compensation claim regarding his injury, and he received a lump sum payment on that claim. On one occasion in 1975 or 1976, Chacon slipped on some ice while he was shutting the doors on a trailer at the Company. The doctor told Chacon that he had a muscle spasm of some kind. (See G.C. Exh. 115(bb).) Chacon filled out a Monfort application for employ- ment in January 1982 at the church. He later received a letter from Meakins regarding the taking of employment applications at the 4-H Building at the Island Grove Park. However, Chacon did not apply at the Island Grove Park because he already had applied in January 1982. The only discipline Chacon recalled that he had re- ceived was in 1965 when he got a disciplinary letter from the Company. In his opinion, his attendance record was pretty good, and he did not receive any warnings regarding his attendance. Chacon said that the Company did not communicate with him about the status of his health, and that he was not called for an interview.91 Conklin said that Chacon was screened out based on his health service records during his earlier company em- ployment. She said at, the hearing that Chacon had a couple of back surgeries; a degenerative disc disease; and permanent restrictions . Conklin said that back surgery, as distinguished from a back injury, always was grounds for disqualifying an applicant for employment. General Counsel's Exhibit 115(h) contains documents relating to the health problems of Chacon while he was employed at the Company. According to the document, on 7 May 1981, Dr. Groves placed a restriction on Chacon of "no heavy lifting of over 40 lbs."92 Billy Channel worked for the Respondent from either 20 February 1960 or 20 February 1961 until the Greeley plant closed. Channel was a member of the Union, and he participated in the 1979 strike. Channel worked for 4 or 5 years in the offal department; 3 or 4 years on the dock;' then in the fabrication department; and the last 2 or 3 years in cleanup and trash hauling. Channel sent a copy of 'a form, letter which the Union had given to him to Meakins by registered mail. (See G.C. Exh. 33.) In reply, Channel received,a copy of General Counsel's Exhibit', 21. He did not receive a copy of General Counsel's, Exhibit 67. Channel did not file a Monfort application for employ- ment . Channel acknowledged at the hearing that his brother had told him about the taking of Monfort appli- 90 It is not alleged in the General Counsel 's complaints in this proceed- ing that the Respondent's failure to hire Chacon in March 1982 was a violation of Sec 8(a)(4) of the Act 91 The foregoing paragraphs are based on the credited testimony of Chacon and documentary evidence. 92 The foregoing is based on the credited testimony of Conklin and documentary evidence. 121 cations for employment at the church. However, Chan- nel said at the hearing that he did not want to stand in the long line there. Channel said he thought that the former employees of the Company would be called back to work automatically according to seniority. Channel was injured in the mid-1970's by breaking a blood vessel in his arm. He sprained an ankle at work in either 1978 or 1979. About 1975 or 1976 Channel was suspended from work for 2 days because of his absences, and he was threatened with discharge at that time. At the hearingJChannel explained that he had gone to Iowa on that occasion because his father-in-law had suffered a brain hemorrhage and died 2 days later. Channel stayed to attend the funeral. Channel acknowledged at the hear- ing that he had gone to a doctor in 1980 because of the job pressures.93 Robert Doty was employed by the Respondent at its Greeley plant from 9 January 1963 until the plant closed. Doty worked in sheep kill and beef fabrication. Once in a while he worked as a utility man in beef fabrication, and he performed most of the jobs in that department. Doty served as a union steward in the department, and he served as a chief union steward around 1977 or 1978. Doty did not file a Monfort application for employ- ment. Doty acknowledged at the hearing that he had known that the Company was accepting applications for employment in January 1982 at the church in Greeley. However, Doty did not go there and file a Monfort ap- plication. At the hearing Doty explained that he had be- lieved that there had been a NLRB settlement with regard to the Company's closing of the Greeley plant in March 1980. Doty thought that the former employees were going to receive preference in rehiring when the plant reopened. Doty sent a copy of General Counsel's Exhibit 35(a) to the Company. (See G.C. Exh. 445.) Doty did not receive a reply from the Company. In ad- dition, he did not receive a copy of General Counsel's Exhibits 21 or 67. Doty had 13 instances of absences or tardiness in 1979 (see G.C. Exh. 148(c).) Doty had not received any disci- pline during his last 5 years of employment with the Company. At the hearing he did not recall ever receiv- ing any warnings. He acknowledged at the hearing that he was sometimes not punctual, but he said that he had never received a warning regarding that. Doty was in- jured on the job only once in the early 1960's when he received a cut. Doty did not have any physical or medi- cal problems up to, March 1980 which, in his opinion, would have prevented him from working for the Compa- ny-Doty had a conversation with Gary Ewing either in a grocery store or another place of business such as a K- Mart. He estimated that this occurred about 6 months after the Greeley plant had reopened. In Doty's role as a union steward, he had dealt previously with Ewing. Doty approached Ewing and asked what his chances were of his coming back to the plant. Ewing laughed and replied "slim to none." Doty asked Ewing what he 92 The foregoing paragraphs are based on the credited testimony of Channel and documentary evidence 122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was doing, and Ewing replied that he was working in personnel. They then began a conversation about fish- ing.94 Justus Drake worked for the Company from Septem- ber 1970 through October 1979. He worked in sheep kill, beef kill, and the fabrication department. Drake served as an assistant union steward for a year or two prior to the 1979 strike; a member of the local union's executive board; and he was elected recording secretary of the Union during the 1979 strike. Drake also served as a picket captain for the Union. Drake was the recording secretary of the Northern Colorado Labor Council. About 1978 he became president of that council, and Drake held that office through November 1980. General Counsel's Exhibits 446 and 447 are copies of two of the grievances which Drake filed in 1978 and 1979 respec- tively in his capacity as a union steward at the Company. General Counsel's Exhibit 448 is a copy of an article written by Ken Monfort which had been published on 9 October 1980 in Town and Country NEWS, which is a weekly newspaper circulated in Greeley and Weld County. Ken Monfort wrote the article in response to a letter which Drake had written in his position as presi- dent of the Northern Colorado Labor Council. Drake's letter had been sent to 6000 or 7000 union members in northern Colorado. Drake did not have a copy of his letter at the time he testified at the hearing on 13 June 1984. The letter had pertained to certain candidates for political office, and Drake had made particular reference to a candidate who formerly had been an officer of the Respondent. General Counsel's Exhibit 449 is a copy of an article written by Drake which had been published on 23 October 1980 in the Town and Country NEWS. Drake's article was in reply to General Counsel's Exhibit 448. The General Counsel urged at the hearing that Ken Monfort's article revealed animus towards Drake, but I find both newspaper articles pertain to their own politi- cal views and their differing opinions as to the causes of the Company's shut down of the lamb department. Drake was suspended from work for 1 day by the Company a month or two before the strike began on 1 November 1979. Drake allegedly was suspended because of insubordination. A grievance was filed, but the strike commenced before the grievance was resolved. Within Drake's knowledge, that grievance was never resolved. The suspension was not revoked, and he was not paid for that day. Subsequent to the strike, the Company dis- charged Drake on the basis of serious strike-related mis- conduct. An unfair labor practice charge was filed re- garding that, and a settlement was reached whereby the discharge action was revoked. Drake submitted a copy of the form letter from the Union to the Company. (See G.C. Exh. 450.) Drake also filed a Monfort application for employment at the Island Grove Park. (See G.C. Exh. 149(b).) At the hearing Drake acknowledged that he had not listed his then-cur- rent employer on his Monfort application for employ- ment. Drake explained at the hearing that he had inten- 94 The foregoing paragraphs are based on the credited testimony of Doty and documentary evidence. tionally done so because he did not want the Respondent to know where he worked.95 George Gow was employed by the Respondent from September 1969 until the Greeley plant closed in March 1980. Gow worked in lamb kill until the Company ceased that operation, and then he worked in the fabrica- tion department. Gow filled out a Monfort application for employment at the Island Grove Park. (See G.C. Exh. 183(a).) Gow went to the Respondent's plant for the purpose of talking with Lovelady. Gow was uncertain at the hearing as to when this had occurred. It may have been in May or July 1982, or about a year after he had applied which would have been in March 1983. Gow's uncertain testimony as to when this event took place varied among those approximate dates. I find that Gow did not know when this event occurred. Gow spoke with a guard at the Company. The guard asked Gow if he had an appointment to see Lovelady. Gow replied no, so the guard told Gow that he had to have an appointment in order to see Lovelady. However, the guard permitted Gow to talk with Love- lady on the telephone. Gow told Lovelady that he had applied at the 4-H Building . Lovelady asked Gow if he had worked at the Company previously. Gow said yes. Lovelady said something else which Gow did not relate at the hearing, and then Lovelady told him that the Company was not hiring at that particular time. In the opinion of Gow, his attendance while he worked at the Company was excellent . Gow said that he had never been disciplined. He said that he was burned by steam on one occasion, and that he had missed work for 2 days in either 1970 or 1971. I have considered Gow's testimony that he was not contacted by the Job Service. However, I do not credit that testimony because General Counsel's Exhibit 183, which is a letter dated 23 April 1982 to the Company from the Job Service, lists George Gow among those as not showing up for a scheduled interview. The Job Serv- ice had been accurate with regard to reporting on other applicants, and the Company relied upon what the Job Service told them.96 Frank Guerrero Jr. worked for the Company from January 1963 until the Greeley plant closed. Guerrero worked in the offal department and the fabrication de- partment. Guerrero did not file a Monfort application for em- ployment. Guerrero acknowledged at the hearing that he had been aware that the Company' was taking applica- tions for employment at the church in Greeley. Guerrero explained at the hearing that he had an operation on his knee in December 1981, and that he,was still on crutches in January 1982. Guerrero said that he could not stand in the long line at the church. Guerrero sent a copy of the form letter to the Company. His letter is dated 8 Febru- ary 1982. (See G.C. Exh. 452.) Guerrero received a reply from the Company regarding the taking of applications 95 The foregoing paragraphs are based on the credited testimony of Drake and documentary evidence. 9 e The foregoing paragraphs are based on the credited testimony of Gow, except as noted above, and documentary evidence MONFORT OF COLORADO at a later date, but he did not receive a copy of General Counsel's Exhibit 67.97 Peter Guerrero was employed by the Respondent from 17 August 1960 until the Greeley plant closed. He began in the jobs of washing sheep and cleaning floors, and he progressed from there to the position of relief man, which also was referred to as utility man. He per- formed that job for about 6 years. In that latter position, Guerrero performed all of the jobs on the sheep kill floor. After the Company ceased operating the sheep kill floor, Guerrero went to work in the hamburger depart- ment. Guerrero did not file a Monfort application for em- ployment. Guerrero was aware from the newspaper, neighbors, and other persons, that applications for em- ployment with the Company were being taken at the church in Greeley in January 1982. However, Guerrero did not file a Monfort application because he thought the Company would call him back to work. General Coun- sel's Exhibit 454 is a copy of the form letter which Guer- rero signed. Guerrero did not receive either a copy of General Counsel's Exhibits 21 or 67 from the Company. Guerrero acknowledged at the hearing that he also knew from the newspaper that the- Company had been accept- ing applications for employment since then, but he had never filed a Monfort application for employment. Guerrero went to the Company plant sometime around March 1982 after the plant had opened, and he spoke with Gary Ewing. Guerrero asked Ewing for an application. Ewing said no that he could not give Guer- rero one because they were, all filled up, and they were not taking applications from anybody at that time. Ewing told Guerrero that the Company was processing the ap- plications which had been taken in January, and after that was done, the Company would take applications later on. Ewing added: "Maybe later on you can see when we start having applications." Ewing told Guerre- ro that it would be in the newspaper when the Company started taking applications again . Ewing also informed Guerrero that he could see Meakins. Guerrero next spoke with Meakins, and he asked if the Company was going to have a hamburger room. Mea- kins replied that they did not have one right then, but maybe they would have one later on. Meakins added that they were thinking about it. Guerrero told Meakins that he would like to come back to work in the plant, and that he would like to work in the hamburger depart- ment. Meakins asked where he was working, and Guer- rero replied Colorado Lamb. Meakins told him okay, and that they were not sure if they were going to have a hamburger department. In the opinion of Guerrero, his attendance record at the Company was good. He said at the hearing that he never received any discipline during the 20 years he had worked for the Company, and that he had no work-relat- ed injuries, medical, or physical restrictions which would 97 The foregoing paragraphs are based on the credited testimony of Guerrero and documentary evidence. 123 have prevented him from returning to work for the Company.98 James Darrell Hager worked for the Respondent from April 1961 or 10 April 1962 until the Greeley plant closed. Most of his working time was spent in the beef kill department. Part of that time Hager worked as a util- ity man in that department. Hager had served as a union steward for 4 or 5 years. Hager was a member of the Union's negotiating committee in 1979, and he was a member of the liaison committee between the Union and the Company. Hager did not file a Monfort application for employ- ment in January 1982 even though he knew that the Company was accepting applications at that time. At the hearing, Hager explained that he thought, that the Com- pany would rehire him according to seniority. Hager did send a form letter to the Company regarding his interest in employment. (See G.C. Exh. 35(j).) Hager received a letter from the Company regarding the taking of applica- tions at the Island Grove Park. Hager filed a Monfort application for employment on 17 March 1982 at the Island Grove Park. (See G.C. Exh. 193(b).) Hager ac- knowledged that he intentionally 'did not list his then- current employer on his Monfort application for employ- ment. He explained at the hearing that he did not want Monfort to contact his current employer for fear of losing his job there. Hager also acknowledged at the hearing that he had not listed some other employers who had employed him for short periods of time. General Counsel's Exhibit 193(e) is a copy of a notice dated 8 June 1979 and issued to Hager for squirting water with a hose in the beef kill department. At the hearing, Hager said that employee Norm Coble also was involved in the same incident, and that Coble had re- ceived a notice at the same time that Hager did. Hager observed the foreman give him and Coble a written notice at the same time, and, in his position as union steward, Hager received a copy of the notice which was given to Coble. Hager saw Coble's picture on the ' front page of the Greeley Tribune newspaper on the first day that the Greeley plant reopened. Coble was shown in the picture splitting beef. Hager spoke with Coble 3 or 4 days before Hager testified at the hearing in this proceeding on 13 June 1984, and Coble told Hager that he was still work- ing for the Company. According to Hager, squirting water in the beef kill department was a common practice, which he had ob- served about a half dozen times a day. Sometimes the water was squirted to clean things; sometimes to cool a person off; and sometimes for "horseplay." Shortly after Hager had received General Counsel's Exhibit 193(e), Foreman Bill Rucker told Hager to squirt water on an- other employee. Hager refused to do so. Rucker told Hager that he had given Hager an order to do so. Hager again refused because Hager had received General Coun- sel's Exhibit 193(e). Hager acknowledged at the hearing that squirting water could create a dangerous situation, 98 The foregoing paragraphs are based on the credited testimony of Guerrero and documentary evidence 124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and it was a serious matter . Hager said that he had dis- couraged that practice among the employees in the de- partment when he considered it to be horseplay. Hager also acknowledged that he knew that other employees of the Company had been given warning letters for squirt- ing water . Hager also acknowledged that he had not filed a grievance regarding his receipt of General Coun- sel's Exhibit 193(e).99 Jim Jiricek worked for the Respondent from January 1979 to the closing of the Greeley plant. He began work- ing on the kill floor , and then he worked in the fabrica- tion department. Jiricek filed a Monfort application for employment in January 1982 at the church . He was called for an inter- view at the Company . Gary Ewing is the one who inter- viewed Jiricek on 9 March 1982. Ewing informed Jiricek that the plant was going to open nonunion; that the start- ing wage rate was $5 an hour; and that there was only one 15 -minute break for 8 hours work . Jiricek told Ewing that he would be willing to accept any assign- ment, and he also said that he had several years of fabri- cation background . Ewing asked Jiricek if he wanted to take his physical , and Jiricek said that he did . Jiricek then took a physical examination which was given by a nurse at the Company. On direct examination by the counsel for the General Counsel and , at first, on cross-examination by the attor- ney for the Respondent , Jiricek omitted stating that he had taken a hearing test . However, after being asked spe- cifically about a hearing test on cross-examination, Jiri- cek said that he had taken such a test at the University of Northern Colorado . However, Jiricek was not certain whether he had taken the hearing test before or after his interview with Gary Ewing and his physical examination at the Company. Jiricek acknowledged that he did not recall at the hearing what he had done with the slip of paper that he had received after taking the hearing test the Company alleged that he did not return that slip to the Company . In view of his uncertainty, I find he did not return it. Jiricek said that he was disciplined only once while he worked for the Company. That had occurred in Febru- ary or March 1980 when he and about 150 other em- ployees left the table and were suspended for 2 weeks. That action was the subject of an unfair labor practice charge which was settled . Jiricek said that he received 2 weeks' backpay , and that the suspension was supposed to have been removed from his file. General Counsel 's Exhibit 209(d) indicates that Jiricek had one absence in 1980; one absence in 1979 ; five ab- sences in 1978 ; and two absences in 1977. In the opinion of Jiricek, he did not have any physical or health problems which would have prevented him from performing work at the Company. He had a pinched nerve injury in 1978 at the Company, but he said he did not miss work because of it . He also said that it had not affected his ability to lift weights . Jiricek said that he had carried bundles of roofing weighing about 80 pounds at the time that he testified at the hearing in this proceeding on 18 May 1984. In assessing the credibility of Jiricek , I have consid- ered his testimony regarding his employment status since the plant closed in March 1980 . At the hearing, Jiricek said he had been self-employed and has performed roof- ing and concrete work . On his Monfort application for employment , Jiricek had stated that he had been unem- ployed since March 1980 (see G .C. Exh. 209(b).) At the hearing Jiricek said that he had done so: "Because at the time there wasn't that much work ." On General Coun- sel's Exhibit 209(e), the document lists his most recent employer as Doty Construction . He acknowledged that he had been a part -time employee of Doty Construction between March 1980 and December 1982. Doty Con- struction is owned by Bob Doty who formerly was a chief steward at the Company . At the hearing , Jiricek explained that he had omitted that fact : "Because we didn't work that much . He didn 't have that much work." Jiricek testified that he had told Ewing during his em- ployment interview that he was self-employed in roofing and concrete work, but that he also was working with Doty Construction on a part -time basis.'00 James Luttrell was employed by the Respondent from 1 June 1960 until 28 March 1980 . For about 10 years before the end of his employment with the Company, Luttrell worked as a utility man in the cooler depart- ment. There were 9 or 10 different jobs in the cooler de- partment , and Luttrell knew how to perform all of them. He was a member of the Charging Party during his em- ployment with the Company, and he had served as a union steward in the cooler department off and on for about 20 years. Luttrell filed two Monfort applications for employ- ment on 26 January and on 17 March 1982 . Luttrell said that he was not contacted by the Company for an inter- view or medical examination . However , sometime after 17 March 1982 Luttrell telephoned the Company and spoke with Gary Ewing . Luttrell asked Ewing what was going on with regard to Luttrell 's application. According to Luttrell, Ewing told him: "It's in the shuffle some- where, but I don't know where. Luttrell said that he did not receive any disciplinary actions during his employment with the Company. Lut- trell described his attendance record as being "pretty good." Luttrell had bursitis in his shoulder on one occa- sion about 15 years prior to the time that Luttrell testi- fied at the hearing on 3 April 1984 . Luttrell was treated for bursitis at the Company, and he had seen a physician with regard to that problem. About 1979 Luttrell pulled a muscle in his back while he was at work. He was off from work on two occa- sions. One such occasion was for about 28 days, and the second occasion was for about 12 days. When Luttrell returned to work on both occasions , he resumed per- forming the job of utility man in the cooler department. He said that he was able to perform his assigned duties without any medical restriction . Luttrell acknowledged 99 The foregoing paragraphs are based on the credited testimony of Hager and documentary evidence. 100 The foregoing paragraphs are based on the credited testimony of Jincek and documentary evidence MONFORT OF COLORADO 125 at the hearing that he had complained to supervisors about his back problem; that he had seen the Company's nurse; and that the Company had referred him to a phy- sician. About 6 or 8 months after he had returned to work on the second occasion, the Greeley plant closed. Luttrell said that he had not sustained any permanent disability as a result of his back injury; that the doctor had not told him that he had a degenerative disc; and that he was not under any medical restriction at the time he testified; and that there had not been any recurrence of his back problem. General Counsel's Exhibit 231 re- vealed that Luttrell did have a degenerative disc, back problems, and bursitis. Luttrell was not employed from 28 March 1980 until sometime after he had filed his second application for employment with the Company on 17 March 1982. Since that time he has performed janitorial work at Ames Col- lege and for School District 6 in Greeley. Luttrell volun- tarily quit the Ames, College job in order to accept a higher paying job with the school district.'01 Lonny Owen Murphy was employed by the Company at its Greeley plant from 1970 to 1980. Murphy primarily worked at various jobs in the beef kill department, but he also did some work in the fabrication department, hamburger department, and shipping department. Murphy was an assistant union steward in the beef kill department. Murphy submitted a Monfort application for employ- ment in January 1982 at the church. Murphy was not contacted by the Job Service for an interview. Murphy said that he did not receive any discipline while he was employed by the Respondent. He said that he was never late for work, and that he was absent only because of injuries. He acknowledged at the hearing that he had missed 2 days of work because of cutting his thumb in October or November 1979. He also acknowl- edged that in November 1979 he had slipped and cracked his tailbone. He said that he had cut his arm on different occasions at the plant, and that he had hurt his heel in either 1974 or 1975. General Counsel's Exhibit 268 revealed that Murphy had been treated in February 1979 for a nonwork injury which caused Murphy to have a sore back in the lower rib area. It was determined at that time that Murphy had suffered a bid bruise. Gen- eral Counsel's Exhibit 268 also revealed that in June 1979 Murphy was seen for pain in his right hip. Murphy ad- vised the health service that the pain had occurred off and on since 1976.1.0 2 Juluis Pfeifer worked for the Respondent from 28 Feb- ruary 1968 until the Greeley plant closed. Pfeifer worked mainly in the fabrication department. Pfeifer was a union steward in that department for about a year prior to the closing of the Greeley plant. In September 1980 Pfeifer went to talk to Meakins at the Company's corporate office. Pfeifer asked Meakins for a job recommendation. Meakins told Pfeifer on that occasion that he would be glad to do so because Pfeifer 'ol The foregoing paragraphs are based on the credited testimony of Luttrell and documentary evidence. always was a good employee. Pfeifer later was hired that month by Sterling Beef. Pfeifer filled out a Monfort application for employ- ment in January 1982 at the church. Pfeifer went to the Greeley plant on 12 March 1982 where he had a conver- sation with Gary Ewing. Pfeifer asked whether there was a chance of his getting a job, and he asked what had happened to his application. Ewing told Pfeifer that the Job Service was handling all of that, and the Company was not hiring anyone at the plant. Pfeifer thereafter did not receive any contact from the Job Service or from the Company. The Respondent did hire Pfeifer's wife. Pfeifer's understanding was that a letter he had re- ceived for advising another employee regarding leaving work was to be removed from Pfeifer's personnel file. He said a grievance was filed regarding his receipt of that letter. General Counsel's Exhibit 303(e) is dated 6 July 1979, and it said that the Company was going to amend the letter given to Pfeifer. However, still another grievance was filed with regard to General Counsel's Exhibit 303(e). A settlement was reached whereby the letter was to be considered an "incident report" rather than a warning. Pfeifer received another letter for taking a restroom break before being relieved from his work station. (See G.C. Exh. 303(g).) Pfeifer said that he had told the Com- pany that he had waited a half an hour after requesting to be relieved from his work station. Pfeifer did not file a grievance regarding the letter. The Respondent acknowledged on Respondent's Ex- hibit 194(a) that it had been in error in not rehiring Pfeifer. 103 Valentine Rodriguez was employed by the Respondent from 24 November 1972 until 23 March 1980. During that period of time, he worked in lamb fabrication, kill floor, offal beef fabrication, shipping, and box storage. Rodriguez filed a Monfort application for employment in January 1982 at the church. Rodriguez was called later for an interview at the Company. He was given a physical examination at the Company, and Conklin made an appointment for Rodriguez to see Dr. Groves. On 11 March 1982 Rodriguez visited Dr. Groves who did not examine Rodriguez, but instead looked at Rodri- guez' medical records from Dr. Rome who had per- formed surgery on Rodriguez' back in 1978. Rodriguez said at the hearing that Dr. Rome's office was across the hall from Dr. Groves' office, but Dr. Groves did not talk to Dr. Rome while Rodriguez was in Dr. Groves' office. Dr. Groves informed Rodriguez that he could not do any more heavy lifting, and that Rodriguez could not work for Monfort. Rodriguez told Dr., Groves that he could go back and perform his job. Dr. Groves replied no that Rodriguez could not, and he could not do heavy lifting. Rodriguez told Dr. Groves that he needed a job. Dr. Groves replied that that was Rodriguez' problem. Rodriguez did not hear anything further from the Com- pany. 102 The foregoing paragraphs are based on the credited testimony of 109 The foregoing paragraphs are based on the credited testimony of Murphy and on documentary evidence. Pfeifer and documentary evidence. 126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Rodriguez explained at the hearing that he had knee surgery in 1970 and back surgery in 1957 prior to the time that he began working for the Company in 1972. Rodriguez also had surgery on his back around 20 June 1978 while he was employed by the Company. He re- turned to work for the Company in September 1978. Ro- driguez was placed on light duty work until around De- cember 1978 . He returned at that time to the job of stacking boxes which he had performed prior to his back operation. Rodriguez continued to perform that job until the end of his employment in March 1980 . That job had involved lifting boxes which varied in weight from 40 pounds to as much as 140 pounds . After his employment with the Company had ended in March 1980 , Rodriguez has performed work involving the lifting of truck tires and the loading and unloading of boxes of tar on the trucks. In late 1981 Rodriguez had an infection which was not correctly diagnosed and which resulted in his having an appendectomy . He acknowledged at the hearing that he had experienced pain in his back since he injured his back in 1955 or 1956 . General Counsel 's Exhibit 336 re- vealed that there was a restriction placed on Rodriguez for lifting over 40 pounds , and that Rodriguez had a his- tory of back surgery from 1957 to 1978 ; knee surgery in 1970; and moderate but controlled diabetes. General Counsel 's Exhibit 336(c) revealed that Rodri- guez had the following absence record at the Company: two absences in 1977 ; one absence in 1978 ; and no ab- sences in 1979 and 1980 . There was no record of any dis- ciplinary action taken against Rodriguez.104 Dennis Roth began working for the Respondent in either 1970 or 1971 . Roth worked for the Company for about 7-1/2 years at the Greeley plant. During his first 3 years of employment there, he was moved around the plant; then he worked in the fabrication department; and finally he worked in the "pack -off area." Roth did not file a Monfort application for employ- ment. Roth acknowledged at the hearing that he was aware in January 1982 that the Company was taking ap- plications at that time . However, Roth did not apply be- cause he was working elsewhere . General Counsel's Ex- hibit 453 is a copy of a form letter dated 10 February 1982 which was sent to the Company to show Roth's in- terest in employment . He received a copy of General Counsel 's Exhibit 21 but he did not receive a copy of General Counsel 's Exhibit 67.105 Manuel M . Salazar Jr . worked for the Respondent from 2 March 1970 until 21 March 1980 . At the time the Greeley plant closed , Salazar was working as a utility man in the hamburger department. Salazar did not file a Monfort application for employ- ment . He acknowledged at the hearing that he had read in the newspaper that the Company would be taking ap- plications in January 1982 . However, Salazar did not file an application . He sent a form letter like General Coun- sel's Exhibit 451 to the Company to express his interest 104 The foregoing paragraphs are based on the credited testimony of Rodriguez and documentary evidence. 105 The foregoing paragraphs are based on the credited testimony of Roth and documentary evidence. in employment . He received a copy of General Counsel's Exhibit 21 , but he did not receive a copy of General Counsel's Exhibit 67. At the time that he testified at the hearing on 13 June 1984, Salazar's brother , uncle, and nephew were em- ployed by the Respondent. Salazar received a letter from the Company regarding horseplay around 1976 . Since 1974 Salazar has had ar- thritis, but he was able to perform his job at the Compa- ny.106 Raymond L . Swanson worked for the Company from 8 April 1964 to around December 1979. Most of the time he worked in sheep kill . Swanson also worked in beef kill, the fabrication department, hamburger room, the hide cellar, and in the inedible department. From time to time during his employment with the Company, Swanson substituted as a union steward when the steward was not there . The last time that he substi- tuted for the steward was around the middle of 1979. In a prehearing affidavit , Swanson had stated that he was not a steward or picket captain . However, Swanson ex- plained at the hearing that he had told the NLRB agent that he had substituted as a steward, but the NLRB agent told him it did not make any difference because he had not been elected to be a steward . Thus, Swanson said the NLRB agent omitted that from Swanson 's affi- davit. In December 1979 Swanson received a letter from the Company which stated that he was terminated for strike- related misconduct . He received his profit -sharing check with that letter . His termination by the Company was the subject of an unfair labor practice charge. As a result, Swanson received backpay , and he was informed that the strike -related misconduct with which he had been charged was removed from his'personnel record. Swanson learned through the newspaper and through the Union that the Respondent was planning to reopen the Greeley packing plant in 1982. At a union meeting attended by former employees of the Company, Ron Bush told them that, if they wanted , to go back to work for the Company, they should fill out an application at the church. Swanson said that other union representa- tives also said that at union meetings . Swanson filed a Monfort application for employment in January 1982 at the church. He also sent the Company a form letter indi- cating his interest in employment. While Swanson was standing in line at the church to file a Monfort application for employment , he had a brief conversation with Gary Ewing. Swanson greeted Ewing and asked Ewing how he was doing . Ewing also greeted Swanson and also asked him how he was doing. Swan- son replied that he had put in an application for a job. According to Swanson, Ewing told him , "You're wast- ing your time , Ray." That was the end of their conversa- tion on that occasion. Swanson said that he had given , one prehearing affida- vit to a NLRB agent subsequent to January 1982. That affidavit was given on 28 July 1983, and it pertained to 106 The foregoing paragraphs are based on the credited testimony of Salazar and documentary evidence MONFORT OF COLORADO 127 the events at a union meeting at the Holiday Inn on 22 June 1983, rather than the events in January 1982. (See R. Exh. 111.) Thus, that affidavit did not reflect Swan- son's brief conversation with Ewing in January 1982. Swanson acknowledged during cross-examination that he did not consider Ewing's statement to him to be a threat. 3.07 Swanson again applied for employment at the Compa- ny by filling out a Monfort application for employment at the 4-H Building at the Island Grove Park. Thereafter, Swanson was not called in for an interview regarding his employment applications, nor was he given a physical examination. Swanson did not hear anything from the Company, and he was not rehired.108 Jose Varela's first period of employment with the Re- spondent was from August 1974 through March 1980. During the last 6 months of his first period of employ- ment, Varela worked as a chuck boner in the fabrication department, and during the last 2 months of that employ- ment, he also performed the job of "pulling clods." Varela filed a Monfort application for employment in January 1982 at the church. (See G.C. Exh. 36(a).) Sub- sequently, Varela was interviewed at the Company's office by Gary Ewing for 3 to 5 minutes, and then Ewing sent Varela to another company personnel office where he was interviewed by a female for about 5 min- utes. Neither Ewing nor the female in the other office asked Varela any questions about his attendance record or his past disciplinary record. They also did not ask him any questions about any medical problems that he might have had. At the hearing, Varela at first did not remem- ber having signed an authorization release form during his interview. However, after he was shown Respond- ent's Exhibit 15, he acknowledged his signature on that authorization release form. Afterwards, Varela was sent to the company nurses' office, and later he was given a physical examination. About a week after his interviews at the Company, Varela was rehired by the Company on 17 May 1982. He was assigned to the job of pulling clods, which was one of the jobs Varela had performed when he was previous- ly employed by the Company. Varela said at the hearing that he knew how to perform that job, so he did not have to learn how to do the job. However, he said he needed to condition his arms and hands for doing that type of work. Varela worked in that job for about 7 months. General Counsel's Exhibit 391 confirmed that Varela did not meet the Company's hiring criteria for absentee- ism before that criteria was changed in May 1982.109 As noted earlier, 70 of the 336 alleged discriminatees in Case 27-CA-7742 did not file a Monfort application for employment. Eight of those 70 have been discussed above because they testified at the hearing in this pro- ceeding. They were Charles B. Baird, Bob Bray, Billy John Channel, Robert Doty, Frank Guerrero, Pete Guerrero, Dennis Roth, and Manuel M. Salazar Jr. The names of the other alleged discriminatees who did not file a Monfort application for employment were:11 ° Ro- gelio Arellano, Richard Bejaramo, Eddie Benavidez, Lloyd Burbach, Roger Burgess , Angel Carrillo, Larry Corralez, Guy Deffke, Ernest Derrera, Richard Allegos, Enrique Garcia, Ernest Garcia, Lee Garcia, Lyonel Garcia, Porfirio Garcia Sr., Paul Gobster, Joe I. Gutier- rez, David M. Hernandez, Henry Hernandez, Roger G. Holmes, Loretta Kluksdal, Conrad Loos, Robert Lopez, Tony Lopez, Charles Lucio, Alcario Lujan, Juan Maltos, Conrad Meyer, Robert Molina, Donald Morse, Oscar Moyano, Juan Mutuberria, Jose G. Nevarez, Kenneth L. Nickels, Marvin Ogden, Manuel Orono, Ronald Ortega, Uvaldo Ortegon, Lee Pacheco, Samuel Padilla, Theresa Palacios, Jose Perez, Manuel T. Quintona, Dallas Rails- back, Adrian Ramirez, Lawrence Rea, Ahmed Refaat, Leo Rivera, Federico Rodriguez, Gilbert Salazar, Gerald Scheller, Percy Schranh, Herman Sedillo, Patrick So- beski, Anthony Stoll, Stanley Suichta, Dan Trujillo, R. J. Walker, Thomas Webster, Patricia White Lucas, Cecil Ybarra, and Joe M. Yriarte. Of the 51 former employees who were rehired by the Respondent, but who the General Counsel alleged should have been hired earlier, 15 of them were rehired in error because they did not meet the Respondent's hiring criteria. They were: it l Gerald E. Aragon, Arthur Benavidez, Lewis Brown, Ronald Fritzler, Natividad Hernandez, Cruz Moncivais, Glenn Nigg, Rogendo Oliva, Victor Padilla, Florencio Perez, Tony Perez, Manuel Salazar, Eloy Salinas, Jose D. Trujillo, and Jim Tulk. Of the 51 former employees who were rehired by the Respondent, but who the General Counsel alleged should have been hired earlier, 11 of them were rehired after the change was made in May 1982 with regard to the hiring criteria for attendance. Previously, they did not meet the attendance criteria. They were:112 Benja- min Fink, Jesus M. Hernandez, Abel Martinez, Joe Rangel, Henry Rodriguez Jr., Jim J. Romero, Jesus Sala- zar, Santos Sanchez, Jose Varela, Eddie Vialpando, and Guadalupe Ybarra. Of the 51 former employees who were rehired by the Respondent, but who the General Counsel alleged should have been hired earlier, Albert F. Sinner was re- hired on 15 March 1982; 14 were rehired in April 1982; 4 were rehired in May 1982; and I was rehired on 1 June 1982.113 Those rehired in April 1982 were: Pete Antuna Jr.,,_ Paulin Cruz, Juan Indacochea, Pedro Moreno, Alvie Moser, Javier Orozco, Elsayed Rizk, Abel Rodri- guez, Eutemio, Scmchez Jr., Ronald Schlotthauer, Donald Sewald, D. R. Swanstrom, Peter Wallman, and Alice Wright. 10 7 It is not alleged in the General Counsel's complaints that the fore- going constitutes a violation of Sec. 8 (a)(1) of the Act. 106 The foregoing paragraphs are based on the credited testimony of Swanson and documentary evidence 109 The foregoing paragraphs are based on the credited testimony of Varela and documentary evidence. u0 The foregoing and the following findings of fact are based on doc- umentary evidence. 3 13 The following findings of fact are based on documentary evidence 512 The foregoing and the following findings of fact are based on doc- umentary evidence Its The foregoing and the following findings of fact are based on doc- umentary evidence. 128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Those rehired in May 1982 were: Lupe Antuna, Rudy Aragon, Ignacio R. Holguin, and Frank M. Lewis. Harold Held was rehired on 1 June 1982. Conklin said that Held had carpal tunnel syndrome, but he was hired by the Company. Held was referred to the company doctor for examination . The company doctor determined that Held had no carpal tunnel syndrome symptoms at the time he was examined. Conklin also said at the hear- ing that Held told her he had been doing heavy work since he had left the Company, and that he had no symp- tom of carpal tunnel syndrome. After Held was rehired by the Company, his symptoms flared up about 3 or 4 weeks later, and his employment at the Company ended at that time.114 Of the 51 employees in this group, the Respondent was advised that three of them were no longer interested in employment, but after those 3 former 'employees filed another Monfort application for employment, the Re- spondent rehired them. They were: Anthony Flores, Mike Lujan, and Jimmy G. Rulz. Similarly, Edward Sa- lazar declined an interview for employment; then he called back later and asked for an interview; and the Re- spondent rehired him. Finally, Pete Chavez was hired for maintenance work, as distinguished from production work because he had not met the production hiring crite- ria because of discipline. 115 Respondent acknowledged in Respondent's Exhibit 194(a) and (b) that the Respondent was in error in not rehiring five former employees. They were: Michael Cervantes, who had filed Monfort applications for em- ployment on 15 July 1982 and 14 February 1983; Vince Chacon, who had filed a Monfort application for em- ployment on 26 January 1982; Friedhold Goehring, who had filed a Monfort application for employment on 24 May 1982; Arnulfo Hernandez, who had filed an undated Monfort application for employment and another Mon- fort application for employment on 7 September 1982; Juluis Pfeifer, who had filed a Monfort application for employment on 26 January 1982.116 After examining the documentary evidence and con- sidering the testimony regarding those alleged to be dis- criminatees in Case 27-CA-7742, I find that the Re- spondent has presented evidence which established that the persons named in the following categories did not meet the Respondent's nondiscriminatory hiring crite- ria.117 Those alleged discriminatees who did not meet the Re- spondent's hiring criteria for absenteeism (absences and/or tardiness) were: Cruz Alarcon, Jim Albert, James Alcaraz, Michael A. Alirez, Alfred Antuna, Arthur Aragon, Steve Archuleta, Edward Barnhardt, Adam Baros, John Benavidez, Davis Bomar, James Bravo, Florentino Chacon, Steve Chacon Jr., Tommy A. Chavez, Johnny Cisneros, Betty Clarkson, Florentino Cornejo, Michael Cornejo, Lucy Cruz, Victor Cruz, 114 The foregoing is based on the credited testimony of Conklin. 115 The foregoing findings of fact are based on documentary evidence. '16 The foregoing findings of fact are based on documentary evidence. 117 The findings of fact which will follow are based primarily on doc- umentary evidence , and where some testimony was in conflict with the documentary evidence, I accepted the documentary evidence as being true and did not credit the conflicting testimony. David Dickinson, Gary Dilka, Harold Dixon, Beona (Hernandez) Duvall, Jacob Esquibel, Harold Farmer, Louis Galindo, Joe A. Gallegos, Aniseto Gomez, Ronnie Gonzales, Katherine Griffin, Clemente Gutierrez, Hazel Gutierrez, Edward Ide, Mark A. King, Fred Lucero, Larry Lujan, Rose Marie Madone, Leroy J. Maldonado, Anthony L. Martinez, Cipriano B. Martinez, Joe T. Mar- tinez, George D. Meads, Alex Medina, Esteban Mendo- za, Charles Mills, Pat Montano, Benito Montoya, John Mullins, Gilbert Natinidad, Alex Orozco, Ramon Orozco, David Ortega, Jose Paliclos, Victor Palomino, Philberg Pargas, Richard Pulver, Archie Quintana, Dion- icio Rabago, Troy Redfern, Bruce Reed, Adam Rodri- guez, Benjamin Rodriguez, Richard Romero, Victor Romero, Abel Salazar, Arthur Salazar, John Salazar, Elodia Samaniego, Roberto Samaniego, Danny Sanchez, Sam Sandoval, Richard Schumacher, Robert Segura, Teofilo Serna, Jessie Siria, Raymond L. Swanson, Wil- ford Talmadge, Ronald Tucker, Robert Valensuela, George Vigil, John Vigil, Marshall Vigil, Jesus Villan- ueva, Richard Waits, Don Weingardt, Don Westerrman, Eligio Zamora, and Jesse Zamora. Those alleged discriminatees who did not meet the Re- spondent's hiring criteria for discipline (written discipli- nary action or discharge for cause) were: William Cohea, Jack Cooper, Jerry Cox, William Duvall, Timothy Ga- valdon, James Hager, Ronald Hernandez, Rexann Kester, Lupe Lopez, Samuel Maldonado, Alfred Pargas, Phillip Rodarte, Andy Sanchez, David Schwartz, James Spohr, Richard Villareal, and George Ziemer. Those alleged discriminatees who did not meet the Re- spondent's hiring criteria for medical reasons were: Joe Antuna, Pete Antuna, Gilbert Boos, Mike Chacon, Donald Cox, Susana Cruz, Antonio Guerrero, Norman Jakel, Billy J. Lewis, Alfonso Lujan, James E. Luttrell, Jim W. Malick, Leroy Mandez, Mary A. Mestas, Frank Miller, Darlene Moore, Lonny Owen Murphy, Steven Obenbaugh, Ygnacio Palos, Henry Pargas , Lupe Perez, Felipe Ramirez, Valentine Rodriguez, Leonhard Rosin, Jose Salazar, and Homer Showers. Conklin said that former employee and alleged discri- minatee Richard Tallman was screened out because his health services' records during his earlier company em- ployment showed that Tallman had a serious cardiac condition and had suffered heart attacks. Conklin said that Tallman subsequently had died as the result of still another heart attack.' 