Denver Lamb Co.

National Labor Relations Board - Board Decisions

Mar 28, 1984

269 N.L.R.B. 508 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Denver Lamb Co. and United Food and Commercial
Workers International, AFL-CIO, Local No. 7.
Case 27-CA-7337
28 March 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 9 May 1983 Administrative Law Judge Fred-
erick C. Herzog issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Denver
Lamb Co., Denver, Colorado, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order, except that the attached notice
is substituted for that of the administrative law
judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these
rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT assist or support Industrial, Tech-
nical and Professional Employees, a Division of the
National Maritime Union, AFL-CIO, or any other
labor organization, by soliciting and obtaining
membership application or authorization cards.
WE WILL NOT threaten to fire or otherwise get
back at employees because we learn that they have
engaged in or may in the future engage in activities
on behalf of a union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of rights guaranteed by Section 7 of the
Act.
DENVER LAMB Co.
I The Respondent has excepted to some of the judge's credibility find-
ings. 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.
2 In agreeing with the judge that the Respondent violated Sec. 8(aX2)
and (1) of the Act when its supervisor, Montour, solicited authorization
cards on behalf of the National Maritime Union, AFL-CIO, from his son,
Manuel Montour, and from employee Pat Stefanich, we find it unneces-
sary to determine whether Montour solicited cards from an additional
number of unknown employees since his conduct in soliciting cards from
his son and from Stefanich clearly demonstrates that the Respondent was
unlawfully lending assistance to a labor organization in violation of Sec.
8(aX2) and (1) of the Act.
Member Hunter agrees with the judge's finding that the Respondent
violated Sec. 8(a)(1) of the Act through Supervisor Montour's threat to
discharge employee Trujillo for engaging in union activity. Member
Hunter finds it unnecessary to pass on the judge's conclusion that the Re-
spondent violated Sec. 8(a)(1) of the Act through Montour's threat to dis-
charge employee Montoya for engaging in union activity inasmuch as the
finding of such an additional violation would be cumulative and would
not materially affect the Order.
269 NLRB No. 91
DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG, Administrative Law Judge.
Based on a charge filed on June 1, 1981, by United Food
and Commercial Workers International, AFL-CIO,
Local No. 71 (hereinafter referred to as the Union) that
Denver Lamb Company (hereinafter referred to as the
Respondent) has engaged in unfair labor practices in vio-
lation of Section 8(a)(3), (2), and (1) of the Act, a com-
plaint was issued by the Regional Director for Region 27
of the National Labor Relations Board on January 22,
1982. The complaint, as amended, alleges, generally
speaking, that the Respondent discriminatorily failed and
refused to reinstate one Paul Montoya to a job on the
Respondent's loading dock following his unconditional
offer to return to work following a strike, that the Re-
spondent rendered assistance to a labor organization ri-
valing the Union, and that, by various other acts, the Re-
' At that time known as Local 641.
508
DENVER LAMB CO.
spondent interfered with and coerced employees in the
exercise of rights guaranteed them under Section 7 of the
Act. The Respondent's answer, as amended, admits cer-
tain factual allegations but denies all wrongdoing.
Pursuant to notice this case was tried before me at
Denver, Colorado, on September 14 and 15, 1982. At the
trial all parties were afforded the right to participate, to
examine and cross-examine witnesses, and to adduce evi-
dence and make arguments in support of their positions.
Additionally, all parties were afforded the right to file
briefs on conclusion of the trial.
Based on the entire record, including my consideration
of the briefs filed by the parties, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Colorado corporation, is engaged
in the business of slaughtering and processing lambs and
lamb products from its office and plant located in
Denver, Colorado. In the course of this business it annu-
ally purchases goods and materials valued at more than
$50,000 directly from sources outside Colorado, and an-
nually sells and ships goods, at wholesale, directly to
points outside Colorado.
I find the Respondent to be an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II1. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent's answer
admits, and I find that both the Union, and Industrial,
Technical and Professional Employees, a Division of the
National Maritime Union, AFL-CIO (hereinafter re-
ferred to as the NMU), are now, and at all times material
herein have been, labor organizations within the meaning
of Section 2(5) of the Act.