18 - Those alleged discriminatees who did not meet more than one of the Respondent's hiring criteria were: Mary Archuleta (absenteeism and discipline), Dennis Burson (discipline and medical), Harold B. Channel (absenteeism and discipline), Justus Drake (attendance and discipline), Samuel Faulkner (absenteeism and medical), Rito Gal- lardo (only clerical work and medical), Patrick Gallegos (absenteeism and discipline), Manuel Gaona (discipline and worked for DuBois), Harry J. Gerlack (absenteeism and discipline), Larry Hendrickson (absenteeism and dis- cipline), Edward Jiminez (absenteeism and discipline), Kevin Keberlein (absenteeism and discipline), Bobby F. 118 The foregoing is based on the credited testimony of Conklin. MONFORT OF COLORADO 129 Lewis (absenteeism and discipline ), Johnny Lopez (ab- senteeism, discipline, and medical), Felix Lucero (absen-` teeism and discipline), John Maldonado -(absenteeism and discipline) Anita M . Marquez (absenteeism and medical), Bobby L . Meads (absenteeism and discipline), Allen J. Orback (absenteeism and discipline), Fred Quintara (ab- senteeism and discipline), Daniel Raisley (absenteeism and discipline), Antonio Rangel (absenteeism and medi- cal), Valentine Renner (absenteeism and medical), Jose Salas (absenteeism nd discipline), Daniel Salazar (absen- teeism and discipline), Rodney Sisneros (absenteeism and discipline), Antonio Villanueva (absenteeism and medi- cal), and Margarito Villanueva (absenteeism and disci- pline). After examining the documentary evidence and con- sidering the testimony regarding the remaining alleged discriminatees in Case 27-CA-7742, I find that the Re- spondent has presented evidence which established that the persons named in these last two categories indicated, by their actions , or inactions, that they were no longer interested in employment with the Respondent, or that there were other reasons for not rehiring them." 19 Those alleged discriminatees who indicated by their actions, or inactions, that they were no longer interested in employment with the Company were: Harvey Acosta, Rodolfo Arizmendi, Raymond Blevins , Margaret L. Chavez, Ernie Cordova, Brian Cosper , Johnny Cruz Jr., Robert Cruz, Sam Esparza, Florentino Flores, Rosendo Flores, Vidal Flores , Arthur Fogle , Ricky B. Frick, Dan Glines, George Gow , Robert Grott, James R . Jiricek, Allen Krieger, Mary Lou Luna, Frank Maestas Jr., Eddie Maltos , Antonio Martinez , Gilbert Martinez, Marvin Middleton, Boniface Mirelez , Robert Norris, Shirley Pearce , Lester Poush , Frank Reedy, Aureliano Rincones , Albert Robinson, Jimmy Ruiz, Valentin San- chez, Dan Trujillo, Joe Urioste , and Thomas Ybarra. Those alleged discriminatees who were not rehired by the Company for other reasons were: Myron Adams ("more interested in maintenance"), William Agens (maintenance), Ignacio Alvarado (did not show up for work), Richard Delgado (did not show up for work), Regino Diaz (refused to work on ,Saturdays ), Salvador Guarardo '(did not appear for physical exam), David Lira (worked , at Company's portion foods facility and did not request a transfer), Manuel Natividad (working for com- pany subcontractor DuBois), Reynaldo Olivo (hired on 19 May 1982 and quit same day before starting work), Ernest Rodriguez (could not contact), and John Weimer (worked at the Company 's portion foods facility and did not request a transfer). With regard to alleged discriminatee Tom P . Chavez Jr., the Respondent asserted that he was rehired on 1 March 1982 when the Greeley plant first reopened. Re- spondent 's Exhibit 193 also listed him on the names of production employees employed at the Greeley plant as of 25 March 1982. 119 The findings of fact which will follow are based primarily on doc- umentary evidence , and where some testimony was in conflict with the documentary evidence , I accepted the documentary evidence and did not credit the conflicting testimony With regard to alleged discriminatee, Jesse C. Garcia, the Respondent asserted that he was hired in error on 10 May 1982, although he did not meet the hiring criteria. General Counsel 's Exhibit 3(z) and General Counsel's Exhibit 76 listed him with the middle initial of "L." Gen- eral Counsel 's Exhibit 172 showed that he signed his name as "Jesse C. Garcia." Joe M . Sanchez is listed on General Counsel 's Exhibit 3(z), as amended by General Counsel's Exhibit 65, as an alleged discriminatee in Case 21 -CA-7742. However, Sanchez is not on the list of alleged discriminatees con- tained in General Counsel 's Exhibit 76. 1 did not find evidence to support a finding with regard to Joe Al. San- chez.120 C. Conclusions I conclude that the General Counsel has presented evi- dence which established a prima facie case with regard to the group of 336 alleged discriminatees in Case 27- CA-7742. That group of alleged discriminatees previous- ly had been represented for many years by the Charging Party Union when they had worked for the Company prior to the closure of the Greeley plant in March 1980. I conclude that the Company had knowledge that its former employees had been members of the Charging Party Union and had participated in the 1979 strike against the Respondent . I also conclude from the docu- mentary evidence that in some cases the Respondent had knowledge of who the union stewards were during the time prior to the closure of the Greeley plant . I further conclude that the evidence presented in this proceeding established that the Respondent is hostile to the Charg- ing Party Union and has opposed the efforts of its em- ployees to select the Charging Party Union as their col- lective-bargaining ' representative. Statements attributed to the Respondent in this proceeding , and the unfair labor practices found in this decision, together with the earlier findings in ' the Board decision which has been ju- dicially noticed , reflect the Respondent's hostility to- wards the Charging Party Union . In view of the forego- ing, I conclude as noted above that the General Counsel has presented evidence which established a prima facie case of a violation of Section 8(a)(1) and (3) with regard to the group of alleged discriminatees . The Board held in its decision in Wright Line, 251 NLRB 1083 , 1089 (1980): First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's' decision . Once this is es- tablished , the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. [Footnote omitted.] To analyze the situation presented in this proceeding, it is helpful to consider that this situation is distinguish- able from the following factual situations . This is not a strike situation where a collective-bargaining reprresenta- 120 The findings of fact in the foregoing paragraphs are based on docu- mentary evidence. 130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tive makes an unconditional offer to return to work on behalf of all of the strikers. Also, it is not a successorship situation, where one company succeeds to the ongoing business of another company. In addition, it is not a situ- ation where a company temporarily has laid off some employees from work, and subsequently has an increased workload which warrants the recall to work of the em- ployees from a temporary layoff. The General Counsel's theory in this proceeding is that a former employee of the Company is a person who was employed by the Company up to the start of the strike in November 1979, or until sometime thereafter, until the plant closed in March 1980, and who either filed a Monfort application for employment or who applied through the Union, and was not rehired by the Company in March 1982, or was rehired sometime later by the Company. The Respond- ent defines former employees in-this proceeding as being those employees who were employed by the Company at the time the Greeley plant closed on 31 March 1980. The Respondent does not include in that definition employees of the Company whose employment terminated prior to that time, such as an employee who voluntarily quit or who was discharged for cause. The Union takes the posi- tion that all of the former employees have been discrimi- nated against and should be encompassed within any relief granted in this proceeding. I conclude that the Re- spondent's obligation here was to consider all applicants for employment of a nondiscriminatory basis , whether the applicants previously had worked at one time for the Company, or whether the applicants had never worked previously for the Company. I further conclude that the former employees of the Company were not entitled under the Act to preferential consideration and preferen- tial treatment. The former employees were not former unfair labor practice strikers or economic strikers. Their collective-bargaining rights to recall had expired. They were not employees of a predecessor company in a busi- ness enterprise being continued by a successor employer. Thus, I conclude that all of the alleged discriminatees in the group in Case 27-CA-7742 had the right to be con- sidered for rehire by the Respondent on a nondiscrimina- tory basis, but not on a preferential rehire basis. I considered the Board's decision in Mason City Dressed Beef, 231 NLRB 735 (1977). That case involved a successorship situation. The administrative law judge in that case found (at 747): The Respondents' witnesses effectively concede that the decision not to rehire IBP employees was taken because the presence on their payroll of union adherents formerly covered by the IBP contract would serve to support a successorship claim being pressed by the union. Thus, I conclude that the Mason City Dressed Beef case is distinguishable from the present one because Mason City Dressed Beef involved the respondent's desire to avoid a successorship claim. I also have considered the Board 's decision in Rushton & Mercier Woodworking Co., 203 NLRB 123 (1973). I also found that case to be distinguishable from the present one. In Rushton & Mercier, only about 4 months elapsed between the shutdown of the plant and the re- sumption of production of store fixtures at the same plant by a wholly owned subsidiary of the parent corporation formed specifically for that purpose. When the plant re- opened, the respondent in that case failed to recall any of the laid-off employees who had been represented by the Carpenters Union. Instead, the respondent hired a new work force, and the respondent promptly recognized an- other union as their collective-bargaining representative and entered into a contract with that union. The Board found a violation of Section 8(a)(2) of the Act by the re- spondent's doing so, and the Board found a violation of Section 8(a)(3) of the Act by the respondent's rehiring of laid-off employees as new employees only after the 8(a)(2) union had been recognized. Also in that case, the respondent had failed to show a justification for its fail- ure to recall the laid-off employees. I also have considered the Board's decision in Inland Container Corp., 275 NLRB 378 (1985). I also found that case to be distinguishable from the present one. In that case the employer excluded applicants who had prior corrugated box-making experience, and the employer in that case had as one of its hiring criteria that an appli- cant have a demonstrated willingness to work in a non- union environment. Those circumstances are not present in the instant case. I have also given consideration to the Board's decision in Spencer Foods, Inc., 268 NLRB 483 (1984), and the opinion of the United States Court of Appeals for the District of Columbia Circuit enforcing the Board's order in part, and remanding it, in part, with regard to the 8(a)(5) allegations. Unlike the present case, the employer in the Spencer Foods case had an "anti-nepotism rule" which was found to be a discriminatory hiring criteria. In the Spencer Foods case, the former employees were judged solely on their prior employment records-with the previous employer. In the present proceeding, former employees were also judged on their interim employment after the Greeley plant closed in March 1980 if the appli- cants had such interim employment. Thus, the Respond- ent in the present case did not judge its former'employ- ees solely and exclusively on their past employment records with the Respondent if the former employees had interim employment. Further, I note that in the Spencer Foods case the Board held at 1486 fn. 10, in part: [W]e do not find fault with an employer's use of former employees' personnel files. Rather, we find that the Respondent subjected former employee ap- plicants to a greater degree of scrutiny than new applicants. It is this disparate treatment which we find violative of Sec. 8(a)(3). The parties also have cited many other cases in their posthearing briefs, and I have considered them. The comments regarding the foregoing cases should not be taken as an indication that the other citations have not been considered. As indicated above with regard to the Wright Line de- cision, I should consider whether the Respondent has re- butted the General Counsel's prima facie case with regard to the group of alleged discriminatees by demon- MONFORT OF COLORADO 131 strating that the same action would have taken place even in the absence of the past union membership and activities of the group of alleged discriminatees. The summary which was introduced into evidence as Respondent's Exhibit 195, as revised on 11 December 1984, has been mentioned in sections V and VI of this decision. That summary disclosed, among other things, that 7287 employment applications had been received; that- 369 of those applications were from former employ- ees; and that 160 former employees had been hired by the Company at its Greeley plant. Thus, the percentage of former employees who filed Monfort applications and who were hired by the Company was 43.36 percent at that time. Respondent's Exhibit 195 disclosed that 6918 applications had been received from nonformer employ- ees, and that 2990 nonformer employees had been hired by the Company at its Greeley plant. Thus, the percent- age of nonformer employees who applied and who were hired by the Company was 43.22 percent at that time. Respondent's Exhibit 195 also disclosed that the Re- spondent had hired 79 employees even though the Com- pany had information which would have disqualified them under the Company's hiring criteria. Of those 79 employees in that category, 25 were former employees of the Company, and 54 were nonformer employees. From a statistical standpoint, I conclude those figures make it less probable that the Respondent was discrimin- atorily applying its hiring criteria, when those figures are considered in the context of the total number of applica- tions received and in the context of the relatively small number of applications of former employees as compared to the much larger number of applications of nonformer employees. To explain further, it should be noted that there were a total of 7287 applicants. Considering that large number of applicants and the pressures under which the personnel department worked to meet the staffing requirements especially during the early months of the plant's operation, I conclude the fact that the Re- spondent hired 79 employees, who did not meet the Company's hiring criteria, does not prove that the Com- pany was applying its hiring criteria in a discriminatory manner . While the Respondent's record was not perfect in applying its hiring criteria, the number of , employees hired, who did not meet the hiring criteria, is very small compared to the 7287 applicants. Furthermore, there were 25 former employees hired, who did not meet the Company's hiring criteria, out of a total of 369 former employees who had applied. There were 54 nonformer employees hired, who did not meet the Company's hiring criteria, out of a total of 6918. I conclude that those figures make it less probable that the Respondent was applying its hiring criteria in a disparate manner be- tween former employees and nonformer employees. In other words, the figures indicate that the Respondent did not ignore its hiring criteria, or apply it less strictly with regard to nonformer employees than it did to former em- ployees. I conclude that the evidence does not prove that the Company's requirement that applicants for employment fill out and submit Monfort application forms was dis- criminatory under the circumstances of this case. The Respondent required that application forms be submitted by applicants who had never worked previously for the Company as well as applicants who had worked former- ly for the Company. The planned reopening of the Company's Greeley packing plant was a significant newsworthy event in the Greeley area. The Company advertised in the local newspaper that employment applications would be ac- cepted on 26 and 27 January 1982. I conclude that the evidence shows that a substantial number of the wit- nesses who testified on the subject in this proceeding knew that the Company was going to accept applications in January 1982 at the church. Some read about it in the newspaper, and some heard about it from relatives or friends. I conclude that the Respondent had been a major em- ployer in the Greeley area for a number of years at' that time, and compared to a major population center, such as the greater Denver area, Greeley is relatively small. I conclude under the circumstances that it was common knowledge in the Greeley area that the Company was accepting applications for employment in January and March 1982. I do not accept the testimony of those wit- nesses who claim that they had no such knowledge. For various reasons, certain of the alleged discriminatees, who knew about the taking of employment applications, did not fill out and submit Monfort applications for em- ployment forms in January. There were a variety of rea- sons given for not doing so, but those reasons, whether personal reasons or mistaken belief reasons, were not at- tributable to the Company. I conclude that the Respond- ent cannot be held to have discriminatorily required ap- plicants to file Monfort applications for employment be- cause some persons for personal or other reasons chose not to do so. I conclude that the evidence showed that former em- ployees of the Company were given another opportunity to file Monfort applications for employment on 17 and 18 March 1982 at the 4-H Building in Island Grove Park. That application period was set up exclusively for former employees of the Company. I conclude that the evidence showed that some former employees took advantage of that opportunity and filed Monfort applications for' em- ployment in March 1982. Once again, some of the al- leged discriminatees did not. I recognize the fact that some witnesses testified at the hearing that they did not receive a copy of General Counsel's Exhibit 67. Howev- er, as noted above, Greeley is a relatively small commu- nity, and the Respondent has been a major employer there. The Respondent made an effort by sending out General Counsel's Exhibit 67 to a number of employees about the taking of applications of employment and by informing the Union that it would do so. I conclude that the acceptance of applications from former employees in March 1982 was another' matter of common knowledge in the area. I do not accept the testimony of some wit- nesses who claimed that they had a lack of knowledge of that opportunity to file Monfort applications for employ- ment. I further conclude that since the first or second week in May 1982 the Respondent has accepted through the Job Service Monfort applications for employment from 132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD anyone who wanted to apply for a job. In these circum- stances, I conclude that the evidence does not establish that it was discriminatory for the Respondent to require that an applicant for employment file a Monfort applica- tion. Accordingly, I further conclude that the evidence does not establish a violation of Section 8(a)(1) and (3) of the Act with regard to the 70 alleged discriminatees, who did not file a Monfort application for employment. With regard to the alleged discriminatees in Case 27- CA-7742 who were rehired by the Respondent, but who the General Counsel alleged should have been hired ear- lier, I conclude that the evidence showed that the Re- spondent has rebutted the General Counsel 's prima facie case. Of those alleged discriminatees , some were hired by mistake because they did not meet to the Respond- ent's nondiscriminatory hiring criteria . As noted above, the Respondent made some mistakes in hiring both former employees and nonformer employees, but the sta- tistics do not show that those mistakes constituted a dis- parate application of the hiring criteria . In these circum- stances, I conclude the evidence does not establish that it was discriminatory for the Respondent not to have hired those alleged discriminatees by mistake earlier than it did. Of those alleged discriminatees whom the General Counsel alleged should have been hired earlier , some of them did not meet the Respondent 's hiring criteria for at- tendance prior to the change in the attendance criteria in May 1982 . In these circumstances, I conclude the evi- dence does not establish that it was discriminatory for the Respondent not to have hired these alleged discri- minatees at an earlier time when they did not meet the 'Respondent 's hiring criteria. Of those alleged discriminatees whom the General Counsel alleged should have been hired earlier, some were rehired by the Company in March, April, May, and June 1982 . I conclude that the Respondent has presented evidence regarding the large number of applications that it had received during that period of time; the problems the Respondent had in processing that large number of applications; the continuing increase in the total number of its production employees as production expanded after the plant had reopened on 1 March 1982; and the fact that former employees of the Company were not entitled to preferential treatment over nonformer employees. I have considered the fact that the Respondent already had withdrawn recognition from the Charging Party Union prior to its hiring the alleged discriminatees who were rehired in April, May, and June 1982. However, in the circumstances summarized above , I conclude that the evidence doe's not warrant the drawing of an inference that the Respondent had delayed rehiring those employ- ees. Accordingly, I conclude that it was not discrimina- tory for the Respondent to rehire those alleged discri- minatees when it did. Of the remaining alleged discriminatees whom the General Counsel alleged should have been hired earlier by the Respondent , I conclude that the Respondent has presented evidence with regard to each one to explain the delay in the rehiring of those former employees. I conclude that the evidence does not establish that it was discriminatory for the Respondent to hire those employ- ees when it did. The Respondent acknowledged at the hearing its error in not rehiring: Michael Cervantes, Vince Chacon, Fried- hold Goehring, Arnulfo Hernandez, and Juluis Pfeifer. I conclude with regard to those alleged discriminatees that the Respondent has not rebutted the General Counsel's prima facie case, and that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act in failing to hire each of them after they had filed Monfort applications for employ- ment. The rest of the alleged discriminatees in the group al- leged by the General Counsel in Case 27-CA-7742 were not hired by the Respondent although each one of them had filed a Monfort application for employment. I con- clude that the evidence showed that the Respondent has rebutted the General Counsel's prima facie case with regard to the former employees by showing that those former employees did not meet the Respondent 's nondis- criminatory hiring criteria . In most instances , the former employees did not meet one of the Respondent 's hiring criteria, but in some instances , the former employees did not meet more than one of the criteria. I further con- clude that the evidence showed that some of the former employees were no longer interested in employment with the Company , and that some of them were not rehired by the Company for other nondiscriminatory reasons. In these circumstances , I conclude that the evidence does not establish that the Respondent has discriminated against those alleged discriminatees by failing to rehire them because those alleged discriminatees did not meet the Respondent's nondiscriminatory hiring criteria. I conclude that Respondent has met its burden under the Board's Wright Line decision. Accordingly , I recommend to the Board that the alle- gations in paragraphs XVII(b), XI, XIII, XIV, XV, and XVI of the General Counsel's complaint in Case 27-CA- 7742 be dismissed except as to the Respondent's failure to rehire in 1982 , because of the employees ' past union membership and activities, the following named former company employees after they had filed Monfort appli- cations for employment for production jobs at the Gree- ley plant: Michael Cervantes, Vince Chacon, Friedhold Goehring, Arnulfo Hernandez, and Juluis Pfeifer. VII. THE INDEPENDENT 8 (A) (1) ALLEGATIONS The General Counsel 's allegations of conduct inde- pendently violative of Section 8(a)(1) of the Act are set forth in paragraph V, subparagraphs (a) through (nn), of the General Counsel 's complaint in Case 27-CA-7742. The allegations in some of those subparagraphs were de- leted from the General Counsel 's complaint at the hear- ing and will not be discussed in this decision. A. Paragraphs V(a) and (b) 1. Allegations The General Counsel alleged the following in the in- troductory paragraph of paragraph V: MONFORT OF COLORADO 133 Since on or about October, 1982, and continuing to date, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining and coercing, its employees in the exercise of rights guaranteed in Section 7 of the Act, by the following acts and conduct occurring, except as indicated, at its Greeley, Colorado, meat packing plant:.. . The General Counsel alleged in subparagraphs V(a) and (b) the following: (a) During the latter part of October, 1982, Re- spondent, acting by and through James Finney, threatened its employees with plant closure if the Union came in. (b) During the latter part of October, 1982, Re- spondent, acting by and through James Finney, sug- gested to its employees that they should form their own committee for representation instead of orga- nizing the Union. B. Facts Dana Huff is one of the individual alleged discrimina- tees in this proceeding, and the matters pertaining to the Respondent's termination of Huff will be discussed later in section XII of this decision. James J. Finney had been employed by the Respond- ent for 4-1/2 years at the time he testified at the hearing in this proceeding on 5 September 1984. Finney began his employment at the Company's Grand Island plant. At the request of Superintendent Cecil Foote, Finney trans- ferred in February 1982 from the Company's Grand Island plant to the Company's Greeley plant. Finney was production superintendent in the fabrication department at the Greeley plant from February 1982 until September or October 1983. He then was transferred back to the Company's Grand Island plant where he was employed as a supervisor at the time he testified in this proceeding. While Finney was both a supervisor at Grand Island and a supervisor at Greeley, he received instructions in what is called the TIPS program, which instructs supervisors to avoid making threats, interrogating employees, making promises, and engaging in surveillance. Fipney was told to answer the questions of employees as best as he could.121 Sometime in October 1982, Dana Huff heard Supervi- sor James Finney tell employees on the line that the Union was no good; to stay away from people who were handing out cards; and the Union would close the plant down.122 During the latter part of October 1982, Huff had a conversation with Supervisor Finney in the cafeteria at the plant. Huff had been working on the line when Finney motioned to Huff to follow him. Huff said that 222 The foregoing is based on the credited testimony of Finney. 122 The foregoing is based on the credited testimony of Huff. Finney denied telling Huff that he should stay away from employees handing out union authorization cards The criteria set forth in sec. III of this decision applies throughout this decision. Based on that criteria, I have credited Huff in this instance . It is not alleged in the General Counsel's complaints that the statements in the foregoing paragraph constitute unfair labor practices. he went to the cafeteria with Finney. It was about 9:15 a.m., and it was not Huffs breaktime. Finney told Huff that he liked Huff's work, and he liked Huff. Finney said he wished Huff would not go to another job, and that Huff had a good job on the line. Finney also said if Huff went to another job, Huff's job on the line always would be open for Huff. Finney then told Huff they were going to talk about the Union off the record. Finney told Huff that the Union was no good; that the Union had closed the plant down in 1979; that the Union would close the plant again ; and that this same union was responsible for closing down a lot of other plants. Finney also told Huff that Huff should not be involved. Huff replied that he already was on the or- ganizing committee . Finney then told Huff, "You could organize your own organization," and Finney further said , "You could get a bunch of people together and have your own organization to speak for you and repre- sent you at this plant." Huff replied that he did not think so; that they needed someone that had intelligence, such as Local 7; and that Huff thought Local 7 could repre- sent them better than Huff could or anybody else could. Finney also told Huff that another union would be better than Local 7, and that there were other unions. Huff replied that he thought the one they wanted to rep- resent them, Local 7, had the intelligence and financial ability to represent them in the way they needed to be represented. Huff told Finney that there were "some moral aspects involved," and that they needed the intelli- gence and financial backing to represent them. Huff and Finney spoke for awhile longer, and then Finney told Huff that Huff had given him his position, and Finney had given Huff Finney's position. Finney said that it was time for them to go on a break because it was break- time. 12 3 During cross-examination, Finney acknowledged that he told Huff that whenever there is union involvement, there is always a chance of a strike; for instance when the Union was at the Greeley plant before, the union closed it down; and there was always a chance that could happen again. During cross-examination , Finney acknowledged that in his prehearing affidavit he had said that if Finney were Huff, Finney would rather have the employees organize themselves, and that way they could go to Ken Monfort directly and tell him exactly what they wanted without having to pay $20 a month and without having someone in Chicago doing the represent- ing. I also considered Finney's other testimony on direct examination , but in this instance I have credited Huff's account. 3. Conclusions I conclude that Finney threatened Huff in their con- versation during the latter part of October 1982 that the employees' selection of the Charging Party Union as their collective-bargaining representative would cause the Greeley plant to be closed again, and in the same conversation, Finney suggested to Huff that the employ- lea The foregoing paragraphs are based on the credited testimony of Huff. 134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ees form their own organization to bargain with the Re- spondent instead of selecting the Charging Party Union to represent them. I have considered the fact that the threat by Finney and the suggestion by Finney were made in the same conversation and in the same context, and I conclude the threat taints the suggestion and makes it coercive. The Board held in its decision in Patsy Bee, Inc., 249 NLRB 976 (1980): Gissel does not sanction predictions regarding the consequences of unionization which are based solely on subjective considerations. Under this test, a de- termination of legality or illegality would be virtual- ly impossible. To come within the aegis of Gissel, such predictions must be based on objective facts from which the employer can convey a reasonable belief as to demonstrably probable consequences of unionization. [NLRB. v. Gissel Packing Co., 395 U.S. 575 (1969).] The Board also held in its decision in Crown Cork Seal Co., 255 NLRB 14 (1981): "Respondent is free to com- municate to its employees its beliefs and even its predic- tions if its predictions are based solely on objective facts which convey its belief as to demonstrably probable con- sequences beyond its control." See also the Board's deci- sion in Sans Souci Restaurant, 235 NLRB 604 (1978). I conclude that the evidence supports the General Counsel's allegations in subparagraphs V(a) and (b), and that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act as al- leged. B. Paragraph V(c) 1. Allegations The General Counsel alleged in subparagraph V(c) the following: (c) On or about March 1983, Respondent, acting by and through James Finney, threatened its em- ployees that profit sharing would be lost if the Union came in. 2. Facts At times subsequent to the conversation between Huff and Finney as described in connection with the allega- tions of subparagraphs V(a) and (b) above, Finney ap- proached Huff several times on the line and told him that Huff would lose profit sharing if the Union came in; that Local 7 was responsible for another plant closing; and "that they were going to shut the plant down if we went union." Huff did not recall the specific dates of those conversations. Huff explained at the hearing: "It was like everyday or whenever he came around me." About a week before Huff received a step 4 warning on 20 March 1983, Huff obtained permission to leave his workstation in order to go to the restroom. He went through the locker room on his way to the restroom. As Huff went into the locker room, Huff saw 15 or 20 new trainees there, and a trainer Steve Bright. Huff told the new trainees that they should be told the truth about the Union; what the Union -really stands for; that Huff had cards; that they could come to see Huff after work or at lunch; and that Huff could sign them up and give them more information. Bright told Huff that he had no right to do that, and that Bright was going to go to Huff's foreman. When Huff came out of the restroom, he saw that Bright had gone to Finney. Huff recalled one incident when Finney approached him on the line about 2:30 p.m. and asked if Huff wanted profit sharing. Huff replied yes. Finney told Huff that if the Union came in, Huff was not going to get it. Huff replied that he thought they would, and if they -got a contract, they could put it in the contract. Huff asked Finney if he had been told something by Bright. Finney said no. Subsequently, Finney admitted to Huff that Finney had been told something by Bright, and_ that it was not a very smart thing that Huff had done in the locker room.124 I have considered Finney's testimony which conflicts with Huff's testimony regarding their discussion of profit sharing. In Finney's version, Huff is the one who brought up the subject of profit sharing, and Finney re- plied to Huff that it would be subject to negotiations with the Union if the Union were to get in the plant. I have credited Huff's account in this instance and based the findings of fact on Huff's testimony. 3. Conclusions I conclude that Finney threatened Huff in their con- versations that the employees would lose their profit- sharing benefits if the employees selected a union to rep- resent them. I further conclude that the evidence sup- ports the General Counsel's allegations in subparagraph V(c), and that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act as alleged. (See the conclusions with regard to subparagraphs V(a) and (b) above.) The General Counsel did not allege the threat to close the plant as a violation of the Act in the subsequent conversations, but instead, subparagraph V(c) relates specifically to the loss of profit sharing if the Union came in. With regard to the Respondent's argument regarding subparagraph V(c) at transcript pages 4417-4419, I con- clude that the non-Board private settlement between the parties in Case 27-CA-8401 and the Regional Director's approval of the Charging Party's withdrawal request do not preclude the litigation of the allegations in subpara- graph V(c) in the present proceeding. The reason is that the non-Board private settlement between the parties was not a Board settlement joined in by the General Counsel, and, thus, a private adjustment does not preclude the General Counsel from litigating that 8(a)'(1) allegation in this proceeding. 124 The foregoing paragraphs are based on the credited testimony of Huff. MONFORT OF COLORADO 135 C. Paragraph V(d) 1. Allegations The General Counsel alleged in subparagraph V(d) the following: (d) During the week of June 20, 1983, Respond- ent, acting by and through various fabrication de- partment supervisors, disregarded its work rules by allowing anti-union employees to leave their places of work to engage in anti-union campaigning, while not allowing pro-union employees to leave their places of work. 2. Facts Esther Estrada received a company memorandum with her payroll check sometime prior to the election. The memorandum reviewed several company rules which pertained to things which were not supposed to occur during working time. Eating, yelling, and shouting on the line were included in the items mentioned in the company memorandum. Estrada observed on the day of the selection approximately five luggers come into the fabrication department where she worked as a machine operator in hindquarter packaging.125 She said the lug- gers came into the fabrication department during the lug- gers' breaks. They took turns going down the aisles in the fabrication department while yelling and shouting "vote no union." She said one lugger whistled first, and then he yelled "Vote no. Vote no union." Estrada no- ticed that fabrication department supervisors were present when the luggers came in the fabrication depart- ment; To her knowledge, the luggers were not told by the supervisors to stop engaging in such activities. Estrada said that the trainer in her department who she identified only by her first name, Sandy, had "vote no" stickers with her in the weeks prior to the election. Sandy 'wore a blue hat at work. Sandy asked Estrada if she would like to have one of those stickers. On the day of the election, Estrada heard some employees on the tables yell "vote no," and she heard some employees in the packaging department yell "vote no." Sandy told Es- trada and other employees at their machines that Super- intendent Foote would prefer that they shout a rhyme rather than just "vote no." Sandy told the employees that the rhyme was: "One, two, three, four, the union wants to shut the doors. If you want a job that pays, change your vote the other way." Estrada heard "quite a few people on the tables and in packaging that took part in this chant.126 125 During cross-examination, Estrada acknowledged that her prehear- ing affidavit taken on 28 July 1983 described the following event as having occurred on the day of the election. Her prehearing affidavit did not indicate that the activity by the luggers also occurred during the week prior to the election Estrada said at the hearing that she had not been asked about it I find credible the part of her testimony that this event took place on the day of the election, which finding is consistent with her preheanng affidavit which was taken closer to the occurrence of the event. 126 The foregoing is based on the credited testimony of Estrada except for the portion of her testimony noted above Jose Varela observed about six luggers from the ship- ping department come into the fabrication department while Varela was working. This occurred during the week of the election. Varela said about three luggers at a time walked around the fabrication department and yelled, "no union, no union," and "vote no." Varela ob- served the luggers doing that more than once a day during the week of the election. Varela observed Super- visor Finney present ' in the fabrication department on one occasion when the luggers engaged in that activity. Varela stated at the hearing that Finney did not say any- thing, or do anything, but, instead, Finney walked away with a big smile . Varela also observed Supervisor Wil- liam Korthouse on one occasion when the luggers en- gaged in that activity. Varela said that Korthouse did not say anything on that occasion.127 Benita Meracle was currently employed by the Re- spondent in the fabrication department at the time she testified at the hearing in this proceeding on, 4 April 1984. She began working for the Company on 28 March 1983. Her husband formerly worked for the Company. Her husband told Meracle that he was pressured into quitting his job there, or that he was forced out of his job. Meracle acknowledged at the hearing that she did not think that was fair. Both Meracle and her husband had been on the Union's organizing committee at the plant. Meracle wore a union sticker on her frock at work. Meracle saw about eight luggers come into the fabrica- tion department four or five times a day during the week prior to the representation election. She heard them holler loudly, "vote no, no union, vote no." Meracle said at the hearing that she knew that the persons were lug- gers because that was written on the back of their frocks. Her supervisor, Tom Galles, was standing by the table on one occasion when the luggers came into the depart- ment. Meracle did not hear Galles say anything to the luggers on that occasion. On another occasion, she saw the luggers in the balcony where they were throwing small pieces of meat at the employees below. This took place for about 10 or' 15 minutes. Meracle said the fore- man did not say anything to the luggers regarding that activity. In a prehearing affidavit, Meracle had said that the luggers had walked up and down by an' employee named Fidel, who was wearing union stickers. She had,said that the luggers shouted "vote no, no union," and some prounion employees shouted "vote yes." That had result- ed in shouting and cursing. At the hearing, Meracle, at first, was certain that employees had not shouted "vote yes," but when she was confronted with a portion of her prehearing affidavit, she acknowledged that it had oc- curred. Meracle said at the hearing that it had occurred when the luggers were on the balcony and when they were throwning meat down at the employees. She ac- knowledged at the hearing that she had not included the incident regarding the luggers' throwing meat in her pre- hearing affidavit. (See R. Exh. 55.) 127 The foregoing is based on the credited testimony of Varela. 136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD According to Meracle, Supervisor Galles had told an employee named Juan, who was talking in favor of the Union, that Juan had to do it on his free time. Meracle heard other employees talk against the Union when Supervisor Galles was in the vicinity, but Galles did nothing in response to their conversation. Meracle also observed employees, who were wearing "no union" insignia, place signs on the walls of the fabrication de- partment at the Company. The signs stated that if the Union came in, they would have a new foreman and new people. Those signs remained on the company walls until after the election. Meracle said that there was one prounion sign put up, but it was removed by someone unknown to Meracle. Meracle said that she had been told by Supervisor Galles that employees could not leave their worktable during working time unless they were cut or something happened like that.128 Supervisor Finney observed luggers going through his department while yelling, "no union, no union," on each of the 5 days during the week preceding the election. Finney said that the luggers were going from their work area to the cafeteria. During cross-examination, Finney acknowledged that he did not know whether the luggers were on their breaktime. Finney said that he was not the supervisor of the luggers, so he took no action against them. Finney did tell their supervisor, Mike Voris, that the luggers were causing a disturbance in Finney's de- partment. Finney asked Voris why they were in Finney's department. Voris told Finney that the luggers probably were going to a break. Finney said that the Tuggers con- tinued to yell "vote no" in his department even after Finney had talked to Voris.129 Junious Matthews had worked for the Respondent for about 5-1/2 years at the time he testified at the hearing on 7 September 1984. Matthews had worked as a super- visor in the Respondent's Grand Island plant, and he transferred to the Greeley plant when it reopened on 1 March 1982. Matthews has been a supervisor at the Greeley plant in the packaging area and also on the chuck line. Matthews heard some employees yell "fresh meat" at new employees going through the work area at the plant in December 1982 or January 1983. Matthews heard that yell on three or four occasions. He recalled at the hear- ing that the next week the superintendent told the super- visors that the yelling and the banging of knives and equipment on the tables had gotten excessive; that the su- pervisors should watch the employees closer; and get the noise reduced. The superintendent pointed out to the su- pervisors that if something went wrong, such as an em- ployee getting his hand caught in a conveyor, they would not know where the notice was coming from. The superintendent told them that he wanted the noise con- trolled, and for the supervisors to start paying attention to the amount of noise that was being made on the floor. Matthews also said that it was a frequent occurrence around the time of the election for him to hear employ- ees yell "vote yes" and "vote no." He had heard luggers from the slaughter department come through the fabrica- tion department and yell "vote yes" and "vote no." Mat- thews made a gesture to the luggers to stop the noise, and he notified his superintendent regarding the occur- rences. His superintendent said that the luggers were in a different department so he would notify the luggers' su- perintendent. With regard to shouting or yelling at work by employ- ees under his supervision, Matthews' practice was to counsel with the employee or to make a gesture to him to cease that activity. If there was a second or third verbal warning, Matthews would issue a step warning to the employee. Matthews said that he probably issued four or five warnings when the yelling had occurred again. In the 4 or 5 months prior to the election in June 1983, Matthews told employees who yelled "vote yes" or "vote no" that they should not do that. He explained the reasons why, and he asked them to respect that. Mat- thews considered the foregoing to be an effort to make employees familiar with the Company's rules and poli- cies, rather than a verbal counseling. He said at the hear- ing that he did suggest to some employees in the ground beef department that they wear their union pins lower on their clothing in order to avoid their pins falling off into the ground meat.1 a o 3. Conclusions I conclude that the evidence established that the Re- spondent disparately applied its work rules by permitting the luggers to engage in antiunion activities while other employees were at work in the fabrication department, while not permitting employees to engage in prounion activities at work. Accordingly, I conclude that the evi- dence establishes that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act as alleged. St. Vincent's Hospital, 265 NLRB 38 (1982). D. Paragraphs V(e)-V(/) 1. Allegations The General Counsel alleged in subparagraphs V(e)- VG) the following: (e) On or about June 23, 1983, Respondent, acting by and through Kenneth Monfort , informed its employees that it would settle the instant matter, thereby causing the termination of a substantial number of employees , if the Union won the Board election on June 24, 1983. (f) On or about June 23 , 1983, Respondent, acting by and through Kenneth Monfort, informed its em- 130 The foregoing paragraphs are based on the credited testimony of 128 The foregoing paragraphs are based on the credited testimony of Matthews except for the portion of his testimony where he stated that Meracles except for the portion of her testimony regarding the luggers ' the lugger yelled "vote yes" as well as "vote no " No other witness testi- throwing meat down on the employees from the balcony , which was not fied that the luggers yelled "vote yes." I conclude that Matthews was included in her preheanng affidavit. mistaken and that the "vote yes" yelling was done by employees other 129 The foregoing is based on the credited testimony of Finney . than luggers. MONFORT OF COLORADO 137 ployees that it would do everything it could do to fight the instant allegations and, thus, protect the employees' jobs, if the Union lost the Board elec- tion on June 24, 1983. (g) On or about June 23, 1983, Respondent, acting by and through Kenneth Monfort, threatened its employees with cessation of profit sharing pay- ments if the union won the election. (h) On or about June 23, 1983, Respondent, acting by and through Kenneth Monfort, promised its employees $600 to $700 in profit sharing if the Union lost the election. (i) On or about June 23, 1983, Respondent, acting by and through Kenneth Monfort, informed its em- ployees that a strike would occur within two to three weeks after the election if a majority of the employees chose to be represented by the Union. (j) On or about June 23, 1983, Respondent, acting by and through Kenneth Monfort, promised its em- ployees that it would remedy grievances and insti- tute an open-door policy if the Union lost the elec- tion. 2. Facts On 23 June 1983, which was the day prior to the rep- resentation election at the Greeley plant, Ken Monfort gave three speeches that morning to company employ- ees. He spoke at the hide facility, and then he spoke in the cafeteria to the slaughter division, and next he spoke to the fabrication division. He read the same text of his speech to all three groups. He did not recall answering any questions in front of the group of employees. -A copy of the text of Ken Monfort's speech was intro- duced into evidence as General Counsel's Exhibit 30. In- stead of relying on the recollection of the witnesses as to what Ken Monfort had stated in his speech, I find that the text of his speech is the most reliable evidence of what actually was said by him on that occasion. General Counsel's Exhibit 30 stated: Hi-I'm Ken Monfort, President of Monfort of Colorado. I'm sorry that I have to read this to you, but we are trying very hard to keep from having the Union file charges against us if they lose the election . Therefore, I have to be very careful about what I say to you. On Friday, tomorrow, your future with this com- pany could be decided. As most of you know, I have no love for the UFCW and they have publicly said that they feel the same way about me . On several occasions, the UFCW has attempted to put us out of business and break us. I expect that they will try the same thing if they win this election. The talk I hear is that if they win, they will have a quick strike in the next couple of weeks . . . trying to catch us of guard. This same Union had a long strike several years ago with us and after 73 days of striking, decided to come back to work without a contract. But the damage was done , the Company was about broke and the plant had to close. It was two long years before we could open it. Let me ask you to carefully consider some things before you vote . . . and let me remind you that your vote will be a secret ballot don't let them scare you. First, your profit sharing will be paid in Septem- ber and your check for just that six months of profit sharing should be $650 to $700 if the plant contin- ues to make money. Now, if the Union wins and a strike or other trouble occurs, profits could go away very fast and that could change. Or, the Union has not in the past been happy with profit sharing and that plus other benefits you receive would all be subject to what is agreed to by them and us at the bargaining table. I am saying that without a Union you will get profit sharing in Sep- tember . . . with a Union and negotiations . . . I do not know what September will bring. This next point is very important to you, so please listen carefully. As most of you know, the Union has a case pending against us with the Na- tional Labor Relations Board . The trial is set for September. The trial will be over the question of whether we have to fire some of you an d rehire some of the former workers. If the Union wins the trial, some of you are out of a job .. . not a few at a time but all at once. I think you have a right to know what I plan to do about those charges. If the Union wins in this election, I plan to settle those charges with the NLRB and with the Union in negotiations and put those that I must back to work which will cost some of you your jobs. There is simply no reason for me or for our Company to continue to fight the case and spend lots of money if the Union wins the election. On the other hand if the Union is defeated Friday ... if the majority of you support me and the Company, I will fight till hell freezes over before I fire one of you to hire one of them . . . even if it takes years. I promise that to you. It is that simple , make no mistake of what I have said. If the Union wins in this election, I will nego- tiate and settle with them and put the former work- ers back to work. If they lose, I will not! I hope you see what the Union is trying to do to you. They want to replace you with former work- ers and if, they can get some dues from you and get you to help cripple the Company in the meantime ... so much the better for them. But, I ask, what is in it for you? Now, I have heard some of your gripes. I under- stand there are problems. And, I cannot stand before you and say that we haven't made mistakes in this plant startup. But I can tell you that when we started this plant and up to right now, our Com- pany has not been able to suffer very large losses in this plant. We cannot afford it. So, we had to have good high quality and efficient production. To make it, we had to push you just as I have pushed myself and everyone else in the Company. But, in my job, and I believe in yours, as I have learned to 138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD do things better, it gets easier. Our workforce is now more stable, it is now time for us to smooth out the problems. I promise that with the election over, I will spend time with the supervisors and production management people to concentrate on problems that you have and that we have. Frankly, no union can do that. I am the only one that can. In closing, I think that you should know now, if you did not already know, that I will use every lawful recourse to fight this Union that has closed so many plants and put so many thousands of people out of work in Colorado and in the nation and who damned near broke this Company. I'd like to be on the same team with you. I ask you to Vote No Union tomorrow! And for those of you who speak Spanish . . . Yo Quiero trabajar con todos ustedes . . . Por Favor, Voten No Manana. Muchas Gracias. ... Thank You Very Much! Respondent with regard to the Greeley plant employees also provided for profit-sharing plans.131 3. Conclusions I conclude that the text of Ken Monfort's speech es- tablished the General Counsel's allegations in subpara- graphs V(e) and (f). The text revealed that employees were told that the loss of some employees' jobs depend- ed upon whether the Union won or lost the election. Thus, the employees were told that: If the union won the election, the Respondent would settle the outstanding unfair labor practice case against the Respondent; fire some of the present employees; and rehire former em- ployees. On the other hand, the employees were prom- ised that the Respondent would fight vigorously the out- standing unfair labor practice case against the Respond- ent, even if it took years to do so, before the Company would fire even one present employee in order to rehire a former employee. The United States Supreme Court held in NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969): Charging party's Exhibit 19 is a copy of a booklet enti- tled "Monfort Employee Benefits" for the Greeley pack- ing plant employees. It is dated as being issued in Octo- ber 1982. On pages 5 and 6 of that booklet the "Monfort Profit Sharing Cash Bonus" program is described. The initial year of that plan was to be based on an employee's wages earned from 1 March 1983 through 3 September 1983, which was the close of the Company's fiscal year. Thereafter, the plan's computations were to be based on an employee's wages for the entire fiscal year. The plan was applicable to all regular full-time company employ- ees who were employed on the last day of the Compa- ny's fiscal year. Charging Party's Exhibit 20 is a copy of a letter dated 30 March 1983 from Ken Monfort to the Greeley pack- ing plant employees. Attached to the letter was a pam- phlet containing questions and answers from the Compa- ny about the Company's cash bonus program. Steve Thomas said that the letter and pamphlet were distribut- ed to the Greeley employees about 30 March 1983. Charging Party's Exhibit 21 is a copy of a memo dated 13 June 1983 from Jim Lovelady to the Greeley packing plant employees. Attached to that memo to employees was the same pamphlet which the Company had distrib- uted earlier with Charging Party's Exhibit 20. Charging Party's Exhibit 22 is a copy of the collec- tive-bargaining agreement between the Charging Party Union and the Monfort Portion Foods Division of the Respondent. That contract was effective from 16 No- vember 1981 through 16 November 1984. Section 32 of that contract described a "Cash Bonus Profit Sharing Plan" as set forth in an appendix to the contract dated 17 November 1984. According to Steve Thomas, there had been earlier profit-sharing plans in effect or the portion foods' employees in collective-bargaining agreements at least since 1975. According to Thomas, the last three collective-bar- gaining agreements between the Charging Party and the If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment. I conclude that the Respondent has violated Section 8(a)(1) of the Act as alleged in subparagraphs V(e) and (f). I conclude that the text of Ken Monfort's speech does not support the allegations in subparagraphs V(g) and (h) of the General Counsel's complaint. I conclude that the employees were told about a profit-sharing plan which was already in existence at the time, and the likelihood of the amounts of payments from that plan after the fiscal year closed, if the Company remained profitable. On the other hand, the employees were told that the profit-sharing plan and other existing benefits would be subject to negotiations with the Union, if the Union won the election. I conclude that those statements do not con- stitute a threat, or a promise, as alleged in subparagraphs V(g) and (h). Accordingly, I recommend to the Board that the allegations in subparagraphs V(g) and (h) be dis- missed. I conclude that the text of Ken Monfort's speech does not support the allegations in subparagraph V(i). The text revealed that Ken Monfort said: "The talk I hear is that if they win, they will have a quick strike in the next couple of weeks . . . trying to catch us off guard." Thus, employees were told about a rumor, or "talk," of a strike. I conclude those remarks were noncoercive. Ac- cordingly, I recommend to the Board that the allegations in subparagraph V(i) be dismissed. 131 The foregoing paragraphs are based on the credited testimony of Thomas and documentary evidence. MONFORT OF COLORADO 139 I conclude that the text of Ken Monfort's speech does not support the allegations in subparagraph V(j) of the General Counsel's complaint. I conclude the employees were told that the reopening of the Greeley plant had caused problems and had caused mistakes to be made, but the Respondent had a more stable work force at the time of the speech, and the problems would be smoothed out by Ken Monfort's spending more time with supervi- sors and management personnel. Ken Monfort did not condition the resolution of those problems on the out- come of the election, and he did not mention "an open door policy." I conclude that-those statements were not promises as alleged in subparagraph V(j). Accordingly, I recommend to the Board that the allegations in subpara- graph V(j) be dismissed. E. Paragraph V(k) 1. Allegations The General Counsel alleged in subparagraph V(k) the following: (k) During on or about the week prior to June 24, 1983, Respondent, acting by and through Tom Dallas or Gallas, informed its employee that Union supporters were all trouble makers and should be fired. 2. Facts During the week prior to the representation election at the Greeley plant, Benita Meracle overheard a conversa- tion one morning during her working time between her supervisor, Tom Galles, and employee Vicky Arispe. Meracle said that the conversation took place at the table where Arispe and Meracle worked. Meracle overheard Galles tell Arispe that in his opinion all of the people who voted for the Union were a bunch of troublemakers, and all of them ought to be fired. Arispe asked Galles if they were going to be fired if the Union was voted in. Galles replied that he did not know what the outcome of that would be. Meracle also- overheard Galles state that they would be fired and replaced by old employees, and that they would have to pay $200 and $20 a month in dues. Arispe asked Galles what would happen if they did not vote, and Galles replied that their minds would be made up for them. Meracle said that Arispe was still em- ployed at the Company at the time that Meracle testified at the hearing on,4 April 1984.132 Attorney Charles E. Sykes, who was one of the attor- neys representing the Respondent in this proceeding, represented on the record that the Respondent had not employed Galles during the time period of the hearing. He said that the Respondent had attempted to contact Galles, and that the Respondent was successful in con- tacting him on one occasion. At that time Galles told the Respondent that he would come to the hearing, but Galles did not. Thereafter, the Respondent was unable to locate him. (See Tr. 9220.) 3. Conclusions I conclude that the evidence supports the allegations in -subparagraph V(k) of the General Counsel's com- plaint. The correct spelling of the supervisor's name was made clear at the hearing. I conclude that the Respond- ent has violated Section 8(a)(1) of the Act by telling an employee that employees who voted for the Union were a bunch of troublemakers and ought to be fired. Accord- ingly, I conclude that the Respondent has violated Sec- tion 8(a)(1) of the Act as alleged in subparagraph V(k). F. Paragraph V(1) 1. Allegations The General Counsel alleged in subparagraph V(l) the following: (1) During on or about the week prior to June 24, 1983, Respondent, acting by and through Junior Urias, interrogated its employee as to the employ- ee's union sympathies and, upon receiving an answer in favor of the Union, made a fist and held it in front of the employee's face. 2. Facts During the week before the representation election at the Greeley plant, Benita Meracle overheard a conversa- tion between supervisor Higinio "Junior" Urias and em- ployee Louise Sanchez. Sanchez is a male employee. He was wearing a union sticker on his helmet at the time of the conversation. The conversation took place at Mera- cle's work table. Meracle overheard Urias ask Sanchez in the Spanish language if Sanchez was going to vote for the Union. Sanchez replied yes. Meracle then observed Urias make a fist and shake his fist in Sanchez' face. San- chez started laughing , and Sanchez told Urias that he was going to vote for the Union. Urias walked away. Later on, Meracle asked Sanchez what he thought when Urias had put his fist in his face. Sanchez told Meracle that he thought nothing of it, and Sanchez told Meracle that he just thought it was funny. Meracle said at the hearing that she is able to speak the Spanish language. She also said that Sanchez was still working in the fabrication department for the Company at the time that Meracle testified at the hearing.133 Higinio C. Urias had been employed by the Respond- ent for about years at the time he testified at the hearing on 5 September 1984. Urias was a superintendent at the Company's Grand Island- plant at' the time he gave his testimony. The Company transferred Urias in April 1983 from its Grand Island plant to its Greeley plant where Urias spent 3 months working on the Company 's election campaign, and assisting in fabrication at the plant. Urias is fluent in both the English language and the Spanish language . Urias conducted meetings and interpreted for the Company's employees who spoke only the Spanish language . According to Urias, there were a number of employees at the Greeley plant who spoke only the 13 2 The foregoing is based on the credited testimony of Meracle 133 The foregoing paragraphs are based on the credited testnnony of Meracle. 140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Spanish language. Urias spoke to those employees; showed them video tapes; and answered the employees' questions. Urias returned to the Grand Island plant on the Saturday following the election at the Greeley plant on Friday. Urias had received both verbal and written instructions from the Respondent in Grand Island in 1981 and in 1984 and in Greeley in 1983 regarding the TIPS program during those three election campaigns.134 I have considered Urias' denials of the statements and conduct attributed to him by Meracle. As indicated above, I have credited Meracle's account. 3. Conclusions I conclude that the evidence does not support the alle- gations in subparagraph V(1) of the General Counsel's complaint. The Board held in its decision in Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984): Some factors which may be considered in analyz- ing alleged interrogations are: (1) the background; (2) the nature of the information sought; (3) the identity of the questioner; and (4) the place and method of interrogation. See Bourne v. NLRB, 332 F.2d 47 (2d \Cir. 1964). These and other relevant factors are not to be mechanically applied in each case. Rather, they represent some areas of inquiry that may be considered in applying the Blue Flash test of whether under all the circumstances the in- terrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act. Under the Board's Rossmore House decision, I con- clude that the questioning of Sanchez by Urias was not coercive interrogation. As noted in the findings, Sanchez was wearing a union sticker on his helmet at the time of the conversation. I infer from that that he was a known union adherent. The findings also show that Sanchez started laughing when Urias shook his fist in Sanchez' face, and that Sanchez later on told Meracle that he thought it was funny. I conclude from the foregoing that Urias' shaking his fist in Sanchez' face was more of a hu- morous event instead of a threatening event. According- ly, I recommend to the Board that the allegations in sub- paragraph V(1) be dismissed. G. Paragraph V(m) 1. Allegations The General Counsel alleged in subparagraph V(m) the following: (m) During on or about the week prior to June 24, 1983, Respondent, acting by and through Cecil Foote, threatened its employees that they would be replaced by former employees if the Union won the election. 2. Facts During the week prior to the representation election at the Greeley plant, Benita Meracle attended a meeting in 184 The foregoing is based on the credited testimony of Urias. the conference room at the Company where a movie was shown to about 30 to 40 employees. The movie per- tained to incidents which had occurred during a strike. Superintendent Cecil Foote was present during that meeting. Foote told the employees that Gene Meakins and Tom Weiler would be there later in the event that the employees had any questions that Foote could not answer. The movie was then shown. Two people came in the conference room for about 5 minutes. The room was dark, and Meracle acknowledged at the hearing that she did not know if the two people who came in the room were Meakins and Weiler. Her prehearing affidavit was in error in that respect. After the movie was shown, Foote asked the employ- ees if they had any questions. No one responded. Foote told the employees that, if the Union did not come in, they were going to give the employees a raise, and "that Mr. Darling had already started it." Foote also told the employees that, if the Union won the election, the em- ployees would be fired and be replaced by former em- ployees.13 s Cecil Foote has been the plant manager of the Re- spondent's Grand Island facility since 9 July 1984. Previ- ously, he was the fabrication superintendent at the Com- pany's Grand Island plant, and then in February 1982 he was transferred to be the fabrication superintendent at the Company's Greeley plant. Foote subsequently was transferred back to the Company's Grand Island plant. 136 I have considered Foote's testimony regarding his statements at several meetings. Foote testified that he an- swered employees' questions as to whether the former employees would be brought back in the plant if the Union on the election by telling the employees that he had no idea what would happen. As indicated above, I have credited Meracle's account and I do not credit Foote's account. 3. Conclusions I conclude that the evidence supports the allegations in subparagraph V(m) of the General Counsel's com- plaint. I conclude that the evidence shows that the Re- spondent violated Section 8(a)(1) of the Act by telling employees that the employees would be fired and re- placed by former employees if the Union won the elec- tion. The General Counsel did not allege in the General Counsel's complaint that Foote unlawfully promised the employees a raise if the Union did not come in the plant. Accordingly, I make no finding in that regard. H. Paragraph V(n) 1. Allegations The General Counsel alleged in subparagraph V(n) the following: 135 The foregoing paragraphs are based on the credited testimony of Meracle. 136 The foregoing is based on the credited testimony of Foote- MONFORT OF COLORADO 141 (n) During on or about the week prior to June 24, 1983, Respondent, acting by and through Tom Dallas or Gallas, threatened its employees that a substantial number of employees would be replaced by former employees if the union won the election. 2. Facts After Benita Meracle overheard the conversation be- tween Supervisor Tom Galles and employee Vicky Arispe described above with regard to subparagraph V(k), Meracle overheard another conversation between those two persons. Meracle said that conversation oc- curred before the election. The conversation took place during working hours at the work table. Meracle over- heard Supervisor Galles tell Arispe that they would all be fired and would be replaced by former employees.137 3. Conclusions I conclude that the evidence supports the allegations in subparagraph V(n) of the General Counsel's com- plaint. The correct name of Supervisor Galles was point- ed out at the hearing. I conclude that Respondent violat- ed Section 8(a)(1) of the, Act by Galles' threatening an employee that all the employees would be fired and would be replaced by former employees. While Meracle did not mention having overheard the Union mentioned in that particular conversation, I infer from the conversa- tion which Galles had with Arispe as described in sub- paragraph V(k) that the conversation involved in this in- stance also referred to the union election. In addition, Galles' threat to Arispe in this instance is similar to other threats made that the present employees would be fired and would be replaced by former employees if the Union won the election. For example, see findings already made in this decision with regard to the allegations in subparagraphs V(e) and (in). Thus, I infer in this instance that Supervisor Galles also made a similar threat in the context of talking about what would happen if the Union won the election. Accordingly, I conclude that the Re- spondent has violated Section 8(a)(1) of the Act as al- leged in subparagraph V(n). I. Paragraph V(o) 1. Allegations The General Counsel alleged in subparagraph V(o) the following: (o) During on or about the week prior to June 24, 1983, Respondent, acting by and through fabri- cation department supervisors, wrote down names of the department employees who wore union insig- nia. 2. Facts During the week before the representation election at the Greeley plant, Benita Meracle observed Supervisor James Finney and a supervisor of table D, who was identified only by his first name of Phil, separately one day walked behind the 30 to 40 employees at table A in the fabrication department. Meracle observed that they wrote something on pieces of paper when they walked behind someone who was wearing union insignia on his hat or on his frock. She said that Finney and Phil did not do this together, but instead, they did it in the same day. Meracle explained at the hearing that the employees wore frocks with their names on the back of their frocks. Meracle did not know what Finney and Phil wrote on the pieces of paper. Meracle asked another employee named Debbie Montoya what Finney and Phil were writing. Montoya told Meracle that she did not know.138 3. Conclusions I conclude that the evidence does not support the alle- gations in subparagraph V(o) of the General Counsel's complaint. I conclude that the incidents described above by Meracle are analogous to a situation where union or- ganizing activity is conducted on or near an employer's property. The Board held in its decision in Emenee Ac- cessories, 267 NLRB 1344 (1983): We disagree with the judge that Respondent cre- ated an impression of surveillance of its employees' union activities in violation of Section 8(a)(1) of the Act when Nieves stood in front of the building on the morning of 27 August and observed the union organizers conversing with employees who were re- porting for work. As the Board found in Milco Inc., 159 NLRB 812, 814 (1966), enfd. 388 F.2d 133 (2d Cir. 1968), "[u]nion representatives and employees who choose to engage in their [u]nion activities at the [e]mployer's premises should have no cause to complain that management observes them." Accord: Chemtronics Inc., 236 NLRB 178 (1978); Larand Leisurelies, 213 NLRB 197, 205 (1974), enfd. 523 F.2d 814 (6th Cir. 1975). In this case, any conversa- tions between union organizers and Respondent's employees were conducted in full public view out- side Respondent's place of business, and Respond- ent's observation of this activity was not unlawful surveillance. Therefore, we shall dismiss this allega- tion of the complaint. The Board held in its decision in Metal Industries, 251 NLRB 1523 (1980): [T]he Board has often held that management offi- cials may observe public union activity, particularly where such activity occurs on company premises, without violating Section 8(a) of the Act, unless such officials do something out of the ordinary. See Chemtronics, Inc., 236 NLRB 178 (1978); G C. Murphy Company, 216 NLRB 785, fn. 2 (1975); Larand Leisurelies, Inc., 213 NLRB 197, 205 (1974); Tarrant Manufacturing Company, 196 NLRB 794, 799 (1972). 1$7 The foregoing is based on the credited testimony of Meracle. 138 The foregoing is based on the credited testimony of Meracle 142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD See also the Board 's decisions in Badische Corp., 254 NLRB 1195, 1200 (1981); and Porta Systems Corp., 238 NLRB 192 (1978). After considering the foregoing, I conclude that the conduct of the two supervisors in the incidents described by Meracle above do not constitute unfair labor practices as alleged in the General Counsel's complaint. Accord- ingly, I recommend to the Board that the allegations in subparagraph V(o) be dismissed. J. Paragraph V(p) 1. Allegations The General Counsel alleged in subparagraph V(p) the following: (p) During on or about the week prior to June 24, 1983, Respondent, acting by and through Wil- liam Korthouse , interrogated its employee as to why the employee supported the Union. 2. Facts On the day before the representation election at the Greeley plant, Jose Varela had two conversations with Supervisor William Korthouse. The first conversation took place where Varela was working. Korthouse asked Varela what did he need a union for. Varela replied that he felt he needed a union because of the working condi- tions and because there was no job security in the plant. Varela also told Korthouse that he did not see a future in that plant without the Union. Korthouse replied that Varela was a union person, and Korthouse was a compa- ny man, so what could Korthouse say. During cross-ex- amination , Varela acknowledged that Korthouse also told him that Korthouse respected Varela's view on that. At the time of the conversation Varela was wearing a union button and a union sticker. Later the same day, but after working hours and while Varela was on his way to pick up his frock for the next day's work, Varela had a second conversation with Korthouse. Korthouse stopped Varela and told him that Varela would vote the Union in, and there were a lot of people outside waiting for Varela's job. Korthouse said there were pictures in the cafeteria , and there were about 100 of them. Varela replied that Korthouse probably was just doing a part of his job.139 3. Conclusions I conclude that the evidence does not support the alle- gations in subparagraph V(p) of the General Counsel's complaint . I conclude under the Board 's Rossmore House decision, above, that the incident described by Varela does not constitute coercive interrogation . Among other things, the Board held in Rossmore House at page 1178: "Nor do we find any violation regarding the second inci- dent when the Respondent's owner asked Harvey why he wanted a union and whether the union charged a fee." Like the employee in the Rossmore House case, Varela was an open and active supporter of the Union in this case. The General Counsel did not allege that Korthouse made any threats in the conversation de- scribed above. Accordingly, I recommend to the Board that the allegations in subparagraph V(p) be dismissed. K. Paragraph V(q) 1. Allegations The General Counsel alleged in subparagraph V(q) the following: (q) During on or about the week prior to June 24, 1983, Respondent, acting by and through Doris George, interrogated its employee as to why the employee believed a union was needed. 2. Facts According to Gerald Aragon, Doris George worked for the Employer as a trainer in the fabrication depart- ment where Aragon worked. George instructed employ- ees on how to perform certain jobs and how to make certain cuts. George wore a blue hat while Aragon wore a white hat. Supervisors Buhlke and Galles wore yellow hats. About 2 weeks prior to the election, Aragon looked at George's timecards and he noted that her wage rate was $7.60 an hour. Aragon had begun at $5 an hour in May 1982, and he was earning about $6.72 an hour at the time that he observed George's timecard. Aragon acknowledged at the hearing that George had never supervised his work . He also acknowledged that he did not know of any supervisory responsibilities that George had over other employees in the department. About a week before the election, Aragon and George had a conversation about 1 :30 p.m . at the strip table. Aragon was working at the time. George approached Aragon and told him that she knew that Aragon was in- volved with the Union because Aragon had talked to one former employee and several new employees con- cerning the Union. George asked Aragon why he needed the Union in there. She told him that the Union could make a lot of promises and fail to keep a lot of them. Aragon replied that the Union was needed for better wages, better working standards , and for safety reasons. George said that the Union did not live up to its goals, and she asked why convince other people about the Union when the Union made a lot of promises but kept none of them. Aragon replied that, if they had the Union in there, it would keep the place from being run like martial law was run in Poland. Aragon further stated that, if the Union were voted in, maybe they could do away with people like George; that they never used to have trainers in there before ; and that they used to train their own people. Aragon said at the hearing that George "replied something angrily back to me." He ac- knowledged that they were both mad. George then began talking with Jerry Burnham for about 2 minutes, and then she left. Aragon either did not overhear what 139 The foregoing is based on the credited testimony of Varela. MONFORT OF COLORADO 143 she said to Burnham, or he did not recall it at the hear- ing.140 3. Conclusions I conclude that the evidence does not support the alle- gations in subparagraph V(q) of the General Counsel's complaint . I recognize that it is not necessary that a person possess all of the statutory authority set forth in Section 2(11) of the Act because that section is to be read in the disjunctive . Ohio Power Co. v. NLRB, 176 F.2d 385 (6th Cir . 1949), cert . denied 338 U.S. 899; Arizo- na Public Service Co. v. NLRB, 453 F.2d 228 (9th Cir. 1971); Big Rivers Electric Corp., 266 NLRB 380, 382 (1983). I conclude that the evidence does not establish that George possessed any of the statutory authority set forth in Section 2(11) of the Act . Thus, I conclude that the evidence does not establish that George was a statu- tory supervisor . Accordingly, I recommend to the Board that the allegations in subparagraph V(q) be dismissed. L. Paragraph V(r) 1. Allegations The General Counsel alleged in subparagraph V(r) the following: (r) During on or about the week prior to June 24, 1983, Respondent, acting by and through Maurice Dalton, informed its employees that a Union victory (in the Board election) could cost the employees their jobs. 2. Facts Two or 3 days before the representation election, Aragon attended a meeting in the conference room at the Company. Aragon had been working on the chuck table at that, point in time. Present at the meeting in the conference room were Supervisor Maurice W. Dalton; a person who identified himself to the employees as being a vice president of industrial relations; possibly another foreman; and some other employees who had been work- ing on the chuck table. Supervisor Dalton told the em- ployees about the plant's reopening and how its produc- tion costs were being kept at a minimum. Dalton said there had been a petition for an election concerning the Union. Dalton told the employees that it was his belief that it would be a disadvantage to everyone working if the Union came in. Dalton also said that one of the main reasons why Monfort had closed was due to the Union; that the Union's demands were too high and that they were asking for too much. Then a video tape was shown to the employees regarding strike incidents at other meat packing plants, including rock throwing, hollering, and the making of obscene gestures. Aragon said at the hear- ing that a fullface picture of Steve Thomas while smiling was shown on the video tape. In Aragon's opinion, it was a still picture of Thomas rather than a moving pic- ture. Aragon acknowledged at the hearing that the voice on the video tape was discussing how a union organizes when Thomas' face was shown. After the video tape had been shown to the employ- ees, there was a period for questions and answers. A woman asked why the Company was so against the Union if the Union had been good to the employees before. The person who had identified himself as being a vice president replied that they felt the people were good employees, and that they could function a lot better with the employees they had there. Aragon then asked if it really mattered whether it was Local 7 or some other union . Aragon stated that it seemed to him that the Company was strictly against Steve Thomas. The man who had identified himself as being a vice president replied that the Company did not want any as- sociation with that union whatsoever, but he told the employees what the Company had no objection to the employees' forming their own kind of union. An employee, who was identified by Aragon only by her first name of Mary, asked if it was true that the em- ployees would lose their jobs if the Union was voted in. Dalton replied that it was a good point that she had brought up; that if the Union was voted in then "that could very well be the case" that former employees would be called back to their jobs; and that the present employees would probably be out the door. Aragon said at the hearing that he discussed what was said at that meeting with "a lot of my fellow employ- ees."141 Maurice W. Dalton had worked for the Respondent for nearly 5-1/2 years at the time that he testified at the hearing on 4 September 1984. Dalton had worked for 2- 1/2 years at the Company's Grand Island plant prior to working at the Company's Greeley plant . In the latter part of April or the first part of May 1984, Dalton re- turned to the Grand Island plant for a week to 10 days just to campaign in the election there. Afterwards, Dalton returned to the Greeley plant. Dalton estimated that he had conducted from 15 to 20 group meetings with employees prior to the election at the Company's Grand Island plant, and he estimated that he had con- ducted, from 24 to 25 group employee meetings prior to the election at the Company's Greeley plant. Dalton had received instructions in the TIPS' program which has been described earlier.142 I have considered Dalton's denial of the statement at- tributedto Dalton in response to the question from the employee named Mary. As indicated above, I have cred- ited the account given by Aragon, and I do not credit Dalton's version. Cecil Foote testified that he had received instructions from Dalton to send 20 to 25 employees at a time to attend meetings before the election . Foote said that he had selected the groups of employees to send to those meetings according to whether the employees were prounion or antiunion . Foote said that he had asked most of the supervisors under him to try to determine who they thought was prounion or antiunion , and then to 140 The foregoing paragraphs are based on the credited testimony of Aragon. 141 The foregoing paragraphs are based on the credited testimony of Aragon 142 The foregoing is based on the credited testimony of Dalton. 144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD report to Foote on those employees so Foote could send the employees to the meetings. 3. Conclusions I conclude that the evidence supports the allegations in subparagraph V(r) of the General Counsel's com- plaint. I conclude that the evidence shows that Dalton made a threat to the employees at the meeting by telling them that, if the Union won the election, the former em- ployees would be called back to work, and the present employees of the Company would probably be out the door. In this connection, I conclude that Dalton's state- ment was similar to ones by others which have also been found to be violative of Section 8(a) of the Act. Accord- ingly, I conclude that the Respondent has violated Sec- tion 8(a)(1) of the Act as alleged. M. Paragraph V(s) and (t) 1. Allegations The General Counsel alleged in subparagraphs V(s) and (t) the following: (s) During on or about the week prior to June 24, 1983, Respondent, acting by and through Junior Urias, interrogated its employee as to the employ- ee's union sympathies. (t) During on or about the week prior to June 24, 1983, Respondent, acting by and through Junior Urias, informed its employee that the former em- ployees would probably replace the current em- ployees if the Union won the Board election. 2. Facts Esther Estrada worked as a machine operator in hind- quarter packaging from 1 March 1982 to 10 September 1983 at the Respondent's Greeley plant. That job is lo- cated in the fabrication department. Her supervisor was Fred Pargas. Estrada did not wear any kind of union in- signia on her helmet or clothing at work. Later on, Es- trada voluntarily quit her employment with the Compa- ny. About a week or so before the representation election in June 1983, Estrada had a conversation with Supervi- sor Higinio "Junior" Urias. The conversation took place at Estrada's machine, which makes noise. Other ma- chines in the department also make noise which some- times has interfered with Estrada's ability to hear. At the time of her conversation with Urias, Estrada was work- ing. She acknowledged at the hearing that she was not paying too close attention to what Urias said. Just Es- trada and Urias were present during the conversation. Urias initiated the conversation with her. Estrada charac- terized it as being "a casual conversation." Urias asked Estrada whether she liked her job as a ma- chine operator, and if she was having any problems with it. She indicated that she liked her job; that she enjoyed working; that the machine was rather hard to run; and that it was stressful. Estrada said at the hearing that she had observed the trainers pass out literature in the lunchroom that day. She testified that Urias asked her if she had received a leaflet which had been distributed that day, and which set forth reasons why the employees should vote "no." Estrada told Urias that he had gotten one. Urias told her that he had some leaflets in his pockets, and he told her that if she needed any leaflets to ask for them. Other comments were made, but Estrada could not recall what they were. Urias then asked her how she felt about the former workers coming in, and if she realized that she might be losing her job. She said that she did not give Urias a direct reply. At the hearing, Estrada said that she remembered Urias' "exact words" on this point, although she ac- knowledged that she had stated in her prehearing affida- vit taken on 28 July 1983 that she did not remember his exact words. She explained at the hearing that in taking her prehearing affidavit, she was not asked specifically what Urias had said, as she had answered generally. I find credible that she did not remember Urias' "exact words" on this point, which finding is consistent with her prehearing affidavit taken closer to the occurrence of the event. I find the foregoing is her recollection of what Urias had said, but not Urias' "exact words."143 I have considered Urias' version of his conversation with Estrada. His version is in conflict with Estrada's version in several respects. According to Urias, Estrada was wearing a union sticker on her hard hat, and, ac- cording to Urias, it was Estrada who initiated the con- versation rather than Urias. In Urias' version, Estrada was the one who asked him if the Union won the elec- tion would the former employees be hired back to re- place the ones who had taken the former employees' jobs. According to Urias, he had replied that he did not know and that would have to be up to the NLRB. Urias denied asking Estrada how she felt about the Union, but he acknowledged that he did ask her the following: "I asked if the campaign was causing problems between the hourly employees and she said yes." According to Urias, Estrada was not working at the time because there had been a breakdown and production was stopped. I found Estrada's recollection of the conversation with Urias to be credible, although she was working at the time and the machines were making noise. As noted above, I have found that she did not remember Urias' "exact words." 3. Conclusions I conclude that the evidence does not support the alle- gations in subparagraphs V(s) and (t) of the General Counsel's complaint. Under the Board's Rossmore House decision discussed previously, I conclude that the casual conversation between Urias and Estrada as to whether she had received a leaflet which had been distributed that day at the Company was noncoercive. Although Urias' comments about the former workers and the loss of Estrada's job were similar to statements which have found to be threats, I conclude in this instance that Urias' statements did not amount to a coercive threat be- cause the loss of her job was not linked to how Estrada 143 The foregoing is based on the credited testimony of Estrada, with the exception noted above. MONFORT OF COLORADO 145 would vote in the election, nor was it linked to whether the Union won the election. Accordingly, I recommend to the Board that the allegations in subparagraphs V(s) and (t) of the General Counsel's complaint be dismissed. N. Paragraph V(u) 1. Allegations The General Counsel alleged in subparagraph V(u) the following: (u) During on or about the week prior to June 24, 1983, Respondent, acting by and through John Herrera, promised its employee free work gloves if the employee voted against the Union. 2. Facts Kelly Sodman worked for the Respondent from 1 March 1982 to 15 August 1983, when he quit. Sodman worked as a hide grader in the hide plant. Except for the first 4 months of Sodman's employment, his immediate supervisor was John Herrera Jr. Sodman's father was on the union negotiating commit- tee, and he was a union steward prior to the Greeley plant closing in March 1980. Kelly Sodman got employ- ees to sign union authorization cards during his lunch- time and breaks; attended union meetings; passed out union literature; wore union buttons; and passed out union buttons to employees. About 3 months after the plant reopened, Sodman was offered a supervisor's job. Sodman rejected that offer. At the time he testified at the hearing on 22 March 1984, Sodman's sister was working for the Respondent in the fabrication department. About a week or so before the representation election in June 1983, Sodman overheard a conversation between his supervisor, Herrera, and employee Tom Bibey. Present were Sodman, Bibey, and Herrera. The conver- sation took place in the hide plant office. Sodman saw Bibey sign a voucher, and he heard Herrera tell Bibey that if Bibey voted no, Bibey would not have to pay for the gloves. Sodman observed Herrera take the voucher from Bibey, and he saw Herrera throw the voucher slip in the trash. Sodman acknowledged at the hearing that what he saw thrown into the trash may not have been all three pages of the voucher. However,- he said that he did not see Herrera separate the three pages of the voucher. He saw Bibey receive the gloves on that occasion. Sodman explained at the hearing that the procedure which had been followed was for an employee to go to the hide plant office; write what the employee' was get- ting; and sign his name to the voucher slip. The employ- ee's supervisor then turned in those vouchers, and the amount was deducted from the employee's paycheck. The items involved in the conversation which Sodman described above were gloves which the Company issued to the employees, but which the employees paid for. Sodman explained that the price of the rubber gloves was raised and lowered. He said at the hearing that he could not really remember the price but he thought that it was "around a dollar." During cross-examination, Sodman was shown a voucher which he had signed for rubber gloves. The price shown on that voucher was 40 cents.144 Herrera had been manager of the Company's hide plant for about 1 year and 5 months at the time he testi- fied at the hearing on 4 September 1984. Herrera said that he had received instruction in the TIPS' program, but he thought the conversation described above by Sodman took place before his instruction in that pro- gram. According to Herrera, he had become "pretty good friends" with Bibey for at least 8 months while Bibey had worked under Herrera's supervision. On dif- ferent occasions, Bibey and his girlfriend went to Herre- ra's house. When Bibey had asked Herrera questions re- garding the Union, Herrera told Bibey that they were friends, and Herrera did not want to get involved. He re- ferred Bibey to Supervisor Don Caster because Herrera said Caster had more experience than Herrera. Herrera said at the hearing that he did not know where Bibey's sympathies lay with regard to the Union.114s I have considered Herrera's version of his conversa- tion with Bibey regarding the purchase of a pair of rubber gloves. According to Herrera, Herrera told Bibey: "Listen, I'll give you this pair of gloves if you vote no for the Union." Herrera asserted that the matter was "like a joke;" that Bibey laughed and used a vulgar expression; that Sodman grinned; and that another un- identified person also laughed. As indicated above, I have credited Sodman's version of the event, rather than Herrera's version. 3. Conclusions I conclude that the evidence does support the allega- tions in subparagraph V(u) of the General Counsel's complaint. I have considered the fact that Herrera and Bibey were friends. The Board held in its decision in Florida Steel Corp., 224 NLRB 45 (1976): It has long been recognized that the test of inter- ference, restraint, and coercion under Section 8(a)(1) of the Act does not turn on a respondent's motive, courtesy, or gentleness, or on whether the coercion succeeded or failed. It also does not turn on whether the supervisor and employee involved are on friendly or unfriendly terms. Rather, the test is whether the supervisor's conduct reasonably tended to interfere with the free exercise of the em- ployee's rights under the Act. Hanes Hosiery, Inc., 219 NLRB 338 (1975). In view of the foregoing, I find that the fact that Her- rera and Bibey were friends is not determinative. As in- dicated above, I have not credited Herrera's version that the matter was treated as a joke. The issue here is not the price of the workgloves, but whether or not a prom- ise was made of a pair of free workgloves if Bibey voted against the Union. I conclude that the evidence supports the General Counsel's allegation that the Respondent did make such a promise if Bibey voted against the Union, 144 The foregoing is based on the credited testimony of Sodman. 145 The foregoing paragraph is based on the credited testimony of Herrera 146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and, therefore, the Respondent has violated Section 8(a)(1) of the Act as alleged. 