II111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent has been engaged since its beginning
in November 1979 in the business of slaughtering, proc-
essing, and wholesale sale of lamb and related products
from its single plant at Denver, Colorado. Within its
plant is an area known as the kill floor department, com-
prised of subareas known as the kill floor, the con-
demned room, the casing room, and the chill cooler.
Also within its plant is the cooler/dock department, con-
sisting of the offal room, a cooler, and a loading dock.
Verner Averch is the Respondent's general manager of
the entire plant. Don DeBey is its foreman and Manuel
Montour is its assistant foreman of the kill floor depart-
ment. Each of the three men is admittedly a supervisor
within the meaning of Section 2(11) of the Act. Manuel
Schwab is the Respondent's cooler/dock foreman. While
his status as a supervisor is not critical to the decision of
this case, it was admitted by DeBey that Schwab also
possesses supervisory authority.
At times material herein the Respondent employed ap-
proximately 80 workers. Of that number approximately
68-72 worked in the kill floor department, with the re-
maining workers distributed through the cooler/dock de-
partment or other departments, possibly such as the cleri-
cal department.
Generally speaking, at no time material hereto has any
labor organization been validly recognized or certified as
the exclusive collective-bargaining representative of the
Respondent's employees. To the contrary, at one time
the Respondent voluntarily recognized the NMU as the
representative of its employees. However, the Respond-
ent later withdrew that recognition and voided its collec-
tive-bargaining agreement with the NMU pursuant to the
terms of a settlement agreement approved by the Re-
gional Director.2
The Union has apparently since the fall of 1979 sought
to win sufficient support from employees of the Re-
spondent to enable its designation or recognition as their
collective-bargaining representative. The record is un-
clear as to the reason April 1981 seemed a propitious
time to engage in a strike. 3 But according to Foreman
DeBey approximately 40-55 workers chose to engage in
a strike which commenced on or about April 30, 1981.
The strike lasted only until May 4, 1981, at which time
the Union tendered to the Respondent the unconditional
offer of all striking employees to return to work. The
Respondent's reply was that, while each offer was ac-
cepted, employees could not then be returned to their
former positions since it had no openings. Instead the
Respondent advised the Union that returning strikers
would be offered positions as openings occurred accord-
ing to each individual employee's seniority on a preferen-
tial hiring list. And, in fact, employees were returned to
their jobs in such a way that only one complaint has re-
sulted.
B. Issues'
i. It is alleged that the Respondent rendered aid, as-
sistance, and support to the NMU in violation of Section
8(a)(2) and (1) of the Act by:
a. Through Manuel Montour, requesting and soliciting
employees on or about April 28 and 29, 1981, to sign
union authorization cards for the NMU on the Respond-
ent's property.
b. Through Montour, on or about April 28, 1981, tell-
ing employees they would all be out on the street if they
did not sign cards for the NMU
2. It is further alleged that the Respondent violated
Section 8(a)(3) and (1) of the Act by discriminating
against its employee Paul Montoya, in that the Respond-
2 The settlement agreement in question has evidently not been set
aside, and is not in evidence. Accordingly, it is appropriate to comment
that I have engaged in the above factual recital merely to provide con-
text for the operative facts underlying the instant unfair labor practice
charge. I have not based any finding of fact or remedial provision on evi-
dence of facts other than those demonstrating the commission of unfair
labor practices in this case.
I While the Respondent's evidence pointed toward employees' de-
mands for a wage increase as the cause of the strike, the General Coun-
sel's evidence tended to show that it was employees' desires for a repre-
sentational election which underlay the strike. The issue need not be de-
cided here, for no claim is made that the strike was either caused or pro-
longed by any unfair labor practices of the Respondent.
509
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent failed and refused to reinstate Montoya to "a job on
the loading dock."
3. Finally, it is alleged that the Respondent violated
Section 8(a)(l) of the Act by interrogating employees, by
threatening employees, and by ordering an employee to
stay out of the dock area.
C. The Aid, Assistance, and Support of the NMU
According to the General Counsel, the Respondent,
through Supervisor Montour, violated Section 8(a)(l) of
the Act by interfering with and coercing employees in
the exercise of rights protected by Section 7 of the Act
in such a way as to violate Section 8(a)(2) of the Act,
which prohibits an employer, inter alia, from interfering
with the formation of a labor organization or contribut-
ing any support to it.