0. Paragraph V(y) 1. Allegations - The General Counsel alleged in subparagraph V(y) the following: (y) On or about June 23, 1983, Respondent, acting by and through Junior Urias and Linda Beck, engaged in surveillance of a meeting of its employ- ees at the Greeley, Colorado, Holiday Inn. 2. Facts Steve Thomas stayed at the Holiday Inn in Greeley during the election campaign. Thomas said that Higinio "Junior" Urias also stayed there. Thomas saw Urias on occasion at the Holiday Inn. Thomas acknowledged at the hearing that it was not uncommon for him to see company management personnel and company attorneys at the Holiday Inn. The Union held a meeting on the night of 23 June 1983 at the Holiday Inn. About 300 to 375 employees at- tended the union meeting . During that meeting, someone asked Thomas if he was going to call a strike in 2 weeks. Someone also asked if they would go on strike if the Union won the election. Thomas testified that he told them: "That's up to you people. It depends on how ne- gotiations go and if you can't reach agreement with the Company, then you'll vote on whether or not you want a strike or whether you want to accept their last propos- al." Thomas said that Linda Beck shouted remarks while Thomas was speaking at the meeting, and that Beck was disruptive. Thomas said that Beck shouted: "We'll all lose our jobs," and similar remarks. Thomas said Laurie Babet and Bill Avila also were disruptive although they, unlike Beck, got the foot and asked questions at the meeting. Thomas said that there were one or two other people in a group with Avila, but Thomas did not know their names. Thomas said that he observed Urias standing in the hallway outside the room where the meeting was held. Thomas also observed Urias stick his head in the door- way and look around the room. Thomas had not seen Urias, Beck, Babet, or Avila previously at union meet- ings.146 Raymond L. Swanson attended the union meeting at the Holiday Inn in Greeley. Swanson estimated that the union meeting lasted for about 4 hours. Swanson heard Babet state that the Union was there to try to get the jobs back for all of the old workers and put the new people out of work. Swanson heard one of the union of- ficials reply that was ridiculous because only 3 to 4 per- cent of the former employees had applied for employ- ment. Swanson also heard Babet say that the Union was there to get their money, and that the Union did not care about the workers. Babet then left the meeting, and she went out into the hall. In the opinion of Swanson, Babet's voice was "very close to screaming , very nasty and sharp tones." Swanson said at the hearing that he had been told that Babet was a company supervisor, but he acknowledged that he had no personal knowledge of that. Swanson also acknowledged that he had seen Babet serving as an election observer for the Company during the election in June 1983. Swanson observed that while Babet was in the hall, she was standing with Linda Beck and three males. Swanson did not hear what was said between Babet and Willie Rivas. However, Swanson described what he saw had occurred between Beck and Rivas. Swanson saw Beck offer a piece of cake to Rivas. Swanson heard Rivas tell Beck that Rivas did not eat cake. Beck then told Swanson that it was better for Rivas to eat the cake than to have the cake thrown in Steve Thomas' face. At that time, Thomas was conducting the union meeting. Swanson heard Beck ask Rivas how he was doing. Rivas told Beck that he was fine. Rivas then asked Beck what she was doing there. Beck told Rivas that she had come to the meeting to see what was going on. Some of the other people there told Beck that they were there to vote. Beck told them that what she really wanted to know was "how many dummies were here." The other persons asked what she meant. Swanson heard Beck say something about the voting. The other persons then told her that they were going to vote for the Union. Swanson heard Beck reply that if they did so, it would cost them their jobs. Swanson identified an employee only by his first name of Jess who Swanson said asked Beck what would Beck know about jobs. Jess told Beck that all Beck did was stand behind them and push. Swanson tes- tified that Beck replied: "And if you vote for the union, that's what I'm going to be doing from now on; pushing even harder." Swanson said that a few more words were exchanged, and then one of the employees told Beck that he thought she had better leave because there was going to be trouble if she did not. As Beck, Babet, and three males were leaving, they turned around and made a vulgar gesture to the group of employees. Swanson esti- mated at the hearing that Beck and Babet had been there for about 2 hours, ,and that they left about halfway through the meeting.147 During the 3 months that Urias worked at the Compa- ny's Greeley plant, Urias stayed at the Holiday Inn in Greeley. Urias said at the hearing that other company employees who came to Greeley from locations such as Grand Island also stayed at that hotel. Urias said that he knew that Steve Thomas and other union representatives also stayed at the Holiday Inn. Urias also acknowledged that he knew that the Union conducted meetings at the Holiday Inn. He explained that he had seen announce- ments posted on the bulletin board in the Holiday Inn lobby about such meetings, and Urias had read about such meetings in literature handed out at the plant. Urias said that he had seen Thomas and other union represent- atives in the Holiday Inn restaurant, and he bad seen 147 The foregoing paragraphs are based on the credited testimony of 146 The foregoing is based on the credited testimony of Thomas Swanson MONFORT OF COLORADO them in the hotel lounge area. Urias said that he posi- tioned himself so that he could not overhear their con- versations in the lounge. Urias had a conversation with Attorney Charles E. Sykes, Meakins, Lovelady, and Terry Schroder about Urias' continuing to stay at the Holiday Inn. The conver- sation took place in Lovelady's office about 3 to 4 weeks prior to the election. Urias expressed his concern about staying at the Holiday Inn with all of the union activities that were taking place at that time. Urias suggested that he be moved out of the Holiday Inn because he did not want to be accused of spying on the meetings being held there. In addition, Urias had been there more than 2 months, and he was tired of living in that hotel. Urias was told that if he moved out at that time, it would seem as if he had been spying the entire time he was there. They also told Urias that he had just as much a right as anybody else to be at the Holiday Inn. Urias acknowledged that he knew that the Union had a meeting scheduled to be held at the Holiday Inn in Greeley on the Thursday night before the election on Friday. Urias said that he knew of the meeting because he had read the leaflets that had been distributed and from hearing "all the talk that was going through the plant." After working hours on that Thursday, Urias played in a softball same between a coed management team and a coed hourly employees' team at a softball diamond locat- ed at the Company's Gilcrest feedlot. Gilcrest is approxi- mately 10 miles from Greeley. He said the softball game ended about 3 or 8:15 p.m. After the game, Urias re- turned to the Holiday Inn in Greeley about 8:15 or 8:30 p.m. He said he picked up his laundry at the front desk, and he made a request for a wakeup call. Urias said that he then went down the hallway at the Holiday Inn where he observed about 100 people.148 Urias acknowledged at the hearing that he knew Linda Beck, but he, said he did not know Laurie Babet. Ac- cording to, Urias, he did not speak to anyone in the hall- way in the Holiday Inn; nor did he recognize anyone; and be went directly to his room on the fourth floor of the Holiday Inn where he had dinner in his room. As in- dicated above, I have credited Thomas' testimony that Urias did look inside the room where the meeting was being, held: 3. Conclusions I conclude that the evidence does not support the alle- gations in subparagraph V(y) of the General Counsel's complaint . I conclude that the evidence does not estab- lish that either Beck or Babet were supervisors of the Respondent within the meaning of the Act. Thus, the statements ' which they made at the meeting and in the hallway outside the meeting room were not attributable to the Respondent, nor can their presence in that loca- tion be considered surveillance by the Respondent be- cause they were not supervisors. I conclude from Thomas ' testimony and Urias' testi- mony , that Urias was in the hallway outside the room where the union meeting was being held . I further con- 148 The foregoing is based on the credited testimony of Urias 147 elude from Thomas' testimony that at one point Urias stuck his head in the doorway and looked around the room. In concluding that there was no violation in Urias' doing so, I have considered the fact that the union meet- ing was held in a public place, and that the meeting had been publicized beforehand. I have also considered the fact that Urias had been staying at the Holiday Inn for sereval months, and that Thomas had seen Urias there on several occasions. Thomas acknowledged that it was not uncommon for him to see company management people and attorneys at the Holiday Inn. Thus, the Union select- ed the location for its meeting with full knowledge of the foregoing facts. Thomas did not state specifically how long Urias was in the hallway nor did he state spe- cifically how long Urias looked in the doorway of the room where the meeting was being held. However, from the expression used by Thomas that Urias had stuck his head in the doorway, I conclude that Urias' looking in the room was very brief or momentary. Under the fore- going circumstances, I conclude that the evidence does not establish that the Respondent was engaged in surveil- lance of the Union's meeting. Accordingly, I recommend to the Board that the allegations in subparagraph V(y) be dismissed. P. Paragraph V(aa) 1. Allegations The General Counsel alleged in subparagraph V(aa) the following: (aa) On or about June 24, 1983, Respondent, acting by and through Vince Velasquez, stated to its employees to think twice before they voted be- cause they could be out of jobs the Monday follow- ing the Board election. 2. Facts On the day of the election on 24 June 1983, Esther Es- trada had a conversation with Vince Velasquez. Estrada described Velasquez as being a leadperson at that time. She said that Velasquez wore a red hat at work, as dis- tinguished from the yellow hats worn by supervisors. Es- trada said that Velasquez was a leadman for about 50 employees, and that he helped employees whenever there were problems. Estrada overheard Velasquez warn employees orally that they were not doing their job, but she did not see or hear Velasquez give a written warning to an employee. On more than one occasion, Velasquez told Estrada that she could work overtime. Estrada testi- fied: "He said that the supervisor had given him the au- thorization to let whoever he felt could do the job stay over and work." Sometimes Velasquez asked Estrada to work overtime, and there were times when Velasquez told her she had to work overtime when the whole de- partment was required to do so because of the problems which had occurred during the day. Velasquez inspected Estrada's work on a daily basis, and he informed her whether she was doing a good job. When there were employees absent or when there were problems with the machines, Velasquez assigned Estrada 148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to take someone's place or to work on another machine. She said at the hearing that there was usually a supervi- sor behind Velasquez whenever there were problems. Estrada said that she was one of the few machine opera- tors who could "go from machine to machine." She also said, "I was one of the older people that had been there from the beginning and because I could almost do all the jobs." The conversation between Estrada and Velasquez took place just prior to the time that Estrada and two other unidentified employees went to vote in the election. Ve- lasquez told Estrada and the other two employees that they should think twice about how they were going to vote because it could mean their having a job on the fol- lowing Monday. 149 2. Conclusions I conclude that the evidence does not support the alle- gations in subparagraph V(aa) of the General Counsel's complaint. The reason is that the evidence does not es- tablish that Velasquez was a supervisor within the mean- ing of the Act. Thus, one occasion related by Estrada re- vealed that a supervisor had given Velasquez the author- ity that day to let employees that he felt could do the job stay over and work overtime. On other occasions when he told Estrada to work overtime, the whole de- partment was required to do so. Thus, in those instances I conclude that Velasquez was not exercising his own in- dependent judgment on behalf of the employer to decide that overtime hours he worked. Because of Estrada's ex- perience and versatility on various machines, I also con- clude that Velasquez was not exercising independent judgment when he placed her on another machine when a problem arose. With regard to another one of the several indicia of supervisory authority set forth in Section 2(11) of the Act, the Board pointed out that the indicia "must reflect some meaningful measure of independent judgment." The Board held J.R.R. Realty Co., 273 NLRB 1523 (1985): Although the "hiring" of an employee is often a dia- positive indicator of supervisory status, the "hiring," just like any other indicium of supervisory status, must reflect some meaningful measure of in- dependent judgment. Thus, an individual may "hire" an employee In the colloquial sense, yet not be a supervisor within the meaning of the Act if the "hiring" individual is merely performing a ministeri- al act or carrying out the directions of another who actually possesses the necessary authority. See, e.g., Bricklayers Local 44 (Raymond International), 207 NLRB 354, 356 (1973). In accordance with the foregoing holding, I conclude that the evidence does not establish that Velasquez was a supervisor within the meaning of the Act. Accordingly, I recommend to the Board that the allegations in subpara- graph V(aa) of the General Counsel's complaint be dis- missed. 149 The foregoing is based on the credited testimony of Estrada. Q. Paragraph V(bb) 1. Allegations The General Counsel alleged in subparagraph V(bb) the following: (bb) On or about April, 1982, Respondent, acting by and through Phil Arnold, solicited employees to sign statements indicating they did not wish union representation. 2. Facts Paul Villa had a conversation with his supervisor, Phillip Arnold, around the first part of April 1982. Villa was working as a tender puller at the Company. Arnold told Villa that since Villa knew all of the jobs on table one, Villa could be in line for a leadman's job. A day or 2 later, Villa had still another conversation with Arnold. That conservation took place outside of the locker room at the Company. Just Villa and Arnold were present at the time of their conversation. Arnold gave Villa a single piece of yellow paper. Arnold told Villa to go around and get the names of people who did not want the Union in the plant. Arnold also told Villa he would make sure that Villa got the leadman's job. Villa did not recall at the hearing exactly what was writ- ten on the yellow piece of paper, but he said it stated if the person did not want the Union in the plant, to please sign below. Because Villa thought that circulating the paper Arnold had given him would help Villa get the lead- man's job, Villa circulated the paper among the employ- ees who worked on table one. Villa did so for a week during lunchbreaks and after work. Villa got about 50 or 60 employees ' signatures on the paper. About 80 employ- ees worked on table one at that time. Villa told the em- ployees that the supervisor had given the paper to him. Villa also told the 'employees that it was a voluntary thing; that if they wanted to sign, they could do so; if they did not want to, they did not have to do so. After work during that week, either Arnold or a female em- ployee who wore a blue helmet picked up the paper from Villa. Arnold returned the paper to Villa the next day. At the end of the week, Arnold took the paper and expressed his dissatisfaction at the small number of names Villa was able to obtain. Earlier in his testimony at the hearing, Villa had stated that Arnold thanked him and told him they had enough names. Villa was confronted with his prehearing affidavit dated 21 July 1982 wherein he gave the above version. (See R. Exh. 68.) Villa then acknowledged that his recol- lection was clearer at the time he had given his prehear- ing affidavit, and that what he had said in his prehearing affidavit was the truth. I credit the above version which is consistent with his prehearing affidavit. Villa said at the hearing that he did not think that he had signed the paper; he did not know for sure; and he did not recall signing it. Villa was not promoted to the leadman's job. Villa was transferred to the job of boning chucks, which he performed until his termination from employment with MONFORT OF COLORADO 149 the Company on 25 May 1982. It is not alleged in the General Counsel's complaints that the Company's failure to promote Villa to the leadman's job; the Company's transfer of Villa to boning chucks; or the Company's ter- mination of Villa were discriminatory or unfair labor practices.'so I have considered Arnold's testimony which is incon- sistent with Villa's account. In Arnold's version, four or five employees, including Villa, approached him and asked him whether he thought it would be a good idea for a group of them to sign such a petition against the Union. Arnold's version is that he told the employees that he had been more or less told not to discuss any type of union matters, and he could not tell anybody anything as to what to do or what not to do. Arnold's version also is that he told the employees it was entirely up to them; they should do what they wanted to do; there were pros and cons with regard to the Union; and it basically was entirely up to them whether they wanted to sign or not. Arnold denied that he had given Villa a petition to pass around the plant, and he denied that he ever saw such a petition at the plant. Arnold acknowl- edged at the hearing that Villa was being considered for a promotion to the leadman's job during the latter part of March 1982, and Arnold acknowledged that Villa did not get that promotion. However, Arnold said that he se- lected someone else other than Villa to be the leadman. As indicated above, I have credited Villa's account and I do not credit Arnold's account. 3. Conclusions I conclude that the evidence does support the allega- tions in subparagraph V(bb) of the General Counsel's complaint. I conclude that the evidence ' established that Arnold is the one who suggested to Villa that he circu- late the petition against the Union among the employees and seek their signatures on that document. This event occurred in connection with Arnold's telling Villa that Villa could be in line for promotion to a leadman's job, and Arnold's telling Villa that Arnold would make sure that Villa got the leadman's job. Thus, I conclude that the evidence showed that Villa's promotion to the lead- man's job was linked to Villa's circulation of a petition against the Union among the employees on table one. I conclude that the Respondent has violated Section 8(a)(1) of the Act as alleged. R. Paragraph V(gg) 1. Allegations The General Counsel alleged in subparagraph V(gg) the following: (gg) On or about March, 1982, Respondent, acting by and through Kit Conklin, interrogated employees about their union activities. 2. Facts Joe Gonzales worked for the Respondent from 1960 to 1975 when he purchased his own business. Gonzales was active in the Union for many of those 15 years, and he was the chief union steward in 1973 and 1974. Gonzales said at the hearing that he worked with both Meakins and Ewing during that time, and that they both were aware that he was the chief union steward. In January 1982, Gonzales applied for employment with the Company. About 2 weeks or a month later, Gonzales telephoned Ewing; urged Ewing to proceed with his employment application and said that he wanted to return to work at the Company. Ewing replied that he would see what he could do. Subsequently, Gonzales was notified by the Job Serv- ice to go to the Company for a physical examination the following week. Gonzales went to the Company to take a physical exam. While he was there, Gonzales spoke with Kit Conklin whom Gonzales knew from his previ- ous employment with the Company. Other persons were present at the time, but Gonzales did not know who they were. At that time, Conklin asked Gonzales what he thought of the Union. Gonzales replied: "no comment." Gonzales later took a hearing test at UNC, and he was rehired by the Company on 12 April 1982.151 Conklin remembered at the hearing that she had inter- viewed Gonzales in April 1982. ,Conklin denied that at any time during that interview she had asked Gonzales what he thought of the Union. She explained at the hear- ing that she was very busy at the time; that she did not make it a practice to discuss union activities with any- body; and that she did not ask anybody who came in for an interview what they thought of the Union. Conklin acknowledged that she knew that Gonzales had been a union steward at the Company prior to the time that the Greeley plant had closed. She testified, "I knew all of the stewards." I have considered Conklin's testimony as summarized above, but I have credited Gonzales' ac- count. 3. Conclusions I conclude that the evidence does not support the alle- gations in subparagraph V(gg) of the General Counsel's complaint. Under the Board's Rossmore House decision which has been discussed previously, I conclude that Conklin's question to Gonzales was not coercive. As a former chief union steward at the Greeley plant, Gon- zales' union activities were known to Conklin. In addi- tion, Conklin did not make any threat, promise, or other coercive statement in that conversation. Accordingly, I recommend to the Board that the allegations in subpara- graph V(gg) be dismissed- S. Paragraph V(hh) 1. Allegations The General Counsel alleged in subparagraph V(hh) the following: 150 The foregoing paragraphs are based on the credited testimony of Villa, except as noted above. tai The foregoing paragraphs are based on the credited testimony of Gonzales. 150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (hh) On or about July, 1983 , Respondent , acting by and through Tom Dallas or Gallas, interrogated an employee as to the employee 's union sympathies. 2. Facts Gerald Aragon had a conversation with his supervisor, Tom Galles, at the work table about 2 or 3 weeks before the representation election . Two or 3 hours before their conversation , Aragon had handed out union insignia and lapel buttons to employees across the table from him. Aragon also was wearing union insignia on the front and back of his helmet , and a "vote yes" button. Galles asked Aragon why Aragon was so interested in getting the Union in there . Aragon replied for better pay; better working conditions ; with benefits ; and things like they had previously . Galles said that he had been considered for employment with another company, but there was an election where the union was selected, and that had cost Galles his job. Aragon asked why it had cost Galles his job . Aragon did not recall at the hearing what Galles had told him . Aragon also did not recall at the hearing that he ever told anyone about his conversa- tion with Galles. 3. Conclusions I conclude that the evidence does not support the alle- gations in paragraph V(hh) of the General Counsel's complaint . Under the Board 's Rossmore House decision, I conclude that Galles' question to Aragon on that occa- sion was noncoercive . I conclude that Aragon was a known union adherent because of the union insignia and "vote yes" button he was wearing at the time. Moreover, Galles did not make any threat , promise , or other coer- cive statement to Aragon during their brief conversation. Accordingly, I recommend to the Board that the allega- tions in subparagraph V(hh) of the General Counsel's complaint be dismissed. T. V(ii) 1. Allegations The General Counsel alleged in subparagraph V(ii) the following: (ii) On or about June , 1983, Respondent, acting by and through Lee Mackey, promised employees that if they voted "no" in the union election, the employees would receive profit sharing and threat- ened that if they voted "yes," there was only a slim chance of receiving it. 2. Facts Jerry Lee Adams was employed in the box storage area of the shipping department at the Respondent's Greeley facility at the time he testified in this proceeding on 2 April 1984 . Adams previously had worked in the shipping department at the Company from about 1974 to sometime in 1975 . At that point Adams walked off the job because of his personal problems with Don Hergen- reter . Adams was terminated at that time . Subsequently, Adams worked at the Company 's feedlot for 4 or 5 months until he was fired for wrecking a truck. On 26 January 1982 Adams filed a Monfort application for employment with the Respondent at the church. Charging Party 's Exhibit 9 is a copy of his employment application . Adams' stepfather is Gary Ewing. Adams also listed on his application for employment that Peggy Ewing was a relative who was employed by the Compa- ny. Adams was rehired by the Respondent on 1 March 1982 . Two weeks later, Adams was promoted to a lead- man's position. He held that position until the early part of November 1983 when he voluntarily relinquished that job, and he became a rank-and-file employee of the Com- pany. About 3 weeks before the representation election in June 1983 , Adams had a conversation regarding the Union with his supervisor , Calvin Lee Mackey, in Mac- key's office at the plant . Another supervisor , Brian Hoff- man, also was present , but he did not say anything during the conversation . It was not unusual for Adams to be in Mackey's office because Adams spent about 80 percent of his working time there . Mackey initiated the conversation with Adams . They talked about things that could make their job better . During that conversation the subject of the Union was brought up, and the subject of the Company 's profit-sharing plan was mentioned. Ac- cording to Adams, Mackey told him: If the union were to come into the plant, the profit sharing would probably not be there. And if the union was not to go in there, our profit sharing would be good , it would probably be there . There was no definite answer either way. Adams denied that Mackey told him that once a union came in the plant, everything including profit sharing and wages were subject to negotiations . Adams agreed during cross-examination that each person was express- ing his views about the upcoming election , and that it was "a give and take discussion." Adams said that he had other conversations subse- quently with Mackey about the Union, the election, and profit sharing. Adams did not recall the dates of those conversations . According to Adams, "it was just more or less the same stuff." On the day before the election, Mackey had another conversation with Adams . Adams said that Mackey in- structed him to organize the box storage employees to be against the Union coming in the plant and to have them to votes. Adams told Mackey that he was "all for it." Adams explained at the hearing that he was against the Union at that time . As a result, Adams told the employ- ees that if they were to vote "no union," their profit sharing and their job security would be there , and if they went the other way, they probably would not have either one . Adams acknowledged at the hearing that Mackey did not tell him to say anything about profit sharing or job security to the employees , but that Adams could express his own views. On the day of the election, Mackey told Adams that Mackey 's hands were tied ; that they could not do any- MONFORT OF COLORADO thing about the election; that it was up to Adams and be- cause Adams was not in management, Adams could go around and talk to employees. As a result, Adams again spoke to employees on the day of the election about profit sharing, job security, and the former workers coming the in the plant. Adams acknowledged at the hearing that Mackey had not instructed him to talk to the employees with regard to the foregoing subjects. As a leadman, Adams released the box storage em- ployees to go to the polling area to vote. Adams testified that he told the employees in groups of three employees: "I told them just to remember that their profit sharing is laying on the line if they vote the wrong way . . . I told them that if they voted yes, that there would probably be no profit sharing." Adams knowledged at the hearing that he expressed his view as to how he was going vote in the election, and his view as to how the election would turn out. Mackey told Adams that he had a right to express his views just like everybody else in the plant, and that Adams could express his views to other employ- ees, supervisors, and to anybody he wanted to. It is not alleged in the General Counsel's complaints that Adams was acting as an agent of the Respondent with regard to the foregoing conduct, or that such con- duct constituted unfair labor practices. In assessing the credibility of Adams, I have consid- ered an inconsistency between his testimony, at first, at the hearing and his prehearing affidavit. Adams, at first, said he had attended a few of the meeting between su- pervisors and employees in the shipping department. Adams confronted with his prehearing affidavit wherein he had stated that he never had a chance to attend such meetings except for a speech given by Ken Monfort. Adams explained that there were "private meetings like with just the group that I did attend," but he then ac- knowledged that he did not attend any meetings between supervisors and - employees - except for the speech given by Ken Monfort. I credit his latter version which is con- sistent with his prehearing affidavit. 152 Mackey is the fabrication superintendent at the Re- spondent's Greeley plant. He began his employment with the Company on 15 February 1982 at the Company's Grand Island plant. Two weeks later, Mackey trans- ferred to the Company's Greeley plant. Mackey was the shipping and storage superintendent at the time of the representation election in June 1983. Mackey attended two meetings at the Company where the TIPS' program was discussed. 1s3 I have considered Mackey's denials' of his conversa- tions with Adams, but I have credited Adams' account. 3. Conclusions I conclude that the evidence does not support the alle- gations in subparagraph V(ii) of the General Counsel's complaint. I conclude that the evidence showed that the statements made by Mackey to Adams with regard to the Company's profit-sharing plan were similar to the statements made in the speech by Ken Monfort. For the 15 2 The foregoing paragraphs are based on the credited testimony of Adams with the exception, noted above. 15 3 The foregoing is based on the credited testimony of Mackey. 151 reasons set forth with regard to the statements made by Ken Monfort as discussed above with regard to subpara- graphs V(g) and (h), I conclude that Mackey's state- ments similarly were noncoercive. Accordingly, I recom- mend to the Board that the allegations in subparagraph V(ii) of the General Counsel's complaint be dismissed. U. Paragraph V(Y) 1. Allegations The General Counsel alleged in subparagraph V(jj) the following: (jj) On or about September 9, 1983, Respondent, acting by and through Cecil Foote, told an employ- ee that "a man like that [an employee who would testify against Respondent in an NLRB hearing] ought to be shot." 2. Facts Superintendent Cecil Foote issued on 12 September 1983 a step 3 written warning to Gerald Aragon for poor work performance. (See G.C. Exh. 90(q).) According to Aragon, at least 20 other employees were boning chucks at the time on table G when Foote took a bone from the bone chute and walked over to where Aragon was working. Foote told Aragon to go to Foote's office. In the office, Foote informed Aragon that his work performance had not improved; that Aragon had left an excessive amount of meat on the bone, which was in excess of 3 pounds of meat and which was costing the Company money; that was very poor performance; that he knew Aragon had worked on that bone because he had seen Aragon throw the bone in the chute; that Foote was timing Aragon once again; and that Foote was taking too long on his cuts. Foote also told Aragon that, if his work did not improve, for Aragon to start looking. Aragon replied that he would try to improve his work performance. Aragon informed Foote on that occasion that Aragon had received a subpoena to appear at a NLRB hearing concerning former employees who had worked for the Company. Aragon asked Foote if it would be possible to have the following Monday or Tuesday off from work. Foote replied that he supposed something could be ar- ranged. Aragon then asked if there was any chance he could get paid for this because it was job related. Foote asked Aragon if Aragon realized what Aragon was doing. Foote told him that Aragon was going to court in a lawsuit concerning Aragon's employer. Ac- cording to Aragon, Foote also told him: I have no respect whatsoever for a man like that a man like that ought to be shot, or better yet, he ought to be taken out on some distant airplane and just abandoned on some island. Aragon did not say anything immediately, but then he told Foote that Foote had been on him constantly be- cause Foote knew that Aragon was a union organizer in the facility; that Aragon was trying to get the Union 152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD elected there; and for that reason Foote had no liking whatsoever for Aragon. Foote replied that the Union had nothing to do with the plant closing its doors, and that it was done because of economic reasons. Aragon asked how many of the former employees had been called back to work. Aragon said that he had a sister-in-law and a brother-in-law who wanted to come back to work, but who had not been called back by the Company. Foote said that maybe 200 employees had been called back to work. Aragon asked Foote how many were left. Foote replied maybe so. Foote told Aragon to pick up the dirty bone and return to his job station. Foote also told Aragon that, if his per- formance did not improve, Aragon would be moved into another step in the discipline process. At the hearing, Aragon acknowledged that he knew the next step would be suspension from work for 1 day with pay.' 54 Charging Party's Exhibit 33 is a copy of a NLRB sub- poena directed to Aragon and requiring him to appear on 19 September 1983 at a hearing in Denver involving the Respondent. 1 s s I have considered Foote's version of his conversation with Aragon on that occasion. Foote acknowledged that Aragon showed him a subpoena that Aragon had re- ceived. In Foote's version, Aragon asked if he could have a day off to appear in court. Foote said that he re- plied that since Aragon had a subpoena, Foote had no choice but to go ahead and let Aragon have the time off that he needed. Foote said that Aragon then asked if he would get paid for it, and Foote replied that he did not think so, but Foote would check on it. Subsequently, Foote said that he asked Lovelady about it, and Love- lady told Foote that Aragon would not be paid for it. Foote then told Aragon's supervisor to relay that infor- mation to Aragon. In Foote's version, Foote denied the statements which were attributed to him by Aragon. As indicated above, I have credited Aragon's version of this event, and I have not credited Foote's version. 3. Conclusions I conclude that the evidence does support the allega- tions in subparagraph V(jj) of the General Counsel's complaint. I conclude that the evidence established that Foote told Aragon that an employee who would testify against the Respondent in a NLRB hearing ought to be shot or abandoned on some island. I conclude that the foregoing statement is coercive, and that the Respondent has violated Section 8(a)(1) of the Act in that regard. 2. Facts Kelly Sodman had a conversation with his supervisor, John Herrera Jr., about 3 or 4 weeks before the election at the Greeley plant. The conversation took place at lunchtime. Present were Herrera, Sodman, employee Tom Bibey, and employees Dell, Wayne, and Joe, who were identified only by their first names. Before Herrera arrived, Sodman had been talking to the other employees about the Union to see if they would join. When Herrera arrived, he told the employees that he had just returned from a supervisor's meeting . Herrera said that Ken Mon- fort was going to do the same thing as before and close the plant if the Union came in. Herrera said to keep that off the record. Sodman responded that he did not believe Ken Monfort could do that because Sodman believed it was against the law to say that he would close down the plant if the Union came in. Sodman thought at the hear- ing that Herrera replied: "He will do it," or something like that. 1 s 6 Herrera denied the statements attributed to him by Sodman in the foregoing conversation. I have considered Herrera's version of what he told employees when em- ployees asked him if the plant would close if the Union came in. In Herrera's version, he said that he replied that he did know what was going to happen from day to day; that in the packing industry one day a person will work and the next day the doors are closed; that there was no security for anybody; that a person is alive today and dead tomorrow; that the person did not know whether he would be here tomorrow, nor did Herrera know whether he would be here tomorrow; that he could not answer a question like that, nor did Herrera think anyone could do so. Herrera told the employee that Supervisor Caster had been in the industry for 40 years, and Herrera referred the employee to Supervisor Caster. Although I have considered Herrera's account, I have credited the version given by Sodman. 3. Conclusions I conclude that the evidence does support the allega- tions in subparagraph V(kk) of the General Counsel's complaint. I conclude that the evidence shows that Her- rera threatened employees by telling them that Ken Monfort was going to close the plant if the Union came in. Accordingly, I find that the Respondent has violated Section 8(a)(1) of the Act as alleged. V. Paragraph V(kk) 1. Allegations The General Counsel alleged in subparagraph V(kk) the following: (kk) On or about early June 1983, Respondent, acting by and through John Herrera, threatened employees that if the union came in, then Ken Mon- fort would close the plant. 164 The foregoing is based on the credited testimony of Aragon. 15 s The foregoing is based on documentary evidence. W. Paragraph V(11) 1. Allegations The General Counsel alleged in subparagraph V(11) the following: (11) On or about late July 1983 , Respondent, acting by and through John Herrera, threatened an employee with retaliation for the employee 's giving a statement to the union. 1;6 The foregoing is based on the credited testimony of Sodman. MONFORT OF COLORADO 153 2. Facts Kelly Sodman had a conversation with his supervisor, John Herrera Jr., between 9 and 15 August 1983. The conversation took place in the Company 's parking lot after working hours . Just Sodman and Herrera were present during their conversation. Herrera asked Sodman if Sodman thought Herrera was trying to bribe Tom Bibey with the gloves . (See the event described with regard to subparagraph V(u).) Sodman said yes. Herrera told Sodman that a lot of people would do almost anything for $10. Herrera also told Sodman that someone would get Sodman . Sodman told Herrera that Herrera was threatening him. During cross-examination , Sodman recalled that Herrera also told him that Ken Monfort had gotten mad at Herrera because charges had been filed regarding what Herrera had said. 1157 Herrera gave an entirely different version of the event related by Sodman . In Herrera's version, Bibey tele- phoned Herrera and informed Herrera that Sodman had told Bibey that Sodman was going to the Union, and Sodman wanted Bibey to go along with him as far as saying that Bibey had been receiving free gloves for his vote . According to Herrera, Herrera asked Bibey what he thought, and Bibey told Herrera that Sodman would do it because Sodman was pretty strong for the Union. Herrera said at the hearing that the foregoing was kind of a shock to him because he had thought he was on good terms with Sodman who was a good employee and one of the better graders at the Company. Herrera said that he approached Sodman the next day , at his work sta- tion on the Brading table , and he told Sodman that Her- rera was "just messing around" regarding the free gloves . According to Herrera , Sodman told him that he did not know whether or not Herrera was "messing around ," Herrera testified that he told Sodman, that he thought it was obvious because everybody had laughed. In Herrera's version, Sodman then told him , "Listen, I don't have anything against you. I like you personally, but I don't care , who I got to stab for it or what I have to do to get that Union in . It means a lot to me." Herre- ra testified that he replied to Sodman that he just wanted to let Sodman know that Herrera had been "messing around." According to Herrera, Sodman told him that Herrera was entitled to his opinion , and that Sodman was entitled to his opinion . Herrera felt that there was no need to argue, so he just walked away. Herrera denied that Sodman had said that Herrera was threaten- ing him, and he denied that the subject of $10 ever came up in that conversation . I have considered Herrera's dif- ferent version of this event , but I have credited Sod- man's version. 3. Conclusions I conclude that the evidence does support the allega- tions in subparagraph V(ii) of the General Counsel's complaint . I conclude that the evidence established that Herrera threatened Sodman with retaliation because Sodman had revealed the statements Herrera had made to Bibey regarding the workgloves . I further conclude that the evidence showed that Herrera was aware that Ken Monfort was mad at him because charges had been filed against the Company regarding what Herrera had said to Bilbey . Accordingly, I conclude that the Re- spondent has violated Section 8 (a)(1) of the Act as al- leged. X. Paragraph V(mm) 1. Allegations The General Counsel alleged in subparagraph V(mm) the following: (mm) On or about June 22, 1983, Respondent, acting by and through James Finney interrogated an employee as to the reasons for his union support. 2. Facts Jose Varela had a conversation at lunchtime with Su- pervisor James Finney 2 days before the representation election held on 24 June 1983. Their conversation took place at Varela 's work area in the fabrication depart- ment. Just Varela and Finney were present during the conversation . Varela had just returned from lunch, and he was reading the wording on two large signs on the wall. Finney approached Varela and asked him why he needed a union . Finney told Varela that a person like Varela did not need a union; that Varela was doing a pretty good job; and that Varela was making a lot of money for the Company with the kind of cut he was making . Varela replied that he was still for the Union. Varela was wearing his union sticker at the time of the conversation. 15 s Finney denied that he ever talked with Varela about any union related issues , although Finney acknowledged that possibly he had asked an employee why the employ- ee felt he needed a union . I have considered Finney's tes- timony, but I have credited Varela's account. 3. Conclusions I conclude that the evidence does not support the alle- gations in subparagraph V(mm) of the General Counsel's complaint . Under the Board's Rossmore House decision, I conclude that the questioning of Varela by Finney as to why Varela needed a union was not coercive in these circumstances . As noted in the findings, Varela was wearing a union sticker at the time of the conversation. In addition, the Board held in Rossmore House at page 1178: "Nor do we find any violation regarding the second incident when the Respondent's owner asked Harvey why he wanted a union and whether the union charged a fee." Accordingly, I recommend to the Board that the allegations in subparagraph V(mm) of the Gen- eral Counsel's complaint be dismissed. 1 57 The foregoing is based on the credited testimony of Sodman 158 The foregoing is based on the credited testimony of Varela 154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Y. Paragraph V(nn) 1. Allegations The General Counsel alleged in subparagraph V(nn) the following: (nn) On or about the middle or latter part of August 1983, the Respondent acting by and through its supervisor, Tom Galles, threatened its employee with plant closure or a union strike if the union won the election. 2. Facts In the latter part of August 1983 , Supervisor Tom Galles transferred employee Dana Huff from his tempo- rary job in the hamburger department to perform clean- up work for 2 days. At that time , Galles told Huff that Plant Manager Maurice Dalton wanted Huff to perform the cleanup work. When Galles told Huff about the change in job assign- ments, Huff told Galles that this was probably because there was "a re-election handed down," and Huff was doing some organizing in the hamburger department. Huff also told Galles that he had been wearing a union pin which read "Vote Yes-UFCW," and Huff asked if that was probably why Dalton wanted Huff outside. Galles asked Huff if he had ever read the bylaws of the Union . Huff said no. Galles told Huff that the Union could call a strike whenever they wanted to. Huff then said, "So if this plant goes-." Galles interrupted and said, "So if this plant goes union , there's going to be a whole lot of you out of work, because he'll shut the plant down ." Huff replied that he did not know. The conversation continued for a few minutes, and then Huff told Galles , "Well, let's don't talk about it anymore." On several other occasions when Galles assigned Huff to another job , Galles said to Huff, "Still wearing your union pin, huh?" Huff replied yes, and that he was "union all the way." 1 s s 3. Conclusions I conclude that the evidence does support the allega- tions in subparagraph V(nn) of the General Counsel's complaint. I conclude that the evidence showed that Galles threatened Huff by telling him that the plant would shut down if the plant went union. I conclude that such a threat linked to the employees' selection of a collective-bargaining representative is coercive. Accord- ingly, I conclude that the Respondent has violated Sec- tion 8(a)(1) of the Act. VIII. THE SPECIFIC ACTS ALLEGED TO BE IN VIOLATION OF THE SETTLEMENT AGREEMENT The Acting Regional Director for Region 27 of the Board, on behalf of the General Counsel, issued on 25 November 1983 an order setting aside settlement agree- ment and complaint and notice of hearing in Case 27- CA-8072. The General Counsel alleged that the Re- 159 The foregoing paragraphs are based on the credited testimony of Huff. spondent's conduct, which was described in certain sub- paragraphs of paragraph V in Case 27-CA-7742, violat- ed the terms of an informal Board settlement agreement in Case 27-CA-8072, which the Respondent had entered into, and which the Regional Director had approved on 13 April 1983. The Respondent's conduct alleged to be in' violation of the settlement agreement is set forth in subparagraphs V(d) through V(bb) and V(hh) through V(ii) of the General Counsel's complaint in Case 27-CA- 7742. Therefore, the Acting Regional Director vacated and set aside that settlement agreement. Among other things, the informal Board settlement agreement in Case 27-CA-8072 provided that the "Charged Party," which is the Respondent in this pro- ceeding, would comply with all the terms and provisions of the notice which was attached to, and made a part of, that settlement agreement. The first and second para- graphs of the notice to employees stated: Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives 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. WE WILL NOT do anything that interferes with, restrains or coerces you with respect to these rights. The next four paragraphs of the notice dealt specifical- ly with the provisions of the Respondent's solicitation and distribution rule. I conclude that the evidence established that the Re- spondent engaged in certain conduct, after the settlement agreement was approved on 13 April 1983, that violated the terms of the settlement agreement contained in the first two paragraphs of the notice. The conduct, which was alleged by the General Counsel in the complaint in Case 27-CA-8072 to be violative of the settlement agree- ment, and which I conclude violated the terms of the settlement agreement, already has been set forth in sec- tion VII this decision with regard to the following sub- paragraphs of paragraph V of the General Counsel's complaint in Case 27-CA-7742: (d), (e), (f), (k), (n), (D), (r), (u), (jj), (kk), and (ii). With regard to the other con- duct alleged by the General Counsel in Case 27-CA- 8072 to be violative of the settlement agreement, I found the conduct not to be violative, or in the case of the con- duct described in paragraph V(bb), to have occurred prior to Regional Director's approval of the settlement agreement . The Board held in its decision in Universal Blanchers, 275 NLRB 1544, 1545 (1985): The Board will not set aside a settlement agreement unless the charged party breaches the agreement or commits post settlement violations of the Act.3 8 Henry I. Siegel Co., 143 NLRB 386 (1963). MONFORT OF COLORADO In view of the foregoing , I conclude that the Acting Regional Director for Region 27 of the Board was war- ranted in vacating and setting aside the informal Board settlement agreement in Case 27-CA-8072 because the Respondent engaged in conduct after approval of that settlement agreement which violated the terms of that settlement agreement . Accordingly, I deny the Respond- ent's motion to dismiss certain unfair labor practice alle- gations which has predated the settlement agreement. IX. THE RESPONDENT'S FORMER SOLICITATION AND DISTRIBUTION RULE The General Counsel alleged in the complaint in Case 27-CA-8072 that the Respondent's former solicitation and distribution rule had violated Section 8(a)(1) of the Act. (See pars. V and X of the complaint in Case 27- CA-8072.) General Counsel's Exhibit 17 is a copy of the Compa- ny's "Work Rules & Policies" which previously were ap- plicable to Greeley employees. That document had an issue date of 1 March 1982. The former rule is printed on pages 7 and 8 of that document. Pursuant to the informal Board settlement agreement referred to above, the Re- spondent revised its rule prior to the representation elec- tion in June 1983. There is no allegation that the revised solicitation and distribution rule in effect since that time is unlawful. General Counsel's Exhibit 66 is a copy of the Company's work rules and policies as revised on 31 March 1983. When a new employee has been hired, the Company has had the practice of giving the new em- ployee a copy of the current Company's work rules and policies. Copies of that document also are posted at the plant, 16 0 In view of the foregoing, I conclude that this case is distinguishable from the situation in Auburn Foundry, 274 NLRB 1317 (1985), where the Board found no record evidence of a purported modification of an unlawful rule, nor any record evidence of adequate publication of the new rule to employees. I, conclude that the General Counsel's allegation re- garding the former rule is moot at this point in time. Therefore, I recommend to the Board that the General Counsel's allegations in paragraphs V and X of the com- plaint in Case 27-CA-8072 be dismissed. The other conduct described above in section VIII of this decision, which violated the terms of the settlement agreement, will be remedied in the Order to be recom- mended to the Board in this proceeding. X. THE TERMINATION OF JAMES LITTLE ON 10 MARCH 1983 A. Allegations The General Counsel alleged in paragraphs V and VI of the complaint in Case 27-CA-8316 the following: 180 The foregoing is based on, the credited testimony of Lovelady and documentary evidence V 155 On or about March 10, 1983, Respondent dis- charged James Little, and on or about March 7, 1983, discharged Ruth De Vargas, employees at its Greeley, Colorado plant, and at all times since has failed and refused, and continues to fail and refuse to reinstate these employees. VI The Respondent engaged in the acts and conduct described above in paragraph V because of said em- ployees membership in and activities on behalf of the Union. B. Facts The facts pertaining to the termination of James Little on 10 March 1983 will be discussed in this section. The facts pertaining to the termination of Ruth De 'Vargas will be discussed in section XI of this decision. The Gen- eral Counsel alleged that both of them were terminated in violation of Section 8(a)(1) and (3) of the Act. James Little worked for the Respondent from 1 March 1982 to 10 March 1983. Little read the Respondent's ad- vertisement in the Greeley newspaper, and he applied for employment at the church on 26 January 1982. Little was interviewed by a female employee in the personnel office at the Company prior to his being hired. He was unable at the hearing to describe who had inter- viewed him on that occasion. She had his application in her hand when she inquired if Little had worked on truck docks. She asked specifically about his previous employment at Specter Freight Lines. Little described his earlier employment at that company to her. She then asked him if he was still associated with the Union, and Little replied that he was not.161 Little also told her that he had been a member of Teamsters Local 710 in Chica- go. He told her that, he had dropped out of the Union when the truck dock closed. She also asked Little why he had quit several jobs, and she asked him if he had been discharged from other jobs. Little explained the circumstances to her. She informed Little that there would be some lifting involved in his job, and that he could be moved from job to job in the plant. Little signed authorization release forms which were to be sent by the Company to his former employ- ers. Little was told that it was not certain that the plant was going to open, but if it did, he might be called for employment. After that interview, and after filling out certain other forms, Little was given a physical examina- tion. Thereafter, on 1 March 1982, Little began working for the Company. Little worked for about an hour as a "first legger," but he failed to keep his knife sharp, so he was reassigned to the cooler in the slaughter department. In that job Little put a government stamp on sides of beef. Little explained at the hearing that he has never used a knife previously in his employment with other compa- 181 It is not alleged in the General Counsel 's complaint that asking this question was an unfair labor practice. 