The General Counsel and the Charging Party have
not, however, argued or presented evidence tending to
establish that the Respondent has either sought to or suc-
ceeded in dominating any labor organization.
Employee Larry Montoya, a cardsigner for the Union
and a participant in the strike, testified credibly regard-
ing an incident which occurred a couple of days before
the strike commenced. While on his way to lunch he saw
Supervisor Montour with a group of employees. He
noted that Montour had paper and pen in hand, and that
a couple of employees were bent over as though filling
out white, envelope size, pieces of paper, which could
possibly have been authorization cards. Larry Montoya
saw Montour hand similar pieces of paper to a couple of
other employees. He admitted that he never saw what
was written or printed on the pieces of paper. At that he
turned back to where he had come from, intending to
locate his father, Paul Montoya. He returned with Paul
Montoya seconds later but by that time the group had
dispersed. Supervisor Montour was not called by the Re-
spondent to rebut this (or any other) testimony. None of
the employees in the group was called as a witness by
any party.
Employee Pat Stefanich testified that on April 28,
1981, he was in the plant's locker room with Montour
during lunchtime. Montour took him into a room nearby
and asked if he wanted to sign a card for "the union."
Montour then asked if he had already signed a card for
the Union. Stefanich responded that he had. At that
Montour asked Stefanich to sign another card and ex-
plained that he would rather see the NMU get in. Mon-
tour succeeded in securing Stefanich's signature on a
membership application and dues-deduction authorization
which, among other things, purported on its face to des-
ignate the NMU to act as the sole collective-bargaining
agent in all matters affecting Stefanich's wages, hours,
and working conditions. During this same incident Mon-
tour allegedly told Stefanich that he did not want to see
the Union get in because it caused plants to close by de-
manding wage increases. Both the General Counsel and
the Respondent produced affidavits signed by Stefanich
which differed in certain respects from his testimony at
trial, as well as from one another. Moreover, Stefanich
was quite reluctant to testify for the General Counsel,
appearing only after the trial was adjourned overnight to
allow the General Counsel an opportunity to secure his
testimony either by persuasion or by subpoena enforce-
ment. Nevertheless, the impression made by Stefanich
throughout his testimony was that of a truthful, if some-
what imprecise, witness. In instances where he was re-
petitively called on to recount the thrust of his meeting
with Montour on April 28, 1981, he told the same essen-
tial tale, i.e., Montour asked him about his sentiments for
and against the involved unions and successfully asked
him to sign an authorization card for the NMU I there-
fore credit him in such testimony. However, I regard his
testimony regarding the possibility of plant closure, or of
employees being "put out on the street" should the
Union secure representation rights as uncertain, due to
his self-contradiction. Accordingly, I do not credit it. As
stated earlier herein, Montour was not called to rebut
Stefenich.
The final piece of evidence presented on the issue of
illegal assistance to the NMU was the testimony of em-
ployee Paul Montoya. Montoya stated that a week or so
before the strike he observed Montour instruct his son,
Manuel Montour, an employee, to sign an authorization
card on behalf of the NMU. According to Montoya he
overheard Montour tell his son, "Just go ahead and sign
your name on it. You don't have to work about nothing
else." Manuel Montour, like his father, was not called by
the Respondent to rebut any of the testimony. Thus,
there being no evidence to the contrary, and the testimo-
ny of Paul Montoya being neither inherently implausible
nor diminished by my impression of his credibility gained
from observing his demeanor, I credit Montoya's testi-
mony concerning the incident.
I find that the General Counsel's unrebutted evidence
establishes as fact that Montour did solicit employees
Stefanich and Manuel Montour, his son, to sign authori-
zation cards and otherwise support the NMU And while
the evidence is less substantial regarding Montour's simi-
lar solicitation of authorization card signatures from an
entire group of employees, I conclude that the direct, un-
contradicted evidence of Montour's activities with Ste-
fanich and Manuel Montour sufficiently colors the cir-
cumstances of his meeting with the group to enable a
further finding that Montour solicited an additional, but
unknown, number of employees to sign cards.
Accordingly, I shall find that the Respondent, which
bears responsibility for the actions of its supervisors, vio-
lated Section 8(a)(2) and (1) of the Act by soliciting em-
ployees to sign authorization cards or othewise lend sup-
port to a labor organization, the NMU. Pittsburgh Metal
Lithographing Co., 158 NLRB 1126 (1966).
While it is clear that the evidence before me will not
support a finding that the Respondent engaged in an ex-
tensive campaign on behalf of the NMU, or that it
sought to either recognize or control the NMU, it has
long been considered axiomatic that acts such as Mon-
tour's are illegal. By their very nature such acts require
employees to honor the employer's, rather than their
own, desires regarding the question of whether to select
510
DENVER LAMB CO.
union representation or not. Pittsburgh Metal Lithograph-
ing Co., id, at 1133. 4
I find and conclude that by soliciting and instructing
employees to sign authorization cards and lend support
to the NMU the Respondent violated Section 8(a)(2) and
(1) of the Act.
However, in light of my credibility finding with re-
spect thereto, I conclude that the allegation that Mon-
tour told employees that they would lose their jobs or be
"out on the street" if they failed to support the NMU
has not been proven. Accordingly, it must be dismissed.
D. The Alleged Failure to Reinstate Paul Montoya
As noted earlier herein, at the conclusion of the 1981
strike the Respondent established a preferential hiring list
for the purpose of recalling strikers to their jobs as the
jobs became available. Apparently the recall process
worked rather smoothly, for, so far as the record shows,
only one complaint resulted, i.e., that Paul Montoya was
not immediately recalled to his proper position of em-
ployment.
Before the strike Montoya worked in the offal room,
part of the cooler/dock department. When he applied for
reinstatement at the conclusion of the strike he, like
other employees, was told there was no work. It was not
until June 15, 1981, that he returned to work for the Re-
spondent. And, even then, it was not at his previous job.
Instead, he was hired on a day-to-day basis as a "stick-
er." Montoya worked all that week as a day laborer.
On Friday of that week he went to speak to Schwab,
to ask about being hired to work on Saturday. Schwab
told him to check back later in the day. Montoya did so,
around 2 p.m. and, on his arrival at Schwab's work sta-
tion near the loading dock, observed Schwab and
Averch in a discussion. He waited nearby for them to
complete their talk and, as he did so, saw his son, Larry
Montoya, working nearby. Montoya went over and
asked his son a question. As he did so he was observed
by Averch, who came over and ordered him away from
the loading dock. Averch told him he did not want him
talking to employees on the loading dock, and said that if
he wanted to talk to them to do so at breaktime, lunch,
or on his own time. Montoya became angry and left
without speaking to Schwab.
Later that same afternoon Montour approached Mon-
toya and advised him he would be better off to stay in
his own department, to stay off the loading dock, and to
stay out of Averch's way. Montoya stated that Montour
explained that "Averch figures that you were the ring
leader in this union thing because he seen you outside
with Ron Bush all the time."6 Montour continued,
saying, "Vern Averch is a pretty nice guy, but you do
him wrong and it be a long time before he forgets you."
Montoya responded that he would stay out of Averch's
way.
4 Counsel for the General Counsel cited no authority in support of his
position on this point in his brief The Charging Party's citations were
uniformly erroneous. And the Respondent's citations were inapposite.
5 A reference to the fact that Montoya had served as the Union's strike
captain and accompanied the union representative, Bush, when Bush
went to the Respondent's premises on May 4, 1981, to deliver the
Union's letter offering the unconditional return to work of all strikers.
Around June 24, 1981, Montoya noticed that he had
developed a bad rash on his arms. He surmised that it re-
sulted from his proximity to the sheep's wool while he
worked as a day laborer as a sticker. In order to alleviate
the condition he thought it best to request a transfer onto
the kill floor or loading dock. So he went and talked to
DeBey about it. DeBey promised to see what he could
do and let him know by the following day.
On Friday, DeBey said he would need until Monday
to get an answer.
On Monday, June 29, 1981, Montour advised Montoya
that the Respondent had decided to recall six more strik-
ers to permanent jobs, with four going to the kill floor
and two to the loading dock. That same day DeBey noti-
fied Montoya he was being recalled to a permanent job
and would be placed in the drip room. Montoya object-
ed, saying he would rather be on the loading dock.
DeBey simply told him the decision would stand.
In fact, as Montoya had been told by Montour, two
employees were recalled to work on the loading dock.
They were Alex Payon and Montoya's son, Larry Mon-
toya. Montoya testified that he possessed greater seniori-
ty than Alex Payon.