156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD vies. Mainly, he had worked on truck docks where he had loaded and unloaded trucks. Little also had driven several beer trucks, and he had worked at one time in a steel mill. Little was the first employee in the cooler. Supervisor Bill Brucker instructed him on what to do. By the end of his first week of employment at the Company, additional employees began to work with Little in the cooler. While Little was working in the cooler in May 1982, he was counseled regarding his job performance by Su- pervisor Brucker and Supervisor Dean Behne. On one occasion Behne told Little that he was pushing buttons to stop the line, which had held up production. Behne took Little to see Superintendent Don, Hergenreter. Brucker also was present. Both Behne and Brucker told Hergenreter that Little had pushed buttons in order to create problems and to stop production. Little asked them where those buttons were, but he received no answer. He was not given any written warning at that time . However, Little acknowledged at the hearing that he understood that the purpose of the Company's disci- pline without punishment policy was to enable a supervi- sor to point out to an employee his job deficiencies. Little also acknowledged that he was told that his job performance had to improve. Little said that he told them that he would try to improve. On a second occasion in May 1982, Behne and Brucker again took Little to Hergenreter's office. They told Hergenreter that Little had dumped beef on the floor, and that he again was punching buttons. Little tes- tified: "And again I was accused of punching buttons that were nonexistent." Little said that he was told on that occasion that he was expected to improve his job performance, but Little argued that there was nothing to improve. At the end of that meeting, Little told the su- pervisors that he would do the best that he could do. No Written warning was given to Little on that occasion.162 In July 1982, Little began participating in activities on behalf of the Charging Party Union. He began attending union meetings, and within 3 weeks he Joined the union committee. Little also began distributing union authoriza- tion. cards in July 1982. He estimated that he passed out at least 150 union cards within a month. He distributed the union cards primarily in the locker rooms the plant, and he did so during the lunch period. No company su- pervisor stopped him from distributing the union cards or told him that be could not do that. About a week after Little had begun to distribute union cards, about 30 cards were taken from his locker at the Company. Those cards had been signed, and they contained employees ' names and addresses. All the union cards in his locker at that time were taken. 16 3 His practice was to lock the combination lock on his locker. Little had obtained the lock from the Company on his first day of employment. There was no damage to the lock or his locker. Little acknowledged at the hear- ing that he previously had told one of the counsel for the General Counsel that at first he had thought that he had just misplaced those cards, but, after a period of time, he realized that they had been taken from his locker. About a week later, at least 15 signed union authoriza- tion cards were removed from Little's locker. Nothing else was taken from his locker on that second occasion. There was no damage to the locker. Some blank union cards were not removed from the locker. About 3 days later, around 18 union authorization cards were taken from Little's locker. Those cards had not been signed by employees. Nothing else was re- moved from his locker on that third occasion, nor was there any damage to the locker. Little did not make any complaint to any company supervisor or to company personnel about the removal or disappearance of the union cards from his locker. Little never saw any com- pany supervisor in his locker, nor did he see any compa- ny supervisor with any union authorization cards. He ac- knowledged at the hearing that there were a large number of employees at the plant who did not want union representation, and that they were as vocal about their views as he was about his own views. 1164 In late July or early August 1982, Little had a conver- sation with Supervisor George Osborn. Little was still working in the cooler at that time. Sometime later in August 1982 Osborn became the supervisor of Little. At the time of their conversation, Little was on a break and having a cup of coffee. Four or five other employees were present, but they did not participate in the conver- sation. Little recalled the name of one of those employ- ees as being Linda Bain. Little asked Supervisor Osborn if he previously had been employed, and Osborn said yes, and that he had been employed by Monfort in Gree- ley. Little asked Osborn if he had been in the Union, and Osborn replied yes. Little told Osborn that he would like to get the Union back in the plant because of the things he had seen going on in the plant. Osborn asked Little why he wanted a union in the plant. Little answered him, and Osborn told Little about his own experi- ences.16 s On 13 August 1982 Little received a step 3 written warning. (See R. Exh. 46.) Present at the meeting re- garding the step 3 written warning were: Hergenreter, Behne, Brucker, Little, and other employees in the cooler. On that occasion Little was told that he was doing poor work and they wanted Little to improve. Hergenreter told Little that Little bad been watching an employee who was supposed to be rolling beef, and there was meat being thrown around the cooler. Little testified: "And he said once again that I'd been pushing those buttons." Little told Hergenreter that Little was not a foreman; that Little could not see what was going on in the back of the cooler because of the steam; that Little had no buttons to push; and that he felt he was being discriminated against . Hergenreter told Little that his foremen did not lie, and Hergenreter would go with 162 It is not alleged in the General Counsel's complaint that the fore- 164 It is not alleged in the General Counsel's complaint that the remov- going verbal counseling were discriminatory or constituted unfair labor al of union cards from little's locker on the second or third occasions was practices an unfair labor practice 163 It is not alleged in the General Counsel's complaint that the remov- 165 It is not alleged in the General Counsel's complaint that what was al of the union cards from Little's locker was an unfair labor practice. said in the foregoing conversation constituted an unfair labor practice MONFORT OF COLORADO 157 the foremen's decision. Hergenreter said that he would put Little in step 3. Little asked Hergenreter what had happened to steps 1 and 2. Hergenreter told Little he had already been through them, and step 3 would be prepared for Little to sign the next day. However, Little subsequently was not given anything to sign. Hergen- reter also told Little on that occasion that, if Little's work did not improve, he would be placed in another step which would be step 4 and a suspension from work. 166 On 20 August 1982 Little was placed in step 4 and sus- pended from work for 3 hours. (See R. Exh. 47.) On that occasion, the line had backed up, so Little ran out of the cooler to inform Osborn who had been his new supervi- sor for 3 days. Osborn told Little that he was not doing his job properly, and that Little should have skipped over some lines. Little replied that he was not authorized to do that, and Osborn previously had told him to come and get Osborn. Osborn then took Little to Hergenreter's office, and Osborn told Hergenreter that Little again was creating trouble and not doing his job right. Little told Hergenreter that Little was not a foreman; that Little should not be telling anybody to be doing anything; that Little was not guilty of anything; that Little was not a maintenance man; and that Little could not climb up 10 feet to fix something. Hergenreter placed Little in step 4; gave Little 3 hours off, from work; told Little that he had to improve his job performance; told Little that he should go home and think about his future with the Company; that Little should think about whether Little should remain an employee of Monfort; and suggested to Little that Little try to find another Job. Hergenreter also told Little that Hergenreter would fill out some papers for Little to sign later. However, Little was not given any papers. At the hearing Little acknowledged that he knew once he was in step 4 there was a certain amount of time in which, if he received another step, he would be terminated. 16 7 After his suspension Little was assigned by Osborn to the job or "second shackler" on the kill floor. Behne was Little's supervisor in that job. Little acknowledged at the hearing that there were complaints "all the time" about his job performance. Little said that Behne would "just scream , holler and threaten," but Behne did not take any disciplinary action against Little while he was on the kill floor. Little and employee Kevin Miller had at least four conversations in August 1982 with Supervisor Behne re- garding the, Union. Those conversations took place during their break time. Little and Miller asked Behne if be had been in the Union. Behne replied yes, and he told them that the Union had never done anything for him or his family, but the Company had done everything for him. Little told Behne that he has going to try to get a 188 It is not alleged in the General Counsel 's complaint that the Re- spondent's assistance of a warning on 13 August 1982 to Little was for discriminatory reason within the meaning of the Act, or that the issuance of the warning was itself an unfair labor practice. 167 It is not alleged in the General Counsel's complaint that the Re- spondent's issuance of a warning on 20 August 1982 to Little was for a discriminatory reason within the meaning of the Act, or that the issuance of the warning was itself an unfair laboi practice. union in there. Behne was walking away, Miller began hollering the word "union" at Behne, and Little joined in. Little testified: "we sort of heckled Dean and hol- lered, `union, union' at him." Little acknowledged at the hearing that Miller had "carried it too far" in heckling Behne, and that Little had joined Miller in heckling Behne. Japanese visitors toured the Company's plant on sever- al occasions. During those visits, Miller and Little would holler "union, union." As result, other employees on the kill floor also picked up the chant. One time Behne told Little and the other employees to be quiet. Behne also told Little that he was going to put him in another step for doing that, but Behne did not do so. Little acknowl- edged at the hearing that he had heard rumors that Japa- nese people were going to buy the Company's plant about the time of their visits. Little also acknowledged that he knew that the Company sold beer to Japan. In mid-September 1982 Little won a union tee shirt in a raffle at a union committee meeting. The tee shirt-had "UFCW" on the front, and some Spanish language words on the back. The next day Little wore the tee shirt at work during the morning, and then at noon he gave the tee shirt to Miller to wear. Behne, Osborn, and Brucker were in the immediate area when Little wore the tee shirt at work. None of them said anything to Little with regard to the tee shirt. Later in his testimony, Little said that Behne had asked him to take off the tee shirt. However, that subsequent testimony was contrary to his earlier testimony and contrary to what he had ear, her told one of the counsel for the General Counsel. In these circumstances, I do not credit Little's subsequent change in his testimony on this particular matter. Four days before his termination on 10 March 1983 Little was transferred from the "second shacklers" job to the sawdust coolers in the fabrication department. Mike Voris became his supervisor in that job for those 4 days. On 8 March 1983 Little cut a 1/2-inch hole on his left ring finger across his, knuckle down to the tendons. Little was taken to the nurse's station at the plant where the nurse wrapped a towel around his finger in order to stop the bleeding. Little was then taken to the Greeley Clinic where he saw a physician. The physician was Dr. Groves. He operated on Little's injured finger, and he gave Little a prescription to obtain some medicine. Dr. Groves also gave Little the rest of the day off; told Little that be could return to work; and gave Little a slip of paper to return to work the next morning. Little returned to the plant and gave the doctor's slip to one of the company nurses who was identified only by her first name, Helen. Then Little went home. The next day Little's hand was swollen and red. He did not return to work on 9 March 1983, and he asked his wife to telephone the Company for him.168 Linda Little is the wife of James Little. On three occa- sions, she had telephoned the Company's call-in number for her husband. The Company's call-in number records the message given by the caller. One such occasion was 168 The foregoing paragraphs are based on the credited testimony of James Little and documentary evidence. 158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in May 1982 when names Little had hurt his back. Linda Little telephoned the Company's call-in number, and she said that Little would not be in to work that day. A second occasion was on 19 January 1983, when James Little had run out of gasoline on his way to work. He did not have the Company's call-in telephone number with him, so he telephoned his life who, in turn, tele- phoned the Company's call-in number and left a message that 'James Little had run out of gas, but he was on his way to work. The third occasion was on 9 March 1983 when Linda Little telephoned the Company's call-in number. She testified: "I think I said something like his finger was swollen and sore, he knew he could not work that day. I did state that if he felt better, he would prob- ably be in to see the nurse." 169 The General Counsel's Exhibit 17 contains the Compa- ny's work rules and policies. The booklet contains a sec- tion with regard to the Company's policy on absenteeism and tardiness. That section may be found on pages 13 through 15 of General Counsel's Exhibit 17. In part, the policy provides: Notification Policy 1. If you find it is absolutely necessary to be absent or late to work you must notify your super- visor at least one day in advance and obtain his/her approval to be off for the day or part of the day or to report late to work. 2. In case of emergency or sickness where it is impossible to give advance notice, you are expected to call personally the number listed below under "Reporting of Emergencies and Illness" at least thirty minutes before your scheduled starting time. Do not rely upon another person to do it for you. 3. If your illness lasts longer than one day, you must notify the Company before your shift starts each day of your illness unless you provide evi- dence from your doctor that your illness will re- quire you to be off for a specific number of days. The evidence of your prolonged illness must be provided to the Company and then you will be re- quired to call-in weekly. Reporting of Emergencies and Illnesses You will need to call the following telephone number to report either an emergency or an illness: 351-0808 The above number will connect you with a record- er. When reporting you should provide the follow- ing information: 1. Your name. 2. The time of day you are making your call. 3. The department in which you work. 4. The telephone number at which you may be reached for the remainder of the day. 5. The reason you will be absent or late. 1119 The foregoing is based on the credited testimony of Linda Little. Respondent's Exhibit 156 is the original document of the Company's "Daily Call-In Sheet" for 9 March 1983. The entry pertaining to Little is the first one of many en- tries on that page. It shows Little's payroll number, name, department, and under the "reason" heading is written: "hands' hurting-going to Nurses." Under the "time" heading is written "4:45."170 When Linda Little returned home that night, she asked James Little why he had not gone into the plant. At that time, Linda Little told him what she had said on the telephone when she had called the Company that morning. On 10 March 1983 Little reported to work. He went to Voris' office. Just Little and Voris were present. Voris had some forms on his desk. Voris told Little that he would not have a troublemaker working for him, and that he had heard from the kill floor that Little always was in trouble. Little denied that he was a troublemaker and he told Voris that he had worked very hard for him the last few days. Voris asked why Little had not come into work the previous day. Little told Voris that he felt nauseated that morning, and his hand was really hurting and sore. Voris replied that they had had work for Little the previous day, but Little just did not bother to show up. Little told Voris that he had slept most of the day. Little explained at the hearing that the medicine, which Dr. Groves had prescribed for him, had made him drowsy during the day of 9 March 1983. Voris instructed Little to go to the nurse's station and have his hand heavily wrapped because Little would be working in the kill floor coolers that day on light duty. Little then went to the nurse's station where his fingers were soaked and rewrapped with thick gauze. At the nurse's station , Kit Conklin asked Little why he had not shown up for work the day before. Conklin told Little that he had been released for light duty work. Conklin said that she had expected Little to be in to work. Little told Conklin that his hand had swollen up; that he had not slept well all night; had been nauseated all night; that his hand was inflamed; and he could not bend his fingers. Conklin told Little that Little's wife had said he was going to call in that day, or come in to see Conklin, but Little never showed up. Little told Conklin that he had slept most of the day. 171 Conklin testified that she also told Little that she had attempted to contact him by telephone the previous day. She said that Little told her that he had been sleeping and did not hear the telephone.172 Little then returned to Voris' office. Voris told Little that he was going to take Little to the kill floor, and that at 10:30 a.m., Hergenreter wanted to see Little in his office. Voris then took Little to the kill floor where he told Little to stand there until 10:30 a.m. At 10:30 a.m. that day Voris took Little to Hergen- reter's office where Little waited for about 15 minutes. Then Little was called into the office. Present in the office at that time were Hergenreter, Voris, and Little. 140 The foregoing paragraph's are based on documentary evidence. 171 The foregoing paragraphs are based on the credited testimony of James Little. 142 The foregoing is based on the credited testimony of Conklin MONFORT OF COLORADO 159 Voris said ' that Little had been late, and, according to Little's records, Little was a troublemaker. Voris said that he did not need Little in his department. Hergen- reter then asked Little where he had been. Little told Hergenreter that he had been sleeping all day. Hergen- reter said that he had expected Little to come in to work on a light duty basis. Little replied that his hand had swollen up; that he was sick at night; and that he had not gotten any sleep. Hergenreter said that he was going to put Little in step 5 because Little had not called in the morning before. Little told Hergenreter that his wife had called in for him. Hergenreter said that was not good enough, and that Little had been late for work 1 or 2 weeks ago. Hergenreter said that Supervisor Brucker had put Little in step 1 for being late; that there was no such step for that; and that Little should have been terminated then. Hergenreter told Little that he was going to put Little in step 5 and terminate him for an unexcused ab- sence. Little then used a vulgar expression regarding the Company. Little asked Hergenreter for all of the paper- work regarding the reasons he was fired. Hergenreter said it was going to take him a little while to make up the paperwork, and Little was to go to the payroll office. Little next went to the payroll office where he waited for a half hour. A-payroll clerk told Little that the pa- perwork was not ready; that Little should wait at the guard shack; and that Little should turn in his ID card. Little gave his ID card to the clerk, and he went to the guard shack where he waited for at least 40 minutes. A secretary then arrived with Little's final check and a check for his vacation. Little asked the secretary for the other paperwork, and the secretary replied that she did not know anything about any other paperwork. Little ex- plained at the hearing that about a week prior to his ter- mination he had been told that, if a person was terminat- ed, he could fill out some paperwork, and Ken Monfort would see the employee in the corporate offices. That was the type of paperwork which Little said he was seeking. 173 Linda Little said at the hearing that James Little had told her that he had talked to Voris and Hergenreter about his absence when he came into work that day. She said at the hearing that he "more or less" told her that he had told them that the reason he did not come into work was because he just wanted to spend the day in bed. She said that he also told her that they had told him he was expected to come into work, and that sleeping all day was not an excuse.174 General Counsel's Exhibit 548 is a copy of James Lit- tle's attendance card for 1982. There was no notation of steps 1 and 2 on that card. On the back of the card was written: "Was put in step #3 for attitude and work per- formance on 8-13-82. Jim was put in step #4 on 8-20- 82." General Counsel's Exhibit 549 is a copy of James Little's attendance card for 1983. On that card is written: "Step 4 on workmanship on 8-20-82. Attendance step #1 1-19-83." 175 On the night of 10 March 1983 Little went to a union meeting where he told Steve Thomas what had hap- pened that day. Thomas suggested that Little and a wit- ness go to"Hergenreter the next morning and get some paperwork from him. As a result, around 7 a.m. the next day, Little and Joe Herschfeldt of the Charging Party Union went to the Company's guard shack where Little telephoned Hergenreter. Hergenreter told Little over the telephone that it would take him a little while to get all the paperwork together. Hergenreter asked Little to have the nurse change his bandages while he was wait- ing.,Little did that, and then Little returned to the guard shack. At that time Herschfeldt informed Little that he had to leave. A few minutes later, Hergenreter tele- phoned Little at the guard shack. Little overheard the guard say that Little was there, and that nobody was with him. The guard then handed a telephone to Little who again asked for the paperwork. Hergenreter told Little that he and Lovelady had a conference. Hergen- reter told Little that they felt that the Company owed him nothing. Little then left the guard shack. Little telephoned the Company's offices about a week later and asked to speak with Ken Monfort's secretary. The secretary told Little that Ken Monfort was not in his office. Little then asked to speak to Gene Meakins. The secretary said that Meakins was not in his office. Little said at the hearing that that had occurred on three occasions when he telephoned the Company.- Little also said that he had given his telephone number to the secre- tary, and that he had asked the secretary to leave it mes- sage on Ken Monfort's desk and ask him to call Little. The secretary told Little that she would do so. Little said at the hearing that Ken Monfort did not call him, and that Little had never, filed an appeal of his termina- tion with Ken Monfort because he could not get any pa- perwork. Little filed a claim for unemployment compensation. Present at the unemployment ' hearing were: an attorney representing the Company; Attorney Martin D. Buckley, who represented the Charging Party in this proceeding; James Little and Linda Little. No company supervisors or management personnel were physically present at the unemployment hearings. Little heard over the telephone speaker at the unemployment hearing that he was fired because he did not call in, and that the Company did not accept his wife's telephone call. Little did not recall at the hearing in this proceeding who had said that. He re- called that Hergenreter said over the telephone at the unemployment hearing that Little was a constant trou- blemaker, and Little had held up a line for 3 hours on- several occasions. Little recalled that Conklin had said over the telephone at the unemployment hearing that Little had told her that he had just spent the day in bed. Little said at the unemployment hearing that Conklin was lying. Little also recalled that Voris had said over the telephone at the unemployment hearing that Little had worked for him for 2 weeks, and that Little was a 1'9 The foregoing paragraphs are based on the credited testimony of James Little 174 The foregoing is based on the credited testimony of Linda Little. 17 5 The foregoing is based on documentary evidence. 160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD constant source of trouble. Little said at the unemploy- ment hearing that Voris was lying. Little said that he had worked for Voris only 3 or 4 days. Little further re- called that the Company's witnesses also discussed over the telephone at the unemployment hearing the five steps in the Company's disciplinary procedure. Little testified at the unemployment hearing regarding his union activi- ties while employed at the Company. 176 Linda Little testified at the hearing in this proceeding: "I do remember them saying that they knew that I had called in. Then they went on to explain that there was a page 13 in their rules and regulations that said that a spouse could not call in, but they did not have page 13 there for anyone to see." 177 General Counsel's Exhibit 418 is a copy of the refer- ee's decision in he unemployment compensation claim case filed by Little. Little said that he did receive work- men's compensation benefits, and that there was no appeal by the Company of the referee's decision. 1.78 Cecil Foote testified that he was aware that employees had been terminated for falling to show up for work to perform light duty work after receiving an on-the-job injury. 17 s I found James Little's testimony regarding the events which occurred during his employment with the Compa- ny to be credible, except with regard to what his wife said on the telephone when she called the Company, and with the exception noted above regarding the tee shirt. I have relied on Linda Little's testimony with regard to what she said on the telephone when she called in and in the other instances noted previously. I also have consid- ered the accounts given by Supervisor Dean Behne, General Foreman Roland R. "Bill" Brucker, Slaughter Production Superintendent Don Hergenreter, and Gener- al Foreman James M. Voris. Their versions conflict in many respects with Little's account. Because I found Lit- tle's testimony to be credible, I have not credited their versions of the events. C. Conclusions I conclude that the ' General Counsel established a prima facie case with regard to the alleged discriminato- ry termination of James Little on 10 March 1983. The evidence showed that Little openly had engaged in union activities at the Respondent's plant beginning in July 1982 by distributing about 150 union authorization cards to employees at the plant. He became a member of the union committee in August 1982. He revealed his prounion sentiments in conversations with Supervisor Behne in August 1982. In addition, he participated with Miller in the "union, unions" chant in heckling Behne, and he took part in the "union, union" chant when Japa- nese visitors were at the plant. Behne verbally warned Little regarding that conduct. Little also wore a union tee shirt at work one day while company supervisors were in his work area. I conclude that the foregoing 176 The foregoing paragraphs are based on the credited testimony of James Little. 177 The foregoing is based on the credited testimony of Linda Little. 178 The foregoing is based on the credited testimony of Little and doc- umentary evidence. 179 The foregoing is based on the credited testimony of Foote demonstrated that Little had participated in union activi- ties at the Company, and that company supervisors knew about his union activities. The Board held in Consolidat- ed Freightways Corp., 276 NLRB 477 (1985): "A neces- sary element in the General Counsel's prima facie case is a showing that the employer had knowledge of the em- ployee's union activity." As I have stated earlier in this decision, I conclude that the evidence also showed that the Respondent was hostile to the Charging Party Union and its organizing activities among the Respondent's em- ployees. The unfair labor practices found in section VII of this decision showed the Respondent's animus, and there was evidence of other expressions of Respondent's hostility to the Charging Party Union as reflected else- where in this decision. I conclude under the Board's Wright Line decision, above, that the General Counsel has established a prima facie case with regard to Little's termination by the Respondent. I further conclude that the Respondent has met its burden under the Board's Wright Line decision by evi- dence showing that the Respondent would have termi- nated Little even in the absence of Little's union activi- ties. As indicated in the findings, it was not alleged by the General Counsel in the complaint that the warnings issued to Little by the Company in steps 1 through 4 were discriminatory or unfair labor practices. Little had received still another step 1 warning for absenteeism, but that also was not alleged to have been given for discrimi- natory reasons. I have considered the references made to Little as being a "troublemaker" at the Company. As pointed out in the decision in Rock Hill Telephone Co., 234 NLRB 690, 696 fn. 18 (1978): The term "troublemakers" has an established mean- ing in the lexicon of labor relations, as a term ap- plied by employers to individuals who are attempt- ing to instigate other employees into engaging in concerted or union activities. Passaic Crushed Stone Co., Inc., 206 NLRB 81 (1973); Garner Tool & Die Manufacturing, Inc., 198 NLRB 640 (1972). In the context of the use of the term "troublemaker" in this case, I conclude it did not have reference to Lit- tle's union activities. The conversations Little had with supervisors regarding the incidents which resulted in steps 1 through 4 reveal that the supervisors believed that Little was causing trouble in his job performance. Thus, I conclude that this situation is different from the context in which the term was used in Rock Hill and the other cases cited in that decision. I conclude that the evidence showed that, based on the doctor's slip , the Company's supervisors expected Little to report to work for light duty assignments on 10 March 1983, and, based on the telephone call-in message, the Company's supervisors expected that Little would report to the Company's nurses regarding his hand on 10 March 1983. Little did neither one. Under the Compa- ny's policy, that was an unexcused absence. Little went into step 5 at that time, which under the Company's policy meant termination. Foote testified that other em- ployees had been terminated for failing to report for MONFORT OF COLORADO 161 work to perform light duty work after the employees had sustained an on-the-job injury. Thus, I conclude that Little was not treated disparately. In these circum- stances, I recommend to the Board that the General Counsel's allegations regarding the termination of Little on 10 March 1983 be dismissed. XI. THE TERMINATION OF RUTH DE VARGAS ON 7 MARCH 1983 AND THE REFUSAL TO REINSTATE HER ON 15 APRIL 1983 A. Allegations The General Counsel alleged in paragraphs V, VI, VII, and VIII of the complaint in Case 27-CA-8316 the following: V On or about March 10 , 1983 , Respondent dis- charged James Little, and on or about March 7, 1983, discharged Ruth De Vargas, employees at its Greeley, Colorado plant, and at all times since has failed and refused , and continues to fall and refuse to reinstate these employees. VI The Respondent engaged in the acts and conduct described above in paragraph V because of said em- ployees membership in and activities on behalf of the union. VII On or about April 15„ 1983 , Respondent refused to reinstate Ruth De Vargas , its employee. VIII Respondent engaged in the conduct described above in paragraph VII because the Union filed a charge with the Board on behalf of Ruth De Vargas and because Ruth De Vargas gave testimo- ny under the Act. B. Facts As can be seen from the foregoing allegations, the General Counsel made two allegations regarding Ruth De Vargas. The first allegation is that her termination by the Respondent on 7 March 1983 was discriminatory and in violation of Section 8(a)(1) and (3) of the Act. The second allegation made by the General Counsel is that the Respondent's refusal to reinstate her on 15 April 1983 violated Section 8(a)(1) and (4) of the Act. The al- legations pertaining to James Little already have been discussed in the previous section of this decision. Ruth De Vargas began her employment with the Re- spondent on 6 July 1982. She worked as a bagger in the fabrication department. Her first supervisor was identi- fied only by her first name of Gwen. Then De Vargas was supervised by Steve Youree, and finally by Kim Vanderloo. When De Vargas began working for the Company, she received a copy of the Company's rules and policies. At that time her supervisor explained the Company's disciplinary procedure to her. Later on she also read the Company's handbook. A couple of weeks after her employment with the Re- spondent began, De Vargas began attending union orga- nizational meetings. She also signed a union authorization card. She distributed on a weekly basis union literature to employees at the Company. She did so in the Compa- ny's parking lot, or in the Company's locker room or lunchroom. De Vargas said that the company supervi- sors "never saw me passing it out." She also said at the hearing that the company supervisors had told her that she could pass out union literature or union cards on her own time, but she tried to do it so that the company su- pervisors would not see her. De Vargas stored union lit- erature in her locker at the plant. She talked with em- ployees at the Company about the Union both before work and after work. She gave out union authorization cards to employees to sign. De Vargas put a "UFCW No. 7" sticker on her locker door at the plant. She wore a union button, but she heard a rumor that employees were not supposed to do so because the buttons could go in the meat. Therefore, De Vargas removed her union button from her clothing. She acknowledged at the hear- ing that the frock which she wore had covered her union button from view. About a month prior to her ter- mination from employment, De Vargas began wearing on 1 or 2 days a week a union tee shirt at her work sta- tion at the Company. However, she wore a jacket which covered her tee shirt. A couple at times, De Vargas called loudly "Local 7, come on down" at her work station when she felt that the line was moving too fast. To her knowledge, no su- pervisor heard her yell that, and she did not see any su- pervisor at the time that she had yelled that phrase. She acknowledged at the hearing that her workplace was noisy. About a month or so after she began working at the Company, De Vargas' locker was broken into. The union literature that she had kept in her locker was re- moved. De Vargas reported to Supervisor Youree that her locker had been broken into, and that her gloves were stolen. She did not mention to Youree than any union literature had been taken from her locker. Youree told her that he did not have anything to do with it, and for her to report it to personnel. De Vargas then went to the personnel office, and she was told there that it was up to the foreman. De Vargas acknowledged at the hear- ing that other locker doors had been torn down that day. She changed her version on redirect examination to say that she did not remember. However, I credit her, origi- nal version that she gave during her cross-examination. She acknowledged at the Company that she had not seen any company supervisor break into any locker, and she never saw any company supervisor with any materials from her locker. About a month before her termination, De Vargas' locker again was broken into. She had a union sticker on her locker door, but it appeared to her to have been ripped off. Union literature again was removed from her locker, but nothing else was taken on that occasion. Some other employees told De Vargas that her locker 162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD had been broken into, so De Vargas reported that to Su- pervisor Vanderloo, and she asked his permission to go to her locker to see what damage had been done. Van- derloo at first gave his approval, but before she left her work station , Vanderloo told her he would go and look at it. When- Vanderloo returned, he told her that he did not think anything had been taken."80 General Counsel's Exhibit 420 is a copy of a step 1 written warning issued to De Vargas on 24 September 1982 for an unexcused absence on 20 September 1982.181 General Counsel's Exhibit 421 is a copy of a step 2 written warning issued to De Vargas also on 24 Septem- ber 1982 for excessive absences for being absent 2 days within a 30 day period The 2 days were 13 and 20 Sep- tember 1982.182 Your,;e had one conversation with De Vargas regarding both the steps 1 - and 2 warnings. Youree told De Vargas that she was being placed in step 1 because she had failed to notify the Company in a proper manner. Youree told her what was expected of her, and she assured him she would try to do better. De Vargas told Youree that she had a good excuse, and that she had called in, but she guessed the company tele- phone did not receive her excuse. Youree told De Vargas that she was excessively absent within a 30 day period, and he explained the company policy to her. He also told her to read the Company's handbook where it would all be explained. He also explained that step 5 meant termination, and how the steps could be removed if she had a clean record for a certain period of time. Youree said he wanted her to improve her attendance, and De Vargas said that she would work on it. General Counsel's Exhibit 422 is a copy of a step 3 written warning issued on 22 October 1982 to De Vargas for excessive tardiness on 21 September, 20 and 22 Octo- ber 1982.183 Couree told De Vargas that she was being placed in step 3 because of her being tardy. De Vargas said that she had called in to inform them why she had been tardy, and Youree told her that it did not make any difference under the company policy. De Vargas agreed with Youree that she had been absent too much and tardy too much. Youree told her that she had to improve in that area. De Vargas said that she knew that she would be placed in step 4 if she was written up again. General Counsel's Exhibit 423 is a copy of another step 3 written warning issued on 21 December 1982 to De Vargas for violating the Company's parking rules and policies.184 Respondent's Exhibits 50, 51, and 52 are 180 The foregoing paragraphs are based on the credited testimony of De Vargas , except as noted. 181 It is not alleged in the General Counsel's complaint that the Re- spondent's issuance of a warning on 24 September 1982 to De Vargas was for a discriminatory reason within the meaning of the Act, or that the issuance of the warning was itself an unfair labor practice. 182 It is not alleged in the General Counsel's complaint that the Re- spondent's issuance of a warning on 24 September 1982 to De Vargas was for a discriminatory reason within the meaning of the Act, or that the issuance of the warning was itself an unfair labor practice. 188 It is not alleged in the General Counsel's complaint that the Re- spondent's issuance of a warning on 22 October 1982 to De Vargas was for discriminatory reason within the meaning of the Act, or that the issu- ance of the warning was itself an unfair labor practice. 184 It is not alleged in the General Counsel's complaint that the Re- spondent 's issuance of a warning on 21 December 1982 to De Vargas was copies of company parking tickets issued to De Vargas on 2, 6, and 21 December 1982. Youree told De Vargas that she could have been placed in step 4 because of the three parking tickets, but Youree was going to keep her in step 3. Youree also told her that she had to honor the parking rules in the Company's parking lot, and that the security personnel were responsible for policing the parking area, and they were the ones who had issued the parking tickets. De Vargas testified: "Well, I told him that I just didn't know how I was parking, because I was parking between cars, and I just didn't know how to park any more." Youree told her the reason she was not parking in compliance with the rules was because she was getting to work too late, and that she had to hurry in the plant in order to punch in on time. Youree sug- gested to De Vargas that she leave home a little bit earli- er so she could park properly. De Vargas acknowledged at the hearing that she knew that she could be placed in step 4 if she had a further parking violation. During redi- rect examination, De Vargas changed her account as de- scribed above which she had given during cross- exami- nation. Her changed version attributed the remarks to Lovelady. I credit her earlier version rather than her changed account.185 De Vargas received two parking tickets from the com- pany security guard for parking too far away from the curb in the Company's parking lot, and she received one ticket for parking in a fire lane. She said at the hearing that she did not remember seeing a fire lane, and she ac- knowledged that maybe her tire was away from the curb "a little, but it wasn't like half my car was out." De Vargas said that there were no painted lines in the Com- pany's parking lot when she worked there to outline the area where a person was supposed to park.186 On 11 February 1983 prior to working time, De Vargas distributed union literature at the entrance to the Employer's plant. General Counsel's Exhibits 419(a) and (b) are copies of the document and union authorization card which she had passed out to employees. De Vargas and a friend were talking and walking into the plant that morning when Maurice Dalton said good morning to them. De Vargas and her friend replied with a good morning to Dalton. At that time, De Vargas had a stack of union literature in her hand. General Counsel's Exhibit 424 is a copy of a step 4 written warning issued to De Vargas on 11 February 1983 for parking violations. She was suspended for the remainder of the day with pay. The warning was given to her just before the lunch period. 1117 Respondent's Ex- hibit 53 is a copy of a company parking ticket issued on 9 February 1983 to De Vargas for parking too far from the curb. Vanderloo told De Vargas that she was being suspended for her continued parking problems, and that for a discriminatory reason within the meaning of the Act, or that the issuance of the warning was itself an unfair labor practice. 185 The foregoing paragraphs are based on the credited testimony of De Vargas, except as noted , and documentary evidence. 188 The foregoing s based on the credited testimony of De Vargas 187 It is not alleged in the General Counsel 's complaint that the Re- spondent's issuance of a warning on 11 February 1983 to De Vargas was for a discriminatory reason within the meaning of the Act, or that the issuance of the warning was itself an unfair labor practice. MONFORT OF COLORADO 163 she should improve in that area. Vanderloo also told De Vargas that she would be terminated if she violated any other company policy.188 On Friday, 25 February 1983, De Vargas had a tooth- ache while she was at work. De Vargas spoke with Van- derloo on several occasions that day regarding her tooth- ache.'Vanderloo asked De Vargas to wait until her break time and then go to the nurse for medicine. De Vargas did do that during her breaktime and at noon time. She obtained some medicine from the nurse. However, De Vargas still experienced pain, and she repeatedly told that to Vanderloo. That weekend De Vargas was unable to visit a dentist. The following Monday, 28 February' 1983, she tele- phoned the Company to inform the Company that she was going to go to a dentist that morning. She did visit a dentist that day, and she asked the dentist to give her an excuse, which he did. On Tuesday, 1 March 1983, she reported to the plant, but her timecard was not in its place. De Vargas then spoke with Vanderloo, and she asked him where her timecard was. Vanderloo replied that it was time for De Vargas "to hit the door." Vanderloo talked with her about her earlier steps 1 and 2 warnings, and he said that they had warned her about her attendance in the past. De Vargas had the dentist's excuse with her at the time, but she put it back in her pocket. Vanderloo asked to see the excuse, and he told De Vargas that he would help her get her job back. Therefore, she showed the excuse to him. Vanderloo told her that she could get her job back within a few days, and that she would have,to ask for an appeal form. After her conversation with Vanderloo, De Vargas went' to the personnel office, and she was terminated. She asked for an appeal form, and she was given one. De Vargas then went to the Holiday Inn where she talked with Steve Thomas and asked him to help her fill out the appeal form. General Counsel's Exhibit 425 is a copy of her appeal. It is dated 4 March 1983, and it was submit- ted to the Company's personnel office on that date. De Vargas spoke with Lovelady regarding her appeal. She asked him if she could get her job back. Lovelady told her that they could not hire her back because she had missed too many days and because of her parking viola- tions: De Vargas changed her version during redirect ex- amination from -the ' above which she had given during her direct examination. De Vargas said in her later ver- sion that her parking violations were not mentioned by Lovelady. I credit her original version. The bases for her appeal, as shown on General Counsel's Exhibit ;425 were: I believe the disciplinary action was unjust be- cause: 1. I arrived at step 4 because of parking tick- ets, which were issued in error. 2. I arrived at step 5 because I had a tooth problem which caused me [to] miss work because of the pain. (I had a written excuse from the dentist.) The Company's action and decision, as shown on Gen- eral Counsel's Exhibit 425 was: "After a number of warnings you continued to violate parking rules. This plus the attendance record placed you in step #5, which is termination." The Company's reply is dated 9 March 1983, and it is over the signature of Lovelady.189 De Vargas next talked with Steve Thomas regarding her termination. Thomas told her that they would go to the NLRB and try to get her job back. De Vargas changed her version to the above during cross-examina- tion. During direct examination, she had said she was un- aware at the time she spoke with Ken Monfort on 15 April 1983 that the Union had filed an unfair labor prac- tice charge with the NLRB regarding her termination by the Respondent. During cross-examination, she, at first, changed her version to state that she knew charges had been filed by the Union, but not with the NLRB. 1[ have credited the version set forth initially in this paragraph because unfair labor practice charges had been filed by the Union with the NLRB with regard to De Vargas' termination. On 15 April 1983 De Vargas had a conversation with Ken Monfort in his office. She called and asked to meet with him that day. De Vargas changed her testimony on cross-examination to state that she had not telephoned, but just went to the office. I credit her earlier version in- stead of her changed version. Just De Vargas and Ken Monfort were present in his office during their conversa- tion. De Vargas told Ken Monfort that she would like to have her job back because she was having financial prob- lems. Ken Monfort asked De Vargas why she was fired. De Vargas replied that she had been fired over parking violations. Ken Monfort said that the Company would not fire her over that. De Vargas asked him if he could please help her get her job back. Ken Monfort said that he would look into it, and he would' give her a call as soon as he found out about it. De Vargas acknowledged at the hearing that she did not mention anything to Ken Monfort about her attendance problems.1190 On 15 April 1983 De Vargas telephoned Steve Thomas. De Vargas told Thomas that she had talked to Ken Monfort. She told Thomas that Ken Monfort had indicated to her that he would look into it. De Vargas also told Thomas that she had told Ken Monfort that the had been terminated because of parking tickets, and that Ken Monfort could not believe the Company would fire someone because of parking tickets. She also told Thomas that Ken Monfort had said that she should get her job back if that was the reason she had been fired. De Vargas told Thomas that Ken Monfort was going to contact her and let her know what he had found out. Thomas told De Vargas good luck, and Thomas said that he hoped Ken Monfort would do what he said he would do. De Vargas told Thomas that she would call him as soon as she heard something.191 189 The foregoing paragraphs are based on the credited testimony of De Vargas, except as noted, and documentary evidence. 190 The foregoing paragraphs are based on the credited testimony of l9° The foregoing is based on the credited testimony of De Vargas and De Vargas, except as noted. documentary evidence. 191 The foregoing is based on the credited testimony of Thomas. 164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD After his conversation with De Vargas in his office, Ken Monfort telephoned Lovelady and asked him about De Vargas' record. Lovelady told Ken Monfort that De Vargas had a number of absences and tardiness and a parking ticket problem. Lovelady also told Ken Monfort that De Vargas had parked in the fire lanes, among other things. Lovelady said that she had been through all five steps of the disciplinary procedure, and Lovelady ex- plained to Ken Monfort why De Vargas had been in each step. Lovelady also told Ken Monfort that he ought to be aware of the fact that De Vargas had filed charges against the Company with the NLRB. Lovelady also testified with regard to his conversation with Ken Monfort regarding the termination of Ruth De Vargas. Lovelady testified that during that conversation: "At that time, I know I did tell him that it was my un- derstanding that Ms. De Vargas had filed charges for unjust termination." 192 Later that same day, De Vargas received a telephone call from Ken Monfort at her house. During that tele- phone conversation, Ken Monfort mentioned the fact that De Vargas had filed charges against him with the NLRB. According to De Vargas, he told her that he could not hire her because she had filed charges against him. According to De Vargas, Ken Monfort also told her that people who work for him did not work against him. 193 De Vargas, then telephoned Steve Thomas. De Vargas told Thomas that Ken Monfort had called her back at her house. De Vargas told Thomas that Ken Monfort told her that he was not going to give her her job back because she had filed charges against him with the NLRB. De Vargas also told Thomas that Ken Monfort had told her that if she was not with him, she was against him, and he could not help people like that.194 The foregoing testimony by Thomas was not received into evidence to show the truth of the matter asserted by the out-of-court declarant, but instead it shows that De Vargas told Thomas about her conversation with Ken Monfort soon after that conversation had occurred. I find that Thomas' testimony makes De Vargas' testimony on this matter more probable. As a result of the two conversations between De Vargas and Thomas, Thomas contacted the law firm rep- resenting the Charging Party and related the topic of his conversations with De Vargas. Thomas also contacted the International Union's legal department. As a result, the original unfair labor practice charge in Case 27-CA- 8316, which had been filed on 24 March 1983, and which had alleged, among other things, a violation of Section 8(a)(1) and (3) of the Act pertaining to the Respondent's termination of De Vargas, was amended on 25 April 1983 to allege a violation of Section 8(a)(1) and (4) of the Act. (See G.C. Exhs. 1(da) and (dc).)19 s 192 The foregoing paragraphs are based on the credited testimony of Ken Monfort and Lovelady. 192 The foregoing is based on the credited testimony of De Vargas. 194 The foregoing paragraph is based on the credited testimony of Thomas 198 The foregoing is based on the credited testimony of Thomas and documentary evidence. De Vargas filed a claim for unemployment insurance benefits. Her claim for benefits was reduced based on the State's determination that De Vargas was responsible for her termination from employment. (See R. Exh. 54.) There was no hearing held with regard to her unemploy- ment insurance claim. No appeal was taken from the State's decision.196 I have considered Vanderloo's testimony regarding certain events pertaining to De Vargas. His version is in conflict with De Vargas' account in certain respects. As indicated above, I have credited De Vargas' testimony, except as noted, and I do not credit Vanderloo's version. In his position as fabrication superintendent at the Greeley plant, Cecil Foote was in charge of the employ- ees in fabrication, box storage, and ground beef. There were 12 supervisors, and approximately 520 employees working under his supervision. In most cases, Foote was involved in steps 3, 4, and 5 of the discipline process in- volving fabrication department employees at the Greeley plant. Foote said at the hearing that the majority of the employees he terminated from employment were termi- nated because of absenteeism. Foote estimated that he had terminated about 1000 at the Greeley plant for ab- senteeism during the period from February 1982 to July 1984. Foote estimated that he terminated about 150 em- ployees for reasons other than absenteeism. During cross- examination, Foote acknowledged that the Company had rehired some of the discharged employees as new em- ployees of the Company. He did not know at the hearing how many such employees were rehired by the Compa- ny. Foote explained that some of them were rehired be- cause earlier they had been going through marital prob- lems, divorces, and problems with their children which had resulted in their being absent excessively. Foote said that, if their former problems had been straightened out, sometimes the Company rehired those former employees as new employees.197 C. Conclusions I conclude that the General Counsel established a prima facie case with regard to the alleged discriminato- ry termination of Ruth De Vargas on 7 March 1983 and with regard to the Respondent's refusal to reinstate her on 15 April 1983. The evidence showed that De Vargas had engaged in extensive union activities at the Respond- ent's plant. De Vargas attended union meetings; signed a union authorization card; distributed on a weekly basis union literature to employees at the plant; talked to em- ployees at the plant regarding the Union; distributed union authorization cards to employees; had a union sticker on her locker at the Company's plant; and distrib- uted literature outside the Company's plant on 11 Febru- ary 1983. I draw an inference from the foregoing that the Company had knowledge of some of the prounion activities of De Vargas because she engaged in those ac- tivities frequently and extensively at the Company's plant. As indicated previously, I also conclude that the evidence demonstrated that the Respondent has had 196 The foregoing is based on documentary evidence. 194 The foregoing is based on the credited' testimony of Foote MONFORT OF COLORADO animus towards the Charging Party Union and its orga- nizing activities among the Company's employees. Thus, I conclude that the General Counsel has established a prima facie case with regard to the termination of De Vargas under the Board's Wright Line decision. Based on the credited findings of fact, 1 further conclude that the General Counsel has presented evidence which estab- lished a prima facie case that the Respondent refused to reinstate De Vargas on 15 April 1983 because the Charg- ing Party Union had filed an unfair labor practice charge with the NLRB with regard to the Company's termina- tion of De Vargas. I further conclude that the Respondent has met its burden under the Board's Wright Line decision by evi- dence showing that the Respondent would have termi- nated De Vargas even in the absence of De Vargas' union activities. As indicated above, it was not alleged by the General Counsel in the complaint that the warn- ings issued to De Vargas in steps 1 through 4 were dis- criminatory or unfair labor practices. Thus, under the Company's absence policy, De Vargas' unexcused ab- sence placed her in step 5 which, under the Company's policy, meant termination . Foote testified that about 1000 of the Company's employees had been terminated be- cause of absenteeism during the period from February 1982 to July 1984. I conclude from that testimony that De Vargas was not treated disparately. Accordingly, I recommend to the Board that the General Counsel's alle- gations regarding the termination of De Vargas on 7 March 1983 be dismissed. I further conclude that the Respondent has not rebut- ted the General Counsel's prima facie case with regard to the refusal to reinstate De Vargas on 15 April 1983. I conclude that the evidence established that the reason for not reinstating De Vargas at that time was the fact that the Charging Party Union had filed a charge with NLRB against the Respondent with regard to the Re- spondent's termination of De Vargas. Moreover, the tes- timony of Foote revealed that the Company had rehired some employees who had been terminated because of ab- senteeism. I conclude that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (4) with regard to its refusal to reinstate De Vargas on 15 April 1983. NLRB v. Scrivener, 405 U.S. 117 (1972). XII. THE TERMINATION OF JOSE VARELA ON 16 SEPTEMBER 1983 A. Allegations The General Counsel alleged in paragraphs V(a) and VI of the complaint in Case 27-CA-8563 the following: V (a) On or about September 16, 1983, Respondent discharged Jose Varela, on or about October 4, 1983, Respondent discharged Dana Huff. Varela and Huff were employees at Respondent's Greeley plant. Respondent at all times since has failed and refused, and continues to fall and refuse to reinstate these employees. VI 165 The Respondent engaged in the acts and conduct described above in paragraph V because of said em- ployees membership in and activities on behalf of the union. B. Facts The General Counsel alleged that the Respondent's termination of Jose Varela on 16 September 1983 violat- ed Section 8(a)(1) and (3) of the Act. The allegations pertaining to Dana Huff will be discussed in section XII of this decision. Jose Varela began his participation in union activities when such activities commenced in June or July 1982. He distributed about 50 union authorization cards in the locker room at the plant over a period of about 7 months. No one told Varela that he could not pass out union cards, buttons, or stickers, or wear union stickers on his hard hat. He never asked a supervisor for permis- sion to do so. Varela was a member of the union organizing commit- tee at the plant, and he attended union meetings . Varela also spoke in favor of the Union with employees at the plant. He visited employees at their homes in connection with the union's organizing activities. In July 1982 Varela attended a meeting of employees in the conference room at the Company's plant. Maurice Dalton spoke to the employees about why they did not need a union in the plant. After that meeting was over, Varela's supervisor, Tom Galles, asked Varela what he thought about that meeting. Varela replied that it did not mean anything to him, because he was in favor of the Union, and because he felt that they needed a union there. Galles asked Varela what he needed a union for, and Galles told Varela that Varela could drink beer and make a payment on a television with the $15 that Varela would be paying each month. 198 Charging Party's Exhibit 7 is a copy of a letter dated 8 September 1983 from Steve Thomas to Gene Heakins. The letter sets forth the names of employees who were actively involved in union organizing activity at the Greeley plant at that time. Thirty-one employees" names appear in that Letter. Among those names were: Gerald Aragon, Joe Gonzales, Dana J. Huff, and Jose Varela.199 On cross-examination, Superintendent Cecil Foote ac- knowledged that he knew that Varela was a strong union supporter. Foote said that about 2 or 3 months before the election he was told that by a supervisor. Foote said the supervisor probably was Kim Vanderloo.200 Vanderloo acknowledged during cross-examination at the hearing that he had observed Varela wearing a union sticker on Varela's hard hat.201 Supervisor Finney acknowledged 198 The foregomg is based on the credited testimony of Varela. It is not alleged in the General Counsel's complaint that the statements made in the foregoing conversation violated Sec. 8(a)(1) of the Act. 199 The foregoing is based on documentary evidence. 200 The foregoing is based on the credited testimony of Foote 201 The foregoing is based on the credited testimony of Vanderloo. 166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD at the hearing that he was aware that Varela had en- gaged in union activities at the plant. Finney said that he had seen a union sticker on Varela's hard hat.202 Varela had a couple of conversations with his supervi- sor, Steve Buhlke, about the Union. The first conversa- tion took place about 2 or 3 months after Buhlke had become Varela's supervisor. The first conversation took place on the line at work. Another supervisor, who was identified only by his first name of Phil, also was present. Varela asked Buhlke for help; told him that the job was pretty hard for two persons; and told him that they needed some help. Buhlke replied that two persons were supposed to perform that job. Varela then told Buhlke that they needed a union there because they needed some outside help. Buhlke told Varela that the Union was not going to get anything for Varela.203 Varela's second conversation with Supervisor Buhlke occurred about 2 months later in May 1983. That con- versation took place at Varela's work station in the fabri- cation department. An employee had fainted at work. Varela asked Buhlke what had happened. Buhlke replied that the employee suffered from low blood pressure, and the employee had just fainted. Varela said that he be- lieved the employee was not ready to do the job; that was why the employee had fainted; and that it was too much for the employee. Varela added that was why they needed some kind of a union there, and that they needed some kind of a union to help them. Buhlke told Varela that that was the way Varela thought.204 Varela distributed union buttons and union stickers to company employees in the locker room at the plant during the week of the election in June 1983. He also began wearing a union button on his frock that week, and he began wearing a union sticker on his hard hat at work.205 The conservation between Varela and Supervisor Finney on 24 June 1983 already has been set forth in sec- tion VII with regard to paragraph V(mm). The two con- versations between Varela and Supervisor Korthouse which occurred on 24 June 1983 already have been de- scribed in section VII with regard to paragraph V(p). Respondent's Exhibit 16 is a copy of a step 1 written warning issued on 1 October 1982 to Varela by Supervi- sor Galles for Varela's failure to wear safety equip- ment.206 General Counsel's Exhibit 36(b) is a copy of another step 1 written warning issued on 17 February 1983 to Varela by Supervisor Buhlke for excessive absences on 2 days in the past 3 weeks. 207 202 The foregoing is based on the credited testimony of Finney 203 The foregoing is based on the credited testimony of Varela. 204 The foregoing is based on the credited testimony of Varela. 202 It is not alleged in the General Counsel 's complaint that the Re- spondent's issuance of a warning on 1 October 1982 to Varela was for a discriminatory reason within the meaning of the Act, or that the issuance of the warning was itself an unfair labor practice. 206 It is not alleged in the General Counsel's complaint that the Re- spondent's issuance of a warning on 1 October 1982 to Varela was for a discriminatory reason within the meaning of the Act, or that the issuance of the warning was itself an unfair labor practice. 207 It is not alleged in the General Counsel 's complaint that the Re- spondent's issuance of a warning on 17 February 1983 to Varela was for a discriminatory reason within the meaning of the Act, or that the issu- ance of the warning was itself an unfair labor practice. General Counsel's Exhibit 36(c) is a copy of the appeal filed on 8 February 1983 by Varela at the Company's personnel office. His appeal was denied by Lovelady on 21 February 1983. Varela acknowledged at the hearing that he had been familiar with the Company's policies, the appeal procedure, and the fact that he could be disci- plined and terminated for violating the Company's rules and policies. General Counsel's Exhibit 36(d) is a copy of a letter dated 20 June 1983 from Ken Monfort.to Varela. Varela received a copy of that letter about 4 days before the election. The postscript to the letter stated: "Your super- visor tells me that you are doing outstanding work as a hindquarter marker and clod puller. I appreciate that, they are very important jobs." General Counsel's Exhibit 36(e) is a copy of a step 1 written warning issued on 18 July 1983 to Varela by Su- pervisor Vanderloo for failure o follow the instructions of his supervisor to make 50 percent of the loins into dia- mond cuts.208 Varela had a conversation with Vander- loo and Foote in the office. Vanderloo gave the warning to Varela for Varela to sign it. Varela refused to do so, and he told Foote that he did not deserve that step. Foote told Varela that if Foote had been Varela's super- visor, Foote would have terminated Varela for that; that Varela's supervisor was kind of nice and was just giving Varela a chance; and the first step was just to remind Varela that he was supposed to obey orders from his su- pervisor. Varela then signed the warning.209 Walt Dunham had been an employee of the Respond- ent at its Greeley plant for 1 year and 4 months at the time he testified in this proceeding on 5 December 1984. He was working in quality control for the Company when he gave his testimony. In September 1983 Dunham's job was a tender puller, but on 15 September 1983, Dunham was rehanging rounds because he was on light duty at that time as a result of a cut he previously had sustained on his hand in performing the tender puller job. Jim Finney was Dun- ham's supervisor while Dunham was rehanging rounds. Ron Paine was Dunham's leadman on that job. At first, Dunham did not experience trouble in keeping up with the work of rehanging rounds. However, later on the rounds began to fall on the floor. Dunham ob- served that Finney and Paine were standing to his left and across the conveyor belt. Dunham testified: "They were standing there kind of laughing." Dunham noticed that Paine was walking towards him when Varela walked up to Paine and asked Paine why he did not help out Dunham. Dunham did not observe what happened thereafter because he "was trying to catch up on the rounds because they were still falling on the floor." Dunham did not hear anything else because he had ear- plugs in his ears.210 206 It is not alleged in the General Counsel's complaint that the Re- spondent's issuance of a warning on 18 July 1983 to Varela was for a discriminatory reason within the meaning of the Act, or that the issuance of the warning was itself an unfair labor practice. 209 The foregoing paragraphs are based on the credited testimony of Varela and documentary evidence. 210 The foregoing paragraphs are based on the credited testimony of Dunham. MONFORT OF COLORADO 167 Ronald Paine had been employed by the company for about 2-1/2 years at the time he testified at the hearing in this proceeding on 12 September 1984. Paine was a tender puller for the Company at the time he testified. Paine is 6 feet tall and he weighs 200 pounds. Paine had been a leadman at the Company until he resigned from that position about 5 or 6 months prior to the time he testified. About a week or 2 weeks prior to 15 September 1983, Varela approached Paine with regard to the Union. Paine told Varela that he was not for the Union. Paine said that there were no "heated words"; curse words; or threats exchanged between them on that occasion. He also said there was no physical contact. Paine said that was the only conversation between the two of them about the Union, and that there were no other occasions where Varela and Paine had exchanged "heated words." On 15 September 1983 Paine was working as a lead- man on the tender table at the Company. Durham was performing light-duty work on that date by rehanging rounds. Paine said that he noticed that Dunham got behind in his job of rehanging rounds, and that the rounds were falling on the floor. He said that he and Su- pervisor Finney went over to help Dunham. Paine picked up a round off the floor and put it on his shoul- der. There were two or three rounds laying on the con- crete floor at that time. Paine felt somebody tapping him on his left shoulder. Paine turned around and discovered that it was Varela. Varela had a knife in his hand. Varela asked Paine why he did not help out Dunham. Paine re- plied that he was helping him out, and he told Varela to go back and do his job, and let Paine worry about per- forming Paine's job. Varela then called Paine a vulgar name . Paine again told Varela to go back and do his job and let Paine worry about Paine's job. At that point Varela shoved Paine. Paine stepped back, but he did not lose his balance. Paine said that he had the round on his shoulder, and that it weighed between 60 and 70 pounds. He estimated at the hearing that the round was about 2- 1/2 to 3 feet long and, about 3 feet wide. Paine said the round was balanced on his shoulder, and that he was holding it with both of his hands. Varela told Paine that he was not afraid of him. Paine replied that he was not afraid of Varela. Paine again told Varela to go back and do his job, and that Paine would do Paine's job. Paine then took a step towards Varela, and Varela backed up. Paine again told Varela to go back and do his job, and let Paine worry about doing Paine's job. Paine denied that he swore at Varela or made any 'physical contact with Varela, or that he shook his forger in Varela's face. Paine said that Finney was standing right behind Dunham, and that Finney was, helping Dunham at the time. He said that Finney stepped in between Paine and Varela. Finney told Paine to go wash the round and to get it back in production. Finney told Varela to go to the office. 211 I have considered the version given by Varela regard- ing the incident. Varela's account differs in significant re- 211 The foregoing paragraphs are based on the credited testimony of Paine. spects from that of Paine. As indicates above, I have credited Paine's version of this event. A meeting was held in Foote's office. Present were: Foote, Finney, Vanderloo, and Varela. Foote asked Varela what had happened. Varela replied that nothing had happened. Foote told Varela that Varela was up in his office for a reason, and he again asked Varela what the problem was. Varela then said: "I pushed this other guy." Varela said that he was upset because the man who was rehanging rounds -at that time was not getting the proper help. As a consequence, Varela told Foote that the employee was letting meat fall on the floor. Varela also told Foote that the leadman was not helping the employee rehang rounds properly. Varela said that upset him. Varela said he began raising his voice to the leadman and pushed him. Finney told Foote that he also had seen Varela push the leadman.212 Paine was then called into Foote's office. Paine was asked if he had shoved Varela or provoked Varela in any way. Paine replied that he did not do anything to Varela; that Paine was just trying to do his job and get he rounds off the floor; and get the rounds back into production. Paine said at the hearing that he then told Foote and Finney what he had testified regarding this event at the hearing. Foote then told Paine, to go back down and do his job. Foote said that he would be down later to investigate what had happened. Foote told Varela that he would have to suspend him for the day, and that if anything came up to the effect that Paine had provoked the fight, Paine would be dismissed. Paine said that Foote and Finney later came down and questioned other employees regarding the incident.213 Both Foote and Finney testified with regard to their questioning of employees about this incident. The em- ployees told Foote and Finney that they had seen Varela push Paine. Their testimony in that regard was received in evidence not for the truth of the matter asserted by the out-of-court declarants, but instead to, show the in- vestigation that was conducted bythem, regarding the in- cident. (See Tr. 5205-5208 and 5352-5353.) General Counsel's Exhibit 36(f) is a copy of a warning notice to Varela dated 16 September 1983 from Finney for the major infraction of company rules of intimidating fellow workers. Varela was not, given a copy of that document. While the warning notice is signed by Finney, Foote is the one who made the ' decision to terminate Varela. Foote testified: "It was! my opinion that Mr. Varela intentionally pushed Mr. Paine and, with his atti- tude and the things that he told me in the office when I was questioning him, I felt that knew he was wrong but he did it anyway."214 General Counsel's Exhibit 36(g) is a copy of Varela's appeal dated 20 September 1983, and the denial of that appeal by Lovelady on 26 September 1983.215 212 The foregoing is based on the credited testimony of Foote. 212 The foregoing is based on the credited testimony of Paine. 214 The foregoing is based on the credited testimony of Foote and documentary evidence. 21 s The foregoing is based on documentary evidence. 168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD About a week or a week and a half after the Company had terminated Varela, Varela filed a claim for unem- ployment compensation. Varela's claim initially was denied, but on appeal the referee awarded Varela full benefits. General Counsel's Exhibit 36(h) is a copy of the referee's decision dated 9 January 1984.216 General Counsel's Exhibit 604 is a copy of a step 4 written warning issued on 15 June 1983 by Supervisor Korthouse to Dennis Cech for threatening or intimidat- ing a fellow employee. According to the document, a leadman had given instructions to Cech, who used a vulgar expression towards the leadman. Cech also told the leadman that he would hit him on the nose with his meat hook if the leadman did not get out. Cech was placed in step 4 and suspended. Foote said at the hearing that he was of the opinion that the foregoing situation probably was a major infraction which warranted termi- nation. However, he also said: "Physical contact is nor- mally what we determine whether there is a discharge involved or not."217 Finney recalled an earlier incident where an employee was terminated for violating the Company's rule 2 for threatening or intimidating management, supervisors, se- curity guards, or a fellow employee. Finney said that a female employee of the Company was terminated for hit- ting a male employee, and threatening to pull her knife out and cut him. Finney said this occurred prior to the time that Varela was terminated. Finney also recalled another incident there an employ- ee named Gregory Grimes was disrespectful to Finney. Finney recalled that he was trying to help out in an area which was outside of Finney's department. Finney threw some rounds in the wrong place. That mistake apparent- ly upset Grimes. Finney did not recall at the hearing ex- actly what Grimes had said to him on that occasion, but it was some profanity. Finney reported the incident to Grimes' supervisor, Korthouse. Finney said that Grimes was disciplined; several steps were omitted because of the nature of the violation; and Grimes was placed in step 4 and suspended for 1 day. Finney said that Grimes was suspended, instead of being terminated, because Finney was at fault in the incident. General Counsel's Exhibit 61 is a copy of the step 4 warning and suspen- sion. 21 s Varela observed and heard an argument at the Compa- ny between a leadman and a cleanup man during work- ing time in the fabrication department. Varela said that the incident took place sometime in the summer of 1983. The cleanup man was washing the floor at the time, and in doing so, he spilled some water on the feet of leadman Mark Steele. Varela did not recall at the hearing the name of the cleanup man. Varela said that Steele ap- peared to become mad, and Varela heard Steele refer to the cleanup man with a vulgar and derogatory expres- sion . Varela observed that the cleanup man was starting to take off his frock, gloves, and apron. Varela formed 216 The foregoing is based on the credited testimony of Varela and documentary evidence. 217 The foregoing is based on the credited testimony of Foote and documentary evidence 218 The foregoing is based on the credited testimony of Finney and documentary evidence. an opinion that the cleanup man was going to jump the leadman, so Varela intervened to stop the cleanup man from getting into a fight. The cleanup man told Varela that he was going to quit work, and the cleanup man used a vulgar term. Varela did lot see the cleanup man for the rest of that day, but he did see him working the next day. Varela observed another incident which occurred around the same time is the event described above. Varela saw two employees, who were identified only by their first names of Lee and Ron, push each other in the fabrication department at the Company. Varela could not hear what they were saying. Varela saw a supervisor, who was identified only by his first name of Chris, star- ing at Lee and Ron, who had quit pushing each other. Varela said that Chris did not say anything to Lee and Ron on that occasion. Varela said that they were not dis- ciplined. Varela observed still another incident involving the same two employees, Lee and Ron. That incident also took place in the fabrication department at the Company. Varela saw Lee hit Ron on his back. After work, Varela was told by another employee that a supervisor, who was identified only by his first name of Phil, had taken Lee to the office. Varela said that Lee had continued to work after he came back from the office.219 C. Conclusion I conclude that the General Counsel established a prima facie case with regard to the alleged discriminato- ry termination of Jose Varela on 6 September 1983. The evidence showed that Varela had engaged extensively in union activities on behalf of the Charging Party Union. The evidence also revealed that company supervisor knew of Varela's prounion sentiments based on the con- versations they had with him. Charging Party's Exhibit 7 showed that the Company was notified that Varela, among other employees, had engaged in union organiz- ing activities at the Company's plant. Thus, I conclude that the evidence has established that Varela had en- gaged in extensive union activities; that the Company had knowledge of his prounion sentiments; and, as previ- ously discussed in other sections, the Respondent had animus toward the Charging Party Union. I further conclude that the Respondent has met its burden under the Board's Wright Line decision by evi- dence showing that the Respondent would have termi- nated Varela even in the absence of Varela's union ac- tivities. As noted above none of the written warnings issued to Varela prior to the final ' one were alleged by the General Counsel to have been discriminatory or to have been issued in violation of the Act. The credited evidence regarding the last incident disclosed that Varela had pushed or shoved the leadman while the leadman was balancing a round on his shoulder. Varela admitted to Foote in his office that he had done so, and the Com- pany's investigation confirmed in their view that Varela was at fault in that instance. Varela's action violated the 219 The foregoing paragraphs are based on the credited testimony of Varela MONFORT OF COLORADO 169 Company's rule regarding intimidating other employees. With regard to the Company's past practice in enforcing that rule, I have considered the testimony of Varela, Foote, and Finney. I conclude from their testimony that a crucial factor is whether or not physical contact was made, between the persons involved rather than the use of vulgar expressions. In the instance cited by Finney, the female employee was terminated for hitting the male employee and threatening him. In the instances cited by Varela, neither Lee nor Ron were disciplined for shov- ing each other, nor was Lee terminated after he had hit Ron. Thus, I conclude that the Company's past practice is inconclusive with regard to the enforcement of the rule based on the limited facts which were revealed re- garding those prior incidents. However, after considering all of foregoing matters, and particularly the circum- stances wherein Varela pushed Paine, I conclude that the Respondent has presented evidence which rebuts the General Counsel's prima facie case with regard to Vare- la's termination. Accordingly, I recommend to the Board that the General Counsel's allegations regarding the dis- criminatory termination of Jose Varela on 16 September 1983 be dismissed. XIII. THE TERMINATION OF DANA HUFF ON 4 OCTOBER 1983 A. Allegations The General Counsel alleged in paragraphs V(a) and VI of the complaint in Case 27-CA-8563 the following: V. (a) On or about September 16, 1983, Respondent discharged Jose Varela, on or about October 4, 1983, Respondent discharged Dana Huff. Varela and Huff were employees at Respondent's Greeley plant. Respondent at all times since has failed and refused, and continues to fail and refuse to reinstate these employees. VI The Respondent engaged in the acts and conduct described above in paragraph V because of said em- ployees membership in and activities on behalf of the Union. B. Facts The General Counsel alleged that the Respondent dis- charged Dana Huff 4 October 1983 in violation of Sec- tion 8(a)(1) and (3) of the Act. The General Counsel's al- legations regarding the termination of Jose Varela al- ready have been discussed in section XII of this decision. Dana Huff had three periods of employment with the Respondent. He first was employed there from June 1975 to January 1977. His second period of employment with the Company was from May 1982 to 21 May 1983. His third period of employment with the Company was from 25 July to 4 October 1983. General Counsel's Exhibit 455 is a copy of the Mon- fort application for employment which is dated 26 Janu- ary 1982 and which was filed by Huff at the church on that date.22° On 2 or 3 March 1982, Huff telephoned the Compa- ny's personnel office and spoke with Lovelady. Huff told Lovelady that he had filed an application for employ- ment; that he was wondering if his application was being processed; and how long it would be before he would be employed by the Company. Lovelady replied that lie did not know, but as soon as Huffs application was proc- essed, they would be contacting Huff. Lovelady also said that there were many applications. About the middle of March 1982, Huff telephoned Lo- velady once again . Huff inquired if there was any news regarding his application, and if the application was being processed. Lovelady told him that he did not know, but Lovelady would check on it. Lovelady then left the telephone, and later turned and told Huff that his application had not yet been processed. On April 1982 Huff again telephoned Lovelady. Huff asked if his appli- cation had been processed, what the holdup was, and if there was anything wrong. Lovelady replied that it was quite a lengthy process; that he did not know if Huffs application was being processed yet; that when Fluff's application was processed, they would have to wait until they got answers back from the information on the appli- cation before Huff would be contacted; and that Love- lady would check on it for Huff. Lovelady then checked, and he told Huff that they could not find his application. Lovelady told Huff that since his application could not be found, and since Huff had called him so many times, Huff could come in and fill out a new appli- cation. Lovelady told Huff that there was no guarantee when Huff's application would be processed because there were applications prior to his application.221 Sometime in April 1982 Huff went to the Company's personnel office where he spoke with a secretary who he identified only by her first name, Maryanne. Huff ex- plained to her why he was there in order to file a new application for employment. The secretary went to Lo- velady's office. Next Gary Ewing came out of the office and spoke with Huff. Ewing told Huff that he bet that he could find Huff's application. Huff observed there were three stacks of applications. At the hearing he esti- mated that each stack11was probably a foot high: Ewing looked for 15 or 20' minutes, and then Ewing located Huff's application towards the bottom of one of the stacks sitting on the floor. Ewing told Huff that he did not know how soon it would be, but that he would put Huff's application "back in the active stack." Ewing also told Huff that his appli- cation "was in the inactive file and that it had been dis- carded by mistake." Ewing further told Huff that he did not know whether Huff would be hired, and Ewing gave Huff some authorization release forms to fill out. (See G.C. Exhs. 456 and 457.) According to Huff, Ewing told Huff once again that he did not know when his applica- 220 The foregoing paragraphs are based on the credited testimony of Huff and documentary evidence. 221 The foregoing paragraphs are based on the credited testimony of Huff. 170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion would be processed because "there were many, many applicants before me."222 On Friday, 30 April 1982, Huff telephoned Lovelady once again. Huff asked whether his application was being processed, and, if there was anything wrong with his ap- plication. Huff said he would appreciate knowing what kind of problem there was. Lovelady replied that he did not see anything wrong with it, but he did not know if the application was being processed. Lovelady went to check, and then he informed Huff that his application had not been processed. About an hour later that day, Lovelady telephoned Huff, and Lovelady told Huff that his application was processed; to report to the security shack; to take a phys- ical and a hearing test on Monday; and that it looked like they were going to put Huff to work. On Monday, 3 May 1982, Huff reported to the securi- ty shack, and he was directed to the health services. Three or four other persons also were there for physical examinations. Huff filled out the forms, answered ques- tions, and received a physical examination. The doctor told him "everything looks okay, it looks green for go." The doctor then gave Huff directors to go to the Uni- versity of Northern Colorado to take a hearing test. Huff left and took the hearing test. He took the results back to the Company's health service department where a nurse's attendant told Huff that he was to report to the personnel office at 9 a.m. in the morning. Huff reported to the personnel office the next morn- ing, and Lovelady examined his papers. Lovelady told Huff that it looked like they were going to put him to work. Huff had an identification picture taken, and he then went to a conference room. The general foreman, Chuck Douglas, spoke to Huff and about six other new employees in an orientation session, which included dis- cussing' company policy and insurance. Then Huff was assigned to the fabrication department under Supervisor Korthouse, issued equipment, assigned a locker, and began production work at 3 p.m. that day. Huff per- formed the job of "dropping goosenecks" from that point until March 1983. Finney was his supervisor in that job.223^ Beginning in July 1982, and continuing to May 1983, Huff attended union meetings and was a member of the union organizing committee. Huff also handed out union authorization cards and leaflets. He talked with employ- ees about the union in the locker room during breaktime at the plant. Huff signed up almost all the employees on his line and the employees on a couple of lines around him.224 On 29 September 1982 a step 1 written warning was issued by Finney to Huff for excessive absences. (See G.C. Exh. 458.)225 Finney explained to Huff why the 222 The foregoing paragraphs are based on the credited testimony of Huff and documentary evidence 223 The foregoing paragraphs are based on the credited testimony of Huff 224 The foregoing is based on the credited testimony of Huff 225 It is not alleged in the General Counsel's complaint that the Re- spondent's issuance of a warning on 29 September 1982 to Huff was for a discriminatory reason within the meaning of the Act, or that the issuance of the warning was itself an unfair labor practice. disciplinary action was being taken. Finney told Huff that he regretted doing so because he liked Huff's work, and he thought Huff was a good employee. At the hear- ing, Huff said he and Finney got along very well.226 A conversation between Huff and Finney which oc- curred during the latter part of October 1982 already has been related in section VII with regard to subparagraphs V(a) and V(b). On 5 January 1983 a step 2 written warning was issued to Huff by Finney for excessive absences for leaving work early on 3 January 1983; by mixing work on 5 Jan- uary 1983; by missing 1 day in December 1982; and by coming in late one day in December 1982. (See G.C. Exh. 459.)227 When Finney explained to Huff the rea- sons for the issuance of the warning, Huff disagreed with that action. Huff said that he had several court appear- ances which had caused his absences. At the hearing in this proceeding, Huff explained that he had been subpoe- naed as the State's witness in a criminal prosecution per- taining to alleged child abuse against Huff's 5-year old son by the child's stepfather. The trial in that case was held in Fort Collins, Colorado. Huff had to appear there on three occasions. Huff said at the hearing in this pro- ceeding that he had advised Finney of the purpose of his going to the court trial, and that he had brought in proof of that fact for Finney.228 On 19 January 1983 a step 3 written warning was issued by Finney to Huff for excessive absences for miss- ing more than 2 days in January 1983. (See G.C. Exh. 460.)229 Finney, Chris Howard, who was general fore- man of the fabrication department, and Huff met in Foote's office regarding the step 3 warning. Finney ex- plained the reasons for the warning to Huff, and Finney gave Huff an opportunity to explain. Huff said that he did not agree with the step 3 warning because he should not even be in step 2; that he had given Howard at least a month's advance notice of a court hearing; and that Howard knew that Huff was to be absent those days. Huff also said that his step 1 warning should have been removed; that he should not have been in step 2 because of the court hearings; and that he should not be in step 3 because Huff had been sick. Huff further told them that he had brought doctors' excuses for the missed days; that all of these things seemed to be beyond his control; and that he did not merit discipline. Finney asked Huff to sign the warning. Huff replied that he did not want to do so. Howard told Huff to go ahead, and that it did not make any difference. Therefore, Huff signed the warn- ing.230 225 The foregoing is based on the credited testimony of Huff and docu- mentary evidence. 227 It is not alleged in the General Counsel 's complaint that the Re- spondent 's issuance of a warning on 5 January 1983 to Huff was for a discriminatory reason within the meaning of the Act, or that the issuance of the warning was itself an unfair labor practice. 228 The foregoing is based on the credited testimony of Huff and docu- mentary evidence. 