Thus, on Wednesday, July 1, 1981, Montoya spoke to
DeBey, protesting the fact that he was not placed on the
loading dock. DeBey asserted that the openings had not
occurred simultaneously and went on to say that he was
sorry, but he had done all that the "politics" would let
him do. Montoya continued to protest, and DeBey final-
ly said that everyone who had been working on the
loading dock would be hired back there before Montoya
would be placed there. He told Montoya that if someone
who had been working on the loading dock quit, thereby
creating an opening, he would be transferred there.
Montoya admitted, while describing his work history,
that his first year with the Respondent was spent on the
kill floor, "sticking and marking toes." He then trans-
ferred to the loading dock, but stayed there only a
couple of days before transferring to the offal room in
the cooler. After the strike ended he was given day labor
jobs for a while until he was recalled to a permanent job.
When he was recalled he was put in the drip room.
Montoya described the difference between the drip room
and the offal room; he said that the former was merely
cold while the latter was both cold and damp.
In any event Montoya worked in the drip room until
January 1982, when he developed bursitis in his shoul-
ders. He thereon went to DeBey and requested another
transfer for medical reasons. He was subsequently trans-
ferred to the unloading dock.
All this occurred after Montoya was offered the pre-
cise same job he had held prior to the strike, working in
the offal room. So far as the record shows Montoya was
offered his old job as soon as it became available. Mon-
toya turned this offer down since, based on DeBey's
facial expression during a conversation they held con-
cerning the matter, he surmised that the Respondent
"didn't really want him" back in the offal room.
Based on these facts, all of which are undisputed or
drawn from the testimony of Montoya, I cannot con-
511
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elude that Montoya has been the victim of discrimination
at the hands of the Respondent.
Clearly, under the rules announced in Laidlaw Corp.,
171 NLRB 1366 (1968), Montoya was entitled to full re-
instatement on the departure of his replacement in the
offal room. The rule is that economic strikers who un-
conditionally apply for reinstatement at a time when
their positions are filled by permanent replacements: (a)
remain employees, and (b) are entitled to full reinstate-
ment on the departure of replacements unless they have
in the meantime acquired regular and substantially equiv-
alent employment, or the employer can sustain his
burden of proof that the failure to offer reinstatement
was for legitimate and substantial business reasons.
In this case it seems that Montoya received all that the
rule calls for, and more.
First of all he was hired as a day laborer. An employer
is obliged to consider all prospective employees in a non-
discriminatory fashion. But the record before me will not
support a finding that the Respondent was obliged to
offer Montoya as a day laborer pending his reinstatement
to his former position.
Secondly, Montoya was offered a permanent position,
in the drip room.6 And once again it does not appear
that the Respondent owed him this opportunity.
Thirdly, as he admitted, when Montoya's old job did
come open in February 1982 it was promptly offered to
him. He turned it down.
Finally, in two instances Montoya was afforded favor-
able treatment to enable him to escape medical problems.
The first was when he asked for and secured a transfer
away from the day-labor work as a sticker, which had
caused him a rash. The second was when, in March
1982, he finally succeeded in securing a transfer to the
dock, on account of the bursitis in his shoulders.
The parties dispute whether employees were to be
called back from the strike based on their plantwide se-
niority or on their departmental seniority. I make no
finding on this point, except that I regard the evidence as
too sketchy to support the General Counsel's burden of
showing that departmental seniority was to prevail. Cer-
tainly the Respondent's letter of acceptance of the em-
ployees' unconditional offer to return to work makes no
reference to any such seniority plan, and any testimony
offered on this point was, in my view, too generalized to
be persuasive. Indeed, even Montoya testified that no
specific type of seniority was specified to be used in re-
calling employees.
Lastly, the evidence of an intent to discriminate
against Montoya is not convincing.
The incident in which Averch ordered him away from
the loading dock was plausibly explained by DeBey,
who testified that the Respondent had a longstanding
rule against employees being out of their work areas, or
interfering with the work of other employees in other
departments. Montoya acknowledged the existence of
6 According to DeBey, in its selection of Montoya for work in the
drip room the Respondent's intent was to place Montoya on "light duty."
Montoya agreed that the work in the drip room could be so character-
ized.
the rule,7 as well as the fact that he had been warned
about violating it several times even preceding the strike.