222 The foregoing is based on the credited testimony of Huff. It is not alleged in the General Counsel's complaint that any of the job transfers of Huff were discriminatory within the meaning of the Act or were unfair labor practices 230 It is not alleged in the General Counsel's complaint that the Re- spondent's issuance of a warning on 19 January 1983 to Huff was for a Continued MONFORT OF COLORADO 171 In March 1983 before he received a step 4 warning on 20 March 1983, Huff was transferred by Finney to the job of "skinning knuckles." Huff overheard Howard in- structing Finney where to transfer Huff. Huff worked on that job under Finney only for 30 or 45 minutes when Finney again transferred Huff. On that occasion Finney transferred Huff to the job of "pulling knuckles." Finney also assigned Huff to the job of "seaming rounds," but Huff did not actually perform that job. Huff went to see the company nurses and Dr. Groves. Huff was recuper- ating at that time from an earlier knife injury to his back from an accident at the plant. In addition, Huff had an inflammation of his hand. Dr. Groves gave Huff a slip which indicated that Huff should remain on "gooseneck- ing." As a result, Huff returned to the job of "dropping goosenecks." In the opinion of Huff, those jobs named above were harder than the job of "dropping goosen- ecks" and were painful to Huff because of Huff's physi- cal condition at that time.231 A conversation between Huff and Finney which oc- curred about a week before 20 March 1983 already has been described in section VII with regard to subpara- graph V(c). On 20 March 1983 a step 4 written warning was issued by Finney to Huff for horseplay for yelling at new em- ployees. (See G.C. Exh. 461.)232 Huff said at the hearing that a group of new employees had come into the plant. Huff heard "a whole bunch of screaming and yelling and whistling." Huff described the foregoing as being a common occurrence in the plant when new employees entered the plant. It had occurred when Huff came in the plant as a new employee. Sometimes lights would go out, and machines break down when new employees en- tered the plant. There also was yelling, screaming, and whistling when the Company posted 6 hours of work in- stead of 8 hours of work. Huff acknowledged that he was working at the time that the new employees entered the plant. He acknowl- edged that he yelled "fresh treat." Finney was 3 or 4 feet away, and Finney came over to Huff and told him not to yell at the new people. Huff replied "Okay." Huff also observed Finney talking, with Foote, and then Finney told Huff to follow him. Foote, Finney, and Huff met in Foote's office. When Finney and Huff first walked into the office, Foote told Finney: "I think we can get him on this." Foote 'asked Huff what he wanted them to write him up for-yelling, intimidating, or threatening other people. Huff denied to Foote and Finney that he had intimidated or harassed anyone. Foote asked if Huff wanted them to write up Huff for yelling or intimidating. Huff disagreed with Foote, and Huff told him that if they wrote him up for this, Huff would know they were just harassing him. discriminatory reason within the meaning of the Act, or that the issuance of the warning was itself an unfair labor practice. 231 The foregoing is based on the credited testimony of Huff It is not alleged in the General Counsel's complaint that any of the job transfers of Huff were discriminatory within the meaning of the Act or were unfair labor practices. 232 It is not alleged in the General Counsel's complaint that the Re- spondent's issuance of a warning on 20 March 1983 to Huff was for a discriminatory reason within the meaning of the Act, or that the issuance of the warning was itself an unfair labor practice. Huff said he had not done anything wrong, and that ev- erybody does that. Huff said that if he had known he was doing something wrong, he would not have done it. Huff told Foote and Finney that he was continuing to be harassed because of his union activities; that Huff did not like it; that he would appreciate them not writing him up for these things because Huff would have to go to the NLRB or to his union lawyer. Foote said that they were going to write up Huff for yelling "fresh meat." Foote asked if Huff knew what that meant. Foote replied "what?" Foote told Huff that he was suspended for the rest of the day, and that Huff was on 1-year's probation. Huff was given an appeal form. The meeting in Foote's office occurred about 3 p.m. Huff's working hours were to end at 3:45 p.m. that day. Huff refused to sign the form, but he initialed the "do not agree" part of the form.233 After work that same day, Huff went to the personnel office where he had a conversation with Lovelady. Huff told Lovelady that he disagreed with the step 4 warning; that Huff knew it was harassment; that Huff did not un- derstand why, but he believed it was because of his union activity; and that he did not think he deserved to be in these steps and especially step 4. Lovelady asked him what had happened. Huff related to Lovelady the foregoing events. Huff acknowledged that he had said the words "fresh meat" a couple of times before his fore- man came over and told him not to do so again. Huff then told Lovelady what took place as described above. Lovelady asked Huff if he ever had been warned about yelling at new people or talking to new people in a louder voice than normal. Huff told Lovelady that he had never been warned. Lovelady said it would be a hard thing to prove, but if Huff could bring in a couple of people who worked with Huff on his line, and they would attest to the fact that Huff was telling the truth, and that they had never been warned individually or at meetings, and that they had done it and never been disci- plined, Lovelady would get the charges ' against 'Huff re- versed. Lovelady told Huff that it was "kind of like taking something out of the barn after the door had al- ready been shut when he told you not to do that any- more." Huff replied, "Okay," and then left.234 Huff went to the locker room where he spoke with employees 'Gary Kapp and Bob Lambrecht, who had worked on, each side of Huff for 6 months to a year. Huff told tem what Lovelady had said. They then went to Lovelady's office. Lovelady asked Kapp and Lam- brecht if they had ever been told not to express verbal excitement at new people, or for any reason. They told Lovelady no. Lovelady asked how long they had worked at' the Company. One employee said 7 or 8 months, and the other employee said almost a year. Lo- velady asked if they would sign their names to what they and Huff were saying to him as being true. They agreed to do so, and they signed General Counsel's Exhibit 461. Lovelady then told Huff that he would get the charges 233 The foregoing paragraphs are based on the credited testimony of Huff and documentary evidence 234 The foregoing paragraphs are based on the credited testimony of Huff 172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD reversed, and that Huff was to come back the next Monday. On the following Monday Huff took an appeal form which he had completed on 21 March 1983 to Love- lady's office. Huff gave the appeal form to Lovelady's secretary. General Counsel's Exhibit 462 is a copy of Huff's appeal and Lovelady's action on that appeal. After work that day Huff spoke with Lovelady in Lo- velady's office. Huff asked Lovelady if he had gotten the charges dismissed as Lovelady had said he could do. Lo- velady told Huff that he could not do it, and Lovelady pointed to the appeal form. Lovelady said that Foote and Finney had told him that they had warned Huff at meetings, and there was nothing Lovelady could do. Huff read the appeal form. Huff then told Lovelady that Lovelady knew that was a lie. Huff pointed to the state- ments of Kapp and Lambrecht. Lovelady repeated to Huff that there was nothing that Lovelady could do. Huff told Lovelady that he wanted to take this up higher. Lovelady suggested that Huff do so, and Love- lady told Huff how to contact Gene Meakins.235 Huff telephoned Meakins on three occasions, and he arranged for a meeting to be held in April 1983. The meeting took place in Lovelady's office. Present were: Meakins, Lovelady, Finney, Foreman Junious, Mat- thews, and Huff. Meakins introduced himself to Huff, and Meakins asked why Huff was contesting the step 4 warning. Huff explained to Meakins what had happened and why Huff felt he should not have received the warn- ing. Huff said at the meeting that Finney knew that Huff had something to do with the Union; that Finney did whatever he could do to harass Huff; make Huff's job harder; move Huff if around; and try to terminate Huff through the step procedure program. Huff said at the meeting that he did not think he merited any of the steps, accept for maybe the first step, which he felt should have been removed. Huff further said that every- thing Finney had done up to that time was because of Huff's union activity, union involvement, and because Huff was an organizer. Meakins told Huff that was just Huff's opinion, and they should hear from this other foreman. Matthews then said that he had counseled Huff one other time not to yell. Huff stood up and said: "That's a lie." Meakins, Lovelady, and the others told Huff to sit down and let Matthews finish. Matthews re- lated at the meeting a conversation between Matthews and Huff in which Matthews had counseled Huff not to yell. Huff told Meakins that was a lie, and that the two foremen were setting him up. Huff asked Meakins if Meakins could not see this was "a set-up to terminate me." Meakins told Huff that was just Huffs opinion, and Meakins asked if Huff was telling him that these people were setting him up. Huff repled yes. Huff further told Meakins that what was on the paper was a lie; what the foreman said was a lie; that they were setting Huff up to terminate him because of Huffs relationship with the Union; and that it was just harassment. Meakins told Huff that he saw no reason why the action should not stand. Huff asked if that was it, and 235 The foregoing paragraphs are baaed on the credited testimony of Huff and documentary evidence once again asked Meakins if he could not see that they were setting up Huff. Meakins responded that was just Huff's opinion. Huff asked Meakins if this was the way he did business; Huff stated that Meakins could see that they were telling a lie; and Huff said that all of these things that had happened to him since he had been at the plant were not right. Huff told Meakins that the NLRB was going to know about this; that the NLRB was kind of listening right then as to what was going to be the outcome of that meeting with Meakins; that a lot of people had been fired for some of he same kind of rea- sons and were poor and out there on the streets; at Huff was not going to take this lying down; and that Huff was going right to the NLRB and his union lawyer. Huff then left the meeting.236 When Huff returned from his vacation on 16 May 1983, Phil Arnold had become the supervisor on the "gooseneck line." Huff worked there for a few days, and then he was assigned to "boning butts" under the super- vision of Finney. Huff never had performed that job pre- viously.237 On 21 May 1983 Huff was working when his hook got caught in the bone of the meat, and his hook was tossed with the bone onto the bone belt. Huff jumped up on his hard plastic board, and he retrieved the hook. In doing so, Huff also stepped on the edge of the utility board used by the person next to him. No meat fell on the floor. At that time Finney yelled to Huff: "No excuse, no excuse!" Finney told Huff to clean off his board, and then come back to Finney. Huff did so, and he noticed that Finney was at the end of the table and was talking to Cecil Foote. Foote then left, and Finney approached Huff, and Finney told Huff to accompany him. Finney and Huff then went to Foote's office. Huff ob- served that Foote had a copy of the Company's rules and policies. According to Huff, Foote told Finney: "Looks like we've got him on this." Foote then told Huff that he was fired; that it was a major infraction; and that Huff was contributing to unsanitary conditions. Huff replied "Okay."238 General Counsel's Exhibit 463 is a copy of the step 5 warning notice dated 21 May 1983, which was issued by Finney to Huff on that date for creating unsanitary con- ditions. Huff refused to sign the document. As a result of a step 5 warning, Huff was terminated that day.239 Huff was given an appeal form by Finney. General Counsel's Exhibit 465 is a copy of the appeal form, which Huff filed with Lovelady with regard to his termination from employment. Lovelady upheld the termination action.240 236 The foregoing paragraphs are based on the credited testimony of Huff. 234 It is not alleged in the General Counsel 's complaint that the trans- fer of Huff to a different job was discriminatory of itself an unfair labor practice. 238 The foregoing paragraphs are based on the credited testimony of Huff. 239 It is not alleged in the General Counsel's complaint in this proceed- ing that the issuance of the warning on 21 May 1983 to Huff, or that the termination of Huff on that date, was for a discriminatory reason within the meaning of the Act, or that the issuance of the warning, or the termi- nation of Huff on that date, were themselves unfair labor practices. 240 The foregoing is based on the credited testimony of Huff and docu- mentary evidence MONFORT OF COLORADO 173 Huff said at the hearing in this proceeding that there was no meat on his board when he got up on the board. Huff said that he had observed other employees at the plant get up on the table in order to retrieve hooks or bones. Huff previously had seen Finney observing other people get up on the table. Within his knowledge, those employees were not disciplined after those incidents had occurred., Huff agreed at the hearing that such actions necessitated the washing off of the board. Huff also said that he_ had seen meat fall on the cement floor everyday. He said that Finney was present when it had happened. Huff said that the meat was washed, and then the meat was put back on the table. Within Huff's knowledge, no one was disciplined for those incidents.241 An unfair labor practice charge was filed by the Charging Party Union against the Respondent with regard to the Company's termination of Huff. Subse- quently, Attorney Martin D. Buckley, who represented the Charging Party Union in this proceeding, advised Huff in a telephone conversation that a settlement had been reached. Attorney Buckley advised Huff that the Union would withdraw the unfair labor practice charge, and the Respondent would instate Huff with full back pay, benefits, seniority, and insurance. Attorney Buckley informed Huff that Huff was to report to work at the plant on Monday, 25 July 1983. As a result of the foregoing, Huff reported to the Company, on the designated date, and he was assigned to a new supervisor, Kim Vanderloo, and a new job, "pull- ing clods." Huff performed that job until 13 August 1983 when Huff was injured on the job. Huff injured his shoulder,'and he reported the jury to the health services department. Huff returned to work the following Monday. After he had finished his working shift that day, he saw the company nurse who told him that she would make an appointment for him to see a doctor. The nurse told Huff that one doctor was on vacation at that time, and she said that the other doctor was "all booked up." The next day Huff told his foreman about the pain in his shoulder., His foreman allowed Huff to pull "half count" that day. After completing his work that day, Huff was examined by Dr. Groves, who put Huff on light duty for 3 days.242 The following, day Huff gave the doctor's light duty slip to Supervisor Vanderloo, who placed Huff on light duty work. About 10 minutes later, Foote asked Huff what was going on, and what this was all about while Foote waived the doctor's slip. Huff explained the situa- tion to Foote who remarked: "How convenient." Foote told Huff that he wanted Huff out of there, and he told Huff to go home. ' Huff told Foote that the doctor had given him 3 days of light duty work. Foote replied: "Not for you." Huff asked about his pay, and whether he was guaranteed 32 to 36 hours a week. Foote told Huff some- thing to the effect of "not for you." Foote then told Huff to get out of there. Foote asked Huff if he was not going to go, and Huff said yes. Foote told Huff that he had better go right then, and that if Huff did not go, Foote was going to write up Huff for insubordination and fire him. Huff asked Foote if he could ask Foote one ques- tion. Foote said, "Okay." Huff asked why Foote was doing that to him; why Foote was harassing him; what had Huff ever done to Foote; and that Huff wished Foote would stop harassing him. Foote replied that Huff did not tell him anything, and that Foote told Huff. Huff replied that he was kind of telling Foote to please stop harassing him and not to harass him anymore.243 Huff then went to the personnel office where he had a conversation with Lovelady. Huff told Lovelady that they were doing it again, and that Huff did not know what was going on. Huff told Lovelady that the doctor had given him 3 days of light duty work, and that Foote had said no and sent Huff home. Huff told Loveladly that this was harassment, and that Foote had been harassing him ever since Huff had been reinstated because Huff was a union activist and involved with the Union. Huff also told Lovelady that he did not think this was right. Huff asked Lovelady what he thought about it. Love- lady told Huff that he thought Huff should be' able to perform light duty work if there was any light duty work in the plant. Huff responded that was what he and the doctor had thought. Lovelady told Huff to come back to his office in about 45 minutes. Lovelady told Huff that he would have all of this straightened out, and that Lovelady would get to the bottom of it. When Huff returned to Lovelady's office, Lovelady informed Huff that Lovelady had talked with Foote and Huff's foreman. Lovelady said that they had decided to put Huff on workmen's compensation. Lovelady told Huff to go to the nurse's office, and they would take care of it.244 At the nurse's office Huff spoke with the head nurse who was identified only by her first name of Patty. Patty filled out the workmen's compensation forms, and she explained to Huff that she had to call his doctor and get a verbal agreement that the doctor would have Huff off from work instead of being on light duty work. Patty told Huff that she wished that there was some way they could get rid of Foote. Patty told Huff that she thought what they were doing to Huff was wrong. Patty also said that they should not be treating Huff like that.. Patty told Huff that he would not receive pay for the first 3 days because he had to be off from work for 3 days before he could receive any pay or benefits for an injury. Huff told Patty that was their way of not paying Huff for those 3 days of light duty.245 Three days later Huff went to Dr. Groves' office, but Dr. Groves was not in at that time. Therefore, Huff was examined by another doctor who referred Huff to two orthopedic physicians. As a result of their examination of Huff, one of the orthopedic physicians told Huff that he would give him light duty work for 7 to 10 more days. Huff told the physician that the Company would not let 242 The foregoing is based on the credited testimony of Huff. 244 The foregoing paragraphs are based on the credited testimony of 241 The foregoing is based on the credited testimony of Huff. Huff 242 The foregoing paragraphs are based on the credited testimony of 245 The foregoing paragraphs are based on the credited testimony of Huff. Huff. 174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD him perform light duty work, so the orthopedic physi- cian then gave Huff 7 to 10 days off from any work. About 25 or 26 August 1983, Huff received a tele- phone call from Kit Conklin who told Huff to report to work. Huff asked why. Huff also told Conklin that Foote had told him that he had to stay at home until all of this was cleared up. Huff asked Conklin why Huff was to come back to work all of a sudden. Conklin told Huff that they could not let Huff stay at home that long, and, besides that, Foote was on vacation. Conklin told Huff that there was "some restrictive duty" which the Com- pany had for Huff.246 Huff returned to the plant, and he was assigned by Su- pervisor Howard to the hamburger department. Huff was able to perform the job with using only one arm. He explained at the hearing that his left arm was still in a sling pinned to his side at that time. Huff's supervisor was Vanderloo. Huff was told that the assignment was temporary because he would be assigned to the "clod puller" job when he had healed. Huff said at the hearing that he believed the NLRB had handed down an order for a new election, so Huff had resumed wearing his union pin at work. He also resumed organizing employ- ees for the Union during his breaks and lunch hours. Huff also passed out union cards to employees. About 3 or 4 days later, Supervisor Galles told Huff that the plant manager, Maurice Dalton, wanted Huff to clean up an area under the stairway, the lockerrooms, and in the back of the plant. Huff performed that clean- up work for the rest of that week.247 The conversation which occurred between Galles and Huff during this period of time already has been de- scribed in section VII with regard to subparagraph V(nn). Galles also informed Huff that Dalton wanted Huff to wash the hallways inside the administration offices. It took Huff 2-1/2 days to wash those three hallways. Thereafter, Galles assigned Huff to the hamburger de- partment where Huff continued to work until he was ter- minated on 4 October 1983.248 On 8 September 1983 the Union sent a letter to the Company and identified 31 employees who were current- ly engaged in union organizing activities on behalf of the Charging Party Union. (See C.P. Exh. 7.) Huff's name was among those listed in that letter.249 In the latter part of September 1983 Mark Steele in- formed Huff that Steele was becoming a foreman and was moving his locker from the one next to Huff's locker to the foremen's quarters. Huff also saw a compa- ny notice about Steele becoming a new foreman. On Monday, 26 September 1983 Huff reported to work in the hamburger department. Huff worked 9-1/4 hours that day. Huff told Steele that he had worked 1/2 hour longer in the hamburger department. Huff asked 246 The foregoing paragraphs are based on the credited testimony of Huff. 247 It is not alleged in the General Counsel 's complaint that the trans- fer of Huff to perform the cleanup work was discriminatory or itself an unfair labor practice. 248 The foregoing paragraphs are based on the credited testimony of Huff 249 The foregoing is based on documentary evidence. Steele to remember that. Steele replied that he would re- member it; told Huff not to worry; and that they were friends. The next day 27 September 1983 Huff noticed that only 8-3/4 hours were marked on his timecard. That was the amount of time which the K line had worked, but Huff had worked a total of 9-1/4 hours in the hamburger department. Huff immediately went to Steele and told Steele again that he had worked 9-1/4 hours. Huff told Steele that Steele would have to change it. Steele told Huff that he was sorry; that he would do so; for Huff not to worry about it; and that Steele would get to it. During the second afternoon break that day Huff again told Steele not to forget to mark down 9-1/4 hours on his timecard. Steele told Huff that he had not done so, but that he would. When Huff punched out his timecard he noticed that 8-3/4 hours were still on his card. Huff looked for Steele, but Huff could not find him. Huff erased the 8- 3/4 hours on his timecard, and Huff wrote in 9-1/4 hours on his timecard. A copy of his timecard was introduced into evidence as General Counsel's Exhibit 465.250 On 28 September 1983 Huff reported to the plant, and he discovered that his timecard was not in the rack. Huff reported this to Steele, who told Huff to wait until Steele got everyone set up on their jobs on the line. Then Steele took Huff to Foote's office. Foote asked Huff if he had changed anything on his timecard or writ- ten the 9-1/4 hours. Huff said that he had done so, but that Steele knew those were the right hours. Foote told Huff that was not the question whether those were the right hours. Foote told Huff that he had just asked him if Huff had made those marks on the timecard. Huff said that he did. Foote told Huff that this was a major infrac- tion, and it was number 9 in the Company's rules. Foote also told Huff that Steele was going to change his time- card. Foote also told Huff that there were hundreds of employees in the fabrication department, and the Compa- ny could not allow that situation to exist where an em- ployee changed his own timecard. Foote told Huff that he was writing him up for that, and that Huff was sus- pended until 3 August 1983 pending further investiga- tion. Huff told Foote that he had not done anything wrong. Huff told Foote that he had told Steele two or three times that Huff had worked 9-1/4 hours. Huff told Foote that Steele had agreed with Huff, and that Steele was going to change the timecard. Huff said that when Steele did not change the timecard, Huff decided to do it in order to help out Steele. Huff repeated that he did not think he had done anything wrong, and that Huff thought that he was helping out Steele. Foote told Huff again that it was a major infraction, and that Huff was suspended until 3 October 1983. Foote also told Huff that Huff would be terminated. General Counsel's Exhibit 466 is a copy of a warning notice issued to Huff by Steele on 27 September 1983. The notice provided for Huff' s suspension and his termination 250 The foregoing paragraphs are based on the credited testimony of Huff and documentary evidence. MONFORT OF COLORADO 175 for the major infraction of altering a timecard. Huff re- fused to sign the document. Huff next told Foote that in the company policy book under major and minor infractions, a foreman or superin- tendent could use his discretion to dismiss any discipli- nary action if the situation did not warrant it. Huff said that Foote could use his discretion; that Foote knew that Huff had not done anything wrong; that Foote knew that the hours were right; that Foote could dismiss the action against Huff; and Huff asked why Foote had not done that in any of the earlier cases where Foote knew that Huff should not have been disciplined. According to Huff, Foote told him: He said, "Well, we had another charge. We had a girl'down in the hamburger department. Her name was Delores." And he said, "We had her sign har- assment statements against you anyway." So he said, "We have those against you, too." Huff told Foote that Huff did not think Foote should be bringing up those things against Huff. Huff also said that he did not think Foote should have had her do that because Huff had a right to organize during his breaks and on his own time. Huff explained the hearing that he had been talking about the Union to another employee, whom he identified only by her first name Joyce. While Huff was talking with Joyce, Delores interrupted, and Delores told Huff what she thought of the Union and where she had worked previously. Huff testified: "And she was so loud that she was screaming at me. And the foreman heard that and came over and settled her down." Huff again told Foote that he had not done anything wrong; that this was just harassment; that it was done because Huff was a union organizer; that when the new election had been ordered, Huff resumed organizing; that this was not right; that Foote had no business writing up Huff over this; and that Huff was going to go to the NLRB and to his union lawyer. Foote told Huff to "Get out." Huff replied: "Okay. But I'd like you to know-." Foote interrupted and told Huff he was writing him up for insubordination. Huff replied: "Okay, I'm going to leave." General Counsel's Exhibit 470 is a copy of the warning dated 28 September 1983 which provided for Huff's termination for insubordination. Huff had not seen that document until he testified at the hearing on 14 June 1984.251 Huff then went to the personnel office where he spoke with Lovelady. Huff informed Lovelady that they had done it again, and Huff said that Lovelady probably al- ready knew about it. Lovelady told Huff that he did not know about it. Huff told Lovelady some of what had happened. Lovelady told Huff to get his things; check out; and Lovelady would see if he could have Huff's check ready. Huff asked Lovelady for an appeal form, and Lovelady gave Huff one. Huff then went to the locker room, but he also decid- ed to copy a notice in the adjoining knife room. The 251 The foregoing paragraphs are based on the credited testimony of Huff and documentary evidence, notice pertained to the new foremen including Steele. The notice stated that employees were supposed to help the new foremen and cooperate with them. While Huff was copying that notice, Foote approached Huff and told Huff that he had told Huff to leave. Foote told Huff that he was going to call the security guards because Huff had not left. Huff then departed. Later that same day, Huff gave the appeal to Love- lady when Huff returned to the plant in order to pick up his paycheck. Huff was told at that time to return on Monday, 3 October 1983. However, -Huff did not return to the plant on 3 October 1983 because his wife was at the hospital to deliver her baby. Huff telephoned Love- lady from the hospital, and he explained the circum- stances to Lovelady. Lovelady told Huff that he could come in the next day. On 4 October 1983 at 9 a.m. Huff went to Lovelady's office where be met with Dalton, Ewing, and Foote. Lo- velady was on vacation at that time. Ewing told Huff that they had discussed the matter to a great extent, and they had decided to terminate Huff. Huff asked what for. Huff knew, and it was for altering his timecard. Huff said that he had not done anything wrong; if they meant changing the wrong time to the right time, he did not think that was wrong; that it did not say that in the com- pany policy; that Foote had written him up for a major infraction under rule number 9; that Huff had looked that rule up; that Foote did not show the rule to Huff in his office; that Huff went home and found the rule in his policy book; that the rule said that you had to falsify your timecard or punch somebody else's timecard in or out or do something false or illegal to obtain wages, which Huff said he had not done; that Huff should not be terminated for doing so; that Huff did not think any- body should be terminated for that; that if anybody should be terminated for that, it should be in the compa- ny policy book; that the foregoing was not in the compa- ny policy book; and that Huff knew he had not done anything wrong. Dalton replied that they had their avenues to take; that that was the one they had chosen; that from what Huff had said, Huff had his avenues to take; for Huff to go ahead and take his avenues ; and they would take theirs. Huff asked, if he went to the NLRB and to his union lawyers and they got Huff's job back, would Huff have to go through this kind of harassment again . Dalton'' re- plied that he did not know, and he said "We'll see." Huff asked whether that was Dalton's answer. Huff said that he could possibly or probably get his job back, and Huff asked whether Dalton did not know if they would harass Huff. Dalton replied that was not what he had meant. Dalton said: "We'll see if you get your job back." Huff said that he hoped the next time that they saw each other that it would be under better circumstances. Huff then left. General Counsel's Exhibit 467 is a copy of Huff's ini- tial appeal and the reply which 19 dated 4 October 1983. Huff filled out another appeal form with regard to his termination . About 2 weeks later, Huff received in the mail the Company's reply to his second appeal. General 176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Counsel's Exhibit 468 copy of that appeal and the reply which is dated 10 October 1983. Huff filed an unemployment compensation claim. His benefits initially were denied, but on appeal, he was granted full benefits. General Counsel's Exhibit 469 is a copy of that latter decision.252 I have considered the testimony given by Foote, Finney, Matthews, and Meakings. Their versions differed in some respects from Huff's detailed account of the events pertaining to him. As indicated above, I have credited Huff's testimony in this regard, and I have relied upon his account and documentary evidence in making the findings of fact in this section. the absence of Huff's union activities. Accordingly, I recommend to the Board that the General Counsel's alle- gations regarding the termination of Huff on 4 October 1983 be dismissed. XIV. THE SUSPENSION OF GERALD ARAGON ON 28 SEPTEMBER 1983 A. Allegations The General Counsel alleged in paragraphs V(b) and VI of the complaint in Case 27-CA-8563 the following: V C. Conclusions I conclude that the General Counsel established a prima facie case with regard to the alleged discriminato- ry termination of Huff on 4 October 1983. The evidence showed that Huff had participated in union activities at Employer's plant by speaking with other employees about the Union; by distributing union leaflets at the plant; and by passing out union authorization cards to employees at the plant. Based on conversations which Huff had with company supervisors, and Charging Party's Exhibit 7, I conclude that the evidence estab- lished that the Company had knowledge of Huffs proun- ion activities. In addition, the Company knew at the time of Huff's termination on 4 October 1983 that the Charg- ing Party Union previously had filed an unfair labor practice charge against the Respondent regarding the Company's earlier termination of Huff. As indicated before, I have concluded that the evidence showed that the Company had animus towards the Charging Party Union and its activities in organizing the Respondent's employees. I conclude under the Board's Wright Line de- cision that the General Counsel has established a prima facie case with regard to Huffs termination on 4 Octo- ber 1983. I further conclude that the Respondent has met its burden under the Board's Wright Line decision. In this connection, I have noted that the earlier warnings and the earlier termination of Huff's employment by the Company were not alleged to have been for discrimina- tory reasons, nor were they alleged to have been them- selves unfair labor practices in the General Counsel's complaint in this proceeding. Huff admittedly made a change on his own timecard without any authorization to do so. The evidence showed that Foote explained to Huff that Supervisor Steele had told Huff that Steele would make the change on Huffs timecard. The evi- dence also showed that Foote told Huff that the Compa- ny had hundreds of employees, and the Company could not permit a situation to exist where an employee changed his timecard. Thus, the evidence showed that the Respondent did not accept Huff's assertions that he was helping out his new foreman, and that he had not done anything wrong. In these circumstances, I conclude that the Respondent has shown that the Respondent would have terminated Huff on 4 October 1983 even in 252 The foregoing paragraphs are based on the credited testimony of Huff and documentary evidence. (b) On or about September 28, 1983, Respondent suspended Gerald Aragon, an employee at Re- spondent's Greeley plant. VI The Respondent engaged in the acts and conduct described above in paragraph V because of said em- ployees membership in and activities on behalf of the Union. B. Facts As indicated above, the General Counsel alleged that the Respondent 's 1 day suspension of Gerald Aragon with full pay on 28 September 1983 violated Section 8(a)(1) and (3) of the Act. Subsequently , Aragon volun- tarily quit his employment with the Respondent. Aragon is one of the alleged discriminatees in the group alleged by the General Counsel in Case 27-CA- 7742. Some of the facts pertaining to Aragon 's employ- ment with the Respondent have been set forth in section VI of this decision . The General Counsel alleged in Case 27-CA-7742 that the Respondent should have rehired Aragon earlier than the Respondent did. Other facts pertaining to Aragon already have been set forth in section VII of this decision with regard to the allegations in subparagraphs V(q), V(r), V(hh), and V(jj). After Aragon was rehired by the Company in May 1982, Aragon began talking with other employees at the Company with regard to getting the Union back in the plant again . As a result , about a month after he was re- hired, Aragon spoke with Steve Thomas who gave Aragon some union cards to hand out to employees. During his breaktimes Aragon distributed those union cards to employees in the beef fabrication department locker room . Aragon believed that the possibly distribut- ed about 20 or 30 union cards to employees at the plant. About 80 percent of the employees returned the cards to Aragon . Aragon then gave those cards to Thomas. About 6 weeks after he was rehired in 1982, Aragon began wearing a baseball cap to and from work. The cap had "Local 7, UFCW" on it. Aragon continued to wear that cap to and from work most of the time until 19 Oc- tober 1983 . In June or July 1982 Aragon began ending union organizing committee meetings. Around September 1982 Supervisor Buhlke was reas- signed to a different table. Supervisor Galles became the supervisor of Aragon at that the time. Galles continued MONFORT OF COLORADO to supervise Aragon for about 6 months. During that time Aragon did not receive any written discipline from Galles. Two or 3 weeks prior to the election in June 1983, Aragon and employee Dennis Miller distributed union stickers near the rear entrance to beef fabrication depart- ment. Aragon and Miller distributed those items 2 or 3 days in the morning as the employees were reporting to work. In addition, Aragon distributed "vote yes" buttons to employees in his working area. Aragon began wearing two union stickers on his helmet about 2 weeks prior to the election in June 1983. One sticker was on the front of his helmet, and one was on the back. Just prior to the election, Aragon removed stickers from his helmet.253 The conversation between Aragon and Galles, which occurred about 2 or 3 weeks before the election, already has been described in section VII regarding subpara- graph V(hh) of the allegations in the General Counsel's complaint in Case 27-CA-7742. The conversation between Aragon and Doris George, which had occurred about a week before the election in June 1983, previously has been described in section VII with regard to subparagraph V(q). The day following that conversation, Aragon was transferred to the chuck table. He was informed of the change in job assignments by a leadman. Aragon spoke with Supervisor Galles who told Aragon that he was wanted there because of Ara- gon's past work experience. Aragon said that he had never done that job before. Aragon also said that he had boned strips, pulled tenders, and performed possibly one or two other jobs, but he had not worked at the chuck table. According to Aragon, Galles told him: "it's not my decision, it's from upstairs."254 The chuck table was located in the fabrication department about 40 or 50 feet from where Aragon previously had' been working. There were about 16 employees working at the chuck boning table at the time that Aragon began working there. There also were about six trainees working on that table. A trainer, who was identified only by his first name of John, showed Aragon how to make the cuts for about 5 or 10 minutes. The trainer wore a blue hat. Aragon worked on his own for about 2 or 3 days. Then another trainer, who was identified only by the name of Geronimo, instructed Aragon for about 15 to 20 minutes on how to remove the bone from the chuck and how to make cuts more easily. Geronimo also wore a blue hat. Aragon asked Geronimo why they had put Aragon on that job. Geronimo replied: "Don't make too many waves, they're out to fire you."2 s 5 The meeting which Aragon attended 2 or 3 days before the election already has been described in section VII with regard to the allegations in subparagraph V(r). Sometime in July 1983 and about 3 or 4 weeks after Aragon began the job of boning chucks, Aragon was 253 The foregoing paragraphs are based on the credited testimony of Aragon. 254 The Respondent's transfer of Aragon from the job of boning strips to the job of boning chucks is not alleged in the General Counsel's com- plaint to have been discrimmatory within the meaning of the Act, nor itself an unfair labor practice. 255 The foregoing paragraphs are based on the credited testimony of Aragon. 177 called to Superintendent Foote's office. Supervisor David Howe gave Aragon a verbal warning at that time. Aragon was informed by Howe that the boning of the chucks had -to be performed within a 2 minute time limit. Aragon replied that he had received very little training. Aragon said that he would do his best to keep up or to increase his speed. Howe told Aragon that he would not write up Aragon on that occasion, but Aragon was going to have to improve his speed.256 In the opinion of Aragon, there is a great difference between the job of boning strips and the job of boning chucks. He explained at the hearing that boning chucks required him to work with a larger piece of meat. It also required him to remove more bone from the meat. Aragon said at the hearing that about 1 minute was allot- ted by the Company for boning strips, and 2 minutes were allotted for boning chucks. Aragon acknowledged at the hearing with regard to boning chucks: "[ just could not handle it." While Aragon was a trainee on the chuck boning table, Aragon boned possibly 15 to 22 chucks an hour, whereas the standard rate was 30 pieces of meat per hour. On 4 August 1983, Supervisor Howe issued a step 1 written warning to Aragon for his failure to produce the amount and quality of the work expected of him. (See G.C. Exh. 90(o).)257 Previously, Aragon had received written warnings in steps 1, 2, and 3, but those written warnings had been removed from Aragon's personnel file after 1' year's time. Aragon acknowledged at the hearing that Howe had told him that he was too slow in boning chucks, and that, if Aragon did not improve, further dis- ciplinary action would be taken, including termination. Aragon said that he told Howe that he would try his best to improve. On 9 September 1983 Superintendent Foote issued a step 2 written warning to Aragon for poor work per- formance. (See G.C. Exh. 90(p).)258 The warning indi- cates that Aragon had been boning chucks no faster than 2 minutes and 35 seconds for the past 3 days, whereas 2 minutes was the allotted time. Aragon acknowledged at the hearing that be had observed Foote with a stopwatch "on everybody." Foote told Aragon that Aragon's work performance was poor. Foote also told him that he should try harder. Aragon told Foote that he could not perform that job, but he would try to improve. Foote warned Aragon of further disciplinary action.259 The circumstances pertaining to the issuance of a step 3 written warning to Aragon on 12 September 198 al- 255 It is not alleged in the General Counsel 's complaint that the Re- spondent's issuance of a verbal warning to Aragon m ,July 1983 was for a discriminatory reason within the meaning of the Act, or that the issuance of die verbal warning was itself an unfair labor practice. 257 It is not alleged in the General Counsel 's complaint that the Re- spondent's issuance of a warning on 4 August 1983 to Aragon was for a discriminatory reason within the meaning of the Act, or that the issuance of the warning was itself an unfair labor practice. 255 It is not alleged in the General Counsel 's complaint that the Re- spondent 's issuance of a warning on 9 September 1983 to Aragon was for a discriminatory reason within the meaning of the Act, or that the issu- ance of the warning was itself an unfair labor practice. 259 The foregoing paragraphs are based on the credited testimony of Aragon and documentary evidence. 178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ready have been described in section VII regarding the allegations in subparagraph V(jj).260 A day or two after Aragon had received the step 3 warning, Aragon had a conversation with Supervisor Wendell Reil. Aragon had not observed Foote making his rounds at the plant that day. Aragon told Reil that Aragon had bid on the job of pulling tenders; that Aragon felt that Foote was out to get him and to fire him; and to at least give Aragon a chance to try out on pulling tenders because Aragon was certain that he could handle that job. Reil told Aragon to remain at the chuck table for the rest of the day, and that maybe Reil could have Aragon moved to pulling tenders at the end of the day. About 2:30 or 3 p.m. that same day, Reil permitted Aragon to go to the job of pulling tenders. Aragon exchanged his chuck knife for knives to pull tenders, and he proceeded to perform that job. Finney was supervising the table where Aragon was working. Finney observed Aragon's work, and Finney told Aragon that his work was "not bad." Finney told Aragon to concentrate on cleaning the bone; to get his knife closer to the bone; and not to make a hook tear on the tenders. A day or two later, Finney told Aragon not to worry about his speed in pulling tenders, but, instead, to con- centrate on keeping the bones clean; getting his knife closer to the bone; and doing a good job. According to Aragon, Finney also told him: "It looks real good." Finney told Aragon that he would be ready to qualify Aragon in that job within a short period of time. In the opinion of Aragon, Finney was satisfied with Aragon's work until Foote returned to the fabrication department. At that time, in Aragon's opinion, Finney's attitude toward Aragon appeared to change.261 On 8 September 1983 the Union sent a letter to the Company and identified 31 employees who were current- ly engaged in union organizing activities on behalf of the Charging Party. (See C.P. Exh. 7.) Gerald Aragon's name was among those listed in that letter.262 On 28 September 1983 a step 4 written warning was issued by, Finney to Aragon. Aragon was suspended from work with full pay for 1 day from 28 to 29 Septem- ber 1983. (See G.C. Exh. 90(r) and see the step 4 policy on page 4 of G.C. Exh. 17.) According to the warning, Aragon had violated the Company's rule 22 by failing to perform his work up to the Company's standards. Aragon recalled at the hearing that he had seen Finney remove from the table a piece of meat which Aragon had just finished working on. Aragon saw Finney and another man in a red helmet walk away with the piece of meat. That occurred at about 2 or 2:30 p.m. About a half hour or an hour later, Finney told Aragon to follow him to the office. When they arrived at the office, Aragon was told to wait in the front office area for a couple of minutes. Then Aragon was told to 260 It is not alleged in the General Counsel's complaint that the Re- spondent's issuance of a warning on 12 September 1983 to Aragon was for a discrumnatory reason within the meaning of the Act , or that the issuance of the warning was itself an unfair labor practice. 261 The foregoing paragraphs are based on the credited testimony of Aragon. 262 The foregoing is based on documentary evidence. go into Foote's office. When he entered Foote's office, Aragon saw the piece of meat in two parts on Foote's desk. Aragon also saw a warning notice on Foote's desk. Foote told Aragon that Aragon was not doing quality work; that he failed to perform up to the Company's standards; that he had been pulling tenders very poorly; that this was poor work performance; that they were back to where they were before; that Aragon could not do the job of boning chucks or pulling tenders; and that anywhere Foote put Aragon, he was unable to perform the work. Aragon responded by saying maybe he was going too fast on that job; Aragon asked to be given a chance; and he said he was sure that his work perform- ance would improve. Foote then pointed to a hook tear on the tender, and Foote said that Aragon had been ob- served doing that. Foote said that this was an expensive piece of meat, and he could not have that. Foote also said the Company was losing money if that was going to be classed as a class 2 piece of meat. Foote told Aragon that he did not know what to do with Aragon. Foote said that he had no choice; that Aragon had a writeup; and that Aragon would be suspended for the next day, which was a Friday, and for Aragon to report back to work on Monday on the chuck table. Foote told Finney to get a disqualification form for Aragon to sign. At the hearing, Aragon acknowledged that Finney had said at the meeting that Finney had shown Aragon on several occasions the way to cut meat. Aragon acknowl- edged that Finney also stated at the meeting that he had told Aragon what was expected of him, and that Finney had not moved Aragon into step 4 prior to that occasion because Finney wanted to give Aragon a chance. Aragon further acknowledged at the hearing that Finney had said that Finney had discussed the previous day with Aragon the importance of flexing the knife in order to clean the bones. Aragon also acknowledged at the hear- ing that he had seen the hook tear in the piece of meat at the step 4 meeting. Aragon said that he did not raise the issue of insufficient training at the step 4 meeting. Aragon also acknowledged that there was no discussion of the Union or union activity during the step 4 meeting. After the meeting , Aragon refused to sign both the written warning and the disqualification form. However, Finney told Aragon that he would appreciate it if Aragon could at least initial the disqualification form, so Aragon did initial it. Aragon never sought review of the issuance of the step 4 warning.263 Aragon said at the hearing that some other employees who were performing the job of boning chucks also did not keep up with their jobs, or had left too much meat on the bones. He testified that two of those employees were disciplined by the Company and put in a step for doing that. However, Aragon also noticed other employ- ees who had left meat on the bones, and as far as he knew, they were not disciplined. He acknowledged at the hearing that he did not have access to those employ- ees' personnel files. He did not testify whether any com- 263 The foregoing paragraphs are based on the credited testimony of Aragon and documentary evidence MONFORT OF COLORADO 179 pany supervisor had observed those employees who left meat on the bones but were not disciplined. Aragon returned to work on the chuck table on the following Monday. 