Moreover, Montoya admitted that when Averch ordered
him away from the loading dock Averch had no way of
knowing that he had come there for a legitimate pur-
pose, to speak to Schwab about obtaining work on Satur-
day. And instead of enlightening Averch or Schwab
about the purpose of his visit Montoya simply gave in to
anger and walked away. Thus I cannot conclude that
Averch said or did anything illegal when he spoke to
Montoya. In effect, albeit abruptly, he simply told him to
go back to work, to avoid interfering with other employ-
ees, and to abide by the Respondent's rule.
Thus, the warnings given Montoya by Montour later
that day seem somewhat less sinister than when viewed
in isolation. True enough the remarks of Montour con-
tained a threat and demonstrate a linkage in Montour's
mind between Montoya's union activities and the pros-
pects for an untimely end to his career with the Re-
spondent. Such statements are impermissible and violate
Section 8(a)(l) of the Act. 8 But a finding that the re-
marks violated Section 8(a)(1) is not the same as finding
the remarks sufficient to demonstrate an intent to dis-
criminate, particularly when the discrimination would
necessarily have been practiced by Averch or DeBey,
rather than Montour, the person who committed the
8(a)(1) violations. Instead, taking into account all the evi-
dence that Montoya was not the victim of discrimina-
tion, and was instead the recipient of favorable treat-
ment, I find that Montour's remarks furnish an inad-
equate basis for a finding that the Respondent violated
Section 8(a)(3).
Accordingly, taken as a whole I conclude that the
General Counsel's evidence does not support the alleged
violations of Section 8(a)(3) and (1) and shall dismiss
them.
E. Additional Violation of Section 8(a)(1)
Employee Raymond Trujillo, a credible witness, testi-
fied that he had been employed by the Respondent on its
kill floor for about 2 years before the strike. He signed
an authorization card for the Union about a week pre-
ceding the strike, in addition to passing cards to other
employees on behalf of the Union.
About 3 days before the strike began Trujillo was
working in the corral when he was approached by Mon-
tour. Montour asked him if he liked making the money
he was making. Trujillo responded that he did. Montour
then told him that if he liked it he would quit passing out
cards for Local 7, the Union.
Again, Montour was not presented as a witness by the
Respondent, and Trujillo's testimony stands unrefuted.
I conclude that Trujillo's testimony amply establishes
that the Respondent must be'held responsible for threat-
ening to discharge an employee should he persist in his
I Stipulated to be a requirement of the U.S. Department of Agricul-
ture.
a As this point was fully litigated without objection from the Respond-
ent I have no hesitancy in finding a violation dispite the fact that it was
not alleged in the complaint.
512
DENVER LAMB CO.
activities on behalf of the Union. Such a threat is clearly
violative of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Denver Lamb Company, is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union and the NMU are labor organizations
within the meaning of Section 2(5) of the Act.
3. By soliciting employees to sign authorization cards
on behalf of the NMU, a labor organization, or other-
wise to lend support to it, the Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(2) and (1) of the Act.
4. By threatening employees with discharge or other
reprisals if they engaged or continued to engage in union
activities, including, among other things, passing out
union authorization cards to fellow employees or serving
as a strike captain on behalf of a labor organization, the
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
5. The Respondent has not violated the Act in any
manner except as specified above.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
ORDER 9
The Respondent, Denver Lamb Company, Denver,
Colorado, its officers, agents, successors, and assigns,
shall
9 All outstanding motions inconsistent with this recommended Order
are hereby denied. If no exceptions are filed as provided by Sec. 102.46
of the Board's Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
1. Cease and desist from
(a) Lending support or assistance to Industrial, Techni-
cal and Professional Employees, a Division of the Na-
tional Maritime Union, AFL-CIO, or any other labor or-
ganization, by soliciting or obtaining employee signatures
to membership or authorization cards.
(b) Threatening to discharge, or exact other reprisals
from employees if they have engaged in or continue to
engage in union activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
right to self-organization, to join, form, or assist labor or-
ganizations of their own choosing, to bargain collectively
through representatives of their own choosing, and to
engage in other protected activities for the purpose of
collective-bargaining or other mutual aid or protection.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Post at its Denver, Colorado facility copies of the
attached notice marked "Appendix." o1 Copies of the
notice, on forms provided by the Regional Director for
Region 27, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
'O 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
513