18 October 1983 Aragon voluntarily quit his employment at the Company. He went to work the following day at the Great Western Sugar factory. He worked there for 40 days during the sugar beet har- vest. Aragon then applied for unemployment compensa- tion. His claim initially was denied because he had quit work at the Respondent's plant. However, on appeal the referee awarded Aragon full benefits. (See G.C. Exh. 436.) Aragon acknowledged at the hearing in this pro- ceeding that he had testified in the unemployment hear- ing that it was possible to learn "the mechanics of the job," that is, where to cut, in just 1 day. He acknowl- edged that he said it would take longer to build speed and endurance. It is not alleged in the General Counsel's complaint that Aragon was constructively discharged for discrimi- natory reasons. (See Tr. 3478-3479 and 3542-3549.) The Union did file an unfair labor practice charge on 4 April 1984 against the Respondent and made such an allega- tion, among other allegations. That unfair labor practice charge was withdrawn on 14 May 1984. (See R. Exh. 106 and 107.) General Counsel'S Exhibit 437 is a copy of the form which Aragon filled out upon his quitting work at the Company.264 I have considered the testimony of Finney, Foote, Howe, and Michael with regard to the events pertaining to Aragon. However, as indicated above, I have credited Aragon's version of those events, and I have relied upon his testimony and documentary evidence in making the findings of fact in this section. C. Conclusions I further conclude that the Respondent has met its burden under the Board's Wright Line decision. As indi- cated, in the findings of fact, the warnings issued to Aragon, which were issued prior to the step 4 warning which led to his suspension, were not alleged to have been issued for discriminatory reasons. The evidence showed that Aragon's job performance had not met the expectations of the Company's supervisors, and that Aragon was well aware of that fact. Aragon acknowl- edged that he observed at the meeting in Foote's office that there was a hook tear in the tender. He related the fact that Foote pointed out that the tender was an expen- sive piece of meat, and that the Company could not have that done. He also stated that Foote told him that the' Company would lose money if the tender was classed as a class 2 piece of meat. After considering the foregoing, I conclude that the evidence shows that the Respondent would have suspended Aragon for 1 day with full pay even in the absence of Aragon's union activities. Accord- ingly, I recommend to the Board that the General Coun- sel's allegations regarding the suspension of Aragon on 28 September 1983 be dismissed. XV. THE TERMINATION OF JOE GONZALES ON 23 DECEMBER 1983 A. Allegations The General Counsel alleged in paragraphs V and VI of the complaint in Case 27-CA-8716 the following: V On or about December 23, 1983, Respondent dis- charged Joe Gonzales, an employee at its Greeley, Colo- rado plant, and at all times since has failed and refused, and continues to fail and refuse to reinstate this •enaploy-I conclude that the General Counsel established a prima facie case with regard to the alleged discriminato- ry suspension of Gerald Aragon on 28 September 1983. The evidence showed that Aragon was a former employ- ee of the Respondent, and that he had worked under the coverage of a collective-bargaining agreement between the Charging Party Union and the Respondent prior to the time that the Greeley plant had closed. In addition, the evidence revealed that, after Aragon was rehired by the Respondent in May 1982 at the Greeley plant, that Aragon had talked to employees at the plant regarding the Union; distributed union authorization cards to em- ployees at the plant; solicited employees at the plant to sign union cards; and distributed at the plant union stick- ers and "vote yes" buttons. Charging Party's Exhibit 7 and Aragon's conversations with company supervisors revealed that the Company had knowledge of Aragon's prounion sentiments after he was rehired at the Greeley plant. The Respondent's animus towards the Charging Party already has been discussed. I conclude that the General Counsel has established a prima facie case with regard to Aragon's suspension under the Board's Wright Line decision. 264 The foregoing paragraphs are based on the credited testimony of Aragon and documentary evidence. ee. VI The Respondent engaged in the acts and conduct de- scribed above in paragraph V because of said employees' membership in and activities on behalf of the Union. B. Facts As indicated above, the General Counsel alleged that the Respondent's termination of Gonzales violated Sec- tion 8(a)(1) and (3) of the certain events pertaining to Gonzales up to 12 April 1982 already have set forth in section VII with regard to the allegations in subpara- graph V(gg) of the General Counsel's complaint in Case 27-CA-7742. When Gonzales reported to work on 12 April 1982, he was in a group of employees who were filling out W-2 forms and receiving literature from the Company. Gary Ewing asked Gonzales to accompany him to Lovelady's office. Gonzales did so. Gonzales had listed on his appli- cation that he had injured himself in 1962 on the kill floor, but the Company could not find anything referring to that incident. Gonzales said that he had not had any trouble since the incident had occurred. Gonzales then 180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD returned to the group. Later on, Ewing informed him that the Company was going to hire him anyway. During his previous employment with the Respondent, Gonzales had about 5 years' experience in boning chucks. He was placed in that job at the beginning of his second period of employment with the Company. Kim Vanderloo, the foreman of Gonzales at that time. Van- derloo showed Gonzales how to bone two or three chucks. The procedure for boning chucks was different from the procedure that had been in effect when Gon- zales previously had worked for the Company. Vander- loo explained to Gonzales that it would not take him long to catch on because Gonzales had been a chuck boner previously. Gonzales performed the job of boning chucks for ap- proximately 4 months. During that time he did not re- ceive any discipline with regard to his job performance. After 4 months in that job, Vanderloo informed Gon- zales that an employee had quit. Vanderloo asked wheth- er Gonzales wanted to make chuck rolls. Gonzales re- plied that he did not care. Vanderloo then assigned Gon- zales to making chuck rolls.265 Gonzales did not receive any discipline regarding the performance of his job of making chuck rolls. However, he did receive a written warning for excessive absences.266 Gonzales was a member of the Union. He participated in the Union's organizing committee of company em- ployees. About 5 months before the election, Gonzales began distributing union leaflets inside the plant on the cafeteria table and in the locker room. He also distribut- ed union leaflets outside the plant at the company gate. He continued that activity and he also distributed union authorization cards. Vanderloo was standing about 6 feet away from Gonzales on one occasion when Gonzales was distributing leaflets on the Company's cafeteria tables. Junior Urias was about 3 feet away from Gon- zales when Gonzales was handing out leaflets and union authorization cards about 4 weeks before the election. Gonzales wore a "vote union" button on his shirt collar which was outside of his frock so that the button could be seen by other people. Gonzales began wearing the button about 3 weeks before the election. He wore the union button all day at work and on his way home. He was in daily contact with company supervisors while he was at work. Gonzales wore union stickers on the front and the back of his helmet at work. He also wore a union tee shirt at work, but his tee shirt was covered by his frock. As he was leaving the plant, Gonzales wore a union hat with the Union's name on it. Gonzales received a subpoena to appear at the NLRB representation hearing regarding the Company's employ- ees. Gonzales showed the subpoena to Vanderloo who informed Gonzales that Vanderloo would have to show the subpoena to the personnel office because Gonzales 265 It is not alleged in the General Counsel's complaint that the trans- fer of Gonzales to the job of making chuck rolls was made for discrimi- natory reasons , or was an unfair labor practice. 266 It is not alleged in the General Counsel 's complaint that the Re- spondent 's issuance of a written warning to Gonzales for excessive ab- sences was for a discriminatory reason within the meaning of the Act, or that the issuance of the warning was itself an unfair labor practice. wanted time off. Gonzales appeared at the representation case hearing.267 Around 2 weeks before the election in June 1983, Gonzales attended a meeting of employees in the confer- ence room at the Company. Cecil Foote and two other supervisors were present. Before a movie was shown to the employees, there was a discussion of profit sharing. One of the supervisors told the employees that profit sharing would be 10 percent of what the employee made in 1 year. Gonzales spoke up at the meeting, and he said that he thought profit sharing was based on what the Company made in a year and not on 10 percent of what an employee made in a year. During the showing of the movie at the meeting , Gonzales recognized his supervi- sor, David Howe, in the film. Howe was depicted in the film as throwing a rock through a windshield. Gonzales spoke up at the meeting and said, "Atta boy, Dave." Ac- cording to Gonzales, the movie showed scenes of some strikes at other packing plants. During the election at the Company, Gonzales served as an election observer for the Union.268 General Counsel's Exhibit 438 is a copy of a step 1 written warning issued on 11 July 1983 to Gonzales by Supervisor Howe for excessive absences missing work on 15 June and 8 July 1983 within a 30-day period.269 At the hearing Gonzales acknowledged that he had attended meetings in the office with his supervisor prior to July 1983 with regard to the Company's attendance policy. Gonzales misunderstood that the policy was two ab- sences in a month, rather than two absences within a 30- day period would result in a warning. That misunder- standing was corrected at the step 1 meeting. Supervisor Billy Michael told Gonzales that Vander- loo had told him Gonzales was his best chuck roller. Charging Party's Exhibit 10 was a copy of a letter dated 20 June 1983 from Ken Monfort to Gonzales. The two letter pertains to the Company's position regarding the election. A script stated: "Your, supervisor tells me that you are doing outstanding work as a chuck roller. I ap- preciate that, it is a very important job. "270 In August 1983 Howe informed Gonzales that he needed "a two-bracket man" in the job of cutting down chucks. Gonzales was a "two-bracket man" at the time. Gonzales was the only employee performing the job at the time. Vanderloo told Gonzales that he had 5 seconds in which to cut down the chuck, and Howe showed Gonzales how to do so.271 267 The foregoing paragraphs are based on the credited testimony of Gonzales 268 The foregoing paragraphs are based on the credited testimony of Gonzales 266 It is not alleged in the General Counsel's complaint that the Re- spondent 's issuance of a warning on I1 July 1983 to Gonzales was for a discriminatory reason within the meaning of the Act, or that the issuance of the warning was itself an unfair labor practice. 270 The foregoing paragraphs are based on the credited testimony of Gonzales and documentary evidence. 271 It is not alleged in the General Counsel's complaint that the trans- fer of Gonzales to the job of cutting down chucks was made for discrimi- natory reasons within the meaning of the Act, or that it was an unfair labor practice. MONFORT OF COLORADO 181 Gonzales acknowledged at the hearing that he was unable to make sufficient chuck cut downs in order to keep up with the speed of the chain. Gonzales said that the "chuckers" who next received the meat to work on also could not keep up with the amount of meat coming to them on the belt. Gonzales said that they were stack- ing pieces of meat in a 4 by 4 box. Sometimes the inspec- tors would shut down the line because meat was falling on the floor. When the Company was running what was called a "mopac" on the chain, no cutting of the meat for the "mopac" was necessary. Therefore, Gonzales said that the employees cut the meat which had been placed in the boxes. Although Gonzales had not performed the job of cutting down chucks during his period of employ- ment from 1960 to 1975 with the Company, he said it was performed differently when he did it in 1983.272 General Counsel's Exhibit 439 is a copy of a step 2 written warning which was issued on 3 August 1983 to Gonzales by Supervisor Howe for Gonzales' failure to follow instructions. 273 Gonzales said the warning was issued to him on the day after he had begun the job of cutting down chucks. Gonzales attended a meeting regarding the warning with Foote, Howe, and Galles. They told Gonzales that he was not following their instructions. They asked him why he could not keep up, and they told him it was a one-man job. Gonzales replied that two or three men were needed on that job, and that he would like to go back to his previous job. Gonzales told the supervisors at the meetings: "I just can't do it, the chain is running too fast." The supervi- sors told Gonzales that he had been warned twice that he could not stack meat on a table, and he was causing work overloads. Gonzales acknowledged that he may have been told that, but he said he was so busy that he threw the chucks on the table or on the belt. They told Gonzales that, if he kept up that practice, he would be placed in further disciplinary steps. Gonzales asked the supervisors why they were not writing up all of the "chuckers" because he said they were behind in their work. Gonzales testified: "I was at top speed, I couldn't go any faster to what they wanted." Gonzales also asked why he had been moved to that job. They told him that it was because he was a "two-bracket man," and that a "two-bracket man" was needed. Gonzales suggested, either at that Meeting or at a later meeting, that the Company put another "two-bracket man" on that job. He also suggested to the supervisors that awoman, who worked next to him, be added to the job, Gonzales iden- tified her at the hearing only by her first name of Louise. Howe laughed at Gonzales, and he told Gonzales to go to work.274 272 The foregoing paragraphs are based on the credited testimony of Gonzales. 273 It is not alleged in the General Counsel's complaint that the Re- spondent's issuance of a warning on 3 August 1983 to Gonzales was for a discriminatory reason within the meaning of the Act, or that the issuance of the warning was itself an unfair labor practice. 274 The foregoing paragraphs are based on the credited testimony of Gonzales and documentary evidence On 5 August 1983 Gonzales had a conversation with Foote and Howe in one of the upstairs offices. They in- formed Gonzales that any time he was off from work sick that he should see this company nurse. Gonzales told them that it was too far for him to drive 10 miles to see the company nurse, and then 10 miles back home. Howe again told Gonzales that he was not performing the job like he should be doing. Gonzales said that the speed of the chain was too fast, and "there was no way I could keep up." Gonzales further told Foote and Howe that, if the job was a one-man job, they should take him off that job; maybe he was too old for that job; and there was no way he could keep up.275 Gonzales asked the su- pervisors to put him back on his first job. Gonzales also told them that the "paddle boners" were pushing him of the small area he had to work in. Gonzales said that there was no way anybody could keep up.276 General Counsel's Exhibit 440 is a copy of a step 3 written warning issued on 9 August 1983 to Gonzales by Howe for Gonzales' failure to do the amount and the quality of work expected.247 Gonzales met with Foote and Howe regarding that warning. Howe told Gonzales that he was still behind, and that would not keep up with his work which was in violation of company policy. Gonzales asked what the company policy was. Gonzales also told Howe and Foote: "There's no way I can keep up, just the chain runs too fast." Howe told Gonzales that the chain was running empty every third or fourth scissor. Gonzales said that he wanted to be removed from the job; that the chain was too fast; and that he was doing the best that he could. Either in the discussion with regard to the step 2 warning or in the ' discussion re- garding step 3 warning, Gonzales asked Foote and Howe if they were picking on him because of his union activi- ties. Foote and Howe did not comment. Gonzales told them that it was harassment, and if they wanted to do so, why did they put him in whatever step it takes to fire him and save everyone a lot of trouble. Foote and Howe told Gonzales to go back to work.278 On 8 September 1983 the Union sent a letter to the Company and identified 31 employees who were current- ly engaged in union organizing activities on behalf of the Charging Party Union. (See C.P. Exh. 7.) Gonzales' name was among those listed in that letter.279 General Counsel's Exhibit 441 is a copy of a step 4 written warning which was issued on 11 October 1983 to Gonzales by Supervisor Billy Michael for an unexcused absence for calling in less than 30 minutes prior to his 275 At the time that Gonzales testified at the hearing in this proceeding on 18 May 1984, he was 53 years old 276 The foregoing is based on the credited testimony of Gonzales. It is not alleged in the General Counsel's complaint that the counseling re- ferred to above was done for discriminatory reasons, or that it was an unfair labor practice In addition, it was not alleged in the General Coun- sel's complaint that the Company's failure to grant Gonzales' request to return to his former job was an unfair labor practice. 277 It is not alleged in the General Counsel's complaint that the Re- spondent's issuance of a warning on 9 August 1983 to Gonzales was for a discriminatory reason within the meaning of the Act, or that the issuance of the warning was itself an unfair labor practice. 278 The foregoing paragraphs are based on the credited testimony of Gonzales and documentary evidence. 271 The foregoing is based on documentary evidence. 182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD starting time. Gonzales called in at 6:55 a.m. on that oc- casion while his starting time was 7:06 a.m.280 Gonzales had a conversation with Foote and Michael regarding that warning. They told Gonzales that he should know to call 30 minutes before his starting time. Gonzales told them that he was sick; that he would not have been any use to the Company because he had to keep going to the bathroom; that he had been on the plant premises; that he had telephoned from the company cafeteria; that he would have gone to work if he had known that the fore- man would have permitted him to leave the line; that there had been accidents before when an employee could not leave the line to go to the restroom because of the chain speed and the lack of relief employees; and that he was better off going home. Foote and Michael told Gon- zales that he had called in late; that it was a violation of company policy; and that Gonzales would be suspended from work for 1 day with full pay to think over the proper job procedures which had to be followed. Gonzales said at the hearing in this proceeding that he had had the flu and diarrhea on that occasion. He said that the company nurse had given him some medicine for his stomach, and that he had told the nurse that he was going home. Gonzales filed an appeal of the step 4 warning on 14 October 1983, but he received no reply. (See G.C. Exh. 443.) Gonzales gave the appeal form to Michael, who told Gonzales to give the appeal to Foote. Gonzales did so, and Foote' put the appeal form in his pocket. Gon- zales acknowledged at the hearing that he had read on the form that the appeal was to be submitted to the Company's personnel office. Gonzales did not inquire about what had happened to his appeal.2811 On 13 October 1983 Gonzales met with Michael, who asked why he had not been at work the previous day. Michael told Gonzales that Gonzales had been suspended on 11 October 1983 for that 1 day; that Gonzales was supposed to report for work on 12 October 1983; that Gonzales had failed to follow instructions; that Michael could terminate Gonzales because Gonzales would be in step 5; and that Michael was not going to do so because there may have been misunderstanding. Michael told Gonzales that he would just give Gonzales written warn- ing for failure to follow instructions. A copy of that warning dated 13 October 1983 was introduced into evi- dence as Respondent's Exhibit 108. That warning did not place Gonzales in step 5.282 General Counsel's Exhibit 442 is a copy of a step 5 written warning issued on 23 December 1983 to Gon- zales by Supervisor Galles for excessive absence for being absent on 19 and 22 December 1983. 480 It is not alleged in the General Counsel 's complaint that the Re- spondent's issuance of a warning on 11 October 1983 to Gonzales was for a discriminatory reason within the meaning of the Act, or that the issu- ance of the warning was itself an unfair labor practice 221 The foregoing paragraphs are based on the credited testimony of Gonzales and documentary evidence. 282 The foregoing is based on the credited testimony of Gonzales and documentary evidence. It is not alleged in the General Counsel's complaint that the Respond- ent's issuance of a warning on 13 October 1983 to Gonzales was for a discriminatory reason within the meaning of the Act, or that the issuance of the warning was itself an unfair labor practice With regard to his absence on 19 December 1983, Gonzales said that had telephoned the Company and ex- plained the reason for his absence. Gonzales said that he had taken his sister to Denver, and the water pump on his car had gone out. His sister got her car and towed Gonzales' car to a service station. The next morning the service station personnel advised Gonzales that they could not repair his car until they got the parts to do so. Gonzales' car was not repaired until that evening. With regard to his absence on 22 December 1983, Gonzales said that he called the Company and explained to his supervisor the reason for his absence. Because of the cold weather, Gonzales said that he could not get either one of his two cars to start that morning. He was told on the phone that the Company needed him if he could get into work. That afternoon his son got the cars started, and Gonzales had the batteries charged. Howev- er, the next day, 23 December 1983, both cars again would not start. Gonzales asked another company em- ployee, who he identified only by her first name of Peggy, to give him a ride. Gonzales said that Peggy's car also would not start that morning. Gonzales said that he called the Company on 23 December 1983, and that he advised the Company of the reason for his absence. He was told over the telephone to come in as soon as he could get his car started. Gonzales did not report to work on 23 December 1983. Gonzales got his car to the service station, but Gonzales said they had a lot of work to do. In addition, a towing cable snapped and broke his car windshield. When Gonzales reported to work after Christmas, he met with Foote and Michael regarding his absences from work. Gonzales explained to them the reasons for his ab- sences as described above. Foote told Gonzales that he was placed in step 5, and that Gonzales was terminated for excessive absences, but not for job performance. Gonzales acknowledged at the hearing that he had been absent from work several days earlier in 1983 to take care of personal business. On those occasions, he had obtained the prior permission of his supervisor to be away from work. Gonzales also acknowledged at the hearing that he had known in December 1983 that, if he missed 2 days in a 30 day period, he would be moved into step 5 and be terminated. As a result of an unemployment compensation bearing, the referee denied the claim for benefits for Gonzales. There was no decision by the referee with regard to Gonzales' attempt to appeal his step 4 written warning. (See G:C. Exh. 443.) At the time that Gonzales testified at the hearing in this proceeding on 18 May 1984, the referee's decision was on appeal.283 I have considered the testimony of Foote, Howe, and Michael with regard to the events pertaining to Gon- zales. However, as indicated above, I have based the findings of fact in this section on the credited testimony of Gonzales and documentary evidence. 488 The foregoing paragraphs are based on the credited testimony of Gonzales and documentary evidence MONFORT OF COLORADO 183 C. Conclusions I conclude that the General Counsel established a prima facie case with regard to the alleged discriminato- ry termination of Gonzales on 23' December 1983. The evidence showed that Gonzales had been a former em- ployee of the Respondent during a time that the Re- spondent's employees were covered by a collective-bar- gaining agreement between the Charging Party Union and the Respondent. The evidence further showed that after Gonzales was rehired by the Company, he distrib- uted union leaflets and union authorization cards both inside the Company's plant and outside at the Company's plant gate . Gonzales wore a union button at work, and he wore union stickers at work . In addition , Gonzales was the election observer for the Union at the represen- tation election in June 1983 . In addition, Gonzales' name was included on the list of employees who were identi- fied as being employees of the Company who were en- gaged in organizing activities on behalf of the Charging Party Union. As indicated previously, I have concluded that the evidence established the Respondent's animus to- wards the Charging Party Union and the organizing ac- tivities of its employees on behalf of the Charging Party Union . In these circumstances , I conclude that the Gen- eral Counsel has established a prima facie case under the Board's Wright Line decision with regard to' the alleged discriminatory termination of Gonzales. I further conclude that the Respondent has met its burden under the Board 's Wright Line decision . None of the earlier warnings which were received by Gonzales were alleged to have been discriminatorily given, nor were they alleged to have been unfair labor practices. Gonzales' absences from work were unexcused under the Company's policy, and they exceeded the number of per- missible unexcused absences within a 30-day period. Ac- cordingly, - Gonzales was placed in step 5 , which under the Company's policy meant termination. I conclude that the evidence has shown that the Respondent would have terminated Gonzales even in the absence of Gonzales' union activities . Accordingly, I recommend to the Board that the General Counsel's allegations regarding the ter- mination of Gonzales on 23 December 1983 be dismissed. XVI. THE PETITIONER 'S OBJECTIONS TO THE ELECTION The Petitioner alleged in Objections 2 and 3 as fol- lows: union in the Board election held on June 24, 1983, that the Company would forthwith settle Case No. 27-CA-7742 by agreeing to reinstate the former employees who had been victimized by the Compa- ny's discriminatory hiring practices, which action, the Company threatened, would cause the termina- tion or layoff of "hundreds and hundreds" of the present employees in the bargaining unit. Based on the findings of fact and conclusions made with regard to the 8 (a)(1) allegations in subparagraphs V(e) and (f) set forth in section VII of this decision, I conclude that the Petitioner's Objections 2 and 3 have merit. The Board held in Dal-Tex Optical Co., 137 NLRB 1782, 1786-1787 (1962): Conduct violative of Section 8(a)(1) is a fortiori, conduct which interferes with the exercise of it free and untrammeled choice in an election . This is so because the test of conduct which may interfere with the "laboratory conditions" for an election is considerably more restrictive than the test of con- duct which amounts to interference , restraint, or co- ercion which violates Section 8(a)(1). [Footnote omitted.] Accordingly, I recommend to the Board that the Peti- tioner's Objections 2 and 3 be sustained. The Petitioner alleged in Objection 4 as follows: 4. During the period between June 17 and June 24, 1983, the Company threatened to withhold pay- ments to become due employees in the bargaining unit under the Company's profit sharing plan if the employees voted in favor of union representation. Based on the findings of fact and conclusions made with regard to the 8 (a)(1) allegations in subparagraphs V(g) and (ii) set forth in section VII of this decision, I conclude that the Petitioner's Objection 4 does not have merit. Accordingly, I recommend to the Board that the Petitioner's Objection 4 be overruled. The Petitioner alleged in Objection 5 as follows: 5. On or about June 23, 1983, the Company false- ly and fraudulently told employees in the bargaining unit that if they voted in favor of union representa- tion , they would be compelled to engage in a strike within three months after the election. 2. During the period between June 17 and June 24, 1983, the Employer promised employees in the bargaining unit that if they voted against the union, the Company would never, agree to any settlement in Case No. 27-CA-7742, thereby, the Company said , assuring present employees in the bargaining unit that they, would not be replaced by former em- ployees who have been the victims of the Compa- ny's discriminatory hiring practices since March, 1982. 3. During the period between June 17 and June 24, 1983, the Company threatened employees in the bargaining unit that if they voted in favor of the Based on the findings of fact and conclusions made with regard to the 8 (a)(1) allegations in subparagraph V(i) set forth in section VII of this decision , I conclude that the Petitioner's Objection 5 does note have merit. Accordingly, I recommend to the Board that the Peti- tioner's Objection 5 be overruled. The Petitioner alleged in Objection 8 as follows: 8. During the period between May 27 and June 24, 1983, the Company threatened , harassed, intimi- dated , and coerced employees in the bargaining unit to dissuade them from voting in favor of Union rep- resentation. 184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Based on the findings of fact and conclusions made with regard to the 8(a)(1) allegations in subparagraphs V(d), (k), (m), (n), (r), and (jj) set forth in section VII of this decision, I conclude that the Petitioner's Objection 8 has merit. Accordingly, I recommend to the Board that the Petitioner's Objection 8 be sustained. With regard to all of the Petitioner's objections, I have considered the other matters urged by the Petitioner in support of its objections. For example, in connection with the foregoing objection, I have considered the Peti- tioner's argument with regard to Charging Party's Ex- hibit 13, which is a copy of a memorandum dated 18 February 1983 and addressed to employees at the Gree- ley plant. The Petitioner urged that the memorandum in- stituted an employee disciplinary review plan, which the Petitioner urged as being, in effect, a grievance proce- dure which was a benefit to the employees. The Board held in Red's Express, 268 NLRB 1154, 1155 (1984): It is well established that the granting of a wage increase or other benefits during the critical period preceding an election is not per se grounds for set- ting aside an election. The crucial determinant is whether the wage increase or other benefits were granted for the purpose of influencing the employ- ees' vote in the election and were of a type reason- ably calculated to have that effect.5 As a general rule, an employer's legal duty in deciding whether to grant improvements while a representation pro- ceeding is pending is to decide that question as it would if the union were not on the scene.6 Thus, if the employer's actions were not altered by the pres- ence of the union, the Board will not set aside the election. a See NLRB v Exchange Parts Co., 375 U.S. 405 (1964) c Great Atlantic & Pacific Tea Corp., 166 NLRB 27 (1967). I conclude that the evidence in this proceeding does not establish that Charging Party's Exhibit 13 was issued because of the Union's organizational campaign. Accord- ingly, I conclude that that exhibit does not port Petition- er's Objection 8. The Petitioner alleged in Objections 10 and 23 the fol- lowing: 10. On June 24, 1983, while the election was in progress, the Employer intimidated and coerced employees to dissuade them from voting in favor of Union representation. 23. On June 24, 1983, Company supervisors en- gaged in coercive campaigning against the Union during working hours and restrained and prevented employees from voicing support for the Union. Based on the findings of fact and conclusions made with regard to 8(a)(1) allegations in subparagraph V(d) set forth in section VII of this decision, I conclude that the Petitioner's Objections 10 and 23 have merit. Ac- cordingly I recommend to the Board that the Petitioner's Objections 10 and 23 be sustained. I have considered the findings of fact and conclusions with regard the allegations in subparagraph V(aa) in sec- tion VII of this decision. I conclude that the remarks by Velasquez, who was a leadman as distinguished from a supervisor, did not interfere with the election as alleged. In addition, I have considered the testimony of Kelly Sodman with regard to his supervisor, Don Casters, saying "vote no" a couple of times to about 20 employ- ees in the Company's locker room on the day of the election. I consider that the supervisor's statement of merely saying "vote no," without any threat or promise of benefit or other coercive statement, did not interfere with the election as alleged. Furthermore, I have consid- ered the testimony of Jose Varela with regard to "vote no" comments made by two trainers, who Varela identi- fied only as Vert and Davis. I find that the trainer's com- ments did not amount to interference with the election. Accordingly, I conclude that the foregoing matters in this paragraph do not support the Petitioner's Objections 10 and 23. The Petitioner alleged in Objection 15 as follows: 15. On June 23, 1983, agents of the Company, in- cluding supervisors of employees in the bargaining unit, intruded into a meeting of bargaining unit em- ployees, engaged in surveillance of the employees in attendance, made threats against the employees in attendance, physically attacked bargaining unit em- ployees, and otherwise disrupted the meeting, all for the purpose of restraining bargaining unit em- ployees from freely exercising their right to select a bargaining representative of their choice. Based on the findings of fact and conclusions made with regard to the 8(a)(1) allegations in subparagraph V(y) set forth in section VII of this decision, I conclude that the Petitioner's Objection 15 does not have merit. Accordingly, I recommend to the Board that the Peti- tioner's Objection 15 be overruled. The Petitioner alleged in Objection number 17 as follows: 17. Between June 17 and June 24, 1983, the Com- pany threatened employees in the bargaining unit with loss of their jobs if they voted in favor of Union representation. Based on the findings of fact and conclusions made with regard to the 8(a)(1) allegations in subparagraphs V(e), (m), and (n) set forth in section VII of this deci- sion, I conclude that the Petitioner's Objection 17 has merit. Accordingly, I recommend to the Board that the Petitioner's Objection 17 be sustained. I have considered other matters which were urged to be in support of the Petitioner's Objection 17. Charging Party's Exhibits 14 and 15 are copies of leaflets which were distributed to employees by the Company a few days prior to the election. Charging Party's Exhibit 14 is entitled, "Why Doesn't the Company Want a Union?" The document referred to statements made a UFCW magazine; plant closures at various locations; and UFCW losses of members. Charging Party's Exhibit 15 is enti- tled, "A Short History of the United Food and Commer- cial Workers and Monfort of Colorado." The document MONFORT OF COLORADO 185 referred to the 1979-1980 strike at the Greeley plant; the interviewing of placement employees; the Greeley plant's reopening after the strike; the Greeley plant closure in 1980; applicants waiting in line to apply for jobs with the Company in 1982; and the reopening of the Greeley plant in 1982. Charging Party's Exhibit 17 is a copy of a letter dated 18 June 1983 from Plant Slaughter Manager Tom Weiler and Plant Fabrication Manager Maurice Dalton to the Company's employees. The letter pertained to a film en- titled "Unions in the Meat Packing Industry." That film was to be shown four times Wednesday and Thursday of that week on cable television. The letter stated that the presentation of the film was sponsored by the Company, Steve Thomas watched the film. He said at the hearing that the film dealt with the 1979 strike at the Greeley plant and the closure of the Greeley plant in 1980. In the opinion of Thomas, the blame for the plant closure was placed on the Union. In the opinion of Thomas, the Union had not been responsible for the plant being closed. He explained that the employees had returned to work after the strike was over in January 1980, and that they had worked under the Company's contract proposal terms until the plant had closed in March 1980. Charging Party's Exhibit 18 is a copy of a leaflet which the Company distributed to employees with their paychecks on the day of the election. The leaflet stated: QUESTION Why is the voting going to continue until 6:30 p.m.-three hours after most of you have gone home??? ANSWER Because the union demanded that the polls be open for three hours after you have left work. THAT ALLOWS THE UNION TO BRING IN HUN- DREDS OF FORMER WORKERS TO VOTE- THE SAME PEOPLE THE UNION HAS PROM- ISED YOUR JOB TO: Thomas said that the Union had no opportunity to re- spond to the statements made in the Company's leaflet before the election began. I have considered the additional matters referred to in the foregoing paragraphs, and I conclude that they were permissible campaign propaganda, and that they did not amount to coercive threats as alleged in the Petitioner's Objection 17. Accordingly, I conclude that those addi- tional matters do not support that objection. The Petitioner alleged in Objection 19 as follows: 19. The Company told employees in the hide de- partment that if they would vote against Union rep- resentation the Company would provide them with work gloves at no cost. Based on the findings of fact and conclusions made with regard to the 8(a)(1) allegations in subparagraph V(u) set forth section VII of this decision, I conclude that the Petitioner's Objection 19 has merit. Accordingly, I recommend to the Board that the Petitioner's Objection 19 be sustained. The Petitioner alleged in Objection 28 as follows: 28. The Excelsior list of eligible voters and their addresses which the Company was ordered to file with the Regional office and make available to the Union was deficient in several respects. First, the Excelsior list did not include the first names of the current employees in the bargaining unit . Second, the Excelsior list omitted the names and addresses of the 318 former employees who were the victims of the Company's discriminatory hiring practices. The Company refused the Board's request for a supplemental list containing the names and addresses of the discriminatees. Third, the Ex- celsior list contained incorrect addresses for over 25% of the voters listed. As a result of these defi- ciencies, the eligible voters were denied an opportu- nity to be informed of the issues in the exercise of their statutory right to vote. There is no dispute that the Respondent Employer did not furnish the names and addresses of the former em- ployees of the Company who were alleged to be discri- minatees in Case 27-CA-7742 when the Company sub- mitted the list required by the Board's decision if Excelsi- or Underwear, 156 NLRB 1236 (1966). Charging Party's Exhibit 24 is a copy of a letter dated 6 June 1983 from the Acting Regional Director for Region 27 of the NLRB to Attorney Warren L. Tomlin- son, who is one of the attorneys representing the Re- spondent Employer in this proceeding. The letter advise that the Regional Office had transmitted a copy of the Excelsior list to the Union. Footnote 1 of that letter stated: "It does not appear that the list maintains the names of alleged discriminatees involved in Case 27- CA-7742 who may be eligible to vote." Charging Party's Exhibit 25 is a copy of the Excelsior list which was pre- pared by the Company, submitted to Region 27, and for- warded by Region 27 to the Union. Charging Party's Exhibit 23 is a copy of a letter dated 31 August 1983 from Ken Monfort and addressed to "Dear Employee." The text of that letter, among other things, acknowl- edged that the Company had not provided a list to the Union of all the Company's former employees who the Union alleged should have been rehired by the Compa- ny. Based on the findings of fact and conclusions made with regard to the 8(a)(1) and (3) allegations, which'are set forth in section VI of this decision, I conclude that the Petitioner's Objection 28 does not have merit. As de- scribed in that section, I concluded that the Respondent had violated Section 8(a)(1) and (3) of the Act by its fail- ure to rehire in 1982 five employees. Thus, I conclude with regard to Petitioner's Objection 28, that the Re- spondent-Employer was not required to submit the names and addresses of the other alleged discriminatees on the Excelsior list cause those other alleged discrimina- tees were not eligible voters. Considering the large number of eligible voters in the representation election, I further conclude that the omission of only five names 186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and addresses of eligible voters does not amount to a fail- ure to comply with the Board's Excelsior decision in these circumstances. Accordingly, I recommend the Board that the Petitioner's Objection 28 be overruled. I make the following recommendations to the Board with regard to Case 27-RC-6368: 1. That the following Petitioner's objections be sus- tained: 2, 8, 10, 17, 19, and 23. 2. That the following Petitioner's objections be over- ruled: 4, 5, 15, and 28. 3. That the Board order that the first election be set aside baled on the objectionable conduct described above. 4. That the Board issue a direction of a second election to be conducted when the Regional Director for Region 27 of NLRB finds that it would be appropriate to hold such a second election among the employees in the unit who are employed during the payroll period ending im- mediately before the date of the notice of second elec- tion is issued by the Regional Director. 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 Charging Party Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act by threatening employees that, is the United Food and Commercial Workers International, Local Union No. 7 won the election, the Respondent would settle the out- standing unfair labor practice case against the Respond- ent, fire the present employees, and rehire the former employees. 4. The • Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act by telling employees that, if the above-named Union lost the election, the Respondent would fight vigorously the out- standing unfair labor practice case against the Respond- ent, even if it took years to do so, before the Respondent would fire even one present employee in order to rehire a former employee. 5. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act by threatening employees that the plant would be closed, if the employees selected the Union to represent them. 6. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act by threatening an employee that the employees' selection of the Charging Party Union as their collective-bargaining representative would cause the Greeley plant to be closed again, and by suggesting in that context that the employees form their own organization to bargain with the Respondent instead of selecting the Charging Party Union to represent them. 7. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act by telling an employee that employees who voted for the Union were a bunch of troublemakers and ought to be fired. 8. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act by threatening an employee that the employees would lose their profit-sharing benefits if the employees selected the Union as their collective-bargaining representative. 9. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act by threatening an employee with retaliation for revealing statements made by a supervisor of the Respondent, which had resulted in the Union's filing charges against the Respondent. 10. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act by telling an employee that an employee who would testify against the Respondent in a NLRB hearing ought to be shot or abandoned on some island. 11. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act by promising an employee free workgloves if the employee voted against the Union. 12. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act by telling an employee to solicit other company employees to sign a petition against the Union, in the context of tell- ing the same employee that he would be sure to get a promotion to a leadman's job. 13. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act by disparately applying its work rules to permit employees to engage in antiunion activities in the plant while not permitting employees to engage in prounion activities. 14. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (3) of the Act by its failure to rehire in 1982, because of the em- ployees' past union membership and activities, the fol- lowing named former company employees after they had filed Monfort applications for employment for produc- tion jobs at the Company's Greeley plant: Michael Cer- vantes, Vince Chacon, Friedhold Goehring, Arnulfo Hernandez , and Julius Pheifer. 15. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (4) of the Act by refusing on 15 April 1983 to hire Ruth De Vargas because the Union had filed an unfair labor prac- tice charge with the NLRB against the Respondent with regard to the Respondent's termination of De Vargas on 7 March 1983. 16. The unfair labor practices described ' above affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Because I have found that the Respondent has en- gaged in certain unfair labor practices within the mean- ing of Section 8(a)(1), (3), and (4) of the Act, I shall rec- ommend to the Board that the Respondent be ordered to cease and desist from engaging in such unfair labor prac- tices and to take certain affirmative action designed to ef- fectuate the policies of the Act. Because I have concluded that the Respondent failed to rehire five former employees in violation of Section MONFORT OF COLORADO 187 8(a)(1) and (3) of the Act, and because I have concluded that the Respondent failed to rehire a former employee in violation of Section 8(a)(1) and (4) of the Act, I rec- ommend to the Board that the Respondent be ordered to offer each one of them immediate and full reemployment in a production job at the Company's Greeley plant, without the loss of their seniority or any other benefits dating from the time the Respondent failed to rehire each one of them. I further recommend to the Board that the Respondent be ordered to make each one of them whole for any loss of earnings and other benefits as a result of the discrimination against any one of them. Backpay is to be computed in accordance with the Board's decision in F W. Woolworth Co., 90 NLRB 289 (1950), with interest on such backpay to be computed in accordance with the Board's decisions in Isis Plumbing Co., 138 NLRB 716 (1962); Florida Steel Corp., 231 NLRB 651 (1977), and Olympic Medical Corp., 250 NLRB 146 (1980). In accordance with, the Board's decision in Sterling Sugars, 261 NLRB 472 (1982), I shall recommend to the Board that an expunction remedy be included in the Order. Considering the nature and the extent of the numerous unfair labor practices found in this proceeding, and also considering the earlier unfair labor practices found by the Board in an earlier case involving the same Respond- ent's Grand Island plant, I shall recommend to the Board that a broad cease-and-desist remedial order be issued against the Respondent. Hickmott Foods, 242 NLRB 1357 (1979). There is some evidence in the record that a number of the Company's employees at the Greeley plant do not have the ability to speak and to understand the English language. For example, Urias testified that there were a number of employees at that plant who were able to speak only the Spanish language, and he interpreted for them during the 3 months he was there prior to the June 1983 election. Under the circumstance, I conclude that a Spanish language translation of the official English lan- guage notice is necessary- in order to ensure that the pro- visions of the notice to employees are communicated to all of the employees at the Company's Greeley plant. Fun Striders, Inc., 250 NLRB 520 fn. 2 (1980). [Recommended Order omitted from publication.] Copy with citationCopy as parenthetical citation
